My Lords, the office of the noble and learned Lord the Lord Chancellor was notified that I wished to make a brief intervention at this point, and I clarified with the Clerk that it was in order. I am also very conscious from your Lordships that it is very unusual to intervene at this stage. I do so only because I wish to put on record my grave disquiet at the change of date, from 8th March, which had been the published date for the whole of February, to today. I was in New Zealand at a family wedding, hence my absence at Report stage. I arrived back on Saturday, 2nd March, double-checked my Whip, and then made arrangements to see the Forestry Commission on 15th March, today, in Herefordshire. I place on record my apologies to the Forestry Commission for not being in Herefordshire today.
Why was it changed so late? My understanding is that it is because of the Liberal Party conference. The question therefore arises, does the Bill's promoter take so little interest in his party that he did not know it was happening? Did he forget about it, or was he simply disorganised, as he has been over so much of this Bill? The question also arises why the Government colluded on this change of date. In my opinion, parliamentary business should not be subservient to any party political convenience.
On Question, Bill read a third time.
My Lords, we are at Third Reading and I have no wish to prolong today's proceedings, or to take time that might be better spent on less detailed aspects of the Bill than this amendment addresses. As an aside, it is interesting to observe that, although I was not here, noble Lords sat rather longer on Report than they did in Committee, when one or two noble Lords suggested that I spoke at too great a length. None the less, this amendment has a serious purpose.
On many occasions during our consideration of the Bill in Committee and on Report, the noble Lord the promoter and the noble Lords, Lord Hunt and Lord Filkin, resisted amendments however justified in our eyes and reasonable they may have been, and despite the fact that one occasionally sensed their own sympathetic attitude towards those amendments. The grounds on which they have resisted have invariably been that the amendments risked creating loopholes in the Bill. The result is that we now have a Bill that is far more complex than it need be; and yet it still leaves substantial issues regarding offences in the hands of the courts. We are also still left with a Bill that contains inconsistencies in approach. That is a general observation which Amendment No. 1 is intended to highlight.
Elsewhere, such as in the Explanatory Notes originally published with the government Bill in the previous Parliament, and in remarks in debates in this House, noble Lords supporting this Bill have stated that they have no intention of prohibiting advertising and promotion within the trade so long as it is confined within the trade. Indeed, as the Explanatory Notes state about subsection (1)(a) of Clause 4:
"As the sale of tobacco products to adults is lawful, appropriate commercial communications are not prohibited. So long as these communications do not reach the wider public they will be excluded from the ban".
Currently, however, this subsection permits an advertisement within the trade only if it is a communication or is contained in a communication.
We have been told by the noble Lords that, in the Bill, the word advertisement is to be construed as having its natural and plain meaning. The Oxford English Dictionary defines an "advertisement" as,
"A notice or announcement in a public medium promoting a product, service or event, or publicising a job vacancy".
I trust that I am also to understand from the noble Lords that "a communication" is to have its natural meaning. The same dictionary says that "a communication" is,
"a letter or message containing information or news".
It is certainly clear to me, and I think to all noble Lords, most especially from the current wording of this subsection, that an advertisement may sometimes be a communication, but is not always such. Advertisements within the tobacco trade, as within any other trade, may be advertisements pure and simple, as we all understand an advertisement to be. Examples would be advertisements within the premises of a wholesaler, within the premises of a cash-and-carry, or at a trade conference, annual meeting or other event to which entry is confined only to those in the tobacco trade.
Thus I trust that the noble Lord, Lord Clement-Jones, can understand the purpose of my amendment. It is to remove the present restriction on a tobacco advertisement within the tobacco trade as having to be a communication or be contained in a communication confined within the tobacco trade. Should he feel that my amendment is not necessary and tell me that the present exclusion laid out in Clause 4(1)(a) does embrace advertisements of the type I have mentioned, within trade premises, not only would I find that puzzling, it would cause me to ask him to think yet again about precisely what is meant by the word "advertisement" in the Bill.
With your Lordships' permission, I shall also speak to Amendment No. 2. Throughout our consideration of the Bill we have had assurances—or, more appropriately, assertions have been made—about the Bill's proportionality and compliance with the Human Rights Act 1998. Those are not the views of many other independent authorities. I take the view, even on a layman's reading, that subsection (1)(b) of Clause 4 is bound, at some early date after coming into force, to be challenged in the courts on human rights grounds. The purpose of the amendment is to close off that possibility.
It is clearly an infringement of the right of privacy with regard to private correspondence to prevent a person receiving correspondence which they have requested, whether that request is to receive something now or later. It is arguably also an infringement of the right of freedom of expression. By the noble Lord's and the Government's interpretation of the word "particular" in subsection (1)(b), the Bill effectively prohibits a request and any reply to it which goes beyond the immediate. As the Explanatory Notes to the Government's original Bill state,
"A request for information cannot be considered as a request for further information in the future".
I understand that the noble Lord and the Minister claim to justify what is a clear infringement of human rights as being a measure necessary for public health. That in itself is highly arguable. But let us assume for the moment that that is correct. The next necessary test is proportionality. So we must ask: could the objective be achieved by less far-reaching and intrusive measures? In this instance it clearly can be. If individuals wish to receive communications from a tobacco supplier and confirm that wish, along with confirmation that their age is over 18—or, if the noble Lord wishes, over 21—and are able to withdraw that wish at any time they choose, they should be permitted to receive a communication.
I ask noble Lords to consider those requirements in the context of the ease with which requests for access to websites can be made and how those websites might be accessed quite unintentionally with the result that the tobacco advertisements which they so fiercely wish to restrict within the trade, and only to persons who make a request under the terms of Clause (4)(1)(b), reach a much wider public.
I ask noble Lords again to consider the plight of mail order traders. Mail order is a particularly important activity for most specialist tobacconists. They are likely to find their businesses decimated as a result of Clause (4)(1)(b), which prohibits them from initiating communications with their registered existing, let alone potential, customers. My amendment does not permit direct marketing activities of the kind prohibited by Clause 9; it simply permits an adult person to receive what he or she expressly wishes to receive. Should he or she want to withdraw that request, they can do so.
The noble Lord and the Minister should not hang their hats on the argument that by communicating with existing smokers those smokers are encouraged to keep smoking. Nor should they put their reliance on a somewhat spurious questionnaire showing that the majority of smokers wish to give up smoking. There are already more ex-smokers in this country than there are smokers. I believe that if noble Lords continue to resist this sensible amendment to this subsection, they should then prepare themselves for arguing their case inevitably through the courts. I beg to move.
My Lords, the noble Lords, Lord Skelmersdale and Lord Naseby, raised the issue of communications to the trade in Committee. One of the amendments they proposed would have meant that advertisements would be excluded if they were aimed at the trade irrespective of the means by which the communication is made available. The argument put forward was that a trade magazine may be made available to the trade via retail outlets and in these cases may be seen by members of the public.
Clause 4 sets out the exceptions to the advertising ban set out in Clauses 2 and 3. Clause 4(1)(a) deals with communications between those engaged in the sale of tobacco products. The purpose of this clause is to ensure that commercial publications aimed at the trade are not prohibited. Clause 4(1)(a) provides that no offence will be committed if a tobacco advertisement is contained in a communication made for the purposes of the trade and directed solely at those engaged in the trade as specified in Clause 4(2). Clause 4(3) provides that advertising where tobacco products are offered for sale is allowed as long as it is in accordance with regulations to be made by the Secretary of State. Furthermore, Clause 4(4) provides that the regulations may define the meaning of "place" to make clear the limit of permissible advertising.
In the first amendment the noble Lord has suggested that the whole phrase relating to a communication is removed from the exclusion in Clause 4(1)(a) so that any advertisement which is made in the course of a business which is part of the tobacco trade and aimed at those identified in Clause 4(2) is excluded. The term "communication" is defined in the dictionary as any transmission, exchange or conveying of information. This includes electronic and paper communications. Therefore, the exclusion would apply, provided the conditions were satisfied, to such things as trade journals and magazines, mailshots from tobacco companies to those responsible for purchasing tobacco products as well as to their equivalents in the management structure and those above, including directors, whether by letter, fax or e-mail and handouts at trade exhibitions. This list is not exhaustive and the paragraph does not specify the means by which the communication is to be made if this exception is to be satisfied.
The issue here is to ensure that advertisements made by the trade for the trade are exempted. They could be stand-alone advertisements or equally they could be contained in a trade magazine. The wording in the Bill provides for flexibility in the method used to pass on the advertisements. Any communication must, however, be directed solely at people engaged in the trade as per Clause 4(2). It would not matter if a curious member of the public picked up and read a trade journal in a library provided the journal was directed solely at the trade.
As drafted, the Bill makes clear exactly what is allowed. If, as the noble Lord suggests, the phrase,
"or is contained in, a communication", is removed, the clause would become less clear and could possibly be interpreted so as to disallow communications between manufacturers and retailers which contain a tobacco advertisement. I therefore ask noble Lords to reject that amendment.
On the second amendment, the noble Lord, Lord Naseby, raised two fundamental issues about necessity and proportionality. Before I go into detail, I shall address those issues. We have raised the issue of necessity several times in our debates on the Bill; it goes back to the nature of the product. I shall not detain the House by repeating some of the arguments that we have previously considered in that respect but we well know that a highly addictive substance is involved and that it kills a high proportion of those who use it.
Since we last met, the Royal College of Physicians has brought out a very interesting report reviewing the response of governments and politicians to the scientific evidence, which started becoming clear from the 1950s onwards and was made most clear in 1962 by the Royal College of Physicians. It is a very good report. Politicians do not always come out well from it, with a number of honourable exceptions, such as Lord Hailsham and Enoch Powell, who were early advocates for action. I shall quote one sentence from the preface, which was written by Professor Sir George Alberti, the president of the royal college. He wrote:
That is the issue of necessity.
On proportionality, I shall not detain the House by discussing at great length the issue of displacement. We know that when an industry is prohibited from promoting its products in one way, it is bound to try to use all other possible means to do so. The ban on television advertising led to a very considerable expansion in sports sponsorship for tobacco products. Although we do not want to make too much of Amendment No. 2, we do not support it because it involves the danger of significant displacement.
Amendment No. 2 would remove the reference to a particular request, which means that an individual has to put in a request on each occasion before he or she receives information, and replace that with a condition that the individual has to provide in writing one request and then receive information until that request is withdrawn in writing.
The amendment would mean that tobacco companies could create databases and send out promotional material to people who had requested information in the past but may no longer wish to do so. The Bill intends to ban all direct marketing except where an individual has contacted a company asking for information about a tobacco product or products. We think that it is right to require that the individual contacts the company first, and that he or she does so on each occasion. That will ensure that the smoker genuinely wishes to receive the material. That will avoid the situation in which he or she wanted information in the past but no longer does so.
As noble Lords will know, a survey conducted by the Office for National Statistics last year found that just over 70 per cent of smokers said that they would like to give up. Many of them in the past will have asked for promotional information about tobacco products. It is wrong that those people—and, indeed, ex-smokers—should be bombarded with pro-smoking material unless they specifically requested it on each occasion.
I must emphasise that Clause 4(1)(b) does not involve an infringement of liberty. The Bill is not trying to stop companies and promoters providing information to people who have asked for it. It will not stop the exchange of information when it is clear that the recipient wanted it. Rather, it will put in place a safeguard for all those who may have wanted information in the past but who are now in a different position. It is a justified measure to help people to stop smoking and to improve their chances of good health.
My Lords, I have very little to add to the Minister's comments on Amendment No. 1. The amendment would not clarify the clause's purpose at all. The clause's provisions are clearly designed to ensure that communications are solely directed at the tobacco trade. It would not be helpful or clarify the purpose of the exemption to remove the words,
"or is contained in, a communication".
As an exemption, it is important for the clause's construction to be entirely clear.
Amendment No. 2 covers similar ground to an amendment tabled by the noble Lord, Lord Skelmersdale, on Report; namely, whether it is acceptable to allow direct mail to continue after the passage of the Bill. My response to this amendment is exactly the same as it was to the amendment of the noble Lord, Lord Skelmersdale—I am firmly opposed to allowing that. The amendment would make it possible for a tobacco company to create a database—or to buy one—and continue to operate direct mail schemes as if the Bill had never been brought into force. If a smoker or non-smoker had at any time in their life requested any information about tobacco products, they would—or could—be inundated with direct mail from tobacco companies. An advertising ban drives down consumption only if it is comprehensive. The amendment would destroy any hope that the legislation had of being comprehensive. It would allow tobacco companies to continue to market their products to smokers, or to people who claim to be.
Research carried out by Strathclyde University last year demonstrated that many children and teenagers currently participate in direct mail and voucher tobacco promotions. It is only to be expected that if the amendment were to be accepted that state of affairs would continue.
Quite apart from that consideration, the legislation is as much about helping smokers to quit as it is about dissuading people from starting. The amendment would allow tobacco companies to target smokers with advertising that is designed to weaken the desire that the majority of smokers have to quit. I therefore urge the noble Lord in the strongest possible terms to withdraw the amendment.
My Lords, on Amendment No. 1, the Minister said that the list is not exhaustive—I referred to cash-and-carries, trade conferences, annual meetings and so on. I imagine that the inference from that is that when detailed regulations are produced, there will be some discussions with those in the trade to ensure that nothing is caught inadvertently that should not be caught.
I understand the problem of ensuring that the trade can carry on trade communications without opening up those communications to the greater public. I have no wish to open those communications up to the greater public. I understand what the Minister said and I shall not press the amendment.
On Amendment No. 2, I suspect that we shall have to disagree. My contention is that even if the figures from the survey are correct—it found that 70 per cent want to give up and 30 per cent do not—those 30 per cent are still adults and if they wish to receive regular communications from tobacco companies, they should not be put in the position of having to renew their interest on each occasion when they want to communicate with their supplier. We are dealing with adults. Noble Lords will know that we have the right to stop receiving direct mail and faxes—several of us have taken such action in the past in relation to other areas about which we do not wish to receive communications.
On the views of the promoter of the Bill—
My Lords, I am sorry to interrupt. When the noble Lord asked whether we should consult on the regulations, I gave him, in good faith, a fairly clear and strong nod. I have since been advised that there are no regulations relating to the clause. I should like to withdraw my nod.
My Lords, sadly, I suspect that that means that the matter will end up in the courts, and the only beneficiaries will be the legal profession. It is sad that the Government and the promoter of the Bill were not willing to understand the true mechanics of the trade. In a sense, the promoter is the one who should be pilloried for that. In Committee, he said that he had not approached the trade because his feelings about the Bill were so dogmatic.
On Amendment No. 2, the promoter of the Bill discussed young people and teenagers receiving promotional material. That is a complete red herring. I made it clear from the start that an age dimension could be imposed—that could be set at 18 or 21. I sense that the promoter does not really listen to the detailed elements of our amendments. I do not accuse the Minister of that; he does listen. But I believe that we must disagree.
I believe that this represents an imposition on individual human rights—in particular, on those who are regular smokers. I see nothing wrong about their receiving regular communications, but we have more pressing issues. I have made the point succinctly. It does not find acceptance from the promoter—that does not surprise me—but neither does it find acceptance from the Government. Therefore, at this stage I shall not press the matter. I beg leave to withdraw the amendment.
moved Amendment No. 3:
After Clause 6, insert the following new clause—
(1) The Secretary of State shall by order make a scheme for the making of payments to persons in respect of income and non-income losses incurred by them as a result of ceasing to carry on their businesses by reason of the enactment, or coming into force, of section 2 in so far as a person is guilty of an offence if a tobacco advertisement is, or is contained in, a communication made to an individual otherwise than as permitted by section 4(1)(b).
(2) A scheme shall, in particular, specify—
(a) the description or descriptions of income losses and the description or descriptions of non-income losses in respect of which payments are to be made, and
(b) the description or descriptions of businesses in respect of which payments are to be made, but need not provide for the making of payments in respect of all income losses or all non-income losses or (as the case may be) in respect of all businesses.
(3) A scheme shall also, in particular—
(a) specify the basis or bases of valuation for determining losses,
(b) specify the amounts of the payments to be made or the basis or bases on which such amounts are to be calculated,
(c) provide for the procedure to be followed (including the time within which claims must be made and the provision of information) in respect of claims under the scheme and for the determination of such claims,
(d) provide a suitable mechanism for appeal and resolution in the case of dispute as to a person's entitlement to payments under the scheme and the amount of such payments.
(4) Before making a scheme under this section, the Secretary of State shall consult such persons as appear to him to be likely to be entitled to payments under such a scheme and such organisations as appear to him to represent such persons.
(5) In this section—
"income losses" means losses of income, and
"non-income losses" means losses other than income losses.".
My Lords, I am most grateful to my noble friend Lord Naseby for mentioning the mail order trade on the last group of amendments. My amendment has a rather strange history. Over the past few years, I have had a regular Tuesday morning occupation; that of weeding—I believe that that is the only word for it—through a great stack of statutory instruments before discussing them in the Joint Committee that same afternoon. On Tuesday last week, I came across an affirmative order which provided for compensation for loss of business due to the coming into force of the Fur Farming (Prohibition) Act 2000. Incidentally, the noble Lord, Lord Filkin, may be interested to know that the Government did notify that to the Commission. I am jumping ahead of myself by several amendments, but he might bear that in mind.
"Aha", I thought to myself, "as all my amendments in the Committee and Report stages of the Bill regarding the mail order trade specialist tobacco companies have come to nought"—for reasons, incidentally, which I must concede to the noble Lord, Lord Clement-Jones, are, indeed, correct—"I shall see what his and the Government's reaction is to compensating the people they will inevitably put out of business". In doing so, I once again declare my interest in mail order in general, although not in specialist tobacco firms.
I start with the thought that Ministers in both Houses have said that they do not intend that the Bill should put anyone out of business. Unfortunately, as I have pointed out several times in the course of our proceedings, there is one very limited group that will, alas, fall into that category. As a breed, they are few and far between—only some 380, I believe, throughout England and Wales. They are often far distant from their customers. None the less, their customers rely on them and the mail order service they provide.
Successful mail order trading, as I know well, trading as I do principally by mail order in my own business, is largely dependent upon maintaining a list of names and addresses of customers and people who have expressed an interest in purchasing. One does not wait for those people to come back with a new inquiry to which one responds, which, of course, is legal under the Bill; one contacts them periodically with offers and recommendations by way of a catalogue or price list—perhaps a leaflet, brochure or magazine. The Bill prohibits such operations by virtue of Clause 4(1)(b), which does not permit the supplier to initiate any communication with his customers and potential customers using his mailing list, even though the people on the list—another point raised by my noble friend—have specifically asked to be included on that list.
The objective of the Bill, we have been told, and as I have said already, is not to damage a trader's business or put traders out of business. Almost every specialist tobacconist in this country engages in mail order trading. Some are mail order traders exclusively and do not have shop premises. For almost all others, mail order is a significant part of their business. The reason for that is simple. The description of a "specialist tobacconist", and his very definition as laid down in Clause 6, is someone for whom cigars, snuff, pipe tobacco and smoking accessories account for more than half his sales. Some of those for whom mail order represents the major part of their trade will not survive under the terms of the Bill. Many others will be significantly damaged financially.
It may seem from the Bill, and from what has been said about websites, that for the mail order trader a website might provide a satisfactory alternative to mail order operations using printed material and the post. That is not so; a website does not permit the trader to initiate contact with a customer. It is also wrong to presume that every customer has Internet and website access.
My amendment does not introduce the term "mail order" into the Bill; nor does it mention specialist tobacconists. It focuses on the provisions of the Bill which prohibit mail order trading by specialist tobacconists. While it does not say so—that, of course, would be covered by the detail of the scheme that the amendment provides for, made ultimately, one hopes, by the Minister—the amendment is not intended to provide compensation to any person other than someone who had been, on a date specified in the order, an existing mail order trader.
As I said, the amendment is lifted from the order under the Fur Farming (Prohibition) Act 2000 and follows it almost word for word. The Government must make a scheme, which, incidentally, has to be brought into effect by affirmative instrument, provided for under Amendment No. 5. That scheme will specify descriptions of the businesses in respect of which payments are to be made and of their income and non-income losses. Obviously, consultation will be needed and the scheme needs to specify the basis, or bases, of valuation for determining losses. That is left to the Minister operating the scheme.
I believe that I have said enough to explain the purpose of, and the reasons for, my amendment, except perhaps to add that it is a good Conservative principle to look after the small man. We are talking about the small man. I beg to move.
My Lords, I, too, support the noble Lord, Lord Skelmersdale, and congratulate him on the excellent case he has made. As one who took part in every stage of the fur farming Bill, I can confirm the accuracy and the parallels he draws with the unfortunate fur farmers. After all, we are not talking about well-to-do international companies but small people. As the noble Lord said, these are just the type of people who need to be protected.
My Lords, I thank the noble Lord, Lord Skelmersdale, for his courtesy in giving the Government advance notice of his intention to table the amendment. It is a thoughtful amendment but, as I indicated earlier, the Government do not support it.
The amendment would oblige the Secretary of State to set up a scheme to compensate businesses which cease trading allegedly because they are unable to send advertisements to people other than as a result of a particular request for information about a tobacco product.
As I hope the House knows, the Bill is not intended or designed to put small traders out of business. Its purpose is to control the advertising and promotion of tobacco products, not the sale and use of tobacco products, which will still be legal.
I accept very much that the noble Lord has genuine concerns about the Bill's possible effects on specialist mail order businesses. Earlier, I used the word "allegedly" in relation to losses advisedly because I believe that the proposed scheme is unnecessary as well as unworkable. If a tobacco business ceases trading owing to a loss of custom, how can anyone calculate how much of that loss is due to restrictions on advertising and how much is due to any other reasons, such as a customer deciding to buy elsewhere or to give up using tobacco products for some other reason? It would not be possible to say that the cessation of business was the result of the provisions in the Bill.
I shall repeat what was said previously about the implications of the Bill for business. Specialist tobacconists will be allowed to list their businesses and to take box advertisements for their businesses in publications such as Yellow Pages. They can do that but they may not use those listings to promote and advertise tobacco products. Anyone wanting to contact a mail order business can do so by accessing those listings. We know that tobacco products are highly addictive and that most users would like to give up. It would not be right to allow unsolicited promotions to continue. However, through Yellow Pages or other means, it will be possible for people to contact specialist tobacconists.
We are all sorry when a trader goes out of business. However, for many years the use of tobacco products in the United Kingdom has been falling and the policy of successive governments, for health reasons, has been to discourage people from using those products. I respectfully suggest that such businesses have been aware of the risk of declining trade and many have sought opportunities to diversify their operations. Therefore I ask the House not to insert the new clause after Clause 6 and also to oppose the consequential amendment to Clause 19.
The noble Lord, Lord Skelmersdale, referred to the fur farming regulations. I do not believe that that situation is comparable; nor is the legislation on the sale or possession of hand guns, which also dealt with compensation, comparable. Both of those referred to an activity that became illegal in its entirety, rather than having impediments placed on the form of its advertising. The sale or use of tobacco products will continue to be legal and tobacco businesses will still be able to communicate with people who want to buy their products.
My Lords, I understand the intent behind the amendments. It is clear from what noble Lords have said and from the correspondence that I have received that there is a genuine concern among people running mail order tobacco businesses, especially specialist tobacconists, that they will be prevented from carrying out their business in the future. I fully understand why those businesses, many of which rely on mail order to survive, may be worried by this legislation.
However, I agree with the Minister that this amendment, for a large part, simply is not necessary. The issue is whether a mail order catalogue, as we would currently recognise it, constitutes a tobacco advertisement. My view of the current drafting is that it does not. A catalogue is a display of tobacco advertising. It consists of a price list and possibly, at most, a picture of a packet of cigars or pipe tobacco. That is different from direct mail advertising which covers a particular brand. Direct mail advertising is covered in the legislation and mail order catalogues are not. Of course, the exact format of what is displayed and in what form would have to comply with any regulations that were laid under Clause 8. If there are such regulations it is expected that they would be laid in such a way as to cement the status quo and to prevent any exploitation of loopholes.
My main conclusion is that in those circumstances there is simply no need to legislate to compensate mail order businesses for loss of business. I should take this opportunity to remind noble Lords, without apology, that the whole point of the legislation is to reduce the quantity of tobacco consumed in the United Kingdom. We want fewer people to smoke. Therefore, if this legislation is to be effective, all sellers of tobacco will probably see a reduction in the amount of tobacco that they sell. If that happens, we should not discuss compensation, but realise that the Bill has been effective. Specialist tobacconists, among others, have had due notice of legislation of this kind.
I believe that for the most part, the circumstances with which this amendment seeks to deal will not arise. It reflects a set of circumstances in which mail order companies will not be affected by the passage of this legislation and, therefore, there is no need for compensation.
My Lords, I did not see either of the noble Lords nod when the noble Lord, Lord Clement-Jones, made his helpful remarks about the extent to which mail order catalogues constitute advertisements. If either of them would nod now, in agreement with what he has just said, my life would be made much easier. While they are thinking about whether or not to nod, perhaps I may turn to noble Lords on the Cross Benches. I am grateful for the brief support of the noble Earl, Lord Erroll, and the noble Lord, Lord Monson. Of course, the amendment is unworkable. It was not meant to be workable; it was meant to get a reaction. I still have not had a reaction from the Minister. Am I to receive one?
My Lords, there is little that the Government can usefully add to what we have said. It seems to us unlikely that a specialist tobacconist will go out of business as a result of this Bill, for the reasons that I have given. It would still be perfectly possible for such specialist tobacconists to advertise their presence, if not their products, in publications like Yellow Pages. It will be perfectly possible for those who want to use them, as they are at liberty to do, to can contact them. Therefore, we do not believe that it is likely that specialist tobacconists will go out of business. As the response to the amendment suggested, even if some went out of business, it would be impossible to identify why they had done so.
moved Amendment No. 4:
Page 5, line 35, at end insert—
"(2A) No offence is committed under subsection (1) if—
(a) the business referred to in subsection (2) is part of the tobacco trade, or
(b) the sponsorship agreement is for the purposes of that trade, and directed solely at persons who—
(i) are engaged in, or employed by, a business which is also part of that trade, and
(ii) fall within subsection (2B), in their capacity as such persons.
(2B) A person falls within this subsection if—
(a) he is responsible for making decisions on behalf of the business referred to in subsection (2A)(a) about the purchase of tobacco products which are to be sold in the course of that business,
(b) he occupies a position in the management structure of the business in question which is equivalent in seniority to, or of greater seniority than, that of any such person, or
(c) he is the person who, or is a member of the board of directors or other body of persons (however described) which, is responsible for the conduct of the business in question."
My Lords, in moving this amendment, I do not intend to repeat the points that I made in my earlier amendment concerning what I understood to be the principle of this Bill, that it should permit advertising and promotion that is confined within the tobacco trade and does not reach the wider public. It does that at Clause 9. The noble Lords claim that it does that at Clause 4, but as I explained earlier, that does not quite meet the mark. It certainly does not do so at Clause 10, as I believe it should, hence my amendment.
The amendment seeks to permit sponsorship agreements for the purposes of the trade and where such sponsorships are confined to persons within the trade. There are many such existing sponsorships of trade awards and competitions, trade and trade association events, such as conferences, annual meetings and the like. There are no grounds for such sponsorship to be prohibited and none has been put forward. Indeed, in Committee I was encouraged by the sympathetic reaction on the part of the Minister to a similar amendment.
On the other hand, when invited to express the same sympathy by the Minister, the noble Lord, Lord Clement-Jones, failed to appreciate the point that was being made. I hope that on this occasion I will have fulsome support from both the Minister and the noble Lord. To that end I have also incorporated the much expanded definition applying to persons in the tobacco trade, which was inserted on Report.
Whenever elsewhere in the Bill there have been pleas for greater clarity—I refer to the amendment agreed to on Report—we have been told that that would risk creating loopholes. With this amendment I do not seek clarity of an existing provision of this clause, nor do I seek to create a loophole. I merely seek a provision in this clause that accords with what is claimed to be a general principle of the Bill which mirrors provisions in two other clauses and which is of real practical significance within the trade. I beg to move.
My Lords, an interesting fact is that whenever, during our long debates on this Bill, any noble Lord has tried to seek clarity, with the sole exception of the noble Lord, Lord Faulkner, who has had two marked successes and my noble friend Lord Lucas, who is not in his place, we have been told that we are creating loopholes. The whole point of this amendment is to close loopholes. That should be acceptable to the House.
My Lords, before responding to the noble Lord, Lord Naseby, on Clause 10, it may be helpful and for the avoidance of doubt on the part of the noble Lord, Lord Skelmersdale, if, rather than dealing just in nods and monosyllables, I put the whole context forward. I was responding to whether or not a mail order catalogue is an advertisement under the meaning of the Act, to which the answer is yes, unless it is just a price list; in which case the answer is no. I hope that avoids any misunderstanding, if not necessarily being the answer for which the noble Lord, Lord Skelmersdale, hoped.
My Lords, perhaps I may interrupt the Minister as he is referring to the last amendment. It would have been extremely helpful to the House, and indeed to me, if he had made that statement on the last amendment rather than on this amendment. My attitude would most certainly have been different and I would have had no hesitation in dividing the House. Now that opportunity is past. I know the Minister did not mean any parliamentary trickery; it was an accident. But I protest.
My Lords, perhaps I might add to that. I am of the same opinion. I was of the impression after the noble Lord, Lord Clement-Jones, finished, that a catalogue, which could include illustrations as well as a price list but which encompassed products from different companies and was not just the product list of one company, would be acceptable because that is not advertising a specific product in competition with another; not that it was limited to a typed-out price list. I admit that I too was misled.
My Lords, the Minister puts the House in some difficulty. My noble friend moved an amendment which was responded to by both the Minister and the promoter of the Bill. He asked the Minister, speaking on behalf of the whole of the Government, for clarification of his response. The clarification was that a mail order catalogue was entirely acceptable. I cannot believe that the Minister does not understand the difference between a catalogue and a price list.
We are now in a position where the House may have chosen to divide—I sense my noble friend would have sought the views of the House and if he had I would certainly have supported him—if the response had been a price list. Now we are in a situation where we are dealing with my amendment, which has nothing to do with Amendment No. 3, and we need guidance as to how to proceed.
My Lords, I am not sure whether or not I would have supported the amendment. That is totally immaterial. The point is that the House has been, quite inadvertently and with the best will in the world, deprived of an opportunity of dividing on an amendment that my noble friend moved earlier. We are masters of our own procedure. We have the benefit of the Chairman of Committees in the Chair. If the House as a whole wishes my noble friend to press his amendment, it has the power to allow him to do so. It would be exceptional; but this is a mistake made in good faith.
My Lords, I was under the impression that this House normally tries to behave according to the Companion. From my little knowledge, we are so far away from what we are advised to do that we ought to stop. I would have loved the noble Lord to divide the House; I would have loved to defeat his amendment. But time has passed and I hope that, speaking for myself because I have no authority, we simply stick to our rules. That is the way we have always done business and I should not like to be a party to a Motion not to stick to our rules.
My Lords, I can do no more—I grant it is not sufficient—than offer my apologies to the House and to the noble Lord, Lord Skelmersdale, for inadvertently denying him the opportunity to divide the House.
Clause 10 creates an offence in relation to a sponsorship agreement if the purpose or the effect of the sponsorship agreement is to promote a tobacco product in the United Kingdom.
The amendment seeks to exclude from the ban on sponsorship those sponsorship agreements which are for the tobacco trade as defined in (2A)(a).
During Committee we had a useful exchange on sponsorship and other types of business activities. One of the points that was raised was in-company sponsorship agreements in the trade and within the trade associations such as the National Association of Cigarette Machine Operators. It was argued that just as advertising within the tobacco trade and the giving away of product coupons for the purposes of the tobacco trade to persons in the trade should be and is permitted by the Bill, so should it be the case with sponsorship agreements.
My noble friend Lord Hunt wrote to the noble Earl, Lord Liverpool, in connection with this debate on 21st February. A copy of his letter has been placed in the Library. His letter made clear, and I wish to reiterate today, that sponsorship which is designed to promote a tobacco product, or has that effect, is banned. It applies to both the sponsor and the recipient. The contribution made by the sponsor must be made in the course of a business. There is no intention to catch the private individual who uses his own money to sponsor an event or an activity so as to promote smoking.
Sponsorship is permissible if it promotes only a company name and not a product. Therefore commercial dealings between companies are allowed and companies can publicise their company name. It is possible under the Bill for a tobacco company to give money to support an event or an activity so long as the company's products are not given any promotion in return. Tobacco companies can, if they wish, support a musical or theatrical production and be acknowledged for so doing so long as that acknowledgement mentions only the name of the company and not any of its products, and does not involve any special treatment of the tobacco company over and above other sponsors, the purpose or effect of which was the promotion of tobacco products.
The Bill is not intended to create barriers to trade in tobacco products and for this purpose the Bill contains Clauses 4 and 9. As amended on Report, those clauses make clear what is meant by the trade so as not to interfere with normal business dealings. The noble Lord, Lord Clement-Jones, raised examples such as handing out cigars at the end of a meal and having an Imperial Tobacco box at Wimbledon. In both those cases the individual circumstances would need to be considered. But so long as the purpose or effect is not to promote a tobacco product, there is no question that they would be banned.
That is not to say that any paid-for event would be permissible under the Bill, nor should it be. This amendment would allow a tobacco company to sponsor a golf tournament or a polo match and promote its products so long as those invited were buyers of tobacco products.
That would, I believe, take the exclusions granted under Clauses 4 and 9 too far. Both clauses are designed to ensure that only specific individuals may be targeted with promotional materials and gifts. A more general exclusion on brand promotions which could cover anything from a local sports hall being funded for the use of buyers to a national rugby tournament or food exhibition, targeting buyers, would take the exclusion too far and would, in many cases, be difficult to keep self-contained. I ask the House to reject this amendment.
My Lords, as the noble Lord, Lord Naseby, explained, the purpose of this amendment is to extend to sponsorship agreements the exemption for members of the tobacco trade which already exists in Clauses 4 and 9. While I understand the motives behind Amendment No. 4, I do not agree that it is necessary or indeed desirable.
The exclusions given for members of the tobacco trade in Clauses 4 and 9 are given because advertising within the tobacco trade, solely aimed at other members of the trade, is intended to persuade, for example, shopkeepers to stock a specific brand, not to smoke that brand. The same can be said for free distribution within the trade. They can be to reward the reaching of targets, to reward successful staff and so forth; they are generally not done to persuade members of the public to smoke a specific brand.
The same cannot be said of a sponsorship agreement. As we heard on Report, we are not talking about a hospitality tent at Henley or Wimbledon, which is not strictly speaking a sponsorship agreement; it is a different type of commercial transaction. Nor are we talking about distributing free cigars, as the Minister described, at the end of a corporate meal, or indeed to parliamentary pipe and cigar clubs. Those are free distributions and as such are covered under Clause 9. If they are done solely within the tobacco industry, they will not be covered by the legislation as currently drafted.
We are not even talking about a sponsored event when it is sponsored in the name of the tobacco company producing the cigarettes rather than the brand of tobacco produced. That generally does not have the intention or the effect of promoting a tobacco product. So it will not be prohibited.
I admit that I struggled somewhat to think what kind of event would be facilitated by this amendment to the Bill. Perhaps it might be a kind of "all England tobacconists snooker tournament", where all the participants and the spectators are members of the tobacco industry, as defined in the rest of the amendment. As I have already said, if there were to be a, say, Gallaher all England tobacconists snooker tournament, there would be no problem. It would be allowed to take place even without the amendment. If, however, Gallaher wanted to associate the event with, for example, the Benson & Hedges brand, the amendment would be needed. No doubt the supporters of the amendment would say that that would be done in order to make Benson & Hedges an attractive brand to the snooker-playing tobacconist. They would then stock more Benson & Hedges. I must admit that it is highly unlikely that that event would ever take place. However, even if it did, it would not be desirable to allow it under the terms of this legislation.
It is inevitable that any such event would be heavily publicised outside as well as inside the tobacco trade. It would be an extremely newsworthy event.
My Lords, I am sure that one could devise all kinds of nice ways of doing this, but it would be perfectly possible to have the tobacco company put its name to the event as opposed to the actual brand. As I have explained, one would then be home and free in terms of the existing legislation.
It is inevitable that, even if that was not the intention, such an event would serve to promote the use of particular brands outside the tobacco industry. I am convinced that for the legislation to be effective it must be as comprehensive as possible. Each exemption must be fully justified and must not jeopardise the overall point of the Bill. I do not believe that this exception has met these tests: first, because it is very unlikely to happen; and, secondly, because, even if it did, it would not be helpful for the reasons that I have explained. I therefore most strongly urge the noble Lord to withdraw his amendment.
My Lords, bearing in mind what happened on the previous amendment, I should be grateful if the Minister could confirm the noble Lord's interpretation of the Bill as it stands. I understood the promoter of the Bill to be saying that the existing provisions of the Bill are such that sponsorship agreements are for the purposes of the trade and the trade alone where such sponsorships are confined to persons within the trade and that as long as they are just in the company name they are permissible. Is that also the Government's interpretation?
My Lords, this amendment was originally grouped with Amendment No. 7, but is now to be de-grouped. I make that clear because the amendments deal with two different issues. The amendment is really an offer to help the Government. It seeks to delete the final five words of Clause 20(1). By that means it endeavours to remove the possibility of discrimination as between sponsorship agreements of different descriptions. The Minister still has the ability to make regulations permitting the continuation of all tobacco sponsorship agreements that comply with the regulations up to a date that he may determine, but no later than 1st October 2006.
The amendment was one of the available alternatives. One could have tabled an amendment to leave out Clause 20 altogether. The amalgamated date is dealt with in Amendment No. 7 which has now been de-grouped. At this stage, I move the amendment to see what reaction I get from the promoter of the Bill and from the Government.
Perhaps I may say by way of introduction that the background is that one of the key ways in which tobacco companies raise their profile is through sponsorship of national and international events. All noble Lords would recognise that certain sports have benefited enormously from tobacco company sponsorship. Any move to remove that overnight could be potentially detrimental to a number of sports.
The White Paper, Smoking Kills, which was published in December 1998, stated that regulations on tobacco advertising would allow extra time to phase out tobacco sponsorship of sports and other events. The Government's view is that sponsorship of sport can best be sustained by sport itself establishing proper commercial links with business. The role of government within this process is to listen to the concerns of the sports involved and to look with them at ways of diversifying their funding base.
The specific question posed by the noble Lord, Lord Naseby, is whether it is right to differentiate between one sport and another in relation to the amount of time that they are allowed under the provision. When the matter was discussed within the White Paper and in the Bill which the Government introduced in the previous parliamentary Session in another place, the Government's position was that they recognised that some global sporting events are under particular pressures. Undoubtedly the picture is varied. Some global events have little dependence on tobacco sponsorship. Others, however, are greatly dependent on it. Where they have, the Government are advocating that those events should look to other sources of funding, but they recognise that that may not be possible immediately.
Clause 20 provides the power for secondary legislation to cover transitional arrangements for sponsorship. Those regulations will be subject to consultation, at which stage the Government, if the Bill was enacted, would hear the views of the various sports representative bodies. The expectation is that, subject to consultation, most sponsorship of sporting events will end by July 2003. Global sporting events would have until September 2006 to do the same, provided, first, that they do not sign new contracts with tobacco companies, and, secondly, that they phase out the current sponsorship that they receive.
I cannot prejudge the outcome of any consultation. That obviously rests on whether the Bill is successful in its passage through another place, assuming that it is successful in this House. Therefore, I cannot indicate the Government's position on which sports might qualify for the longer transitional period. But, subject to any persuasive arguments in the consultation, the Government intend to implement broadly this long-standing policy of distinguishing between global and non-global events.
For that reason, the amendment tabled by the noble Lord, Lord Naseby, would inhibit the Government's ability to do that. Therefore, I cannot recommend that the sponsor of the Bill or the House accepts the amendment.
My Lords, the general intent is to remove tobacco sponsorship of sports as quickly as possible. But it is accepted that some sports, particularly global sports, may be especially dependent on tobacco sponsorship. In those circumstances, it seemed right to the Government that those particular sports should be allowed a limited extension to the limit.
No, my Lords, I did not mean that at all. A sport is a sport is a sport.
My Lords, despite the temptation laid in my path by the noble Lord, Lord Naseby, I do not intend to add a great deal to what I said at Report. Of course, we on these Benches have considerable sympathy with the idea of a level playing field, if that is the right expression, as regards sponsorship of sports by tobacco brands. But, as the noble Lord, Lord Peston, wisely said on Report,
"90 per cent of a loaf is better than no bread at all".—[Official Report, 1/3/02; col. 1733.]
My firm intention is to see the Bill into effect, if at all possible. Perhaps I may remind the noble Lord, Lord Naseby, that I cited a famous Conservative, R A Butler, about the art of the possible. I hope that that gives him some comfort.
My Lords, I am grateful to the noble Lord for giving way. Of course, such matters will be the subject of consultation when any regulations are produced. I have no doubt that if the global sport of pigeon carrying makes a proposal, it will be given earnest consideration by the Government.
My Lords, I hasten to correct the Minister, it is not pigeon carrying, it is pigeon racing. Given the part of the country from which he comes and he being a man of the people, I should have thought that he might have understood a little about pigeon racing, but clearly he does not.
My Lords, I come from Birmingham and we do not do a lot of that there.
My Lords, I expect that the Minister will receive many letters in forthcoming weeks from the pigeon fanciers of Birmingham. Indeed, I encourage all of them to write to him to correct him.
The purpose of the amendment was to help the Government and to try to find out which way they are moving. What they are really saying is that they have got themselves on a hook with Formula 1—we all know why they are on that £1 million hook. I do not need to expand on that, but I know that there is continuing embarrassment about it on the Government Benches. The amendment provides an opportunity to go down one route to solve that problem, but at present the Minister has kicked it into the long grass saying that it will be for future regulation.
We are approaching another amendment under which we can really home in on the matter. This amendment is rather wider and leaves discretion to the Government; the next one is slightly different. I beg leave to withdraw the amendment.
My Lords, I shall try to tread on another patch of grass and see how long it is. Your Lordships will be well aware that Clause 10 bans all sponsorship but Clause 20 then gives a loophole to sponsorship of certain sports. The noble Lord, Lord Hunt, has just expanded on that in response to the amendment moved by my noble friend Lord Naseby.
During earlier consideration of the Bill, the Minister indicated what were the Government's intentions in respect of the directive that was annulled in October 2000. On Report, he said of the criteria that were likely to apply under the annulled directive that they,
"give a general view of the kind of definitions that are likely to be used".—[Official Report, 1/3/02; col. 1732.]
My noble friend Lord Naseby has just mentioned one or two exceptions and I intend to mention some more shortly.
As the Minister has just said, the Government's intentions are absolutely clear. The largely unspoken purpose of Clause 20 is well known: it is principally to accommodate the wishes of Formula 1 motor racing. Other noble Lords may well expand on that point shortly. Clause 20 as drafted should not stand part of the Bill. I was interested that, perhaps against his own inclination, the noble Lord, Lord Clement Jones, said on the subject at Report:
"the quicker that we move on to the other stages of this Bill, without too much comment, the better".
At that stage, my nose started to twitch. It twitched even more fiercely when the noble Lord, Lord Preston, then said, as already quoted today:
"90 per cent of a loaf is better than no bread".—[Official Report, 1/3/02; col. 1733.]
What concerns me is why there should be no bread. Something is in the background here that I do not like; hence my amendment.
There is no acceptable or good reason for laying down one set of rules for Formula 1 and other, much more restrictive terms for other sports. There should not be discrimination. If Formula 1 is to be given further time to reduce the level of its tobacco sponsorship—perhaps as much as another four and a half years—other sports should be allowed the same. Or, as my amendment suggests, if those other tobacco sponsorships are to come to an end in 2003, so should tobacco sponsorship of Formula 1.
Briefly, as I understand it—the Minister may want to comment on this—sponsorship funding of sports events and activities other than Formula 1 must be declared to the Department of Health each year. Under the voluntary agreement that continues to regulate such sports sponsorship funding, the formula limits total annual expenditure and that total expenditure is declared to the Department of Health. The approximate annual total for such. may I call it other, tobacco sponsorship is £10 million per annum. That compares with—again, I am using general figures—approximately £300 million per annum for tobacco sponsorship of Formula 1. So Formula 1 receives £300 million, and the total for all other sports—65 of them, according to a list I have recently received—is £10 million.
Such sports are far from rich and each one has had to be approved by what is now the Department for Culture, Media and Sport. Much of the sponsorship for those 65 sports has been for grass roots activities and sports of low profile unattractive to other potential sponsors.
I shall certainly not waste the House's time by listing all 65, but they include such activities as angling and athletics. Those are surely global, are they not? They also include bowls, curling—full marks to the Scottish team who recently won a gold medal at the Winter Olympics—Rugby League, greyhound racing, horse racing, motorcycle scrambling, motor racing, and, of course, pigeon racing, which my noble friend Lord Naseby mentioned. They include sailing—again a sport at which we excelled in the Olympics in Sydney—speedway, 10-pin bowling and windsurfing. I could go on, but I shall not waste the time of the House.
Those sports need sponsorship. Many of them are small and it is likely that they rely on tobacco sponsorship for 100 per cent of their sponsorship. The discrimination between sports and events enabled by Clause 20 must be removed. It is neither fair nor just. There should be only one date on which all sponsorship agreements come to an end. Everyone in the House would probably agree—and I am trying to help the noble Lords on the Government Front Bench—that the date should be as soon as possible. However, we understand that 2003 is, perhaps, the earliest practical date. If it must be longer, so be it, as long as the date is common to all.
I shall make things clear. I worded the amendment deliberately, so that it would fall into line with what I understand the Government want, but there must be parity. If the Minister can give the House a categorical assurance today that a later date will be common to all, I shall be more than happy to withdraw my amendment. I beg to move.
My Lords, I support the concept of the amendment that the date on which all sponsorship agreements end should be the same. I do so because, when the Bill—or its successor, if there is one—is notified to the Commission, it will raise the point that was made by my noble friend Lord Geddes. One need look only at Section 8 of the Danish legislation, which was approved by the Commission and is now in force. It uses the date 2003, as it happens.
My Lords, out of a sense of fairness, we should have what has been referred to as a level playing field—in other words, a common date—although cross-country sports may not think of it as such, for they do not want a level playing field.
I was interested to hear that curling was sponsored by the tobacco companies. I watched some of it and had no idea that tobacco sponsorship was involved. I suspect that the danger of such sponsorship for many small sports is somewhat overrated. If anything, it ought to be the other way round: it ought to be the high-profile events, where the sponsorship is splashed over everything, that should stop it first, and the smaller ones, at which sponsorship is not so apparent, that should be allowed to continue it until whenever it is.
After Report, there was much talk about loaves of bread, initiated by the noble Lord, Lord Peston, but taken up enthusiastically by other noble Lords, including the noble Lord, Lord Clement-Jones. I am unclear as to why the noble Lord, Lord Clement-Jones, as the promoter of the Bill, feels the need to compromise what seemed to me to be the strong principles on which he and other Liberal Democrat Members felt that the clause should not be in the Bill. Perhaps, he will explain that to us.
Can the noble Lord, Lord Clement-Jones, say why he felt the need to include the clause and why his Private Member's Bill does not reflect the matters that he feels ought to be in it, on grounds of principle? If it is because the Government told the noble Lord that such a provision was important, the Minister might say why the manifest health benefits that lie behind the Bill—as has been impressed on the House at every stage of its progress—can be dropped because of the impact of this minor transitional provision. I am confused by the position adopted by the promoter of the Bill and by the position of the Government. I hope that they will be explained.
My Lords, the noble Lord, Lord Geddes, made an excellent case for treating all sports equally. If he finds the Minister's reply unsatisfactory—we shall wait and see what it is—I suggest that he should consider pressing the amendment to a Division, if only to find out which way the political parties that have not been in receipt of Ecclestonian largesse, so to speak, jump and which Division Lobby they pass through.
The noble Lord, Lord Clement-Jones, was worried about losing the Bill. He will be aware of course that, if a new date is inserted today, the other place can reinstate the original date if they so choose. The Bill need not be lost.
My Lords, I hope that the promoter of the Bill will address the questions raised by my noble friend on the Front Bench. I have always viewed the Liberal Party as a party of honour and assume that it would want to see fairness for all sports. I cannot comprehend why one sport should be treated one way and all the others treated differently.
I shall not add to what my noble friend Lord Geddes said, but we should consider the scale of that sport, Formula 1. I have some knowledge of Formula 1; Silverstone was adjacent to my former constituency. I imagine that several of your Lordships have been to Silverstone—I have been a regular member—and will have noticed that at the moment, there is no tobacco sponsorship there because of a voluntary agreement that there should not be.
Even to take part in that sport, one must put down a bond of 48 million dollars. There are only 11 teams, and the average team budget for the current year is 198 million dollars. Although many people enjoy going to motor sport, the cost of going is hardly at the financial level of the average punter. Entry fees for Grand Prix events are well in excess of £150 a day, and the total sponsorship for Formula 1 for this year, covering all sorts of products and services, is estimated at £2 billion. At most, tobacco sponsorship is only 15 per cent—perhaps only 10 per cent—of that. By contrast, for all other sports, the estimated amount for the last year for which I could get figures—1999-2000—was only £9 million.
It is all very well for the Government to say that there is a task force to give advice; that does not supply money. The Government know what the problem is. All the other 59 sports to which my noble friend referred will be cut off from the tiny amount of tobacco sponsorship that they receive. That is discrimination. I hope that it is not happening because of Bernie Ecclestone's £1 million contribution, but no other reason has been put forward. That is not fair, and I cannot believe that anyone in your Lordships' House believes that there should be such unfair discrimination. I support my noble friend's amendment.
The people who go to this sport are white, southern, middle-class and male, and, therefore, it should not have any time given to it by the new Labour Government. This was a shoddy deal, done in the days when it was relatively expensive to buy the Government. It seems that £150,000 will buy them now, whereas, a few years ago, it took £1 million.
I hope that the Liberal Democrats will be happy to be rid of that deal, so that we can, at least, send a message to the other end that we need a bit of cleanliness. So much has been said in all parts of the House about the desirability of moving fast and effectively to end tobacco advertising, and I hope that we can get rid of that deal and press the amendment to a Division.
My Lords, I can assure my noble friend that I have read it—several times. It does not make pretty reading. I hope that the promoter of the Bill has read it, and I want an assurance that he has read it, when he replies.
My Lords, in that case, I am even more amazed that my noble friend is still confused. The facts are most definitely there.
Irrespective of Formula 1—it is, of course, a Formula 1 amendment—the Government's actions have been more than a little surprising. In May 1997 the then Secretary of State announced that all forms of tobacco advertising, including sponsorship, would be banned. The position was already confusing because before the election the shadow Minister for sport had ensured that sponsorship would not be included in the proposed advertising ban.
I am told in Andrew Rawnsley's account that there was a meeting with a certain well known person in No. 10, after which the right honourable Mr Blair instructed the Secretary of State for Health to find a compromise to accommodate a special concession for tobacco sponsorship for Formula 1. Furthermore, in November, one of the health Ministers went to Brussels for a normal meeting and argued from a very lone position for an exemption for Formula 1, supporting voluntary restraint which had earlier been rejected outright by the Government. If any Government have ever been in a mess, surely to God they are on this one. My noble friend is quite right.
My Lords, it has been an extremely interesting debate until around the polemics of Andrew Rawnsley. I have not read the book myself. I should like to point out some of the chronology which needs to be gone through to understand why the Government reached their decision. I return to the White Paper, Smoking Kills, published in 1998, which said:
"Genuinely global sporting events which are currently dependent on very high levels of tobacco sponsorship may find it particularly difficult to adjust to alternative sponsorship. Global sports events with a high dependence on tobacco sponsorship will be given more time if they need it".
A 1998 EU directive provided that most tobacco sponsorship should end by 30th July 2003, but that:
"Existing sponsorship of events or activities organised at world level [could be authorised] for a further period of three years ending not later than 1st October 2006".
The draft regulations that were developed in relation to that directive stated that,
"Exceptional global event means an event or activity that takes place in at least two continents and three countries and which is the subject of a sponsorship contact for which the financial consideration is in excess of £2.5 million per annum".
That is the basis of government policy which we intend, in broad intent, should the Bill pass through this House and the other place.
However, I want to stress again that that is subject to consultation and it is not my position here to pre-judge the outcome of that consultation and indicate which sports might qualify for the longer transitional period. It is the Government's view that there is a justification for a longer period of time being given to those sports, in the circumstances that I have described.
I now turn to the second point raised by the noble Lord, Lord Geddes, concerning the position of those sports which would not come under that category—
My Lords, I thank the Minister for giving way. Before he turns to the second point of the noble Lord, Lord Geddes, perhaps I may refer to the first point. Can the Minister say whether any country in the world bans advertising on Formula 1 racing on its territory? I know that there are not Formula 1 meetings all over the world, but I have been told that there are some countries that place big white diamonds over the tobacco advertising on the cars. Is that or is that not a fact?
My Lords, I am not in a position to provide the information to the noble Baroness but I believe that she should not focus on Formula 1. The whole point of the definition that was used in the original directive was not Formula 1. It was a more general description of how one would define global events.
My Lords, not pigeon racing. It is not possible for me to give a long list of sports which might or might not fall within that definition. However, one of the sports that comes to mind might be world championship snooker. I know that the darts authorities believe that they have a case. However, the point is this. No decision has been made. It will be subject to consultation. What the clause before us gives to the Government, if it is passed, is the ability to differentiate. The Government's position is that they believe that there is justification in such differentiation.
In response to the noble Lord, Lord Geddes, of course I accept that smaller sports that would not fall within that definition have been concerned about the impact of the provision on them. That is why the task force was set up, in order to help the sports affected find alternative—
My Lords, perhaps I may interrupt my noble friend for the sake of clarification. I believe that we are a little bit at cross purposes. I had understood the transition arrangements to apply only to sports which already had tobacco sponsorship. Have I misunderstood the position? That is what I thought it meant; that they had some tobacco sponsorship and they were not going to be told, "Get rid of it this minute". Those of us who devote our lives to pigeon carrying are very upset that the noble Lord is taking such a deprecatory view of pigeon carriers, but we do not have any tobacco sponsorship. Therefore, I do not see how we fall under the provisions. The serious point is that it has to be a transitional arrangement for those who are involved already.
My Lords, as I have stated already, surely the point is that there will be consultation on the arrangement.
My Lords, the noble Lord, Lord Peston, has outlined what I understand to be the situation—that there must be an existing agreement. Therefore, if there is an existing agreement, I cannot believe that the Minister has not come to the House today with a list of what the existing agreements are, rather than speculating on what might or might not happen in the future. That is not the point. What are the existing agreements which might end in 2003 or some later date? In particular, what existing agreements of a global nature, other than just Formula 1 motor racing, are to be given an extension to 2006?
My Lords, the noble Lord completely misses the point. This is an enabling clause to allow for differentiation between different sports activities. The question of how that differentiation will be made will come as a result of the consultation. To be helpful to the House, what I sought to do was to go back to some of the principles that were enunciated by the Government when the original Bill went through the other place.
I refer my noble friend Lord Peston back to the 1998 EU directive. That provides for an extension for a further period of three years, ending not later than 1st October 2006, provided that the sums devoted to sponsorship decreased over the transitional period and that measures were taken to reduce the visibility of advertising at the events concerned.
The point is that they relate back to the original directive which was struck down as a result of legal action. In quoting from the directive, what I was seeking to do was to give the House a general indication of the Government's thinking; but not so far as to say that the consultation itself will not be an exercise in which sports can put forward their views, whichever sports they are. The Government will then make their mind up as a result of those consultation procedures.
My Lords, it has been a most interesting debate. I was particularly struck by the encyclopaedic description given by the noble Lord, Geddes, of possible sports which could be covered by the clause. I was also particularly struck by the contribution of the noble Lord, Naseby, playing soft cop/hard cop all in the space of this morning! We on these Benches are of course highly principled, but I am a little suspicious of his motives in being so nice about us in respect of the amendment.
Of course I have read Servants of the People and I am sure that Andrew Rawnsley will appreciate the publicity in the course of the debate. However, I do not know that it adds anything to what we already knew.
As I explained on earlier occasions, I sympathise greatly with many of the sentiments expressed in the debate but I am afraid that I am completely unembarrassed and on these Benches we are completely unembarrassable about the fact that we want to see the Bill go forward in its current state. A Private Member must make a judgment as to whether a Bill will or will not succeed in the course of its passage through both Houses. At an early stage of the Bill, I made the judgment that if the Bill were to succeed the clause would have to appear in its current form. That is what I call "good risk management". I very much hope that noble Lords will take my advice to see the Bill go through unamended in its current form.
My Lords, I believe that the noble Lord, Clement-Jones, might more accurately describe what he just said as sacrificing his own principles. I find it quite extraordinary that someone from the Liberal Democrat Front Bench should say what he has just said.
Be that as it may, I must congratulate the noble Lord, Hunt, on an incredible job of trying to defend the indefensible. It was not without interest that, other than a specific intervention from his noble friend Lord Peston, he received no support whatever from his Back Benches. Members of your Lordships' House can read into that whatever they like.
The noble Lord—
My Lords, I thank the noble Lord for giving way. I am close to being out of order, but I am worried about the implication here. I am not at all concerned about the Liberal Democrats but I am concerned about the implication that those of us who have not spoken are lacking in principle or that, if the noble Lord divides the House, those of us who vote with the noble Lord, Clement-Jones, will be lacking in principle. I found that beyond the level to which the noble Lord, Lord Geddes, usually goes. I have always regarded him as one of the best Members of our House and I hope that he is not implying that the noble Lord, Lord Clement-Jones, and, by association, myself are lacking in principle on this matter. That would be going a little too far.
My Lords, I take the noble Lord's point. To him personally perhaps I may apologise. My opening remarks were entirely addressed to the promoter of the Bill. They had nothing whatever to do with my later remarks about the lack of support that the noble Lord, Lord Hunt, has had from his own Back Benches. That had nothing to do with principle; I was talking about support.
The Minister has trotted out the Government's policy. None of us was surprised to hear it because we have heard it before. However, he made an interesting comment to, I believe, my noble friend Lady O'Cathain:
"Don't concentrate on Formula 1".
That is what the debate is all about.
There is one answer that the Minister has not given, and the one answer that the promoter of the Bill has not given, and it relates to the business of global and non-global. Frankly, it is window-dressing. The noble Lord, Lord Peston, is right and I thank him for his remarks—it is not often I speak so strongly. However, it is window-dressing.
I have heard nothing today, nothing on Report and nothing in Committee to explain why the Government—and it is the Government and not so much the promoter of the Bill—are moving away from fair play and parity. That is appalling and I want to test the opinion of the House.
My Lords, I beg to move this amendment at a rather inauspicious hour on a Friday in the unfortunate position of knowing that, whether it is good, bad, requisite or indifferent, it will not be accepted by the promoter of the Bill, the noble Lord, Lord Clement-Jones. However, lying behind the amendment is a matter of principle on which I have entertained constructive discussion with the noble Lord, Lord Filkin. Although we disagree, at least we see and understand each other's point of view. This is going to be a matter not for dispute between the noble Lord, Lord Clement-Jones, and myself, because his mind is closed—that was put on the record this morning—while the Government's mind is not. Thus, if the House will bear with me, perhaps I may explain the position as I see it.
The amendment seeks to alter the commencement clause. It goes to the jurisdiction of our courts and reflects the mandatory obligation under supra-national European Union procedures to notify and obtain the approval of the European Commission before enforcement of the penal provisions in our courts. Sufficient time must elapse before Royal Assent to enable the Commission to decide whether to grant approval such as would be afforded by this amendment, which I suggest is essential.
No doubt to the relief of the noble Lord, Lord Clement-Jones, the amendment in no way impugns the general intention of the Bill, which is to protect public health, or the machinery of implementation on which already we have had more than a sufficiency of debate; rather it is a procedural safeguard against the enforcement of penalties imposed on conviction, as acknowledged on Report by the Government. Without the amendment, then Clause 22 covering commencement will be manifestly defective. As yet the Bill has not been ratified as a proposal for an Act of the European Communities under the mandatory procedures. The general intention is supported, but the machinery of implementation is not and the Bill is a matter for the approval of the European Commission, subject to judicial determination by our courts and the ECHR. All enterprises and individuals who have a direct or indirect interest in tobacco products throughout the European Union—whether as cultivators of the crops, manufacturers, distributors, sponsors, advertisers, mail order concerns and so on—have an entitlement to know that domestic legislation has been approved by the Commission.
The Commission and member states, three months after notification, are entitled to comment upon proposals for a draft Act, to make representations and to raise objections.
I take no credit for this concept. It is the brainchild of my noble friend Lord Northesk, adopted by my noble friend Lord Skelmersdale, and it was spoken to by both my noble friends during the passage of the Bill. My noble friend's amendment, Amendment No. 10, does not seek to carry the broad concept as it is limited to electronic means.
The way in which the regime works—I say this in a thin House for the sake of the record so that it may be considered as an objective assessment—is apparent from the documents that I have received from our Senior Assistant Librarian and which have been shown to the noble Lord, Lord Filkin. It is illustrated by the Danish legislation. The position is that the proposal for an Act prohibiting tobacco and so on should be notified to the Commission as a draft of the Act in accordance with the mandatory procedures. Three months is then allowed for the Commission and member states to comment on the proposals. If there is no response within three months, then, as in the case of the Danish Bill—a copy of which is in the Library—automatically it is approved. And so the Danish Bill was enacted on 7th June 2001.
This is important because the whole concept of the Commission is the uniformity of application. I am utterly convinced—indeed, I have a letter from the Commission which states so categorically—that this Bill is subject to notification. So it will have to be notified, and the Commission will seek a kind of conformity as between this Bill and the Danish and Dutch procedures.
It is for that reason that I shall explain the position of the Dutch. They are working on the proposal for a draft, which has been notified, and they have now reached the second consideration of amendments to their draft. The Bill is in preparation but has not been published. It has not yet been approved.
If any noble Lords were interested, they would see from the Danish Bill, which is now an Act, that what is acceptable to the Commission as a total ban on advertising, sponsorship and distribution is dependent on the savings clauses, the form of which engender proportionality. Acceptable as such, and already accepted by the European Commission, it is a short Act of nine sections contained in a page and three-quarters of A4 paper. It is indeed an illustration of the manner in which the Commission, when it considers a Bill from this country which has to be notified, will approach and possibly assimilate the position.
In the context of sponsoring, I have referred already to a section of the Danish Bill. Let us take one example. It is very unlikely, in granting approval, that the Commission will approve 2006 having approved 2003 for the Danish legislation. I mention that only because the whole concept of the European Commission operation is to achieve a measure of conformity. If the Government intend to prepare a draft of another Act, notify it and seek approval, at least a kind of precedent exists. But the devil is in the detail of the savings clauses which affect proportionality.
In case there is any question of whether or not the Bill is notifiable, if noble Lords look at the first page of the document in the Library they will see a footnote to the proposals for an Act prohibiting tobacco advertising which states that the draft of the Act has been notified in accordance with the mandatory regulations. Further on, they will see the Act in substantially the same form and again the footnote that the draft of the Act has been notified in accordance with the mandatory regulations.
I know that this is rather boring, but if one is trying to make a case that this Bill has to be notified, it must be an intelligent case on the record.
It is common ground from the letters received from the European directorate about enterprise generally, the single market, implementation, legislation for consumer goods, notification and infringement that this Bill has to be notified. A copy of such a letter has been sent with my documents to the noble Lord, Lord Filkin—with whom, as I say, I have had amicable discussions—and that is on the record. The letters state in terms that, according to the services of the Commission, United Kingdom and Scottish advertising and promotion Bills are notifiable under the directive.
This Bill—I am coming to the end; I apologise for being so boring—is likely to fail on a single objection in another place and make its way to gather dust in the archives somewhere in the Victoria Tower unless it is retrieved and introduced as a government Bill. But, in any event, from the letters held by the noble Lord, Lord Filkin, and from the documents to which I have referred, the Commission would maintain that the amended Bill has to be notified.
The argument that I am addressing to your Lordships and asking the Government and the noble Lord, Lord Filkin, to consider, is not the kind of argument that should be addressed to magistrates at the preliminary hearing of a conviction under this Act which goes to the jurisdiction of the courts. In other words, this is a "nettle" which, at government level at this time, has to be addressed. So long as it is addressed one way or another, that is in a sense all that matters. As the noble Lord, Lord Filkin, knows, if a matter such as this—analogous but not the same—is addressed by government and the Government get it wrong, the courts will get it right. But it cannot be ignored on the basis: "We are having no amendment whatever to the Bill, full-stop"—no consideration, nothing—"We are going to have this Bill as it stands". That is the height of arrogance. If the Government propose to take up the Bill, time for notification, and the approval of the European Commission, must be afforded before Royal Assent.
Finally, what will the Commission do in granting approval? I assume that because I am not dealing with what it would do or the court would do if the Government decline to notify. That is quite another ball-game. I am assuming notification by the Government. Before granting approval, the Commission would, first, seek a form of conformity with domestic legislation along the lines of the Danish and Dutch legislation, in particular in context with the exclusion clauses. Secondly, it would entertain the economic and employment sectors, such as, for example, the Greek tobacco crop. Thirdly, it may well consider matters arising in this Chamber as to whether the enforcement decisions are prescribed by law as proportionate or are a legislative overkill. Lastly, it may consider whether the criminal offences as drafted are drafted with requisite provision.
The hope is that in the light of debate on the Bill— not only today but throughout its passage—the Government may consider substantial amendments to simplify and clarify the drafting, in line perhaps with the Danish and Dutch legislation as approved by the European Commission. My last hope is that a new clause will be added, with especially severe, onerous penalties, triable only on indictment, to criminalise distribution to children, by gift or otherwise, of any tobacco product. These matters, which would remove any hint of confusion, have not been discussed at the JCHR, of which I am a member, or with anyone other than the noble Lord, Lord Filkin, and my noble friends Lord Northesk and Lord Skelmersdale. I beg to move.
My Lords, my Amendment No. 10 has been grouped with this amendment at my request. Clearly, my noble friend is able to produce a lawyer's argument, which I am totally ill-equipped to do. I am grateful to him for explaining the background, which cuts down considerably what I should otherwise have had to say.
The House will be relieved to hear that I do not propose to repeat the remarks that I made on Report—by which I still stand—save to reiterate that notification is not a narrow procedural point. In conversation outside the Chamber—I hope that the noble Lord, Lord Filkin, will allow me to reveal this to your Lordships—he described the matter as "fundamental". Notification is an issue relevant to much legislation. So what the Government think in this case has importance way beyond the Bill. That is, no doubt, why Ministers consulted widely within government.
On Report, I referred—somewhat argumentatively, I admit—to a letter I had received from the Minister regarding notification. In his reply to me, he merely repeated, in slightly different words, the contents of that letter. He did not answer my charge that the letter was wrong in several material respects.
During the debate the noble Lord said that the technical standards directive applied to information society services. It does not. It applies much more widely. For example, it applies to newspapers and periodicals, as manufactured products. The directive refers to technical regulation, but within the meaning of the directive that embraces laws, regulations or administrative provisions prohibiting the manufacture, importation, marketing or use of a product.
We all know that the Bill prohibits the advertising of tobacco. By doing so, it lays down requirements as to the content of publications which may be lawfully published or distributed in the United Kingdom. Those requirements must, and do, have implications for the internal market in which there is to be free movement of goods and services without barriers to trade.
Information society services happen to have provided a focus for the issue of notification. It is with this much narrower point that I am chiefly concerned in my amendment. The noble Lord, Lord Filkin, stated why the Government believed that the Bill did not contain notifiable rules on information society services. First, he claimed that the provisions of the Bill amount to "non-specific" rules on information society services.
It is true that, for a rule or regulation to be notifiable under the directive, it must be "specifically" aimed at an information society service. I beg to differ. It is quite clear that various provisions of the Bill do specifically relate to information society services.
First, Clause 4(3) includes in the prohibition of tobacco advertising the transmission of advertisements in electronic form, participating in so doing and providing the means for transmission—that is, the very services provided by an Internet service provider. For the avoidance of any doubt, Clause 21 states that "publishing" includes:
"publishing by any electronic means, for example by means of the internet".
Secondly, Clause 4(3), by enabling Ministers to introduce regulations permitting tobacco advertisements on websites, clearly indicates that the general prohibition on advertising covers websites. Lastly, under Clause 4(1)(c), Internet versions of certain publications are excluded—again indicating that other Internet publications are included in the general ban.
I see that the Minister has just arrived in the Chamber. I should have been sorry had he still not been in his place. I am about to refer to one of his successful amendments in Clause 4, concerning in-flight magazines. He was good enough to say in my absence that I agreed with it. Unfortunately, I think that, between us, we have made the situation even worse. It will make the matter more, rather than less, notifiable. In short, it is specifically and expressly contemplated in the terms of the Bill that it is applicable to the Internet. Therefore, the Government cannot argue that it is not specifically aimed at information society services.
Although the original government Bill may have exempted advertising on websites while giving Ministers powers to make regulations governing them, the Bill that is now before the House clearly bans all forms of tobacco advertising by means of information society services. That is made clear by the fact that the Bill contains specific exclusions to the ban.
Finally, the noble Lord, Lord Filkin, argued that a critical element of the definition of information society services in the directive is lacking, in that none of the provisions in the Bill regulates such services provided at the individual request of the recipient.
The Government go on to say that, because of Clause 4(1)(b), which excludes from the Bill any tobacco advertisement which is, or is contained in, a communication made in reply to a particular request by an individual for information about a tobacco product, the provisions of the Bill fall outside the scope of the directive. That must be a nonsense. I accept that for a service to fall within the directive's definition of an information society service, and therefore to be notifiable, it must be a service supplied at the individual request of the recipient. Therefore, there has to be an interactive element to information society services, unlike television and wireless. The difference is that, with information society services, the recipient actively requests particular information online as opposed simply to turning on a television set and receiving whatever is being transmitted at that particular time.
The absurdity of the Government's argument that such services are excluded from the Bill, and therefore that the Bill is not notifiable by virtue of Clause 4(1)(b), can be illustrated very easily. In doing so, I accept that an argument could be made if the accessing of a website were intentional, but Internet life is not that simple. What if someone looks for Barclays, the bank, but unintentionally—through a search-engine such as Yahoo or Google—brings up not the bank's site but one of more than 150 sites that advertise and sell tobacco products, most at discounted prices? The recipient of a possible advertisement on any one of those sites has made no particular request for information on a tobacco product. Nevertheless, the advertisement which he accesses would amount to an offence under Clause 2(3). It is quite clear that, in that case, the prohibition in Clause 2(3) is a rule on information society services and is notifiable. That is only one example, but I have given another, regarding newspapers, under Clause 4. I have a whole raft of other examples, some of which I have used and others which I have not, but it would not serve the interests of the House to go into them now.
In summary, it is clear that Clause 2(3) will operate as a rule on information society services by banning the advertising of tobacco products. As such, the Bill most definitely is notifiable. I support my noble friend Lord Campbell.
My Lords, I intervene only briefly on these two amendments, both of which I support, and do so only to advise the House. Noble Lords who were in the Chamber on Report, on 1st March, may recall that, in col. 1735, I advised the Minister that, being dissatisfied at previous replies from the Government, I was one of seven signatories to a letter from your Lordships' House to the European Commission inquiring as to the need for notification of this Bill. Unfortunately, the reply—dated 27th February, two days before Report—did not reach us by 1st March. I was therefore unable to advise the House of it. I can, however, do so now. It is an extremely brief letter which is addressed to all seven of the signatories. It thanks us for our letter of the 13th and states:
"concerning the United Kingdom Tobacco Advertising and Promotion Bill . . . According to the services of the Commission, the bill is notifiable under Directive 98/34/EC . . . The services of the Commission intend to inform the United Kingdom authorities that the draft bill should in its view be notified under that Directive".
I ask the Minister whether he will now confirm that the United Kingdom authorities have been so advised by the Commission, and what is their response.
My Lords, I, too, support the thrust and purpose of both these amendments. On Report, the noble Lord, Lord Clement-Jones, stated that he had.
"learned more about the Technical Standards Directive than I ever wanted to".—[Official Report, 01/03/02; col. 1736.]
Although it is not for me to make recommendations to the noble Lord about what he should be interested in, I am none the less intrigued and a little surprised by that. As my noble friend Lord Skelmersdale has pointed out, the directive is not only relevant to this Bill but is capable of very wide application. I should have thought that, as promoter of the Bill, the noble Lord, Lord Clement-Jones, would wish to take acute interest in a matter which, given the content of the letter referred to by my noble friends Lord Geddes and Lord Campbell, would appear to have the effect of rendering the Bill utterly unworkable.
I repeat a point that I made on Report. If the notification procedure is not complied with, proceedings on a subsequently enacted Bill could be struck down in their entirety by the court. I make no complaint about that. However, I have been struck throughout our deliberations on the Bill by the way in which, almost meekly, the noble Lord, Lord Clement-Jones, has clung to the Government's shirttails. Words along lines of, "The Minister has given a very full reply on these amendments and I agree with him wholeheartedly", or some similar formulation, have trilled from his lips at regular if not persistent intervals. My point is this. It is not unreasonable to suggest that the Liberal Democrats are perhaps the most "European" of our political parties. Nevertheless, I cannot help but feel that their grasp of the notification procedure has been exposed in our debates as strangely and uncharacteristically insular—almost, as it were, un-European. Put another way, one might have anticipated that the Liberal Democrat Benches might wish to show themselves as being up to speed on this issue if only to lend credibility to their European credentials.
On the substance of the issue, your Lordships are only too well aware that it has had an elephantine gestation period. I refer your Lordships to a Written Answer that I received from the noble Lord, Lord Hunt, on 2nd May 2001. In response to my query on whether the technical standards directive applied to the Government's Bill, the Minister unequivocally stated:
"No, because its provisions are not notifiable under the Technical Standards Directive, as amended".[Official Report, 02/05/01; col. WA89.]
I have two beefs about that. First—a relatively small point—the noble Lord, Lord Filkin, conceded on Report that,
"We believe that any regulations made under the powers relating to brand sharing in Clause 11 may give rise to a requirement to notify in due course".[Official Report, 01/03/02; col. 1736.]
To that extent, the Government—contrary to the impression conveyed by the answer given by the noble Lord, Lord Hunt—now acknowledge that at least some of the Bill's provisions are indeed notifiable.
Secondly, and of much greater significance, we are now informed by no less an authority than the Commission itself that the whole Bill is indeed notifiable. What I find extraordinary about all this is that, so far as I am aware, the relevant directives were negotiated and accepted by the current Government. It is not unreasonable to suppose, therefore, that they did so in full knowledge of what their implication might be for our legislation process. However, perhaps I may be forgiven an impression that has grown on me in the past year or so—that Ministers in various departments are singularly uninformed about the procedure. Scrutiny of the subject in the context of this Bill, as I think my noble friend Lord Skelmersdale might agree, has had about it the quality of wading through treacle. In current circumstances, I do wonder whether the noble Lord, Lord Filkin, will be prepared to exhibit the same degree of conviction as he displayed on Report in his insistence that,
"Because we are not in doubt on this matter there have not been discussions with the European Commission".[Official Report, 01/03/02; col. 1735.]
To echo the thrust of my noble friend Lord Geddes, do the Government, or even the noble Lord, Lord Clement-Jones, now believe that there might be some merit in seeking discussion with the Commission on this matter? I also wonder to what extent the Government believe that their management of this issue can be held up as a beacon of the delivery of their aim of,
"being at the heart of the EU influencing the direction".
There is of course some spurious pleasure in being proved correct, at least from the Commission's perspective, and I take some delight in that. I look forward to hearing from the Government how they now intend to resolve the matter.
I conclude with a thought that has been an abiding image in my mind in the past few days. Pace the late Spike Milligan, there may well have been a few sore heads shuffling round Whitehall and Westminster muttering, "What are we going to do now?"
My Lords, as one of the other seven signatories to the letter to the Commission, I need not re-emphasise the importance of the response. I merely ask the Bill's promoter—whose party is, I believe, and as has been said, pro-European—why he did not check on the notification procedures? That should be normal practice for anyone promoting a Bill with a European dimension. Is this once again evidence of the fact that he has not really put much effort into the Bill and has just accepted what the Government say on this issue? If he has done something separately, your Lordships will hear what he has done.
So far as concerns the Government, I too should like to know exactly what they will do now. The position is quite clear. The Commission states:
"The services of the Commission intend to inform the United Kingdom authorities that the draft bill should in its view be notified under that Directive".
I hope that the Minister will have a specific and clear answer to that which has been fully cleared by his officials before he issues it.
My Lords, I shall speak briefly as there is little of substance to add to the forceful points made by my noble friends. I have learnt much about European legislation from the careful expositions given by my noble friends Lord Campbell of Alloway and Lord Skelmersdale. That point was first raised by my noble friend Lord Northesk.
What puzzles me is that normally when an issue of compliance with European rules is raised, it is my experience—not just from working in the Department of Health but over a long period in Whitehall—that there is considerable risk aversion in Whitehall. The natural reaction is to check with Brussels what is required because the consequences of not checking are difficult to live with, as my noble friends pointed out. Non-compliance—if, indeed, compliance is required—would make the Bill unworkable.
I do not think that anyone in this Chamber wishes to pass a Bill that is unworkable. I find it puzzling that the normal caution that is used in relation to European matters in terms of what requires clearance, permission and so on, has not been followed. I shall be interested to hear why the Government have taken what appears to be a consistently dogmatic line; namely, that it is none of Brussels' business, until a recent softening at the margins in relation to the regulations which will be made under one of the clauses of the Bill.
I believe that powerful points have been made. I do not believe that we need these amendments as it seems to me that if the Government had done the right thing and had notified Brussels, or at least had cleared the fact that no notification was required from Brussels, we would not need to consider them now. It is a shame that we are forced to do so at this stage in our proceedings.
My Lords, I thank all noble Lords who have contributed to the debate. This is an important issue, as the noble Lord, Lord Skelmersdale, indicated. I acknowledge the vigour of the challenge of the noble Lords, Lord Skelmersdale and Lord Campbell of Alloway. There is nothing wrong with that whatever. However, I am afraid that I shall not depart at all from the clarity and firmness of the Government on Report. It has been our view throughout, based on strong advice, that the Bill is not notifiable. That is still our view in the light of further consideration of the challenges posed by the noble Lords, Lord Skelmersdale and Lord Campbell of Alloway.
Directive 98/34/EC, as amended by 98/48/EC, to which I shall refer as the technical standards directive, requires a member state to communicate to the Commission the content of any draft technical regulation it intends to adopt. In that context "technical regulation" can cover both UK primary and secondary legislation. Broadly speaking, its purpose is to give the Commission and member states the opportunity to object where action in one country might impede the functioning of the internal market. A technical regulation includes specifications which lay down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards the name under which the product is sold, its terminology, symbols, testing and test methods, packaging, marketing, labelling and conformity assessment procedures.
The directive, as amended, also applies to general requirements specifically aimed at information society services defined as any service normally provided for remuneration at a distance by electronic means at the individual request of a recipient of services. A close examination of the provisions of the Bill relating to publishing, distributing or transmitting by electronic means has led us to the conclusion that the provisions of the Bill are not notifiable.
In general terms, the provisions amount to non-specific rules; that is, they are not specific to information society services or are merely enabling. In addition, a critical element of the definition of "information society services" in the directive is lacking in that none of the provisions regulates such services provided at the individual request of the recipient. The effect of Clause 4(1)(b) is that information provided at the individual request of the recipient is outwith the scope of the Bill.
As to notification more generally, the substantive provisions of the Bill concerning the advertising and promotion of tobacco products in our view are not notifiable primarily because they do not affect the characteristics of the products themselves—tobacco products. We have said throughout that regulations in relation to brand-shared goods to be made under Clause 11 may be notifiable and, if so, would be notified at the appropriate time. However, Clause 11 is itself enabling and does not of itself impose an obligation in respect of a product or service and is, therefore, not notifiable.
The noble Lord, Lord Skelmersdale, also raised the issue of newspapers. We have, of course, considered newspapers. We still maintain the view that the Bill is not notifiable. The amendment of the noble Lord, Lord Skelmersdale, on Report related to information society services. The reply addressed that; it did not say that the technical standards directive applied only to information society services.
As the noble Lord, Lord Geddes, inquired, we are also aware that the European Commission has indicated that in its opinion the Bill is notifiable and has so written to us. We are pursuing discussions with it. However, the Commission's view, while clearly to be respected, is not conclusive. It remains our view that the Bill is not notifiable.
It is not appropriate to have detailed debate on the legal arguments, partly because of their complexity and the time that would take. I hope I have made clear how the Government have arrived at their decision. As I have said, we shall discuss the Commission's view with it. If, contrary to our expectations, it persuades us that we have overlooked any aspect of the argument, we shall, of course, take that into account.
Reference was made to Denmark and the Netherlands. We are aware that they have notified their Bills. That in itself is not conclusive. Ireland has not notified its Bill. It is for each member state to make its own decisions on whether or not to draft legislation. One could easily envisage circumstances in which one member state's Bill was clearly notifiable but another's was not, depending on the content of that legislation.
For those reasons it is the Government's firm view that the Bill is not notifiable. Therefore, we oppose these two amendments.
My Lords, this has been an interesting and technical debate. I have rarely heard complexity of argument such as we have had outside a barrister's chambers. I recognise the importance that the proponents of the amendments attach to the need to notify under the technical standards directive.
I have little of substance to add to what the Minister said. The Government have received robust advice on the matter. Some of the regulations arising out of the directive will probably be notifiable under the directive in due time. However, that is difficult to say until we see the regulations. I agree with the Minister that the enabling powers contained in this legislation do not have to be notified at this stage. I am sure noble Lords will agree that it will make for a much more sensible decision-making process if what is notified to the Commission is the detail; that is, the regulations relating to what will actually happen in practice on the ground rather than simply the enabling powers in the primary legislation.
When, as part of the regulation-making process, the Commission is notified, it can then evaluate the proposals based on what they are rather than what they may or may not be. I can only echo what the Minister said regarding the information services aspect of the Bill. These restrictions on advertising are not specific to information services. The Bill treats all types of tobacco advertising the same regardless of the way in which it is distributed. Alternatively, they may simply be enabling powers to which the same argument applies as for the enabling powers in Clauses 9 and 10.
The Commission gave its view that the Bill is notifiable but the fact remains that even if the Commission has examined the whole Bill, that clashes with the advice that the Government have had—that the Bill does not need to be notified. The Commission is not the final arbiter in this case—the matter may well be challenged on other grounds. It will be for the courts to decide who is right.
In addition, as we all know, the Commission has previously been wrong in this area. Noble Lords will remember that one reason why it has taken the UK so long to legislate in this area is that the Government were waiting for the Commission to legislate on a Europe-wide level. In the end, however, the courts found that the EU did not have the competence to legislate on tobacco advertising, other than in relation to that which crosses national borders. The original directive was annulled by the European Court of Justice. The Commission is entitled to its view but it is not infallible and it may well have got it wrong in this case.
Even if the Government's current advice is wrong and the Bill is notifiable, it is perfectly possible to notify beyond the Bill's passage through this House in any event. I urge the noble Lord to withdraw the amendment.
My Lords, the noble Lord said that the Government have had robust advice. He will appreciate that we on these Benches have had no sight of that advice. He is the promoter of the Bill and his role is to safeguard its purity, if I may use that word. Has he seen that robust advice and, having considered it, concluded that it is robust?
My Lords, that is all very well but it does not conclude anything. The noble Lord said that he was satisfied that the Government's advice was correct. Heavens. The Government have been wrong time and again on matters of compliance and conformity with EC law, and so has the Commission.
I do not pretend that there is not an argument. I have laid the relevant Bills in the Library—they are of exactly the same mould as this Bill. The opinion is that the Danish, Dutch and Scottish Bills are notifiable, and they have been notified. Nobody has yet sought to explain exactly why, if those Bills, which are from a similar mould and have an identical purpose, were notifiable, this Bill—which is of a similar mould but has far more complex drafting—is not. We just have to accept that the Government will not move. It is like driving a donkey over a bridge.
What are we to do? Where are we going to go from here? This is not a personal complaint. I can see various outcomes. One is that the Government will do nothing and nobody will do anything. Someone will land up in the Basingstoke magistrates' court and all of this will have to be argued as a question of jurisdiction.
The noble Lord, Lord Clement-Jones, said that he has heard nothing like our arguments other than in barristers' chambers. In my chambers, we certainly do not talk all that much law; we do that in court. If this speech is any use to some young advocate in the Basingstoke magistrates' court, good luck to him. The mind boggles at being sent as a young man—one is a young man when one is sent to a magistrates court; I have done that in the past—to have to argue a case such as this. The Government have had a sort of decent approach in this regard—I use the word "decent" in a broad sense. Would they seek the opinion of the European Court? Would they mount a proceeding to determine a declaration in the Chancery Division? Will the Government take an initiative in this regard rather than leave it to Bloggins in three years' time in the Uxbridge magistrates' court?
The matter has to be taken. The argument that I have deployed is not patently false. It is arguable at all events—I do not say that I am right; that would be hubris in the extreme, and I seldom am. It is arguable. Are not the Government going to take the point, treat it seriously and do something about it?
If the noble Lord, Lord Filkin, could give me—totally without commitment—some comfort that the Government would do something about the matter, I should be grateful and I should certainly not divide the House. But if I am left with nothing, I shall divide the House and lose as a matter of principle.
My Lords, I believe that we are out of order. We are at Third Reading.
My Lords, I should emphasise what I said previously. The Government's firm view is that the opinion and advice that we currently have are that the Bill is not notifiable. I have also signalled—the noble Lord, Lord Campbell of Alloway, heard me signal it—the fact that we are in continuing discussions with the European Commission. I also said—this is on the record—that if anything brought us to change our mind, we should act. But if we are not so persuaded, we shall not change our position. I hope that that is helpful—it is as helpful as I can be.
My Lords, I am grateful to the noble Lord. That is certainly helpful, and it is the most that he can do—or give—in the position in which he finds himself. I accept his offer without commitment, although it is an offer that has an element of commitment. In those circumstances I prefer to withdraw the amendment.
moved Amendment No. 10:
Page 11, line 25, at end insert—
"( ) The provisions of this Act which apply to publishing, distributing or transmitting by electronic means shall not come into force until—
(a) such time as they have been notified to the European Commission under the terms of Directive 98/34/EC (as amended by Directive 98/48/EC), and
(b) such standstill obligations as the Directive requires have expired.".
My Lords, although my amendment is grouped with that of my noble friend, I must make a protest. I want the Bill to succeed; we all want it to succeed. I want to see in my lifetime the reduction of 3,000 deaths a year from smoking, as mentioned by the noble Lord, Lord Clement-Jones, at Second Reading at col. 1706 of the Official Report of 2nd November 2001. My noble friend on the Front Bench said it all: the Government are gambling with people's lives. I cannot let that go without a protest. I beg to move.
My Lords, this amendment is necessitated, I submit, by a major development which has taken place since we completed the Report stage. This Bill emanates from the Liberal Democrat Benches—that is obvious to everyone—even though paradoxically, as I pointed out previously, the Liberal Democrats were the only party to vote unanimously 16 months ago, with no dissent permitted, against a Conservative amendment to the Sexual Offences (Amendment) Bill which would have protected 16 and 17 year-old boys and girls from a particular sexual practice which is twice as dangerous as smoking 20 cigarettes a day. The noble Lord, Lord McColl, pointed that out at the time—I am sorry that the noble Lord has just left the Chamber.
Even though that happened, nevertheless, I was prepared to believe that the Liberal Democrats were, in other respects, genuinely concerned with the welfare of young people. It was, above all, that concern that motivated them to press so strongly for this Bill in the belief—whether justified or mistaken, only time will tell—that banning advertising would reduce tobacco consumption among young people. However, only six days ago the Liberal Democrat spring conference voted in favour of legalising cannabis. Once cannabis is legalised it can be freely advertised. The most charitable explanation for that is that the Liberal Democrats sincerely believe that cannabis is less dangerous to the user than tobacco, despite the well known carcinogenic consequences of cannabis and despite Dr Stuttaford pointing out yesterday in The Times that it often leads to schizophrenia.
Of course, I do not believe that the Liberal Democrats would seriously maintain that it is less dangerous to third parties. In that respect cannabis is akin to alcohol. Whatever one thinks about tobacco, however much one dislikes it, one has to admit that it is not responsible for death or injury on our roads in the way that, increasingly, cannabis is. Nor does tobacco provoke violence, as cannabis sometimes can. Your Lordships will be aware that the word "assassin" derives from the word "hashish".
The Liberal Democrats can argue that the respect in which cannabis resembles alcohol is not their immediate concern. The respects in which it parallels tobacco is what matters for the purposes of this Bill. To a user, as distinct from a third party, cannabis is less harmful than tobacco. Therefore, the latter deserves to be discouraged more rigorously.
If that analysis is scientifically proved to be correct, the amendment will have no effect in the short, medium or long term. It can be accepted without any further discussion in the knowledge that it is most unlikely ever to be used. On the other hand, if it is scientifically established that tobacco is significantly less harmful than cannabis to the user, surely it is patently unfair to impose restrictions on tobacco that will not be imposed upon cannabis. That will be the case especially if the Liberal Democrats have their way in regard to decriminalisation, as they may do after the next election if the result is a tight one and a 1974-style Lib-Lab pact comes into being. I beg to move.
My Lords, I thank the noble Lord, Lord Monson, for a splendidly hypothetical coda to this Bill. It was very opportunistic, especially in the light of my party's conference last weekend and the report on cannabis and health this week. I am determined not to be provoked by anything that he says and to remain relentlessly good humoured right to the end of this Bill. However, the amendment is a complete red herring. We are none the worse for that. It has put us all in better humour.
Throughout this Bill we have talked in terms of absolute risk and not relative risk. We believe that the banning of cigarette advertising will have a significant effect on tobacco consumption. If any legislation is needed to legalise or to prevent cannabis advertising, I am sure that we shall all leap up and down at a future date.
My Lords, I am grateful to the Minister for highlighting what appears to be a split in the de facto Lib-Lab pact and to the noble Lord, Lord Clement-Jones, for his resolute good humour, which I appreciate. I have made my point. It may be interesting for people at large to study what I have said. I beg leave to withdraw the amendment.
My Lords, although it is not usually permitted to speak on the Motion that the Bill do now pass, perhaps I may trespass on the patience of the House to reflect that a great debt of gratitude is owed to the noble Lord, Lord Clement-Jones, for the humorous and effective way in which he has conducted the proceedings on the Bill. I also pay tribute to all noble Lords who have taken part. This is the fifth Friday when we have had highly enjoyable debates on the Tobacco Advertising and Promotion Bill and many other issues, pace the noble Lord, Lord Monson. At times the proceedings have been tense, but never wholly disagreeable. We owe a debt of gratitude to all noble Lords who have taken part in the debates.
My Lords, I thank the Minister for those words. I want to thank all the supporters of the Bill who have so patiently sat through all the stages of the Bill and today voted so magnificently. A select few have actively spoken in the debates, some to great effect. I particularly thank ASH and John Connolly for their great assistance during the passage of the Bill.
I thank those who have helped to improve the Bill, such as the noble Lords, Lord Lucas and Lord Faulkner, and, dare I say, those who have tested the language and propositions contained in the Bill. Our debates have been conducted with great courtesy. I also thank the noble Lord, Lord Faulkner, and my noble friend Lady Northover for their considerable assistance in gathering support.
Finally, I thank the Minister and the noble Lord, Lord Filkin, for their encouragement and help as the Bill has proceeded through the House. I recognise that in principle the Department of Health supports the Bill. It is regrettable that it was not introduced straight after the last election.
However, it is not so clear at this time whether the Bill will have a smooth passage through the House of Commons. Ministers will have had the admonitions from Sir Richard Doll and others last week, and I do not need to elaborate on those. But it is worth reading a short piece from the Health Service Journal of yesterday, which put the situation very fairly. It states:
"The 'big test' is this month, with Liberal Democrat peer Lord Clement-Jones' private member's bill expected to clear the House of Lords tomorrow. The bill needs a swift move to the Commons if it is to make progress in this parliamentary session, Mr Bates [the chief executive of ASH] believes. If not, it will indicate 'something quite terrible about the government'. While there is no evidence of sinister forces at work, HSJ has established that the bill may fail to get a prompt Commons reading. The official line is that the government supports its aims, 'but it is too early to say if it will have time to be debated'. The government is 'waiting to see what amendments it has when it comes out of the Lords and what pressures of other business are in the Commons'".
That is a very fair statement and I hope that now that the Bill is about to proceed through the House of Commons, that the Government will take a favourable view and adopt it.
On Question, Bill passed, and sent to the Commons.