Tobacco Advertising and Promotion Bill [Lords]

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Mr. Ruffley: I do not wish to delay the Committee unnecessarily. The Minister could well be right—I shall not argue the merits of her clearly expressed view. Have the lawyers in her Department said, ''Yes, it is very unlikely that there would be any successful challenge on proportionality''? I would not like to be a Minister going forward with the Bill unless I had received legal advice saying, ''Yes, Minister, your view is right and it is clear that tobacco poses a serious threat to public health. It poses a greater threat than alcohol and the Swedish case is completely irrelevant. There is no possibility of a challenge on proportionality appending the legislation.'' I want to hear only simple clarification that the Minister's legal advisers support the view that she clearly articulated.

Yvette Cooper: I do not underestimate the tobacco industry's capacity to come up with all kinds of challenges to the Bill on any possible grounds. The Committee's purpose is not to speculate on such challenges or the angles from which the industry might approach a challenge. All our legal advice shows that the Bill is drafted in the strongest possible terms to avoid legal challenges and incompatibility with European or domestic law, to ensure that it can be implemented to prevent tobacco advertising, which we want to get rid of in the interest of public health.

Mr. Ruffley: I do not wish to try the Committee's patience, but we are getting there, as it were. It would be helpful for the Committee to reflect that the tobacco industry may well make a legal challenge. I do not wish to speculate on that although I have no doubt that all sorts of challenges are possible. My question is very specific, and I hope that the Minister will set my mind at rest. Have legal advisors at the Department, or in some other part of Whitehall, advised her on the Gourmet case, and have they said that they do not anticipate any challenges that are made on proportionality grounds by bodies or companies being successful? Were they comfortable giving her that assurance before she went forward with the legislation? Such advice is regularly given to Ministers. I should just like to know whether she has been given any. If she can answer that question, I need not detain the Committee further.

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Yvette Cooper: We are going round in circles. My view, and that of many in the Department of Health, is that the tobacco industry may well challenge many aspects of the Bill, because that is what it has done repeatedly in the European courts every time that Europe has attempted to ban tobacco advertising. I do not think that there is any prospect of it stopping now. I am sure that if the hon. Gentleman were advising the industry, he would come up with more ways in which it could challenge the Bill.

Mr. Ruffley rose—

The Chairman: Order. Under the Standing Orders, I have allowed the hon. Gentleman to raise the point several times and it is getting repetitive. We must move on.

Mr. Ruffley: I was not going to intervene on the same point.

The Chairman: If it is another point—

Mr. Ruffley: It is another point.

Mr. Hunter: Will my hon. Friend give way?

The Chairman: Order. The hon. Member for Bury St. Edmunds is intervening on the Minister.

Mr. Ruffley: My point is not on the same subject. I accept your strictures, Mr. Pike. May I say gently to the Minister, gracious as she normally is, that she would not want to imply that I am acting for a tobacco manufacturer or anyone related to the proceedings? I have never so acted and never would, and am sure that she will want to put the record straight, being the wise Minister that she is.

Yvette Cooper: I should hate the hon. Gentleman to draw that impression from my remarks. I pointed out that I was sure that if he as a lawyer, or any other lawyer, were to advise the tobacco industry, he would consider different ways in which to come up with challenges to the Bill. I certainly would expect nothing less from the tobacco industry. However, our legal advice is clear that our Bill is compliant with European law and human rights, is implementable and will ban tobacco advertising across the board.

It is right for us to introduce the Bill; it is a matter for the tobacco industry how it chooses to respond. The advertising ban is supported by a majority not only of Members of Parliament but of the public, as well as the overwhelming voice of the medical profession. Only the tobacco industry and Conservative Members continue to oppose the ban.

Mr. Hunter: Are we to deduce from what the Minister has said—at some length—that she has received no legal advice on the Gourmet case?

Yvette Cooper: Opposition Members are pursuing the matter in immense detail. I have made it clear that we have legal advice not only on the amendments tabled to the Bill, but on its compatibility with European law, whether in light of the Gourmet case or any other. We need to ensure that the Bill will be compatible with the e-commerce directive, too. The issues that have been raised about the Swedish case are on proportionality. It is clear that there is a strong case on public health grounds to introduce the ban, given that it could save 3,000 lives.

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Tim Loughton rose—

The Chairman: Order. I rarely have to apply the Standing Order on repetition, but I am sure that the hon. Members for East Worthing and Shoreham and for Bury St. Edmunds are not happy with the answer that they have been given. I have to be neutral. Both hon. Members are experienced in such matters and know that there are other ways in which to pursue their argument.

Tim Loughton: From memory, having started the debate, I think that I come in now. We have had a full and interesting debate on three legitimate and detailed amendments, but they were not answered by the Minister to our satisfaction. She said that amendment No. 11 would create big loopholes. That is not the case. I shall return to the matter on Report, by which time the implications of the Swedish case will be known. The hon. Lady brushed it off too freely. Will she make available to members of the Committee the legal advice that she has received on the compatibility of the Bill with the directives and the European convention on human rights, particularly in light of the Gourmet case?

The hon. Lady's last answer was a masterpiece in circumventing the specific question of my hon. Friend the Member for Bury St. Edmunds when he asked whether she had received specific advice on that case. She declined to say whether she had, but talked about the generality of the other advice she had received. For the benefit of the Committee and others who have an interest in such matters, will she publish that advice? We must make sure that, if enacted, the Bill is watertight in terms of its application in the United Kingdom and in the wider world. We must know whether it would fall foul of any European Union rulings. I do not see any reason why she should not publish such information, because it would back up her case.

The Minister's response to amendment No. 12 was slightly disingenuous. We all know that it is difficult to operate a mailing list if people must actively opt into it regularly. Again, the word ''bombarding'' came to the fore. We do not want to deluge people with lots of advertising literature, but some refinements could be made to Bill, whereby people would have to renew their name on a mailing list of specialist suppliers on, say, a five-year basis. They can have an opt-out clause when they no longer wish to receive mailings, because they had found a better supplier or, even better, because they had successfully given up smoking. Various amendments to the Bill could achieve that effect.

The hon. Lady knows that, in its present form, the Bill would kill the mail order business, even though it takes place legitimately between specialist suppliers and fully informed consumers who have full knowledge of the implications of their actions. Amendment No. 14, on behalf of many specialist suppliers, is the most legitimate of all the amendments. It involves only cigars and pipe tobacco, a small number of specialist suppliers and consumers.

We have spoken a lot about proportionality and the effects of alcohol. We will have a better debate on that

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when the Government publish their alcohol strategy, for which we have been waiting for five years. We always know the weakness of the Minister's case when she returns either to the word ''bombarding'' or to the great mantra of the 120,000 people who die from smoking each year, a figure that we need to reduce.

The completely arbitrary estimate that a 2.5 per cent. reduction in the number of smokers will be achieved through the ban on tobacco advertising is based on no scientific evidence. It is purely the median point of an estimate of between 0 per cent. and 5 per cent., which reports have suggested is the fall in consumption that might be brought about. The figure of 2.5 per cent. has been plucked from the air.

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As I said at the beginning and on Second Reading, if the Government could prove that that would be the result, we would have rather more sympathy with the intention behind the Bill. However, they cannot, and the Minister is rather disingenuous to keep falling back on that mantra, as though every time she mentions the 2.5 per cent. improvement or the 3,000 lives that could be saved, it became 6,000 or 9,000. It does not. She must admit that it is not based on scientific evidence and is purely a slightly arbitrary opinion. That is why we are analysing and scrutinising the Bill in such detail.

Mr. Hopkins: I find it extraordinary that the hon. Gentleman suggests that banning advertising would have no impact. If advertising has no impact, why do tobacco companies go to such great lengths throughout the world to spend billions to ensure the popularity of cigarette smoking among as many people as possible?

 
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Prepared 9 May 2002