Clause 7 - Developments in technology

Tobacco Advertising and Promotion Bill – in a Public Bill Committee at 11:45 am on 6 February 2001.

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

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

We are making swifter progress. I am anxious that we should have the chance to debate the latter clauses of the Bill, and, indeed, the new clauses, properly. We have only three sittings left and Labour Back Benchers have tabled a new clause, which we obviously want to have time to debate. Nevertheless, it is important to ensure that we do not let a clause slip through on the nod, which is why it is important to debate clause 7 stand part.

The clause typifies the catch-all attitude of the Bill and I question its legislative relevance. As I said, we have not even succeeded in legislating adequately for existing new technology, such as internet provision—disquiet among internet service providers is evidence that we have not got that part of the Bill right. It is ambitious to have a catch-all phrase designed to deal with any subsequent developments in technology relating to publishing and distribution by electronic means that we have not even thought of. It is so futuristic as to make it almost irrelevant. It is more of a statement of intent than a real piece of legislation; it is so generally worded—

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

I hear the hon. Lady saying that that is stupid. Perhaps she would like to tell me what she would regard as ``any developments in technology''. Does she have a better idea than I as to what is in the pipeline? Of course we do not know. That is a catch-all phrase that makes it singularly meaningless to debate it now, and it will never be debated again when it is brought into effect.

If technology moved on sufficiently to create the circumstances envisaged in the clause, there would undoubtedly have to be new general legislation to apply existing laws to the new methods of commerce, just as in the case of recent electronic commerce legislation. The provision would be far better placed in such legislation, where the focus of those making the legislative decisions would be on what capacity the new technology had to make an impact.

I argued strongly at the beginning of our debates that the section on internet service providers and their role in advertising ought to be part of a Bill that dealt properly with their role in advertising a range of products, outside of a health Bill and in a Bill under the Department of Trade and Industry—a Bill that dealt with new forms of competition by electronic means.

It is ambitious to have this catch-all phrase in a Bill to ban tobacco advertising. It is unnecessary to put a single provision into a specific Bill, since any change in technology would require general legislative change. Just as there may be developments in technology relating to transmission by electronic means, with regard to which the Secretary of State may consider it appropriate to amend provisions of the enacted Bill, there might also be developments with regard to tobacco products, which would similarly call for amendment. Tobacco producers may find a hitherto unthought-of form of tobacco that can be absorbed by osmosis or some other means. Who knows? We cannot legislate now for unknown technological change.

There may be some justification for including in the Bill tobacco products that may be developed at some time in the future and to which the health risks that result from smoking tobacco products do not apply. A new tobacco product may have an important public health dimension, which would correctly be dealt with under this Bill. If it is not possible to promote a new tobacco product to existing smokers, as would be the case under the Bill, manufacturers cannot be expected to invest in the funds necessary to diversify into products that might pose a lower health risk. The fact that such products have not been developed and have not appeared on the market to date does not mean that such developments are not possible. We all accept that scientific knowledge and capabilities advance rapidly. None of us can accurately predict in which direction it may flow. The legislative relevance of the clause is therefore difficulty to justify. I question its place in the Bill.

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

I have warned the Government about the way in which the Bill would allow the internet to be used to get round the ban on advertising. The clause gives the Government additional powers, through the affirmative procedure, to make amendments in future. Such powers may break the European convention on human rights.

The Secretary of State says that he does not believe that the Bill is incompatible with the provisions of the Human Rights Act 1998. For the sake of clarity, I have a copy of that Act in front of me. Schedule 1 contains the convention and paragraph 1 of article 10 on freedom of expression suggests that anyone can say anything that they like. However, paragraph 2 enables the Government to restrict people's freedom of expression on the grounds of protection of health. I am sure that that is what gives the Government confidence that they can legislate in this sphere.

Under section 12 of the Human Rights Act, however, someone may claim that they can still advertise tobacco in the United Kingdom on the grounds that the material has or is about to become available to the public. One of the defences is that, if the information will be available anyway, it should be possible to give it out within the United Kingdom. Otherwise, the individual's human rights are being superseded by the Act. That defence was used in the case of the former MI6 officer who published information that, under statute, it was illegal to publish in this country. Nobody disputed that it was illegal. He also had a contractual duty not to publish that information. He had it published, perfectly legally, on the internet. So he can go to the courts in the United Kingdom and say, ``Look, my rights under the Human Rights Act 1998 are being violated''. The clause would give the Government the power continually to change the rules to prevent use of the human rights defences in the Human Rights Act 1998.

I believe that the Minister—although she referred specifically to her officials—will meet people from the Internet Services Providers Association when the Bill has already gone through Third Reading. The clause would give the Government the power to alter the way in which they operate without our knowing the position beforehand; there may be Ministers who would be much more draconian and ban every type of promotional activity. If we allow the clause through, we may discover that the Government have got around Parliament.

Photo of Kevin Barron Kevin Barron Labour, Rother Valley 12:00, 6 February 2001

I find it difficult to understand the Opposition's logic. Clearly, the clause is not operable now because we do not know of any potential changes in technology. One or two members of the Committee have suggested that we should include such catch-all provisions, not because of new technology but because some of us—including me—find the technology of the present difficult to grasp.

The hon. Member for South Dorset mentioned human rights, which operate in respect of any legislation and have no specific relevance to the clause. We will have to consider whether someone could breach the Official Secrets Act 1989 by using the internet and using that as a defence in a court of law. However, that does not mean that we should not introduce a clause such as this one, in an attempt to second-guess new developments in technology that could be used to promote tobacco, which damages the health of the public. It is logical to introduce such a clause; the Government are not attempting to get round Parliament. Perhaps my hon. Friend the Minister could address the matter, but as I understand it, any regulation would have to be debated in Parliament. The clause means that we will not block up parliamentary time bringing statute in on the Floor of the House, and will allow us to deal with the matter through simple regulations.

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

The hon. Gentleman is passionate about the subject, so I am sure that he understands the difference between primary legislation and statutory instruments, which are unamendable and present a yes/no situation. We should deal with such issues on the Floor of the House—especially given that the Government are already discussing with the ISPA about how they may modify the Act even before it has become one.

Photo of Kevin Barron Kevin Barron Labour, Rother Valley

I understand the difference between statute and legislation through statutory instrument. I entered the House in 1983, and saw the use of the statutory instrument grow under the previous Conservative Government. It is a sensible way of creating legislation; debating a clause such as this, which can be operative only when it contains detail, would take time on the Floor of the House. We have many better things to do. Most legislation that is debated in the House contains similar clauses, because the Government want not to get round Parliament but to make government work more sensibly.

The hon. Member for South Dorset talked about meeting the ISPA. The Government have ongoing meetings with all lobbies and organisations. The ISPA may be able to help to frame regulations within clause 7.

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

The purpose of the clause is to set a power to amend any provision of the Bill

``in consequence of any developments in technology relating to publishing or distributing by electronic means.''

The power has to be set in consequence of developments in technology, not because the Government feel like changing the Bill. It must to be done in response to those developments in technology. The reason why we specify developments in technology around electronic means rather than around tobacco products is that tobacco products are covered by the Bill. If new tobacco products are developed, they will be covered by it. It is true that new products, which are not tobacco products, but cause us concern, are not covered. If they are not tobacco products, they will raise different issues and it would be right to have a separate discussion about them in Parliament; they should not be automatically covered by the clause.

It is also right to provide for rapid developments in technology. We all know how fast it is moving and how difficult it is for most of us to keep up with the speed of progress. The clause may allow us to provide new defences, where appropriate, if there are changes in the way in which electronic distribution takes place. It also allows for amendments to ensure that loopholes are not created with new technology around publishing or distributing by electronic means.

My hon. Friend the Member for Rother Valley (Mr. Barron) is right: the proposals would have to come before Parliament. They would go through the affirmative procedure and there would be scope for discussion. We should need—and it would be right—to have detailed consultation on the proposals.

I am glad that officials are meeting with the ISPA. There has been a great deal of contact with ISPs and we have discussed some issues during the passage of the Bill, such as the enforcement mechanism. We have said that we are keen to talk to the ISPA about how to work together in order to make the mechanism most effective without imposing additional burdens on ISPs. That is sensible. It is good that they are meeting, but we are not aware of any concerns that they have raised that would change the course of the Bill or cause us to amend it further. It is right for the Government to have that power if they are to keep up with the pace of technology.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.