Clause 1 - Prohibition of tobacco advertising
Tobacco Advertising and Promotion Bill

Amendment proposed [this day]: No. 3, in page 1, line 22, leave out from `form' to end of line 23 and insert

`or participating in doing so'.—[Mrs. Spelman.]

Question again proposed, That the amendment be made.

2:30 pm
Photo of Mr Humfrey Malins

Mr Humfrey Malins (Woking, Conservative)

I remind the Committee that with this we are considering the following: Amendment No. 20, in page 1, line 24, leave out subsections (5) and (6).

Government amendment No. 16.

Amendment No. 4, in page 1, line 25, leave out `carry on business' and insert

`transact business with a person living'.

Government amendments Nos. 18 and 19.

Amendment No. 8, in Clause 5, page 3, line 7, leave out `carry on business' and insert

`transact business with persons living'.

Photo of Mr Ian Bruce

Mr Ian Bruce (South Dorset, Conservative)

The importance of the principles behind the amendments has been highlighted. After our truncated discussions on the Bill to find the loopholes, the Government have now tabled amendments to improve it. We heard in business questions that, after next Thursday when the Committee has finished with the Bill, it will be discussed on Report on the following Tuesday, after which it will receive its Third Reading. [Hon. Members: ``Hear, hear!''] While colleagues may be glad that progress is being made, I urge them to consider whether the Bill is adequate and whether it will succeed in reducing the consumption of tobacco.

Given that we have such limited time, I shall not speak for long on the amendments. I want simply to point out to the Government why they will have the greatest difficulty in ensuring, by legislation rather than voluntary agreement, that the Bill has the desired effect. The best way to deal with the problem is to return to basic principles.

This country has a statute on official secrets. The gentleman who wanted to produce his memoirs about his time in MI6 fell foul of laws made in this House forbidding him to publish. He therefore published his memoirs on the internet overseas. Publishers in the United Kingdom said to the courts, ``Well, they are on the internet. They are freely available for people to read. Therefore, the nonsense that the Westminster Parliament has produced cannot stand''. That was found to be the case with the courts. That is a direct parallel with what is happening in Committee.

Photo of Mr Ian Bruce

Mr Ian Bruce (South Dorset, Conservative)

This is a complicated matter, so I will finish my argument, but I will happily give way soon.

Why did the Government not stay silent on the internet issue and take the view that, whatever is legal in the real world is legal in the internet world and whatever is illegal in the real world is illegal in the internet world? Instead, they relied on what might happen when people try to promote and use the law that they are trying to introduce. By giving the internet specific exclusions, they have left a loophole—a great portal—in the Bill, whereby all such regulations will be challenged. They will be challenged in the international courts, because that is what happened with the directive from the European Commission.

Photo of Mr Kevin Barron

Mr Kevin Barron (Rother Valley, Labour)

If something on the world wide web relates to publications abroad, is the hon. Gentleman saying that nothing can be done about it? If so, is he not arguing that hard-core pornography and other such matters should be available without any restrictions?

Photo of Mr Ian Bruce

Mr Ian Bruce (South Dorset, Conservative)

Indeed, I am not. I have done a lot of work on pornography. All Governments—except that of the United States, which has other laws that could be used—have signed up to the convention on the child, under which they have to protect children from the effects of pornography and from being exploited by it. Co-operation on the internet on voluntary agreements has led to a flood of prosecutions for pornography in UK courts, because we found ways to tie pornographers into the jurisdiction. We have done so without specific regulations. The Bill would exclude certain people from operating over the internet.

I described to silicon.com, the internet body, what now makes any country except the United Kingdom the best place to do e-business for tobacco and tobacco products. The Government have decided to go against their policy of making the United Kingdom the best place to do e-business, and to go by a voluntary agreement to stop tobacco advertising on computers, which is part of the voluntary code. They have said to the tobacco industry, ``It's simple. If you want to promote your products, you have multimillions to spend on advertising and promotion and clause 2 tells you how to do it.'' As long as there is a separation between the people who advertise and those who manufacture the cigarettes and produce international brands—not in factories in the United Kingdom, creating jobs, but in other countries' factories—they can use e-mail. If the cigarettes were branded only for the United Kingdom, they would probably fall foul of clause 2. E-mail is not mentioned in the Bill: internet service providers are included, but e-mail is not necessarily sent via that route.

These people could send as much information as possible, or even set up a website. One can envisage an internet service provider who wants to get plenty of advertising—that is how ISPs make their money, not by taking it from people—setting up in almost any other country and saying, to anyone from 12-year-olds to 85-year-olds, ``We will give you free access and pay for your telephone calls to our website. The first thing you will see is the promotion of lots of nice cigarettes and cigarette products.''

Why would someone want to do that? If they are promoting specific brands and a distributor in the United Kingdom says, ``Everyone is asking for those brands'', there is nothing in the Bill to stop the distributor from buying cigarettes that have been advertised internationally on websites that are outside UK jurisdiction and importing and selling them on the back of the advertising.

I am not advocating that they should do that. Under the present voluntary code, they have said that they will not do so. We have not seen that sort of marketing. The Government must understand the unintentional consequences of their amendments: they are making certain that under no circumstances will anyone who behaves as I have described be committing an offence in the United Kingdom.

There are ways to get round the problem, but the correct one is to look again at the voluntary code. There may be a requirement to ban billboards or advertising in UK magazines. The Government must specify what is being done and then agree with the tobacco manufacturers a code of conduct. The tobacco industry will want something out of it. At the moment, I suspect that they will say to themselves, ``We've seen the Bill and we were worried, but we have found a route round it.'' The route has been provided in clauses 5 and 6, which are not altered by the Government amendments.

The other issue relates to the Department of Trade and Industry. We sign up to treaties—whether under the auspices of the World Trade Organisation, the European Union or other free trade areas—which state that it is illegal to differentiate in competition terms between a company based in the United Kingdom and one based overseas. If I were a UK tobacco manufacturer who could not sell my tobacco because someone was promoting imported tobacco, I suspect that the first thing that I would do was to take the matter to the High Court and say that the Bill was ultra vires on all the treaties that we have signed.

The Bill will rapidly come into disrepute, and the Government will not have time, as they will be out of office by May—

Photo of Mr Ernie Ross

Mr Ernie Ross (Dundee West, Labour)

What is the hon. Gentleman worried about?

Photo of Mr Ian Bruce

Mr Ian Bruce (South Dorset, Conservative)

The Conservative Government will have to sort out the mess. I am here now—this is my last offer, as they say—to help this Government sort out the mess, but clearly they are not going to do so.

We have so little time to consider the Bill that I shall sit down. I hope that the Minister will understand that I want to advise and help the Government. Even if they continue down the legal route, they need a much better Bill and much better amendments.

Photo of Mrs Caroline Spelman

Mrs Caroline Spelman (Meriden, Conservative)

The Minister spoke to the amendments and was scrutinised by my hon. Friend the Member for South Dorset (Mr. Bruce), who is much more knowledgeable about the matter than I am. I am not 100 per cent. confident that the Government know what they are doing in their amendments and I will not accept them lying down. The amendments were brought to the attention of the Committee at relatively short notice. I have not had enough time to consult properly service providers and those who provide the means of electronic transmission to discuss with them how amendment No. 19, in particular, will affect them.

Photo of Mr Kevin Barron

Mr Kevin Barron (Rother Valley, Labour)

The hon. Lady must have received a copy of a letter that I received last week from the internet service providers. They are worried about clause 2(6), which one of the amendments removes and amendment No. 19 replaces, as they requested in their letter. The Government seem to have done exactly what the internet service providers wanted about the matter.

Photo of Mrs Caroline Spelman

Mrs Caroline Spelman (Meriden, Conservative)

That intervention was not helpful, because that was only one part of the letter.

Photo of Mrs Caroline Spelman

Mrs Caroline Spelman (Meriden, Conservative)

Yes. Perhaps the hon. Gentleman would like to intervene again.

Photo of Mr Kevin Barron

Mr Kevin Barron (Rother Valley, Labour)

What I said may not have been helpful to the hon. Lady, but it is true.

Photo of Mrs Caroline Spelman

Mrs Caroline Spelman (Meriden, Conservative)

Yes, but it was not helpful because several points were made in that letter, which I too received. The Government have not met the internet service providers' desire on that point. The third paragraph of the letter that we received from the London Internet Exchange and the Internet Service Providers Association states:

``In order for the ISP Industry to co-operate with the aim of the bill to remove illegal material from UK websites, a universal procedure for notification of such content''—

the next four words are in bold—

``by a designated authority needs to be established as a priority.''

Nothing in the Government amendment offers that. The hon. Gentleman's selective quotation of the letter does not fairly reflect the ISPs' request.

We had an interesting discussion about the role of such an authority, and the Minister mentioned the possibility—

2:45 pm
Photo of Mrs Caroline Spelman

Mrs Caroline Spelman (Meriden, Conservative)

I should like to continue my argument about the registered authority. As I am sure the hon. Gentleman will agree, the Minister spoke glowingly about a voluntary organisation. It is slightly ironic that the Government oppose a voluntary code to govern the tobacco industry, but favour a voluntary organisation to police and monitor what goes on the internet. That seems to show a lack of consistency. Her point was good—we recognise that such a registered authority for internet service provision would be useful, and not merely for tobacco advertising. My concern about Government amendment No. 19 is that it might remove one of the incentives for such a voluntary organisation or authority to exist. If, as the amendment states, the stronger defence that will be permitted to a service provider will enable him to say, ``Oh, I was unaware,'' or, ``I was not able to prevent it'', it is not beyond the wit of man to realise that that may remove the incentive for him to try to make himself aware. It is a relatively easy way of defending oneself.

That makes it all the more necessary to consider again what internet service providers are calling for—the establishment of a designated authority as a priority. I do not think that the Committee has got this right. It is important to flag up to those who will scrutinise the Bill in another place—I hope that they will have a little more time to consider the issue—that we are not content on this point. For that reason, I want to press one of my amendments to a vote. I wish to flag up to those who will be affected by the clause and the Government amendments to it that we are uncomfortable with assurances that it will all work out perfectly. I have been referred to clause 7, but I am not satisfied with that, as it deals, by definition, with new developments in technology. The truth is that we do not have an adequate solution for current technology.

The Minister, of course, has the opportunity to come back with an improved amendment on Report, which, after reflection, she might want to do. However, to flag up our unease and the feeling that we have not adequately addressed the concerns of internet service providers and those affected, I should like to press amendment No. 3 to a vote.

Photo of Ms Yvette Cooper

Ms Yvette Cooper (Parliamentary Secretary (Public Health), Department of Health; Pontefract and Castleford, Labour)

Government amendment No. 19 extends the defences for others—beyond ISPs—who distribute by electronic means. I hope that hon. Members who are concerned about electronic distributors will welcome that provision, as it also allows such people the defence that they were unaware. I hope that I have given assurances that we are keen to work with ISPs to develop a framework that removes the burden of enforcement from them and allows enforcement to be carried out sensibly. I mentioned the Internet Watch Foundation earlier, which may not be the appropriate body; there may be another mechanism. Experience has shown that it is not necessary to set up a mechanism in the Bill. I shall reflect on the matter further, but in all our discussions so far we have concluded that it should be possible to deal with the problem without making provision in the Bill. Such a provision might be more burdensome than flexible arrangements that we can discuss directly with ISPs.

The hon. Member for South Dorset made two criticisms. First, he criticised the Bill because it did not have extra-territorial jurisdiction, but that is a fact of all the legislation that we pass. The Government are keen to work with our European partners and other countries across the world on tobacco control, but we must be realistic about what we can achieve. We can certainly make immense progress, through this Bill, on restricting tobacco advertising, in particular, advertising that reaches children.

Secondly, the hon. Member for South Dorset said that tobacco companies would do everything that they could to get round it. Tell me about it! Tobacco companies have consistently got around previous voluntary agreements, and no one should be surprised if they try to find ways round the provisions in the Bill. By making the Bill as comprehensive as possible, and providing specific defences, we aim to restrict this lucrative and effective advertising that promotes a deadly product.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 9.

Question accordingly negatived.

Amendment made: No. 16, in page 2, line 1, leave out subsection (6).—[Yvette Cooper.]

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Mrs Caroline Spelman

Mrs Caroline Spelman (Meriden, Conservative)

We have had a long discussion about clause 2, but only about one important aspect of it—internet service provision. To keep within the limits of your patience, Mr. Malins, we should concentrate on some of the other aspects of the clause in the stand part debate.

Printers and distributors of physical material have raised some real concerns and it is important to articulate them. I fully accept that some of those concerns may be dealt with in subsequent clauses. It is difficult to proceed in this way because to be understood correctly, clause 2 should be read with the following four clauses. I place on record a concern that was raised with me by the Newspaper Society, whose members will be directly affected—[Interruption.]

Photo of Mrs Caroline Spelman

Mrs Caroline Spelman (Meriden, Conservative)

I think that the hon. Member for Rother Valley (Mr. Barron) may have received the same letter as I did—we could compare notes. However, members of the Newspaper Society raised an important issue on behalf of publishers of the local and regional press, examining how the Bill might affect them. They are at pains to point out that they do not earn significant revenue from the advertising of tobacco products. Even if they are not directly affected, they could find themselves culpable of offences described in the Bill. They are concerned that because of the failure to define what an advertisement is, which we failed to persuade the Government to do when we debated clause 1, they are at risk when writing about tobacco. Can we make the position absolutely clear when we debate the clause?

Such people certainly espouse the fundamental principle of freedom of speech. That is what journalists would say was the primary motivation for all their writing. They feel that they should be free to discuss the merits of tobacco products, but they are concerned that in writing about products they will be guilty of an offence of advertising tobacco. It would be extremely helpful to all those who might find themselves in that position if the Minister made that explicit. It is not simply that journalists might write about tobacco in an esoteric sense; they might make judgments about the quality of different brands of tobacco. That is the kind of thing that happens in newspapers at present, but people wonder now whether in future such judgments will get them into hot water.

The Minister will probably accept that it is not as simple as it looks. If one reviews a range of Havana cigars of different ranges and types, for example, one may end up rating the different products, as journalists very often do, and that comes very close to stating a preference and to a form of promotion.

Photo of Mr Ian Bruce

Mr Ian Bruce (South Dorset, Conservative)

May I give an example of a possible news story? We know that the European Union spends about £1 billion a year subsidising tobacco, most of which goes up in one big puff because it is destroyed rather than smoked by individuals. The purpose of that story might well be to suggest that the low quality of the tobacco is the reason why it is constantly being destroyed, which gives the impression that people should buy their tobacco from America. Journalists may find themselves inadvertently promoting that tobacco rather than—[Interruption.]

Photo of Mr Humfrey Malins

Mr Humfrey Malins (Woking, Conservative)

Order. We are becoming a little rowdy and sedentary interventions are becoming too frequent.

Photo of Mr Ian Bruce

Mr Ian Bruce (South Dorset, Conservative)

I have completed my point, Mr. Malins.

Photo of Mrs Caroline Spelman

Mrs Caroline Spelman (Meriden, Conservative)

That was a helpful illustration of my point. On the face of it, what I am trying to point out may look quite simple, but when one stops to think about it, it is more difficult and complex than we might realise. In debating this aspect of the clause, we have a duty to make the position perfectly clear for the sake of those who otherwise might make a mistake. I know all the defences about ``could not possibly have known'' or ``prove that they did not know'', but in the case of editorial comment, it becomes quite difficult to judge from the outside.

My main point was to focus on the difficulties that the clause may present to the producers of physical printed matter and the dilemma that we have left for them by our inability to persuade the Government to define an advertisement. I hope that the Minister may be able to give some clarity in her response.

Photo of Ms Yvette Cooper

Ms Yvette Cooper (Parliamentary Secretary (Public Health), Department of Health; Pontefract and Castleford, Labour)

The clause sets out the offences in a comprehensive way. Anyone involved in the publication, printing, devising or distribution of a tobacco advertisement could be guilty of an offence. Later clauses set out the defences against that comprehensive ban. It is important to point out that clause 2 covers only activity undertaken in the course of a business. It does not cover individuals in a private capacity.

The hon. Member for Meriden (Mrs. Spelman) referred to journalists. I am happy to clarify the matter. It was referred to on Second Reading and I believe that I referred to it earlier in the Committee, but I am happy to clarify it again. We do not intend journalists writing about tobacco products in news stories and comment pieces to be covered by the Bill. If they write a news story, that is not an advertisement. If they write an opinion piece, that is not an advertisement. However, if a journalist or a newspaper is paid by a tobacco company to promote a tobacco product, the sponsorship provisions later in the Bill will come into play. That is right. I am sure that people consider that journalists who are paid to promote tobacco products should be covered by the Bill. However, the Bill is not intended to cover issues that involve freedom of speech, news stories, journalistic discussion or artistic representations such as people smoking on stage or in films, unless they amount to sponsorship, which along with product placement, is covered by the Bill.

3:00 pm
Photo of Mr Ian Bruce

Mr Ian Bruce (South Dorset, Conservative)

I am sure that the Minister is trying to be helpful to the Committee, but one of the vessels in the Whitbread round-the-world race was called Silk Cut. I presume that, after the Bill is enacted, the vessel would be sponsored in a different country, although its logos would still be shown on television. Would the fact that a BBC journalist commented favourably on that vessel's progress in a race be covered by the Bill? Can the sponsors make sure that they sponsor another country's vessel instead of our own and succeed in their product placement in that way?

Photo of Ms Yvette Cooper

Ms Yvette Cooper (Parliamentary Secretary (Public Health), Department of Health; Pontefract and Castleford, Labour)

Journalistic reporting should not be affected by the Bill, but the sponsorship might be. If it comes under the territorial jurisdiction, the sponsorship will be covered. We shall be discussing sponsorship provisions later in our proceedings. Journalistic reporting, as long as the journalists are not being sponsored by tobacco companies, will not be affected by the Bill.

Photo of Mr Peter Luff

Mr Peter Luff (Mid Worcestershire, Conservative)

I do not know whether now is an appropriate time to test a point about product placement. In Hollywood, cigarettes are often placed in films deliberately. Is that covered by the Bill? Will it be possible to show in the United Kingdom films made in the United States that show a person smoking who is a role model for the young?

Photo of Ms Yvette Cooper

Ms Yvette Cooper (Parliamentary Secretary (Public Health), Department of Health; Pontefract and Castleford, Labour)

The Bill covers distribution of tobacco advertisements in this country. We shall discuss this complex area in detail when we debate the sponsorship part of the Bill. We will then have the opportunity to spell out the matter in considerable detail. The clause deals with what happens in the course of a business; it is not intended to prevent members of the public, journalists, writers or others from talking about tobacco products.

Question put and agreed to.

Clause 2, as amended, ordered to stand part of the Bill.