Standing Committee A
Thursday 8 February 2001
[Mrs. Irene Adams in the Chair]
Mr. Ian Bruce (South Dorset): On a point of order, Mrs. Adams. I suggested earlier that there was a slight problem with the Hansard report, which had arrived rather late. For the record, I have asked Hansard to amend something. The report reads:
``Here is a branded packet of cigarettes''.[Official Report, Standing Committee A, 6 February 2001; c. 154.]
I did not have a packet of branded cigarettes. I had a bottle of water in my hand and was saying that its brand name was also the brand of a certain cigarette. Since that is likely to become illegal, we need to see the regulations.
The Chair: That is not a point of order, but I am sure that it is very helpful.
Question proposed [this day], That the clause stand part of the Bill.
Question again proposed.
Mr. Peter Luff (Mid-Worcestershire): We were talking about vacuums, as far as I recall, when we were interrupted at 11.25 am, and we were exploring the important question of the penalties that exist to ensure that the Act is complied with and is not simply treated as an operational cost.
I am sure the reputable manufacturersthe British American Tobaccos, Imperial Tobaccos, Philip Morris's and so onwill not wish to appear before the courts of England and Wales, or anywhere else, to be charged with breaking the law blatantly. My concern is that, as they will no longer be able to advertise their products, it will be easier for other brands to start taking market share away from them.
I do not know whether the figures that I have are correct; they come from the Tobacco Manufacturers Association, which, in a brief that I believe every member of the Committee has received, said that 7 per cent. of smokers switch brands each year. Some 26 per cent. smoke more than one brand, so the market for brand switches is massivearound £3 billion, including advertising.. If new, less scrupulous, manufacturers appear in the market place, there will be a huge opportunity for them. If they are prepared to break the law and run the risk of the inadequate penalties in clause 15, we will have a real problem.
In its brief, the TMA says, and I think that it has a point:
``The UK tobacco market has traditionally been dominated by premium priced brands.''
``Advertising enables those premium brands to maintain consumer loyalty. In the absence of advertising, competition can only be in respect of distribution and price.''
It is wrong on that point. Cheaper companies may be prepared to flout the law if they feel that the price is high enough.
I invite the Minister to reflect on whether the catch-all penalty for the High street tobacconist might not prove tempting to reasonably large to medium-size businesses, which may be tempted into the UK market to attract brand share away from the established brands, which have traditionally maintained their position by advertising, and secured a higher price in the process. I am anxious that we should explore that point positively, and hope that the Minister will be able to reassure me.
Mr. Ian Bruce: Has my hon. Friend had a chance, as I have over lunchtime, to read the Food Standards Act 1999, which, we were told, complies almost word for word with the Tobacco Advertising and Promotion Bill? If so, has he noticed that the wording is in fact completely different and the two documents act in completely different ways? It is strange that we are rushing through the penalties in clause 15, having been told by a Minister of the Crown that we are simply following the normal mode, when that is not in fact the case.
Mr. Luff: My hon. Friend makes a very important point. I have not read the Act, but I am aware that there are different provisions in different Acts. It is rare for Acts to match perfectly. I am not in the slightest surprised to hear that there are differences between that Act and the Bill.
I should not exactly declare an interest before I sit down, but should say that many years ago, in an incarnation of which I am not especially proud, I advised a tobacco company. I know that those companies are capable of being very ingenious in seeking to exploit any loopholes. I can see all kinds of opportunities for major companies to operate some subsidiary that might decide to breach the law in some way.
The Government must be clear that the penalties are adequate. The hon. Member for North Devon (Mr. Harvey) made his point powerfully in his short speech, and I look forward to some reassurance from the Minister.
The Minister for Public Health (Yvette Cooper): The clause sets out the penalties for the offences in the Act. The penalty for obstructing an enforcement officer is a fine of up to £1,000. Other offences would attract penalties of up to £5,000 and/or imprisonment for up to three months.
Hon. Members have made two different kinds of point. First, it has been suggested that that penalty would be too harsh for the small shopkeeper or for someone in difficult circumstances. The clause sets out maximum penalties, and the courts will, rightly, take account of individual circumstances. It would be a mistake to try to set out in the Bill what those detailed different circumstances may be. It is precisely the job of the court to take account of the individual situations of particular people who are being prosecuted for offences under the Act. That is the right approach.
I have also heard hon. Members' concern that the penalties may be too light for certain perpetrators, companies and individuals who choose to flout the law many times. I am sympathetic to the point that major tobacco companies are wealthy institutions with a huge amount of money. It is important to include the prospect of three months in prison in the Bill, and that will be an important deterrent. It is also important that this Bill should be in line with other aspects of the criminal law, but I will consider the points that have been made about the nature of the offences.
Mr. Luff: One way forward might be a different penalty for a second or subsequent offence?
Yvette Cooper: I am sure that the Bill needs a means of dealing with repeat or subsequent offences or abuses the law. I want to ensure that that is the case.
Mr. Ian Bruce: On a similar but slightly different point, my lady wife is a magistrate, and she has kindly shown me how magistrates are advised by the Lord Chancellor's Department about whether they should impose a maximum sentence for differing offences. Am I right to say that it is unusual for a magistrates court to jail anyone for a first offence, because of the guidelines that they receive from the Lord Chancellor's Department? If that is so, and that is known to someone who is chancing their arm, that person may think, ``Well, on my first offence and second offence, there is no chance of my getting three months, and my fines for the first and second offences are likely to be graduated fines.''
Yvette Cooper: Clearly, the courts would regard a matter as serious if it was a second or a repeat offence. It would not be surprising if the courts did that. I have made clear my intention to consider the points that have been made and to ensure that the Bill is in line with other aspects of the criminal law. We are doing everything within reason to provide the proper deterrents.
Question put and agreed to.
Clause 15 ordered to stand part of the Bill.
Offences by bodies corporate and scottish partnerships
The Chairman: The question is that the clause stand part of the Bill.
Hon. Members: Aye.
Mrs. Caroline Spelman (Meriden): We have spent quite a bit of the break between the sittings of the Committee having a closer look at the Food Standards Act 1999.
Mr. Luff: Does my hon. Friend find it surprising, given that the Opposition are seeking to toughen up the Bill, that Labour members are so anxious to get it through that they are calling Divisions before we have even discussed the clause?
Mrs. Spelman: I am afraid I have turned a deaf ear to what is going on. It has been attempted before. Things must be given their proper time and it would be a dereliction of duty if we did not stop to look at what has been placed in the clause.
The more I have read the misleading assurance given in the explanatory notes that the enforcement provisions mirror what is in the Food Standards Act 1999, the more disquieted I have become. There are many differences between the two pieces of legislation, and I wish that I had not taken on trust what the explanatory notes said on the parallels between them.
Clause 16 deals with the officers of a body corporate. I seek an assurance from the Minister that an officer of a body corporate who is unaware of a tobacco advertisement displayed or produced by an employee of his company will not be liable to prosecution for the neglect referred to in clause 16(1)(b). It would be unfair if the production or display of a tobacco advertisement by an employee of a company made the managing director of that company guilty of an offence, even though he was unaware of the advertisement. If I read the Bill correctly, there is no defence for officers of bodies corporate who did not know, or had no reason to suspect, that the purpose of the advertisement was to promote tobacco, that its effect would be to promote a tobacco product, or that the advertisement would be published in the UK. Such a defence exists for those guilty of an offence under clauses 2 or 3.
Will the Minister make clear whether I have misread the Bill on that point? A number of exceptions are given. It is the style of the Bill to list the offences and then the defences, but there is not always an exact parallel between them. We have already discussed one amendment that would ensure that groups are not unwittingly left out of the series of defences that are proffered. I seek assurances for the officers of bodies corporate.