Intellectual Property Bill [HL]

Lord Browne of Ladyton Excerpts

Wednesday 22nd May 2013 Lords Chamber

[Lord Browne of Ladyton]

My Lords, in the introductory remarks of the noble Viscount, for which I thank him, he used the active verbs of strengthening, improving, simplifying and clarifying the law. The robust contribution from the noble Baroness, Lady Buscombe, indicated the metrics against which the Government may be judged in relation to their ambition to strengthen, improve and clarify the law. The House should be grateful to her for setting that metric, even if it appears an impossible task, if I may say so from my inexpert observation.

That leads me to my second point. I consider my engagement with this Bill to be a learning process. During in excess of 20 years of practising law in Scotland before I was elected to the House of Commons, I had only the most fleeting engagement with intellectual property law, so in preparation for this short speech I tried to acquaint myself with some of the complexity in this area of law. I have to say that I found it extremely complex. I came in this morning and my heart sank somewhat when I saw that immediately following me was the noble Lord, Lord Walker of Gestingthorpe, who will be making his maiden speech. I suspect that my inexpertise will be exposed substantially by his learned contribution to our debate. None the less, I am looking forward to it, even if it has that consequence.

I welcome the Bill—I suppose that I should say that, as everyone else has—as far as it goes. It is part of a process and it is perfectly clear that the Government are engaged in a process and will be judged against a number of metrics, including some that they have set for themselves, which I shall return to in a moment. I will make three general points and three specific points in my short contribution. First, I welcome the Bill because it gives me, a Scot who is a unionist, an opportunity to celebrate the United Kingdom. This is a not entirely unique event in your Lordships’ House, but they are fewer and further between than they used to be. This is an opportunity for us to consider an area of UK law that is extremely important to the whole United Kingdom, including Scotland, and we should make the most of it. We should make the most of it particularly in the context of what is going on in Scotland at the moment and the important decision that the people of Scotland will have to make next year in their referendum. It is important because the Hargreaves review suggested that changes effected at a UK level but in the context of proper international priorities had the potential to add of the order of £7.9 billion to the UK’s economy.

We are debating this Bill the day after the SNP Government in Scotland published a document entitled Scotland’s Economy: the Case for Independence. For noble Lords who have not had a chance to read it, the document does what Scots always do when talking on this issue: they celebrate the achievement of innovation, innovators and inventors in Scotland. I can do it as well as everybody else: from the discovery of penicillin by Alexander Fleming, who was born and brought up in the constituency I represented, through the invention of television—the list is endless, and all Scots can recite it as we learn it at our mother’s knee—to the creation of Dolly the sheep and the bio-industries in Scotland. However, conspicuously absent from that document is some of the detail of how an independent Scotland, separated from the United Kingdom and consequently from this body of law, would seek to recreate what already exists, with all the criticisms we have heard or that have been implied in the reviews, and so on? How will it be done in a way that will not make Scotland a good hunting ground for those who wish to exploit other people’s intellectual property rights, even if for a comparatively short time in an interim period? There is no engagement in this document with the nuts and bolts, the detail and the complexity.

For most of us who have been engaged in this debate since it started, that is not surprising. There is a consistent failure to engage with the nuts and bolts and the challenges of independence for Scotland, even against the reasonable request that Scotland should be maintained at the level that it is in a number of areas of life through this transition period if the people of Scotland choose independence. I do not think that there is any indication that they will, but we cannot be complacent.

Much more important, it is incumbent on the Government and politicians to highlight opportunities that show the people of Scotland and of the United Kingdom the value of the union. This is a great opportunity to do so. This body of law is being reviewed in this considered way for the protection of those who are innovators and inventors in Scotland. It is a good opportunity for Ministers of the Crown legitimately to be in Scotland, talking about something at a UK level that affects the nuts and bolts of Scottish society in a way that does not look as though Ministers are going there to frighten the Scottish people against the consequences of independence but are there just to engage with them and explain how important this area of law is. I encourage the Minister and his colleagues in government to do just that during the process of the Bill, and to overtly engage and make it clear to the Scottish people how much they benefit from having this degree of support.

My second general point is that this Bill highlights the value of good regulation—the contributions thus far reveal that. There has been a tendency in this House, particularly recently, which I fear has been driven by the Government—to undermine the value of regulation. Good regulation that addresses the protection of just the sorts of skills and innovation that have been addressed in this debate is important. It is important and valuable to the country that we are, and it is slightly ironic that our Prime Minister should have set the challenge to those who reviewed this to find a form of regulation that will necessarily involve additional regulation. We have had some debate already about the possibility of increasing and creating criminal offences. The Prime Minister charged those responsible for this to increase regulation in a way that will be a driver of the economy. We should be honest that there are two sides to regulation. I make the point that the Government should be honest.

The other area in which the Government need to be honest is that the Bill highlights the value of the European Union. I understand that the Hargreaves review attaches the highest immediate priority to achieving a unified EU patent court and patent system. That is utterly counterintuitive to the direction of travel of the public discourse on the European Union that is going on at the moment. Why is this voice not being heard? Where are the Government Ministers who are saying, “Actually, there is a place in the structure of our society for an additional European court? We think that it will help innovators and others in a positive way to build our economy and to drive innovation and wealth in the country”. I regret that the Government do not have the courage to put this argument forward as strongly as they should, and instead concentrate on the negatives in relation to the structures of Europe while—one might say through the back door—adding to those structures and doing it in the form of a patent court. It is remarkable.

My specific points have already been addressed, but I will highlight them. They relate first to Clause 13, which concerns the creation of a criminal offence. I am compelled by the logic of the argument that if one is to create an additional criminal offence in this area, it is illogical to restrict it only to registered designs, when unregistered designs in particular are such a significant element of this area of practice. However, in the broad analysis, I am persuaded that the Hargreaves review recommendation in this regard was the right one, and that the preponderance of evidence suggests that there is no justification for an additional criminal offence. It strikes me that in this very narrow area the creation of a criminal offence, potentially carrying these quite significant penalties, is taking a sledgehammer to crack a nut. It may operate in the way in which has been suggested, which is that no one will ever need to be prosecuted, because it will be a deterrent, but I doubt very much that that will be the case.

I suspect—in fact, I probably know—that in Scotland there is likely to be very little capacity for the investigation of offences of this complexity. It is unlikely to become a priority over all of the other issues that we face in relation to criminal prosecutions. I wonder whether the noble Viscount might indicate at some stage what degree of engagement there has been with the Crown Office, with the Scottish Law Commission and with the Scottish Government about the necessity or the sheer value of an additional criminal offence, particularly in Scotland, which is a separate jurisdiction in the criminal sense. It would be helpful to me, with the background that I have and the ambition that I have that the Bill will have some visibility in Scotland, to know what degree of communication there has been with the Scottish Government and other institutions in Scotland.

My second point relates to the challenge that the Government have set themselves to report annually in relation, effectively, to the success of the Bill and this area of law in meeting and achieving the objectives they set themselves in Clause 20. I wonder why the Government have restricted this method of reporting to this area of law. Why is it only in the area of IP law that we are to have reports about the success of legislation against the objectives that they set themselves? It would be an interesting principle to apply. The House and Parliament may be encouraged to replicate this provision in other pieces of legislation that are presented to it, so that reports over time will show whether or not the amendments that we make to the law, often having been persuaded by the Government that they will have certain consequences, are having those consequences. I wonder how we are to judge these reports. What metrics have to be applied to judge whether or not the changes to the law are as successful as the Government hope? I would be assisted in that regard if the noble Viscount would, in summing up, indicate how this is to be judged.

My final point is to reinforce what my noble friend Lord Stevenson said about the unitary court. Is it the Government’s expectation that there will be two of these courts, and is it their plan that one of them will sit in Scotland? If that is right, that again would be a very welcome fact to communicate to the people of Scotland so that they understand the importance of their place in this law in relation to their ambitions to share in the prosperity that this suggests. I reinforce the point I made about the United Kingdom to the noble Viscount and I would welcome it if he gave me some indication, either in summing up this debate or separately, of what communication there has been between the Government here, the Government in Scotland, the Scottish Parliament, the Scottish Law Commission and other institutions in Scotland so that I can follow that up during the course of my continued learning process in this, and can ensure that the Scottish voice is heard in these debates and discussions and communicated back to the people of Scotland.