Clause 19 - Interpretation

Tobacco Advertising and Promotion Bill – in a Public Bill Committee at 4:00 pm 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 listened with great interest to the Minister. I hope that those who are listening to our debate and who will read Hansard carefully will have noted that the two-speed process introduced in the regulations is important. I was particularly interested to hear that the specialist tobacconist powers might be held in reserve, giving specialist tobacconists a chance to work out how they can comply with the Bill without excessively burdensome regulations being placed on them. The distinction discussed in the stand part debate, which if I recall correctly might have been curtailed at the beginning of our proceedings, was helpful.

I draw attention to clause 19, about which I seek clarification. It refers to

``publishing by any electronic means, for example by means of the internet''.

The Minister will be aware that I am worried that the approach may, understandably, be more lenient towards the new technology. It is still evolving and blossoming and should not be cut off at an early stage of its development. I remain worried, however, that those who publish printed matter by conventional methods may be discriminated against in comparison with people who publish by electronic means. The clause deals with them together, but in other parts of the Bill they are treated differently.

The Minister's new clause 3 provides for publishers of information by electronic means through their websites legitimately to continue if they carry on their business outside the United Kingdom and customers from the UK access their websites. I am not convinced that, under British law, anything could be done about that problem. None the less, those responsible for publishing printed matter by conventional means will be placed at a comparative disadvantage. Both sorts of publishers compete in an international market. The publishing world operates in a global market, as does the internet business. Both tender for business and present information to those who wish to be informed and advised about our buying decisions and strategies. However, conventional publishers in Britain are alone among publishers in European Union member states in being banned from competing in the international market, while some portion of those publications may be distributed in this country. That situation differs from that of internet service providers, who may carry on their business from outside the United Kingdom but whose customers may access it from here.

I am worried about that discrepancy. The two groups are lumped together in the clause as if they had equal provision, but the Bill makes a distinction and they do not have equal provision. I would welcome hearing from the Minister that, as part of the preparation for drawing up regulations, she will consult print publishers as well as those of electronic means, so that she may better understand the concerns resulting from the different way in which those two types of publishing will be treated.

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

I want briefly to address some narrow, technical points. It is always the case in this place—because we represent what the Prime Minister called a very conservative body—we assume that because we have always done things in a particular way and used a particular form of words in an Act of Parliament, if it came to a court case and someone claimed that something had been done incorrectly, the courts would assume that any lack of clarity in our legislation could be accepted in the courts. When I complained about the lack of clarity surrounding the question of the appropriate Minister, I was grateful to be told that there was a definition. However, like so many of the definitions in the Bill, it tells one nothing. It states that appropriate Minister means

``in relation to England, Wales and Northern Ireland, the Secretary of State''.

There are 20 or 30 Secretaries of State, and in this Bill—[Interruption.] The hon. Member for Rother Valley (Mr. Barron) is describing the Minister to whom I was about to refer in derogatory terms.

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

I am grateful to the hon. Gentleman.

The Secretary of State is not defined here. It might be the Secretary of State for Health, or even the Prime Minister, who can obviously delegate things. The definition does not tell us to which Secretary of State it refers. On the front of the Bill there is a reference to ``Mr Secretary Milburn'', but nothing else in the Bill shows that it issues from the Department of Health. The Minister may say, rightly, that it is the Government's Bill, but if one wants to define the appropriate Minister, it would be a good idea to say who that Secretary of State is.

The next part of the definition refers to the ``Scottish Ministers''. That means that any Minister of the Scottish Parliament can pick the matter up and is an appropriate person to introduce regulations. For the sake of clarity, the definition should be made clearly in the Bill.

I revert—although not in any detail, as the matter has already been covered—to the fact that ``advertisement'' is not properly defined. The reason for having definitions in a Bill is to deal with something that has not been made clear in an earlier part of the Bill. In this case, clause 19 refers us to clause 1, but there is no better definition in clause 19 than there was in clause 1. Why do we even have the definition in clause 19? It is a tautology. If the definition in clause 1 is clear, there is no requirement for it in clause 19. Presumably, the draftsmen said, ``Minister, we've got to define advertisement'', so they put in the original draft of the clause what they felt an advertisement meant. Then they found themselves getting into a mess, so they simply said:

```tobacco advertisement' and `tobacco product' have the meaning given in section 1''.

As clause 1 does not contain a clear meaning of those terms, that is a tautology and shows that the Bill is in a mess.

I am glad that the final part of this discussion includes the difficulties that the Minister will face in relation to electronic publishing. Publishing by electronic means is included in the Bill, but it is strange that, although we refer to internet service providers and web pages, the definition, which includes all kinds of related things, does not include other forms of electronic publishing that look like a web site or an ISP. ISPs have already written to me, and no doubt they will come to speak to the Minister after the Bill has gone through the House. They want ISP to be defined simply as somebody who transmits things and is not a publisher. They want to be excluded from that definition.

Under previous telecommunications Acts, the telephone company that transmitted a dirty phone call or a slander over the telephone was not liable: it was simply a carrier and not responsible for the content. Yet, without a clear definition, people can be caught by the provisions. ISPs have received some comfort from the Minister saying, ``It's not you, if you didn't know anything about it''. However, ISPs and their role are not properly defined in the Bill, and nor is it clear who may be caught as an ISP. In many ways, I am an internet service provider, because I have a web page. If somebody dials into my web page, which is run for me by another company, I can personally be said to be an ISP. The Labour party and the Conservative party are ISPs by some definitions.

Clause 19 contains a set of definitions that are tautologous. The clause does not clarify which Minister is involved, nor does it give us a proper definition of the electronic side that would be helpful to lawyers and courts in future. I hope that the Minister can help the Committee on those issues.

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

I shall try to respond to the points that have been raised.

The hon. Member for Meriden was concerned that the clause and the Bill treated print publishers and electronic publishers differently. They are treated differently in a couple of respects, although the broad aim of the Bill is to be neutral with regard to the different media. First, they have a different defence for electronic means of transmission—that they were unaware of what was being published. Secondly, we have taken a power in regulations to cope with changes in technology, not because we intend to treat electronic media differently from print media, but simply to anticipate future changes in technology.

The hon. Lady raised the issue of print for a foreign market. I said in replying to that debate that I would consider that issue in time for Report.

The hon. Member for South Dorset, as I had expected, again asked about the definition of advertisement and expressed his concern about the definition of a web page. I have set out the Government's position on those matters. The words have the ordinary meaning that people attach to them. Sometimes it can be counter-productive to attempt to define too narrowly in legislation what we mean, word for word, in every case. In doing so, we would exclude more than was intended simply because a particular example had not been anticipated. In that regard, I think that the Bill strikes the right balance.

Finally, on the question of to which Secretary of State or Minister the clause refers, I should point out that it is standard practice to refer to the Secretary of State in that way in legislation. However, in practice it is the Secretary of State for Health to whom reference is made, because it is his responsibility to take the lead on tobacco products. The hon. Gentleman has expressed anxiety on many occasions about legislation that crosses, and which has implications for, several Government Departments, and I have told him that that, unfortunately, is the way that the world works. Legislation often does not fit into single departmental boxes, but that should cause no problems because we on the Government Benches recognise that it is important that Departments should work together, and are trying to ensure that they do so.

As I have said, it is common practice for a Bill not to define a particular Secretary of State, but in this case it is the Secretary of State for Health to whom reference is made.

Photo of Mr Ian Bruce Mr Ian Bruce Conservative, South Dorset 4:15, 8 February 2001

I do not want to cause too much discomfort, although we on the Opposition Benches often play games by trying to get Secretaries of State to give different answers to the same question. However, it must be said that the Bill would be improved by a clearer definition. Perhaps a phrase such as ``the Minister who is responsible for tobacco products'' could be used. The clause ought not to refer merely to ``the Secretary of State'', given that there is no such title in British governance.

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

I repeat that such a reference is standard practice in legislation, and it is clear that ``the Secretary of State'' means the Secretary of State with responsibility for this policy area. The clause is perfectly adequate, therefore, and I ask the Committee to accept it.

Question put and agreed to.

Clause 19 ordered to stand part of the Bill.