Vera
Baird: Does the hon. Gentleman want to know how tall they
will have to be, or which gender? I do not know whether they will be
full-time or part-time appointments, but it will be possible to job
share, I am sure. I
can tell the hon. Gentleman whom the Secretary of State will appoint,
if that was one of his questions—I have forgotten because they
came out so fast and staccato. It is intended that Patent Office
tribunal members will be appointed. The Patent Office will provide the
tribunal staff and the costs will be recovered from fees. I shall write
with more specific details.
James
Brokenshire: It would help the Committee to have a better
understanding of how the clause will work in practice. I provided my
shopping list of questions about the adjudicators, but they underline
the serious problem of the lack of detail about the practical
arrangements for the new adjudicator service, such as what type of
person would be required and how many there would be. Such detail would
allow us to get a feel of whether we are talking about a huge
organisation or a small one and what precisely we are considering. We
do not have that clarity at the moment, and although I will not vote
against the clause, that clarification would be helpful. If the
Minister writes to me, that will be extremely helpful for all
parties.
Vera
Baird: I certainly will write and supply all those
details. If the hon. Gentleman wants such information in another case
he should let me know prior to the Committee and I shall try to have it
available at the right time.
James
Brokenshire: I am grateful for that. I look forward
to receiving some of the details and I will be happy to give the
Minister a shopping list as appropriate.
Question put and agreed
to. Clause 71
ordered to stand part of the Bill.
Clause
72Procedural
rules
James
Brokenshire: I beg to move amendmentNo. 61, in
clause 72, page 30, line 33, leave out ‘may' and insert
‘shall'.
The
Chairman: With this it will be convenient to discuss
amendment No. 62, in clause 72, page 31,line 13, at end
insert— ‘(l) requiring the
publication of all decisions by the adjudicator within 90 days of the
decision being
given.'.
James
Brokenshire: I have two quick little points to make. The
clause uses the word “may” in relation to the rules for
adjudicators set down by the Secretary of State, and it would be better
to give some definitive context by saying that they
“shall” make provision for the relevant items in clause
72(2), as amendmentNo. 61 would do.
Amendment No. 62 raises a
slightly different issue about the publication of the decisions of
adjudicators. If we are to avoid problems arising, it is obviously as
well to ensure that decisions are publicised so that people can
understand them and avoid the need to get into such circumstances in
the future, and to share best practice for all professional advisers.
It would therefore be helpful to ensure that decisions are published to
avoid the potential for future disputes. I appreciate that hardened
individuals intent on extorting money will pay no regard to that, but
it would be helpful to have transparency for the general commercial and
corporate
sector. This is a probing amendment to seek to promote that idea, as
such knowledge would be in the interests of all
parties. Vera
Baird: The hon. Gentleman has successfully promoted his
amendment No. 62. It is clear that there should be a requirement for
the adjudicators’ decisions to be published. One could argue
that if they contain a point of law they will be reported anyway, but
we agree with the proposal. If he withdraws the amendment, we will work
out the best way of putting that together. The deadline might not be
exactly as he has proposed, as it has to work out with other deadlines.
If he is happy to withdraw the amendment, I shall undertake to consider
it, as he makes a good point.
On including
“shall” instead of “may”, the clause
provides a power to make rules about proceedings before the
adjudication and lists various matters that might be included in those
rules. The Patent Office has advised on the issue because it has
experience of operating similarly focused tribunals. Under the clause
as drafted, a listed matter might be omitted and an unlisted matter
might be included, so long as the clause says “may”.
Alternatively, a matter could be left to be determined by the chief
adjudicator. The point of putting “may” instead of
“shall” is to give maximum flexibility, which is
important because this is a new procedure and we want to make it as
cost-effective as possible for users. Obviously, we will consult on the
rules. If the hon.
Gentleman is content with that, I hope he will consider not pressing
either amendment, given that he argued successfully on amendment No.
62.
James
Brokenshire: I do not know what the process is whereby I
can quit while I am ahead. I am grateful for what the Minister said
about amendment No. 62. That would be extremely helpful. I do not
intend to press amendment No. 61 to a vote. It is obviously a technical
drafting amendment and I hear what the Minister said. On that basis, I
beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause 72 ordered to stand
part of the Bill.
Clause 73 ordered to stand
part of the Bill.
Clause
74Appeal
from adjudicator’s
decision
James
Brokenshire: I beg to move amendmentNo. 63, in
clause 74, page 32, line 11, leave out subsection
(3). The clause deals
with appeals from a company’s named adjudicator to the court.
Subsection (3) deals with suspending the adjudicator’s order on
appeal. The problem is highlighted by the CBI, which
says: “There
should not be an automatic suspension of the adjudicator’s order
on appeal...Otherwise this sub-clause is an encouragement to
appeal and to continue trading under an offending name, damaging the
applicant’s goodwill even further.
Rather, it should be
open to the respondent to seek a court order suspending the order, as
it should be open to an applicant to seek an order preventing the
respondent company from
trading under the name until the questions concerning the abuse by the
respondent have been
settled.” I
note that the matter was highlighted in another place. Lord McKenzie of
Luton was not persuaded by a similar argument. He suggested that the
concerns were unfounded, on the basis that registering a name does not
confer a right to trade. If a company were forced to change its name
immediately, someone else might take the name.
It is worth considering some of
his specific comments in Grand Committee. Lord McKenzie
said: “If a
company had to change its name immediately, its name might then be
taken by anyone else. In particular, it is likely that the applicant
would wish to register the name, if only as a precautionary measure.
This means that the company would have lost the name even if the court
were to reverse the adjudicator’s
decision.” He also
said: “the fact that the
company has registered a particular name does not confer a right to
trade under it.”—[Official Report, House of Lords,
1 February 2006; Vol. 678, c.
GC121-22.] I hear what the noble
Lord said, but on the point about immediate change, there is surely a
risk that that would happen in all circumstances covered by clause 70.
If an order were made, a company would clearly want to protect its
position immediately. How would that mechanism work? I was not
persuaded by his comment.
We are not talking about
trading names but corporate names. There is a fundamental distinction.
For that reason, I tabled the amendment suggested by the CBI. I look
forward to the Minister’s response.
Vera
Baird: The hon. Gentleman correctly quotes my noble Friend
and more or less correctly quotes his noble
Friend—
David
Howarth (Cambridge) (LD): Round we go
again.
Vera
Baird: Indeed, and for no particular reason, as far as I
can see. The
amendment is misconceived. Its effect would be that even if a
company’s appeal were successful, it could well be impossible
for it to have the disputed original name as somebody else might have
taken it. That is not a fanciful idea because it would be the sensible
thing for the other party to do in the meantime. That would be wholly
inequitable.
James
Brokenshire: I moved the amendment because the problem has
again been highlighted by the CBI, so it is clearly of concern. While I
recognise that we are covering ground that may have been covered before
in another place, if something is of concern it is the duty of the
Opposition to continue to highlight it in Committee. I note what the
Minister said, but it is our duty to ensure that problems are properly
highlighted. Although they have been discussed in another place, it is
still important that we have an opportunity to debate them after
reflecting on the changes that were made to the Bill there and in the
context of debates on Second Reading in this House. While I note that
the Minister is
not prepared to give ground, it is important that we retain that
opportunity and that I do not feel fettered in raising issues that have
been raised elsewhere. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
74 ordered to stand part of the
Bill. Clause 75
ordered to stand part of the
Bill.
Clause
76Misleading
indication of
activities
James
Brokenshire: I beg to move amendmentNo. 140, in
clause 76, page 33, line 9, after ‘public',
insert ‘or a section of the
public'.
The
Chairman: With this it will be convenient to discuss
amendment No. 141, in clause 76, page 33,line 10, at end
insert ‘A direction under this
section must be in
writing.'.
James
Brokenshire: I will not speak to amendment No. 141,
because of the assurance given by the Minister. However, amendment No.
140 is on a slightly different subject. Clause 76 provides a mechanism
whereby if a misleading indication is given as to the nature of the
activities of a company and it
is “likely to cause harm
to the public, the Secretary of State may direct the company to change
its name.” The amendment
is intended to clarify the use of the words “the public”.
When looking through the Bill, I asked myself what would happen if only
a section of the public were harmed—for example, the elderly or
another vulnerable group.
In other companies legislation
a distinction can be drawn between the public and a section of it.
While the language in the clause repeats that in section 32(1) of the
1985 Act, the Bill gives us the opportunity to ensure that we
adequately and properly address the problem. We are considering
activities likely to cause harm, and even if harm is caused to only a
section of the public, it is still harm. I appreciate that there is a
balance to be drawn and that the amendment may not be as precise and
elegant as it would need to be, but the point is still valid and worth
further examination to ensure that we are clear as to when an order
should be given. We must ensure that a person subject to such an order
is not given the right to make a legal challenge by saying,
“Well actually, we are not affecting the public. We are only
affecting a section of the public.” That would clearly not be in
the public interest, so it is worth
examining. 1.45
pm
Vera
Baird: The hon. Gentleman does himself a
disservice—this is an elegant amendment, except that we do not
think it necessary. I understand the underlying concern, which he set
out plainly, but the
criterion “likely to
cause harm to the public”
does not require the whole population to
be in danger. “Public” means anyone not related to the
company.
The problem with the amendment
is that it suggests that a risk must be either to all those or to a
group—a section of the public—who share a characteristic,
such as the elderly or the vulnerable, for example, as he said, that
distinguishes them from the rest of the public. As the provision is
drafted, all that would be required to trigger the power in the clause
is the risk of harm to a substantial number of people, whether or not
they could be described as a section of the public, according to the
hon. Gentleman’s
definition. I hope
that the hon. Gentleman is reassured and is able to withdraw the
amendment. He is entirely right about amendment No. 141 and we will
consider it, as we offered to do in relation to an earlier
amendment.
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