|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
Lord Evans of Temple Guiting: My Lords, the intention of Amendment No. 19, which stands in the names of the noble Lords, Lord Roberts of Conwy and Lord Luke, appears to be to ensure that the Assembly makes regulations that provide for the appointment and term of office of the commissioner. The Government do not believe that such an amendment is necessary. The Assembly is committed to establishing the office of the commissioner, and Clause 1 of the Bill makes this intention clear. Noble Lords may also be reassured to know that the current wording in the schedule is identical to that found in the Care Standards Act 2000, pursuant to which the Children's Commissioner was appointed.
Amendment No. 20 is the same in its intent as other amendments on this matter that were fully debated both in Committee and on Report. It seeks to make explicit provisions for regulations to deal with the reappointment of a commissioner, as well as for the initial appointment. I reassure the noble Lord that the term "appointment" most definitely encompasses reappointment. The Assembly will be able to make provision about this matter in regulations, and it has signalled its commitment to do so in its statement of policy intentions. Indeed, based on the views expressed in public consultation on the matter, the Assembly plans to provide for a four-year term, renewable once.
During our consideration of a similar amendment on Report, the noble Lord, Lord Roberts of Conwy, said that his primary purpose in tabling the amendment was to draw attention to the differences in the provisions for reappointment of the Commissioner for Older People and the Children's Commissioner for Wales; he has retuned to that point this evening. However, the appointment and reappointment provision in this Bill is identical to that used in the Children's Commissioner for Wales legislation. The relevant paragraph states that:
That is the exact form of words used in paragraph 2 of Schedule 1. I believe that the noble Lord, Lord Roberts of Conwy, may have been thinking of the UK Children's Commissioner, created by the Children Act 2004. The Act makes express provision for reappointment. However, in legislating for a Commissioner for Older People in Wales we have taken the decision that it is appropriate to follow the model for the Welsh Children's Commissioner and provide for the Assembly to determine the matter in regulations. That does not represent a change in legislative approach but a continuation of the approach taken in the Children's Commissioner for Wales legislation. I hope that with that explanation the noble Lord will feel able to withdraw his amendment.
Lord Roberts of Conwy: My Lords, I am grateful to the Minister for his comments on the two amendments. I am still concerned, as he must be, with the variety of wording that we have in various Bills that he and I have dealt with regarding appointments. We do not as yet seem to have fixed on a standard form of words in Bills for the appointment of important officials such as the Commissioner for Older People. I am still mystified as to why regulations "may make provision" in paragraph 2 of Schedule 1, but the next paragraph begins, "The Assembly must". I would have thought that the prior regulationsthe ones that may be madeare more essential and indeed a sine qua non to what follows in the succeeding paragraph.
15 Feb 2006 : Column 1252
However, I have had the benefit of the Minister's explanation and I beg leave to withdraw the amendment.
Lord Evans of Temple Guiting: My Lords, I give my grateful thanks to those Peers who have taken part in the debate over the past few months; in particular, the noble Lords, Lord Roberts of Conwy, Lord Roberts of Llandudno, Lord Livsey and Lord Thomas of Gresford. It has been for me an extraordinarily interesting experience. I am grateful to all Peers for the way and the spirit in which they have debated this interesting Bill. On behalf of all Peers I must thank the Box, the officials from the Wales Office and those from the Assembly, who have done the most wonderful job over the months. Our grateful thanks to all there. I beg to move that the Bill do now pass.
Lord Roberts of Conwy: My Lords, for the second time this week perhaps I may speak to the Motion that the Bill do now pass by reciprocating the thanks given to us all by the Minister, whose performance throughout the Bill's conduct has been eximious.
House adjourned at four minutes past ten o'clock.
The Committee met at fifteen minutes to four of the clock.
[The Deputy Chairman of Committees (BARONESS GOULD OF POTTERNEWTON) in the Chair.]
The Deputy Chairman of Committee (Baroness Gould of Potternewton): Good afternoon. I have to make a statement to begin with. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bell is rung and resume after 10 minutes.
Page 47, line 33, leave out from "shall" to end of line 35 and insert "not of itself give rise to any criminal or civil liability, but in any proceedings against any person for an infringement under paragraph 2, any such use may be cited in evidence that that person has created an association with the London Olympics as specified in paragraph 1(2)(a)"
The noble Lord said: I rise with slightly more than a spring in my step, having watched some of the Winter Olympics. I have no doubt that the noble Lord, Lord Glentoran, has relived many memories himself during this week. It has been extremely interesting, except that, apart from in the splendid Scottish sport of curling, it is sad to see that we do not seem to have strength in other Olympic winter sports. I am sure that with the Government's support, that will not apply to the Summer Olympicscertainly not in 2012.
The amendment would replace the automatic presumption of guilt in Schedule 4 paragraph 3(1) of the Bill in connection with the use in certain combinations of protected words and expressions set out in paragraphs 3(3) and 3(4). If adopted, the effect of the amendment would be that if a non-sponsor used such words or expressions in the way set out in paragraphs 3(2) to 3(5) of Schedule 4, that could be cited in court as an indication that the London Olympics association rightwhich I shall call "law"had been infringed. The amendment therefore changes the effect of Schedule 4 paragraph 3(1) from being one in which the use of protected words and expressions in certain combinations would constitute an automatic infringement triggering a presumption of guilt to an indication of a possible infringement of Schedule 4. That, I would claim, is what the Government say is intended in any event.
In Standing Committee in the other place, my honourable friends tabled an amendment for the deletion of paragraph 3 in its entirety, including the presumption of guilt contained in paragraph 3(1). In
15 Feb 2006 : Column GC384
rejecting the amendment, the Minister, Mr Caborn, argued that the presumption was of an evidential nature rather than an actual presumption of guilt. The advertising industry is clearly opposed to ambush marketing, and it is certainly not in their interests, yet we on these Benches believe that this Bill will impact detrimentally on advertisers, with absolutely no interest in falsely associating themselves with the games, as well as on the wider advertising economy.
Schedule 4 provides that alleged transgressors of the law will automatically be presumed guilty from the outset, in the absence of evidence being provided to the contrary. They will then face an injunction and/or unlimited damages. If the alleged transgressor had absolutely no intention of breaching the law, will they have collected evidence in advance in the expectation that they might in future have to prove their innocence under this legislation? In any event, what kind of evidence will be sufficient to rebut the presumption? The reversal of the burden of proof is entirely disproportionate in legislation that is designed essentially to protect the commercial interests of the IOC and LOCOG. The burden should be on LOCOG to prove the guilt of an alleged transgressor, not the other way round.
The wording of the amendment is based on existing statutenamely, Section 25(2) in Part 3 of the Consumer Protection Act, which is tried, tested and effected law. That section includes a similar indicative element in respect of an infringementin this instance, of the DTI's recently updated code of practice for traders on price indications. That seems to us to be a pretty good precedent.
In all the meetings that the advertising industry has had with DCMS officials, those officials have insisted that they intend that Schedule 4 paragraph 3(1) is only indicative of a possible infringement. The existing version of the schedule fails to achieve that, however, creating instead only great legal uncertainty. The amendment would meet the criteria sought by the DCMS while remaining proportionate.
In fact, the inclusion of a reverse presumption of guilt within the legislation is an option that is not required by the IOC. It is one of several areas of the Bill where the Government have chosen to gold plate what the host city contract requires. In the course of Standing Committee D, the Minister tabled a DCMS summary of the IOC's requirements on brand protection and ticket touting. It appears that only a summary could be producednot chapter and versebecause the IOC requires the content of the technical manual on brand protection No. 3 to be kept confidential. Apparently the manual is still being redrafted in any event.
"To aid the application of such laws the burden of proof could possibly be reversed so that the defendant is presumed to have violated the law unless he can show that his actions have not created a link with the games".
At a meeting that the advertising industry had with the organising committee on 31 October 2005, I am informed that the industry asked whether the inclusion of a reversal of the burden of proof was or was not a requirement of the IOC. I understand that both LOCOG and DCMS officials have confirmed that it is not a requirement of the IOC.
The Bill before us today will confer additional intellectual property rights. Whether or not these additional rights are necessary, to go on to reverse the presumption of innocence in this area is wholly unjustifiable. The DCMS's own summary of the IOC's requirements on brand protection and ticket touting states that those responsible for organising the Olympic Games must study existing laws and identify those areas where additional legislation is needed to fulfil the IOC's requirements. An automatic presumption of guilt is not one of those requirements. Presumably such an analysis of existing law has been conducted by the London 2012 committee and could be placed in the public domain.
|Next Section||Back to Table of Contents||Lords Hansard Home Page|