United Kingdom Internal Market Bill

Debate between Lord Naseby and Lord Falconer of Thoroton

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

[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.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Naseby and Lord Falconer of Thoroton

Monday 15th November 2010 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, I beg to move the Motion standing in my name on the Order Paper to refer this Bill to the Examiners to consider whether it is hybrid. This point arises before we move to Second Reading.

I should say that my noble friend Lady Royall, the shadow Leader of the House, gave notice of this point to the noble Lord, Lord McNally, last Monday, when she sent him the advice of leading counsel on which we rely. That advice has been placed in the Library since Friday of last week. My noble friend Lady Royall suggested that the noble Lord, Lord McNally, refer the matter to the Examiners straightaway. If the Examiners say no to hybridity, there will be no delay. If, however, they conclude that the Bill is hybrid, the consequences could be worked on as soon as possible to ensure a transparent process within the Lords’ Standing Order to select exemptions to this new Bill. The noble Lord, Lord McNally, did not reply but sent my noble friend Lady Royall by return a letter that he had received from the Clerk of Public and Private Bills in this House saying that he considered that the Bill was not prima facie hybrid on the basis that it engaged no private interests. It is our case that the Bill is hybrid.

Before I come to that argument, perhaps I may set out the consequences of such a reference today. Referring the Bill to the Examiners, which is what the Motion seeks, would result in the Examiners seeking argument from those who say the Bill is hybrid and those who say that it is not. As experts and without political bias, they would then determine whether it is hybrid. If they conclude that the Bill is hybrid, the Standing Orders of this House require that the procedures for private Bills have to be followed in part. Those include the setting up of a Select Committee of this House to hear argument and evidence called by those whom the Committee allow to petition it on the issue of whether there should be any other exceptions to the new rules apart from Shetland and Orkney and the Western Isles. The matter of exceptions would then be decided by a fair evidence-based process where the reasoning was transparent for all to see, not by what appears to be the fiat of the Government without explanation.

The Bill is divided into two main parts. Part 1 provides for a change to our electoral system from first past the post to an alternative vote system and it also provides for a referendum on whether to introduce such a system. If the vote is passed in the referendum, the Minister will be obliged by the terms of the Bill to introduce the alternative vote system. Part 2 introduces a whole new method for fixing the boundaries of constituencies. Instead of it being a matter of judgment for the Boundary Commission as to the most expedient place for the boundaries, taking into account geographical and other community factors, county and ward boundaries and the likely number of constituencies in a constituency, under the new Bill the role of the Boundary Commission will be primarily to ensure that every constituency under 13,000 square kilometres contains the same number of constituents plus or minus 5 per cent. Constituency boundaries will be allowed to pass through county and ward boundaries. Numbers will be all.

The consequence of such an approach is certain to be, for example, that the Isle of Wight will be divided into two and the constituency of one of the Isle of Wight’s MPs will be joined to the mainland. Constituencies will frequently cross county boundaries. There is bound to be at least one constituency that crosses the boundary between Devon and Cornwall. The two constituencies that are to be excluded from this approach are the Western Isles and Orkney and Shetland. The relevant provision reads:

“Preserved constituencies … There shall continue to be … a constituency named Orkney and Shetland, comprising the areas of the Orkney Islands Council and the Shetland Islands Council”,

and,

“a constituency named Na h-Eileanan an Iar, comprising the area of Comhairle nan Eilean Siar”.

The Explanatory Notes may be helpful to some Members of the House:

“Rule 6 provides for the two Scottish island constituencies of Na h-Eileanan an Iar (the Western Isles) and Orkney and Shetland to be preserved, and for the electorates of those two constituencies to be removed from the UK electorate and the Scottish electorate for the purposes of calculating the UK electoral quota”.

The Bill excludes those two constituencies from the effect of the new approach. Note that this is not an exception of the normal sort where, for example, no constituency can be above 13,000 square kilometres, which applies to the whole country; this is just two constituencies being taken out of the Bill. We support an approach that makes constituencies more equal in size, but we recognise that there should be a proper and transparent basis for determining which communities should be kept out of the Bill. The justification for the two exceptions was given by a Mr Harper, a junior Minister, who said:

“These constituencies have small populations and are not easily reached from the mainland. They have already been recognised either in legislation or in practice in previous boundary reviews as justifying particular treatment. We have concluded therefore that exceptions for these areas are justified by their particular geography”.—[Official Report, Commons, 27/7/10; col. 1071W.]

To that answer, I say the following: first, there are many other constituencies with just as small populations that are not being preserved and no explanation is given for their exclusion; secondly, the Western Isles have never been so recognised before in legislation; thirdly, remoteness applies just as much to the many isles of Argyllshire as it does to these two islands; fourthly, geography could be applied to justify communities such as Anglesey or the Isle of Wight being excluded. No consistent basis is being advanced.

Is the Bill hybrid? The House of Lords Companion to the Standing Orders defines hybrid Bills as:

“public bills which are considered to affect specific private or local interests, in a manner different from the private or local interests of other persons or bodies of the same class, thus attracting the provisions of the Standing Orders applicable to private business”.

Is the Bill hybrid? I submit that it is. The easiest definition of hybridity comes from the Speaker in another place in 1988 in rejecting a claim to hybridity in respect of the Education Reform Bill that was passed in 1988. He said:

“In considering the question of hybridity, I have to look at the terms of the Bill. Provided that the formula or description used in the Bill deals with a category or class which is relevant to the purposes of the Bill and the Bill does not expressly specify or single out an individual or corporation within the category for different treatment, the Bill is not hybrid”.—[Official Report, Commons, 1/12/87; col. 770.]

This Bill does precisely what the Speaker said in 1988; it singles out two constituencies that are not to be subject to a formula or description laid down in the Bill. Instead, they are singled out for special treatment.

[Lord Naseby]

Can the noble and learned Lord inform the House what exactly has changed since the Bill left the other place? The challenge of hybridity took place in another place and the Speaker was not called upon to rule. All that I can say to the noble and learned Lord is that, in the five years when I had the privilege of being Chairman of Ways and Means, there was never a single instance in which the upper House challenged the lower House on hybridity.

[Lord Falconer of Thoroton]

No ruling has been given on hybridity by the other place and I would strongly urge this House not to regard itself as bound by the other place, which looks at constitutional issues in an entirely different way from us. The matter was never considered by the House of Commons. If this House were to say, “Once the House of Commons has not considered it, we are not to consider it”, that would be a fundamental abdication of our position.