I beg to move amendment No. 37, in page 4, line 14, leave out subsection (2).
This is a probing amendment. It seeks clarification from the Government of the purpose of subsection (2). I am always suspicious when something that is not necessary has been popped into a Bill. The clause suggests that it is possible to control foreign businesses and foreign websites, yet under the subsection there are exceptions to that control and it states that the Bill will not apply to a foreign business or website. I was under the impression that we cannot legislate for foreigners outside our jurisdiction, so I became curious because such a provision was part of the clause. If may not be necessary to develop such a line of thought, but I wish to give the Minister a chance to explain the reason for the clause. It seems to be making an exception for something that we cannot control in the first place.
Clause 8(2) provides the same defence for displays as that provided under clause 2(4) for advertisements. It makes it clear that the Bill does not have extra-territorial jurisdiction. The hon. Member for Spelthorne is right that it is impossible to enforce an extra-territorial element, but it is also right that that should be stated clearly in the Bill.
That confirms my worst suspicions. The Minister said that we cannot control such people, so it is right to state that in the Bill. There are enough pages of legislation all over the place. We have necessary clauses to consider as it is, which affect the jurisdiction of England, Wales, Scotland and Northern Ireland. If we are to write into the Bill all the powers that it does not have, we will need a lorry to move it because it will be so vast. I understand the point that we cannot control people outside our jurisdiction. It was helpful of the Minister to admit the obvious, but we still have not got to the bottom of why it is considered necessary to admit the obvious. What is it about the clause that makes it necessary to say that it cannot do something that we all know it cannot do?
In these days of increased international access and trading through the internet, it is important for the clause to clarify that, for example, a Japanese tobacco company that has no presence in the United Kingdom, but which has a website that can be accessed by a person in this country, does not commit an offence in such circumstances. I have made the position extremely clear.
Mr. Wilshire: That is only a restatement of the obvious. We know perfectly well that a Japanese company cannot be held to account in the United Kingdom if it does not operate here. It does not get us far to continue with the circular argument— ''It's here because it's here, and because we all know that it's not necessary.'' The Government can waste their time talking about websites if they want to, but they could say, if they had the stupidity to do so, that it is a criminal offence to look at the internet. I sincerely hope that censorship will not be added to the long list of awful things that the Government do, but one never knows.
I hear what the Minister says. Clearly, however much I press her, we will not get a satisfactory answer on why the issue is considered worthy of inclusion. The record will show that the Government will not produce valid arguments for perfectly valid questions. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The amendment is on the same principle as amendment No. 37, to which my hon. Friend the Member for Spelthorne spoke. There is great confusion in the clause, not least in subsection (4), which amendment No. 27 would omit. Amendment No. 38 would make a small change to subsection (3) to add force to it. Under the amendment, the regulations ''must'' give
''the meaning of 'place' in subsection (1).''
Greater clarity is required in the clause because it deals with the thorny issue of what is a display and what is an advert. I am keen to get a better definition of those words from the Minister, because they are certainly not clear from the wording of the clause or the explanatory notes that go with it. I understand that it is her own clause, which was in the Bill in the previous Parliament. The purpose of the clause should be to distinguish between a legitimate and a promotional display, but I do not think that it does so. The Select Committee had something to say about subsection (4) in its report. It stated:
''The puzzle is made more difficult by subsection (4), which provides that 'The regulations must make provision for a display which also amounts to an advertisement to be treated . . .' as one or other but not both. Presumably this is because if regulations were to be made under clause 8(1) there would be a risk that a display of cigarette packets set out to spell, say, Camel'', or Marlboro, for want of a better brand,
''would constitute both an offence under clause 2 and an offence under clause 8.''
Indeed, and one to which the Select Committee quite rightly drew our attention. The clause is an unnecessarily complex piece of drafting. Obviously, we have to know which sort of adverts, or set-ups, should be treated as displays, and which as
advertisements. I have no difficulty with the idea that certain sorts of display should be treated as advertisements for the purposes of the Bill, or that regulations should be framed to define the circumstances in which that will happen. We do not dispute that. However, I do not understand why we need to complicate matters by going further.
Surely, any display-cum-advertisement that cannot be categorised as an advertisement must, ipso facto, be a display. However, I have considered the wording carefully, and it does not appear that that is the result that has rather pedantically been achieved. It is particularly interesting that the clause admits the possibility that certain sorts of advertisement should not be treated as such for the purposes of the Bill. We agree with that. When we discuss the clause that deals with brand sharing, we will argue for explicit recognition that the use of a company's name and logo on its own stationery should not be treated as an advertisement even though, strictly speaking, it is exactly that. The clause envisages the framing of the definition of particular types of advertisements that should not be treated as such under the Bill. That is the very thing that we were told that legislation should not attempt to do.
The Bill enters complex territory when defining terms, or rather—as we have seen on many occasions—passes the buck for defining them. It appears that, yet again, the Minister is happy for the matter to be resolved by challenge in the courts at a later stage. Our proposals are probing amendments, because we are leaving a confused situation about when a display is an advertisement and when it is not.
Given that the clause is the Minister's own, I ask that the definition be made tighter. Otherwise, we are at liberty to strike out subsection (4), which reads as complete nonsense, and introduce a requirement rather firmer than the use of the word ''may'' under subsection (3). In previous Committees, the use of the words ''may'' and ''must'' has been a thorny subject, and we will not discuss the semantics of the particular term in any detail, other than to say that it needs to be beefed up so that ''place'' must be defined in subsection (1). I await the Minister's response with interest because I am completely confused by the clause, as I think most people are. That is why I am proposing the two amendments.
Ever the one to try to be helpful, perhaps I can add to the Minister's list of questions to answer. Never let it be said that I am not prepared to learn and be reasonable.
My hon. Friend was not as anxious about the use of the words ''may'' and ''must'' as I had hoped he would be. It is easy to say that any debate about whether ''may'' or ''must'' is used is somewhat pedantic. However, the whole issue of the contents of a Bill is one of pedantry, because someone somewhere will have deliberately chosen the word ''may''. Some thought will have been given to its use, and I should be grateful if the Minister would tell us why that particular word was used. Subsection (3) states:
''The regulations may, in particular, provide for the meaning of 'place' in subsection (1).''
The phrase ''in particular'' suggests that someone somewhere has said, ''Oh dear, there is a possible loophole if we use the word 'place'''. That there could be some difficulty with the word has clearly been a matter of debate, discussion and anxiety among parliamentary draftsmen and lawyers, otherwise the subsection would not exist. It is possible that I have misunderstood the subsection and that the Minister will tell us why—other than the fact that the address is a genuine issue—it has been included. If there is another reason, I would like to hear it. We would then have another provision that really was not necessary. Nevertheless, I am prepared to concede that it has been decided that subsection (3) is necessary, particularly in respect of the word ''place''.
What is the problem? Why is someone worried? If there is a difficulty, it must—not may—be solved. It is no use saying, ''It may please our fancy to sort the problem out, or it may not. It depends on how we feel about it on the day.'' If there is a real issue, it must be dealt with. The difference between ''may'' and ''must'' is important. If a provision may do something, why say so? We have the freedom to make regulations and that is what our debate is all about. We can say ''must'' if we want. Will the Minister tell us why ''must'' is not appropriate and the reasons for the inclusion of subsection (4)?
Amendment No. 27 raises another issue over and above those raised by my hon. Friend the Member for East Worthing and Shoreham. Subsection (4) provides that the regulations can, in effect, create offences. It is objectionable for all the reasons given by my hon. Friend as well as the idea that, yet again, we can hand to a Minister the power—by regulation, not legislation—to create brand new offences concerning the issue of displays and advertisements.
The longer we consider the Bill, the clearer it becomes that the Government want enabling powers. They want Parliament to hand them the permission to do much as they please and come up with whatever definition they feel like. They may do this or they may do that. If they have not got their defences or the burden of proof requirements right, they will change them when they get round to it. Subsection (4) is another example of the Government trying to take power away from Parliament and saying, ''We won't bother to discuss it.''
By firming up ''may'' into ''must'' and reducing the flexibility of Governments, does the hon. Gentleman not turn a sensible approach to law enforcement into the jackboots to which he earlier referred?
I will add to the list of being naive, being a bit slow. I cannot see how that argument applies. Exactly the opposite is the case. Perhaps I misunderstand the hon. Gentleman and he will have another go at persuading me that I am missing something. By removing flexibility, one ties the laces of the jackboots together so that they cannot be used.
The hon. Gentleman shakes his head, but I do not see his point. I am willing to be educated, but the essence of clarity is to remove the opportunity for wriggling, changing things, overruling Parliament and overruling the rule of law. If nothing else, the rule of law depends on clarity and inflexibility. I thought Parliament existed to create the law and to change it if necessary. In this instance, the rule of law and the supremacy of Parliament are being replaced by the diktat and whim of a temporary Secretary of State of whatever political party. If my party proposed that, I hope that I would have the sense to say the self same thing.
The clause is not right. It offers opportunities to do the opposite of what the hon. Member for North-West Leicestershire suggests. I am sorry about that. If he will not intervene now, perhaps we might continue the conversation afterwards. I am prepared to admit that I am wrong, but I think that that is unlikely.
On amendment No. 27, it is strange that the Government want regulations that will create offences. Subsection (4) is unnecessary because (4)(a) says that something must be either an advert or a display—that item A is not item B. Then—surprise, surprise—subsection (4)(b) says that item B is not item A. Why do the Government need to say what is so self-evident?
The regulation-making power set out in clause 8 is not a power that we are planning to use, but a reserved power to prevent abuse such as displaying packs of cigarettes all over a model of a Formula 1 car or in the shape of a teddy bear. I do not envisage the regulations being needed. That is why last year's original draft did not include the provision. However, there was some anxiety that there might become a loophole, which is why the clause has been introduced.
I will deal with the amendments in reverse order. If such regulations were needed, clause 8(4) would be essential, because we will have set out regulations on advertising at point of sale under clause 4(3). Those regulations will set out restrictions and define what might be permitted with regard to advertising at the point of sale. However, if new regulations are also introduced to cover display, there might be some overlapping areas; some things could be covered by both sets of regulations. Some things would clearly be advertisements at the point of sale rather than displays, such as signs. Other things would clearly be displays rather than advertisements, such as rows of cigarette packets set out in a gantry. However, it is conceivable that some things will be both, such as a Marlboro packet in a gantry in the shape of an M, or a Silk Cut packet displayed on a piece of slashed silk.
Where there is potential for some things to be both an advertisement and a display, it will not matter if no regulations are in force with regard to displays—if we have not exercised that power under clause 8—because they will be covered under the broader terms of the Bill with regard to advertising at the point of sale. However, if the power under clause 8 has been executed, two sets of regulations will potentially be in place, and it will be important for enforcement officers and traders to know in which circumstances the
regulations under clause 8 apply, and in which circumstances the regulations under clause 4(3) apply. That is why subsection (4) is an essential part of clause 8.
I turn to the issue about clause 8(3) and the meaning of the words ''may'' and ''must''. Clause 8(3) has been included to ensure that it is possible for regulations to define what a ''place'' might be, if that is needed, but it would be wrong to say that the regulations must provide for the meaning of ''place''. Whether to provide that meaning would be the right way forward would depend on the nature of the abuse or problem that the regulations were attempting to solve. For example, it is conceivable that the regulations will simply be about issues on a website, and will not refer to place, or that the draftsmen felt that it was not necessary to provide for the meaning of ''place'' to cover the abuses that were being described. However, it might be the case that it was thought to be extremely important to pin down the meaning of ''place'' to rule out some places and to rule in others. Therefore, it is necessary both to have that kind of flexibility and to retain the subsection. That is why the Government oppose amendments Nos. 38 and 27.
The Minister has not addressed my concerns about ''may'' and ''must''. She has merely restated the obvious yet again. Why pick on ''place''? If the Minister would only answer our questions, we would make much more progress, because we would not have to try to wring information out of her.
Clause 8 states:
''A person who in the course of a business displays or causes to be displayed tobacco products or their prices in a place or on a website''.
The regulations can address any of that. Why is it not stated that thes regulations can come up with a definition of ''business displays'', or ''cause to be displayed'', or ''tobacco products'', or ''prices'', or ''website''? The regulations could cover those words in the clause as equally as the word ''place''. All other words are not deemed to be worthy of mention, but the Minister made it clear that the regulations will cover all other words, although that is not mentioned. Clearly, the Bill will enable the regulations to cover the words although they are not spelt out as being covered. However, as ''place'' is singled out for special mention, it must be more important than the other words and the cause of more concern. If the word is singled out, surely it must, rather than may, be defined by the regulations because all the other words can be defined.
We were told that the provision is in the Bill to allow a reference to ''place'', but we have not been told why ''place'' has been singled out. I shall ask the question again. Why is it necessary to single out ''place''? What is so important and worrying about that word? If there is an answer to that question, surely it follows that ''place'' must be defined in order to address the worry. Otherwise it could be unmentioned in the same way as the other words.
The hon. Gentleman's point seems to be that either one must do something, or one should not do it at all. The logic behind that is unclear. The
provision is designed to ensure that the right flexibility is present to address problems that the regulations might resolve.
An example of the use of ''place'' is to specify a place where tobacco is sold within a larger shop. There may be a desire to examine displays in a particular place. It is correct that there is flexibility for that, but we should not pin it down at this stage.
I have made it abundantly clear that we do not anticipate using the regulation-making power. We have not identified a current problem that we want to get rid of. If there were a specific problem, the Bill would cover it or we would say that we shall definitely introduce the regulation-making power. The power is reserved, and because it is reserved it is right that there should be sufficient flexibility.
Yet again, the Minister has resorted to saying that the Government do not intend to use the reserved powers, but they will put them in the Bill just in case. She failed to convince Opposition Members why the powers are required, why the word ''place'' has been singled out and why we should have a dual system. That heaps confusion on confusion. As we consider each clause, the Government's intention becomes less clear, as does how the powers will be used, if at all, and how the poor, unsuspecting retailer of tobacco products will know how to respond. If the
Committee is confused about what the provisions mean, how on earth will people who make a living from tobacco sales cope?
I apologise to my hon. Friend the Member for Spelthorne if I appeared to downplay the importance of replacing ''may'' with ''must''. That comes after many months serving on the Standing Committee that considered the Adoption and Children Bill. We considered so many such amendments that it became commonplace to go through the motions before they were tossed aside. I am not trying to diminish the importance of the replacement of the words in the clause, but I am war weary of other Ministers' responses to such amendments.
If we examine subsection (4), which states that the regulations ''must'', rather than ''may'', we notice the stark and distinct contrast between subsections (3) and (4). I agree completely with the points made by my hon. Friend the Member for Spelthorne about the importance of inserting ''must'' instead of the rather weaker ''may'' in subsection (3).
I was completely nonplussed by the welcome standing comment by the hon. Member for North-West Leicestershire. He completely contradicted himself, which my hon. Friend the Member for Spelthorne picked up.
It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Four o'clock.