Tobacco Advertising and Promotion Bill [Lords]

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Mr. Wilshire: That will not do. Clause 7 gives the most sweeping powers possible to a Secretary of State who, by order, may do just as he pleases, without any reference back to Parliament for primary legislation. On that point alone, the clause should not be in the Bill. As a matter of principle, it is wrong to hand out totally arbitrary powers to someone who can then behave like a dictator. Past practice has been that, if circumstances change and one wants to approach a problem in a different way, one returns to Parliament for parliamentary approval by way of legislation. That is what parliamentary democracy is all about.

The Bill is not a special case and the argument about technology moving fast does not apply. Technology affects everything, not only the tobacco advertising industry. If the Government are allowed to get away with using that argument in this Bill, a principle will be established. They will be able to say, ''Every time we have an Act of Parliament, we will take powers to change it whenever the fancy takes us''. I do not wish to live in that sort of parliamentary democracy.

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The Government must face up to a serious, fundamental point. If they are prepared to ride roughshod over parliamentary democracy, the world should be aware of what they are doing—it should be exposed. As a matter of principle, clause 7 is very objectionable indeed.

To pursue the line of thought taken by my hon. Friend the Member for Basingstoke, even if the Government are determined to act like dictators and stamp their jackboots all over Parliament, they should be consistent.

David Taylor (North-West Leicestershire): Does the hon. Gentleman want any more cliches?

Mr. Wilshire: I will work on more cliches, if the hon. Gentleman would like me to do so. I will happily give way to him so that he can suggest some to me, as I am always eager to learn. However, it appears that he cannot suggest any more.

The Chairman: Order. I frown on sedentary interventions, as they interrupt the flow of debate.

Mr. Wilshire: Thank you, Mr. Winterton. I was just hoping that I might learn something.

If the Government go down this route, they must get things right. It has been pronounced that this clause deals with the internet in a ground-breaking way. However, it has nothing directly to do with the internet. It is content to deal with ''electronic means'' and, as my hon. Friend the Member for Basingstoke demonstrated, that goes far wider than just the use of the internet. Therefore, the Bill cannot even get things right when it wants to take dictatorial powers.

The Minister said that technology moves fast, but we are not talking about technology and this is where the next confusion arises. We are talking about electronic technology and, therefore, to assert that this is all about technology moving fast, is to admit that the wording of clause 7 is wrong. If the clause was about technology moving fast it would refer to changes in technology, but it specifically refers to ''electronic means.''

Reference has been made to what the noble Lord Filkin had to say about this matter in another place, but something interesting that he said was not quoted. Lord Lucas asked whether it was possible for there to be some means of transmitting this sort of information—these sorts of adverts—that does not have an electronic component. This was Lord Filkin's response:

    ''The clause is specific on 'electronic', but even if he is right, as regards 'optical and other means', it is unlikely that there is not some electronic part of such a process that makes it relevant.''—[Official Report, House of Lords, 18 January 2002; Vol. 631, c. 1250-51.]

In an attempt to justify sloppy draftsmanship, Lord Filkin has offered an insight into the future, by saying that it is impossible that there will be any technology that does not involve some sort of electronic means. I imagine that history is littered with idiots who have made statements about what the future will never hold, only to discover that it held exactly that.

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I want the Minister to revisit the suggestion that the justification for this clause is that technology moves fast. Is she trying to tell the Committee that she is certain that no technology that will ever be thought up, and might be used for transmitting tobacco adverts, will be free from electronic involvement? If she is saying that, she is a miracle worker of the sort that I would be proud to be.

I was concerned about something else that the Minister said. On the request for my party to detail all its arguments together, apart from saying that the Government must not control the way in which the Opposition runs its debates, one reason why we cannot always do so is because she keeps dropping into the debate comments that have not been anticipated, which require some sort of observation and challenge from my hon. Friends and I.

12.15 pm

For example, in response to a remark by my hon. Friend the Member for Basingstoke, the Minister said that these powers were intended to cover the defences that are possible and that this clause could enable changes to be made with regard to the burden of proof. I am many things—some of them good, some of them bad—and I often find that I have to admit to being naive. I am an honourable sort of person who likes to think well of others and it had never crossed my mind that a Minister of the Crown would be prepared to contemplate using the order procedure, with a Henry VIII approach, to say, ''We will just do it that way.''

When dealing with the burden of proof, the rule of law is the citizen's fundamental safeguard against the state imposing its will. The Minister's comments on the clause show that it will undermine the rule of law and I hope that she is ashamed of herself. It cannot be right for us to agree that a Secretary of State may revisit how people may defend themselves in the criminal courts and what the burden of proof will be. Given earlier assurances about such matters and the traditional parliamentary procedure of primary legislation, which is a principle of the way in which this country runs itself, it cannot be right that we should proceed in that way.

The Minister said that the clause was designed to cover unanticipated loopholes. The Government may find that they need to cover several loopholes, but they are not unanticipated because we pointed them out. We spent a lot of time explaining potential loopholes in the previous three sittings. We were pooh-poohed and told that they were not loopholes. We are now told that the clause guards against unanticipated loopholes. However, the Minister could have dealt with most of them after they were pointed out, thereby making the clause unnecessary.

Even if there are loopholes about which we have not thought and that the tobacco industry, which the hon. Member for Luton, North thinks is ingenious, could come up with, why do we need a Henry VIII clause to deal with them? Under our parliamentary procedures, it is normal to have a Finance Bill every year. We have never said, ''Ah, there are tax loopholes. We'll just let some Chancellor of the Exchequer change the tax system at his own whim.'' If there is an honourable

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tradition of examining annually our taxation legislation, what is wrong with using primary legislation to close loopholes that the Government were too incompetent to identify? Are the Government admitting that because they have been so sloppy and carefree and they know that so many loopholes have not been identified, they would have to legislate all the time? Is the reason for the Minister's justification that she knows that the Bill is shot through with flaws and the courts will overturn this and that? Is she so confident that the Bill will be a mess that she wants to make provision to hide her future embarrassment by making orders that she hopes nobody will notice? That cannot be right.

The clause strikes at the heart of parliamentary democracy and, by the Minister's admission, the rule of law. It shows up the Government's sloppy draftsmanship. Will the Minister reassure us that the clause is necessary—she has not yet done so?

The clause mentions ''electronic means''. Does the Minister think that an order could remove the word ''electronic'' so that the clause could cover any means? We are discussing electronic means—indeed, we started off by thinking that we were discussing the internet. However, the word ''electronic'' could be removed in the future. I would be grateful if the Minister would deny, at least, that that might happen.

Yvette Cooper: We are going round in circles. If Opposition Members do not like the clause, they may vote against it.

The clause relates to

    ''developments in technology relating to publishing or distributing by electronic means.''

I am interested by the suggestion that we should widen the scope of the clause to cover all developments in technology. We decided not to do that but to focus on developments in technology that relate to publishing or distributing by electronic means. That is right because it is the area in which progress is occurring most rapidly. If Opposition Members wish to table an amendment to widen the scope of the clause, clearly, there are many ways in which that could be done.

I did not mention the burden of proof—the hon. Member for Spelthorne was talking nonsense. We have much business to get through.

Mr. Hunter: I initiated debate on the clause and I do not believe that anyone who was objectively following our proceedings could fail to be profoundly concerned by both its contents and the Minister's attempt to justify the clause. Alarmingly, it gives the Secretary of State sweeping powers that, as my hon. Friend the Member for Spelthorne says, go to the heart of parliamentary democracy and the rule of law. We find it offensive and want to vote against it.

Mr. Wilshire: I am sorry that the Minister does not like hearing the truth. That is unfortunate. I was not suggesting that we wanted to widen the provision. I was trying to give her an opportunity to say that she did not want to do so. If we have made any progress this morning, it is in that direction. She has now put on

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record that the clause cannot be used—I assume that that is what she means, rather than that she does not intend to use it—to leave out ''electronic'' and put in ''any''. I suggest not that the clause should say that but that it should not be included. To suggest that I am trying to widen a provision to which I am fundamentally opposed is nonsense. However, at least we have made some progress on that.

The Minister says that she never mentioned the burden of proof. However, with the greatest respect, the clause enables alteration of the Bill's content following changes in technology in respect of electronic means of distribution, and she admits that it covers the parts of the Bill that refer to defences. Indeed, as we debated earlier, the part of the Bill that relates to defence specifies burden of proof issues.

As the Minister says, the clause relates to an ability to change defences in the Bill. Surely it follows, as day follows night, that we can change what the Bill says about a defence, which is that a burden of proof requirement applies. On her own admission, she might not have used the words that the clause does not state that it is possible to change the burden of proof, but it does not need to. It need state only that it is possible to change the provisions that relate to how to conduct a defence to move on to a reference to burden of proof.

That is one reason why I was so concerned earlier that the burden of proof should be included at all. If the Bill contained no reference to burden of proof, the established principle in British justice that a person is innocent until otherwise proven could not be touched, as the Bill would contain nothing to alter it. It would rely on custom, practice, common law and the courts, rather than the diktats of a Secretary of State who can decide at some stage that the burden of proof is not securing enough convictions, because for some reason he wants to be macho and find innocent people guilty of a crime to show how effective he is being and does not have the courage to ban tobacco smoking, for all sorts of obvious reasons. That is why the Minister needs to be much more careful about what she says. She must not try to deny that the clause affects the burden of proof merely because she did not use the magic words ''burden of proof''.

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