Clause 13 - Powers of entry, etc.

Tobacco Advertising and Promotion Bill – in a Public Bill Committee at 10:15 am on 8 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)

I hope that hon. Gentlemen will not become irritated and frustrated as we debate this clause. They must accept that the practical working of the powers of entry is an important aspect of the Bill that has not been debated before. We spent two full Committee sittings debating the powers of entry during proceedings on the Food Standards Bill in 1999, but now we are being asked to hurry up. It is important to devote the appropriate time to discussion of how the clause will work in practice. I warn Labour Members that I have several questions for the Minister.

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

Am I to believe, from the expressions of concern about the timetabling, that it was Conservative Members who decided to complete the Committee stage of the Bill in four days? Or was the timetable imposed on us by a motion tabled by the Government?

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

The first time that I saw the date of 8 February was on the printed programme motion. Other Bills came out of Committee on the same day, for some mysterious reason, which is probably not unconnected with the imminent general election. We are all trying to read the tea leaves on that.

Clause 13 deals with powers of entry. That important matter will affect people. The stakes are high when an enforcement officer is required to use powers of entry. It quite often becomes public knowledge that an investigation has taken place, and stigma attaches to the individual who has been investigated. We must help the Government to find the right balance for powers of entry. We accept that enforcement has to be effective.

My first question to the Minister relates to clause 13(1)(a), which states that an exception is made for a private dwelling house. I wish to place it on record that I desire legitimately to protect people's domestic property when it is used only for its proper purpose. I have, however, a major concern about enforcement of the ban on tobacco advertising, which is linked to our fundamental concern about the effect of the Bill on illegally smuggled tobacco. At present, there is good reason to suspect that there are non-commercial premises where contraband is stored prior to sale. Although this is anecdotal—I have not physically witnessed it—I fear that more often than not the contraband is stored in a garage attached to the home of someone who has access to one of the famous white vans that are responsible for distributing up to 48 per cent. of the contraband cigarettes that are smoked in the north-east.

I am keen to close the floodgates on illegally imported tobacco. That was the key point of our amendment on Second Reading. Every time that the hon. Member for Rother Valley refers to the strategy of Conservative Members on Second Reading, he studiously omits to point out that we moved a reasoned amendment to the Bill. I am keen to impress on the Committee that the amendment was not a flat rejection of the ban on tobacco advertising; the rationale behind it was to deal with the volume of illegally imported tobacco.

Will the exemption for a private dwelling house include the garage? I want to see an innocent person's home protected, but can the Minister assure me that, in granting this legitimate exemption, she is satisfied that it will not prevent enforcement officers from examining whether tobacco advertising, especially of illegally imported products, is taking place if they are not able to gain entry to garages?

Photo of Nick Harvey Nick Harvey Shadow Spokesperson (Health)

I am mystified by what the hon. Lady's remarks have to do with advertising or promoting tobacco. What she says is logical if the objective of the Bill is to tackle the smuggling problem, but it seems highly unlikely that the premises where the smuggled goods are to be found will be advertised.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health) 10:30, 8 February 2001

I do not know whether I am grateful for the hon. Member's intervention. He clearly does not do his household shopping. Those of us who go regularly to the supermarket look from time to time at the ``For Sale'' board, where people can advertise kittens or their car without the hassle of advertising it in the newspaper. For the hon. Member's information, on those boards one sees cut-price cigarettes advertised with a domestic address and telephone number. The look of bewilderment on the face of the hon. Member indicates, and I have no reason to doubt, his complete innocence in all these matters—and mine, too, in terms of ever contemplating securing illegally imported tobacco. It would not even cross my mind to do that, but the fact is that, for quite a proportion of the population, it does. It is one of the main reasons for fuelling the prevalence of smoking.

We have not had ``advertisement'' tightly defined, and those notices appear in supermarkets all over the UK. Does the Minister think that they are advertising? An enforcement officer doing his or her weekly shopping in the supermarket might well see a little postcard on the notice board of a supermarket and think that it may open up an interesting line of inquiry because he thinks that it constitutes an advertisement. He may pursue it to the address and find that it is a private dwelling house. Under the Bill—[Interruption.] I am finding it quite hard to concentrate, Mrs. Adams. Under the Bill, he or she is currently prevented from access, and I should not wish us to tie the hands of the enforcement officers and prevent them from being able to shut something down. I think that that is a loophole.

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

My hon. Friend was a bit hard on the hon. Member for North Devon who clearly intervened only to demonstrate that he was actually in the Committee, which he was not on a previous occasion. Perhaps he meant to pretend that the hon. Member for Romsey (Sandra Gidley) was here, when she is not. That is the sort of attention to detail we are used to from the Liberal Democrats.

Photo of Mrs Irene Adams Mrs Irene Adams Labour, Paisley North

Order. Mr. Bruce, you are really trying my patience.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

Mrs. Adams, we have no wish to try your patience. We are trying to look carefully at the effectiveness of enforcement. The same matter arises in clause 13(4), under which a justice of the peace must assess the grounds given for reasonable entry, except in a private dwelling house. I have a similar concern that we may be closing down an effective method of constraining the ever-increasing flow of illegally imported tobacco products into the UK.

My second point was to raise, with the Minister, the wording and implication of clause 13(2). It states:

``A duly authorised officer of an enforcement authority may make such purchases and secure the provision of such services as he considers necessary for the purpose of the proper exercise of his functions.''

In my na—ve way, I was concerned to read that, given our responsibility to use taxpayers' money being wisely, effectively and efficiently. The provision sounds suspiciously like a blank cheque. No definition or constraint is being placed on the purchases—no restriction to reasonable purchases— that the enforcement authority could make. That is a little more sinister than it appears to be. We must be wise about the whole question of illegally imported products.

Let us suppose that an enforcement officer breaks into a garage at an address—the Minister is going to say that he can do so—that he saw on a postcard in a supermarket, which suggested that there might be illegally imported cigarettes there. The officer may have regarded the postcard as an advertisement of the cut-price cigarettes. We are talking about the underworld, and criminal activity. Let us suppose that the officer was then caught up in the purchase of some contraband. We know that that happens in relation to other illegal substances, and I should not like to create a loophole here. An enforcement officer should have to give a better account of why such expenditure would be necessary.

Photo of John Robertson John Robertson Labour, Glasgow Anniesland

If the hon. Lady and her party are so concerned about such matters why has she not tabled amendments on these clauses? Why are we having this discussion?

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

Because of the time constraints.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

I repeat the outcry on my side of the Committee. We have only two sittings left and points can be dealt with in the stand part debate without having separate debates on recent amendments. That will give the Government the opportunity to amend the Bill in the way that I have suggested, adding ``reasonable'' to the clause on Report. That is what I seek.

I am concerned about the inter-relationship between subsections (1)(d) and (3). In subsection (1)(d), the enforcement officer requires a

``person to give him such information, or afford him such facilities and assistance, as he considers necessary for the purpose for which he has entered the premises. Clause 13(3) makes it clear that a

``person is not answer any questions or produce any document''.

A police officer makes it clear to people who are apprehended on suspicion of a crime that any evidence that he or she gives may be—I think it goes like this—``taken down, and used in evidence against you''. I cannot remember the exact wording as no one has ever said those words to me, but we have seen enough television programmes on crime to know the phrase.

Will it be clear to the person initially required to give information in this case that he or she is not obliged to answer? It could be frightening when a person's premises are entered. In a state of fear, people may not be clear that they are not obliged to give information unless that fact is clearly stated to them. Will the Minister clarify whether it will be?

On clause 13(5), it is unfortunate that the hon. Member for Rother Valley has left the Committee, because he and I shared the experience of the proceedings on the Food Standards Bill, which contains clauses parallel to this one. We debated at length who might accompany an enforcement officer. I warn the Minister that the Bill states that, when entering premises, the enforcement officer may take with him

``such other persons and such equipment as he considers necessary.''

When we debated the scope for an enforcement officer to do that under the Food Standards Bill we insisted that such other persons should be authorised.

The media take a great interest in scare stories and issues such as these. It is not impossible for an investigative journalist pursuing a story involving a possible conviction to find his way in unless it is specified that the person accompanying an enforcement officer must be authorised. That would not be unreasonable protection for the person into whose premises the enforcement officer has broken for the legitimate purpose of investigating whether the ban on tobacco advertising has been contravened.

Those are all practical points that relate to the considerable powers that have been provided to enforce the Bill. I will be interested to hear the Minister's response.

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

Clause 13 is long. Clearly, in the time available for the entire Committee stage we cannot go into detail, but on my first reading of the clause, I suspected that those who drafted it had been careful to consider the Regulation of Investigatory Powers Act 2000 and the Human Rights Act 1998 to try to make sure that all the appropriate authorisations were given.

The issue is a minefield, though not of the Minister's making. Problems can arise simply from a clever lawyer saying, ``Yes, you've got all the evidence, you've done everything, other than meet this clause of this particular Act''. All the evidence that any common-sense person would consider perfectly good could then be thrown out. Unfortunately, that is happening more and more in courts. I do not in any way accuse the Minister of not trying her best to prevent that, but will she say a few words about how investigations operate under the Regulation of Investigatory Powers Act 2000, which prevents all sorts of things, and whether that will take precedence over powers given in the Bill under discussion?

My hon. Friend the Member for Meriden made a point about other people being authorised to be present at an investigation with an officer. It seems sensible that a police officer authorised to investigate can take along someone else such as a technical expert. However, under the Regulation of Investigatory Powers Act 2000, we might discover that someone on the premises has not been properly authorised.

I am worried about the interaction between the Tobacco Advertising and Promotion Bill and the Regulation of Investigatory Powers Act. In the past a police officer, with his warrant card, was considered to have all sorts of authority. Under the Regulation of Investigatory Powers Act, the police officer often has to get additional authority to enter someone's premises. Certainly, the police officer has to have the entry authorised in advance by a senior officer and a magistrate in order to enter the premises unannounced.

I am concerned that the Bill gives only trading standards officers authorisation to enter premises. If a police officer and trading standards officer want to be authorised to investigate premises together, the magistrate may not be able to authorise the police officer because he is not listed in the Bill. Perhaps that is a semantic point. However, the issue of authorisation is problematic. Police officers should have a clear ability to investigate any crime without getting caught by interrelating Acts and Bills.

A further issue arises over how authorisation affects the internet. I have read the clause several times, and it does not specifically deal with the internet. I note that in excluding a private dwelling house, it says:

``used only as a private dwelling house''.

There might be difficulty with a police officer seeking to obtain authorisation from a magistrate for entry to a residential house that is not registered by the local authority as a business premises, but is suspected of operating as a business via the internet. It might be difficult for an officer to check whether a particular computer has been used to put out advertisements within the jurisdiction of the United Kingdom courts, even if the information is being sent via an overseas outfit. If it is actually being sent from a computer in the United Kingdom, it is caught by our advertising regulations, even if it appears on someone else's computer as though it has come from overseas. I would be grateful if the Minister would discuss internet access and how it is affected by clause 13.

Photo of Peter Luff Peter Luff Opposition Whip (Commons)

I served on the Committee that considered the Regulation of Investigatory Powers Bill 2000. I emphasise that the point made by my hon. Friend is serious.

I seek the Minister's reassurance that she feels that electronic communications can be adequately monitored using the powers in the Bill, because they are not specified in the Bill. Maybe the Regulation of Investigatory Powers Act 2000 gives the Government the power that they need for that. Is the Minister satisfied that the interaction between that Act and this Bill has been properly considered? We spent a long time in Committee discussing only the enforcement issues, yet we are expected to put these proposals through in a just few minutes because of the timetable. That is a very serious issue. I hope that the Minister will consider it carefully and reassure the Committee that the issues have been properly considered by the Government because they are certainly not so considered in the Bill.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health 10:45, 8 February 2001

The clause involves standard powers for enforcement, which are modelled on similar powers in other legislation, such as the Consumer Protection Act 1987 and the Food Standards Act 1999. The hon. Member for Meriden seems to be arguing that we should implement powers of entry into private homes.

On the examples that the hon. Lady used of smuggled goods, I should point out that smuggling is illegal. The police and Customs and Excise already have powers to tackle smuggling and investigate where there are suspicions of stolen goods and so on. The Bill is about advertising, not smuggling. It is about advertising in the course of a business. If the card in Tesco that the hon. Lady described is an advert in the course of a business, it will be covered by the Bill, and Tesco might want to check that it is not committing an offence by displaying that advertisement on its board. The advertising is the offence created by the Bill, not the illegal sale of goods, which are already covered and enforced on through other legislation. The Bill is about enforcing a ban on advertising.

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

I am concerned about the legalistic way in which the Minister is dealing with this point. Are we right to think nothing in the clause would stop a trading standards officer walking into a normal place of business and dealing with what might be an offence by gathering information and evidence, without needing advance authority from a magistrate? I am concerned that an officer may, in the normal course of events, perhaps when visiting a shop, find a piece of evidence, but would have to rush back to receive authorisation before being allowed to collect such evidence.

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

The clause provides for officers to have exactly the same kind of enforcement powers—to be able to go about their ordinary business, in other words—that they have under the Consumer Protection Act, 1987, or when they enforce underage sales regulations or the Food Safety Act 1990. We are talking about exactly the same kind of standard provision. For that reason, all the issues about the interrelationship with the Regulation of Investigatory Powers Act 2000 have been examined in the same way that links with the Consumer Protection Act and other Acts were.

These are standard provisions and enforcement processes. Equally, on the issues about a person accompanying an officer, no one can enter premises unless authorised by the warrant-holder. That is the normal way of doing things. Under clause 13, the enforcement officer can require the production of any

``book, document, data, record (in whatever form it is held)''.

That covers internet provisions too.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

On authorisation, if the Minister consults the Food Standards Act 1999 on powers of entry and the question of accompanying persons, she will find not only that accompanying persons have to be authorised, but that they must have to produce proof of identity. That provision is missing from this Bill.

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

People cannot enter premises unless authorised by the warrant-holder. The normal process is that an officer does not get a warrant unless he needs one. If it possible to conduct the business or obtain the evidence without having to have a warrant, that is what trading standards officers will do. They will obtain a warrant if they cannot otherwise obtain the evidence that they need. The clause is relatively straightforward. It covers lengthy enforcement issues, but there is nothing distinctive or unusual in that.

Photo of Peter Luff Peter Luff Opposition Whip (Commons)

I want to make a serious point. In the interests of brevity, perhaps I did not express myself properly earlier. If someone were thought to be publishing advertisements on the internet illegally, one might not need to enter his premises to establish that fact, but could intercept his transmissions. Does the Regulation of Investigatory Powers Act 2000 give the relevant authorities the powers to enable such action to be taken, or does it empower others who are outwith the terms of the Bill? Can the Government guarantee the monitoring of electronic transmissions to ensure enforcement of its provisions? Powers of entry are not the be all and end all.

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

I understand the point made by the hon. Gentleman. I shall ensure that the Bill has the right powers of enforcement. Such issues have been considered by the parliamentary draftsmen, but I shall clarify the matter later in our proceedings.

Photo of Peter Luff Peter Luff Opposition Whip (Commons)

Perhaps the Minister will write to me.

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

I will be happy to write to the hon. Gentleman about that matter.

Question put and agreed to.

Clause 13 ordered to stand part of the Bill.