Intellectual Property (Unjustified Threats) Bill [HL]

Debate between Lord Hope of Craighead and Baroness Neville-Rolfe

Report stage (Hansard): House of Lords
Wednesday 23rd November 2016 Lords Chamber

[Baroness Neville-Rolfe]

My Lords, I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, perhaps I may take this opportunity to say on behalf of my noble and learned friend Lord Saville of Newdigate, who chaired the Special Public Bill Committee, how much he regrets that he is not able to be present at this stage of the Bill. He has authorised me to say that he, having read all the amendments, fully supports them. The fact that they have been brought before the House in this way indicates the hard work that the committee did, and the Bill will no doubt be greatly improved by their being moved.

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, I am fairly new to this argument as unfortunately I was not able to be present as a member of the committee. Judges faced with the nature of this clause, in looking at the word “instructions”, would give the word a purposive meaning and would tend to look for a specific instruction as a necessary condition even if the words were not expressed in the Bill. For the avoidance of doubt, I respectfully suggest that the amendment moved by my noble kinsman has great force behind it. One would want to put the matter beyond doubt. For what it is worth, I support the amendment.

[Baroness Neville-Rolfe]

My Lords, I understand that this is an area of concern. I welcome the amendments from the noble Lord, Lord Stevenson, and the noble Baroness, Lady Bowles. I very much appreciate the noble Lord’s constructive approach to the Bill and his commitment to careful scrutiny. I think he said the amendment was probing in nature. I will start by setting out why I remain convinced that the exemption for professional advisers is so necessary, before talking about the specific amendment.

The Law Commission’s consultation demonstrated that the tactic of suing a professional adviser for making a threat has been used to hamper the legitimate client-adviser relationship. This causes problems not only for the adviser but for the client, who may as a result need to find a new adviser. I believe we heard convincingly during the evidence stages that this is a significant and common issue. It leaves rights holders in the position of having to pay indemnities before a legal adviser will write an entirely justified letter on their behalf. SMEs are more likely to be asked for such indemnities and are most affected by them.

I am aware that there were concerns regarding such an exemption, which might give rise to an increase in the use of unscrupulous threats. However, I do not agree for the following reasons. Where the professional adviser is exempt, the instructing client will remain liable. This ensures that recourse is available to those damaged by threats. A legal adviser who advises their client badly, leaving them liable for threats, risks a negligence action. The exemption does not prevent this. The exemption has been carefully and appropriately limited in its availability. The amendment would restrict the protection available for professional advisers to just those who are acting on “specific” instructions from another person.

In an increasingly global market—that was mentioned —we need to capture the many different types of foreign and domestic IP legal practitioner who may risk facing a threats action under UK law. As discussed in Committee, this should clearly include those in private practice as well as “in-house” advisers. For that reason, I do not agree that the exemption principle should apply only to the very limited category of circumstances envisaged by the amendment.

In practice, instructions come in all shapes and forms, written and oral. It is therefore unclear what would be required in order to demonstrate that an adviser was acting on a “specific” instruction. Such lack of clarity about “specific” instructions would be particularly problematic for in-house legal advisers, who are often acting on a general mandate to protect their company’s IP rights. The Law Commission agrees that the amendment risks leaving in-house advisers without protection. I apologise to the noble Lord, Lord Stevenson: I think that that is the response that he was expecting in relation to the amendment.

Enterprise Bill [HL]

Debate between Lord Hope of Craighead and Baroness Neville-Rolfe

Tuesday 19th April 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, the chairman of the Green Investment Bank, the noble Lord, Lord Smith of Kelvin, is not in his place this afternoon, but I am sure he would like it to be said on his behalf that he is grateful to the Government for agreeing to remove these three clauses from the Bill and to the noble Lord, Lord Teverson, for all the work that he has done to bring this solution about. I think it is right to say that as far as the chairman is concerned, his main aim in detaching the bank from the public sector is to attract investment. From his point of view, investment is vital if the bank is to fulfil its ambitious plans to double the size of its business and to deliver a growing green project—I am quoting from one of the letters which, as the Minister said, have been placed in the Library. So minimising the risk of the bank being classified as part of the public sector is part of the strategy of the noble Lord, Lord Smith, to attract investment, and from his point of view, the result of the amendments the Minister has moved will be to help him to deliver what he is seeking to deliver.

I think I should mention also that steps have been taken by the bank to make progress with the overall scheme that has been devised. A new special shareholder company has been incorporated and agreement from three very well-established and reputable institutions has been secured so that they will help the bank to find individuals to serve in a personal capacity as trustees of the special share that has been set up. The structures are now being put in place and the step being taken this afternoon is really the last in the series of steps to bring about the reality that the noble Lord, Lord Smith, has been seeking to achieve for some months. So, on his behalf, I repeat the thanks to various people, including the Minister, for what has been achieved.

[Baroness Neville-Rolfe]

My Lords, I thank all noble Lords, especially the noble Lord, Lord Teverson, for his gracious comments. This has been a brief but constructive discussion. Let me reiterate that the Government not only support the intention of this provision but are already acting on it. I am also very grateful for the intervention of the noble and learned Lord, Lord Hope, speaking on behalf of the noble Lord, Lord Smith, who could not be here today. He rightly underlined the importance of the external investment that the Green Investment Bank is seeking to raise to realise its exciting green ambitions.

Working across this House, we developed a mechanism that meets our purpose. It allows the bank to move to the private sector, meaning that it can grow and increase its green impact, and it ensures that its green mission is protected. With regard to the amendment tabled by the noble Lord, Lord Mendelsohn, the ONS publishes its decisions routinely. Indeed, for some classification decisions, such as that of Royal Mail or Lloyds TSB, the ONS also provides detailed reasoning behind the classification decision. I can reassure the noble Lord that the ONS has confirmed that it will publish a detailed explanatory article on its decision on the classification of the GIB.

However, I must emphasise—this is the nub of the problem—that a decision on the GIB will be taken only after the sale has taken place. There is a reason for this. Until the ONS is able to look at the full facts of the matter, such as the legislation which exists at that point in time, the precise nature and number of the shareholders, their rights and so on, it cannot make a formal decision on which party is in control of the body, and hence on its classification. That is why the Government engage with ONS during the development of policy proposals, where ONS will give a formal, but provisional, classification assessment. That is what we did with the special share structure which the GIB is now putting in place. As I mentioned earlier, the ONS has given us a formal opinion that this structure should not prevent the GIB moving to the private sector.

The noble Lord, Lord Mendelsohn, rightly asked why the decision could not be published earlier. As I have said, the decision will come after the sale has completed. Until the full details, which would include legislation, ownership and contractual arrangements, are known, any judgment on who controls the body could only ever be provisional—so providing an earlier decision would not enhance certainty. Unfortunately, the nature of these assessments can be complex and cases can be time-consuming, although I am glad to say that the ONS publishes its forward work plan every quarter, which sets out the classification issues that it will be considering.

So what is the way forward? I understand noble Lords’ frustration; I have to say that I shared it myself in spades on the question of public sector classification and the ONS’s role. These concerns go wider than just the issue of the Green Investment Bank, and I am happy to undertake to bring them to the attention of my colleagues in the Treasury to see if anything can be done for future cases to help rightly risk-averse government Ministers.

I hope that we can all agree that we have reached a good outcome for the Green Investment Bank and wish it well, and I hope that in the circumstances the noble Lord will feel able to withdraw his amendment.