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

Lord Clement-Jones Excerpts

Monday 14th January 2019 Grand Committee

[Lord Adonis]

The noble Lord makes an extremely important point, and not just in respect of paragraph 2.1. I have before me the whole of Part 2, which has a whole series of statements made by the Minister of State for Universities, Science, Research and Innovation, Sam Gyimah, to the effect that in his view,

“the Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018 does no more than is appropriate”.

But, as the noble Lord says, that Minister is no longer in office, so it would be appropriate for the noble Lord, Lord Henley, to tell us whether the new Minister for Universities, Science, Research and Innovation also subscribes to those statements. I should also point out to the Grand Committee that Sam Gyimah is no longer the Minister of State for Universities, Science, Research and Innovation precisely because he resigned in protest at both the Prime Minister’s existing deal and the possibility of the Government contemplating no deal.

Not only has there been no consultation on these regulations; the Minister is not even able to tell us whom the Intellectual Property Office spoke to. At the moment, the only person we know the office has spoken to so far is my noble friend Lord Warner—because he phoned it. The Minister was not able to tell us of anyone else who had been spoken to. He told us that, in an inversion of all the established practices, the consultation on these regulations will take place after they have been approved by the House, not before. The Minister who said that these regulations are proportionate and appropriate has resigned. He resigned specifically because he is not prepared to proceed with Brexit or contemplate no deal. There has been no formal consultation with any other partners. The Government cannot tell the Committee who has been informally approached.

We have no statement from the existing Minister of State for Universities, Science, Research and Innovation that these regulations continue to meet the requirements of the EU withdrawal Act. I would be perfectly happy for the Committee to adjourn while we ask Sam Gyimah whether it is still his opinion that these regulations are proportionate and appropriate. I suspect that it is not, given the statements he has made in the media over the last 24 hours about the huge risks, dangers and costs to the country of Brexit, and a no-deal Brexit in particular. It is a no-deal Brexit that the Government are asking the Committee to approve this afternoon.

The other vital point is that, not only do we have good reason to believe that the business community is worried about these regulations and concerned about the costs, but the relevant Ministers no longer even subscribe to the views they gave when the regulations were being drafted. However, we do now have the benefit of the view of the House of Commons on no deal. Last Tuesday, before we considered these regulations, the House of Commons, for the first time, specifically debated and voted on the issue of no deal. In its amendment to the Finance (No. 3) Bill, it rejected the contemplation of no deal by 303 votes to 296. That is not only a majority of seven against no deal; it was one of the largest votes the House of Commons has conducted on Brexit in any respect. The Grand Committee has good reason to believe that these regulations are being brought forward in defiance of the will of the House of Commons, because that House has said that it is not prepared to contemplate no deal.

In the briefing for her speech today, the Prime Minister said that she now thinks that no Brexit is a bigger risk than no deal. I am perfectly prepared to take that risk; some of us think it is well worth taking. Indeed, we are trying to encourage the Government to enter the supremely risky and dangerous territory of no Brexit. We know how risky it is; we do not need to conduct impact assessments because we are in it at the moment and it is a perfectly tolerable state of affairs. The Government describe it as a risk but, in the last 24 hours, the Prime Minister told us that the risk of no deal is declining. That is the Prime Minister’s judgment, and the House of Commons voted only six days ago, by 302 votes to 296, not to have no deal. We have had no consultation whatsoever on these regulations. In the debate on the no-deal proposition last week, the Exchequer Secretary to the Treasury, Robert Jenrick, said:

“As I made clear, the Government do not want or expect a no-deal scenario”.—[Official Report, Commons, 8/1/19; col. 269.]


If the Government do not want or expect a no-deal scenario, it is wholly within their power to rule one out. The Minister, who is an extremely distinguished and effective member of the Government, could make a contribution to that cause today by withdrawing these regulations in response to what appears to be the overwhelming opinion of the Grand Committee.

[Lord Clement-Jones (LD)]

It looks like we are on, my Lords. There is a great deal that one could say about the way in which the need arises for this SI and indeed for the others in this series. Today my noble friend Lord Tyler has called them “speculative”; last Wednesday I think he was slightly more scathing and called it a possibly wasted exercise, while the noble Lord, Lord Deben, was even more forthright, saying that we could be,

“conniving in what is manifestly a total nonsense”.—[Official Report, 09/01/18; col. 203GC.]

I have some sympathy with that statement, given that no deal, as the noble Lord, Lord Adonis, has explained, is now not the will of the House of Commons. At the same time, though, my noble friend Lord Tyler also referred to the report by the Constitution Committee, The Legislative Process: The Delegation of Powers, which made explicit reference to the critical importance of effective and timely scrutiny of Brexit-related secondary legislation. So I reluctantly accept that we still have to give it proper scrutiny in these circumstances but, whatever the merits of the statutory instruments, the least that we can do is debate them on the Floor of the House in the main Chamber, and I will be supporting that proposition if it is put later.

Each of the statutory instruments is important in itself. Even if they are only preparatory to no deal, in practice they may be indicative of longer-term government and IPO thinking, and may well be intended to take effect even if we have a deal and the transition period comes into effect. I have an enormous amount of sympathy for what my noble friend had to say about the time limitation and the need for a sunset clause, and for what the noble Baroness, Lady Kingsmill, said about it not being explicitly stated that the regulations do not come into effect if indeed there is a deal. There is a large gap in the middle of the regulations.

In the short term, these regulations are a partial solution to the problem of the UK no longer being inside what is called “Fortress Europe” for the purpose of the exhaustion of intellectual property rights. If there is no deal and the exhaustion SI comes into force on exit day, the effect is to implement, as the Minister explained, a modified version of the current regional EEA exhaustion regime. It would ensure that, post Brexit, once a product has been legitimately placed on the market in the EEA, it can continue to be resold into the UK without the rights holder preventing that. What we are doing is unilaterally allowing EU 27 goods already placed in the market there to be exported to the UK. That may be good news for parallel importers but it is not such good news for parallel exporters. It is clear from the Government’s small print that these exporters may well need to seek permission to gain entry into the EU. No wonder it has been called a one-way exhaustion regime.

What are the Government doing to mitigate the situation? It is clear—the discussion earlier elucidated this—that there has not been any formal consultation on this one-way regime. Indeed, it calls into question the statement about the lack of an impact assessment and what the Minister said in his letter about the draft regulations not changing current policy or imposing new liabilities or obligations on any relevant persons. If an exporter has to seek the consent of the rights holder on exporting into the EU 27 after a no-deal Brexit under the regime set out under these regulations, surely that will have a significant impact on that business.

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[Lord Clement-Jones]

The Minister may say that, but he has to answer the question about why the international exhaustion regime is not ruled out in the current SI, a point that both the noble Lord, Lord Stevenson, and I have raised. It is explicitly not ruled out, and that is the uncertainty contained in this SI.

[Lord Henley]

I do not think I can take it any further. As I have made clear to the noble Lord, this is dealing with no deal and it would be wrong to set that out in the no deal. We can now consider the various options and come forward with them in future—as the noble Lord would wish me to do—after we have considered that with appropriate businesses and consumers.

[Lord Clement-Jones]

My Lords—

[Lord Henley]

I am not giving way until I have finished this sentence. As I have made clear—I think I have already said this—this is going to take time and I do not believe there is a compelling reason to rush.

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[Lord Clement-Jones]

My Lords, without putting too fine a point on it, I am arguing that in a no-deal situation it needs to be clear that the international exhaustion regime does not apply. That is not clear. The noble Lord, Lord Stevenson, read out some legal analysis, and I have had the same analysis. The concern is that, although it is stated that the regional regime will come into effect regarding our relationship with the EU, there is no statement on any other application of an exhaustion regime. It is therefore quite possible, in the opinion of many IP lawyers, that the international exhaustion regime that existed before our membership of the EU could again come into effect, and the Silhouette case would not apply. That needs to be addressed.

[Lord Henley]

I will get to the Silhouette case later on. Although I will comment on it briefly, it might be that I need to write in greater detail.

Going back to the SI before us, it is clear that it maintains the status quo as far as possible. Regulation 2 ensures that the domestic exhaustion framework remains the same after exit. That delivers as far as possible a continuation of the current regional exhaustion regime. That is the legal clarity we can provide the moment. I cannot take the noble Lord any further, other than to say that we have been clear that this is a temporary fix and we will revisit it when we have gathered the evidence we need.

[Lord Clement-Jones]

My Lords, I have one final intervention on this point. The noble Lord can take us no further—he is effectively requiring us to make a leap of faith on this SI.

[Lord Henley]

No, I do not believe it is a leap of faith. It provides the clarity that business needs, in the form of a temporary fix. Thereafter—the noble Baroness, Lady Bowles, also asked about this—we will be much more able to consult fully on this instrument than was possible at this stage. At that point, we can take things further.

I will deal with one or two other points. The noble Lord, Lord Adonis, is not in his place so I do not think I need to deal with his points, but if he likes I will write to him on the question of whether “should” should be “would”, for example. The noble Lord, Lord Tyler, referred to comments made by previous Ministers. I assure him that, as always, Ministers speak with one voice and will continue to do so. Those statements reflect the view that the Government still hold.

The noble Lord, Lord Clement-Jones, asked about an impact statement and how it can be said that no impact on business is expected. An impact assessment is intended to look only at the impact of the legal instrument to which it is attached. This instrument does maintain the status quo within the UK and we therefore believe that there will be relatively little impact on business. There will, obviously, be some impact on parallel trade from the UK to the EEA and that will depend on the action of EU rights holders and, more broadly, on what the EU chooses to do on the issue of exhaustion. Those decisions are not within the scope of this instrument, so it is not possible accurately to reflect their impact in the assessment.

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[Lord Clement-Jones]

My Lords, one could easily quarrel with that statement. The regime set up by the SI is, as described by me, the noble Lord, Lord Stevenson, and the noble Baroness, Lady Bowles, an asymmetric or one-way exhaustion regime. How come that is not covered by an impact assessment?

[Lord Henley]

My Lords, I repeat what I said: this is designed, as an exit SI, to deal with leaving without a deal. We want to maintain the status quo and therefore anticipate the impact on business to be relatively small. I will complete what I am going to say before I take interventions.

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[Lord Henley]

I cannot remember whether that is the case with this set of regulations, but the noble Lord is right that, obviously, we do not consult on SIs with an impact of that order. My understanding is that he is correct, in that there is little or no impact in the case of these regulations. That is why most businesses to which I have spoken are broadly in favour of the regional exhaustion regime.

[Lord Clement-Jones]

My Lords, although the Minister has characterised these regulations as simply putting in place the status quo, he will recognise that business will not consider this the status quo. That is entirely the reason behind the argument that an impact assessment should have been done and that proper consultation should have been carried out.

[Lord Henley]

I accept that the noble Lord is right that business would consider a no-deal situation to have major implications. In relation to this issue, I believe that what we have set out in our no-deal regulations will have very little impact. That is the type of clarity that we are trying to give business.

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[Lord Henley]

I do not accept that. What we are trying to do by passing no-deal regulations is to ensure a degree of certainty for the businesses we are talking about. That is why we are dealing with the hypothetical situation, and I am perfectly happy to do that. I am also happy to say that I think it unlikely that there will be no deal, but the noble Baroness and others would think we were being irresponsible if we did not prepare for the eventuality of no deal. That is all we are doing.

I move on to a further question raised by the noble Lord, Lord Clement-Jones, on the exhaustion of rights and whether we should agree to the proposal when British businesses cannot export parallel goods to the EEA. Again, there may be restrictions on the parallel export of goods from the UK to the EEA, and the noble Lord is quite right to point out that that is a consequence of leaving the EU. However, businesses wishing to parallel export goods to the EU will have to check with rights holders whether they need permission so to do. The SI seeks to provide a continuation of the status quo most closely, and would likely therefore have the least economic impact while, as I said earlier, the Government consider the impact of any future change.

I turn to the Silhouette case. We are talking about a ruling from the Court of Justice of the European Union, and it may be that I need to write in greater detail on this subject. That ruling from the CJEU is required to implement a regional exhaustion regime, but there are unclarities—if I may put it that way—as to when the Silhouette case will become retained EU case law under the withdrawal Act. EU case law before exit will continue to apply to the interpretation of EU-derived domestic law after exit under the withdrawal Act. EU case law before exit relating to the effect of this law will, obviously, continue under Section 6(3) of the withdrawal Act. Again, with these SIs, we provide the legal clarity that is needed. However, because anything that comes from the Court of Justice of the European Union frequently requires a little extra clarity, if the noble Lord will bear with me, I would prefer to write in greater detail to him on the Silhouette case in dealing with those points.

[Lord Clement-Jones]

My Lords, I accept the Minister’s offer, because that was quite a confusing response. Precisely because a no deal is envisaged, there is the question of whether CJEU case law will continue—whatever we say about it—with regard to other exhaustion regimes which may or may not spring up. It would therefore be useful to get a letter from the Minister after this SI has been debated.

[Lord Henley]

My legal eagles will be hard at work on producing just such a letter for the noble Lord, and I hope it will provide him with a degree of clarity—to the extent that that can be provided.

The noble Lord also asked about our plans for IP in the future relationship. As we made clear in the White Paper, arrangements on future co-operation on IP would provide important protections for rights holders, giving them confidence and a secure basis from which to operate in and between the UK and the EU. As part of this, the UK will seek to remain within the unitary patent system and the unified patent court. The political declaration states that as part of the future framework, the UK and EU should provide for,

“the protection and enforcement of intellectual property rights to stimulate innovation, creativity and economic activity”,

and co-operate on areas of mutual interest. Obviously, the specifics of that will be a matter for detailed negotiations on the future partnership.

The noble Lord also asked about provisions concerning designs and international systems for trademark and design protection. The instrument before us today focuses on trademarks, specifically EU trademarks and domestic trademarks derived from EU legislation. An instrument setting out our intentions for continued protection of unregistered community designs and international trademark and design rights will be laid in due course. The noble Lord mentioned the draft SI on copyright, and I can give an assurance that we are working hard on the instrument and will bring it forward as soon as possible.

[Lord Clement-Jones]

My Lords, can the Minister confirm that they will be no-deal SIs on the same basis as the other three SIs being put forward today?

[Lord Henley]

If it is necessary that there be no-deal SIs, then yes, there will be a no-deal SI. I am advised that that is the case, so there will be scope for the noble Lord to have another debate on this issue. I look forward very much to that happening. Whether my noble friend Lord Bates looks forward to that is another matter, but he has other matters to deal with.

Finally, the noble Lord, Lord Stevenson, asked about the practical benefits that this SI proposes: why should we agree to this proposal when the EU could get flooded with parallel imports from the EEA? The approach simply ensures that what happens currently will continue after exit day, and allows for IP-protected goods in the secondary markets to continue to be imported from the EU, including medicines. This will ensure continued consumer confidence and resilience of the supply of goods into the UK. That will be the continuation of the current situation; there is no reason to anticipate any increase in parallel traded goods after exit.

I hope I have dealt with all the points that I tried to deal with; I have also given an assurance that I will write on other matters. I beg to move.