Joint Committee On Human Rights Eighth Report


APPENDICES

1.  Letter from Legal Adviser, JCHR to Department of Health

TOBACCO ADVERTISING AND PROMOTION BILL

  As you will be aware, a Tobacco Advertising and Promotion Bill has been introduced to the House of Lords by Lord Clement-Jones as a private Member's bill. The bill is identical to the Government bill which failed through lack of time at the end of the last Parliament. The Joint Committee on Human Rights is considering how best to approach the human rights issues arising from the Bill. In the case of a Government bill which seemed to raise questions of human rights, the Committee would ask the Secretary of State for his or her views on any concerns it had identified. This course of action is not normally appropriate in the case of a private Member's bill, although the Committee understands that the Government has undertaken to make a statement of its views about any human-rights issues which emerge at a convenient stage during the passage of a private Member's bill.

  However, the Tobacco Advertising and Promotion Bill is not a typical private Member's bill. The necessary preparatory work will have been done within the Department of Health before the Secretary of State, Mr. Alan Milburn M.P., made a statement of compatibility in respect of the Government Bill introduced to the House of Commons during the 2000-01 session of Parliament.

  In these unusual circumstances, the Joint Committee on Human Rights consider that it would be reasonable to seek the Government's views on the human rights aspects of the Bill, so that the Committee can take them into account when considering whether it is appropriate to report on the Bill to each House. The Committee therefore seeks answers from the Department of Health to the following questions.

A.  COMPENSATION FOR INTERFERENCE WITH SPONSORSHIP CONTRACTS

  Clause 9 of the Bill makes it an offence to be party to a sponsorship agreement if the purpose or effect of anything done as a result of the agreement is to promote a tobacco product in the United Kingdom. This impacts on the sponsor's right to dispose of his, her or its own property, which is one of the normal incidents of the right to the peaceful enjoyment of possessions guaranteed by Article 1 of Protocol No. 1 to the ECHR. In so far as the Bill, when enacted, would make unlawful anything done in pursuance of a sponsorship agreement entered into before the Act came into force, it would amount to an interference with contractual rights, which counts as property for the purpose of Article 1 of the first Protocol. Such interference would be contrary to the requirements of the first paragraph of Article 1 of the first Protocol unless "in the public interests and subject to the conditions provided for by law and by the general principles of international law". This last phrase imports a duty to compensate for losses incurred as a result of deprivation of property in the public interest. There seems no reason to doubt that a deprivation of property taking the form of an interference with the performance of a sponsorship contract could be said to be in the public interest if it was intended to reduce deaths caused by smoking and had a realistic chance of achieving that objective.

  However, it could still be necessary, if the rights under the sponsorship contract were taken away, to compensate the parties for loss of income due to them under the contract. The Bill as currently drafted neither specifies that it is not to apply to things done in pursuance of sponsorship contracts entered into before the Act comes into force (although the Minister has a wide power to make provisions which might include arrangements of that sort when making a Commencement Order under clause 20), nor indicates what provision, if any, will be made for compensating people whose contractual rights under sponsorship contracts are taken away as a result of the Act.

  If the Bill is became law as it presently stands, what arrangements would Ministers intend to put in place to ensure that there would be no violation of the first paragraph of Article 1 of Protocol 1 to the ECHR in respect of existing sponsorship agreements?

B.  BRAND-SHARING AGREEMENTS

  Clause 10 of the Bill would allow the Secretary of State to make regulations prohibiting or restricting the use of tobacco-related names or emblems in the context of any other service or product, and to prohibit or restrict the use of names or emblems of other products in connection with tobacco products. Since trade names and trade marks are items of property and are possessions within the meaning of Article 1 of the first Protocol, any such regulations would need to satisfy the tests set out above in relation to the second paragraph of Article 1 of Protocol No. 1 to the ECHR. Regulations could be made in a way which satisfies the requirements of that provision, and would probably be invalid to the extent of any incompatibility.

  Can the Department confirm that it would intend that any regulations made under the power conferred by clause 10 should be framed in the light of its obligations under the second paragraph of Protocol 1, Article 1?

C.  ENFORCEMENT: POWERS OF ENTRY AND INSPECTION

  Under clause 13(1) of the Bill, the duly authorised officers of enforcement authorities (see clause 12) would have powers to enter and inspect premises, require the production of books, documents, data records or products, and require people to supply information and assistance. The inspection powers could be exercised in any premises other than that used only as a private dwelling house (see clause 13(1)(a)). They could therefore be exercised in premises used for mixed dwelling and other purposes. Such inspections would engage the right to respect for private life and the home and correspondence under Article 8.1 of the ECHR. It seems likely that the interference authorised would generally be justifiable by reference to Article 8.2.

  However, an issue under Article 8.2 might arise in relation to proportionality if the safeguards against abuse of power prove to be insufficient to provide adequate protection for the right guaranteed in Article 8.1. If a warrant were to be issued by a Justice of the Peace or Sheriff under clause 13(4) or (9), the requirement that the JP or Sheriff be satisfied on reasonable grounds that the proposed entries for the purpose of the proper exercise of the officer's functions would constitute a sufficient safeguard. It is less clear that entry by a duly authorised officer under clause 13(1), with no specific authorisation beyond his written authority as an officer, provides adequate safeguards. It is noteworthy that the power to enter and inspect premises would be exercisable in respect of premises which are not only or even primarily business premises, and that clause 13(1)(a) would not restrict the hours at which an entry could be effected. Furthermore, clause 14 would make it an offence intentionally to obstruct a duly authorised officer in the exercise of his functions.

  Does the Department have any view as to the adequacy of the safeguards against abuse of the powers of entry and inspection which would be conferred by clause 13 of the Bill? In particular, is the Department satisfied that the extent of these powers meet the requirement of proportionality in connection with entries to premises which include dwellings, in the context of meeting the requirements of Article 8.2 of the ECHR?

D.  RIGHTS UNDER EUROPEAN COMMUNITY LAW

  In the light of decisions of the European Court of Justice, particularly in Case C-159/90 Society for the Prevention of Unborn Children v. Grogan, [1991] ECR I-4685, and Case C-376/98 Federal Republic of Germany v. European Parliament and Council of the European Union, (French Republic, Republic of Finland, United Kingdom and Commission of the European Communities interveners), Case C-74/99 Reg. v. Secretary of State for Health, ex parte Imperial Tobacco Ltd, [2000] ECR I-8599-

  What is the view of the Department with regard to the compatibility of the Bill with European Community law relating to free movement of goods and services?

  Although the progress of any Private Member's Bill is inevitably shrouded in uncertainty, you may be aware that the Government has indicated its intention to give time to allow this Bill to complete its Lords stages if the necessary majorities are secured. The Committee therefore seeks a response to the questions above by Friday 30 November.

1 November 2001

2.  Letter to Legal Adviser, JCHR from Office of the Solicitor, Department for Work and Pensions and Department of Health

TOBACCO ADVERTISING AND PROMOTION BILL

  Thank you for your letter of 1 November 2001 to Greer Kerrigan. Mrs Kerrigan has asked me to reply as my branch deals with this Bill. We do not disagree with your comments about the appropriateness of seeking the Government's views on this Bill, notwithstanding that it is a private Member's bill.

  I note that you have used different clause numbering to that in the Bill as ordered to be printed on 11 July 2001. I am not clear as to the cause of the different numberings, but for the purposes of this letter I have used the numbering in that version rather than that in your letter. My comments are as follows.

  It would, perhaps, help if I state at the outset the policy behind the legislation. The policy is to reduce the amount of illness and death caused by smoking. Smoking is generally accepted to be the major cause of premature death and avoidable morbidity in Britain today. There are around 120,000 deaths a year from smoking-related illness. To put this figure into perspective, it has been estimated that for every 1,000 twenty-year-old smokers, one will be murdered, six die in motor accidents, 250 will die under the age of 70 from smoking and another 250 will die over the age of 70 from smoking. The Department is satisfied that the link between smoking and illness and death is well established and of the link between advertising and overall consumption. Furthermore, the evidence shows that only comprehensive bans on advertising and promotion are fully effective. Partial bans result in more funds being channelled into permitted forms of promotion.

  If the Bill became law as it presently stands, what arrangements would Ministers intend to put in place to ensure that there would be no violation of the first paragraph of Article 1 of Protocol 1 to the ECHR in respect of the existing sponsorship agreements?

  The Department of Health fully appreciates that putting an end to sponsorship contracts which are already in existence at the time of coming into force of the provision would constitute an interference with contractual rights which are property rights for the purposes of article 1 Protocol 1. As you say, in the Department's view there is a public interest justification for such a ban, in the intention to reduce deaths and illness caused by smoking. Part of this is through discouraging people from taking up smoking in the first place. Sponsorship, particularly of sports, glamorises smoking, making it especially attractive to the young. The younger people start, the more likely they are to smoke for longer and to die early from smoking.

  The Department is conscious that the public interest must be balanced against the interference with property rights and that compensation can be an issue if a fair balance is to be achieved (a requirement that the Court has read into Article 1). The first point we would make on that is that there is no specific requirement in Article 1 of Protocol 1 to pay compensation. What the Court has said is that in the great generality of cases no fair balance will be achieved unless compensation is paid but there is no duty to pay compensation (See AGOSI v United Kingdom [1987] 9 EHRR 1). The quest is to find the fair balance and the question of compensation is only one, albeit important, element in that quest.

  Factors to put in the balance, include the fact that the Government has been making clear its intentions over a long period. It came into office in 1997 with a manifesto commitment to ban tobacco advertising and made clear shortly afterwards that this would include sponsorship. It also made clear following the annulment of the EC Tobacco Advertising Directive (98/43/EC) in October 2000 that it was still committed to legislating in all the areas covered by the Directive. Therefore, anyone entering into such a contract since 1997 has done so in the knowledge that it was likely that legislation would, at the very least, interfere in some way with these contracts.

  Furthermore, there is scope for the coming into force of the provisions in the Bill on sponsorship to be deferred. Clause 21 permits different days to be appointed for different provisions to come into force. Clause 19 allows for regulations to be made deferring the application of clause 10 (the clause on sponsorship) to specified types of event until a specified date provided specified conditions are met. The latest date which may be specified is 1 October 2006. Therefore a further period of time can be permitted for the termination of those agreements.

During debate on the Government Bill Ministers said that, subject to consultation, it remained the Government's intention to implement the policy and the timetable on sponsorship that was agreed with its European partners in 1998 which would mean that UK sports and events will have until July 2003 to find alternative sponsorship and that global sporting events will have until October 2006 to do the same, provided first that they do not sign new contracts with the tobacco companies and secondly that they phase out the current sponsorship that they receive. This remains the Government's view, subject also to any further EU legislation on the topic.

  In order to assist the transition from tobacco money to other sources of funds, the Government set up a Task Force to advise sports likely to be affected.. A number of sports sought assistance from the Task Force and the Government remains ready to offer advice to any sports that might need it.

  It cannot have been the expectation of the parties to the contracts, even if entered into before 1997, that those arrangements would run forever, so it is reasonable to expect them to be able to bring them to an end if allowed sufficient time and help to do so.

  In the light of the above, Ministers are satisfied that, when set against the deaths and damage to peoples' health caused by smoking, particularly the damage done if the habit is established early in life, the long lead-in period and consultation period and the assistance to sports to find other forms of sponsorship, this provision is proportionate and achieves the necessary fair balance without the need for compensation.

  Can the Department confirm that it would intend that any regulations made under the power conferred by clause 11 should be framed in the light of its obligations under the second paragraph of Protocol 1, Article 1?

  The policy intention is that the regulations made under clause 11 will require that brand names, trade marks etc (branding) will have to change so that they are sufficiently different to the branding features of the tobacco product not to promote the tobacco product. Alternatively, if the tobacco product were to change its branding features that would obviate the need for the non-tobacco product to change its branding. My clients have always recognised that these restrictions raise issues under Article 1 of the First Protocol, in that there will arise a control on the use of property.

  My clients are satisfied that prohibitions and restrictions on this kind of indirect promotion of tobacco products are justifiable on health grounds. Research confirms a link between brandshared products and increased tobacco consumption, in particular it confirms that brandshared products raise awareness of tobacco brands, particularly among the young.

  The question is, nevertheless, again one of achieving a fair balance between the rights of the intellectual property owners and the public interest (reducing the number of smoking-related deaths).

  The Government agreed to go out to consultation on the regulations on brandsharing under clause 11 of its Tobacco Advertising and Promotion Bill introduced in December 2000 and would do so under the same provision of Lord Clement-Jones's Bill if it becomes law.

  The regulations will also be subject to the requirements of the Technical Standards Directive. Those with a vested property interest in intellectual property rights concerned would be able to participate in the consultation process, so that their interests would be considered by the Department before the Regulations are made. There are a wide variety of situations involving brand-sharing, and the Department anticipates that the consultation period will enable it to frame regulations which would not prohibit the use of similar names and logos where any connection between the tobacco product and the non-tobacco product is purely coincidental and to take account of other concerns raised.

  Further, the consultation period, the standstill period required by the Technical Standards Directive and any further transitional periods built into the regulations would create a period of time for those affected to adapt to any controls.

  In the light of the above, the Department believes that the controls on the use of trademarks etc will be proportionate to the protection of health and in the circumstances the fair balance can be achieved without the necessity for compensation.

  The Department can therefore confirm that they intend that regulations made under the power conferred by clause 11 should be framed in the light of its obligations under the second paragraph of Protocol 1 Article 1.

  Does the Department have any view as to the adequacy of the safeguards against abuse of the powers of entry and inspection which would be conferred by clause 14 of the Bill? In particular, is the Department satisfied that the extent of these powers meet the requirement of proportionality in connection with entries to premises which include dwellings, in the context of meeting the requirements of Article 8.2 of the ECHR?

  My clients think it would be exceptional for access to be required to premises that are both commercial and a dwelling. In any event, what constitutes a "reasonable hour" for the purposes of inspection would depend partly upon the use to which the premises are put. As public authorities, Trading Standards Officers will be bound by both the general law and the Human Rights Act and, albeit there is no express provision in the Bill, they would be acting unlawfully if they acted unreasonably in the exercise of, or otherwise abused, their powers of entry.

  These powers follow very closely the powers of entry and inspection in the Consumer Protection Act 1987. My clients are not aware of difficulties with the exercise of the powers under that Act by Trading Standards Officers. Accordingly, they are satisfied that they can trust to their professional standards and consider it very unlikely that the powers will be abused so as to interfere with rights under article 8.

  What is the view of the Department with regard to the compatibility of the Bill with European Community law relating to free movement of goods and services?

  Whilst the Department would accept that there may be some restrictions placed on the free movement of goods and services by the Bill, it believes that the provisions are proportionate and justified for the protection of health, as permitted by Articles 30 and 46 of the Treaty. The facts about the public health justification are set out at the beginning of this letter and they are as relevant in relation to EC as they are in relation to the ECHR.

  The judgment of the ECJ in C-376/98 Federal Republic of Germany v European Parliament and Council of the European Union and C-74/99 R v Secretary of State for Health, ex parte Imperial Tobacco Ltd ("the Tobacco Advertising cases") was that the Treaty base of Directive 98/43/EC was inadequate, since not all of its provisions could be justified on the basis of the need for harmonisation of national measures which would otherwise constitute a barrier to trade. This is not an argument which can be levelled at the Bill, since there is no restriction equivalent to Treaty base applicable to legislation by Parliament. However, where the Bill may create barriers to trade with other European Member States those should be justifiable and proportionate. The different measures in the Bill are considered separately below.

  Potentially the clauses prohibiting or permitting the prohibition of advertising in magazines and other publications, free distributions, sponsorship and brandsharing will restrict the free movement of goods from other Member States or the ability of people from other Member States to provide services, but in each case, my clients believe they have evidence to show how those activities make smoking attractive, increase brand awareness with a consequential uptake of smoking and therefore contribute to ill-health and death.

  The Department has also considered the judgment of the ECJ in the case C-405/98 Konsumentombudsmannen v Gourmet International Products AB which concerned Swedish legislation on the advertising of alcoholic drinks. Amongst other provisions, the Swedish legislation prohibited the advertising in periodicals or other publications of spirits, wines or strong beers (except publications distributed only at the point of sale). The legislation was challenged on the basis that it constituted an obstacle to the free movement of goods contrary to article 30 (now 28) of the Treaty and to freedom to provide services under article 59 (now 49). The ECJ considered that, whilst the measures did constitute such obstacles, they were capable of justification on health grounds under articles 36 and 56 (now 30 and 46). It was a matter for the national court to decide whether the measures were proportionate, or whether adequate protection for health could be provided by measures which create fewer obstacles to trade.

  To the extent that respect for fundamental freedoms are relevant in relation to the EC issues, the Department would adopt the arguments set out in the first part of this letter.

  You may consider it relevant that similar restrictions on tobacco advertising already exist or are proposed in other Member States.

3 December 2001




 
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