Considered in Grand Committee
That the Grand Committee do consider the Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018.
My Lords, if it is convenient, I shall speak also to the Patents (Amendment) (EU Exit) Regulations 2018—
Will the noble Lord give way until I complete this sentence? I shall speak also to the Trade Marks (Amendment etc.) (EU Exit) Regulations 2018, which were laid before the House on 28 November. I shall give way to whichever noble Lord wishes to speak first.
May I ask that these regulations be considered separately? Can the noble Lord also tell us whether they have been debated in the House of Commons? I could not find any reference to a Hansard account of such a debate in the Commons. If they have been, can he give us a reference to the debate?
My Lords, I am not aware that these regulations have yet been through the Commons, but they will in the usual way in due course. It has been agreed, and it has been advertised on the Order Paper, that we would take these three regulations—
With respect, that is only if everyone agrees—and I for one do not agree.
I notice that the noble Lord does not agree, but in line with the usual courtesies of the House, it would have been helpful if he had at least mentioned this to his noble friend the Opposition Chief Whip or even to my noble friend the Government Chief Whip.
If the noble Baroness will give way and be patient. If it is convenient to the Committee, I think that what I will do is speak to all three sets of regulations and I will then move the first one. It is then open to noble Lords, when I formally move the others, to speak to them. For the moment, I intend to speak to all three—
My Lords, this is not the most sensible way to proceed. Distinct legal issues arise in each of these statutory instruments and it would be much more sensible if they were debated separately. Having served on the Committee in which these instruments are put forward, I recognise that it is sometimes easier in terms of efficiency to take them all together. However, these instruments give rise to serious, distinct and important issues, and they really ought to be debated separately.
Can I be clear on what the noble Lord is saying? Is he saying that he will move these three regulations en bloc and make his speech on all three, but he expects the rest of us to wait until he formally moves the individual regulations before we speak to them? That does seem to be a slightly “Fred Karno” way of proceeding.
My Lords, obviously I am in the hands of the Committee and I am quite happy to do whatever the Committee finds most convenient. I did not say that I would move all three en bloc; I said that I would move the first one and then speak to all three. That is very different, if the noble Lord follows me. The only point I was making is that there is an understanding that certain things are agreed by the usual channels and that these instruments would be spoken to together. One of the usual courtesies of the Committee, but obviously the noble Lord does not wish to follow that, is that one would have a word with the usual channels, or at least the noble Lord’s noble friend.
Sit down. The noble Lord can wait a minute.
I am not giving way—
That is a terrible way to address another Member of the House. Will the noble Lord withdraw that remark immediately? This is absolutely disgraceful. I have never been treated like that before by anyone.
I will apologise to the noble Lord for that. He has probably been treated in much the same way on many occasions. I am just explaining to him what the usual procedures are. If he does not want me to do that, I will take it back and go back to the beginning—if he will give me a couple of minutes—move the first regulation, speak to that, listen to noble Lords and then do the others.
The noble Lord said that he will apologise; when will that happen?
The noble Baroness and noble Lords opposite are having fun. I will continue.
We are doing our job.
I have never been addressed in that way before by a colleague, in 26 years in the House of Commons and now 13 in the House of Lords: by someone saying, “Sit down!” in a peremptory fashion. Perhaps if the noble Lord had said, “I am not prepared to give way at this moment”, we would have understood. I was rising to say that if this Minister had any degree of sensitivity at all, and if he had been watching what had been going on the Floor of the House and in this Committee, he would have seen that we have on a number of occasions challenged these matters being taken together. I have done it myself on three or four occasions on the Floor of the House, and I have done it twice in this Committee. A number of other Members, including my noble friend Lord Adonis, have also raised the issue. If the Minister had been aware, he would have understood that. I have also mentioned it to our Chief Whip and to the noble Lord, Lord Taylor, the Government Chief Whip. If that has not been communicated to the noble Lord, Lord Henley, it is certainly not our fault.
My Lords, no communications have come to me to the effect that the noble Lord wished to take these three regulations separately. My understanding was that we would take them together, and I thought that it would be convenient to the Committee. I have now amended what I am going to say and, if the noble Lord is happy with this, I will go back to what I said originally and move and speak to the first one, and if the noble Lord and his noble friend, the noble Lord, Lord Stevenson, will bear with me, we will take all three separately. I have a number of speeches, and I can use whichever the noble Lord prefers to have first. However, he would probably prefer to have the first one, concerning the Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations, which were laid before the House on 27 November.
This draft instrument ensures that the United Kingdom’s domestic rules for the exhaustion of intellectual property rights will continue to function in a predictable manner in a scenario where there is no negotiated agreement on the terms of the UK’s exit from the EU. The UK is recognised for its strong intellectual property regime—
My Lords, can the Minister expand for a moment on what he has just said? Am I to understand that these regulations, like the SIs we had in Grand Committee last Wednesday, are a government contingency planning proposal for the very exceptional circumstances of a no-deal exit from the EU on 29 March? If so, can he consider the contribution from his noble friend Lord Deben during our sitting last Wednesday? He and many others pointed out that, since the Prime Minister is now making it clear that the no-deal outcome is not her Government’s preference—she said that it is both undesirable and unlikely—what we are doing this afternoon concerns the very speculative situation which the Government themselves are opposed to. Can the Minister confirm that?
My Lords, what we are doing concerns the event the noble Lord is addressing—that is, if there is no deal. If there is no deal, we will need these regulations; if there is a deal, they are irrelevant. It is as simple as that.
My Lords, is the clarification which the Minister has so helpfully given clear in the regulations: that they will fall into desuetude in the event of no deal?
I am making it clear in my speech that these are no-deal regulations. They are described as EU exit regulations; that is the point behind them. In the event of there being no deal, they come into effect.
Exit has many meanings. It would be clearer if it said in the regulations that they will fall in a no-deal situation.
I am making it clear to the Committee that they fall—they have no effect—if there is a deal. The point of them is to deal with the unlikely eventuality of there being no deal—or if there is no exit.
We are looking for a deal. We hope there will be a deal, in which case our proceedings are irrelevant and the regulations will have no effect. If there is no deal, obviously we will need them.
If I may make a little progress, I will continue. I believe that we are recognised for our strong intellectual property regime. We were ranked third in the world by Taylor Wessing in 2016, and our enforcement regime was ranked first by the US Chamber of Commerce in 2017. UK businesses are reliant on IP rights—IP-intensive industries generated more than a quarter of UK employment and 43% of UK GDP in 2013. The IP framework is designed to provide a balance. It should reward creators of IP and encourage innovation, while balancing the needs of other businesses and consumers by managing the scope and duration of, and exceptions to, rights.
The intellectual property framework provides rights holders with some exclusive entitlements, such as the right to control distribution of a protected product. However, there are instances where this right is limited in order to promote the free flow of goods across borders.
The exhaustion of IP rights refers to the loss of the right to control the distribution and resale of the product once it has been placed on the market in the specific territory by or with the permission of the rights holder. The UK is currently part of a regional exhaustion regime which allows the movement of IP-protected goods across borders within the European Economic Area once they have been placed on the market by or with the permission of the rights holder anywhere within the European Economic Area. This regional regime enables a balance between allowing rights holders to recoup the investment in innovation while facilitating the secondary market and free circulation of goods within this area.
The UK laws which currently provide for this regional exhaustion regime need to be amended to ensure that they continue to function appropriately after exit. The statutory instruments will ensure that there will be no change to the position on exhaustion rights in relation to the parallel importation of goods from the EEA to the UK. There may, however, be restrictions on what can be exported from the UK to the EEA on the same parallel basis, but that is a matter for the EU legal system and is not something we can control.
From what the Minister just said, it sounds as though British holders of intellectual property could be at a significant disadvantage. Is that in fact the case?
Obviously, there will be changes once we move out. We are trying to set out what will happen to British businesses here. Obviously, we cannot control what happens in the EEA. There might be disadvantages. That is why we are seeking to get a deal. The regulations relate to what happens if there is no deal.
I have been the chairman of a number of companies holding significant intellectual property rights. I am very concerned that there appears not to have been any consultation on these matters. Can the Minister correct me if I am wrong and tell me what consultation there has been? When we are considering regulations that could put British businesses at a major disadvantage, it is very important that consultation should have taken place.
My Lords, I will deal with consultation when I wind up this debate after the noble Baroness and others have spoken.
Paragraph 10.1 of the Explanatory Memorandum says:
“No formal consultation has been carried”.
My Lords, there has been no formal consultation. Obviously, there have been informal discussions, as officials always have, but there has been no formal consultation by me and other Ministers. The Intellectual Property Office—
Could I finish this point? The Intellectual Property Office has been engaging with businesses across a number of sectors on the implications of exit since the referendum result.
Why has there been no formal consultation, given the interests at stake to which my noble friend has just referred? Should these regulations not be withdrawn so that there can be formal consultation and the House can take account of it before we agree the measure?
It is important that we make sure that we are capable of dealing with no deal. That is why government has taken various actions for a no-deal scenario. At the same time, negotiations should continue on what that deal should consist of to make sure that we get that right. As I made clear, the Intellectual Property Office has been engaging with businesses across the sector and will continue to do so to make sure that we get the right deal that will satisfy the noble Lord and others.
Can the Minister tell us what the results of that informal consultation have been? It is important to the Grand Committee that we know what views businesses have expressed to the noble Lord’s department.
At this stage, I am not in a position to tell the noble Lord the result of that consultation, or those discussions. What I can say is that we will continue to try to get the right deal. That is the important thing—the noble Lord and I might be at one on that point. These regulations are about making sure that, should there be no deal, we are in a position to deal with that side of things—obviously, in no deal, we cannot deal with the other side. We want to be able to deal with those things that are within our control.
My Lords, we are trying to do our job here. The Minister has confirmed that the regulations potentially put British businesses at a disadvantage, because there will a number of situations where they will not be able to export the goods they currently export. In those circumstances, we need to think carefully about these regulations. Some of the results of the consultation should be made available to us. I know that none of the businesses with which I am concerned has been consulted, including small and large. I would be grateful for some tangible evidence of the results of the consultation. This is important to us; British business will be placed at a significant disadvantage.
I may be able to help the Minister because I spoke to the IPO this morning about the second set of regulations. It is clear that there was no formal consultation with the trade body representing the companies affected by those regulations. If I were being a little unkind, it sounded as though officials got hold whoever they could to have a chat. To be fair to the IPO, it never made any claim that it had had a formal consultation. I give the Committee that information in relation to the second set of regulations because it may have been the pattern applied to all these regulations. Perhaps the Minister could clarify that.
My Lords, I thought that we were debating the first set of regulations at this stage. We will get on to second set in due course as the noble Lord wishes.
As the noble Baroness, Lady Kingsmill, and I know, there will obviously be changes for businesses as a result of Brexit. There will be different changes for businesses if there is a no-deal Brexit. These regulations are about dealing with the no-deal scenario. The noble Baroness, the noble Lord and all noble Lords would think we were wrong if we did nothing about the possibility of a no-deal Brexit. That is why we are moving a number of regulations at this stage and why we published various technical notices and made them available to industry. That is why the original drafts of the technical notices led to various improvements.
At this stage, we know that business wants, in the main, to have the status quo in the event of a no-deal Brexit, and we hope that it will also have the status quo if there is a deal. We want to see what the deal is first and get that dealt with. However, in the event that it happens, we also have to make provision for there being—
I will give way to the noble Lord in a minute, when I have finished. I can only answer points if I am allowed to complete them as they come up. We will try to get the no-deal provision set up in the manner which is best for business, to the extent that we can deal with no deal. If there is no deal, there will obviously be changes that we have no control of. The noble Baroness and I know that; everyone does. If there is a deal, as I hope, then everything is fine. I doubt that the noble Lord, Lord Adonis, would be happy but then he probably never will.
I would if we stayed in the European Union.
That is not a matter for debate on this occasion. We are not discussing that.
But it would make me very happy.
I am grateful to the Minister, who has been generous in his advice to the Grand Committee, but I have a specific question on the point he has just made. The implication of what he has just said is that his department is already preparing, in parallel, the secondary legislation that will be required if the Prime Minister’s deal does go through. Or is he saying that, if the Prime Minister’s preferred outcome does get the support of Parliament, there will be no necessity for any secondary legislation? This is a very important distinction. If it is necessary to introduce secondary legislation to implement the specific responsibilities of government under the deal that the Prime Minister now prefers, then your Lordships’ House—which is going to have to consider it in due course—should know. On the one hand, we have this set of proposals, which is speculative, but there is something that might conceivably be more advantageous, both for the Government’s business and for the proper consideration of secondary legislation by this House. Is a parallel exercise going on for what the Prime Minister herself says is her preferred and more likely outcome?
There is the Prime Minister’s deal, which I very much hope another place will agree to in due course. The noble Lord will be the first to accept that another deal might come forward. My department will be ready for that to make sure that, whatever deal comes about, we can then negotiate—we have the transition period for that—the right deal to ensure that in due course, we have the right regime in place concerning the issues we are discussing.
What we are discussing here today is that no-deal option. As I have made clear to the noble Baroness, Lady Kingsmill, and others, that no-deal option will not necessarily satisfy everyone, and we will not necessarily be able to do everything possible to make sure that businesses have exactly the same regime, as we can control only what happens here. Other things might have to be left undone, if I can put it in those terms.
What we have to do here, in debating these regulations, which relate to a no deal, is to try to make sure that we can offer to business—that is why we are putting them forward—the best possible option in the event of no deal. That is what I am trying to do today and what I will continue to do if the noble Lord—
I hate to labour the point, but the Minister did himself say that British businesses will potentially be at a significant disadvantage, and that that is what these regulations are trying to deal with. Does he not think that this ought to be debated in the Chamber—that it should be subject to a wider debate?
The noble Baroness is putting words into my mouth that I did not utter in saying that I thought British business would be at a significant disadvantage.
You said it would potentially be at a disadvantage.
I ask the noble Baroness to refrain from intervening from a sedentary position. What I said is that things will be different, and what we are trying to do is make sure that things will be as good as possible in the event of there being no deal. If there is a deal, I hope we will get the right deal so that we can see continuity for all businesses as far as possible in this area.
If the noble Baroness feels that the subject should be a matter for wider debate, that is what is happening in the Chamber at this very moment on the general subject of Brexit, business and all of that. Here we are dealing with one small point relating to how we ensure, in the event of there being no deal, that the right things are in place. I leave it to the noble Baroness as to whether she wants to go back into the Chamber and give those speeches but, when she does, I hope she will refrain from trying to suggest that I said things that I did not. All I have said is that we want to ensure that we can get things right in the event of there being no deal. That is what we are discussing today.
If I may, I will continue on the question of security of supply. Continuity of existing parallel trade into the UK from other EEA states is important across several sectors, including medicine and food. The maintenance of the current position on exhaustion rights in relation to parallel imports will help to ensure the continuation of supply for such goods as medicines in a situation where there is no deal with the EU.
My Lords, paragraph 12.2 of the Explanatory Memorandum to these regulations says:
“There may be some costs to businesses parallel exporting from the UK to the EEA”,
as a result of the regulations. Can the Minister tell us what those costs might be?
I cannot give a precise figure for those costs. My belief is that they are generally relatively minor, but I will write to the noble Lord with the details.
Beneficiaries include the NHS, which will continue to have the ability to maintain security and diversity of supply of medicines from the EEA, and to source medicines at the best price from within the EEA without being restricted by IP rights. As I mentioned, and as set out in the technical measures published in September last year, this fix is planned to be a temporary measure. The Government are considering options for what exhaustion regime is best for the UK in future while extensive research is under way. I stress that such an important decision should not be rushed. We will ensure that we have a robust evidence base and that full consultation with stakeholders is completed before any decision is made.
The instrument is extremely important to support the movement of goods and the supply of essential commodities such as medicines. It provides—
I am going to conclude this section and then the noble Baroness may intervene. It provides clarity and legal certainty for businesses and consumers by preserving the status quo as much as possible following our exit from the EU. It is a necessary and technical fix for UK laws to prepare for our exit from the EU. I give way to the noble Baroness.
I am grateful. The Minister has just referred to consultation. Paragraph 10.1 of the Explanatory Notes merely says:
“The Intellectual Property Office has undertaken information gathering with stakeholders”—
we do not know who they are—and that:
“No formal consultation has been carried”.
Why has it not been done before?
Because there are other matters that will be more important, such as getting the consultation right on what happens should there be a deal. These are no-deal regulations and we want to get them right in the event of no deal. Obviously, we will consult as the noble Baroness wishes as we seek to get the deal right in due course. I hope I have dealt with those questions and I commend the regulation to the Committee.
My Lords, before the noble Lord sits down, the question that is coming up time and again in the Grand Committee is: why was formal consultation not conducted before rather than after these regulations were made? With respect, the Minister has not given us a satisfactory answer. He said that consultation is taking place on arrangements concerning the deal, but the Government are telling the House that we may have to enter into a no-deal situation in two months’ time, so how can he say that it is more important to consult on arrangements concerning the deal than on no deal? How can he regard that as a satisfactory point to make to the Grand Committee, when we are being asked this afternoon to consider arrangements for no deal? It leads me and other noble Lords to think that we are not in a position to scrutinise these regulations at all if there has been no consultation nor the ability by the noble Lord to tell us who has been informally consulted by the Intellectual Property Office.
Before the Minister rises to answer that, I want to put a proposition to him. He gave me a rollicking earlier for talking about my conversation with the Intellectual Property Office in relation to the second lot of regulations, but what it said is relevant to the point made by the noble Lord, Lord Adonis, which is that there was so much security around these “consultations” or discussions—no doubt the concerns about security came from a political direction—that it was difficult for civil servants to have a formal consultation on these regulations. Can the Minister own up to whether that is true?
Again and with all due respect, I think that the noble Lord is possibly misinterpreting what I said.
I did not say you said it; I said the IPO said it.
What I am trying to deal with is the question about how we get a no deal. If there is to be no deal, we want businesses to be in as similar a position to their present one as is possible. I can speak only for the orders that I am dealing with today and tomorrow, but I imagine this will be true of a whole raft of orders coming from other departments. What we are trying to do is put those businesses in a position whereby they can cope as far as is possible with no deal. Meanwhile, as part of the ongoing, sensitive negotiations over the withdrawal agreement—and on this I can assure all noble Lords there will be consultation until the cows come home—we will try to make sure that all these matters can be dealt with. I give an assurance that the IPO has engaged with legal and business stakeholders as far as possible on the drafting of this statutory instrument and what it achieves, and will continue to do so on anything that is needed in the event of a deal—because in the event of a deal, I imagine we will be here again. I look forward to debating these matters with the noble Lords, Lord Warner and Lord Adonis, the noble Baroness, Lady Kingsmill, and others so that we can get it right.
These regulations relate to the no-deal option. We are trying to ensure that in the event of no deal, as with the technical notices we have put out, businesses know what the position will be. Obviously it will be slightly different from where we are at present. That is the inevitable result of no deal. But no deal is still on the table, and until we know that my right honourable friend’s deal has been accepted by another place, I am not in a position to go any further: that is why we want to prepare for the no deal.
My Lords, I did not come to Grand Committee today expecting to speak on intellectual property. I am here to do financial services but, since I spent the best part of 40 years as a European patent attorney, it is hard not to intervene a little. I remember very well from when I started my training the famous Wella case on exhaustion of rights and parallel imports from the US, and what would happen when we had the single market and exhaustion of rights within the EU. It was a very complicated subject, a wonderful training ground and, I am sure, a huge earner for the lawyers who dealt with it. As patent attorneys, we tended to stay out of things.
My Lords, I thank the noble Baroness for giving way. Could she explain to the Grand Committee—some of us are not familiar with all the details of this—what parallel exporting is and where the additional costs referred to in the Explanatory Memorandum are likely to arise in a no-deal situation?
The issue is where something has come from. You could export it under the terms of a licence, but you might have got it from some third country. In the Wella case, it was the US. It became very difficult to determine where the precise shampoo in question had come from and whether it had originated under a legitimate licence or in the US. It could become very difficult to tell when people took off the labels that said where it had come from. Those were the kinds of issues, and I can see that maybe BEIS is trying to avoid replication of some of that vis-à-vis the EEA.
However, the issue of symmetry and asymmetry—which I think is what the noble Baroness, Lady Kingsmill, is referring to—comes up time and again. As a member of Secondary Legislation Scrutiny (Sub-Committee A), I have seen it in, I guess, half the statutory instruments that have come before us. Sometimes you take the symmetrical option, which means you close things down. Where you think the EU’s logical approach will be to close down on it, we close down on it. Then there are asymmetrical cases—which I think this is, and which I think I have seen more of from BEIS—where priority has been given to continuity. The result is that businesses can benefit from knowing where they stand, at least from the UK side, but it may lead to a competitive disadvantage if their exports are not similarly protected. That is an issue.
I wonder why we have a single shot at correcting it in the event of no deal. You could have said that continuity of supply—especially of drugs and so forth—at the point of Brexit is important, and so you will make some provisional means for trade to continue. Then at some point you will have to analyse it and close it down. I have been reading it only very quickly here, but that does not seem to be the approach taken. It looks as if a single shot is fixed in our legislation now, and I think it would give businesses cause for concern. I would have been happier to see some kind of temporary provision put in there, maybe with a sunset clause after three years, by which time we could have sorted things out. Then it would come back in another statutory instrument or in primary legislation for us to say: “Well, okay, what are we going to do? What has the EU done? Have we got some kind of arrangement with them within that three years?” Or are we going to say, “Now we understand a bit better how things have sorted themselves out, we’re going to go for the symmetrical option, not the asymmetrical option”?
I am sure that it is possible within the powers that the Government have given themselves in primary legislation for them to come back and do that, but it would have made things clearer for business and others to have that message put out there in advance, partly to get negotiations going if those were necessary and partly to say, “This is something that you all need to be thinking about”. I would be interested to hear from the Minister how in this instance such arguments have panned out—what has been said on one side, what has been said on the other and whether something is already up the Government’s sleeve to say, “Well, actually, we’ve thought about this and we are going to be coming back in three years’ time”. It would be reassuring to hear that even if in the long term we ended up deciding that it was best to stay with the way this has been adapted now.
My Lords, with great consideration, the Minister took a number of interventions on his speech and covered quite a number of points. However, a lot of issues are raised by the Explanatory Memorandum and the Commission note of 6 September 2017, which is the position paper on intellectual property rights, including geographical indications, and which the Treasury made available to me for this debate. I want to press the Minister on a number of points.
The section on the general principles under which intellectual property will be handled in a no-deal scenario, on pages 2, 3 and 4 of the note, all the way through uses “should” rather than “will” in respect of the mutual recognition and enforceability of rights. Perhaps I may go through them because these are all very important points. Under the first general principle, which is intellectual property rights having unitary character within the European Union, the paper states:
“The holder of any intellectual property right having unitary character within the Union and granted before the withdrawal date should, after that date, be recognised as the holder of an enforceable intellectual property right … In the specific case of protected geographical indications, protected designations of origin and other protected terms in relation to agricultural products … this principle should also imply that the United Kingdom puts in place, as of the withdrawal date, the necessary domestic legislation … The implementation of this principle should include, in particular, the automatic recognition of an intellectual property right in the United Kingdom on the basis of the existing intellectual property right having unitary character within the Union”.
Under the second general principle, it states:
“Applications for intellectual property rights having unitary character within the Union … should be entitled to keep the benefit of any priority date in respect of such pending application”,
and that, in respect of applications for supplementary protection certificates for an extension of their duration,
“a person should continue to be entitled to obtain in the United Kingdom a supplementary protection”.
This carries on in respect of a whole number of further rights. The Grand Committee and the House would obviously wish to be assured that those rights will continue, but my understanding is that whether they will crucially depends on what our EU partners do in respect of those rights if we leave with no deal. In respect of all these reciprocal rights and their enforceability, I completely understand that the Government are putting in place the necessary changes to UK law for us to do our part to ensure that rights are enforceable and recognised, but where the EU paper uses “should” in respect of all these rights, can the Minister tell us what is likely to happen after the end of May? What situation does he believe will apply if we leave the European Union without a deal?
I am not an expert like the noble Baroness, Lady Bowles, who may indeed be able to give a view on this, but it seems that we have no control over that at all, and that, crucially and solely, that depends upon the action of the European Union itself. These aspirations—which are set out in the Commission paper of 6 September and in the statements the Minister has made to the Committee about there not being an interruption in the recognition and enforceability of these rights—absolutely crucially depend on what the European Union does after the end of March, not just on what we do. Therefore, a vital issue for the Grand Committee and for the House when it discusses these regulations is to know what we expect the European Union to do. If in fact we have no reason to believe that the European Union will continue to play ball in the mutual recognition of these rights and their enforceability, do not all the concerns that my noble friend Lady Kingsmill raised apply in spades? It does not matter whether we agree to all these regulations and do everything that the Government want; all that could be superseded by an inability to have these rights enforced or recognised because the European Union itself will not undertake to do so after the end of March.
I would therefore be extremely grateful if the Minister responded in respect of each of these general principles and specific cases set out in the Commission paper of 6 September, telling us what he thinks will happen, or—because he may not be able to tell us if it is unknown—what discussions there have been with the European Commission on its likely stance in respect of all these issues if we leave the European Union at the end of May without a deal?
I would like also to make another point which follows on from what the noble Lord, Lord Tyler, said, and his remarks to the Grand Committee last time. There continues to be in respect of these regulations, the other regulations we are considering later this afternoon and all the regulations the House will consider tomorrow, a fundamental issue of legitimacy. We are being asked, and the Minister is inviting us today, to agree to regulations which will make provisions in respect of there being no deal at the end of March. The question we have a right to ask is: what is the legal and moral basis for that preparation taking place? It is not good enough for the Minister to say that the serving of Article 50 and the passage of the European Union (Withdrawal) Act are sufficient, because it was firmly understood by the House when that notice was served and when the European Union (Withdrawal) Act was under consideration by your Lordships that we would not be going into a no-deal situation.
I wonder whether the noble Lord has been paying particular attention to Part 2 of the Explanatory Memorandum, which refers to a number of statements made by the then Minister of State for Universities, Science, Research and Innovation, Sam Gyimah. These statements are intended to reassure the Grand Committee and your Lordships’ House in precisely the sort of terms that the Minister is now referring to. I wonder whether the present Minister takes the same view as the previous Minister, or indeed whether the previous Minister has changed his view. To make the statement at paragraph 2.1:
“In my view there are good reasons for the provisions in this instrument, and I have concluded they are a reasonable course of action”,
may well now be out of date, since we all know that that former Minister takes the view that the proposal that a no-deal solution could in any way be appropriate for our country is absolutely absurd. Should there not have been an updating of this note so that the Grand Committee could at least be informed about the current view of the current Minister? I suspect that the previous Minister now takes a different view.
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’s 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.
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.
The Explanatory Memorandum and the no-deal notice on exhaustion do not, however, deal expressly with the issue of international exhaustion. What is not certain is whether the ruling in the Silhouette case—I can give the reference if the noble Lord’s officials would like it—and the cases that followed it will apply post Brexit to this modified exhaustion regime. Some commentators have said that after Brexit our courts would have to follow previously established UK case law establishing international exhaustion rights. I do not believe, given the considerable discussion in the legal profession about the impact of this SI, that it does provide legal certainty, as the Minister asserted earlier. This could result in goods first placed on the market anywhere in the world—whether in an EEA or non-EEA member state—being resold into the UK. That international exhaustion regime could have a massively detrimental effect on our retailers, especially in terms of online sales. What do the Government’s intend and why have they not dealt with this issue expressly?
Of course, if there is a deal, under the draft political declaration the UK would have the freedom to establish its own regime for the exhaustion of IP rights. In the unlikely event that there is a Prime Minister’s deal, can the Government confirm that regional exhaustion provisions are also the longer-term solution for exhaustion vis-à-vis the EU post transition too? Or do they envisage that their current review and research will look at exhaustion across the board internationally, so that the regime even for Europe could be changed to what it was pre our membership of the EU: an international exhaustion regime? Can the Minister give some clarity on the work being conducted by the IPO on a future exhaustion regime, and its current thinking? That is absolutely essential, certainly given the representations made to me and colleagues about this statutory instrument.
Several other IP-related matters are not covered by the statutory instruments before the Committee, and this is the appropriate point at which to raise this issue. The Government have some pious words in their document, IP and BREXIT: The facts. For our future relationship with the EU,
“the UK looks forward to exploring arrangements on IP cooperation that will provide mutual benefits to UK and EU rights holders. Such arrangements will all require negotiation with the EU and we look forward to discussing the possibilities with them, including on trade marks”.
What do the Government have in mind if the Prime Minister’s deal does go ahead? What can rights holders and creators look forward to? Surely nothing better than we have currently as a full member state of the EU.
As the noble Lord, Lord Adonis, pointed out so pertinently, none of the draft statutory instruments addresses what will happen to geographic indicators, and the Government provided little advice in the technical Brexit papers issued last autumn. What are the Government’s intentions regarding protecting these rights holders? How can that happen and what co-operation is needed—even in these circumstances—from the EU currently?
Despite being mentioned together with European trademarks in last autumn’s IPO’s technical document, Trade marks and designs if there’s no Brexit deal, the SIs do not address what will happen to design rights. Will these continue to be protected in the UK as well? One of the crucial aspects for designers is not only exhaustion—as with other exporters, they will be adversely impacted—but the question of whether, if the UK is no longer in the EU, we will have the equivalent of a Community design right which covers a much broader set of design characteristics, albeit for only three years. The IPO has said in its document that there are plans to introduce such a right, but why not with these SIs? No deal will have just as big an impact on designers as on trademark owners. Should we not also have in front of us here and now the equivalent of the trademark SI: an automatic UK translation of a Community design right?
Then, there is the very important aspect of rights of representation by IP advisers, trademark attorneys and the like. What is the position in the event of no deal? What discussions are the Government or the IPO having on this important subject?
Finally, I am rather baffled by the fate of the draft Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations, which the sifting committee, the European Statutory Instruments Committee and our own Secondary Legislation Scrutiny Committee considered should be dealt with by the affirmative procedure. When will this draft SI come before us? It deals with a number of extremely important aspects of IP, some recently coming into effect, such as portability of online services—which will be lost—database rights, collective management of copyright and orphan works. The Government published a technical notice, Copyright if there’s no Brexit deal, which covers these and the necessary amendments to primary legislation. Why is this draft SI not before us today?
Many questions arise from this SI and the others, and I very much hope that the Minister will be able to answer them.
My Lords, it has been a lonely journey to the heart of the intellectual property policies in this country. The noble Lord, Lord Clement-Jones, and I have been stepping together on this route for a number of years. It is really nice to see so much additional expertise brought to the table and shared with us. We have got off to a slightly ropey start, but I do not think anybody could argue that we have failed to reach the heart of the arguments now. I pay due regard particularly to the noble Baroness, Lady Bowles, who is a living legend on these matters and brings expertise from her work in previous lives, and to my noble friends Lady Kingsmill and Lord Adonis. Together with the noble Lord, Lord Clement-Jones, they have displayed the sort of expertise and knowledge we need when we address these issues.
I have only four points. I think they largely cover what my noble friend Lord Adonis, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Bowles, have said, so I will not repeat them at length. They raise issues of some substance which make me worry that the SIs in this area—this is the first of three but, as we have heard, there are more to come—are the equivalent of poking a wasps’ nest with a stick. An awful lot of rather difficult and worrying issues need to be addressed, and we have very little time to look at them. Whether there is a deal or no deal, these will not go away. They will need to be addressed, and we should think very hard about how we do so. I agree with the noble Lord, Lord Clement-Jones, that we ignore it at our peril.
A number of speakers have asked whether these draft regulations change current policy or impose new liabilities or obligations and, if so, to what extent. I listened carefully to the Minister as he got into his stride, and I do not think he really answered the question he raises for us in his letter, circulated on 7 January—I understand a copy is in the Library—which asserts that the regulations,
“do not change current policy”.
As mentioned on a number of occasions, there has been no formal consultation, some unreported discussion, no impact statement and no calculations. Yet out of this, a one-way ticket has been offered to exporters who bring intellectual property into the UK. No opportunity has been given to our fellow citizens working in the UK and producing goods they wish to export to the EU, who have no certainty that there will be any ability to benefit from parallel arrangements. This question seems not to have been answered so far by the Government and needs to be addressed properly if we are to go forward.
The noble Baroness, Lady Bowles, mentioned the asymmetry of the arrangement that the Government have come up with—absent discussion, a costing or an impact statement—and suggested that there may be more downside to this than has been said. Her suggestion of a sunset clause is a very good idea and may be something the Government should think harder about before they come back with an SI on the Floor of the House.
My third point is that made by my noble friend Lord Adonis in his careful consideration of the European Commission’s statement of September 2017. The pinning of all our hopes on a deal that may be negotiable in the future is not a satisfactory business proposition; it will send shivers down the community we are talking about here, a community of creators and intellectual property persons working in one of our most productive areas of activity, on which we pin great hope in the industrial strategy. Yet that is what it is: without any certainty on a regional basis, let alone on the international points made by the noble Lord, Lord Clement-Jones, the climate for those creative industry specialists working in intellectual property and seeking to export it seems extremely damaging. I hope that the Minister has something more to say about that.
Finally, on the legal issues, the Silhouette case comes up for all three SIs before us—it makes a good case for us considering them together, but we are not doing that. The legal issues are worrying. The legal note that I wish to refer to suggests that the basis on which this has been considered is somewhat whimsical. The argument is that it is possible that courts will not follow the Silhouette case in this area. That seems an unreasonable basis on which the Government should make regulation. If that is the case, the narrow question, raised by the noble Lord, Lord Clement-Jones, is whether the Silhouette case will necessarily become part of retained EU case law under the EU withdrawal Act 2017. We need certainty on this; if the Minister is not able to give us a clear view at this stage, I would be grateful if he could write to us on this point, because it is the key issue for those concerned.
The note says that even if the case law does fall within the definition of retained EU case law—so there is a doubt about this—it is relevant only to retained EU law which is unmodified on or after exit day. I would be grateful if that complicated idea could be unpacked, because I do not understand it. The note, which is supposed to be an explanatory memorandum for us, then says:
in other words, it is making an argument to us that it hopes we will accept,
“the retained EU law on exhaustion of rights will be materially modified on exit day, as a result of the amendments in the Exhaustion SI, because the Government is changing an EEA-wide exhaustion regime of which the UK is currently part, to a one-way”.
That makes the point that this is a one-way ticket, which is a very difficult argument to make to those affected by it. To cap it all, the unforeseen consequences listed at the end of the statement are quite horrendous:
“The UK Courts will have to follow the case law which established the principle of ‘international exhaustion’”—
a point made by the noble Lord, Lord Clement-Jones; this is a very big step away from where we are—under what is called,
“the implied licence theory in the UK”.
I suspect that lawyers listening to and reading this will be gratified to hear that a dripping roast is being created by this new SI. The document goes on to say that,
“rights-holders will not be able to prevent goods first placed on the market in a non-EEA country”,
to be brought into and resold in the UK. This was the question raised by my noble friend Lady Kingsmill, about what damage would be done to existing operators of intellectual property. The UK market could be,
“affected by cheap goods from countries where genuine goods are sold more cheaply … Consumer confusion may also arise in the UK, where genuine goods are sold under the same mark but are in fact different (e.g. toothpaste and chocolate)”—
I am sure there are many other examples. It continues:
“An international exhaustion regime is a much greater threat to UK retailers and manufacturers … In a worst case scenario intellectual property rights-holders will no longer be incentivized to produce goods for the UK because prices have been driven down”.
These are very worrying concerns for anybody who might be affected by this. I think the Government are skating on very thin ice with this issue. They have not made the case that this does not change current policy; it certainly does and it is a one-way ticket which is not satisfactory for those involved.
My Lords, as always, I thank all noble Lords for their contributions, and hope I can deal with all the relevant points. As always, I will offer to write on those which I find harder to address, and hope noble Lords will be content with those letters.
I remind the Committee of exactly what we are doing. This order, since we are now dealing with them as three orders, is a result of the withdrawal Act, an Act which has been through both Houses and sets out powers precisely so that the Government could make contingency measures in the event of there being no deal. That is why we have brought forward the Intellectual Property (Exhaustion of Rights) Regulations that we are debating: to deal with that no-deal situation. As I and others have made clear on other occasions when dealing with EU exit regulations, of which there are quite a number, they are contingency measures designed to deal with the possibility that there is no deal. We expect that there will be a deal, but at this stage, in advance of debates in another place and other matters, it would be an irresponsible Government who did not make appropriate plans to deal with no deal so as to provide business with a degree of certainty.
The Government are therefore considering various options for the future. We are undertaking research and consultation on what would be the most appropriate exhaustion regime for the future, but that is for another day. We will deal with that in due course, but it is not what we are debating this afternoon. That will take time, and I do not believe there is a compelling reason to rush to an alternative system until we have seen the evidence and listened to what businesses and consumers have to say.
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.
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.
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.
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.
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.
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.
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.
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?
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.
I am not giving way to the noble Lord until I have finished my point. I have a right to make this speech in my own manner. I will then give way to the noble Lord and to the noble Lord, Lord Stevenson.
I accept that there could be some impact on parallel trade from the UK to the EEA. That will depend on the actions of the 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 those impacts in the assessment. I now give way to the noble Lord, Lord Warner.
I am grateful to the Minister. I have listened to this for about an hour and he keeps using the same arguments. We are going to come to these issues again on the second SI. If I give him some notice, he may be able to think of some better arguments than those he has used so far. I find it almost impossible to understand what he is saying. If there has been no proper consultation with the industry, how can he say that this has minimal impact on it? That seems to be a contradiction in terms. What is the basis of the Minister’s impact assessment if there has been no formal consultation?
I come back to the point I raised earlier: were not the hands of the civil servants tied, in terms of their ability to talk to people about these issues, before this SI was formulated—a straight yes or no? Were they constrained in their discussions with the affected industries before these SIs were drawn up?
My Lords, I reject any suggestion that officials have been constrained in what they can do. The point I was trying to make is that we are talking about two things. We are talking about what happens in the event of us leaving without a deal. If we do, we need to set certain things in place, which is what these regulations do. Meanwhile, we will continue to negotiate as part of the whole withdrawal process to get the right deal. We will then get the right things in place. At that point, further instruments will no doubt come before the House—I look forward to debating them—and those will follow full, frank and proper consultation with all concerned. There has been a degree of consultation on these regulations, but they deal purely with a no-deal situation.
I am grateful to the noble Lord for giving way. I was going to try to be helpful, although he may not welcome the intervention. When we have had similar discussions on SIs and similar confusion and annoyance have been expressed on all sides about the fact that consultation has not been done in the usual manner and statements have not been provided, the Government have used the argument—the noble Lord did not use it on this occasion—that the de minimis provision is that the department has made an estimate, which is presumably accepted by Ministers, that the burden of the costs that will fall on the industries affected by the SI is less than £5 million. Is that the case with this arrangement—yes or no?
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.
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.
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.
The point about the impact assessment concerns me. The noble Lord, Lord Bates, who is eagerly awaiting our later exchanges, knows that I have been here before. Forgive me if I am paraphrasing the Minister, but what seems to have been said is that, when the impact assessments are done, they relate to the impact of the legal instrument. That impact is often deemed to be relatively minimal. However, if you deal with the consequences on business of the legal instrument, the impact is much larger. I always thought that the whole point of impact assessments was that they dealt with the predictable consequences. The regulations that we are dealing with may be simple to understand, because there is not anything for business to do, but their impact means that businesses may have to compete on an unlevel playing field. There is a direct consequence of the legal instrument but that would appear to be excluded. That does not really seem to be the right way in which to measure it.
Maybe as a relative newcomer, I cannot start saying, “You’ve got to do your impact assessments differently”, but this issue needs to be looked at in the round because it can be used in a completely disingenuous way. I know it has been churned out this way under pressure, but this could continue throughout every statutory instrument, whether it is to do with Brexit or not. It is a laughing stock, really. I think about how some MEPs used to criticise EU impact assessments, but I never found anything that was just to do with the assessment of the legal instrument; they always dealt with consequences. So why do ours not?
I am not sure I can take the noble Baroness and noble Lords any further on this point, other than to remind them what the regulations do. They relate to the no-deal situation and to ensuring a degree of certainty, which all businesses would like, in that eventuality. I leave it at that.
Before the Minister moves on, I would like to say that the whole—
I have not given way yet. If the noble Baroness will wait for me, I will now give way to her.
My point is that the whole situation seems to be pretty hypothetical. We are trying to consider what the regulations should be in the event of a no-deal situation, but we do not think there is going to be a no-deal situation. We are also trying to assess the impact of this hypothetical situation without having adequate consultation with those very businesses on which it is going to have an impact. It seems as if we are in Alice in Wonderland, sitting here discussing hypothetical situations. I recognise that the Minister is in difficulties on this point, and it is very hard to be on the Front Bench when you are having to defend hypothetical situations, but the drift of the matter is that we are really wasting everyone’s time, are we not?
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.
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.
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.
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?
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.
My Lords, it might be helpful, as this is the first instrument that the Committee has considered this afternoon, if I remind the Committee that the Motion is to consider the draft instrument and that it will be the subject of an approval Motion before the House in any event, whatever the decision of the Grand Committee. I also remind the Committee that a single voice of not content will negative the Motion.
The Question is that this Motion be agreed to. As many as are of that opinion will say “Content”; to the contrary “Not content”.