Clause 17 - Regulations

Tobacco Advertising and Promotion Bill – in a Public Bill Committee at 2:45 pm on 8 February 2001.

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Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health 2:45, 8 February 2001

I beg to move amendment No. 48, in page 9, line 13, at end insert—

`( ) No statutory instrument containing regulations under section (Displays) is to be made unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House of Parliament, or laid before the Scottish Parliament and approved by a resolution of that Parliament.'.

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

With this it will be convenient to take Government new clause 3—Displays.

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

New clause 3 refers to the debate on the difference between advertisements and displays. To ensure full clarity, we tabled a brief amendment earlier and said that we would also table a new clause.

As stated in an earlier clause, we want to allow advertising at the point of sale. Where products are for sale, advertising will be permitted. The regulations will specify what kind of advertising will be acceptable. During the debate it became clear that there might be a lack of clarity about what would happen when, even if advertising were constrained within the regulations, companies or organisations tried to find a way around that by displaying their products around a shop in a way that might be construed as an advertisement, but where the clear purpose was to promote the tobacco product. Companies might try to argue that they were not advertising their product, simply displaying it for sale. That might be a source of concern, and it requires clarification.

We have no problem with the way in which products are currently displayed for sale and no intention of restricting ordinary displays to behind a gantry or to the usual displays in duty free shops. Our intention is not to prevent the broad status quo. We are, however, concerned that companies might find loopholes that would allow them to display their products to promote tobacco, contrary to the Bill. For example, they might scatter cigarettes among children's toys or extend a display of cigarettes to fill a shop window.

We would prefer not to set out regulations and not to use the regulatory power. If a display is used for an advertisement—for example, Marlboro cigarettes stacked in the shape of a big M, as in the Marlboro sign—the Bill's powers for prosecuting advertisements may be invoked. The regulations in the new clause will provide some back-up to prevent future abuse of displays. It is not our intention to regulate at this stage; should we need to in future, we would not set out to constrain or regulate the broad forms of display typically used today in corner shops or other places where tobacco products are for sale.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

I am pleased to hear the Minister's relaxed attitude towards current displays. People who are worried that a legitimate aspect of their current business might fall foul of the Bill will welcome that. I share the Minister's concern about loopholes that would allow tobacco products to be displayed together with toys. It is in everyone's interest to prevent that. We probed the Minister earlier on what constituted an advertisement as opposed to a display. Both the amendment and the new clause are helpful in clarifying that. People affected by the Bill will read those provisions carefully, but the detailed regulations will provide more specific guidance, so I am glad that they will be subject to positive resolution.

The Minister's relaxed attitude suggests that she views the regulations as a reserve power to deal with an abuse of what is permitted rather than as a proactive measure to be invoked as soon as the law comes into force, requiring retail outlets to adapt their existing practices to conform to it.

Let me return to display and advertisement. Given that a more explicit explanation is to be given to the term ``display'', might the Minister, on reflection, consider providing a closer definition of ``advertisement''? I think that it is possible to provide guidance to businesses in that respect.

I wish to ask the Minister some questions about the publication of draft regulations for consultation. I believe that a promise has been made several times that draft regulations for consultation would be forthcoming on point-of-sale and advertising displays. The Government said, first in relation to their intention to produce primary legislation and later as part of their plans to implement the now-annulled European directive, that they would produce regulations for consultation. Those encouraging noises have been made to the industry for almost four years.

It would have been helpful if the consultation and drafting of the regulations had taken place before we debated the Bill. I am struck by the way in which we seem to do things the wrong way round. We agree the legislative framework in an empty-box structure and are promised regulations in due course and consultation either simultaneously or some time later. I should have thought that consulting first and producing draft regulations would have been helpful ways round the question of displays.

My final point is that the Minister said that there may or may not be regulations, which provide for the meaning of ``place''. We had a problem when we debated a previous clause with the description of a specialist tobacconist as a shop. We debated how that might constrain the effectiveness of the Bill, since not all specialist tobacconists have shops. I would be interested if the Minister would tighten up the definition and say specifically what she means by ``place''.

We are defining some things precisely while leaving others open. It will be important to retailers to know specifically what ``place'' means and how they need to adapt present practices to the new definitions in forthcoming regulations. Clarification of the word ``display'' has proved helpful because the absence of a clear definition would lay us open to a situation in which a retailer might feel, in the absence of a display, that the safest thing to do would be to put all his products under the counter. I know that some people take the view that that would be a good thing because it would remove temptation from people's way, but one problem of removing the products in such a draconian way is that it drives sales under cover.

We already have a significant problem in the UK with a high proportion of illegally imported tobacco, sold not under the counter, but clandestinely from the back of a white van. We must be clear that it will be legitimate to put tobacco products on view where the trade is carried out in compliance with the Bill. That is an important distinction to make. The Bill is likely to be counter-productive without the clarification that the Minister says will be forthcoming in regulations. It is desirable for the myriad retail outlets for tobacco products to be quite clear about how much of the product they can put on view.

At present, displays containing a significant number of packets are usually behind the till, in view. I hope that I understand correctly from the Minister that she is relaxed about those displays. The effect of altering the present displays would undoubtedly be to draw attention to the changes in the law, but placing the products under the counter would have an undesirable impact. As far as possible, we want to ensure that legitimate trade in tobacco products is allowed, notwithstanding their public health risk. It is desirable to encourage people to keep their habit within the law.

The consumption of illegal tobacco represents 25 per cent. of all tobacco consumption, and the figure is almost as high as 50 per cent. in the north-east. We are fighting a losing battle; people are increasingly tempted to go for the under-the-counter products or products out of a white van rather than legitimate ones. Clarification of what is a display is essential to supporting the legitimate business of retailing tobacco products. I hope that the new clause and the regulations will be helpful in that respect.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset 3:00, 8 February 2001

Let me deal with one of the elements of display and how that might affect the way in which people retail tobacco. I would like the Minister's comments on a specific practice that could be extended. In duty free shops, tobacco shops and clothing shops, it is quite normal that when one purchases a large quantity of a product, one is given a carrier bag with a logo on it. It seems to me that if the carrier bag has advertising on it, it is a very effective way of giving out something at point of sale that will end up as an advertisement trailed along the high street by people going about their business. Will the Minister consider that? The same applies, of course, to a lot of other branded goods.

Something that is purchased that has a logo on it—within a tobacco-selling area that complies with the regulations, which we have not yet seen, about how tobacco products should be displayed— and is then taken from that place becomes a moving advertisement. I have here a copy of the House of Commons logo. The portcullis is the logo that appears on House of Commons branded cigarettes. We have other branded products, including mineral water and a teddy bear. The brand is the same as on our branded cigarettes.

We understand how the sale of such branded products might be affected by the provisions on point of sale. A product with a Silk Cut or Marlboro brand could be on sale within a tobacconist's shop, where it might well be legal to sell it because it is not being advertised outside the shop. Once it is in the hands of the individual who buys it, the branded product is not caught.

The other element in new clause 3 to which I wanted to refer is the use of the words ``on a website''. We all have to try and get our heads around something that exists in the virtual world. Several Acts, including the Computer Misuse Act 1990, the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Fraud) Act 1997, have attempted to define in law something that exists as electrons, but not as something that a person can pick up and walk away with. In the past, a person could not steal or alter those electrons without their being defined as real things.

I have a problem with the way in which the Minister uses the phrase ``on a website''. New clause 3 says:

``A person who in the course of a business displays tobacco products or causes them to be displayed...on a website where tobacco products are offered for sale is guilty of an offence''

unless he complies with the regulations. Under certain regulations, it is legal to have such products on the website. Let us assume that we can say that the website exists. It does not exist where a person is looking at and is affected by the advertisement. It may be legal for the website to exist, but not for it to be on a computer in someone's home or office. It is difficult, but one is attempting to regulate the advertisement at the point at which it is read, as opposed to in a virtual world.

I have given an example of the situation that might arise, particularly in relation to an overseas operator but also with a UK operator, unless the regulations are tightly drawn. Advertisements appear on screens at airports and various places. One could walk into an airport where advertisements were being clicked over in electronic form. If they have come from a website as opposed to a computer sitting underneath the machine, they could be legal and get round all the regulations that the Minister proposes to introduce.

We have established that people can have access to such information where they buy cigarettes. However, the Bill says that if people are not in a place where they can buy cigarettes, they should not be able to see advertisements for them. Advertisements should not be fired at them. If the information on a screen at a supermarket, airport or wherever comes from a website and tells people how they can purchase the cigarettes and how much they cost, and if cigarettes can be purchased from the website, the regulations designed to prevent that from happening outside a tobacco-selling environment will have been overcome.

Photo of Peter Luff Peter Luff Opposition Whip (Commons)

Is not the point that the Government should at least define what they mean by ``website''? Would a display that had been developed in Internet Explorer software but was not accessed from a remote computer count as a website? I am not aware of occasions in law when the term ``website'' has been used and defined, but perhaps the Government are. To use it in an undefined way leaves a number of loopholes in the legislation, which my hon. Friend is helpfully illuminating.

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

That is the problem. The definition is not even as simple as the one that I gave of a website existing in a single place, because in general they do not. When we see a page on a screen, we are often seeing information that is sent from a number of different sources and, indeed, things called cookies, which live on our computers, are all part and parcel of the image that one sees on the screen. The telecommunications companies would say that when someone asks for a web page and it has started to download, it is not necessarily transmitted in a direct line in only one direction from the web site to the computer. That is why it is called the world wide web. It sends a packet of information, perhaps from the top left-hand corner, via one route and the next packet of information says, ``Oh, it is a bit crowded around here, but there is another route over there''—and off it shoots.

The concept of something being delivered via a web site is, legalistically, difficult to tie down. If I were advising the Minister, and were paid the sort of money earned by parliamentary draftsmen and civil servants, I would say—

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

My hon. Friend intends to be a Minister in a few months' time: I know that I will not be, but I may be being too flippant.

If the Minister wants to stop people reading advertisements in a non-tobacco-selling environment, I must advise her that the new clause will not achieve that objective. I shall receive no fees for that advice, but when the draftsmen come to frame the regulations, they might well tackle the problem. The Bill provides certain powers, but the Minister has not defined them to my satisfaction.

Website is not in my dictionary—only a modern one would define it—but the term ``internet service provider'' has been used, and we have heard about the internet service providers who will, a week on Wednesday, see the Minister and her officials to ask, ``Will you please view us not as a publisher, but the conveyor of web information?''

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

My hon. Friend is surprised that that advice will reach the Government after the House of Commons has finished dealing with these issues.

Will the Minister explain how this part of the Bill will operate? At this late stage in our proceedings, has she produced draft regulations to pass to members of the Committee so we can all feel happier about what she is trying to do?

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

Hon. Members have raised various points about new clause 3, some of which were discussed earlier in our parallel debate about point-of-sale advertising. The hon. Member for Meriden asked when the regulations on such advertising would be published. We intend to produce draft regulations for consultation as soon as possible—hopefully during the Bill's passage, as my right hon. Friend the Secretary of State said on Second Reading.

As to regulations under clause 17, I explained earlier that we do not envisage drawing up draft regulations at this stage, and we may not use them. The hon. Lady was right to refer to the regulations as a reserve or back-up power. The implication for the calculation of individual repayments is that, until such regulations are introduced, a display that is not an advertisement is not an offence.

The issue of the word ``place'' has been raised. New clause 3 allows it to be defined in regulations, in the same way as point-of-sale advertising. We have already debated the meaning of ``website'' in that context. The Government intend that the point of sale should refer to the point at which the cigarettes or tobacco products are bought. A tangentially linked website at which the links were in place would not count as a point of sale in that respect, so the point-of-sale advertising or exemption for advertising in those circumstances would not apply as a defence.

This matter will be dealt with further in regulations and set out for consultation when the regulations on advertising, as opposed to regulations on display, are drafted.

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

An interesting thing has happened in America. California, and most states, have decided that goods and services ordered over the internet should not have sales tax attached to them in order to give a boost to the internet. If a person wants to book into an hotel in those states, other than via the internet, he or she can go into the hotel lobby to use a terminal through which guests can communicate with the front desk and book a room. The hotel confirms the reservation, and the guest has avoided the sales tax. The point is that we will see 80 ft by 60 ft screens advertising tobacco, and a man at the bottom of them who will sell tobacco. People will be able to press a button on screen to order cigarettes, which will be immediately available.

The Government are effectively saying to the tobacco industry, ``It is all right, we are not actually going to have any regulations; it will take us quite a long time''. We can see the sort of thing that might happen.

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

If he remembers rightly, the hon. Member for South Dorset will recall that I mentioned the example of a massive computer screen that people were driving past. As I pointed out to him then, the people who owned the computer screen and were distributing the advert would be caught by the Bill. That would be an advertisement, and would therefore be covered. It is exactly in order to prevent advertising at the point of sale from becoming an abuse and a way to get around the intentions of the Bill that we have included a power to regulate the kinds of advertising that are acceptable, at point of sale, through regulations. If we had not done so, we would not need to make regulations. If we thought that there were no problems in that area, we would simply set out an exemption. What we have set out instead is a power to regulate the exemption.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

This is an important practical discussion. I want to be perfectly clear about it. There is a very real risk because of the difference in excise duty. One might go to a specialist tobacconist or a newsagent that was a retailer of tobacco products. If it had installed a computer terminal that was connected to the internet and was able to access, via its website, a business that was not carried on in the UK and that displayed half-price cigarettes, and if its customers used that terminal, the tobacconist or newsagent might be liable for prosecution.

Someone sitting at home who called up on his or her personal computer the same website for a business not carried out in this country but which supplied half-price cigarettes—

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

I am trying to get a straight answer. Is it the case that one of the actions that I have described would be illegal and the other would not?

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

The questions for the courts would be, first, whether the advertisement was not at the point of sale, along the lines that we discussed earlier on the huge computer screen broadcasting an advert for people driving past in their cars, and, secondly, whether the advertising complied with the point-of-sale regulations. We are not saying that all advertising at all points of sale is permitted and acceptable. We are saying that advertising at point of sale must be subject to regulations, which will be put out to consultation.

As I said previously, we have a relaxed attitude to the kind of displays currently at point of sale. We have introduced an exemption to the overall comprehensive ban on tobacco, because it is acceptable for companies selling a legal product to be able to advertise the prices and range of wares in that context. However, if that becomes an abuse and a way of getting around the tobacco advertising ban—whether by using massive computer screens or other means to play the part of a tobacco advertisement—we would use regulations to make sure that it did not become a loophole. That is why we have set out the need for such a power in regulations.

I want to touch on the point made by the hon. Member for South Dorset about walking around with a plastic bag with a Silk Cut logo on it. An individual walking around with a plastic bag, umbrella or whatever it happens to be would not be caught by the Bill, as long as he or she was not operating in the course of a business. However, if the plastic bag was clearly an ad for Silk Cut or other cigarettes, it would be caught. The production of that ad would be caught by the Bill, and the distribution of that ad in the course of a business is also covered by the Bill. If, rather than its being an ad for Silk Cut, the producers claim that it is simply a Silk Cut branded bag, they would be covered by the brandsharing provisions. Production and distribution would be covered by the Bill, but an individual walking around with a product that he purchased several years before would not.

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

I think that I am right to say that an advertisement that is intended to go between the wholesaler or manufacturer and the retailer is not caught by the Bill. Therefore, somebody who sends lots of packets of cigarettes with a carrier bag to the retail outlet would not be caught by the Bill. As there are no regulations prohibiting carrier bags in retail outlets—unless the regulations should be so amended—giving away a carrier bag, especially if a customer asks for it, would not be an offence. As the Minister said, an individual walking out with a carrier bag and wandering around town with it would not be committing an offence. I would be grateful for clarification.

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

As soon as the retailer sells or gives away the bag, it is distributing a product. If the product was exempted because it was clearly needed in the tobacco trade, there would be a defence under the Bill while the product remains within the trade. However, if it is a product to be sold rather than a communication between members of the tobacco trade, it would be covered by the Bill. Why would a wholesaler send a retailer lots of branded plastic bags in the course of communications within the tobacco trade? The role of the wholesaler is arguable anyway, but as soon as the retailer sells the bag and distributes it, it becomes a tobacco advertisement or a branded good, and will be caught by the brandsharing provisions.

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

The Minister is forgetting what she said previously. Her view, which is not mine, was that the packaging around a packet of cigarettes is not an advertisement for the tobacco product inside. If the carrier bag is fully branded, we all agree that the branding, which does not even have information about tobacco on it, is intended to promote a tobacco product, and is therefore an advertisement. It is not covered by the Bill or the clause, as the hon. Lady seems to be saying.

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

If that the defence that the hon. Gentleman wants to run in the courts if prosecuted under the Bill, I wish him luck. The argument that a carrier bag is to be considered as part of the packet for the cigarette—and is therefore not to be regarded, either as an advertisement for the product, or alternatively as a branded good—might prove somewhat tenuous in the courts. That is clearly not the intention of the Bill.

New clause 3 sets out the issues around display, as opposed to point of sale advertising, which we have discussed in some detail. Amendment No. 14 is a consequential amendment, and deals with the process for discussing the regulations through the affirmative procedure, should they be required.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset 3:30, 8 February 2001

I started off with some concerns about new clause 3. Having heard the Minister's response, my concerns have merely increased. The new clause, which we first saw yesterday evening—or earlier if we were more attentive—does not cover what we thought the Minister was going to attempt to cover.

I went a demonstration of digital radio yesterday evening. Digital radio provides a facility not only for normal music but for digital information to be supplied on a screen. Tobacco advertising from overseas could be provided in that way. We already have digital television in this country—indeed, the UK is the leader in digital television. Digital television has many interactive features. Under the voluntary bans, and under all sorts of codes, we cannot have television advertising of tobacco products. Despite that fact, I could design today a facility that tobacco companies could use to have their websites accessed and displayed on digital television. People already have such facilities on their televisions. The Minister, in trying to rush the Bill through by 5 pm, is not listening to the Opposition's advice.

Although new clause 3 is obviously designed to improve the Bill in terms of possible abuses, it is not enough for the Minister to say to the tobacco companies, ``Well, don't worry chaps, we're not actually going to think of having regulations until we might see an abuse.'' When the abuse comes along, it will take a considerable amount of time to deal with it. Some employment agency regulations in which I have an interest have taken two years to arrive since the original legislation was enacted.

The Prime Minister says that we should have at least three months to consult on statutory instruments, and then the Government have to find time for them in this place. We are, in effect, saying to the industry, ``Come and try us: there are all sorts of loopholes.'' The Minister needs to address those points.

Amendment agreed to.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

I beg to move amendment No. 42, in page 9, line 16, after first `Parliament', insert

`with respect to England, Wales and Northern Ireland'.

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

With this it will be convenient to take amendment No. 43, in page 9, line 16, after second `Parliament', insert `with respect to Scotland'.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

The two small amendments are designed to help to clarify the implications for the devolved assemblies of the United Kingdom. As drafted, two aspects of the clause lead to confusion. Clause 17(4) does not make it clear that the Westminster and Scottish Parliaments have specific jurisdiction. The implication is that either Parliament can give effect to an annulment. Will the Minister confirm whether that is the case? Of course, we accept that, as a result of devolution, Parliaments may take decisions that lead to a completely different course of action. We have seen that in relation to the provision of free personal care. We have always said that that was a logical consequence of devolution. Subsection (4) says:

``this Act shall be subject to annulment in pursuance of a resolution of either House of Parliament or of the Scottish Parliament.''

That would permit one or other of those Parliaments to take unilateral action. That would rather weaken the effectiveness of the Bill.

For argument's sake let us assume that the Scottish Parliament, for reasons best known to itself, decided on the course of annulment. We know that the prevalence of smoking in parts of Scotland is very high, and we share the Government's aim of trying to help in those communities where there is a high incidence of smoking. So we would not wish annulment to happen. We were seeking by our amendments to clarify this, if there is any confusion, and to be constructive.

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

I have a lot of sympathy with the amendments. Not being a lawyer myself, I think that it is important to provide clarity. Having read the amendments and re-read the clause, I have asked for reassurance, more than once, that what the hon. Lady has described as the purpose behind her amendment is provided for by the Bill. I am assured that the Bill already provides for Westminster Parliament to cover England, Wales and Northern Ireland and for the Scottish Parliament to cover Scotland. That is the consequence of this Bill as it is drafted and the amendments are therefore unnecessary. I give the hon. Lady the assurance that I will check this one more time before we reach Report. I have done so already, as I am concerned to make sure that exactly the points that the hon. Lady has raised are already covered within the Bill. It would not be right for the Scottish Parliament to annul inappropriately the regulations that have been set by the Westminster Parliament.

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

That is helpful. A lot of people who are not lawyers and who read the Bill will be as confused as both of us were. We shall have to take the word of the highly paid and well-qualified draughtsmen that they have got this absolutely right. It might also be possible, to make that clear as part of the guidance, and for that reason I beg to ask leave to withdraw the amendments.

Amendment, by leave, withdrawn.

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

Photo of Caroline Spelman Caroline Spelman Shadow Spokesperson (Health)

This is a very important clause, because it gives the power to make regulations and orders. My general observation is that we have a great deal of the cart before the horse with this Bill. We are taking a great deal on promise that provisions will be made in regulations—regulations that we have not seen, and on which, in some cases, consultation has not yet taken place. Being a relatively new parliamentarian I find that an astonishing way to go about one's business. So do those people who will be directly affected by this Bill, not least because, for a number of years, they have been promised consultation on these very important matters.

Also, there are some discrepancies that cause me to raise an eyebrow in relation to the regulation-making powers. Only an order in clause 7 or the regulations in clauses 8 and 10 will be affirmative statutory instruments that will be debated by both Houses of Parliament. However, the regulations referred to in clauses 4, 6, 12 and 18 do not appear to need affirmative statutory instruments. The one that causes my raised eyebrow is the transitional provision, which, unless I am very much mistaken, does not require positive resolution. A number of hon. Members have very considerable concerns about that provisions and how the transitional arrangements up to 2006 will be applied and why some sports should be given preferential treatment under them. The way in which the regulations will subsequently be debated will vary. It is important that we have the chance to debate them, especially as the fruits of consultation that has not yet taken place cannot inform our present argument. We could have approached some of the tricky issues in the Bill differently if the consultation on which those subsequent regulations will be based had taken place. For example, I do not feel at ease about whether we have satisfactorily dealt with the regulation of ISPs, and we have had no sight of the regulations that will affect them.

There are some discrepancies in, for example, subsection (2), which allows the appropriate Minister or Secretary of State to regulate differently for different cases or circumstances. I am concerned that that may be discriminatory and will not set a level playing field for those involved in publishing or distributing by electronic means. My hon. Friend the Member for Mid-Worcestershire, who has experience of the printing industry, made the interesting point that our country's printing businesses will be placed at a disadvantage under the Bill in terms of international tendering for magazines and periodicals that contain tobacco advertisements. By comparison, the new internet service industry seems to have been granted a considerable concession under new clause 3. The different industries that compete for our attention and to influence our choices will be treated in a different manner. I fear that the print industry may now be disadvantaged vis a vis those publishing or distributing by electronic means.

The Government have failed to provide adequate time for the detail of the Bill, as they have rushed to introduce it so that they can tick the box and say that their pledge to ban tobacco advertising has been achieved in the lifetime of this Parliament. That detail will be important to the effectiveness of the Bill and to the achievement of the Government's aims. As we have had no sight of the regulations, we will not even comment on the likely effectiveness of the secondary legislation until it is all done and dusted and has passed through the Houses of Parliament. Empty-box legislation is an inferior form of legislation, but very much a feature of this, my first Parliament. Disquiet about that is not confined to Opposition Members. Representations from the affected industries lead us to impress on the Government the fact that leaving decisions to regulations as much as possible is not regarded as especially helpful.

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

On first reading the Bill, we assumed that it would be similar to some previous Acts. We have also been in power—and will shortly be in power again—so we acknowledge that it is extremely difficult for Governments to introduce all-encompassing Bills without regulatory powers, as regulations are to introduce in the light of circumstances. However, it is extraordinary that the Minister now tells us that those powers are simply a fallback position for many cases. We have to tell that to our constituents, including retailers of tobacco.

I do not know whether any member of the Committee has a tobacco factory in his or her constituency, but am sure that everyone in the Room has an interest in the tobacco industry through the House of Commons pension scheme. In one way or another, I suspect that we are all shareholders in the tobacco industry. Damage to business confidence and to the value of shares is not necessarily the result of regulations, because one can usually calculate their effect. I expect that people will be calculating the effect of the Bill and that they will assume that the consumption of tobacco will decrease. That may be an incorrect calculation, but it is certainly what the Government intend.

The Government are saying to business that they have additional regulatory powers, but that they do not intend to use them for the moment. However, under other legislation, they have made draft regulations available so that people could work out more or less what to expect; and, once the Bill was enacted, the regulations could be made. Industry will know, because it had seen the draft regulations, what it should be doing.

Let us assume that Mr. Bloggs, the retail tobacconist, is thinking about putting a new display in his shop. He is going to revamp it and spend many thousands of pounds on a shopfitting exercise. He rings up his Member of Parliament and says, ``I understand that new point-of-sale regulations are coming along for tobacco. Do I have to keep my cigarette stocks down so that only one packet is showing, or can I display them all?'' Mr. Bloggs has a number of display stands with advertisements. What should he do? He wants the shop's fitting to last for between five and 10 years, and he wants to comply with the regulations.

Mr. Blogg's Member of Parliament will not be able to help. He may say, ``It is true that the Government have the power to make regulations that might include hiding all the cigarettes. You may have to keep all the cigarettes in a separate room, and you will have to bring them out in a plain brown wrapper to sell them.'' That is not an extraordinary vision; it is the sort of request that any constituent might make about how the regulations might work. We shall have to tell people that we do not know whether such regulations will be made, and that will cause uncertainty.

We believe that there is likely to be an election in May. The convention between the parities, not often spoken about, is that if an election is imminent and the Government are about to make some regulations, they will not publish them without the agreement of the other main political parties. In other words, if they are likely to be politically contentious they will not be rammed through within 28 days—or whatever time lag is appropriate. The gentleman's agreement—or gentlelady's agreement—is that contentious regulations will not be rushed through without agreement. We may not have an election in May, but it is a possibility in May, June or whenever, yet the regulations are not even in draft form and no one knows what effect they might have.

It is wrong-headed of the Government, if they are convinced about how they want to regulate tobacco advertising, not to say so. They should be fair to the industry, perhaps even say that, as long as it sticks to a voluntary agreement, they will not make regulations. We are back to voluntary agreements. The Government have obviously listened to us and said, ``We shall do it by voluntary agreement. Unless you keep to it, we shall make regulations.'' That is only fair.

One never wants to embarrass the Labour party, but the reason why Bernie Ecclestone rushed to No. 10 Downing street about the threat to tobacco sponsorship and advertising on Formula 1 cars was not that he needed to ensure that tobacco advertising would continue, but that he needed to have certainty about when the ban would happen. When the Government came to power, Bernie Ecclestone was in the middle of trying to sell Formula 1. He could not sell it without knowing what regulations would affect him. Certainty within business about whether a regulation is going to come in is most important.

When Governments make statements about the possibility of regulation, stock market valuations can go way down until the regulations are confirmed. We have seen it with the new electricity trading arrangements. When are they going to come in? We have seen electricity shares going up and down.

The tobacco industry is supposedly a legal industry. It does not have to have a sword of Damocles hanging over it—a set of regulations that the Government could bring in at any time but are not even willing to divulge to the industry. That is why we need a very clear indication from the Minister about what these regulations will be, what the Government's plans are, which regulations they intend to introduce and when under clause 18 the requirements on sponsorship will be brought in. All that needs to be explained to the Houses of Parliament. The House of Lords, where Labour does not have the massive majority that it has in the House of Commons, will not accept being asked to sign a Bill without being told how much it will cost or what the regulations are. This sort of anonymous legislation, with no commitment from the Government as to when they are going to introduce regulations, if at all, is not satisfactory in a parliamentary democracy.

Photo of Peter Luff Peter Luff Opposition Whip (Commons) 3:45, 8 February 2001

I rise to ask a one-word question. Why? What is the rationale for different bits of regulation being subject to different procedure? It is not explained in the very helpful explanatory notes, and of course it is not explained in the Bill itself. I hope that the Minister will explain when she winds up. This clause is a bit of a bad-news, good-news, bad-news story. As my hon. Friends have said, there is too much uncertainty in this Bill. Too much is left to the future. Too much is left to regulation. Indeed, some of the most difficult and complex issues are left to regulation. I am very unhappy about passing a Bill that leaves the complex issue of brand sharing to future regulation. At least the brand sharing order will be a positive order. That is good. There will be a chance to scrutinise it in detail and for the whole House to vote on it. We will not be able to amend it, but there will be a chance for proper scrutiny of a kind.

It is bad that there is this uncertainty. It is bad that there is so much left to regulation. It is, as my hon. Friend the Member for Meriden said, an empty-box Bill with huge areas left to the future. I am tempted to think that this is because the Department found some issues too difficult—too difficult to introduce at all or to introduce in the time; I am not sure which. That is a matter for great regret. I am one of the cynics here. I think that the Government wanted to get this Bill on to the statute book before they had thought it out. They have provided a framework so that they can claim to the electorate that the Bill is on the statute book, whereas in practice they will have done very little to control advertising by the time of the election. The advertising of tobacco products will remain largely uncontrolled and unregulated for a considerable period. Yet so much hangs on these regulations. That is bad.

It is good, however, that at least we are positive. I am glad about that. It is good to see three affirmative resolutions—three orders that require the affirmative procedure. I welcome that. Very often the Opposition have to argue, to change things from negative to affirmative. I remember the proceedings on the Regulation of Investigatory Powers Bill. Many of our ``victories'' in Committee were squeezing out of the Government changes from negative to affirmative procedure. I am glad, therefore, that there are four affirmative procedures in place. That is good. Four out of seven are affirmative.

That, however, drives me back to this question of why? Why are three negative and four affirmative? I assume that it is because the Government attach greater importance to the latter than to the former—they believe that the latter deal with issues of more complexity or greater importance, or are more fundamental to the Bill, while the former deal with lesser issues.

On that rationale, why are advertising at the point of sale under the negative procedure and distributions at nominal amounts, which are covered in clause 8(6), subject to the affirmative procedure? I may be wrong—if so, I will be happy for the Minister to tell me so in her charming way—but I would have thought that advertising at the point of sale was a hugely important issue that should be subject to the affirmative procedure, while distributions at nominal amounts could have been left to the negative procedure without the Opposition making too much fuss. Why are they that way round?

I remain a cynic about the Bill, and I have a feeling that the Government needed a few negative procedures to provide a cloak of respectability to allow clause 18—the Bernie Ecclestone memorial clause—to be placed under the negative procedure. That is one of the greatest scandals in the Bill. The Government do not want to give Parliament the opportunity to discuss the matter any more than it has to.

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

Are we being too cynical in believing that, as we approach a general election, the Government want a bare-bones Bill that has not been give the chance to reveal that it does not work? They can say to the electorate, ``We've solved that problem,'' but in a few months' time we will know that they have not.

Photo of Peter Luff Peter Luff Opposition Whip (Commons)

That was a summary of my earlier remarks, and I can only agree with my hon. Friend. The Department has said, ``The Bill contains seven order-making powers. We have to make clause 18 negative for political reasons, so let's make another two negative to give it respectability.'' If that is so, the Minister has got it wrong: it would be better for advertising at the point of sale to be positive and distribution at nominal amounts to be negative.

I am afraid that I am cynical about this, but the Minister is a lady with great persuasive powers, and she may be able to convince me that my cynicism is misplaced. I am grateful that four out of seven procedures are affirmative, but why are the other three negative?

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

The clause sets out the regulation-making powers and the ways in which they will be treated under the Bill when enacted.

I should say straight away that we intend, as soon as possible, to introduce regulations on brand sharing, the sponsorship timetable and point-of-sale advertising. My right hon. Friend the Secretary of State said on Second Reading that we intended to introduce regulations on the sponsorship timetable during the passage of the Bill, and we hope to introduce the regulations on point-of-sale advertising and brand sharing as closely in line with that as possible.

We do not intend to regulate on new technology, display, nominal distributions or specialist tobacconists. Those powers are to be held in anticipation of loopholes. It is better not to legislate on those matters if we can avoid it, so we shall not introduce regulations at this stage.

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

The hon. Lady has identified the regulations that she does not intend to introduce. Will she have discussions with the appropriate bodies about voluntary agreements on how they will operate, as that would make the introduction of regulations unnecessary?

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

We shall happily hold discussions with any of the companies involved about how they might operate in order to prevent any need for future regulations on those matters.However, I add a note of caution about the past success of voluntary arrangements. We put the powers in the Bill so that we would not have to rely on voluntary agreements to regulate potential abuses of the Bill. We need the flexibility to respond if problems arise, but we do not currently intend to use those powers. If we need to introduce regulations, we will consult fully at that time.

Four of the sets of regulations will be subject to the affirmative procedure—those on new technology, brand sharing, display and distributions at nominal cost—because new offences will be created in those four areas. Although the offences are already set out, the introduction of any regulations would take account of the effect felt by people involved in those areas.

On specialist tobacconists and point-of-sale advertising, regulations will clarify defences rather than setting out new offences and new problems. The sponsorship timetable is simply about setting out a timetable. It is appropriate that the negative procedure is used in those areas because they merely set out detail and clarify matters. We do not intend to use regulatory powers in many of those areas if we can avoid it, but it is appropriate to have flexibility. That is why those areas are covered by regulations rather than in the Bill.

Question put and agreed to.

Clause 17, as amended, ordered to stand part of the Bill.