Tobacco Advertising and Promotion Bill

– in the House of Lords at 3:14 pm on 28th March 2001.

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Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 3:14 pm, 28th March 2001

My Lords, I beg to move that this Bill be now read a second time.

Smoking is the greatest single cause of preventable illness and premature death in the United Kingdom. For that reason the Government are introducing a Bill to ban tobacco advertising. Smoking kills 120,000 people in this country every year. A 35 year-old man who has never smoked can expect to live, on average, seven years longer than a contemporary who smokes cigarettes. Smoking costs the National Health Service an estimated £1.5 billion each year in England alone. As the Royal College of Physicians said in its report last year, Nicotine Addiction in Britain,

"Smoking is now recognised as the single largest avoidable cause of premature death and disability in Britain and in most other economically developed countries and probably the greatest avoidable threat to public health world-wide".

Our strategy aims to reduce the prevalence of smoking in Britain. We have put in place a wide range of measures that will help to achieve that. We are developing the most comprehensive smoking cessation programme in the world with zyban and, very soon, nicotine replacement therapy on prescription, and the development of specialist cessation support. We are also investing heavily in a tobacco education campaign.

The Government have a comprehensive programme to support smokers who wish to quit. So, why do we also need to legislate on tobacco advertising? There is clear evidence which suggests a link between a ban on advertising and reduced levels of tobacco consumption. There is a link between the promotion of cigarettes and the decisions of young people to start smoking. Any ban on tobacco advertising needs to be comprehensive to be effective.

An important piece of work is the Smee report, which was produced by the Department of Health's Chief Economic Adviser in 1992 at the request of the then government. Smee reviewed 19 studies, mainly from the UK and the United States, which for the most part analysed the effect of year- to-year fluctuations in advertising expenditure within those countries. While not all those studies found any statistically significant effect, Smee was able to conclude that,

"The preponderance of positive results does indicate that advertising has a positive effect on consumption".

Professor Smee then went on to look at countries which had introduced comprehensive bans on tobacco advertising. The most significant of those were Norway and Finland where bans had been in place for over a decade at the time of the report. Smee concluded that,

"In each case the banning of advertising was followed by a fall in smoking on a scale which cannot reasonably be attributed to other factors".

Other recent work came to similar conclusions. The 1999 report from the World Bank entitled, Curbing the Epidemic, stated that,

"policymakers who were interested in controlling tobacco need to know whether cigarette advertising and promotion affect consumption. The answer is that they almost certainly do, although the data is not straightforward. The key conclusion is that bans on advertising and promotion prove effective, but only if they are comprehensive, covering all media and all uses of brand names and logos".

The World Bank suggests that implementation of EU Directive 98/43/EC, upon which the Bill is based, could have reduced cigarette consumption within the European Union by nearly 7 per cent.

Other recent evidence comes from American researchers, Saffer and Chaloupka, who studied data from 22 countries. They concluded:

"tobacco advertising increases tobacco consumption. The empirical research also shows that comprehensive advertising bans can reduce tobacco consumption, but that a limited set of advertising bans will have little or no effect. A limited set of advertising bans will not reduce the total level of advertising expenditure but will simply result in substitution to the remaining non-banned media. When more of the remaining media are eliminated, the options for substitution are also eliminated".

I turn to the effect of tobacco advertising on children. University of Manchester researchers in the mid-1990s found that,

"Awareness of certain brands of cigarette was linked to an increased risk of onset of smoking in 11-13 year olds, especially girls. Awareness of the most advertised brands was a strong predictor of smoking, while awareness of other brands, probably known from other sources, was a less likely predictor. Children appear to take in the messages of cigarette advertising and interpret them as generic to smoking rather than brand specific".

A study of adolescents in California between 1993 and 1996 found,

"clear evidence that tobacco industry advertising and promotional activities can influence non susceptible never smokers to start the process of becoming addicted to cigarettes".

That is clear evidence of a link between tobacco consumption and advertising. Public health will benefit from a comprehensive ban as proposed in the Bill.

Quantification of the effects of such a ban is not an exact science, but I believe that we are about right in estimating that the provisions of the Tobacco Advertising and Promotion Bill, if enacted, could lead to a 2.5 per cent reduction in smoking prevalence and in the longer term a similar fall in tobacco-related deaths, a saving of some 3,000 lives a year.

This is a comprehensive Bill. It will ban, with limited exceptions, tobacco advertising in the press, on billboards and by electronic means such as faxes and through the Internet. It will ban mailshots advertising tobacco products, except where the customer has expressly requested information. It will ban free distributions of tobacco products and coupon schemes and it will bring to an end sponsorship agreements which promote tobacco products. It will give the Government power to regulate the advertising of tobacco products in places where they are sold and to control brandsharing which is the use of non-tobacco products with a similar name or other features to those of tobacco products.

With the support of the devolved administrations and agreement from the Scottish Parliament, this Bill covers the whole of the United Kingdom, although it provides that certain regulation-making powers shall be exercised by Scottish Ministers for Scotland.

I should mention that the regulation-making powers in the Bill have been considered by your Lordships' Select Committee on Delegated Powers and Deregulation and the committee has not felt it necessary to draw the attention of the House to any of the Bill's provisions.

Clause 1 of the Bill defines a tobacco advertisement as an advertisement whose purpose or effect is to promote a tobacco product. It also defines a tobacco product as a product consisting partly or wholly of tobacco and intended to be smoked, sniffed, sucked or chewed. We do not intend to stop general comment on smoking, but only promotion of tobacco products. If a journalist writes about tobacco products in news stories and comment pieces, he will not be committing an offence under the Bill. A news story is not an advertisement, neither is it an opinion piece.

Furthermore, the Bill will prohibit advertising which promotes tobacco products not the advertising of businesses. It is clear from the wording that specialist tobacconists and others will be allowed to provide information and listings in publications such as Yellow Pages, but not to use this to promote tobacco products.

Clause 2 of the Bill makes it an offence to publish, print, devise or distribute a tobacco advertisement in the UK or to cause such an advertisement to be published, printed, devised or distributed. I should stress that an offence under the Bill can be committed only where the activity takes place in the course of a business. The Bill will not stop the public at large from commenting on tobacco products or recommending them to their friends and colleagues.

Clause 3 makes it clear that where a tobacco advertisement appears in a newspaper or periodical, anyone in the chain of publication or distribution is potentially guilty of an offence, from the proprietor or editor of the newspaper through to the newsagent who sells it to the public.

Clause 4 sets out the exceptions to the advertising ban. Clause 4(1)(a) makes clear that communications between people in the tobacco trade which do not reach the wider public are not caught. Clause 4(1)(b) excludes from the Bill any material sent in response to a request for information. However, that does not permit tobacco advertisements to be sent to all customers on a database; each customer must individually request that information on each and every occasion.

Clause 4(1)(c) exempts from the general ban publications whose principal market is not the United Kingdom, while Clause 4(1)(d) provides an exclusion for the in-flight magazines on non-United Kingdom airlines.

Clause 4(2) gives Ministers powers to make regulations regarding tobacco advertisements in shops and other places where tobacco products are offered for sale.

Clause 5 provides various defences. The principle is that people should be liable only where they either know or should have known that they are involved in the publication or distribution of a tobacco advertisement. So it would not be necessary for a newsagent to check through all his publications to see whether they contain a tobacco advertisement.

Clause 5(5) and (6) provide for the position of Internet service providers and other intermediaries in electronic transactions. Such intermediaries are handling a vast amount of information. The Bill provides that such parties will not be liable when they are unaware that they are handling a tobacco advertisement. This is a stronger defence than for intermediaries in the paper chain and is necessitated by the nature of electronic media. We believe that this provides the right measure of protection for the e-commerce sector and that it is compliant with the e-commerce directive.

Clause 6 makes arrangements for specialist tobacconists' shops. There are some 350 such shops in the country, many of them long-established, small family businesses. This clause will allow such shops to advertise cigars and pipe tobacco within their shops and on their shop fronts. This exemption will not apply to cigarettes and hand-rolling tobacco and all shops will have to comply with regulations made under Clause 4(2) in respect of these products.

Clause 7 gives the Secretary of State powers to amend any provisions if it becomes necessary to do so in consequence of any developments in technology concerning publication or distribution by electronic means. We do not propose to treat advertising by electronic means either less or more favourably than other forms of advertising. However, the pace of technological change in this area makes it very difficult to predict what new means of publishing or distributing may emerge and we believe it is right to cater for potential developments in this way.

The Delegated Powers and Deregulation Committee has not objected to the clause either. I would stress that we have no immediate plans to make any order under this clause. If and when we feel it may be necessary to do so, the exercise of this power will be subject to parliamentary oversight by the affirmative resolution procedure.

Clause 8 gives Ministers the power to make regulations concerning the way tobacco products are displayed in places where they are offered for sale. We do not currently intend to exercise this power and the Government do not intend to change the broad status quo on the display of tobacco products for sale. We have no intention of unnecessarily increasing the burdens on small businesses, nor do we expect to change the way in which tobacco products are commonly displayed on gantries in corner shops, supermarkets and other places of sale. However, it is necessary to have a power to prevent future loopholes and abuses which may emerge.

Clause 9 will prevent the free distribution of products and coupons which promote tobacco products. These are potent marketing tools for the tobacco industry. We do not believe it is right to allow the industry to continue to give away a very wide range of non-tobacco products, such as lighters, clothes and sunglasses which clearly promote the continued consumption of tobacco products.

Similarly, we do not believe that it is right that companies should go on running coupon schemes which persuade smokers to continue smoking so they can accumulate enough coupons to claim gifts. If we allow those schemes to continue and new ones to be set up, we will be opening up a large loophole in the advertising ban.

Clause 10 prohibits anything done pursuant to a sponsorship agreement if the purpose or effect of what is done is to promote a tobacco product. I reiterate that tobacco sponsorship will end by October 2006 at the latest and that continuation of existing qualifying contracts will be subject to conditions laid out in regulations. It remains our intention to implement the policy and the timetable on sponsorship that we agreed with our European partners in 1998. Subject to consultation, that means 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 tobacco companies and, secondly, that they reduce the current sponsorship that they receive between 2003 and 2006.

Clause 11 allows us to deal with so-called brand-sharing as part of our comprehensive ban on tobacco advertising. We know that the tobacco industry has in the past sought to evade restrictions on direct advertising by developing a strategy to use their brands on other products. This clause enables the Secretary of State to make regulations concerning the use by non-tobacco products of names, emblems and other features which are the same or similar to those used by tobacco products, or vice versa. Such regulations can apply only where their use is intended to promote a tobacco product, or has the effect of so doing.

Clause 12 makes clear that this Bill does not extend to those areas of broadcasting where existing legislation and codes of practice provide adequate safeguards to prevent tobacco advertising and promotion. This means that the BBC and most commercial television and radio services are outside the scope of the Bill. The Bill applies to those few broadcasting services which are not already regulated.

Clauses 13 to 15 deal with enforcement powers. Trading standards officers will be responsible in the main for enforcing this Bill, although Ministers will have the power to take over or institute proceedings when necessary. In general, we do not expect the enforcement burden to be very great; for example, we expect advertising on posters, billboards and in the press to be removed voluntarily.

Clause 16 deals with penalties. Alleged offences under the provisions of the Bill can be tried either summarily or on indictment. On summary conviction the maximum penalty is a fine not exceeding level 5 on the standard scale (currently £5,000) or six months' imprisonment, or both. A person who is convicted on indictment will be liable to an unlimited fine or a maximum of two years' imprisonment, or both. The option of conviction on indictment opens up the possibility of unlimited fines, which we believe will deter corporate villains. At the other end of the scale, I envisage that first offences by, say, a retailer would normally attract relatively low fines--enough to remind everyone that the law exists and will be enforced.

A comprehensive ban on tobacco advertising is part of the jigsaw that we are putting together to help to reduce the level of smoking in this country and make a dent in the toll of death and ill health caused by tobacco use. Each year 120,000 of our fellow citizens die from smoking-related diseases. That causes heartache and misery for many, many more. The Government are determined to tackle this epidemic. I commend the Bill to the House.

Moved, That the Bill be now read a second time.--(Lord Hunt of Kings Heath.)

Photo of Lord Tebbit Lord Tebbit Conservative 3:32 pm, 28th March 2001

My Lords, I should at once inform the House that on the odd occasion I have accepted some hospitality from the tobacco industry by way of a day's clay-pigeon shooting. It did not improve my shooting and has made no difference whatever to my views on smoking. I do not like smoking. From my experiments--by the way, I have inhaled--it spoils the taste of food, even the next day, and makes curtains smell. My wife does not like it, nor do my dogs. The memory of my days as an airline pilot when occasionally my room was the rendezvous for after-flight drinks remains with me still. I recall the sheer horror of finding next morning under the bed a discarded fag-end in a half-empty glass of beer. It is not a habit which appeals to me.

I cannot convince myself that smoking is good for an individual's physical health, but I acknowledge that sometimes a cigarette may be an antidote to feelings of anxiety or rage. We have only to look back to the role played by cigarettes in the camaraderie of the trenches in the First World War and the songs which still bring those events to mind.

As to this Bill, I am concerned by the scope of Clause 7 in particular. I do not like giving the Secretary of State the right when he thinks fit, in the light of developments which none of us can foresee at the moment, simply to change the legislation by order. I believe that that is a very unhealthy development. I hope that if the Bill survives Committee stage it will emerge with that power, if not removed, at least very sharply curtailed.

My principal objection to the Bill is based on humbug. I am taxed, as we all are, to provide subsidy to the growing of tobacco. Yet here we have a Bill which is designed to prohibit the advertising of a product which we are taxed to grow. As far as I know, at Amsterdam, Nice, Stockholm, or anywhere else, the Prime Minister has not raised this as a serious issue within the European Union. If we are serious about reducing the consumption of tobacco, surely we should also reduce or eliminate the subsidy for its growth. I do not accept that this Government, or their predecessors, have done anything adequate on that front.

There is humbug galore beyond that. Based on the scale of spending, the Government must regard AIDS as an even greater threat to health than smoking. Smoking has never been held responsible for causing a net decrease in the population of any country, but we are told that AIDS may well decimate the populations of a number of sub-Saharan states. What is the Government's policy? The policy is not to discourage the practice of buggery, which is the principal means by which AIDS is spread, but to encourage it. The policy is not to prohibit the advertisement of anal intercourse but to remove the restraints upon education authorities which are so misguided as to publicise the practice--of course in a non-judgmental manner--in our schools.

Photo of Lord Rea Lord Rea Labour

My Lords, perhaps the noble Lord will give way for one moment. The AIDS epidemic in sub-Saharan Africa is spread predominantly by heterosexual intercourse, in association with other sexually transmitted diseases, not homosexual intercourse.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I am grateful to the noble Lord for putting that point of view, which is contradicted by many who have long experience in Africa and know perfectly well that anal intercourse is extensively practised among the heterosexual population as a form of birth control.

Photo of Lord Waddington Lord Waddington Conservative

My Lords, perhaps my noble friend will give way. The noble Lord opposite is partly right. AIDS occurs as a result of anal heterosexual intercourse. It is anal intercourse which the Government have encouraged.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I do not want the debate to be side-tracked by a discussion about those matters. My point in introducing this matter is to support the charge of humbug against the Government. They proceed against smoking, and there are good reasons why. For example, I do not know how many members of the Cabinet smoke. Certainly, when it comes to votes perhaps the Government believe that smokers are now a small minority who can be treated rather harshly.

I recollect that in July 1999 I tabled two Questions for Written Answer. I asked whether it was the Government's view,

"that smoking by fictional characters in popular television soap operas such as Coronation Street and EastEnders is likely to cause young people to smoke".

I received a very robust reply from the noble Baroness, Lady Hayman, of the Department of Health:

"The Government believe that viewers, especially children, should be protected from broadcast material portraying smoking as a glamorous or attractive activity".--[Official Report, 5/7/99; col. WA 71.]

Note the words "should be protected".

Slightly mischievously, I asked a similar Question about the Government's view as to whether,

"acts of adultery, fornication, sex between juveniles, perverted sex, violence within marriage, theft, trespass, or use of drugs by fictional characters in [such] popular television soap operas ... are likely to cause young people to emulate such behaviour".--[Official Report, 22/7/99; col. WA 128.]

I believe that that Question was answered by the Home Office through the noble Lord, Lord McIntosh of Haringey. I seek not to criticise him; I think he is one of the nicest and most hard-working Ministers in the Government and is essentially called on to answer anything which is awkward. But his answer was rather different. He said:

"Successive governments have acknowledged the sensitivity of broadcast output and its possible adverse effect on young people ... The Government believe that, in general, the current arrangements are working well".--[Official Report, 22/7/99; col. WA 128.]

In other words, there is a difference in standards: tobacco is the ultimate sin, smoking is awful and the Government think that something should be done about it; but, in other areas, "Oh, well, the arrangements are working pretty well, aren't they?". That is another part of the charge which I make of humbug.

I have offered some explanation for the difference in attitudes towards the cause of smoking-related diseases and towards AIDS. However, there is something else that concerns me about the Bill. It is another example of the criminalising of activities of which the Government do not approve. Yes, it can be argued--the Minister argued very effectively--that not only should smokers be protected from themselves, but that taxpayers at large pay a heavy cost, not least in the National Health Service, for the consequences of smoking, although, as I have said, that argument is not carried through into certain other areas.

I am not sure that the Minister gave us an estimate of what the loss of revenue would be as smoking falls by the amounts anticipated, or what the saving is to the public purse in terms of pensions and other costs in respect of those who die of smoking-related diseases perhaps seven years prematurely.

As the noble Lord, Lord Stoddart, hinted before we started the debate, what about alcohol? Is this like the decision to seek to prohibit hunting by hounds--a minority sport--but not fishing? There are too many votes to be lost on that issue, are there not? There would be too many votes lost on the prohibition of advertising of alcohol. So that will not be an issue. The Bill of the noble Lord, Lord Stoddart, will not progress very far. So humbug it is, and that is why I shall not support the Bill.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench 3:42 pm, 28th March 2001

My Lords, some 60 years ago when I became a medical student, I and my colleagues were strongly advised by the then dean of medicine that we should smoke cigarettes in the dissecting room and in physiology demonstrations in order to overcome the effects of the smell. We did so. Indeed, shortly after the war when I served on a hospital ship we could buy 50 Senior Service for 1s 8d. I used to get through a can of 50 cigarettes in two days--25 a day.

At that time none of us recognised the serious health hazards associated with smoking. But, as the results of the seminal results by Sir Richard Doll and Professor Austin Bradford Hill and others became available, it soon became apparent to members of the medical profession that smoking was a serious issue in relation to its effect on health.

At first it seemed that to smoke a pipe was significantly less damaging. So, after a struggle, I gave up my cigarettes and moved on to my pipe, which was my constant companion for some time. Twenty-five years ago I eventually gave it up. This story is not totally unrelated to a comment made by the noble Lord, Lord Tebbit. When I went with my family on a skiing holiday in Switzerland, whenever I wished to smoke my pipe, I was banished outdoors in sub-zero temperatures because the family refused to have the smell of tobacco smoke within the apartment.

So, I managed to give up smoking 25 years ago. For a year or two I had the feeling--if one can misquote the speech of Lady Macbeth--"Is it a pipe I see before me, its handle towards my hand? Come let me clutch thee. I have thee not, but yet I see thee still". Happily that feeling eventually passed. For the past 20 or more years I have had no craving for tobacco of any kind.

There is no denying that smoking is the single biggest cause of ill health and premature death in the UK. It is responsible for nearly one in five deaths. However, it is never too late to stop. About five years after giving up one's risk of cancer, stroke and other smoking-related illnesses is greatly reduced.

At present, about 12 million people in the UK are addicted to cigarettes, well over one-third of adult men and women. Each year around 120,000 smokers die as a result of their habit. Most of these deaths are due to lung cancer and other chest diseases such as bronchitis and emphysema, but heart disease and stroke contribute to that number. Smoking increases the stickiness of certain blood cells called platelets. These in turn increase the risk of blood clots forming in major arteries to the brain and heart. Smoking also has a seriously adverse effect upon blood pressure, causing high blood pressure, which is a major risk factor for stroke.

Professor McVie of the Cancer Research Campaign believes, along with all his colleagues, that the Bill, as it stands, will encourage smokers to quit and will, above all, help young people not to start smoking in the first place. As they say,

"tobacco is the greatest single preventable cause of cancer death and we owe it to future generations to do all in our power to reduce this toll".

They believe, as the Minister said the Government do, that an advertising ban could reduce tobacco consumption in the long term by 2.5 per cent, thus saving an estimated 3,000 lives a year.

As the Minister said, the report of Dr Clive Smee, the Department of Health's economic adviser in 1992, after a very comprehensive study, concluded:

"The balance of evidence thus supports the conclusion that advertising does have a positive effect on consumption".

In a detailed analysis of four countries, Smee concluded:

"In each case the banning of advertising was followed by a fall in smoking on a scale which cannot be reasonably attributed to other factors".

Four countries have banned tobacco advertising--Norway, Finland, New Zealand and France. Adult per capita consumption of cigarettes fell between 15 and 34 per cent after the implementation of the ban. There were other initiatives which may have played a part in reducing that consumption. Nevertheless, the study showed that tobacco advertising bans work best when they are implemented as part of a comprehensive tobacco control policy.

Like many other noble Lords, I received the interesting photograph from QUIT, the organisation helping smokers to give up smoking, showing a tobacco advert close to the entrance to a primary school. I have also received the letter from the Tobacco Manufacturers' Association indicating that that offending advertisement was soon removed under the voluntary agreement.

Nevertheless, I draw your Lordships' attention to a most important paper published in the British Medical Journal on 3rd March of this year. This article is based upon a very careful detailed study of the smoking habits and knowledge about smoking of young people in north-east England carried out by Lynn MacFadyen, and others, at the University of Strathclyde. I shall not go into detail about the nature of that study; I simply quote the conclusions:

"Teenagers are aware of, and are participating in, many forms of tobacco marketing, and both awareness and participation are associated with current smoking status. This suggests that the current voluntary regulations designed to protect young people from smoking are not working, and that statutory regulations are required".

I could not possibly agree more. We owe it to the country at large and to future generations to implement the Bill, to which I give my warm support.

Photo of Lord Haskel Lord Haskel Labour 3:49 pm, 28th March 2001

My Lords, I support the Bill for all the health reasons given by the noble Lord, Lord Walton. I certainly agree that advertising affects consumption. But the Bill is not about the right to smoke or grow tobacco; it is not about humbug and it is not about sex. It is all about banning the advertising and promotion of tobacco products. It is an attempt to regulate tobacco advertising and promotion. I should like to address the single matter of regulation.

I remind your Lordships that we are firmly in deregulation mode. Noble Lords opposite are constantly criticising the Government for adding to the regulatory load--it worries the noble Lord, Lord Tebbit--and Ministers on this side of the House are constantly battling to keep regulation to a minimum. Indeed, each department has its own regulation Minister, who has to go through a Star Chamber where regulations are scrutinised. I hope that my noble friend the Minister will be sympathetic to his departmental regulation Minister because business and industry constantly complain that regulation acts as a barrier to greater productivity and to increased competitiveness. The CBI, the Engineering Employers' Federation, the chambers of commerce, the Federation of Small Businesses have all recently raised the matter of red tape with the Government.

Yet in Clauses 4 and 5 of the Bill I see that there is to be discussion about regulating point of sale advertising, about regulating displays at the entrance to shops, about the responsibility of Internet Service Providers and about regulating extending the brand to other products. The decisions will be difficult because most shops selling cigarettes sell other products, and those are often attractive to children. That will mean detailed regulation and yet more hard work for the already hard working trading standards officers.

My noble friend can be sure that if there is anything other than a complete ban, the Government will immediately receive complaints of yet more regulation, perhaps even from the shopkeepers themselves. That is why the ban must be complete. It must include no point of sale advertising; no promotion through the Internet, so that the uncertain position of Internet Service Providers is not called into question, especially where websites are established outside UK jurisdiction; and no brand stretching to other products in order to limit all the marketing activities carried out in any modern economy. Anything other than a comprehensive ban on all marketing activities--the noble Lord, Lord Walton, gave us the medical reasons for a comprehensive ban--will require some kind of regulation or supervised voluntary arrangement that is no longer enforceable or acceptable in today's business environment.

I hope that my noble friend the Minister will bear that in mind when responding to the debate and reassure us that noble Lords will be saved the need to move amendments in Committee to secure a complete ban.

Photo of Lord Lucas Lord Lucas Conservative 3:53 pm, 28th March 2001

My Lords, I welcome the Bill. I am delighted that the Government have at last set out to deal with this difficult problem. I do not disagree with my noble friend Lord Tebbit that a great deal of humbug surrounds the Bill, but humbug is an inevitable feature of anything to do with narcotics. The whole of our discussions on alcohol, tobacco, banned substances and even substances such as caffeine are inevitably attended by humbug: what a lot of people do, we can permit; what a few people do, we try to ban. It is just the way of the world, the way of politics, the way of the media, and we have to accept it.

I tend to look at the issue and ask, "Will the Bill do good?" My answer to that is that it will help to reduce tobacco consumption, and therefore the consequences of tobacco consumption, and so it is a good Bill. However, I shall oppose the Bill as currently drafted with all my heart and to the very limits of my power. I shall do so because the Bill reverses the burden of proof in a totally unacceptable way.

It is one of the fundamental tenets of our civilisation that someone is innocent until proven guilty. There are, of course, occasions when you can trespass on that and go the other way. You can go the other way, as was said in the debate on hunting, when you are totally clear about the offence. You have to prove that it was not you driving when you were snapped by a speed camera. It is clear what the offence is. There are no fuzzy edges.

I would not feel uncomfortable about trespassing on this territory when we are dealing with extremely serious and difficult crimes--major drug trafficking and so on. There is a proposal to bring forward legislation to provide that if someone has £20 million but cannot explain how he obtained it he should have to show how he obtained it, or risk the Government at least taxing it. I do not find that unacceptable. But I do find it unacceptable that ordinary citizens and ordinary businessmen should be subject to a reversal of the burden of proof for absolutely no good reason. That is what the Bill does in several places.

The offences under Clause 2 are all absolute offences. If you have engaged in publishing, printing or distributing a tobacco advertisement, you have committed an offence. You then have to prove that you did not know that it was a tobacco advertisement. You have to prove it. There is an obligation or burden on you to show that you did not know. In certain circumstances, that will be impossible. Under Clause 3(c), an offence includes a newsagent selling a magazine. If a newsagent sells a magazine that has in it a tobacco advertisement and he has displayed the magazine openly on his shelves, how on earth will he prove that he did not know that there was a tobacco advertisement in it? All he had to do was look at the magazine and read it. The fact that he has so many magazines that he cannot read them all is one thing, but how can he prove that he did not read the magazine and did not know that it contained a tobacco advertisement? How can you prove that no one told you that there was a tobacco advertisement in it?

When one considers the type of people who will be subject to Clause 3(c), it is entirely unreasonable to impose a burden on proof on them. They have taken no active role in promoting tobacco. They just happen to be part of a chain which ends up including a tobacco advertisement. Under those circumstances, I cannot see any justification for undermining one of our fundamental liberties. It will put ordinary people--ordinary newsagents--in an impossible position.

The principle can also reasonably be extended to people who run big, serious businesses--I have in mind editors and proprietors of newspapers--because, necessarily, the Bill is wide in its definition of what constitutes a tobacco advertisement. It includes advertisements whose effect may be to promote a tobacco product even though that is not at all obvious. One is aware of a good many tobacco advertisements that do not appear to feature a tobacco product except for the health warning at the bottom. If the tobacco industry chooses to advertise under the ban, it will do so in very subtle ways. Why should a newspaper proprietor have to prove that he did not know that a particular advertisement promoted tobacco? Under any reasonable circumstance, if the advertisement is clearly one that promotes tobacco, it is possible to prove that the proprietor knew or should have known. But the burden of proof should be on the prosecuting authorities.

Another dimension to the problem arises in the case of internet service providers. Last year we passed the Regulation of Investigatory Powers Act. It, too, included a reversal of proof provision that we managed to get struck out. Under the Act it is a criminal offence for an Internet service provider to know what is in the e-mails that go through its wires. The Government are now seeking to make it a criminal offence not to know what is going through its wires. The ISPs will be caught coming and caught going. I do not see why it is necessary to catch them in that way with a reversed burden of proof when we have already made it impossible for them legally to know what is going through.

I agree that when we know someone is sending out Spam e-mails about advertising tobacco products we should be able to make the ISPs do their very best to stop those going through. That is entirely reasonable. But if you are notifying an ISP that something is happening, but he does not do it and you prosecute him, then he knows. The first thing that happens is that he is told officially that there is a tobacco advertisement coming down the wires and that he must stop it. A reverse burden of proof is not needed because it has no function. Under any practical circumstances, the ISP has been told what is happening. The ISP should be attacked only when he knows what is happening and does nothing about it. Again, there is no reason to reverse the burden of proof.

These fundamental freedoms have to be guarded at every turn. Generally we do not lose them as the result of big events; we lose them through erosion, by precedent and by letting little holes appear in the dyke and then watching the water stream out gently, imagining that that will be the end of the matter certainly not, so far as concerns the reversal of the burden of proof. This has come up in three recent pieces of legislation. We saw it in the Regulation of Investigatory Powers Bill, we have it in the Hunting Bill and we see it again in the Bill before us. It is something which I believe ought to be taken extremely seriously because it disfigures what is otherwise an excellent Bill.

Photo of Lord Tomlinson Lord Tomlinson Labour 4:00 pm, 28th March 2001

My Lords, banning tobacco advertising was a Labour Party manifesto commitment. That commitment would have been effected by the implementation of European directive 98/43/EC which would have banned tobacco advertising, promotion and sponsorship. However, that directive was annulled on the decision of the European Court of Justice on the basis of it having been introduced on an incorrect treaty base. The Bill before us today, which I support, remedies domestically the decision of the European Court of Justice and enacts the Government's tobacco control strategy.

However, at page 10 the European Commission work programme for the year 2001 states:

"In the more general field of consumer protection and public health there are plans to introduce, among other things, new proposals on the advertising and sponsorship of tobacco products".

In the Government's explanatory memorandum to the Commission's work programme, the Foreign and Commonwealth Office states:

"The United Kingdom Government warmly welcomes the Commission's intention to propose a new directive relating to the advertising and promotion of tobacco products".

On behalf of the Government, Mr Vaz continues:

"The United Kingdom Government is committed to a ban on tobacco advertising--a commitment which, following the annulment last October of the previous EC directive banning advertising, is currently being pursued domestically through the Tobacco Advertising and Promotion Bill. The Government supports the Commission in its initiative and would urge the Commission to take particular account of trans-national issues such as band-sharing and the Internet when drafting its proposals".

Like the Government's explanatory memorandum, I welcome the Commission's proposal for a new directive in 2001 in order to mitigate the effects of the ruling from the European Court of Justice.

I also welcome this Bill, more as a token of the Government's commitment to an early European directive than as a national do-it-alone proposal. But such European action needs to be properly planned and internally consistent to avoid accusations of hypocrisy.

I am not a Euro-sceptic. I voted "Yes" in the 1975 referendum and for over a quarter of a century I have never wavered as one who believes that our membership of the European Union has been consistently of great benefit to this country and its people. Despite those views, however, I find myself in some agreement with the noble Lord, Lord Tebbit, in the first part of his speech. This is, I think, the first time that I have publicly acknowledged such agreement and I suspect that it may well be the last. However, Europe cannot expect plaudits for its planned tobacco advertising directive without being subjected to criticism over policies which are counter-productive to a ban on tobacco advertising, promotion and sponsorship.

To propose a ban on the advertising, promotion and sponsorship of tobacco on the one hand, while spending annually over 1 billion euros of taxpayers' money on subsidising the European growing of tobacco, as if it were a harmless agricultural pursuit, is clearly inconsistent at best and hypocritical at worst.

My concern is enhanced when, on looking further at the Commission work programme for 2001, I find listed under "New Measures", at Programme No. 2001/014, a proposal for a Council regulation on fixing the premium level and guaranteed thresholds in the tobacco sector. This regulation is being proposed for adoption by the Commission under a written procedure for the third quarter of 2001 and is subject only to consultation with the European Parliament, not to co-decision. One might ask: will this regulation increase or decrease the premium level? I think that the answer is self-evident and clear: it will, as it always does, increase the premium level. If that is the case, then I believe that Her Majesty's Government must oppose it, not only in the privacy of the Council meetings, but publicly--and vigorously.

If tobacco is so harmful--and I believe it is--that its advertising, promotion and sponsorship must be banned, then its European public subsidy must also be banned. The Government must not only say that they support changes to the common agricultural policy, but they must, in a high profile way, demonstrate their opposition--as a net contributor to the European budget--to its budgetary resources being disbursed to a cause which is not merely unworthy but in direct conflict with what is being seen as a public health imperative. The money saved by banning expenditure on the tobacco regime could help to support many of our sports governing bodies, which are currently finding it extremely difficult to secure alternative and continuing forms of sponsorship beyond 2003.

Perhaps I may raise another aspect of government commitment concerning action to reduce tobacco consumption. At present, the European Commission is engaged in a civil legal action in the United States against two American tobacco firms, R.J. Reynolds and Philip Morris. This is a civil legal action seeking compensation amounting to 3 billion euros for lost European Union revenue arising from those companies being complicit in tobacco smuggling. The European Commission has invited the member states of the European Union to join in that civil action.

My noble friend Lord McIntosh of Haringey, in reply to a question that I directed to him on 8th February, stated:

"Customs and Excise is actively considering whether to join in the case. I am sure that Treasury officials will also wish to consider this matter".--[Official Report, 8/2/01; col. 1267.]

Treasury officials did consider the matter and, in a letter dated 2nd March 2001 to the European Union Select Committee, an official from the Treasury stated that,

"the United Kingdom had decided not to join in the action because, as there is no suggestion that the United Kingdom was the destination for the smuggled product, there is no direct United Kingdom revenue loss to seek to recover and therefore it is unlikely that the United Kingdom has valid reasons for joining this action".

I urge Her Majesty's Government to think again about that answer. The Treasury official is, I believe, guilty of a most specious form of argument. In so far as revenue is lost to the European Union budget, all member states suffer, especially those which, like the United Kingdom, are net contributors to the budget. Our interest is specific, direct and calculable. Smuggling costs money. We pay more, and we should join in the action to recover moneys lost. We should do that in defence of the interests of our taxpayers.

I do not apologise for focusing on these somewhat narrow European issues. I do so because I believe that the European directive will possibly supersede the Bill. I am content for that to be the case. Indeed, I believe that there are certain advantages in the matter being dealt with in that way. However, the advantages will be seriously undermined if the European Union continues simultaneously to be both a banner of advertising, promotion and sponsorship and a subsidiser of the growth of the offending product.

Photo of Lord Geddes Lord Geddes Deputy Chairman of Committees 4:10 pm, 28th March 2001

My Lords, I declare an interest as a member of the Lords and Commons Pipe and Cigar Smokers Club. Indeed, I can see at least two other noble Lords who are equally proudly wearing that club's tie today.

I should like to take this opportunity--which is almost unique, as far as I am aware--of underbidding the noble Lord, Lord Walton of Detchant. If I noted correctly, he said that he was tempted by 50 cigarettes at 1/8d. When I joined Her Majesty's Navy as an extremely junior junior some 45 years ago, I was offered and accepted 200 cigarettes for 2/4d. They were virtually unsmokeable; they were called Blue Line and were clearly the sweepings off the factory floor. Nevertheless, it was a carton of 200 cigarettes for 2/4d.

I, too, dislike the Bill; I am against it. However, I am against it for slightly different reasons from my noble friend Lord Lucas. I am concerned about the Bill from the point of view of human rights. I notice that on the front page of the Bill--not page 1, but the front page--there is the absolutely standard claim or disclaim, I am not sure which word to use, from the noble Lord, Lord Hunt of Kings Heath. I am very glad that I am not in the noble Lord's position. That claim or disclaim states that in his view--I paraphrase, of course, because it states "In my view"--that,

"the provisions of the Tobacco Advertising and Promotion Bill are compatible with the Convention rights"-- that is, the Human Rights Act 1998. I think that the Minister will have problems in that respect. One could drill hole after hole in the Bill in that context. I do not intend to do so.

However, perhaps I may refer, as did the Minister, to Clause 4(1)(b) and, in particular, to the Explanatory Notes to the Bill--which, interestingly, are two pages longer than the Bill itself. That may say something about the Bill. The clause and the Explanatory Notes refer to the exceptions; that is, where advertising is allowed. The notes go on to state in paragraph 17:

"However, this does not permit tobacco advertisements to be sent to all consumers on a database; each consumer must individually request that information on each and every occasion".

The Minister also quoted that passage. The paragraph goes on to state:

"A request for information cannot be considered as a request for further information in the future".

Clearly, the purpose, as I read it, is to prohibit manufacturers or sellers of tobacco products from generally communicating with smokers who are purchasers or potential purchasers of their brands, even if that communication is personal and private. This is despite the fact that the product itself is legal; that it is perfectly legal to manufacture and sell it and for adults to purchase it.

I have real problems with the conflict between a legal product--to which I shall return in a moment--on the one hand and a banning of advertising on the other. To be consistent--I hope that this does not happen--surely tobacco should be declared illegal. Then there would be some logic in the Bill and in the ban on advertising because, in that context, you would be banning advertising of an illegal product. Here you are banning advertising--or proposing to--of a legal product. I cannot get my mind around that.

I am advised by much better legal brains than mine--I am not a lawyer--that, in their opinion, this seriously violates the fundamental freedom of speech and expression contained in the European Convention on Human Rights. This is where I have great sympathy with the Minister. The Bill bans virtually every possible means of bringing a tobacco product to the attention of smokers. The prohibition of any communication whatever, even a communication of a factual or informational nature, with regard to a product which is lawfully available--I come back to that word again--is a disproportionate restriction contrary to Articles 10 and 8 of the ECHR. The Government should look at that issue extremely carefully.

I wish to raise only two other points. I have twice mentioned the question of legality. In another place, the Minister stated:

"We are relaxed about the way in which products and prices are ordinarily displayed, and we do not intend to restrict that. It is perfectly legitimate to have a certain amount of advertising at point of sale and for products to be displayed, with prices, so that they can be sold".

So far so good. The Minister continued:

"because after all tobacco is a legal product".--[Official Report, Commons, 13/2/01; col. 220.]

That brings me back to the same dilemma, but I shall not dwell on it further.

I believe that it was the noble Lord, Lord Haskel, who mentioned regulation. I totally agree with what he said. Certainly, Members of the House and many others outside the House are getting fed up with the amount of regulation. However, the problem lies in Clause 18 of the Bill. Subsections (1) and (2) of that clause are very frightening indeed. The clause states:

"(1) Powers to make regulations and orders under this Act are exercisable by statutory instrument.

(2) Regulations, and orders under Section 7, may make"-- my noble friend Lord Tebbit mentioned this--

"(a) different provision for different cases or circumstances, and

(b) any supplementary, consequential or transitional provision which the appropriate Minister (or Secretary of State) considers necessary or desirable".

The industry does not know where it is; we do not know where it is. The Bill has holes driven right through it.

Photo of Lord Dubs Lord Dubs Chair of Labour Peers 4:17 pm, 28th March 2001

My Lords, I very much welcome the Bill. I am aware from the statistics we have been given that, by the time I sit down in a few minutes from now, two to three more people in this country will have died as a result of smoking. That is a sombre thought. The Bill is part of a wider-ranging government strategy to tackle the problem of the large number of people in this country who die as a result of smoking. I welcome that strategy.

Looking at the history of anti-smoking measures over recent years, it is clear that raising the price of cigarettes and making them fairly expensive has proved to be one of the most effective deterrents to smoking. It discourages young people from starting and, indeed, it lessens the tendency for adults who have already started smoking to go on doing so, or they smoke fewer cigarettes.

I therefore find myself, as did my noble friend Lord Tomlinson, in agreement with the first part of the speech of the noble Lord, Lord Tebbit. I am sure that his reputation will be totally damaged if speaker after speaker on these Benches praises something that he said, but the truth must stand.

I do not share the noble Lord's views about the European Union but I agree with him that it is unacceptable that the taxpayers of Europe--including the taxpayers of this country--should contribute money to encourage the production of a product which we are, in other senses, trying to discourage. That is unacceptable. I hope that the Minister will hear our call and that the Government will act accordingly in their discussions in Brussels.

In relation to European Union matters, a second element is worth mentioning. People take their cars and vans across the Channel to Calais, stock up with cigarettes at prices significantly lower than here, bring them into this country and either use them themselves or sell them on. I understand that the trade is significantly damaging Treasury revenue from tobacco duties. I am not sure whether my noble friend the Minister will have that information to hand. It is also undermining the sensible policy of successive governments of increasing the price of cigarettes as a deterrent to their consumption. The volume of cigarettes coming across the Channel is now large enough to damage the effectiveness of that policy.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, will the noble Lord allow me to intervene? I hope that it does not spoil the noble Lord's reputation to be caught agreeing with me. I hope that he will not place too much emphasis on the point that he has just made. After all, it is not only cigarettes that are in the vans and cars; it is also good, decent wine and other such products--and we do not want to get into that, do we?

Photo of Lord Dubs Lord Dubs Chair of Labour Peers

My Lords, I do not disagree. Good wine comes into this country too. Although I do not buy it in Calais--I buy it in local off-licences--I understand what goes on. But, as I said, that trade undermines both Treasury policy and health policy as regards smoking, and I take exception to that. I wish our European partners had the same attitude to trying to reduce smoking as successive British governments have had. The problem would be solved if the French and other EU countries increased their tobacco taxes to the same level as ours.

That said, I am convinced that abolishing cigarette advertising would make a material difference to the number of cigarettes smoked. That is why I support the direct measures in the Bill. It is an elementary aspect of marketing that all those who sell products have to find new entrants to the market to make up for those who die--the more so when the product that they sell kills their consumers. Therefore, the danger in health terms is that young people are lured into smoking and are persuaded that it is acceptable as a result of visible advertising and sponsorship. Preventing that is the particular strength of this measure.

Perhaps I may ask my noble friend a couple of questions. I have been puzzling over the meaning of subsection (2) of Clause 10, which has the rubric "Prohibition of sponsorship":

"A sponsorship agreement is an agreement under which, in the course of a business, a party to it makes a contribution towards something".

I am slightly puzzled as to the legislative basis for that form of wording. The Explanatory Notes seek to elaborate on the provision:

"For example, it is not intended to prevent a tobacco company supporting a theatrical production and being acknowledged for so doing, provided that the acknowledgement mentioned solely the name of the company and not any of its products, and did not involve any special treatment of the tobacco company",

I find that rather difficult. In the cigarette advertising that appears on billboards and elsewhere, frequently only the name of the company is featured. Given the explanation in the Explanatory Notes, the clause may allow the sponsorship of tobacco by mention of the company rather than of any specific product. That would be sufficient to undermine the purpose of the legislation. I hope that my noble friend will persuade me that I have got this wrong and that the Bill is more robust in that respect. I fear that that may not be the case.

I wish to raise two further points. One relates to airports and airlines. I have tried to follow the arrangements for in-flight magazines. As I understand it, cigarette advertising will not be permitted in magazines produced by airlines based in this country whereas magazines produced by foreign airlines may contain such advertising. Have I got that right? My second point is a related one. What about advertising on the "air side" at British airports--when one has gone through passport control and Customs on one's way out of the country? Will the legislation apply to that element too? My noble friend nods. I hope so.

Finally, I turn to a point raised by the noble Lord, Lord Geddes. I do not believe that there is an inconsistency in permitting a habit such as smoking and accepting that it is legal but saying that advertising promotion and sponsorship should not be legal. It would be quite wrong to make smoking illegal. It might be good for the health of people in this country, but it would be wrong in principle. But I see nothing wrong in doing everything possible to discourage young people from starting down that road. That is surely the supreme strength of this measure.

Photo of Viscount Oxfuird Viscount Oxfuird Conservative 4:25 pm, 28th March 2001

My Lords, I wonder whether the Bill will do all the things that it purports to do. I have the view that it is totally geared to today's television mentality. It simply fails to address anything other than that which is negative; and that is essentially lazy.

Where are all the provisions in the Bill to provide an inspiration to smokers to give up? That would be positive action. All that we have before us is a further banning order, which seems to be the only thought pattern that is currently available intellectually. Perversely, a ban on advertising will have a severe effect on the very source which is important: the health warning. It must surely be possible for us to have some indication as to whether the Government regard the warning advertisement as an effective tool in the overall programme of reducing the consumption of tobacco products among the young.

It is sad to note that, since 1997, tobacco consumption has risen by 6.5 per cent, whereas in the previous 25 years there was a persistent decline in the consumption of tobacco products; a 37 per cent reduction was finally achieved. There was a reason for that: each year there was an increase in tobacco taxation. But tobacco remained affordable; the increase did not have the effect of promoting the criminal level of smuggling that we see today.

If we look at the current situation, we see a taxation level that promotes illegal smuggling at 34 per cent; namely, over a third of the total cigarette equivalent market is now non-UK duty paid. The total loss to the Exchequer is some £9,000 million. That figure of one-third in the period since 1997 must concentrate the mind of any serious anti-smoker. It represents a massive loss of revenue. It apparently equates to 3p in the pound on the standard rate of income tax.

I know from experience with my own children that the forbidden fruit of tobacco is tried at an early age. By the time young people reach 24 or 27, they are much more involved in life: they are involved in sport and activities which take over mentally from the desire to run behind the bike sheds or whatever encouraged them to smoke in their youth.

But what effect does the withdrawal of product advertising have on the very young? They choose the product that tastes best to them and, when forewarned by the health statement, they probably choose a product with a low-tar, low nicotine content. This information and choice will be denied to them, which could possibly even add to the health risk.

I believe that we would all recognise that the young are resourceful; their income is minimal, comparatively, and the power of "word of mouth" is great. It is therefore not surprising that they will find sources of supply which will conform to their budgets. The difference between a packet of cigarettes costing £2.50 and one costing £4.33 is a very considerable incentive to seek out the illegal supplier. It is also a temptation to buy in larger quantities if their budgets permit it.

It is therefore not surprising that the effect of advertising is negated when such a disorderly market exists. I ask again the question: why is it that the Government have not carried on with the original agreement between the tobacco industry and health Ministers where these issues were discussed and solutions found? The current agreement has not been modified since 1995. As we all know, marketing is part of the total management concept. It is part of the discipline. As I said at the beginning, if one wants something to happen one has to consider all the factors by involving all the interested parties. I am convinced that the solution to a reduction in the consumption of tobacco products by the young must rely on orderly market discipline and the removal of the smuggled products over which we have no control. Therefore, we must seek the professionalism of those people who have the experience. I cannot support the Bill as it stands at present, but I look forward to tabling amendments as soon as possible.

Photo of Lord Harris of High Cross Lord Harris of High Cross Crossbench 4:32 pm, 28th March 2001

My Lords, I hope that it is not necessary for me to say that my fundamental opposition to this Bill runs far wider and deeper than the narrow interest I declare as a lifelong pipe smoker and the chairman of FOREST, which is the premier European organisation that defends the rights of smokers to light up, I hope always with due courtesy and consideration.

It is not necessary to be a smoker to see that outright censorship of advertising, as the noble Lord, Lord Geddes, said, whether of tobacco or any other legal product, is the plainest denial of the prized freedom of individuals to have access to the information that they wish to have. At a more mundane level, this Bill would violate the right of competing businesses, including corner shops, to communicate freely, as we have heard, with their own customers.

Such a far-reaching statutory prohibition, which is unprecedented in a free society in times of peace, would require some special explanation and justification. One does not have that special justification. In a moment I shall come to the conflicting evidence in surveys on smoking and advertising.

In my view what is almost as deplorable is that this Bill marks the abrupt departure of Her Majesty's Government from the civilised practice over decades of constructive discussion and voluntary accords with the tobacco industry which, without the sledgehammer of legislation in the past, have effectively delivered restraints on advertising messages, sampling, direct marketing and the rest. Again, without precedent, an industry which is among the leading British exporters is shunned as a pariah in a display of petty puritanical pique.

The Government's justification is their hope that the Bill will improve health. I regard that as being highly debatable and questionable. We had similar high-minded hopes from this Government in the recent past for education, the National Health Service, crime, transport and many other things. They are hardly promising precedents. Ministers claim that ending tobacco advertising will reduce consumption at some stage in the future by 2.5 per cent. It would be difficult to reconcile that with the fact that we have just heard of consumption now rising, after decades of gentle decline, without any stimulus whatever from increased advertising. That 2.5 per cent turns out to be the purest speculation with no attempt to establish a foundation in science or experience.

In the Minister's regulatory impact assessment, we have further statistical licence. On page three it puts the cost of so-called "smoking related diseases" to the National Health Service,

"in England alone up to £1.7 billion a year".

By page six that estimate falls to,

"around £1.5 billion and £1.8 billion" for the whole for the United Kingdom. As an effort to show the cost of smoking to the community, all these figures are completely pointless because the arbitrary costings ignore entirely the fact that, until recently, £10 billion was gathered every year by the Exchequer from taxes on smoking. That was before over-taxation caused the revenue to fall from £10 billion to teetering around £7 billion a year. But that is still four times the presumed cost to the National Health Service of the so-called "smoking-related diseases".

Here the Government's simplistic aim runs into further trouble. Smuggling and the illegal importation of cheap European cigarettes and hand-rolling tobacco have flooded many parts of the country with supplies at almost half the price of the corner shops, which brings a further unintended knock-on effect. By undermining retail tobacconists, who cannot legally sell to youngsters under the age of 16 years, cigarettes have become available on the streets at half-price with no questions asked.

Even this restless, reckless reforming Government should have learned some modesty from experience. Have they not learned already something about the laws of unintended consequences in education, drugs, crime and even now in the foot and mouth outbreak? At the very least they might now do themselves a favour by heeding rational arguments on the likelihood--I should say "the certainty"--that these good intentions will again be mocked by frustrating failure.

The analytical miscalculation at the heart of this Bill is the naive assumption that advertising automatically increases the total market demand. As a serious student of advertising over many years, I say that that was the outcome in developing markets such as those for detergents, fridges, washing machines and television sets in the 1960s and 1970s. But when markets mature and approach saturation, advertising shifts to fighting over brand shares, including keeping out cheap foreign imports. Only a novice would expect that advertising a new soap, a soup or a cigarette would have us all buying more and increasing the total demand.

When one looks at these claims and counter-claims there is almost no end to it. I enjoyed the Independent, which I do not always read. It recently said that there is,

"no evidence that advertising encourages young people to smoke".

It went on to say that youngsters start smoking because it is considered "cool" among their peer group; because it helps them to lose weight; or because it is disapproved of by adults. More weighty is the report of the Office of Population Censuses and Surveys on why children start smoking. It found that advertising had no significant effect. In 1996 the hard-headed KPMG consultants found,

"overwhelming evidence to support the proposition that advertising bans on tobacco products do not reduce consumption".

Private Eye went one better, as one might imagine. In January it carried a letter from Michael Stewart who reported on a study of 22 OECD countries which revealed that the six with advertising bans showed, on average, an increase in consumption, compared with the trend in countries without bans. That is to say, in countries without bans smoking diminished at a certain rate, but in the six countries with bans it did not diminish at a greater rate.

Since the 1970s there have been dozens of studies purporting to test whether advertising is a significant factor in the extent of smoking. In 1999, the IEA obligingly published a report entitled, Does Advertising Increase Smoking?, by Dr Hugh High of the University of Cape Town. He reviewed what he called the "voluminous literature" on the relationship between smoking and advertising. On any balanced assessment there is no comfort at all for the promoters of this Bill.

One of the more pretentious earlier reviews of evidence was the Smee committee report published by the Department of Health in 1992. After a showy parade of econometric and statistical analysis of 19 published studies, it concluded weakly that a majority showed a positive relationship between advertising and tobacco consumption. The snag was--when one looked deeper--that the studies varied widely in quality and most of them lacked statistical significance. If there were time, I could quote from the Smee report. It states, for example, that where advertising does have an effect on consumption, it is a transitory effect. Consumption responds initially but then falls back unless one keeps on increasing the advertising. A progressive increase in advertising is necessary to sustain a given initial increase in demand.

The weighty conclusion of the prestigious research group, Henley Marketing Dynamics, was bluntly that,

"the analysis undertaken in the Smee report does not justify its findings".

Indeed, Smee himself acknowledged weaknesses in its data, some of which was derived from the Norwegian equivalent of our own Action on Smoking and Health (ASH). Hugh High's devastating evidence, summarised in Table 5, shows that following bans in Iceland, Norway, Finland, Italy and Portugal, introduced between 1971 and 1983, consumption fluctuated, but compared with the decline in countries without bans there was no additional reduction in smoking.

The commonsense conclusion is that the dominant influence on the general decline in smoking which we have witnessed has been the gruesome, and I believe exaggerated, counter-advertising of the health warnings. To the extent that banning advertising simultaneously reduces public exposure to these warnings, a long decline in smoking could slow down or even be reversed. As with fox hunting, I hope that the House will resist an authoritarian Bill which panders to political prejudice and yet would fail in its professed purpose.

Photo of Lord Mason of Barnsley Lord Mason of Barnsley Labour 4:43 pm, 28th March 2001

My Lords, I must first declare an interest; I am a pipe and cigar smoker. Indeed, I have smoked a pipe for the past 57 years. I also formed the Lords and Commons pipe club over 20 years ago. We have about 100 members in both Houses. I am not happy about this Bill but I shall not oppose it. There is a health drive behind it which I appreciate.

I am not a member of FOREST, unlike my noble friend who has just addressed the House, but I do believe in the freedom and the right to enjoy tobacco. Freedom and tolerance towards smoker and anti-smoker should be the creed to follow--it would certainly help to lessen the feelings against each other.

To smoke a cigarette, cigar or a pipe is a person's choice, and whether smoking, drinking alcohol or smoking cannabis or pot, they are fully aware of the risks and, indeed, constantly advised of the dangers to health of pursuing their pleasure. But I stress that there should not be annoyance to others. I also believe that undue pressure is unwarranted. It does seem odd that those who drink alcohol, causing many horrible road deaths, death to themselves, illnesses and disease and a burden on the health service, do not receive the same waves of wrath as the tobacco smoker.

The tobacco smoker feels he is being told and controlled, and to him it is anathema in a democratic society. Tobacco is still a legal product and it has the legal right to be advertised. I know that tobacco companies argue that they are directing their advertisements not at young or potential customers but at the competition between competing brands. Well, be that as it may, the point is that they are being singled out for public and unfair chastisement. Now under this legislation so strictly to control their right to advertise and promote their products, banning their advertising and promotion to this extent is almost the final step to stop smokers being informed of their tobacco choice.

Seventeen million smokers will also feel aggrieved. But my main concern is the Chancellor's policy on tobacco taxation, which has been mentioned already by the noble Viscount, Lord Oxfuird, and the noble Lord, Lord Harris of High Cross. But, first, I note that on 22nd January in another place the Minister, Alan Milburn, said,

"I believe that people have a right to choose to smoke. If that is what they want to do, they have a right to do it".--[Official Report, Commons, 22/1/01; col. 656.]

And then on 1st February my noble friend Lord Whitty in your Lordships' House said,

"It should be recognised that a significant minority of the population still smoke. The interests of that minority should be borne in mind, as well as those of everyone else ... we need to take a proportionate approach to this".--[Official Report, 1/2/01; col. 880.]

Well said. There is no vendetta then. Well, why punish the smoker? Why are not these Ministers telling the Chancellor that there are 17 million smokers constantly being punished through his tobacco taxation policy? And where is the proportionate approach?

The Government's policy of constantly increasing taxes on cigarettes is self-defeating and has had quite the opposite effect to what was intended. Smoking is on the increase for the first time in 25 years and I believe that it is the increasing official price of tobacco that has brought this about. The tax on legally imported cigarettes is now so ridiculously high that it has created an enormous black market in untaxed smuggled cigarettes costing the Treasury between £2 billion and £3 billion a year. With cut price cigarettes and masses of cheap imports, more young people now find it easier to start smoking.

I know, of course, the measures that have been taken to curb this smuggling--1,000 extra Customs officials and a national network of x-ray scanners. Add that on to the Chancellor's lost revenue and it has still not stopped smuggling. I believe that the Chancellor's policy is wrong. It is expensive; it is an aid to smuggling and the crime that goes with it. It is a smuggler's charter, an inducement to crime, with smuggling gangs operating now in the clubs, the schools and the back streets of our towns. Add that to the cost of the Chancellor's tobacco taxation policy. I also believe that some of these illegal, cheap imported cigarettes have a higher tar content and are therefore more harmful to young smokers. Therefore his policy in that respect is dangerous too.

The Tobacco Manufacturers' Association--I have no connection with it--made it clear in its submission to the Chancellor that the UK tobacco tax is now the highest in the world and has created a situation where smuggling is spiralling out of control, law and order are being undermined, cigarette consumption is increasing and legitimate retailers are going out of business. Yet in spite of those dire warnings the Chancellor still increased the tobacco tax. A packet of Regal king size will now cost £4.28, compared with £1.47 in Spain. One in three smokers is now buying his cigarettes from illegal sources. Some evidence came from cigarette packets found on the terraces of football grounds. For example, last season 41 per cent of packets found at Ipswich after one match were non-duty packets.

The Government estimate that in 1999-2000 total cigarette consumption was around 76 billion of which 13.6 billion--18 per cent--were smuggled. Even by the Chancellor's own reckoning, the measures he has introduced to contain smuggling seemed to be designed to accept that 18 per cent to 20 per cent will be smuggled. And this Bill on advertising and promotion will not stop that.

Finally, I draw the House's attention to an Answer to a Written Question in another place given by the Paymaster General, Dawn Primarolo as recently as 7th March. At col. 229 of the Official Report, she said:

"As part of the 'Tackling Tobacco Smuggling' strategy, Customs are pursuing a target for 2000-01 of holding illicit market penetration to 21 per cent of the UK cigarette market, equating to £2.8 billion in lost revenues. Customs' assessment for the calendar year 2000 suggests that 22 per cent of the UK cigarette market is made up of smuggled cigarettes, equating to £2.9 billion in lost reserves".

What an admission! And how many hospitals could we have built?

I say to the Chancellor and to the Government: stop punishing the smoker. Is it not worth cutting the taxation on tobacco? It might--I emphasise "might"--prompt a short-term increase in legal cigarette smoking but it would help to kill off the illegal trade, the smuggling crooks, crime in our urban districts and, after a little time, as before under the voluntary agreements, I believe that the reduction in smoking would then continue.

Photo of Lord Naseby Lord Naseby Conservative 4:52 pm, 28th March 2001

My Lords, I have been involved in marketing all my life. At one time I confess that I was responsible for some years for the advertising of Senior Service, Park Drive, Hamlet, Old Holborn and a number of other old brands. I have never smoked in my life.

Like other noble Lords, I accept the medical evidence although I note in passing that the incidence of lung cancer rises steeply with age. According to Professor Thatcher of the Christie Hospital NHS Trust, Manchester, 82 per cent of patients are now over 65 and 47 per cent--that is, nearly half the patients--are over 75; so at least they have passed their three score years and ten. So perhaps the evidence is not quite as strong as everyone says traditionally.

There is no purity of principle as regards the Bill. It is just perceived to be politically correct. No one on either side of the Chamber has the guts to ban cigarettes. No government ever had the guts to ban smoking. We know that this Government are not good at coping with challenges.

The noble Lord, Lord Mason, told us about illegal smuggling. I do not need to add to what he said. The situation is not being coped with. We are flooded by cheap cigarettes. Why, therefore, do the Government persist in ignoring the importance of price? However, I take issue with the noble Lord on this matter. All the evidence in relation to smoking is that the lower the price of cigarettes, the greater the consumption. Even the Chancellor in his latest Budget did not increase the price of cigarettes by a great deal. I do not think that the Bill will work. However, if it were to succeed, the resources that the tobacco manufacturers spend on promotion will now be available to reduce the price of cigarettes. Your Lordships will know that there is fair latitude from the profit margins of cigarette companies to reduce the price of cigarettes.

If one wants further evidence, let us consider eastern Europe. Cigarettes are cheap in eastern Europe and consumption is high. If all promotion or communication is removed, the resources that would have gone into that factor will now go into reducing the price, and consumption will increase.

It is clear that the Bill will not work. It will not reduce consumption. On Clause 2, the Explanatory Notes state:

"It is not intended that the public at large, journalists etc should be prevented from commenting on tobacco products or that the representation of smoking and tobacco products by those engaged in creative or artistic pursuits (actors, painters, products etc) should be prohibited".

So lifestyle promotion will continue. Only commercial brand communication is to be constrained.

The Explanatory Notes continue:

"Subsection (4) exempts persons who do not carry on business in the United Kingdom".

Why are we supporting overseas companies? There seems to be a huge hole there.

The noble Lord, Lord Dubs, commented on in-flight magazines. UK airlines do not carry only passengers from the UK. I think that British Airways would be somewhat offended if it were told that the majority of its passengers were UK citizens. They are not. Why should it be constrained?

My noble friend Lord Tebbit commented on Clause 7. I do not believe that a single Member of this House can allow Clause 7 to be agreed to. It gives the Secretary of State an all-enveloping power: that because there may be some developments in technology he or she may have the right to introduce an amendment to the Bill without debate.

Clause 9 refers to free samples of allied products. The Minister referred to sunglasses, umbrellas, windcheaters and so on. The Explanatory Notes state:

"For example, branded clothing might be sold for two thirds or more off the usual price".

What is the usual price? Is it the Gucci price? Is it the Marks & Spencer price? Is it the Asda price? Is it the market trader's price? What happens if they are last year's goods? Can one not have sale prices? How many noble Lords have visited retail parks where prices are cut to the margins? The clause will not work. The poor trading standards officer has to assess whether the price is right or wrong. It is an impossible job. The power will not work.

I know a little about brand-sharing. I feel somewhat sorry for Branson. Presumably he cannot have Virgin cigarettes because he already has an airline and a host of other dimensions. But he will not be allowed to have Virgin cigarettes because they would share the brand name. The provision will remove the whole of the own-label business. No supermarket can have an own-label cigarette. Sainsbury, Asda, Tesco and so on will be denied it. That is an interference with their trade.

We know that attempts at a passing-off action fail. The Government must have that knowledge--but perhaps not the Department of Health. The DTI certainly has such knowledge.

With regard to enforcement, I feel extraordinarily sorry for the trading standards officers. In Northamptonshire a few years ago, one saw the genuine pressure under which they worked regarding the problems of counterfeit and unsafe products. Are we really saying that, as a priority, they must check the displays of the corner tobacconists and newsagents to ensure that they are not offending the provisions of the Bill?

The Bill is riddled with dangerous precedents. I hope that the Minister will take seriously the words of the noble Lord, Lord Harris, and his experience of advertising, which I totally concur with from my own experience. The Bill interferes in the legitimate communication between a business and its known customers. It gives unfair advantage to foreign companies. It flies in the face of all economic experience. Clause 7 is totally unacceptable. To ban the promotion and communication by any means of a product that is legally manufactured, sold and bought is totally wrong and unprecedented in peacetime.

Photo of Baroness Gibson of Market Rasen Baroness Gibson of Market Rasen Labour 5:00 pm, 28th March 2001

My Lords, I begin by expressing my support for the aims of the Bill. As my noble friend Lord Tomlinson said, it is another election manifesto promise that is being kept. I particularly welcome the ending of tobacco advertising in sport. I shall be pleased to attend a football match or watch it on television--hopefully a match that involves Ipswich Town, whom I have followed for many years--and no longer have to see advertisements for smoking, which are currently difficult to avoid.

I recognise that since 1995 there has been a voluntary agreement relating to advertising and tobacco promotion, which the Tobacco Manufacturers' Association has tried to monitor. However, there have been a number of examples of adverts being placed close to schools or hospitals. Although some of them have eventually been removed, they can encourage smoking by children and by others who are already ill, however briefly they appear. I therefore believe that the Bill is needed.

I shall raise two particular issues on which the Bill may cause consequential problems. The first is a question of employment. I have spoken before in your Lordships' House about smoking and declared an interest as a former senior official of the Manufacturing, Science and Finance Union, of which the tobacco workers' section is a proud part. I am aware that the Bill may not directly affect employment, but presumably tobacco companies do not spend millions of pounds on advertising for fun. I understood from them last week that they believe that advertisements promote tobacco and smoking. If so, it surely follows that lack of advertisements may deter smoking, which in turn will threaten the jobs of those in the tobacco industry.

Additionally, such extra regulation may make tobacco manufacturers think twice about continuing their business in the UK. I have already been told personally by one large tobacco company that it cannot diversify any more than it has done already and that in any case it believes that there is an anti-tobacco attitude in the UK, which means that future investment must be made abroad. One of the companies that provides filters for cigarettes has told me that its machinery has been tailor-made for such filters and is no use for manufacturing other products. If the machinery cannot be used to make filters, it will have to be scrapped, the factory closed and the workforce dispensed with.

I do not know whether those companies are bluffing, but if they are not, jobs would appear to be under threat. Under those circumstances, I ask my noble friend the Minister and other Ministers, when dealing with issues relating to tobacco manufacture, to remember the need for alternative forms of employment for any workers threatened.

Thanks to efforts of the tobacco workers' union over the years, we are talking not about poorly paid, part-time jobs, but about skilled, well paid posts for men and women. Just as I have argued in the past for alternative employment for miners, steelworkers and those in the rural communities, I argue that those working in the tobacco industry--many of whom, ironically, are non-smokers--have a right to the same consideration.

My second worry has already been touched on by a number of noble Lords. It concerns the possibility of increased smuggling of cigarettes into this country. It is very helpful that the Government are encouraging smokers to stop smoking by the use of patches and other methods. I greatly welcome that. However, some people will continue to smoke despite those incentives being placed in their way. It often follows that the cheaper the cigarette, the more they will smoke. Despite increased surveillance, we know that criminal elements in other countries are targeting the UK as a country into which cigarettes can be smuggled. Those smuggled cigarettes may well be stronger than some and may come from countries with little or no health protection provision relating to tobacco products.

Last year the UK manufacturers claimed to control 93 per cent of the UK cigarette market, but they now fear that that percentage may decrease rapidly. Already a number of previously unheard of cigarette brands and counterfeit produce of dubious quality are smuggled into the UK market. I understand that they come from as far afield as China. I also understand that smuggled cigarettes are being sold from ice-cream vans, thus targeting children and young people.

Clause 2(4) says:

"It is not an offence ... for a person who does not carry on a business in the United Kingdom to publish or cause to be published a tobacco advertisement by means of a website which is accessed in the United Kingdom".

Does that mean that the world-wide web can be used for the advertisement of cheaper and smuggled cigarettes? Can the sales outlets from which they can be obtained also be advertised? I hope that my noble friend the Minister will be able to reassure me on those points.

I look forward to my noble friend's responses on those two important issues of jobs and the smuggling of tobacco products. I reiterate that overall I am in favour of the Bill.

Photo of The Earl of Liverpool The Earl of Liverpool Conservative 5:07 pm, 28th March 2001

My Lords, the first thing that strikes me about the Bill is that it is by any standards a draconian measure. Tobacco is a recognised legal product, the manufacture and distribution of which employs around 60,000 people in this country and, it is estimated, more than 100 million world-wide.

The Bill would introduce a comprehensive ban on tobacco advertising and sponsorship by any company in the sector going about its legal business and trying to protect its market share. That is a drastic step. What is the reasoning for it? The Minister has said that it is hoped that it will reduce consumption by 2.5 per cent. He prayed in aid the Smee report, but there is other empirical evidence on the subject and even the Smee report cannot prove that that 2.5 per cent reduction would be achieved. The noble Lord, Lord Harris of High Cross, quoted the 1996 KPMG report. At the risk of testing your Lordships' patience, I shall repeat its conclusion. It said:

"There is overwhelming evidence to support the proposition that advertising bans on tobacco do not reduce tobacco consumption".

The 1990 report by the Office of Population Censuses and Surveys found that advertising had no significant influence on why children start smoking. The Macdonald surveys of 1993 came to the same conclusion, stating:

"There is no evidence in any of the studies to suggest that if advertising were banned it would make the least difference to the propensity of children to smoke".

Therefore, noble Lords may take their pick, but the Smee report is by no means the only report to which we should pay attention.

Perhaps there is another reason why the Government are pressing ahead with this legislation. Certainly it was in their manifesto, but my personal view is that it has more to do with demonstrating to the country at large that the nanny state under new Labour is very much alive and well. Whatever the reasons, I believe that the Government are misguided.

Furthermore, I believe that their tobacco policy is confused and contradictory. On the one hand, they have committed increased resources to education and smoking-cessation programmes, which are to be commended; on the other hand, they have pursued an excessive tobacco tax policy which has had the predicted perverse consequence of encouraging smuggling on a massive scale. Many noble Lords have already referred to that.

The resultant countrywide availability of low-price, black-market products has led inevitably to increased total consumption. Since this Government came to power in 1997, it is estimated, as has already been stated by my noble friend Lord Oxfuird, that UK tobacco consumption has increased by 6.5 per cent. That follows a period of 25 years of persistent decline.

It must be said that the one thing that this Bill will not do is reduce the upward trend of tobacco consumption that we have seen since the Government took office. The reason is that, without brand advertising or promotion, the prime means at the disposal of manufacturers will be to compete on price. It does not take a genius to work out that, with smuggling unabated and a general downward pressure on UK retail prices, consumption will continue to rise.

As we have already been told, the revenue lost to the Exchequer as a result of the excessive tax increases imposed since 1997 totals almost £9 billion. That is an enormous sum of money. During the same period, consumption has increased, and that has had three major adverse and unwelcome effects on the country. The first is that children have gained wider and easier access to tobacco products through indiscriminate selling by illicit traders.

The second effect is the increased level of criminality in the population. It is estimated that 5 million people in the UK are now involved in smuggling, or illicitly selling or buying tobacco on the black market. This is big business for the hardened criminals, who employ tactics of intimidation and violence.

Thirdly, thousands of legitimate retail businesses have been seriously affected financially. Some have even been put out of business. Something must be seriously wrong when one can buy a packet of cigarettes on the black market for £2.50 while the retail price, as we have already heard, is £4.33 or thereabouts. That represents a saving of 42 per cent, or almost £2, per packet. Therefore, of course people will be tempted to buy smuggled products. Indeed, even the Paymaster General admits that in the year 2000 22 per cent of all cigarettes smoked in this country were smuggled. That equates to 18 billion smuggled cigarettes--quite a heady figure--and a loss to the Revenue, again, as we have already heard, of almost £3 billion a year.

In my view, by far the worst smuggling statistic is in relation to the hand-rolling tobacco sector. It is reliably estimated that 80 per cent of all hand-rolling tobacco in this country is non-UK duty paid. That is a staggering figure. It is very difficult to try to rationalise that the ban on advertising and sponsorship proposed in the Bill will have any effect on reducing that figure or, indeed, overall consumption.

If a manifesto pledge is found to be misguided because of the consequences that its implementation would have, I believe that other more appropriate means of achieving the Government's objective should be found. It is possible that the Government have come to the same conclusion. The timing of the introduction of this Bill into your Lordships' House means that it will be almost impossible for it to pass into law if an election is held in May this year.

I want to touch briefly on the health implications. It is undoubtedly true that smoking cannot be regarded as good for one's health. One of the reasons cited for the introduction of this Bill is that it is believed that it will reduce consumption by 2.5 per cent. Quite apart from the fact that such a reduction in consumption cannot be convincingly argued against the facts, that says something very serious about the interference in our lives by this Government and about their lack of consistency.

If noble Lords are considering drugs that damage health, they should take, as an example, drink. It is, if one likes, another legal drug. Let us consider the burden that patients hospitalised as a result of excessive consumption has on the National Health Service. The Royal College of Physicians estimates that drink-related health problems could account for up to 12 per cent of total NHS spending--that is, approximately £3 billion a year. Will the next step of this Government be to introduce a similar ban on drink advertising and sponsorship, saying confidently that that will free up so many thousand National Health Service hospital beds? If they do, in my view the case will be equally unproven and equally unfair.

Where does that sort of approach end? Why not ban car advertising? I am not being terribly serious in asking that question but, after all, cars kill children and cause many thousands of deaths and injuries every year. We are beginning to witness an increasingly regulated state interventionist mindset which runs counter to what this Government profess to aspire to; namely, joined-up thinking, less legislative burden and the reduction of red tape.

In the context of legislative burden and red tape, I want to touch on Clause 7, to which my noble friend Lord Tebbit and others--the noble Lord, Lord Naseby, in particular--referred. I regard it as a Henry VIII clause. I have been in this House long enough to know that the one thing that can be guaranteed to antagonise your Lordships and arouse suspicion is the insertion into a Bill of a Henry VIII clause. Therefore, I shall strongly oppose that clause in Committee.

As currently drafted, the Bill gives incredibly wide-ranging powers to the Secretary of State. Clause 7 is one example; there are others. The power which it confers is aimed at Internet and electronic promotion of tobacco. It would, I believe, be wholly wrong to allow such powers to stay in the Bill. This is a very complicated area which will require proper parliamentary scrutiny if for no other reason than to avoid the law of unexpected consequences. The electronic aspect and the attempt to cover that in the Bill are, frankly, a minefield.

Quite apart from that, but no less serious, are the powers of entry into premises, as set out in Clause 14. That clause gives an enforcement authority rights to enter premises by force. Such premises could include private homes where part of the home is used as an office or where the occupant or company is under suspicion.

Then we come to the absurd aspect under Clause 4, which states that apparently no offence is committed if tobacco advertising appears in a magazine whose principal market is not the United Kingdom and which has been published on the Internet. This is the Alice in Wonderland aspect of the Bill. We all know that the Internet knows no international boundaries, as is graphically illustrated by the fact that another way of describing it is "the world-wide web". Therefore, it will be very difficult, or even impossible, to say where the principal market is aimed.

There are so many loose ends in the Bill. To what extent this Government can legislate on such matters in Scotland, as they set out to do in Clause 13, is just one more matter that I should like to question--never mind the question of whether this legislation would fall outside the Treaty of Rome and EC legislation on free trade practices. In his opening remarks, the Minister made a point of saying that European Council Directive 98/43/EC is the very legislation on which this Bill is based. However, it was annulled on 5th October 2000 following a legal challenge.

The Bill is misconceived and presents a very dangerous precedent. It is unfair for an industry that is going about its lawful and legal business to be discriminated against in this way. The voluntary agreements that are in place between the industry and government have worked well over the years and have, until the recent draconian tax increases, achieved a year-on-year reduction in consumption.

If the Government are serious about their objective, they should dispense with the Bill, reduce excise duty to more sensible levels and continue to have a dialogue with the industry through voluntary agreements.

Photo of Lord Monson Lord Monson Crossbench 5:20 pm, 28th March 2001

My Lords, perhaps I should start by mentioning that I am a supporter of FOREST--wholly unpaid, of course--although I am not sure that that is relevant to the Bill, which relates to an advertising ban, not to a smoking ban.

No government in a free society should create yet another criminal offence or extend the scope of censorship--both of which the Bill will do--without a very good excuse. I submit that in this case the Government have not got that justification. In this country, as in all democratic countries, smoking has always been a perfectly legal activity. It has normally been taxed quite heavily for health, social and revenue reasons, in the same way as alcohol is heavily taxed. However, fiscal "dissuasion", so to speak, is one thing, but criminalisation is a very different matter. The latter is particularly inappropriate with regard to tobacco advertising because it is clear that no adult will be induced to smoke more or to take up smoking for the first time in consequence of seeing an advertisement. Indeed, with regard to adults, social pressures nowadays are all in the other direction, especially in Britain and the United States.

The Government may argue with reason--they have not yet advanced this argument--that libertarian principles sometimes have to be subordinated to the protection of minors and that that is their main aim in the Bill. Were they to do so, I should suggest that that argument would carry more weight if the Government had not recently devoted massive efforts, including the use--or possible misuse--of the Parliament Act, to ensure that 16 and 17 year-old boys and girls can legally be subjected to a practice that is far more harmful to their health than smoking a cigarette will ever be. The noble Lord, Lord Tebbit, made a point along the same lines.

It is not advertising that tempts young people into smoking, as the Independent said in an excellent leading article on 9th December last year, an article mentioned by my noble friend Lord Harris of High Cross. "Epater la bourgeoisie"; "Thumb your nose at your elders"; "Taste the forbidden fruit"; such have always been the natural inclinations of young people throughout the western world. If smoking were made compulsory, we could be certain that the young would give it up as soon as they could.

One might add to the inducements that young people face to take up smoking the example set in southern Europe, where smoking is still chic, particularly among women. Are we going to ban young people from travelling to Italy or Spain? Although I am afraid that I have only rarely seen the television soaps that were mentioned by the noble Lord, Lord Tebbit, what should we do about old films that are shown on television and in which the handsome hero and ravishing heroine play every scene with cigarettes firmly clamped between their lips? Will the BBC and ITV be ordered to censor those films in the same way in which politically correct zealots in the United States have managed to airbrush out of photographs of Franklin Delano Roosevelt the cigarette that was permanently in his hand?

One suspects that the Government and the anti-smoking lobby would like tobacconists to resemble the betting shops of old. Noble Lords will remember that previous governments tried to make them as austere and forbidding as possible in order to discourage people from gambling. That did not work, and now betting shop proprietors have been allowed to brighten up their premises and make them more consumer friendly.

One also reads today that the drive against cannabis is being relaxed in practice if not in law. So much for consistency!

How will the proposed draconian restrictions help anyone? The Government make half-hearted murmurs about the prospect of a 2.5 per cent reduction in smoking. As several noble Lords have pointed out, that figure has been plucked out of thin air and is not supported by any evidence; it is simply a "guesstimate". Despite the comments of my noble friend Lord Walton of Detchant, the evidence regarding Norway is ambiguous. Although tobacco advertising has been banned for a long time, consumption has risen by 41 per cent over 20 years. I do not know whether that is to do with the prosperity that resulted from the oil boom, but it is a fact. Moreover, consumption in the United Kingdom, the Republic of Ireland, the Netherlands, Belgium and Luxembourg--there is a ban in none of those countries--has fallen more sharply than it has done in many countries in which a ban is in place.

Smuggling has not been taken into account. Throughout history, punitively high taxes have led to smuggling. Smuggling is viable when distances are short, as they are between France and Britain, and when population densities are high, as they are in this country: it would not be particularly viable to smuggle to Norway. Since the price of smuggled cigarettes is lower overall than highly taxed cigarettes, consumption will increase, as was pointed out by the noble Earl, Lord Liverpool, the noble Viscount, Lord Oxfuird, and the noble Lord, Lord Naseby.

What does an advertising ban mean? It means that manufacturers will be able to compete not on quality but only on price. Unless I have misunderstood the Bill and the Minister's opening speech, manufacturers will not be able effectively to inform the consumer that brand A contains less tar and nicotine than brand B; they will not be able to encourage customers to experiment (for example) with cigarettes that are made from air-dried tobacco, which contains less tar than flue-dried tobacco; and they will not be able to encourage people to experiment with cigars and cigarillos, both of which, I understand, contain less tar than cigarettes, or even with snuff, the advertising of which is inexplicably going to be banned although medical opinion deems it to be virtually harmless.

Quality--or at least the possibility of quality--will be replaced by cheaper quantity, whether legal or illegal. I have smoked enough awful state-monopoly tobacco in post-World War II Europe to know what I am talking about.

Such an illiberal Bill obviously needs much detailed scrutiny in Committee and probably during its later stages as well. Theoretically, there are 13 months of this Parliament left to run. There can clearly be no question of the Opposition agreeing to curtail debate and to agree to the Bill virtually on the nod should the Government decide to call an election 12 months earlier than they are obliged to do.

Photo of Lord Hardy of Wath Lord Hardy of Wath Labour 5:28 pm, 28th March 2001

My Lords, I begin by declaring an interest. I am a smoker and member of the club to which noble Lords have referred. I have enjoyed its hospitality, although I have no financial interest. From time to time I have also enjoyed hospitality from the establishment that came into my constituency at a time when unemployment had reached unimaginable heights. It created more jobs than we had seen for some years previously--and, indeed, subsequently. That establishment held the packaging material and tobacco of a major company. I did not and do not smoke the products of that company.

That reminded me of the concerns about the protection of brands. The tobacco industry says that it is keen to advertise in order to protect brands. If advertising is prevented, especially if the illegally imported trade is to continue, the danger of a reduction in British production in favour of overseas production will not do this country very much good. It is for that reason that I hope the Minister will pay particular attention to that argument.

In relation to smuggling, I take the historic view that the smuggler is popular. The smugglers in Napoleonic times were among the most popular people in the country, although they were providing considerable assistance to the French economy. Our concern may be rather more widely distributed throughout Europe if we consider the attitude of those countries within the EU which grow tobacco.

My anxiety relates to whether the statistical base of the Government's argument is correct. My noble friend quite properly referred to the World Bank and the research in that regard. He suggested that it was almost certainly correct. I do not disagree. My concern is that this Bill may well encourage and provide ammunition for the maintenance of the assault on smokers which those of us who smoke have witnessed with increasing frequency in recent years.

I have been smoking since my early teens. I was smoking when I was a schoolmaster--I referred to this in a recent debate in the House--and was left with a class of over 40 children and no classroom. I had decided to stop smoking at that time but found it increasingly necessary mid-morning and mid-afternoon to have a quick cigarette in the staff room. I could not do that now and therefore would probably have been subject to the term "stress", which I do not believe we encountered before 1970. I would have been able to sue my local authority for several hundred thousand pounds and regret, perhaps, that I was not a policeman in London.

Those of us who smoke fear that we will be increasingly badly treated. For example, after a great deal of effort we persuaded the last government to accept the scheme for the compensation of miners with bronchitis and emphysema. But they included a rather nasty little condition. If a miner was seen to have been a smoker, then the benefit he could receive was significantly reduced. A miner who was born in the middle of the 1920s and started working down the pit in the middle or late 1930s, at which time he probably started smoking, would have been smoking for at least a score of years before there was any clear medical evidence that it was harmful to him. Yet now we penalise him for starting to smoke in the 1930s. It suggests that the last government were as anti-smoker as are the present government.

My other anxiety is that this Bill will reinforce those who are opposed to smoking per se, and who often use the passive smoking argument quite violently. The noble Lord, Lord Walton, was right to say that although the medical evidence of the harm caused by direct smoking is clear, neither the Government nor anyone else have been clear about the dangers of passive smoking. For example, I understand the World Health Organisation sponsored significant research into passive smoking carried out by seven centres in 12 countries and found no clear evidence. The department has not been clear in that regard and was not clear under the last government.

Let me give an illustration. In 1995-96 a number of my constituents were complaining to me about a ban imposed on smoking by the Rotherham Hospital Trust. It told the employees that there would be no smoking within the hospital and outside it, including the car park. Some of my constituents--one a nursing sister who had not had a day off in 25 years--came to me to say they wished to have a smoking room. I wrote to the trust and the trust replied, saying, "It is not our decision. The Minister instructed us to do this". So I wrote to the Minister. In reply the Minister sent me a copy of the advice he had given to all hospital trusts. It recommended that the National Health Service should discourage smoking but that members of staff should have a smoking room.

When I received that information from the Minister, I wrote to the acting chief executive and asked for an explanation, since he had clearly misinformed me. I asked the trust to reconsider, since 512 members of its staff--some who smoked and some who did not--had asked for a smoking room, in accordance with the advice given by the Minister.

That was in early May 1995. I had not received a letter in reply in June, July or August, though I had sent reminders. So in early September when we had our annual meeting with the trust, the chairman said, "Gentlemen, I will give you the agenda". I said, "No, I will tell you what the agenda is. Item one, my correspondence and your failure to reply". I immediately received an apology and an assurance that it would be considered. In October I received a letter saying the trust was confirming its decision. I wrote again. In the end I wrote to Madam Speaker--now the noble Baroness, Lady Boothroyd--who permitted a debate on 17th January 1996.

Mr. Horam was the Minister who replied to that debate. I pointed out my experience in the case in some detail. I suggested that the car park ban was a bit odd, because people might wish to go to their car in anxiety, stress or tension. Hospitals are not always the happiest places. The Minister seemed to have been informed that virtually everyone in the whole area apart from myself was unanimously and wholeheartedly in favour of the ban. However, the trust let me know that it would not apply the ban in the car park.

I retired from the Commons in 1997 and just after the election I went to the hospital to visit a friend. Noble Lords can guess what I saw in the car park: prohibition of smoking. There was no justification for that on the basis of ministerial instruction, yet the last government allowed that degree of excessive nannyism--a phrase we have heard on several occasions--and the ban still exists. Yet I have not seen any convincing evidence that passive smoking is as harmful as some of the smoke-finder self-appointed generals seem to suggest.

We should not smoke where we ought not to do so. We should not smoke to encourage young people. My sons do not smoke and I have never in my life, certainly as a schoolmaster for a long time, encouraged young people to smoke. But the difficulty is, as my noble friend Lord Mason said, that people will continue to smoke as long as we have a structure encouraging smuggling and where the smuggler is seen as a hero. Until that issue is addressed we shall see more crime--a crime of growing scale at the present time which has serious implications for society--which makes me uneasy.

I accept that the Bill is a manifesto commitment. I accept that the problem of smoking will continue to require consideration by the Government. I believe that if the tobacco industry is wise, it will continue to try to produce less harmful products. But if it succeeds, it should have the right to advertise them. I trust that the Government will give serious thought to those points, not least to the need to reduce the tensions and hostility between those who hate smokers and the freedom of smokers to smoke in a free society in a responsible manner. I hope also that the Minister will pay particular attention to the need to avoid yet another tranche of job losses in the manufacturing sector.

Photo of The Earl of Northesk The Earl of Northesk Conservative 5:39 pm, 28th March 2001

My Lords, I begin by making the point that, in case any of your Lordships had not noticed, I am an inveterate smoker. I am also a member of the Lords and Commons Pipe and Cigar Smokers' Club presided over so ably by the noble Lord, Lord Mason. Against that background I willingly concede that significant health and public policy issues need to be addressed in the context of smoking, tobacco products and their promotion.

None the less, I find the Bill deeply disturbing. One of my major concerns is that there is a sense that the Bill is imbued with an air of fanaticism. However worthy and desirable its objectives, it is weighted firmly to one side of the argument. That makes it all the more important that the justifications which the Government advance for the Bill are properly tested. With that in mind I would ask the Minister if the Government sincerely believe that the advertising of tobacco has been a major contributory factor--many other noble Lords have referred to this point--in the increase in tobacco consumption since 1997 after some 25 years of decline.

I would also ask the Minister to what extent the drafting of the Bill has been informed by consultation and discussions with the tobacco industry. That is important because--I echo the sentiments of my noble friend Lord Geddes--there is an intellectual, if not ethical, inconsistency at the heart of the Bill.

Writing recently in the Daily Telegraph, Tom Utley posed the following questions:

"What is the purpose of the Government's policy on tobacco? Is it to discourage the British people from smoking? Or is it to raise as much money as possible from smokers, by way of taxes and duty on tobacco?", and,

"if the Government were seriously determined to stamp out smoking, why does it not seek to ban the sale of tobacco?".

Like the noble Lord, Lord Dubs, the Government will argue that it is not their intention to stamp out smoking. That begs the question of how appropriate it is that a perfectly legal product--Ministers freely concede that point--should be subject to a comprehensive, unilateral and in many ways arbitrary measure, one of the major effects of which will be to constrain the industry concerned from exercising legitimate commercial freedoms. As Tom Utley points out,

"The trouble with this government is that it cannot decide whether its purpose is to discourage smoking or to maximise the tax yield from tobacco. It is trying to do a bit of each--and in the process it is failing in both aims".

Far from resolving that dichotomy, the Bill will entrench it.

That polarisation of policy objectives is mirrored in the Bill's provisions for the Internet. We have become inured to the oft-repeated mantra that the Government are aiming to make the UK the best and safest place in the world for e-commerce. That is all good and well. But measures such as IR35 and the Regulation of Investigatory Powers Act work against the grain of that ambition. Far from promoting or facilitating the development of e-commerce in the UK, they act as constraints and disincentives. So it is with the Bill which, in terms, reveals a scant understanding of the way in which the Internet works.

The point at issue here is to be found in the drafting at Clause 5(5) which refers to:

"a tobacco advertisement which is published or caused to be published by electronic means by an internet service provider".

The difficulty is that in no sense are ISPs publishers. Rather, they are the virtual equivalent of the Royal Mail. In terms, the effect of the Bill is to create the prospect of postmen being statutorily empowered to steam open personal mail with a view to censoring its content. That analogy of ISPs as postmen is well established. Thus, notwithstanding the insistence of the Minister that the Bill complies with the e-commerce directive, Article 12 of that measure defines an ISP as a "mere conduit" of information and states:

"Member states shall ensure that the ISP is not liable for the information transmitted on condition that the provider:

(a) does not initiate the transmission;

(b) does not select the receiver of the transmission;

(c) does not select or modify the information contained in the transmission".

In the same vein, the Defamation Act 1996 states:

"A person shall not be considered the author, editor or publisher of a statement if he is only involved

(c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded".

Self-evidently, the drafting of Clause 5(5) completely contradicts that, yet the effect of the Bill is to make ISPs liable for third-party content on their servers. At the same time, as my noble friend Lord Lucas pointed out, they are required to comply with the terms of the Regulation of Investigatory Powers Act, which provides that unwarranted interception of material is illegal. Moreover, in so far as third-party content can be defined as personal data, the provisions of the Data Protection Act also apply.

In other words, ISPs are operating under a growing burden of regulations which increasingly pulls in conflicting directions. The potential consequence of that should not be underestimated. It could be the straw that breaks the camel's back. ISPs will no doubt give serious consideration to the desirability of migrating to less burdensome regulatory regimes, should the Bill be enacted in its current form. That would leave in tatters the Government's ambition to make the UK the best place in the world for e-commerce.

I conclude with one small thought. The British Codes of Advertising and Sales Promotion, administered by the Advertising Standards Authority require that, among many other restrictions, advertisements should:

"be legal, decent, honest and truthful".

As things stand, that applies as much to the tobacco industry as to any other. Yet, since January last year, the codes have not applied to any advertisement whose,

"principal function is to influence voters in local, regional, national or international elections or referendums".

Given the nature of the Bill before us, what are we to make of the fact that the Government are comfortable with the concept that political parties do not have to be legal, decent, honest and truthful in their advertising? Is it too churlish to suppose that there is a slight whiff here of pots and kettles?

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour 5:46 pm, 28th March 2001

My Lords, I start by declaring an unpaid interest as a patron of the Roy Castle Lung Cancer Foundation. Unlike the previous four speakers, I wish to give complete and unreserved support to the Bill. I do so because it is a measure which will make an important contribution to public health and saving lives. As we have heard from the Minister, it may save as many as 3,000 lives a year; the equivalent of the number who are killed each year on our roads. But even if the number is not as great as that, I would agree with the comments of the health spokesman for the Liberal Democrats in another place, who stated that even a small decrease in smoking that might result from an advertising and promotion ban would be worthwhile. He said that if only a few lives were saved or a few families were spared the misery of seeing one of their loved ones die a horrible, lingering death, it would be worthwhile. If people avoided having to undergo expensive and particularly nasty treatments, and if that resulted in only a small saving to the National Health Service, it would be worthwhile.

In particular, I welcome the fact that the Bill for the elimination of tobacco advertising and sponsorship should have a direct result on the number of children and young people who start to smoke. I am aware that the apologists for the tobacco industry outside this House and, from what we have heard today a few in it as well, who oppose the Bill claim that all advertising and sponsorship does is to promote brand loyalty and encourage smokers to switch from one brand to another.

We heard that argument, in particular, from the noble Lord, Lord Harris of High Cross. He claimed--I am sure the noble Lord will correct me if I have his argument wrong--that cigarette advertising was analogous to the advertising of soap powder. He said that it does not increase consumption; and that all it does is to increase brand awareness. The noble Lord nods in agreement. There is one big difference. Soap powder does not kill 120,000 customers per year. Therefore, soap manufacturers do not need to replace that number of customers each year with new ones. Because tobacco kills, the manufacturers of that product need to attract new customers. If noble Lords have any doubt about that, I suggest that they look at what the Health Select Committee in another place found when carrying out its investigation into the conduct of the UK tobacco industry. The Committee obtained, properly and legitimately, the internal working papers of the five advertising agencies retained by the tobacco companies. Those papers filled 16 large boxes of documents. They reveal a shocking story of deceit, a cavalier disregard for people's health, especially the young, the poor and the vulnerable, and a determination to get round the restrictions.

The advertising agencies make no secret of the fact that their campaigns are intended to encourage people to start and continue smoking, especially young people. They aim to enhance the social acceptability of smoking; to increase per capita consumption; to recruit new smokers and to discourage existing ones from giving up.

They know that children are more aware of tobacco advertising and influenced by it than are adults. Earlier this month, the British Medical Journal published the results of a study which showed that out of a sample of 629 young people aged 15 and 16, around 95 per cent were aware of tobacco advertising and all of them had seen some form of advertising at the point of sale.

The industry is obviously aware that the general advertising ban is coming, but it is hoping that there will be exemptions which allow point-of-sale brand advertising, particularly in convenience stores. An article in The Grocer of 3rd March quotes the managing director of a leading Scottish chain saying that the tobacco companies

"have realised the last place they will be able to advertise in the UK will be in the convenience stores. Every day I get a phone call. They offer all sorts of things".

That can include a complete store re-fit, provided that retailers meet their criteria. I hope that my noble friend will be able to reassure us that the ban on tobacco advertising can be extended to point-of-sale material in shops which are used predominantly by children.

Children do not buy the cheapest brands. In 1995, the BMA reported that 61 per cent of children who smoke, smoke Benson & Hedges, the most heavily advertised brand. In Scotland, according to research by the University of Strathclyde, the children are smoking Lambert & Butler, again, a product which is extensively promoted.

Sponsorship of glamorous sports provides another way for the tobacco industry to make an impact on the youth market. The Lancet published research in 1997 which showed that boys are nearly twice as likely to become regular smokers if they are motor racing fans. University researchers at Strathclyde have shown that children associate Marlboro with "fast cars and excitement".

Sponsorship is the continuation of tobacco advertising by other means, including through the BBC. Embassy snooker achieved 376 hours of television coverage and cumulative viewers of 385 million in the 1996-97 season.

Some sports have resisted tobacco money, notably association football and the Olympics. I should be most surprised if my noble friend Lady Gibson saw any tobacco advertising at Ipswich. I am not aware of any way of advertising tobacco in football. However, many other sports, such as cricket, rugby and snooker, have offered a willing vehicle for promoting tobacco. Sport, with its associations with action and youth, offers excellent images and role models to the tobacco industry.

That is especially important in recruiting young smokers; a process of exciting experimentation eventually consolidated by addiction. That approach is described in a tobacco industry internal document as follows:

"A cigarette for the beginner is a symbolic act. I am no longer my mother's child, I'm tough, I am an adventurer, I'm not square. As the force of psychological symbolism subsides, the pharmacological effect takes over to sustain the habit".

That is taken from the speaking notes of Philip Morris's, vice-president for research and development delivered at a company board meeting and revealed under disclosure rules at a US court hearing.

When the Indian associate of the British American Tobacco group sponsored the Indian World Cup cricket team in 1996 with its Wills brand, a survey showed that smoking among Indian teenagers increased five-fold. There was also a marked increase in false perceptions such as, "You become a better cricketer if you smoke Wills", and "Teams with more Wills smokers will fare better". Contrary to the widely held perception among school children, the Indian cricket team had no smokers at all.

I hope that the Government will keep a close eye on everything that the tobacco companies get up to. Philip Morris, for example, provide Ferrari with £45 million a year and it is looking for ways to divert its advertising and sponsorship budgets into new ways of dodging restrictions. Unless it is stopped, we will see more brand stretching--the creation and advertising of spin-off products such as Marlboro clothing--all used to promote tobacco, particularly in the youth market.

We have heard a certain amount in the debate about tobacco smuggling. I wonder how many of your Lordships saw in the Independent on Sunday a long article headed, "Tobacco giants traded with drug barons". I shall quote only a short extract from it.

"Two of the world's biggest tobacco manufacturers knowingly sold cigarettes worth billions of pounds to Latin American drug barons and to a smuggling ring based in Britain. Court papers lodged in New York claim that Philip Morris and R J Reynolds had 'a scheme to smuggle cigarettes on a worldwide basis'...The two tobacco corporations also set up lobbying groups to further maximise their profits by demanding tax cuts because the smuggling was the result of unreasonably high cigarette duties".

How strange it is that we have heard that argument on a number of occasions today. The article continues,

"The two companies 'control, direct, encourage, support, promote and facilitate the smuggling of cigarettes into the European Community'...They make arrangements for smugglers to pay for their purchases through Swiss bank accounts".

And so it goes on. The companies are facing legal action brought by the EU Commission for an estimated £3 billion lost in taxes over 10 years. If they lose, they could be forced to pay damages and fines totalling £12 billion. When we talk about smuggling, we ought to be aware where it starts.

Furthermore, I wonder whether my noble friend saw the article in the Financial Times on 20th March about a

"second wave of even more devious marketing techniques".

The article states:

"In the US as part of an agreement with the federal authorities, Philip Morris has begun a string of community 'antismoking' initiatives. As part of the initiative, a school book cover distributed to 43,000 schools in California shows a colourful cartoon snowboarder with the words "Don't wipe out. Think. Don't Smoke'. Although education bodies were delighted at first, they later noticed something sinister. When studied closely, the snowboard appeared to resemble a lit match and the snow cigarette smoke".

Those of your Lordships who have ever attempted to persuade your teenage children not to smoke, as I have, know that if you associate anti-smoking messages with boring establishment bodies, you enhance smoking's rebellious connotations and turn it into a rite of passage. So we can be sure that the tobacco industry will be able to afford the best and most expensive psychologists who specialise in teenagers and we can expect to see lots more "reverse advertising" based on the belief that if kids are told not to do something, they do the opposite.

What will make a difference is a ban on cigarette advertising and rigorous action against smuggling. Norway, Finland and New Zealand have all recently prohibited tobacco advertising as part of a comprehensive tobacco control strategy. The per capita consumption of cigarettes dropped by between 14 and 37 per cent after the ban took effect. That is why this Bill is so important and why we should welcome it unreservedly.

Photo of Lord Glenarthur Lord Glenarthur Conservative 5:58 pm, 28th March 2001

My Lords, it may be a Bill of modest size in terms of its dimension on paper but I believe that it is a Bill of truly major significance. Although the noble Lord, Lord Hunt, did not use these words, the Minister for Public Health in another place described the Bill as "a ground-breaking measure". I presume he means something which has not been done before. He based that remark on two counts. First, it introduces a comprehensive ban on tobacco advertising and sponsorship. Secondly, it makes specific provision to address advertising on the Internet. I believe that the Minister in the other place was excessively modest; the Bill is much more significant than merely "ground-breaking".

I have spoken on the subject previously and have had a number of conflicting interests to declare. First, I hate smoking, which is well known by most of your Lordships, although I have learnt to be tolerant. I have no hostility whatever to those who wear the tie that is being sported by the noble Lord, Lord Mason of Barnsley, who is not in his place, and others who are members of the same club.

Secondly, between 1989 and 1996 I worked for Hanson plc, which owned Imperial Tobacco. Following the Hanson demerger, I continued for a couple of years as an adviser to the Imperial Tobacco group. Thirdly, during that period and subsequently I was chairman of an NHS trust, which did not exactly encourage smoking, and I am now governor of Nuffield Hospitals where the same conditions apply. I have never smoked, although, interestingly, for a short time on medical advice I was encouraged to take snuff. I dabble in that now only occasionally.

Paragraph 1 of the regulatory impact assessment which was published last year states that,

"The ban is to cover any means of bringing a tobacco product to the attention of the public".

That is a far more ambitious and comprehensive objective than a simple ban on tobacco advertising and sponsorship. It also goes much further than the principle which I believe was in the Labour Party's manifesto pledge at the time of the general election in 1997. That principle, which was far more modest, was to ban tobacco advertising, but somehow the Government's ambitions have grown: first, by the inclusion of a ban on sponsorship, and, secondly, by their support for the European directive on tobacco advertising, which in October of last year was annulled by the European Court of Justice. This Bill largely mirrors the provisions of that directive. I believe that the principled objections to the directive apply just as much to this Bill.

Like the directive, the Bill was promoted by the Department of Health. No one would expect it to be essentially a Bill about health with predictable health provisions, which I am certainly keen to support. In that respect I share the views of the noble Lord, Lord Walton of Detchant. But the Bill is not just about health, any more than was the directive which, according to the European Court of Justice, was wrongly promoted as a single market measure. The provisions of this Bill appear to be concerned almost solely with issues of business and commerce which I believe are more appropriate to the Department of Trade Industry than simply the Department of Health.

Of course the Bill has a health objective. The health risks of smoking are well known and have been generally recognised by successive governments. The connection made by the Government is that tobacco advertising and promotion has the effect of increasing tobacco consumption and the prevalence of smoking; in other words, for the Government, tobacco advertising is a public health issue, as the noble Lord, Lord Hunt, said at the beginning of the debate.

In the light of the observations of the noble Lord, Lord Walton of Detchant, I entirely agree that there is some evidence to support the contention that the limited tobacco brand advertising permitted in this country might be responsible for an increase in the prevalence of smoking. But no one is able to justify that completely.

Similarly, there is no reliable or convincing evidence that this Bill, which bans any means of bringing tobacco products to the attention of the public, will reduce consumption. It is a piece of guesswork. Even the Government admit in the Explanatory Notes to the Bill that their justification for the Bill is no more than an assumption, made for the purpose of the Bill, that the outcome will be a reduction in consumption in the long term of about 2.5 per cent.

The Government have prayed in aid two studies. The noble Lord, Lord Hunt, referred to the Smee review published in 1992. That was carefully dealt with by the noble Lord, Lord Harris of High Cross. However, perhaps the noble Lord could have referred to one additional point; namely, that those data were probably flawed. But, even more significantly, the author of the report made clear in a statement published in The Times on 22nd January 1993 that the Smee review,

"looked at the conflicting evidence of bans in other countries and made no estimate for the UK".

What is the value of that particular piece of evidence?

The second report cited by the Government is the much more recent review published by the World Bank in 1999. The principal relevant conclusions of that report were: first, that price increases on cigarettes were highly effective in reducing demand, and that policymakers should use as a yardstick the tax levels adopted as part of the comprehensive tobacco policies of countries where cigarette consumption has fallen. Secondly, non-price measures can reduce demand for cigarettes but comprehensive bans can reduce demand by more. It does not say that they always do, any more than the report claims to have specific relevance for the UK where tobacco advertising and promotion is already severely limited.

If the first conclusion is truly valid, why does this country now have the greatest tobacco smuggling problem of any country in Europe, as so many noble Lords have said? If the loss is £1 or £2 billion a year, since 1997 the Exchequer has lost between £8 and £9 billion of potential tax revenue, which is a very substantial figure. Worse than that, children have gained easier access to tobacco products. Thousands of legitimate retail businesses have been affected. As my noble friend Lord Oxfuird said, perhaps most important of all--and most disappointingly to all those who wish to see fewer people smoking in this country--tobacco consumption has increased since 1997 by 6.5 per cent. I fear that this Bill will not assist in any way to reduce that consumption: it may well have the perverse effect of increasing it.

My noble friend Lord Naseby referred to price as the most important determinant of tobacco consumption; indeed, the precept which underpins the general policy of governments is to increase tobacco excise as a means of reducing overall consumption, except when it leads to the development of an illicit market in smuggled products. However, I note that the increase in tax in the previous Budget was remarkably small. I wonder why.

Without the ability to undertake brand advertising and promotion, which is the objective of this Bill, the sole means by which manufacturers will be able to compete one with another is by distribution and price. That will lead to a major change in market behaviour and purchasing. Prices will become a much more significant factor, as my noble friend Lord Liverpool said, with competitive pressures reducing average prices in the medium to long term. Just as consumption is known to fall when prices rise, so consumption will rise as prices fall. I am, therefore, deeply concerned by the consequences for tobacco consumption which lie in this Bill. I believe that the Government's assumption of a reduction in consumption of 2.5 per cent is misplaced and misconceived. The Bill will increase, not reduce, consumption or the prevalence of smoking.

But matters are worse than that. The Bill goes to inordinate length to ban almost every possible avenue of communication between manufacturers. Your Lordships have heard before, and will hear again from me, that it is not against the law to manufacture or import tobacco products provided that the regulatory requirements relating to them are met. It is not against the law to sell tobacco products, except to children under 16. Those products are sold through more than 200,000 retail outlets. It is not against the law to buy and smoke tobacco products, and one third of all adults in the UK--15 million people--smoke. That is hardly a minority habit.

To return to the public health comments of the Minister in the other place, this Bill is a ground-breaking measure. Worse than that, to impose a total ban on all advertising, promotion and sponsorship relating to perfectly legal products is unprecedented. But other substantial freedoms which are restricted by this Bill have been referred to by many noble Lords this afternoon. Freedom of speech and expression is largely curtailed. The Bill does not even permit a manufacturer to initiate any contact with the customers for his products that may conceivably promote, or have the effect of promoting, those products to those persons. He is not permitted to do that even when the individual has expressed a desire for such communication. Therefore, the freedom of the individual is greatly limited by the Bill.

I understand that the Government seek to justify such an extreme provision by claiming that it is morally unacceptable for a manufacturer to make contact with smokers who at that point may be trying to give up smoking. The Government cite market research that indicated that 70 per cent or more smokers say that they would like to quit smoking. I am sure that that is the case. I am all in favour of it. However, the Government's policy is misguided in telling smokers how difficult it is to give up smoking, while, at the same time, urging them towards pharmaceutical products that may help them quit. The simple reason for that is that there are millions of people who have given up smoking in this country without the need for any assistance. Indeed, I understand that ex-smokers significantly outnumber current smokers.

My noble friend Lord Geddes referred to two lines in Clause 4(1)(b) of the Bill. I agree with every word that my noble friend said; it is a further demonstration of the Government's enthusiasm for banning things and their lack of enthusiasm for freedom of speech, other than perhaps in certain selected spheres such as culture. The Bill attacks the right to intellectual property in its provisions on what the Government call brand sharing. Why is that particular provision in the Bill necessary?

I should like to pick up on what my noble friend Lord Northesk said relating to e-commerce. I would simply stress one point that I am not sure that he referred to. That is that if the EC e-commerce directive must be undertaken by the Government by 17th January next year, why are the Government bringing in legislation in advance of that particular date? As the noble Earl said, in this country we try to make the best and become a market leader in e-commerce.

My last point relates to Scotland. Why should the regulations in Scotland applying to advertising at the point of sale, displaying of products, advertising in the shops of specialist tobacconists and the timetable for the ending of a sponsorship agreement, be any different from those in England, Wales and Northern Ireland? Perhaps the Minister in his closing speech will tell us whether that has anything to do with human rights law and the possible challenges to the Bill that might be made in Scotland.

The Scotland Act 1998 requires all Scottish legislation to be compliant with the European Convention on Human Rights. Legislation can be struck down by the courts if that is not the case. The courts do not have the same power with regard to legislation at Westminster, even if in subsequent proceedings the courts make a declaration of incompatibility which remains intact unless repealed or amended by Parliament.

There are far more certain ways by which we can achieve reductions in tobacco consumption and not have to pay the excessive price that the Bill demands. Nothing significant is being achieved by a policy of intense hostility to tobacco. It will not produce the intended reaction in the population. What is needed is a thorough review of the Government's overall anti-smoking policies in advance of any legislation and, I would also add, a review which ignores political correctness and prejudice.

Photo of Lord Palmer Lord Palmer Crossbench 6:13 pm, 28th March 2001

My Lords, smoking is the most disgusting habit ever invented. It is my biggest regret that, aged 17, I started to smoke. I am pleased to say that I have not smoked a cigarette for 11 years, as I vowed to my children that I would quit after my maiden speech.

I must declare an interest in that I smoke cigars and belong to the all-parliamentary Lords and Commons Pipe and Cigar Club, so ably convened by the noble Lord, Lord Mason. I apologise for not wearing my club tie this evening. I also should declare that my old family firm Huntley & Palmer Foods was eventually acquired by R J Reynolds Tobacco; and I think that the noble Lord, Lord Naseby, must have forgotten that he also used to promote our products.

I was told this morning that the debate would end at around 6.30 p.m. If it ends very much later than that, I fear I shall be unable to stay for the closing speeches. I apologise in advance to the House if that is the case. However, the tradition of staying for closing speeches seems to have gone by the way following the example of the noble Lord, Lord Bassam of Brighton, who was absent for the closing speeches at the end of the Second Reading of the Hunting Bill--a Bill which he introduced into your Lordships' House.

Personally, I think that all smoking should be banned. However, we all know that that is totally impractical as Her Majesty's Government would greatly miss the £10 billion annual revenue. But we must be realistic. Smoking of tobacco products is legal in all countries in the world. As long as it is legal, it must be wrong not to be allowed to promote it. I echo the elegant words of the noble Lord, Lord Geddes. I also totally agree with the remarks of the noble Lord, Lord Tomlinson, and others, about the idiotic case of tobacco subsidies being given to our European partners to grow tobacco. I hate the way that "banning" has become the new "in" word of Her Majesty's Government.

After the Countryside Alliance rally in Hyde Park three years ago, the Daily Star, of all papers, had an editorial which stated:

"Let's have a Bill to ban banning".

How I echo those words.

With three teenage children, one of whom has never smoked and two who have just given up, I am fortunate to come into contact with a great many teenagers. Unfortunately, many smoke and none of them is influenced by cigarette advertising as to whether or not to smoke. It is simply a matter of brand loyalty. Her Majesty's Government must take that matter on board.

Would not the Government be better employed tackling the large numbers of illegal cigarettes now so freely available--a matter mentioned today by almost every speaker--rather than abolishing advertising which has virtually no effect on consumption? The Government claim that banning advertising will reduce consumption, and yet they have not come up with any conclusive evidence to prove this theory.

There is one matter that concerns me tremendously. We must not forget that there is well-documented health advice on all tobacco advertising. However, if a ban ensues, that advice will no longer be available for the public to see.

If the Bill was going to have the desired effect of stopping people smoking then I would support it, but such a badly flawed Bill as this will not have the desired effect. I believe that the Bill is political correctness gone completely over the top. I am afraid that I cannot support it.

Photo of Viscount Simon Viscount Simon Deputy Chairman of Committees, Deputy Speaker (Lords) 6:17 pm, 28th March 2001

My Lords, I was fascinated by the reminiscences of the noble Lords, Lord Geddes and Lord Walton of Detchant. I, too, took advantage of the cheap cost of cigarettes in the 10 years that I was at sea. I gave up 30 years ago when I was forced to do so by a bout of encephalitis and meningitis which formed some kind of aversion to cigarettes. Despite that aversion, I lit up friends' cigarettes because I still had the desire for another eight years. Eventually the aversion won and I have not smoked for many years.

I am grateful to the Government for bringing forward the Bill, which should be whole-heartedly supported. I must declare an interest as I suffer from asthma contracted some six years ago which is made very much worse by inhaling any form of tobacco smoke, and, therefore, would benefit personally from fewer people smoking.

My noble friend Lord Hardy of Wath was somewhat dismissive of the effect of passive smoking on people. I can inform him from personal experience that I will have--I define the word "will" as 100 per cent certain--a serious asthma attack in less than 20 seconds if I inhale certain forms of tobacco smoke.

Let us make no mistake about the issue, the effect of the Bill would be a substantial reduction in the number of people smoking and, more importantly, the number of people dying from smoking. With the Bill we have a chance of saving thousands of lives each year. The Government's estimate is that 3,000 lives a year will be saved through banning advertising. That is almost exactly the same number as those killed on the roads each year. As a nation we are rightly prepared to spend huge sums of money to reduce the number of road deaths; with the Bill we could save the same number of lives without spending anything. The figure of 3,000 a year may even be a cautious estimate, because the World Health Organisation believes that almost twice that number of lives could be saved.

The tobacco companies, and their representatives in this House and in another place, will say that there is no need for the Bill, that advertising does not lead to anyone taking up smoking. That very much begs the question of what on earth this advertising is for if not to encourage non-smokers to smoke and to discourage smokers from giving up. Furthermore, if that is the case, why are they wasting such huge amounts of money on pointless advertising?

The chairman of McCann-Erickson, an advertising company that has handled multi-million pound tobacco contracts, backs up this view. He said:

"The cigarette industry has been artfully maintaining that cigarette advertising has nothing to do with total sales. This is complete and utter nonsense. I am always amused by the suggestion that advertising, a function that has been shown to increase consumption of virtually every other product, somehow miraculously fails to work for tobacco products".

That is, in effect, somewhat contrary to the viewpoint of various noble Lords who have spoken in the debate.

Photo of Lord Monson Lord Monson Crossbench

My Lords, does the noble Viscount think that the consumption of washing powder increases because it is advertised? Surely the same amount will be used. Advertising simply causes people to switch from one brand to another; nothing else.

Photo of Viscount Simon Viscount Simon Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I tend to disagree with the noble Lord. We have our own points of view.

The noble Lord, Lord Lucas, was clearly concerned about advertisements cleverly concealing their real purpose. I wonder whether he has considered the fact that, as a health warning has to be given, any editor or owner of a publication can be in no doubt that tobacco products are involved.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, if an advertisement was so obviously a tobacco advertisement, one would not need to reverse the burden of proof to prove that someone knew that it was a tobacco advertisement. It is plain and obvious. It is the reversal of the burden of proof, not putting an onus on publishers, that concerns me.

Photo of Viscount Simon Viscount Simon Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I certainly see what the noble Lord is getting at. But the fact remains that a health disclaimer has to be put on any tobacco advertising. If any editor or owner of a publication sees that, he knows that the product is tobacco.

The fact is that the advertising of cigarettes, like advertising for any other product, works. In every country where tobacco advertising has been banned, it has led to a sharp fall in the number of people smoking. Much as we like to pretend the opposite, we are all vulnerable to the advertiser's art. The big difference, though, between tobacco advertising and the advertising of any other product is that only tobacco products will kill you if they are used exactly according to the maker's instructions.

I suppose that we should not be too surprised that the tobacco companies would be a little reluctant to give us the real reasons why they want to keep on advertising. After all, these companies do not have a flawless record when it comes to being honest with their customers. They maintained for years--even under oath in the United States--that smoking did not cause cancer, when their own internal documents revealed that they knew many years earlier just how harmful tobacco was. They continued to maintain that smoking is a habit that is no more addictive than playing the National Lottery. I am led to understand by ASH that the Department of Trade and Industry is currently investigating one of the largest of their number--British American Tobacco--for alleged involvement in aiding and abetting smuggling. As I said, these companies do not have a flawless record. That is why we must take with a pinch of salt their reasons for opposing the Bill.

These companies would rather see a continuation of voluntary self-regulation. They argue that that has worked well. Indeed it has--for the tobacco companies. A Health Select Committee report in another place summed up their attitude to this regulation best by saying:

"Regulations have been seen by tobacco companies as hurdles to be overcome or side-stepped; legislation banning advertising as a challenge, a policy to be systematically undermined by whatever means possible".

That is a damning assessment of their attitude and one which underlines the need for legislation to prevent it carrying on. We should give the Bill every support, as an important step in improving public health.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative 6:24 pm, 28th March 2001

My Lords, I have two interests to declare. The first is that, like some other noble Lords, I am a lifelong non-smoker. I tried a couple of cigarettes when I was taking my university finals more than 30 years ago. Unlike my noble friend Lord Tebbit, I did not inhale, but I still thought that they were awful and I have not tried again since.

My second interest is that over the past two years I have attended two cricket matches as a guest of Gallaher in my capacity as Opposition spokesman in your Lordships' House on sport. That should be put within the proper context. Over the past 30 years I have attended countless golf tournaments and football and cricket matches--I am the golf nut and my husband is mad on cricket and football, so we see the lot--both as a paying customer and as a guest of friends who have nothing to do with the tobacco industry.

I put down my name to speak because of my concern about what will happen to some sports over the next three or four years as they face the cliff-edge in the loss of their sponsorship by tobacco companies. Earlier in the debate the noble Lord, Lord Faulkner of Worcester, referred to sports sponsorship within the context of what it might do in attracting new business. I am addressing the issue from the point of view of the impact that the Bill will have on sports governing bodies themselves.

I do not object to the Bill on the basis that it seeks to reduce smoking--I hope that I have made that clear--but it is a flawed Bill because of its unfair treatment of different sports, all of which currently rely heavily on tobacco sponsorship. Clause 19 allows the Secretary of State to make regulations to specify when the ban on sponsorship in Clause 10 should take effect. We know that the latest date is 1st October 2006. We also know that the Government will give preferential treatment to Formula 1 and snooker. I have nothing against either sport. Indeed, how could I, of all people, object to Formula 1 being treated fairly, living as I do in Woking, the home for a long time of McClaren! But I do object to the Government treating other sports unfairly.

It is perverse of the Government to say that two sports are global and therefore, hey presto, they can have until 2006 to sort out their sponsorship deals, whereas other sports like darts have to face that cliff-edge drop in sponsorship by July 2003, even though they have players from across the globe and have global appeal.

The Government set up a task force, which was intended to help sports adjust their sponsorship deals in advance of the loss of the tobacco industry money. I am grateful to the Central Council of Physical Recreation for its briefing on this matter. It attended the meeting in November 1997, which explored the issues surrounding the banning of tobacco sponsorship. It then wrote, via the Sports Sponsorship Advisory Service, on four occasions to 1,000 British companies highlighting the potential for sponsorship opportunities. To date, no sponsors have been found.

To suggest that sports can find replacement sponsors easily is a misunderstanding of the commercial market place. The current shortfall for the sports is estimated to be £10 million with an additional £10 million for marketing the sporting events. The general secretary/director of the British Darts Organisation, Mr Olly Croft, wrote to my honourable friend in another place, Mr John Greenway, and made this point about the task force:

"The 'Task Force' was simply a gesture to give the impression we were being given assistance. In truth, there probably isn't a business out there which can replace the funding we receive from Imperial Tobacco ... Our main concern is that we only have until 2003 to save our sport. What would help enormously is an extension to 2006 like Formula One and snooker. We can fulfil the Government criteria of being a global sport ... The number of countries which are members of the World Darts Federation or associate international members of the British Darts Organisation shows that that claim can be justified".

I have spoken to Mr Croft this week and he confirms that his views remain the same today. Will the Government undertake to reconsider this matter even at this late stage?

There is also the danger that the Bill could be just the first step in a series of banning orders on sponsorship of sports and arts in general. Will we see the state making a decision that other businesses should not accept sponsorship from alcohol producers? We heard a timely reminder of that risk from the noble Lord, Lord Stoddart of Swindon, with his intriguing First Reading of a Bill to prohibit the advertising of alcohol.

It is interesting to note that Carling has just given up its sponsorship of the Premier League, but the only realistic bidder able to take over as a sponsor is Budweiser, another brewer. One of the world's premier steeplechases is sponsored by Martell. The House should be alert to the damage that would be done if such sponsorship were ended.

I have pointed out that the Bill is flawed because of its unfair treatment of different sports, but it is also important to note that the Bill is flawed because of its inadequate definition of what constitutes a "tobacco advertisement". Have the Government considered the impact of Clause 2 on the incentives industry? By that I refer to those businesses which print the logos and advertisements on prizes and awards given away not to the public, but offered to employees during the course of a corporate sports event. The sector represents a large and serious business in this country.

What will happen in the future at a tobacco company sports day such as, for example, a golf day? It is normal practice for the corporate sponsor--the employer--to give those taking part--be they direct employees or even their guests--a clutch of golf balls to start off the day. I should observe to noble Lords if their game is anything like mine, after four years in this House and thus hardly ever playing, by the end of the day those golf balls are firmly lost in the rough. At the end of play, prizes are presented to those who last the distance. It is commonplace for all such items--golf balls, golf umbrellas, golf shirts and so forth--to be overprinted with a logo.

This practice is not "brand-stretching" in the manner referred to by other noble Lords in the debate. This is overprinting of equipment which has been made by other manufacturers who have no business relationship whatever with the tobacco company. But no doubt the items are used, in a sense, for advertising. Are they to be made illegal by this Bill? I believe that they will be. Is that right? No, I do not think that it is.

What would be the situation if no outside guests attended the event, but rather that it was run only for employees? Would that make a difference? This is a legal question which has not yet been answered by the Government. I merely cite an odd example to reflect a Bill that has many oddities in it.

I am concerned also about the impact of the Bill on tobacco companies which sponsor local arts organisations. When I go to my local theatre in Woking, the Victoria, I walk past a prominently displayed list of corporate sponsors. I do not object to that in any way. But why should tobacco companies have to be excluded from such a list, simply because there is a chance that people might associate the name with a brand of cigarettes? Is that correct? Where in the Bill is there protection against that kind of practice?

I should like to refer to a final anomaly, which was mentioned briefly in another place but did not receive a sufficiently detailed response from the Minister. This anomaly arises in the case of museums which display tobacco advertising as part of their exhibits. Why should they be caught out by this Bill? The Parliamentary Under-Secretary of State for Health in another place said that the Government did not want to catch,

"historic tobacco advertisements or items of historic branding value".--[Official Report, Commons, 13/2/01; col. 219.]

or to,

"prevent museums from displaying historic posters".--[col. 220.]

But of course that is exactly what the Bill will do because some posters of historic value would depict brands that are still being sold today. History can begin in the very recent past.

Can the Minister further explain where in the Bill will protection be offered to museums such as the Broseley Pipe Works and the Clay Tobacco Pipe Museum, which has its own website and is featured on the Kidsnet website? Furthermore, will protection be offered to lifestyle museums which depict life as it is and was? Do we have to censor history now?

This is a flawed Bill. Noble Lords have pointed out serious flaws with regard to human rights; I have pointed out flaws with regard to the sponsorship of sports and protection for the arts. I hope fervently that tobacco consumption can be reduced, but I am far from confident that this Bill will achieve that.

Photo of Lord Tomlinson Lord Tomlinson Labour

My Lords, before the noble Baroness sits down, perhaps I may put a brief question to her? She said that the Bill was flawed in relation to sports sponsorship. Does she agree with what the Central Council for Physical Education also said in its briefing; namely, that it does recognise the incongruity of sponsorship with health and related matters, of which sport is one? The council is therefore seeking to find alternatives.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative

My Lords, I quite agree with the point made by the noble Lord. I am sorry if I did not make that clear when I referred to the fact that I had understood, from the speech made by the noble Lord, Lord Faulkner of Worcester, that he was referring to the health impact of sports sponsorship. Certainly I do not propose that sporting bodies should continue for ever to accept tobacco sponsorship of their events because of the incongruity pointed out by the CCPR. What I am saying here is that I think that the Government have adopted an improper route by discriminating unfairly against some sports while helping others.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour 6:36 pm, 28th March 2001

My Lords, like other noble Lords, I should declare an interest in that, because I am a non-smoker, I am an associate member of the Lords and Commons Pipe and Cigar Smokers Club. I am also a patron of FOREST.

One of the advantages of speaking towards the end of the list of speakers is that one has been able to listen to so many marvellous contributions to both sides of the argument. I have been able to count how many of those have been in favour of the Bill and how many have been against it. My tally is that 14 speeches have been made against the Bill and only eight in favour of it. At this stage, the House does not appear to be in favour of the Bill.

I listened with interest to the speech of the noble Lord, Lord Tebbit, who pointed out the incongruity of the policy being followed by the EU. On the one hand, it subsidises tobacco to the extent of some £600 million a year; but on the other hand, it wants to bring in legislation to ban the advertising of tobacco because it wants to see the consumption of tobacco reduced. Thus one part wants to increase consumption while the other part wants to reduce it. My noble friend Lord Tomlinson was absolutely right to urge the Government to take action on this incongruous and absurd situation.

I listened also to the contribution made by the noble Lord, Lord Walton of Detchant, to whom I always listen with the utmost respect. In his remarks he cited figures on the number of deaths due to smoking; namely, that 120,000 die from smoking each year. I am sure that he will agree, first, that that is an estimated figure because, after they have died, records are not kept as regards whether people were smokers.

Secondly, if 120,000 people die of smoking-related diseases each year, some 600,000 do not die of smoking related diseases; they die of something else. After all, in the end we all have to die of something. However, the House should take some encouragement from those figures. While we have been debating this issue, the number of deaths has gone down. That is because, as my noble friend Lord Dubs said, during the time it would take for him to make his speech, three people would die from cigarette smoking. My noble friend spoke for 10 minutes. I have done a calculation which shows that, on that basis, only 52,560 people would die each year. It seems that we are making progress even without this proposed Bill to ban tobacco advertising.

In my view, the Bill is a continuation of the prolonged witch hunt against smokers. It is a witch hunt that has penalised and demonised smokers for using a legal product--that has been emphasised time and time again during the debate--out of which the Government have made enormous, incalculable profits.

But there are 13 million smokers--some people put the figure as high as 15 million smokers--and I understand that we are shortly to have an election. It may very well be that the people who are witch hunted and demonised will take note of what is happening. I urge the Government not to be so harsh on a very large proportion of the voting register.

It is smokers--not the tobacco companies--who have suffered from the witch hunt. The companies continue to thrive and shares in them are very buoyant. You should not think that you are getting at the tobacco companies; they will survive. You are getting at the ordinary smokers who derive pleasure from the habit.

This Bill has been brought forward in the wake of a complete failure of governments to deal with the problem. In spite of all the measures by governments against it--the health warnings, the draconian measures against retailers, the huge amounts spent on measures to reduce smoking, the subsidisation of virulent anti-smoking organisations, such as ASH, and, above all, the penal tax, about which we have heard so much, levied on smokers by successive governments (indeed, the previous government imposed the escalator tax, which this Government has now removed)--smoking is on the increase. The smoking bans by airlines, bus companies, train companies and others, have all failed to bring about the desired objective of governments and of ASH to make Britain a tobacco-smoke free zone.

The Government's desperation has led them to bring forward this undemocratic piece of legislation to deny free speech--because that is what it is, make no mistake about it--and free communication between buyer and seller, and competitive advertising between businesses selling a legal product. I and others have warned time and time again that the Government and their subsidised mouthpieces, such as ASH, were following the wrong policies on smoking and that they were likely to be counter-productive. So it has proved. Not only is smoking on the increase--especially among women and the young--but the yield from tobacco taxation, as we have heard, has been hit by the law of diminishing returns.

Tobacco smuggling has become endemic in our society. Indeed, it is tolerated and even encouraged by the mass of the population. At least one third of cigarettes are now smuggled, and the police and customs officials cannot cope with the problem. They never will be able to cope with the problem. Cheaper, and often inferior, cigarettes encourage additional consumption and make it easier for people, especially young people--despite what my noble friend Lord Faulkner said--to start smoking. They are encouraged to start smoking if they can buy them cheaper, make no mistake about that.

So we have now come to this Bill to ban tobacco advertising and promotion. It is certainly an illiberal, draconian piece of legislation, produced, I understand, without proper consultation with the industry. That is completely undemocratic; the industry is entitled to be consulted about measures which will hurt it and its relationship with its customers. It is an industry which has co-operated fully with governments in the past over advertising.

The tragedy is that the measure is unlikely to achieve its objective--which is, in any event, very limited. A 2.5 per cent reduction in consumption is a very small reduction--it is practically nothing--especially when one considers that other government measures, such as penal taxation, have increased consumption by 6.5 per cent. Even if the Bill achieves its objective, it seems to me to be a very large hammer to crack what will be a very small nut.

It also seems to me that, by the Bill, the Government are shooting themselves in the foot. The largest part of tobacco advertisements blazons the message that smoking causes every disease under the sun or kills you. Indeed, not only you but everyone else, apparently. That is free advertisement for the anti-smoking cause which will not appear. So if tobacco adverts are deemed to encourage people to smoke and to start smoking, then advertisements against should do the reverse. Is that not right? Thus the advertising ban becomes self-defeating. As I say, the Government have shot themselves in the foot.

The arguments against the Bill are many and weighty and are being deployed around the House. But the argument which should give pause to supporters of the Bill is where does banning advertisements of legal products stop. Which is the next product in line for a Bill to ban its advertising if this Bill passes into law? As it happens--as some noble Lords know--I can answer that question: it is liquor. Today, I have introduced a Bill, the Liquor Advertising and Promotions Bill [H.L.]. It is a Bill which follows very, very closely the provisions of the Bill before us, as noble Lords will see when it is published, probably tomorrow.

Everyone agrees that alcohol is, of course, the most dangerous drug of all. It is addictive and it is dangerous in its effect on others--drink/driving, for example, kills 800 people every year and injures seriously at least 10,000. People are involved in violent crime because of alcohol; in violence towards others; in wife beating; sometimes in husband beating; in children beating. Alcoholism is an increasing problem. The young are increasingly hooked on binge drinking and women have taken to the bottle as never before. It causes the death of some 35,000 younger people. Do not forget that smoking, if it kills, affects older people, over 65, but alcohol kills about 35,000 younger people every year. That is set out not by me but in a report of the Royal College of Physicians published in February of this year.

So this perhaps is the future; tobacco today and alcohol on the agenda. It is well and truly on the agenda now; it is before the House, make no mistake about that. What is next--motoring?

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I am grateful to the noble Lord, Lord Stoddart, for giving way. When does he think the collision will come between measures to ban such things as tobacco advertising and alcohol advertising and measures to liberalise the regime concerning cannabis and other so-called soft drugs? It seems that at some stage there will be an extraordinary collision.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, it is a most interesting question. It intrigues me. I know people who are hooked on cannabis but who are anti-tobacco. I cannot understand it, but it is true. I cannot answer the noble Lord's question, but it will be interesting to see what happens when the collision comes.

As I say, alcohol is on the agenda today; it could be motoring tomorrow: 3,600 deaths--not estimated but actual--are caused every year as a result of motoring. There are 45,000 serious injuries, not imagined but actual. Medical problems are caused by exhaust fumes. Asthmatics in particular are affected--10,000 deaths a year are caused by fumes in London alone. Noise pollution, congestion costs, environmental pollution, CO 2 emissions leading to global warming, and damage to property are all the result of motoring. Are there any noble Lords who disagree with that list? No, of course, they cannot. We all know that motoring causes those difficulties.

Photo of Lord Haskel Lord Haskel Labour

My Lords, I disagree with the noble Lord's list. His list did not include the banning of guns, for example. The fact that guns have been banned has probably saved a large number of lives, so he had better add all those on.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, let me answer the noble Lord. I have been following recent Answers to Questions on these matters. He will find that since we banned handguns the number of homicides has increased.

Photo of Lord Haskel Lord Haskel Labour

My Lords, handguns were banned years ago.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, I assure the noble Lord that handguns were banned in 1997. There was one Bill before the general election and one following the general election. I opposed both of them; that is why I know what I am talking about.

As I made clear, I do not believe that we should go round banning the advertising of legal products which are alleged to be harmful to humans. I have also said that I do not believe that brand advertising increases consumption. However, if Parliament in its wisdom agrees to this illiberal, authoritarian measure on the grounds that it will lead to reduced consumption and fewer users of tobacco, I shall certainly take my Bill to Second Reading so that we can consider applying to the most dangerous substance the same treatment as we are meting out to the tobacco industry--or at least consider why we should not do so. A Second Reading of my Bill may also serve to remind those in other industries, including advertising and the media, as well as industries whose products are said to be harmful, that their silence and acquiescence in relation to this Bill may have ramifications far wider than they contemplate at present. I hope that even at this late stage the Government and the supporters of the Bill will have second thoughts about it.

Photo of Lord Monson Lord Monson Crossbench

My Lords, before the noble Lord sits down, is he aware that the figure of some 52,000 smoking deaths a year, which he cleverly extrapolated from the figures given by the noble Lord, Lord Dubs, is very close indeed to the estimate of 50,000 smoking deaths a year which the DHSS, as it then was, gave to Lord Houghton of Sowerby in a Written Answer some years ago? Is this not a far cry from the inflated figure of 120,000 that we are given today?

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

Yes, my Lords. It is interesting that when those figures were given to the late Lord Houghton of Sowerby, smoking was much more prevalent than it is now. So there is a reduction in the number of people smoking but an increase in the number of deaths. I do not know where that gets us.

Photo of Baroness Gale Baroness Gale Labour 6:55 pm, 28th March 2001

My Lords, at Second Reading in another place, the Secretary of State for Health said:

"Advertising smoking both works and kills. Today, we can begin to break that link".--[Official Report, Commons, 22/1/01; col. 664.]

I wholeheartedly agree. The Bill is long overdue. Anything that can be done to prevent people starting to smoke must be welcomed

The benefits of the Bill are in addition to other measures announced by the Government--such as the increase in tobacco duty, measures to crack down on tobacco smuggling and an education campaign to inform the public of the dangers of smoking, together with information and services to help smokers to give up, and the latest government announcement that aids to smokers in giving up the habit, such as nicotine patches, will now be available on the National Health Service. That package, of which this important Bill is a part, could mean a reduction in the total number of people becoming addicted to smoking. It is estimated that 3,000 lives will be saved in the UK in the longer term as a result of the Bill. In addition, it could mean a saving for the National Health Service of up to £40 million on treatment for smoking-related diseases.

Most smokers acquire the habit when they are young--some as young as 10 years of age. If you can get through your teenage years without starting smoking, there is a good chance that you will not take up the habit as an adult. Therefore, the aim must be to do everything possible to prevent children and young people from starting to smoke. If that problem can be tackled, we shall be on the way to seeing a reduction in the number of smokers.

Research indicates that more girls than boys are now taking up smoking. This is a worrying trend. The dangers to a girl's future health are different from those affecting the health of boys. Young women smokers who may one day want to become pregnant will experience difficulties when trying to conceive to a greater extent than non-smokers; the danger of miscarriage is greater; and perinatal mortality is increased by about one-third in the babies of smokers--that is the equivalent to approximately 420 deaths per year in England and Wales.

Research has shown that smoking may contribute to inadequate breast milk production. The infants of parents who smoke are twice as likely to suffer from serious respiratory infection than those whose parents are non-smokers. Studies have shown that for women who smoke the risk of developing cervical cancer is up to four times higher than it is for non-smokers, and that the risk increases with the duration of the habit. The natural menopause occurs up to two years earlier in smokers. The likelihood of early menopause is related to the number of cigarettes smoked: women who smoke more than 10 cigarettes a day have an increased risk. So the dangers to women smokers of all ages are great. It is highly likely that those who are at risk started smoking when they were young. I am appalled that tobacco companies often target women in their advertising. The Bill will go some way to help with that problem.

I see the Bill as a liberating measure, as part of a package to prevent people from starting to smoke. It will liberate all those who might have started smoking and so free them from ill health and premature death. It will help them to have a better life than they would have had, had they not started smoking; and many benefits will accrue, not merely to them but to all those who might have suffered from passive smoking, including their children.

This is a good Bill. It fulfils the Government's manifesto commitment. I welcome it and I hope that it will be on the statute book before we have a general election.

Photo of Lord Glenarthur Lord Glenarthur Conservative

My Lords, before the noble Baroness sits down, can she say at this stage whether or not she would support the Bill on alcohol alluded to by the noble Lord, Lord Stoddart of Swindon, for exactly the same reasons?

Photo of Baroness Gale Baroness Gale Labour

My Lords, I have not looked at the Bill yet, but as a non-smoker and a teetotaller, I probably would.

Photo of Lord Patel Lord Patel Crossbench 7:00 pm, 28th March 2001

My Lords, I thank your Lordships for the opportunity to speak in the gap. I had not put my name down on the list of speakers as I did not expect to be here in time.

In supporting the Bill I would like to add to the list of health hazards of smoking mentioned by my noble friend Lord Walton of Detchant. I say to him that the illusionary pipe that he saw was always a dagger. The effect of using either would be the same. I would like to declare an interest. I am associated with the charity QUIT. It is a charity concerned with helping people to stop smoking.

I would particularly like to mention the effect that smoking has on pregnancy. It has the effect of reducing birth weight and contributes to the high incidence of low birth weight babies born in this country. We have the highest incidence of such babies in the western world, apart from the United States of America.

Smoking during pregnancy is also associated with an increased incidence of premature births with the consequences that that has on neo-natal death rates and disability. Among young mothers the incidence of smoking in certain areas of this country is as high as 42 per cent. The incidence of cigarette smoking among young women is higher than in young men and the incidence of lung cancer in young women is increasing. In some parts of Scotland, for instance, the commonest cancer now in women is lung cancer and it is higher than breast cancer. I say to the noble Lord, Lord Monson, that snuff is not harmless. It increases the risk of cancers of the throat and nose.

Let us not pretend that the advertising of tobacco is not aimed at promoting smoking and is not primarily aimed at the young. I have never seen a septuagenarian or an octogenarian in a cigarette advertisement. One sees many young ladies on such advertisements.

Anything that we can do to reduce smoking among the young has to be for the good and we should support this Bill. However, I agree with the noble Lords, Lord Tebbit, Lord Tomlinson and Lord Palmer, that it makes no sense to continue to subsidise tobacco growers in Europe. I hope that the Government will support any moves that lead to removing that subsidy. I support the Bill.

Photo of Lord Skelmersdale Lord Skelmersdale Conservative

My Lords, I had not expected to be here this evening and shall not make a speech on the Bill. But there is one matter that concerns me and when the Minister winds up I hope that he will be able to help me. Clause 4 deals with advertising exclusions. Subsection (1)(d) states,

"If [an advertisement] is contained in an in-flight magazine provided on board an aircraft by an airline which is not a United Kingdom airline" that is a defence to Clauses 1 and 2. Why is that not hybrid?

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat 7:04 pm, 28th March 2001

My Lords, we have had a very interesting and an unusually gladiatorial debate today. From the outset on these Benches I want to state unequivocally our welcome for the introduction of the Bill. We have long advocated the banning of cigarette advertising on public health grounds. Indeed, my honourable friend Simon Hughes attempted to bring in a Bill to that effect in 1996. Despite the successful legal challenge to the European directive in the European Court of Justice last October, which was alluded to by the noble Lord, Lord Tomlinson, the Government have reacted and introduced this Bill quickly and I congratulate them on that.

This Bill is supported by a huge range of organisations such as the British Medical Association, the Royal College of Nursing, the Royal College of Physicians, Diabetes UK, the National Consumer Council and the Consumers' Association. As we have heard from noble Lords such as the noble Lord, Lord Walton and the noble Lord, Lord Patel, it is no wonder that smoking is a major factor in lung cancer, strokes, heart disease, diabetes and a variety of other conditions such as asthma. If we are to reduce the incidence of these conditions we need to reduce smoking levels. On these Benches we believe that this Bill will make a significant contribution to reducing deaths from smoking, perhaps more than the 3,000 or 2.5 per cent modestly claimed by the Government in the Explanatory Notes. As such, we believe that this Bill is a proportionate response.

In resisting the Bill, the tobacco manufacturers have used a number of arguments, many of which have been rehearsed today by noble Lords. First, an advertising ban infringes the principles of free speech and violates Article 10 of the European Convention. But no advertiser has unfettered freedom of speech. The existence of the British Codes of Advertising and Sales Promotion administered by the Advertising Standards Authority recognises that. Furthermore, there are provisions in the convention giving an exemption when issues of health promotion come into play.

Secondly, the tobacco industry argues that its advertising does not increase consumption or encourage people to take up smoking; it is pricing which is all important. The noble Lord, Lord Faulkner, dealt extremely ably with that. He made some particularly powerful arguments especially in the light of the fact that he is a communications professional.

The industry maintains that advertising is aimed at promoting brand loyalty--the noble Lord, Lord Harris, was very strong on that point--persuading people to switch brands or launching new ones. But it is all too clear that the advertising efforts of the tobacco companies are aimed at expanding the market as well. The former chairman of McCann-Erickson was quoted by the noble Viscount, Lord Simon, to very good effect on that point.

The internal documents from the tobacco industry's advertising agencies referred to by the noble Lord, Lord Faulkner, which are now generally classified under the title, "Keep Smiling, No-One is Going to Die", to which the health committee of the other place gained access, give a depressing glimpse of the motives and practices being pursued by the industry and its advertisers. They show very clearly how the aim is to increase consumption as well as brand share. Efforts are made to make smoking socially acceptable. They show that the industry is actively involved in increasing per capita consumption and recruiting new smokers. In that context the young are a key target. It is all about adding aspiration and street credibility to smoking. The advertising agencies conduct a huge amount of research into lifestyles and motivation of the young.

It is also quite clear that sponsorship and advertising are treated as one. Sponsorship is as important as advertising in promoting brand image. Above all, and most depressingly, there is a revelation of a lack of principle and sharp practice in these papers by the advertising agencies and their clients in devising market strategies.

In its report last year the Select Committee was quite correct in concluding, on the basis of the evidence,

"advertising agencies have connived in promoting tobacco consumption, have shamelessly exploited smoking as an aspirational pursuit in ways which inevitably make it more attractive to children and have attempted to use their creative talents to undermine government policy and evade regulation".

That underlines the need for flexibility in this Bill and in particular that is why we support Clause 7. It is in order to combat the ways in which the advertising agencies are going to chance their tactics in response to the provisions of this Bill.

The key issue in all of this is the recruitment through advertising of young people to the smoking habit. That is the key commercial objective of the tobacco companies. The article in the British Medical Journal of 3rd March has been cited in the debate today. Young people are extraordinarily aware of advertising. About 90 per cent are aware of postal advertising in this area.

Thirdly, the manufacturers claim that it is wrong to ban the advertising of a legal product. I believe the noble Lord, Lord Geddes, in particular raised that argument. That is a complete red herring. Guns and pharmaceuticals are products which can be manufactured and sold legally subject to regulation, but they are also subject to advertising restrictions.

Fourthly, the manufacturers claim that there is no evidence that a ban on advertising will be effective. Many noble Lords dealt with that point in their speeches today. There is abundant evidence provided that such bans are comprehensive, covering all media. It is where they are partial that the evidence is not clear. The noble Lord, Lord Hunt, catalogued the evidence. He mentioned the report of Dr Clive Smee. I believe that the noble Lord, Lord Glenarthur, interestingly, mentioned the 1999 report of the World Bank. However, I come to totally different conclusions from those of the noble Lord. The report states:

"Policymakers who are interested in controlling tobacco need to know whether cigarette advertising and promotion affect consumption. The answer is that they almost certainly do, although the data are not straightforward. The key conclusion is that bans on advertising and promotion prove effective, but only if they are comprehensive, covering all media and all uses of brand names and logos".

That was very much the conclusion that Clive Smee also reached.

I turn to the fifth argument used by the manufacturers. We now have to call that not just humbug but perhaps the "humbuggery" argument advocated by the noble Lord, Lord Tebbit. I follow him on one point; that is, in respect of the European failure to cease subsidising tobacco growing in southern Europe. The Health Select Committee dealt with that point well. The desire to cease that subsidy is not inconsistent with a desire to ban advertising and the promotion of cigarettes. All of us would wish to see that subsidy cease, but I certainly do not follow the noble Lord into the wider realms of his arguments under that heading.

In some respects the Government's policy in this area does not go far enough. I deeply regret the Government's decision to delay the ban as regards global sports such as Formula 1 racing until 2006. Formula 1 cars were described by Tobacco Reporter--which I must admit is a publication I have not come across before--as,

"the most powerful advertising space in the world".

I can testify to the association of Formula 1 with glamour, having followed the sport for many years. I am a keen follower of Formula 1. It is quite possible to run teams without tobacco money. My father-in-law, a fanatical non-smoker, did so for many years. He was able to secure sponsorship throughout the time that he ran a Formula 1 team. In fact, the FIA, the governing body of Formula 1, has said that it could comply with the measure by 2002. I agree with the Select Committee that sponsorship should not be treated more leniently than advertising. In fact, Formula 1 is the very sector that should not have any concessions at all. The tobacco industry boasts of its initiatives on youth smoking, but continued sponsorship of Formula 1 gives the lie to that. It is the most aspirational sport of the whole lot.

I have a further reservation about the Bill which has been raised by the noble Lords, Lord Haskel and Lord Faulkner. If we are to have a ban which is consonant with the terms of the primary legislation, the regulations must be effective, whether they concern point of sale material, displays or direct mailing. We must not have any ambiguity as regards the way in which the ban on sponsorship to promote tobacco consumption works. That is extremely important. I agree with the noble Lord, Lord Dubs, that we need clarification in that respect.

In the years since Sir Richard Doll discovered the link between cigarettes and cancer, as described by the noble Lord, Lord Walton, it has become clear that voluntary agreements on the promotion of tobacco are not adequate. As the Commons Health Select Committee stated in its report,

"Voluntary agreements have served the industry well and the public badly".

We welcome the Bill. It is not a petty, puritanical pique--I believe that the noble Lord, Lord Harris, used that phrase--it is not unenforceable, as the noble Lord, Lord Naseby, seems to think, and it does not mean the end of e-commerce as we know it. It is not a witch-hunt; it is not even the thin end of a wedge. It is a significant and important step. We welcome the fact that the Bill is part of a comprehensive strategy designed to discourage smoking and prevent deaths. However, the next steps must be taken in the European and international dimensions. As a first step towards that we very much welcome the Bill.

Photo of Earl Howe Earl Howe Conservative 7:14 pm, 28th March 2001

My Lords, this has been a fascinating debate and I thank the Minister for moving the Second Reading in his characteristically clear and helpful way.

Let me begin, if I may, by repeating something that I made a point of saying during the debate on the gracious Speech. I have been, and I remain, open to persuasion on the merits of this Bill. I ask the Minister to accept that there is no difference between us on the end that we have in view, which is to reduce the prevalence of smoking, particularly among young people. He is right to say what he did about the damage that smoking does to people's lives. I shall not repeat the statistics he quoted, which we have rehearsed often in this Chamber. It is the duty of any government to look for ways of raising standards in public health, and cigarette smoking must be a prime target in that sense. Deaths caused by smoking, as the noble Lord, Lord Walton, reminded us, represent one in five of all deaths. We cannot be complacent about that, which is why I would never allow myself to condemn a Bill of this kind before considering the evidence in its favour.

It is the extent of that evidence, and its credibility, that we need to look at. I listened very carefully to what the Minister had to say. My opening comment to him is to pick up a point made by a number of noble Lords. If we are going to ban, and indeed criminalise, the advertising of a legal product and anything directly associated with that product, we need to be as sure as we can be that such a ban will work. That may be a statement of the obvious, but it has to be made.

Primary legislation is a powerful weapon. We should use it only when we are sure we need to. The Minister will not hear me say that civil and commercial liberties should never be infringed under any circumstances. There are circumstances where it is right for the state to intervene in that sense. Nor do I hold any love or any brief for the tobacco companies. The territory we are in is that of making finely balanced judgments between opposing moral principles--civil freedom and public health. Perhaps this is where the Minister and I differ.

The reason I lay stress on the need for certainty before legislating is that I start from the premise that we live in a free country. To put it at its kindest, I am not sure that Ministers in the present Government always have that thought in the forefront of their minds. Whereas the Government have the air of being instinctively relaxed about banning and criminalising things, I am instinctively uneasy about it. That is a feeling shared, I believe, by many on this side of the House. That is why I feel the need to look a little further at the strength of the evidence presented by the Minister before being prepared to set my unease to one side.

There are perhaps two main planks on which the Government's case for this Bill rests. One is the range of evidence indicating that a ban on advertising is associated with reduced levels of tobacco consumption. The other is research that concludes that decisions of young people to start smoking are directly linked to the promotion of cigarettes.

The Minister mentioned the Smee report. That report had a powerful influence on Ministers in the previous government and formed the basis of the anti-smoking strategy that was then adopted, including much tighter, but essentially voluntary, restrictions on tobacco advertising. Perhaps the most important single feature of the current code, in my opinion, is that advertisements must not glamorise cigarette smoking or incite people to take it up. That is tremendously important.

The Minister was kind enough to write to me about the Smee conclusions, and other research, before Christmas, and I am grateful to him. In that letter he ended by saying--as he did today--that quantification of the effects of a ban is not an exact science. That is right. The fact is that the results of research in this area have been very mixed. As he will be aware, while Smee arrived at his own conclusions, subsequent studies have completely contradicted them. A review by KPMG was mentioned by the noble Lord, Lord Harris of High Cross. That review in 1996 concluded--I repeat the words that the noble Lord quoted--

"There is overwhelming evidence to support the proposition that advertising bans on tobacco products do not reduce tobacco consumption".

KPMG illustrated that by looking at four European countries where a ban had been introduced--Norway, Iceland, Italy and Finland. In none of those countries were trends in tobacco consumption affected by the advertising ban. In Italy during the 20 years after a ban was implemented tobacco consumption continued to rise. Other studies, post-Smee, have reached the same results as did KPMG. So while I certainly would not wish to discount Smee, I do not believe that his report presents us with anything like a knock-down argument.

The other aspect of the Government's case is take-up by young people. Take-up, particularly by teenage girls, is rising. Why should that be? The Government say that it is due to advertising. Again, this assertion is not self evident. The Office of Population Censuses and Surveys, mentioned by the noble Lord, Lord Harris, found that the characteristics most likely to be found among children who smoke compared with those who do not are gender--girls smoke more than boys--having brothers or sisters who smoke, having parents who smoke, living with a single parent, not intending to stay in full-time education after six years, and having relatively few negative views about smoking. The influence of advertising on smoking uptake was not found to be significant. It may seem obvious to Ministers that children first take up smoking as a direct consequence of exposure to advertisements, but if one looks for hard evidence for such a correlation it is lacking. In Canada the prevalence of smoking among those aged 15 to 19 actually increased following the introduction of a ban.

I make no apology for being pernickety over these issues because they are central to the Government's case. There is an obvious reason why this is such difficult territory. The biggest single determinant of tobacco consumption is price, as my noble friend Lord Naseby and the noble Lord, Lord Dubs, pointed out. That fact has been recognised by each successive Chancellor in my lifetime and no doubt by Chancellors before that. Between 1971 and 1996 smoking prevalence went down by about 40 per cent. Since 1997, total UK tobacco consumption has increased. We have to ask ourselves the question: what has changed? What has changed is not the extent or nature of tobacco advertising, the rules for which have been the same since 1994; it is something quite other. It is the increasing availability of cheap, smuggled cigarettes.

As the noble Lord, Lord Mason, and others pointed out, since 1996 the black market in cigarettes has taken off in the wake of annual tax increases of 3 per cent and then 5 per cent above inflation which have made it attractive for bootleggers to import from the Continent illegally. At £4.22 for a packet of 20, on which the tax take is higher than in any other EU country, it is no surprise that usually law-abiding citizens have been looking elsewhere for their supplies of tobacco. Although the figure is difficult to estimate, it is currently estimated that between 18 per cent and 25 per cent of all cigarettes consumed in the UK are smuggled, resulting in a loss to the Exchequer of £5 billion. The Chancellor suddenly finds himself on the wrong side of the yield curve. And the co-ordinated anti-smoking strategy adopted by the previous government, which involved a combination of high duty, restrictions on advertising and anti-smoking education, is all of a sudden thrown off course.

Typically, the cigarettes that arrive here illegally from the backs of lorries find their way to the less affluent areas of the country, to the school playgrounds, car parks and clubs where young people congregate. The Government are to be commended for taking action to try to reduce the level of smuggling. But they were late off the mark. I agree with the noble Lord, Lord Stoddart, that the scale of the problem is so vast that progress looks likely to remain modest for some while at least.

The distortion of the market brought about by over-high tobacco duty and, in turn, by smuggling provides a much more credible explanation of the rise in smoking prevalence than anything to do with advertising. But that leads me to a further and important point. If, because of the Bill, the tobacco companies are no longer able to compete with each other through advertising, only one means of competition will be available to them--competition by price. My prediction is that we shall see price wars breaking out between brands and an influx of cheap, foreign imports of cigarettes. If it is accepted that the biggest single determinant of cigarette consumption is price, then, as my noble friend Lord Glenarthur pointed out so ably, we could see the worst possible situation: that is, consumption rising.

Those are the reasons why my doubts about the Bill remain. As regards smuggling, it could be argued, and has been argued by Ministers, that it should not be a case of either/or. The Government believe in stopping advertising as well as clamping down on bootlegging. That would be a defensible position if one could be certain of the initial premise: that an advertising ban will have a beneficial effect on current smoking prevalence. For the reasons I have given, I do not believe that that will happen.

Therefore, if the Government get their way, as they no doubt will, we believe that it would be appropriate to include a sunset clause in the Bill to take effect after, say, five years. Five years should be long enough in which to determine whether or not the ban has had the effect that the Government now predict. If the Government are proved right, and I am wrong, then there would be absolutely nothing for Ministers to fear. The Act could simply be renewed without political disagreement.

This is an issue that we would wish to pursue in Committee, along with a number of other concerns. We are concerned about the preferential treatment accorded in the Bill to some sports to the detriment of others. We are concerned about the implications for certain international newspapers and other publications that may carry tobacco advertisements. We are very unhappy about Clause 7. We are very worried about the anomalous and unjustifiable effect of Clause 5(5) on Internet service providers. We deplore the reversal of the burden of proof about which my noble friend Lord Lucas spoke so compellingly. We have considerable criticisms of the provisions for brand sharing in Clause 11 which look set to disadvantage legitimate businesses marketing products wholly unconnected with tobacco. Those criticisms on Clause 11 are compounded by our doubts on its legality under EU law.

This is a Bill which, for all the sound and fury which accompanies it, will, I fear, do little if anything to advance the cause that is common to the Government and ourselves. It may even have the opposite effect from that intended. As such it is difficult to regard it as other than at best window dressing and at worst misconceived. It is, therefore, with a mixture of interest and a considerable helping of scepticism that I look forward to the Minister's response.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 7:27 pm, 28th March 2001

My Lords, it has been an interesting and wide-ranging debate. The first comment I wish to make to noble Lords is that this is not a witch-hunt against smokers. It is not an attack on freedom. It is a genuine effort to try to tackle the single greatest cause of avoidable death in the United Kingdom. The noble Lord, Lord Walton, underpinned the responsibility of Government to develop policies which can help to discourage people from starting to smoke and help those who want to give up.

Perhaps I may say to the noble Viscount, Lord Oxfuird, that the Bill, of course, is not a stand-alone provision. It has to be seen as a key part of a much wider and comprehensive strategy to tackle smoking that was set out in the White Paper, Smoking Kills, which was published in December 1998.

I readily say to the noble Earl, Lord Howe, that we do not pretend that a ban on tobacco advertising on its own will deliver the Government's targets for reductions in smoking prevalence. But--this is crucial--it will remove much of the tobacco industry's ability to undermine the impact of positive health messages with its own advertising and marketing.

This will mean that the 70 per cent of smokers who wish to give up will not be surrounded by sophisticated pro-smoking propaganda. The overall effectiveness of our NHS smoking cessation programme, and the impact of our tobacco education campaign, will be enhanced. The result will be more people giving up and better health in this country.

The noble Lord, Lord Geddes, questioned me on the European Convention on Human Rights. Ministers have certified that the Bill is compatible with those rights. Article 10 of the convention says that the right to freedom of expression,

"shall include freedom to ... impart information ... without interference by public authority".

However, the convention also provides that freedom of expression may be restricted by law for a number of reasons, including the protection of health. On that basis, we believe that the proposed restrictions on advertising for the protection of health are both necessary and proportionate.

We all agree on the common agricultural policy tobacco regime. Of course we contribute to the EU budget as a whole and not to any particular part. The Government strongly disapprove of the tobacco regime on health, expenditure and control grounds. I assure the noble Lord, Lord Tebbit, and others that we shall continue to press for progressive disengagement from that regime.

The noble Earl, Lord Howe, rightly said that we have to be sure that the ban will be effective. Any number of studies have been quoted tonight. As I said in my opening speech, absolute certainty cannot be provided. It was fair, open and honest of me to say that. However, I believe that there is sufficient evidence to show that advertising has an impact on consumption. I have already quoted some studies. I refer your Lordships to the World Bank, which suggested that the implementation of the original EU directive could have reduced cigarette consumption in the European Union by nearly 7 per cent. I also refer your Lordships to recent evidence from the US researchers Saffer and Chaloupka, who studied data from 22 countries and concluded that tobacco advertising increases tobacco consumption.

The noble Earl, Lord Howe, referred to children. University of Manchester researchers in the mid-1990s found that awareness of certain brands of cigarette was linked to an increased risk of the onset of smoking among 11 to 13 year-olds. I also refer him to a study of adolescents in California between 1993 and 1996, which found clear evidence that tobacco industry advertising and promotional activities can influence non-susceptible people who have never smoked to start the process of becoming addicted to cigarettes.

My noble friend Lord Tomlinson asked why the UK is not joining in the action being taken in the US. We have not ruled out attaching ourselves to the case, although we have ruled out joining in as a party to the action. There are other ways in which the UK can support the Commission's action. We are considering our options.

The noble Lord, Lord Lucas, asked about the Internet, as he often does. I recognise that regulating the Internet in one country is not easy. We shall continue to press for wider bans on Internet tobacco advertising in Europe and globally. The alternative to seeking to show a lead in the UK is to take no action and to leave this new potent technology to the tobacco industry to exploit. That is not a comfortable prospect. Understandably, the Internet is now the first choice means of advertising and communication for a wide variety of purposes, but it ought not to be an unregulated domain. The Bill will enable us to stop tobacco advertising on UK websites. We cannot prevent access to websites in other countries where it is legal to advertise tobacco, but we can take action against those facilitating such action in appropriate cases.

I understand that the representatives of Internet service providers have raised concerns about the Bill, as a number of noble Lords have pointed out. The question of whether ISPs are publishers or distributors is complex and there is no legal certainty about it. That is why the Bill was amended in Committee in the House of Commons to furnish ISPs with robust defences regardless of the opinion of any court. I understand the concerns that have been expressed. We are prepared to listen to those concerns and discuss them with representatives of the industry as the Bill proceeds through your Lordships' House.

The noble Lord, Lord Tebbit, and others raised the related issue of Clause 7. The clause gives the Secretary of State the power to amend any provisions if it becomes necessary to do so in consequence of any developments in technology concerning publication or distribution by electronic means. We do not propose to treat advertising by electronic means less or more favourably than any other forms of advertising. However, the sheer pace of technological change makes it very difficult to predict what new means of publishing or distribution might emerge. We think that it is right to cater for potential developments in this way. The Delegated Powers and Deregulation Committee did not object to the clause. We have no immediate plans to make an order under the clause. If and when it appears to be right to do so, the use of the power will be subject to the affirmative resolution procedure.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, the Minister must understand the concern that it is unusual, to say the least, to allow primary legislation to be amended by regulation. We have almost got used to the fact that that is being done under the 1972 Act of accession. There is not much that we can do about that unless we denounce the Act. The Minister should understand that many of us do not think that arguments of convenience and speed should override the precedents of the way in which we legislate.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I understand the point that the noble Lord has raised. It will be a matter of great interest to your Lordships. I also believe that when we legislate we sometimes need to anticipate future developments. That is justified when it comes to the Internet. The use of the affirmative resolution procedure is surely a safeguard that allows noble Lords to debate the issues. It is noticeable that your Lordships' House has started not only to debate, but also to vote on such regulations. That is a big change, even in the very short time that I have had the honour of being a Member of the House.

Sponsorship raises some interesting arguments. We have heard two contrasting views on what action the Government ought to take. My noble friend Lord Faulkner would like an earlier end to tobacco sponsorship, but that view was not shared by the noble Baroness, Lady Anelay of St Johns. We have said that tobacco sponsorship will end by 2006. We are considering the most effective transitional arrangements. Our intention remains to end existing tobacco sponsorship for most sports by July 2003 and for global sports, as the noble Baroness has said, by October 2006. We will consult on the draft regulations, which will cover the timing of the end of sponsorship and the conditions under which it may be continued for a period.

We believe that July 2003 is reasonable for most sports, thus giving them considerable notice of the Government's plans. They have been offered assistance and advice from the Department of Culture, Media and Sport's tobacco task force. I say to the noble Baroness that the task force stands ready to help sports to find themselves new sponsorship. Many sports have taken advantage of that help; others have chosen not to do so.

I am aware of the issues that the noble Baroness raised specifically in relation to the British Darts Organisation, which argues that it should be recognised as a global sport. She will understand that I do not want to pre-judge the consultation process during which that organisation can make representations. I believe that the task force is useful. It is not a gesture. I urge the British Darts Organisation to engage in, and take advantage of, discussions.

So far as concerns the other issues that the noble Baroness raised, I should point out that the provisions under Clause 10 do not prevent a tobacco company giving money to support an event provided that, in return, tobacco products are not given promotion. In the circumstances that she raised, I do not see any inhibition to the continuation of the type of support suggested by the noble Baroness.

It is also worth pointing out to noble Lords that a report, published by International Marketing Reports, entitled, Driving Business Through Sport, revealed that in Europe a massive £4.03 billion a year is accounted for by sports-related endorsements, with 5 per cent of that amount coming from the tobacco industry.

My noble friend Lord Faulkner referred to loopholes and felt that the Bill would not go far enough; he would prefer there to be no tobacco advertising at point of sale. The fact is--I shall return to this point in a moment--that tobacco is a legally available product. There is no question of that, and there is no question of the Government seeking to change that position. Therefore, a balance must be struck in seeking to end all advertising and promotion while still, for example, allowing the adult smoker to see the information needed to make a purchase.

My noble friend Lord Haskel asked about regulation. I confess to him that I am the Minister responsible for better regulation in the Department of Health. I have suffered the Star Chamber process, defending my department's performance before Mo Mowlam, and I can tell him that it was as uncomfortable an experience as he suggested. However, in the end, the regulations, particularly those in Clause 4(2), very much safeguard the position. They allow for a certain amount of information to communicate the availability and price of the products on sale. I believe that at the point of sale that is a necessary balance to the overall ban.

So far as concerns the Scottish Parliament--this matter was raised by the noble Lord, Lord Glenarthur--ECHR legislation applies to the whole of the UK and, of course, Westminster is subject to the Human Rights Act. However, in this instance, I do not believe that that is relevant to the question of why Scotland has regulation-making powers in this Bill. It simply arises from the fact that there may be issues particular to Scotland in connection with advertising in shops; for example, where the Scottish Executive is being given the power to regulate for local conditions if that is necessary, and if it is felt that that is the right way forward.

A number of questions were raised in relation to fiscal policy and smuggling. The Government are, and continue to be, committed to maintaining a strong fiscal policy as a way of deterring people from smoking. I listened to my noble friend Lord Mason, the noble Lord, Lord Naseby, and other noble Lords, who referred to the issue of tobacco smuggling. I am the first to acknowledge that this is a major issue which must be tackled. However, the Government's view is that that should be done through intensive measures to make it much more difficult to smuggle those goods.

Noble Lords have already referred to the measures that we are taking. I believe that they are already having an effect. In the nine months following the launch of a new strategy in March 2000, Customs seized over 2.1 billion cigarettes and is confident of a better performance as extra officers and x-ray scanners come on line. Smuggling is a problem for many countries; for example, Italy. That country has low duties but still has problems with smuggling.

The noble Viscount, Lord Oxfuird, asked about voluntary agreements. It is true that smoking rates fell steadily for many years under governments of both parties during the time of some of those voluntary agreements. However, as noble Lords suggested, since the early 1990s we seem to have reached a plateau. I say simply to the noble Viscount that that suggests to me that we need to adopt a new approach. That is why we believe it is important that, as part of our army of measures, there should be a ban on tobacco advertising.

My noble friend Lord Hardy of Wath asked about passive smoking. I believe the evidence shows that prolonged exposure to environmental tobacco smoke is harmful. That has been borne out by many medical studies.

I turn to the issues of freedom, free speech and the issues that were raised at the start of our debate and threaded through it. The noble Lord, Lord Tebbit, does not like smoking. As noble Lords will know, my problem is that I do like smoking, and I am making yet another effort to give it up. I am not a health fascist. I do not present this Bill as an attempt to curb the freedom of smokers. I accept that restricting the advertising of illegal products is not a step that could be taken lightly. However, I believe that commercial freedom of speech must be weighed against the unique public health dangers posed by tobacco. We are talking about a product which is extremely addictive. It is a product that most of its consumers started using before the age of 20. The Government are not trying to ban smoking, but we are removing the tobacco companies' right to advertise a lethal, addictive product.

I listened with a great deal of interest to my noble friend Lord Stoddart, and I have given careful consideration to the Bill which received its First Reading immediately before this Bill. The Government will not be supporting his Bill.

Photo of Lord Dubs Lord Dubs Chair of Labour Peers

My Lords, perhaps my noble friend will allow me to take his reference to my noble friend Lord Stoddart as a cue to ask him about another point. My noble friend Lord Stoddart suggested that my arithmetic was wrong with regard to the overall effect of the number of people who died from cancer or cancer-related illnesses. Will he confirm that a death rate of 120,000 a year represents 10,000 a month, 333 a day and, therefore, between two and three every 10 minutes? That was the point that I made in my speech.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, together with geography, I am not very good at maths. However, my noble friend's figures sound right to me.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, I am grateful to my noble friend for giving way. I want to apologise to my noble friend Lord Dubs for doubting his prowess at arithmetic. He is absolutely right. It seems to me that I should be very much better off if I handed my accounts over to him. I should be twice as well off as I am.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, surely the difference between smoking and drinking is this: we know that all smoking does harm. It is my understanding, belief and experience that responsible drinking does no harm; indeed, some consider that it does good, particularly bottles of your Lordships' claret, which we enjoy from time to time.

Are the Government going to legalise cannabis? It has been suggested that two different threads go through our debate and society. The Government's position on cannabis is clear and unchanged: we continue to recognise that the drug can have serious health and social effects. The cross-government anti-drug strategy sets clear targets for reducing the availability and use of all illegal drugs. Long may that continue!

The noble Lord, Lord Skelmersdale, asked why Clause 4(1)(d) was not hybrid. My understanding is that hybridity arises where persons in a class are treated differently without good reason. The Bill has been vetted for hybridity by the House authorities, who do not see that to be an issue. My understanding is that UK airlines constitute a genuine class. That is a big enough category to be a class in terms of hybridity and to ensure that no UK airline is treated differently.

Photo of Lord Skelmersdale Lord Skelmersdale Conservative

My Lords, I am extremely grateful to the Minister for that. I shall be the first to put him out of his possible agony. Would he be good enough to write to me--obviously, I do not expect a response at the moment--comparing what he has just said with the provisions in Clause 4?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I am very happy to do that.

We have had a very good and thorough debate. I conclude by echoing the words of my noble friend Lord Mason. There is a balance to be struck. We want tolerance for smokers and non-smokers. The measures that we have taken in relation to the Bill and to our tobacco strategy as a whole recognise that. We have not embarked on a moral crusade against smokers. We wish to help those who do not wish to start smoking; but, equally, we wish to help those who wish to give up smoking, and enable them to do so as speedily and effectively as possible. The Bill will help us to tackle the biggest source of preventable death and disease in this country.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, before my noble friend concludes, I have a question for him. He said that he would not support my Bill. It is not usual for governments to oppose Private Members' Bills. Can I take it that the Government will not actively oppose the Bill, in accordance with tradition?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, I assure my noble friend that I shall be present at every stage of his Bill's passage and that I shall be happy to give comments as required. The Bill will no doubt proceed through your Lordships' House in the normal way.

On Question, Bill read a second time, and committed to a Committee of the Whole House.