Social Media: Catfishing

Lord Stevenson of Balmacara Excerpts

Wednesday 30th October 2024 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

Ofcom published its latest vision of the media literacy strategy just a couple of months ago, so its implementation is very much in its infancy. The Government very much support it and we will work with Ofcom very closely to roll it out. So Ofcom has a comprehensive media literacy strategy on these issues, but as we all know, schools have to play their part as well: it has to be part of the curriculum. We need to make sure that children are kept safe in that way.

The noble Viscount referred to AI. The rules we have—the Online Safety Act and so on—are tech-neutral in the sense that, even if an image is AI generated, it would still fall foul of that Act; it does not matter whether it is real or someone has created it. Also, action should be taken by the social media companies to take down those images.

[Lord Stevenson of Balmacara (Lab)]

My Lords, as a survivor of the seven-year long period during which the Online Safety Act was developed, I have to confess that I do not think we ever came across the word “catfishing”. In a quick moment, I looked it up on Google—and, of course, it has not even reached Google yet. It talks about those who wish to catch fish, rather than catfishing. I make a joke, but this is a serious issue and the Minister is trying to address it very fairly. The problem is that the technology is so efficient and quick that the offences are moving ahead of our ability as legislators to make the necessary laws. The key element of the Online Safety Act is that that which is illegal offline is also illegal online. When will we see the necessary offence on the statute book?

[Baroness Jones of Whitchurch (Lab)]

My noble friend is quite right about the expression “catfishing”. I had to check the definition before I came here today, and for anyone who wants that clarification, it is when someone sets up a fake online identity and uses it to trick and control others. It covers a whole range of offences, including scamming people out of money, blackmailing them or trying to harm them in another way.

On my noble friend’s general point, yes, we are of course looking at how we can match online safety with offline safety; that is part of ongoing work. But for the time being, as I have said several times from the Dispatch Box, rolling out the Online Safety Act is the crucial thing. We are within touching distance, and it will make a huge difference when it is fully implemented. That is our priority at this time.

Communications Act 2003 (Disclosure of Information) Order 2024

Lord Stevenson of Balmacara Excerpts

Monday 28th October 2024 Grand Committee

[Lord Stevenson of Balmacara (Lab)]

My Lords, I begin with a comment that I hope will not be taken badly by either my noble friend the Minister or the large number of civil servants who have been involved in this Bill over the years. Colleagues may recall that the Bill took seven years to pass through the various processes and procedures of Parliament, including initial Green Papers and White Papers and then scrutiny by the Joint Select Committee, of which my noble friend opposite was also a member, and it seems slightly surprising and a bit odd that we are dealing with what seems to be an administrative oversight so late in the process. I do not expect a serious response from the Minister on that, but I wanted to put on the record that we are still very much aware of the fact that legislation has its faults and sometimes needs to be corrected, and we should perhaps be humble in expecting that the material we finally agree in Parliament is indeed the last word on things.

Having said that, I think I follow the noble Lord, Lord Clement-Jones, on this point: the subsequent legal analysis, which has identified a potential gap in provision on this instrument, tries to tidy it up but, in doing so, has left me a bit confused. I simply ask the Minister to make it clear to me when she responds that I am reading it correctly. The worry that has been exposed by this subsequent legal analysis is about the sharing of information when Ofcom is using its powers to address issues with the companies with which it has an engagement. Indeed, the whole purpose of the Bill is to ensure that companies are taking their burden of making sure that the Bill works in practice. There may be a deficiency in terms of what the Secretary of State has separate powers to do, but my confusion is that the Explanatory Memorandum says:

“The Secretary of State has several key functions relating to the implementation of the framework under the”


Online Safety Act. It is obviously sensible, therefore, that the sharing of information that Ofcom gathers is available for that. But is that all the powers of the Secretary of State or only the powers of the Secretary of State in relation to the Online Safety Act? The Explanatory Memorandum says:

“If Ofcom were not able to share business information relating to these areas”—


that is, the areas directly affected by the Online Safety Act—

“there is a risk that implementation and review of the framework could be delayed or ineffective”.

I accept the general point, but, to pull up the point made by the noble Lord, Lord Clement-Jones, is this an open invitation for Ofcom to share information that does not relate to its powers in relation to the Online Safety Act with the Secretary of State and, therefore, something for the Secretary of State to take on as a result of a slightly uncertain way of doing it? Are there are any restrictions to this power as set out in that paper? I could mention other points where it comes up, but I think my point is made.

The noble Lord, Lord Clement-Jones, also touched on the point that this is a power for Ofcom to share with the Secretary of State responsible for Ofcom, which is fair enough, but, as the Explanatory Memorandum points out:

“There are also certain functions relating to definitions conferred on Scottish and Welsh Ministers and Northern Ireland departments”—


presumably now Ministers—which may also be “relevant persons” of the Act, but we are not given much on that, except that

“these are unlikely to require business information for their exercise”.

I would like a bit more assurance on that. Again, that might be something for which the department is not prepared and I am quite happy to receive a letter on it, but my recollection from the discussions on the Online Safety Bill in this area, particularly in relation to Gaelic, was that there were quite a lot of powers that only Scottish Ministers would be able to exercise, and therefore it is quite possible that business activities which would not be UK-wide in their generality and therefore apropos of the Secretary of State might well be available to Ofcom to share with Scottish Ministers. If it is possible to get some generic points about where that is actually expected to fall, rather than simply saying that it is unlikely to require business information, I would be more satisfied with that.

[Viscount Camrose (Con)]

My Lords, I thank the Minister for setting out this instrument so clearly. It certainly seems to make the necessary relatively simple adjustments to fill an important gap that has been identified. Although I have some questions, I will keep my remarks fairly brief.

I will reflect on the growing importance of both the Online Safety Act and the duty we have placed on Ofcom’s shoulders. The points made by the noble Lord, Lord Clement-Jones, about the long-standing consequential nature of the creation of Ofcom and the Communications Act were well made in this respect. The necessary complexity and scope of the work of Ofcom, as our online regulator, has far outgrown what I imagine was foreseeable at the time of its creation. We have given it the tasks of developing and enforcing safety standards, as well as issuing guidance and codes of practice that digital services must follow to comply with the Act. Its role includes risk assessment, compliance, monitoring and enforcement, which can of course include issuing fines or mandating changes to how services operate. Its regulatory powers now allow it to respond to emerging online risks, helping to ensure that user-protection measures keep pace with changes in the digital landscape.

In recognising the daily growing risk of online dangers and the consequent burdens on Ofcom, we of course support any measures that bring clarity and simplicity. If left unaddressed, the identified gap here clearly could lead to regulatory inefficiencies and delays in crucial processes that depend on accurate and up-to-date information. For example, setting appropriate fee thresholds for regulated entities requires detailed knowledge of platform compliance and associated risks, which would be challenging to achieve without full data access. During post-implementation reviews, a lack of access to necessary business information could hamper the ability to assess whether the Act is effectively achieving its safety objectives or whether adjustments are needed.

That said, I have some questions, and I hope that, when she rises, the Minister will set out the Government’s thinking on them. My first question very much picks up on the point made—much better than I did—by the noble Lord, Lord Stevenson of Balmacara. It is important to ensure that this instrument does not grant unrestricted access to business information but, rather, limits sharing to specific instances where it is genuinely necessary for the Secretary of State to fulfil their duties under the Act. How will the Government ensure this?

Secondly, safeguards, such as data protection laws and confidentiality obligations under the Communications Act 2003, must be in place to guarantee that any shared information is handled responsibly and securely. Do the Government believe that sufficient safeguards are already in place?

Thirdly, in an environment of rapid technology change, how do the Government plan to keep online safety regulation resilient and adaptive? I look forward to hearing the Government’s views on these questions, but, as I say, we completely welcome any measure that increases clarity and simplicity and makes it easier for Ofcom to be effective.

Online Safety Act 2023 (Priority Offences) (Amendment) Regulations 2024

Lord Stevenson of Balmacara Excerpts

Monday 28th October 2024 Grand Committee

Further, it is vital we ban the non-consensual taking and creation of sexually explicit images and videos. I am very grateful that the noble Lord, Lord Clement-Jones, already mentioned my Private Member’s Bill—its Second Reading is coming up in December—as I believe prevention is key to tackling this issue, and we must do everything in our power to prevent women suffering this digital violence. To conclude, I fear we are letting victims down. Although this SI is a very welcome small stopgap, we must go further in protecting women from this appalling abuse.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I started my discussion on the previous instrument on a slightly negative note. I want to change gear completely now and say how nice it is to see the first of the SIs relating to the Online Safety Act come forward. I welcome that.

Having said that, may I inquire what the Government’s intention is in relation to the Parkinson rule? I think I am correct in saying that we wish to see in place an informal but constant process by the Government when they bring forward legislation under the Online Safety Act, which would be offered to the standing committees so that they could comment and make advice available to Ministers before the Secretary of State finally approved any such legislation. This would primarily be concerned with the codes of practice, but this is exactly the sort of issue, well exemplified by the noble Baroness, Lady Owen, where there is still some concern about the previous Government’s approach to this Bill.

If I recall, this rule was in one of the later amendments brought in towards the end of the process. Rather unlike the earlier stuff, which was seven years in the making, this was rushed through in rather less than seven weeks as we got to the end of discussions on the Online Safety Bill. To get the deal that we all, across the political parties, hoped would happen, and so that the country would benefit from the best possible Act we could get out of the process, there were a number of quite late changes, including the question about deepfake issues, which was not given quite the scrutiny that it could have had. Of course, we are now receiving discussion and debate on those issues, and it is important that we understand them and the process that the Government will take to try to resolve them.

This question of having consent was hotly debated by those who led on it during the time the Bill was before your Lordships’ House. I felt the arguments very clearly came out in favour of those who argued that the question of consent, as mentioned by the noble Lord, Lord Clement-Jones, really is not relevant to this. The offence is caused by the circulation of material, and the Act should contain powers sufficient for the Secretary of State to be satisfied that Ofcom, in exercising its regulatory functions, has the powers to take down this material where it is illegal.

There are two issues tied up in that. I think all of us who have spoken in this debate are concerned that we have not really got to the end of the discussion on this, and we need to have more. Whether through the Private Member’s Bill that we will hear about in December or not, the Government need to get action on that. They need to consult widely with the committees, both in the Commons and here, to get the best advice. It may well be that we need further debate and discussion in this House to do so.

Having said that, the intention to clarify what exactly is legal lies at the heart of the Online Safety Act. The Act will not work and benefit the country if we go back to the question of legal but harmful. The acid test for how the material is to be treated by those who provide services to this country has to be whether it is legal. If it is illegal, it must be taken down, and there must be powers and action specifically for that to happen. It is unfortunate that, if material is not illegal, it is a matter not for the Government or Parliament but for the companies to ensure that their terms of service allow people to make judgments about whether they put material on their platforms. I hope that still remains the Government’s position. I look forward to hearing the Minister’s response.

[Viscount Camrose (Con)]

My Lords, I shall also start on a positive note and welcome the ongoing focus on online safety. We all aim to make this the safest country in the world in which to be online. The Online Safety Act is the cornerstone of how all of us will continue to pursue this crucial goal. The Act imposed clear legal responsibilities on social media platforms and tech companies, requiring them actively to monitor and manage the content they host. They are required swiftly to remove illegal content and to take proactive measures to prevent harmful material reaching minors. This reflects the deep commitment that we all share to safeguarding children from the dangers of cyberbullying, explicit content and other online threats.

We must also take particular account of the disproportionate harm that women and girls face online. The trends regarding the online abuse and exploitation that disproportionately affect female users are deeply concerning. Addressing these specific challenges is essential if we are to create a truly safe online environment for everyone.

With respect to the Government’s proposed approach to making sharing intimate images without consent a priority offence under the Online Safety Act, this initiative will require social media companies promptly to remove such content from their platforms. This aims to curb the rise in abuse that has been described as “intolerable”—I think rightly—by the Secretary of State. The intent behind this measure is to prevent generations becoming “desensitised” to the devastating effects of online abuse.

Although this appears to signal a strong stance against online harm, it raises the question of what this designation truly accomplishes in practical terms. I am grateful to the Minister for setting this out so clearly. I am not entirely sure that I altogether followed the differences between the old offences and the new ones. Sharing intimate images without consent is already illegal under current laws. Therefore, can we not say that the real issue lies in the absence not of legal provision but of effective enforcement of existing regulation? We have to ensure that any changes we make do not merely add layers of complexity but genuinely strengthen the protections available to victims and improve the responsiveness of platforms in removing harmful content.

With these thoughts in mind, I offer five questions. I apologise; the Minister is welcome to write as necessary, but I welcome her views whether now or in writing. First, why is it necessary to add the sharing of intimate images to the list of priority offences if such acts are already illegal under existing legislation and, specifically, what additional protections or outcomes are expected? The Minister gave some explanation of this, but I would welcome digging a little deeper into that.

Secondly, where consent is used as a defence against the charge of sharing intimate images, what are the Government’s thoughts on how to protect victims from intrusive cross-examination over details of their sexual history?

Thirdly, with respect to nudification technology, the previous Government argued that any photoreal image was covered by “intimate image abuse”—the noble Lord, Lord Clement-Jones, touched on this issue well. Is there any merit in looking at that again?

Fourthly, I am keen to hear the Government’s views on my noble friend Lady Owen’s Private Member’s Bill on nudification. We look forward to debating that in December.

Fifthly, and lastly, what role can or should parents and educators play in supporting the Act’s objectives? How will the Government engage these groups to promote online safety awareness?

Digital Markets, Competition and Consumers Bill

Lord Stevenson of Balmacara Excerpts

Report stage
Wednesday 13th March 2024 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, it is very good to see the full team back on the trading standards amendments. I congratulate all three noble Lords on their championing of trading standards. They need the powers that are being argued for in these amendments; they are the unsung champions of the consumer, and we should support them.

My main purpose in rising is to speak to Amendments 69, 91, 92 and 152. As regards Amendment 69, on misleadingly similar parasitic packaging, it was encouraging to hear the Minister confirm in Committee that the prohibition of misleading actions in Clause 224 and the banned practice in paragraph 14 of Schedule 19 will address the long-standing unaddressed practice of misleadingly similar packaging.

However, those provisions matter little if they are not enforced. During consultations and the debate on the Consumer Protection from Unfair Trading Regulations 2008, the then Government stressed that public enforcement would be effective and efficient. This has not proved to be the case, with just one enforcement action by trading standards in 2008—albeit a successful one. If shoppers are to be protected from this misleading practice, there must be a realistic expectation that the Bill’s provisions will be enforced.

Historically, the Government have placed the duty on public enforcers. That is unrealistic, as trading standards face diminishing resources. The CMA stated clearly that misleadingly similar packaging is a consumer protection, not an IP, issue, following its investigation of the groceries market in 2008. Yet is has undertaken no hard or soft enforcement and did not include it in its recent scrutiny of the grocery sector; there is no sign that it will take a different approach in the future. There are no other realistic public enforcement options available. For the Bill to make a difference, it is essential that affected branded companies are granted powers to bring civil cases using the Bill’s provisions on the specific practice of misleadingly similar packaging alone. It has been ignored by public enforcers for the last 15 years, despite the many examples that appear year on year. Granting affected brand owners such powers would mean that shoppers would have the protection envisaged by the Bill, and affected brand owners would have more effective redress at no cost to the taxpayer.

Amendments 91 and 92 concern an area of concern for the retail industry, expressed by its representative body, the British Retail Consortium, in which I was an active participant more years ago than I care to remember. The well-established and well-used primary authority system enables a business to request assured advice from a primary authority that it has appointed. Provided that the business follows the advice, it cannot be prosecuted by any local authority for its actions. Under the Bill, the CMA will receive additional powers on consumer protection, whereby it will move to administrative fines that are potentially very high. I am informed that the CMA currently refuses either to provide assured advice of its own or to accept primary authority advice. It says that it may not agree with the advice and that it would be too costly, ignoring the fact that it is at a cost to the business. That undermines the primary authority system and will do so even further when the CMA receives its new fining powers because businesses will feel unable to rely totally on primary authority advice for what they are doing in the overlapping areas.

The amendments attempt to deal with that, either by requiring the CMA to provide assured advice itself, as set out in Amendment 91, or, perhaps more practically, by accepting primary authority advice as binding up to the point that it may be repealed if it is shown to be inaccurate, as set out in Amendment 92. That would mean that a business could rely on it for anything it does up to any repeal. It should also be remembered that the CMA can, if it wishes, act as a supporting regulator, whereby it can be called on to provide its view to a primary authority when that authority is looking at providing advice in an area of relevance and overlap to the CMA.

Finally, it should be noted that the CMA has decided to provide what is, in effect, assured advice on competition matters in the sustainability area; namely, it has agreed not to prosecute a business that seeks its advice and follows it in a small area on the competition side. This means that, in principle, the CMA does not seem to be opposed to such an approach. Green claims on the consumer side are a key area of uncertainty for business, an area where assured advice would in fact be most useful.

I turn to my final amendment, Amendment 152. As I explained in Committee, standard essential patents are patents that are necessary to implement an industry standard, such as wifi or 5G. Because the market is locked into a standard, and to prevent abuse of the market power that this situation conveys, SEP owners are required to license their SEPs on fair terms. Unfortunately, there is widespread abuse of this monopoly power by SEP holders. The principal issue raised with me by the Fair Standards Alliance is the threat of injunctions; the costs to many businesses can be ruinous. This tactic not only threatens innovation by UK businesses but represents a strategic risk for UK priorities, such as 5G infrastructure diversification and smart energy network security, by limiting the competing players. The availability of injunctions for SEPs gives foreign SEP holders the ability to prevent others in the UK from entering, succeeding and innovating in those markets.

The Minister, the noble Lord, Lord Offord, gave a somewhat encouraging response in Committee—I keep using the word “encouraging” about his responses, although I keep hoping for better—to the effect that the Government would set out their thinking in the very near future, and that that would include the question of injunctions.

After many months of consultation, the IPO has published its 2024 forward look on this issue. It has reported its findings to Ministers and has agreed key objectives concerning SEPs. Those are

“helping implementers, especially SMEs, navigate and better understand the SEPs ecosystem and Fair Reasonable and Non-Discriminatory (FRAND) licensing … improving transparency in the ecosystem, both pricing and essentiality; and … achieving greater efficiency in respect of dispute resolution, including arbitration and mediation”.

Although the IPO has confirmed that SMEs are especially disadvantaged by the current SEP regulations, it states, disappointingly, on injunctions that

“we have concluded that we will not be consulting on making legislative changes to narrow the use of injunctions in SEPs disputes”,

with very limited justification for the decision, saying simply that it was taken after

“careful consideration of the evidence, operation of relevant legal frameworks and international obligations”.

The Coalition for App Fairness has pointed out to me that a day after the IPO announcement, the European Parliament voted by a large majority to approve its own SEP regulation. The EU framework will include the creation of an SEP register, database and essentiality checks; a defined maximum total royalty for an SEP; and an independent, expert-led conciliation process to establish the fair price for SEPs, which, crucially, will block the use of injunctions while the process is taking place. That seems entirely appropriate. The EU has proved that such a regulatory regime can be delivered; why cannot the UK Government, with all the freedom of Brexit? What is the basis for the IPO decision? What evidence, legal frameworks and international obligations prevent it from dealing with and legislating on injunctions? Why cannot the IPO likewise establish a truly fair SEP licensing ecosystem?

The least the Government can do is give more detail to the many SMEs affected by this decision. The forward look states, rather lamely:

“The IPO will continue engagement with relevant industry and institutions to continue to inform our ongoing policy development and implementation of those actions set out above”.


What on earth does that entail? That is pretty mealy-mouthed. What benefit will there be from that?

[Lord Stevenson of Balmacara (Lab)]

My Lords, this is a wide-ranging group; there is good news hidden in the middle of it, and bad news—we will have to wait for the Minister to respond to get a full picture. Others have spoken in some depth and so I will not try to repeat what has been said. I certainly will not try to follow the noble Lord, Lord Clement-Jones, whose expertise exceeds the combination of everybody’s in the Chamber at present. On SEPs, I can only stand back in amazement that he has been able to understand what is being recommended by the IPO, let alone to have come forward with a plan that might take us a bit further down the track that we clearly ought to have gone down.

I turn first to the questions the noble Baroness, Lady Bennett, raised, which cut to the heart of what, is in some senses, the purpose of the Bill. I am afraid that she rather weakened her case at the end by saying that it was a much broader basis for debate and discussion than could be encompassed within this Bill; I think she saw it primarily as a way of continuing a much larger battle, and I wish her well with that. In that sense, we do not need to take this forward. However, I hope that the Government are taking note of the impacts that some of the provisions in the Bill are having, in the sense that it is not achieving the aims and objectives, which I think we all share, of making sure that we reduce carbon and try to meet targets which have been set for us in the long term on this. Therefore, greenwashing will continue, but we hope that it will be better in scope and that the focus will be more across the range of government activity.

On imitation packaging, as the noble Lord, Lord Clement- Jones, said, we have also been discussing this for a number of years in various Bills as they have come forward, and it is good that the assertion now is that in Clause 224 and Schedule 19, there will be help. However, the question is, of course, enforcement. I would be grateful if, when the Minister comes to respond, he could give us a bit more information about how that might happen in practice.

The questions raised by the noble Earl, Lord Lindsay, and supported by “the team”, as it was described, are a continuation of debates and discussions we have been having in this House for as long as I have been here—and I certainly have participated in them. It is good to see the government amendments in as far as they go, but the three remaining questions, as raised in Amendments 99, 100 and 101, need answers. I hope the Minister will expand on where the Government have taken us so far and give us some assurances.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I am not sure that the Minister has a full brief about the nature of the available enforcement. Will he write to me to provide a few more particulars and give more assurance in this respect?

[Lord Stevenson of Balmacara (Lab)]

My Lords, it is important that we unpick the point made by the noble Lord, Lord Clement-Jones, which I think was touched on but not addressed by the Minister. If we rely on civil remedies, we are not really addressing the problem that there is, in effect, an opportunity, for those who wish to, to exercise criminality; this surely cannot be left to the civil courts.

[Lord Offord of Garvel (Con)]

As some clarification is required, I am happy to write further on the matter.

Amendments 70, 71 and 93 to 98 are technical government amendments. The Bill empowers the courts to impose monetary penalties for a breach of consumer law and procedures. To accommodate the different processes by which court orders are served or enforced in Scotland and Northern Ireland, the amendments provide that prescribed penalty information may accompany an order in a separate notice, as well as being contained within it.

On government Amendments 72 to 90, on online interface and the powers of consumer law enforcers to tackle illegal content, I thank noble Lords who have contributed on this important issue. I am pleased to bring forward government Amendments 72 to 90 to give all public designated enforcers take-down powers to tackle infringing online content. The amendments enact the commitment made by the Government in their recent consultation response.

I thank the noble Lord, Lord Clement-Jones, for Amendments 91 and 92. Amendment 91 would require the CMA to provide advice on a business’s compliance with consumer law on request. It would also prevent enforcement action by any enforcer if the advice were complied with. The CMA already provides general guidance and advice on compliance. It is businesses’ responsibility to comply with the law, referring to guidance and seeking independent legal advice where necessary. It would not be appropriate to transform the CMA into a bespoke legal advice service. The amendment would also drain CMA resources from much-needed enforcement activity. Moreover, Amendment 92 compels the CMA to accept primary authority advice received by a business where that advice has been complied with. It is common practice for the CMA to consult the primary authority before taking action; this strikes the right balance and avoids binding the CMA to such advice, thus inappropriately neutering its discretion. I hope the noble Lord will agree that the purpose of a direct enforcement regime is for the CMA to enforce faster and more frequently; these amendments would diminish this objective and remove the deterrent effects of the regime.

Post Office Horizon Scandal: Compensation Payments

Lord Stevenson of Balmacara Excerpts

Monday 19th February 2024 Lords Chamber

[Lord Offord of Garvel (Con)]

Perhaps I should have been clearer: the Government are funding this company, Post Office Ltd, to effectively commission a new system to replace Horizon. It might be reasonable to assume that it will not be Fujitsu that does the second system.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I hope whoever takes on this responsibility will bear in mind the point made by the noble Lord, Lord Forsyth, that there may well be continuing problems deep inside the Post Office systems. I speak as an accountant, and I declare my interest. Basic double-entry accounting systems should never have allowed this system to have occurred. What guarantees can the noble Lord give us that a proper accounting-based system will be put in place of the current Horizon?

[Lord Offord of Garvel (Con)]

The issue here is that the sub-postmasters and sub-postmistresses who run these shops know their accounts back to front—that is the whole point. They know to a penny what they are doing from one week to the next, which is why perhaps the greatest sadness in this saga was those honourable people being told that they were alone, when in fact there were thousands of them. We are clear now that, in day-to-day operational matters, we do not have these issues. We are clear that we need to put a new system in place, which is what the Government are committed to doing.

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

Lord Stevenson of Balmacara Excerpts

Committee stage
Thursday 7th December 2023 Grand Committee

[Lord Johnson of Lainston (Con)]

I apologise to my noble friend, but that is not how I read it. It is linked to designation—that is, if origin and geographical indication conflict with trademarks. It would be logical that “established by use” is in relation to geographical indications. I am afraid that that is how I have read it. I do not think that there is an inconsistency. As with all things, I am very comfortable having a further look at it, but I think it would be an issue if we took out “established by use” and inserted

“in use prior to that date”,

which could result in applications for GIs being rejected under our amended rule, which is not required under CPTPP.

It is important to note that this authority allows the Secretary of State to restrict the use of a geographical indication if it is likely to cause confusion for any GIs that come in after accession or after this Bill becomes an Act. Clearly, she must have an eye to the UK legislative framework. The provision gives her the power to clarify the geographical indications. I do not believe that I have missed anything, but I am probably about to be corrected.

[Lord Stevenson of Balmacara (Lab)]

You are not—I would not dream of doing so—but I think the point made by the noble Lord is worth further consideration. My—relatively recent—reading of it is that we are pointing in two directions. There is a question about trademarks and how they may or may not be protected consequent on us joining the CPTPP; there is also the question of the very new idea of GIs. They are recent inventions and I do not think we have quite tracked out where they go and what they do. For example, if Melton Mowbray pies are to become a standard under which we take this forward, we need to think quite carefully about what that means in relation to the countries that we are joining, because the tradition there is completely different. I am not saying that the wording is wrong, but it would be helpful to have a discussion offline.

I have always found in these matters—others will have heard me on this—that there is a small group in your Lordships’ House who really understand and like intellectual property. It has a nasty habit of tripping you up if you do not get it right first time round, and we might be in that sort of territory here.

[Lord Johnson of Lainston (Con)]

I am grateful to the noble Lord. I hope that he does not feel that I have been tripped up by this. I am very comfortable with what we have drafted. It gives protections in the right way for GIs which are established by use, and it clarifies the difference between those and trademarks. As with all things, it is important that we have a deep discussion about this, so I am very comfortable having further debates about it. We will no doubt return to this matter, because it is important. It is not a political point to make but a technical point to ensure that we are doing it in the right way. As the noble Lord rightly pointed out, GIs are a relatively new concept. At the same time, it makes sense to ensure that our historical GIs which have been in established use are properly protected. We have the opportunity to protect them into the future against other GIs that may cause confusion with commercial intent.

I ask the noble Lord to withdraw his amendment, but, clearly, we are happy to have further discussions and I am sure that my officials will engage on that at the first possible opportunity.