Clause 3 - Advertising: newspapers, periodicals etc

Tobacco Advertising and Promotion Bill [Lords] – in a Public Bill Committee at 2:30 pm on 9 May 2002.

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Question proposed [this day], That the clause stand part of the Bill.

Question again proposed.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I welcome you to what is turning out to be an absolutely riveting, thought-provoking and—I hasten to add—one-sided debate, Mr. Pike. We have tried our level best to engage Government Members in discussion but we have not been too successful. Perhaps they will catch your eye, which will help to spread the debate.

As I was saying when I was unceremoniously stopped this morning, two issues must be addressed. First, there is the question of whether a named proprietor would be a person, a limited company or the directors of a company.

I was stopped when I was moving on to my second worry, which is the definition of an editor. One or two people have been keen to say that asking for definitions is nit-picking, but in this case it is not. As the media industry has developed, the concept of editor has changed, as has the job title of people whom we may historically consider to be the editor. In this day and age, if we hauled the editor of the Daily Express to the Bar of the House, we would have to decide which editor to haul. It would be helpful if the Minister would give us a definition of the person who will be caught under the clause. Given that the Government will have their way, I am more than prepared to join in a sensible discussion about getting the provision right—that is the spirit in which I raise my query.

We all know from our constituency experience that people are called group editors or editors-in-chief, and that other job titles are developing. In order to avoid doubt, the Minister may need to reflect on that and get back to us on Report to broaden the use of the word ''editor''. It is tempting to say that an editor is self-evidently the editor, and that that is as broad as the issue gets. However, I hope that after the Minister reflects on job titles such as group editor and editor-in-chief, she will decide that there is a lack of clarity in the Bill that could be put right.

There is a potential booby trap in going down that route. If one starts to define types of editor, one is in great danger of catching sub-editors. If the word ''editor'' is intended to cover anyone who has the word ''editor'' in their job description, the wonderful venerable subbies, who are anything but the editors of a paper, could be caught. I suspect that the Minister

would not want such people to be held responsible for the publication of a magazine or a newspaper.

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

I, too, welcome you, Mr. Pike, to the Chair this afternoon.

The clause makes it clear that in the case of press advertising, anyone in the chain from commissioning to selling an offending publication could be guilty of an offence. Such people could include proprietors, editors and employees of advertising agencies. We set out a special clause on press advertising because given the number of people who might be involved in the chain between commissioning a tobacco advertisement and selling a publication, it is important that the Bill provides further clarity.

Clause 5 provides for defences if a person did not know and had no reason to suspect, and subsection (6), in particular, provides a defence for a person charged under clause 3(c). The defences make it clear that, under such circumstances, a person is not expected to take responsibility.

The proprietor is the owner of the publication—for example, Associated Newspapers or the Telegraph Group Ltd. The editor is the person who is ultimately responsible for editing and deciding on the content of the publication. I appreciate that in the world of job title inflation, people can use many different titles, but the Bill is about those who are responsible given the traditional meaning of the word ''editor''.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I understand what the Minister is saying, but would she care to reflect upon the arrangements that are ever more commonly made by newspapers? For example, a newspaper with a range of editions may have a group editor who is responsible for the common parts and a local editor who is responsible for the specific parts in an edition. Under those circumstances, there is no one person who is ultimately responsible—at an editorial level—for the entire content of the publication. That is the type of point on which I want the Minister to reflect.

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

That is exactly why it is right to retain the existing wording in the clause. Of course, individual papers or magazines may make their own arrangements about different lines of accountability, but individual cases will have to be judged on their own merits. The wording is sufficient.

The hon. Member for East Worthing and Shoreham (Tim Loughton) asked about the meaning of ''procure''. According to the dictionary, it means to obtain, to take care of, to contrive, to bring about especially by care or with effort. To procure the inclusion of an advertisement applies to the person responsible for an advertisement being published, whether he works for the advertising agency or whether he is an individual who is acting on behalf of the publication. That seems relatively straightforward.

I apologise if I have missed some of the points that were raised before the break in the stand part debate, but I have responded to all matters about which I have notes.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I do not rise to say that the Minister has overlooked any of the points that were raised, as I think that she has covered them, but I do not think that we should be satisfied by the response given to at least two of the issues that I raised. That proprietor means a limited company was the answer that I expected to hear. What I did not hear is whether the Minister believes that individual directors of a company should in any way bear personal responsibility. The penalties proposed under clause 16 would not be particularly onerous for a multinational media company. It could be tempting for a company, if the directors were not being held to account, to say that it did not really mind paying the penalties. We could find ourselves in a situation similar to that which resulted from the old Shops Acts, under which Sunday trading could be flouted because an owner could pay the fine and trade again on the following Sunday. I am worried that such a situation could recur.

It seems that there are two ways to remedy the problem. One would be to revisit penalties when we debate clause 16, but we would find that there are disproportionate penalties at the individual level. I urge the Minister to reflect upon the matter. If we are to improve poor legislation, we must plug every loophole that we can find.

I was also concerned about the answer to the question, who is the editor? The Minister is making a habit of saying that everything depends on the circumstances at the time; she used the phrase ''judged on its own merits.'' I do not subscribe to the view that we should pass simplistic legislation in this place, and then sit back and say, ''Ah well, let the courts decide.'' Clarity is cheaper than vagueness, because simplistic legislation leads to lawyers being asked to take matters through the courts, thereby making a lot of money out of our vagueness and unwillingness to address obvious issues.

This is an obvious issue, and it is easy to put it right. It would not be difficult for a parliamentary draftsman to get his or her mind around tightening the definition of ''editor''. In this legislation and in these debates, we keep using words that increasingly belong to a past generation. The printing and advertising trades, and the media in general, have moved on a lot since a range of legislation was written only 10 or 20 years ago—we are not talking about 19th century legislation. The Committee—or the House—should improve the legislation, in the interests of keeping solicitors' bank balances slightly smaller than they otherwise would be, although I hate to say that because, as I have mentioned, my son is a barrister, and he does not like me trying to keep his salary down by improving legislation.

I should like the Minister to indicate that she will take account of what has been said this afternoon and, if necessary, return to it on Report.

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

I still see no problem with the word ''editor''. The hon. Gentleman has decided that there is a simple way to solve the problem that is taxing his mind, but he has not tabled an amendment that addresses it, so there is not an obvious solution.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I am sorry if I suggested that there might be a simple solution to this problem. I have not tabled an amendment because it is not a simple matter; it is very complicated. I am not a lawyer, but the Minister has at her disposal civil servants and parliamentary draftsmen who have better brains than me and much experience, and because it is a complicated matter, I want her to go away and talk to those experts to see if we can find an answer to that difficult problem.

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

I do not accept that it is a complicated matter. It is right that the editor should be responsible. If there is a matter of fact to be determined in an individual case as to who has ultimate responsibility for determining and sanctioning the content of a particular publication, it is right that that matter of fact should be determined by the court. However, the Bill also makes it clear that the editor, along with others, must take responsibility for what gets printed in their publication.

Directors are not normally liable; the limited company is liable. However, clause 18 allows proceedings against directors if the offence is due to consent, connivance or neglect. We will have an opportunity to discuss that further, when we come to discuss that clause, if hon. Members have concerns about it.

Photo of David Ruffley David Ruffley Conservative, Bury St Edmunds

I seek clarification of the Government's thinking with regard to the use of the phrase,

''in the course of a business''.

I can think of at least two examples where the evil—if it can be called that—that the Bill seeks to outlaw might be perpetrated. Imagine if a tobacco factory in Nottingham—I know that there are tobacco factories there—were to experience a fall-off in sales of its product as a result of the Bill and had to shed jobs. As a result of that threat, the work-force convenor might say, ''I am going to put out a newsletter and advertise the wonderful brand of cigarettes that my work force produce. We are going to say 'buy these cigarettes and save jobs in your local factory.'''

Given that the thrust of the Bill is to stop the advertising of tobacco products, would it be lawful if a member of the work force were, in his or her private capacity, to put that message not on a company letterhead but in a local residents' newsletter sent to the streets around the tobacco factory? On the face of it, it appears that it would be lawful. I do not think that such freelance activity would be determined as falling

''in the course of a business'',

as it says in the clause. Does not the Minister think that that is a quite extraordinary loophole?

My second example, which is less powerful, but I shall rehearse it none the less—[Interruption.] If muttering Labour Members do not think that my first example was a possibility, perhaps they could adduce evidence as to why not. It was a perfectly feasible scenario to outline. I am just seeking enlightenment from the Minister—who has been very

helpful thus far, on which I congratulate her—as to why the Bill does not outlaw such activity. That seems a perfectly fair question.

Suppose that some university students, who produce a non-profit-making newsletter and are ideologically minded and of a libertarian cast of mind, see the Bill and find it offensive for ideological reasons, and want to strike a blow for the freedom of manufacturers to advertise a product that is not illegal; it is not unlawful to smoke cigarettes. Such a newsletter might then be disseminated across the city of Birmingham or, more likely, somewhere like St. Andrews. Is the Minister comfortable allowing something like that to slip through the net that the Bill attempts to cast over advertising?

Those are two clear loopholes that the words

''in the course of a business''

allow to come into being. I wonder whether the Minister would put my mind at rest by briefly rehearsing why that phrase was drafted. Why are there not more prohibitions in order effectively to deny opportunities for the creation of loopholes? I must say that my first example is better than my second.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health 2:45, 9 May 2002

The hon. Gentleman is obviously desperate to find loopholes for us to close, and I appreciate his concern. Ultimately, such issues will be matters of fact for the courts to decide on, but the key test is whether people produce such newsletters

''in the course of a business''.

If they produce them in an organised way, the courts may well decide to interpret that as being in the course of a business. However, purely day-to-day conversation might not be in the course of a business, and might not be an advertisement, either.

Those will be the tests: whether it is an advertisement, in the normal understanding of that word, and whether it is produced in the course of a business. The other issue will be whether the producers are effectively sponsored to do so—that is, even if they are not doing it themselves in the course of their own business, whether they are effectively being sponsored by the tobacco industry for which they work, for example, and have a sponsorship agreement.

The second issue relating to not-for-profit student publications involves issues surrounding journalism. An advertisement is one thing. A piece of journalism, whether written by a student or someone else, would not be covered in the same way—unless the person involved were paid or received free distribution or sponsorship to write the article.

Ultimately, a judgment will be made. Some people would like anything that promotes tobacco products to be banned. We have made a decision to ban advertising in the course of a business and to allow free speech and discussion about the merits and health risks of smoking and of different tobacco products—when that is not done in the course of a business and when it does not constitute an advertisement.

That is right, because ultimately the purpose of a tobacco advertising ban is to protect people who want to give up smoking and children, who should not be bombarded by tobacco advertising. That is the

fundamental principle behind the Bill, and it is consistent.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.