Clause 7 - Developments in technology

Tobacco Advertising and Promotion Bill [Lords] – in a Public Bill Committee at 11:45 am on 14 May 2002.

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Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 11:45, 14 May 2002

I beg to move amendment No. 34, in page 4, line 5, at beginning insert 'From 1st January 2007'.

I wish to speak only briefly to the amendment because I hope to raise a wider issue under the clause stand part debate. The clause is one of the most far-reaching, so-called Henry VIII clauses that I have read. It provides that if the Secretary of State chooses so to do on whatever whim may have affected his

judgment on the day, he can change just about everything in the Bill that relates to advances in technology by electronic means. We want some definitions from the Minister of exactly what those changes may be. ''Electronic means'' covers an enormous range of current and likely developments.

The amendment would at least give some breathing space to what will become law. The Government are looking to bring in some of the legislation applying to advertisements two months after Royal Assent. That could well be before the end of 2002, so it seems only right that they should have set down something that will be appropriate for at least a good few years to come. Albeit that we have severe reservations about other matters that are not properly qualified or defined under the Bill, there should at least be a four-year run before the Secretary of State can don his Henry VIII cap and, on a whim owing to a development in e-technology, change everything. That is only reasonable.

We shall want to scrutinise other parts of the Bill, given that the Government want special dispensations for the advertising promotion ban and the sponsorship ban not to apply to certain sports until a later date. It is reasonable therefore that the Secretary of State should limit himself to dealing with what we have passed into law for at least the next four years, rather than suddenly deciding because of a development in e-technology—of which he may or may not now be aware—to bring in more strenuous regulations. We want there to be some leeway so that the Bill can bed in. If the Government have not prepared it for the next four years, the Bill is not worth the paper on which it is written. We should add that rider to the Bill, unhappy though we are with the entire clause, the reasons for which we shall advance in the clause stand part debate.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

It is unfortunate that the procedures of the House of Commons require amendments always to be considered before the general principle of the clause. However, I understand why, and such is life. I should prefer to start the debate by discussing the general principles of what I consider to be a bad clause. If it can be removed, so much the better. I doubt whether we shall win that argument, but we shall give it a whirl. Having established the principle that the Government are determined to have a Henry VIII clause, it would have been better to discuss first whether we can control it.

Photo of Mr Peter Pike Mr Peter Pike Labour, Burnley

Order. Even on an amendment such as this, the Chair has the discretion to allow a relatively wide-ranging debate. However, if that happens, there will be no stand part debate.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I have no wish for a clause stand part debate, Mr. Winterton. I would rather stick to the issue that we are raising. If the Government are determined to approach the matter in this way, a period of four years would take us beyond the next general election, when we shall have got rid of this shower and will have a sensible Government in place, and will have no temptation to use the proposed powers.

Nevertheless, unless there is a period during which these draconian and dictatorial powers can be used, we might as well not consider the Bill, because whatever we put in it, everything can be changed the day after it comes into effect. What is the point of the Government putting on record safeguards, good intentions and reassurances when we are being asked subsequently to consider that the following day it can all change, because, or so is the excuse, of changes in technology? Such changes do not even have to be changes of which the Minister was unaware at the time. On the narrow point, if the clause stands, a proviso or safeguard should be provided, and I would support the amendment tabled by my hon. Friend the Member for East Worthing and Shoreham.

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

This is an aspect of regulation that we have no current intention of using to the extent that we have no insight of developments in technology that would make such regulations necessary. However, it is right to retain the powers in case a new development in technology makes them appropriate, either because it creates a loophole that allows greater tobacco advertising, or because a new defence should be introduced for people who might not be covered by the Bill but might fairly be caught or who should not be penalised by the Bill and otherwise might be.

Given the pace of technology, it is right to have the clause. I have no insights into what might take place before or after 1 January 2007. The Bill has been designed to effect a comprehensive ban and to take on board as much as possible in anticipating future developments in technology, but that is not easy. Who would have thought just a few years ago that people would be sending one another text messages all the time and that advertising could take place through text messages to mobile phones? Many developments in technology are not anticipated five, four or even three years beforehand. It is therefore right to have such flexibility and to include the clause. We cannot anticipate how it might be used or whether there might be any need to use it, but it is important to retain the powers.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The Minister's response that the clause is an in-case provision that there are no plans to use is never a good enough defence, because it gives the Secretary of State far too many powers by regulation that go well beyond the matter under discussion. The reason that we alighted on 1 January 2007 is probably as arbitrary as the reason that the Government alighted on the figure of 50 per cent. of sales in the previous clause. However, it is a good starting point, and the Government have not justified why there should be no four-year bedding-in period. So many other clauses give power by regulation to clamp down on various things in the event of further developments that to include an overriding Henry VIII clause here, too, is wholly arbitrary. I will not labour the point, because it was an introductory foot-in-the-door

amendment and I prefer to have a fuller discussion on the stand part debate. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Photo of Mr Andrew Hunter Mr Andrew Hunter Conservative, Basingstoke 12:00, 14 May 2002

We are seriously worried about the purpose, effect and underlying principle of clause 7. We want to challenge the provision during our short debate and there are two or three points that I want to put to the Minister.

The first can be dealt with in a few seconds and is not our major concern. As the Minister will recall, when the Bill was debated in the previous Parliament, the Government said that it was ground breaking because it made specific provision to tackle internet advertising. We do not quarrel with that principle because, clearly, a ban on tobacco advertising must cater for internet tobacco advertising. It is right that the Bill should cover electronic publishing and distribution, as does the draft European directive that is being considered by the Council and the European Parliament.

Our point is that it is also important that the Bill is couched in terms that are fully consistent with the e-commerce directive 2000/31/EC and with the way that the directive will be transposed by regulation in United Kingdom law. We seek from the Minister an assurance or confirmation that the Department of Trade and Industry is satisfied that the terms of the Bill are fully consistent with the e-commerce directive.

The second point is more substantive. Under clauses 2, 3, 4 and 5 there are provisions—either specifically or generally—on the publication, distribution and transmission of tobacco advertisements by electronic means. The Bill mentions the internet, but only by way of an example in clause 21. As that clause makes clear, the Bill applies not only to the internet, but to any or all electronic means of publishing and distributing.

That is why we find clause 7 so puzzling. When considered carefully, it becomes evident that the clause is largely redundant, because its provisions are covered elsewhere in the Bill. As my hon. Friend the Member for East Worthing and Shoreham mentioned, it enables the Secretary of State by order to amend any provision of the Bill that he considers appropriate as a result of any developments in technology relating to publishing and distributing via electronic means.

As I pointed out, the clause is effectively made redundant by the existence of clause 21, which decrees

''references to publishing include any means of publishing (and include, in particular, publishing by any electronic means''.

That covers the ground that clause 7 covers. Other aspects of internet advertising are also covered. The references that I am about to make apply not only to the internet, but to any form of electronic communication. Clause 2(3) deals with distributing, which

''includes transmitting . . . in electronic form''.

Clauses 2(4) and 4(3) mention websites. Clause 4(1)(c) mentions the

''internet version of . . . a publication'' whose principal market is not the United Kingdom. The explanatory notes mention that clause 3

''applies where publication is by electronic means.''

All the provisions in clause 7 are to be found elsewhere in the Bill, so the clause is clearly not essential. That begs the question: why have the Government included the clause in the Bill? The explanation, given by Lord Filkin in the House of Lords, is that

''the pace of technological change makes it very difficult to predict what new means of publishing or distributing may emerge . . . I believe it is clear that technology is moving so fast that it is almost certain that new things will occur in the future that we cannot foresee now. Thus, if we did not have such a clause, the Act would rapidly become obsolete.''—[Official Report, House of Lords, 18 January 2002; Vol. 630, c. 1250.]

That answer, reflected in the Minister's words earlier, simply does not convince. How can the Bill become obsolete when it already bans the use of any electronic means? There can be no electronic means, either now or as a result of technological developments in the future, that will not be covered by the Bill. The Government admitted that in so many words in the other place, as is shown in columns 1250 and 1251 of the House of Lords Hansard of 18 January, volume 630. Yet the Government persist in using the line that we have just heard the Minister deploy. The Bill already prohibits tobacco advertisements that are published or distributed by any electronic means. Even if there were new developments, the prohibitions in the Bill would embrace them and clause 7 would still be redundant.

The clause enables the Secretary of State to

''amend any provision of this Act'' should there be such technological developments. If all those electronic means are covered by the advertising ban, what conditions might the Secretary of State wish to amend? We look to the Minister for guidance. I hope that she will make it clear that she does not think that the Secretary of State will wish to change the provisions on defences and burden of proof in clause 17, the enforcement provisions in clause 13, the powers of entry and seizure in clause 14, or the penalties in clause 16.

The Bill creates serious criminal offences. Surely it is not appropriate to give the Secretary of State the power to change offences, defences, enforcement powers or penalties by order. Opposition Members feel strongly that, even though affirmative procedure applies, the clause goes far too far in giving power to the Secretary of State, as does clause 19. I ask the Minister to deal with that matter and to explain why the clause is needed. In what circumstances does the Minister envisage a Secretary of State using the additional powers?

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

The clause recognises that technology moves fast. We already know that we are dealing not with billboards, but with the internet, e-mail, faxes and text messages. Who knows what may

happen in the future? We are concerned that loopholes may arise from the development of new technology. Although I cannot imagine what would not be covered, we cannot predict what developments may take place.

We may also need to introduce new defences. It is worth considering the development of the Bill. Clause 5 (5)(b) includes a defence for those engaged in electronic transmission. It states

''it was not reasonably practicable for him to prevent its further distribution''.

That defence is in place because of the particular circumstances and concerns of those involved in electronic transmission. Five years ago, the defence may not have been in the Bill. Technology has moved on quickly and, because we recognise the particular circumstances, the defence is included in the Bill.

It is conceivable that new technology may bring a new player who needs a special defence into the scope of the Bill. I cannot tell the hon. Member for Basingstoke that the clause will not be used to cover defences, because it may need to. I cannot foresee any further developments, loopholes or essential defences that may be needed, but it is right to allow for the possibility of the development of technology. The clause states:

''in consequence of any developments in technology''.

Entirely unanticipated loopholes may emerge and unanticipated defences may be needed.

The House of Lords Select Committee on Delegated Powers and Deregulation considered the clause in detail. It stated:

''The Committee consider that the limited scope of the power and the provision of affirmative procedure make it acceptable''.

The clause has been scrutinised and will apply only in the case of technology relating to publishing or distribution by electronic means. Given the importance to public health of banning tobacco advertising, it is right that we retain flexibility in the Act.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

That will not do. Clause 7 gives the most sweeping powers possible to a Secretary of State who, by order, may do just as he pleases, without any reference back to Parliament for primary legislation. On that point alone, the clause should not be in the Bill. As a matter of principle, it is wrong to hand out totally arbitrary powers to someone who can then behave like a dictator. Past practice has been that, if circumstances change and one wants to approach a problem in a different way, one returns to Parliament for parliamentary approval by way of legislation. That is what parliamentary democracy is all about.

The Bill is not a special case and the argument about technology moving fast does not apply. Technology affects everything, not only the tobacco advertising industry. If the Government are allowed to get away with using that argument in this Bill, a principle will be established. They will be able to say, ''Every time we have an Act of Parliament, we will take powers to change it whenever the fancy takes us''. I do not wish to live in that sort of parliamentary democracy.

The Government must face up to a serious, fundamental point. If they are prepared to ride roughshod over parliamentary democracy, the world should be aware of what they are doing—it should be exposed. As a matter of principle, clause 7 is very objectionable indeed.

To pursue the line of thought taken by my hon. Friend the Member for Basingstoke, even if the Government are determined to act like dictators and stamp their jackboots all over Parliament, they should be consistent.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

Does the hon. Gentleman want any more cliches?

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I will work on more cliches, if the hon. Gentleman would like me to do so. I will happily give way to him so that he can suggest some to me, as I am always eager to learn. However, it appears that he cannot suggest any more.

Photo of Mr Peter Pike Mr Peter Pike Labour, Burnley

Order. I frown on sedentary interventions, as they interrupt the flow of debate.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

Thank you, Mr. Winterton. I was just hoping that I might learn something.

If the Government go down this route, they must get things right. It has been pronounced that this clause deals with the internet in a ground-breaking way. However, it has nothing directly to do with the internet. It is content to deal with ''electronic means'' and, as my hon. Friend the Member for Basingstoke demonstrated, that goes far wider than just the use of the internet. Therefore, the Bill cannot even get things right when it wants to take dictatorial powers.

The Minister said that technology moves fast, but we are not talking about technology and this is where the next confusion arises. We are talking about electronic technology and, therefore, to assert that this is all about technology moving fast, is to admit that the wording of clause 7 is wrong. If the clause was about technology moving fast it would refer to changes in technology, but it specifically refers to ''electronic means.''

Reference has been made to what the noble Lord Filkin had to say about this matter in another place, but something interesting that he said was not quoted. Lord Lucas asked whether it was possible for there to be some means of transmitting this sort of information—these sorts of adverts—that does not have an electronic component. This was Lord Filkin's response:

''The clause is specific on 'electronic', but even if he is right, as regards 'optical and other means', it is unlikely that there is not some electronic part of such a process that makes it relevant.''—[Official Report, House of Lords, 18 January 2002; Vol. 631, c. 1250-51.]

In an attempt to justify sloppy draftsmanship, Lord Filkin has offered an insight into the future, by saying that it is impossible that there will be any technology that does not involve some sort of electronic means. I imagine that history is littered with idiots who have made statements about what the future will never hold, only to discover that it held exactly that.

I want the Minister to revisit the suggestion that the justification for this clause is that technology moves fast. Is she trying to tell the Committee that she is certain that no technology that will ever be thought up, and might be used for transmitting tobacco adverts, will be free from electronic involvement? If she is saying that, she is a miracle worker of the sort that I would be proud to be.

I was concerned about something else that the Minister said. On the request for my party to detail all its arguments together, apart from saying that the Government must not control the way in which the Opposition runs its debates, one reason why we cannot always do so is because she keeps dropping into the debate comments that have not been anticipated, which require some sort of observation and challenge from my hon. Friends and I.

For example, in response to a remark by my hon. Friend the Member for Basingstoke, the Minister said that these powers were intended to cover the defences that are possible and that this clause could enable changes to be made with regard to the burden of proof. I am many things—some of them good, some of them bad—and I often find that I have to admit to being naive. I am an honourable sort of person who likes to think well of others and it had never crossed my mind that a Minister of the Crown would be prepared to contemplate using the order procedure, with a Henry VIII approach, to say, ''We will just do it that way.''

When dealing with the burden of proof, the rule of law is the citizen's fundamental safeguard against the state imposing its will. The Minister's comments on the clause show that it will undermine the rule of law and I hope that she is ashamed of herself. It cannot be right for us to agree that a Secretary of State may revisit how people may defend themselves in the criminal courts and what the burden of proof will be. Given earlier assurances about such matters and the traditional parliamentary procedure of primary legislation, which is a principle of the way in which this country runs itself, it cannot be right that we should proceed in that way.

The Minister said that the clause was designed to cover unanticipated loopholes. The Government may find that they need to cover several loopholes, but they are not unanticipated because we pointed them out. We spent a lot of time explaining potential loopholes in the previous three sittings. We were pooh-poohed and told that they were not loopholes. We are now told that the clause guards against unanticipated loopholes. However, the Minister could have dealt with most of them after they were pointed out, thereby making the clause unnecessary.

Even if there are loopholes about which we have not thought and that the tobacco industry, which the hon. Member for Luton, North thinks is ingenious, could come up with, why do we need a Henry VIII clause to deal with them? Under our parliamentary procedures, it is normal to have a Finance Bill every year. We have never said, ''Ah, there are tax loopholes. We'll just let some Chancellor of the Exchequer change the tax system at his own whim.'' If there is an honourable

tradition of examining annually our taxation legislation, what is wrong with using primary legislation to close loopholes that the Government were too incompetent to identify? Are the Government admitting that because they have been so sloppy and carefree and they know that so many loopholes have not been identified, they would have to legislate all the time? Is the reason for the Minister's justification that she knows that the Bill is shot through with flaws and the courts will overturn this and that? Is she so confident that the Bill will be a mess that she wants to make provision to hide her future embarrassment by making orders that she hopes nobody will notice? That cannot be right.

The clause strikes at the heart of parliamentary democracy and, by the Minister's admission, the rule of law. It shows up the Government's sloppy draftsmanship. Will the Minister reassure us that the clause is necessary—she has not yet done so?

The clause mentions ''electronic means''. Does the Minister think that an order could remove the word ''electronic'' so that the clause could cover any means? We are discussing electronic means—indeed, we started off by thinking that we were discussing the internet. However, the word ''electronic'' could be removed in the future. I would be grateful if the Minister would deny, at least, that that might happen.

Photo of Yvette Cooper Yvette Cooper The Parliamentary Under-Secretary of State for Health 12:15, 14 May 2002

We are going round in circles. If Opposition Members do not like the clause, they may vote against it.

The clause relates to

''developments in technology relating to publishing or distributing by electronic means.''

I am interested by the suggestion that we should widen the scope of the clause to cover all developments in technology. We decided not to do that but to focus on developments in technology that relate to publishing or distributing by electronic means. That is right because it is the area in which progress is occurring most rapidly. If Opposition Members wish to table an amendment to widen the scope of the clause, clearly, there are many ways in which that could be done.

I did not mention the burden of proof—the hon. Member for Spelthorne was talking nonsense. We have much business to get through.

Photo of Mr Andrew Hunter Mr Andrew Hunter Conservative, Basingstoke

I initiated debate on the clause and I do not believe that anyone who was objectively following our proceedings could fail to be profoundly concerned by both its contents and the Minister's attempt to justify the clause. Alarmingly, it gives the Secretary of State sweeping powers that, as my hon. Friend the Member for Spelthorne says, go to the heart of parliamentary democracy and the rule of law. We find it offensive and want to vote against it.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I am sorry that the Minister does not like hearing the truth. That is unfortunate. I was not suggesting that we wanted to widen the provision. I was trying to give her an opportunity to say that she did not want to do so. If we have made any progress this morning, it is in that direction. She has now put on

record that the clause cannot be used—I assume that that is what she means, rather than that she does not intend to use it—to leave out ''electronic'' and put in ''any''. I suggest not that the clause should say that but that it should not be included. To suggest that I am trying to widen a provision to which I am fundamentally opposed is nonsense. However, at least we have made some progress on that.

The Minister says that she never mentioned the burden of proof. However, with the greatest respect, the clause enables alteration of the Bill's content following changes in technology in respect of electronic means of distribution, and she admits that it covers the parts of the Bill that refer to defences. Indeed, as we debated earlier, the part of the Bill that relates to defence specifies burden of proof issues.

As the Minister says, the clause relates to an ability to change defences in the Bill. Surely it follows, as day follows night, that we can change what the Bill says about a defence, which is that a burden of proof requirement applies. On her own admission, she might not have used the words that the clause does not state that it is possible to change the burden of proof, but it does not need to. It need state only that it is possible to change the provisions that relate to how to conduct a defence to move on to a reference to burden of proof.

That is one reason why I was so concerned earlier that the burden of proof should be included at all. If the Bill contained no reference to burden of proof, the established principle in British justice that a person is innocent until otherwise proven could not be touched, as the Bill would contain nothing to alter it. It would rely on custom, practice, common law and the courts, rather than the diktats of a Secretary of State who can decide at some stage that the burden of proof is not securing enough convictions, because for some reason he wants to be macho and find innocent people guilty of a crime to show how effective he is being and does not have the courage to ban tobacco smoking, for all sorts of obvious reasons. That is why the Minister needs to be much more careful about what she says. She must not try to deny that the clause affects the burden of proof merely because she did not use the magic words ''burden of proof''.

Photo of Mr Peter Pike Mr Peter Pike Labour, Burnley

The question is that the clause stand part of the Bill. As many as are of that opinion, say ''aye'', and to the contrary, ''no''. The ayes have it— [Interruption.] I am happy to put the question again, but the Opposition were extremely slow in responding.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 12, Noes 3.

Division number 6 Adults Abused in Childhood — Clause 7 - Developments in technology

Aye: 12 MPs

Aye: A-Z by last name

Hunter, Mr. AndrewLoughton, TimWilshire, Mr. David

Question accordingly agreed to.

Clause 7 ordered to stand part of the Bill.