Welcome back to the Committee, Mr. Amess. Parts of the clause are pertinent to electronic communications and people involved in the internet industry. Such matters have been debated at length both in the House and in another place, but several issues have not been properly dealt with, hence our amendment. For precautionary purposes, I shall declare what is not a particular interest. I was a non-executive director of an internet web posting company, which was taken over by another American company in whose equity I am an increasingly modest holder—given what has happened to its shares. That experience has given me some knowledge of the problems that may be faced by such companies should the Bill be enacted in its present form.
Subsection (3) is a catch-all provision. It takes in almost every conceivable person who may have contributed towards the distribution of a tobacco advertisement in electronic form. I am talking not only about an internet service provider or a web posting company, but those businesses that may have been involved in distribution, or had provided the means of transmission, the hardware, the software, the telephone lines or the computer equipment. The amendment would remove ''participating in doing so'' from the provision. Under the Bill, those who are connected with the business, some of whom I have listed and who have no knowledge about—or make a contribution to—the distribution, dissemination or promotion of tobacco advertisements could be deemed culpable, because they had been involved in the equipment that facilitates the dissemination of information.
The amendment would still make it illegal to distribute tobacco advertisements in the form set out under the Bill, but it would limit the offence to those persons who were instrumental in that distribution. Surely it is not right that persons who could not possibly remove offending tobacco adverts that were distributed by electronic means are at risk of committing an offence. When I was involved with an internet company, we hosted websites for small
businesses and had a filter mechanism for clients, especially those who wanted to advertise products of a slightly lurid nature or fairly salacious photographs. We activated that filter by our code of conduct. However, that is increasingly difficult when those with websites can update them directly without having to go through the website provider, as indeed many Members do, including me.
Of course, it is difficult for the website host constantly to check for offending material. Given that there are millions of pages of internet websites to be examined, that is an almost impossible task. That is difficult enough for those directly involved in the internet industry whose business it is to host websites, but it would be impossible and irrational to expect those loosely involved with transmission lines, and other equipment involved in making available or hosting such material, to have any liability for material that falls foul of censorship laws, or, in this instance, prohibitions on tobacco advertising. That is why we would like to make it clear that only those directly involved in the transmission and communication of such prohibited adverts should be deemed in any way culpable under the Bill.
I would be grateful if the Minister were to elaborate on compliance with the e-commerce directive, which was to have been implemented by all European Union member states by 17 January, although it has not been. I am sure that she has had discussions and has taken advice on the subject. We treat internet service providers rather differently from other EU states. Under the directive, as is the norm in other EU states, ISPs are treated not as publishers or distributors but conduits for the transmission and immediate or temporary storage of information.
A conduit is different from a publisher. The Bill could be interpreted as treating ISPs as publishers, rather than as conduits providing the mechanism or framework for people to communicate their message, advert and wares for sales, for example. If ISPs are to be treated as publishers, there will be many implications outside the Bill for the liabilities of ISPs and others involved in putting together, hosting or transmitting websites on the internet. The Bill may be incompatible with EU law. It is also worth noting that in the United States, internet service providers have immunity for material to which they provide access.
Perhaps the Minister can allay our fears and guarantee strongly and convincingly that the sort of people who I have listed will not be included under what appears to be a catch-all phrase. As an adjunct to the amendment, we have tabled amendment No. 19, which would add the word ''knowingly'' to subsection (3). The Bill would then catch out only those actively participating in distributing, communicating or publishing prohibited tobacco adverts. Anyone who could be said, with any reasonableness—we will consider that idea under other clauses—to have done so unwittingly should not be caught out by the provision.
We are trying to make it clear that those likely to fall foul of the Bill are those who can reasonably be expected to be involved in controlling the material, rather than those who are completely subsidiary to
that process, and rather than providers such as telecom companies.
Any legislation that affects the internet affects a moving piece. I look forward to the Minister's assurance that the defences in clause 5 are adequate to cover all the possibilities that could arise from the fairly flexible and wide-ranging section in clause 2.
Advertising through the web is different from that through print and other media, and it is difficult to frame legislation to deal adequately with events that change daily. Anyone who has had any involvement with the internet, or the web, is aware of the wide variety of material available, and the ability to restrict tobacco advertising on the web will create a significant problem for anyone who deals with it. We must rely on the defences in clause 5, which states that a
''person does not commit an offence . . . if he did not know, and had no reason to suspect, that the purpose of the advertisement was to promote a tobacco product.''
I should like assurances that the defences in clause 5, on which we must rely heavily, will deal with any problems that the clause may cause.
I hope that the Government will take the amendments extremely seriously. If I as a layman in such matters understand the Bill correctly, we have a curious position. The part about
''providing the means of transmission''
is the one that bothers me most. As my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) says, that includes a huge number of people and businesses, and could make criminals out of an enormous number of law-abiding people.
I am not an expert—indeed, I am a total novice—about IT, but I believe that I have enough of a grasp to get the technical words right. If I understand how these things work, one first of all needs hardware—a computer, for example—to have a means of transmission. Without that, it is not possible. If someone who provides the means of transmission is to be caught by the provision, presumably that includes everyone working in PC World who sells computers that could be used. Nothing states that the person in PC World has a defence in saying that he did not know, unless the amendment is accepted. Therefore, everyone who works in PC World, Dixons, Currys, or anywhere else where people buy computers, or hardware, might be deemed to be helping the means of transmission.
I do not follow the hon. Gentleman's argument. Is he suggesting that someone who sells a motor car is committing a crime because the car can be used in a criminal way? That is clearly nonsense.
One of the reasons that the hon. Gentleman does not follow my argument is that I have not yet had a chance to develop it. However, in due course, as I do so, perhaps all will become clear to him.
His example of a motor car salesman is interesting, because it makes my point.
I am not suggesting that in common law someone who sells computers might be caught. The hon. Gentleman is right. In common law, someone who sells a car cannot be held responsible for anything that the car is used for afterwards, provided that the car is in a proper state when sold. However, the difference between the hon. Gentleman's example and the matter under discussion is that the Bill would, if applied to the motor trade, provide that, irrespective of whether people know or do not know, if they sell a car that is later used for a crime, they would be caught.
That is exactly my point. The hon. Gentleman is correct to say that it would not apply to motor cars. My argument is that it should not apply to those who work for PC World, Dixons, Currys or anyone else, or people in the second-hand business. If I want to get caught up in the tobacco advertising business and buy second hand from a colleague a computer that is surplus because he uses stuff provided by the House, presumably under the Bill the person who sells me his surplus computer that I subsequently use for that purpose is providing a means of transmission. The hon. Gentleman is right in thinking that that is absurd. That is exactly my point. The clause is absurd and should not be in the Bill.
That is the situation with hardware. I understand my computer and, with my limited knowledge of websites, I know that I need software to make my hardware work. Are we seriously suggesting that everyone working for a software house based in the UK that provides software for my computer will be involved? My knowledge is limited, but I get the impression that many items of software are of a general nature. It is not as if one can go into a shop and say, ''I want to buy software that will do only this.'' A range of software will enable one to access all sorts of information.
Unless the Bill is amended, every person involved in the software business will be guilty of
''providing the means of transmission.''
I hope that the Minister acknowledges that that is absurd and does something about it. The Bill catches all the shop assistants in PC World, Dixons and Currys, and all those who work in software houses. We are doing well.
I tend to use mail order to buy IT equipment, whether software or computers. I place my order, and for as long as Consignia still exists and is willing to deliver packages, it will bring me my goods. Presumably, everyone involved in the delivery of my package, including the freight forwarding business that collects the computer from PC World and delivers it to my house, will also be
''participating in . . . providing the means of transmission.''
The Bill has managed to catch all those people as well. We are doing well.
I tend to use my credit card to make purchases. I buy computers and software by using my Visa or MasterCard. Therefore, those companies are funding
the purchase. People in the banking and credit card industry are making it possible for me to buy IT goods, so they are also
''participating in . . . providing the means of transmission''
because they have made the money available for me. Those working in Dixons, Currys, PC World, the Post Office or Consignia, lorry drivers and the entire banking industry are caught by the Bill.
I am grateful for your defence, Mr. Amess, because I occasionally need it.
Members are becoming excited by the absurdity of my argument. However, my argument would not be possible without the absurdity of the clause. After I have finished explaining who else will be caught and will become a criminal as a result of the clause, the hon. Member for Weaver Vale (Mr. Hall) will presumably leap to his feet to tell the Committee that he agrees with me, and that he thinks that the Bill, as drafted, is wrong. Many people will agree with the purpose of the Bill, but it is the means by which we achieve the purpose that matters. As I said during the first sitting, I make no apology for giving the Bill detailed scrutiny—that is why we are here.
Having made criminals of PC World, Dixons, Currys, the people who work in software houses, and those in the delivery and banking industries, I finally have my illegal goods. Although there may be an alternative method, all the computers that I have ever seen rely on telephone lines of some sort. I do not know which company owns what telephone lines or who provides the service. Before long, all those providing telephone lines will become criminals because they are
''providing the means of transmission''.
We are doing well. Currys, Dixons, PC World, lorry drivers, the Post Office, the banking and credit card industries and now the telephone industry are all caught by the Bill. Absurdity is piled upon absurdity. Whether we like it or not, all those people
''participate in . . . providing the means of transmission''
of illegal advertisements. That is what the Bill says, and if hon. Members look incredulous, they should have read the Bill before listening to the argument.
We could go beyond telephone companies. The manufacturing industry makes telephone lines and other equipment, including plugs and sockets. Before we have finished, the clause is likely to make criminals of the entire population of the United Kingdom.
I am listening, as usual, to the hon. Gentleman's points, although I do not agree with him. He mentioned hon. Members not having read the entire Bill. Did his casual perusal of it
extend to clause 5(5)(a) on page 3, which directly refutes every word that he said? It states that the person
''was unaware that what he distributed or caused to be distributed was, or contained, a tobacco advertisement''.
I am certain that that should allay the hon. Gentleman's fears, and would reassure computer sales people at Dixons and PC World, and others, such as those who work for internet providers, that they would not be caught, whether intentionally or otherwise, in the way that the hon. Gentleman has mischievously suggested.
The hon. Gentleman disappoints me. I thought that he would say that if England had home rule, we could duck behind what Scottish home rule might say, and he could do what he wants in Scotland.
The hon. Gentleman anticipates a point that I shall make later. I have read the Bill and I am aware of what clause 5 provides.
Will the hon. Gentleman concede—as gracefully as he can—that my hon. Friend the Member for Eastwood (Mr. Murphy) has shot comprehensively his electronic fox? Will he move his argument on? If not, we shall make criminals, according to him, of those who power communication lines, dig coal and import oil? He is making an interesting and colourful argument, but will he move on?
I hear what the hon. Gentleman says. I sailed close to the wind by mentioning home rule for England. I would be sailing even closer to the wind if I discussed fox hunting, although I would love to have that debate with him.
The hon. Gentleman made a serious mistake. I had overlooked the oil industry, the coal industry and the transmission industry. However, he is absolutely right. Any person in the middle east or Alaska—[Interruption.] This will teach the hon. Gentleman not to interrupt and give me more examples of the Bill's absurdity.
I understand what you say, Mr. Amess, but the repetition is not my fault. The hon. Member for North-West Leicestershire (David Taylor) stoked me up to go round the same course again. In deference to your ruling, I shall explore other issues. However, we might have to return to a discussion of those who work for Dixons, PC World, Homebase and any other company that we want to mention.
I have read clause 5, and I have argued in other Committees that such a way of writing legislation is crass. Clause 2 is titled ''Prohibition of tobacco advertising'', and it sets out what is prohibited, what is an offence and those who would be guilty of committing an offence. I shall not repeat my point about those who work for PC World, Dixons and Currys, or you will get very upset, Mr. Amess. However, if one turns over to the wonderful clause 5, which was anticipated by the hon. Member for
Eastwood, it contradicts the statements in clause 2. That is an idiot's way of writing legislation. [Interruption.] I said at the beginning of our first sitting that it would not be difficult to improve the quality of some of my contributions. If the Bill is idiotic, it follows that anyone who speaks to it will sound idiotic. It is the Bill that is the cause of that problem.
It is simple that when I pick up the Bill, after it is enacted, and it says that I am a criminal if I am involved in the means of distributing advertisements, it should say that I would be a criminal ''unless'' certain things happen. The Minister should deal with that matter. It should not be left until pages later, under a separate clause, because we are debating clause 2. I accept the suggestion made by the hon. Member for Eastwood, because it makes my point and I am sure that when I finally sit down, he will leap to his feet and agree with me. It would be simpler to say that a person is a criminal, unless there are other factors. That would be better than saying, ''You are a criminal'' and then qualifying that statement in a clause that we cannot discuss now because it has not yet been called for debate. Perhaps some staff at PC World, Dixons, Currys and other companies should or should not be caught, but we cannot debate that now.
I respect that decision. I want to put on the record, however, that when we debate clause 5, I hope that issues connected with clause 2 will not be ruled out of order. You have properly said, Mr. Amess, that when debating clause 2, I may not debate clause 5. When we reach clause 5, I hope that nobody will say that I cannot return to clause 2. It is an absurdity of the way in which the legislation is drafted that a person who participates in the means of transmission is guilty of an offence. That is all that we may discuss now. Later, in a separate debate, we shall say that that is not true.
I do not understand how legal draftsmen can create such a situation, or why Standing Orders say that, because two clauses are linked, they cannot be discussed together. It makes for sloppy consideration of sloppy draftsmanship, and that results in a sloppy Act of Parliament.
Clause 2(4) raises an issue that is not covered by amendment No. 19. I hope that there will be an opportunity, at least under the stand part debate, for that narrow point to be discussed. The amendment offers the Minister the solution to the absurdity of not including the word ''knowingly'' in the clause. In respect of the staff of PC World, Dixons, Currys, the
Post Office and the oil industry—there are others that I will not mention because it may be repetitious—if the word ''knowingly'' is inserted—[Interruption].
Labour Members are becoming restive, because a valid point that they wish to conceal has been raised. The solution to their problem—the way in which they can lower their blood pressure and make progress—is to look at amendment No. 19 and acknowledge that people are guilty of an offence only if they know what they are doing. Surely that is the practical, common-sense solution to the absurdities that I have mentioned.
If a person working for PC World—or for a different company, because I have nothing against PC World—sold a product that was used subsequently for a criminal activity, it would be up to the courts to satisfy a judge and jury that the member of staff knew that the product would be used for that purpose.
Surely, the parallel to what the hon. Gentleman has said is that a person could be accused of being terminally boring, unless what they were saying was relevant, interesting and concise?
If the hon. Gentleman could demonstrate that I was knowingly terminally boring, that might be a different matter. I am raising points that have to be considered in a forum in which Labour Members do not want to bother to scrutinise or listen; they want to go back downstairs and do something else, such as open their post. Therefore, they are at fault, and the public will draw the conclusion that this is not intended to be a forum where proper scrutiny takes place.
The hon. Gentleman has been an hon. Member of this House for far longer than I, but it is my understanding that in most legislation the main principles are set out at the beginning of the Bill and further explanations are given in subsequent clauses. That is a normal method of parliamentary draftsmanship. I am sure that when we move on to the subsequent clause, he will let us know whether he thinks it clearly explains that it excludes all the people that he was worried might be caught.
Mr. Wilshire rose—
I was talking about amendment No. 19 and I was doing so knowingly.
The hon. Member for Amber Valley (Judy Mallaber) said that I have been an hon. Member of this House for a long time. She is right; I have been here for 15 years. If the hon. Lady looks at my parliamentary record, she will see that I have been on the Back Benches for most of that time. That is because throughout my career I have spoken up about the absurdity of most draftsmanship.
The amendments before us are Nos. 3 and 19. The hon. Member for East Worthing
and Shoreham set out the intentions behind the amendments. In the context of those comments, I assure him that they are unnecessary. He said that he wanted the Bill to limit its attentions to those people who have some control over the situation, and, in effect, that is what it does.
The Bill is intended to treat print and electronic media in the same way, as fairly as possible, and in a manner that anticipates future technological developments. The Bill sets out a comprehensive ban and then it sets out defences. That has been made clear in the discussions that we have had in the Committee and in those that took place while the Bill was being drafted.
As the hon. Member for Edinburgh, West (John Barrett) explained, defences against the offence that is set out in clause 2 (3) are described in clause 5 (5). It states that a person does not commit an offence under section 2(2) and 2 (3) if,
''(a) he was unaware that what he distributed or caused to be distributed was, or contained, a tobacco advertisement,
(b) having become aware of it, it was not reasonably practicable for him to prevent its further distribution, or
(c) he did not carry on business in the United Kingdom at the relevant time.''
Therefore, amendment No. 19, which would add the word ''knowingly'', is irrelevant, because clause 5(5)(a) sets out a defence for a person who was ''unaware''—that is, a person who did not know.
It appears that the hon. Gentleman's main objection is that the ban is set out on page 1 and the defence on page 3. This is a Bill. It is a single Bill; pages 1 and 3 are part of the same Bill. As my hon. Friend the Member for Amber Valley said, it is common for a Bill to set out an offence and subsequently to set out defences against it. The amendment to clause 2 is irrelevant because of the defence set out in clause 5 (5).
The hon. Member for Spelthorne (Mr. Wilshire) seems to be concerned only with the way in which the Bill is set out. I shall, of course, pass on to the parliamentary draftsman his wish that all its provisions should be set out on the same page, if possible, to make it easier for him to read the contents in the right order. However, I am not sure how seriously the parliamentary draftsman will take the hon. Gentleman's argument.
The hon. Gentleman went into a long diatribe about PC World, Dixons and so on. Goodness only knows how he can believe that it is reasonably practicable for the staff at Dixons to climb into his bedroom window and repossess his computer, having derived through the ether that he was using it for a tobacco advertisement. Clearly, the amendments are unnecessary. There are strong defences in the Bill for people who are unaware of—or for those whom it is not reasonably practicable for them to prevent—the distribution of an advertisement.
My hon. Friend was just beginning his warm-up routine, but I am sure that we shall enjoy more of his words of wisdom later in our proceedings. I defy Labour Members to accuse my hon. Friend of being terminally boring. On the contrary, he provoked more contributions from those on the Labour Benches than during our entire sitting on Tuesday. He certainly succeeded in waking up many of them. I look forward to better debates that involve more members of the Committee.
The Minister's argument was reasonable. I concentrated particularly on transmission personnel, especially those in telecommunication companies along whose wires the advertisements transmit. My hon. Friend the Member for Spelthorne is right: theoretically the way in which the Bill is drafted—as with so much legislation—means that it could take in more people. The Minister is happy that there are sufficient defences in the Bill. She has laid out her case explicitly and said that the other loosely related people will not be caught by it. I am grateful for her assurances and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
With this it will be convenient to take the following amendments: No. 5, in clause 5, page 3, line 21, leave out
'he did not carry on business'
'the place of establishment of his business was not'.
No. 6, in clause 8, page 4, line 14, leave out
'who does not carry on business'
'whose place of establishment is not'.
I declare a non-remunerated interest as a member of the Lords and Commons Pipe and Cigar Smokers Club. I draw attention to subsection (4). It states that it is not an offence
''for a person who does not carry on business in the United Kingdom to publish or cause to be published a tobacco advertisement by means of a website which is accessed in the United Kingdom''.
It is also not an offence under the clause to devise that website. In other words, it is an offence to publish or cause to publish an advertisement on a website if the publisher carries on business in the United Kingdom, and that is at the heart of the amendment.
Labour Members may argue that clause 4(3) provides some exclusion from, or moderates the thrust of, clause 2(4). However, that is only a potential exclusion. Clause 4(3) states that if a provider ''complies with'' within certain
''regulations'', they do not necessarily fall foul of clause 2. The problem that we Opposition Members have is that, to the best of my knowledge and belief, those regulations have not been made available to the Committee. It is difficult to know whether anyone caught by clause 2(4) could take advantage of clause 4(3).
None the less, website tobacco advertising published by a person carrying on
''business in the United Kingdom''
will be regulated one way or the other, whereas website advertising published by a person
''who does not carry on business in the United Kingdom''
will be unregulated, or subject to regulations in another country. That logically follows from the drafting of the Bill.
The amendment draws important attention to the crucial definition of the term ''carry on business''. Amendments Nos. 4 and 5 are probing amendments and I shall explain why in some detail. The provisions of clause 2 are intended to make it clear that the Bill does not have extraterritorial effect—we understand that that is what the draftsmen were driving at. The clause covers the originator of a website and people involved in the distribution or transmission of tobacco advertisements by electronic means. In other words, it will cover primarily information society service providers. That makes the e-commerce directive—directive 2000/31/EC—and the terms in which the UK intends to transpose that directive into UK domestic law, particularly relevant to the clause.
Throughout the passage of this Bill, and that of its predecessor in the previous Parliament, the Government have properly undertaken to make the provisions consistent with the e-commerce directive. EU member states adopted that directive in summer 2000. Its purpose is to facilitate commerce over the internet. It should have been implemented by 17 January 2002, but the UK is not the only member state that has found it impossible to meet that date.
Under article 3 of the directive, those who trade on the internet are obliged to comply only with the laws of the member states in which they are established, not those of the states in which they are carrying on business. A member state cannot impose further regulations on an organisation's activities if that organisation is established in another member state. The Bill, however, purports to restrict internet advertising of tobacco from being used by anyone who is found to
''carry on business in the United Kingdom''.
Clearly, it is a logical and practical possibility that such a person could have a place of establishment in a member state where tobacco advertising on the internet is permitted, at least until a new tobacco advertising directive bites on that country's domestic law. In sum, we tabled amendments Nos. 4 and 5 to clause 2(4) because if the amendments are not accepted, there is a clear
possibility that the Bill will be inconsistent with the EU directive. I understand that draft regulations that would introduce the directive into United Kingdom domestic law were published for consultation, and that the closing date for representations was 2 May. Our amendment is probing and asks the Minister a question. Is she satisfied that subsection (4) is consistent with the e-commerce regulations—I do not know whether it is consistent with the directive—that will be introduced by Her Majesty's Government in this country?
Will the Minister remind the Committee, in as much detail as she deems necessary, about the status of the regulations and tell us how the language in them meshes with the EU directive? That would help all people concerned; those of us who do not want unnecessary litigation to occur under the Bill, those of us who are keen for the Bill to be improved and the judges who will need to understand clearly what the Minister is driving at.
I am sure that the Committee will want to be entirely satisfied that the phrase
''who does not carry on business in the United Kingdom''
is entirely consistent with the directive and regulations. I hope that I have made that clear. The Government explained their use of the phrase ''carry on business'', rather than the word ''establishment'' to which the directive draws attention. Does that mean that there would be an actual presence? The legal sense in which the Minister wishes to define
''carry on business in the United Kingdom''
Depending on individual cases, courts would have different interpretations about what the phrase could mean. Let us consider a branch office that no one works in, but that has a name plate. That company would be registered in this country but would have no filed accounts or any details more than a pro forma for a company with a brass plate on its door.
I do not want to turn the debate into a party political bun fight. It would be churlish and unfair to remind the Committee about the definitions of a place of business to which No. 10 and the Prime Minister resorted when deciding whether Mittal had a place of business in this country and whether that was an English company. Let us pass over that. It is safe to say that there is legitimate debate on, and legal interest in, the matter. Lawyers will read avidly the Committee's proceedings in Hansard, and I know that they are searching for enlightenment on the meanings of ''establishment'' and ''carry on business''.
I am following my hon. Friend's argument closely. He said that the Government have interpreted
''carry on business in the United Kingdom''
as meaning a presence. He and I have served on Committees that considered Finance Bills during which new tax regulations had different definitions that meant that the Treasury treated the definition of
people who carry on business in the United Kingdom differently from that under the Bill, which provides further analogies.
My hon. Friend is entirely right. He has high-level experience of financial matters and corporate law, which I think that I do as well. The Minister owes a duty to not only Opposition Members but to those who will examine how the Bill will be viewed by the courts should a case be brought and a prosecution be made under it, should it pass into law.
It is incumbent on the Minister to explain the selection of meanings, perhaps by adverting to how the Inland Revenue defines carrying on business, as my hon. Friend said. Does it import concepts of domicile? What does presence mean? Are there tax law precedents that the court should use in defining and amplifying the meaning of carrying on business in the UK? Is there some other test? Would an agent office with a nameplate that has no employees in this country but that has a registered office and a company number at Companies House in the City count as carrying on business in the UK? I look forward to a detailed, thorough and careful explanation of the legal usages that legal advisers have given Ministers when Ministers put their name to the clause and approved the drafting. It needs clearing up.
The draft regulations to which I referred earlier, which will introduce into UK domestic law the terms of the e-commerce directive, are confused vis-à-vis the directive, not the clause. I hope that I have exposed the potential conflict in the clause, but what about the regulations vis-à-vis the directive?
The draft regulations state that
''the presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider''.
The directive does not use that language. Will the Minister explain that apparent contradiction?
I hope that the Minister will consider our concerns. Opposition Members want legislation that is clear, does not lead to unnecessary litigation and gives certainty not only to those who want to comply with it, but to the courts that may have to decide cases that fall to them for decision involving those who fall foul of the Bill. If she cannot explain the posers and answer my questions, I expect her to return with a suitable amendment to clear up what seems to be a large mess.
There has been much debate about the difference between carrying on a business and a place of establishment. As a non-lawyer, I assume that the definition of carrying on a business is fairly simple and understandable. It is more complicated to define a place of establishment, and I look forward to the Minister's assurance that the definition of carrying on business is the better definition.
As was said in another place, the country of origin as set out in the e-commerce directive is more precisely dealt with if the business is defined by the place where the business has been carried on, rather than the place of establishment. It would be simple for a company to
brass-plate an office in another country and say that it was established there.
Hon. Members have made important points about the amendments. The Bill must be in line with the e-commerce directive, and it will be in line with it. However, although consultation on the e-commerce directive has closed, final decisions have not yet been taken. Therefore, with regard to the application of the Bill, we will need to take account of the final wording of the e-commerce directive.
The Bill is in line with the principles behind the e-commerce directive. It addresses the fact that we are regulating a complicated area. With regard to the internet, technology is developing fast and many new questions about the international application of legislation are raised. The Bill has been drafted so that it does not have extra-territorial effect. That is why it states that it applies only to those who carry on business in the UK. Clause 2 (4) states:
''It is not an offence . . . for a person who does not carry on business in the United Kingdom to publish or cause to be published a tobacco advertisement by means of a website''.
Discussions have taken place about what that means. If a company is carrying on business in this country—if it has a branch here and it is operating in this country—it would be covered by the Bill. On the other hand, if, for example, a Japanese tobacco company that is based entirely in Japan were to sell its products to the UK over the internet, that would probably not be interpreted as carrying on business in the UK.
I am glad that the Minister acknowledges that the points that have been raised are important. However, I have not heard an answer to my question: would a company that is registered in this country, but does not file accounts and merely has a brass plate on a door somewhere—in Birmingham, for example—constitute an organisation carrying on business?
That would probably depend on whether the brass plate referred to anything. A brass plate swinging in the middle of nowhere is different from a brass plate on a door that opens on to a substantial business, or from a brass plate on a door behind which several people are carrying on business in this country.
I offer the example of a company that has no employees and is registered in this country—it has a company number at Companies House—and a website is registered under its name. The Minister used the term ''a substantial business''; I did not say that. With regard to the scenario that I have outlined, is there any way that that organisation, that does not file accounts and has no employees, would be carrying on business in this country?
In the end, the courts must decide what they regard as carrying on business. In the past, the courts have held that a person who carries on a business where there is a branch only here is carrying on business in this country. In the end, the courts must decide whether business is taking place: however, that requires having a presence in this country.
The key issue that the amendments address is the proposed legislation's compatibility with the e-commerce directive. When the final decisions are taken about that directive, we will need to ensure that the Bill is in line with it—especially where it addresses matters with EU scope. If necessary, we will do that on Report.
I was pleased that the Minister thought that there was something in these amendments. New Labour Ministers are not always so gracious when serious points of principle are put to them, so I am grateful to her. However, I did not hear her give any explanation of the word ''establishment'', which seems to be flavour of the month in the EU directive and is referred to in regulations. The phrase used in the clause is ''carry on business''. I regret to say that the Minister has not yet given any explanation for that, and I hope that she will give us a detailed one, so that when courts try to determine the intention of Parliament, they will get some informal guidance on what is going on.
Perhaps the hon. Lady would care to take this opportunity to explain how the concept of ''establishment'' in law may be interpreted differently from ''carry on business''? Does she think that those concepts are identical? If she does, she should say so, because it would be helpful to everyone. If she thinks that there is a difference in practice or in the way that courts may interpret those phrases in practice, she should explain what it is. It would help all hon. Members if the Minister would give an explanation of ''establishment''. What legal advice has she received from officials in the Department as to its meaning and how, whether or if it differs from the meaning of ''carry on business''?
It is important to have such information on the record. The Minister will not be cheering up only me by responding more fully to the questions that I have legitimately asked; she will also cheer up the many observers who wish nothing more than to understand whether they could potentially be caught by this legislation. In the light of that, a legal explanation of ''establishment'' and how the Minister thinks and expects the courts to interpret it, compared with ''carry on business'', would be useful. Opposition Members would like to hear more about such a crucial distinction, if distinction there be.
The advice on ''place of establishment'' has been set out as part of the consultation on the e-commerce directive. At present, we do not propose to use the phrase in the Bill. The phrase in the Bill is ''carry on business'', and there has been considerable discussion in the House and in the other place as to how that phrase may be interpreted. Of course, in the end, that is a matter for the courts.
As I said, once the e-commerce directive is published, we must ensure that it is compatible, but at this stage it would be premature to speculate whether further action will be necessary. Certainly,
''carry on business'' is perfectly compatible with the principles behind the e-commerce directive. The points made by the hon. Gentleman are speculative.
This will not do. I do not know why the Minister says that the arguments have already been exposed. They have not been exposed or debated in this Committee, or debated in any sensible or meaningful detail on Second Reading. For her to say that she thinks that the phrase will be compatible is not sufficient. She referred to regulations when she argued that the meaning of ''establishment'' has been teased out and set out. I am asking only that the Minister takes time—it need not detain the Committee long—to explain the legal definitions of ''establishment'' and how, if at all, they contrast with ''carry on business.
Most importantly, will the Minister describe—not speculate—why the words ''carry on business'' have been used in the drafting of the Bill rather than ''establishment''. Why is there a disjunction? Why is there a different use of language? It looks like an error—someone has made a slip. An explanation would be hugely helpful to the Committee.
The phrase ''carry on business'' was in the Bill that was discussed this time last year and it was passed through the other place. The phrase has been discussed extensively and its meaning—as set out earlier by the hon. Member for Edinburgh, West—seems clear. The ''Official Journal of the European Communities'' of 17 July 2000 explains the meaning of ''place of establishment''. If members of the Committee are interested, I am happy to read the relevant passage. It is referred to as L 178/4 and states:
''The place at which a service provider is established should be determined in conformity with the case-law of the Court of Justice according to which the concept of establishment involves the actual pursuit of an economic activity through a fixed establishment for an indefinite period''.
For hon. Gentlemen who are interested in the phrases used in the e-commerce directive, that is where they should look.
The Tobacco Advertising and Promotion Bill contains the phrase ''carry on business'' because that is a clear exposition of the types of businesses that we want to be covered by the tobacco advertising ban. Businesses outside the United Kingdom are excluded from the Bill, and rightly so, because we cannot enforce the law against them. The wording is sensible. As I have said, we shall, in due course, consider the final decisions that are made about the e-commerce directive.
The Minister's explanation started well, but then trailed away. We wanted a description of ''establishment'' put on the record, so that those who will be responsible for implementing the law will be clearer about ministerial intent. In the light of a series of inadequate responses—and some disdain for important technical questions that require a certain knowledge of law and decent legal advice—I shall have to press the amendment to a Division.
Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 16.
I want to explore three issues with the Minister, mainly to obtain clarification. They all are serious points. By using the phrase
''in the course of business''
in subsections (1) and (2), there is a possibility that the Government are providing a loophole whereby people could say that an advert is not published in the course of business.
It may sound spurious, but I suspect that when the Bill becomes an Act of Parliament, people who feel strongly that their rights have been offended may be prepared—as a matter of principle, and not to make a profit or to help the tobacco industry—to take it upon themselves to say that they do not approve of being told that there cannot be advertisements for something legal. I do not want to rehearse that argument, but that is a well-trodden path. There are people who feel strongly about the issue, and they will not go away—nor, I suspect, will their sense of injustice.
If I understand clause 2 correctly, someone who publishes an advertisement not
''in the course of business''
but for some other reason will still be able to do so. I should be grateful if the Minister would clear that matter up, because if I am right, the clause provides a loophole that people can exploit. It is probably not beyond the wit of mankind for someone who publishes an advertisement to claim not to do so—or to actually not do so—in the course of business, or a person could publish an advertisement in such a way that the courts could not prove that it was done in the course of business. As I said on Tuesday, I am not sure why I feel moved on occasion to try to help the Government with the Bill.
The second relevant issue is that subsection (1) says:
''published . . . in the United Kingdom''.
However, subsection (2) mentions producing something that is published in the UK. It would be helpful if the Minister would say for the record what definition of the word ''published'' is being used, as there is a range of definitions. I do not want to repeat our debate about natural meanings, but we should be clear what the word means. We will have to return to the issue.
I appreciate the difficulties of jumping from clause to clause, but clause 4(1)(c) refers to in-flight
magazines. The term
''published . . . in the United Kingdom''
then becomes highly relevant. I am flagging-up the general definition of ''published'' so that when we talk about aircraft coming in and out of the country, we can compare that definition with how the word is used.
I promise that I shall go down this route only this once, but the definition of ''published'' could apply to advertisements in the in-flight magazine of a British airline flying out of the country and not to those of a foreign airline coming in. That is a serious issue to be discussed later and that is why I would like to get the definition of ''publication'' into the record.
I am always suspicious when hon. Members start to debate the meaning of words and phrases. Not only are there obvious, standard dictionary definitions, but there are also meanings in legislation. Terms such as ''published'' have been used in innumerable Acts. There are accepted understandings and definitions of what such words mean. Surely it is a waste of time to debate continually the meaning of words.
I understand the hon. Gentleman's point. I do, on occasion, provoke interventions of that sort, because people feel a bit sore about being kept in Committee. However, as will become clear when we discuss another clause, there are assorted legal rulings, definitions and intentions behind the word ''published''. I am sure that the hon. Gentleman knows that. I am not being pedantic. I assure the Committee that the clause raises an issue for the aviation industry, and the reason I speak about that is because parts of Heathrow are in my constituency. There are serious financial implications for British business, namely British airlines, in relation to other people, depending on what we mean by publish. It is important, not for a pedantic reason, but for the sake of the record, to make clear now what this Bill means in general terms by the word ''published'', because clause 4 raises issues about exceptions to that.
In response to the answer that my hon. Friend is giving to the hon. Member for Luton, North (Mr. Hopkins), we have already had an example this morning of where publication in such a context can be taken to mean two quite different things. That was over the EU directive on internet service providers and what constitutes publication or a publisher, as opposed to a conduit. There are already very different definitions there. It is absolutely essential, as my hon. Friend is trying to make clear, that, for the benefit of the whole Committee, we define at this stage exactly what is meant by publishing. That can be interpreted very differently, in different contexts relevant to the Bill.
I am grateful to my hon. Friend. I hope that the Minister can clear up this serious issue—I shall wait for her reply.
Another concern is raised by the phrase
''published, in the United Kingdom'', also in subsection (1). What does the hon. Lady mean by that? I am not just raising pedantic points. That follows from the same concern that I have expressed, which we shall debate again when we discuss in-flight magazines. The phrase ''in the United Kingdom'' is not as straightforward as it sounds. Does an airline coming in briefly and then going out again constitute publishing in the United Kingdom, or just appearing here and going away? Does bringing something in and taking it out involve it being published here?
Much more to the point, can the Minister say whether she means to include British airspace in the United Kingdom? Under some legislation, offences that take place in British airspace are held to be taking place in the United Kingdom—they do not necessarily have to be on the ground. If publishing ''in the United Kingdom'' means flying over the UK in British airspace but not landing here, I hope that the hon. Member for Luton, North and others can see the difficulties that we will have under clause 4. If we can clear up what the Minister means by ''in the United Kingdom'' at this point, it would be helpful.
Sea space is also a consideration. My hon. Friend's argument is relevant to duty free and, for example, the sale of goods on cross-channel ferries. Strictly speaking, those never touch land but are in British territorial waters.
Exactly so. My hon. Friend makes one of the points that I was going to make, so I shall not repeat it. The same arguments need to be explored for coach operators that come in from the continent, or for our coach operators that go out, pick up literature not published in the UK, and bring it back. Again, what do we mean by ''published'' and ''in the United Kingdom''?
Clause 2(4), which begins:
''It is not an offence under subsection (1) for a person'',
raises several questions for which I should be grateful for an explanation. In a previous debate, I was told that clause 2 sets out the offences and that the defences are further on in the Bill. However, clause 2(4) contains an exception to an offence. It has been argued that it is normal to say that here is the offence and that, if we turn the pages, we will see the defences. That is not the case in clause 2(4). Why is that so? Why do we have drafting that sometimes says one thing and sometimes another? That rather plays into my argument that everything should be in the same clause, so that someone reading what the offence is also knows what the defences and the exceptions are, all in one go.
I will be grateful if the Minister will tell us why that provision is necessary. I think that it says that if somebody does not carry on business here and is doing something for somebody abroad, then that is not an offence. It seems that someone who is outside British jurisdiction and who is not a British subject is being legislated for, even though we have no control over such a person. Why do we need to exclude such people in a British Act of Parliament when we cannot include
them in the first place? I suspect that I will get an answer to that question.
There is another possible loophole. I shall give an example. I could live here but carry on my business abroad. Everything relating to the business would be over there—the printing and publishing companies and the tobacco business—but I might happen to live here. I would be made an exception of because I could do everything—devising, designing and sorting out the IT-side of advertisements—and would have the defence in law that the business was carried on elsewhere. We will create two sorts of graphic designer: those who commit an offence if they do something for a British company and those who do not if they carry on business abroad, even if it is for themselves. That does not seem to be sensible legislation.
I hope that the Minister can say that I have misunderstood, but if I have not, I shall worry about that second loophole. I hope that my arguments are valid and that she has an answer. I shall listen with care and I may come back if I am not satisfied.
I want to make a brief point and, as usual, I should like to be helpful to the Government.
I spoke on Second Reading of my concerns about the uptake of tobacco smoking by young people and about the possible existence of a loophole under clause 2(4). I gave the Bill a broad welcome, with the exception of that subsection. Young people have wider access to and a greater interest in the internet and they are possibly more susceptible to the material on it. Is the Minister convinced that the power provided for in clause 7—I know that we are not discussing that yet, but at certain points clause 2(4) and clause 7 must be debated together—is sufficient to close any loophole that might exist in 2(4)? Clause 7 refers to developments in technology. However, the hoary old established technology already allows the decamping abroad of tobacco promotion to internet service providers, which may well be producing material and ''come-ons'' outside the United Kingdom for the younger section of our population. Will clause 7 be sufficient in its power and scope to cover that loophole? Perhaps my hon. Friend will tell us when we reach the clause 7 debate.
In the 1999 World Bank report, the American researchers Saffer and Chaloupka contributed some common sense that is now writ into advertising language:
''A limited set of advertising bans will not reduce the total level of advertising expenditure but will simply result in substitution to the remaining non-banned media.''
It is as likely as night following day that the promotion activities of tobacco companies will decamp abroad. Furthermore, because of their acknowledged focus on recruiting new smokers, who will tend to be young people who are more likely to be internet aware, such activities will lead inexorably to the e-mail accounts of young people receiving unsolicited junk e-mails—spam—that are in some indirect way linked to the promotion of tobacco. Is my hon. Friend convinced that clause 7 will close off the apparent loophole in clause 2(4)?
I shall deal with the points that have been made. The clause creates a new offence related to tobacco advertisements. Essentially, it says that anyone involved in the publication, printing, devising or distribution of a tobacco advertisement is guilty of an offence, unless they have a defence as set out later in the Bill. It is right to have such a wide-ranging offence. Anyone knowingly involved with a tobacco advertisement may be liable and later clauses create defences for those whose involvement in the chain should not be penalised.
The first question was about offences applying only in the course of a business. That is right because the Bill is not about preventing members of the public, journalists, writers or others talking about tobacco products, representing them on stage or film or commenting in the press about smoking and tobacco. It does not prevent someone drawing up a poster that says, ''I love cigarettes'' and putting it in their window, if it is not done in the course of a business. It is right that they should be able to do that, because they have a right of free speech and free expression. If they are paid to do so—if it is done in the course of a business or through sponsorship—that is covered by the Bill. The Bill does not affect the free speech of individuals who are not operating in the course of a business, and I believe that that is right. If, however, someone puts in a window an advertisement that has been published by Marlboro—or someone else—after the passage of the Bill, the publishing of the advertisement will be caught under the Bill or, if a company pays for the advertisement to be put in the window, that will be covered by the Bill. If someone is simply putting their views across, they have a right to do so.
In addition, if a journalist chooses to write a news story, that is not an advertisement, but if he is paid by a tobacco company to promote its brand, it would be an advertisement and would be covered by the Bill. It is right that we make such a distinction.
Let me try to clarify the matter. I may have slightly confused the two separate distinctions. The first is whether something is done in the course of a business and the second is whether something is an advertisement. A journalist is operating in the course of a business, in that he or she works for a newspaper, but a journalist writing a news story is not writing an advertisement. Such a story would not be covered by the Bill, not because of the
''in the course of a business''
distinction, but because it is not an advertisement. If the journalist is receiving free distribution or sponsorship from a tobacco company as encouragement, that is covered later in the Bill and we will have plenty of opportunity to deal with it in some detail in the discussion on sponsorship and what it means.
May I give the example of the Cartier polo event, which happens once a year on Smith's lawn? What would the situation be if a journalist had been entertained by Cartier, which makes cigarettes, and referred to the event as one that used to be known as the Cartier polo event?
I think that it would depend on whether that counted as an advertisement and whether that person was effectively receiving either free distributions, which are covered by clause 9, or sponsorship, which is covered by clause 10.
That is why I asked my original question. If Cartier invited the journalist to the event that was sponsored by somebody else, but Cartier paid for that and the journalist received free entry, at what level would the journalist receive payment for promoting the event previously known as being run by Cartier polo?
This becomes complicated because it would depend on the timing of the Bill coming in—I am slightly confused by the hon. Gentleman's hypothetical situation. Clause 9 contains provisions on the prohibition of free distributions and states:
''A person is guilty of an offence if in the course of a business he . . . gives any product or coupon away to the public in the United Kingdom, or . . . causes or permits that to happen, and the purpose or effect of giving the product or coupon away is to promote a tobacco product.''
Clause 10 states:
''A person who is party to a sponsorship agreement is guilty of an offence if the purpose or effect of anything done as a result of the agreement is to promote a tobacco product in the United Kingdom.''
I think that the hon. Gentleman's points relate to the interpretation of sponsorship, and I suggest that we may discuss them at length when we consider clause 10.
My hon. Friend the Member for Taunton (Mr. Flook) is making good points that get to the heart of several of the Bill's weaknesses. We are in the realms of discussing infomercials, which are stories written by journalists about the latest tobacco products for newspapers or ''lad's mags''. They may do that without receiving sponsorship from firms. They may be sent samples of cigarettes from several firms, which they can choose to test. In a different capacity, they may attend an event that is sponsored by a tobacco company and enjoy hospitality. That does not constitute sponsorship under the Bill. It is important to know the stage at which the journalist could be guilty of committing an offence unwittingly. We are getting no nearer any definition of that.
As I said, we will have an extensive opportunity to discuss the extent of sponsorship and circumstances in which sponsorship may be interpreted to apply when we consider clause 10. The hon. Gentleman referred to journalists being sent free cigarettes. As I pointed out, clause 9 provides:
''A person is guilty of an offence if in the course of a business he . . . gives any product or coupon away to the public in the United Kingdom, or . . . permits that to happen, and the purpose or effect of giving the product or coupon away is to promote a tobacco product.''
We will have plenty of opportunities to discuss that. However, I do not think that the point is covered by clause 2 and I want to deal with issues that hon. Gentlemen raised in connection with that clause.
Mr. Wilshire rose—
I am happy to park issues of sponsorship until later. However, my hon. Friend the Member for Taunton made a valid point about the phrase
''in the course of business'',
which is exactly what we are considering.
I would be interested to hear the Minister's response to my hon. Friend's point. It has nothing to do with tobacco sponsorship if Blogg's jelly babies—or whatever company—sponsors a function and free entry to the event is given to a journalist, although the event's previous sponsor promoted tobacco. However, if I understand my hon. Friend correctly, the journalist could write a general report on the event and mention that it used to be sponsored by a certain tobacco company. Is not that the loophole about which we should be worried?
I do not think that the situation that the hon. Gentleman is describing would count as an advertisement, because it would be a journalist writing about a particular event in the form of a news story, which would not be described as an advertisement. Magazines often make distinctions, such as printing the word ''advertisement'' at the top of a page, so I do not accept that the hon. Gentleman's anxieties are well founded. There is no problem for journalists when describing events that they have attended, so long as they are not sponsored by the tobacco industry to do so. However, we will discuss that when we reach clause 10.
I apologise to members of the Committee for not mentioning that I have declared an interest in the Register of Members' Interests. The Under-Secretary may be confused by the word ''sponsor''. The clause states:
''A person who is in the course of business publishes a tobacco advertisement, or causes one to be published''.
The journalist is in such a position as a guest of a tobacco company. He would not be under sponsorship but, given that the provision covers an advertisement, it would suppress his freedom of speech.
I am struggling hard to follow examples of who is sponsoring whom and who is giving money to whom. Clauses 9 and 10 are clear about free distribution and sponsorship, so we will have a great opportunity to discuss what constitutes sponsorship—and what does not—when we reach those clauses. There is no question of journalists' freedom of speech being compromised as long as they are not being sponsored to advertise such products. There is a sensible distinction to be made between advertisements and journalism.
The hon. Member for Spelthorne asked what was meant by ''publish'' and he referred to an airline company. Again, I was not sure whether that was his real worry. A magazine is published. Someone published it. The hon. Gentleman's concern was more about the principal market, the location of the publication and whether it was in the United Kingdom, not the definition of ''publish''.
I was determined to put on the record a definition of ''publish''. Its meaning is not self evident. As the Under-Secretary knows, a range of activities are published. I return to the coach operator, coming in and going out. Does the act of bringing in something on the back seat of a coach constitute publishing in the United Kingdom? We need a definition.
Publication would be here, if the advertisement was shown to people who are here. If the advertisement were available in this country, it would have been published in this country. We have set out defences whether or not the principal market was in other countries and so on. If people brought back a magazine from their holidays in another country and it is lying around the house, surely it would be wrong to expect the company responsible for the advertisement to be penalised for it being in the United Kingdom. Other defences are set out in respect of the principal market. I look forward to having a sensible discussion about the airline industry. The publishing aspect is relatively straightforward. The Bill allows for electronic as well as print publication to anticipate changing technology.
The hon. Member for Wilshire mentioned an interesting issue: people who live here but carry on their business abroad. It is right that, if the business were carried on abroad and the publication of the tobacco advertisement took place abroad, legally, the fact that they lived in the United Kingdom would not mean that they were covered by the Bill. The Bill is about not where people live but the carrying on of business and the publication and distribution of tobacco advertisements. Someone who works for a company in the United States that publishes and distributes tobacco advertisements to the United States population but who lives in the UK and does that work online, for example, or travels to and fro to do it, has a right to do so. We are not penalising people's right to work in different parts of the world or to compete for business in other parts of the world. The Bill is designed to prevent the advertising of tobacco products to people in this country.
My hon. Friend the Member for North-West Leicestershire expressed concern about clause 2(4) and asked whether it created a loophole to exempt people who do not carry on business in the United Kingdom. We must all recognise that the internet and its international nature pose new questions and dilemmas.
We have jurisdiction over only this country. That causes difficulties in dealing with things that are available and legal in other countries but which can be accessed from this country using new technology. We have tried to set out extensively means to prevent that in as many ways as possible for those who carry
on business in this country, in whatever form in the chain.
The Bill is as comprehensive as possible, bearing in mind Parliament's jurisdiction. However, we must recognise that international issues are involved. That is why it is right to work on international agreements on the matter, why we need strongly to support progress in the European Union in setting out an EU-wide tobacco advertising ban, and why we must work with the World Health Organisation for a worldwide framework on tobacco control.
I pay tribute to the work that the Minister has done in the field so far. The key and residual thrust of my point, to which the debate on clause 7 may be relevant, relates to the phrase ''technological development'' when pre-existing, old-style, old-hat technology can be used by tobacco-promoting companies decamping abroad. Perhaps that phrase needs some attention, and perhaps I shall table an amendment before we have a chance to discuss it.
I shall be happy to discuss the issues surrounding clause 7 further. Clause 7 is aimed at new and developing technology. The issue is jurisdiction as much as technology. My hon. Friend is right to say that the technology already exists to obtain information and access to things abroad. The issue with which we are grappling in Committee and in Parliament is jurisdiction, where we can enforce laws and who we can enforce them over. That is why the e-commerce directive has emerged as a way of considering some of the broader issues surrounding the internet throughout Europe. We recognise that, in a world of rapidly developing technology, international issues can be an extremely important part of the lives of people in this country.
I hope that I have responded to the questions. The clause is important. Inevitably the debate has ranged around many later clauses, because, although the clause sets out the Bill's broad scope, many later clauses are essential in specifying defences and some further issues, for example, distribution.
I understand that publication would be in the United Kingdom if the advertisement is shown to passengers who are here. That includes part of British airspace, although there is the problem of enforcement, about which sensible decisions would have to be taken.
Yes, that is a good one.
The Minister rightly said that the clause creates wide-ranging offences. Given that the Bill will be on the statute book, it is right that they should range as widely as possible. However, it is also important that those offences are clearly defined, so that we know where we are going.
With regard to the phrase,
''in the course of a business'',
I followed the Minister a long way down the track, but I became seriously alarmed when she drew a distinction between the individual's right to free speech and a collective right—or lack of right—to free speech if one forms a business.
I wish the Minister to reflect on that, and to clarify whether she really meant what I understood her to be saying, which is that it is alright for me, as an individual, to have a right of free speech—that is what democracy is about—but that the moment that I build a business on the right to free speech, that right is taken away from me. If that is what the Government believe, we need to know that. We must have that out in the open once and for all. Putting aside all of the medical arguments, one reason why a group of people object to this legislation is not because they love smoking and tobacco, but because they see it as an assault on the rights to free speech. I think that I heard the Minister admit that that is right. If she has made that admission, we have made real progress this morning in showing why this is a dangerous Bill.
There are many sensible restrictions on free speech, such as incitement to do all sorts of different things that are undesirable to society and to individuals.
It is sensible to restrict the free speech to advocate smoking, which kills hundreds of thousands of people every year. I support that.
That is a fair point, but it does not address the point that I was making. It is possible to construct an argument that there should be a limitation on free speech with regard to tobacco advertising—the Government have done that several times. However, my concern is that the Bill introduces a differentiation with regard to the restriction on free speech: an individual has that right, but a group of people running a business do not. That is what I heard the Minister saying—that certain people can have the right and others cannot. I hope that the hon. Gentleman accepts that that cannot be fair, because I agree with him in principle.
There is a great difference between an individual who does not receive any financial reward saying, ''I think smoking is a sensible idea'' to his neighbour—that is not something that the law would intervene to prevent—and someone taking money to promote the sale of cigarettes, and getting people addicted to the dreadful habit of smoking.
That is the correct counter to my point, but I wish anyone who is listening to debate—or who thinks about it while reading the transcript—to ask themselves whether it is a proper response. Should one draw a distinction? I merely think that that is an interesting issue and that the Government have been exposed for sloppy thinking in the way that they approach the freedoms of the individual.
I was also concerned that the Minister said that it was permissible to put an ''I love smoking'' sign in the window—reference was made to Marlboro advertisements, although I cannot remember the details. Let us suppose that a commercially produced advertisement comes into my possession when I am abroad, which has never been published in the United Kingdom. Am I entitled to put it in my suitcase, bring it home and put it in the window? I think that the record will show that that is what the Minister suggested, which would surely create a loophole.
People who are not pursuing the course of their business but merely feel strongly about the issue, could distribute things to returning passengers at ferry ports such as Calais. There is a world of difference between me scrawling on a bit of paper, ''I love tobacco'' and putting it in the front window, and picking up a commercially produced advertisement in Calais, bringing it home and sticking it in the window because I feel so strongly that my civil rights are being abused by this legislation. I do not think that that is what the Minister meant, although that is what she suggested. I would welcome clarification.
In replying to the helpful interventions of my hon. Friend the Member for Taunton, the Minister said that she was ''struggling''. The hon. Lady is responsible for the Bill and has the support of as many civil servants as are necessary, the opportunity to study and discuss the Bill with experts and to take legal advice. If the person with the greatest expertise in the Room says that she is ''struggling'' to understand arguments that are being made, what will be the effect on businesses or in the courts?
We demonstrated earlier the serious issues surrounding the example of a journalist who writes, ''This event used to be sponsored by'' in the report of a course of business unrelated to tobacco advertising—whether or not the ticket was free is irrelevant. The Minister suggested that such an article would not constitute an advertisement. If that is so, I can understand why she would be struggling, because another loophole would be opened up. All the activity previously sponsored by tobacco companies could be referred back to as past events, and it would be an editorial rather than advertising matter. That must be cleared up because what stands in the record is another
invitation to people to use a loophole to get around the Government's intention.
I asked for a definition of ''published'', but I do not think the Committee got one, although we got quite close with ''shown to'' and ''available''. ''Available'' worries me. I am aware that that is a definition and the Minister has now suggested that ''being available to'' people in this country constitutes publication. That is a serious problem for later clauses in the Bill. We mentioned the aircraft example, in which someone has something in a back pocket that is not shown to anyone but is there just in case it is needed. If that is the definition of published, the anomalies, difficulties and so forth will be apparent when we debate later clauses.
In this debate, the Minister has said that common sense will have to apply in questions relating to British airspace—an admission that, if the current definitions are published, the legislation is likely to be unenforceable. I will not debate the defences available to people, as we will deal with them later.
I rather think that the Minister played into my argument when she suggested that where one lives does not matter. Another loophole would be created, because one could continue business in the United Kingdom for a person who lives somewhere else, and, because the wages and salaries of the company that employs one come from abroad, one would not be carrying on business in the UK. The Minister has created two sorts of people—those who do things for a British company and those who do things abroad. Knowing people's ingenuity, I can only say that, again, that will be an exploited loophole. As with each issue that I have raised on this clause stand part debate, the Government have compounded my worries rather than resolved them. When other people, especially lawyers, read the proceedings of this morning's debates, they will see opportunities for getting round the legislation.
I sincerely hope that the Minister will go away, have further discussions and come back on some of those matters on Report. Although I disagree with much in the clause, if the Government are determined to have their way, I hope that they will do so through provisions that are clear, concise and enforceable.
I shall try to detain the Committee for as little time as possible. I am touched by the concern that the hon. Member for Spelthorne has to try to oppose the entire Bill and the whole principle behind it yet also to close all its loopholes. If Opposition Members could make their points a little more consistent as well as a little clearer, I might struggle with them a little less.
Some people would like to prevent individuals not involved in any business voicing their views about tobacco and cigarettes in the interests of health. I do not think that we should do that. It is right to protect an individual's freedom of speech. However, I do think it right to prevent the tobacco industry using its profits to promote products that kill. That is why this Bill covers actions that take place
''in the course of a business''.
It is right that it should and right that we should distinguish between something that happens in the course of a business, which includes the impact of sponsorship and free distributions, and decisions that individuals make in the course of their private lives.
The issue, in terms of jurisdiction, is where publication takes place and where distribution takes place, not where individual private citizens live. It is right, perfectly consistent and abiding by the right moral principle, for us to make that distinction.
Question put and agreed to.
Clause 2 ordered to stand part of the Bill.