Tobacco Advertising and Promotion Bill [Lords]

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The Chairman: Order. Even on an amendment such as this, the Chair has the discretion to allow a relatively wide-ranging debate. However, if that happens, there will be no stand part debate.

Mr. Wilshire: I have no wish for a clause stand part debate, Mr. Winterton. I would rather stick to the issue that we are raising. If the Government are determined to approach the matter in this way, a period of four years would take us beyond the next general election, when we shall have got rid of this shower and will have a sensible Government in place, and will have no temptation to use the proposed powers.

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Nevertheless, unless there is a period during which these draconian and dictatorial powers can be used, we might as well not consider the Bill, because whatever we put in it, everything can be changed the day after it comes into effect. What is the point of the Government putting on record safeguards, good intentions and reassurances when we are being asked subsequently to consider that the following day it can all change, because, or so is the excuse, of changes in technology? Such changes do not even have to be changes of which the Minister was unaware at the time. On the narrow point, if the clause stands, a proviso or safeguard should be provided, and I would support the amendment tabled by my hon. Friend the Member for East Worthing and Shoreham.

Yvette Cooper: This is an aspect of regulation that we have no current intention of using to the extent that we have no insight of developments in technology that would make such regulations necessary. However, it is right to retain the powers in case a new development in technology makes them appropriate, either because it creates a loophole that allows greater tobacco advertising, or because a new defence should be introduced for people who might not be covered by the Bill but might fairly be caught or who should not be penalised by the Bill and otherwise might be.

Given the pace of technology, it is right to have the clause. I have no insights into what might take place before or after 1 January 2007. The Bill has been designed to effect a comprehensive ban and to take on board as much as possible in anticipating future developments in technology, but that is not easy. Who would have thought just a few years ago that people would be sending one another text messages all the time and that advertising could take place through text messages to mobile phones? Many developments in technology are not anticipated five, four or even three years beforehand. It is therefore right to have such flexibility and to include the clause. We cannot anticipate how it might be used or whether there might be any need to use it, but it is important to retain the powers.

Tim Loughton: The Minister's response that the clause is an in-case provision that there are no plans to use is never a good enough defence, because it gives the Secretary of State far too many powers by regulation that go well beyond the matter under discussion. The reason that we alighted on 1 January 2007 is probably as arbitrary as the reason that the Government alighted on the figure of 50 per cent. of sales in the previous clause. However, it is a good starting point, and the Government have not justified why there should be no four-year bedding-in period. So many other clauses give power by regulation to clamp down on various things in the event of further developments that to include an overriding Henry VIII clause here, too, is wholly arbitrary. I will not labour the point, because it was an introductory foot-in-the-door

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amendment and I prefer to have a fuller discussion on the stand part debate. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

12 noon

Mr. Hunter: We are seriously worried about the purpose, effect and underlying principle of clause 7. We want to challenge the provision during our short debate and there are two or three points that I want to put to the Minister.

The first can be dealt with in a few seconds and is not our major concern. As the Minister will recall, when the Bill was debated in the previous Parliament, the Government said that it was ground breaking because it made specific provision to tackle internet advertising. We do not quarrel with that principle because, clearly, a ban on tobacco advertising must cater for internet tobacco advertising. It is right that the Bill should cover electronic publishing and distribution, as does the draft European directive that is being considered by the Council and the European Parliament.

Our point is that it is also important that the Bill is couched in terms that are fully consistent with the e-commerce directive 2000/31/EC and with the way that the directive will be transposed by regulation in United Kingdom law. We seek from the Minister an assurance or confirmation that the Department of Trade and Industry is satisfied that the terms of the Bill are fully consistent with the e-commerce directive.

The second point is more substantive. Under clauses 2, 3, 4 and 5 there are provisions—either specifically or generally—on the publication, distribution and transmission of tobacco advertisements by electronic means. The Bill mentions the internet, but only by way of an example in clause 21. As that clause makes clear, the Bill applies not only to the internet, but to any or all electronic means of publishing and distributing.

That is why we find clause 7 so puzzling. When considered carefully, it becomes evident that the clause is largely redundant, because its provisions are covered elsewhere in the Bill. As my hon. Friend the Member for East Worthing and Shoreham mentioned, it enables the Secretary of State by order to amend any provision of the Bill that he considers appropriate as a result of any developments in technology relating to publishing and distributing via electronic means.

As I pointed out, the clause is effectively made redundant by the existence of clause 21, which decrees

    ''references to publishing include any means of publishing (and include, in particular, publishing by any electronic means''.

That covers the ground that clause 7 covers. Other aspects of internet advertising are also covered. The references that I am about to make apply not only to the internet, but to any form of electronic communication. Clause 2(3) deals with distributing, which

    ''includes transmitting . . . in electronic form''.

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Clauses 2(4) and 4(3) mention websites. Clause 4(1)(c) mentions the

    ''internet version of . . . a publication''

whose principal market is not the United Kingdom. The explanatory notes mention that clause 3

    ''applies where publication is by electronic means.''

All the provisions in clause 7 are to be found elsewhere in the Bill, so the clause is clearly not essential. That begs the question: why have the Government included the clause in the Bill? The explanation, given by Lord Filkin in the House of Lords, is that

    ''the pace of technological change makes it very difficult to predict what new means of publishing or distributing may emerge . . . I believe it is clear that technology is moving so fast that it is almost certain that new things will occur in the future that we cannot foresee now. Thus, if we did not have such a clause, the Act would rapidly become obsolete.''—[Official Report, House of Lords, 18 January 2002; Vol. 630, c. 1250.]

That answer, reflected in the Minister's words earlier, simply does not convince. How can the Bill become obsolete when it already bans the use of any electronic means? There can be no electronic means, either now or as a result of technological developments in the future, that will not be covered by the Bill. The Government admitted that in so many words in the other place, as is shown in columns 1250 and 1251 of the House of Lords Hansard of 18 January, volume 630. Yet the Government persist in using the line that we have just heard the Minister deploy. The Bill already prohibits tobacco advertisements that are published or distributed by any electronic means. Even if there were new developments, the prohibitions in the Bill would embrace them and clause 7 would still be redundant.

The clause enables the Secretary of State to

    ''amend any provision of this Act''

should there be such technological developments. If all those electronic means are covered by the advertising ban, what conditions might the Secretary of State wish to amend? We look to the Minister for guidance. I hope that she will make it clear that she does not think that the Secretary of State will wish to change the provisions on defences and burden of proof in clause 17, the enforcement provisions in clause 13, the powers of entry and seizure in clause 14, or the penalties in clause 16.

The Bill creates serious criminal offences. Surely it is not appropriate to give the Secretary of State the power to change offences, defences, enforcement powers or penalties by order. Opposition Members feel strongly that, even though affirmative procedure applies, the clause goes far too far in giving power to the Secretary of State, as does clause 19. I ask the Minister to deal with that matter and to explain why the clause is needed. In what circumstances does the Minister envisage a Secretary of State using the additional powers?

Yvette Cooper: The clause recognises that technology moves fast. We already know that we are dealing not with billboards, but with the internet, e-mail, faxes and text messages. Who knows what may

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happen in the future? We are concerned that loopholes may arise from the development of new technology. Although I cannot imagine what would not be covered, we cannot predict what developments may take place.

We may also need to introduce new defences. It is worth considering the development of the Bill. Clause 5 (5)(b) includes a defence for those engaged in electronic transmission. It states

    ''it was not reasonably practicable for him to prevent its further distribution''.

That defence is in place because of the particular circumstances and concerns of those involved in electronic transmission. Five years ago, the defence may not have been in the Bill. Technology has moved on quickly and, because we recognise the particular circumstances, the defence is included in the Bill.

It is conceivable that new technology may bring a new player who needs a special defence into the scope of the Bill. I cannot tell the hon. Member for Basingstoke that the clause will not be used to cover defences, because it may need to. I cannot foresee any further developments, loopholes or essential defences that may be needed, but it is right to allow for the possibility of the development of technology. The clause states:

    ''in consequence of any developments in technology''.

Entirely unanticipated loopholes may emerge and unanticipated defences may be needed.

The House of Lords Select Committee on Delegated Powers and Deregulation considered the clause in detail. It stated:

    ''The Committee consider that the limited scope of the power and the provision of affirmative procedure make it acceptable''.

The clause has been scrutinised and will apply only in the case of technology relating to publishing or distribution by electronic means. Given the importance to public health of banning tobacco advertising, it is right that we retain flexibility in the Act.

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