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Lord Clement-Jones: My Lords, this has been an interesting and technical debate. I have rarely heard complexity of argument such as we have had outside a barrister's chambers. I recognise the importance that the proponents of the amendments attach to the need to notify under the technical standards directive.
I have little of substance to add to what the Minister said. The Government have received robust advice on the matter. Some of the regulations arising out of the directive will probably be notifiable under the directive in due time. However, that is difficult to say until we see the regulations. I agree with the Minister that the enabling powers contained in this legislation do not have to be notified at this stage. I am sure noble Lords will agree that it will make for a much more sensible decision-making process if what is notified to the Commission is the detail; that is, the regulations relating to what will actually happen in practice on the ground rather than simply the enabling powers in the primary legislation.
When, as part of the regulation-making process, the Commission is notified, it can then evaluate the proposals based on what they are rather than what they may or may not be. I can only echo what the Minister said regarding the information services aspect of the Bill. These restrictions on advertising are not specific to information services. The Bill treats all types of tobacco advertising the same regardless of the way in which it is distributed. Alternatively, they may simply be enabling powers to which the same argument applies as for the enabling powers in Clauses 9 and 10.
The Commission gave its view that the Bill is notifiable but the fact remains that even if the Commission has examined the whole Bill, that clashes with the advice that the Government have had—that the Bill does not need to be notified. The Commission is not the final arbiter in this case—the matter may well be challenged on other grounds. It will be for the courts to decide who is right.
In addition, as we all know, the Commission has previously been wrong in this area. Noble Lords will remember that one reason why it has taken the UK so long to legislate in this area is that the Government were waiting for the Commission to legislate on a Europe-wide level. In the end, however, the courts found that the EU did not have the competence to legislate on tobacco advertising, other than in relation to that which crosses national borders. The original directive was annulled by the European Court of Justice. The Commission is entitled to its view but it is not infallible and it may well have got it wrong in this case.
Even if the Government's current advice is wrong and the Bill is notifiable, it is perfectly possible to notify beyond the Bill's passage through this House in any event. I urge the noble Lord to withdraw the amendment.
Lord Naseby: My Lords, the noble Lord said that the Government have had robust advice. He will appreciate that we on these Benches have had no sight of that advice. He is the promoter of the Bill and his role is to safeguard its purity, if I may use that word. Has he seen that robust advice and, having considered it, concluded that it is robust?
Lord Clement-Jones: My Lords, I am satisfied that the advice that the Government received is robust.
1.45 p.m.
Lord Campbell of Alloway: My Lords, that is all very well but it does not conclude anything. The noble Lord said that he was satisfied that the Government's advice was correct. Heavens. The Government have been wrong time and again on matters of compliance and conformity with EC law, and so has the Commission.
I do not pretend that there is not an argument. I have laid the relevant Bills in the Library—they are of exactly the same mould as this Bill. The opinion is that the Danish, Dutch and Scottish Bills are
notifiable, and they have been notified. Nobody has yet sought to explain exactly why, if those Bills, which are from a similar mould and have an identical purpose, were notifiable, this Bill—which is of a similar mould but has far more complex drafting—is not. We just have to accept that the Government will not move. It is like driving a donkey over a bridge.What are we to do? Where are we going to go from here? This is not a personal complaint. I can see various outcomes. One is that the Government will do nothing and nobody will do anything. Someone will land up in the Basingstoke magistrates' court and all of this will have to be argued as a question of jurisdiction.
The noble Lord, Lord Clement-Jones, said that he has heard nothing like our arguments other than in barristers' chambers. In my chambers, we certainly do not talk all that much law; we do that in court. If this speech is any use to some young advocate in the Basingstoke magistrates' court, good luck to him. The mind boggles at being sent as a young man—one is a young man when one is sent to a magistrates court; I have done that in the past—to have to argue a case such as this. The Government have had a sort of decent approach in this regard—I use the word "decent" in a broad sense. Would they seek the opinion of the European Court? Would they mount a proceeding to determine a declaration in the Chancery Division? Will the Government take an initiative in this regard rather than leave it to Bloggins in three years' time in the Uxbridge magistrates' court?
The matter has to be taken. The argument that I have deployed is not patently false. It is arguable at all events—I do not say that I am right; that would be hubris in the extreme, and I seldom am. It is arguable. Are not the Government going to take the point, treat it seriously and do something about it?
If the noble Lord, Lord Filkin, could give me—totally without commitment—some comfort that the Government would do something about the matter, I should be grateful and I should certainly not divide the House. But if I am left with nothing, I shall divide the House and lose as a matter of principle.
Lord Maclennan of Rogart: My Lords, I have listened with growing amazement to the arguments from the Opposition Bench.
Lord Hunt of Kings Heath: My Lords, I believe that we are out of order. We are at Third Reading.
Lord Maclennan of Rogart: My Lords, I was speaking before the noble Lord had sat down.
Lord Filkin: My Lords, I should emphasise what I said previously. The Government's firm view is that the opinion and advice that we currently have are that the Bill is not notifiable. I have also signalled—the noble Lord, Lord Campbell of Alloway, heard me
signal it—the fact that we are in continuing discussions with the European Commission. I also said—this is on the record—that if anything brought us to change our mind, we should act. But if we are not so persuaded, we shall not change our position. I hope that that is helpful—it is as helpful as I can be.
Lord Campbell of Alloway: My Lords, I am grateful to the noble Lord. That is certainly helpful, and it is the most that he can do—or give—in the position in which he finds himself. I accept his offer without commitment, although it is an offer that has an element of commitment. In those circumstances I prefer to withdraw the amendment.
Lord Maclennan of Rogart: My Lords, before the noble Lord concludes—
Lord Campbell of Alloway: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Skelmersdale moved Amendment No. 10:
- Page 11, line 25, at end insert—
The noble Lord said: My Lords, although my amendment is grouped with that of my noble friend, I must make a protest. I want the Bill to succeed; we all want it to succeed. I want to see in my lifetime the reduction of 3,000 deaths a year from smoking, as mentioned by the noble Lord, Lord Clement-Jones, at Second Reading at col. 1706 of the Official Report of 2nd November 2001. My noble friend on the Front Bench said it all: the Government are gambling with people's lives. I cannot let that go without a protest. I beg to move.
On Question, Whether the said amendment (No. 10) shall be agreed to?
"( ) The provisions of this Act which apply to publishing, distributing or transmitting by electronic means shall not come into force until—
(a) such time as they have been notified to the European Commission under the terms of Directive 98/34/EC (as amended by Directive 98/48/EC), and
(b) such standstill obligations as the Directive requires have expired.".
1.49 p.m.
Biffen, L.
Brougham and Vaux, L.
Campbell of Alloway, L.
Colwyn, L.
Geddes, L.
Glentoran, L.
Hunt of Wirral, L.
McColl of Dulwich, L.
Monson, L.
Naseby, L. [Teller]
Noakes, B.
Northesk, E.
Pearson of Rannoch, L.
Skelmersdale, L. [Teller]
Taylor of Warwick, L.
Acton, L.
Addington, L.
Ahmed, L.
Andrews, B.
Archer of Sandwell, L.
Attlee, E.
Bach, L.
Barker, B.
Blackstone, B.
Blackwell, L.
Bradshaw, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clement-Jones, L. [Teller]
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Dubs, L.
Elder, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L. [Teller]
Filkin, L.
Finlay of Llandaff, B.
Gale, B.
Geraint, L.
Gilbert, L.
Goldsmith, L.
Goodhart, L.
Greaves, L.
Greengross, B.
Grenfell, L.
Hamwee, B.
Harris of Richmond, B.
Hayhoe, L.
Hayman, B.
Hollis of Heigham, B.
Hooson, L.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Kennedy of The Shaws, B.
Lea of Crondall, L.
Listowel, E.
Macdonald of Tradeston, L.
McFarlane of Llandaff, B.
McIntosh of Haringey, L.
Maclennan of Rogart, L.
McNally, L.
Mar and Kellie, E.
Miller of Chilthorne Domer, B.
Mitchell, L.
Morris of Manchester, L.
Newby, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
Peston, L.
Pitkeathley, B.
Puttnam, L.
Ramsay of Cartvale, B.
Razzall, L.
Rea, L.
Redesdale, L.
Rennard, L.
Richard, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Roper, L.
Russell, E.
Sharp of Guildford, B.
Simon, V.
Strabolgi, L.
Symons of Vernham Dean, B.
Temple-Morris, L.
Thornton, B.
Tope, L.
Turner of Camden, B.
Uddin, B.
Walker of Doncaster, L.
Walmsley, B.
Watson of Richmond, L.
Weatherill, L.
Wedderburn of Charlton, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Resolved in the negative, and amendment disagreed to accordingly.
1.59 p.m.
Lord Monson moved Amendment No. 11:
- Page 11, line 27, at end insert—
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