Tobacco Advertising and Promotion Bill

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Mr. Luff: That was a summary of my earlier remarks, and I can only agree with my hon. Friend. The Department has said, ``The Bill contains seven order-making powers. We have to make clause 18 negative for political reasons, so let's make another two negative to give it respectability.'' If that is so, the Minister has got it wrong: it would be better for advertising at the point of sale to be positive and distribution at nominal amounts to be negative.

I am afraid that I am cynical about this, but the Minister is a lady with great persuasive powers, and she may be able to convince me that my cynicism is misplaced. I am grateful that four out of seven procedures are affirmative, but why are the other three negative?

Yvette Cooper: The clause sets out the regulation-making powers and the ways in which they will be treated under the Bill when enacted.

I should say straight away that we intend, as soon as possible, to introduce regulations on brand sharing, the sponsorship timetable and point-of-sale advertising. My right hon. Friend the Secretary of State said on Second Reading that we intended to introduce regulations on the sponsorship timetable during the passage of the Bill, and we hope to introduce the regulations on point-of-sale advertising and brand sharing as closely in line with that as possible.

We do not intend to regulate on new technology, display, nominal distributions or specialist tobacconists. Those powers are to be held in anticipation of loopholes. It is better not to legislate on those matters if we can avoid it, so we shall not introduce regulations at this stage.

Mr. Ian Bruce: The hon. Lady has identified the regulations that she does not intend to introduce. Will she have discussions with the appropriate bodies about voluntary agreements on how they will operate, as that would make the introduction of regulations unnecessary?

Yvette Cooper: We shall happily hold discussions with any of the companies involved about how they might operate in order to prevent any need for future regulations on those matters.However, I add a note of caution about the past success of voluntary arrangements. We put the powers in the Bill so that we would not have to rely on voluntary agreements to regulate potential abuses of the Bill. We need the flexibility to respond if problems arise, but we do not currently intend to use those powers. If we need to introduce regulations, we will consult fully at that time.

Four of the sets of regulations will be subject to the affirmative procedure—those on new technology, brand sharing, display and distributions at nominal cost—because new offences will be created in those four areas. Although the offences are already set out, the introduction of any regulations would take account of the effect felt by people involved in those areas.

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On specialist tobacconists and point-of-sale advertising, regulations will clarify defences rather than setting out new offences and new problems. The sponsorship timetable is simply about setting out a timetable. It is appropriate that the negative procedure is used in those areas because they merely set out detail and clarify matters. We do not intend to use regulatory powers in many of those areas if we can avoid it, but it is appropriate to have flexibility. That is why those areas are covered by regulations rather than in the Bill.

Question put and agreed to.

Clause 17, as amended, ordered to stand part of the Bill.

Clause 19


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

Mrs. Spelman: I listened with great interest to the Minister. I hope that those who are listening to our debate and who will read Hansard carefully will have noted that the two-speed process introduced in the regulations is important. I was particularly interested to hear that the specialist tobacconist powers might be held in reserve, giving specialist tobacconists a chance to work out how they can comply with the Bill without excessively burdensome regulations being placed on them. The distinction discussed in the stand part debate, which if I recall correctly might have been curtailed at the beginning of our proceedings, was helpful.

I draw attention to clause 19, about which I seek clarification. It refers to

    ``publishing by any electronic means, for example by means of the internet''.

The Minister will be aware that I am worried that the approach may, understandably, be more lenient towards the new technology. It is still evolving and blossoming and should not be cut off at an early stage of its development. I remain worried, however, that those who publish printed matter by conventional methods may be discriminated against in comparison with people who publish by electronic means. The clause deals with them together, but in other parts of the Bill they are treated differently.

The Minister's new clause 3 provides for publishers of information by electronic means through their websites legitimately to continue if they carry on their business outside the United Kingdom and customers from the UK access their websites. I am not convinced that, under British law, anything could be done about that problem. None the less, those responsible for publishing printed matter by conventional means will be placed at a comparative disadvantage. Both sorts of publishers compete in an international market. The publishing world operates in a global market, as does the internet business. Both tender for business and present information to those who wish to be informed and advised about our buying decisions and strategies. However, conventional publishers in Britain are alone among publishers in European Union member states in being banned from competing in the international market, while some portion of those publications may be distributed in this country. That situation differs from that of internet service providers, who may carry on their business from outside the United Kingdom but whose customers may access it from here.

I am worried about that discrepancy. The two groups are lumped together in the clause as if they had equal provision, but the Bill makes a distinction and they do not have equal provision. I would welcome hearing from the Minister that, as part of the preparation for drawing up regulations, she will consult print publishers as well as those of electronic means, so that she may better understand the concerns resulting from the different way in which those two types of publishing will be treated.

Mr. Ian Bruce: I want briefly to address some narrow, technical points. It is always the case in this place—because we represent what the Prime Minister called a very conservative body—we assume that because we have always done things in a particular way and used a particular form of words in an Act of Parliament, if it came to a court case and someone claimed that something had been done incorrectly, the courts would assume that any lack of clarity in our legislation could be accepted in the courts. When I complained about the lack of clarity surrounding the question of the appropriate Minister, I was grateful to be told that there was a definition. However, like so many of the definitions in the Bill, it tells one nothing. It states that appropriate Minister means

    ``in relation to England, Wales and Northern Ireland, the Secretary of State''.

There are 20 or 30 Secretaries of State, and in this Bill—[Interruption.] The hon. Member for Rother Valley (Mr. Barron) is describing the Minister to whom I was about to refer in derogatory terms.

Mr. Kevin Barron (Rother Valley): It was you, actually.

Mr. Bruce: I am grateful to the hon. Gentleman.

The Secretary of State is not defined here. It might be the Secretary of State for Health, or even the Prime Minister, who can obviously delegate things. The definition does not tell us to which Secretary of State it refers. On the front of the Bill there is a reference to ``Mr Secretary Milburn'', but nothing else in the Bill shows that it issues from the Department of Health. The Minister may say, rightly, that it is the Government's Bill, but if one wants to define the appropriate Minister, it would be a good idea to say who that Secretary of State is.

The next part of the definition refers to the ``Scottish Ministers''. That means that any Minister of the Scottish Parliament can pick the matter up and is an appropriate person to introduce regulations. For the sake of clarity, the definition should be made clearly in the Bill.

I revert—although not in any detail, as the matter has already been covered—to the fact that ``advertisement'' is not properly defined. The reason for having definitions in a Bill is to deal with something that has not been made clear in an earlier part of the Bill. In this case, clause 19 refers us to clause 1, but there is no better definition in clause 19 than there was in clause 1. Why do we even have the definition in clause 19? It is a tautology. If the definition in clause 1 is clear, there is no requirement for it in clause 19. Presumably, the draftsmen said, ``Minister, we've got to define advertisement'', so they put in the original draft of the clause what they felt an advertisement meant. Then they found themselves getting into a mess, so they simply said:

    ```tobacco advertisement' and `tobacco product' have the meaning given in section 1''.

As clause 1 does not contain a clear meaning of those terms, that is a tautology and shows that the Bill is in a mess.

I am glad that the final part of this discussion includes the difficulties that the Minister will face in relation to electronic publishing. Publishing by electronic means is included in the Bill, but it is strange that, although we refer to internet service providers and web pages, the definition, which includes all kinds of related things, does not include other forms of electronic publishing that look like a web site or an ISP. ISPs have already written to me, and no doubt they will come to speak to the Minister after the Bill has gone through the House. They want ISP to be defined simply as somebody who transmits things and is not a publisher. They want to be excluded from that definition.

Under previous telecommunications Acts, the telephone company that transmitted a dirty phone call or a slander over the telephone was not liable: it was simply a carrier and not responsible for the content. Yet, without a clear definition, people can be caught by the provisions. ISPs have received some comfort from the Minister saying, ``It's not you, if you didn't know anything about it''. However, ISPs and their role are not properly defined in the Bill, and nor is it clear who may be caught as an ISP. In many ways, I am an internet service provider, because I have a web page. If somebody dials into my web page, which is run for me by another company, I can personally be said to be an ISP. The Labour party and the Conservative party are ISPs by some definitions.

Clause 19 contains a set of definitions that are tautologous. The clause does not clarify which Minister is involved, nor does it give us a proper definition of the electronic side that would be helpful to lawyers and courts in future. I hope that the Minister can help the Committee on those issues.

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