Clause 5 - Advertising: defences

Tobacco Advertising and Promotion Bill – in a Public Bill Committee at 10:30 am on 6th February 2001.

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Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health) 10:30 am, 6th February 2001

I beg to move amendment No. 26, in page 2, line 36, leave out

`had no reason to suspect'

and insert

`could not reasonably have been expected to know'.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

With this it will be convenient to take the following amendments: No. 7, in page 2, line 41, leave out

`he could not reasonably have'

and insert

`it could not reasonably have been'.

No. 27, in page 2, line 44, leave out

`had no reason to suspect' and insert

`could not reasonably have been expected to know'.

No. 28, in page 3, line 3, leave out

`had no reason to suspect' and insert

`could not reasonably have been expected to know'.

No. 29, in page 3, line 3, leave out

`had no reason to suspect' and insert

`could not reasonably have been expected to know'.

No. 30, in page 3, line 11, leave out

had no reason to suspect' and insert

`could not reasonably have been expected to know'.

No. 35, in clause 8, page 4, line 9, leave out

`had no reason to suspect' and insert

`could not reasonably have been expected to know'.

No. 36, in clause 9, page 4, line 34, leave out

`had no reason to suspect' and insert

`could not reasonably have been expected to know'.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

This series of amendments would alter the phrase ``had no reason to suspect'' to ``could not reasonably have been expected to know'', which is a more practical and objective formulation of the same idea. When we debated clause 2 and touched on the defences that might be used, I was pleased that the Minister used exactly the same phrase at column 36 of the Hansard report of our proceedings. My ears pricked up at that reference because such wording is much easier for people to understand and to judge objectively. A third party could take the view that someone could reasonably have been expected to know something, whereas it would be more difficult to prove that someone had reason to suspect something.

It is difficult to prove the absence of possible suspicion. I am not a lawyer, but those who are will understand that it is important to have a defence that is workable in practice, if the Bill outlines certain offences. Under the law, it should be enough of a defence to prove that one did not know something, and that would be conveyed by the amendment. Suspecting something is more difficult to prove. One might suspect that various offences had been committed, but the test should be whether one would reasonably have been expected to know that they had been committed. That is a better way in which to phrase the provision, and I hope that the Government will accept our constructive suggestion.

The amendment would give the courts a wide power to examine all the surrounding circumstances if an offence had been committed and they could decide whether the individual ought reasonably to have known the consequences of that. We have considered several practical examples of people who may unwittingly display tobacco advertisements and have therefore thought of a form of words that would provide an adequate defence. The phrase would create a proper test and it is one that we commend to the Government. The group of amendments would all apply the same wording to the Bill. Such defences would be important if it were alleged that an offence had been committed and someone was taken to court.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

Given that the amendments are slightly different from each other, I shall refer to them in turn. Amendments Nos. 26, 27 and 28 would replace ``had no reason to suspect'' with ``could not reasonably have been expected to know''. They reflect the key argument made by the hon. Member for Meriden (Mrs. Spelman). It is not at all clear that there is any material difference between the two forms of wording, and it is hard to think of an example that might fail one test but pass another. If a vendor was given good reason to suspect, or was told that there might be a tobacco advertisement in a particular product and did not check, clearly, he had reason to suspect. He could also have been reasonably expected to know. He had the power to check, but did not do so. That case would fail both tests. I cannot think of an example of a case that would fail one test and not the other. The material difference is unclear.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

Perhaps I can help. In many such situations, the problem is that no one is told anything. Even under the Minister's own formulation, the onus is on individuals to have their wits about them, and actively to search through magazines to find advertisements. It is quite possible that those going to court to defend themselves will not have been told anything. The accent is on what one should know without being told about it.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

In that situation, there is no difference between ``had no reason to suspect'' and ``could not reasonably have been expected to know''. Clearly, in a case in which tobacco advertising was banned and there was no reason to suspect that a particular magazine or product was breaking the advertising ban, the vendor would have a clear defence in law. It is not clear what difference there would be between defences under the two forms of wording involved. The Government do not intend any such distinction. Both phrases are used in legislation, although ``reason to suspect'' is far more commonly used.

The hon. Member for Meriden also made a point about courts having to take account of the particular circumstances involved, but that would be the case with either wording. With ``have no reason to suspect'', courts would need to consider the individual circumstances involved and whether people had reason to suspect, given their particular circumstances. The Government do not, therefore, accept amendments Nos. 26, 27 and 28.

Amendment No. 7 is different. It replaces ``he could not reasonably have'' with ``it could not reasonably have been''. I assume that the intention behind the change of wording is to make the clause more objective by reference to a reasonable person rather than a particular individual. However, the wording does not achieve that. With either wording, the courts will still examine the individual circumstances involved to discover whether a case could reasonably have been foreseen by that person. A change of wording would make no massive material difference. We should not create a test about a reasonable person, but we should take account of individual circumstances. A person in an advertising business might be in a far stronger position to foresee the effect of an advertisement or visual image than someone with no experience of advertising who is simply distributing the product to shops in a white van. The test should be about individual circumstances rather than an objective single reasonable person.

Amendment No. 29 would provide a specific defence for someone involved in ``publishing and distributing'' an insert that contains a tobacco advertisement. That person does not require a specific defence for clause 2(3), as that provision does not create a new offence but merely explains the extent of the offence under clauses 2(1) and 2(2). Clauses 2(1) and 2(2) are already subject to the sort of defence that amendment No. 29 would create—in clause 5(4) for distribution, and in clauses 5(1) and 5(2) for publishing. A specific defence for people involved in publishing and distributing products that involve a specific and separate entity is already in place in the Bill. However, the amendment raises an anxiety, although the amendment itself does not specifically deal with it, which relates to whether the publications referred to in clause 3—which deals with the proprietor and editor of the publication and everyone involved in the chain—include publications with an insert. If they do not, a seller covered by clause 3(c) commits no offence in selling a publication with an offending insert. If they do, the seller has a defence under clause 5(6). We shall consider that matter further and establish whether we need to clarify it. Amendment No. 29 raises a helpful issue, although the specific point with which it deals is unnecessary, because a defence has already been provided in the Bill under clauses 5(4), 5(1) and 5(2).

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

That is helpful. Perhaps, as I do not have a legal background, I am simply not familiar with enough different measures, but I was rather struck by the idea that people would have to prove that they did not suspect. Perhaps I do not have a suspicious mind, and perhaps we shall create lots of suspicious minds as a result of the Bill, but if that is the received legal perspective, I shall have to accept that it is widely used and that the courts are comfortable using it. I had hoped to achieve what seemed to me to be more objectivity, but according to the Minister's explanation the courts are used to trying to establish objectively whether a person should suspect something or not. No doubt they must do that a lot of the time in relation to other offences.

I was pleased to hear the Minister say that she would reconsider amendment No. 29. I may not have drafted it as well as I might, but she has understood our anxiety. The amendments relate to the Bill's workability. It is important to get the Bill right and as far as possible to anticipate the pitfalls that may arise with the wording if it is left unamended. On the basis that the legal system is comfortable with people having to prove that they did not suspect something, although I imagine that that is not always easy to prove, I accept that the clause has more objectivity than meets the layman's eye with its present wording. On the understanding that the Minister will reconsider amendment No. 29, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 18, in page 3, line 2, after `advertisement' insert

`, otherwise than as mentioned in section 2(4),'.

No. 19, in page 3, line 5, leave out subsection (5) and insert—

`(5) In relation to a tobacco advertisement which is published or caused to be published by electronic means by an internet service provider, it is a defence for him, if charged with an offence under section 2(1), to prove that he was unaware that what he published or caused to be published was, or contained, a tobacco advertisement.

(5A) In relation to a tobacco advertisement which is distributed as mentioned in section 2(4), it is a defence for a person charged with an offence under section 2(2) of distributing it or causing its distribution to prove—

(a) that he was unaware that what he distributed or caused to be distributed was, or contained, a tobacco advertisement,

(b) that, having become aware of it, he was not able to prevent its further distribution, or

(c) that he did not carry on business in the United Kingdom at the relevant time.'.—[Yvette Cooper.]

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

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health) 10:45 am, 6th February 2001

I wanted briefly to have a stand part debate, as we are trying to make some progress. I should like to discuss a general issue that relates to clause 5 and to ask the Government about the style in which the Bill has been drafted. As an Opposition Front-Bench spokesperson, one scrutinises only a certain number of Bills during a Session. I have never come across this style of Bill—on the one hand, the Government set out offences of which people can be guilty, while on the other they set out a series of defences that can be used by people accused of those offences. The Minister might tell me that that is common, but it seems a strange way to proceed. I have considered several other Bills during my short parliamentary career that were not formulated in that way.

The Food Standards Bill, for instance, described serious offences of which people might be guilty, which might lead to lapses, food poisoning, and, ultimately, fatalities. However, that Bill was not formulated with offences on the one hand and defences on the other. This style makes it difficult, in some ways, to scrutinise the Bill clause by clause. It is difficult to debate properly the offences described without taking into account the defences that might be used. Perhaps that is a received part of the culture.

If I were a tobacconist or tobacco manufacturer reading the Bill, however, I would probably devote a great deal of time to looking at the defences that I might use, because I would realise that the stakes were quite high and that I had previously, as part of my normal custom and practice, put up tobacco advertisements or distributed literature that advertised tobacco. If I had been used to doing that for many years— even decades if it had been my job for most of my life—that would be a major change of culture. Clearly, the Government will be sending out a big signal in legislating to ban tobacco advertising. However, they are asking people who run such commercial premises to change the habits of a lifetime.

The clause should be read very carefully, as it outlines an important set of defences. The lay person must be aware of the defences that he can produce, the most important of which is being able to prove—I still prefer my formulation—that one could not reasonably have known that something was a tobacco advertisement, or, in the Government's formulation, that one had no reason to suspect that it was a tobacco advertisement. We therefore must return to the argument that, without certain definitions, it will be difficult to define a tobacco advertisement. In the past, a pile of cigarette packets would not have constituted a tobacco advertisement in the eyes of most people vending such products. Under the Bill, it will be necessary to know whether cigarette packets constitute a display, and, if so, how many. Unless that is clearly spelled out, people who have previously, legitimately and in a law-abiding manner carried out their trade will have to go to court to establish what is and is not an advertisement. Although the defences give scope to a person who has unwittingly committed an offence to defend himself, they are not completely watertight without a clear definition of an advertisement.

I am making a general observation about the style in which the Bill has been constructed. In relation to the swings and balances of offences and defences, it will be interesting to hear from the Minister why the Bill has been so constructed.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

I certainly do not want to delay the Committee when we have insufficient time to discuss the Bill fully; nor do I want to adopt Government Members' Trappist tendency and allow the clause to be added to the Bill without pointing out how inadequately it covers the issue. The Government have published a Bill with a pile of loopholes that create a lawyers' charter. Conservative Members do not look forward to that bonanza, because unfortunately none of us is a qualified lawyer. Tobacco manufacturers spend £100 million a year on advertising and promotion and one can imagine the lawyers salivating as they look at clause 5 and saying, ``Look at all the wonderful sets of defences. We can get into court. We know that the tobacco industry successfully challenged the European Commission in the courts and won.''

I was contacted last evening by the Internet Service Providers Association, which is unhappy about the way in which the Government are dealing with issues relating to the internet. They told me that they had a meeting scheduled with the Minister a week on Wednesday, after the House has finished considering the Bill, to discuss how the Bill can be changed around. It is an inadequate Bill that will not do what is intended to do, and I am surprised that Labour Members have not leapt in and said to the Minister, ``Well, Minister, you ought to create a watertight Bill, not the dog's dinner that we have at the moment.''

We have already pointed out that Government Departments work in silos. When the Department of Trade and Industry found the regulation of investigatory powers legislation too complex, it passed it to the Home Office. The hon. Member for Pontefract and Castleford (Yvette Cooper) clearly, because of the dearth of talent on the Labour Benches, has a good career, but she has been given a dog's breakfast, and, unless she gets a grip on the Bill and provides something that will not go straight into the courts and involve us all in great expense—and not reduce tobacco consumption by a single cigarette—it will be one of the nails in the coffin of her political career.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

The clause sets out the defences for people who are involved in various aspects of tobacco advertising, promotion and distribution. Our approach is to set out a comprehensive ban on tobacco advertising and to provide for specific defences. I have made it clear from the beginning of our discussions in the Committee that that is our approach.

There is a reason behind that approach. Advertising is a fluid process, as is marketing. Companies continually change the way they appeal to us; they try to grab our attention by finding new ways to promote their products and new forms of advertising through sponsorship, coupons and so on—different ways of appealing to us in order to sell their products. That is what advertising and marketing are about.

How much more fluid is the process when one form of advertising is banned. International experience has shown that if one form of advertising is banned, money will flow into another form. That is certainly what has happened with tobacco advertising. We are well aware—even the hon. Member for South Dorset (Mr. Bruce) made the point in a previous sitting—that tobacco companies will look for loopholes and ways to get round the tobacco advertising ban. We do not doubt that various tobacco companies will attempt and, because of international constraints and so on, there will be a limit to how much we can do.

For those reasons, it is right to begin with a comprehensive ban and then to create specific, targeted defences. That will maximise our chances to have the flexibility to cope with new forms of advertising and new approaches. We shall then have targeted defences specific to the circumstances of individuals and companies at different stages along the chain of tobacco advertising and tobacco product promotion.

It is right that we provide some defences. I was not quite clear whether the Opposition were arguing that we should not provide particular defences for certain individuals. It is absolutely right that we should, whether it be for things that they could not foresee or could not suspect. It is also right that we should provide particular defences for those involved with the internet, because we note that there are particular circumstances there.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

I think that my hon. Friend the Member for Meriden would agree that we do not have in the Bill a proper definition of what an advertisement is and what is banned. So we start off with an ill-defined offence and then we have a set of ill-defined defences against it. That is the basis of our objection to clause 5.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

We have had this discussion already. The word ``advertisement'' is used in legislation; it is common for words in legislation to have their natural meaning. We have had a detailed debate about advertisements, and it is perfectly acceptable and sensible that the Bill takes the approach of a comprehensive ban on advertising, with specific defences.

We have addressed in the Government amendments the points raised about internet service providers because we recognise the position of those involved in electronic distribution. Officials have had all kinds of discussions with ISPs and the Department of Trade and Industry on the issues around e-commerce. I recognise that ISPs have concerns, and we have given them reassurance both in the Government amdts and by making our intentions clear in an earlier debate.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset

Will the Minister be having a meeting with the ISPA immediately after the Bill finishes its passage through the House of Commons?

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health

I understand that a meeting is scheduled between officials and the internet service providers, and I can also tell the hon. Gentleman that officials have had other conversations and contacts with ISPs and continuing discussions with the DTI to ensure that the Bill is fully compatible with the e-commerce directive and that we are fully up to date. We recognise that this is a complicated area, especially given the international issues involved, but it is a sensible approach to set out a comprehensive ban on tobacco advertising and then to set out specific, legitimate defences for individual circumstances, because in that way we will maximise our chances of reducing the kind of tobacco advertising that is so damaging to public health and especially to the health of children.

Question put and agreed to.

Clause 5, as amended, ordered to stand part of the Bill.