Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL]

Lord Hope of Craighead Excerpts

Report stage
Tuesday 16th January 2024 Lords Chamber

[Lord Lansley (Con)]

I hope that I will be equally quick on this amendment, as there are points of more substance and principle to be debated later.

We discussed Amendment 3 in Committee. Essentially, it relates to a set of circumstances in which trademarks and GIs—geographical indications—may come into conflict and the circumstances in which the Secretary of State can make a decision that there would be confusion between the two. The point is that the GIs should be compared to existing trademarks and registered trademarks; to circumstances where, on the date which the GI is submitted, there are applications for the registration of trademarks; and, as the legislation refers to, where trademarks are “established by use”.

My problem is that nowhere in trademark legislation do the words “established by use” appear. My noble friend’s letter to me of 10 January said that “established by use” refers to unregistered trademarks. We appear to be putting into statute the concept that where a trademark has been used, it can be established but not registered, and I am not sure that that is helpful. What is more helpful would be to indicate that the Secretary of State should have a discretion to look at a GI that may come into conflict with an unregistered trademark—there are such things—and where confusion would result. My noble friend says that they may just use a trademark once, and the fact that it had been used once at some point in the past may lead to this confusion. As the legislation is drafted, the Secretary of State would actually have the discretion to judge these matters and to say whether confusion would arise. If a trademark has not been used prior to that date in any substantial way, I think the Secretary of State could ignore it and say that the GI has a meaning that people will readily understand.

I have a problem with the term “established by use” and think that “in use prior to that date” is more straight- forward and has the meaning we are looking for; “established by use” runs a risk of establishing that, in law, trademarks can be established by use. That is not something that the trademarks legislation currently admits of. I am not an expert in intellectual property matters, but I have talked to one or two who are, as we do in this place. I think there may be a problem with this, but I stand to be corrected by my noble friend. For the moment, I beg to move Amendment 3.

[Lord Hope of Craighead (CB)]

My Lords, I cannot claim any expertise in trademarks or their registration, but I think there is force in the point made by the noble Lord, Lord Lansley. The expression “established by use” is slightly vague, whereas the words that the noble Lord would substitute—of it being actively “in use prior to that date”—make the point rather better. I support the amendment, for what it is worth, in the interests of clarity.

[Lord McNicol of West Kilbride (Lab)]

My Lords, the noble Lord, Lord Lansley, is right: the Trade Marks Act 1994 at no point uses the words “established by use”. However, the Act makes specific provision for registered trademarks, whereas those established by use—as the noble Lord said—would presumably be unregistered and, therefore, subject to common law through the concept of passing off. It would be interesting to hear the Minister’s comments on passing off and whether that covers it.

I want to pick up the main point of this amendment and, specifically, geographical indications. I think this may be the only time on Report that we will be able to get some words into Hansard on that. The noble Lord, Lord Lansley, picked up the technical part, but there is a wider set of issues on geographical indications on which I am interested to hear the Minister’s response.

When this agreement was announced in October 2020, the then Trade Secretary Liz Truss MP promised that 77 specialist UK food and drink products would be guaranteed protected geographical indication status, along with the seven that were carried over from the previous EU-Japan trade deal. The former DIT Minister said that the protections would be in place by May 2021 for all 77 new products, which included many iconic British brands, such as Scottish beef, Cornish pasties and Welsh lamb—to name but a few. The DIT also boasted that, thanks to Liz Truss’s agreement, the UK would benefit from fast-track processes for securing brand protection that would not have been possible under the EU-Japan deal. It said:

“The EU must negotiate each new GI individually on a case-by-case basis”.


The EU has added 84 extra products to its protected list since October 2020, including a number in the last few months, but I understand that Kemi Badenoch’s department has not yet secured brand protection for a single one of the 77 products originally promised. The number of EU GIs with Japan now stands at 299, which offers them protection, while the UK is still stuck with only the seven protected products inherited from the EU-Japan deal. Given this, how can UK producers of geographically indicated products be confident in the measures contained within the CPTPP?

Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023

Lord Hope of Craighead Excerpts

Tuesday 17th October 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Scotland Office (Lord Offord of Garvel) (Con)]

As Minister for the Department for Business and Trade, I am glad to be leading this debate. As my noble friend Lord Callanan promised several times, we are committed to ensuring that the appropriate level of parliamentary scrutiny is applied to all SIs utilising the powers in the retained EU law Act. I am pleased to commence today’s debate just as we commence our ambitious REUL reform programme.

I thank the SLSC for its report on this instrument. We have acknowledged the committee’s recommendations and have now revised the Explanatory Memorandum, adding a link to the line-by-line explainer into the document.

This instrument will revoke a further 93 pieces of retained EU law found to be obsolete or inoperable. This continues the work already begun by the retained EU law Act in tidying up and bringing further clarity to the statute book. Indeed, one of the key purposes of the retained EU law Act was to bring legislative clarity. Redundant retained EU law remaining on the statute book only causes unnecessary complication and confusion.

It is the duty of all responsible Governments to make our law as clear and accessible as possible, and therefore we must continue to identify REUL that is redundant or inoperable and ensure its removal from the statute book. This instrument is another step forward in that work.

These regulations will also preserve seven pieces of retained EU law that are on the REUL Act’s schedule for revocation at the end of 2023. Further analysis of the legislation listed in Schedule 1 to the REUL Act by UK government departments has established that these seven pieces of REUL must be preserved to maintain the current policy position for one of a number of reasons.

There are, for instance, plans to reform legislation in the area of merchant shipping, but until that reform process has been completed, there is a need for legislative continuity, for which reason one piece of REUL is being preserved. Three pieces of legislation have been identified by the Northern Ireland Civil Service as requiring preservation because their revocation would represent a policy change that cannot be agreed in the regrettable ongoing absence of an Executive. These three instruments are preserved for Northern Ireland only, while the four instruments identified by UK government departments will be preserved to the extent that they apply across the United Kingdom.

This SI represents a further step in the Government’s programme of retained EU law reform. We have already set out a range of ambitious reform plans, including on working time reporting requirements and streamlining the rulebook for wine. We will continue to use the powers in the retained EU law Act between now and June 2026 to reform and replace unnecessary regulations, providing regular updates to Parliament on our progress. The reform agenda is a crucial part of this Government’s agenda. We are committed to ensuring that REUL is reformed to be fit for the UK, reducing unnecessary burdens on businesses and helping them grow, while also reducing costs for businesses and consumers. I assure the House that this SI is just the beginning. I commend the regulations to the House.

[Lord Hope of Craighead (CB)]

My Lords, the Minister has said that the work is just beginning, and I understand that there is an enormous amount of work still to do. Can he give us any impression of the amount of work that has been done by the devolved Administrations, who have obligations to perform under this statute as well as the UK Government?

Contemplating Part 1, I wonder whether there is anything else that needs to be attended to, bearing in mind that the power being exercised in Part 1 expires at the end of this month. Time is short and the pieces of legislation listed are the product of oversight. It is nice to see that being corrected, but is there a risk that something else may be discovered, and is there time to unravel the situation enough to cure the problems that might emerge?

Otherwise, I think the work done is to be commended. It is good to see that the Act is being put into operation in the way the Minister has described.

[Lord Hacking (Lab)]

My Lords, are your Lordships not being given a quite impossible task today? I have made a rough count, and in Part 2 of Schedule 2 there are 56 Council decisions or regulations that are sought to be revoked. The Minister describes it in general terms, saying they are to be revoked because they are redundant, obsolete or inoperable, but we do not know the reasons behind these revocations; we have not had the opportunity properly to examine whether we agree that they should take place.

I will ask the Minister one simple question, referring to Part 1 of Schedule 2. The first measure to be revoked in its entirety is the Alcoholic Liquor (Amendment of Units of Measurement) Order 1992. The restriction on the use of alcohol seems to be something of importance. Will the Minister kindly tell us precisely why that particular legislation is sought to be revoked?

Economic Crime and Corporate Transparency Bill

Lord Hope of Craighead Excerpts

Consideration of Commons amendments
Monday 11th September 2023 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I have some very real concerns about the impacts of the new failure to prevent offence on small and medium-sized entities. If my noble and learned friend Lord Garnier’s Motion E1 is agreed to, I think it could be very significant. I believe that the other place was wise to restrict the offence to larger companies only. Setting the threshold at the micro-entity level would still leave very many small and medium-sized entities within the scope of the offence.

I did try to find out how many companies would be affected. My noble friend the Minister said 450,000 companies would be brought within the net of the offence. According to Companies House statistics, around 3.1 million active companies filed accounts last year. Of those, 1.6 million were for micro-entities, and would therefore be excluded, but 1.4 million were for small companies that took advantage of the audit exemption. That, very broadly, is the group of companies that would benefit from the changes made by the other place; it is obviously rather more than 450,000. Whatever the number, there will certainly be regulatory costs for those companies, whether 450,000 or 1.4 million. My noble friend the Minister has given his estimate of what those costs will be. I have never placed much faith in estimates made by Governments of the direct costs of regulatory burdens that Governments try to impose. I generally put a multiplier against them to arrive at a more realistic figure.

However, I believe the most important cost is the opportunity cost that is imposed by regulation. Every time a new regulation is imposed, the people who run small businesses have to spend time away from thinking about their core activities, which should be wealth-generating. Every moment spent thinking about whether they have reasonable prevention procedures in place, or implementing those procedures, is a moment spent not thinking about how to grow the business or how to make it more profitable. Large companies have specialists to cope with all this. Small businesses often have no one beyond the proprietor of the business itself, but they are the very people who are supposed to be spending their time growing their businesses, thereby helping the UK economy to grow—and my goodness me, do not we need growth in our economy?

The cumulative effect of incremental regulation on individual businesses is huge, as any small businessman will tell you, but the cumulative opportunity cost for those businesses of missing out on that growth, and the impact that will have on UK plc, simply cannot be ignored when we are looking at any form of legislation that imposes burdens on businesses. I urge noble Lords to accept the pragmatic solution that the other place has put forward.

[Lord Hope of Craighead (CB)]

My Lords, I am greatly assisted by the correction made by the noble Lord, Lord Faulks; I had great difficulty in understanding the amendment on first reading. Now that he has corrected it, I would like to say from the point of view of a Scots lawyer that there is nothing startling in the proposition that is made. We in Scotland are quite used to the normal routine that law enforcement agencies are not liable in costs for the proceedings that have been taken, probably for the reasons that the noble Lord has clearly expressed.

[Lord Fox (LD)]

My Lords, we have benefited from two extremely detailed and learned speeches proposing Motions E1 and H1. On Motion E1, I am exercised by the idea that there is an opportunity cost in checking whether you are preventing or causing fraud. That seems to be a strange discussion. The analogy made by the noble and learned Lord, Lord Garnier, with HSE and health and safety, is a good one: yes, it is a cost to make sure that you are doing something safely but it is a much wider benefit. The notion that 95% to 98% of the business community should be allowed not to consider their impact on fraud because that would get in the way of their growth is strange, because that growth would then be predicated on very shaky circumstances. I am not persuaded by the counterarguments, but I have been persuaded strongly by the noble and learned Lord.

Similarly, on the Motion from the noble Lord, Lord Faulks, causing agencies to be too tentative and restricted in how they go about prosecuting people is an important issue. It is clear from what we have heard from the outside world that this gets in the way of prosecutions. It also causes the prosecuting authorities to go for low-hanging fruit—that is, easier propositions—and avoid harder and often more severe prosecutions. That is a chilling effect which we should be worrying about when we look at this issue.

These two important amendments have been trimmed in the light of the rejection of the last set by the House of Commons. Noble Lords and Baronesses on these Benches will be happy to support them, if and when they are moved to a vote.