Tobacco Advertising and Promotion Bill [Lords]

Public Bill Committee, 14 May 2002.

Tobacco Advertising and Promotion Bill [Lords]

Peter Pike (Labour, Burnley)

I welcome hon. Members to the fourth sitting of the Committee. In accordance with a decision of the House, there are only five hours of debate left on the Bill. It is important that all clauses are debated and I hope that positive, constructive progress will be made today.Clause 17 Defences: burden of proof

Clause 17 - Defences: burden of proof

Tim Loughton (Conservative, East Worthing and Shoreham)

I will kick off this morning's proceedings by welcoming you to the Chair, Mr. Winterton and to the later stages of the Bill. I echo your comments that we should make positive, constructive progress. The Opposition have wanted to do so for the past three sittings. You will notice that, although we are about to debate clause 17, we shall then revert to clause 6. I fear therefore that we have made positive, constructive progress on only five clauses out of 22, which reinforces what the Opposition said at the outset: that our proceedings in Committee have been curtailed too severely.

The Minister promised to consider various clauses that we shall revisit on Report and that emphasises the fact that there are still parts of the Bill with which many people are unhappy and that require far greater scrutiny. Otherwise, it will see its next airing in the courts—something that we should avoid. We must make the Bill as explicit as possible.

It would be useful to receive clarification from the Minister on clause 17. It is a later clause and was added to the Bill at the same time as the amendments to clause 5 were tabled. It deals with the burden of proof on defences. I am slightly mystified why we have to reinforce what I have always understood to be the basis of English law: that someone is innocent until proven guilty. All that the clause does is to restate the natural processes of law. We have often urged the hon. Lady to be more explicit, thus avoiding any possible misinterpretations of the Bill, but we are always told that it is self-evident. I wonder why the additional clause—welcome, though it was to many—was deemed to be necessary, repeating as it does the natural processes of the English legal system. It removes the need for the defendant to prove that he was acting reasonably, thus creating an evidential rather than a legal burden on the defence.

Subsection 2 is drafted in pretty poor English. Subsection (1) just about gets away with it, by referring to the long list of previous clauses. But the words,

''Where evidence is adduced which is sufficient to raise an issue with respect to that defence, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not'',

do not read well. The clause does not trip off the lips as easily as other parts of the Bill. It is a late addition and an example of how not to use the English language.

I will not detain the Committee with detailed, reworded amendments, but I wonder if the Government could improve the wording of the clause. We welcome the clause, but we would particularly welcome some additional explanations from the Minister as to why it was necessary to include a provision that appears to be self-evident.

David Wilshire (Conservative, Spelthorne)

I also welcome you to the Chair, Mr. Winterton. The Bill that we are discussing has proved to be both fascinating and instructive. We have made less progress than I had hoped with regard to the Government listening to reasoned argument.

As for making progress, I agree with you, Mr. Winterton, that it is important that a Bill be scrutinised in full from beginning to end. That is why the Government's suggestion that there should be eight sittings struck me as unreasonable. Eight sittings became seven, seven became six, and six ended up as five, and that is why it is proving difficult to make the progress for which some people have wished.

I have always worked on the principle that the role of the Committee is to scrutinise the Bill properly and thoroughly to ensure that we pass sensible and good legislation. If it has taken longer than some people would have liked, the fault lies not with us, but with those who decided that the debate should be truncated and that the issues should be made to fit the time that was deemed to be available, rather than making the time fit the importance of the Bill. I pointed that out during the Programming Sub-Committee and nothing subsequently has made me change my mind.

I am not a lawyer and I always find it difficult to get my mind around provisions such as clause 17, which refer to the workings of the law. When I see that type of clause, I ask myself why it has been included in the Bill. As a layman, I was always brought up to believe that everyone in this country is innocent until proven guilty. It is surprising, therefore, to discover that clause 17(2) appears to state that a person is innocent until proven guilty. I had believed that that was the standard assumption of all courts in this country. When I read that the Bill says what I assume to be true, I become extremely suspicious. It is not simply restating the obvious and has been included for a reason. After 15 years in this place, I have a somewhat suspicious mind, which leads me to think that the provision is intended to water down what would otherwise be an absolute right of all British subjects standing before a court.

Will the Minister say why subsection (2) states

''the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not''?

There must be a reason for it, because as I understand the law, it would not be necessary, unless the Government were trying to alter the status quo when a case is brought before the courts.

I did not interrupt my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) when he was in full flow, but he said that clause 17 appears to make the test evidential, rather than legal. He clearly has a better grasp of such matters than I do. Will the Minister say what the significance of that comment is and whether there is a difference between the evidential and the legal? I always assumed that the court process concerned legal matters. If there is a difference, I should be grateful if the Minister would explain it. If there is a choice to be made between evidential and legal, why have the Government chosen evidential? I have two questions about subsection (2): why does it refer to the burden of proof and why is a choice made about evidence in it?

Subsection (1) makes a key point, too. It says:

''This section applies where a person charged with an offence under this Act relies on a defence under any of sections 5(1) to (6), 6(1), 9(5), 10(3) and (4) and 15(3).''

What about any defence that does not rely upon those clauses? I speak as a layman, but I presume that there might be such defences, either in common law or in statute law when there is spill-over from previous statute laws, as is the case with the Bill. Why should the provision mentioning the burden of proof relate to the defences listed, but not to others? If there is good reason to refer in subsection (2) to evidence that is ''beyond reasonable doubt'', why does that not apply to every defence that could be used in a prosecution under the Bill? A choice must have been made.

I should be grateful if the Minister would consider the issue raised by my hon. Friend—the fact that the provision has been added to the Bill. That means that the Bill as originally published and considered in the other place, was, after discussion, deemed by the Government to be flawed. The Government decided that there was something wrong with the Bill and so they added something to it. It would be helpful to be told what it was that the Government realised was a mistake; why the clause was chosen as the means of solving that problem; and what other routes to solving it were considered before that one was chosen. I hope that the Minister can explain to me, a layman, some of the intricacies of the legal thinking.

Yvette Cooper (Labour, Pontefract and Castleford)

I also welcome you to the Committee, Mr. Winterton.

The clause was introduced in the other place; it was not part of the Bill that we discussed a year ago in Committee. It is about the burden of proof when the defendant has a defence. As we have said many times, we have structured the Bill by setting out an offence—the promotion of a tobacco product through a tobacco advertisement—and then setting out the defences

against it. The prosecution must prove that offence beyond reasonable doubt. The issue is who has the burden of proof for defences.

Someone who distributes or publishes a tobacco advertisement might believe that they have a defence. For example, they might not have known or have had no reason to suspect that the tobacco advertisement would be published in the United Kingdom. The clause sets out clearly where the burden of proof lies in the case of such defences; it lies with the prosecution, who will have to prove, first, that the defendant committed an offence by publishing or distributing a tobacco advertisement and, secondly, that the defendant's defence does not stand up.

The reason for subsection (2) is that the defendant has to produce some evidence

''to raise an issue with respect to that defence''.

In other words, the defendant must produce some credible evidence to support their defence. If the evidence

''is sufficient to raise an issue'',

the prosecution has the burden of satisfying the court or jury on the matter beyond reasonable doubt in the ordinary way.

David Wilshire (Conservative, Spelthorne)

If I understand the Minister correctly, she suggests that in some circumstances it is up to the defendant to prove the case for his defence. I have always assumed that it is up to the prosecution to prove the case. I find it amazing that that is suddenly necessary and we have not heard why.

Yvette Cooper (Labour, Pontefract and Castleford)

The Committee's purpose is not to comment on the structure of the British legal system, and, as I am not a lawyer, I have no intention of doing so.

The purpose of the amendment is to make it clear where the burden of proof lies in the defence. It is right that the burden of proof should lie with the prosecution once someone has offered evidence that they have a defence under the Bill. The clause is intended simply to get the balance right and to ensure that the things that the defendant in such a case must prove are reasonable in respect of banning tobacco advertising.

David Wilshire (Conservative, Spelthorne)

That will not do. I appreciate that the Minister is not a lawyer and, therefore, cannot necessarily give detailed answers, but the Government owe it to the Committee to ensure that someone can answer the legal questions. I challenge the concept of the need to specify that the matter is for the prosecution to prove, rather than the defence.

The Minister says that we cannot consider the British legal system because that would be to go down another route, but that is exactly what we have to do. Surely we are here to deal with the vagaries of the British legal system? If we do not, how can we be satisfied that the Bill is sensible within the framework of that system? When the Bill is enacted, the only way in which it will be tested will be in the courts. The vagaries of the British legal system and how its courts work will be the way in which the Bill is tested.

I find it strange that it seems necessary to specify that the defence must not prove something, and I have heard no explanation why. I was under the impression, and the Minister has said nothing to dissuade me, that defences never had to prove anything in court, and that in a criminal court it was entirely up to the prosecution to prove a case and, unless the case was proved beyond all reasonable doubt, it fell.

The clause has been included for a reason, which cannot be to clarify an existing state of play. If the Minister cannot give us the legal explanation why it is necessary, will she arrange for someone else to do so and to write to the Committee with the answer?

Yvette Cooper (Labour, Pontefract and Castleford)

I have made the role of the clause clear. The previous wording, which did not include the clause, might have required a defendant to prove his defence on the balance of probability. That is the nature of the—

David Wilshire (Conservative, Spelthorne)

Will the Minister give way?

Yvette Cooper (Labour, Pontefract and Castleford)

If the hon. Gentleman wants to hear my answer—

David Wilshire (Conservative, Spelthorne)

Why would it be necessary in a criminal court for the defence to prove something? Surely that is what happens when the balance of probabilities is involved, in a civil court? Before the Minister gives the rest of her explanation, she cannot pass over the comment that it would otherwise have been necessary. Why?

Yvette Cooper (Labour, Pontefract and Castleford)

If the hon. Gentleman is so convinced that the clause is unnecessary, he is at liberty to vote against it, as this is a stand part debate. The Bill sets up an offence that the prosecution must prove beyond reasonable doubt. Defences are set out in the Bill. The question is, on whom does the burden of proof lie in respect of those defences?

Kelvin Hopkins (Labour, Luton North)

Surely there can be no harm in restating a principle of British justice in a Bill that may tread new ground in British law? The Bill goes too far to make it as easy as possible for tobacco companies to avoid prosecution, by making it hard to secure a prosecution. Obviously, they will be punished as appropriate, but the hon. Member for Spelthorne (Mr. Wilshire) has a point—the clause restates a principle of British justice. However, it is right that the clause is in the Bill.

Peter Pike (Labour, Burnley)

Order. This is too long for an intervention.

Yvette Cooper (Labour, Pontefract and Castleford)

My hon. Friend the Member for Luton, North (Mr. Hopkins) is correct. The clause is partly a response to recent case law and partly to concerns raised in both Houses about clarifying where the burden of proof lies. Without the clause, the previous wording may have required defendants to prove their defence on the balance of probabilities. The prosecution must prove the offence beyond reasonable doubt, but defendants would have had to prove their defence on the balance of probabilities.

Recent case law has made it clear that the principle by which a person is innocent until proven guilty may be breached. The clause has been included in the Bill to put the matter beyond doubt and make it clear that the only burden on the defendant is to provide evidence. The burden of proof falls to the prosecution, once the defendant has provided evidence in the case.

David Wilshire (Conservative, Spelthorne)

The longer the Minister talks, the more complicated the debate becomes. Every time that she is pushed to produce an explanation, she produces part of it and then falls back on some reference. Last time it was, ''We shouldn't discuss the principles of British justice,'' but we need to. This time it was, ''It is necessary because of recent case law.'' If she had said that the first time, there would have been no need for the second explanation. However, saying that the clause depends on recent case law is not sufficient. If people read our debate when a case is coming to court, they will need to know which cases we have in mind. What recent case law? Let us put on record the cases that led to the clause.

The hon. Member for Luton, North cannot be allowed to get away with his intervention without comment. He said that somehow or other we seem to be making things as easy as possible for the tobacco companies to do this, that or the other. With the greatest respect, we are making is as easy as possible for the innocent to be found innocent of charges brought in court, which has nothing to do with tobacco companies. If someone is innocent, they must be found innocent.

If the prosecution cannot prove its case, a person is innocent. That is what this debate is about. If we are making it as easy as possible for justice to be done, I would say, ''Amen'' to that and I do not apologise. Tobacco companies should be able to go about a lawful trade unhindered in a legal way as innocent organisations. On the other hand, if a tobacco company breaks the law, it should be prosecuted. It is for the prosecution to prove the case.

The hon. Gentleman also said that it was a good idea to spell out the principles. He should think carefully about that. Why is it a good idea in this clause but not in others? He should have realised by now that I am happy to have a lengthy debate on the principles underpinning each clause with regard to British justice. One cannot pick and choose and say, ''Let's have some principles here and ignore principles somewhere else.'' His intervention must be challenged on those grounds.

Will the Minister tell us what recent case law?

Yvette Cooper (Labour, Pontefract and Castleford)

The most recent cases were those of Lambert, in which the House of Lords ruled on the provision in the Misuse of Drugs Act 1971 requiring a defendant to prove something in order to establish a defence. That must be read as requiring the defendant to give only sufficient evidence that he did not know something—an evidential rather than a legal burden of proof.

That case was followed by the Carass case in the Court of Appeal. I have clearly set out the purpose of the clause. If the Opposition are unhappy, I suggest that they vote against it.

David Wilshire (Conservative, Spelthorne)

Thank you. If we had had that explanation and the case law 20 minutes ago, we would not have needed the debate.

Question put and agreed to.

Clause 17 ordered to stand part of the Bill.

Clause 6 - Specialist tobacconists

David Wilshire (Conservative, Spelthorne)

I beg to move amendment No. 32, in page 3, line 39, after 'by', insert 'actual'.

Peter Pike (Labour, Burnley)

With this it will be convenient to take amendment No. 33, in page 3, line 44, at end insert—

'(3)(c) In the event of an interruption in the availability of the items set out in subsection (2), the relevant 12 month period is the most recent 12 month period during which there was no interruption to such supply.'.

David Wilshire (Conservative, Spelthorne)

Amendment No. 32 is designed to probe the Government on the meaning of the clause and amendment No. 33 deals with a matter of greater substance. We may wish to press that amendment, although that will depend on the progress of the debate.

First, on amendment No. 32, subsection (3) states:

''The sales referred to in subsection (2) are to be measured by sale price''.

The Bill does not contain a definition of ''sale price'', which could have several meanings. The hon. Member for Luton, North mentioned spelling out principles; we should spell out definitions.

I think that I know what the Government mean, but I suspect that if we are not careful we could easily create a loophole for the tobacco companies, which the hon. Member for Luton, North does not much care for. Inserting the word ''actual'' would at least quantify the concept of the sales price. That word may not be right or what the Government mean. However, ''sale price'' has many possible meanings. The meaning could be the recommended price of a product or the discounted price. It could be the price before or after duty is charged, or the price before or after the addition of value added tax. It could be a price subject to a deal whereby the product is added to other items before an overall discount is applied.

If a prosecution were brought that was based on the ''sale price'', has any lawyer given thought to the following? If the clause says only ''sale price'', a defence could be offered that the recommended sale price is so and so and, when calculating sales figures, the recommended list price of the product rather than the actual or discounted price should be used because the discount that is given is based on the value of the customer and the overall business that he brings. Such business need not come only from tobacco products

because it could come from many other items. One could argue that the discount applied was that granted to the customer, not the product. A good lawyer could have quite a bit of fun with that defence and I imagine that it would be difficult to return to this Act—as it will be—and point out that the clause says ''sale price''.

Has any thought been given to that problem and does a definition of ''sale price'' apply generally in law? The hon. Member for Luton, North mentioned principles. However, we are returning to previous debates. I promise you, Mr. Winterton, that we will not have those debates again in general terms but, in your absence, we have had several discussions on the need for definitions to avoid doubt. This is a further case. What is the ''sale price''?

We tabled the amendment to stimulate discussion and to allow us to get our minds around the subject. My colleagues and I are not wedded to the word ''actual'', but that word would define ''sale price''. If the Minister does not like the word, I would be happy to hear an alternative. I stress that amendment No. 32 is a probing amendment and we do not necessarily wish to press it to the vote.

Amendment No. 33 raises a different issue. I am the first to admit—given that I drafted the amendment—that when a layman drafts an amendment, it is perfectly possible for it to be a load of nonsense in legal terms. Therefore, I am not deeply wedded to the wording. If the Minister says that the wording is useless and offers me a different form of words that has been researched by Parliamentary draftsmen, I will be delighted.

I have chosen those words because I am trying to tackle an important issue. Clause 6 says that specialist tobacconists can have exemptions or dispensations with regard to the provisions of the Bill. The Government have decided that that should be the case and that is fine with me—although the hon. Member for Luton, North would claim that the tobacco companies might be able to take advantage of that.

The clause seeks to define a specialist tobacconist by reference to sales. It states that if a business has been established for less than 12 months, the available information should be examined, and that if a business has been established for longer than a year, the previous 12 months' figures should be studied. If those figures show that the turnover of the business does not divide in such a way that it can be classified as a specialist tobacconist, I assume that that business will no longer be a specialist tobacconist and that, therefore, it will no longer be able to take advantage of this dispensation. The Government are saying that a business will be classified as a specialist tobacconist if more than 50 per cent. of its turnover is in tobacco products. That is fine—although we could argue whether that is the correct percentage, and that could be discussed in a stand part debate.

The Government have said that that is how they will measure whether a business is a specialist tobacconist, but it is possible for a business that has been a specialist tobacconist for many years to have a different year in trading terms. The trading patterns of that business

might change because the owner does things that alter the nature of the turnover. If those things are done voluntarily, that is fair enough; the owner might know what they are doing because they are aware of the need to stay within the Government's rules but choose not to do so—or not to take remedial action during the course of the year to ensure that the business does stay within the rules. If proprietors of such businesses choose to be in that situation, or are so silly that they do not bother to address it, they richly deserve their fate, because matters are within their control.

However, as Committee members who have run businesses know, circumstances can arise over which one does not have any control. I ran a retail business during the miners' strike; we lost our electricity supply and our sales plummeted. How much they fell depended on the time of day when our electricity was cut, because there is a pattern to when people buy things within the day as well as within the seasons. I had no control over the loss of the electricity supply. My turnover figures for that year were very different than those for many previous and subsequent years.

A specialist tobacconist might be unable to get specialist tobacco products because of a strike of some sort—such as a distribution, a manufacturing, or a shipping strike. It appears that we are returning to an era of industrial unrest, so any of those strikes could happen and they could last for a protracted period. Therefore, a business might find that its turnover of tobacco plummets and that there is nothing that it can do about that. The Government are stoking up the industrial unrest and it would be grossly unfair if they caused a strike and then penalised entirely innocent businesses.

This amendment is intended to address that problem. As I have said, its wording might be unacceptable to the lawyers, but it seeks to say that if a business is caught up in a strike that it cannot control and that affects its previous 12 months' figures, the figures for the 12 months before that—when there was no interruption of supply—must be used. The amendment would take out of a financial calculation a year in which unusual trading was not a result of the business's action or inaction.

The provision gives rise to another issue. Given crop failures and climate variation, it is possible that the availability of tobacco in its usual quantities from particular places may vary. As a non-smoker, I must rely on what other people tell me, but I gather that there are distinct differences in tobacco and that if someone smokes tobacco that comes from Africa, it does not automatically follow that he will want to smoke tobacco that is grown in America.

A specialist tobacco business may be based on a particular brand and be popular among certain customers because the tobacconist is obtaining the product from a particular area. If that crop fails or the change of climate restricts its availability and the tobacconist switches to another product that his customers do not like or with which they are not familiar, the turnover of the business could plummet in

the short term. It would take that business a while to build up a new clientele who would appreciate the new product.

Again, the interaction of supply in such a situation will be out of the control of the retailer. It is unreasonable to expect the business to be closed down and to run foul of the Bill because, in the short term, it had to change its product. I should be grateful for the Minister's response to such matters. I do not want her to comment on the wording of the amendment, other than to say how she could improve it. What are her views about an uncontrollable interruption of supply? Does she believe that it should be excluded from the financial calculations under the Bill?

Andrew Hunter (Conservative, Basingstoke)

I add my words of welcome to you, Mr. Winterton, to those that have already been expressed. I shall not detain the Committee because my hon. Friend the Member for Spelthorne has rehearsed in some detail the arguments in favour of the amendments. I regard them as serious and I hope that the Minister does, too. It is clear from my hon. Friend's argument that the words ''sale price'' are insufficient because they lack clarity and definition.

I support what my hon. Friend said about the possible interruption of tobacco supplies. As a smoker, I have experienced it. In the past two or three years, it has not always been possible to obtain certain types of Zimbabwean tobacco. That illustrates the broad theme of my hon. Friend's argument. It is a matter of regret that the Government have pursued the sales threshold with which amendment No. 32 deals. An alternative route was suggested in an amendment tabled in the other place, which was to change the threshold from ''sale price'' to the number of brands of tobacco products stocked in a particular shop.

Interestingly, that is the measurement used in comparable Dutch legislation. The argument for it is that it is far simpler to operate a system based on the number of brands than on sales, which are variable. Will the Minister kindly explain why the Government did not follow the example set by Dutch legislation?

Yvette Cooper (Labour, Pontefract and Castleford)

I do not think that the amendment adds anything to the Bill; it is therefore unnecessary and the Government oppose it. It is straightforward that ''sale price'' means the price at which the goods were sold—the amount that the customer pays the tobacconist, the coins that cross the counter, the number on the switch card stub.

Under amendment No. 33, a complicated assessment would have to be made of interruption to supply. That would introduce all sorts of difficulties and complications about how such an interruption would be measured. The Bill allows a 12-month period—not three, one or six months—in which sales are to be measured. That is a considerable time and I think that the provision is fair. It would not be right for the Bill to try to anticipate every problem that might arise in the life of a specialist tobacconist, whether it be a change in local demand, an interruption in supply or any other hiccup. Those problems are in the nature of business, and tobacconists must respond to them.

If specialist sales fall below 50 per cent. in the 12 months in which sales are assessed, retailers will not, under the terms of the Bill, be counted as specialist tobacconists. Therefore, they will not get the allowances to which the clause refers. The hon. Gentleman asked why the Government chose to focus on sales rather than numbers of brands. It is easier to get round the number of brands, and so if the Bill concentrated on that, it would be easier for the provision to become a loophole. The Netherlands's legislation has not yet been implemented or enforced, so we do not have any experience of that system to draw upon. It is right to focus on sales rather than the number of brands on offer.

Andrew Hunter (Conservative, Basingstoke)

The Minister referred to the 50 per cent. threshold, which I had intended to deal with in the stand part debate. I should like to ask her a question about it. We should challenge why that 50 per cent. threshold has been chosen. No health factor is involved in the choice of that figure. It does not make any difference to the purchaser—the smoker—what percentage of the tobacconist's stocks sold is from the allowed products. By insisting on a 50 per cent. threshold, we are not decreasing the health risk for the purchaser.

I am conscious of the burden of bureaucracy that the provision will put on the small retailer and I should like the Minister to deal with that matter. The other day, I asked the specialist tobacconist from whom I buy my cigars how a 50 per cent. threshold would work in practice. He said that it would be a considerable demand. He also sells non-tobacco products. He tells me that the percentage of his takings that comes from tobacco products for which tobacco advertisements would be allowed varies from month to month. Some months, it would be more than 50 per cent., but in others it would be less than that. He regards it as an unnecessary burden that, under the Bill, he would have to put up and take down advertisements almost on a monthly basis and would see that as an unreasonable requirement from the Government.

For the life of me, I cannot see any logical reason for a 50 per cent. threshold because, whether it is 50 per cent., 30 per cent., or 10 per cent., it will not affect the health of the smoker. He will buy the tobacco products that he wants, regardless of the proportion of retail sales that his purchase constitutes. Will the Minister explain the purpose of the 50 per cent. threshold?

David Wilshire (Conservative, Spelthorne)

In view of the intervention by my hon. Friend the Member for Basingstoke (Mr. Hunter), I want to query the status of the stand part debate. We have moved away from the two amendments and there are other issues to be discussed that would be better dealt with in a stand part debate. I seek an assurance about your views, Mr. Winterton, so that we may decide whether to debate further issues on the amendments or leave them until the stand part debate.

The Chairman: Heavy weather is being made of the debate this morning. If there are matters that Opposition Members wish to discuss that are not dealt with on the amendments, I will, of course, allow a clause stand part debate.

David Wilshire (Conservative, Spelthorne)

Thank you, Mr. Winterton. I will avoid roaming over territory that is not covered by this morning's debate. With regard to amendment No. 32, it is interesting that the hon. Member for Luton, North did not leap to his feet and shout, ''Loophole'', because it would be easy for specialist tobacconists—not for the tobacco companies this time—to slip through the legislation. When the Minister spoke about the price at which the goods would be sold, I immediately saw a loophole—a very big loophole—looming.

Let us suppose that I am on the borderline of qualifying as a specialist tobacconist and I know that sales are measured by the price at which the goods are sold. I have good and regular customers, on whom I can rely to keep me in business, and they rely on me to supply them with the specialist products that they want. I might be tempted to say, ''Unless my turnover is 'adjusted', I cannot supply you with the specialist products that you want, so for the next few weeks I shall double the price of my hon. Friend's cigars and halve the price of other products.'' The figures on the counterfoil of the Visa card—the money that is passed over the counter—have been cooked. They have been made to fit. I had expected a response from the Minister to show that the Government mean the money that changes hands, providing that the price charged is not artificial.

There is a loophole and the Minister has just opened it up. I wonder if she might like to close it down again by agreeing that, if she is to rely upon the sale price being the amount of money that changes hands, an amendment needs to be introduced. An amendment is needed that would show that the price charged, or the price that changes hands, is not greater than the recommended retail price of the product. I am sure that a lawyer could find a way of wording it. I am not wedded to the word ''actual'' in amendment No. 32, and I will seek the leave of the Committee to withdraw it, so that we can move on to amendment No. 33, which I wish to move formally.

From the way in which the Minister responded to my questions, I suspect that she has never run a retail business. Otherwise, she would not have offered the view that 12 months is a nice long time in which it is perfectly possible to sort things out. That is not true. Two things occur to me about the tobacco business. Tobacco is an annual crop, and if someone misses this season, they must wait a full 12 months before the next one. It is not something that can be sorted out three months later because there has been a crop failure. If ever there were an industry that needed to work on at least annual cycles, it is one that depends for its raw materials on an annual cycle about which nothing can be done.

The other thing that was clear from the Minister's reply that 12 months is a long time was that she has never examined the sales figures of retail businesses. In my retail business, like many, more than half the

turnover was obtained in November or December, because of Christmas. I assume that the same is true of tobacco products, as many people seem to give and receive them at Christmas. A strike, for example, or interruption in supply, in late November or early December, could seriously hit the part of the trade that matters most in arriving at that calculation.

I therefore do not believe that the Government have taken the matter seriously. They merely say that 12 months is a long time and believe that tobacconists should simply sort themselves out. They would if they could, because their livelihood is at stake, but in some circumstances, specialist tobacconists cannot sort themselves out. I cannot believe that even this Government want to penalise people for matters that are entirely beyond their control. On that basis—unless the Minister wants to respond—I shall withdraw the amendment.

Yvette Cooper (Labour, Pontefract and Castleford)

I am happy to respond briefly to the points that have been made. The hon. Member for Basingstoke asked about the purpose of the threshold. Cigars, snuff and pipe tobacco are addictive and harm health. The clause allows specialist tobacconists some specialist treatment, because we recognise the concerns of small businesses that appeal to a narrow adult market. However, we must place clear restrictions on that treatment.

Removing the threshold as the hon. Member for Basingstoke suggests would create a massive loophole. He seems to be arguing that anyone who sells cigars, snuff or pipe tobacco should be able to advertise them. We do not believe that that is right, and to do so would constitute an abuse under the Bill. Businesses fiddling figures would involve issues relating to falsifying figures and legal restrictions.

Subsection (1)(c) refers to compliance

''with any requirements specified by the appropriate Minister in regulations in relation to tobacco advertisements on the premises of specialist tobacconists.''

A reference to regulations is included in case a loophole is created in future that is exploited in a particular way by aspects of the tobacco industry. It is therefore right to reject both amendments.

David Wilshire (Conservative, Spelthorne)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 33, in page 3, line 44, at end insert—

'(3)(c) In the event of an interruption in the availability of the items set out in subsection (2), the relevant 12 month period is the most recent 12 month period during which there was no interruption to such supply.'.—[Mr. Wilshire.]

Question put, That the amendment be made:—

The Committee divided: Ayes 3, Noes 12.

Tim Loughton (Conservative, East Worthing and Shoreham)

Several issues need to be addressed because, the longer the debate on the amendments moved by my hon. Friend the Member for Spelthorne continued, the more apparent it became that the clause is a pig's ear. It was clear from the outset—the Minister admitted it—that the use of the 50 per cent. sales figure is arbitrary. My hon. Friend the Member for Basingstoke mentioned other systems, in particular the system in Holland, that could be equally open to abuse if tobacconists were so minded. My hon. Friend the Member for Spelthorne mentioned that ''sale price'' lacks any definition.

I gather that we are considering 380 specialist tobacconist businesses, which is a very small number of establishments out of the total of 22,000 retail outlets that sell tobacco products. The Minister told us that they are singled out and given special treatment in the Government's clause because the Government recognise the concerns of small businesses. If there are 22,000 retail outlets that sell tobacco products, which are commonly dominated by cigarettes, I guess that a substantial proportion of the remaining 21,620 outlets are also small businesses. It is not the case that every outlet that sells cigarettes is a big business—some are, especially supermarkets, most of which have tobacco counters—compared with outlets that sell specialist tobacco products, such as cigars, snuff and specialist tobaccos, although such businesses are usually small. I do not understand how the Government's preferential treatment of specialist tobacconists stacks up if their prime concern is to ensure that they do not act disproportionately toward small businesses. The Government are doing that because of what is written in the rest of the Bill.

The Minister almost gave credence to the fact that, for the first time, the Bill admits that different tobacco products cause differential harm—she may wish to justify her comments. The Bill's wording recognises that certain tobacco products are less harmful and that other products, especially cigars, are sold to people who are less susceptible to advertising hype or gimmick. For instance, I am sure that my hon. Friend the Member for Basingstoke hardly regards—if he notices at all—the advertisements that might be displayed in his specialist tobacco shop, and that advertisements in glossy magazines do not encourage him to visit it more frequently. His buying patterns are unlikely to be influenced by advertisements in the vicinity of the shop, behind the counter, attached to the till—or wherever.

There is an admission that some tobacco products might do less damage, and are less effective in influencing the smoking habits of certain people. I think that the clause admits that that is the case. Therefore, I hark back to clause 4, with regard to which the Minister refused to give retailers who sell cigars and specialist tobacco in particular—or exclusively, as in one of our amendments that addresses that—rather than cigarettes, any dispensation to carry on their business on a mail order basis, so that they can send price information to their mail order customers, without those customers having to request that information on each occasion. Therefore, there is a considerable anomaly between the way that the Government are treating the 380-odd specialist tobacco suppliers in this clause, and the treatment that they were not prepared to give them elsewhere in the Bill—in earlier clauses, and in amendments proposed by us that would have been consistent with what the Government are trying to do in this instance.

There is also a greater reason why the clause is a mess, which my hon. Friends began to touch on in their references to earlier amendments, and that is the issue of fluctuating sales. With regard to subsections (2) and (3)(a), there is a glaring anomaly. Subsection (2) defines a specialist tobacconist, and if a retailer is able to comply with that definition, he or she will be exempted from some of the advertising restrictions set out in subsection (1). It states that if more than half of a retailer's sales ''derive'' from cigars, snuff, pipe tobacco and smoking accessories, he or she will benefit from those exemptions. However, that figure will be quantified on the basis of the 12-month accounting period that is set out in subsection (3)(a)—or, if figures for an entire year are not available, of the period for which accounts are available—and that must, necessarily, refer to a time in the past, because accounts are produced historically. Typically, accounts for a financial year—such as the normal financial year that starts on 5 April, or a calendar financial year for which some retailers might take accounts—will be produced about three months after that year has finished. Therefore, we are talking about a definition that might be 15 months out of date, yet subsection (2) refers to the present tense. Which period will be taken into consideration when the decision is taken about whether an advertisement should be removed?

It is conceivable that a situation will arise where for the last 12-month period for which accounts are available the tobacconist was selling more than 50 per cent. of his goods in the form of cigars and permitted tobacco products, but he got rid of all such cigars and specialist tobacco products, or they were subject to fluctuations in supply, such as difficulties with regard to the crop from Zimbabwe, or because of customers who buy Havana cigars on their way back to the United States.

I cite that example because although one is not allowed to import for retail purposes Havana cigars from Cuba into the United States, there has been a

thaw in the relationship between those nations. We have seen evidence of that in the past few days, with the former President's visit. That being so, Havana cigars are readily available in the United States and American buyers will not have to use suppliers in the United Kingdom. The anomaly that an inordinate amount of our money subsidises tobacco producers in Greece and Italy may also change.

Andrew Hunter (Conservative, Basingstoke)

My hon. Friend regards subsection (3)(a) as primary in terms of annual accounts for tax purposes. Does he agree that it could also be taken to refer to monthly running accounts of the previous 12-month period, which would vary?

Tim Loughton (Conservative, East Worthing and Shoreham)

My hon. Friend is right. That is another anomaly in the definition of accounts. I assume that the clause refers to the conventional sense of accounts in which accounts for a 12-month period are produced a few months after the end of that period. That would be most people's understanding. Most businesses do not run on a rolling accounts period, although some could. There is no definition of how the accounting period should be interpreted or of what makes up the sale price.

The more I read the clause, the more I see that it is full of flaws. A tobacconist could trade in full knowledge that his sales of specialist cigar and non-cigarette products fall well below the 50 per cent. threshold, yet the accounts for the past 12-month period, that have not yet been produced, perfectly justify taking advantage of the exemptions, because at that stage he was selling more than 50 per cent. The following year, the reverse may be true. The clause is nonsensical.

The Government have not made a proper case for treating specialist tobacconists in a particular way. Although there are grounds for giving them special treatment, there are also grounds for protecting the many thousands of other small retailers who do not fall within the definitions of a specialist tobacconist, but are open to all of the vagaries of the small retailer that the Minister suggests she wishes to protect. She is patently not doing so because of what happens in the rest of the Bill. The clause is a mess. I welcome clarification from the Minister because the more one examines the detail of the clause, the more one sees that it could be open to all sorts of abuse.

Yvette Cooper (Labour, Pontefract and Castleford)

The clause was inserted because we recognise the concerns of small businesses that appeal to a narrow, adult market with products such as cigars and snuff. Ours is a proportionate response that reflects the fact that the industry is long and established and primarily concerns small businesses. It is not about giving an exemption to all small businesses. That would be wrong.

The clause reflects that the market is predominantly adult and that advertising will be permitted in particular circumstances, within or outside the shop, for cigars, snuff and pipe tobacco. Although cigars and pipe tobacco may be less harmful than cigarettes and hand rolling tobacco, they pose considerable health risks. A European study found that the risk of lung cancer was five times higher for cigar smokers than for

non-smokers. It is important that although allowance has been made for specialist tobacconists, we should be clear that that is not an exemption from a comprehensive ban, and that clause 6 (1)(c) has the power to deal with any abuse that may arise as a result of the exemption.

The accounting period is clear; it is

''the most recent period of twelve months for which accounts are available''.

I think that a 12-month period is right, and will provide the correct level of allowance. It would be wrong to make further provision for specialist tobacconists. The exemption is clearly restricted to a particular set of businesses, and we should be clear that the overall aim of the Bill is to ban tobacco advertising for very good health reasons.

David Wilshire (Conservative, Spelthorne)

There were a couple of issues that the Minister did not address, and I would be grateful if she could give us some information about them. She rightly says that she is concerned about the anxieties of small businesses. I welcome converts to the cause of capitalism wherever I can find them. Welcome to the club, I say to her.

Why 51 per cent.? There must be a reason for that figure, and I expected the Minister to give us an explanation. The figure cannot have been plucked out of the air. Were there consultations, and if so, with whom? Did others suggest 51 per cent., or say that it sounded reasonable? I should like to know because it helps to define the sort of small business that the Minister has in mind.

Another subject on which I expected guidance is subsection (1)(c), which reads:

''complied with any requirements specified by the appropriate Minister in regulations in relation to tobacco advertisements on the premises''.

It would be nice to know to what we are being asked to agree, and what the Government have in mind by way of acceptable and unacceptable advertisements. I would not put it beyond the Government, if they could get away with it, to say, ''Look, we are making a concession, aren't we great people? We've converted to capitalism and we're going to support small businesses'', and then come up with a regulation saying that any advert larger than a postage stamp will not be allowed. That is how they might defeat this so-called good concession. It would be helpful to have some reassurance about the type of advertisements that the Government might include under regulations.

Yvette Cooper (Labour, Pontefract and Castleford)

May I seek your guidance, Mr. Winterton? Obviously, I am happy to respond to as many points as hon. Members make, but in the interests of speeding up our progress it would be helpful if hon. Members could raise as many of their points as possible in their first contributions on a subject, rather than raising new points as soon as I have sat down.

We had discussions with specialist tobacconists on the 51 per cent. before last year's Bill was published. They had no strong objection to that figure. If Opposition Members want to propose a different figure, we could discuss it, but 51 per cent. seems

sensible to me. As for regulation-making powers, we have said that at this stage we have no intention of introducing any particular regulations. The power is included in the Bill in case the provisions in clause 6 are abused and used as a loophole to introduce forms of tobacco advertising other than those normally used by specialist tobacconists.

Tim Loughton (Conservative, East Worthing and Shoreham)

I fear that I am going against the Minister's request for us to group all our points together.

Perhaps I could reply to the Minister's response to my initiation of a clause stand part debate. As my hon. Friend the Member for Spelthorne said, we have identified yet another undefined ''in case'' subsection, the most far-reaching and abusive example of which we shall consider under clause 7. The Minister said that the clause was a proportionate response, but she went on completely to ignore all the practical points that I made about when the accounting period starts and fluctuation in the mix of sales, for example. That shows that the provisions in the clause are tokenism, and that no regard has been taken of the mechanics of bringing the clause into effect and the effect that it will have on practitioners.

The clause does not provide any clarity. If I were a specialist tobacconist as defined under the clause, I would not know whether I was coming or going, which my hon. Friend the Member for Basingstoke said was the response of his specialist tobacconist. The clause will cause much confusion.

The Minister said that special dispensation is being made for specialist tobaccos because the market for those is predominately adult. The market for any product under the Bill should be adult because a person must be aged over 16 if he or she is to smoke.

The amendments that related to specialist tobacconists and mail order lists were concerned with only specialist tobacco products, and particularly cigars, and specifically stated that people must be aged over 18 and that they should be treated as adults for the purpose of retailers' mail order prices and lists. Retailers derive much of their income from mail order because they are specialist, few in number and often difficult to reach. It was inconsistent for the Minister not to accept amendments that related to what she admitted to be an adult market, but to give special dispensation under the clause. The Government are being entirely inconsistent, which will result in a mess, and the Minister was unable to give us any reassurances.

I shall not force a vote on the clause so that we may move speedily on to consider other clauses. However, the more we debate the clause and the more the Minister takes us round in circles with her inadequate responses, the greater the confusion among retailers and the potential number of challenges in the courts. That is exactly the chaos and confusion that it is the

job of members of the Committee and other hon. Members to avoid by making the Bill clear and fair, which I fear is not true of this clause.

Question put and agreed to.

Clause 6 ordered to stand part of the Bill.

Peter Pike (Labour, Burnley)

I make a further plea to the Committee for faster progress. I am trying to help the Committee and, ultimately, the House of Commons. I am deeply worried that clauses of this important Bill might not be discussed. It is helpful if a Committee highlights the problems of a Bill before it returns to the Chamber for further consideration. That allows debates to be more meaningful and enables the Government to prepare answers that address difficulties and problems highlighted by the Opposition.

I ask again for further progress, and I hope that after the completion of this afternoon's sitting, which is our last and must finish at 7 pm, the majority of, if not all, the Bill will have been debated.

David Wilshire (Conservative, Spelthorne)

On a point of order, Mr. Winterton. I understand your concern but I must put on the record again that the guillotine at 7 pm is not fixed for eternity. The Government could allow adequate time to debate the Bill rather than insisting that five sittings are adequate and imposing a guillotine. The Opposition should do their job properly and to the best of their ability. We are not party to the lack of time.

Peter Pike (Labour, Burnley)

That is not a point of order. The House of Commons made a decision on the programming of the Bill.

Tim Loughton (Conservative, East Worthing and Shoreham)

Further to that point of order, Mr. Winterton. It is in order for the Government to approach you, as Chairman of the Programming Sub-Committee, to ask for a revision of the programme order that could allow debate to continue beyond 7 pm this evening and on other days. Have you received such an approach?

Peter Pike (Labour, Burnley)

The hon. Gentleman is correct. The Government could do that, and the usual channels of both sides of the Committee could have approached me. However, they have not done that and it is a little late to do so today. I now wish to make progress.Clause 7 Developments in technology

Clause 7 - Developments in technology

Tim Loughton (Conservative, East Worthing and Shoreham)

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

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

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

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

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

David Wilshire (Conservative, Spelthorne)

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

Peter Pike (Labour, Burnley)

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

David Wilshire (Conservative, Spelthorne)

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

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

Yvette Cooper (Labour, Pontefract and Castleford)

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

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

Tim Loughton (Conservative, East Worthing and Shoreham)

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

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

Amendment, by leave, withdrawn.

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

Andrew Hunter (Conservative, Basingstoke)

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

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

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

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

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

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

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

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

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

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

''internet version of . . . a publication''

whose principal market is not the United Kingdom. The explanatory notes mention that clause 3

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

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

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

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

The clause enables the Secretary of State to

''amend any provision of this Act''

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

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

Yvette Cooper (Labour, Pontefract and Castleford)

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

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

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

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

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

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

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

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

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

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

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

David Wilshire (Conservative, Spelthorne)

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

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

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

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

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

Does the hon. Gentleman want any more cliches?

David Wilshire (Conservative, Spelthorne)

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

Peter Pike (Labour, Burnley)

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

David Wilshire (Conservative, Spelthorne)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yvette Cooper (Labour, Pontefract and Castleford)

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

The clause relates to

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

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

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

Andrew Hunter (Conservative, Basingstoke)

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

David Wilshire (Conservative, Spelthorne)

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

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

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

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

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

Peter Pike (Labour, Burnley)

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

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

The Committee divided: Ayes 12, Noes 3.

Clause 8 - Displays

David Wilshire (Conservative, Spelthorne)

I beg to move amendment No. 37, in page 4, line 14, leave out subsection (2).

This is a probing amendment. It seeks clarification from the Government of the purpose of subsection (2). I am always suspicious when something that is not necessary has been popped into a Bill. The clause suggests that it is possible to control foreign businesses and foreign websites, yet under the subsection there are exceptions to that control and it states that the Bill will not apply to a foreign business or website. I was under the impression that we cannot legislate for foreigners outside our jurisdiction, so I became curious because such a provision was part of the clause. If may not be necessary to develop such a line of thought, but I wish to give the Minister a chance to explain the reason for the clause. It seems to be making an exception for something that we cannot control in the first place.

Yvette Cooper (Labour, Pontefract and Castleford)

Clause 8(2) provides the same defence for displays as that provided under clause 2(4) for advertisements. It makes it clear that the Bill does not have extra-territorial jurisdiction. The hon. Member for Spelthorne is right that it is impossible to enforce an extra-territorial element, but it is also right that that should be stated clearly in the Bill.

David Wilshire (Conservative, Spelthorne)

That confirms my worst suspicions. The Minister said that we cannot control such people, so it is right to state that in the Bill. There are enough pages of legislation all over the place. We have necessary clauses to consider as it is, which affect the jurisdiction of England, Wales, Scotland and Northern Ireland. If we are to write into the Bill all the powers that it does not have, we will need a lorry to move it because it will be so vast. I understand the point that we cannot control people outside our jurisdiction. It was helpful of the Minister to admit the obvious, but we still have not got to the bottom of why it is considered necessary to admit the obvious. What is it about the clause that makes it necessary to say that it cannot do something that we all know it cannot do?

Yvette Cooper (Labour, Pontefract and Castleford)

In these days of increased international access and trading through the internet, it is important for the clause to clarify that, for example, a Japanese tobacco company that has no presence in the United Kingdom, but which has a website that can be accessed by a person in this country, does not commit an offence in such circumstances. I have made the position extremely clear.

Mr. Wilshire: That is only a restatement of the obvious. We know perfectly well that a Japanese company cannot be held to account in the United Kingdom if it does not operate here. It does not get us far to continue with the circular argument— ''It's here because it's here, and because we all know that it's not necessary.'' The Government can waste their time talking about websites if they want to, but they could say, if they had the stupidity to do so, that it is a criminal offence to look at the internet. I sincerely hope that censorship will not be added to the long list of awful things that the Government do, but one never knows.

I hear what the Minister says. Clearly, however much I press her, we will not get a satisfactory answer on why the issue is considered worthy of inclusion. The record will show that the Government will not produce valid arguments for perfectly valid questions. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 38, in page 4, line 18, leave out 'may' and insert 'must'.

Peter Pike (Labour, Burnley)

With this it will be convenient to take amendment No. 27, in page 4, line 20, leave out subsection (4).

Tim Loughton (Conservative, East Worthing and Shoreham)

The amendment is on the same principle as amendment No. 37, to which my hon. Friend the Member for Spelthorne spoke. There is great confusion in the clause, not least in subsection (4), which amendment No. 27 would omit. Amendment No. 38 would make a small change to subsection (3) to add force to it. Under the amendment, the regulations ''must'' give

''the meaning of 'place' in subsection (1).''

Greater clarity is required in the clause because it deals with the thorny issue of what is a display and what is an advert. I am keen to get a better definition of those words from the Minister, because they are certainly not clear from the wording of the clause or the explanatory notes that go with it. I understand that it is her own clause, which was in the Bill in the previous Parliament. The purpose of the clause should be to distinguish between a legitimate and a promotional display, but I do not think that it does so. The Select Committee had something to say about subsection (4) in its report. It stated:

''The puzzle is made more difficult by subsection (4), which provides that 'The regulations must make provision for a display which also amounts to an advertisement to be treated . . .' as one or other but not both. Presumably this is because if regulations were to be made under clause 8(1) there would be a risk that a display of cigarette packets set out to spell, say, Camel'',

or Marlboro, for want of a better brand,

''would constitute both an offence under clause 2 and an offence under clause 8.''

David Wilshire (Conservative, Spelthorne)

A double whammy.

Tim Loughton (Conservative, East Worthing and Shoreham)

Indeed, and one to which the Select Committee quite rightly drew our attention. The clause is an unnecessarily complex piece of drafting. Obviously, we have to know which sort of adverts, or set-ups, should be treated as displays, and which as

advertisements. I have no difficulty with the idea that certain sorts of display should be treated as advertisements for the purposes of the Bill, or that regulations should be framed to define the circumstances in which that will happen. We do not dispute that. However, I do not understand why we need to complicate matters by going further.

Surely, any display-cum-advertisement that cannot be categorised as an advertisement must, ipso facto, be a display. However, I have considered the wording carefully, and it does not appear that that is the result that has rather pedantically been achieved. It is particularly interesting that the clause admits the possibility that certain sorts of advertisement should not be treated as such for the purposes of the Bill. We agree with that. When we discuss the clause that deals with brand sharing, we will argue for explicit recognition that the use of a company's name and logo on its own stationery should not be treated as an advertisement even though, strictly speaking, it is exactly that. The clause envisages the framing of the definition of particular types of advertisements that should not be treated as such under the Bill. That is the very thing that we were told that legislation should not attempt to do.

The Bill enters complex territory when defining terms, or rather—as we have seen on many occasions—passes the buck for defining them. It appears that, yet again, the Minister is happy for the matter to be resolved by challenge in the courts at a later stage. Our proposals are probing amendments, because we are leaving a confused situation about when a display is an advertisement and when it is not.

Given that the clause is the Minister's own, I ask that the definition be made tighter. Otherwise, we are at liberty to strike out subsection (4), which reads as complete nonsense, and introduce a requirement rather firmer than the use of the word ''may'' under subsection (3). In previous Committees, the use of the words ''may'' and ''must'' has been a thorny subject, and we will not discuss the semantics of the particular term in any detail, other than to say that it needs to be beefed up so that ''place'' must be defined in subsection (1). I await the Minister's response with interest because I am completely confused by the clause, as I think most people are. That is why I am proposing the two amendments.

David Wilshire (Conservative, Spelthorne)

Ever the one to try to be helpful, perhaps I can add to the Minister's list of questions to answer. Never let it be said that I am not prepared to learn and be reasonable.

My hon. Friend was not as anxious about the use of the words ''may'' and ''must'' as I had hoped he would be. It is easy to say that any debate about whether ''may'' or ''must'' is used is somewhat pedantic. However, the whole issue of the contents of a Bill is one of pedantry, because someone somewhere will have deliberately chosen the word ''may''. Some thought will have been given to its use, and I should be grateful if the Minister would tell us why that particular word was used. Subsection (3) states:

''The regulations may, in particular, provide for the meaning of 'place' in subsection (1).''

The phrase ''in particular'' suggests that someone somewhere has said, ''Oh dear, there is a possible loophole if we use the word 'place'''. That there could be some difficulty with the word has clearly been a matter of debate, discussion and anxiety among parliamentary draftsmen and lawyers, otherwise the subsection would not exist. It is possible that I have misunderstood the subsection and that the Minister will tell us why—other than the fact that the address is a genuine issue—it has been included. If there is another reason, I would like to hear it. We would then have another provision that really was not necessary. Nevertheless, I am prepared to concede that it has been decided that subsection (3) is necessary, particularly in respect of the word ''place''.

What is the problem? Why is someone worried? If there is a difficulty, it must—not may—be solved. It is no use saying, ''It may please our fancy to sort the problem out, or it may not. It depends on how we feel about it on the day.'' If there is a real issue, it must be dealt with. The difference between ''may'' and ''must'' is important. If a provision may do something, why say so? We have the freedom to make regulations and that is what our debate is all about. We can say ''must'' if we want. Will the Minister tell us why ''must'' is not appropriate and the reasons for the inclusion of subsection (4)?

Amendment No. 27 raises another issue over and above those raised by my hon. Friend the Member for East Worthing and Shoreham. Subsection (4) provides that the regulations can, in effect, create offences. It is objectionable for all the reasons given by my hon. Friend as well as the idea that, yet again, we can hand to a Minister the power—by regulation, not legislation—to create brand new offences concerning the issue of displays and advertisements.

The longer we consider the Bill, the clearer it becomes that the Government want enabling powers. They want Parliament to hand them the permission to do much as they please and come up with whatever definition they feel like. They may do this or they may do that. If they have not got their defences or the burden of proof requirements right, they will change them when they get round to it. Subsection (4) is another example of the Government trying to take power away from Parliament and saying, ''We won't bother to discuss it.''

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

By firming up ''may'' into ''must'' and reducing the flexibility of Governments, does the hon. Gentleman not turn a sensible approach to law enforcement into the jackboots to which he earlier referred?

David Wilshire (Conservative, Spelthorne)

I will add to the list of being naive, being a bit slow. I cannot see how that argument applies. Exactly the opposite is the case. Perhaps I misunderstand the hon. Gentleman and he will have another go at persuading me that I am missing something. By removing flexibility, one ties the laces of the jackboots together so that they cannot be used.

The hon. Gentleman shakes his head, but I do not see his point. I am willing to be educated, but the essence of clarity is to remove the opportunity for wriggling, changing things, overruling Parliament and overruling the rule of law. If nothing else, the rule of law depends on clarity and inflexibility. I thought Parliament existed to create the law and to change it if necessary. In this instance, the rule of law and the supremacy of Parliament are being replaced by the diktat and whim of a temporary Secretary of State of whatever political party. If my party proposed that, I hope that I would have the sense to say the self same thing.

The clause is not right. It offers opportunities to do the opposite of what the hon. Member for North-West Leicestershire suggests. I am sorry about that. If he will not intervene now, perhaps we might continue the conversation afterwards. I am prepared to admit that I am wrong, but I think that that is unlikely.

On amendment No. 27, it is strange that the Government want regulations that will create offences. Subsection (4) is unnecessary because (4)(a) says that something must be either an advert or a display—that item A is not item B. Then—surprise, surprise—subsection (4)(b) says that item B is not item A. Why do the Government need to say what is so self-evident?

Yvette Cooper (Labour, Pontefract and Castleford)

The regulation-making power set out in clause 8 is not a power that we are planning to use, but a reserved power to prevent abuse such as displaying packs of cigarettes all over a model of a Formula 1 car or in the shape of a teddy bear. I do not envisage the regulations being needed. That is why last year's original draft did not include the provision. However, there was some anxiety that there might become a loophole, which is why the clause has been introduced.

I will deal with the amendments in reverse order. If such regulations were needed, clause 8(4) would be essential, because we will have set out regulations on advertising at point of sale under clause 4(3). Those regulations will set out restrictions and define what might be permitted with regard to advertising at the point of sale. However, if new regulations are also introduced to cover display, there might be some overlapping areas; some things could be covered by both sets of regulations. Some things would clearly be advertisements at the point of sale rather than displays, such as signs. Other things would clearly be displays rather than advertisements, such as rows of cigarette packets set out in a gantry. However, it is conceivable that some things will be both, such as a Marlboro packet in a gantry in the shape of an M, or a Silk Cut packet displayed on a piece of slashed silk.

Where there is potential for some things to be both an advertisement and a display, it will not matter if no regulations are in force with regard to displays—if we have not exercised that power under clause 8—because they will be covered under the broader terms of the Bill with regard to advertising at the point of sale. However, if the power under clause 8 has been executed, two sets of regulations will potentially be in place, and it will be important for enforcement officers and traders to know in which circumstances the

regulations under clause 8 apply, and in which circumstances the regulations under clause 4(3) apply. That is why subsection (4) is an essential part of clause 8.

I turn to the issue about clause 8(3) and the meaning of the words ''may'' and ''must''. Clause 8(3) has been included to ensure that it is possible for regulations to define what a ''place'' might be, if that is needed, but it would be wrong to say that the regulations must provide for the meaning of ''place''. Whether to provide that meaning would be the right way forward would depend on the nature of the abuse or problem that the regulations were attempting to solve. For example, it is conceivable that the regulations will simply be about issues on a website, and will not refer to place, or that the draftsmen felt that it was not necessary to provide for the meaning of ''place'' to cover the abuses that were being described. However, it might be the case that it was thought to be extremely important to pin down the meaning of ''place'' to rule out some places and to rule in others. Therefore, it is necessary both to have that kind of flexibility and to retain the subsection. That is why the Government oppose amendments Nos. 38 and 27.

David Wilshire (Conservative, Spelthorne)

The Minister has not addressed my concerns about ''may'' and ''must''. She has merely restated the obvious yet again. Why pick on ''place''? If the Minister would only answer our questions, we would make much more progress, because we would not have to try to wring information out of her.

Clause 8 states:

''A person who in the course of a business displays or causes to be displayed tobacco products or their prices in a place or on a website''.

The regulations can address any of that. Why is it not stated that thes regulations can come up with a definition of ''business displays'', or ''cause to be displayed'', or ''tobacco products'', or ''prices'', or ''website''? The regulations could cover those words in the clause as equally as the word ''place''. All other words are not deemed to be worthy of mention, but the Minister made it clear that the regulations will cover all other words, although that is not mentioned. Clearly, the Bill will enable the regulations to cover the words although they are not spelt out as being covered. However, as ''place'' is singled out for special mention, it must be more important than the other words and the cause of more concern. If the word is singled out, surely it must, rather than may, be defined by the regulations because all the other words can be defined.

We were told that the provision is in the Bill to allow a reference to ''place'', but we have not been told why ''place'' has been singled out. I shall ask the question again. Why is it necessary to single out ''place''? What is so important and worrying about that word? If there is an answer to that question, surely it follows that ''place'' must be defined in order to address the worry. Otherwise it could be unmentioned in the same way as the other words.

Yvette Cooper (Labour, Pontefract and Castleford)

The hon. Gentleman's point seems to be that either one must do something, or one should not do it at all. The logic behind that is unclear. The

provision is designed to ensure that the right flexibility is present to address problems that the regulations might resolve.

An example of the use of ''place'' is to specify a place where tobacco is sold within a larger shop. There may be a desire to examine displays in a particular place. It is correct that there is flexibility for that, but we should not pin it down at this stage.

I have made it abundantly clear that we do not anticipate using the regulation-making power. We have not identified a current problem that we want to get rid of. If there were a specific problem, the Bill would cover it or we would say that we shall definitely introduce the regulation-making power. The power is reserved, and because it is reserved it is right that there should be sufficient flexibility.

Tim Loughton (Conservative, East Worthing and Shoreham)

Yet again, the Minister has resorted to saying that the Government do not intend to use the reserved powers, but they will put them in the Bill just in case. She failed to convince Opposition Members why the powers are required, why the word ''place'' has been singled out and why we should have a dual system. That heaps confusion on confusion. As we consider each clause, the Government's intention becomes less clear, as does how the powers will be used, if at all, and how the poor, unsuspecting retailer of tobacco products will know how to respond. If the

Committee is confused about what the provisions mean, how on earth will people who make a living from tobacco sales cope?

I apologise to my hon. Friend the Member for Spelthorne if I appeared to downplay the importance of replacing ''may'' with ''must''. That comes after many months serving on the Standing Committee that considered the Adoption and Children Bill. We considered so many such amendments that it became commonplace to go through the motions before they were tossed aside. I am not trying to diminish the importance of the replacement of the words in the clause, but I am war weary of other Ministers' responses to such amendments.

If we examine subsection (4), which states that the regulations ''must'', rather than ''may'', we notice the stark and distinct contrast between subsections (3) and (4). I agree completely with the points made by my hon. Friend the Member for Spelthorne about the importance of inserting ''must'' instead of the rather weaker ''may'' in subsection (3).

I was completely nonplussed by the welcome standing comment by the hon. Member for North-West Leicestershire. He completely contradicted himself, which my hon. Friend the Member for Spelthorne picked up.

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.

Standing Committee A

Clause 8 - Displays

Sir David Amess (Conservative, Southend West)

I remind the Committee that with this we are taking amendment No. 27, in page 4, line 20, leave out subsection (4).

Tim Loughton (Conservative, East Worthing and Shoreham)

Thank you, Mr. Amess, and welcome back to the ultimate sitting of this Committee. It will be an emotional time for us all, and we will be sorry when the guillotine falls at 7 o'clock.

I was responding to the Minister's not entirely adequate response to the amendment. When Mr. Winterton rose, I was in the middle of reiterating the load of complete nonsense that came from the hon. Member for North-West Leicestershire (David Taylor), who contradicted himself when drawing an analogy between jackboots and our contention that we need to tie down as much of the contents of the Bill as possible.

Amendments Nos. 38 and 27 address a need for clarity, as I said earlier. It would be much more satisfactory if the issue of the definition of ''display'', as distinct from ''advertisement'', could be resolved in the House of Commons—or, more particularly, in Committee—rather than being left to wide-ranging regulations. However, I fear that that will not be, unless the Minister has a change of heart. By approving the clause without the amendments, we are yet again signing up to the unknown.

When the clause was debated in another place, the Minister made it clear that it represents a reserve power that will not necessarily be exercised, and that point was repeated this morning. However, from what the Minister and their lordships have said hitherto, I do not understand how it is possible to avoid the need to define the word ''display'' in regulations, because not to do so leaves shopkeepers and others open to colossal legal uncertainty. We are leaving an enormous amount of territory to be exploited by lawyers if the provisions are changed by regulation, and there are large grey areas in the clause for those at the sharp end who have to deal with the regulations in their places of business. We should be resolving that uncertainty as we debate the Bill, not after it has been enacted.

I am aware that we are still woefully behind in our consideration of the Bill, having reached only

clause 8—just over a third of the way into the Bill—in this, our last sitting. That is despite our attempts this morning, at Mr. Winterton's instigation, to get a move on. We do not want to leave large quantities of the Bill undebated in Committee, but I fear that that is what will happen.

In the interests of trying to speed on into the next clause, and with a degree of protest, I shall not push the amendment to a vote, although I do not think that it has been responded to adequately. We may well want to return to the subject on Report, unless the Minister gives us further assurances before then. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.

Clause 9 - Prohibition of free distributions

David Wilshire (Conservative, Spelthorne)

On a point of order, Mr. Amess. Before I speak to the amendments, I would welcome your advice. In an attempt to make progress and for other reasons that I shall mention if the chance is available to us, will you give me guidance? Amendment No. 42 is the lead amendment, and it crosses my mind that I might have to move it in order not to lose the others. In the great spirit of co-operation this afternoon, it crossed my mind to not move the amendment. Would that mean that we could not discuss the other amendments that are grouped with it?

Sir David Amess (Conservative, Southend West)

If the hon. Gentleman wishes to discuss amendments Nos. 39, 43, 40 and 50, he must move amendment No. 42. We could have separate Divisions.

David Wilshire (Conservative, Spelthorne)

I seek only your guidance, Mr. Amess, on whether I must move amendment No. 42 to guard against losing the remaining amendments, or whether I may help the Committee by saying that I am happy not to move it. I do not want to say that I do not wish to move amendment No. 42 only to be told that I cannot discuss the other amendments.

Sir David Amess (Conservative, Southend West)

If the hon. Gentleman does not move amendment No. 42, he cannot discuss amendments Nos. 39, 43, 40 and 50.

David Wilshire (Conservative, Spelthorne)

That is exactly the trap into which I thought that I might fall, which is why I asked for your ruling, Mr. Amess. I shall move the amendment with reluctance and a heavy heart because I could write the riposte as a script.

I beg to move amendment No. 42, in page 4, line 28, leave out 'or permits'.

Sir David Amess (Conservative, Southend West)

With this it will be convenient to take the following amendments: No. 39, in page 4, line 29, leave out 'or effect'.

No. 43, in page 4, line 36, before 'each', insert

'all reasonable steps are taken to ensure that'.

No. 40, in page 4, leave out lines 40 and 41.

No. 50, in clause 11, page 6, line 15, leave out

'or whose effect is to do so'.

Mr. Wilshire: In order to help the Committee to make progress, I tell the Minister that she need not pour great scorn on me for being in favour of amendment No. 42 or read me many pages of briefing on it because I shall ask leave to withdraw it.

I plead guilty to drafting amendment No. 42, and displeasure should not fall on any of my hon. Friends because they were not party to it. In my defence, I can say only that I was listening to an especially tedious debate in the Chamber last Friday afternoon while I examined the Bill. Perhaps that frame of mind caused me to draft the amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

I cannot believe that last Friday's debate was so tedious that it could distract my hon. Friend's attention. The debate was, of course, on the Home Energy Conservation Bill, which is the private Member's Bill of the hon. Member for Brighton, Kemptown (Dr. Turner). Quite extraordinarily, the hon. Gentleman talked out his own Bill.

Sir David Amess (Conservative, Southend West)

Order. I ask hon. Members to get back to the matter that we are discussing.

David Wilshire (Conservative, Spelthorne)

Absolutely, Mr. Amess. Perhaps I drafted the amendment as it reads because I was so riveted by the debate in the Chamber.

I turn to amendments Nos. 39 and 50, which make the same point of principle. The amendments would remove ''or effect'' and

''or whose effect is to do so''

respectively. The subject has cropped up during our discussion of other clauses, but I thought that it required careful thought with respect to this clause.

The title of the clause is ''Prohibition of free distributions''. It states:

''A person is guilty of an offence if in the course of a business he . . . gives any product or coupon away to the public in the United Kingdom''.

That is clear enough; for once we have a collection of words that we can clearly understand. However, subsection (1)(b) reads,

''causes or permits that to happen, and the purpose or effect of giving the product or coupon away is to promote a tobacco product.''

I accept that, in a court of law, it should be possible to say that the purpose of doing something was to promote tobacco. To establish the purpose of doing something, one must decide one's purpose before acting. If this legislation is put on the statute book, it will be reasonable to say, ''If you have deliberately done something along these lines, you are guilty of an offence.'' I accept that.

However, I cannot accept that if you. Mr. Amess, were to do this sort of thing, you would be found guilty, if the effect of what you did was to promote a tobacco product. It would be grossly unfair if you were to be treated like that, because you might have done something innocently and for the best of reasons that was a million miles away from promoting tobacco products.

If these two amendments are not passed, the clause will provide that, with hindsight, we can demonstrate that someone has committed an offence, even though he had no means of knowing that it was an offence

until afterwards. That is not good legislation. An innocent person does something for the best of motives, and subsequently, because of an effect beyond that person's control, he finds that he have done something that is contrary to this provision. That cannot be right, because he would not have known in advance that that would happen.

Therefore, the phrase ''or effect'' should be removed from the clause, and from elsewhere in the Bill. Amendment No. 39 seeks to remove ''or effect'' in one place, and amendment No. 50 seeks to do that in another. I would be interested to learn whether the Minister can justify using hindsight to make a criminal of someone who never intended to be one. If she cannot, she should accept the amendments, or something like them, which she could introduce on Report. I look forward to hearing her comments.

Amendment No. 43 seeks to make the legislation more sensible. Subsection (3) lists the circumstances in which an offence is not committed under subsection (1). The third of them states that no offence is committed if,

''each person to whom it is given—

(i) is engaged in, or employed by, a business which is also part of the tobacco trade, and

(ii) falls within subsection (4)''.

Therefore, if each person is involved in the trade, that is all right, up to a point. However, common sense must take a hand in this. For example, one might give something away to a group of people. That group could number many thousands of people, if one is talking about the number of people who are engaged in a particular trade, and it would certainly number many hundreds of people, in certain circumstances. However, the clause refers to

''each person to whom it is given''.

The hon. Member for Luton, North (Mr. Hopkins) considers tobacco manufacturers to be wicked people who will take advantage of every opportunity that is offered to them, but even if they are acting with the best will in the world, how can they be certain, if they are having to double check on 1,320 people—to clutch a figure out of thin air—that every one of them is engaged in the trade? That is what the clause demands, because it says ''each person''. Are we to allow situations to arise in which a prosecution can be brought because of the merest of slips that means that one person does not fit? There is no scope here for common sense, which is why amendment No. 43 proposes to insert

''all reasonable steps are to be taken to ensure that''

each person fits. That is a much more practical, sensible and realistic way in which to draft legislation. Given the number of people who might be involved and the scope for misunderstanding and genuine error, we should be looking for best endeavours. That is realistic.

I have a slight difficulty with amendment No. 40. On the original list of amendments, it proposed the deletion of ''lines 41 and 42''. Someone has spotted the point that I was going to make, and it has now been

changed to ''lines 40 and 41''. If anyone is working on the old list on which I was working, that is not what we are discussing; we are discussing leaving out lines 40 and 41.

The clause refers to when

''the product or coupon is given to each such person in his capacity as such a person.''

The same argument applies as to amendment No. 43. It relates to the phrase

''given to each such person''.

Whether the number of such people is 1,000 or several thousand, those who take shelter in that defence must be able to show that they gave to each such person.

Again, that seems to fly in the face of common sense. Why does it matter? If the person involved took all reasonable steps to ensure that the people involved were engaged in the trade, that should be adequate. If they can prove that they did so, does it matter whether ultimately each such person was working in that capacity? If they miss one person, rather like if they give to one person too many, which was my first argument—that is, if there are 1,230 and they give to only 1,229—they have, as I understand it, lost their defence under the clause. I should be grateful to hear why the Minister believes that the provision is necessary and that it is not necessary to suggest another formula of words that would deal with the issue in a much more realistic and practical way.

I have already spoken to amendment No. 50, which deals with effect rather than purpose, and I shall not repeat myself. However, some substantial issues are involved and I should be grateful if the Minister would comment on them before we decide whether to press any of the amendments to a Division.

Jim Murphy (Labour, East Renfrewshire)

I am delighted to catch your eye, Mr. Amess. I shall comment briefly on the Opposition amendments.

I mentioned this issue on Second Reading, when I strongly welcomed the fact that coupons and the free distribution referred to in the Bill will be prohibited. I declared an interest then, and I declare another now. Unbeknown to me at the time of Second Reading, for a good period of her life my mother helped stock cigarettes into cartons and boxes in the cigarette processing plant in Glasgow. I have declared my interest and made more confessions. On Second Reading, I admitted to having smoked and to a dubious taste in music. My family connection with the industry only strengthens my support for the action that the Government are taking in the clause.

We have discussed purpose and effect. The tobacco industry and Opposition Members who represent its interests will claim that the purpose of coupons and free distribution is to encourage brand loyalty and to thank customers for purchasing their products. That may be the stated purpose, but the effect is entirely different. We are all aware—Conservative Members should acknowledge this—that the effect is to encourage and maintain the smoker's addiction. The industry also aims to entice additional purchases. Surely, everyone would accept that. On Second Reading, I talked about the effect of such coupons,

which is to encourage smokers—such as those in my own family—to purchase a cheap set of six whisky glasses for £100 worth of cigarettes. I have since been given a copy of the Benson and Hedges gratis magazine, which describes in greater detail the effect and purpose of coupons. A cursory glance shows that the effect of coupons is not only to encourage maintenance of the addiction and additional purchases of cigarettes; the magazine shows the extent to which tobacco companies use coupons to reward the smoker's addiction through the distribution of supposedly free gifts. Such gifts include a child's swing, of all things: smoke cigarettes and get a free swing for your child. The fact is that one would have to purchase £6,000 worth of cigarettes to receive a supposedly ''free'' child's swing. The aim is to encourage the smoker to purchase additional cigarettes. In return for a £6,000 investment in his addiction, a smoker could feel a warm glow—as well as blocked lungs—by providing his child with a nice, little play swing. That is an additional effect of coupons. If a smoker spends over £200 on cigarettes, he can be rewarded with a ''my little honey doll''. What is the purpose of such a gift?

David Wilshire (Conservative, Spelthorne)

My mind was beginning to wander again and I might have said something unfortunate. Will the hon. Gentleman say what the thing is?

Jim Murphy (Labour, East Renfrewshire)

Members of the Committee may not be aware that the hon. Member for Spelthorne and I spent more than a week cooped up in a cabin on a Royal Navy frigate. We discussed such issues, among other things. It is fairly clear that it is a little doll, given in return for spending hundreds of pounds on tobacco products, polluting the household, encouraging passive smoking and passive contraction of diseases. By way of compensation, one can reward a child with a little squeezy doll.

I am identifying the purpose and effect of coupon programmes. A travel cot can be purchased with coupons, although one would have to spend over £2,000 on cigarettes to receive one.

Kelvin Hopkins (Labour, Luton North)

I am interested in what my hon. Friend has said and I totally support his argument. Does he agree that one of the effects is not only to maintain the addiction, but that the smoker would buy as many cigarettes as possible, so that he may receive the child's swing or little honey doll even sooner, perhaps this year rather than next?

Jim Murphy (Labour, East Renfrewshire)

My hon. Friend is correct. Smokers may do their shopping by tobacco coupons in time for Christmas gifts. He is right to draw attention to the fact that there are deadlines on some of the offers. To qualify for the supposed special offer, one must purchase a certain quantity of cigarettes by a certain deadline. The purpose and effect of such an offer would be an increased consumption of tobacco products within a certain time.

Tim Loughton (Conservative, East Worthing and Shoreham)

The hon. Gentleman is making an interesting contribution, but I am sure that he does not seriously think that people who are stupid enough to smoke are also stupid enough not to realise that they could buy lots of swings or honey dolls outright with the money that they would have to spend on cigarettes.

Also, is it not a fact that smoking diminishes a smoker's sperm count and affects fertility? That means that smokers are rather less likely to exchange vouchers for a carrycot or whatever, because they could not have children in the first place.

Jim Murphy (Labour, East Renfrewshire)

I am not in a position to question the hon. Gentleman's understanding of science or human biology, but I am sensible enough to know that if someone is trying to purchase a swing for a child, they already have a child, and sperm count is not uppermost in their mind.

Another example of the enormous pressure and incentives used to increase consumption of tobacco comes from the same wonderful colour brochure. If one spends more than £2,500 smoking more than 10,000 cigarettes, one qualifies for a cardiovascular workout mini-step. How remarkable.

David Ruffley (Conservative, Bury St Edmunds)

The hon. Gentleman has shared a delicious piece of irony with us. I would like more information. I have never seen such coupons. I do not know how a smoker might get hold of them, where they might be found and how widely distributed they are. Could the hon. Gentleman tell us the scale of the problem that he is describing?

Jim Murphy (Labour, East Renfrewshire)

I am delighted that the hon. Gentleman acknowledges that such coupons are a problem, and I anticipate him voting with us if the issue is forced to a Division.

Coupons are regularly found inside packets of cigarettes. I shall show the hon. Gentleman the range of brands that contain them in their boxes. Cigarette package frontages show the brands to which one would have to be loyal in order to receive the gifts. They are a widely used incentive, the effect of which is to encourage greater levels of smoking. The coupons are available to many families throughout the country, including mine. They are a widely used marketing tool that encourages a degree of brand loyalty and—more importantly for the purposes of the Committee—increased smoking and addiction.

David Ruffley (Conservative, Bury St Edmunds)

I am a nearly reformed smoker who smoked both Silk Cut and Marlboro Lights cigarettes, and I cannot recall coming across any of the coupons that the hon. Gentleman describes. I am not making a judgment about the merits of such coupons; I am fascinated by what he says. However, given my experiences, it is not clear to me that coupons are widespread. That is why I intervened earlier. Perhaps the hon. Gentleman could elucidate how many smokers might be affected by the regime.

Jim Murphy (Labour, East Renfrewshire)

I have a letter from Benson and Hedges about its coupon regime. As a non-smoker, I am well aware that Benson and Hedges is a considerable market player. My father did not, and does not, smoke Benson and Hedges, but there are coupons in the cigarettes that he purchases, too. I gather that they are widespread, and their effect is to encourage and increase consumption of tobacco products. I identified that example of incentives to highlight a callous way of encouraging greater consumption.

I should like to mention free distribution. I am a teetotal non-smoking vegetarian, but I nevertheless occasionally visit Glasgow pubs with my wife and friends. Like many people, I am often confronted by usually younger ladies, who offer to swap the contents of a cigarette packet for a full packet of an alternative brand. The effect of that free distribution is not only to switch brand loyalty, but to increase the consumption of cigarettes and, therefore, the level of addiction to specific tobacco products. I do not know what happens to the cigarettes one hands in—the one or two in the packet that one takes to the pub. However, instead of purchasing a packet of 20, one swaps the cigarettes that one has left for a brand new packet of 20 and ends up smoking 38 or 39 cigarettes. The aim is not to promote brand switching but to increase consumption.

In my experience, there are only two conditions for free distribution. One is the compulsory adding of one's name to a database to receive subsequent mailings and advertising, and the other is increasing one's consumption by swapping a small number of cigarettes for a full packet.

Therefore, I welcome the clause as drafted not only for its purpose, but in respect of its effect. Opposition Members who claim to fear an excessive use of retrospective legal judgment should see that there is a clear legal defence within clause 9(5). I am surprised that the hon. Member for East Worthing and Shoreham (Tim Loughton) did not allude to it in full. I welcome the clause and oppose the amendments because of the purpose of the tobacco industry and the effect of free distribution and widely distributed coupons.

Yvette Cooper (Labour, Pontefract and Castleford)

There are a series of amendments to clause 9, most of which relate to free distribution, although one refers to brand sharing. The hon. Member for Spelthorne (Mr. Wilshire) did not speak to amendment No. 42 and I understand that he intends to withdraw it, so unless he indicates otherwise, I shall not speak against it.

The effect of amendment No. 39 would be that any of the offences in clause 9 involving free distributions would be permitted only if the purpose of the gift is to promote a tobacco product, and not when the effect is to do so. I oppose the amendment because the line that we have taken consistently throughout the Bill is that it must cover cases involving purpose and effect. We should not confine the Bill to purpose. We should take a consistent approach in clause 9 and cover advertisements and promotions that are either intended to promote a tobacco product or have the effect of doing so.

The Bill provides clear defences to protect people when their connection with the promotion could be said to be blameless. Clause 9(5) provides that

''A person does not commit an offence . . .

(b) where it is alleged that the effect of giving the product or coupon away was to promote a tobacco product, if he could not reasonably have foreseen that that would be its effect.''

If they could not reasonably have foreseen it, they have a defence under the Bill. In such circumstances, because of the burden of proof, the prosecution would first have to prove beyond reasonable doubt that the effect of the distribution was to promote a tobacco product. Secondly, if defendants put forward credible evidence claiming that they could not reasonably have foreseen the effect, the prosecution would have to prove beyond reasonable doubt that they could have. The defence is already in the Bill.

Amendment No. 43 seeks to provide that

''all reasonable steps are taken to ensure that''

the product or coupon reaches the particular people permitted under clause 9(4). I have sympathy with the intention behind the amendment, but I believe that it is not appropriate and ask the Committee to reject it. Free gifts can be a powerful tool in tobacco companies' armouries, and gift schemes can be used to tempt lower-income smokers. The advertising agency used by Gallaher provided a document to the Health Committee in 1999 that stated:

''Who are we talking to: Glasgow's smokers—they smoke because they enjoy it. They also love the gift scheme, with over 50 per cent. of the club franchise unemployed this probably explains its popularity''.

Clearly, an attempt is made to use free gifts, promotions and coupons to encourage smoking and promote tobacco products.

The Bill allows free gifts in some circumstances for the purposes of the tobacco trade. Paragraphs (a) to (d) of subsection (3) list the circumstances and include the provision that each person who receives the gift must be engaged in the trade.

The amendment would weaken subsection (3) such that people would not be liable if they had taken all reasonable steps to ensure that the gifts were received only by the person in the trade. I have some sympathy with that intention, but the company responsible should take some responsibility for ensuring that the free gifts sent out reach the right people.

We are allowing an exemption from the comprehensive ban in particular circumstances. It should not become an excuse for simply having a huge mailing list that is updated once every 12 months, simply to check, and using it to promote a product to a large number of people without being clear that those people are part of the tobacco trade and involved in the right sort of decisions and decision-making positions in the tobacco trade. It is right that the provision is clearly drawn to ensure that it does not become subject to abuse. Sufficient exemption has been given to carry on the trade with no detrimental effects.

Amendment No. 40 would delete subsection (3)(d), which provides that the product or coupon must be given to each such person in their capacity as a person involved in the trade, as set out in the rest of the clause. The provision distinguishes between giving to people as part of their job a free distribution such as a new cigar that they want to be sold in specialist tobacconists, for example, and allowing people simply to give everyone on the list free products for their own use and effectively targeting them as smokers or

potential smokers, as opposed to contacting them in their capacity as part of the tobacco trade.

Amendment No. 50 relates to the principle of removing effect from the Bill in relation to brand sharing. Brand sharing is especially important, and we shall have an opportunity to discuss it later.

Documents in the public domain reveal how the tobacco industry reacted many years ago to the threat of increasing restrictions on direct advertising by developing a strategy to use its brands on other products, such as Marlboro Classic clothing. The tobacco brand receives extra advertising that is free of the advertising restrictions placed on tobacco brands, such as the presence of a health warning. Recent research concluded that:

''when other variables that are known to be associated with smoking are controlled for, awareness of coupon schemes and brandstretching were both associated with the greater possibility of being a current smoker''.

It is important to keep effect in the Bill. My hon. Friend the Member for Eastwood (Mr. Murphy) made clear the impact that tobacco promotion through coupons and free distribution can have and the rather dubious links between the promotion and the sorts of gifts on offer. If we removed effect from the Bill and left only purpose, the tobacco company could argue that the purpose was to make money from other goods, or related to brand loyalty, for example, and it might be difficult for the prosecution to prove an additional purpose beyond reasonable doubt, but the effect might be screamingly obvious to everyone. It might be to promote a tobacco product. We must not permit through brand sharing promotions that clearly have the effect of promoting a tobacco product, because it could be argued that there may be alternative purposes. To remove the word ''effect'' from the clause would weaken it. Defences are in place; it is right that they are, but it would be wrong to accept the amendments. The Government reject amendments Nos. 42, 39, 43, 40 and 50.

David Wilshire (Conservative, Spelthorne)

What a change takes place in Committee after a good lunch. Had we received such a response from the Minister earlier, we would probably have made more progress. Having touched on the matter of ''effect'' many times in previous sittings, at last we have heard a coherent argument why the word should stay in the clause.

Lunchtime has had such a calming influence. The dogs are off the leash on the Opposition Benches and can contribute to the debate. I welcome the contribution of the hon. Member for Eastwood. It makes a refreshing change to listen to a different voice, even if I could not understand what he meant by ''little honey doll''. If the hon. Gentleman could listen to himself with an English ear, he might realise why I was confused and asked him to explain what he meant. However, as soon as I knew that it was a little honey doll, all my anxieties went away.

Some of the matters to which the hon. Gentleman referred should be dealt with in the clause stand part debates. I know that my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) wants to make some general remarks about the clause, so I shall not broaden this debate; otherwise you,

Mr. Amess, may rule that we cannot have a clause stand part debate—and that would never do. The hon. Member for Eastwood seemed to doubt whether I was in favour of banning coupons. I hope that, by now, he knows that I think that the Bill is an abuse of human rights, but if the Government are determined to ban tobacco advertising, I am entirely with him that it is right to catch coupons. There is no disagreement between us, once we accept the principle of what the Bill will achieve. It is the principle with which I am in disagreement.

The hon. Gentleman focused his remarks on a swing for the kiddiewinkies, if one smoked £6,000 worth of tobacco. If someone smoked that amount of cigarettes, he would not have the puff left in him to push the swing, which made me wonder why that particular item was in the catalogue. I said earlier that I am guilty of being naïve because I take everyone at face value. I have to plead guilty of other things, too, one being that I am a sensitive soul. When the hon. Gentleman said that he and I spent a week cooped up together, my sensitive nature made me decide that an explanation was necessary. We were on HMS Newcastle as part of the armed forces scheme. It was an enjoyable time and all I can say, on reflection, is that despite the fact that the hon. Gentleman is a non-smoking, teetotal vegetarian, he is good company.

Of all the ingenious arguments that have been advanced during the past four sittings, to have introduced a debate about sperm count was even beyond my wildest expectations of what could be discussed when referring to tobacco advertising. I congratulate my hon. Friend the Member for East Worthing and Shoreham on doing just that. I learn something new every day to add to my armoury of debating skills.

In order to spare my blushes—I hope—the Minister kindly said that she would not speak against amendment No. 42. I am grateful for that and I do not intend to provoke her.

As I said, I listened carefully to the response to amendments Nos. 39 and 50, and I heard a coherent argument on why there should be the consistency of keeping the word ''effect'' in the Bill. I accept that, especially because the Minister pointed out that the clause contains defences such as

''if he could not reasonably have foreseen''.

That is a safeguard, and I shall not press the amendments.

I found it curious that the Minister prayed in aid the concept of ''not reasonably have foreseen''. That means that being reasonable is a defence for such matters. However, when the hon. Lady addressed amendment No. 43, which would introduce the concept of ''reasonable steps'', it was curious that she was pleased about the use of reasonableness in one context, but said that that amendment was unreasonable. As consistency throughout the Bill and reasonableness are good ideas, surely that should lead

her to accept the amendment, especially because she said that she has some sympathy with its intentions.

The Minister seems to accept that I am barking up the right tree on this occasion—I may be permanently barking. If she does not like my wording or the way in which I have introduced the concept of reasonableness, which is the concept that she believes is right in other contexts, I hope that she will table amendments on Report that will allow her to say that the Bill is more consistent.

The Minister's justification for rejecting the amendment was that companies should take responsibility for their actions because the consequences are so serious. All members of the Committee would agree that companies must act reasonably and responsibly. My amendment does not say in any way that a company does not have to accept responsibility. It says exactly the opposite; the company must take all reasonable steps, and we expect a responsible company to do that. Accepting the amendment would not undermine a company's requirement to be sensible.

I do not believe that we are as far apart on the subject as it might appear. I said that I do not wish to press amendment No. 42, and I suspect that if I withdraw it, the other amendments will fall. If that is the case, I am entirely content. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 41, in page 4, line 31, leave out subsection (2).

Sir David Amess (Conservative, Southend West)

With this it will be convenient to take the following amendments: No. 28, in page 5, line 18, at end insert—

'(6A) For the purposes of this section, a coupon shall not be deemed to have the purpose or effect of promoting a tobacco product if it only provides for the product with which it is packed or sent to be sold at a discount on a single subsequent purchase of that product.'.

No. 44, in page 5, line 19, leave out subsections (7), (8) and (9).

Tim Loughton (Conservative, East Worthing and Shoreham)

The amendments explore a similar theme. I shall major on amendment No. 28, although I shall mention amendment No. 41 first.

Amendment No. 41 would remove subsection (2), which states:

''It does not matter whether the product or coupon accompanies something else, or is given away separately.''

The subsection is unnecessary because one must differentiate between in-pack and on-pack offers. In-pack offers are coupons contained inside a packet of cigarettes and on-pack offers advertise money off on the wrapping of the packet or group of packets.

Amendment No. 28 exempts coupons that allude only to the product in which they are contained. A coupon in a cigarette pack that offers 10p off a subsequent purchase of a pack of that brand of cigarettes does not promote greater expenditure; it merely gives a reward for loyalty, if a customer buys another packet of the same brand.

When manufacturers wish to make special price offerings, three principal options are available to them:

first, revised terms to wholesalers and retailers that enable them to make special price offerings to their customers; secondly, on-pack discount price marking and pricing flashes offering, for example, 10p off; and thirdly, in-pack price offerings, such as the coupon option that I have mentioned.

There can be no guarantee for the owner of the brand and the smoker that revised price terms for the trade will automatically filter through to the consumer, as intended. Packets of the same brand of cigarettes can be—and are—sold at widely varying prices at different outlets.

With regard to the Government's intentions, on-pack price offers such as price flashes are less desirable than discreet in-pack price offers, such as coupons that offer a price reduction on a single subsequent purchase of the product. Therefore, we are going for the lesser of available evils, which will have a beneficial effect. Such price offers are directed only at existing smokers, and they are noticed only by them. They are of interest only to them. Therefore, they will not entice non-smoking adults—or children—to take up the filthy habit. They are most unlikely to be of an order that will encourage existing smokers to smoke more, or to continue to smoke. We are talking about offers such as 10p off a subsequent packet of cigarettes, rather than £100 off a subsequent 25 packs, or whatever.

I have no doubt that the Minister will say that even in-pack offers will have the effect of promoting a tobacco product, but I ask her to consider the most important point, which is whether the measure is proportionate. With regard to many of the amendments that we have addressed this morning, she has responded by saying that the existing legislation is proportionate. Will she apply that principle to what is being proposed now? In the context of the Bill in general, it is an important principle, but it should be applied to the provisions of this clause in particular. Otherwise, the issue that the amendment addresses will be contested later in the courts. It is a probing amendment that proposes a limited exemption.

Amendment No. 44 seeks to delete subsections (7) to (9). It is a consequential amendment. The subsections should be deleted if the limited forms of coupons that amendment No. 28 proposes are allowed.

There will always be some price-cutting promotion, and our greatest fear is that the absence of advertising and promotion could lead to wholesale price-cutting, which would result in a greater increase in smoking. We are trying to limit and cap the effects of any promotions. The proposed legislation prohibits direct marketing schemes but, in the interests of proportionality, it will go too far by interfering with suppliers' freedom to make special price offers directly to existing smokers of a particular brand of cigarettes.

Amendments Nos. 41, 28 and 44 are relatively modest and proportionate probing amendments, to which I would like the Minister to respond. I do not think that they take away from the Government's intentions.

Mr. Andrew Hunter (Basingstoke): I reinforce the argument advanced by my hon. Friend the Member for East Worthing and Shoreham about amendment No. 41 by inviting the Minister to consider subsection (1), which states:

''A person is guilty of an offence if in the course of business he—

(a) gives any product . . . away''.

My emphasis is on ''any''. In light of that all-embracing word, surely it follows logically that subsection (2), which the amendment would delete, is redundant. Given the wording of subsection (1)(a), I shall be surprised if the Minister can mount an effective argument to say that subsection (2) is needed.

On amendment No. 28, I emphasise that an in-pack coupon is clearly directed not at the general public, but the smoker. It is therefore entirely different in kind from the general advertisements that the Government seek to ban. I may argue with the Government about the effects of that ban, but surely they should acknowledge that, within their own terms of reference, an in-pack coupon or token does not amount to advertising.

Yvette Cooper (Labour, Pontefract and Castleford)

Amendment No. 41 would omit subsection (2), which makes it clear that a product or coupon given away with something else will be caught under the Bill. Subsection (2) ensures that there is no doubt that the offence set out in subsection 1(a) includes coupons given away, either with something or separately. Subsection (2) should remain in the Bill, and I oppose the amendment.

Andrew Hunter (Conservative, Basingstoke)

What is the deficiency of the wording in subsection (1)(a), which says

''gives any product or coupon away''?

Yvette Cooper (Labour, Pontefract and Castleford)

Subsection (2) is purely about providing clarification, so that no one can argue in court that something given away as part of another gift—in a free newspaper, for example—would not be covered by the Bill. The intention of the ban is clear in subsection (1); subsection (2) only clarifies, but it is right to include it to prevent mistaken legal defences being mounted.

Amendment No. 28 would allow coupons that give a discount on the next packet. Although manufacturers will not be able to include coupons for honey dolls, children's swings or other products, they may, if the amendment is accepted, include coupons that allow purchasers to buy another packet of cigarettes at a discount. In the end, the effect of the two types of coupon is the same. Whether the inducement to keep buying the same brand for extra coupons is a honey doll or carry cot, or whether it takes the form of a coupon that gives 50p, 10p or whatever off the price of the next packet, the effect is to get the smoker to buy the next packet of cigarettes.

Tobacco companies may argue that they are promoting brand loyalty, but they are also promoting the purchase of the next packet of cigarettes. It is true that the impact might be aimed at existing smokers but, as 70 per cent. of smokers say that they want to give up, we should be trying to protect them. It is right that those who want to give up should not be continually bombarded with new

inducements to buy the next packet of cigarettes. That is why I reject amendment No. 28.

Amendment No. 44 would remove the power to make the regulations that ban distributions made for a nominal sum or at a substantial discount. That is one of the sets of regulations that, at this stage, we anticipate need not to be laid. However, it is right that we have such powers should abuses arise. An obvious way of avoiding the problem of not being able to send out free distributions would be to say, ''All right, we will distribute a packet of cigarettes for 10p, or a gift such as honey doll for 20p.'' We have the regulation-making power in place as a way round the free distribution prohibition. To remove that regulation-making power—which is a reserve power—would open a potential loophole that would undermine the entire of clause 9. That is why I oppose the amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful to the Minister for her response, although I fear that some of the regular arguments to which she resorts—such as the use of ''bombarded''—were creeping in.

With regard to amendment No. 44, the hon. Lady said that there was no intention to use the power, but it should be included just in case. That argument is wearing a little thin. I take her point about amendment No. 41 going against the clarifying nature of that part of the clause. However, I do not buy the argument that a coupon—not, as she said, coupons—that offers a reduced price for the next packet of the same brand of cigarettes would have a significant effect on the habits of a particular smoker. He is already dedicated to smoking, by continuing to do so, and I do not think that a coupon constitutes 'bombarding' him. The Minister should give greater credibility to the brand loyalty argument, although I see why she does not want to do that.

Offering a 10p or 50p discount is different from the offer of an inducement to become the proud owner of a honey doll or carry cot, or—as I believe the hon. Member for Eastwood mentioned—to take advantage of a cardio-vascular work-out. I think that we will continue to agree to disagree on that issue, and I do not think that we will make any further progress on the amendment.

I beg to ask to leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

David Wilshire (Conservative, Spelthorne)

I shall try not to detain the Committee for long. I am worried that clause 9 provides yet more regulating power, despite the fact that the Minister says that she has no need to use it. Subsections (7) to (9) were the subjects of an amendment, and they add to my collection of doubts about what it is that we are doing. Subsection (7) states:

''The Secretary of State may make regulations providing for this section to apply''.

Subsection (8) states that the regulations

''must provide for the meaning of 'substantial discount'''.

Curiously, we were told before lunch that it was proper to say that regulations ''may'' provide for a definition. Suddenly, it is a good idea that they ''must'' provide. Before lunch, we had a wonderful argument about why we did not need ''must''. Now, without a comment, we are asked to agree to ''must''. Where is the consistency throughout the Bill that was trumpeted in an earlier debate?

Consistency suggests that, if references are made to the need for definitions, one either ''may'' or ''must'' make them. One cannot pick and choose and say, ''You may make those but you must make the others'' without some reason being given.

The clause states that

''the regulations must provide for the meaning of 'substantial discount'''.{**W4**}

The mind boggles at what ''substantial discount'' might mean. It might simply be one person's opinion, and to have an order-making provision that involves somebody defining ''substantial'' is an abuse of the process of Parliament.

Clause 9(9) states that the regulations would apply

''with such modifications . . . specified in the regulations as the Secretary of State considers appropriate.''{**W4**}

Methinks that Henry VIII is back again. The clause is saying, ''We can have any definitions that we like by order, and, having made them, we can vary them.'' Consistency, parliamentary democracy and the rule of law no longer matter to the Government. The Minister owes us an explanation for continuing to trample over the things that we hold precious in this country.

Andrew Hunter (Conservative, Basingstoke)

I shall be extremely brief. I have a technical drafting point to make and I do not expect the Minister to reply to it now, although she may take it on board. The offence under clause 9 is defined in subsection (1). Subsection (3) refers to no offence being committed under subsection (1). However, subsection (5) refers to the offence being committed ''under this section'', rather than ''under subsection (1)''. For the sake of consistency, purely in drafting, should subsection (5) not read ''under subsection (1)''?

Tim Loughton (Conservative, East Worthing and Shoreham)

To be consistent, and in the interests of showing that the Opposition have done their homework and scrutinised every word of the Bill, I refer the Minister to the top of page 5, line 2, which refers to

''the purchase of tobacco procucts''.{**W4**}

I noticed the spelling mistake some time ago, as one would expect from the amount of scrutiny Opposition Members have given the Bill. When I tried to table an amendment to correct it, I was told that it would require the Bill to go back to the House of Lords and then be reconsidered by the Committee, which would take up considerable parliamentary time.

Keen that we are to ensure that the Bill makes progress to its next stage of parliamentary consideration, we do not wish to sabotage it by pushing a point about a single spelling error. I do not know what processes are now available to the Minister

to ensure that we do not have a Bill that contains a glaring spelling error. I draw her attention to it out of good will and hopefulness. No doubt, she will get her officials on the case PDQ.

Subsection (1)(a) reads,

''gives any product or coupon away to the public in the United Kingdom''.

When does a member of the public cease to be a member of the public? I am thinking of a private club, of whatever description for whatever activities may go on in such a club. Do members of such a club, who could see coupons or special offers while within the confines of that club acting as private members in private, still constitute members of the public? It is not an entirely flippant point, because being within a private club can sometimes allow for certain entitlements.

Subsection (1) continues:

''the purpose or effect of giving the product or coupon away is to promote a tobacco product.''

My wife is a keen collector of Tesco reward points. She swaps them not for little honey doll whatsits or carrycots, but for money-off vouchers for groceries. In theory, such groceries may include purchases from the tobacco counter of Tesco. If those vouchers were used to purchase cigarettes, they could be deemed to have the purpose or effect of promoting a tobacco product. Unless a specific exclusion were made that a money-off voucher could not be used to purchase tobacco—and perhaps alcohol—it would be legitimate for my wife to use her voucher to buy cigarettes, cigars or any other tobacco product, although that is unlikely because she does not smoke, unlike me. Has the Minister considered whether supermarkets such as Tesco and other shops that run reward schemes might fall foul of the clause? Will it be necessary for supermarkets to include exemptions for products against which their money-off vouchers may not be used?

Those couple of serious points show how people could unintentionally fall foul of the Bill's terminology.

Yvette Cooper (Labour, Pontefract and Castleford)

I shall address substantial discount and the use of the word ''must''. It is right that the Bill uses the word ''must'' because there could be a need to set out regulations on products and coupons that are available for a nominal sum or at a substantial discount. Substantial discount is a relative concept and may mean different things to different people. Therefore, it is right that the regulations must define substantial discount, whatever the circumstances or worries that they address.

In another place, Lord Filkin said that substantial discount is

''a relative concept and may mean different things . . . For example, many people would see £1,000 as a substantial sum, but if it was the discount off a car costing £50,000 it might not be seen as a substantial discount''.—[Official Report, House of Lords, 18 January 2002; Vol. 630, c. 1266–67.]

Points were made about the definition of ''public''. The word is defined in clause 21, and the public include people in private members' clubs, but not members of a family. A person who gave a product or coupon to his relations would not be giving it to the

public, but a person who gave such an item to a member of a private members' club might.

I take the point about the spelling error and the drafting, which was raised by the hon. Member for Basingstoke (Mr. Hunter). I shall take up those points with the parliamentary draftsmen and ensure that they are resolved and that Parliament's intention is clear—whether on ''procucts'' or ''products'', as the spelling error sets out.

The test on Tesco vouchers is clear. Anyone who gives away a product or coupon with the purpose or effect of promoting a tobacco product will be caught. Each case will be determined on a case-by-case basis. Clearly, coupons that are aimed at promoting Tesco or Sainsbury's are unlikely to be interpreted as promoting a tobacco product. In the end, it will be a matter of fact or an individual case having to be decided in that respect.

Tim Loughton (Conservative, East Worthing and Shoreham)

The Minister says that the issue is not entirely clear, but would not a safer way to get round the problem be to add an extra provision to the Bill to the effect that any coupons or vouchers would specifically have to mention the tobacco products. If they did not, they would not fall foul of the clause. Given what the hon. Lady said, a voucher given by Tesco for its products, which could include tobacco products, would be caught by the Bill.

Yvette Cooper (Labour, Pontefract and Castleford)

I am not sure that that is the case. I shall happily consider the matter further before we discuss the Bill on Report. Tesco should be allowed to promote its business, nevertheless the intention behind the clause is to prevent the promotion of a tobacco product. I shall examine whether further amendments need to be made to the clause, but I think that that is highly unlikely. I do not believe that the Bill would stop coupons and promotions by Tesco and other companies that use free distributions in that respect.

Question accordingly agreed to.

Clause 9 ordered to stand part of the Bill.

Clause 10 - Prohibition of sponsorship

David Wilshire (Conservative, Spelthorne)

I beg to move amendment No. 45, in page 5, line 35, after 'services', insert

', support for a political party,'.

Sir David Amess (Conservative, Southend West)

With this it will be convenient to take the following amendments: No. 46, in page 5, line 43, at end insert—

'(c) these defences shall not be available to a political party.'.

No. 47, in page 5, line 46, at end insert—

'(5) The defence referred to in subsection (4) shall not be available to a political party'.

No. 71, in clause 20, page 11, line 2, at end insert

', provided that no party to such a sponsorship agreement has made a donation to a political party within the last 10 years.'.

David Wilshire (Conservative, Spelthorne)

We come now to sponsorship. It gives me no pleasure to speak to the amendments. They would not have been necessary had it not been for the fact that, within a matter of weeks—or, at most,

months—after the Government came into power in 1997, their first outbreak of sleaze came to light. It concerned a £1 million donation from the Formula 1 racing boss to the Labour Government and the promise of a further £1 million that occurred—surprise, surprise—at that moment of discussions between Mr. Ecclestone and Mr. Blair, which resulted in Formula 1 motor racing being exempted from the then proposals to ban tobacco advertising.

From the very earliest moments of the Government, sleaze of that sort has surrounded the debate on tobacco advertising. It is extraordinary that they have made no attempt to redeem themselves and to live up to the promise that they made before the election of being whiter than white and having nothing to do with sleaze. They could so easily have taken the opportunity to put into the clause proof that they were at least contrite for the bribes that they were prepared to take and the actions that would follow.

Given that the Government are not willing to clean up their act, Conservative Members will try to do it for them. If they resist any one of the amendments, we will have more proof that they are not willing to clean up their act. If they have nothing to hide and no intentions of taking backhanders and sleazy money from Formula 1 people, for example, they will support us. The amendments are attempts to prevent such action from happening again. However, they were a sleazy Government from the beginning; they are a sleazy Government now and my guess is that they will continue to be so until they are thrown out of office.

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

The hon. Gentleman has extensive knowledge of recent parliamentary history. Will he remind the Committee which Government introduced the great openness that we are now experiencing in respect of political donations for the funding of political parties?

Sir David Amess (Conservative, Southend West)

Order. I hope that the hon. Member for Spelthorne will resist temptation and not respond to such a question. It has nothing to do with the debate.

David Wilshire (Conservative, Spelthorne)

I may well be found in the Stranger's bar later on, where perhaps we could continue the discussion. I would be happy to do that. However, at present, I accept your ruling, Mr. Amess, because the only allegations of sleaze and nastiness that are before the Committee relate to tobacco advertising. I shall confine myself to speaking about the amendments.

Amendment No. 45 is necessary. It refers to subsection (2), which tries to define a sponsorship agreement. I find it interesting that sometimes the Bill tries to define something, and on other occasions it does not, and I cannot help wondering why it should wish to do so in this instance. Perhaps the Government are trying to create loopholes for their friends, so that more money can roll into their coffers. The Bill specifies that a sponsorship agreement involves the making of a contribution, but it does not say to whom that contribution must be made. That is curious.

It is possible that someone who would benefit from a loophole with regard to the ability to advertise

tobacco does not make a contribution, either in money or in kind, to—for instance—the racing cars carrying cigarette advertisements that drive around the Formula 1 circuits, because the Bill simply states, ''makes a contribution''. On the exemption for motor racing, it could be argued that the £1 million bung that was given to the Labour party was not given to anybody. That money was not directly handed over as a sponsorship agreement, but was given to a third party. So the argument goes thus: ''I—whoever I am—sponsor Formula 1 racing. Formula 1 cars carry my adverts. The Government exempt Formula 1 racing, and then I give the Government £1 million. Therefore, I have not paid anything by way of sponsorship, but the Labour party's coffers contain an extra £1 million, and it has a promise of another £1 million.''

Unless this part of this clause is tidied up, the Labour party might have a nice little loophole that would enable such activities to go on happily for forever and a day. How many more £1 million are lurking around somewhere? How many more little bits of legislation that have come before this House since 1997 have been passed in such a way as to allow nice loopholes for more money to sail into Millbank towers to fund the Labour party?

David Ruffley (Conservative, Bury St Edmunds)

I am grateful to my hon. Friend for ventilating the ambiguity in line 33 of page 5. Has he ever before come across draftsmanship that uses phrases such as,

''makes a contribution towards something''?

That is strange language. It jars with me, as a Parliamentarian. Does it jar with him? Has he seen anything as sloppily drafted as that, during his time in the House of Commons?

David Wilshire (Conservative, Spelthorne)

No, I have not. However, it strikes me as quite an accurate description of a contribution of £1 million being made to the coffers of the Labour party—which, I gather, is what happened. What appears to be sloppy drafting is, in fact, an accurate description of the sorts of sleaze and corruption that have come to light since 1997.

David Ruffley (Conservative, Bury St Edmunds)

Is my hon. Friend suggesting that this is not incompetent draftsmanship, but a deliberate attempt to create a loophole that might be exploited by the Labour party?

David Wilshire (Conservative, Spelthorne)

I cannot claim to be able to see inside the minds of the people who drafted this legislation. I am merely suggesting that the sloppy drafting could be interpreted in that way. The Minister might wish to answer my hon. Friend's question, but I cannot do that, because I am not a clairvoyant. I can only say that the drafting is sloppy, and that that invites the explanation that it is deliberately sloppy for the reason that I have suggested. One of the two possible answers to my hon. Friend's question is correct and, in due course, the Minister will no doubt tell us which is the right one.

Amendment No. 46 refers to subsection (3) and says that there will be defences against the allegations in the Bill. We have been round this course before, and are not surprised to learn that those defences relate to not knowing the purpose of the payment or what its effects will be. That invites us to get into a discussion of the

purpose of bungs to political parties. The explanation offered by Mr. Ecclestone as to why none of this has anything to do with tobacco advertising in Formula 1was that he made his donation to the Labour party because he was impressed by its decision to spare high earners massive tax increases. Well, he would say that, would he not? He had to say something, but he did not deal with the fact that he and the Prime Minister discussed tobacco advertising when they met. The two things do not add up.

People may be able to deny that donations are intended to influence sponsorship or tobacco advertising, and it would make great sense to clear up all reasonable doubts about whether we are creating another loophole through which Labour party donors can wriggle. We should exempt from subsection (3) those who make political donations, to prevent them from taking advantage of the defences in it. We should also exempt political parties and say that they cannot use those defences. If the provisions are meant to plug the loophole for other people, that is fine, but the Government must come clean. They should tell us whether they intend to use the defences in the clause and to say, ''Ah well, the odd £1 million that has come into our coffers has nothing to do with buying influence—it's just a matter of someone's high-mindedness and gratitude.'' I am not sure quite how anyone could be grateful to the Government, but I am doing my best to get my mind around what the Government are saying.

To avoid doubt, let us make it clear that stopping off the defences in the clause for political parties and those who make political donations would deliver the Government from temptation once and for all—they certainly cannot resist it without our help—and enable them to be as honest, decent and upright as they promised to be, because they have clearly failed in that regard.

Amendment No. 47 relates to subsection (4), which states that an agreement must be made

''in the course of a business.''

If £1 million is popped into a brown envelope and put in the Labour party's pocket, the agreement must be entered into in the course of a business to fall foul of the Bill. That explains why I and, I assume, other members of the Committee received a copy of a letter from the Federation Internationale de l'Automobile on or about 15 April. The FIA thought that I would be riveted by the letter, which is from Max Mosley to the Secretary of State for Health. The letter does not say who Max Mosley is, although he seems to figure somewhere in the story of the £1 million bung. Page 2 of his letter states: ''We''—presumably the FIA—

''are not seeking, and have never sought, any exclusive exemption for Formula One from UK or EU efforts to ban tobacco advertising and sponsorship.''

There we have it. The Bill says that, to qualify, an agreement must be in the course of a business, and the business interest in the £1 million bung to the Labour party in 1997 is represented by the FIA and Formula 1 racing. Yet, those bodies are saying, ''It was nowt to do with the course of business. Someone who got rich on the back of F1 just happened, in a private capacity, to give the Labour party £1 million.'' Lo and behold,

they are exempt from the ban on tobacco advertising. The agreement was not in the course of business, however, because the FIA says so.

When one reads that letter in conjunction with the Bill, one understands that the Labour party has learned nothing. It is even prepared to use the Bill to help it wriggle, wriggle, wriggle, so that people can slip it millions of pounds in return for favours if they subsequently write a letter such as the one that I quoted. The whole things stinks, and we must do something about it.

In your wisdom, Mr. Amess, you have decided that we should debate amendment No. 71 to clause 20 now. I hope that, when we come to consider clause 20, we shall be able to vote on the amendment as well. Clause 20 deals with the transitional arrangements. If ever an amendment was needed it is this one, because in the first instance £1 million bought a total exemption for Formula 1 from this legislation. Unfortunately for the sleazy members of this Government, they were found out, so they had to give it back. That cost them not only the first £1 million but the promise of the second £1 million.

The Government could not, after that, come up with a complete exemption. I am sure that that was what they wanted—it is what Mr. Ecclestone and the Prime Minister discussed in Downing street—but having been rumbled, that was no longer possible. What was the second-best option? Under the circumstances, it was a transitional period. If one cannot wriggle out of the ban altogether, let the status quo go on a bit longer—let more money be made. Who knows whether any money changed hands for this clause? Perhaps £500,000 instead of £1 million buys a later date, even if it cannot buy an exemption? I would like to hear from the Minister whether more money has changed hands for this measure.

If there is a good argument for a transitional arrangement for sponsorship, one way for the Government to clean up their act would be for them to accept amendment No. 71, which would make it quite clear that no one could take advantage of the transition if they or their company or organisation or anybody involved with them had made a political donation within the past 10 years—whether they had to give it back is another matter. Anybody involved in sleaze and backhanders could not take advantage of the transition. That would enable the Government to argue that there are good, sound practical reasons for a transition period. They could allay my suspicion that the real reason for the transition is to put more money into the back pockets of the Labour party's treasurer.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Generally, my rule and that of my hon. Friend the Member for Edinburgh, West (John Barrett) is not to support amendments to the Bill for reasons that I gave at the outset and on Second Reading—that although it is based on a Government Bill, the legislation was forged by my Liberal Democrat colleague Lord Clement-Jones in the House of Lords. However, the hon. Member for Spelthorne is to be congratulated on the amendments and the way he spoke about them. It

is tempting to add full support to the moral argument that he so eloquently made.

How my hon. Friend and I vote on such matters is based on the merits of each case, with the presumption that we would prefer the Bill to remain unamended. However, the hon. Gentleman made some powerful points. He might have gone on to ask whether, if the sponsored body gave the money back, that should be some form of defence for engaging in this form of sponsorship, which we rightly seek to ban. I do not think that it should be. However, some have argued that if one is found out and gives the money back, that somehow absolves one of the implications of the original sponsorship deal. That is a wholly redundant argument and I am sure that one of the hon. Gentleman's Conservative colleagues was about to make that point.

I know that we cannot go too far down this road, Mr. Amess, but if we want to be clear, it is about time that we ended sponsorship of political parties. There is an overlap between the issue of tobacco sponsorship and sponsorship of political parties. I hope that the hon. Gentleman will give serious consideration to the idea that because of the difficulty of separating out payments that appear to be for political favours, for example those related to gaining exemption from bans on tobacco advertising, there is a strong argument that we should not allow companies to make such donations at all and that sponsorship of political parties should be restricted to small individual donations and state support.

He might also have made the point—perhaps one of his hon. Friends was about to—that it should not be a defence for a sponsoring party of tobacco advertising to say that something is okay if made public. Such sponsorship deals need to be banned, regardless of whether they are made public or done in secret. For a sport simply to say that it will publish sponsorship deals and sums of money for the first time does not seem right to the public, who are the victims of the advertising. It does not seem adequate for someone to say that they are at least letting the public know that they are the victims.

I am spiritually with the thrust of the amendment. Depending on what the Minister says, I think that it would be difficult for us to vote in favour of it, because it would dilute the effect of the Bill. However, I repeat my congratulations to the hon. Member for Spelthorne on the effective way in which the amendment was introduced. It makes an important point about tobacco sponsorship of political parties.

David Ruffley (Conservative, Bury St Edmunds)

I support the amendment. It is worth reminding the Committee that the Opposition have brought clear minds to the consideration of the drafting of the Bill. The more I have considered the drafting at various points, the more I have realised that some of it is not as clear as it should be. I have in mind our earlier exchanges about the failure of the draftsmen and draftswomen to spell out clearly in sufficient detail what a tobacco advertisement means. Subsection (2) provides yet another example of drafting that would benefit from improvements.

Luckily, we have means whereby it can be improved, as the amendment would insert the words

''support for a political party''.

We have heard about the lack of clarity that underlies the drafting. The words ''sponsorship agreement'' do not make it immediately clear who the parties might be, nor is it clear what the ''something'' referred to in line 33 of page 5 is. Let me venture a simple example that might be covered by the clause as drafted. A tobacco company or an associate might seek to promote its product against the thrust and purport of the Bill by sponsoring a political party.

Far be it from me to point fingers at the Labour party, but I believe that it has a bit of previous on receiving sponsorship at party conferences from businesses. The clause refers to businesses, using the words,

''in the course of a business''.

I could be wrong, but I think that the late, lamented retail chain Somerfield sponsored the passes that hung round the necks of various delegates at a Labour party conference some time ago. That is clear precedent of sponsorship. I could go on to list many examples of private enterprises and companies that sought to sponsor events held by the Labour party, before it went into—[Interruption.] Due to the chuntering from a sedentary position on the Labour Benches, I would suggest that the comments from those on our side of the Committee are very much to the point. We are on to something.

David Wilshire (Conservative, Spelthorne)

I am interested in the example given by my hon. Friend. Does he think it significant that the company concerned sells tobacco?

David Ruffley (Conservative, Bury St Edmunds)

I had not thought of that, but my hon. Friend has a point.

I do not want to stray out of order, Mr. Amess. My point is that political parties clearly receive sponsorship from businesses in this country. If the Bill is not to be defective, those who want it to be approved should give serious consideration to the means by which its defective drafting can be improved. It may be argued that that sort of thing does not really happen, that the chances of a tobacco company seeking to sponsor a political party are slim or negligible, and that BP's position is the norm among British companies. Lord Browne, chief executive of BP, has said,

''we won't fund any political activity or any political party.''

However, there is plenty of evidence to suggest that companies and organisations are already finding alternatives to clear political donations—cash for influence—and are being more crafty. As the Financial Times reported, those alternatives include influencing Government policy through

''sponsoring think-tanks, co-opting former government advisers or employees, and by placing company directors on to public bodies, particularly task forces.''

The reason why the issue needs to be aired in Committee is because The Times reported last week that best estimates suggest that the Labour party has a debt of almost £10 million at the same time as several

trade unions are reconsidering their contributions from political funds to the Labour party, allegedly in protest at policies affecting their industries. Clearly, if there is a shortfall in the coffers of the Labour party—the governing party of the moment—it is not beyond the realm of probability that the Labour party might seek to make up that shortfall by getting donations or sponsorship money from private companies, including tobacco firms. That logic is powerfully supported by the list of unions that are reconsidering their position on donating money to the Labour party. It includes the Transport and General Workers Union, the General, Municipal, Boilermakers and Allied Trades Union, the Communication Workers Union, the National Union of Rail, Maritime and Transport Workers and Unison. They have either decided to reduce their donations or are, allegedly, considering doing so after consultation with their members.

That was reported in The Guardian on 9 March 2002, in The Sunday Times on 31 March, in The Independent on 30 March, in The Times on 25 March, and in the Daily Express on 29 March. Those reports are not idle speculations, but go to the heart of the point that we want the Government to clear up by accepting amendment No. 45. The list continues of companies or individuals whom the Labour party decides to court assiduously in many ways. It knows almost no shame in the way that it sucks up and gets around those who might donate to its cause. We know of the £32 million contract to supply smallpox vaccine—

Sir David Amess (Conservative, Southend West)

Order. I have been listening very carefully to what the hon. Gentleman has been saying, but I must ask him to return to the matter under consideration, which is tobacco sponsorship. Will he please leave aside those wider matters on which he seems to be concentrating?

David Ruffley (Conservative, Bury St Edmunds)

I am most grateful, Mr. Amess, for that guidance. I shall confine my remarks to the possibility created by the drafting of subsection (2), to which amendment No. 45 relates, that a tobacco company could—rather like the companies to which I referred and which I mentioned merely as examples of precedent—decide that it was worth while sponsoring a political party.

My scenario was that a company might want to sponsor the Labour party because it is currently the governing party and might, therefore, be one of the parties to a sponsorship agreement with a tobacco company. It is also possible that the other party to the sponsorship agreement could be the Labour party. Without amendment No. 45, sponsorship of the sort that I have described could be made by a tobacco company to a political party, which would defeat the purpose of the clause and thus fatally subvert the purported aim of the Bill, which the Minister invites us to support.

I draw my comments to a conclusion by saying that, in my judgment and that of my hon. Friends and of the hon. Member for Oxford, West and Abingdon (Dr. Harris), the defective drafting would cause a loophole. We believe that it should be closed in the

interests of good law-making and good legislation. If we are not here to ensure that, I venture to ask what are we here for. It is a sensible amendment, which would clean up and make clearer the drafting of subsection (2).

Yvette Cooper (Labour, Pontefract and Castleford)

The four amendments are not serious; they were tabled so that Opposition Members could indulge in the usual nonsense, which we have heard many times before. Sponsorship already includes contributions, either in money or in any other form. It does not matter who is involved, and it does not matter what form it takes; if it has the purpose or effect of promoting tobacco products, it is covered by the Bill. The Bill treats political parties in the same way as everyone else. It sets out transitional arrangements, which must be made on the merits of the case and not on the basis of donations or anything else.

The clause allows tobacco companies and everyone else to donate to charities and good causes, or to give money to the arts or the opera—they can make donations to anything as long as it does not promote a tobacco product. If it has the purpose or effect of promoting a tobacco product, it is covered by clause 10(2), subject to the defences set out in clause 10(3).

The hon. Member for Oxford, West and Abingdon expressed the concern that it would not be sufficient simply to publish sponsorship agreements, but that the sponsorship agreements themselves should be banned. I agree. That is the effect of clause 10. Transitional arrangements are set out in clause 20, but the conclusion is clear. Any sponsorship agreement that promotes tobacco products will be covered.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I take the Minister's first point about the knock-about; to a certain extent, I contributed to it. I suggest a scenario in which a tobacco company makes a donation to the Conservative party with the aim of influencing its policy on the banning of advertising of tobacco products. Albeit indirectly, that could promote tobacco products generally. Is it the Minister's understanding that such sponsorship of a political party would be covered by the Bill, regardless of whether it was given back later?

Yvette Cooper (Labour, Pontefract and Castleford)

The facts would have to be established, but the clause is clear. If the purpose of, or anything done as a result of, a sponsorship agreement has the effect of promoting a tobacco product in the United Kingdom, it would be covered by the prohibition of sponsorship.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am a little concerned about the Minister's repetition of the words ''a tobacco product''. It may have been covered elsewhere in the Bill, but I presume that that includes tobacco products generally, so that a company that wanted its advertisement to say ''Smoke cigarettes'' without mentioning its product by name would still be covered. What the Minister says is important, not least for purposes of interpretation. Is it her understanding that if a company promotes tobacco generally it will be presumed to be promoting a tobacco product specifically?

Yvette Cooper (Labour, Pontefract and Castleford)

The Bill does not define particular tobacco products but speaks of promoting ''a tobacco

product''. To promote many tobacco products will be to promote ''a tobacco product''.

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

Further to the point made by the hon. Member for Oxford, West and Abingdon, I believe that several Opposition Members who spoke on Second Reading have registered interests in relation to the Tobacco Manufacturers Association. Is it the Minister's understanding that that could constitute promotion under the Bill?

Yvette Cooper (Labour, Pontefract and Castleford)

My hon. Friend raises an interesting point. Hon. Members who speak in the House have parliamentary privilege, which is why they have to declare interests. A question mark hangs over those who are party to a sponsorship agreement; however; if they promote a tobacco product as a result of that agreement outside the House of Commons, it remains to be established whether they are covered by the Bill.

Clause 20 sets out the long-standing Government policy as agreed with European partners that transitional arrangements should be in place to ensure that sports have time to wean themselves off tobacco sponsorship. It states that the last possible date is 1 October 2006. The long-standing Government position is shared by the European directive, which gives a deadline of July 2003 for some sports and October 2006 for global sports. That is an end date, as my right hon. Friend the Secretary of State said on Second Reading. If we and those sports can make the change more quickly than that, we shall do so, but we shall consult on the regulations in due course.

The hon. Member for Bury St. Edmunds (Mr. Ruffley) spoke about contributions to ''something,'' and asked whether the wording was too broad. I think not, because the wording allows for sponsorship of tourist events, arts events, sports and many other kinds of event. The danger of trying to define the object more closely is that the clause might then exclude a particular event sponsored to promote a tobacco product.

I am interested by what Opposition Members say in their attempts to close loopholes in the tobacco advertising ban. However, we should remain clear in our minds about which parties have been proposing to ban the promotion of tobacco products through advertising, free distribution, coupons, brand sharing and sponsorship. The Labour party is responsible for that effort, with the support of the Liberal Democrats. Which party, on the other hand, has consistently supported the continued promotion of tobacco through advertising, sponsorship, coupons, brand sharing and so on? The Conservative party has done that. I hope that we shall be preserved from any more of the nonsense that has surrounded the politics of the debate.

David Wilshire (Conservative, Spelthorne)

That last remark came as no surprise. However, I have heard not one word from the Minister condemning the sleaze surrounding the issue up to now. She made no condemnation of bungs and the buying of favours—slipping a million pounds here and a million pounds there. In addition, she refused to

contemplate amendments designed to shut off that possibility in future.

David Ruffley (Conservative, Bury St Edmunds)

I think that the Minister said, in response to the sleaze allegations, that she had heard it all before. Does my hon. Friend agree that she has indeed heard it all before, from not simply Opposition Members but many investigative reporters, mainly from organs such as The Guardian and The Observer, which are fairly objective commentators, I should have thought?

David Wilshire (Conservative, Spelthorne)

Exactly. I was coming to that.

The Minister said that the amendments were not serious, which suggests that I was not being serious. Rarely have I been as serious as I have been in the debate on the clause, for the simple reason that the easiest way in which to undermine public confidence in politicians and the political process is through corruption, which is what the amendments are designed to stamp out.

It is blindingly clear that corruption has surrounded the debate. The best that the Minister can do is say, ''Look who proposed a ban.'' I am merely saying, ''Look who proposed a ban but who, in return for £1 million and the promise of another £1 million, said, 'We are proposing a ban except for the people who are giving us millions of pounds.''' If that is something to be proud of, I am glad that I am not associated with it.

Some people in my party may actively promote tobacco; I have no idea. I have at no time in the course of the Committee or knowingly in my life set out to encourage people to smoke. I merely speak on behalf of legitimate business doing a legal activity being allowed to carry on its business. I do not consider that to be picking on anyone. I defend people's right to continue doing things within the law, regardless of who they are, whom they voted for and what product they make. If the Government had any courage or principle in the matter, they would try to ban smoking, not go round this course pretending that they are noble while taking £1 million here and there.

I was and am being serious, and I resent the matter being dismissed as going round the course again. Of course the Minister has heard the argument many times, for one simple reason. Time and again, the Government take bungs from people, so we have only to mention each example once for her to hear it many times. If she wants to stop hearing the case, she must simply go to her Prime Minister and colleagues in Government and turn them into decent, honest and honourable people who do not take bungs.

Sir David Amess (Conservative, Southend West)

Order. The hon. Gentleman must relate his remarks more closely to the amendment.

David Wilshire (Conservative, Spelthorne)

I was trying to, but I was responding to the Minister, who was tempting me to expose sleaze wherever I see it, which was, I believe, a phrase that was used at one stage.

I have spared the Liberal Democrats much comment, for which they are probably grateful. Had they been present to listen to the debate, they would be better informed, rather than not attending regularly.

I must take comfort from the odd gesture whenever it comes. The hon. Member for Oxford, West and

Abingdon says that he is with me in spirit. How I wish that he had the courage of his convictions. As well as being with me in spirit, why does he not break the habit of the Liberal Democrat party and vote for something?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I was present for the entire discussion on the amendments, because they interested me. The Minister has made it clear that it is her view that the Bill already stops tobacco company sponsorship of political parties for the purpose, through policy changes—that is, indirectly—of promoting a tobacco product. That is why I do not believe that the amendments are strictly necessary. However, the hon. Gentleman was right to probe the matter to flush out the fact that the Labour party, too, runs the risk of being seen to be too close to the industry at a time when it purports to be introducing a ban.

David Wilshire (Conservative, Spelthorne)

I am interested in that intervention. One of the most revealing things that I have heard in the course of today's debate was that the hon. Gentleman was present because the amendments interested him, from which I conclude that he could not care less about the rest of the Bill.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It was very uninteresting.

David Wilshire (Conservative, Spelthorne)

Exactly.

Sir David Amess (Conservative, Southend West)

Order. I again ask the hon. Member to address his remarks closely to the amendment under discussion.

David Wilshire (Conservative, Spelthorne)

I am trying to do so, Mr. Amess, but my difficulty is that in the earlier debate, which you allowed because it was in order, issues were raised that needed a response. I am a little challenged to know why, if the original comment was in order, my response to it is not. However, I will not try your patience other than by making one more point.

My hon. Friend the Member for Bury St. Edmunds drew the Committee's attention to the size of the Labour party's overdraft. I shall not discuss that, but I will talk about what that means for the amendments under discussion. The amendments were made necessary by Formula 1's donation of £1 million and offer of another £1 million. That subject attaches directly to that of excluding Formula 1 from the provisions of a Bill such as the one before us.

Given what my hon. Friend says about the £10 million overdraft, the enormity of what happened with Formula 1 is clear. The £2 million that we know about is 20 per cent. of the Labour party's overdraft. That is not small beer, but a 20 per cent. slice of the value to which it is in hock. I am sure that the Co-op bank will be grateful—[Interruption.] I will not stray any further; I shall return exclusively to my amendments. I believe that they are important, and I am being serious about them.

I shall end my speech as I started it: if the Labour party has nothing to hide, if there are no more donations that we do not know about and if the Government do not intend to take money in exchange for exemptions from the Bill, why will the Government not accept the amendments? If the Government have nothing to hide, they have nothing to fear. The

amendments are trying to save the Government from themselves, and heaven only knows that they need some saving. I have no intention of withdrawing the amendment, and I commend it to the Committee.

Sir David Amess (Conservative, Southend West)

Will the hon. Gentleman clarify whether he wishes to press only amendment No. 45 to a Division, or whether he intends that the Committee should vote also on amendments Nos. 46, 47 and 71 when we come to them?

David Wilshire (Conservative, Spelthorne)

I wish to vote on the amendments that attach to clause 10, and if the procedures of the Committee allow us to vote on amendment No. 70 as well, I shall seek to do so.

Sir David Amess (Conservative, Southend West)

Yes, they certainly do.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 11.

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 30, in page 5, line 35, at end insert—

'(2A) No offence is committed under subsection (1) if—

(a) the business referred to in subsection (2) is part of the tobacco trade,

(b) the sponsorship agreement is for the purposes of that trade,

(c) the purpose or effect of anything done under the agreement is to promote a tobacco product solely to persons who—

(i) are engaged in, or employed by, a business which is also part of that trade, and

(ii) fall within subsection (2AA).

(2AA) A person falls within this subsection if—

(a) he is responsible for making decisions on behalf of the business referred to in subsection (2A)(c)(i) about the purchase of tobacco products which are to be sold in the course of that business,

(b) he occupies a position in the management structure of the business in question which is equivalent in seniority to, or of greater seniority than, that of any such person, or

(c) he is the person who, or is a member of the board of directors or other body of persons (however described) which, is responsible for the conduct of the business in question.'.

The amendment would make a substantial addition after line 35, and deals with the issue of internal trade sponsorship schemes. I understand that it is not intended to exclude or penalise such schemes, but I fear that, as currently framed, the Bill would do so. We seek to make it explicit that such promotions and business should be exempted if within the trade. The Government have said that if tobacco advertising and promotion are confined within the trade they would not be offences. Therefore, I hope that the Minister will look favourably on the amendment—it is not too late in the day for her to concede something. Such tobacco advertisements are specifically permitted by

clause 4(1)(a), and free distributions are specifically permitted under clause 9(3). However, clause 10 as does not permit sponsorship agreements when

''the purpose or effect of anything done as a result of the agreement is to promote a tobacco product''

within the trade. That is counter to what the Government intended.

I gather that when a similar amendment was discussed in the other place, a short discussion centred on private events and the giving of tobacco products in gestures of hospitality, so the point of the amendment was missed by the Government. However, there are sponsorship agreements in which the ''something''—as the Bill calls it, and as my hon. Friend the Member for Bury St. Edmunds earlier highlighted—that is sponsored is within the trade and the sponsorship agreement has a restricted purpose. The amendment therefore maintains consistency in the Bill's approach to advertising and promotion confined within the tobacco trade.

The amendment has real and practical relevance. Sponsorship agreements exist. Events within the trade such as conferences, exhibitions and awards are sponsored and the agreements should be allowed to continue even when they have the purpose or effect of promoting a tobacco product, because they are conducted within the trade by people fully cognisant of that trade.

It has been suggested that such a provision is not necessary. The Bill would not prohibit sponsorship agreements within the trade in the name of a company rather than a tobacco brand, because they would not be promoting a brand. That is to miss the point of the amendment and to ignore the fact that some tobacco brands share the name of the company manufacturing the brand—Benson and Hedges, Rothmans and Lambert and Butler spring to mind, but there are others. It would be unacceptable for such brands to be afforded different treatment under the Bill.

We are told that the Government do not intend that the Bill should interfere with advertising and promotion within the trade. Sponsorship agreements that are confined within the trade, as the amendment provides, should be permitted. The amendment makes that clear. We seek to make more explicit what was intended but would not be permitted by the clause as currently drafted. It is a helpful amendment, and I trust that the Minister will deal with it accordingly.

Yvette Cooper (Labour, Pontefract and Castleford)

The Government oppose the amendment because it excludes from the ban on sponsorship those sponsorship agreements that are directed at persons in the tobacco trade. The Bill as drafted enables companies to sponsor events and use their company name as long as the company's products are not given any promotion in return. A balance has been struck because the Bill permits commercial dealings between companies and for the tobacco trade to carry on its business. The Bill also enables companies to sponsor events or to make donations to good causes. That is their entitlement. However, the Bill does not permit the tobacco trade to

promote its products by means of sponsorship agreements.

The amendment would allow a tobacco company to sponsor a golf tournament or polo match to which those invited were commercial buyers of tobacco products. Such activities are not appropriate or necessary for the tobacco trade to carry on its lawful business and are not comparable with the exceptions under clauses 4 and 9. Exceptions from the general ban exist to permit the continuance of ordinary trade. It is not necessary to allow greater sponsorship than would ordinarily be needed. That would potentially open further loopholes.

The Bill bans the promotion of tobacco products through sponsorship. It is not about preventing organisations from discussing the merits of smoking. There should be a broader exemption for those in the tobacco trade.

Andrew Hunter (Conservative, Basingstoke)

Will the Minister deal with tobacco brand products that share the name of the company? There is an anomaly as some companies will be able to advertise a product because it has the same name.

Yvette Cooper (Labour, Pontefract and Castleford)

That is why it is so important that the Bill includes ''effect'' and not simply ''purpose''. I take the hon. Gentleman's point seriously, but if the effect of a company promoting its name is also to promote a tobacco product, that falls within the scope of the Bill. The Government oppose the amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am disappointed. The amendment is serious and detailed but I do not think that the Minister has dealt with my point. She seemed to say that it is not appropriate or necessary for a tobacco company to carry on its business by hosting or sponsoring a polo match or a golf event exclusively for members of the tobacco trade. I am not sure that that is for her to judge because it is an internal matter. The guests present at such an event would all be members of the trade, who make a living out of producing or selling cigarettes and know the implications of the products with which they deal.

Such people are not impressionable in terms of smoking more or taking up smoking in the first place. The Minister said that it is not appropriate or necessary for a tobacco company to host a trade event in the name of one of its products. On what basis does she make that claim? As I have said, such events—they are perfectly legitimate—already exist, but under the Bill, they would be curtailed. I am not sure whether the hon. Lady is admitting to that, because I was rather confused by her answer. I agree that various general exceptions have been made, but I am still unclear. Is she saying that a Benson and Hedges polo tournament, where all the invitees were involved in the tobacco trade, would no longer be allowed to take place? If so, that goes against the thrust of the notes to clauses and various parts of the Bill. I am unclear whether that is the case, so I wish the Minister to state whether such an event could happen.

Yvette Cooper (Labour, Pontefract and Castleford)

Let us imagine that the players at that Benson and Hedges polo tournament wore white shirts with a flash across—or whatever form of brand

colouring—and that the local newspaper decided to report the tournament, and to include a photograph. It would be perfectly legitimate for such a newspaper to report a news event such as the victory of the local Benson and Hedges team over the Imperial team, or whomever else they might be playing. That report would not be an advertisement, but it could lead to what began as a sponsorship event within the course of trade, to have wider consequences with regard to the promotion of a tobacco product.

Such events might have an impact beyond that which is intended in the course of trade, even though that is not usually the case. Therefore, as has been said, the principle of proportionality arises. Given the potential for this kind of event to spill over and have wider effects than intended, is it so essential to the legitimate pursuit of trade that it should be given a special exception? We have allowed exceptions in earlier clauses, but there is not a sufficiently strong case to allow one here, given the potential for a wider impact.

Tim Loughton (Conservative, East Worthing and Shoreham)

Again, the tobacco company should be able to decide how it wants to promote its product within the trade. The Bill still allows that.

To use the Minister's example, if cameras were banned from such an event, and the press reported it only in words—not in pictures—what possible detrimental effect could that have outside the trade? It is, effectively, a closed event.

Yvette Cooper (Labour, Pontefract and Castleford)

If it were the Silk Cut team or the Marlboro team, it would be a way of promoting the product.

I accept that these are hypothetical examples. However, because it is possible to come up with hypothetical examples, there must be good reasons to permit exceptions, and there is not a sufficiently strong case to grant an exception in this instance.

We talked about communications between organisations in the course of trade when we discussed earlier clauses. For example, with regard to clause 4(1)(a), we talked about communication made in the course of a business, which clearly is an important part of continuing that trade, so we set out an exemption. It is not clear to me that the kind of sponsorship exemption that we are currently discussing is crucial with regard to the need of the industry to communicate and to continue its legitimate trade. Therefore, given the potential for some of these examples to have a wider impact, there is not sufficient reason to accept the amendment

.

Tim Loughton (Conservative, East Worthing and Shoreham)

It appears that we shall make no further progress on this matter.

The Minister is encroaching on telling the tobacco companies what their internal business is. It is my understanding that that was not the Bill's intention. The events that she now judges not to be appropriate or necessary to the trade commonly take place, and there are easy ways of ensuring that any impressionable material—in photographic form, or whatever—does not leak out from such an event into the public domain, and thereby entice a 14-year-old youth to take up smoking.

We might wish to return to the matter later. It is yet another issue that has not been properly resolved in Committee, will lead to yet more confusion in the trade about what it can and cannot do, and may lead to legal challenge, too, if the Benson and Hedges polo tournament goes ahead and seems to overstep the mark as the Minister regards it. I do not believe that we can proceed any further by arguing at this stage, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 46, in page 5, line 43, at end insert—

'(c) these defences shall not be available to a political party.'.—[Mr. Wilshire.]

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 11.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I have been reflecting on my exchange with the Minister—as, perhaps, has she. I wanted to give her the opportunity to make clear what is banned, rather than what might be legal. However much I deprecate the sponsorship of tobacco, it seems legitimate—as the Conservative party might agree—that under current law the tobacco industry might want to donate to the Conservative party in order to argue for policy change. That is in the nature of a democracy, as we have what I consider to be an unsatisfactory system in which political donations from big businesses are legitimate. However, I hope that it would not be legitimate for tobacco companies to pay money to effect a policy change that would

allow the advertising of a tobacco product. It would be useful if the Minister would make that clear.

Yvette Cooper (Labour, Pontefract and Castleford)

The prohibition of sponsorship is about preventing the promotion of tobacco products, regardless of whether companies are party to a sponsorship agreement. It will not stop freedom of speech in this House or elsewhere on the subject of smoking, in general. It is right that the clause should stop the promotion of particular tobacco products or sponsorship agreements at a party conference, for example, that might promote a particular product. In any case, it would be a matter of fact to be determined whether a particular policy was promoting an individual tobacco product and was the result of a sponsorship agreement or whether individual Members of Parliament or politicians were exercising free speech about broader issues. The Bill is not about restricting free speech, but about stopping the promotion of tobacco products, whether through sponsorship, brand sharing, coupons or advertisements.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It is good news that the Bill will protect free speech but will ban the advertising of specific tobacco products. Now we just have to wait for provisions to be introduced that will remove the sponsorship of political parties by business interests to avoid not only sleaze, but the appearance of sleaze.

Question accordingly agreed to.

Clause 10 ordered to stand part of the Bill.

Clause 20 - Transitional provisions: sponsorship

Tim Loughton (Conservative, East Worthing and Shoreham)

I am pleased that we have made it to clause 20, because I have a lengthy discourse to make about the Embassy world professional darts

championship and the enormous disbenefit that it will be put to under the Bill. I have less than two minutes in which to deliver my discourse, let alone discuss the remaining 10 clauses, amendments and the new clause. However, I shall have a stab at it and see what I can come up with. If I cannot complete my discourse, I have no doubt that we can return to it at length on Report.

Clause 20 is a meaty clause. It is controversial and deals with the transitional provisions of sponsorship that refer specifically to the Government's anointed favourite sport of Formula 1 racing.

It is intended that the Bill will come into force two months after Royal Assent and that its provisions will have an effect on tobacco manufacturers, retailers and so on. A further three months will be allowed before the bringing into force of regulations that govern advertising within retail outlets, impact promotion schemes and certain direct marketing contracts—except for Formula 1 racing.

In another place, the Minister confirmed that the Government intend to stay with the broad outline of their thinking and that the special provisions of clause 19 should remain available to ''exceptional global events''. They are defined as taking place in at least two continents and three countries, with sponsorship in excess of £2.5 million per annum. All other sponsorship agreements should be banned from an earlier date—that is, 2003. That singles out Formula 1 racing, which is not exactly a sport bereft of cash. Did you know, Mr. Amess, that it is probably the most costly and richest sport in the world? It certainly does not need any assistance from the Bill. There are only 11 Formula 1 teams, each of which has to deposit a $48 million bond to participate in the race.

It being Seven o'clock, The Chairman proceeded, pursuant to Sessional Order D [28 June 2001] and the Order of the Committee [7 May], to put forthwith the Question already proposed from the Chair.

Question accordingly agreed to.

Clause 20 ordered to stand part of the Bill.

The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time.

Clauses 11 to 16, 18, 19 and 21 ordered to stand part of the Bill.

Clause 22 - Commencement, short title and extent