Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018

Debate between Lord Tyler and Lord Henley

Monday 14th January 2019 Grand Committee

[Lord Henley]

My Lords, no communications have come to me to the effect that the noble Lord wished to take these three regulations separately. My understanding was that we would take them together, and I thought that it would be convenient to the Committee. I have now amended what I am going to say and, if the noble Lord is happy with this, I will go back to what I said originally and move and speak to the first one, and if the noble Lord and his noble friend, the noble Lord, Lord Stevenson, will bear with me, we will take all three separately. I have a number of speeches, and I can use whichever the noble Lord prefers to have first. However, he would probably prefer to have the first one, concerning the Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations, which were laid before the House on 27 November.

This draft instrument ensures that the United Kingdom’s domestic rules for the exhaustion of intellectual property rights will continue to function in a predictable manner in a scenario where there is no negotiated agreement on the terms of the UK’s exit from the EU. The UK is recognised for its strong intellectual property regime—

[Lord Tyler (LD)]

My Lords, can the Minister expand for a moment on what he has just said? Am I to understand that these regulations, like the SIs we had in Grand Committee last Wednesday, are a government contingency planning proposal for the very exceptional circumstances of a no-deal exit from the EU on 29 March? If so, can he consider the contribution from his noble friend Lord Deben during our sitting last Wednesday? He and many others pointed out that, since the Prime Minister is now making it clear that the no-deal outcome is not her Government’s preference—she said that it is both undesirable and unlikely—what we are doing this afternoon concerns the very speculative situation which the Government themselves are opposed to. Can the Minister confirm that?

[Lord Henley]

My Lords, what we are doing concerns the event the noble Lord is addressing—that is, if there is no deal. If there is no deal, we will need these regulations; if there is a deal, they are irrelevant. It is as simple as that.

--- Later in debate ---

[Lord Henley]

My Lords, I thought that we were debating the first set of regulations at this stage. We will get on to second set in due course as the noble Lord wishes.

As the noble Baroness, Lady Kingsmill, and I know, there will obviously be changes for businesses as a result of Brexit. There will be different changes for businesses if there is a no-deal Brexit. These regulations are about dealing with the no-deal scenario. The noble Baroness, the noble Lord and all noble Lords would think we were wrong if we did nothing about the possibility of a no-deal Brexit. That is why we are moving a number of regulations at this stage and why we published various technical notices and made them available to industry. That is why the original drafts of the technical notices led to various improvements.

At this stage, we know that business wants, in the main, to have the status quo in the event of a no-deal Brexit, and we hope that it will also have the status quo if there is a deal. We want to see what the deal is first and get that dealt with. However, in the event that it happens, we also have to make provision for there being—

[Lord Tyler]

My Lords—

[Lord Henley]

I will give way to the noble Lord in a minute, when I have finished. I can only answer points if I am allowed to complete them as they come up. We will try to get the no-deal provision set up in the manner which is best for business, to the extent that we can deal with no deal. If there is no deal, there will obviously be changes that we have no control of. The noble Baroness and I know that; everyone does. If there is a deal, as I hope, then everything is fine. I doubt that the noble Lord, Lord Adonis, would be happy but then he probably never will.

Trade Marks (Amendment etc.) (EU Exit) Regulations 2018

Debate between Lord Tyler and Lord Henley

Monday 14th January 2019 Grand Committee

[Lord Henley]

My Lords, I will certainly look at what the Treasury is recommending. As I say, we have consulted DExEU. I can certainly give an assurance that all those whom we consult will be trusted. I am sure my noble friend Lord Deben would be the first to admit that he was possibly being mischievous when he tried to imply, merely because the word “trusted” appeared in one Explanatory Memorandum but not in another, that there was some element of a lack of trust by this Government. If any noble Lords think that is the case, I would thoroughly refute it.

[Lord Tyler (LD)]

The Minister said just now that the reason why he could not be confident of the extent of the consultation was the shortness of time. As I understand it from the Explanatory Notes, the major issues that were going to be addressed in this particular statutory instrument were laid out in the technical notice produced by the IPO back in September of last year, so there have been four months where presumably the main issues have been subject to consultation. That is not really a shortness of time; there was quite a lot of time in those four months for the consultation to take place. When he is addressing this issue in his letter, I wonder if he will be able to address why he thinks that the shortness of time in this case has caused so much difficulty in making the consultation as full and comprehensive as it should be.

[Lord Henley]

I will certainly address that in my letter and ensure that the noble Lord receives it.

I turn to the question of jurisdiction. The noble Lord, Lord Clement-Jones, asked which court has jurisdiction if the validity of the original trademark is challenged. We have made provision as to how pending proceedings before the UK courts on exit day will be dealt with: they will continue on the basis of the EU regulation. New cases brought after exit day will be dealt with by courts in the individual remaining member states.

Lastly, I turn to the point made by the noble Baroness, Lady Bowles, about the Paris convention, a point that I think she described as appealing to lawyers. Well, here is one lawyer that it does not appeal to because I do not particularly understand it. Again, it will have to be dealt with in subsequent correspondence but I am advised that the UK application will in addition enjoy the priority right claimed by the EU trademark application. I hope that helps, but if I can expand on that matter then I shall do so.

I was about to move the Motion but I can see that I am not going to be allowed to, so I will give way for one last time to the noble Lord, Lord Clement-Jones.