Tobacco Advertising and Promotion Bill [Lords]

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Mr. Ruffley: I am carefully following the Minister's comments. She referred to a European Court of Justice ruling. Will she flesh out her remarks, because she was

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talking about the Swedish case, but the judgment relates to the European Court of Justice?

Yvette Cooper: Two judgments have been made; the first was made by the European Court of Justice, and the second was made by the Swedish courts. The European Court of Justice referred the matter back to the Swedish courts. In effect, the European Court of Justice said that although a law on alcohol advertising, and restricting that to trade journals, was an obstacle to trade between member states, it could be justified on public health grounds, provided that it was proportionate to the objective to be achieved, and it asked the Swedish courts to determine whether it was proportionate.

I do not believe that discussions about the proportionality of banning or restricting alcohol advertising have any bearing on the proportionality of banning cigarette and tobacco advertising, because of the massive health impact of smoking. We have looked at all the proportionality issues, and the impact of tobacco on public health has led us to decide to go ahead with the Bill.

Mr. Kelvin Hopkins (Luton, North): I wish to reinforce the Minister's point about the difference between alcohol and tobacco. I chair the all-party group on alcohol misuse, and I hope that Committee members will not pursue an argument that seeks to compare alcohol and tobacco. Smoking is always dangerous and addictive, but the great majority of people who consume alcohol do so in reasonable quantities; it does not damage their health, and it is addictive to only a minority of them.

Yvette Cooper: I agree with those points. Alcohol and tobacco create different public health issues, and that is why it is right that we go ahead with this ban and reject the amendments.

Mr. Ruffley: I do not want to upset the hon. Member for Luton, North (Mr. Hopkins) by unnecessarily pursuing the Gourmet case, as I have a lot of sympathy intellectually with what he said in his intervention and with what the Minister says. Intuitively, there must be a qualitative difference between the adverse public health impact of alcohol and that of tobacco. I shall not quibble and argue that point, but I should like to expose the legal advice that Her Majesty's Government have received on the matter. If the Committee and Ministers are not clear about exactly where they stand legally, the Bill might be defective and subject to legal challenge. I shall not argue about whether alcohol is more damaging and injurious to public health than tobacco. I need not judge the merits of that argument. I am merely testing the legal watertight quality of the drafting in light of the Gourmet case, transcripts of which were made available in English only last week. We are dealing with legal information and rulings that post-date the publication of the Bill. [Interruption.]

The Chairman: Order. There is too much discussion in the Committee.

Mr. Ruffley: Thank you, Mr. Pike.

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These are not idle speculations, and they are not meant to be destructive legal speculations. I want to ensure tható

John Robertson: I wonder whether the hon. Gentleman, with his obvious great knowledge, could tell me whether anyone has ever died of passive drinking.

Mr. Ruffley: The hon. Gentleman has not listened to a word that I have said, being too busy chuntering away at the back. I went out of my way to concede the point that the hon. Member for Luton, North and the Minister made about the different potentially adverse impacts of alcohol as against tobacco to public health.

With the greatest respect to the hon. Gentleman, I am not trying to argue that point one way or the other. Labour Members may be right. I am trying to expose a slightly different argument. He is perfectly entitled to criticise, but my point is intended to be helpful and to prevent our agreeing to defective legislation or drafting that has not been tested in the fullest sense against current legal opinion. My information and advice may be incorrect, but I am advised that Her Majesty's Government may not have got it right, and I want to expose those arguments so that we do not go down a blind alley.

The Minister said that she believes that the Gourmet case does not pose any problems to Her Majesty's Government in proceeding with the Bill as drafted. However, it might be helpful briefly to remind ourselves of the Gourmet case, the gist of which was that the Swedish district court was unsure whether national rules that imposed an absolute prohibition on certain specialist advertising, to which the debate has adverted, might be regarded as having an effect equivalent to a quantitative restriction within the meaning of article 30 of the relevant treaty, and whether Swedish law was lawful in prohibiting specialist advertising, in relation to alcohol, rather than tobacco. The argument is analogous and has found favour with some legal commentators, who believe that the case may pose a problem for the Bill as drafted.

The district court in Sweden stayed proceedings under Swedish law and referred the questions to the European Court of Justice, which found that, on the restriction of trade and the freedom to provide services, the EC treaty did not preclude a prohibition as specified in Swedish law unless it was apparent that, in the circumstances of law and fact that characterise the situation in the member state involved, the protection of public health against the harmful effects of alcohol can be ensured by measures that would have less effect on intra-Community trade.

On obstacles to intra-Community trade and the freedom to provide services, the key question was the proportionality test. Were the obstacles to such trade proportional when set against the underlying purpose of protecting public health? In other words, the intention of protecting public health was set against the injurious effects of alcohol in the Swedish case. In my view that is on all fours analogous to the

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prohibition proffered by this Bill to stop the harmful effect of tobacco on public health.

The European Court found that the ban was too extensive and not proportional as defined by European Community law. As a consequence, the advertising ban in question could not be applied. Legal advice received by the Opposition argues that the ruling has great and wide importance to the Bill and I am advised that that was recognised when the Advocate General gave his preliminary opinion, which was endorsed by the European Court.

The ruling has been a great consolation to the Swedish drinks industry, which sees itself as vulnerable to the type of ban that the Government propose for the tobacco industry in the United Kingdom. The Swedes think that the prohibition that they have been fighting with the specialist drinks industry is of exactly the same type faced by the tobacco industry in the UK if the Bill is not amended.

There is no European directive in force on tobacco advertising. Without one, the Bill sits in much the same legal framework as the Swedish alcohol case referred to the European Court of Justice. We must make it clear to the Minister that the drafting could cause legal problems in relation to proportionality. The Bill could be open to serious challenge. I do not believe that any hon. Member needs to be reminded about the critical importance of proportionality, because it also relates to the European convention on human rights. That is a separate issue, and we do not have time to go down that legal vista.

From the legal advice received by Opposition colleagues, it appears that the Minister owes us an explanation as to precisely what detailed advice legal advisers to the Department of Health have given Ministers in relation to the Gourmet case. Can she give further assurance beyond her general belief that there is not a problem? Although I accept in good faith that there is no problem in her mind, is there a problem in the mind of any legal adviser, or is this a bogus set of concerns and legal commentators and advisers in the City have got it wrong? If that is the case, I should be most grateful for the Minister's reassurance.

4.45 pm

Yvette Cooper: The crux of the hon. Gentleman's argument seems to turn on proportionality. There are 120,000 deaths from smoking each year. Estimates suggest that a ban on tobacco advertising, promotion and sponsorship would reduce consumption by 2.5 per cent. and, in the long term, save up to 3,000 lives per year.

That is a pretty clear-cut public health case in favour of a comprehensive ban.

Mr. Ruffley: I am grateful to the Minister, but I shall not argue the merits of what she said. I am sure that she is not being deliberately obtuse, and I have great respect for her intellectual powers. However, she answered a question that I did not ask. I am not arguing about whether tobacco is a greater killer than alcohol. My question is more process driven, but it is nonetheless important.

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What legal advice has the Minister received from her Department, or from outside it, to suggest that there is no possibility of a challenge on proportionality grounds? Can a legal argument be advanced to support the Government's policy on what proportionality might be? The Minister must have received legal advice on that. The Minister has given the Committee her view, which may be admirable, but the question is legal rather than about policy.

Yvette Cooper: I understand that the hon. Gentleman is a lawyer and, as such, he will be able to suggest all kinds of legal arguments. However, the issue is about proportionality. The number of deaths that occur each year due to smoking and the number of deaths that could be prevented by a ban on tobacco advertising cut to the heart of the question of proportionality. The numbers give clear evidence of the importance of a comprehensive ban on tobacco advertising that would be wholly consistent with European law.

 
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