§ 3.9 p.m.
§ The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Strathclyde)
My Lords, I beg to move that this Bill be now read a second time.
This is a long and rather technical Bill, though that should not dent the eagerness with which it should be welcomed. It is of great practical importance to business. We know this because business has been telling us so. The reason businesses want it is that it will save them money—estimated at around £30 million a year. When we were unable to include it in the programme for the previous Session, businesses wrote to tell us how important trade marks are to them and how crucial it was to modernise the law governing them. When press speculation this autumn suggested that pressure on the programme might once again displace this Bill, they lobbied again. Since the Queen's Speech, several businesses have taken the trouble to write to thank us for including the Bill.
Moreover, we are confident that we are giving industry the Bill that it wants. In 1990 the Government published a White Paper Reform of Trade Marks Law, setting out their proposals for legislation on this subject. This received a very favourable reception from business and from professionals working in this field.
The cornerstone of the Bill is an EC directive, No. 89/104, to approximate the laws of the member states 750 relating to trade marks. It forms the basis of the substantive provisions in Part I of the Bill. This is an important single market measure and is one of the few measures listed in the Commission's White Paper Completing the Internal Market, which still awaits implementation.
The directive does not attempt a wholesale harmonisation of national trade mark laws. Rather it concentrates on those areas where differences between the position in respective member states can distort competition. In particular, it harmonises the conditions for validly registering a trade mark and the rights conferred by registration. In other words, if the House will excuse the cliché, it helps to achieve a level playing field.
For example, one of the issues which trade mark law must address is conflict between marks. If a trade mark whose registration is applied for conflicts with a mark already on the register, then it is liable to be refused. Most countries have rules for assessing such conflicts. The position in Germany, however, under the unharmonised law is that conflict is very readily found. There are therefore many instances where a mark cannot be registered in Germany because it is held to conflict with an earlier trade mark, even though the two marks happily co-exist, without causing confusion, in the rest of the European Community. Indeed, the barriers to trade which result from the differences between German law and that of other member states are responsible for many of the trade mark cases that have come before the European Court of Justice. Implementation of this directive will reduce or eliminate those differences.
Let me give two further examples. While an earlier mark may prevent the registration of a conflicting later mark, if the later mark does get onto the register, then after the passage of time it cannot normally be challenged. In France, however, under the old law, it was possible for a mark to be cancelled on such grounds even after it had been on the register for several decades. The directive prohibits such a challenge after a period of five years. Most member states' laws require that a trade mark be used for the goods or services for which it is registered, and provide for it to be cancelled if it is not used. Denmark, however, had no such requirement but has now introduced it in its law implementing the directive.
As far as the United Kingdom is concerned, the main changes that will be required in order to comply with the directive are twofold. First of all, the test for what may be registered as a trade mark will in future essentially depend on whether it is in practice capable of distinguishing its owner's goods from those of another. Thus for example the case law that has built up under the existing law makes it difficult or impossible to register a geographic name, or a laudatory epithet, as a trade mark. In future, if the mark is distinctive in the marketplace it should be registrable. Likewise the three-dimensional shape of goods or their packaging will be registrable as a trade mark, provided it is actually distinctive.
Secondly, the rights conferred by the registration of a trade mark will be broadened. At present, a trade mark owner can sue someone for infringement only if they 751 use the mark on the precise goods for which it is registered. If the other person uses the mark on similar goods, or uses it to sell services related to the goods for which it is registered, then he would have to fall back on an expensive and unpredictable action for passing-off. Clause 9 of the Bill, in implementation of the directive, extends infringement rights to cover similar goods. Moreover in the case of a mark having a reputation, it extends them to non-similar goods, where unauthorised use of the mark would take undue advantage of the mark or be detrimental to its distinctive character or repute.
I hope that I have demonstrated that implementation of this directive will, by modernising the law and reducing differences between member states, assist in the completion of the single market and bring real benefits to United Kingdom business.
The directive should have been implemented by the end of 1992. The Government are proud of this country's record in implementing single market measures and regret that it proved impossible to meet the deadline for this directive. As the House will be aware, however, pressure on the parliamentary timetable has been particularly fierce. Implementation by statutory instrument was of course considered, but the Government's view was that that would have been very difficult and the results unsatisfactory. I believe that industry shares that view and I am sure that the House does too.
As well as implementing the directive, Part I of the Bill deals with the procedures involved in trade mark registration. Here the Bill implements the deregulatory promises in the White Paper, in particular in regard to the simplification of the registration of assignments and licences.
Under the present law, where the proprietor of a registered trade mark applies to register the same or a similar mark for similar goods or services, the registrar requires that the two marks be "associated". Marks that are associated cannot be sold separately. The purpose of that is to protect the public against being misled into thinking that different goods bearing identical or similar trade marks originate from the same source when in fact they do not. For the same reason, the registrar is required to examine any application to assign a trade mark in respect of only some of the goods for which it is registered. All that involves work for the Patent Office (which has to be paid for by its customers) and work for trade mark owners and their agents. In the Government's view, it is disproportionate to any consumer protection benefits that it may produce. In any case, it is the parties concerned who would have the most to lose if an assignment leads to confusion. After all, the purpose of a trade mark is to distinguish its owner's goods; he is not likely to connive at a situation in which his business is confused with someone else's.
Another deregulatory change concerns the licensing of trade marks. Before the Trade Marks Act 1938, which this Bill repeals and supersedes, there was no statutory recognition of trade mark licensing. Indeed, there was doubt as to whether such a licence could be granted without impairing the trade mark's capacity to distinguish, thereby endangering the validity of its registration. The introduction in the 1938 Act of a 752 system of registered users was therefore a radical step. The legislators at that time, however, felt that a system of unrestricted licensing could lead to deception of the public. For that reason, the only form of licensees given statutory recognition was registered users. The law requires an application to register a user to be accompanied by voluminous documentation, and requires the registrar to examine it, calling for further documents if necessary, and to register the user only if he is satisfied that this would not be contrary to the public interest.
Times have moved on. The public have grown accustomed to goods or services being supplied under licence from the trade mark owner, for example, as part of a franchise operation. Moreover, as with assignments, the strongest guarantee against the public being deceived is that it is in the proprietor's best interests. A trade mark is valuable property in terms both of its power to attract customers and of the royalties which can be demanded from licensees. It is in the owner's interest to ensure that licensees use it properly. The Bill therefore simply provides that a trade mark may be licensed. In response to the wishes of industry, provision will be made for licences to be recorded on application from one of the parties, but it will be voluntary.
It could be said that the framers of the 1938 Act and its predecessors saw the Registrar of Trade Marks as having a consumer protection role. In our view, this should no longer be the case First of all, there are other bodies, official and unofficial, which are much better placed to perform such a role. Moreover, modern consumers are more sophisticated than was the case half a century ago. Secondly, as I have tried to explain, the vetting of assignments and licences by the registrar seems to be directed at protecting the public against an unreal danger —that trade mark owners will connive in the devaluation of their property. Certainly the elaborate procedures demanded by the present legislation are disproportionate to any benefit to the public. Scrapping them is reckoned by business to contribute getting on for half of the £30 million which the Bill will save them annually. The other half will come from the ability to use the Madrid Protocol. That forms a major element of Part II of the Bill, which deals with international matters.
At present, a UK trade mark owner who wants to protect his mark in overseas markets must apply separately for registration in each of the countries concerned. That involves going through whatever procedures each country requires and paying fees in local currency. It may be necessary to employ a local lawyer—indeed, some countries insist on it. As can be imagined, all that involves a great deal of trouble and expense.
Trade mark owners in most other European countries, by contrast, are able to avoid many of the problems by making use of an international arrangement called the Madrid Agreement. Under this, a trade mark owner can obtain an international registration, which has the same legal effect in those member countries that 753 the applicant has designated as though a trade mark application had been filed direct with the authorities of those countries.
The United Kingdom is not a member of the Madrid Agreement because our system does not fit well with it. In most of the countries in the agreement there is little or no examination, so that fundamental objections to a trade mark may come to light only when there is litigation. By contrast, our trade marks system is based on registration only after a full examination, so that registration carries a high presumption of validity. The system of time limits and fees under the Madrid Agreement is tailored to the deposit-type systems of most of its members. Adherence by the UK would, for example, mean foreign trade mark owners being subsidised by domestic users of the system, which is clearly unacceptable.
Although the Madrid Agreement has functioned for over 100 years and has a membership of over 30 countries, its membership has been fairly static. In particular, it has not appealed to countries with systems like ours, such as the USA, Canada, Japan and the Scandinavian countries. For that reason, a protocol to the Madrid Agreement was concluded in 1989 which overcomes all the difficulties we had with the old agreement. The UK took a leading part in the negotiations leading to the protocol, and we have signed it. Ratification however needs this Bill. Clause 50 provides for the making of regulations for giving effect to the protocol. Were I asked to name the single most important provision in the Bill, I would say that that is it. That is certainly the message we have been getting from businesses, who foresee major savings from being able to use the protocol. The protocol is not yet in force. There is no point in ratifying it for countries party to the old agreement until a substantial new country is also ready to do so. All the signals are that UK ratification of the Madrid Protocol is what is needed to set it in motion.
Part II of the Bill makes provision with regard to Community trade marks. I shall not say a lot about those. The Bill does not establish or give effect to Community trade marks; that will be achieved by a directly-applicable council regulation which, it is hoped, is now nearing agreement in Brussels. All the Bill does (in Clause 48) is to provide for consequential provisions to be made by regulation. The Community trade marks system will operate in parallel with national systems, offering trade mark owners a choice of which suits them best.
Part II also gives explicit effect to some obligations concerning trade marks under the Paris Convention for the Protection of Industrial Property. In particular, those are obligations to protect well-known marks and emblems of other countries and intergovernmental organisations. Hitherto, the Registrar of Trade Marks was able to take account of some of those obligations in the exercise of his discretion over registration. Other aspects of the obligations might be met through an action for passing-off. However, that is a less than satisfactory situation and, as I said, the Bill will give explicit effect to all those obligations.
754 Parts III and IV of the Bill contain administrative and other supplementary and general provisions and the usual final provisions. Much of that re-enacts (with modifications) provisions in the existing law concerning such matters as the powers and duties of the registrar, appeals and trade mark agents. I shall single out two changes for mention.
First, I turn to Clauses 86 to 88 which concern trade mark counterfeiting. Provisions making the fraudulent use of a trade mark were introduced into the 1938 Act in 1988 by the Copyright, Designs and Patents Act. Those clauses replace those provisions with a widened scope. Section 58A of the 1938 Act was cast in terms of deception of the customer. Since that was enacted, there has been a dramatic growth in the sale of what are sometimes called "brand copies"—garments, watches and so forth which feed on the reputation of famous trade marks while the trader is able to escape prosecution under the Trade Marks Act by admitting that they are fakes. It was thought in some quarters that such goods would still be caught by the Trade Descriptions Act, but a ruling earlier this year showed that that is not so. That prompted much lobbying of my department to change the law. Some of the lobbying came, as might be expected, from the owners of the famous marks being copied. However, we were particularly struck by letters from other traders who deal in the genuine goods and who complain of being undercut by market stalls or boot fair traders selling blatant copies.
Clause 86 is, as I say, broader in its scope, and the offence of trade mark counterfeiting is defined in much the same terms as trade mark infringement. I might add that there is an obligation to apply criminal sanctions against wilful counterfeiting under the intellectual property code being negotiated in GATT.
Secondly, Clause 96 breaks new ground by putting on the trade mark owner the burden of proving that the mark was used, where that is contested. That was foreshadowed in the White Paper and welcomed by trade marks practitioners. As I mentioned earlier, it is possible for an interested person to apply to have a mark cancelled from the register if it has been out of use for more than five years. Under the present law, the burden of proving use rests on the person seeking the cancellation—generally someone wanting to register a similar mark. It is difficult and time-consuming to prove a negative, whereas if a trade mark is being used it is a straightforward matter for the proprietor to show that and reasonable for him to be called upon to do so.
Finally, some general remarks about the White Paper. Several countries in the world have trade marks laws which are based on ours—mainly, but not exclusively, Commonwealth countries. When the White Paper was published in 1990, it was generally expected that its implementation would mean us moving away from those countries at the same time as we harmonised with our Community partners. It is therefore interesting, and gratifying, to find that reports or draft laws published in several of those countries—Australia, New Zealand, India, Hong Kong, South Africa—cite or follow our White Paper.
755 This is, as I said, a long Bill. However, that does not mean that it is cumbersome. There has been clarification rather than compression. The present law was much criticised for complexity and obscurity. The amendment Act, passed in 1984, while performing the valuable task of introducing registration of marks for services, unfortunately made the text of the law even more complicated. The present Bill provides a completely new and self-contained code governing the registration of trade marks. Those professionally involved with trade marks who have seen it have supported both the policy and the presentation. I hope and trust that your Lordships will be able to do likewise, and I commend this Bill to the House.
§ Moved, That the Bill be now read a second time.—(Lord Strathclyde.)
§ 3.27 p.m.
§ Lord Peston
My Lords, my first task is to welcome the Bill. It represents a considerable improvement to the law of trade marks and related matters. It is an overdue embodiment in out law of EC Directive 89/104. I am delighted to see the legislation start in your Lordships' House. Of course, I do not believe that the Bill, as drafted, is perfect. I shall illustrate this afternoon places where it is somewhat obscure, where it is less than convincing and where it can be strengthened. But we can deal with that more fully in Committee. I am delighted also that it is proposed to take the Committee stage in a Public Bill Committee, away from the Floor of your Lordships' House. The Bill is technical and not at all party political. It will be a good test of our ability to work together in the best tradition of our House; to improve a Bill but to retain its essence.
As an economist I have always been fascinated by problems of intellectual property. We dealt with the major area of copyright in 1987–88. No doubt we shall need to come back to that and patents when the intellectual property aspects of the Uruguay Round come to be incorporated into British law. Trade marks and passing off seem more esoteric. In my view they are just as interesting, especially when we consider their role in enhancing competition and consumer protection.
The non-specialist may not appreciate what is so fascinating to the economist; namely, that trade marks which grant a firm a degree of monopoly power and appear to strengthen what is called, "imperfect competition", actually promote competition and, unless they are abused, are advantageous to the consumer. They strengthen competition by enabling the producer to identify and promote those goods or services he offers. They signal to the consumer the quality of those goods or services and their commercial origin. Properly enforced, trade mark law can prevent the use of marks which may deceive or confuse the consuming public.
At the same time, the law in this area protects the property rights of the proprietor or owner of the trade mark. But I cannot emphasise too often to your Lordships what, for want of a better expression, I call the "Adam Smith doctrine"; the justification and purpose of business activity are to satisfy consumer demand. Firms exist for consumers; not the other way round.
756 Let me now go on to say some things about the chief aspects of the Bill. I cannot cover every topic of interest—we can wait for Committee stage for that. One immediate reason for welcoming the Bill is that it reduces the need for action on passing off by extending the ambit of registered trade marks. But there remains great scope for the use of passing off actions. Given that there are many similarities from the public's point of view—that is, there are no apparent differences between an unregistered trade mark and a registered trade mark, and the licensing provisions in regard to registered trade marks are clear while those in passing off are a mess—can we not take the opportunity to bring those latter aspects in line in the Bill? Both consumers and firms would gain. It is a matter for consideration whether we can devise appropriate amendments in Committee.
I welcome the closeness of the Bill to the directive in general, but I have to ask whether the language and continental drafting techniques, if I may use that expression, will satisfy British lawyers in this area. Expressions I have in mind are, for example. "bad faith", "good faith", "bona fides", "well known trade mark", "reputation" and so on. We need some explanation of what such terms mean, or are supposed to mean.
Clause 1 of the Bill makes clear that distinctiveness is vital and is not a proviso, as stated in Article 2 of the directive. As is well known, distinctiveness is fundamental to our conception of trade marks. The problem is that, having emphasised that and therefore having departed from the directive in Clause 1, Clause 3, which concerns absolute grounds for refusal, now appears to be ambiguously phrased. This again is probably a matter of wording, and the drafting can be tidied up in Committee.
I turn to Clause 5, which is about relative grounds for refusal. This seems to offer a simple and effective approach to the problem, but again the use of language may be confusing. Both the words "identical" and "identity" are used. I know that that occurs in the directive as well. As I understand the matter, which is another way of saying "as my advisers tell me", to an English lawyer a change of word or expression generally signals a change in meaning. My judgment is that we ought to stick to "identical" at all times, if we can.
I shall now jump ahead to Clause 42, There are wording problems here. Although subsection (1) (d) bears some resemblance to the law under the old Act, there was no real way a mark could be removed from the register because of a change in the quality of the goods. I understand that, while everyone knows what the word "quality" means as a matter of common sense, there are difficulties with its application under the new law. Nonetheless, the clause as a whole has a welcome clarity. Again, in another part of Clause 42, the words "proper reasons" appear. I am advised that the expression "proper reasons for non-use" have no meaning in English law. I would welcome the Minister's views on that.
It is also Clause 42 which covers a couple of other important matters. One is that a registered trade mark 757 gets that status either from use or intention to use—that is also what Clause 28(3) is about. We must ask—the Minister was somewhat alluding to this—whether the revocation provisions cover the case where it becomes apparent that there was no intention to use from the outset. On the face of it, it does not. This relates in addition to what is the available line of defence against improperly registered trade marks.
The grounds for revocation are extremely important. One reason for that has been mentioned by the Minister—we have already accepted that there can be Community trade marks which can be registered, and are then fully protected in the UK. Clause 7 allows the Secretary of State to do away in due course with substantive examination of applications by the registrar. If the extent of substantive search and examination is reduced, and the Community mark route becomes the cheaper one, we have a problem. The Community route will become the favoured one, and for Community marks, I reiterate that I am advised that very little will be required by way of examination. Therefore many marks may be registered with little justification, and there will be more cases in which revocation becomes vital to protect a rival trader. We must see in Committee whether we have drafted revocation requirements tightly and strongly enough.
On the general question of trade marks, unlike other forms of intellectual property, they have a continuing function in the market place. That is why the wording of Clause 42 is so important. They are indicators of origin. I mentioned at the outset that they are also, at least to the public, indicators of quality, though, I am advised, this has only been recently recognised in United Kingdom case law. The question we have to ask ourselves is whether one purpose of the Bill is for us to catch up with European jurisprudence which sees trade marks as indicators of quality as well as origin. This takes me back to economics. Contemporary economic analysis interprets a trade mark as a quality symbol. Two questions then arise. Do we need, and do we have the power, to revoke a registration if the firm, having established a high reputation for its products, subsequently goes down market? We see that happening all the time. How far do we allow a firm to extend its existing trade mark to new ranges of goods or services, the quality of which is not apparently up to the standard of existing ranges?
Clause 42 refers to "geographical origin". This, together with Schedule 2 (on certification marks), explicitly recognises that this class of registration can indicate geographical origin, something we have been slow to protect in this country. Geographical names are presently prima facie not registrable in English law. Stilton is protected, as is Champagne, at common law, but the common law and associated trade mark law is quite rightly reluctant to extend this kind of recognition too far. Nonetheless, we shall need to scrutinise the way this clause and the relevant schedule operate. Indeed, in due course we may have to go further and with respect to geographical names protect our consumers of produce as well as, for example, the French do.
Once again the subject of economics arises. The 758 single market is supposed to mean the end of protection across the Community, and not allow the favouring of the domestic producer within the European Union. But it is not illegal for consumers to wish to purchase from domestic suppliers as a matter of principle. It is up to them. The difficulty is that geographical origin is not what it used to be. In a world of free trade many goods, if not most, contain components made in other places. With multinationals having factories in many countries of the European Union, a product with the same trade mark may be manufactured in a variety of countries. The word "Peugeot", which I assume is a registered trade mark, does not necessarily mean—does not at all mean—"Made in France" any more, and without a doubt "Ford" does not mean "Made in England". I have to ask, therefore, whether there are not problems of misleading signals of geographical origin that can arise here. I hasten to add that, even if there are, it is not clear what one can do about them.
I turn to unregistered trade marks and what I believe is called the "honest concurrent user", a subject to which the noble Lord alluded in his speech. I am referring to a firm which has built up its own reputation with a name or trade mark the same as or similar to another registered one and would itself like to get on the register. Unlike the old law, in the new law there appears to be nothing enabling the registrar to register such a mark. The only protection for such a trader arises under Clause 10, which makes honest concurrent use not an infringement. My interpretation of Clause 10(3) is that the reference there is to use in a particular locality. The trouble with it is the use of the words "particular locality". Does that rule out the expansion of the honest concurrent user's business?
More generally, the purpose of these reforms is to make registration easier and to give greater protection. This will be done, first, by refusing registration of similar marks for similar products—and in some cases even for dissimilar products, as the noble Lord has himself pointed out—and, secondly, by extending the scope of infringement so that use of the same or a similar mark on goods for which the proprietor is not registered is still actionable. Encouraging registration can only be helpful. It helps firms in that they can the more easily avoid clashes.
This takes me back to Clause 1 and the use of the word "detrimental". Will the effect of that be too strong? On the face of it, it seems to rule out, for example, comparative advertising—"My product is better than that product" where I mention a trade mark—although that is often helpful to consumers. In this connection certain remarks in Clauses 9 and 11 seem to affect so-called parallel importing from non-European Union countries. Is that the case; and if it is, what is the justification?
Clause 19 refers to threats. The basic question is to do with a firm's response to what it truly believes to be an infringement. I assume that threats will normally be made against the producer who makes illegal use of the relevant trade mark, and this remains permissible. But where does the retailer stand who has acquired these goods? Why should he be protected from threats, since his goods are deceptive? He should not be able to claim 759 as a matter of course that threats against him are unjustifiable. But equally, should a retailer not be protected against an unscrupulous firm which knows that the goods are genuine, but wishes the retailer not to sell them, and thus threatens the retailer withproceedings for infringement of a registered trade mark"?This is a question of balance. I am interested in the Minister's immediate response, if any, but we will of course pursue this in more detail later. I add that if there is proper examination by the Trade Marks registry in the first place, threats of action may become largely irrelevant.
My next remarks are to do with enforcement. Obviously, the proprietor of the trade mark must be assumed capable of looking after himself. But the law as drafted sees a role for trading standards officers. This is not new, but I take this opportunity to praise the work of these public servants in this and many other areas. The problem is, partly because of shortage of funds, but also because different authorities vary in their priorities, that interventions on trade marks and passing off differ in different localities. I am not one for a dull uniformity or wish to stifle initiative, but it makes little sense for trade marks to be better protected in one part of the country than another.
Clause 88 on enforcement seems to be very strong. It has, of course, to be read in the light of Clauses 86 and 87 which combine to specify offences together with court proceedings and appeals. We have to ask—I believe that I heard the Minister say this but I repeat the question: is the intention to make enforcement in all its forms easier and more effective, and does the Bill succeed in doing that?
As the Bill recognises, we are also well into the territory of the Trade Descriptions Act 1968. Many of the infringements arising in respect of trade marks are close to or connected with offences covered by trade descriptions. Again it is worth asking—we shall come back to it in Committee—whether there are improve-ments to the Trade Descriptions Act which we should take this opportunity to introduce.
A particular trades description problem I must mention relates to something the Minister said. It concerns what is called the honest fake and the honest faker. Consider a street trader in Oxford Street selling fake Rolex watches very cheaply. They are so cheap nobody could reasonably believe they were genuine. The point holds a fortiori if the seller himself calls out, "Buy my fake Rolexes". I assume Rolex have a case under trade mark law, but the best way to deal with these infringements is under trades description legislation.
Can the Minister assure us that no unnecessary complications arise in such a case and also that the Trade Descriptions Act will not need to be amended? If I revert to what noble Lords know to be my more cynical mood, I believe that I can be persuaded that anyone who buys such a watch cheap deserves no more protection than caveat emptor. For their own education the only way they will learn is if they get their fingers burnt! Perhaps that is too cynical.
Another topic I must raise under Clause 86 is what the lawyers call mens rea. The first part of this clause seems to say that an offence is committed if the 760 defendant does the act with an intention to gain or cause loss. There is no requirement that he knows or has reason to believe that his use is an infringement. But in contrast in subsections (2) and (3) words like "knowing" or "having reason to believe" and "believed on reasonable grounds" appear. I ask the Minister: is it the intention of the Government that those expressions should not appear in subsection (1)? I also ask why the question of belief in subsection (4) of this clause pertains only to whether use was licensed by the proprietor? Why not in all circumstances?
I was intrigued to hear the noble Lord say that perhaps the most important part of the Bill was the incorporation into our law of the Madrid Protocol. I shall have to reflect on that. I am always willing to be persuaded by the Minister, but to make life easier, can he make sure that copies of that protocol are made available to noble Lords, notably me, before we get to the Committee stage of the Bill? If it is that important I should have read the actual words.
My conclusion is simple and it is the same as when I started: I welcome the Bill. I shall do all I can to help it proceed onto the Statute Book. I look forward to the work in Committee where we can get down to detail arid improve the Bill where that is necessary.
§ 3.45 p.m.
§ Baroness Hamwee
My Lords, I start by thanking the Minister for his very clear exposition of the objectives of the Bill. It is a technical Bill and is therefore that much harder to deal with in straightfor-ward language. Before I deal with a little of the detail, perhaps I may just take a moment to say that I am sure other noble Lords, as I do, will miss the involvement of my late noble friend Lord Lloyd of Kilgerran. I am sure that he would have seen that we all took the right decisions in the debates on this Bill.
The Bill has been generally welcomed by those who have an interest in the matter and we therefore must welcome it too. But it makes it all the more important that we ensure that the Bill takes every opportunity to do all that the consumer needs by way of protection and that opportunities are not missed. We need to strive for a less expensive and less complicated system than we have at present. The layman, inquiring about trade mark protection, is both blinded by science and baffled by cost. The new legislation must not become an experts' charter. Throughout we must remember the consumer.
I recently had cause to inquire about the cost of protecting as a trade mark a character that was to appear in an educational video. The makers of the video thought that the character might become attractive for rather wider exploitation. Inquiries revealed advice that registration in 13 classes, at a cost of about £11,500 per class, should be quite seriously considered. That was for the United Kingdom alone. I believe that there is a very great deal that we could do to assist those who produce innovative work and whose work needs to be protected. The changes which are introduced must help the individual who has need to protect himself even if his means are not very great.
Like the Minister, I too am interested in the relationship between trade mark protection and other 761 forms of protection such as passing off and copyright. We need to be sure that we provide an effective, straightforward means of enforcement. I was interested to see Clause 19 in the Bill to which the noble Lord, Lord Peston, referred. That provides a,remedy for groundless threats of infringement proceedings".I have heard that welcomed by those who have been on the receiving end of threats from the makers of a recent film about dinosaurs who have been seeking to protect and restrict the term "dinosaur" and "Jurassic" for their own use. That has an air of absurdity, but it also put into a new light for me the wisdom of government Ministers using words like "neanderthal".
For me the serious point here is I am not convinced it is appropriate that there should be a statutory restriction of the threat of proceedings. We need to start from the basis that the law is there to be used and that we must be very cautious about restricting people's ability to use it.
I too welcome the anti-counterfeit provisions which provide for distasteful activities which we would all think were quite immoral and which should be made criminal offences. I hope that the United Kingdom will no longer be the home of the counterfeiter. It is a scandal that items like jeans, perfume and jewellery are sold on the strength of their counterfeit brand names. I am concerned about the resources which will be required for the enforcement of the new provision and the extension of the responsibility of local weights and measures authorities. I agree that it is probably appropriate that they should take on the work, but we need to be aware of the additional strains that would put on the system. We also need to see whether additional powers are required so that the attack is not merely on the small middleman who is selling the goods, but is aimed at getting information from that middleman so that we can find out who is producing the goods, because that person is the real villain. We need to look also at the relationship between civil and criminal proceedings.
Counterfeiting is not confined to trade-marked goods. The Copyright, Designs and Patents Act introduced criminal offences where copyright was infringed, and the Government recognised the seriousness of that. The Minister referred to the fairly recent court ruling that the use of a disclaimer is a defence to proceedings for infringement, and referred to traders using a disclaimer and then trading with impunity. I welcome the provisions which will assist the manufacturers whose goods sell because of a trade mark.
However, the proposed provisions are of no help to one of this country's major industries, the record industry. I use the word "records" to cover compact discs, cassettes and all other forms of record. They sell because of their content. Traders are now deleting the trade mark from the packaging, and record piracy is continuing to cost the industry something of the order of £20 million per year. In Committee, I shall be inviting your Lordships to consider using this Bill to extend to trading standards officers powers to search and seize 762 counterfeit goods where they believe that an offence is committed or will be committed under the equivalent copyright legislation.
Like other noble Lords, I welcome the simplification of registration in more than one class although I shall want to be assured about how the system of classification will be prescribed. As the Bill is drafted, there is a very brief reference to "prescription".
I hope that we can be assured also about the cost of transition to the new system. It must not involve expense for existing trade mark holders. On the costs of enforcement, the Bill provides that the relevant court is the High Court. I think that we might usefully discuss in Committee the use of the specialised patent court where the costs incurred might be less.
We shall need to debate a great deal of the detail and many of the definitions. The two that struck me were the words "identity" and "similarity". The classicists among your Lordships will, I am sure, have a field day in helping us to distinguish those two provisions and perhaps in persuading us that they are not sensible words to use in such close conjunction.
Finally, I welcome the provisions which will bring us into line with the rest of Europe. I am sure that the noble Baroness, Lady Hooper, will give us the benefit of her experience in making sure that we have the right provisions. I welcome the fact that the DTI has discussed the matter fully with the industry. I believe that there are still some matters which industry would like us to debate and which may not have been taken on board in the Bill as drafted. I hope that we can take on all reasonable points that are raised with us. I look forward to dealing with the detail in Committee.
§ 3.53 p.m.
§ Baroness Hooper
My Lords, it is now almost exactly a year since I tabled a Question asking when legislation would be brought forward to implement the proposals in the White Paper and to comply with the European Community trade mark directive. In fact, it was on 8th December last year. That Question was prompted by the Institute of Trademark Agents among others and I know that they, as well trade and industry generally, are delighted that we now have this Bill before us and that it is starting in your Lordships' House. I feel certain, as the White Paper was published more than three years ago and has been the subject of intensive and wide consultation, that it will be possible—it should be possible—to deal with it efficiently, thoroughly and expeditiously.
In any event, I think that the Bill is very readable, even if it is long and technical as my noble friend the Minister said, and that must be good for our consumer on the Clapham omnibus. I, too, am grateful to my noble friend the Minister for setting the scene, telling us about the anomalies that have existed and explaining the Bill's provisions with his customary panache, if I might put it that way.
It is not necessary for me to reiterate at length the advantages that will result from enabling traders to protect their marks internationally in a number of countries by means of a single application. But I understand that a conservative estimate of the savings is 763 some £10 million per annum. There will also be savings as a result of the less restrictive requirements for registration and the formalities for licensing and assignrnent—not to mention the greater expense that some companies have suffered in having to resort to sometimes lengthy passing-off actions in order to protect their marks. The fact that considerable savings in public service manpower are listed in the Bill's explanatory memorandum is, of course, an additional plus factor.
As the noble Baroness, Lady Hamwee, said, it will certainly give us all satisfaction to know that we no longer lag behind other major trading countries in the area of trade mark protection. As well as being fair to our own industry, this will surely make us more attractive to foreign companies which wish to invest here. In that respect, perhaps I might ask my noble friend the Minister for an update of a previous question that I have posed. How many of our European Union partners have already complied with the trade mark directive?
As has been said, although a few points relating to the Bill as drafted may get a preliminary answer today, others may require more detailed examination and explanation at later stages. Many of the issues that I had intended to raise have already been referred to by the noble Lord, Lord Peston, and the noble Baroness, Lady Hamwee. However, one additional issue that I think should be tackled is the fact that the Bill does not specifically address the problem of availability of registration for retail services. As such registration is possible in, for example, Australia, New Zealand, South Africa, the United States and in some other European countries, it would be useful to have further clarification on that point. The Bill provides a golden opportunity for that.
There is also the subject of comparative advertising, which has already been touched on, in which an advertiser uses a competitor's trade mark to identify a competitor's product and compare it with his own. The Bill does not tackle that—or, at least, it does not attempt to clarify the issue. That point was mentioned by the noble Lord, Lord Peston. There may be good reasons for not making that clarification, but the lack of clarity is seen in some quarters as leaving both trade mark owners and those who wish to engage in comparative advertising in an unsatisfactory and uncertain position. Any clarification on that point from my noble friend the Minister would be welcome.
Counterfeiting is another matter to which my noble friend the Minister referred when introducing the Bill and which is causing certain sectors of our industry considerable problems. The enhancement of anti-counterfeiting measures in the Bill is therefore very welcome. But there is scope for further action—for example, tougher sentences for counterfeiting offences could give added bite.
There is also an exemption for private imports in the Customs Provisions of the Bill. The noble Baroness, Lady Hamwee, referred to the need to find methods of tracing not only the middlemen in these matters, but also the producers. Although the exemption for private importers is an existing provision of our law and, on the 764 face of it, seems entirely reasonable, apart from the knock-on effect that any sale of a counterfeit product may have, there are, it appears, some regular travellers who abuse the exemption by regularly importing small quantities of watches, garments or the like. So that is another matter of principle which could well be dealt with.
On a more specific point, Clause 7 empowers the Secretary of State to make an order to discontinue refusal to register a trade mark on relative grounds, but that power is tied to the start-up of the Community trade marks system which we all hope will take place soon, but which could take place from any time onwards into the next century. Is it not possible to provide more certainty by specifying a set period, preferably four or five years only? The noble Lord, Lord Peston, referred to that matter, but he was speaking rapidly at the time so I am not sure that he made that point.
I, too, say that I do not wish to seem to be niggling by raising those questions and minor points, which could be subject to amendment in Committee and at other stages, because I believe that this is an important, good Bill which will benefit our industry. I end as I began, by congratulating the Government on introduc-ing the Bill good and early in the Session, and on the fact that, overall, the Bill provides a well thought out, comprehensive updating of our trade mark law. I am pleased to be able to give it my support.
§ 4.1 p.m.
§ Lord Reay
My Lords, I should like to say just a few words in support of the Bill. I congratulate the Government on having found parliamentary time for it. It is the type of Bill—highly desirable, with no obvious enemies and wanted by officials and industry alike—that Ministers, especially, dare I say it, politically ambitious Ministers, are tempted to leave on the shelf because of the lack of political mileage to be got out of it.
As I am advised by the CBI, I should like also to record its thanks to the Government for introducing the Bill, and in particular its appreciation of the thorough consultation process which the Government and their agency, the Patent Office, conducted before bringing forward the Bill. That has produced an unusual situation, whereby the CBI is at present not seeking any amendments to the Bill, despite its having more than 100 clauses and being on a subject which concerns its membership directly. All congratulation to the Government, the Patent Office and its enlightened and capable director, Mr. Paul Hartnack. If only all legislation could be so well prepared. Perhaps it shows what can be done when politics does not rear its ugly head.
The Bill is necessary, partly because of the obsolescence of existing national legislation and partly because of the need to comply with the European directive. Industry has no quarrel with the harmonisa-tion proposed under the directive. On the contrary, the ability in future to make a single trade mark registration which will be valid throughout the member states of the Union is seen to be one of the chief benefits of the Bill and a necessary feature for a single market. The degree 765 of harmonisation imposed by the directive is not seen to be excessive. Indeed, it brings with it some other incidental advantages; for instance, industry welcomes the opportunity for the first time in this country to include shape in a trade mark registration, as with the Coca Cola bottle. That is a European import into the thinking on this subject.
In time, I should expect that the number of registrations recorded by the British Patent Office in Newport will decline as registrations shift increasingly to the Community patent office in Alicante. Alicante is not, of course, the centre of the universe. Trade mark registration tends to require personal appearances. Of course, a visit to the Mediterranean always has its attractions. Industry is reconciled to the decision, but I am bound to say that there is concern that the Community patent office will load onto its fees a great deal of extra cost, deriving from the need to operate in several different languages, to attract skilled personnel off the beaten track and so forth.
Will my noble friend the Minister give an assurance that the Government will watch closely the fees which the Community patent office charges, and do their utmost to ensure that they do not develop into a source of grievance for industry? I am sure that Her Majesty's Government do not want to see the single market given a bad name in that way.
There is another matter which has already been raised upon which I should like to ask the Government for clarification. In the wake of the case of Queen v. Price, the enforcement authority (the Trading Standards Office) is, I am informed, now wary of bringing prosecutions against street traders selling counterfeit goods in case it should again be pleaded successfully in their defence that no offence has been committed provided under some sort of disclaimer the trader has acknowledged that the goods are counterfeit. The noble Lord, Lord Peston, raised that matter. From what my noble friend the Minister said in his introductory speech, it is plain that the Government are aware of the problem. I am not clear whether my noble friend was saying that once the Bill is enacted that situation need no longer pertain because there will be in future be no doubt that an offence is still being committed despite the disclaimer.
The Bill will bring considerable savings to industry: savings in the present costs of making multiple trade mark registrations; in the cost of bringing infringement action; and costs resulting from the loss of trade. Those are difficult to quantify, although an attempt has been made to do so. The Government quoted some figures in the Bill's preamble, and my noble friend the Minister repeated them this afternoon. The Government are showing that they have taken to heart the concerns and needs of industry. I wish the Bill a swift passage.
§ 4.7 p.m.
§ Lord Lucas of Chilworth
My Lords, at the outset perhaps I may echo what the noble Baroness, Lady Hamwee, said about Lord Lloyd of Kilgerran. I worked with the noble Lord on a number of associated Bills a 766 few years ago. I greatly enjoyed working with him. His knowledge of copyright and patents will be sorely missed.
My noble friend Lady Hooper described the Bill as being, although technical, reader friendly. The trouble with a reader friendly Bill is that we can all see the easy, readable way of adding to it, and of using the Bill as the hook upon which to hang all manner of highly desirable provisions. Although we may wish to make amend-ments, in Committee we should resist the temptation to add to the Bill because it is greatly desired and overdue. The sooner it is on the statute book, the sooner the benefits will be felt by all concerned.
I shall touch on just two elements of the Bill. My noble friend the Minister rightly drew attention to Clause 86 which relates to anti-counterfeiting measures. I recall at the outset of the Uruguay Round attending a Minister's meeting on that point in New Zealand. We are pussy-footed about anti-counterfeiting measures. Counterfeiting is sheer, absolute piracy. We must deal with it in those terms. It is no good pretending that it happens elsewhere—as indeed it does—and so it has nothing to do with us. If domestic law can be stiffened by the Bill, then it must be. Nevertheless, I should like an assurance from my noble friend the Minister that the fight against that piracy is still going on internationally. Therefore, I too am delighted that the Bill will ratify the Madrid Protocol. Nevertheless, other conventions must be brought into play. They deal with countries which have not ratified that protocol and will not be party to it.
My noble friend Lord Reay and the noble Baroness, Lady Hamwee, referred to the possibility of giving trading standards officers powers under the Bill to enforce Section 107 of the Copyright, Designs and Patents Act 1988. My noble friend Lady Hooper suggested that the Bill might be the vehicle for the introduction of tougher new sentences for counterfeiting offences. I have a great deal of sympathy with both thoughts, and I agree with them. It is one of the issues on which one might hang "goodies", which may have to be resisted. Might we expect legislation in the not-too-distant future which takes care of those matters which are dealt with in legislation now sadly out of date? My noble friend does not have to be more specific than that.
The second issue I wish to raise is that of retail services. The Bill deals with service marks and trade marks which are to be drawn together and it removes from the old Act the necessity of proving that the service given is for the provision of money or money's worth. In effect, retailers will be able to register a complementary service. That may be the provision of shopping bags or baskets and crèche facilities where no money necessarily has to change hands.
The trouble is that as the Bill stands whatever complementary service is offered—as I say, that might be a crèche, a shopping basket, the free polishing of shoes, the pressing of a suit or the drying of a raincoat while one shops in a store—each would have to be registered. I understand that the Bill does not provide for the single registration of a retail service. That might be, for example, Marks and Spencer or C & A. While the former can register their products under the trade 767 mark—St. Michael or Canda respectively, which is virtually a patent on a product description—most consumers would recognise a reputation, a guarantee of quality and a service offered by names such as M & S and C & A. There are others—I do not single out those two retailers as being special.
It is the belief of the retailers that their reputation is at stake if that retail service cannot be registered. They also believe that the name is conducive to customer loyalty. We have heard of examples such as the shop which had on its front its name spelt "H" a short gap and then "arrod". I do not believe that many people would regard that as being "Harrods" but Harrods most certainly did. Harrods brought an action in Sydney under Australian law. They won the action. The other shop was prevented from using the name "Harrods", which has implicit in it quality, reliability and a certain reputation. There have been other cases in this country.
If one were able to register the names that would protect a retailer, that would be helpful; but I am not aware of such a provision in the Bill. Can my noble friend the Minister give me an assurance on that matter? If not, perhaps he will permit me to frame an amendment which will allow retail services to be included in the trade mark registration.
As my noble friend Lord Reay and other noble Lords have said, this is a jolly good Bill and everyone wants it. I look forward to a fairly short Committee stage. I am sorry to see the noble Lord, Lord Peston, shake his head. If he speaks very fast perhaps we shall be able to shorten the proceedings. The sooner the Bill is on the statute book, the better for all concerned.
§ 4.17 p.m.
§ Lord Cawley
My Lords, I apologise for omitting to put my name on the speakers' list. Until 1973 I was a practitioner in trade mark law. I had frequent jousts before the Registrar of Trade Marks with the late Lord Lloyd of Kilgerran. Sometimes he won and sometimes I won.
When during the past 35 years measures relating to intellectual property have come before the House I have taken the opportunity to advocate a comprehensive trade mark Bill. More than 10 years ago I told the House that I would probably rise in my place in my 90s to congratulate a future government on introducing such a measure. I was pessimistic because I am only 80 years of age. The legislation is many years overdue and it has my full support in principle.
§ 4.18 p.m.
§ Lord Strathclyde
My Lords, at the beginning of the debate I explained in some detail how the Bill is important for business. The remarks made this afternoon indicate that that view is generally shared in this House, and I welcome that. Noble Lords have indicated that they will wish to look more closely at certain aspects. That is to be expected. I look forward to hearing in Committee the views of the Members on the provisions of the Bill.
I too share what has been said about the late Lord Lloyd of Kilgerran. When I was a Whip in the Department of Trade and Industry I dealt with the noble 768 Lord on many occasions. He was always extremely helpful to me when I was ignorant, which I often was at that stage.
I thank my noble friend Lord Reay for his congratulations on the way in which the Government handled themselves during the consultation process. I look forward to his contributions during the next stages of the Bill. I am also grateful for the contribution made by my noble friend Lord Cawley and his explanation of some of the history of the Bill.
The noble Lord, Lord Peston, started by quoting Adam Smith. I am extremely grateful to him for quoting Adam rather than John, and I hope that he will continue to do so.
He asked about the licensing of unregistered trademarks. That and many other questions which he raised are exactly the kind of matters which we shall discuss in great detail in Committee. But perhaps I may touch on one or two of the general points which he made; in particular the question of interpretation of the language used in the directives. I agree that there may be problems as regards interpretation, but in general harmonisation is best served by sticking closely to the directive. Courts in this country are now increasingly used to implementing Community language. However, we can discuss that further.
The noble Lord, Lord Peston, and my noble friend Lady Hooper, among others, asked about comparative advertising. This Bill aims at a flexible approach so that comparisons that are useful to consumers will be allowed, whereas parasitic comparisons may be caught out.
The noble Baroness, Lady Hamwee, the noble Lord, Lord Peston, and my noble friends Lord Reay and Lord Lucas of Chilworth all spoke about counterfeiting. We believe that this Bill is sufficient and that there will be no need to amend the Trade Descriptions Act. As regards international counterfeiting, the measures to improve protection against counterfeiting worldwide are being actively pressed for in the GATT negotiations, which I hope are currently nearing their conclusion.
I can assure my noble friend Lord Reay that the Bill strengthens anti-counterfeiting provisions and should be very much welcomed by enforcement authorities because it will make their job considerably easier.
§ Lord Peston
My Lords, I accept entirely the point which the noble Lord makes that we shall go into further details on these matters, but perhaps I may ask him whether counterfeiting will be dealt with under this legislation or whether it will simply be via this Act into the Trade Descriptions Act.
§ Lord Strathclyde
My Lords, I believe that I am right in saying that it will be dealt with under the provisions of this Bill but some provisions of the Trade Descriptions Act will also apply.
The noble Baroness, Lady Hamwee, made a valid point that the system may be too costly. Officially the fees are £185 per class, which gives seven years' protection. The noble Baroness quoted costs of £110,000, which seems to be slightly excessive, but 769 those are the kind of costs which include provision for legal advice. In many cases that can exceed the net worth of the advice actually received.
§ Baroness Hamwee
My Lords, in defence of my profession, I should say that the fees to which I referred were fees of trademark agents and not of solicitors.
§ Lord Strathclyde
My Lords, it is always nice to hear the noble Baroness protecting her profession, which she does most capably.
The noble Baroness raised the matter of copyright piracy. This Bill deals specifically with trade marks and it is doubtful whether copyright changes are within the scope of the Bill. However, I understand the points which the noble Baroness raised.
My noble friends Lady Hooper and Lord Lucas of Chilworth made some interesting observations on registration for retail services. In a test case in 1989 taken up by a number of large retailers and supported by the British Retail Consortium, the Court of Appeal decided that "retail services" was too vague a term to afford the protection which was sought. Their Lordships felt that its use would disadvantage others, and that is still the Government's view. We said in the White Paper that there is no need to seek registration for retail services used by a third party; for example, a trade mark as a name of a shop. The law would clarify the extent of the remedy for infringement. That is done in Clause 9. However, if retailers are unhappy about the extent of the protection given by Clause 9, we can discuss that matter in more detail in Committee.
My noble friend Lady Hooper asked where the directive has been implemented. I can tell the House that it has been implemented in France, Denmark, Italy, Greece, Portugal and Spain. It is still awaiting implementation in this country, in Ireland and in Germany. The Netherlands, Belgium and Luxembourg have codified the law, which awaits ratification by their Parliaments.
I said earlier that we have consulted extensively on this Bill, but we do not claim to have every single detail absolutely right. Now that the Bill has been published, my department will continue the process of discussing it with interested parties and will listen carefully to what is said. I am delighted that the overall message which I take away from this Second Reading debate is that the Bill is welcomed, and on that basis I commend it to the House.
§ On Question, Bill read a second time.
§ Moved, That the Bill be committed to a Public Bill Committee.—(Lord Strathclyde.)
§ Lord Simon of Glaisdale
My Lords, I do not oppose the Motion but I should like to utter a slight note of reserve. I certainly do not oppose it because all those noble Lords who have dealt with the subject today have approved of it going to a Public Bill Committee. But my hesitation is lest we should become slap-happy about the procedure.
770 Certainly if any Bill should go to a Public Bill Committee, this is the kind of Bill which should do so. The disadvantages are two general ones and one particular one. In general, a Committee of your Lordships' whole House is an admirable forum for detailed discussion. Secondly, there is a danger that governments may use recourse to a Public Bill Committee merely to load more and more legislation onto your Lordships' House. On this occasion certainly one welcomes it because the Bill was squeezed out of last Session's business. On the other hand, that it is now in on the basis of it going to a Public Bill Committee means that room is made for another Public Bill.
The third reason is a particular one: that the Public Bill Committee sits during the morning and afternoon and therefore is denied the assistance of a Lord of Appeal in Ordinary unless he is prepared to run the risk of disrupting the judicial business of your Lordships' House. Your Lordships heard today from the noble Lord, Lord Cawley, whom we all hope will be on the Public Bill Committee. He is an expert on this branch of the law. But there is another great expert who is a Lord of Appeal in Ordinary.
That situation obtained during discussion of the Charities Bill. In that case, the use of a Public Bill Committee was undoubtedly a success. But it meant that the greatest expert on charity law—my noble and learned friend Lord Browne-Wilkinson—was not available. As it happened, on that occasion another great expert—my noble and learned friend Lord Brightman, who had retired as a Lord of Appeal in Ordinary—was available. However, it is undoubtedly a matter that should, it is to be hoped, be borne in mind before we rush into sending Bill after Bill to a Public Bill Committee.
§ Lord Boyd-Carpenter
My Lords, I share the hesitation and apprehensions of the noble and learned Lord, Lord Simon of Glaisdale, about the Motion. After all, it is the basic function of the House fully to discuss legislation. A variation of our procedure which will exclude the great majority of Members of your Lordships' House from taking part in the Committee stage does, therefore, require to be looked at somewhat carefully. I shall be interested to see how it works.
However, I would welcome in advance an undertaking from the Minister that, because the Bill will have been to a Committee, the Report stage will not be hustled and that, if necessary, an additional day will be given in that respect so that some of the discussion which would have taken place in a Committee of the Whole House can, therefore, take place on Report. In the light of the amendments tabled and of previous discussion, I would welcome an assurance that rather more time than usual will be allotted for the Report stage of the Bill.
§ Lord Allen of Abbeydale
My Lords, I hesitate to raise a question as regards what the noble Lord, Lord Boyd-Carpenter, has just said, but the experience on the Charities Bill Committee showed that non-Members of the Committee were perfectly free to come to the Committee and to move amendments, a privilege of which they took very full advantage. I believe that the 771 experience on the Charities Bill suggested that the procedure was a good one for a very limited category of Bill. My own view is that the Bill now before us happens to fall in that category. However, a few things did go wrong and questions were raised on the Charities Bill Committee. I trust that full note was taken of that fact in settling how the proposed Committee—that is, if it is approved—will operate.
§ Lord Strathclyde
My Lords, I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for reminding us of our responsibilities in making the decision. Of course, those responsible for making the decision have weighed up the advantages and disadvantages of the procedure and have decided that, on balance, this is precisely the kind of Bill that should be dealt with under the special procedure. The Bill before us is one which involves no party controversy and one which will, I think, benefit from the particular detail and expertise that can be given under the special procedure.
My noble friend Lord Boyd-Carpenter asked whether we could have an extra day on Report. I am a believer in debating such matters fully. However, as to whether or not an extra day will be given will depend on necessity. Obviously, my noble friend the Chief Whip will maintain discussions through the usual channels. I am also grateful to the noble Lord, Lord Allen of Abbeydale, for his support in regard to the procedure. There have been only about six times over the past 12 years when we have needed to use the special procedure. I suspect that, on balance, noble Lords feel that it has worked extremely well.
§ On Question, Bill committed to a Public Bill Committee.