Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL]

Debate between Lord Lansley and Lord Hope of Craighead

Report stage
Tuesday 16th January 2024 Lords Chamber

[Lord Lansley (Con)]

I hope that I will be equally quick on this amendment, as there are points of more substance and principle to be debated later.

We discussed Amendment 3 in Committee. Essentially, it relates to a set of circumstances in which trademarks and GIs—geographical indications—may come into conflict and the circumstances in which the Secretary of State can make a decision that there would be confusion between the two. The point is that the GIs should be compared to existing trademarks and registered trademarks; to circumstances where, on the date which the GI is submitted, there are applications for the registration of trademarks; and, as the legislation refers to, where trademarks are “established by use”.

My problem is that nowhere in trademark legislation do the words “established by use” appear. My noble friend’s letter to me of 10 January said that “established by use” refers to unregistered trademarks. We appear to be putting into statute the concept that where a trademark has been used, it can be established but not registered, and I am not sure that that is helpful. What is more helpful would be to indicate that the Secretary of State should have a discretion to look at a GI that may come into conflict with an unregistered trademark—there are such things—and where confusion would result. My noble friend says that they may just use a trademark once, and the fact that it had been used once at some point in the past may lead to this confusion. As the legislation is drafted, the Secretary of State would actually have the discretion to judge these matters and to say whether confusion would arise. If a trademark has not been used prior to that date in any substantial way, I think the Secretary of State could ignore it and say that the GI has a meaning that people will readily understand.

I have a problem with the term “established by use” and think that “in use prior to that date” is more straight- forward and has the meaning we are looking for; “established by use” runs a risk of establishing that, in law, trademarks can be established by use. That is not something that the trademarks legislation currently admits of. I am not an expert in intellectual property matters, but I have talked to one or two who are, as we do in this place. I think there may be a problem with this, but I stand to be corrected by my noble friend. For the moment, I beg to move Amendment 3.

[Lord Hope of Craighead (CB)]

My Lords, I cannot claim any expertise in trademarks or their registration, but I think there is force in the point made by the noble Lord, Lord Lansley. The expression “established by use” is slightly vague, whereas the words that the noble Lord would substitute—of it being actively “in use prior to that date”—make the point rather better. I support the amendment, for what it is worth, in the interests of clarity.

Professional Qualifications Bill [HL]

Debate between Lord Lansley and Lord Hope of Craighead

Tuesday 9th November 2021 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, the noble Lord, Lord Foulkes, has drawn attention to the fact that I have not put my name to these amendments, although I have done so to Amendment 10. It was an accident; it was just that at the last moment we were trying to gather together who was to sign up to what. I fully support these amendments, just as I do Amendment 10. In some respects, the case for consultation is stronger in the case of these amendments because they are talking about regulations, not just advice, which is what Amendment 10 is talking about. It is particularly important when one is drafting regulations that complete information is obtained before regulations are finalised.

To pick up a point made by the noble Lord, Lord Bruce of Bennachie, I want to mention that Craighead lies north-east of Cumnock and is a convenient way to get to Bennachie, so we are all part of the same bit of geography.

The noble Lord made the point about Scots law being different from English law, which of course it is. There are two important aspects of Scots law that are very different from English law, apart from land law, and are much more frequently encountered: family law, which is entirely different, and criminal law, the procedures and much of the substance of which are very different too. That is just a reinforcement of the point that the noble Lord was making about appreciating and understanding the differences before the regulations are finalised.

I support entirely the points made by the noble Baroness, Lady McIntosh, in introducing this group. She mentioned a point that I want to pursue, which is the question of whether the Welsh and Scottish Administrations were willing to support a consent Motion. I am a member of the Constitution Committee, and one of the advantages that I have had of doing that—I am waiting for the Minister to listen to this because it is rather important—is that we took the opportunity to go to Wales to meet members of the equivalent committee in the Senedd and to Scotland to meet members of the committee in the Scottish Parliament. One point that came across in both meetings was grave disquiet about the way that the legislative consent process is being handled.

The worst example that was quoted frequently is what happened in the case of the United Kingdom Internal Market Act. I would be grateful if the Minister would say a bit more about the process with which he was involved in consulting with the Welsh and the Scots with a view to obtaining consent to this measure. Among the points made was that they were consulted too late, they were not given enough information to be able to form a view and, when changes were made to the Bill, they were not fully informed about what those changes were in time for them to rethink and reconsider.

I know I am pressing the Minister to a point that he may not be fully prepared for and, if so, perhaps he would be kind enough to write to me to explain what went on. I am speaking on behalf of the Constitution Committee when I say that we would be very interested to know from the perspective of the UK Government about how the process was handled. Did they give the Government enough reasons for not wanting to give consent? Was there enough of a dialogue to enable the disagreement to be flushed out and see whether it could be resolved? These are very important issues that extend well beyond this Bill, and any help that the Minister can give about how the process was handled would be extremely helpful.

[Lord Lansley (Con)]

My Lords, I hope noble Lords will forgive me, but I want to intervene briefly in the debate. I am Lord Lansley, of Orwell, which is nowhere on the route that has been mentioned; it is not even between the locations in Scotland and Boscobel. You could not even go via Orwell to get to Boscobel, which is where I hope we are going to end up.

I shall say just a couple of things. First, I was interested in what the noble and learned Lord was saying about the Constitution Committee and the legislative consent Motion process, but I have to say, in relation to this Bill, that we completed Committee stage at the end of June and I tabled my amendments in the early part of July. We are now in November. There has been no lack of opportunity for the devolved Administrations to see precisely what the Bill is intended to do, what the remaining issues of controversy might be and what the intended outcome looks like. Frankly, they have had every opportunity to consider a legislative consent Motion and to have passed one, so if they do not then I do not know why not.

Secondly, I am grateful to my noble friend Lady McIntosh. She was looking at why we are consulting with regulators over the powers to make regulations in Clauses 1, 3 and 4—that is in Amendment 13, which I support—but not other clauses. As it happens, I agree with my noble friend, or at least I hope I do, that Clauses 5 and 6, in so far as they are about tidying up the statute book, are not really appropriate for consultation processes; they are essentially just working out the legal statute-book consequences of the Bill.

However, I suddenly realised that there is a regulation-making power in Clause 10 that the Government are not intending to consult upon. I thought, “Hang on a minute, I thought I agreed with the Government because I tabled an amendment at the beginning of July to press the Government on the question of consultation with regulators”, so I looked back at it. Of course I subsequently withdrew it when the Minister tabled his own amendment, but when I looked at it I realised that what I said originally was, and I quote myself:

“Prior to making regulations under this Act, other than those made under sections 5, 6 and 18”—


that is, Clauses 5 and 6 relating to retained EU law and Clause 18 on commencement—

“the appropriate national authority must consult such regulators of regulated professions as appear to the authority to be likely to be affected by the regulations.”

So my amendment would have included consultation on the regulation-making power in Clause 10, which relates to the duty to make information available to overseas regulators. I freely confess that I had not noticed the difference and that gap. While I very much support what the Minister has tabled in Amendment 13—I very much endorse it because it largely achieves what I was hoping for in the amendment that I tabled way back in July—I ask him to explain the process of thinking by which Clause 10 has been left out.