Tobacco Advertising and Promotion Bill

Public Bill Committee, 1 February 2001.

Standing Committee A

Clause 2 - Prohibition of tobacco advertising

Caroline Spelman (Conservative, Meriden)

I beg to move amendment No. 2, in page 1, line 19, leave out

`a separate entity containing, or being,'.

The amendment is a probing amendment to find out how the Bill will work in practice. Many parties will be affected by a ban on tobacco advertising and the amendment would introduce an element of practicality into the clause. What lays behind the proposal to omit any reference to a separate entity is my worry that it is unreasonable to expect magazine publishers to be responsible for leaflets containing tobacco advertisements that are subsequently placed inside the magazines before they are sold. Paper print distribution is a high-speed bulk business and it is not unusual for inserts to be placed in newspapers and magazines. I am sure that all members of the Committee have picked up newspapers and held them up the wrong way only to find leaflets falling on to the pavement that they then have to scoop up.

There is another practical difficulty. I doubt whether editors of the large broadsheet newspapers are aware of how many inserts are placed in their newspapers on any particular day. They would be more concerned about the editorial content. I am most worried about the little guys at the bottom of the system who may be caught by the clause, particularly those in the corner shop. They do not have the time to check each magazine, periodical or newspaper for separate entities that may have been inserted in them.

Any member of the Committee who visited his or her paper shop this morning, in the murky gloom of London, will know how busy newsagents are from the early hours. Great stacks of papers are often thrown outside the door in the small hours and have to be rapidly placed in the shop for sale. Sometimes, the string ties are just cut and the papers left in the pile.

I asked my newsagent whether there was any practical way in which he can reassure himself about what is or is not inserted separately into the newspaper. He cannot—certainly not in the time scale within which he operates. The amendment would ensure that innocent people are not caught by the Bill. It may not provide sufficient protection for people, but I hope that the Minister will understand the spirit behind it. It is designed to examine the way in which material is distributed and to ensure as far as possible that people would not be caught unfairly by the Bill.

Yvette Cooper (Labour, Pontefract and Castleford)

I understand that you had a very early start this morning, Mr. Malins, to ensure that we could start on time. Thank you.

The amendment would make it unclear whether leaflets, flyers or attachments inside publications that include tobacco advertisements would be covered. That is a serious loophole. It is true that when we open our Sunday newspapers a load of leaflets fall on the floor. Clearly, many companies and businesses regard that as an effective way to advertise their products. To allow such advertising would be a significant loophole in the Bill, and a mistake.

The hon. Lady was concerned that newsagents would need to check every magazine. The Bill sets out clear defences for people who could not reasonably be expected to know whether a publication contained a tobacco advertisement. If they had been told that a magazine was likely to be distributing a flyer, there would be some obligation on them to check, but in the unlikely event that someone had slipped in surreptitiously a leaflet that no one knew about—and could not reasonably be expected to have known about—they would have a defence under the Bill.

The defences appreciate the situation of an innocent person in the distribution chain, who did not know—and could not reasonably be expected to know. We shall discuss those defences later. They are reasonable. It is important, however, to include flyers and leaflets because they make so much difference and are an important part of the business of advertising.

Caroline Spelman (Conservative, Meriden)

When we debate the defences, we will be able to probe the Government further on how someone can prove that they could not reasonably have known. That comes close to the position that I was coming from. In some cases it is hard to prove—it is hard to find words that demonstrate the necessary objectivity. One's view of whether one could reasonably have known about something is inevitably subjective. Someone might say, ``You definitely should have known what was going to happen'', but there may be extenuating circumstances. Only the individual knows why they might not reasonably have been expected to know.

When we deal with the defences, I will spend more time probing the Government about how someone can successfully prove that defence. When we return to the practicalities of defence issues, we shall have another chance to go into the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Caroline Spelman (Conservative, Meriden)

I beg to move amendment No. 3, in page 1, line 22,

leave out from `form' to end of line 23 and insert `or participating in doing so'.

Humfrey Malins (Conservative, Woking)

With this it will be convenient to take the following:

Amendment No. 20, in page 1, line 24, leave out subsections (5) and (6).

Government amendment No. 16.

Amendment No. 4, in page 1, line 25, leave out `carry on business' and insert

`transact business with a person living'.

Government amendments Nos. 18 and 19.

Amendment No. 8, in clause 5, page 3, line 7, leave out `carry on business' and insert

`transact business with persons living'.

Caroline Spelman (Conservative, Meriden)

This is an important amendment to an important clause. At one level, it deals with a different subject, namely, internet service provision, which includes electronic mailing. I hope that, under your good chairmanship, Mr. Malins, we shall be able to give the matter a good airing. It is the only clause that deals in detail with internet service providers. I am anxious that we articulate their concerns. It is not easy for any hon. Member because the new technology moves fast. As I do not profess to be an expert, I was hoping that my hon. Friend the Member for South Dorset (Mr. Bruce) would be here by now: he is one of my allies. That is a veiled instruction to bring up the reserve.

I hope that some Committee members are highly conversant with internet service provision, because we have to try to understand the new technology. We are legislating while it is in full growth and the implications are difficult for us to grapple with.

I shall concentrate on electronic provision, although the clause relates to other forms of distribution and advertising. However, we can return to those in the stand part debate. I do not intend to touch on those matters in speaking to the amendments.

The amendments focus on electronic advertising and internet service providers. In tabling their amendments the Government acknowledge the anxiety expressed on the Labour Benches, too, that the Bill as drafted might not work ideally for internet service providers. I am pleased that the Government have tabled amendments, as it will help us to work together towards a better form of words that does not unnecessarily penalise such people if at all possible.

We are discussing means of transmission. Three main functions are involved. The first relates to the provision of access to the web and theoretically stopping specific sites being reached, the theory of which will come under scrutiny when we consider the amendments.

In practice, the ability to stop specific sites being reached would require enormous resources and may not be feasible or practical for ISPs. They have pointed out that banning a site would give it notoriety, prompting many people to access it. That is perverse, but we all understand human nature. No sooner is something banned than people are interested and want to find out why. The ISPs have a fair point.

Internet service provision, by definition, operates in a global market. It is therefore interesting for us to consider what could realistically be the legal parameters of the bill. It would be difficult for the United Kingdom Government to shut down a foreign website that carried tobacco advertisements, as we do not have the jurisdiction to do so. Electronic advertising knows no geographical boundaries in the way that paper or print could be stopped at port or airport. The usual physical barriers do not apply.

The second function that will be affected is the ISPs' provision of hosted web space for websites. In this case, ISPs have more control and can be more effective in scrutinising what they are hosting, but the difficulty for the largest internet service providers is that they have many websites. It would be a mammoth task for the ISP to act continuously as censor and scrutineer for every detail that goes on to them. Again, it is a question of resources and the feasibility of policing hosted websites in that way.

The third function of ISPs that will be affected by the way in which the Bill is drafted is the provision of newsgroups, or bulletin boards, on which articles or advertisements can be posted. An article posted with an ISP newsgroup can be picked up by linked newsgroups and run by other ISPs world wide. A double problem is involved. Such items may be pinned up on a billboard, perhaps in this country, and may subsequently, in the absence of physical boundaries, become accessible globally—and vice versa. Through the linkage, an ISP may provide access to bulletin boards and billboards in other countries, over which we have no jurisdiction, that contain advertisements for tobacco products. Checking everything on such newsgroups and bulletin boards therefore becomes impossible. The purpose of amendment No. 3 is to demonstrate that it is unfair to expect internet service providers to be responsible for tobacco advertisements on hosted websites and the advertising bulletin boards to which they are linked.

The group of amendments contains many that I tabled. Amendment No. 20 has something in common with the Government amendments. I propose that we leave out subsections (5) and (6), because the Bill is not the right place for such provisions. It is incidental that the focus of the clause on advertising by ISPs is tobacco. At the root of the problem is how to legislate for the activity of ISPs generally. We might as well be discussing a different product.

If I understand correctly, subsection (5) will mean that it is not an offence for a person who does not carry on business in the United Kingdom to publish a tobacco advertisement on a website that is accessed in the UK. That will also apply to whoever devises or causes an advertisement, such as the ISP. Under subsection (6), an ISP that is not aware of a tobacco advertisement is not regarded as having published or distributed it. If those subsections are left in the Bill, they will have a restrictive effect on the internet service industry.

The Government claim that they want to make Britain a world and European leader in e-commerce. I remember listening to the Minister responsible for the matter speaking at length on the subject, and I am sure that she passionately believes in it. The Government are unlikely to be able to achieve that goal if subsections (5) and (6) are left in the Bill.

In the Bill, ISPs are regarded as publishers and/or distributors of web pages and any tobacco advertisements that might be contained within them. Interestingly, that is not how other European countries regard the role of ISPs. I am sure that the Minister is aware that, in common with other member states, we must transpose European directive 2000/31 on e-commerce into law by 17 January 2002. That directive treats ISPs not as publishers or distributors, but as conduits for the transmission and immediate and temporary storage of information.

The Committee will understand straight away that a conduit is a different concept from that of a publisher or distributor as described in the Bill. Under the European directive, ISPs are placed in a better position because they do not have responsibility for content. Therefore, member states cannot impose on them a general monitoring obligation of the sort that we would be imposing if we allowed the clause to be included in the Bill as drafted. There is considerable potential for the United Kingdom's position to be incompatible with European law. I will be interested to hear the Minister's comments on the compatibility of the Bill with that directive.

As all advanced developed economies are trying to inch their way forward in dealing with the new technology, it might interest the Committee to know that in the United States of America, ISPs have immunity over any content to which they provide access. Given that the United States is at the cutting edge of much of the new technology, we should note that position with interest. Surely we do not want to place ourselves at a competitive disadvantage to the leading-edge competitor in new technology.

The requirements placed on internet service providers who carry on their business in this country—[Interruption.]

Ernie Ross (Labour, Dundee West)

Here comes the cavalry.

Humfrey Malins (Conservative, Woking)

Order.

Caroline Spelman (Conservative, Meriden)

The hon. Gentleman points out that my hon. Friend the Member for South Dorset has arrived. I thought that my speech was going quite well, but that has really thrown me off course.

The requirements placed on internet service providers who carry on their business in this country will be impractical. If we could scroll the clock forward and look at the way that they are affected, we would see that their life would be made extremely difficult. It seems inconsistent with the way in which other economies are approaching the world wide web. It might place such companies at a competitive disadvantage in the provision of internet services.

The internet and websites should not be excluded from the scope of the advertising prohibition, but the Government could suggest more coherent proposals to regulate them, with regard to the transposition of the European directive into UK law. The Government need to take account of the technological and scale difficulties of enforcing the provisions and to acknowledge that, technologically, more can be achieved than that to which the provisions of the Bill aspire.

The Opposition have tabled two more amendments in this group, which I shall discuss before the Minister deals with the Government amendments. Amendment No. 4 is small. I may be corrected, but ``carry on business'' is, I understand, an accepted legislative phrase and a good deal more specific than it would appear on first reading. My anxiety about the use of the phrase is that, if we are to have effective legislation for internet companies working in this new area, it is important to be more specific about what aspect we want to control. Therefore, my phrase

``transact business with a person living''

was designed to tackle the problem of enacting in British law a provision to control an internet service provider that was advertising tobacco in this country. We must be clear on what aspect of the internet service provider's commercial activity we are trying to legislate. By definition, the internet service provider's market is global. It interacts with an enormous geographic area and, potentially, with an enormous number of people, over which our law cannot hope to have control. I understand the Government's intention. My amendment is probing, and is designed to narrow down what it is practical for our law to try to control.

Amendment No. 8 has exactly the same objective but for clause 5. Unlike a publisher or distributor of physical printed matter, the market that we are discussing has no physical barriers. It is difficult, unilaterally, to make national legislation work and I am concerned about the feasibility of doing so. I hope that when she speaks to the Government amendments, the Minister may be able to shed some light on it.

Ian Bruce (Conservative, South Dorset)

On a point of order, Mr. Malins. Normally one wants to support colleagues' amendments, yet the Government now have a completely new way of looking at this issue. I seek your guidance as to whether it might be more sensible to try to catch your eye after the Minister has introduced her amendments so that we may understand her position.

Humfrey Malins (Conservative, Woking)

Yes, the hon. Gentleman may catch my eye at any stage during the debate. In fact, he may catch it, as may other members, more than once. It is a matter for him. Bearing in mind the fact that we are also considering Government amendments, it is in order for him to enter the debate at a later stage.

Yvette Cooper (Labour, Pontefract and Castleford)

There are seven amendments in the group. I shall deal with them in turn, although not necessarily in the order set out.

Amendment No. 3 would delete

``providing the means of transmission''.

That would exclude, on principle, those involved in certain aspects of distribution by electronic means in a way that does not happen for print and other distribution. In practice with current technology, British Telecom, which provides the wires, would be excluded on principle. We have some sympathy for the intention behind the amendment because it would clearly be ludicrous for BT to be guilty of an offence if someone used the phone to access the internet and read a tobacco ad. However, given the current technology, BT will be not caught by the Bill.

The principle is to introduce a comprehensive ban and then targeted defences. In principle, all those involved throughout the chain of publishing and distributing are included under the Bill, but they are given specific defences appropriate to their circumstances. For BT or a similar company involved in the means of transmission for electronic distribution, it would mean that that company was unaware—which is covered by amendment No. 19—or that it could not prevent it. For that reason, it would be exempt, not because it provides the means of transmission. The exemption is based on the defence rather than by being ruled out in principle.

If the Bill is to stand any chance of keeping up with changes in technology and so forth, the right approach is to set out a comprehensive ban first and then to provide specific—

Ian Bruce (Conservative, South Dorset)

The Minister is going down an alley, at which point I must pull her up. She has not yet spoken to her amendments. Given the overwhelming number of Labour Members on the Committee, I suspect that her amendments will be carried rather than those of my hon. Friend the Member for Meriden (Mrs. Spelman). It might be for the convenience of the Committee if the Minister introduced the Government amendments and described what she believes will be their effect. For the sake of clarity that might be better. One amendment deletes subsection (6), which deals with the internet.

Humfrey Malins (Conservative, Woking)

Order. It is, of course, for the Minister to decide how she approaches the debate.

Yvette Cooper (Labour, Pontefract and Castleford)

We have seven amendments before us. I shall set out the Government's case for our own amendments and our opposition to those that we are rejecting. I shall be happy to respond to the questions raised by the hon. Member for South Dorset when he has heard what I have to say, but it is sensible for me at this stage to set out the Government's opinion on all the amendments. I will come to the Government amendments in time, if the hon. Gentleman will have a little patience.

Amendment No. 20 removes a defence for people abroad who have a website that is accessed in the United Kingdom or published on an internet service provider here. It also removes the defence of internet service providers that they are unaware of the tobacco advertisement. In principle, both defences should remain. It is true that Government amendment No. 16 would delete clause 2(6), but only to replace it with a redrafted version of the same defence.

It is right for internet service providers to have specific defences. First, there should be a defence for those who are abroad, but have a website accessed or published on an ISP in Britain, because we cannot claim extraterritorial jurisdiction on the issue. Secondly, it is right that ISPs should have the stronger defence that they are unaware, not simply the defence that exists for other forms of print, publishing and distribution that they did not know and had no reason to suspect. I shall return to the issue when we discuss Government amendment No. 19.

Under Opposition amendments Nos. 4 and 8, the wording that refers to companies that do not ``carry on business'' in the United Kingdom would be replaced by wording such as companies that do not ``transact business'' with anyone living in the United Kingdom. As the hon. Member for Meriden said, ``carry on business'' is a standard term in legislation. The reason for including it is that we do not have extraterritorial jurisdiction on the issue and we need a practical Bill that can be implemented.

The hon. Lady is right: in terms of the internet and many forms of communication nowadays, we are in a global market, and there are limits to what we can do when we operate simply in a United Kingdom context. That is why we were also keen that the ban on advertising should be achieved at a European level. We shall continue to work with European partners when the Commission produces further proposals on tobacco advertising. It is also the reason that we are working with the World Health Organisation on an international framework for tobacco control. The powers that we have in the United Kingdom to restrict tobacco advertising are restricted to the companies and areas over which we have jurisdiction. We must recognise that.

I have a problem with the amendment proposed by the hon. Lady because it is unclear. It would allow companies that do not transact business with someone living in the United Kingdom, even if they were based here, to have a defence under the Bill. I assume that she is talking about exporters that do not transact business with someone in the United Kingdom. If they advertise in the United Kingdom, however—including advertising on the internet—they will be caught by the Bill, as they should be. It is slightly puzzling. I am not sure how the amendment would affect companies that transact business with someone in the United Kingdom, even if they are based abroad. By deleting our defence for those who do not carry on business in the United Kingdom, we would end up including under the offence companies who were based abroad, but transacted business with someone based in the United Kingdom.

Caroline Spelman (Conservative, Meriden)

Is the Minister aware of a company that is based abroad, but is advertising under the address www.halfpricecigarettes.com? I hope that that does not constitute an advertisement; the only reason I give the address is that it is important. I wish that I had the advertisement with me, because it would be graphic; it is the size of a cigarette box, in the Marlboro colours and is clearly a piece of tobacco advertising. The company is based abroad and transacts business in this country with people living here. I am concerned that it might slip through.

Yvette Cooper (Labour, Pontefract and Castleford)

The question for us is whom we are able to prosecute. If the advertisement were on an ISP based here, the ISP would be caught only if the defences were not met—in other words, once it was made aware of it. If the advertisement had been devised by a company based in the United Kingdom, that would also be caught. However, we do not have extraterritorial jurisdiction and we would not be able to prosecute a company based abroad that was somehow linked in the chain. I recognise that the internet makes the matter complicated, but we have to be aware of the territorial limits of the ban that we are able to impose.

Ian Bruce (Conservative, South Dorset)

This point goes to the heart of whether one is simply creating an enormous loophole that will ensure that people who are manufacturing tobacco products overseas can continue to advertise while people within the United Kingdom cannot. Subsection (2) refers to a person who distributes tobacco in this country. Am I right in saying that if a tobacco distributor in the UK purchases from France, Germany or elsewhere supplies of tobacco manufactured outside the UK, the manufacturer of which advertises his products via the internet—not specifically for the UK market—the manufacturer would not be caught by the Bill and neither would the distributor because he is not pressing the product, the manufacturer is?

Yvette Cooper (Labour, Pontefract and Castleford)

The Bill refers not to distributing products but to distributing and publishing advertisements. The hon. Gentleman is right that we will not be able to prosecute companies that advertise from abroad because we do not have extraterritorial jurisdiction. However, if companies have branches or any business presence in the UK, they will be covered by the Bill.

Ian Bruce (Conservative, South Dorset)

I direct the Minister's eyes to the first line of subsection (2). It is, of course:

``A person who in the course of a business prints, devises or distributes''—

I am sorry, I am incorrect and the Minister is correct. The case that I have described is one in which a company manufactures its cigarettes overseas and advertises them, and an independent company within the United Kingdom imports those same cigarettes. Is that company caught? It is within our jurisdiction, and the advertisements are provided by the manufacturer, not the distributor.

Yvette Cooper (Labour, Pontefract and Castleford)

The question for the courts would be whether the company was involved with the advertisement in any sense, or whether it could be said that it was in some way paying for that advertisement or responsible for it. The Bill states that those who are involved in devising, distributing, printing or publishing the advertisement and who carry on business in the UK will come under the scope of the Bill. If they do not carry on business in the UK, the Bill cannot apply to them as we do not have extraterritorial jurisdiction. However, we will continue to pursue a tobacco advertising ban at European level and we are keen to see proposals from the European Commission. We are also keen to work with the World Health Organisation to look at the international framework of tobacco control.

Government amendments Nos. 16 and 18 are drafting and consequential amendments which tidy up and clarify the Bill. Government amendment No. 19 is the substantive one. In part, its purpose is to clarify and to avoid overlap in the drafting, but there is also one change in substance to which I draw the Committee's attention.

The Bill provides general defences for those involved in publishing and distribution that they did not know and had no reason to suspect that tobacco advertising was taking place. Internet service providers will have a stronger defence under clause 2(6) if they were unaware of the advertisement. They may have reason to suspect such advertising, but the process of checking is so complex and arduous that they should have the stronger defence of being unaware. That defence is replicated in Government amendment No. 19. We have also strengthened the defence for those involved purely in electronic distribution and that includes BT, companies that provide the wires and those involved in the chain beyond ISPs. That means that ISPs and others involved in electronic distribution are under no obligation to check. They are defended until they are made aware of such advertising.

The hon. Member for Meriden asked whether ISPs should be regarded as publishers or distributors. We are aware that different views are held about that issue. The Bill does not define whether ISPs should be regarded purely as publishers or distributors. Case law and legislation may develop in such matters, however, and we want to ensure that the ISPs have a defence, regardless of whether they are publishers or distributors and how they may be described in future case law or legislation.

Ian Bruce (Conservative, South Dorset)

What is the Minister's definition of internet service providers? Listening to her speak, I do not think that she knows.

Yvette Cooper (Labour, Pontefract and Castleford)

Without more warning, I shall not attempt to give the technological description of internet service providers. There is a strong view that they are merely distributors and that they become publishers when they are made aware of something. However, it is important for the Bill to keep pace with changing technology, case law or legal definitions, so we want to provide the same defences of being unaware if such bodies are regarded as publishers or distributors. If publishers and distributors are involved, even if they are not ISPs in the future, we must recognise that the Bill deals with a developing area and that matters that are covered by electronic means should have particular additional defences beyond those that are applied to what is in print. We must remember that the ISPs, the internet and electronic publishing would be included under the Bill unless we explicitly excluded them, and we are going further by recognising such circumstances and providing an extra defence.

Ian Bruce (Conservative, South Dorset)

I notice that the Minister has received a note to help her. We recognise yahoo.com as being an internet service provider, but when someone pays to call up a provider on his BT line, he pays part of the money to BT, part of it to the ISP, part of it to AT&T and part of it to just about everyone in the country. Unless we define what is meant by an internet service provider, we shall be defining companies such as BT, which might not be the ISP, as the body that is publishing the advertisement and it will not have the defence that the Government are trying to give it, while those who want to get round the law can do so. I shall go into the further problems later in the sitting.

Yvette Cooper (Labour, Pontefract and Castleford)

The amendment would provide the defences. It would ensure that companies such as BT that are involved in electronic distribution also have the defence that they were unaware. The current drafting restricts that defence to ISPs, but the amendment broadens that. The hon. Member for South Dorset is right that the technology or definitions may change in time. At present, ISP is a recognised term and we understand what it means. However, as technology is changing rapidly, we should go further. With Government amendment No. 19, in relation to a tobacco advertisement that is distributed as mentioned in section 2(4)—by electronic means—an ISP will also have the defence that it was unaware of what it distributed and that, having become aware, was unable to prevent its further use, or that it

``did not carry on business in the United Kingdom at the...time.''

By extending it, we provide a defence for companies such as BT, which might receive payment in the way that the hon. Gentleman describes.

Ian Bruce (Conservative, South Dorset)

The Minister will say that that is a defence for the ISP, which we have not yet defined, and not for the other people who might be involved in the electronic transmission. The amendment states:

``In relation to a tobacco advertisement which is published or caused to be published by electronic means'',

and then gives the defence only to the person we have yet to define as an ISP. That is where the drafting is wrong.

Yvette Cooper (Labour, Pontefract and Castleford)

The hon. Gentleman will notice that subsection (5A) in the amendment states:

``In relation to a tobacco advertisement which is distributed as mentioned in section 2(4), it is a defence for a person charged with an offence under section 2(2) of distributing it or causing its distribution to prove''

that that person was unaware, that they were unable to prevent it and that they

``did not carry on business in the United Kingdom at the relevant time.''

The defence has been widened to include BT through subsection (5A). That is the content to which I was referring but which has explicitly changed when compared with the previous drafting.

Peter Luff (Conservative, Mid Worcestershire)

I am finding this subject genuinely interesting. How technology interacts with law making is always problematic, as I have said on many occasions. May I be clear? The definition of ISP could be important. I have just been signing up with an ISP—Demon—during this Committee. If I access an ISP through a BT line—which I did—what role does BT play? Subsection (5A)(b) of amendment No. 19 states:

``that, having become aware of it, he was not able to prevent its further distribution''.

BT could cut me off from Demon, if Demon were carrying a tobacco advertisement. There would be a potential problem for BT in such circumstances.

Yvette Cooper (Labour, Pontefract and Castleford)

We have considered the matter in detail to ensure that the defence would work for BT in such circumstances. As I understand it, for BT to cut someone off it would have to know that the person was going to visit a particular website on a particular day at a time when a tobacco advertisement was being shown. There is no way that BT could be aware of that, or, therefore, prevent it, so it would have a defence. With current technology, if BT is unaware—which it is bound to be—of one's intentions on a particular Sunday afternoon when one feels like surfing the web, it could not prevent that particular encounter with a tobacco advertisement.

Peter Luff (Conservative, Mid Worcestershire)

Let us suppose that a particular ISP was acquiring a reputation for carrying tobacco advertisements outside our jurisdiction and that that provider had to be accessed through BT lines. Theoretically, it would be possible for BT to say, ``We know that that provider is a problem.'' Should we not insert the word ``reasonably'' into paragraph (b) of amendment No.19, to read,

``he was not reasonably able to prevent its further distribution''.

In absolute terms, BT could prevent further distribution. Do we need to provide additional defence by inserting ``reasonably'' to ensure that BT is safe?

Yvette Cooper (Labour, Pontefract and Castleford)

We have discussed the matter in detail, because it is a new area. Certainly, the legal advice that we have had is that we do not need to do it.

The nature of the defences and the technology that we put in place means that there will be a clear defence for BT in that situation. The hon. Gentleman is absolutely right, however, that were it to become easy, via a future means of electronic distribution, for someone involved in the chain to be aware of, and easily prevent access to, an advertisement, they should be covered under the Bill. That technology does not exist at the moment and I cannot envisage it.

Ian Bruce (Conservative, South Dorset)

Internet service providers want to know who will inform them about advertisements. One can imagine that the ISP receives an e-mail from Joe Smith, who says, ``When I surfed the web for such-and-such, this advert seemed to be thrown at me. Do something about it.'' That could be happening 100 times a day, and there are problems in tracking down how that advertisement, or whatever it may be, actually came to be on a web page. What is ``knowing about an advertisement''? Someone could go to the enforcement agency and say, ``I told them the advert was there. Why haven't they removed it?''

Yvette Cooper (Labour, Pontefract and Castleford)

I am aware of that concern and I have sympathy with it. Clearly, ISPs should not have to be concerned about malicious remarks, phone calls or e-mails made to them in an unco-ordinated way. That clearly would be difficult for them. However, in practice there are mechanisms for dealing with the problem. There is an existing criminal offence, for example, of publishing and distributing child pornography. There is no privileged defence for ISPs against that offence in the way that there is a privileged defence in the Bill. They have no special status in law, which means that they are not aware of the child pornography unless a particular organisation tells them. At the moment, they do not have a specific defence in the case of child pornography that they can act only if they are told by the trading standards association or by a particular organisation. However, there is an effective voluntary system, which seems to work, to co-ordinate concerns, criticisms or people identifying incidents of child pornography. In practice, it clearly makes sense for the ISPs to have a single body to assess what is child pornography and inform them accordingly rather than to have to respond to individual complaints.

The ISPs have set up the Internet Watch Foundation, through which complaints about child pornography on the internet are channelled. The foundation advises whether ISPs need to act in a particular case. We certainly have a lot of interest in that system and think that it could be the type that may help in the Bill.

David Taylor (Labour/Co-operative, North West Leicestershire)

Opposition Members are rightly examining in some detail one of the issues that may pose problems. Although we are not yet discussing clause 7, it is relevant to the debate, as it gives sufficient flexibility to tackle any problems that may emerge of the type that Opposition Members suggest are probable.

Yvette Cooper (Labour, Pontefract and Castleford)

The purpose of clause 7 is to provide the flexibility to cope with changing technology and deal with different situations that may arise. Even for tobacco advertising, a voluntary system that works within the legal framework is something that we would clearly like. We would be keen to work with the ISPs on setting up a system similar to the one that operates for child pornography.

Peter Luff (Conservative, Mid Worcestershire)

Is there not a problem here? Everyone is against child pornography—except child pornographers. There is a huge international consensus against it. Not everyone is against tobacco smoking or tobacco advertising, so it will be much more difficult to establish a voluntary system when there is a financial incentive for tobacco companies to get round the ban and to advertise heavily on the internet.

Yvette Cooper (Labour, Pontefract and Castleford)

The circumstances may be more complicated and research will be needed to see how it would work. That is why we are seeking to collaborate with ISPs, and perhaps with the Internet Watch Foundation, on what form such a system would take. The overall principle of a legal framework with an effective voluntary system to ensure that it works is clearly operating successfully against child pornography; we should like to see it working successfully against tobacco advertising.

Ian Bruce (Conservative, South Dorset)

To cut to the chase on this, I wonder whether in the Lords the Government may wish to table an amendment to set up a voluntary code—Conservative Members are very much in favour voluntary codes—for co-operation on who can advise the Internet Watch Foundation or whomever. I am a great fan of the Internet Watch Foundation. The ISPs, which set it up using their own money, are to be congratulated on it. The Internet Service Providers Association—a United Kingdom association—deals with only 80 or 90 per cent. of ISPs. The Internet Watch Foundation is under-funded and if it is given another task, I suspect that it will need additional help. We should be worried that an ISP will be set up specifically to deal with tobacco and will not bother to join any such association.

Yvette Cooper (Labour, Pontefract and Castleford)

We considered whether such a system needed to be included in the Bill. We reached the conclusion that it did not and that it would be less burdensome to develop a voluntary system that was not included in the Bill. We are happy to discuss with the Internet Watch Foundation or with ISPs the form that the system should take and how it should function. We have discussed the matter in detail with the Department for Trade and Industry, which takes the lead on e-commerce, to ensure that we find the least burdensome way to implement it. That can be done if people work together.

The group contains a series of amendments that cover a range of issues. We recognise that issues relating to the internet are complex, given the pace of developing technology. In the Bill, we have tried to provide defences that are sufficiently broad to cope with the technology, so that ISPs and others involved in electronic means of distribution will be treated fairly and at the same time we can stop tobacco advertising and promotion in the United Kingdom.

Debate adjourned.—[Mrs. McGuire.]

Adjourned accordingly at two minutes to Ten o'clock till this day at half-past Two o'clock.

Standing Committee A

Clause 1 - Prohibition of tobacco advertising

Humfrey Malins (Conservative, Woking)

I remind the Committee that with this we are considering the following: Amendment No. 20, in page 1, line 24, leave out subsections (5) and (6).

Government amendment No. 16.

Amendment No. 4, in page 1, line 25, leave out `carry on business' and insert

`transact business with a person living'.

Government amendments Nos. 18 and 19.

Amendment No. 8, in Clause 5, page 3, line 7, leave out `carry on business' and insert

`transact business with persons living'.

Ian Bruce (Conservative, South Dorset)

The importance of the principles behind the amendments has been highlighted. After our truncated discussions on the Bill to find the loopholes, the Government have now tabled amendments to improve it. We heard in business questions that, after next Thursday when the Committee has finished with the Bill, it will be discussed on Report on the following Tuesday, after which it will receive its Third Reading. [Hon. Members: ``Hear, hear!''] While colleagues may be glad that progress is being made, I urge them to consider whether the Bill is adequate and whether it will succeed in reducing the consumption of tobacco.

Given that we have such limited time, I shall not speak for long on the amendments. I want simply to point out to the Government why they will have the greatest difficulty in ensuring, by legislation rather than voluntary agreement, that the Bill has the desired effect. The best way to deal with the problem is to return to basic principles.

This country has a statute on official secrets. The gentleman who wanted to produce his memoirs about his time in MI6 fell foul of laws made in this House forbidding him to publish. He therefore published his memoirs on the internet overseas. Publishers in the United Kingdom said to the courts, ``Well, they are on the internet. They are freely available for people to read. Therefore, the nonsense that the Westminster Parliament has produced cannot stand''. That was found to be the case with the courts. That is a direct parallel with what is happening in Committee.

Kevin Barron (Labour, Rother Valley)

Will the hon. Gentleman give way?

Ian Bruce (Conservative, South Dorset)

This is a complicated matter, so I will finish my argument, but I will happily give way soon.

Why did the Government not stay silent on the internet issue and take the view that, whatever is legal in the real world is legal in the internet world and whatever is illegal in the real world is illegal in the internet world? Instead, they relied on what might happen when people try to promote and use the law that they are trying to introduce. By giving the internet specific exclusions, they have left a loophole—a great portal—in the Bill, whereby all such regulations will be challenged. They will be challenged in the international courts, because that is what happened with the directive from the European Commission.

Kevin Barron (Labour, Rother Valley)

If something on the world wide web relates to publications abroad, is the hon. Gentleman saying that nothing can be done about it? If so, is he not arguing that hard-core pornography and other such matters should be available without any restrictions?

Ian Bruce (Conservative, South Dorset)

Indeed, I am not. I have done a lot of work on pornography. All Governments—except that of the United States, which has other laws that could be used—have signed up to the convention on the child, under which they have to protect children from the effects of pornography and from being exploited by it. Co-operation on the internet on voluntary agreements has led to a flood of prosecutions for pornography in UK courts, because we found ways to tie pornographers into the jurisdiction. We have done so without specific regulations. The Bill would exclude certain people from operating over the internet.

I described to silicon.com, the internet body, what now makes any country except the United Kingdom the best place to do e-business for tobacco and tobacco products. The Government have decided to go against their policy of making the United Kingdom the best place to do e-business, and to go by a voluntary agreement to stop tobacco advertising on computers, which is part of the voluntary code. They have said to the tobacco industry, ``It's simple. If you want to promote your products, you have multimillions to spend on advertising and promotion and clause 2 tells you how to do it.'' As long as there is a separation between the people who advertise and those who manufacture the cigarettes and produce international brands—not in factories in the United Kingdom, creating jobs, but in other countries' factories—they can use e-mail. If the cigarettes were branded only for the United Kingdom, they would probably fall foul of clause 2. E-mail is not mentioned in the Bill: internet service providers are included, but e-mail is not necessarily sent via that route.

These people could send as much information as possible, or even set up a website. One can envisage an internet service provider who wants to get plenty of advertising—that is how ISPs make their money, not by taking it from people—setting up in almost any other country and saying, to anyone from 12-year-olds to 85-year-olds, ``We will give you free access and pay for your telephone calls to our website. The first thing you will see is the promotion of lots of nice cigarettes and cigarette products.''

Why would someone want to do that? If they are promoting specific brands and a distributor in the United Kingdom says, ``Everyone is asking for those brands'', there is nothing in the Bill to stop the distributor from buying cigarettes that have been advertised internationally on websites that are outside UK jurisdiction and importing and selling them on the back of the advertising.

I am not advocating that they should do that. Under the present voluntary code, they have said that they will not do so. We have not seen that sort of marketing. The Government must understand the unintentional consequences of their amendments: they are making certain that under no circumstances will anyone who behaves as I have described be committing an offence in the United Kingdom.

There are ways to get round the problem, but the correct one is to look again at the voluntary code. There may be a requirement to ban billboards or advertising in UK magazines. The Government must specify what is being done and then agree with the tobacco manufacturers a code of conduct. The tobacco industry will want something out of it. At the moment, I suspect that they will say to themselves, ``We've seen the Bill and we were worried, but we have found a route round it.'' The route has been provided in clauses 5 and 6, which are not altered by the Government amendments.

The other issue relates to the Department of Trade and Industry. We sign up to treaties—whether under the auspices of the World Trade Organisation, the European Union or other free trade areas—which state that it is illegal to differentiate in competition terms between a company based in the United Kingdom and one based overseas. If I were a UK tobacco manufacturer who could not sell my tobacco because someone was promoting imported tobacco, I suspect that the first thing that I would do was to take the matter to the High Court and say that the Bill was ultra vires on all the treaties that we have signed.

The Bill will rapidly come into disrepute, and the Government will not have time, as they will be out of office by May—

Ernie Ross (Labour, Dundee West)

What is the hon. Gentleman worried about?

Ian Bruce (Conservative, South Dorset)

The Conservative Government will have to sort out the mess. I am here now—this is my last offer, as they say—to help this Government sort out the mess, but clearly they are not going to do so.

We have so little time to consider the Bill that I shall sit down. I hope that the Minister will understand that I want to advise and help the Government. Even if they continue down the legal route, they need a much better Bill and much better amendments.

Caroline Spelman (Conservative, Meriden)

The Minister spoke to the amendments and was scrutinised by my hon. Friend the Member for South Dorset (Mr. Bruce), who is much more knowledgeable about the matter than I am. I am not 100 per cent. confident that the Government know what they are doing in their amendments and I will not accept them lying down. The amendments were brought to the attention of the Committee at relatively short notice. I have not had enough time to consult properly service providers and those who provide the means of electronic transmission to discuss with them how amendment No. 19, in particular, will affect them.

Kevin Barron (Labour, Rother Valley)

The hon. Lady must have received a copy of a letter that I received last week from the internet service providers. They are worried about clause 2(6), which one of the amendments removes and amendment No. 19 replaces, as they requested in their letter. The Government seem to have done exactly what the internet service providers wanted about the matter.

Caroline Spelman (Conservative, Meriden)

That intervention was not helpful, because that was only one part of the letter.

Kevin Barron (Labour, Rother Valley)

But it is true.

Caroline Spelman (Conservative, Meriden)

Yes. Perhaps the hon. Gentleman would like to intervene again.

Kevin Barron (Labour, Rother Valley)

What I said may not have been helpful to the hon. Lady, but it is true.

Caroline Spelman (Conservative, Meriden)

Yes, but it was not helpful because several points were made in that letter, which I too received. The Government have not met the internet service providers' desire on that point. The third paragraph of the letter that we received from the London Internet Exchange and the Internet Service Providers Association states:

``In order for the ISP Industry to co-operate with the aim of the bill to remove illegal material from UK websites, a universal procedure for notification of such content''—

the next four words are in bold—

``by a designated authority needs to be established as a priority.''

Nothing in the Government amendment offers that. The hon. Gentleman's selective quotation of the letter does not fairly reflect the ISPs' request.

We had an interesting discussion about the role of such an authority, and the Minister mentioned the possibility—

Kevin Barron (Labour, Rother Valley)

Will the hon. Lady give way?

Caroline Spelman (Conservative, Meriden)

I should like to continue my argument about the registered authority. As I am sure the hon. Gentleman will agree, the Minister spoke glowingly about a voluntary organisation. It is slightly ironic that the Government oppose a voluntary code to govern the tobacco industry, but favour a voluntary organisation to police and monitor what goes on the internet. That seems to show a lack of consistency. Her point was good—we recognise that such a registered authority for internet service provision would be useful, and not merely for tobacco advertising. My concern about Government amendment No. 19 is that it might remove one of the incentives for such a voluntary organisation or authority to exist. If, as the amendment states, the stronger defence that will be permitted to a service provider will enable him to say, ``Oh, I was unaware,'' or, ``I was not able to prevent it'', it is not beyond the wit of man to realise that that may remove the incentive for him to try to make himself aware. It is a relatively easy way of defending oneself.

That makes it all the more necessary to consider again what internet service providers are calling for—the establishment of a designated authority as a priority. I do not think that the Committee has got this right. It is important to flag up to those who will scrutinise the Bill in another place—I hope that they will have a little more time to consider the issue—that we are not content on this point. For that reason, I want to press one of my amendments to a vote. I wish to flag up to those who will be affected by the clause and the Government amendments to it that we are uncomfortable with assurances that it will all work out perfectly. I have been referred to clause 7, but I am not satisfied with that, as it deals, by definition, with new developments in technology. The truth is that we do not have an adequate solution for current technology.

The Minister, of course, has the opportunity to come back with an improved amendment on Report, which, after reflection, she might want to do. However, to flag up our unease and the feeling that we have not adequately addressed the concerns of internet service providers and those affected, I should like to press amendment No. 3 to a vote.

Yvette Cooper (Labour, Pontefract and Castleford)

Government amendment No. 19 extends the defences for others—beyond ISPs—who distribute by electronic means. I hope that hon. Members who are concerned about electronic distributors will welcome that provision, as it also allows such people the defence that they were unaware. I hope that I have given assurances that we are keen to work with ISPs to develop a framework that removes the burden of enforcement from them and allows enforcement to be carried out sensibly. I mentioned the Internet Watch Foundation earlier, which may not be the appropriate body; there may be another mechanism. Experience has shown that it is not necessary to set up a mechanism in the Bill. I shall reflect on the matter further, but in all our discussions so far we have concluded that it should be possible to deal with the problem without making provision in the Bill. Such a provision might be more burdensome than flexible arrangements that we can discuss directly with ISPs.

The hon. Member for South Dorset made two criticisms. First, he criticised the Bill because it did not have extra-territorial jurisdiction, but that is a fact of all the legislation that we pass. The Government are keen to work with our European partners and other countries across the world on tobacco control, but we must be realistic about what we can achieve. We can certainly make immense progress, through this Bill, on restricting tobacco advertising, in particular, advertising that reaches children.

Secondly, the hon. Member for South Dorset said that tobacco companies would do everything that they could to get round it. Tell me about it! Tobacco companies have consistently got around previous voluntary agreements, and no one should be surprised if they try to find ways round the provisions in the Bill. By making the Bill as comprehensive as possible, and providing specific defences, we aim to restrict this lucrative and effective advertising that promotes a deadly product.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 9.

Caroline Spelman (Conservative, Meriden)

We have had a long discussion about clause 2, but only about one important aspect of it—internet service provision. To keep within the limits of your patience, Mr. Malins, we should concentrate on some of the other aspects of the clause in the stand part debate.

Printers and distributors of physical material have raised some real concerns and it is important to articulate them. I fully accept that some of those concerns may be dealt with in subsequent clauses. It is difficult to proceed in this way because to be understood correctly, clause 2 should be read with the following four clauses. I place on record a concern that was raised with me by the Newspaper Society, whose members will be directly affected—[Interruption.]

Humfrey Malins (Conservative, Woking)

Order.

Caroline Spelman (Conservative, Meriden)

I think that the hon. Member for Rother Valley (Mr. Barron) may have received the same letter as I did—we could compare notes. However, members of the Newspaper Society raised an important issue on behalf of publishers of the local and regional press, examining how the Bill might affect them. They are at pains to point out that they do not earn significant revenue from the advertising of tobacco products. Even if they are not directly affected, they could find themselves culpable of offences described in the Bill. They are concerned that because of the failure to define what an advertisement is, which we failed to persuade the Government to do when we debated clause 1, they are at risk when writing about tobacco. Can we make the position absolutely clear when we debate the clause?

Such people certainly espouse the fundamental principle of freedom of speech. That is what journalists would say was the primary motivation for all their writing. They feel that they should be free to discuss the merits of tobacco products, but they are concerned that in writing about products they will be guilty of an offence of advertising tobacco. It would be extremely helpful to all those who might find themselves in that position if the Minister made that explicit. It is not simply that journalists might write about tobacco in an esoteric sense; they might make judgments about the quality of different brands of tobacco. That is the kind of thing that happens in newspapers at present, but people wonder now whether in future such judgments will get them into hot water.

The Minister will probably accept that it is not as simple as it looks. If one reviews a range of Havana cigars of different ranges and types, for example, one may end up rating the different products, as journalists very often do, and that comes very close to stating a preference and to a form of promotion.

Ian Bruce (Conservative, South Dorset)

May I give an example of a possible news story? We know that the European Union spends about £1 billion a year subsidising tobacco, most of which goes up in one big puff because it is destroyed rather than smoked by individuals. The purpose of that story might well be to suggest that the low quality of the tobacco is the reason why it is constantly being destroyed, which gives the impression that people should buy their tobacco from America. Journalists may find themselves inadvertently promoting that tobacco rather than—[Interruption.]

Humfrey Malins (Conservative, Woking)

Order. We are becoming a little rowdy and sedentary interventions are becoming too frequent.

Ian Bruce (Conservative, South Dorset)

I have completed my point, Mr. Malins.

Caroline Spelman (Conservative, Meriden)

That was a helpful illustration of my point. On the face of it, what I am trying to point out may look quite simple, but when one stops to think about it, it is more difficult and complex than we might realise. In debating this aspect of the clause, we have a duty to make the position perfectly clear for the sake of those who otherwise might make a mistake. I know all the defences about ``could not possibly have known'' or ``prove that they did not know'', but in the case of editorial comment, it becomes quite difficult to judge from the outside.

My main point was to focus on the difficulties that the clause may present to the producers of physical printed matter and the dilemma that we have left for them by our inability to persuade the Government to define an advertisement. I hope that the Minister may be able to give some clarity in her response.

Yvette Cooper (Labour, Pontefract and Castleford)

The clause sets out the offences in a comprehensive way. Anyone involved in the publication, printing, devising or distribution of a tobacco advertisement could be guilty of an offence. Later clauses set out the defences against that comprehensive ban. It is important to point out that clause 2 covers only activity undertaken in the course of a business. It does not cover individuals in a private capacity.

The hon. Member for Meriden (Mrs. Spelman) referred to journalists. I am happy to clarify the matter. It was referred to on Second Reading and I believe that I referred to it earlier in the Committee, but I am happy to clarify it again. We do not intend journalists writing about tobacco products in news stories and comment pieces to be covered by the Bill. If they write a news story, that is not an advertisement. If they write an opinion piece, that is not an advertisement. However, if a journalist or a newspaper is paid by a tobacco company to promote a tobacco product, the sponsorship provisions later in the Bill will come into play. That is right. I am sure that people consider that journalists who are paid to promote tobacco products should be covered by the Bill. However, the Bill is not intended to cover issues that involve freedom of speech, news stories, journalistic discussion or artistic representations such as people smoking on stage or in films, unless they amount to sponsorship, which along with product placement, is covered by the Bill.

Ian Bruce (Conservative, South Dorset)

I am sure that the Minister is trying to be helpful to the Committee, but one of the vessels in the Whitbread round-the-world race was called Silk Cut. I presume that, after the Bill is enacted, the vessel would be sponsored in a different country, although its logos would still be shown on television. Would the fact that a BBC journalist commented favourably on that vessel's progress in a race be covered by the Bill? Can the sponsors make sure that they sponsor another country's vessel instead of our own and succeed in their product placement in that way?

Yvette Cooper (Labour, Pontefract and Castleford)

Journalistic reporting should not be affected by the Bill, but the sponsorship might be. If it comes under the territorial jurisdiction, the sponsorship will be covered. We shall be discussing sponsorship provisions later in our proceedings. Journalistic reporting, as long as the journalists are not being sponsored by tobacco companies, will not be affected by the Bill.

Peter Luff (Conservative, Mid Worcestershire)

I do not know whether now is an appropriate time to test a point about product placement. In Hollywood, cigarettes are often placed in films deliberately. Is that covered by the Bill? Will it be possible to show in the United Kingdom films made in the United States that show a person smoking who is a role model for the young?

Yvette Cooper (Labour, Pontefract and Castleford)

The Bill covers distribution of tobacco advertisements in this country. We shall discuss this complex area in detail when we debate the sponsorship part of the Bill. We will then have the opportunity to spell out the matter in considerable detail. The clause deals with what happens in the course of a business; it is not intended to prevent members of the public, journalists, writers or others from talking about tobacco products.

Question put and agreed to.

Clause 2, as amended, ordered to stand part of the Bill.

Clause 3 - Advertising: newspapers, periodicals etc.

Caroline Spelman (Conservative, Meriden)

I am conscious that we shall soon be interrupted by Divisions in the House. I have no wish to hold up our proceedings. We have a firm end date for the Committee proceedings and it is important to us to ensure that we spend enough time on the measures that we regard as important. By not putting any mileposts into the timetable, the Government have left us with the responsibility of doing just that. We can have a relatively short clause stand part debate. That is not because the clause is not important. It is important. It is hard to debate such clauses without debating the defences. I want to probe the Minister a little about how the clause will work in practice. We spent little time on Second Reading discussing enforcements.

Staff in corner shops and newsagents work extremely hard. The hours are often anti-social, and it is literally a rush in the rush hour, with many commuters in the shop, and school children calling in to buy sweets. Shop workers are ill-prepared to meet the challenge that clause 3 sets them, particularly with regard to newspapers, periodicals and other products that contain tobacco advertisements. It is not easy for those who sell publications or offer them for sale, as defined in subsection (c).

How will the clause be enforced? Will trading standards officers visit every corner shop to ensure that each newsagent has checked hundreds of periodicals and expect him to put his hand on his heart, and say, ``Well, I assure you that, as far as humanly possible, I have checked that the publications on sale in my premises do not contain tobacco advertising—but, of course, I could always make a mistake.''?

Such checks would involve much work for trading standards officers, and they are already stretched in fulfilling the important duties that they undertake. Many corner shops and newsagents selling publications could be caught by the clause. How would it work in practice?

Ian Bruce (Conservative, South Dorset)

When I was in business many years ago, I had a nasty experience in connection with the words ``publishing'' and ``published'', and the definition of those words is at the heart of the clause. Anyone, who is in business ``publishes'' in the United Kingdom, and in line 35 of clause 19

``references to publishing include any means of publishing''.

I was given a document that allegedly contained a libel by somebody who applied for a job. I passed the document on to somebody else, and was advised by a lawyer that I had ``published'' that document. I thought to myself, ``Surely that is not the meaning of the word `published''', but it is. I have a piece of paper that my hon. Friend the Member for Tewkesbury (Mr. Robertson) has just passed to me in his own handwriting, and he has therefore published this document. If I were now to give it to my hon. Friend the Member for Meriden, I would have published that document to her. That is the legal meaning, as I understand it, of publishing.

Members of the Committee reading the word ``published'' in clause 3 will, I suspect, understand it to mean that somebody gets a printing press, collates the information, and sends it out for publication. In fact, under that definition, a newsagent who passes on something from their shelves, even if it is printed and produced elsewhere, is publishing it. A large number of retailers have been threatened with legal action if they refuse to remove publications from their shelves because they are publishing a libel, or untruth, or something of that nature to which somebody objects.

Laurence Robertson (Conservative, Tewkesbury)

I ought to declare a registered interest in the tobacco industry, but it is a different point that I wish to raise. Many years ago there was a legal case in which someone sold on a bottle of water or fizzy pop, which contained something that it should not, and the person who sold it on was held liable. Is that an accurate analogy?

Mr. Bruce: Certainly. With regard to product liability, one is part of a chain. Let us suppose that a 12-year-old is reading a tobacco advertisement. If that advertisement is in Le Monde, which is produced in France, the individual who sells it on is, according to the legal definition of the word, publishing, not distributing Le Monde, unless there is a provision to counter that. The word ``publishing'' includes simply passing it on, without even recopying it, to another person. I hope that the Minister will be able to respond to that point. As I said, it would have been nice to have somebody from the Home Office sitting on her team, who could advise her of the legal definition. I am sure that legal advice can be sent for if necessary.

Yvette Cooper (Labour, Pontefract and Castleford)

The hon. Member for Meriden raised concerns about how a corner shop might be covered by the clause and the Bill generally. The defences for the corner shop, as for the proprietor or editor of the publication and everybody else involved, are set out primarily in clause 5, which we shall discuss later. Broadly, if such persons did not know, had no reason to suspect or could not reasonably have foreseen that tobacco promotion was the effect of the advertisement, they will have a defence. However, if a retailer had reason to suspect, there would be a case to answer. If a retailer did not know and had no reason to suspect that the newspapers that he was selling contained tobacco advertisements, or, as we shall discuss under clause 4, if the principal market of those newspapers was outside the UK, nobody would expect him to check every magazine that he sold.

Caroline Spelman (Conservative, Meriden)

The problem is that there is an active and a passive attitude. One can passively make no effort to know, and say, ``Well, I didn't know.'' Alternatively, there is the active response of someone who behaves diligently and says, ``I have done my best.'' The difficulty is that the passive response is the easiest and is most likely to allow people to get away with a transgression.

Yvette Cooper (Labour, Pontefract and Castleford)

That is why the wording is

``had no reason to suspect''.

Clearly, if a proprietor had good reason to suspect and deliberately turned a blind eye, he would have a case to answer under the Bill. If he had no reason to suspect, he would have no reason to search every magazine on his shelves either.

Ian Bruce (Conservative, South Dorset)

If a newsagent in this country speaks French, has a French clientele, imports Le Monde, reads Le Monde every day and knows that it promotes tobacco products, is he committing an offence because he is part of the publishing process of providing such an advertisement to his clients?

Yvette Cooper (Labour, Pontefract and Castleford)

A different defence would exist in that situation. We shall discuss that defence under clause 4, in relation to publications from outside the United Kingdom, the principal market of which is not the United Kingdom.

The hon. Member for South Dorset raised concerns about publishing. The underlying premise of the Bill is that everyone in the chain is potentially liable.Whether the definition of publishing to which he refers is broad or narrow, if a person is distributing or offering an advertisement for sale in the course of their business, they will have a case to answer under the Bill. I emphasise that it must be during the course of business. Passing a piece of paper privately from one person to another would not be regarded as publishing an advertisement in the course of a business, so the provisions would not apply. Clause 3 makes it clear that everyone in the chain is potentially liable; various defences in terms of reasonable circumstances follow on. I ask the Committee to accept the clause.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.

Clause 4 - Advertising: exclusions

Caroline Spelman (Conservative, Meriden)

I beg to move amendment No. 5, in page 2, line 17, leave out from `in,' to `information' in line 18 and insert

`a communication with a person who has requested, or who has previously requested,'.

The amendment is directed at specialist tobacco suppliers who, as I said in the debate on clause 1, are in danger of being hit hard by the Bill. The clause does not apply exclusively to specialists, but they are affected most by its drafting. The amendment, which changes subsection (2), would allow communication between a business and its known customers to be legitimate when a particular request has been made.

Some specialists who do not own shops depend heavily on mailing lists for their clientele. If they have to wait for a particular request before making a communication, they may face diminishing returns. The number of people specifically requesting information will reduce over time. In other words, it will be a problem if the specialists cannot initiate communication. A cigar supplier, for example, may want to initiate communication by informing customers whether the Cuban tobacco harvest will impact on the quality of the product or on prices. Under the clause, however, a specialist supplier would have to wait for requests for that information to come in.

We all know that mail order companies often have a tick-the-box arrangement and if the box is unticked a customer can be inundated with all sorts of unwanted information. One learns to avoid that. Would that sort of arrangement help the specialist to overcome the problem? A mail order form often has a default arrangement; people will receive a pile of junk mail unless they tick the box. Does the Minister accept that such a default position could constitute a request?

The purpose of this probing amendment is to get to the bottom of the restriction on communication between businesses and their customers. The net should be widened to include not just those who have requested information but those who have requested it—or transacted with the business—in the past. Customers tend to be a passive lot, but may respond to proactive information from a direct mail supplier. If the clause prevents suppliers letting customers know what is on offer—or, say, that the price of cigars is going to soar because of a disastrous harvest in Cuba—it will be restrictive for suppliers.

The amendment would allow the existing self-regulatory rules, which allow tobacco advertisements to continue; tobacco advertisements are allowed if they are contained in communications to individuals on a database of known adult smokers, who have confirmed their status as such and who always have the right to be removed from that database. That was the protection afforded by the voluntary code. Such a right is also provided by the Data Protection Act 1998. How will the Bill sit with the rights conferred under that Act?

We all know that we must now be extremely careful with information. It is not that we cannot operate unless we receive a particular request, but we are limited. The amendment would provide adequate protection for individuals, while permitting companies legitimate commercial freedom, especially specialist tobacco suppliers. Without it, the Bill will place heavy constraints on some small suppliers who depend on direct mailing for their businesses. In effect, their clientele is likely to diminish over time to the point at which they may go out of business. We can foresee such consequences, and we want to avoid that happening.

Ian Bruce (Conservative, South Dorset)

I support my hon. Friend's argument in favour of the amendment. If we are trying to restrict the provision of useful information to smokers about how they can reduce their health risk, compiling a database of smokers, who have already taken some proactive action by asking for information, is a sensible way in which to control the flow of information. By removing that, we are, in effect, saying to the tobacco industry, ``You will just have to keep finding ways in which to get people to respond to advertisements.'' I am not even sure whether phrases such as ``If you would like some information about this particular product,'' can be classed as an advertisement to promote tobacco products.

People will be continuously persuaded to contact tobacco companies. One way in which the company can ensure that people ask for information is to put a request form inside a cigarette packet. That is a sensible way to pass on information, because the person has already bought the cigarettes. It makes common sense that names should not have to be deleted from a database of people who have asked to be kept informed of offers, especially when all the other requirements of keeping databases are in place.

Yvette Cooper (Labour, Pontefract and Castleford)

The problem with the amendment is that it would create a massive loophole in the Bill by allowing extensive direct marketing by tobacco companies. The fundamental flaw in the Opposition's argument is that 70 per cent. of smokers say that they want to give up smoking. Smokers who at one time in their lives wanted further information about a product may six months or a year later—even less than that—decide that they want to try to give up smoking. Given how addictive tobacco smoking is, and its huge health impact, people should be supported when they try to give it up.

We know the type of direct marketing carried out by tobacco companies. For example, Imperial Tobacco sent out large numbers of free samples with their new Concept cigarette-making pack early in the new year, just as many smokers were trying to give up. To have direct mail or promotional products coming through people's doors when they are trying to give up, even if they had requested that information a year previously, undermines their attempts to give up smoking in what are often difficult circumstances.

Given the health impact, we should be trying to support people who give up smoking. People have a right to request information about tobacco products. Communications in response to such a request should be limited to it. The amendment would create a massive loophole in the Bill, which is why the Government will reject it.

Caroline Spelman (Conservative, Meriden)

I hear what the Minister says and her argument relates in particular to the bulk sales of cigarette manufacturers. However, she has not dealt with the plight of small specialists. The Bill contains no nod in their direction and is going to be most harmful for them. We have no desire to create a massive loophole that will undermine the agreed target of reduced prevalence, but the position of tobacco specialists is difficult.

Kevin Barron (Labour, Rother Valley)

I wonder why the hon. Lady is worried about tobacco specialists, as the clause does not relate to them. Tobacco companies in this country are well known to hold databases of millions of names. Those databases would provide a way round the ban on the advertising and promotion of tobacco if we did not ensure that companies could not use them to contact people directly, especially people who have decided to stop smoking.

Caroline Spelman (Conservative, Meriden)

Our problem with the Bill is that—in debating clause 1—we were unsuccessful in persuading the Government that it will be disproportionately hard on specialist tobacco producers. Little distinction is made for the specialist tobacco industry. When we debate clause 6, we will discuss their shops but, as I said earlier, they do not all have shops.

The clause is targeted mainly at closing down possibilities for bulk cigarette manufacturers, but in engaging constructively with the Government to try to get the Bill right, we have a responsibility to consider both the big corporate players and the small guys. The Government have said that they are the friend of small business, but they are being unfriendly towards small business, especially the business that does not have a shop, which is singularly not catered for under the Bill. As we shall discuss later, a specialist tobacconist is defined as a shop, but they are not all shops. That is the weakness with the clause as drafted. I was not satisfied by the Minister's response, as she did not touch on specialist tobacconists. Perhaps she will return to the matter.

Yvette Cooper (Labour, Pontefract and Castleford)

The Opposition amendment does not single out small businesses or specialist tobacconists and would allow the continuation of all direct marketing. That is a massive loophole and we cannot accept the amendment. A persuasive case has not yet been made for specialist tobacconists or for particular small businesses needing special treatment in such circumstances. However, if the hon. Lady wants to table amendments later, when we discuss specialist tobacconists, I shall be happy to consider them. The amendment does not make a distinction for specialist tobacconists.

Kevin Barron (Labour, Rother Valley)

Does my hon. Friend know of any small specialist tobacco shops in this country that use direct mailing for their customers?

Yvette Cooper (Labour, Pontefract and Castleford)

I am not aware of those that do, which is why I do not believe that a persuasive case has been made for singling them out for special treatment under the clause. We have provided for special treatment for specialist tobacconists under clause 6 and we shall consider the issue further when we discuss that. At this stage, however, there is not a persuasive case for making a further exemption.

Caroline Spelman (Conservative, Meriden)

That is helpful, although the hon. Lady has now set me an interesting little task with which I shall have to do my best to deal. We will need not to complete clause 6 by the end of this evening, as I would beg leave to find the time to table an amendment that would craft what she is describing by first thing on Tuesday morning—or on Report. I shall do my best to engineer that today.

I accept that we do not want to create the massive loophole that the hon. Lady describes, but when we deal with clause 6, we will need to do something about the definition of ``specialist'' and she indicates that we may well be able to. In that case, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Caroline Spelman (Conservative, Meriden)

I beg to move amendment No. 22, in page 2, line 21, leave out `printed' and insert `published'.

Humfrey Malins (Conservative, Woking)

With this we may discuss the following amendments: No. 23, in page 2, line 25, leave out

`by an airline which is not a United Kingdom airline'.

No. 21, in page 2, line 30, leave out subsection (3).

Caroline Spelman (Conservative, Meriden)

Amendments Nos. 22 and 23 are on different subjects, but Nos. 23 and 21 are inextricably linked. We had an interesting exchange earlier about what legally constitutes publishing something. That caught me out, as I had no idea that it could be defined so broadly. However, my reading of this aspect of clause 4 would seem to put a UK-based company that physically prints a magazine but then exports it to another country for publication in a difficult position. It will become guilty of an offence even though the principal market for the publication is not the United Kingdom.

The important issue in this context is where the tobacco advertisement is published. For example, if the European edition of the International Herald Tribune were printed in London, the exemption that that publication would enjoy—as one whose principal market was not the UK—would be lost because it was printed here. There is no argument for making an exemption for a foreign publication dependent upon it not being printed in the UK when, increasingly, the location of printing is simply a matter of economic calculation and nothing to do with the intensive publishing market. We seem to have moved a long way from a health Bill and to be dealing with trade relations. However, this is an important matter that we need to clarify and I would be interested to hear the Minister's reply.

Amendments Nos. 23 and 21 are different, but they tackle the same problem. The clause as drafted exempts in-flight magazines, but only for foreign airlines. That is anti-competitive and would necessarily disadvantage United Kingdom airlines in an international market. It goes without saying that our airlines, as I am sure hon. Members are aware, have taken quite a knock recently with the loss of duty free. The ability to communicate about their tobacco products and their relative prices, together with the different duty arrangements pertaining to the countries to which they fly, has been an important part of buttressing their losses.

This is not an insignificant problem but a very significant one. Why should the in-flight magazine of American Airlines be exempt when read on board an aircraft flying between New York and London, whereas the in-flight magazine of British Airways or Virgin Atlantic would be covered by the Bill? The airline industry is global, like the internet service providers, and we must be careful that we are not disadvantaging companies that have to fight for survival in global markets. The measure is discriminatory and unreasonable, as it applies only to airlines and not to other foreign travel operators such as ferry companies that also have publications on board. Any discrimination between nationality of ownership or registration would be anti-competitive. At the least, that inconsistency needs to be cleared up.

The measure would also prevent airlines from showing clearly details of their duty-free tobacco products on board their aircraft. Now that that is virtually the only place that the airlines can legitimately pursue that aspect of their business, it is difficult to imagine how they will get around that problem. The only solution that I can imagine is that of their staff waiting for a passenger to request the price of the cigarettes that are on board.

John Robertson (Labour, Glasgow Anniesland)

Does the hon. Lady agree that the business of airlines is to carry passengers? The selling of duty-free goods is incidental, and is only a service.

Caroline Spelman (Conservative, Meriden)

The hon. Gentleman must have escaped the deluge of lobbying that we received. Perhaps he is fortunate in living a long way from an airport. Birmingham international airport is in my constituency and local Members of Parliament were made very aware of the impact of the loss of duty-free business. To some extent, that business has been recovered in the airports by the growth of retail shops. However, airlines can sell only a limited range of products that people want to buy on board an aircraft . Differential duty is one of the things that make the product attractive.

David Taylor (Labour/Co-operative, North West Leicestershire)

May I put a different interpretation on the hon. Lady's assertion that to some extent there has been a recovery from the losses caused by the abolition of duty free? Would it not be more accurate to suggest that the whole case for duty free was overblown and overstated, and that the risk of losses was never as great as was suggested?

Caroline Spelman (Conservative, Meriden)

I do not think that the matter was wholly overblown and overstated, although I can only talk with any confidence about Birmingham international, which is my local airport, as it is that of the hon. Gentleman. One of the ways in which that airport has been able to recover is through expansion—it is creating additional retail outlets. However, it is difficult to create additional retail space at congested airports, such as Heathrow.

John McFall (Labour/Co-operative, Dumbarton)

When the measure was adopted in 1991 by the then Conservative Government, the then Chancellor, Lord Lamont, would surely have had that in mind. It was a unanimous decision of the Finance Ministers.

Caroline Spelman (Conservative, Meriden)

With respect, I do not think that Lord Lamont would have had any idea that the airlines would be banned from advertising their own duty-free products on their airline. That is a very important point. I suspect that there would have been even more noise from the duty-free lobby had it known that it was going to be shut down in such a way.

Clear differences are emerging in the Committee on the issue. We regard the measure as unfair. Airlines cannot display their duty-free goods in aeroplanes due to the lack of space. Products cannot easily be displayed on a trolley, and in due course, we shall ask the Government what constitutes a display. Perhaps that aspect of the airlines' business will only be able to continue through the use of displays. We shall, therefore, need a clear definition of one. The airlines will no longer be able to use their in-flight magazines to inform their customers about the value of the tobacco products that they carry on their aeroplanes. That places them at a clear disadvantage with regard to their competitors, and it is on the anti-competitive aspect of the legislation that we wish to hear a response from the Minister.

Peter Luff (Conservative, Mid Worcestershire)

I speak as someone who comes from a printing family and who has a major commercial printer in his constituency. I have no idea what view it will take of the matter, but it prints a large number of glossy magazines in high volumes—many famous titles. The Minister should make it clear that it will not be placed at a competitive disadvantage if it is requested to tender for a magazine that is based on the other side of the English channel, but has a small sale in the UK. We all know many such titles.

It is important that the Minister makes it clear that the proposal in clause 4(1)(c), and the related definition in clause 2, will not put a printing company at a serious disadvantage when it tenders for international print contracts.

The Bill contains a definition of ``advertisement'', but what constitutes an advertisement in the context of airlines? Does a simple listing on a page of the prices of Marlboro, Silk Cut and Rothmans without any picture of the pack constitute an advertisement? People try to make their in-flight magazines attractive, so there would normally be a picture of the product with a price alongside. Would a picture of the pack be regarded as information or an advertisement? If one accompanied the listings with images—for example, the image of a cowboy to illustrate Marlboro—that would become an advertisement. Will the poor old cabin crews at Birmingham international airport spend all their time explaining to people aboard international flights exactly what cigarettes they can and cannot buy?

Ian Bruce (Conservative, South Dorset)

The Minister may take the prize for the most unintended consequences in any Bill, and we are on only clause 4.

One weekend, I had the great good fortune to go to the Channel Islands to re-flag Condor Ferries to the United Kingdom flag. That was a great honour, especially as we all hear about shipping that flags out in the other direction. The change in safety regulations meant that Condor Ferries re-flagged its vessels in the UK. Tobacco sales are a massive business for airlines. If they want to get round the problems and stay more or less within the Civil Aviation Authority, they can base themselves in the Channel Islands or the Isle of Man. One of the unintended consequences of the Bill may be companies such as, say, Virgin Atlantic-Channel Islands. I suspect that tax would be another advantage of flagging out.

David Taylor (Labour/Co-operative, North West Leicestershire)

The hon. Gentleman asserts that the sales of cigarettes on aircraft are massive. Does he have any figures for sales or profit margins? I think that they would both be significantly less than he suggests for UK-based airlines.

Ian Bruce (Conservative, South Dorset)

I am sorry that I gave way to the hon. Gentleman. He is clearly such a little Englander that he has never been on an aircraft—he has never tried to get his case into the overhead locker while all the cigarettes and whisky are falling out. I hope that he will get out more. My hon. Friend the Member for Meriden said how much the airlines were stressing their duty-free sales. Such sales have only been abolished within the European Union.

I suggested that the hon. Member for North-West Leicestershire (Mr. Taylor) did not get out much. If he did, he would know that if he tried to shove a book into that pocket in front of the seat on the plane, he would not be able to because it would be stuffed full of magazines advertising products. Perhaps we could provide some videos of aircraft for him, as he has not had a chance to travel under the new Labour Government. I thought that the Whips always wanted to send people away on overseas visits.

David Taylor (Labour/Co-operative, North West Leicestershire)

Do you have the figures?

Ian Bruce (Conservative, South Dorset)

I do not. I am sorry. I came back from meeting our troops in Kosovo via the Royal Air Force, which will no doubt end up being prosecuted, on an airline that carried all the magazines and so on. The flight was actually run by Airtours. I did not know that I was to serve on this Committee until Saturday, so I am afraid that I have not had a chance to find detailed information.

John Robertson (Labour, Glasgow Anniesland)

Will the hon. Gentleman give way?

Ian Bruce (Conservative, South Dorset)

I ought to make some progress. We are trying not to delay the Government's programme, but to ensure good legislation. I represent Weymouth and am next door to Poole. Also, many companies are now using Portland as a port. All of them sell cigarettes. They do not necessarily have what could be described as a shop; certainly an airline cannot have a shop. How will they be affected? Most companies produce brochures advertising such offers as that produced by Condor Ferries, which invited people to travel to Guernsey with a reasonably priced ticket that included 200 cigarettes and a bottle of whisky. Those offers can be found in travel brochures and other such publications. One of the purposes of encouraging people to go on day trips is that they can buy low-cost cigarettes and whisky.

It is extraordinary that an international airline cannot comply with the law if its head office happens to be in the United Kingdom. It will therefore be at a competitive disadvantage compared with those airlines that carry the products to and fro. If several subsections are needed to deal with the problem, how can the Minister claim that it is not an important matter? Surely, the sensible thing would be to say that an aircraft is a flying tobacconist. To ban point-of-sale information, including in the in-flight magazine, is nonsensical. It is a place where people buy tobacco. If it were treated as a shop, we would not have to go into such detail. If American Airlines say to a United Kingdom printer, ``I understand that your printing prices are much better than we can get out in the States. Would you like to print one of my in-flight magazines?'', he would have to say, ``I am sorry, I can't do that.'' I hope that the Minister can give us some good news.

Kevin Barron (Labour, Rother Valley)

The obvious fact about airlines based in this country is that they come within our jurisdiction because they are based here. What confuses me about amendment No. 23, which is about airlines, is that on Second reading and at earlier sittings of the Committee, Opposition Members claimed to be concerned about smuggling and consumption. Although I accept that trade on airlines is not smuggling—we have to accept that it is legal—it is attractive because of the cost. Smuggling happens for exactly the same reason. Tobacco that is smuggled into the country can be purchased for a lower cost because the taxation imposed by the Treasury for public health reasons does not need to be paid.

The Opposition complained on Second reading about smuggling and the resulting low price of cigarettes and tobacco and the consequent increase in consumption. In Committee, they are in favour of advertising cigarettes at lower prices than one has to pay on the mainland. That is confusing.

Let me give Opposition Members some more information. I quote the Health Select Committee's unanimous second report ``The Tobacco Industry and the Health Risks of Smoking''. It mentions what advertising agencies do in this country and elsewhere. The section of the report entitled ``Measures to restrict marketing'' includes a brief explanation of the voluntary code that the hon. Member for South Dorset said was a good idea.

The report says that although the Advertising Standards Authority is the final arbiter on advertising tobacco products in this country, under the voluntary code, an organisation called the Committee of Advertising Practice operates the pre-clearance procedures for cigarette advertisements. That is all within the voluntary code. The report of the Health Committee states at paragraph 82:

``Musto, Merriman, Herring & Levi, in a creative brief from 1998 noted that `CAP's rules and regulations considerably restrict what we can do in the UK...But CAP rules don't apply outside the UK. There are some very good media opportunities targeting UK consumers abroad—particularly aimed at holiday charter flight traffic.''

That was one of the findings of the Committee. This is an area where they can even get around the voluntary code that Opposition Members have been defending in this Committee. Under those circumstances, perhaps they ought to withdraw the two amendments that relate to airlines. One day, I hope they may join us in supporting a call for international action on the advertising of tobacco products on airlines throughout the world.

Yvette Cooper (Labour, Pontefract and Castleford)

Amendment No. 22 replaces ``printed'' with ``published''. As it stands, the amendment does not make sense, because if a publication is not published in the UK there is no offence. If UK firms print material for items that are never published in this country, even if they include tobacco advertisements, they are not guilty of an offence in this country under the terms of the Bill in clause 2(2).

Peter Luff (Conservative, Mid Worcestershire)

I want to be clear. The Minister is dealing with an important point that I made. She is saying that if the publication is primarily intended for a foreign market and is printed in the United Kingdom, no offence is committed. Can we be absolutely clear on that?

Yvette Cooper (Labour, Pontefract and Castleford)

No. Let me clarify. If the publication is not published in the UK at all, then there is no offence. So the amendment as drafted does not make sense because it replaces ``printed'' with ``published'' and it would read:

``if it is contained in a publication...which is published outside the United Kingdom''.

If it is not published in the UK, there is no offence.

I recognise the Opposition's argument that the drafting, as it stands, would cover UK firms that print material for publication that is primarily for a foreign market—the principal market is foreign and they are legally distributed here. UK firms, therefore, printing material for publication for a foreign market but that are legally distributed here, under clause 4(1)(c) will also be covered and will be guilty of an offence.

I have some sympathy for the arguments put forward by hon. Members on this issue and I will consider the matter further, although I am unable to accept the amendment as drafted since it would not make sense in the context of this Bill.

Amendment No. 23 and consequential amendment No. 21 would include all in-flight magazines on principle in an exemption and in a defence against this Bill. The fundamental point is whether some UK companies should not be subject to UK law as a matter of principle. The idea that the revenue from tobacco advertising is a significant issue for UK airlines is not plausible.

I recognise that there is an issue with tobacco sales and airlines do sell cigarettes. As with other businesses, they will want to tell customers what they sell. We will certainly listen to representations from the airlines when it comes to setting out the regulations on advertisements at point of sale. There is legitimate information that all cigarette sellers will want to convey about price and the products for sale.

We do not accept that there should be a blanket exemption for all UK airlines and for their publications and in-flight magazines for all forms of tobacco advertising, although we will listen to representations.

Peter Luff (Conservative, Mid Worcestershire)

I accept that this is about paid-for advertising: full page adverts that carry the Surgeon General's warning or that of the Department of Health. However, the issue is when the airline portrays the product in its price list. I hope that that is the issue to which the Minister is referring when she says that she will be open to representations.

Yvette Cooper (Labour, Pontefract and Castleford)

That is certainly the issue on which we will be open to representations. We have said that, by putting in clause 4(2) that we would set out regulations on advertising at point of sale, we recognise that sellers will want to inform customers about their products. That is why we will set that out in detail in regulations, consult on the regulations and listen to representations.

Ian Bruce (Conservative, South Dorset)

The Minister is in a helpful mood at the moment. Would she also say something about ferries? The ownership of both ferry companies and individual ferries changes constantly. The system should make it clear that they can advertise the products that they are selling at point of sale.

Yvette Cooper (Labour, Pontefract and Castleford)

To the extent that ferries sell cigarettes and tobacco products, they will also be covered by the point of sale regulations to which clause 4(2) refers. We shall certainly listen to representations, but it would be wrong to give ferry companies a blanket exemption to have whatever advertising they want, in any form, on ferries. We recognise that there are issues in relation to point of sale, which we have dealt with in regulations, but our broad intention is to ban tobacco advertising and we do not want to accept such exemptions.

Caroline Spelman (Conservative, Meriden)

The Minister's response was satisfactory. We have heard that the Government will deal sympathetically with UK-based printers who may find themselves in difficulties, that, under the regulations, following representations and consultation, a compromise will be found for airlines on indicating the value of the products, and that a level playing field will be created for ferries. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Yvette Cooper (Labour, Pontefract and Castleford)

I beg to move amendment No. 17, in page 2, line 26, leave out subsection (2) and insert—

`(2) The appropriate Minister may provide in regulations that no offence is committed under section 2 in relation to a tobacco advertisement which—

(a) is in a place or on a website where tobacco products are offered for sale, and

(b) complies with requirements specified in the regulations.

(2A) The regulations may, in particular, provide for the meaning of ''place'' in subsection (2)(a).'.

Humfrey Malins (Conservative, Woking)

With this it will be convenient to take the following amendments: No. 24, in page 2, line 26, leave out 'display or'.

No. 25, in page 2, line 28, leave out

`by the appropriate Minister in regulations' and insert `by the Secretary of State in regulations under this Act.'.

Yvette Cooper (Labour, Pontefract and Castleford)

The purpose of the amendment is to clarify the Bill. First, it adds to the Bill the power to determine in regulations the meaning of place of sale. We have accepted that there are reasons for permitting a certain amount of advertising at point of sale to communicate price or the products on sale. However, that should be subject to regulations. We want to make it clear that regulations can define what is meant by the place in which the goods are sold, to prevent the place being extended and abused and becoming a loophole. For example, supermarkets sell cigarettes. The regulations will permit and regulate advertising in the area of the supermarket in which cigarettes are sold. It would be unacceptable for the place of sale to be interpreted as meaning the entire shop, because advertising—which might be permitted on the gantry by regulations—might then be extended to cover shelves where, for example, tins of soup or baby milk might be for sale.

The amendment also excludes the word ``display'' and is, therefore, in line with amendment No. 24. Until the hon. Member for Meriden speaks on amendment No. 24, however, it will not be clear whether we have similar reasons for the proposal. The Government's reason is clarity and certainty. Rather than attempting to deal with display and advertising issues together, it would provide greater clarity to separate the two and introduce new provisions to deal with display. Those provisions will be available for consideration later in Committee.

Clearly, this is not the most straightforward of areas, as there is an overlap between what constitutes display of products and what constitutes an advertisement. The Government do not intend to change the broad status quo on the display of tobacco products for sale. We have no intention of unnecessarily increasing the burdens on small businesses, nor do we expect to change the way in which tobacco products are commonly displayed on gantries in corner shops, supermarkets and ordinary places of sale. It is legal to sell tobacco products and it is acceptable that vendors should be able to display their wares for sale. However, we want to prevent future loopholes and abuses. For example, we would not want tobacco companies to promote huge displays of their products in a high street window or among a display of children's toys. We would be concerned about products being scattered over aspirational items, such as Formula 1 motor cars, or fashionable items such as the micro scooters that children and teenagers are using at the moment. For that reason, we would oppose amendment No. 24 without a new clause being introduced, which is what we intend to do. It would be wrong to have no means of controlling and regulating the display of tobacco products.

We will table further provisions on the issue, so that we can distinguish between the legitimate displays that take place as part of the status quo and promotional displays the purpose of which is clearly to encourage people to take up smoking, and to make it difficult for those who wish to give up.

The purpose of amendment No. 25 is to have regulations made by the Minister in Westminster rather than the Scottish Minister. That is a matter for the Scottish Parliament. Although Wales and Northern Ireland will be dealt with by Westminster regulations, Scotland should make its own decisions on the matter. That does not necessarily mean that there will be different regulations in Scotland from those in the rest of the United Kingdom, because we have had considerable co-operation on the issue so far. The Sewel motion was strongly supported in the Scottish Parliament, even by Opposition Members' colleagues in the Scottish Conservative party. There would be difficulties if we have different regulations to deal with the issue on the internet. For that reason, we will consult our Scottish colleagues in detail. The bottom line is that, because of devolution, Scotland should make its own decisions. For that reason, we support Government amendment No. 17, but reject amendments Nos. 24 and 25.

Caroline Spelman (Conservative, Meriden)

I confess to a little distraction. I am not sure what is happening, but I was expecting a vote at 4 o'clock.

Anne McGuire (Labour, Stirling)

Four-ish.

Caroline Spelman (Conservative, Meriden)

I thank the hon. Lady for her guidance. The Government Whip has been most helpful.

It has been helpful to listen to the Minister on the subject of the Government amendment. There is not a cigarette paper—if I can use that pun—between us on the issue. I knew that I would get the chance to use it at some point in the Committee. We tabled our amendments to find out from the Government about what we thought was a potential area of weakness. In moving the Government amendment, the Minister encapsulated what we were trying to achieve. We had entirely the same objective, which was to clarify the matter. Amendment No. 24 deals with precisely that problem. Those who are going to operate under the Bill need to know what a display is.

We have discussed the new constraints under which airlines operate.

Sitting suspended for a Division in the House.

On resuming:—

Caroline Spelman (Conservative, Meriden)

I was in the throes of saying that it is important that we define what we mean by ``display''. In a previous debate we discussed the existing channels by which an airline might communicate information about tobacco products that are sold to passengers. If, after the change is introduced, airlines have to resort to using a display as a way of conveying information, they would need to know what displays are. That applies not only to airlines but across the board—from specialist tobacconists to supermarkets—so the clarification of what is a display will become important. I understand the Government's intent in trying to make that clearer.

The purpose of our amendment was to probe the Government on what they mean by ``display''. The Government amendment clarifies what is meant by ``place'', which is important in exactly the same way. Everybody who will be affected by the Bill should be clear about what the Government intend.

My only general concern about that route of clarification is addressed by amendment No. 25. I remain uneasy about relying on regulations alone, and about the fact that the Committee cannot discuss as many examples as it might, given the shortage of time. In relation to the procedure for clarification, it may be restrictive on those who have to implement the Bill if the courts will ultimately decide what is an advertisement or a display. If we do not make it clear what we mean by those terms, we run the risk of forcing innocent people to go to court and confront criminal charges in order to determine the nature of the regulations. That is why it is important to draw out of the Government exactly what is meant. We failed to do so clearly in relation to the meaning of ``advertisement''.

Our amendment draws attention to the problem of ``display'' not being fully defined. We are trying to emphasise to the Government that saying that regulations will clarify matters is not the complete answer to the problem. Many people will have to work with concepts that are not properly defined in the Bill. I accept, however, that the Government amendment was intended to provide clarification of the meaning of ``place''.

There is only one other aspect of the Government amendment that gives me cause for concern. Given our long and detailed debate on clause 2 in relation to internet service providers, I am concerned that it might create the kind of massive loophole to which the Minister referred as a reason why she was rejecting an Opposition amendment. I believe in giving credit where it is due, and it was my hon. Friend the Member for South Dorset, who has a great interest in internet matters, who drew my attention to the possibility of a problem in the Government amendment. It is therefore fair to give him the opportunity to explain it to the Minister, because I am sure that he will do so far better than I would.

John McFall (Labour/Co-operative, Dumbarton)

I support Government amendment No. 17 and oppose amendment No. 25. The Opposition want to strike out

``by the appropriate Minister in regulations''

and insert ``the Secretary of State'', because they think that it is not important to recognise the effects of devolution.

Particular circumstances apply in Scotland that do not apply elsewhere. As the Minister said, that has been recognised by what is known as the Sewel amendment, which was proposed in the other place. The Sewel amendment is a simple undertaking that legislation will be undertaken here only with the permission of the devolved Assemblies. The Minister for Environment, Sport and Culture in the Scottish Parliament, the hon. Member for Strathkelvin and Bearsden (Mr. Galbraith), described it on Second Reading as

``a splendid, courteous and decent way to deal with such matters''—[Official Report, 22 January 2001; Vol. 361, c. 679.]

I agree. The co-operative spirit of devolution must be maintained.

I recognise that it is sensible to leave some matters, such as stem cell research, to Westminster, but discussion must precede that to achieve a satisfactory outcome. As we know, advertising does not respect boundaries. Scotland has advertising near schools, in many cases in deprived areas. It is important for the devolved Assemblies to be able to undertake fine tuning in such matters. I have an interest as a former schoolteacher who knows the pernicious effects of smoking on young people, many of whom take it up at an early age. One of my duties, especially when I was in charge of guidance in a secondary school in Glasgow in the early 1980s, was to ensure that at interval time and lunch time we minimised smoking by young people. Billboards and adverts make them believe that smoking is a good thing for them to do, and, sadly, in today's society, many young females smoke.

Statistics vary throughout the country, which is why it is important to place the matter in a Scottish context. In Scotland, 10,000 people die a year—1 million in the United Kingdom—because of the effects of smoking. That has a big effect on the budget of the Scottish Parliament and it is important to refine that budget according to the priorities that we identify. I want the Scottish Parliament, working with the Westminster Government, to ensure that we have appropriate UK policies and that we tackle the pernicious effects of smoking.

On Government amendment No. 17—

Ian Bruce (Conservative, South Dorset)

The hon. Gentleman has introduced the devolved aspect, which is a factor that I had not considered in relation to the Bill. As he will have heard me say, I thought that it was a DTI Bill, not a health Bill. Health is a devolved matter. According to his interpretation, when the Bill is enacted in this place will it mandate the Scottish Parliament to have the same laws?

John McFall (Labour/Co-operative, Dumbarton)

It is good that the hon. Gentleman was in Kosovo doing such good work. He should read the Second Reading debate, when the matter was explained clearly. I repeat, for his sake, that the Sewel amendment proposed a convention whereby the devolved Assemblies deal with legislation. If they agree with the Westminster Government, legislation can be passed—which is a splendid arrangement, as the hon. Member for Strathkelvin and Bearsden said. I am sure that, if the hon. Member for South Dorset wishes, the Minister will provide a private tutorial for him so that next time he is up to date.

Ian Bruce (Conservative, South Dorset)

It was a genuine inquiry. I am glad to hear that, despite the fact that it does not say so on the Bill, the legislation applies to the whole of the United Kingdom. That is sensible.

I wish to speak to Government amendment No. 17. The Committee is in a strange position. The proceedings are happening in a matter of a few days. We discussed the Bill on Second Reading, and then the Minister has tabled amendments in Committee, which I understand that I cannot amend. I did not see amendment No. 17 early enough to table an amendment to it that you might have selected, Mr. Malins.

The Minister has tried to be helpful, and has, no doubt, listened to some advice and tried to come forward with a new amendment, but it is defective. On the one hand, the defects can be overcome because the Government are using a device whereby they do not tell us for certain what the regulations will say. They reserve the right to make up the regulations as they go along. In some ways, they can do that. The hon. Member for Rother Valley is nodding his head as though that is a good idea, but I know that he wants the regulations to be watertight, and wants to ensure that his Ministers manage that.

I direct colleagues to the word ``website'' and how the regulations will deal with a website in which tobacco is offered for sale. My understanding of a website is that yahoo.com or BT Internet could be one. The Conservative party could be a website. What is interesting about websites is that, by the nature of the world wide web, every web page is connected to every other web page throughout the world. What the Government are rightly trying to do is to deal with web pages that direct people to a website with advertisements for tobacco, displaying the price and so on. Any web page can effectively direct people to a site where they can purchase tobacco. It may be completely unrelated to tobacco. Someone may have asked about football, and the site will contain a little logo, with the appropriate regulations about how much information is allowed to be given, and that will direct people to the best deals on tobacco. I do not think that the Government want that to happen, but it is happening.

The Minister talks about websites, but she excludes e-mails, which are not the same thing as websites. We all receive e-mail on our computers, and read information sent to us. Those e-mails may be wholly legal by nature of the fact that someone has asked for information and it has been sent, but as everyone knows, when they log on in the morning, they find that hundreds of advertisements have been sent because a global address list is available. I do not know how many address lists are now available that feature Members of Parliament and their secretaries and anyone with anything to do with Parliament. It takes just one click of a button and we are all sent the same e-mail. How will the Government deal with that when they have defined the term ``website'' so narrowly? If people are interested in purchasing tobacco and get into the address where it is sold, it is ridiculous to say that the web page cannot advertise the product. The Minister needs to look at such matters extremely carefully.

I wish to cite a couple of examples. When there was a Conservative Government, I went to the Home Office to talk about the Computer Misuse Act 1990, which was often known as the anti-hacking Act. Those who wrote the legislation had not a clue about the nature of what they were writing about. I hate to say that, because we have some skilful draftsman here and the internet is something that people understand a great deal more about now, but the definition under the Bill will make it difficult for the Government to make regulations.

I have introduced only one private Member's Bill. It was the Telecommunications (Fraud) Act 1977. We could not find an all-encompassing description of the wire or device, so it is described as a ``thing'' throughout the Act. That was the only way in which to ensure that the measure was technology proof. We must stop people finding a route to enable them to say, ``I can advertise, because I have used the appropriate criteria.'' Someone said to me, ``I'll tell you how to get billboards back in the United Kingdom. You publish them on the website, and project images on a huge screen by the roadside.'' That is a way around the regulations that the Government are attempting to introduce.

The Government are saying that they do not want published on an individual's computer an advertisement for tobacco without that person having said, ``I want to read about where I can buy tobacco.'' We must tackle the problem of people knowing how to click on the URL for a certain address in a lawful way when, in effect, clicking on the box labelled ``tobacco'' is illegal. That must be dealt with.

Kevin Barron (Labour, Rother Valley)

Given that electronic screens could replace billboards now, does the hon. Gentleman agree that it is sensible that the Government have the power to introduce regulations to cover such matters where people would try to promote the use of tobacco?

Ian Bruce (Conservative, South Dorset)

I do not disagree with the hon. Gentleman's point.

Kevin Barron (Labour, Rother Valley)

So why are you criticising the regulations?

Ian Bruce (Conservative, South Dorset)

I shall leave you, Mr. Malins, to deal with the hon. Gentleman. It is not my place to call him to order, and I shall not respond to his intervention.

One could say inadvertently, ``Here is a legal route by which an advertisement can be displayed''. Regulations may state that it can be displayed on an individual's computer, and regulate the way in which someone obtains the information from the computer. That would be similar to a point-of-sale system. The Government are saying that, instead of going to a shop to buy cigarettes, people could purchase them from the internet. We have not had a chance to amend the new subsection in the Minister's amendment. Will she please reconsider it in the light of my remarks?

Yvette Cooper (Labour, Pontefract and Castleford)

To answer the hon. Gentleman, it is not unusual for the Government to table amendments in Committee. It often happens. His understanding of the Government's intention differs from mine, so I will clarify it. E-mails containing advertisements and sent in the course of business—whether or not those advertisements are also on a website—are electronic communications and will be covered by the Bill. E-mails sent by individuals, but not in the course of a business, will not be covered by the Bill. A particular e-mail is not a ``place'' or a website where products are sold. E-mails would not be exempted, subject to regulations, under clause 17, and clearly are covered by the Bill.

The hon. Gentleman asks whether a website could be displayed on a massive computer screen where there used to be a billboard. Someone owns the computer screen and has paid for it to replace the billboard. That is publishing by electronic means in this country, and will be subject to this Bill. If it were not possible to prosecute the original person who had drawn up the website—for instance, if that person was in a foreign country—the person who owned the computer screen would, none the less, be publishing it for people driving past in their cars, and would therefore be liable for prosecution under the Bill.

To answer the hon. Gentleman's question about links between websites, clause 4(2) clearly states that the advertisement has to be on a website and not on some faraway link to that website. Regulations will clarify that. The internet is a complex area and that is why we will consult on the regulations. I do not accept, as the hon. Member for South Dorset says, that there are huge loopholes or problems in the amendment.

I support the points made by my hon. Friend the Member for Dumbarton (Mr. McFall). It is right for Scotland to make its own decisions. The level of support for the Sewel motion demonstrates the enthusiasm for working together on this issue from both Westminster and the Scottish Parliament.

Amendment agreed to.

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

Caroline Spelman (Conservative, Meriden)

Some important points have been made, but I wish to re-emphasise to the Government that an increasing number of matters are being left to regulations. In my short time in Parliament, I have discussed a sufficient number of Bills in Committee to know that that creates considerable disquiet in those who have to work with the Bill. Too much room is left for interpretation after the event, which results in an empty-box type of legislation. Only the framework is created, but in terms of the tools that people have subsequently to work with, it is what is inside the box that is important.

A number of terms could have been more clearly defined in the Bill. I accept that the Government are trying to do so by helping to clarify the definition of a ``place'', but that could have been extended to other terms. The general weakness of the clause is that much of it will be left to regulations. There is still a fundamental lack—there is no definition of an advertisement. There have been some helpful examples, but the whole of the Committee's time cannot be spent going through examples as a way of having on the record in Hansard clear guidance for those who have to work with it. That is my anxiety about clause 4.

Yvette Cooper (Labour, Pontefract and Castleford)

We have already had an extensive debate on many of the issues around clause 4, which sets out some of the exemptions under the Bill. Clearly, it is not the Government's intention to prevent those legally selling tobacco products within the tobacco trade from going about their business under subsection (1)(a). Nor is it our intention to allow a huge loophole for direct marketing under subsection 1(b). Under subsections (1)(c) and (1)(d) we recognise, in particular, the issues regarding foreign publications and in-flight magazines. Subsection (2) sets out the need for regulations on point-of-sale advertising and it is right that we consult on that in detail. Subsection (3) is purely a definition.

Question put and agreed to.

Clause 4, as amended, ordered to stand part of the Bill.

Further consideration adjourned.—(Mrs McGuire.)

Adjourned accordingly at four minutes to Five o'clock till Tuesday 6 February at half-past Ten o'clock.