Tobacco Advertising and Promotion Bill [Lords]

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Yvette Cooper: The phrase ''carry on business'' was in the Bill that was discussed this time last year and it was passed through the other place. The phrase has been discussed extensively and its meaning—as set out earlier by the hon. Member for Edinburgh, West—seems clear. The ''Official Journal of the European Communities'' of 17 July 2000 explains the meaning of ''place of establishment''. If members of the Committee are interested, I am happy to read the relevant passage. It is referred to as L 178/4 and states:

    ''The place at which a service provider is established should be determined in conformity with the case-law of the Court of Justice according to which the concept of establishment involves the actual pursuit of an economic activity through a fixed establishment for an indefinite period''.

For hon. Gentlemen who are interested in the phrases used in the e-commerce directive, that is where they should look.

The Tobacco Advertising and Promotion Bill contains the phrase ''carry on business'' because that is a clear exposition of the types of businesses that we want to be covered by the tobacco advertising ban. Businesses outside the United Kingdom are excluded from the Bill, and rightly so, because we cannot enforce the law against them. The wording is sensible. As I have said, we shall, in due course, consider the final decisions that are made about the e-commerce directive.

Mr. Ruffley: The Minister's explanation started well, but then trailed away. We wanted a description of ''establishment'' put on the record, so that those who will be responsible for implementing the law will be clearer about ministerial intent. In the light of a series of inadequate responses—and some disdain for important technical questions that require a certain knowledge of law and decent legal advice—I shall have to press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 16.

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Division No. 3]

AYES
Flook, Mr. Adrian Loughton, Tim
Ruffley, Mr. David Wilshire, Mr. David

NOES
Bailey, Mr. Adrian Barrett, John Cooper, Yvette Fitzpatrick, Jim Hall, Mr. Mike Harris, Dr. Evan Hopkins, Mr. Kelvin Khabra, Mr. Piara S.
Mallaber, Judy Moffatt, Laura Murphy, Mr. Jim Robertson, John Taylor, David Turner, Dr. Desmond Ward, Ms Claire Wishart, Pete

Question accordingly negatived.

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

Mr. Wilshire: I want to explore three issues with the Minister, mainly to obtain clarification. They all are serious points. By using the phrase

    ''in the course of business''

in subsections (1) and (2), there is a possibility that the Government are providing a loophole whereby people could say that an advert is not published in the course of business.

It may sound spurious, but I suspect that when the Bill becomes an Act of Parliament, people who feel strongly that their rights have been offended may be prepared—as a matter of principle, and not to make a profit or to help the tobacco industry—to take it upon themselves to say that they do not approve of being told that there cannot be advertisements for something legal. I do not want to rehearse that argument, but that is a well-trodden path. There are people who feel strongly about the issue, and they will not go away—nor, I suspect, will their sense of injustice.

If I understand clause 2 correctly, someone who publishes an advertisement not

    ''in the course of business''

but for some other reason will still be able to do so. I should be grateful if the Minister would clear that matter up, because if I am right, the clause provides a loophole that people can exploit. It is probably not beyond the wit of mankind for someone who publishes an advertisement to claim not to do so—or to actually not do so—in the course of business, or a person could publish an advertisement in such a way that the courts could not prove that it was done in the course of business. As I said on Tuesday, I am not sure why I feel moved on occasion to try to help the Government with the Bill.

The second relevant issue is that subsection (1) says:

    ''published . . . in the United Kingdom''.

However, subsection (2) mentions producing something that is published in the UK. It would be helpful if the Minister would say for the record what definition of the word ''published'' is being used, as there is a range of definitions. I do not want to repeat our debate about natural meanings, but we should be clear what the word means. We will have to return to the issue.

I appreciate the difficulties of jumping from clause to clause, but clause 4(1)(c) refers to in-flight

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magazines. The term

    ''published . . . in the United Kingdom''

then becomes highly relevant. I am flagging-up the general definition of ''published'' so that when we talk about aircraft coming in and out of the country, we can compare that definition with how the word is used.

I promise that I shall go down this route only this once, but the definition of ''published'' could apply to advertisements in the in-flight magazine of a British airline flying out of the country and not to those of a foreign airline coming in. That is a serious issue to be discussed later and that is why I would like to get the definition of ''publication'' into the record.

Mr. Hopkins: I am always suspicious when hon. Members start to debate the meaning of words and phrases. Not only are there obvious, standard dictionary definitions, but there are also meanings in legislation. Terms such as ''published'' have been used in innumerable Acts. There are accepted understandings and definitions of what such words mean. Surely it is a waste of time to debate continually the meaning of words.

Mr. Wilshire: I understand the hon. Gentleman's point. I do, on occasion, provoke interventions of that sort, because people feel a bit sore about being kept in Committee. However, as will become clear when we discuss another clause, there are assorted legal rulings, definitions and intentions behind the word ''published''. I am sure that the hon. Gentleman knows that. I am not being pedantic. I assure the Committee that the clause raises an issue for the aviation industry, and the reason I speak about that is because parts of Heathrow are in my constituency. There are serious financial implications for British business, namely British airlines, in relation to other people, depending on what we mean by publish. It is important, not for a pedantic reason, but for the sake of the record, to make clear now what this Bill means in general terms by the word ''published'', because clause 4 raises issues about exceptions to that.

Tim Loughton: In response to the answer that my hon. Friend is giving to the hon. Member for Luton, North (Mr. Hopkins), we have already had an example this morning of where publication in such a context can be taken to mean two quite different things. That was over the EU directive on internet service providers and what constitutes publication or a publisher, as opposed to a conduit. There are already very different definitions there. It is absolutely essential, as my hon. Friend is trying to make clear, that, for the benefit of the whole Committee, we define at this stage exactly what is meant by publishing. That can be interpreted very differently, in different contexts relevant to the Bill.

10.15 am

Mr. Wilshire: I am grateful to my hon. Friend. I hope that the Minister can clear up this serious issue—I shall wait for her reply.

Another concern is raised by the phrase

    ''published, in the United Kingdom'',

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also in subsection (1). What does the hon. Lady mean by that? I am not just raising pedantic points. That follows from the same concern that I have expressed, which we shall debate again when we discuss in-flight magazines. The phrase ''in the United Kingdom'' is not as straightforward as it sounds. Does an airline coming in briefly and then going out again constitute publishing in the United Kingdom, or just appearing here and going away? Does bringing something in and taking it out involve it being published here?

Much more to the point, can the Minister say whether she means to include British airspace in the United Kingdom? Under some legislation, offences that take place in British airspace are held to be taking place in the United Kingdom—they do not necessarily have to be on the ground. If publishing ''in the United Kingdom'' means flying over the UK in British airspace but not landing here, I hope that the hon. Member for Luton, North and others can see the difficulties that we will have under clause 4. If we can clear up what the Minister means by ''in the United Kingdom'' at this point, it would be helpful.

Tim Loughton: Sea space is also a consideration. My hon. Friend's argument is relevant to duty free and, for example, the sale of goods on cross-channel ferries. Strictly speaking, those never touch land but are in British territorial waters.

Mr. Wilshire: Exactly so. My hon. Friend makes one of the points that I was going to make, so I shall not repeat it. The same arguments need to be explored for coach operators that come in from the continent, or for our coach operators that go out, pick up literature not published in the UK, and bring it back. Again, what do we mean by ''published'' and ''in the United Kingdom''?

Clause 2(4), which begins:

    ''It is not an offence under subsection (1) for a person'',

raises several questions for which I should be grateful for an explanation. In a previous debate, I was told that clause 2 sets out the offences and that the defences are further on in the Bill. However, clause 2(4) contains an exception to an offence. It has been argued that it is normal to say that here is the offence and that, if we turn the pages, we will see the defences. That is not the case in clause 2(4). Why is that so? Why do we have drafting that sometimes says one thing and sometimes another? That rather plays into my argument that everything should be in the same clause, so that someone reading what the offence is also knows what the defences and the exceptions are, all in one go.

I will be grateful if the Minister will tell us why that provision is necessary. I think that it says that if somebody does not carry on business here and is doing something for somebody abroad, then that is not an offence. It seems that someone who is outside British jurisdiction and who is not a British subject is being legislated for, even though we have no control over such a person. Why do we need to exclude such people in a British Act of Parliament when we cannot include

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them in the first place? I suspect that I will get an answer to that question.

There is another possible loophole. I shall give an example. I could live here but carry on my business abroad. Everything relating to the business would be over there—the printing and publishing companies and the tobacco business—but I might happen to live here. I would be made an exception of because I could do everything—devising, designing and sorting out the IT-side of advertisements—and would have the defence in law that the business was carried on elsewhere. We will create two sorts of graphic designer: those who commit an offence if they do something for a British company and those who do not if they carry on business abroad, even if it is for themselves. That does not seem to be sensible legislation.

I hope that the Minister can say that I have misunderstood, but if I have not, I shall worry about that second loophole. I hope that my arguments are valid and that she has an answer. I shall listen with care and I may come back if I am not satisfied.

 
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