British Steel

Baroness McIntosh of Pickering Excerpts

Wednesday 24th July 2019 Lords Chamber

[Lord Henley]

Again, my noble friend is right to point to the competitive nature of the market, and that is true for a great many industries. However, with the industry itself and government working together, we can ensure that we have a competitive part of that industry.

[Baroness McIntosh of Pickering (Con)]

My Lords, my noble friend will be aware that we are currently under the state aid regime of the European Union. What will the position be after 31 October, if we crash out without a deal? When might we expect to see the statutory instrument before this House and the other place?

[Lord Henley]

My Lords, I cannot speculate on what legislative processes might be necessary. We are committing to get a deal before we leave the Union and we want to make sure that we have a deal that will be good for the whole country, including the steel industry.

Climate Change Act 2008 (2050 Target Amendment) Order 2019

Baroness McIntosh of Pickering Excerpts

Wednesday 26th June 2019 Lords Chamber

[Baroness Jones of Moulsecoomb]

Yes, I am well aware that all politicians can get it wrong at various times, and she was wrong there.

What has happened to the Conservative Party in the meantime? We have a Government who resist onshore wind installations, which would supply cheap, clean energy, while supporting dirty, expensive fracking. Fracking is not the answer: it is a way to pump more fossil fuels into the atmosphere and, in the process, allow a rapacious private company, Cuadrilla, to stifle legitimate, peaceful protest. The Government push a steep VAT increase—from 5% to 20%—for new solar battery systems while coal remains at a discounted rate, and propose a third runway at Heathrow and more roadbuilding. We seem to be in a topsy-turvy world where the Government do not understand what is happening.

At the same time, three children—three climate protesters—from the Albany Academy, are being punished for attending the youth strike for climate protests. Children fighting for their future is not a crime. A brave planet protector, Angie Zelter, has been in court this week for protesting with Extinction Rebellion. She says:

“I cannot really understand why those in power have refused to act. After all, it is their world, too”.


It is noble Lords’ world, too. Many will have children and grandchildren who will be massively affected by this issue. I wish noble Lords over there would be a little quieter. Is that possible?

Fine words are not enough to fight erratic weather patterns that cause disasters in rich and poor countries. They are not enough to clean our rivers and seas of plastic pollution, to clean our polluted air, to save the curlew and the red squirrel up north, and certainly not enough to guarantee supplies of clean water, uncontaminated food and to resist global economic collapse. Can we please have some policies that will make a difference? As the protesters outside are saying, the time is now.

[Baroness McIntosh of Pickering (Con)]

My Lords, I congratulate my noble friend on introducing the order today, including what from our debate are proving challenging targets. I shall restrict my remarks to putting a specific question to my noble friend. Is it not the case that, in the short term, emissions will rise, particularly in the context of hydraulic fracturing for methane gas—an issue raised by other noble Lords? It is generally recognised that it is an inevitable result of fracking that methane will leak out of the natural gas wells at two stages: first, during the well being hydraulically fractured and the methane escaping; and, secondly, during the drill-out following the fracturing, when methane is released into the atmosphere. It is also generally understood that methane can be far more powerful than CO₂ in its role in increasing greenhouse gas emissions, which leads to the inevitable warming of the Earth’s atmosphere.

Will my noble friend take the opportunity in summing up the debate on the statutory instrument this afternoon to explain how we are going to meet our targets to reduce greenhouse gas emissions and global warming by 2020 without inevitably increasing greenhouse gas emissions and global warming by continuing to pledge to fracture in the immediate future?

[Baroness Brown of Cambridge (CB)]

My Lords, I offer the Minister my strongest support for the order.

I remind the House that we are being asked to sign up to a new target, not a new cost. I want to dispel a few misconceptions. The Committee on Climate Change identified the range of costs needed to meet the net zero target as between 1% and 2% of GDP. Those costs are not costs to the Exchequer. Yes, there will be a role for public funding in some areas, such as to avoid a competitiveness impact on the UK manufacturing industry, but the vast majority of the changes will, and should, be delivered through private investment.

I declare an interest as vice-chair of the Committee on Climate Change. In our report, we compare resource cost estimates to GDP to give a sense of scale. It does not follow that the estimates have an impact on GDP. The impact on GDP could easily be positive, as we shift away from using imported fossil fuels, for example, or as we develop newer industries that will boost our productivity and growth as an early supplier of new, low-carbon technologies globally. We need to be very careful in how we think about the numbers.

However, as many noble Lords have indicated, and as the CCC said in its net zero report, changing the target is just the first step and, in many ways, is the easy part. The real challenge will be the swift ramp-up in policy that needs to follow. I have had the honour of being the sector champion for the offshore wind sector deal as part of the Government’s industrial strategy. As the Minister is aware, a major renewable energy conference is under way in London; I believe that he spoke at it today. The conference is exciting; for example, it shows the impact of our investment in offshore wind on UK jobs and companies.

Will the Minister consider a swift and simple indication of the Government’s policy intent to deliver this new net zero target? A simple indication of intent would be removing the six-gigawatt cap for the next round of CfD auctions while offering no additional funding. The offshore wind industry is ready to respond to such an indication. This would be a win-win. It would show the Government’s intention to act swiftly; it would help to create more jobs; and it would deliver more zero-carbon electricity at no additional cost to the Exchequer or the consumer.

UK Net Zero Emissions Target

Baroness McIntosh of Pickering Excerpts

Wednesday 12th June 2019 Lords Chamber

[Lord Henley]

The noble Lord points out how important it is that we continue all the research we do. A great deal of research is going on into the areas he talked about. I could also take him through research I have seen into wave power, tidal energy and a whole range of other areas. We will continue to support that. Innovation is at the heart of what we seek. It potentially has great benefits for this country, as well as in reducing our carbon dioxide production.

[Baroness McIntosh of Pickering (Con)]

My Lords, I declare my interests as set out in the register, particularly my interest as president of NEA. I am not a scientist; could my noble friend explain how we square the circle between reducing carbon emissions and fracking for shale gas? Can he also assure us that there will be joined-up government in the Bills coming before this House, particularly the Agriculture Bill and the environment Bill? Can he assure us that many of the policies he has set out today will be on the face of those Bills?

[Lord Henley]

My Lords, I assure my noble friend that both the Agriculture Bill and the environment Bill will be very important in this field. On shale gas extraction, I made the point earlier that it is very important that gas continues to be a major part of our fuel for a considerable time, as a transition fuel as we move towards clean energy, coupled with carbon capture and storage. It also has the advantage of providing us with the energy security we need. If she does not want shale gas extraction as we see a reduction in gas coming from the North Sea, it means we have to get our gas from rather peculiar places, as I made clear earlier.

British Steel

Baroness McIntosh of Pickering Excerpts

Wednesday 22nd May 2019 Lords Chamber

[Lord Henley]

My Lords, as far as I am aware, British Steel is not producing steel in large quantities for the defence industry. Having said that, I take the point that the noble Lord made. It is obviously very important to our defence industry and, more importantly, to the defence of the realm to make sure that we can produce steel of an appropriate sort. My right honourable friend is fully aware of that, and that is why he has encouraged all departments to look to their procurement of steel and why, where possible, certain adjustments have been made to allow them to take other factors into account in procurement. The noble Lord, Lord Fox, was rather dismissive of the tables we have produced to encourage other departments to buy British steel, but they are important. I can assure the noble Lord that, wherever possible within the rules, we will certainly use British steel for defence projects, but not necessarily steel produced by this company, if it does not produce the right sort of steel.

[Baroness McIntosh of Pickering (Con)]

My Lords, the Minister mentioned Scunthorpe and also Teesside, which was the cradle of the Industrial Revolution. Have the Government worked out the implications for our much-heralded industrial strategy, given that we have taken quite a knock with a number of manufacturing jobs going, Nissan’s announcement about its production and Honda closing its production in 2021? The good news story is Hitachi in County Durham building the Azuma trains that will be required for HS3 as well as HS2. Will the Government look favourably on retraining any workers who in the long term lose their jobs with British Steel, so that they can participate in other manufacturing roles in the north?

Reducing Greenhouse Gas Emissions

Baroness McIntosh of Pickering Excerpts

Thursday 2nd May 2019 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I add my congratulations to the noble Lord, Lord Rooker, on securing this debate. I declare my interests as set out in the register, in particular my work with the Water Industry Commission for Scotland, which is the water regulator for Scotland. I also co-chair the All-Party Group on Water.

In setting the scene for this debate, the noble Lord, Lord Rooker, called on the Government to reduce greenhouse gas emissions and respond to the challenge of climate change. My noble friend Lord Deben referred to the role of the Paris Agreement and how to achieve what was agreed there through today’s report from the Committee on Climate Change. The noble Lord, Lord Rooker, is absolutely right to press for greater international commitments to match what has been achieved by the UK and Europe. I am pleased that he singled out the fact that India and China are the enemies of climate change prevention and that there are climate change deniers in the US.

Successive UK Governments have been pioneers in this regard. The UK was the first country to set a science-led, long-term and legally binding greenhouse gas emission target. We have to accept that science changes; the science has already moved on. Every household is playing its part, with the emphasis on renewables and clean energy technologies. Undoubtedly, this has led to higher fuel energy bills.

In 2018, renewables contributed 37% of the UK’s electricity supply and the UK has already reduced greenhouse gas emissions by 25% since 2010. The UK is also one of the largest international donors of overseas development assistance and we are thereby contributing to helping developing countries mitigate and adapt to climate change. However, echoing the words of the noble Baroness, Lady Featherstone, I regret the Government’s focus on and obsession with fracking. There can be no surer way to increase our greenhouse gas emissions. I hope we will turn the corner and put an end to future prospects for fracking.

The conclusions of the climate change committee today are welcome. I congratulate it and its chair, my noble friend Lord Deben, on setting out the framework going forward. I have one question for my noble friend: why is it always those living in the south of England, in largely arable areas, who tell us to produce less meat and turn our heating down? Having represented upland farmers for 18 years in the other place, I accept that 65% of our land is best suited to grazing animals. I welcome the fact that farmers are committed to reaching net-zero greenhouse gas emissions across England and Wales by 2040. There are always smarter and more environmentally sustainable ways to farm and farmers are rising to that challenge.

Any proposals to reduce greenhouse gas emissions will impact on British business, British consumers and British competitiveness. That is why I believe any action should be based on a multilateral, international approach—on initiatives such as that put forward on the eve of the forthcoming Future of Europe summit, to be held on 9 May, in a letter from 50 CEOs of businesses based across the European Union, calling for the adoption of the European Commission’s vision, A Clean Planet for All. The letter from these top European businesses calls on Heads of State and Government to endorse an EU strategy for climate neutrality by 2050 at the latest. I believe we would do best to support that, whether we remain in the European Union or following Brexit. We should follow their lead.

Others have spoken of the great challenge of replacing petrol and diesel vehicles with electric ones, and the need to make air and sea transport more environmentally friendly. Like the noble Lord, Lord Prescott, I am fully signed up to what we have achieved in North Yorkshire by planting more trees. I direct the Minister to the Slowing the Flow at Pickering pilot project, where, by planting trees, making dams and creating peat bogs that take some 200 years to build, we have made a flood defence scheme at the same time. There is no better way to capture and store carbon than planting these trees.

I entirely agree with the noble Lord, Lord Whitty, that we must push for better catchment management and ensure that any new houses are built in appropriate places, not on functional flood plains, with proper infrastructure for resilience—in particular, a sustainable water supply with freshwater in and wastewater out.

I end with two questions to the Minister. In encouraging electric-powered vehicles, from which sources of energy will this electricity be supplied? If we are all agreed, which has been the main thrust of the debate so far—politicians, industry, farmers and even schoolchildren—will the Government ensure that we deliver on reducing greenhouse gas emissions and address the challenge of climate change, and that we do so by seeking international action?

State Aid (EU Exit) Regulations 2019

Baroness McIntosh of Pickering Excerpts

Thursday 14th March 2019 Lords Chamber

Finally, who has the power to set the framework under which the state aid is to operate? I have already mentioned that variable limits exist across the EU at the moment. There is no absolute limit on what you can spend. There are general rules. These are all matters which should surely have political rather than administrative control. Where will that lie? As I understand it, Parliament will not have a role in this. This matter is being devolved solely to the Secretary of State, who can issue guidance on what is or is not state aid. That surely needs some further check. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I welcome the opportunity to discuss these two statutory instruments and I welcome the opportunity of the amendments that have been tabled to press the Government. I shall take each in turn. I remind the House that as a very young person I spent six months working as a stagiaire in DG IV, as it then was—it is now DG COMP—of the European Commission, where we looked at measures to prevent the distortion of competition, such as state aid.

I shall press my noble friend on whether and at what stage the Government will come forward with their policy on state aid post Brexit. We do not yet know what our own destination will be. It is quite possible that we will end up remaining or applying to join the EEA and EFTA, which have a competition regime very similar to that of the European Union. If that were the case and we ended up with a sort of Norway-plus EEA/EFTA-style arrangement, would the House have to revisit the statutory instrument in that regard, and would other changes have to be made?

I cannot remember which Government were in power at the time but it is worthy of note that the United Kingdom was effectively the author of the original Articles 85, 86 and, I think, 92, which relate specifically to state aid. The noble Lord, Lord Stevenson, raised in particular the question of the Irish border. Obviously, that will have an impact, particularly in relation to the block exemption on agriculture but also to any subsidies for other products that may be deemed to be a distortion of trade. A no-deal Brexit is still a potential prospect, so what consideration has been given to the World Trade Organization rules that will apply to subsidies? If the answer is in this rather long SI, perhaps the Minister could refer us to it. That would be immensely helpful.

I now turn to the European structural and investment funds regulations. Yesterday we had a debate on the rural development agricultural fund and a short debate on the maritime and fisheries fund, and this debate on structural funds is not dissimilar. I do not know whether the investment funds cover Horizon 2020. Perhaps the Minister could confirm my understanding that it is the Government’s desire to continue to participate in projects such as Horizon 2020. It would be immensely helpful to know that.

I should like to place on record—I know that the noble Baroness, Lady Crawley, will remember this only too well from her time in the European Parliament— that we have benefited from a European Social Fund programme targeted at new opportunities for women returning to work, and there are other specific projects as well. This is something that for some reason the UK Conservative Government would never embrace: targeting and giving assistance, through funding, to workers in their 50s or older who perhaps need training before they feel confident enough to return to the employment market. I see the noble Baroness, Lady Quin, in her place. She too will remember that great training schemes were made available for youth employment, although obviously they were not that helpful. When one sees the level of youth unemployment in countries such as Spain, it is clear that these projects are never as well funded as they could be.

Therefore, can the Minister say what criteria will be used, what projects and beneficiaries might be identified, and what sums will be made available? My specific question relates to paragraph 7.5 of the Explanatory Memorandum to the structural funds regulations, which says:

“To this end, HM Government funding guarantee ensures that, in the event of a No Deal, HM Treasury will underwrite sums that would have otherwise been received from the European Commission”.


I would like to pin the Minister down. Am I correct in understanding that we will have matched funding replaced by additional government funds, and am I right in assuming that HM Treasury’s largesse will know no limits? That is a very big ask because, if we have been allocated £8.4 billion of funding under structural funds for 2014 to 2020, there will be a remaining period until the end of that time is reached. So I should like clarification that the matched funding will be made good by Her Majesty’s Treasury for the projects that are outstanding for that period.

Finally, I will follow up on a point raised by my noble friend the Minister in his introduction, when he said that this was something to which we might return. The point was highlighted by the House of Lords Secondary Legislation Scrutiny Committee Sub-Committee B, in paragraph 42 of its report. The Government have decided not to replicate the current power granted by the European Council, which the Secretary of State could assume in the right circumstances. Will my noble friend set out the circumstances in which the Government might seek to appropriate those powers? Would it be a statutory instrument that he would intend to assume? Will he explain to the House and satisfy Sub-Committee B that there is sufficient flexibility in the statutory instrument to override any need for the Secretary of State to have the final say?

[Lord Fox (LD)]

My Lords, in the event that the proposition put prior to this debate by the noble Lord, Lord Adonis, comes to pass, and this SI is not needed, my time will not have been wasted: a more cogent seminar on state aid I could not have asked for than the one I have just received from the noble Lord, Lord Stevenson. I am grateful to him for placing these amendments before your Lordships’ House as this is an issue that requires greater clarity; I associate myself with the questions put by the noble Baroness, Lady McIntosh.

My remarks will be less structured than those of the noble Lord, Lord Stevenson. Regarding the question he posed of what qualifies as state aid, I put before your Lordships my experience of working in the United States and where, for example, a company might be looking to establish a new facility. When considering where that facility might be located, the company speaks to the administrations of various states—this is literally state aid. It asks about the tax structure it would receive in that state, the training regimes that universities might deliver, the buildings and planning regulations that might be needed. All these things qualify as aid which may be offered to companies to locate in a particular place.

The United States would talk about not being a country that distorts the market. Yet the local market is heavily distorted by literally billions of dollars that different US states put in to attract businesses to their location. How does this future regime of state aid fit into that pattern? We have unitary authorities. My noble friend Lord Purvis is going to ask about the role of devolved authorities, but we already have a degree of devolution to unitary authorities in England. They are required to deliver local or regional industrial strategies; LEPs are being granted money to deliver them. How does this fit into a structured state aid programme?

We talked recently about Nissan, which received a secret letter from the Government reassuring the company that it should keep one of its models in the north of England—a large sum of money was secretly committed by the Government in that letter. I contend that that was state aid; whether it would be recognised internationally as state aid is another matter. But we have a dichotomy: there is aid that the state—through a central, local or devolved budget—can give to companies or individuals to help them flourish or locate to particular areas, but it may or may not qualify in terms of whatever international agreements we are under. The noble Baroness, Lady McIntosh, is right to say that, whether we are operating under an EEA, WTO or any other regime, this will become an important distinction. What work are the Government doing on distinguishing between these various forms of state aid?

--- Later in debate ---

I intend to make two final points—

[Baroness McIntosh of Pickering]

Could my noble friend confirm the match-funding aspect of what would have been paid by Brussels, and that the UK Government will pay not just what they would have paid in match funding, but the whole amount the Commission would have paid—effectively both parts of the fund?

[Lord Henley]

The noble Baroness is too fast for me. I had two final points, one of which was to deal with concerns about match funding and whether that guarantee would underwrite it. The guarantee will underwrite the funding previously received by the EU. Match funding will continue to be provided by existing match-funding providers, such as the National Lottery.

My noble friend also asked about our future participation in Horizon. All I can say at the moment is that decisions on future such EU programmes will come as part of the spending review.

I appreciate I have not answered all the questions that have been put to me, but I believe I have answered most of those that are directly relevant to the statutory instruments before us. I appreciate that the noble Lord, Lord Fox, would like—and will receive—a letter. That letter will set out more about the possibilities for the future, and I will write to the noble Lord, Lord Purvis, in greater detail about our possible disagreement on where responsibility lies.

Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2018

Baroness McIntosh of Pickering Excerpts

Monday 4th March 2019 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)]

My Lords, the regulations were laid before the House on 19 December 2018.

Copyright law is largely harmonised internationally by a series of multilateral treaties, to which the UK and most other countries are party. Our membership of these treaties does not depend on our relationship with the EU and ensures that, in all scenarios after exit, UK copyright works will continue to receive protection around the world. Conversely, foreign works will continue to receive protection in the UK. However, there is a body of EU law on copyright that goes beyond the provisions of these international agreements. This has introduced EU-only rights—such as the sui generis database right, which provides EU-wide protection for EU database creators—and arrangements that facilitate the use of copyright content in cross-border services, such as the copyright country-of-origin principle, under which satellite broadcasters transmitting films and other copyright-protected works across the EU need permission from the copyright owner only for the state in which a broadcast originates, rather than in every state in which it is received.

A significant portion of UK copyright legislation derives from the EU copyright acquis and therefore includes references to the EU and member states. Without amendment, many of these references would become inappropriate after exit, either because they presuppose the UK’s membership of the EU and will not make sense once we are no longer a member state, or because they implement EU cross-border copyright mechanisms that, in a no-deal scenario, will become inoperable.

For those reasons we are introducing this instrument. In broad terms, it will preserve, where possible and appropriate, existing arrangements in UK copyright legislation by making minor, correcting amendments. The only exceptions to this principle of continuity arise in our implementation of some of the EU cross-border copyright mechanisms. It is unavoidable that the reciprocal element of these mechanisms between the EU and UK will become inoperable in a no-deal scenario, because they depend on reciprocal provisions that apply only between member states. This SI therefore amends our implementation of these mechanisms.

In some cases, it is appropriate to continue to extend a cross-border provision to the EU on a unilateral basis, because providing continuity in this way benefits UK consumers or businesses. This is the case for the country-of-origin principle in satellite broadcasting, where maintaining the effect of existing law will support UK consumers’ continued access to foreign television programming. For other mechanisms, providing continuity would be detrimental to those in the UK: for example, to continue to provide database rights for EU creators without reciprocal action by the EU would put UK businesses at a competitive disadvantage. This instrument will restrict those mechanisms to operate on a purely domestic basis, or bring them to an end, as appropriate.

We know that there are concerns over lack of consultation, and I would like to offer assurances that we engaged with affected stakeholders as far as possible within the constraints. There is no question that formal consultations are an important part of the process of engagement, but they are not the only part. We have regularly engaged with and listened to the concerns of stakeholders from across the creative and digital industries on an informal basis since the referendum. This engagement has given us a sound basis from which to prepare these regulations, and we are grateful to all those who have shared their views on copyright and EU exit.

In support of this instrument, we have published three impact assessments, each of which has been green-rated by the independent Regulatory Policy Committee. Those correspond to three of the most significant cross-border mechanisms: sui generis database rights; the copyright country-of-origin principle; and cross-border portability of online content services, which allows EU consumers to access their online streaming or rental services as if they are at home when they visit another member state.

Both the Secondary Legislation Scrutiny Committee and the European Statutory Instruments Committee commented that those assessments did not provide sufficient detail on the impacts of no deal on UK stakeholders. The reason is the same in each case: impacts on UK consumers, rights holders and broadcasters will result from the UK being treated as a third country in a no-deal scenario—not from these regulations, which amend the UK’s implementation of the cross-border provisions and will primarily affect EU rights holders, consumers and broadcasters.

In line with the better regulation framework, the impact assessments consider the effects of this instrument, and not the impacts that arise from the legislation of other countries and which we cannot avoid in a no-deal situation. However, we recognise that these impacts exist and that UK stakeholders will need to be aware of them. That is why the Government published in November 2018 a long-term economic analysis of the impacts of leaving the EU, and detailed guidance on what a no-deal Brexit would mean for copyright and related rights. That gives consumers, rights holders, businesses and other organisations the information that they need, in plain English, to make informed preparations for all outcomes.

These regulations will provide certainty, clarity and, as far as possible, continuity for UK businesses, rights holders and consumers as we leave the EU. I commend them to the Committee.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted that this statutory instrument is being considered as an affirmative one, which is probably all my fault as I wrote to the relevant committee on 1 November setting out my interest in the subject and why I believed that it should be discussed. My interest dates back to having been an MEP and MP, and I spent time as a stagiaire in DG IV—as it then was—of the EU Commission, although I was concerned more with anti-trust at that time than intellectual property.

I would like to press the Minister on three separate issues, although he will be pleased to know that I am not against the statutory instrument in any shape or form. We are obviously helped by the findings of the two committees, for which I think that this Committee will be grateful. The report of the Secondary Legislation Scrutiny Committee mentions, as one reason why it was critical and thought that the House would benefit from such discussion, the assessment of the impact of the loss of the reciprocities. The Minister referred to that. As UK consumers while in another member state, we were going to lose the right to benefit from Netflix—if we only knew how to do it, of course—but visitors from another member state to this country would continue to benefit.

I understand the conclusion that the Government have drawn. However, given the extensive range of copyright issues covered in this instrument and that it seeks to establish reciprocity in relation to the loss of free access to portable online content services for consumers, how did the department reach that decision without having made an assessment of the impact of that loss on UK consumers?

We have heard from the Minister this afternoon that there has been a broad and general paper, from which I am sure that we will all benefit, but what was the basis for reaching the decision? Has he had any discussions with Ministers of other member states to see whether, having given up reciprocity, there is any way we might revert to it in future when we are negotiating a deal? Is that lost for ever, or is it only in the context of the no-deal statutory instrument before us today?

How wide an impact assessment has the department done in preparing for this statutory instrument? Do we know either how many UK-based broadcasters will be affected, how the loss of portability of online content may impact on UK consumers or how much the facility has been used in the past? From my experience, if you are visiting Brussels in the capacity of an MEP or as a lawyer, I frankly do not think that you would have much time to watch Netflix—I see that the shadow Minister disagrees. However, if you are there on holiday, it would obviously have a greater impact. The conclusion reached by the Secondary Legislation Scrutiny Committee Sub-Committee B is that it would have been helpful to provide more information, if the department has it, on the potential impact of EU exit on both UK businesses and consumers in this area.

We are apparently seeking to preserve the UK’s compliance with the requirements of the Marrakesh treaty—where these treaties are drafted and signed seems ever more exotic. I understand that we are seeking to ratify the treaty in our own right. Does my noble friend have a proposed timetable for that? We have learnt from other departments that ratifications of treaties and deals are not quite as straightforward as we might believe. I should be grateful for a response to those questions as well as to my overall question as to whether we are seeking reciprocity in the long term through a deal.

[Lord Clement-Jones (LD)]

My Lords, the noble Baroness, Lady McIntosh, has asked some very pertinent questions which I certainly want to reinforce, and I look forward to what the Minister has to say in response. This is a deceptively short SI, but it deals with a rather large number of important rights, both for business and for the consumer. Even though I agree with the committee that it would have been helpful to provide more information on the potential impact of EU exit on UK businesses and consumers in these areas, at least the impact assessment set out the general impact in broad terms. The Minister used the word “unavoidable”. Sadly, I do not think that there are any alternative solutions to the issues set out in the statutory instrument.

What does the Minister consider to be the actual impact? As with all the SI impact statements, the assessment for this one says that, pretty much, the only impacts are a result not of the SI but of leaving the EU, becoming a third country and so on. However, there are substantial impacts as a result of consumers not having such rights and broadcast businesses not having the rights under the cable and satellite directive. Indeed, business has a double whammy because, as was discussed on 6 February, under the AVMS directive—as my noble friend Lord Foster pointed out, it deals not so much with copyright as with regulation—broadcasters will have a real problem in terms of the country of origin and regulation. So it is not just copyright and clearance issues that will add to the burden of cost; it is the certainty of regulation. It is no wonder that, already, a large number of broadcasters that broadcast into the European Union and have relied on the country-of-origin principle are upping sticks and moving to places such as Amsterdam.

At least for the AVMS directive there is some consolation in the Council of Europe regulations, but for a more limited range of material. Unless the Minister can correct me, I do not believe that there are any consolations on copyright clearance for broadcasters. This really is damaging.

Designs and International Trademarks (Amendment etc.) (EU Exit) Regulations 2019

Baroness McIntosh of Pickering Excerpts

Monday 4th March 2019 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)]

My Lords, the Intellectual Property Office has been preparing for a range of outcomes to our negotiation with the EU. The regulations form part of that preparation and are intended to ensure that the system governing intellectual property rights in the UK continues to function in the event of no deal being agreed when we leave the EU on 29 March.

For designs, much of our existing domestic legislation derives from EU directives, which are implemented through the Registered Designs Act 1949. Under the EU design regulation, the appearance of a product can be protected under a registered community design, granted by the EU Intellectual Property Office. This system runs in parallel to our domestic system, so protection in the UK can currently be obtained by registration under either or both the EU or UK systems.

Shape and appearance can also be protected under the unregistered community design. This is automatically established when a design is first shown to the public and is particularly valued by design-intensive sectors such as the fashion industry. Like registered design, the UK provides a parallel domestic system. However, the terms of UK unregistered design are different from those of EU unregistered design. After exit, protection in the UK for existing registered and unregistered designs under the EU regulation will be lost. The draft instrument uses the powers provided by the European Union (Withdrawal) Act 2018 to address deficiencies in UK design law that would arise upon exit and to ensure that such EU design rights are not lost.

In addition to the rights granted by the EU Intellectual Property Office, businesses can obtain EU-wide registered design and trademark protection through an international system administered by the World Intellectual Property Organization. This system enables businesses to protect their designs and trademarks in multiple territories via a single application, filed in one language. Both the EU and UK are contracting parties to this system. Like registered EU rights, international EU rights are protected through EU regulations, meaning that a failure to act will result in the protections afforded to these rights also being lost.

This instrument ensures that replacement rights will be provided to those who own registered EU designs on exit day in the form of a “re-registered” UK design. We will preserve UK protection through the “continuing unregistered design” for those who hold unregistered EU design rights at exit day. These new UK design rights will be fully independent of the corresponding EU right. However, they will retain the effective date of the EU design and, in the case of a reregistered design, any other relevant dates that were filed as part of the original EU application.

Because the terms of EU unregistered design right are broader than those provided by existing UK unregistered design, we are also introducing a new type of UK right called “supplementary unregistered design”. In doing so, we will ensure that the full range of design protection provided in the UK prior to exit day will remain available after we leave the EU. This new right will function alongside existing UK unregistered design. An EU unregistered design that exists before exit day will continue to provide protection in the UK through the continuing unregistered design, while those who disclose new designs in the UK after exit day will enjoy continued access to the characteristics of EU unregistered design through the new supplementary unregistered design right.

The instrument also ensures that registered designs and trademarks which are protected in the UK through EU designations under the Hague agreement and the Madrid protocol will continue to be protected in the UK after we leave the EU. For international designs that designate the EU, we will create comparable reregistered UK designs just as we are with EU designs registered at the EU Intellectual Property Office. For international trademarks designating the EU, we will create a comparable UK trademark, taking an approach similar to that set out in the EU trademarks exit SI, recently approved by both Houses.

As with reregistered designs and comparable trademarks being created from registered EU designs and trademarks, these new rights will be fully independent of the corresponding international designs and trademarks, but they will inherit their effective dates and will be treated as if applied for and registered under UK law.

The instrument further explains the approach that will be taken for registered community design applications and international design and trademark applications which are pending on exit day. Those with such a pending application will be able to file a new application in the UK, claiming the earlier filing date of the EU application. To claim the earlier filing date, the application must be submitted to the IPO within nine months of exit day.

The instrument also sets out provisions to accommodate other particulars of EU and international design and trademark protection, including deferment of design publication and the use of subsequent designations to create multiple EU protections under a single international trademark registration. As these new UK rights can be challenged, assigned, licensed and renewed in their own right, the instrument also contains provisions to accommodate those procedures.

Finally, there are miscellaneous amendments to existing UK trademark and design law to reflect the fact that the UK will no longer be an EU member state or a member of the European Economic Area. Although this SI has not been subject to a formal consultation, the IPO has discussed options for preserving EU and international design and trademark rights with both UK stakeholders and the World Intellectual Property Organization. These regulations represent the culmination of those discussions. The IPO ensured that businesses and legal practitioners were made aware of these changes through technical notices published in September last year, and it will also provide full business guidance once the draft instruments are made.

The regulations are a small but vital part of ensuring that the intellectual property system continues to function if the no-deal outcome arises. I hope that noble Lords will support them and I commend them to the Committee.

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank my noble friend the Minister for setting out the scheme. I have just one or two questions so as to gain a greater understanding of the background.

The Explanatory Note, which forms part of the statutory instrument, states on page 69:

“An impact assessment has not been published for this instrument as no, or no significant, impact on the private, public and voluntary sectors is foreseen”.


The Explanatory Memorandum then sets out precisely what the costs are. If the department has not conducted an impact assessment, how can it be sure that no significant costs will arise? If a design is not reregistered, will it lapse? In the view of my noble friend and the department, is a deadline of nine months following exit day for reregistering a design sufficient, given the sheer volume of designs that I understand are in play? There seem to be different figures for the costings, and it would be helpful to know what those costings are.

Paragraph 7.10 on page 5 of the Explanatory Memo-randum, under the heading “Deferred publication”, says:

“Rights holders with a deferred design at EUIPO that request deferment in the UK will not be able to defer publication for more than 30 months overall”.


Therefore, there is a discrepancy, with one deadline being nine months and the other being 30 months. Does that mean that rights holders will have an extension between nine and 30 months? Presumably this would not be affected by something subsequently being negotiated in the event of a deal being agreed, as with earlier statutory instruments. Paragraph 7.10 goes on to say:

“As these designs will already be examined by the EUIPO, no formal examination … will take place at the UK IPO”.


That seems sensible indeed.

--- Later in debate ---

[Lord Henley]

I think the noble Lord is correct. If I have got that wrong I will write to him. He also asked about designers being able to disclose their unregistered designs in the UK and whether they would be protected from copying in the EU. A registered design will need to be disclosed in the EU first to be protected there should we leave without a deal. The statutory instrument provisions allow us to negotiate reciprocal arrangements on first disclosure with third countries—which may be the EU, individual countries within it or wider—but that has to be a subject for a future agreement.

My noble friend also asked about the discrepancy between the nine months’ deadline for pending applications and 30 months for deferred publication. The UK will honour the EU deferment period. We will not allow designs to exceed 30 months in total. Applicants will be allowed to file an application claim for a 12-month UK deferment within the nine-month period. However, in some circumstances the full 30 months will fall short. Unless already subject to deferment, applicants will have only 21 months in total.

[Baroness McIntosh of Pickering]

Does the Minister think it is clear from the instrument that there is the 21-month discrepancy? He said in moving and introducing the regulations that it was nine months. I picked up from reading the statutory instrument that it was 30 months. He has now said that it will be 21 months. I am concerned that if I were a designer and not au fait with these instruments I would be confused about the period.

Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019

Baroness McIntosh of Pickering Excerpts

Monday 4th March 2019 Grand Committee

[Baroness Crawley]

Oh, 2.54. I was told that it was 4.5 kilograms, so the figure has doubled. My first thought was: thank goodness for the Explanatory Memorandum. I tried reading the instrument without the Explanatory Memorandum just to torture myself, but I did not get very far without a stiff drink.

When I read the House of Lords Secondary Legislation Scrutiny Committee’s acknowledgement that the SI had to be corrected and relaid because of legal drafting errors in an earlier version, it did not fill me with great confidence. The scrutiny sub-committee voiced concern at the department’s decision to combine so many different legislative measures in a single statutory instrument, and I certainly agree with that concern. I come to this as a vice-president of the Chartered Trading Standards Institute and as a guardian of hallmarking in the Birmingham Assay Office.

It is virtually impossible to scrutinise this instrument effectively with the crazily reduced time limit of 29 March. The scrutiny sub-committee expressed concern about uncertainty and the impact that leaving the EU’s produce safety regime in a no-deal scenario could have on UK consumers and businesses. In that context, I should like to put some questions to the Minister.

On the category of cosmetics, for instance, paragraph 7.19 of the Explanatory Memorandum states that,

“this instrument will make further amendments to ensure the continued protection of UK consumers after exit. In a ‘no deal’ scenario it is likely that the UK will no longer have access to the EU Cosmetics Products Notification Portal which provides essential information to National Poison Centres to protect public health. Work has already begun on a UK replacement database”.

Can the Minister guarantee that no British consumer of cosmetic products will be put at risk of being poisoned? The Explanatory Memorandum uses the phrase “Work has already begun”. Will that really reassure British women—the principal consumers of cosmetics—that all cosmetics made at home and abroad will be safe? What will a functioning statute book actually look like in the cosmetics sector, and could rogue cosmetics firms set themselves up with the precise purpose of circumnavigating loose consumer protection in this area and making fast bucks from an overly trusting shopping sector, especially online? Is this the kind of no-deal consequence that we are facing in this sector? Also, what is the timescale for the completion of the UK’s replacement cosmetics product portal?

Perhaps I may also ask the Minister a few questions about consultation. Paragraph 10.1 of the Explanatory Memorandum states:

“The Department did not undertake a public consultation”.


At least that has the virtue of honesty and brevity. But further down the page we read, at paragraph 10.3:

“Informal consultation has taken place with a good cross-representation of stakeholders, including trade associations and other industry representative bodies across the product areas covered by this instrument”.


Can the Minister give us his definition of “informal” and “good”, as in,

“good cross-representation of stakeholders”?

How many meetings took place with the stakeholders? Did the cross-representation of stakeholders have the Explanatory Memorandum available when they looked at this SI? If they did not, I admire their superpowers. Did the informal consultation involve, say, trading standards, the Scottish Government or the CBI in all its regional forums, and were the meetings in situ or just a set of emails and phone calls? If we leave the EU without a deal, is this a good time to be “informal” about commercial regulation?

I have a few final questions. On the impact of this SI, paragraph 12.1 of the Explanatory Memorandum states:

“The impact on business has been looked at in an Impact Assessment … for this instrument”,


and has been assessed as de minimis. That is all right, then. However, later in the Explanatory Memorandum there is a reference to how much this whole procedure will cost businesses, and it does not seem like small beer. Paragraph 12.3 informs us that some of the 241,000 businesses that are to be affected will try to familiarise themselves with the new inventory of regulations. The cost estimate is put at £19.6 million, which is a substantial sum in itself, on the assumption that the average business leader will need only three hours to build total operational familiarity with these new rules. That is ludicrously optimistic. To take the example of a managing director of a company in Birmingham—a city I know well—which trades across Europe and indeed the world, she can get to work on a Monday morning and will have absorbed the consequences for her business of a no-deal Brexit by lunchtime that day. Is that the Government’s professional opinion? I would be grateful for the Minister’s response.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to follow the noble Baroness, because we overlapped for at least five years as Members of the European Parliament. The noble Baroness referred to cosmetics; I think we will both remember the fevered exchange we had with constituents on animal testing. I echo her remarks.

I am sure my noble friend will be only too aware of the criticism that has been levelled at his department, and I feel for him most deeply, because this epic package is the surest cure for insomnia that any Minister could wish for. Could he put our minds at rest, and those of the members of the sub-committee? I am mindful of the problems we have already heard: this instrument had to be reissued because there were minor drafting errors in the original script, plus the fact that the impact assessment was published subsequently, which meant that the scrutiny committee was not able to perform its function because it did not have that document in front of it.

I do not detract from the fact that this is a very necessary piece of legislation, but I hope that this will not be the way forward. There will be instances where regulations fall naturally together, but the very number of pages here, and the fact that this has had to be repeated and that the impact assessment could not be packaged together with it, must surely be a cause of concern for the department. I do not want to go down this path again.

I have a number of questions. The sub-committee noted that there is considerable uncertainty, for reasons that have been well rehearsed, about the possible impact on UK consumers and businesses of leaving the EU’s product safety regime. Does the Minister share the concern of the scrutiny committee’s Sub-Committee B about the impact that the loss of access to EU product safety databases could have on UK consumers? Even at this late date, might the department be able to provide that information in writing to the committee before the SI transfers from here to the Chamber? That concerns me, given that it relates to offshore installations, other major industries and explosives as well.

I want to share one anecdote with my noble friend. In a previous ministry—it was the Department of Trade and Industry, under a Conservative Government, I think—it was decreed that second-hand toys could no longer be sold in charity shops because of the danger that the eyes and other pieces might be displaced and be a great safety risk to small children. What I was not prepared for was the amount of correspondence—in those days, they were hard-copy letters; people printed out a standard letter and we received multiples of it because we had thousands of constituents. That was an unintended consequence of the toy safety directive as it was implemented in UK law at that time. One might say that it was gold-plating, so it would be nice to know that nothing is being gold-plated here and that we are just transferring what is already in UK law. If my understanding is correct and we lose access to EU product safety databases, it must surely set alarm bells ringing.

With so many regulations or schedules to regulations bundled together here—and following on from what was itemised by the noble Baroness, Lady Crawley—is my noble friend convinced that we are not missing a matter of public policy here? This is our one opportunity to discuss it before we pass the regulations in the Committee and subsequently in the House.

[Baroness Donaghy (Lab)]

My Lords, I am a member of the statutory instruments Sub-Committee B, along with my noble friend Lord Rooker, who is in his place. I want first to thank the Minister for arranging the briefing meeting that took place last week. It is quite an unusual event for a full-scale briefing invitation to go to all Peers. I think it was at the request of the sub-committee, but it is recognition that this is quite an unusual statutory instrument.

I shall not go over the points raised about the sub-committee’s comments. My only question is in reference to the Health and Safety Executive, which is referred to in paragraph 10.2 of the Explanatory Memorandum as one of the organisations that has given technical input. I commented at the briefing and repeat today that this is not the first statutory instrument for which extra resources will be required by the Health and Safety Executive. It should be noted officially that it will be under some strain in completing its responsibilities in this area, particularly as I understand that it has been without a chief executive for at least six months. Can the Minister assure us that some inquiries will be made about why that is and that somebody will be in post as soon as possible?

--- Later in debate ---

[Lord Henley]

That is not a direct cost of the SI; it is a cost of leaving the EU. That is why it was not part of the impact assessment. I will, as I am planning to do for one or two other questions she raised, write to the noble Baroness on what the extra costs are likely to be for registering both here and in the EU.

My noble friend Lady McIntosh asked about the uncertainty of the loss of access to the product safety database and what effect it will have on consumers. The new product safety database will be available to all market surveillance scientists from exit day. The new service will give the UK national capability to collate information on unsafe and non-compliant products, share information and rapidly alert market surveillance authorities. In addition—as was raised by the noble Baroness, Lady Burt, who talked about RAPEX—the UK will retain access to any publicly available information on RAPEX.

[Baroness McIntosh of Pickering]

RAPEX is very similar to the food alert, which I think is called RASFF—the noble Lord, Lord Rooker, knows it by heart. My noble friend just mentioned information that will be publicly available, but it sounds as though we are not going to be part of it. This raises the question: if there was a rapid alert about a product in this country which we wished to share, would we have a reciprocal arrangement? Will that be part of the deal we hope to negotiate?

[Lord Henley]

That will be a matter for the deal. I was talking about what was publicly available from RAPEX. What we will make available and other such matters go beyond what we are debating at the moment, as we are discussing no deal, but they are matters which we should consider as part of the deal.

I move on to trading standard resources; the noble Baroness, Lady Donaghy, asked whether they were sufficient. I have to make it clear that I believe there are no new duties placed on trading standards. The Office for Product Safety and Standards has been working with trading standards to ensure that it has the capability to discharge its responsibilities, including working with the Chartered Trading Standards Institute on EU exit plans. She asked about the appointment of the new chief executive of the HSE. I am afraid I do not have any information on that, but I will add that to the many letters I will be sending out and will write to her.

My noble friend Lord Lindsay asked about the position of UKAS and whether it might be undermined by profit-seeking bodies coming in to take over its job. I make it absolutely clear that there will continue to be just one national accreditation body and that body only will be able to issue accreditation certificates demonstrating that organisations meet the approved requirements. We have it on the record now, but if my noble friend would like me to write to UKAS, I would be more than happy to do so.

The noble Baroness, Lady Burt, asked about the cost of changing to the UKCA mark and the new notified body. The SI means that most manufacturing companies will not have to use the UKCA mark. If a business needs to change to an EU body as a result of the EU’s position on the no-deal scenario, that will be a result of the EU’s position and it is something that would be part of any future negotiations. I also give her an assurance that we will need further legislation should we want to end CE marking recognition, so that will not come through as a result of this.

The noble Baroness asked about Electrical Safety First. Again, I will have to write to her on that. My noble friend asked for an assurance that we were not gold-plating, just as there were accusations when we were taking these things on board the other way many years ago. No gold-plating is going on here; we do not have the powers to gold-plate under the EU withdrawal Act. I hope all we are doing is providing a degree of certainty to the industries concerned and the public that things will continue as before.

Storage of Carbon Dioxide (Amendment and Power to Modify) (EU Exit) Regulations 2018

Baroness McIntosh of Pickering Excerpts

Wednesday 13th February 2019 Grand Committee

[Lord Teverson (LD)]

My Lords, when I read this, particularly the Explanatory Memorandum, I started to feel it was an exercise in irony. Despite all the urgency of the potential Brexit, here we have a situation where it will probably be necessary to pass this legislation by 29 March 2029, given the current government decarbonisation strategy.

In 2017, as the Minister will probably remember, the Public Accounts Committee in the other place pointed out that the Government had wasted some £168 million on CCS projects—including £100 million on the one cancelled by George Osborne in the 2015 Budget—with no progress whatever.

Having said that, I agree with Claire Perry, the Minister responsible for the clean growth strategy. In the CCUS Cost Challenge Taskforce report, she said that,

“we want to have the option to deploy CCUS at scale during the 2030s”—

as long as the pricing is right.

The Minister mentioned the Acorn project. I agree that there may be some necessity to do this, but it reflects the rather tragic trajectory of government action. The fact that this core part of the clean growth strategy will not be implemented until the 2030s is most unfortunate.

The clean growth strategy called for a new CCS council—or CCUS as it is called nowadays. Has that been established and is it operating now?

As the Minister knows, I am interested in areas of international agreement, such as the Ospar Convention, which prevents the deposit of waste in marine areas of the north-east Atlantic. I seem to recall that the Government got an allowance through the Ospar Convention process for CCUS—it is seen as disposal of waste at sea, even though it is under the sea—potentially in the North Sea. The UK and the European Union are signatories of this. I am interested to understand whether the UK itself has enough permits under the convention, or a derogation in our own right to be able to continue this, rather than it being done in agreement with the European Union, with it as the signatory. Will we need any treaty revisions or further derogations from the Ospar Convention to move this forward once we are out of the European Union?

In a way, I am glad that BEIS has given this some priority—perhaps it is a sign of movement at last. I look forward to seeing those future plans for CCUS. We do of course have Drax, but I do not think it requires any geological resolution of storage, which this SI is all about.

[Baroness McIntosh of Pickering (Con)]

I am grateful to my noble friend for moving this statutory instrument. I have just one question. He said that there has been consultation with only the Oil and Gas Authority, which presumably is the regulator in this instance. Page 5 of the Explanatory Memorandum says that it will apply to,

“activities that are undertaken by small businesses”.

Was a conscious decision taken not to consult widely with the industry, and, if so, what was the reason for that? Obviously the regulator will have a view, but those who work in the industry might have an alternative view.

[Lord McNicol of West Kilbride (Lab)]

My Lords, I am standing in for my noble friend Lord Grantchester, who cannot be with us this afternoon. This is another of the no-deal Brexit SIs, which would be completely unnecessary if the Government were to do the right thing: agree with Labour and others and rule out the possibility of a no-deal Brexit. If the Government were to do that, this House and the other place could spend more time dealing with far more important and relevant issues, and save the Civil Service, the ministerial Opposition and industry time and money—a simple solution.

This SI has already been through the other place, where it was passed in 10 or 11 minutes, so we are giving it a little more scrutiny in this House than in the other place. I note Dr Whitehead’s comments and those made by the noble Lord, Lord Teverson. On carbon capture itself, Dr Whitehead’s said that,

“it would be rather nice if we had some carbon capture and storage to put into those regulations”.—[Official Report, Commons, 28/1/19; col. 5.]

I have a couple of questions to add to the others asked by noble Lords. As the noble Baroness, Lady McIntosh, said, the Explanatory Memorandum details that BEIS engaged with the Oil and Gas Authority and the devolved Administrations. Could the Minister enlighten us as to the response from the authority and the Administrations?

The Government have stated that no specific monitoring arrangements are needed for this. Can the Minister detail whether the Government envisage any situation where the instrument will need to be looked at again? On the Minister’s second point, on changes to technical or scientific specifications, will there be any parliamentary scrutiny or oversight, or do those changes sit in the hands of the department and the Minister?