COMMONS AMENDMENT (Hansard, 2 November 1988)

§ Lord Strathclyde
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 116.

§ Lord Strathclyde
My Lords, in replying to the Motion moved by the noble Viscount, Lord Falkland, to disagree with the Commons in their Amendment No. 116, I shall speak also to Amendments Nos. 116, 117, 118, 119, 119A, 125 and 125A.
The purpose of Amendments Nos. 116 to 119 inclusive and No. 125 is to simplify the provisions relating to the review by the Copyright Tribunal of an order it has already made about entitlement to the terms of a licence.

§ Lord Williams of Elvel
My Lords, I was not aware that the noble Viscount had spoken to the Motion of the noble Lord, Lord Lloyd of Kilgerran, on Amendment No. 119.

The Viscount of Falkland
My Lords, that is correct. I have not spoken to Amendment No. 119, which is consequential on Amendment No. 144. I should appreciate the Minister's guidance.

§ Lord Strathclyde
My Lords, I apologise to the noble Viscount. I understood from the groupings, which I know are informal, that we would be talking about all the amendments that I mentioned. If it is all right that I go ahead on that basis, I shall do so.

The Viscount of Falkland
My Lords, would it be in order for me to speak to Amendment No. 144, on which Amendment No. 119 is consequential? All the Commons amendments which have to do with the tribunal provide a straitjacket and are too rigid. The Motions tabled by my noble friend seek to persuade the Government that much time and money would be saved by allowing a degree of flexibility.
I have spoken to Amendment No. 116. Some of the other Motions tabled by my noble friend are connected with or consequential on Amendment No. 144. The grouping is confusing. I should appreciate the chance, if we can sort out this matter, to speak to other amendments which appear to have been left out.

§ Lord Strathclyde
My Lords, I am grateful to the noble Viscount for his explanation. I agree that the grouping is a little confused. I was under the impression that I spoke to Amendment No. 144 when I spoke to Amendment No. 89. I shall continue with what I was saying.
The purpose of Amendments Nos. 116, 117, 118, 119 and 125 is to simplify the provisions relating to review by the Copyright Tribunal of an order it has already made about entitlement to or the terms of a licence. What Clause 121 says at present is that, where an order of the tribunal under Clauses 119 or 296 120 remains in force, a licensing body or licensee may refer the terms of the licence again to the tribunal. When we had occasion in another place to look again at this part of Chapter VII we realised that that was not quite right. It is the terms of the order rather than the terms of the licence which should be referred, since it is the order which determines the rights of the licensee under the new clause introduced by Amendment No. 126.
Accordingly, Amendment No. 125 provides that it is the order, not the licence, which is referred back to the tribunal, and the tribunal will confirm or vary the terms of its previous order, not the licence.
Similarly, Amendments Nos. 116 to 119 provide that when the tribunal has made an order that someone is entitled to a licence under a licensing scheme, it is that order which is the subject of subsequent applications to and orders to the tribunal.
The intention of Amendments Nos. 116A, 119A, and 125A in the name of the noble Lord, Lord Lloyd of Kilgerran, which the noble Viscount has spoken to, if I have understood them correctly is to reinstate in the Bill the provisions under which the tribunal may be called upon to review not only an order it has made under Clauses 115, 119 or 120 but also a previous order it has made under Clauses 116 or 121 confirming or varying such an order or an earlier order under Clauses 116 or 121.
It is perfectly true that a result of Commons Amendments Nos. 116, 119 and 125 is to remove those provisions, and if we were putting nothing in their place I agree that it would be reasonable to seek to reinstate them. But I hope that it will be clear from what I have just said that we are not removing those provisions without replacing them. With respect, I think that the noble Viscount may have overlooked the important change in the structure of tribunal orders which I have described. That change does not mean that it will no longer be possible to call on the tribunal to review an order which it has already reviewed at an earlier date, and possibly varied. That is an essential safeguard to the interests of both copyright owners and licensees which no one would want to remove.
The difference between the original provisions and the provisons as amended by the other place is that it will now always be the original order which is called up for review, albeit that it may subsequently have been varied. The provisions which the noble Viscount seeks to reinstate are therefore no longer necessary. I hope that in the light of what I have said—and I hope that it has not been too confusing—the noble Viscount will agree to withdraw Amendment No. 116A.

The Viscount of Falkland
My Lords, I agree with the Minister that the subject is confusing, particularly if one is taking the place of an acknowledged expert such as my noble friend Lord Lloyd of Kilgerran. I know that my noble friend thinks that the point raised in the amendment is an important one. However, I am sure that he will support me—having heard the Minister's remarks and having registered our reservations about the inflexibility which we see 297 as inherent in the Bill—in seeking leave to withdraw the amendment.