London Olympics Bill


[back to previous text]

Mr. Caborn: Obviously, the hon. Gentleman has been offended by some of the words that I have used this morning. I will probably get the scriptwriter to change them and not be quite as direct as the script was telling me to be.

There are two important points. First, this issue is not just about dealing with what the IOC are rightly demanding in relation to the host city contract. It is also about trying to look to the future and what might happen between now and 2012, so that we do not have to return to the House all the time. Everyone acknowledges that the Bill is all about putting in place a structure that is accountable to Parliament, but which allows us to get on, to build the facilities, to organise the games and to present the best run Olympic games ever in 2012. If we add the referral back to Parliament for different actions, we will end up defeating the object of the exercise. I do not think that there is any major disagreement about what we are trying to do.

The safety valve is that any new regulation would have to come back to the House to be debated and agreed. Part of the concern of the hon. Member for Basingstoke was that the IOC could come along with new requests or guidance. However, we would have to bring any new regulation back to the House.

I will re-examine the matter, but this is about future-proofing as well as dealing with what is in the host city contract now. We are trying to draw that balance in the clause, so that we can deliver the contracts out there and get the show on the road.

I agree that the concept of amenity is vital. That is why it is included; the Secretary of State must have regard to amenity under subsection (2)(c). That is why we resist amendment No. 107, which would remove the concept of amenity. The concept that we have included in the Bill is the same as is defined in the ODPM’s guidance.

Mr. Foster: I apologise, but will the Minister just read out his brief again, because he just said to the Committee that it is clear that, under clause 17(2)(c), the Secretary of State must have regard to amenity. Will he confirm that that is what he read out, because that is not what it says in the Bill? If he wishes to change the word “may” to the word “must”, I will accept that as his drafting amendment and we can all carry on with the next business. However, the Bill says “may” and not “must”.


 
Column Number: 89
 

Mr. Caborn: I will reflect on the hon. Gentleman’s comments. He has his usual hawk eye in going through the clause and dare I say that he has caught my officials out. I will return to him on that.

Mr. Foster: I am extremely grateful to the Minister, but may I gently say that I have no desire to catch any of his officials out, although I might from time to time wish to catch him out? If I have done so and it will cause him to reflect on this important issue and to return to us on it in due course with some further thoughts, that gives me good reason not to press the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Foster: I beg to move amendment No. 72, in clause 17, page 12, line 17, leave out from ‘kind’ to end of line 20.

The Chairman: With this it will be convenient to discuss the following amendments:

No. 66, in clause 17, page 12, line 21, leave out subsection (5) and insert—

    ‘(5)   The regulations shall apply only in respect of the display of advertising in any medium in accordance with subsection (1).’.

No. 31, in clause 18, page 13, line 16, leave out ‘control’ and insert ‘display’.

Mr. Foster: I do not know how the hon. Member for Sittingbourne and Sheppey is getting on with his bets—

Derek Wyatt: Keep going.

Mr. Foster: He suggests that I should keep going, but I was hoping not to do so for much longer, because I am feeling worse and worse as time progresses. It is amazing how much support I get from all parts of the Committee for raising such important issues. It is shortly time for others to have a go as well, and the Committee will, no doubt, be pleased about that.

The amendments are important and are intended to tease out from the Government whether a fear that many people have, which I share, is realistic. The Committee will acknowledge that, during the most fantastic Olympics and Paralympics ever, newspapers will report what is going on. We certainly hope so. We hope that they will be celebrating some fantastic home team successes; I am sure that they will. Even if not, they will want to celebrate a fantastic games and Paralympics and to toast their overall success. However, as I understand them, the proposals could inhibit the ability of established companies to sell newspapers reporting those events. I shall return to reporting when we discuss later amendments but, in the context of these amendments, I will narrow down the argument to the display notices about newspapers.

Amendment No. 72 is centred around the following argument, and if the Minister can tell me that it is wrong, that will be fantastic. As I understand it, subsection (4) spreads the net of the regulations beyond what is generally regarded as advertising. The definition would apparently encompass a great many media messages, including, for example, newspaper billboards and commercial signage of all kinds. The
 
Column Number: 90
 
amendment would restrict the scope of the regulations governing advertising by removing subsections (4)(a) and (4)(b).

Subsection (4)(a) would include

    “advertising of a non-commercial nature”

under the remit of the regulations. I have spoken to nobody—I am grateful to the Newspaper Society for its help—who has been able to tell me what “non-commercial advertising” means. The Minister might be able to assure me that he knows exactly what it means, and why it has to be covered in the regulations. That would solve all my problems—or at least some of them—and I look forward to his attempts to do so. However, I have some difficulty with non-commercial advertising, because an advertisement, after all, is an advertisement, whatever its form.

Subsection (4)(b) is also unwarranted, as it incorporates into the regulations

    “announcements or notices of any kind.”

Again, I do not know what would be covered. Surely a notice or an announcement is not an advertisement, and should not be treated for the purpose of the advertising regulations for London 2012 as the same thing. If the legislation stands, a newspaper’s vending stand with a headline on it such as “X does well” could presumably be construed as an advertisement rather than a notice. The question is: does that mean, for instance, that an Evening Standard billboard that says, “Olympics success by X, Y or Z” is going to be banned if it appears on the forecourt of a station that is being used to take people by train to the Olympic park? I have real difficulty with what is intended to be included, and that is why my amendments simplify the situation.

Amendment No. 66 continues the same theme. Subsection (5) seeks to include unnecessary examples that start to distort the meaning of advertising. The reference to

    “distribution or provision of documents or articles”

in subsection (5)(a), especially when read in conjunction with subsection (4), could bring newspapers themselves within the ambit of the regulations because they carry advertisements. Are we saying that a newspaper with advertisements in it could not be distributed? What would that come under? Would it be considered a notice? Clearly, that would be unacceptable. I and many others are confused about that.

The phrase

    “display or projection of words, images, lights or sounds”

appears to encompass any commercial broadcasting. Does that mean that a television set in the window of a television sales shop with advertising on it will be caught? What if the televisions in that shop are displaying activities taking place at the Olympics?

The Minister will say that I am talking gobbledegook, that I need not fear, and that none of those examples is intended to be covered by the regulations. If he says that newspaper vendors’ sale boards will be okay, that newspapers carrying advertisements will be okay, and that shops can continue to have their televisions working as people walk by in the vicinity of an Olympic venue, I will sit
 
Column Number: 91
 
down and be a happy bunny. I suspect that I might not hear anything quite so simple from the Minister, but I look forward to hearing him try to convince me.

Mrs. Miller: I, too, am concerned that the Bill may go well beyond advertising alone. Advertising is, by definition, commercial, and the Bill refers to

    “announcements or notices of any kind.”

That could infringe on a great number of other communications that I am sure it was not Government’s intention to affect. We require some clarity on that.

We support amendment No. 72 because it would not dilute the application of the regulations, and deleting subsection (4)(a) and (b) would create more clarity. In particular,

    “announcements or notices of any kind”

could encompass editorial material, and I simply do not believe that that could be the intention of the Government. That is why we fully endorse the deletion of that provision. The Government need to clarify their intentions, and this catch-all clause upsets the balance of what we are trying to do under the Bill.

We also support amendment No. 66, which would delete subsection (5)(a) to (c). Paragraphs (a) to (c) are dangerously broad in scope, and go well beyond advertising to cover, potentially, editorial content in any medium. I cannot believe that that is the intention of the Government. We would welcome clarification on those issues.

Mr. Caborn: I will deal first with amendments Nos. 72, 66 and 31, and then with the secondary legislation.

The requirement that is created under the clause for controlling advertising in the vicinity of the Olympic venues is a response to a requirement of the International Olympic Committee; I think that that is understood. The host city contract states that we must ensure that no propaganda or advertising is placed within or outside venues so as to be within sight of television cameras. We are also required to control ambush marketing. We have decided to leave much of the detail of these controls to secondary legislation to ensure that we have flexibility in our approach, to allow us to respond to the demands of the IOC and to allow us to react to any new or innovative ambush marketing techniques. A flexible approach to the regulatory regime under the clause means that we can ensure that our regulations are fit for purpose.

Clause 18(1)(a) ensures that, in making regulations under clause 17, the Secretary of State can amend any existing legislation relating to control of advertising or intention. The clause relates to the fact that our regulations are likely to supersede the Town and Country Planning (Control of Advertising) Regulations 1992, which provide the current regime of advertising control. We feel that we have to allow the Secretary of State, through the regulations, to amend any existing legislation controlling advertising to ensure that we do not create unhelpful loopholes by ignoring either existing rights or any advertising that is currently exempt from controls.


 
Column Number: 92
 

Amendments Nos. 66 and 72 would limit our ability to prevent unauthorised advertising. Subsections (4) and (5) of clause 17 are drafted to enable us to control all forms of advertising in the vicinity of the Olympic venues and to ensure that the Secretary of State has the flexibility to react to any innovations in the advertising industry in the coming years. If subsections (4)(a) and (b) and subsections (5)(a) to (c) of clause 17 were removed, the Secretary of State might be hampered in reacting to any new forms of ambush marketing. Amendments Nos. 66 and 72 would mean that we were not able to prevent the mass distribution of leaflets, placards or free gifts—examples of ambush marketing that have affected previous games—in the vicinity of the Olympic venues.

The hon. Member for Bath said that newspapers might come within the ambit of the regulations. That is not our intention; we need the powers to protect against people handing out flyers, placards and free gifts, as I have said. We will draft regulations that contain exemptions that follow those in current planning regulations, which include an exemption for newspapers—we shall make sure that newspapers are exempted in that secondary legislation. It is not our intention to cover newspapers in the way that the hon. Gentleman indicated.

11.45 am

Mrs. Miller: I remain a little concerned at the Minister’s response. I have no problem with the control of advertising, but do the Government intend to control other forms of communication? The Minister has said that he would exclude newspapers, but many other forms of communication could be affected. We were talking about billboards before, but there are also magazines, local radio and television. Will the Minister elaborate on those other forms of communication?

Mr. Caborn: Another issue raised was the prospect of light and sound being used. We do not intend the regulations to cover television, but some innovations could, for example, project images on to buildings from outside the immediate vicinity of the Olympics, if that vicinity were limited to a few hundred yards. Furthermore, laser lights can be beamed in from a considerable distance away, and they might constitute advertising. We are trying to future-proof things so that we can take appropriate action without having to come back to the House and ask specifically for more powers.

New technologies are developing and there are some extremely innovative people out there. If we do not get the relevant powers now, we shall have to come back to the House to get them. The powers relate to areas on which we all agree. This is about protecting the rights of the IOC and trying to future-proof the Bill.

Mr. Foster: Again, the Minister is not helping much. If he were to say something like, “We intend to bring in regulations that cover the display by any means of any form of advertising in any media”, Committee members of all parties would be happy. We accept the need for controls on advertising. The problem is that
 
Column Number: 93
 
the definition of advertising in the clause goes far wider than the normally accepted definition. I accept that the regulations would have to get parliamentary approval, but the measure seems to widen the scope.

The Minister studies such things in great detail. I ask him to look at subsection (5) of clause 17 as an example of the breadth of the measure:

    “The regulations may apply in respect of advertising in any form including . . . things done with or in relation to material which has or may have purposes or uses other than as an advertisement.”

Therefore, subsection (5) contains an admission that the regulations will cover,

    “in respect of advertising in any form”,

things that are not an advertisement. That is why we are confused.

There is also a reference to “notices of any kind”. I can think of 101 different kinds of notice. To publish somebody’s banns of marriage is to give a notice; what is the Secretary of State going to do about that?

The Minister says that newspapers will not be covered. I am grateful to have that firmly put on the record. Presumably, he will also agree that the advertisement on a news vendor’s stand will not be covered; can he at least agree that that will be the case? The Evening Standard news vendor’s stand display will not be covered by the regulations; can the Minister simply say yes or no to that?

Mr. Caborn: The answer to that is no, that will not be banned. I do not remember there being all this debate when the Town and Country Planning Act 1990 was being passed, and the definitions in this Bill are very similar to those in that Act. A tremendous amount of knowledge and know-how has come out of the application of that Act, and out of what has happened in previous Olympic games, and we have encapsulated that in this Bill.

Measures such as this will be interpreted proportionately, and with common sense. The hon. Gentleman asked about someone wanting to advertise their newspaper. I repeat what I have said: we will exclude newspapers. Newspapers advertise, so will we ban advertising in newspapers that are sold outside Olympic venues? No, that would be stupid.

I am trying to inject an element of common sense into the debate. I say again that we are trying to reflect what the IOC is asking us to do, and we will do that. We are also trying to future-proof. We have taken the basis of this part of the Bill from the 1990 Act, which has worked well to date and which I have no doubt will work from now to 2012. All we are trying to do is make sure both that we respond to the demands made by the IOC and that that is done proportionately and, I hope, with an element of common sense.

There is nothing to fear in this part of the Bill. If anything, what it does is protect the House, because these matters will have to come back before the House time and again between now and 2012.

Mr. Foster: The Minister knows that in broad terms I agree with his approach. I want him to be proportionate, to use common sense, and there to be future-proofing. However, he must realise that we are
 
Column Number: 94
 
debating the words in the legislation before us, not those that the Minister is uttering, and I maintain that I still do not know, because he has not given me an example, of anything that, for example, is advertising that has

    “purposes . . . other than as an advertisement.”

I simply do not understand that.

I am asking the Minister to help me, but he is clearly not in particularly helpful mode at present. However, I have no doubt that we will have an opportunity to return to these issues at a later stage of our deliberations, so rather than try to—

Mr. Caborn rose—

Mr. Foster: Instead of doing what I was about to do, I will give way to the Minister.

Mr. Caborn: I just want to try to give the hon. Gentleman an idea of what the IOC is asking us to deliver. That is contained in my handout this morning. He has obviously not read it, and I can understand why. It states:

    “Clean venues refer to the status of all competition and non-competition venues being rendered free of commercial, political or religious advertising and messaging, leaving only the Look of the Games and approved Games sponsors presence. This is one of the key differentiating factors that the Olympic Games offer as compared to other events to athletes, spectators and the worldwide broadcast audience.”

Therefore—[Interruption.] Let me respond to the question the hon. Gentleman has just asked. If some people wanted to hold a religious meeting outside an Olympic venue, or if the Liberal party wanted to go and protest there and advertise its wares—if it has any to advertise—they can go and demonstrate there. We will be able to take certain actions in some circumstances, such as if the local Liberal party were advertising its meetings outside an Olympic venue. If one wants to get more and more daft, one can keep on bringing those type of examples up. It is trite to cater for all eventualities.

Mr. Foster: I did not understand a word of that, but never mind. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 ordered to stand part of the Bill.

Clause 18 ordered to stand part of the Bill.

Clause 19

Offence

Mr. Foster: I beg to move amendment No. 16, in page 14, line 3, leave out subsection (2).

We are back to advertising. Subsection (2) contradicts the concept that everyone in this country and certainly our courts hold dear: the principle of innocence until proven guilty. The Government seem to be willing to sacrifice that long-standing principle in respect of advertising and replace it with the presumption of guilt. I am certainly not suggesting that the general aim of clause 19 is misguided.
 
Column Number: 95
 
Notwithstanding my worry about what the regulations might cover, it should be an offence to contravene any of the advertising regulations under clause 17. When they are agreed by Parliament in due course, clearly, such activity should be an offence. I am as committed as anyone to stopping inappropriate advertising and to ensuring that we can fulfil the guarantees made to the IOC about it, but I genuinely find it hard to believe that it is imperative when achieving such results to overturn the usual procedure of innocence until proven guilty to what seems to be a dangerous presumption of guilt.

I raised the issue in advance of our deliberations with the Department, LOCOG and many other organisations. They have tried to help me and have explained why the matter is important, but so far I am not with them. I hope that the Minister’s help will be more effective than that which I have received so far. I wish to give him the opportunity to clarify why such a measure is necessary. However, I want first to remind him that he made it clear in the explanatory notes that accompany the Bill that the Secretary of State considers that the clause is compatible with the European convention on human rights. Paragraph 110 of the explanatory notes argues that clauses 19 is

    “consistent with the presumption of innocence particularly as the matters subject to the reverse burden are matters within the knowledge of the defendant and which would be difficult for the prosecution to prove.”

That advice is meant to be part of an explanatory note. It says that, when we have the reversal of the usual approach to presumption of innocence, we do not have it. It then goes on to explain the reason for that, as a result of which I become completely lost.

We seem to be reversing the long-held belief of innocence until proven guilty. The explanatory notes say that such action is not being taken, but clearly it is. I have not the foggiest notion why that should be so. I could quote several examples from certain organisations, but I thought that it would be better to hear what the Minister has to say first, after which I might come back with a few comments about what others think about the proposal.

12 noon

Mrs. Miller: The Opposition share the concerns of the hon. Member for Bath about clause 19. While it is true that there are other areas of law when there is an automatic presumption of guilt, most notably in money laundering regulations, it is entirely disproportionate that there should be a presumption of guilt about people who find themselves, perhaps even inadvertently, in breach of clause 17. Given our earlier discussions and the broadness and vagueness of some of the notions that were talked about, several people could fall into that category.

In addition to the worries that were expressed by the hon. Gentleman about clause 19(2), we believe that it would not be good to normalise further the use of presumption of guilt under English common law. In our view, the inclusion of presumption of guilt in legislation should be used as infrequently as possible.
 
Column Number: 96
 
I am interested to hear from the Minister why it is considered necessary to reverse the burden of proof in this instance.

I noticed in the handout that the Minister kindly gave to Committee members this morning that the IOC technical manual shows that it may cover the issue, although not in a great amount of detail. I urge the Minister to realise that the IOC is used to working with many different countries with strong principles regarding the issue, which are enshrined in their legislation. Perhaps we should not be too ready to give way on this issue, which is important and a matter of principle for us.

Mr. Caborn: I will try to explain why we have included this provision in the Bill. Amendment No. 16 would remove the reverse burden of proof in relation to criminal offences that we have created under our new regime for controlling advertising in and around the Olympic venues. I understand the spirit in which the amendment is tabled, but it is appropriate, and indeed proportionate, that the burden of proof falls on the defendant in this case.

Subsection (2) provides a crucial defence for anyone charged with an offence under an advertising regime. Those defences are right and proper and must remain. The burden of proof is on the defendant because the subject matter of the defence is so closely conditioned by the defendant’s own knowledge. We feel that it is more appropriate for the burden to fall on the defendant. Our approach is consistent with the case of Sheldrake v. DPP, which essentially sets the bounds of acceptability in relation to reverse burdens of proof. Our approach also closely follows the type of defence available under section 224 of the Town and Country Planning Act, which provides an offence in breach of advertising restrictions imposed under the Act. In this specific case, we believe that there is an argument for reversing that burden of proof because of the knowledge of the individual.

Mr. Foster: I am grateful to the Minister. I fundamentally disagree with him, but the Government are entitled to their view. We are talking about fines that will be greater than those usually applied by magistrates and a possible criminal record. Clearly, the full force should be applied to those who intend to commit such crime, but the provision could place a huge burden on many small businesses that may inadvertently do things with no intention to create a connection. Nevertheless, I accept that the Minister feels strongly about the issue. Therefore, I ask him to explain paragraph 110 of the explanatory notes, where it says:

    “Clause 19 places a ‘reverse burden’ of proof on the defendant to prove that they did not know that they were committing an offence in relation to the advertising regulations, or took all reasonable steps to avoid doing so.”

It is difficult to see how that could be done in some circumstances. It continues:

    “This is consistent with the presumption of innocence, particularly as the matters subject to the reverse burden are matters within the knowledge of the defendant and which would be difficult for the prosecution to prove.”


 
Column Number: 97
 

Would the Minister explain to me the phrase

    “This is consistent with the presumption of innocence”?

How can there be a “reverse burden” in the first sentence that is consistent with the presumption of innocence in the second? Will he at least acknowledge that there is an error in the explanatory notes, or is there some other way of explaining two mutually incompatible phrases?

 
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2005
Prepared 19 October 2005