Draft Patents (Amendment) (EU Exit) Regulations 2018 Draft trade marks (Amendment Etc.) (EU Exit) Regulations 2018

Alison Thewliss Excerpts

Thursday 17th January 2019 General Committees

[Alison Thewliss (Glasgow Central) (SNP)]

It is a pleasure to serve under your chairmanship, Sir Henry. Having been on lots of financial services SI Committees, I am glad to have a change of scene.

I want to pick up where the Opposition Front Bencher left off. None of us wants these regulations. It seems bizarre that we spend so much time and money debating statutory instruments that we hope we will never have to use; we are in a quite antediluvian situation. I hope very much that in the coming days the Prime Minister will take the threat of no deal completely off the table, given the damage that it would do.

We do not know what damage the statutory instruments before us might do, because there is no impact assessment. The same was true in another delegated legislation Committee I was in last week, where I raised the same issue. As a Member of this House, I am very uncomfortable passing legislation in Committee, away from much scrutiny, without an impact assessment from the Government. For larger pieces of legislation, we would have an impact assessment. For other pieces of legislation, we might also get evidence. I am pleased that Lilly has sent us all a letter, because mostly, when we look at these measures, we have no evidence—only the Government’s word. I am not saying the Government’s word cannot be trusted, but that is all we have to go on, and that is not good enough for this or any other piece of delegated legislation that we consider. It feels as though these DLs are being rushed through, and the lack of evidence and an impact assessment is deeply worrying.

Turning to the trademark regulations, I understand that when this SI was debated in the Lords, they were not satisfied that it was explicit enough about what would happen if an international trademark were to be challenged in the courts: would it have to be challenged in the UK courts and in the European Court of Justice? Two sets of court actions would certainly mean that there was a greater effect on businesses. The Lords also sought clarity on the consultation process. Paragraph 10.1 of the explanatory memorandum states:

“In order to ensure that the changes being made would work in practice for users of the system, and would not result in any unintended consequences, the Intellectual Property Office held informal discussions with a small group of selected individuals with expertise in the relevant areas, or in patent law generally, to get feedback on the legal drafting of the instrument. Participants were provided with a draft of the instrument in advance.”

Businesses, not just lawyers, should have been consulted on the changes, given the scale of the differences. It is quite worrying.

The draft Patents (Amendment) (EU Exit) Regulations 2018 were also considered in the Lords, where there was similar feedback on the consulting process and the lack of widescale engagement with the legislation. Again, the Government seem to have engaged with people they already know, rather than having consulted more widely on the impact on businesses across these islands. The explanatory memorandum also notes:

“An Impact Assessment has not been prepared for this instrument because...it is designed to maintain the status quo”.

Preparation for a no-deal Brexit is not really the status quo; it is actually something quite different.

IP laws are important for innovation and for subsequent growth within the economy. Industry professionals are concerned that the exclusivity terms for medicine patents would be reduced in the UK. Anecdotally, my hon. Friend the Member for Central Ayrshire (Dr Whitford) has raised this time and again on the Floor of the House and in other places. She is concerned that companies have said that a product would never be launched in the UK before the EU. That could have a serious impact on the competitive advantage to Scotland’s life sciences industry, which is an important growth industry in Scotland’s economy. She is also concerned about the impact on research and universities if products were no longer produced or trialled here.

My hon. Friend the Member for Livingston (Hannah Bardell) has also raised the issue recently in the House. She has a medicines testing facility in her constituency. She is concerned about where it sits within these measures, because if fewer medicines are trialled and produced here, there will be fewer things to be tested, and that will have an impact on specialist jobs in her constituency.

I understand that Lord Warner raised concerns expressed by the BioIndustry Association, which said:

“Eroding intellectual property protection whilst also seeking global free trade deals sends a signal to industry that the UK Government may…erode protection as it seeks to quickly conclude deals. This would further impact the industry in the UK and further inward foreign investment.”

Scotland does fairly well when it comes to foreign direct investment—it enjoys the highest amount in the UK outside London—so this is a cause for deep concern. We want to be able to be part of that global industry, but not at the price of standards.

It is difficult to accept the Government’s assertion that these regulations would have a minimal effect on business; for companies conducting business outside the UK, it simply cannot be the case. It is very clear from Lilly’s letter how it will be affected. It says:

“We strongly believe that this statutory instrument must be amended or withdrawn.”

How does the Minister intend to deal with its serious concerns? It says:

“IP protection in the UK would be significantly diminished”

under a no-deal Brexit. The letter also laid out other concerns, and they need to be addressed because of the impact on companies, jobs and investment in wider society.

This is in the wider context of rising tensions over intellectual property, especially between the US and China. Scottish firms and consumers need the economic weight of the EU and the protection of the world’s largest trading bloc more than ever. Brexit will only reduce the protection of Scottish intellectual property on the world stage. This is a huge concern for universities, which have spin-offs and want to develop new products. I have that in my constituency, at Strathcylde University. It is keen to be innovative, but it needs reassurance on the issue.

To pick up on the concerns of the hon. Member for Gloucester, Scotland has many protected GIs, the most notable being Scotch whisky. It is an iconic industry for Scotland, and we need to make sure that it is not put at risk at any point. Our other GIs include Scottish salmon, Scottish lamb, Scottish beef, Arbroath smokies, Shetland lamb, Orkney beef, Orkney lamb, Bonchester cheese, Stornaway black pudding, Scottish wild salmon, native Shetland wool and traditional Ayrshire dunlop. We have lots of wonderful products in Scotland that we wish very much to protect.

The political declaration says:

“Noting the protection afforded to existing geographical indications in the Withdrawal Agreement, the Parties should seek to put in place arrangements to provide appropriate protection for their geographical indications.”

We do not have very long to go; there are 71 days until exit day, if I am correct. Still waiting to see and seeking to put things in place is not really good enough for me, and it is not good enough for the protection of these industries. With under three months to go, it is a disgrace that the Government are only now getting round to the details. Businesses, along with voters, have lost belief in the Government’s ability to navigate Brexit.

I reiterate my strong concerns about the lack of an impact assessment. I am not comfortable passing this piece of delegated legislation without it. The Government need to get that put in place. It is a huge concern that we are doing this blindfolded, without an impact assessment to give us an idea of the costs to which the measures would give rise.