Consumer Protection (Enforcement) (Amendment etc.) (EU Exit) Regulations 2020

Lord Naseby Excerpts

Monday 16th November 2020 Grand Committee

[Lord Naseby (Con)]

My Lords, I read this SI in the context of the internal markets Bill, which we are wrestling with on Report on Wednesday. I have a couple of questions. Paragraph 2.9 of the Explanatory Memorandum refers to particular industries that were, in a sense, left out or were not ready at the right time. My eye fell particularly on “footwear”. I had the privilege of representing Northampton South, a town steeped in footwear, and still has the UK’s leading footwear brand in Church’s, along with a host of others and the ancillary trades that go with it. I also noticed the reference to “crystal glass”, because I go down to the west country quite often—and, of course, Dartington is also involved in crystal glass.

My first question is whether these new regulations for Northern Ireland affecting those two industries—and, presumably, textiles—mean that they are the same as regulations in the rest of GB, or are they different? It is not entirely clear from reading this what the situation is. Secondly, was there any response, when the new regulations were tabled, from any of the trade associations affected by these industries? Footwear is obviously one, and I am sure that there are trade associations for glass and textiles.

So that is that area—then there is paragraph 2.12. The question that arises in my mind is whether this measure means that the exit regulations are on the basis of no deal or a deal? In other words, it does not make any difference for paragraph 2.12 whether there is or is not a deal or no deal.

Just to make an observation on paragraph 2.14 in the context of the internal markets Bill, it says:

“Those sections provide that where a court in one Part of the United Kingdom makes an order under Part 8 of the 2002 Act that order is, in another part of the United Kingdom, to be treated as an order made by the court in that other part of the United Kingdom.”


It is so good to see that there, and well done to those involved in that process.

I have another small point, which is that I am never too sure what the definition is of a small business. It keeps coming up, and I would be grateful if somebody would write to me and tell me what the definition is within the department.

Finally, it is nice to see my colleague here, my noble friend Lord Moynihan. I suspect that he and I and perhaps one or two others are particularly involved in the world of sport. We know that industry extremely well. He is so right to raise the problems of ticket touting and resales. It is a growing problem and really needs tackling. If we are talking about increasing the powers of the CMA, that has to be done. I hope that my noble friend, who may not be able to give us a strong answer on that today, will recognise that this is a big and a growing problem. Given the size and importance of sport to British citizens, it really needs tackling.

United Kingdom Internal Market Bill

Lord Naseby Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 9th November 2020 Lords Chamber

We have heard again today that there is a threat to the Belfast agreement. Is it not ironic that those who were directly involved in negotiating and creating the agreement are not saying this? Incidentally, as I said earlier, I live a matter of minutes’ drive from the border. I suspect that a lot of your Lordships who are speaking this evening have never been to the border, so I speak with some knowledge. Are we now to have government by threat? Some in your Lordships’ House are in that mood: if you do not accept what is thrown at you, there is worse on the way. I implore the House to retain Part 5 of the Bill.

[Lord Naseby (Con)]

My Lords, I am not a lawyer. Nevertheless, I am in my 47th year in Parliament, of which 23 were as the Member of Parliament for Northampton South. My first majority was 179. As an aside, bearing in mind what has been happening in the States, on the first count I lost by 183. On the second count, I won by seven and on the third count by 179—so who knows what might happen in the States?

In 1979, I was honoured to be a Parliamentary Private Secretary in Northern Ireland. It was a delightful two years, I have to say. It taught me patience and understanding, and it taught me to understand the sensitivities and, above all, the commitment of the vast majority of the citizens of Northern Ireland to the United Kingdom.

In May 1992, I was proposed, unopposed, to be Chairman of Ways and Means and Senior Deputy Speaker in the other place. A couple of months later, I found myself facing the Maastricht Bill—one of the two longest Bills on the Floor of the House since the war. There were 500-plus amendments and four clauses. It was on the Floor of the House for 25 days, including three all-night sittings.

Three principles drove me and my two deputies. First, there should be no tedious repetition—I wonder whether that should not be included in your Lordships’ House. Secondly, the House should make progress. We did, but we only had four clauses. Above all, the clerk said to me, “You have to remember, Michael”—I was Michael Morris then—“that the basic principle of our constitution is that ultimate sovereignty lies with the Crown in Parliament”. She drilled that into me and I have never forgotten it. It is that sovereignty to which the Government are answerable and which the rule of law upholds.

Bearing in mind this debate, during the weekend I decided to investigate in depth the legality of any Government introducing any Bill that may or would breach a treaty obligation. As it happens—because I have a few friends in the law—my attention was drawn to an article written by a highly respected QC, David Wolfson. On 10 September, he wrote an article in the Spectator. I will quote from one or two paragraphs. He says:

“The mere act of laying a bill before Parliament which, if it were passed into statute, would breach a treaty obligation (and would amend domestic legislation bringing that treaty obligation into effect in domestic law) is not itself a breach of the treaty or of international law. Nor would merely laying such a bill be itself a breach of the rule of law.


“If the legislature passed such a bill and it became an Act of Parliament, the rule of law requires the Government to proceed in accordance with it. That is what parliamentary sovereignty, or to be more precise the sovereignty of the Crown in Parliament, means. Whether passing such an Act of Parliament gives rise to a claim under the treaty ... is a separate issue. But again, there is no breach of the rule of law.


“And what is the alternative proposition? That a government is precluded by the rule of law from even laying a bill before parliament which, if passed, would put the UK in breach of a treaty obligation? Or is it to be said that the rule of law requires that such an Act of Parliament should itself be deemed by our courts to be unlawful or of no consequence?


“I see no legal basis for any such proposition. Such a bill and resultant Act of Parliament might be unwise or foolish or damaging to the UK’s interests (or wise or clever or a show of strength)—those are matters of political debate. But those are not legal questions. Nor can it make any principled difference to the analysis that—to take two points which have been made repeatedly over the past few days—the treaty in question was signed recently, or by the same government.”


Contracts—yes, they should be honoured. He says so and I believe that they should. I understand that there is a phrase: “pacta sunt servanda”. I had some difficulty passing O-level Latin. But a breach of contract does not of itself entail a breach of the rule of law. I certainly learned that in the commercial world. Breaching a treaty obligation because Parliament has so legislated does not do so either.

So none of this is to suggest, as some still say, that international law does not exist, nor that treaties do not matter. Of course it does—and they do. But for their part, the Government will argue that preventing part of the territory of the UK from being cut off economically justifies their approach, and I—and I suspect the vast majority of the British people—totally concur.

I also found out over the weekend, because I take a great interest in aeronautical matters, that Boeing is challenging the EU in the World Trade Organization court for breaking state aid rules regarding Airbus. To go back to the QC, he asserts

“a more basic—and (at least formerly) orthodox proposition: in our constitution, ultimate sovereignty lies with the Crown in Parliament. It is that sovereignty to which the government is answerable, and which the rule of law upholds.”

He then says quite clearly:

“I do not consider there is a breach of the law in the Government’s approach”


and, frankly, nor do I.

People are saying that we must remind ourselves occasionally that we are not the elected House. Some of us have had the privilege of serving in the other place. They have that responsibility, not us. We are a revising Chamber, and we should do so properly. At this juncture, I see no evidence that my Government are in breach of the rule of law.

The people of Northern Ireland require our understanding. I was so grateful to listen to the speech from a former friend, the noble Baroness, Lady Hoey, who has joined us.

[Lord Hunt of Wirral (Con)]

My Lords, I declare my interests, as set out in the register. I am very pleased indeed to follow my noble friend Lord Naseby. How right he has been to remind us, through his ministerial experience in Northern Ireland and by quoting the article by David Wolfson QC, of the importance of the issue of Northern Ireland, which has been evidenced by some very powerful speeches.

Even at Second Reading, as we discussed the underlying principles of this Bill, our focus was heavily drawn to Part 5. The principle underlying it is very clear: it sets out powers and requirements which I am sure that all of us, including the Minister, hope will never come into play. The intention—and this is a point of vital importance, especially as the Brexit trade negotiations enter the final furlong—is to send a clear signal about what is ultimately acceptable to the United Kingdom and what is not.

The term “backstop” has been deployed somewhat excessively during the protracted Brexit process, but this part of the Bill is just that—a backstop. It is no secret that I have always seen the democracies of western and central Europe as allies and friends— our most proximate and, increasingly, our most important allies and friends. The new Administration in the United States, when President-elect Biden takes office in January, will also very much want to see us in that context. None the less, in any negotiation, even with good friends and allies, it is vital to be absolutely clear from the outset, and consistently thereafter, about any “red lines”, any “lines in the sand”, or however else one might term points that are simply off limits and non-negotiable.

The Good Friday agreement, which I avidly support, acknowledges that Northern Ireland is part of the sovereign territory of the United Kingdom. The clear implication must surely be that Northern Ireland is, and shall remain, fully integrated into the UK single market.

United Kingdom Internal Market Bill

Lord Naseby Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 4th November 2020 Lords Chamber

[Lord Naseby (Con)]

My Lords, the idea behind this new clause has validity, and particularly will after the pandemic, whenever it is over. There is little doubt that some companies will be strong after the pandemic because they happen to be in a particular market, and others will be extremely weak and looking to be rescued somehow. The only problem I have is that the new clause refers to the

“duty to consider the internal market”

when in fact, that is the only market that will apply from 1 January onwards as far as the UK is concerned. So, it is not as though it is one of several markets; it is the only market in my judgment.

The noble Baroness is quite right that in some of the markets, there are already signs that things are happening. In the fintech market, things are undoubtedly moving quickly—for example, in sections such as payments and operations. You only have to read the Financial Times regularly, as I am sure a lot of noble Lords do, to see that things are moving all the time there. Equally, a fair number of our universities have what you might call cradle operations or primary operations, whereby they are looking to develop research that they believe might be marketable. Many are quoted companies; others are not. There is a lot of activity happening.

Although it is undoubtedly true that we want to see both paragraphs (a) and (b) happen, given the original role of the CMA, which emerged from the Monopolies and Mergers Commission, I think it pretty inconceivable that it would not look at these aspects. My noble friend on the Front Bench will be able to clarify that more than I am able to.

If there is not sufficient cover within the current Bill and other parts of the law, I hope my noble friend will look upon the amendment seriously. If that degree of cover already exists, I can understand why, although the issue is worth looking at and talking about, it may not be appropriate to deal with it in a new clause.

[Baroness Neville-Rolfe (Con)]

I rise to speak to Amendment 153 in the name of the noble Baroness, Lady Hayter. This is a new clause relating to mergers that might affect the internal market. She may have a reasonable point that this is a matter of public policy about which we should be concerned. It is odd the way mergers involving an overseas player without a UK business cannot be stopped under merger law—think Cadbury, think ARM, as well as GKN Melrose, which the noble Baroness, Lady Hayter, explained was a particularly heinous example—because there is not the necessary lessening of competition. Although she did not say so, perhaps there is a parallel concern about takeovers important to one of the devolved nations or to a particular R&D base.

However, I do not think this is a big risk, as representations would be made to the CMA and taken into account in consultation and decision-making by the CMA, which is domestically focused and operates across the UK. My concern is that the new clause would be a major change to the way merger law works; I do not think it right to try to change one aspect in this Bill. Therefore, I cannot support this amendment.

United Kingdom Internal Market Bill

Lord Naseby Excerpts

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

[Lord Clement-Jones (LD) [V]]

My Lords, I declare a possible interest as a solicitor qualified in England and Wales and I share all previous speakers’ support for IP professionals, who ensure that we have the necessary intellectual property protection in the UK. I strongly support my noble friend Lady Bowles’s Amendment 107A and share her confusion, not to say bafflement, at Amendment 107. She has drawn attention to the obscurity of the drafting. Why are patent and trademark attorneys included and then excluded?

My noble friend has been, if anything, very kind to the drafters of the government amendment. Not only is it obscure but, as we have heard from the noble Lord, Lord Smith, there seems to have been no proper consultation with the professional bodies and regulators such as CIPA, CITMA and IPReg before it was tabled. This is all compounded by the use by both officials and the Minister of the term “automatic recognition” in communication with my noble friend, when we should be talking about qualifications.

Why has automatic recognition, from which exemption is needed, been introduced? As an interloper on this Bill, perhaps I can ask the most fundamentally naive question: why do we need not just Clauses 22, 23 and 25 but Part 3 in the first place? Are these the emperor’s new clothes? Even the Explanatory Note is rather obscure in its rationale, saying:

“There is currently no overarching system or consistent approach for the recognition of professional qualifications between the nations making up the UK internal market. Therefore, if professional divergence increases across the UK, professionals could have greater limitations on their ability to practise across the UK than exists currently.”


What professional divergence is threatened or envisaged? There is the continuing need for professionals covered in this part to be suitably qualified, but why do we need a new piece of legislation simply to preserve the status quo? I am sure the Minister has the answer at his fingertips.

[Lord Naseby (Con)]

My Lords, it is a little disappointing that, in a Bill that is vital for the future of our country, there seems to have been some misunderstanding; somehow or other the key role of patent and trademark attorneys has been misunderstood. They are vital to the future of our country because, as it happens, we are quite good at producing ingenious new products, processes and systems of manufacture that are patentable. Equally, we are good at marketing products that require trademarks. Here is an area where we really are at the forefront of Europe’s activity—and, many would say, the world’s—so this is crucial, and we need to be clear that it is going to operate properly without any hiccups.

In my judgment, we need to defend some of our trademarks in particular. When we are marketing on our own outside the EU, I believe that we will get challenges. I have worked overseas and seen it happen there, and I do not see why it might well not happen here in the UK. As we move forward on that challenges dimension, I recall that, as I think one or two of my colleagues know, I worked in south Asia for two years. When I was in India, there was a system of mutual recognition for trademarks in certain categories of products. I wonder whether that is an element of the new deal we have done with Japan.

On my final point, I declare an interest in that I have a son, a lawyer, working in the Cayman Islands—in other words, the Overseas Territories. Given the confusion that we have had today, I am not entirely clear whether in the Overseas Territories a qualified patent lawyer or trademark attorney, who is a UK citizen qualified in the law and in whatever elements are needed for such attorneys, is able to operate although they are not actually in a part of the UK.

[Lord Falconer of Thoroton (Lab)]

My Lords, intellectual property lawyers, patent agents and attorneys are incredibly important for the future. I thoroughly endorse the remarks made by the noble Baronesses, Lady Bowles and Lady Neville-Rolfe, and my noble friend Lord Smith of Finsbury.

Honestly, confidence in this Bill was weak to start with. That mess-up just then on patent attorneys was appalling, and it made me look at the rest of Part 3. Could the Minister first of all identify what the problem is that Part 3 is dealing with? We had a clue between 11.30 pm and 11.45 pm on Wednesday evening when the noble Baroness, Lady Scott of Bybrook, who sadly is not in her place, said the following:

“The purpose of the professional qualification provisions in the internal market Bill is to ensure that professionals can, in most cases, access their profession in all parts of the UK, by ensuring that there is an overarching system for recognition.”—[Official Report, 28/10/20; col. 375.]


Clause 22 says that where you are qualified in one place, you can be qualified in another, while Clause 25 says that Clause 22(2) does not apply to existing provisions. Let us be clear what is happening here: the Government are saying that we are not making any change to the existing position in relation to professional qualifications, and as far as I am aware—and this is nothing to do with the EU—there is absolutely no problem about the current position. The effect of Clause 25(3) is that these provisions do not apply to any change in the future. Am I right about that? They are making no change for the past but they are bringing in these provisions in relation to the future. Why is that, when there is no problem about the past or the future? The Government are causing problems everywhere with this. I ask them to explain to the House and the wider public why on earth they are doing it. They have messed up the one area that we have looked at so far. Why should anyone have any confidence in this Bill?

On a separate point, I refer the Minister to what the noble Lord, Lord Dunlop—on the government side—said on day one in relation to this matter:

“The timetable for the Bill appears to be predicated on the end of the transition period on 31 December this year, but what is the real risk of regulatory divergence between then and the completion of the common frameworks process in 2021? The House is aware that the European Union (Withdrawal) Act 2018 already confers on Ministers so-called Section 12 powers to freeze devolved competence in relation to EU retained law.”—[Official Report, 26/10/20; col. 88.]


So, if there is any problem about this, it can be dealt with by the Government’s Section 12 powers. That applies not just to this but to wider issues.

Why are the Government bringing forward such an obviously unthought-out Bill that is doing damage to what—and I say this with respect to the noble Lord, Lord Naseby—even the noble Lord, Lord Naseby, thinks is a mess-up, and he is a supporter of the Government’s Bill? Why on earth are they messing everything up like this? Could they please give an answer to what the noble Lord, Lord Dunlop, said on day one? Is he right? If so, the urgency goes.

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[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

The noble Lord, Lord Liddle, has withdrawn, so I call the noble Lord, Lord Naseby.

[Lord Naseby (Con)]

My Lords, when I first read through the Bill, I had some reservations about the CMA, not least because of the number of its investigations that have not exactly gone smoothly, as my noble friend Lady Noakes referred to. As all noble Lords are aware, it arose from its antecedent, the old Monopolies and Mergers Commission. I voiced some of those reservations at Second Reading. I then had another look at the OIM and could not for the life of me understand why it did not have its own status. How could it be right for it to be almost subservient to the CMA? I could immediately see a clash of interests. As has just been said, its role is to monitor, advise and report. That may well clash with the basic element of the CMA. While this amendment may not be exactly right, there is a strong case for it.

I will give an example. I have recently been approached by some outside people because they know that I take an interest in the credit lending market, principally credit unions. It is a difficult market because there is the FCA, which does a good job on the whole, but there is also the ombudsman. People who are in difficulty with credit are prone to appeal to the ombudsman for better treatment, as it goes beyond the normal provisions under which the FCA works. That created a real problem for the genuine lenders—not the fly-by-night operators—because of a clash of interests.

I would not expect my noble friend on the Front Bench to respond in any detail today, but the OIM has to have its own status. It should not be in a position where it is embarrassed by the CMA going against what the OIM thinks is appropriate in any situation.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, the noble Baroness, Lady Bowles, referred to a letter to the noble Lord, Lord Purvis, following an earlier discussion. I have not received a copy of that. Could all the letters sent following these debates be circulated to all Members of the Committee?

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[Baroness Humphreys (LD) [V]]

My Lords, I thank the noble and learned Lord, Lord Mackey of Clashfern, for tabling the amendments in this group.

In what is becoming an extremely welcome defence of the devolved Administrations and their devolution settlements in debates on this Bill, these amendments point the way to involving a forum that already exists when discussing and agreeing to regulations under the Bill: the Joint Ministerial Committee on EU Negotiations. The amendments would require the Competition and Markets Authority to consult the JMC on EU negotiations; they would also ensure that regulations are brought before the committee and discussed by it before being laid before Parliament.

The amendments are entirely sensible. The JMC on EU Negotiations appears to be the ideal vehicle for such oversight and deliberations. The amendments also open up the opportunity to discuss the way in which the JMC operates, to examine whether it is fit for purpose and to envisage its future role. Of course, the Joint Ministerial Committee on European Negotiations is a sub-committee of the Joint Ministerial Committee—a committee made up of Ministers from all four national Governments. On looking at the memorandum of understanding that underpins the JMC’s operations, it seems an ideal candidate for this oversight role. It is worth examining its wording. According to the memorandum, the JMC should provide

“central co-ordination of the overall relationship”

between the UK and the devolved nations and, among other things,

“consider devolved matters if it is beneficial to discuss their respective treatment in the different parts of the United Kingdom”

and

“consider disputes between the administrations.”

It seems an ideal candidate indeed, as I am sure we all would agree. This is exactly the sort of forum that we need, not just to have oversight of regulations brought forward by the CMA but to consider all issues arising from the relationship between the four nations. But the reality is slightly different. The JMC has the potential to be a forum to guide devolution issues and resolve them, but the committee itself seems to operate on an almost ad hoc basis.

My noble friend has already pointed out the difficulties with the Joint Ministerial Committee (Plenary), which is supposed to meet at least once every year. Like him, I look forward to hearing when the Prime Minister will be willing to chair another of its meetings. The Joint Ministerial Committee on EU Negotiations, to which these amendments refer, was initially expected to meet monthly. It did so until February 2017 but then ceased to operate for eight months, and its meetings have been held on an irregular basis since then. It met five times in 2019 and, I believe, has met three times so far in 2020. I would be delighted if the Minister could prove me wrong and tell me that it has met more often.

Despite the obvious drawbacks in the way that the JMC and its sub-committees operate, I am extremely grateful to the noble and learned Lord for tabling these amendments, because they point a way forward. The JMC and its sub-committees, actual and potential, could have a vital role to play in resolving issues that arise in and around the operation of the UK internal market, but first we need to resolve the long-standing issues surrounding its constitution. The frequency of meetings and the question of who controls the agenda, for example, all have to be placed on a statutory footing. The JMC and its sub-committees, operating efficiently, regularly and fairly, have the potential to allay the fears of the devolved Administrations and allow for the consensual and co-operative government they seek. I support these amendments.

[Lord Naseby (Con)]

My Lords, when I read the Bill and the amendments to it that have been tabled, I asked myself, “Why?” Of course, my noble and learned friend Lord Mackay is a very experienced attorney and parliamentarian, but the whole purpose of the CMA is to be independent of government. It is not there to be dictated to because one of the devolved Administrations does not like the look of what the task group is going to be doing. That would be absolutely wrong. The whole basis of the CMA and OIM is that they are independent of government. They publish their results, monitor properly and advise, but the amendment would seem to put in another tier of management, like Europe in reverse. That is very wrong, and it would find no favour with me at all.

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I support Amendment 114, moved by the noble and learned Lord, Lord Mackay. It is right that we take the opportunity to look at the role and relationship of the Competition and Markets Authority and its relation to the Joint Ministerial Committee.

The single market is important to all of us. Perhaps I may give a practical example of smooth working, which is so essential. In the words of the noble and learned Lord, Lord Mackay, smooth working will ensure that our products are able to be sold in one part of the country and in any other. Nothing would distort that more than if access to the markets were limited. All my family are sheep farmers. They sell their products, produced in Wales—ram lambs, lambs and ewes—in markets in Carlisle and Exeter on a modest scale. It is important for them to ensure that they have easy access to all markets. That is the kind of practical example that we look at in the functioning of our future relationships.

United Kingdom Internal Market Bill

Lord Naseby Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 28th October 2020 Lords Chamber

[Lord Naseby (Con) [V]]

My Lords, as colleagues know, I had the privilege of being Deputy Speaker in the House of Commons for five years, and of course Erskine May was my bible. Indeed, one had to refer to it pretty regularly during the Maastricht Bill procedures. Just as an aside, Erskine May went to Bedford School, as I did, and history has it that he was the only Clerk of the House of Commons who managed to get Big Ben silenced in the middle of the night. However, that is by the by.

We are dealing with trade, industry and markets here; we are not dealing with life-threatening situations that obviously require anything that comes forward to be looked at in a practical manner. Only in the last few days, we have had news of the future trade agreement with Japan, which has just been signed. The agreement makes it clear that the deal that has been settled between the UK and Japan goes far beyond our existing agreement with the EU.

However, of relevance to this amendment is a letter which I have received and which went to all Peers. On the second page, under the heading “Parliamentary transparency and scrutiny, next steps”, the letter says,

“we have shared the full UK-Japan Partnership Agreement treaty text with both the International Agreements Sub-Committee in the House of Lords and the International Trade Committee in the House of Commons. This is to aid the committees’ important scrutiny work and the production of reports by them on the agreement.”

That is a practical example, in the last few days, of the way in which the Government are proceeding. I have to say to the noble Lord, Lord Liddle, that that rather shoots the fox that he produced earlier—that nobody knew what they were doing and that they did not have a strategy, et cetera. That is a practical example.

Like my noble friend Lady McIntosh, I looked again this morning at what Erskine May says about the affirmative procedures. They are pretty straightforward. Traditionally, there were three variations. The first is used where something has to take place on an SI immediately—we have seen the need for that in relation to Covid—and there is usually a specified period by which it should not continue. It has obviously expanded since the days when I was in the Chair: then, it was about 40 days, and now, it appears to be almost six months, but that is by the by.

Then there is the more normal procedure in which a draft is laid before both Houses, not to be made and have effect unless one or both Houses present an Address to the Crown praying for the order to be made or for agreement to resolutions approving the draft instrument. Therefore, there is already a whole host of procedures whereby anything that comes forward can be debated before it is voted on. The key thing is that it is voted on.

As I have said in our earlier sessions, I have been a marketing man and a trading man. We really do not want yet another hurdle—in this case, the super-affirmative procedure—that just creates more delay, and to my mind this degree of consultation on an issue that was causing a problem to one of the devolved Assemblies, a particular industry or a particular trade would do that. Any of us in trade or business knows that if you have a problem, you put it to the Government of the day and you say that the present procedures are not working. There are already safeguards, as I have indicated; in my judgment, you certainly do not need yet another layer of safeguard unless it is a matter of life and death.

I am sorry. I have to say to my noble friend that I cannot possibly agree with this; I think that it is way over the top. If it is taken to a vote, I will certainly vote against it.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

The noble Lord, Lord Liddle, has withdrawn so I call the noble Lord, Lord Judd.

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[The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)]

My Lords, the noble Lord, Lord Hain, lost his connection, so we shall try him again now. It seems we are still having problems with the noble Lord, so I now call the noble Lord, Lord Naseby.

[Lord Naseby (Con) [V]]

I thank my noble and learned friend Lord Mackay. He certainly has a very practical sense of the law, which not all lawyers have. He is right: it is an internal market; the relationships between England, Scotland, Wales and Northern Ireland are usually very close and we all have a common cause, perhaps not in rugby, but in most things. Nevertheless, I repeat that the words used in the Bill are pretty strong. It does not say that, in making regulations, the Secretary of State “may” or “should”, as we see occasionally in law; it uses the word “must”, which is a strong word. He “must consult”; there is no option. That is quite right—absolutely right, but we need to remember what “consult” means.

It is not a soft verb. Its component parts, in my view, involve seeking out information or advice, depending on the subject matter. It means doing one’s best to find out what the views are, to have an interchange and to take into consideration all aspects of the particular action proposed. It is not a dictatorship or anything like that, and I would not believe that any Secretary of State, of any Government, would view it that way. I personally think it is as strong as it needs to be. The addition of “obtain the consent of” in place of “consult” is a threat; there are no two ways about it. When I was in local government and the leader of a local authority, if I had had some legislation in front of me that said, “You have to obtain our consent”, I would dig my heels in. Do not bother about the other 31 local authorities in London—just dig your heels in and that will foul it all up.

That is not what this is all about, so I am not in favour of Amendment 15. I think, though, that the noble Lord, Lord Hain, and my noble and learned friend Lord Mackay have taken the argument a bit further. The noble Lord, Lord Hain, was talking about a qualified majority, when one part of the nation dug its heels in for some reason, and maybe we should look at that. My noble and learned friend Lord Mackay put forward how Parliament might be brought in at a higher level in something that was particularly difficult. There is merit in looking at both aspects, but I just think the amendment before us, Amendment 15, is over the top.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, it is a pleasure to take part in this fascinating debate, which is very much legal in content. I support the principles enunciated by the noble Lord, Lord German, and the noble and learned Lord, Lord Hope of Craighead. Like him, I would like to ask the Minister, the noble Lord, Lord True, what the Government’s view is of the Sewel convention. What is the Government’s view of devolution?

I speak as someone who was once a Minister in the devolved Administration in Northern Ireland. I dealt with legislative consent Motions all the time. The connection between the consultation and the devolved Administration was vital, particularly on benefits, where we operated the principle of parity.

I support all these amendments because they pivot the debate on the issue of seeking the consent of the devolved Administrations and the level of consultation. If the Government are serious about respecting devolution and honouring the Sewel convention, they should accept these amendments. It is my fear that this Bill is really about a power grab and Henry VIII powers. Unlike the noble Lord, Lord Naseby, who is obviously batting for the Government as a Back-Bencher, I do not think these amendments are meant as a threat to the legislation or to the Government. We must always remember that the Executive should be accountable to Parliament. The words of the noble and learned Lord, Lord Judge, in his treatise on this are very germane on this issue.

The Bill is peppered with many provisions where the Government seem intent on undermining devolution and the devolution settlements. This demonstrates a lack of respect for them and the work they do. Do the Government believe in and subscribe to devolution, or are they trying, by stealth and secondary legislation, to be an integrationist Government? In this regard, I refer to a report from the Lords Constitution Committee, which states:

“As the operation of the devolution arrangements and the respective power of the devolved institutions are constitutional matters, we would expect to see them amended by primary rather than secondary legislation or by using a statutory procedure that requires the consent of the devolved legislatures”.


I ask the Minister: when are the Government going to come back to that position? The Constitution Committee is also instructive about the role of consultation. Point 5 of its summary of conclusions and recommendations states:

“The lack of specificity about the consultation requirements in the Bill is problematic. The Government must set out the process for consultation with the devolved Administrations on the management and adjustment of the internal market arrangements.”


So be it with the mutual recognition principles for goods.

There is also a lack of reference to the common frameworks, an area that would help to resolve some of these issues. Is that because the Government wish to further control the devolved Administrations? There is a strong case for withdrawing this legislation and going back to the drawing board, while a more suitable intergovernmental approach and better consultation are used to develop an appropriate system of governance.

The Government’s approach in this Bill is about weakening devolution arrangements, hence it is important to achieve and obtain the consent of the devolved Administrations for the mutual recognition principles. I therefore fully support these amendments, which are trying to curb the Henry VIII powers.

--- Later in debate ---

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I perhaps need to correct something. I may have mis-spoken when I spoke to Amendments 17, 31 and 42. Of course I meant to refer to the devolved Administrations, as is written in the amendments. I apologise if I did not say that on every occasion, but obviously I was referring to consultation with the devolved Administrations. I am grateful for the opportunity to correct that.

I am delighted to have a short debate on whether Clause 7 should stand part and, within that, Amendment 32 in my name. Clause 7 makes provisions relating to “direct discrimination”, and, among these, Clause 7(1) sets out:

“A relevant requirement directly discriminates against incoming goods if, for the reason that the goods have the relevant connection with the originating part, the requirement applies to, or in relation to, the incoming goods in a way—(a) in which it does not or would not apply to local goods, and (b) that puts the incoming goods at a disadvantage compared to local goods.”


Subsection (2) states:

“Goods are put at a disadvantage if it is made in any way more difficult, or less attractive, to sell or buy the goods or do anything in connection with their sale.”


The particular difficulty I have in Clause 7 is subsection (3), and in particular:

“‘Local goods’, for the purposes of this section, are actual or hypothetical goods”.


The purpose of Amendment 32 is to probe the description of local goods and, in particular, what actually constitutes “hypothetical goods”.

Again, I am grateful to the Law Society of Scotland for its help in briefing and preparing me and drafting this amendment. It has concerns about the definition of “local goods” within this purpose, including actual or hypothetical goods. It is very strange that there is no definition of hypothetical goods, and the opportunity that my Amendment 32 creates is to simply ask the Government what they mean by “hypothetical goods” and why on earth we are using such an expression in these circumstances. I am sure it will give my noble friend the opportunity to return to his favourite tin or box of biscuits in this regard.

I will also raise a question that my noble friend Lord Callanan did not answer in summing up an earlier debate, when I asked who decides what is hypothetical? So I will take this opportunity briefly to ask my noble friend the Minister why we have inserted “hypothetical goods” in this clause? What on earth does this mean, and who determines what is hypothetical and what is real? With those few remarks I beg leave to move Amendment 32.

[Lord Naseby (Con) [V]]

My Lords, I cannot presume to know what my noble friend on the Front Bench is going to define as “hypothetical”, other than to say that I spent 15 years of my life in the marketing profession, as I have already said to your Lordships. In that time, I worked with food manufacturers and pharmaceutical, agrochemical and household-product companies. Each of those markets, and many others, will have on its list test-marketing activities with different strengths, varieties, perfume levels and activity levels: a whole host of variables.

The companies will not know which is the actual product they are going to market—and they might not even market it at all—so, at a certain point in time, those products are hypothetical. They are not registered under a trade name: they are test markets and, quite frankly, that is the normal process for consumer goods. So, as far as I am concerned—and I do not think that I need to speak at great length on this—this is perfectly understandable to anybody who has worked in the pharmaceutical, agrochemical, household-product or food world, or any other product category.

United Kingdom Internal Market Bill

Lord Naseby Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 26th October 2020 Lords Chamber

[Lord Naseby (Con)]

My Lords, it is worth reminding ourselves that we are talking about the Committee stage of an internal market Bill. I frankly do not see the relevance of the part of Amendment 1 which talks about the environment. We do of course have environmental laws. They are ever being strengthened and are an important part of our society. What they are not is anything specifically to do with an internal market.

We turn to look at consumers. I am a marketing man by profession. After university, having read economics, I joined the Reckitt and Colman Group as a marketing executive and later a marketing manager, in the UK, India and what is now Sri Lanka. I understand marketing. Marketing is about more than just the consumer. It is about those elements of a market that are all working within it. A whole host of bodies is working there. I share the view of my noble friend Lady Noakes. While the UK was in the EU, which I voted to stay in, we had all sorts of restrictions, some of which were very adverse to industry and commerce in this country—not all by a long way, but some were. We want an internal market where people who manufacture, sell, distribute, research and devise new products can succeed. We want that market there, without the stranglehold of having to agree with half a dozen other nations. That is absolutely key. It is not a simple matter of just worrying about the consumer. I think it was the noble Baroness who opened who spoke about driving competition to the lowest level.

Competition is very healthy but, of course, there must be safeguards. That is why in the Bill there is this new body, the office for the internal market, working alongside the CMA. I criticised the CMA at Second Reading and I believe those criticisms were valid. I want to see this office for the internal market really have teeth and really be able to operate. Reflecting on Second Reading, frankly, it is not right in the Bill to just have a review after five years. We have enough evidence in modern society to recognise that things move much more quickly these days than they ever used to. I put it to the Minister that Her Majesty’s Government should consider a three-year review of that body.

On Amendment 2, it is already part of our public law, so why does it have to be written here—if that is right? It comes later, under Part 5, but we cannot have a situation whereby all parts of the UK can have their own minor arguments on whatever product or service it may be. Then we would end up with everybody having a different viewpoint. That does not seem to me at all sensible. My plea to the Minister is that this is a very exciting time if you are a UK manufacturer, trader, in financial services, in hospitality, in the professions, a retailers or wholesaler, or an online trader. Certainly, in my former constituency of Northampton, they look forward to this internal market.

[Lord Fox (LD)]

My Lords, if the Ministers shepherding this Bill expected an easy ride, this gives a taste of things to come. It serves a purpose in setting the scene, and a lot of arguments and debates will come in other groups as we go through this process. I shall not labour those points. An overriding sense I got from my noble friend Lord Purvis is that the question everybody wants to know the answer to is: why have Her Majesty’s Government decided to turn away from a process of managing markets that has been extremely successful? It was successful before we joined the European Union and successful afterwards. This is the overriding question that hangs over this whole debate.

On Amendments 1 and 112, if ever we needed convincing that things such as the environment need to be written into the Bill, the speech by the noble Lord, Lord Naseby, convinced me that they do. This is because we cannot take things for granted. Governments come and Governments go, but the law stays, and we need to be sure that our public policy is being directed properly. I uncharacteristically find myself somewhat agreeing with the noble Baroness, Lady Noakes: we have to be careful not to constrain the nature of this Bill. We need to find a way to write in issues such as those of the consumer and the environment. I would add some of the points made by my noble friend Lady Bowles and food safety to that. We need to ensure that there is an assessment of the success of this internal market in some of those areas, including the environment, the effect on consumers, the effect on jobs, et cetera. I share the view of my noble friend Lady Bowles that perhaps more work is needed, but the issue is live and very important. I thank the proposers of the amendment.

Turning to Amendment 2, I do not think proportionality pops up anywhere in other amendments. We had a brief discussion of this extremely important subject from various speakers. I take my lead on this from the noble and learned Lord, Lord Hope, who understands the law, and my noble friend Lady Bowles, who knows a thing or two about regulation. If they are concerned about proportionality, so are we on these Benches. The Government need to find a way of writing that issue into the Bill.

On public procurement, we need to understand what the Government mean by what they seek to do in this legislation. The issue highlighted by my noble friend Lord Purvis is live and real: how will this legislation affect those issues? It is a probing amendment, but for it to work we need answers.

We have started. There are issues we shall return to, but proportionality and public procurement are two on which I hope the Minister will respond at length.

--- Later in debate ---

I hope that the Government will reflect on this very carefully. I have indicated that we do not need this rush before the end of the year, and I have stressed the importance of having consensus on the way forward. Up until now, the Government have chosen not to go down this route, but it is not too late. I hope that they will reflect very carefully on this approach and that those on the Cross Benches and Labour Benches will work with us to ensure that there is a degree of consensus to allow the Government some space to change their course.

[Lord Naseby (Con)]

My Lords, I shall resist the temptation to follow the noble Lord, Lord Purvis, in what he has said. However, I reflect that in the other place I was responsible for, and chaired most of, the Maastricht Bill, with 500 amendments and 24 days of debate. Even there, I think that I would have been really stretched to have enabled what is labelled here as a new clause to be put into the purpose of Part 1 on an introductory basis.

I understand the feelings of Scotland, Wales and Northern Ireland. I had the privilege of being Parliamentary Private Secretary in Northern Ireland, and I was a local government leader. Of course they feel strongly, as I do about local authorities and the Covid situation. Nevertheless, it is quite clear that the purpose of Part 1 is

“the continued functioning of the internal market for goods in the United Kingdom by establishing the United Kingdom market access principles.”

It then lists what the mutual recognition and non-discrimination principles should be.

If the Opposition and those who do not like what is in Part 1 want to make a point, there is a case for having a small amendment including just the words “and services”. I see merit in that because, as I said earlier, that seems to have some validity, but to suggest in the introductory part, under “Purpose of Part 1”, that we have to await a statutory instrument

“containing regulations under section 56(3)”,

et cetera, is extraordinary. I cannot believe that there have ever been many Bills where that sort of new clause has been inserted into the introductory part.

Therefore, I say to my noble friend on the Front Bench that there are valid questions arising from this alleged new clause to be asked in the right place, but this is certainly not the right place in this Bill.

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

My Lords, as the noble Lord, Lord Dunlop, said, this debate is a sort of appetiser for the main course to come in later groups, when we will dig much deeper into the right approach to ensuring that our current well-functioning internal market continues after the transition period ends and that we can manage the necessary and inevitable policy divergences that we need across the United Kingdom and should welcome.

The noble Lord, Lord Bruce, said that the key questions are why we need the Bill at all, let alone now, why the Government are ignoring the evident successes of the co-operation and constructive progress which have been hallmarks of the common framework programme, why threaten the devolution settlement so directly, and what it is about the top-down approach that the Government wish to introduce that is so attractive, given the huge risks to devolution. Those are very important questions and I look forward to hearing what the Minister says when he comes to respond.

The noble Baroness, Lady Neville-Rolfe, said that she recognised the value of proposed new subsections (1) and (2) in the amendment but was worried that proposed new subsections (3) and (4) made it a wrecking amendment. I do not think that it is. Indeed, I make the same points about the need for a pause before we implement in my Amendment 178, which is in a later group.

I hope that the Government will think very hard about the clear message that seems to come from this debate. We need to carry on down the road well travelled in recent years, encouraging the devolved Administrations to continue to collaborate, to work together with mutual understanding until agreement is reached, and then to go further so that there is agreement on all the issues that need to be agreed and a way of resolving any issues that are left over. This is the way in which we make progress—not by imposing a top-down solution. Indeed, anything else risks destroying the complex but pretty successful devolution settlement that we currently enjoy.

--- Later in debate ---

[The Deputy Chairman of Committees (The Earl of Kinnoull) (Non-Afl)]

I call the noble and learned Lord, Lord Morris of Aberavon. Do we have Lord Morris of Aberavon? We will move on.

[Lord Naseby (Con)]

My Lords, I apologise to the House. I understand I was on the list for Amendment 5, but I never applied to speak on that one.

This is an interesting amendment. My colleagues, the noble Baronesses, Lady Noakes and Lady Neville-Rolfe, have already made the point that we are very close to 1 January—in fact, we are 66 days away, by a quick calculation—and so I look at that time dimension against the complications within this proposed new clause.

As I said much earlier in the evening, I am a marketing man by profession; I worked very closely with a large number of manufacturers when I was a senior director in one of the major advertising agencies. I find some of the elements of this amendment, or proposed new clause, too prescriptive. Take subsection (1)(a), where the whole principle is that nothing is going to happen until the

“access principles may be applied”

and have been “exhausted”. We are in a time framework where that is not going to work. It may be necessary, later on, to look at how it does work in principle, and maybe some changes should be made then.

I worry deeply. We are a creative nation. We are in an enormous period of change. One sees now what is happening in the fintech world: it is moving forward at an enormous rate, and it does not want to be stultified by a whole series of restrictions before it can be added to a particular schedule or not. All of us are conscious that there is a whole variety of different companies, across the world, trying to find an answer to Covid-19 through new drugs and vaccines.

Personally, I am terribly practical, and I just do not see the elements of this amendment helping the United Kingdom move forward. There may be bits of it that have some relevance—I am sure there are—and I recognise that they are put forward with a genuineness by people who want things to work. But when I listen to the noble Lord opposite talk about the Welsh Government, and having observed what is happening down in Wales now, one has to say that it is not terribly practical. I am not sure that the credibility of the Welsh Government is very strong in today’s world.

I hope my noble friend on the Front Bench will understand that, perhaps in the future, some of these elements may need to be applied, but, as matters stand today, with 66 days to go, frankly, I do not think that this proposed new clause helps at all.

[The Deputy Chairman of Committees (The Earl of Kinnoull) (Non-Afl)]

I call the noble and learned Lord, Lord Morris of Aberavon.

United Kingdom Internal Market Bill

Lord Naseby Excerpts

2nd reading & 2nd reading (Hansard): House of Lords
Monday 19th October 2020 Lords Chamber

[Lord Naseby (Con)]

My Lords, I am no lawyer, but after 46 years in Parliament, and five as Deputy Speaker, frankly my faith was somewhat shattered in the law when a decision went against the Government on the autumn adjournment, which seemed to me to be perfectly in order in parliamentary terms, and when we normally adjourn for party conferences.

Having said that, three aspects do concern me. First, obviously I am concerned about the amendment to the Motion, and I recognise that the noble and learned Lord, Lord Judge, is sitting here in the Chamber. I am concerned if, as he says, we are undermining an international agreement, particularly by Part 5, and it appears that we are repudiating part of an international treaty which we have negotiated and which we in this House have signed up to.

However, I then listened to my noble friend Lord Howard of Rising. I had a copy of the statement of the noble Lord, Lord Pannick, and as I understand it:

“If, therefore, the UK and the EU were unable to reach an agreement on Northern Ireland/Ireland, despite good faith negotiations and despite the arbitration procedures, and if the UK were therefore to be faced (against its will) with a permanent backstop arrangement, the UK would be entitled to terminate the withdrawal agreement under Article 62 of the Vienna convention on the Law of Treaties.”


Therein may be where the answer lies.

Secondly, I am concerned about the union with the devolved Assemblies of Wales, Scotland and Northern Ireland, and I have a particular concern about Scotland. There must be nothing in the Bill that makes it easier for Scotland to be difficult. Sadly, there is, and I am indebted to the Delegated Powers and Regulatory Reform Committee, which highlights the problems of how the consultation and the dispute processes would actually work.

Thirdly—I am not sure that anybody has actually mentioned this—there is the Office for the Internal Market, which will be part of the Competition and Markets Authority. Even here the portents are not good, because the CMA is regularly criticised for its poor performance, recently over bank reforms and sport monopolies.

This is a Bill fraught with difficulty, not least the reputation of the UK internationally, which is so vital for our future international trade. I shall listen with particular care to my noble friend on the Front Bench, in whom I have great faith, and I hope that he will be able to address the legal point. I hope that the noble Lord, Lord Pannick, is correct, and, if he is, it will be with my support for the Government that I will be voting in the Lobby.

Health Protection (Coronavirus, Restrictions) (Obligations of Hospitality Undertakings) (England) Regulations 2020

Lord Naseby Excerpts

Friday 9th October 2020 Lords Chamber

[Lord Naseby (Con)]

My Lords, I will make two points, the first on communication. My Government communicate; the problem is that they are not communicating in the right way. Young people need communication that is targeted to those they respect within their community. Secondly, local government, which I was in, must be communicated with closely, as must trade associations. The Government are trying, but it is obviously not quite working. Rugby league was just mentioned; I put rugby union alongside it.

I did a little work on death certificates yesterday. In the period 10 August to 7 October, there were 43 death certificates that registered Covid. Of those, nobody was aged nought to 19; one was 20 to 39; four were 40 to 59; 14 were 60 to 79; and 24 were 80-plus; so 88% were over 60 and 56% were over 80. The question we all have to think about is: are all these lockdown measures necessary, or should we just be protecting the elderly with multiple morbidities, so that we can let everybody else get back to normal?

European Structural and Investment Funds Common Provisions and Common Provision Rules etc. (Amendment) (EU Exit) (Revocation) Regulations 2020

Lord Naseby Excerpts

Wednesday 16th September 2020 Grand Committee

[Lord Naseby (Con)]

My Lords, my first point has already been made: that the regulations assume that we will not have a no-deal exit. As someone who saw a whole lot of SIs when I was in the other place, as chairman of Ways and Means, I have to say that it was normal with something of the scale of this SI for the Commons to have a look at it first, but the Commons have not considered this SI, so I become as suspicious as my noble colleague opposite about why something different is being done this time. Of course, it may be entirely innocent, but I have my doubts.

On paragraph 2.4 of the Explanatory Memorandum, headed:

“What will it now do?”


and the various funds set out there, is it the UK Government’s policy to apply for new projects in the remaining three and a half months of the period 2014-20? Or have we put in for all our projects and are just running down in this period? Are there to be any new projects in the remaining three and a half months?

Paragraph 3.1

“Matters of special interest to Parliament”


is followed by a paragraph that refers to

“English Votes for English Laws”

and then by a paragraph:

“The territorial application of this instrument includes Scotland and Northern Ireland.”


One asks the question: what happened to Wales, other than that paragraph 3.3 says that the instrument applies to all the UK? Is there something in the Welsh devolution arrangements that precludes it from doing something in relation to this SI?

We then come to what I call the run-off period. With no deal yet agreed and three and a half months left, are we in a position whereby we will not apply for anything else or, if we did, we would be treated rather frostily for doing so?

Is the £9.5 billion referred to in paragraph 7.2, which is a hell of a lot of money, a guaranteed amount, or is there any wriggle room for the EU to get out of that?

That takes one on to left-over projects, of which paragraph 7.4 says

“even though they would cease to be funded by the EU.”

One assumes, but we would like confirmation, that all the projects going on now, which at some point the EU will cease to fund, will be picked up by the UK Government.

On “Monitoring & review”, I am a passionate believer in monitoring—it is my own little analysis—but, increasingly and rightly, the time limit on reviews has been coming down. It is now almost quite normal to have a three-year review. I hope that in this case we will have a three-year review.

[The Deputy Chairman of Committees (Baroness Garden of Frognal)]

The noble Lord, Lord Liddle, has withdrawn, so I now call the noble Baroness, Lady Ritchie of Downpatrick.

Intellectual Property (Amendment etc.) (EU Exit) Regulations 2020

Lord Naseby Excerpts

Monday 14th September 2020 Grand Committee

[Lord Naseby (Con)]

My Lords, I thank the Minister for presenting a very complicated area very well. By way of background, I think it is only right to mention that I used be an adviser to two pharmaceutical companies, Upjohn, a US company, and Reckitt and Coleman Pharmaceuticals. I was also involved with Fisons. I was a director of a major advertising agency and most of my clients would have been covered by this area, which is, as the Minister said, vital to UK industry and commerce, so the document we have in front of us is very important.

I shall go through the Explanatory Memorandum paragraph by paragraph if I may. There are a number of questions. I do not expect the Minister to have the answers immediately to hand, but I would be grateful, if he feels it appropriate, if he will drop me a line afterwards. Paragraph 2.4 states

“which have been protected at an international level.”

Does that refer to the world intellectual property organisation? If not, who is it?

Later the paragraph refers to

“new database rights to UK nationals”.

I am always a little concerned about our overseas territories—I declare an interest here in that I have family working in the Cayman Islands, which are part of the overseas territories; they are UK nationals and have a very close relationship with the UK. Does this SI affect our overseas territories? Are they covered by it or is that for later?

Under the heading “What will it now do?”, paragraph 2.9 says

“certain decisions taken by EU bodies or courts on the validity of such rights are recognised in the UK.”

I am not entirely clear whether there is a time limit on that.

Paragraph 3.1 says

“This instrument corrects several drafting errors”.

Well done to the people who found them. Have any more been found since the SI was printed? It would not be unusual if there had been.

Paragraph 7.5 says:

“As far as possible, the approach remains to ensure that the law which currently applies in the UK will continue”.


Does the department have any particular worries about that statement? If it does, they should be brought forward and perhaps we should take action to try to remove them.

I confess, having read paragraphs 7.8 and 7.9 several times now, that I—as someone who is reasonably good at reading and understanding legislation—find them a little confusing. When it is transposed into directions for interested parties, could someone have a go at an Explanatory Memorandum that is slightly less confusing?

To paragraph 7.14, I say hooray and well done. It says:

“This also provides legal certainty”,


and that is vital.

Are paragraphs 7.18, 7.19 and 7.20 saying that these continue without having to apply through the World Intellectual Property Organization? If not, I need some explanation why.

On paragraph 7.21, I am so pleased about the work done on design courts and unregistered designs. It is very important to the creative industry.

Paragraph 7.22 says:

“There is an exception where the grounds for revocation/invalidity would not apply if considered under UK law.”


That needs clarification; I can see some of the major companies asking themselves what exactly is being talked about there.

Paragraph 7.25 says,

“for up to five years”.

Was any consideration given by the UK Government to whether that should be lengthened? The Minister said at the beginning that we are essentially an innovative country. We are on the frontiers of all these technologies, and here we are, going on our own beyond the EU. It seems to me that maybe we will miss a trick if we stick to five years. We want to encourage more and more UK research, as the Minister said in his opening statement.

Paragraph 7.30 talks about UK export wording. This paragraph is very important. Have the chambers of commerce all been informed? They are probably, alongside the specialist groups such as the ABPI and the chemical industries, et cetera, the people who will be getting questions from relevant companies. I just hope somebody has briefed them. Consultation is talked about under paragraph 10; the ABPI and agrochemical companies are important, and I am sure there are others.

I turn to paragraph 10.3. Do I understand that this is all ready to go in terms of the forms that will be required and so on or are we still waiting on that? One of the criticisms that has been made by a number of trade associations is that while they understand the principle of what is happening when we leave on 1 January, they have yet to see any of the forms associated with it, so how can they prepare for it? I note under paragraph 10.4 that in reality they had only 22 days in which to respond, and that was during a holiday period, so one wonders whether that was enough time. Paragraph 10.5 states:

“Responses generally approved of the drafting of the legislation.”


The question arises: what did they not approve of and is that important to British industry? Finally, under monitoring and review, basically in my judgment: when will this be done and how regularly will it happen?