Tobacco Advertising and Promotion Bill

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Mr. Bruce: The Minister is forgetting what she said previously. Her view, which is not mine, was that the packaging around a packet of cigarettes is not an advertisement for the tobacco product inside. If the carrier bag is fully branded, we all agree that the branding, which does not even have information about tobacco on it, is intended to promote a tobacco product, and is therefore an advertisement. It is not covered by the Bill or the clause, as the hon. Lady seems to be saying.

Yvette Cooper: If that the defence that the hon. Gentleman wants to run in the courts if prosecuted under the Bill, I wish him luck. The argument that a carrier bag is to be considered as part of the packet for the cigarette—and is therefore not to be regarded, either as an advertisement for the product, or alternatively as a branded good—might prove somewhat tenuous in the courts. That is clearly not the intention of the Bill.

New clause 3 sets out the issues around display, as opposed to point of sale advertising, which we have discussed in some detail. Amendment No. 14 is a consequential amendment, and deals with the process for discussing the regulations through the affirmative procedure, should they be required.

3.30 pm

Mr. Bruce: I started off with some concerns about new clause 3. Having heard the Minister's response, my concerns have merely increased. The new clause, which we first saw yesterday evening—or earlier if we were more attentive—does not cover what we thought the Minister was going to attempt to cover.

I went a demonstration of digital radio yesterday evening. Digital radio provides a facility not only for normal music but for digital information to be supplied on a screen. Tobacco advertising from overseas could be provided in that way. We already have digital television in this country—indeed, the UK is the leader in digital television. Digital television has many interactive features. Under the voluntary bans, and under all sorts of codes, we cannot have television advertising of tobacco products. Despite that fact, I could design today a facility that tobacco companies could use to have their websites accessed and displayed on digital television. People already have such facilities on their televisions. The Minister, in trying to rush the Bill through by 5 pm, is not listening to the Opposition's advice.

Although new clause 3 is obviously designed to improve the Bill in terms of possible abuses, it is not enough for the Minister to say to the tobacco companies, ``Well, don't worry chaps, we're not actually going to think of having regulations until we might see an abuse.'' When the abuse comes along, it will take a considerable amount of time to deal with it. Some employment agency regulations in which I have an interest have taken two years to arrive since the original legislation was enacted.

The Prime Minister says that we should have at least three months to consult on statutory instruments, and then the Government have to find time for them in this place. We are, in effect, saying to the industry, ``Come and try us: there are all sorts of loopholes.'' The Minister needs to address those points.

Amendment agreed to.

Mrs. Spelman: I beg to move amendment No. 42, in page 9, line 16, after first `Parliament', insert

    `with respect to England, Wales and Northern Ireland'.

The Chairman: With this it will be convenient to take amendment No. 43, in page 9, line 16, after second `Parliament', insert `with respect to Scotland'.

Mrs. Spelman: The two small amendments are designed to help to clarify the implications for the devolved assemblies of the United Kingdom. As drafted, two aspects of the clause lead to confusion. Clause 17(4) does not make it clear that the Westminster and Scottish Parliaments have specific jurisdiction. The implication is that either Parliament can give effect to an annulment. Will the Minister confirm whether that is the case? Of course, we accept that, as a result of devolution, Parliaments may take decisions that lead to a completely different course of action. We have seen that in relation to the provision of free personal care. We have always said that that was a logical consequence of devolution. Subsection (4) says:

    ``this Act shall be subject to annulment in pursuance of a resolution of either House of Parliament or of the Scottish Parliament.''

That would permit one or other of those Parliaments to take unilateral action. That would rather weaken the effectiveness of the Bill.

For argument's sake let us assume that the Scottish Parliament, for reasons best known to itself, decided on the course of annulment. We know that the prevalence of smoking in parts of Scotland is very high, and we share the Government's aim of trying to help in those communities where there is a high incidence of smoking. So we would not wish annulment to happen. We were seeking by our amendments to clarify this, if there is any confusion, and to be constructive.

Yvette Cooper: I have a lot of sympathy with the amendments. Not being a lawyer myself, I think that it is important to provide clarity. Having read the amendments and re-read the clause, I have asked for reassurance, more than once, that what the hon. Lady has described as the purpose behind her amendment is provided for by the Bill. I am assured that the Bill already provides for Westminster Parliament to cover England, Wales and Northern Ireland and for the Scottish Parliament to cover Scotland. That is the consequence of this Bill as it is drafted and the amendments are therefore unnecessary. I give the hon. Lady the assurance that I will check this one more time before we reach Report. I have done so already, as I am concerned to make sure that exactly the points that the hon. Lady has raised are already covered within the Bill. It would not be right for the Scottish Parliament to annul inappropriately the regulations that have been set by the Westminster Parliament.

Mrs. Spelman: That is helpful. A lot of people who are not lawyers and who read the Bill will be as confused as both of us were. We shall have to take the word of the highly paid and well-qualified draughtsmen that they have got this absolutely right. It might also be possible, to make that clear as part of the guidance, and for that reason I beg to ask leave to withdraw the amendments.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

Mrs. Spelman: This is a very important clause, because it gives the power to make regulations and orders. My general observation is that we have a great deal of the cart before the horse with this Bill. We are taking a great deal on promise that provisions will be made in regulations—regulations that we have not seen, and on which, in some cases, consultation has not yet taken place. Being a relatively new parliamentarian I find that an astonishing way to go about one's business. So do those people who will be directly affected by this Bill, not least because, for a number of years, they have been promised consultation on these very important matters.

Also, there are some discrepancies that cause me to raise an eyebrow in relation to the regulation-making powers. Only an order in clause 7 or the regulations in clauses 8 and 10 will be affirmative statutory instruments that will be debated by both Houses of Parliament. However, the regulations referred to in clauses 4, 6, 12 and 18 do not appear to need affirmative statutory instruments. The one that causes my raised eyebrow is the transitional provision, which, unless I am very much mistaken, does not require positive resolution. A number of hon. Members have very considerable concerns about that provisions and how the transitional arrangements up to 2006 will be applied and why some sports should be given preferential treatment under them. The way in which the regulations will subsequently be debated will vary. It is important that we have the chance to debate them, especially as the fruits of consultation that has not yet taken place cannot inform our present argument. We could have approached some of the tricky issues in the Bill differently if the consultation on which those subsequent regulations will be based had taken place. For example, I do not feel at ease about whether we have satisfactorily dealt with the regulation of ISPs, and we have had no sight of the regulations that will affect them.

There are some discrepancies in, for example, subsection (2), which allows the appropriate Minister or Secretary of State to regulate differently for different cases or circumstances. I am concerned that that may be discriminatory and will not set a level playing field for those involved in publishing or distributing by electronic means. My hon. Friend the Member for Mid-Worcestershire, who has experience of the printing industry, made the interesting point that our country's printing businesses will be placed at a disadvantage under the Bill in terms of international tendering for magazines and periodicals that contain tobacco advertisements. By comparison, the new internet service industry seems to have been granted a considerable concession under new clause 3. The different industries that compete for our attention and to influence our choices will be treated in a different manner. I fear that the print industry may now be disadvantaged vis a vis those publishing or distributing by electronic means.

The Government have failed to provide adequate time for the detail of the Bill, as they have rushed to introduce it so that they can tick the box and say that their pledge to ban tobacco advertising has been achieved in the lifetime of this Parliament. That detail will be important to the effectiveness of the Bill and to the achievement of the Government's aims. As we have had no sight of the regulations, we will not even comment on the likely effectiveness of the secondary legislation until it is all done and dusted and has passed through the Houses of Parliament. Empty-box legislation is an inferior form of legislation, but very much a feature of this, my first Parliament. Disquiet about that is not confined to Opposition Members. Representations from the affected industries lead us to impress on the Government the fact that leaving decisions to regulations as much as possible is not regarded as especially helpful.

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Prepared 8 February 2001