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Standing Committee A
Tuesday 14 May 2002
[Mr. David Amess in the Chair]
Amendment proposed [this day]: No. 38, in page 4, line 18, leave out 'may' and insert 'must'.—[Tim Loughton.]
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are taking amendment No. 27, in page 4, line 20, leave out subsection (4).
Tim Loughton (East Worthing and Shoreham): Thank you, Mr. Amess, and welcome back to the ultimate sitting of this Committee. It will be an emotional time for us all, and we will be sorry when the guillotine falls at 7 o'clock.
I was responding to the Minister's not entirely adequate response to the amendment. When Mr. Winterton rose, I was in the middle of reiterating the load of complete nonsense that came from the hon. Member for North-West Leicestershire (David Taylor), who contradicted himself when drawing an analogy between jackboots and our contention that we need to tie down as much of the contents of the Bill as possible.
Amendments Nos. 38 and 27 address a need for clarity, as I said earlier. It would be much more satisfactory if the issue of the definition of ''display'', as distinct from ''advertisement'', could be resolved in the House of Commons—or, more particularly, in Committee—rather than being left to wide-ranging regulations. However, I fear that that will not be, unless the Minister has a change of heart. By approving the clause without the amendments, we are yet again signing up to the unknown.
When the clause was debated in another place, the Minister made it clear that it represents a reserve power that will not necessarily be exercised, and that point was repeated this morning. However, from what the Minister and their lordships have said hitherto, I do not understand how it is possible to avoid the need to define the word ''display'' in regulations, because not to do so leaves shopkeepers and others open to colossal legal uncertainty. We are leaving an enormous amount of territory to be exploited by lawyers if the provisions are changed by regulation, and there are large grey areas in the clause for those at the sharp end who have to deal with the regulations in their places of business. We should be resolving that uncertainty as we debate the Bill, not after it has been enacted.
I am aware that we are still woefully behind in our consideration of the Bill, having reached only
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clause 8—just over a third of the way into the Bill—in this, our last sitting. That is despite our attempts this morning, at Mr. Winterton's instigation, to get a move on. We do not want to leave large quantities of the Bill undebated in Committee, but I fear that that is what will happen.
In the interests of trying to speed on into the next clause, and with a degree of protest, I shall not push the amendment to a vote, although I do not think that it has been responded to adequately. We may well want to return to the subject on Report, unless the Minister gives us further assurances before then. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 ordered to stand part of the Bill.
Prohibition of free distributions
Mr. David Wilshire (Spelthorne): On a point of order, Mr. Amess. Before I speak to the amendments, I would welcome your advice. In an attempt to make progress and for other reasons that I shall mention if the chance is available to us, will you give me guidance? Amendment No. 42 is the lead amendment, and it crosses my mind that I might have to move it in order not to lose the others. In the great spirit of co-operation this afternoon, it crossed my mind to not move the amendment. Would that mean that we could not discuss the other amendments that are grouped with it?
The Chairman: If the hon. Gentleman wishes to discuss amendments Nos. 39, 43, 40 and 50, he must move amendment No. 42. We could have separate Divisions.
Mr. Wilshire: I seek only your guidance, Mr. Amess, on whether I must move amendment No. 42 to guard against losing the remaining amendments, or whether I may help the Committee by saying that I am happy not to move it. I do not want to say that I do not wish to move amendment No. 42 only to be told that I cannot discuss the other amendments.
The Chairman: If the hon. Gentleman does not move amendment No. 42, he cannot discuss amendments Nos. 39, 43, 40 and 50.
Mr. Wilshire: That is exactly the trap into which I thought that I might fall, which is why I asked for your ruling, Mr. Amess. I shall move the amendment with reluctance and a heavy heart because I could write the riposte as a script.
I beg to move amendment No. 42, in page 4, line 28, leave out 'or permits'.
The Chairman: With this it will be convenient to take the following amendments: No. 39, in page 4, line 29, leave out 'or effect'.
No. 43, in page 4, line 36, before 'each', insert
'all reasonable steps are taken to ensure that'.
No. 40, in page 4, leave out lines 40 and 41.
No. 50, in clause 11, page 6, line 15, leave out
'or whose effect is to do so'.
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Mr. Wilshire: In order to help the Committee to make progress, I tell the Minister that she need not pour great scorn on me for being in favour of amendment No. 42 or read me many pages of briefing on it because I shall ask leave to withdraw it.
I plead guilty to drafting amendment No. 42, and displeasure should not fall on any of my hon. Friends because they were not party to it. In my defence, I can say only that I was listening to an especially tedious debate in the Chamber last Friday afternoon while I examined the Bill. Perhaps that frame of mind caused me to draft the amendment.
Tim Loughton: I cannot believe that last Friday's debate was so tedious that it could distract my hon. Friend's attention. The debate was, of course, on the Home Energy Conservation Bill, which is the private Member's Bill of the hon. Member for Brighton, Kemptown (Dr. Turner). Quite extraordinarily, the hon. Gentleman talked out his own Bill.
The Chairman: Order. I ask hon. Members to get back to the matter that we are discussing.
Mr. Wilshire: Absolutely, Mr. Amess. Perhaps I drafted the amendment as it reads because I was so riveted by the debate in the Chamber.
I turn to amendments Nos. 39 and 50, which make the same point of principle. The amendments would remove ''or effect'' and
''or whose effect is to do so''
respectively. The subject has cropped up during our discussion of other clauses, but I thought that it required careful thought with respect to this clause.
The title of the clause is ''Prohibition of free distributions''. It states:
''A person is guilty of an offence if in the course of a business he . . . gives any product or coupon away to the public in the United Kingdom''.
That is clear enough; for once we have a collection of words that we can clearly understand. However, subsection (1)(b) reads,
''causes or permits that to happen, and the purpose or effect of giving the product or coupon away is to promote a tobacco product.''
I accept that, in a court of law, it should be possible to say that the purpose of doing something was to promote tobacco. To establish the purpose of doing something, one must decide one's purpose before acting. If this legislation is put on the statute book, it will be reasonable to say, ''If you have deliberately done something along these lines, you are guilty of an offence.'' I accept that.
However, I cannot accept that if you. Mr. Amess, were to do this sort of thing, you would be found guilty, if the effect of what you did was to promote a tobacco product. It would be grossly unfair if you were to be treated like that, because you might have done something innocently and for the best of reasons that was a million miles away from promoting tobacco products.
If these two amendments are not passed, the clause will provide that, with hindsight, we can demonstrate that someone has committed an offence, even though he had no means of knowing that it was an offence
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until afterwards. That is not good legislation. An innocent person does something for the best of motives, and subsequently, because of an effect beyond that person's control, he finds that he have done something that is contrary to this provision. That cannot be right, because he would not have known in advance that that would happen.
Therefore, the phrase ''or effect'' should be removed from the clause, and from elsewhere in the Bill. Amendment No. 39 seeks to remove ''or effect'' in one place, and amendment No. 50 seeks to do that in another. I would be interested to learn whether the Minister can justify using hindsight to make a criminal of someone who never intended to be one. If she cannot, she should accept the amendments, or something like them, which she could introduce on Report. I look forward to hearing her comments.
Amendment No. 43 seeks to make the legislation more sensible. Subsection (3) lists the circumstances in which an offence is not committed under subsection (1). The third of them states that no offence is committed if,
''each person to whom it is given—
(i) is engaged in, or employed by, a business which is also part of the tobacco trade, and
(ii) falls within subsection (4)''.
Therefore, if each person is involved in the trade, that is all right, up to a point. However, common sense must take a hand in this. For example, one might give something away to a group of people. That group could number many thousands of people, if one is talking about the number of people who are engaged in a particular trade, and it would certainly number many hundreds of people, in certain circumstances. However, the clause refers to
''each person to whom it is given''.
The hon. Member for Luton, North (Mr. Hopkins) considers tobacco manufacturers to be wicked people who will take advantage of every opportunity that is offered to them, but even if they are acting with the best will in the world, how can they be certain, if they are having to double check on 1,320 people—to clutch a figure out of thin air—that every one of them is engaged in the trade? That is what the clause demands, because it says ''each person''. Are we to allow situations to arise in which a prosecution can be brought because of the merest of slips that means that one person does not fit? There is no scope here for common sense, which is why amendment No. 43 proposes to insert
''all reasonable steps are to be taken to ensure that''
each person fits. That is a much more practical, sensible and realistic way in which to draft legislation. Given the number of people who might be involved and the scope for misunderstanding and genuine error, we should be looking for best endeavours. That is realistic.
I have a slight difficulty with amendment No. 40. On the original list of amendments, it proposed the deletion of ''lines 41 and 42''. Someone has spotted the point that I was going to make, and it has now been
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changed to ''lines 40 and 41''. If anyone is working on the old list on which I was working, that is not what we are discussing; we are discussing leaving out lines 40 and 41.
The clause refers to when
''the product or coupon is given to each such person in his capacity as such a person.''
The same argument applies as to amendment No. 43. It relates to the phrase
''given to each such person''.
Whether the number of such people is 1,000 or several thousand, those who take shelter in that defence must be able to show that they gave to each such person.
Again, that seems to fly in the face of common sense. Why does it matter? If the person involved took all reasonable steps to ensure that the people involved were engaged in the trade, that should be adequate. If they can prove that they did so, does it matter whether ultimately each such person was working in that capacity? If they miss one person, rather like if they give to one person too many, which was my first argument—that is, if there are 1,230 and they give to only 1,229—they have, as I understand it, lost their defence under the clause. I should be grateful to hear why the Minister believes that the provision is necessary and that it is not necessary to suggest another formula of words that would deal with the issue in a much more realistic and practical way.
I have already spoken to amendment No. 50, which deals with effect rather than purpose, and I shall not repeat myself. However, some substantial issues are involved and I should be grateful if the Minister would comment on them before we decide whether to press any of the amendments to a Division.