Financial Services Bill

Debate between Baroness McIntosh of Hudnall and Lord Stevenson of Balmacara

Consideration of Commons amendments
Wednesday 28th April 2021 Lords Chamber

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

The original question was that Motion B be agreed to, since when Motion B1 has been moved as an amendment to Motion B. Therefore, the question I now have to put is that Motion B1 be agreed to.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I am very grateful to the Deputy Leader, the noble Earl, Lord Howe, for introducing the debate today. I particularly thank the noble Lord, Lord Sharkey, and his all-party parliamentary group for their determined efforts to make sure that this issue is kept alive and at the forefront of our debates on the Bill. We discussed this issue at Committee, on Report and now at ping-pong. We have had the opportunity to meet Ministers and we have been extensively briefed by civil servants, and I am grateful to all of them for the time they have taken to make sure we are fully briefed about the issues.

It is not uncommon to come across issues in Bills containing matters of public policy which seem to pose difficulties to the Government, despite general support for a solution expressed in amendments such as those we have before us today. In my experience, these often turn out to be what are called wicked issues, ones that span departments and need more time, it turns out, to be resolved in Whitehall than is available in the Bill. In this Bill, we had debates on statutory regulation for bailiffs, which probably falls into that category, as it was primarily a matter for the Ministry of Justice. Sadly, we have to wait for a resolution of a problem that all concerned agreed is actually settleable, albeit we have a deadline imposed of some two years. With that, now, the mortgage prisoner issue, but this is not really a wicked issue: the question of how to deal with mortgage prisoners really boils down to how to provide a “get out of jail” card for the small but not inconsiderable number of people—we think it is about 15,000—who are not able to exercise the basic choices about mortgage borrowing that we would regard as fair and appropriate for comparable citizens not caught in this prison. The sad fact is that while this issue continues, injustice is occurring.

Yes, there are problems of who qualifies; yes, there is a moral hazard; and yes, there may be unforeseen consequences. As Her Majesty’s loyal Opposition, we do not normally recommend that any Government should intervene directly in the market—although providing support for those who are trapped in financial difficulties not of their own making has many precedents and, ironically, is presumably where we are likely to end up on this issue, as I very much doubt that the current voluntary solutions will take the trick. As the noble Lord, Lord Sharkey, says, only 40 have so far managed to make the transfer that is on offer through the changes the Government have already made.

I have to say that, since the powers to deal with this issue are already invested in the Treasury, it is hard to see why a possible solution based on the efforts to date to modify the normal affordability checks for existing borrowers, perhaps underwritten or guaranteed by the Government, cannot be devised so that it deals with the situation in what the Government say they need, a proportionate and appropriate way—well, we would all applaud that.

All of us involved in this issue in both Houses have been impressed by the commitment and understanding of the issue displayed by the Economic Secretary to the Treasury, John Glen. We are supportive of his efforts to resolve this issue and want him to carry on—but with pace. We would be happy to continue the dialogue with him if that would be helpful. He stressed in the other place that one of his main concerns was that any solutions proposed should

“not provide false hope to borrowers”.—[Official Report, Commons, 26/4/21; col. 85.]

He is right to say that, but I put it to him that our main concern, and the reason we have pursued this issue to this very late stage in proceedings, is that it is surely unconscionable for the Government to leave a group of their citizens with no hope of recovery from circumstances that, as the noble Lord, Lord Sharkey, pointed out, they did not create. We need to keep in mind the need for hope.

I trust that the positive words we heard earlier from the Deputy Leader, the noble Earl, Lord Howe, about the Government’s strong commitment to finding proportionate and appropriate solutions to this problem will be turned into action very early in the new Session, with strong leadership from the Treasury, giving hope to those suffering the injustice we have been discussing. If the noble Earl can give that assurance when he comes to respond to this debate, I can confirm that we will not seek to test the opinion of the House on Motion B1.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

The noble Baroness, Lady Noakes, has indicated a wish to speak.

United Kingdom Internal Market Bill

Debate between Baroness McIntosh of Hudnall and Lord Stevenson of Balmacara

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 18th November 2020 Lords Chamber

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have received no requests to ask the Minister any short question, so I call the noble Lord, Lord Stevenson of Balmacara.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I thank everyone who has spoken in this debate for their thoughtful and often powerful contributions. It has been a wide-ranging debate and a very interesting one. It has raised new dimensions in our debate today, and for the ones we will have in succeeding days on Report.

It made me think of two things that I want to share with the House in concluding. A lot of the problems with the Bill arise from the accelerated timetable it has gone through. The feeling I am left with after this debate is that if there had been more time for debate prior to its publication, we would not be facing the rather uncomfortable tension between the wish to maximise consumer benefit and reduce barriers to trade, which has been expressed by a number of speakers and which we fully support, and being unable to respond to local wishes in parts of the country on issues that matter to local people. We want there to be competition not only in raising standards but in innovation and finding new ways of dealing with issues of public policy that may arise.

Interestingly, various derogations and exemptions that appear in the amendments in this group mimic the concerns expressed during the Trade Bill, which we will return to later this year, and which were resolved in the Agriculture Bill, with the Government conceding that there needed to be a statement on the standards of environment, animal welfare and animal production standards in relation to the agricultural trade and products. If you add public health, social and labour standards, we are back with the lists that appear in today’s amendments. I wonder why that is; I do not really have an answer. However, it might be worth more consideration. I will look carefully at Hansard to see whether we can find a common thread that might be picked up in later amendments, and on which it might be worth pushing for further debate if we can—or perhaps to a vote.

In passing, I am sorry that the noble Baroness, Lady Noakes, whose contributions are always of interest, was foxed by the term “cultural expression”. I believe that is the term used when state aid is used to support activities that would otherwise not be possible. A reference here would be the horse race betting levy, which would otherwise be banned, or the support that this Government brought in to support the film industry, animation, high-end drama and other aspects of cultural life, building on work done initially by the Labour Government. I think that is where it comes from. If it is valid for anyone in the public sector or an elected organisation to wish to see more work, investment and activity in the green economy, for example, as the Prime Minister announced today, it is just as appropriate to say that there could be support for cultural expressions, the term used to talk about the culture industries.

The general feeling is that the Bill is too tightly constrained around how the market access provisions will work—so much so that there may be disbenefits to consumers unless people in different parts of the country can respond differently to issues they feel strongly about. As I said, I will read Hansard, but I feel that while the common frameworks will be able to carry most of the load of the issues raised today, they will not take us all the way and it may be necessary to return to this issue at some stage. In the interim, I beg leave to withdraw the amendment.

United Kingdom Internal Market Bill

Debate between Baroness McIntosh of Hudnall and Lord Stevenson of Balmacara

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 2nd November 2020 Lords Chamber

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have had no request to speak after the Minister, so I call the noble Lord, Lord Stevenson of Balmacara.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I thank those who have spoken in support of the amendments, particularly the noble Baroness, Lady Bowles, who accepted the principles despite having doubts about some of the factual points, and the noble Baroness, Lady McIntosh, for covering a lot of ground and raising questions that will need to be addressed by Ministers. In fact, I do not think that they were addressed in the response this evening. I thank my noble friend Lord Judd for bouncing back after having been ignored and making some very good points about why it is important to seek principles as we go through the Bill, because they are sadly lacking at the moment. The legislation seems a formulaic response, almost an early policy draft of what one might do if one were to regulate an internal market. It does not smack of having had a lot of discussion and debate or even wider consultation. The Government do not seem to have in mind a process whereby they can arrive at a solution to the problem of how we get shared ownership and trust into a system which is broadly voluntary in its basis without it looking as though it is a top-down, heavy-handed approach. There may be political advantages in that in the short term, but in the long term it is not the way to go.

This was a probing amendment to which we heard some responses, but there are still one or two to come. I am left with the feeling that, whatever we call the body and wherever we locate it, if it is capable only of providing non-binding advice and has no powers, it leaves the question of who will police the whole system. What happens, for instance, if the devolved Administration in Scotland decide they want to do something in particular in relation to whisky, chicken or flour—and we now know an awful lot about flour adulteration? Who will police that? Will it be BEIS? If so, can the Government really say, hand on heart, that the right way to approach what is effectively a devolution issue is through a top-down, UK Government-organised structure? I wonder. I beg leave to withdraw the amendment.

Trade Bill

Debate between Baroness McIntosh of Hudnall and Lord Stevenson of Balmacara

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 8th October 2020 Grand Committee

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Stevenson of Balmacara.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I was delighted to hear from the Minister that a new trade agreement has entered the books. Could he confirm that the same arrangements that apply to the Japan agreement will apply to that agreement in respect of the ability of the International Trade Committee and the EU International Agreements Sub-Committee to have view of the documentation and to make a response to Parliament, should they wish to do so?

Intellectual Property Bill [HL]

Debate between Baroness McIntosh of Hudnall and Lord Stevenson of Balmacara

Tuesday 11th June 2013 Grand Committee

[Lord Stevenson of Balmacara]

My Lords, I welcome the Minister and his team and thank them for the contribution they have already made to our understanding of these complex matters. Design rights are not easy, and it has been a bit of a learning curve for many of us. They have been extremely helpful so far, and I hope that we can work together to improve the Bill.

In Russell-Clarke and Howe on Industrial Designs, Martin Howe describes this as an area of law of “labyrinthine complexity”. Professor Cornish calls it “an absurd maze”. In response to the consultation, the IP Federation stated:

“Designs legislation is very hard to grasp. The legal complexity of the design system as a whole is confusing and hard even for advisers to handle on occasions”.

I could mention Ministers and shadow Ministers. I am sure that would have been perfectly appropriate.

The Government acknowledge that design rights law is complex and that the UK is currently out of step with other EU countries in retaining a relatively generous monopoly power provided by the unregistered designs right. However, they propose to do very little about this. The proposed reforms relate to minor matters, such as changes to the ownership of designs.

As the patents judges, Lord Justice Kitchin, Justice Floyd, Justice Arnold and His Honour Judge Birss QC, said in their response to the consultation, the amendments which have been put forward through this consultation exercise and survive in the Bill,

“represent ... piecemeal tinkering. What is urgently required is a thorough re-appraisal of UK design law as a whole in its international and European legal context followed by fresh legislation.

In particular, we note that the Consultation document recognises … that a fundamental problem with current UK designs law is that it is unduly complicated, yet it fails to make proposals which will significantly alleviate this problem. It is nothing short of ridiculous that a single design can potentially be protected by five different types of right (Community registered designs, Community unregistered design rights, UK registered designs, UK unregistered design rights and copyright)”.

The Modern Law of Copyright and Designs, which I am sure is at the bedside of the Minister, states:

“There is no reason why a proprietor should not claim design right in all aspects of the shape or configuration of his article which he believes could give him a commercial edge over his competitors.

In particular, when it comes to suing a competitor for infringement he will be well-advised to rely, individually and collectively, upon each of those separate aspects of shape or configuration which appear to have been copied by the competitor.

Needless to say, a statutory monopoly which allows the proprietor to mix and match in this way and which deprives a potential infringer of any way of knowing the scope of the exclusive rights which he faces unless and until the proprietor defines precisely what are alleged to be his design rights is ripe for abuse”.

Finally in this overview, Lord Justice Jacob stated in a case in 2006 that:

“UDR can subsist in the ‘design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article’. This is extremely wide—it means that a particular article may and generally will embody a multitude of ‘designs’—as many aspects of the whole or part of the article as can be. What the point was of defining ‘design’ in this way, I do not know. The same approach is not adopted for ordinary copyright where the work is treated as a whole”.

I make these points at length as they are important for the context of some of the debate we will be having on these earlier groups, which are largely around two aspects of the Government’s proposals. The first is, why have they chosen to pull back from the decision they originally had in mind during the consultation exercise to abandon the unregistered design right, or at least combine it with the community unregistered design right, a measure that would at least have some logic to it? They have chosen not to do so and we wish to probe that. Secondly, why is there tentativeness in their proposals to try to provide a commonality of approach between the registered and unregistered design routes?

A registered design has a ring to it because those in authority have seen, opined upon and sufficiently thought well of the design presented to them that they have registered it, much in the way that a small “c” with a circle around it has denoted copyright. The truth is that a registered design is nothing of the sort and seems to be a mainly bureaucratic exercise. The article has not been made but the design is registered simply on the basis of a submission and payment of a fee to the registry. I simplify to make the point but that is the essence of it. At the same time, and organically, the unregistered design right has grown up over the years and has provided a sensible and appropriate way, particularly in design industries such as fashion, effectively of securing a monopoly power for people to use in a way that will allow them to get a return on the investment of their creativity and money.

Our amendments are trying to help the Government in the sense that if the UDR is retained it would be a half-way point, as I have hinted, to combining it more closely with EU design law. I should be grateful for responses from the Minister on that. In support of my suggestion, I simply provide two more quotations. On the question of whether one should think about combining across Europe a single unregistered design process, the FICPI has stated:

“We believe having different eligibility requirements is complicated and not appropriate when IP is generally handled in a European policy framework ... we would prefer to see more radical harmonisation with EU design law to introduce the tests of novelty and individual character, rather than retaining different tests”.

These are points to which we will return in later amendments. The Chartered Institute of Patent Attorneys agrees that,

“clarifying and limiting the current protection for any ‘aspect’ of the design of a ‘part’ of an article would reduce the tendency to overstate the breadth of UDR”.

The Government have come forward with the proposals that underlie the first part of the Bill. Previously in the consultation, they had suggested that there would be a considerable advantage in reviewing and simplifying the design area. That started with the Hargreaves report, which pointed out the complexity to which I referred. Instead, we have proposals that are much the same as before but with a few minor changes. We are not getting the sort of clarity that would help the industry to support the growth in our design capacity, contribute to our creative economy and improve the economic prospects of this country. The essence of these amendments is: why are the Government not considering modifying the test for infringement at least to be aligned with the community unregistered design right? I beg to move.

[The Deputy Chairman of Committees]

I should advise the Committee that if this amendment is agreed, I cannot call Amendment 2 by reason of pre-emption.