Tobacco Advertising and Promotion Bill

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Yvette Cooper: Again, this is a standard clause, which establishes an offence of intentionally obstructing

    ``a duly authorised officer of an enforcement authority''.

The clause is necessary to ensure that the enforcement authority has the proper powers to enforce the measures.

Clause 13 states:

    ``A duly authorised officer of an enforcement authority has the right, on producing, if so required, his written authority''

to enter the premises. The clause therefore contains that requirement.

The provisions are standard ones that equally apply to parallel legislation, such as the Consumer Protection Act 1987. There should not be a serious problem with the clauses to which the hon. Member for Mid-Worcestershire referred, as they operate in the same way as those in previous legislation. Clause 14 rightly uses the words ``intentionally obstructs'', because it would be wrong for the clause to cover unintentional obstruction, given that it establishes a criminal offence.

Mr. Ian Bruce: My understanding is that it is not an offence for a shoplifter, for example, who has been caught by a police officer, to claim that he has not stolen anything and obstruct the officer in his investigation of the crime. A criminal would normally lie, and it is not an offence to do so; the police officer cannot prosecute someone for being unco-operative in the detection of a crime.

The clause does not seem to be standard, because it makes it a prosecutable offence to tell a lie and say, ``It wasn't my advert, guv'nor.'' If that is standard clause, I am a Dutchman.

Yvette Cooper: This is a standard process for enforcing legislation, along the lines of the Consumer Protection Act 1987, and other such measures. It is right and appropriate to have such provisions in the Bill.

Question put and agreed to.

Clause 14 ordered to stand part of the Bill.

Clause 15


The Chairman: The question is that clause 15 stand part of the Bill.

Hon. Members: Aye.

Mrs. Spelman: Labour Members are trying to jump the gun by voting through the clause before we have had a chance to debate it, but they will not get away with it. Unfortunately for them, it is my job to ensure that that does not happen without some discussion.

The clause relates to the level of penalties that can be imposed for the offences. I am not entirely satisfied that the defences in clause 14 are as safe and sound as we would like. The provisions in clause 13 are not a mirror image of the Food Standards Act 1999, despite the fact that the explanatory notes say that there are similar provisions in the Consumer Protection Act 1987, and the Food Standards Act—they are similar, but with important differences. The fact that there are these lacunae cause the Opposition the anxiety. We are giving strong powers of entry here—[Interruption.]

The Chairman: Order

Mrs. Spelman: Thank you Mrs. Adams. I suspect that it is because speeches are off limits to Labour Members that we get a sedentary growl instead.

The lack of mirroring of other legislation—which has been more substantially debated than it has been possible to debate the powers of entry in this Bill—is the reason for the Opposition's disquiet about the position of a person whose premises have been broken into. The penalty for obstructing an officer—if it proved impossible to convince a court that it was unintentional—would be £1,000, which is a significant sum of money. It will difficult to prove the intentions, as my hon. Friend the Member for South Dorset said—it comes close to policing people's thoughts, which is an impossible thing to do. The penalty for any other offence on the Bill would be up to three months' imprisonment, or a fine not exceeding level 5 on the standard scale, and that is £5,000.

These are substantial penalties, affecting often small commercial premises, such as corner shops, newsagents. We are trying to legislate for both the corporate giants of the tobacco industry, and the small businesses that may be displaying a tobacco advertisement, and no distinction is being made between the two.

In the case of a small newsagents, or a specialist tobacconist, who displays a tobacco advertisement, since they are very often a one-man-band, a prison sentence of three months will possibly cause their entire business to fold. In part because it may be impossible to prove intention, one way or the other, and because reasonable cause for failure to comply has not been defined. I would seek in the guidance from the regulations, to have some illustration—which I asked for in the stand part debate on clause 14—of what might be a reasonable cause.

My hon. Friend the Member for Mid-Worcestershire (Mr. Luff) made the point that someone could produce a defence that they had reasonably grounds to doubt the identity of the individual trying to enforce the entry. This is particularly the case as there is some confusion over trading standards definitions, and weights and measures authority definitions, which have remained unclear.

The Minister thinks that there will not be many cases of enforcement, but the beginning is when there are likely to be the most cases and attempted prosecutions for failure to comply. It will take some time for this change in the law to be part of common practice. For many of those individuals, it would take a while to find out what the Bill meant. It is right to ask the Minister about the scale of the penalties and whether it is fair to legislate in this way for both big and small businesses.

Mr. Harvey: My concern is the opposite of that of the hon. Member for Meriden. I took her point that this seemed to cover the span from the corner shop to the big tobacco company. I listened with interest her point about the penalties being excessive for the corner shop, but my concern is quite the opposite, that they are not much of a disincentive to the big players, when one considers the volume of business and the profits that can be made, despite the fact that advertising, although legal, costs a great deal of money.

Clause 16 defines offences by bodies corporate. I appreciate that the existence of a three-months' term of imprisonment for someone within the body corporate is a fair disincentive, but a fine of £5,000 would come out of the petty cash box and would not be much of a deterrent if it felt inclined to give it a go. A single advert might produce revenue that would dwarf that fine. The Minister said earlier that the tobacco industry had said that it intended to comply with the Bill—I believe that to be so, and I hope that it will prove to be so—but, when enacted, the legislation will continue for some time and one does not know whether in future a business might be inclined to try its luck.

Mr. Ian Bruce: I join hon. Members in their opposition to these offences. More needs to be said, however, about the special offence that is being created, with a fine of £1,000—and, no doubt, a criminal record to go with it. I shall not go down the route of what constitutes a criminal record, but I think that the individual would have one and might not be able to hold a licence to sell alcohol, which could be serious for their business.

Under clause 14, a duly authorised officer could go into a shop and, if he saw what he thought was a criminal offence in terms of advertising at a point of sale that had broken the regulations, could interview an individual and say ``Who provided the information? Who said you should use this type of display on your premises?'' There is no requirement in law for the shopkeeper to have a lawyer with him and he could not say, ``Whoa, hang on a minute. I won't answer your questions until I've got my lawyer here to advise me.'' He could turn to the officer and say, ``Oh I've no idea who provided this.'' When it was shown by the officer later that the shopkeeper knew exactly which sales rep had put it in, he could be fined £1,000 under clause 15 for having knowingly given a false answer, yet on further investigation it may have been found that the display was legal, so that someone who was not breaking the law on advertising was being fined for not being helpful to the officer who asked where the advertising material had come from, and for trying to deny it.

There is no requirement that, before anyone answers questions, they should be cautioned that anything they might say could be taken down and, if untrue, could lead to prosecution. An authorised officer is not required to say to a person, ``I'm going to ask you some questions and I think you should get your lawyer here, because you could end up with a criminal conviction and a fine of £1,000.'' To have that on the record could be serious for that person's future, if they wanted to stand as a parliamentary candidate, become a magistrate, take out a licence to sell alcohol or run a night club.

I hate ever having to agree with the Liberal Democrats, but the hon. Member for North Devon (Mr. Harvey) made a sensible point. The tobacco industry and the people who sign up as members of the Tobacco Merchants Association are responsible corporate beings in terms of the law. I do not expect them to say, ``Let us break the law,'' but individual tobacco companies and individual retailers and wholesalers of tobacco will test this law. The company secretary might be liable for three months in prison but, as we all know, the magistrates courts do not imprison people for things like this, especially on a first offence. That the maximum fine is £5,000 is nonsensical.

What are we all doing here spending our time debating this Bill, if the Minister is saying, ``We have this Bill, it is full of loopholes but it provides something that was put in the Labour Party manifesto.''? With a £5,000 fine it is almost unenforceable. We know that a case involving 30p worth of bananas is costing the prosecuting authority over £200,000. We are saying to individual local councils that if they found the most blatant situation of a national organisation running an event such as a rave, with lots of free tobacco—

11.15 am

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Prepared 8 February 2001