Weights and Measures Act 1985 (Definitions of “Metre” and “Kilogram”) (Amendment) Order 2020

Lord Foulkes of Cumnock Excerpts

Wednesday 20th May 2020 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I am very pleased to follow such a noble and distinguished Welshman. I too thank the Minister for his fascinating introduction, particularly his remarks on the platinum lump near Paris used to define the kilogram. He will therefore not object when I remind him that it was also the French who created the metre in the 1790s. It was described as being one ten-millionth of the distance from the equator to the North Pole along a meridian through, of course, Paris. That is not an easy thing to calculate, but they did it. Notably, though, its introduction came about following the French Revolution, when the new French Republic wanted to throw its weight behind a new system which distanced itself from the ancien régime—interesting in today’s circumstances.

Let us fast forward many years. I am old enough to remember when we changed from inches, feet and yards, ounces, pounds and tonnes to metres and kilograms, way back in the swinging sixties. However, I am a bit surprised that—given the present Prime Minister and Government, and as we are on a path to what they describe as becoming a free country—we are not being asked to revert to those units, along with our new blue passports.

Given—unfortunately in our case—the motivation to put weight behind a new regime that distances itself from the European Union, to the dismay of many, but not to me, we are still bound to meet our obligation under EU law as applied under the withdrawal agreement, as the Minister said. Positively, as a result, we are continuing to ensure that the United Kingdom keeps abreast with the European Union and worldwide developments on this instance of metrology.

The noble Lord, Lord Bourne, mentioned the devolved authorities. What consultation has taken place with them? In the case of Scotland, is a legislative consent Motion required and, if so, what is its current position in consideration? Since this movement is to ensure uniformity across the world, have these changes been discussed with our Crown dependencies and overseas territories to make sure they are also in line? I alerted the Minister to these questions, and I will be interested in his reply.

Finally, I am looking forward to the day when a metre is no longer best known as half the social distance that we are obliged to keep apart, so that we can once again meet in the Palace of Westminster and discuss these matters in a far more convenient and fruitful way.

Climate Change: COP 26 Arrangements

Lord Foulkes of Cumnock Excerpts

Thursday 12th March 2020 Lords Chamber

Asked by

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government what discussions they have had with the Scottish Government about the arrangements for COP26.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

My Lords, the UK Government are committed to working closely with the Scottish Government and with operational delivery partners, including Police Scotland and Glasgow City Council, to ensure the successful delivery of COP 26 in Glasgow. The UK Government are committed to working with the Scottish Government, the Welsh Government and the Northern Ireland Executive to deliver an ambitious, successful summit for the whole of the United Kingdom.

[Lord Foulkes of Cumnock (Lab Co-op)]

I am grateful to the Minister, but does he agree with me that the UK Government need to provide a lead if COP 26 is to be successful? With the Secretary of State being given responsibility for this, rather than a particular person with sole responsibility, how is he going to manage this with his other responsibilities? When I looked to see who is the Minister for climate change, I found that it is not only the noble Lord who is replying to my Question but the noble Lord, Lord Goldsmith. Does that not mean that there are going to be differences and clashes in Government? How are we going to achieve a coherent programme for reducing our carbon emissions right across government and right across the United Kingdom?

[Lord Callanan]

I think it demonstrates the importance with which we see the subject that a number of different Ministers are responsible and are involved in working towards policy to this end. The noble Lord can be reassured that my right honourable friend the Secretary of State is fully committed to making COP a success. We do not underestimate the challenge that this involves; it is going to be a huge gathering, requiring immense amounts of logistical and operational planning. We are committed to doing that. My right honourable friend the Secretary of State is working hard to deliver that, and we are talking to the Scottish Government about it.

Brexit: Protection for Workers

Lord Foulkes of Cumnock Excerpts

Thursday 7th March 2019 Lords Chamber

[Lord Balfe (Con)]

My Lords, I thank the Minister for his Statement. We need to remember that trade unionists do not all vote for the Labour Party. More than 30% of them vote for the Conservative Party. Furthermore, statements by the TUC are capable of selective quotation, so I shall selectively quote from Frances O’Grady’s statement:

“successive UK Governments have been exceptionally resistant to introducing improvements even when they are required to do so by the EU”.

Those of us who have been fortunate enough to serve in the European Parliament will remember the blizzard of letters that we received from such people as the noble Lord, Lord Mandelson, imploring us to oppose the working time directive. I make the point that both parties have form in this matter and that when I asked a leading trade unionist a few ago to name me one significant advance that he had from 13 years of Labour government, he could not name one.

[Lord Foulkes of Cumnock (Lab Co-op)]

Ask the Minister a question!

[Lord Balfe]

I will ask a question. In repeating the Statement, the Minister said:

“Parliament will be given the opportunity at least every six months to consider any changes to EU workers’ rights”,


and so on, and referred to,

“a document which has been subject to consultation with employers and trade unions, and which will be scrutinised by the relevant Select Committees of this House”—

meaning the House of Commons. Can he give us any more enlightenment on whether there will be any opportunity for this House also to scrutinise these documents? We are, after all, a bicameral legislature.

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[Lord Henley]

My Lords, how we deal with the withdrawal agreement Bill is a matter beyond my pay grade. The department that I have the honour to represent in this House has published the clauses that we are talking about today. That gives time for some scrutiny of them in advance of the publication of the full Bill and I hope the noble Lord and others will make use of that.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, we do not need a crystal ball when we have the history books. I spent 26 years as a Member of Parliament in the other place. Every Bill or proposal to improve workers’ rights put forward by the Labour Government, and every argument we made to protect workers against employers, was opposed by the Tories, including the national minimum wage. When there was a Tory Government, the only improvements came because the European Union insisted on them. Why should we accept these warm words from the Government now, when we know the record of all these past years?

[Lord Henley]

I have to say that that is complete and utter nonsense and I totally reject—

[Lord Foulkes of Cumnock]

I was there, but the Minister was not.

[Lord Henley]

I have been in this House long enough to see what goes on. I think I have been in this House slightly longer than the noble Lord was in another place. Conservative Governments have brought forward a great many improvements. My right honourable friend listed those in his Statement earlier, starting with the Disability Discrimination Act 1995, brought in under John Major’s Government by my noble friend Lord Hague. Look at the national living wage. Conservative Governments have done a great deal. My right honourable friend went back as far as the Shaftesbury Acts two centuries ago. We have made improvements and will continue to do so, but we will make sure we get the right balance.

Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018

Lord Foulkes of Cumnock Excerpts

Wednesday 6th February 2019 Lords Chamber

[Lord Warner (CB)]

I want to follow up that point. I remind the Minister that after our rigorous series of exchanges in Grand Committee on these regulations, I took the liberty of submitting a Written Question, which was answered extremely helpfully on behalf of the Cabinet Office by the noble Lord, Lord Young of Cookham. I wanted to check that my memory was correct about the Cabinet Office rules on consultation. Not only do they require 12 weeks—during which people can comment in what is often a helpful way for the Government of the day—but the twin leg to this is that the Government have to publish those responses to their consultation. Not only have the Government, as the noble Lord, Lord Adonis, said, cut out the middleman in their approach to consultation, but by doing it that way they have avoided the commitment to publish the responses to that consultation. So there is a twin problem with the Government’s approach to many of these SIs. I suspect it is going to continue in relation to the Healthcare (International Arrangements) Bill, which contains Henry VIII powers for the Government to produce a lot of SIs. If the Government go on behaving on these SIs in the way that they have behaved on those we are discussing today, they will drive a coach and horses through their own Cabinet Office rules on the way we go in for consultation on legislation.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, I have waited in vain for some Conservative Members to contribute to this debate. When I moved here from the other place, a number of people, including the noble Lord, Lord Strathclyde, who I am glad to see here, told me that the great thing about the House of Lords is its careful scrutiny, the work that it does scrutinising detailed legislation using all its expertise, knowledge and background. That is why I am surprised. We are dealing with a statutory instrument on intellectual property, which a lot of Conservative Members, in particular, must have expertise in. I see the noble Lord, Lord Faulks, who has probably been involved with this in his work in the legal profession. There are others who no doubt could contribute. We have 12 statutory instruments here. I have been at a number of meetings of the Grand Committee, and with the notable, standout exception of the noble Lord, Lord Deben, there have not been any Conservative Members contributing. What has happened to this great scrutiny of the House of Lords? We have had wonderful and important contributions from some of my noble friends, including my noble friends Lady Kingsmill, with her experience in the law, and Lord Winston, when we were discussing the transfer of embryos and other matters. We have heard from the noble Lord, Lord Warner, from the Cross Benches, but no Conservatives. Yet today we have 12 statutory instruments—

[A noble Lord]

We have 11.

[Lord Foulkes of Cumnock]

We have 11. The noble Lord has made my argument much better, actually. On the Order Paper there are 180 statutory instruments waiting to be discussed by the Grand Committee and by this House, on planning procedures, plant protection, ozone depletion, plant health, equine records—I could go on. I will not, your Lordships will be glad to hear. But I could go on and on, because there are 180 of them—and some are on really important matters.

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[Lord Strathclyde (Con)]

My Lords, I crave the indulgence of the House for a moment. I was not here at the start of the debate but since the noble Lord, Lord Foulkes, has mentioned me twice, it is only fair that I should defend myself. His proposition is stuff and nonsense. Of course the House of Lords offers great scrutiny of all kinds of legislation, including secondary legislation of this kind. But the noble Lord ought to assume that the fact that noble Lords do not speak is because they are entirely satisfied with the opening speech of my noble friend Lord Henley, the Minister, who has used his skill, judgment and expertise, built up over many years, and gives great comfort to the House when he stands at the Dispatch Box.

[Lord Foulkes of Cumnock]

I am most grateful to the noble Lord. The lesson in fly fishing that he taught me has worked.

[Lord Maxton (Lab)]

My Lords, I rise briefly just to make a point to the noble Lord, Lord Strathclyde. On intellectual property, the Minister did not say one single word about the changing technologies that greatly affect the way in which intellectual property is seen. I have not read, or even picked up, a book for the last two years—because I read on a Kindle. What about that sort of change?

Insolvency (Amendment) (EU Exit) Regulations 2018

Lord Foulkes of Cumnock Excerpts

Tuesday 15th January 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)]

My Lords, while we believe that a deal with the EU is in our mutual interest, it would not be appropriate to assume the outcome. It is therefore important that we also plan and provide, as the instrument before us does, for a no-deal outcome.

It may be helpful if I speak briefly about the current EU framework for cross-border insolvencies. The existing EU insolvency regulation ensures that member states automatically recognise an insolvency order made in an EU country, assisting the insolvency practitioner in recovering assets and returning money to creditors, avoiding unnecessary court proceedings, time and costs, and helping return more money to creditors, or rescuing a business, or saving employees’ jobs. The EU legislation contains safeguards to ensure that individual member states’ own laws are respected, and cannot be overridden by an insolvency order made in another state. I give way to the noble Lord.

[Lord Foulkes of Cumnock (Lab Co-op)]

I want to ask about a point of procedure as I am surprised that the Minister is moving this, given that the 42nd report of the Joint Committee on Statutory Instruments says, at paragraph 1.12:

“The Committee accordingly reports regulation 5(1) for defective drafting”.


Further on, it says:

“The Committee accordingly reports regulation 5(2) on the grounds that it appears to make an unexpected use of the enabling power”.


Given that very strong criticism from the committee, is it really the Government’s intention to move ahead with this?

[Lord Henley]

My Lords, it is my intention so to do, and I was coming to address the points made by the JCSI. This is a perfectly regular procedure. The noble Lord is very experienced in dealing with statutory instruments and with reports from the JCSI. It often happens that a report will come with criticism from the JCSI. The department then issues its response, and that should deal with the matter. I was going to come to this in my opening remarks and it is right that I should do so. The noble Lord will be able to listen to my explanation and, I hope, will accept that I, and the Government, have dealt satisfactorily with the concerns that the JCSI put to us. We greatly respect the JCSI. It does a very good job and we are very grateful for that. Back in the long-distant past, the noble Lord—like most of us—probably served on the JCSI and, if he had that honour, I am sure that he did a very good job in so doing.

This instrument recognises that, as we leave the EU, our European Union (Withdrawal) Act will automatically retain a version of EU regulation in UK law. However, the safeguards that the regulation provides can no longer be relied upon as the remaining member states will no longer be bound by them in respect of the UK. Many in the professional insolvency sector have argued that reciprocity is an essential part of continuing with this legislation. In the absence of a deal, it is vital that we do not indefinitely continue to apply EU rules that could override our own law and prevent us from dealing effectively with insolvencies in the UK.

The instrument therefore repeals the majority of the EU insolvency regulation, retaining only the small part necessary to keep the right to open proceedings in the UK. It provides for an orderly wind-down of the arrangements by continuing to apply the current EU rules to existing cases where main insolvency proceedings are already open on exit day. But, as a safeguard, the courts may disapply the EU rules where they will lead to a different outcome from that which would have been the case before we left.

I come now to the JCSI report, which the noble Lord, Lord Foulkes, has kindly brought to the attention of the House. I assure the noble Lord that I had every intention of raising this subject. The report refers to a lack of clarity—the noble Lord no doubt has it before him—and an unexpected use of the withdrawal Act power. I am confident that the provisions are an appropriate use of the power in the withdrawal Act. The provisions will give the court the necessary discretion to respond to unexpected outcomes from the interaction between our law and that of EU member states. There are precedents in existing insolvency legislation providing the court with the broad discretion to make orders in insolvency proceedings.

If, following EU exit, UK creditors or others with an interest in the insolvency are being treated unfavourably, it is only right that the court is allowed to apply the powers in our own cross-border insolvency regulations—which are used for non-EU insolvency proceedings—or make some other appropriate order to resolve the situation. The detailed examples that we provided to the JCSI demonstrated just some of the situations in which this might arise, and these examples were included within the JCSI’s report.

The instrument also amends certain employment legislation which ensures that protection for employees is retained following the insolvency of their employer. This ensures that the current financial support given to UK-based employees when their employer in the EU becomes insolvent will continue after exit day. In the absence of a Northern Ireland Executive, the instrument updates and makes similar changes to the law on insolvency and employment rights in Northern Ireland, on behalf of the Northern Ireland Government. I commend the regulations to the House.

--- Later in debate ---

[Lord Foulkes of Cumnock]

My Lords, I indicated earlier that I was surprised that the Minister was pressing ahead with this, given the critical report from the Joint Committee on Statutory Instruments. I do not think that the Government have dealt with it fully—and we have just heard an explanation of the concerns. As I said yesterday and last week in Grand Committee, I am surprised that the Government are pressing ahead with these instruments in the event of no deal, with all the time and expense of the excellent civil servants—not to mention Ministers—involved. Given what has just happened down the Corridor, where the Government have been defeated by a majority of 230, the largest government defeat in history, I cannot believe the noble Lord, Lord Henley, has the enthusiasm, let alone the responsibility and legitimacy, to press ahead with this. I urge him to do himself and the House a favour and withdraw this statutory instrument.

[Lord Henley]

I will not comment on my legitimacy in front of the noble Lord, but I can assure him that I still have enthusiasm. I await guidance on what is going on in another place. Meanwhile, it is probably right and proper that we deal with this. Irrespective of that result, there is still the possibility that we might leave the EU without a deal. The noble Lord will be aware of all the legislation that has gone through with support from all parties, setting out what we will do and that if there is no deal we will leave on 29 March. That remains the situation at this stage. So it would be useful to continue with these regulations, which are designed purely to deal with a no-deal situation.

I will deal with some of the points made, starting with those from the noble Lord, Lord Fox, who referred again to asymmetry—I was worried that he was stealing it from the noble Lord, Lord Stevenson. I will make it clear that we are making changes here, because we can, but obviously we cannot control how other member states deal with their legislation. We think it is right to do so and so give certainty to the UK in the event of no deal. That is what we will do and we will continue to negotiate to deal with other matters.

Turning to the noble Lord, Lord Stevenson, I am glad he reminded us that this regulation has generally been welcomed by industry; I think that is the case and it is very important. He also asked what assessment we had made of the total cost to business for all the no-deal SIs—I think that was the noble Lord, Lord Stevenson. On 28 November we published a robust, objective assessment of potential impacts on sectors, nations and regions of the UK, and it shows that our deal—which obviously had not been rejected by another place—would be the best available for jobs and economies. We will continue to publish individual impact assessments to accompany legislation, as we have done on many occasions, including SIs where appropriate.

I turn finally to the questions relating to the JCSI asked by my noble friend Lord Lexden. Again, I am grateful for his words. I repeat the praise for the JCSI, which I first served on some 35 years ago. We are fully aware of its concerns. As my noble friend may have seen, the department issued the very detailed memorandum to the committee that is attached to the report, setting out the reasons why the transitional provisions are important to protect the United Kingdom’s position on exit day in a no-deal scenario. I do not intend to go through all the points that were raised in that memorandum, other than to say that the safeguard provided is necessary to enable the court to act where there is an adverse impact of exit on insolvency cases that are already open on exit day. That power provided to the courts to deal with cases that are ongoing on exit day is both necessary and proportionate, and is similar to provisions found in other UK insolvency law. It would not be possible to limit its scope without potentially tying the hands of the courts in dealing with these matters.

I believe that I have dealt with the points that were raised, and I beg to move.

Patents (Amendment) (EU Exit) Regulations 2018

Lord Foulkes of Cumnock Excerpts

Monday 14th January 2019 Grand Committee

[Lord Henley]

My Lords, I am not sure if it is helpful to continue this discussion. That point is for another regulation, not the ones we are discussing at the moment. We will, no doubt, get to that one—and to that point—in due course. I am not making any accusation that the noble Lord has misled the Committee and I do not think I have misled it. I have made it clear who was consulted and I was hoping I could deal with that in my closing remarks as that might have been a neater and tidier way of dealing with these matters. I will leave it there.

[Lord Foulkes of Cumnock (Lab Co-op)]

I wonder if the Minister could help me out. I have been listening to the speeches since I came back from the Liaison Committee. In the light of what we have just heard, is the Minister still pressing ahead with this statutory instrument? Would it not be better for him to withdraw it and clear up some of these points before we consider it again?

[Lord Henley]

My Lords, I will continue with these regulations: I have moved them. No doubt the noble Lord will say, as he and other noble Lords have done with other regulations, that he is not happy for them to be considered by this Committee and they can then be considered in another place. However, we are having a useful discussion at this stage, which I want to be part of, and we should complete what we are doing and deal with as much as is relevant to these regulations as we can. I will continue to do that and I will listen to the noble Lord, Lord Adonis, conclude his speech. The noble Lords, Lord Clement-Jones and Lord Stevenson, and other noble Lords will no doubt wish to intervene. I will then respond to that, as is right, proper and normal. It is up to noble Lords to decide where they wish to take things after that. However, we wish to get this through, to provide continued certainty for this body and to assist the whole life sciences industry, the importance of which the noble Lord, Lord Warner, has just reminded the Committee.

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[Lord Adonis]

The noble Lord makes a very good point. The Minister himself played no part in this process. All he can do is read out messages passed to him by officials. I do not hold him responsible in any way. Nobody was suggesting for a moment that he was personally responsible for engaging in this consultation and has therefore given misleading information to the Grand Committee. The point is that the House needs to know the truth.

I will make one remark on what the noble Lord, Lord Deben, said. He said it is hard to be precise about what happened if conversations took place during informal, as opposed to formal, consultation. However, there is a difference between informal consultation and no consultation whatsoever. The point made by my noble friend Lord Warner is that it appears not that there was informal as opposed to formal consultation, but none whatsoever. No conversations took place between the relevant trade bodies and companies, and the authorities responsible for drawing up these regulations. That is what he said, and it is of huge moment to the House. Using the word “informal” does not excuse these consultations being non-existent, which is the issue before the Grand Committee.

I return to the third thread of concern we have about the whole way in which these statutory instruments are being conducted. First, they depend on us believing the impossible proposition that no deal is not itself going to make a fundamental difference. The second issue we are constantly wrestling with is the inadequate or non-existent consultation. The third is the inability of Ministers to answer the points raised in the debate. That has been a running theme in these discussions. What happens—I dare say this will happen again when the noble Lord, Lord Henley, responds to this debate—is that the Minister restates the case for the statutory instrument that he made at the beginning. He selectively answers one or two points—to give him his due, he has just given a list of organisations that he said were informally consulted; it may or may not be accurate, but we need to establish that—but most of the points raised in the debate are not answered at all by the Minister. To be fair to him, the Minister himself played no part in this consultation and is simply having to read notes given to him by officials, who may themselves have been at some distance from the consultations that took place.

We are then expected to approve these regulations. Because of the inadequate arrangements for the scrutiny of statutory instruments—a point made very eloquently by the noble Lord, Lord Tyler, in earlier debates—we then have no further recourse. We cannot do what happens with primary legislation in this House, which is that we have a Committee stage, we can move amendments and probe the Government further, and the Government are under an obligation to come back to the House with further information. None of that happens. The only recourse we have is to seek to repeat this debate by referring the statutory instrument to the House and hoping—we then have no ability to amend it or to move amendments—that when the Minister comes to make the next speech in the House, he will respond to the points raised in the Grand Committee.

That leads me to an important point about how we handle these statutory instruments when they go to the House. On each of these statutory instruments that we have been debating and doing our best as Members of the Grand Committee to scrutinise, a lot of concerns have been raised but not met by the Government. I see that my noble friend Lord Foulkes is a member of the Liaison Committee and the Procedure Committee. He is a real power in the land in this House. Most of us are never admitted to the inner sanctum of these bodies, but he is. It is extremely important that Ministers write to Members of the House setting out their response to all the issues raised in the Grand Committee before the House comes to debate these regulations, so that we can then properly consider the adequacy of the Government’s further response. Let us consider the vital issue of consultation, which has been raised by my noble friend Lord Warner and on which I do not think the Minister is going to be in much of a position to comment, because he is dependent on notes passed to him by officials who are one stage removed from the consultation anyway. The House would expect a full statement to Members on what happened in the consultation—who was consulted, on what basis, what they said and what the Government’s response was—before this statutory instrument is debated in the House.

We need some mechanism—perhaps it is the Liaison Committee. Perhaps my noble friend Lord Foulkes, who takes on many public responsibilities, should take it upon himself to see that this process is conducted in a timely and adequate fashion before the House debates statutory instruments. I do not know whether my noble friend would be willing to take on that responsibility, but I am volunteering him. Otherwise, he may have a suggestion that we as a Grand Committee can then make for who should undertake this responsibility.

[Lord Foulkes of Cumnock]

I shall pretend to be a Minister and say that I shall look at that very carefully.

[Lord Adonis]

In the want of a better solution, I shall recommend to the Government that my noble friend Lord Foulkes should take this on, because on the basis of the debate that we have had so far, we will not have confidence that this procedure will be conducted unless there is an impartial referee to see that it has taken place.

I turn to a new issue of substance in the regulations. Many Members of the Grand Committee will have been briefed, as has my noble friend Lord Warner, by those directly concerned by the issues raised in the regulations and whether, as the noble Lord, Lord Henley, said, they do indeed make minimal changes to the existing regime, allowing for the fact that we are in a no-deal situation. I draw the Grand Committee’s attention to and ask the Minister to respond to arguments being put before Members by Bristows, a law firm which specialises in patent law. It has raised a serious concern about the regulations, specifically the adjudication mechanism. I set that concern before the Grand Committee and hope that the Minister will respond.

Bristows states that the amendments have potential ambiguity in the following respects. They provide that a declaration of invalidity of a supplementary protection certificate may be submitted to the “comptroller or the court”, in the words of the regulation, with the court being the Unified Patent Court if the basic patent is subject to the Unified Patent Court’s jurisdiction under Schedule 4 to the Patents Act 1977. However, under Schedule 4, the UPC has exclusive jurisdiction for invalidity actions of a supplementary protection certificate based either on a unitary patent or a European patent. Therefore, Bristows argues, the court referred to in the context of the “comptroller or the court” in the draft statutory instrument, when interpreted in the light of the Patents Act 1977, will, for those supplementary protection certificates, be the Unified Patent Court.

Further, as stated in Schedule 4 to the 1977 Act, the Unified Patent Court should have exclusive jurisdiction in such cases. “However”, Bristows asks,

“what is the impact of the reference to ‘the comptroller’ in the expression ‘the comptroller of the court’? Does this leave this national UK authority … with jurisdiction as well as the UPC? The natural meaning of the Statutory Instrument … suggests that there remains additional jurisdiction in the hands of the Comptroller as well as the Court … even if this was not intended. In consequence, it may remain possible for SPCs based on unitary patents to be invalidated in the UK”.

This looks to be a serious concern. I freely confess to the Grand Committee that, not being a patent lawyer myself— my noble friend Lady Kingsmill is, so she may be able to add to this—I do not entirely understand the impact of this concern, but Bristows believes it may be serious. The Grand Committee would be very grateful for an answer to Bristows’ concerns when the Minister replies. If he cannot give one in detail today, perhaps he can include it in his written response to Members of the Grand Committee after the debate.

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[Lord Henley]

My Lords, I confess that I cannot begin to answer the noble Lord’s question about the Isle of Man, and promise to write on that and the other issues I did not manage to cover. I note what he says about the advice that my department—the Department for Business, Energy and Industrial Strategy—should take from Her Majesty’s Treasury. As with all departments, we always listen carefully to what our colleagues in the Treasury say, and this time will be no exception.

I was not intending to intervene in the middle of the debate, but I did, and so to get back to this question of consultation and how we set about this with these regulations—which I repeat, are only to deal with the no-deal possibility I think the noble Lord, Lord Adonis, would be the first to agree that we would be irresponsible in not having done something should that eventuality arise. I give way to the noble Lord.

[Lord Foulkes of Cumnock]

The Minister has been very kind and polite, and I am most grateful to him. Talking about the impossibility of dealing with things, I—like the noble Lord, Lord Deben—have some sympathy with him, and even more with his civil servants behind him. In today’s Order Paper, there are 38 affirmative instruments waiting for consideration by the Joint Committee on Statutory Instruments, 65 affirmative instruments waiting for affirmative resolution and 18 proposed negative statutory instruments made under the European Union (Notification of Withdrawal) Act 2017. Is it not irresponsible to be pressing ahead with this, with no proper scrutiny on things such as conservation, animal health, veterinary surgery, pesticides, employment rights, construction products, insurance distribution, maritime transport, motor vehicles, plant health, air quality? I could go on and on. We are rushing them all through. Is that not irresponsible? Is that not a waste of the Minister’s time and the time of the well-qualified people behind him, in anticipation of something none of us really want to happen? Would it not be better if the Minister came to his senses now, withdrew this order and, along with all his other colleagues, said, “We are not going to take any more of these orders through the Grand Committee and the House of Lords because it is a total waste of time and totally irresponsible”?

[Lord Henley]

My Lords, I am always kind and polite to the noble Lord. I know he is a delicate flower and does not want me to be too hard on him.

I appreciate there are a lot of no-deal regulations and that we are asking a lot of the Joint Committee on Statutory Instruments. The noble Lord has served on that wonderful committee, as have we all, and it does a very good job, as do the other committees that have this duty. We are satisfied that they have enough time and resources. I think the House feels that it too has enough time. This can be discussed by the usual channels. We are having a very useful debate this evening and I am looking forward to continuing that process. It is difficult, but equally it would be much more irresponsible not to be moving regulations or producing them for the eventuality that there was a no deal, because the noble Lord will be aware that as a result of Article 50 and various other Acts of Parliament that have been through both Houses, if we do not reach an agreement by 29 March, we leave the EU without a deal. This order, the previous order and other orders are designed to provide that certainty businesses need, and we will continue to move the appropriate orders.

Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018

Lord Foulkes of Cumnock Excerpts

Monday 14th January 2019 Grand Committee

[Lord Henley]

My Lords, I am not aware that these regulations have yet been through the Commons, but they will in the usual way in due course. It has been agreed, and it has been advertised on the Order Paper, that we would take these three regulations—

[Lord Foulkes of Cumnock (Lab Co-op)]

With respect, that is only if everyone agrees—and I for one do not agree.

[Lord Henley]

I notice that the noble Lord does not agree, but in line with the usual courtesies of the House, it would have been helpful if he had at least mentioned this to his noble friend the Opposition Chief Whip or even to my noble friend the Government Chief Whip.

--- Later in debate ---

[Lord Henley]

My Lords, obviously I am in the hands of the Committee and I am quite happy to do whatever the Committee finds most convenient. I did not say that I would move all three en bloc; I said that I would move the first one and then speak to all three. That is very different, if the noble Lord follows me. The only point I was making is that there is an understanding that certain things are agreed by the usual channels and that these instruments would be spoken to together. One of the usual courtesies of the Committee, but obviously the noble Lord does not wish to follow that, is that one would have a word with the usual channels, or at least the noble Lord’s noble friend.

[Lord Foulkes of Cumnock]

My Lords—

[Lord Henley]

Sit down. The noble Lord can wait a minute.

[Lord Foulkes of Cumnock]

My Lords—

[Lord Henley]

I am not giving way—

[Lord Foulkes of Cumnock]

That is a terrible way to address another Member of the House. Will the noble Lord withdraw that remark immediately? This is absolutely disgraceful. I have never been treated like that before by anyone.

[Lord Henley]

I will apologise to the noble Lord for that. He has probably been treated in much the same way on many occasions. I am just explaining to him what the usual procedures are. If he does not want me to do that, I will take it back and go back to the beginning—if he will give me a couple of minutes—move the first regulation, speak to that, listen to noble Lords and then do the others.

--- Later in debate ---

[Lord Adonis]

We are doing our job.

[Lord Foulkes of Cumnock]

I have never been addressed in that way before by a colleague, in 26 years in the House of Commons and now 13 in the House of Lords: by someone saying, “Sit down!” in a peremptory fashion. Perhaps if the noble Lord had said, “I am not prepared to give way at this moment”, we would have understood. I was rising to say that if this Minister had any degree of sensitivity at all, and if he had been watching what had been going on on the Floor of the House and in this Committee, he would have seen that we have on a number of occasions challenged these matters being taken together. I have done it myself on three or four occasions on the Floor of the House, and I have done it twice in this Committee. A number of other Members, including my noble friend Lord Adonis, have also raised the issue. If the Minister had been aware, he would have understood that. I have also mentioned it to our Chief Whip and to the noble Lord, Lord Taylor, the Government Chief Whip. If that has not been communicated to the noble Lord, Lord Henley, it is certainly not our fault.

[Lord Henley]

My Lords, no communications have come to me to the effect that the noble Lord wished to take these three regulations separately. My understanding was that we would take them together, and I thought that it would be convenient to the Committee. I have now amended what I am going to say and, if the noble Lord is happy with this, I will go back to what I said originally and move and speak to the first one, and if the noble Lord and his noble friend, the noble Lord, Lord Stevenson, will bear with me, we will take all three separately. I have a number of speeches, and I can use whichever the noble Lord prefers to have first. However, he would probably prefer to have the first one, concerning the Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations, which were laid before the House on 27 November.

This draft instrument ensures that the United Kingdom’s domestic rules for the exhaustion of intellectual property rights will continue to function in a predictable manner in a scenario where there is no negotiated agreement on the terms of the UK’s exit from the EU. The UK is recognised for its strong intellectual property regime—

Textile Products (Amendment) (EU Exit) Regulations 2018

Lord Foulkes of Cumnock Excerpts

Wednesday 21st November 2018 Grand Committee

The regulations are a sensible and necessary use of the powers of the EU withdrawal Act that will ensure that our consumer law continues to function effectively on exit day. I commend the regulations to the Committee.

[Lord Foulkes of Cumnock (Lab)]

My Lords, I am grateful to the Minister for his introduction and for explaining the regulations so well. In light of the fact that the Secondary Legislation Scrutiny Committee has not drawn attention to any matter relating to these regulations for the House to give them special attention, I agree that it is appropriate to consider them in Grand Committee.

[Baroness Byford (Con)]

My Lords, I support my noble friend in his introduction of this important legislation. As someone whose family was in the textile business for many years, I know that the definition of what makes up the product is hugely important. Labelling is key for people when they want to buy, particularly those with allergies. With modern technology, such a cross-section of mixtures is used in clothing, and so I welcome the statutory instrument. In the old days, there was botany wool, lamb’s wool, Angora and cashmere and that was it. Today, a multiplicity of ingredients is used in textile production.

I thank the Minister for introducing the instrument. I understand that it does not create extra responsibilities or burdens for the industry, but will allow us to move forward. In future, labelling will be in English, which is an additional bonus to those of us who used to export 50% of what we produced. I have great pleasure in supporting this statutory instrument.

Productivity: Work-related Stress

Lord Foulkes of Cumnock Excerpts

Thursday 15th November 2018 Lords Chamber

[Lord Foulkes of Cumnock (Lab)]

My Lords, it is very good that we have such an experienced Minister replying to this Question. Can I urge him to consider introducing counselling sessions for those experiencing work-related depression and anxiety at the moment—namely, members of the Cabinet?

[Lord Henley]

My Lords, I do not think any counselling is necessary.

Brexit: Creative Sector

Lord Foulkes of Cumnock Excerpts

Wednesday 20th June 2018 Lords Chamber

[Lord Henley]

My Lords, I am not going to rehearse all the arguments that we might debate later or on other occasions about the single market or whatever. I have to make it clear to the noble Earl that the negotiations continue. As I said, we have a pretty good intellectual property regime, but there are areas where we need to get things right. We will pursue that in the negotiations.

[Lord Foulkes of Cumnock (Lab)]

My Lords, is the Minister aware that, notwithstanding his replies and the squalid stitch-up taking place down the Corridor, we are on our way to disaster if we continue down the road to Brexit?

[Lord Henley]

My Lords, I am not going to waste my time answering the noble Lord’s question.