Consumer Rights Bill

Lord Stevenson of Balmacara Excerpts

Wednesday 29th October 2014 Grand Committee

On remedies and solutions, we propose a new clause to give brand owners the right to take a private civil action under the consumer protection regulations as provided for in the European directive where they reasonably believe that similar packaging is likely to cause confusion or association with their packaging and/or products. That right is focused solely on similar packaging of consumer products and extends only to those adversely affected. It is a tightly focused, limited right. Such a right would ensure compliance with the European directive and other treaty obligations. The consumer would be presented with a clear, fair choice when making purchase decisions. Consumer protection would be enhanced at no cost to the public purse. Business investment in strong, compelling reputational quality and innovation would be protected. I hope the Minister will accept this amendment and at least update us when action will follow on the current consultation. I beg to move.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I was aware that the noble Lord, Lord Clement-Jones, was abroad because I have been in correspondence with him on other issues in relation to this Bill, but I had not realised that he had set up such a brilliant “counterfeit parasitic package” in his place. The noble Lord, Lord Stoneham, has done a wonderful job of presenting the case and I congratulate him sincerely on that.

I do that because I have been exposed to the original version on a number of occasions. Those of us who have sat through the various pieces of legislation emerging from BIS this year have been astonished by the persistence that the noble Lord has displayed in finding ways to introduce both these items out of a hat. Even in respect of the most unlikely of clauses, he has been able to persuade those who should know better that they were not only in their scope but were central to the whole understanding of consumer law in this area. There are a lot of prizes around Parliament, such as those for the best newcomer or the best law. We ought to have one for persistence, and the noble Lord, Lord Clement-Jones, would win that hands-down.

Having listened to the noble Lord, Lord Clement-Jones, over the years, I am aware of the arguments he uses in these matters; indeed, my speech was prepared in response to what I thought he would say. It is rather irritating, but also very gratifying, that the noble Lord, Lord Stoneham, was able to find new words for these issues. It shows that this is not just a one-man band, which is an unhelpful way of describing it, but there is a broader sense of engagement with this issue, something that the Minister should reflect on when she comes to respond.

The case on the question of copyright is a strong one. It is perplexing that until recently the Government have maintained the view that it was okay for copyrights to be excluded from any negotiations, particularly where negotiations were between a relatively unresourced creative person and a large corporation. Individual creators can be at a disadvantage when negotiating such contracts, and it is time to look seriously at the Unfair Contract Terms Act and amend it if necessary in order to ensure that the terms of engagement are more equal. I know there have been discussions on this issue, and the last time this came up the then Minister confirmed that he would meet with representatives from the various creative industries. I would be grateful if the Minister would confirm whether that meeting has taken place and, if so, tell us what the outcome was and whether there were any proposals discussed that might have ameliorated the issue. It is an interesting one, which has been bubbling away quietly, but it has now reached a point where we need to make some movement on it—doing whatever is possible through this or other measures.

On the relationship to parasitic packaging—which is a new name since we went though this last time—the case was certainly well made by both the noble Lord, Lord Clement-Jones, and the noble Lord, Lord Jenkin, who is not in his place today but has followed this subject with interest. I think it is correct to say that lookalikes are already unlawful in the United Kingdom because they are contrary to a variety of measures introduced by previous Governments, particularly the Consumer Protection from Unfair Trading Regulations 2008. The point made by the noble Lord, Lord Stoneham, was right: these regulations would have little effect if the responsible authorities—in this case it must be the trading standards people—do not have the resources to take action against those who might breach the regulations. His point, which I support, is that we need more detail from the Minister on whether trading standards are sufficiently resourced to be able to deliver on this point. For instance, will the Minister identify precisely what resources are currently being deployed in this area? Where is the responsibility for these issues physically located? There is an understanding among the trading standards authorities to locate particular responsibilities in particular areas; I would be grateful if we knew a bit more about how that will have been done in this case.

The most interesting issue is one that was touched on—but perhaps not explored as much—in the speech today: the line between confusing packaging on the one hand and the use of generic cues to signal to customers on the other. The point is that if similar packaging prompts mistaken purchases and creates false assumptions in the minds of consumers, there must be an effect on sales. If there is an effect on sales, then it is surely right for the Government either to strengthen existing powers so that they are effective or to introduce new legislation. I would be grateful if the Minister could respond to that point.

--- Later in debate ---

[Baroness Jolly]

I will drop my noble friend a line. I am sorry, that has thrown me. I was given this and told exactly where to slot it in.

[Lord Stevenson of Balmacara]

Just to pick that up and endorse it, in my researches for today I just happened to check back in Hansard and I felt it was important to reflect on this point. When this was discussed previously, the noble Viscount, Lord Younger of Leckie, said that the noble Lord, Lord Clement-Jones, had sent him a paper,

“on how the issue of unfair contracts could be addressed. I confirm at the beginning that I have received this paper and that we will consider his suggestions very carefully. It is a little early to talk about this as a formal review, but I reassure him that we will certainly discuss this and take it forward”.—[Official Report, 11/3/2013; col. 55.]

I am very heartened to hear from the noble Baroness that there has been a meeting. That is a good thing. If evidence was required from the creative industries, I am sure that it would have been supplied, so what is the hold-up?

[Baroness Jolly]

We can clarify this. The noble Viscount, Lord Younger, had a meeting to discuss this and we have asked for more detail. I hope to be able to come back with more detail on this for noble Lords, certainly before Report.

Moving to Amendment 63A, I would like to add my compliments to those of the noble Lord, Lord Stevenson, to my noble friend for speaking to this well-crafted amendment so clearly and for raising the important issue of copycat packaging. This was debated at the Committee stage of the Intellectual Property Bill in June last year and the noble Viscount, Lord Younger of Leckie, said that the Government would undertake a review into this issue.