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Company Law Reform Bill [HL]

moved Amendment No. A256G:"Page 421, line 43, after ““of”” insert ““or in connection with””" The noble Lord said: We move to slightly less torrid ground. In moving Amendment No. A256G, I shall speak also to Amendments Nos. A256H to A256Q. The amendments are all concerned with Clause 867,"““Disclosure of information under the Enterprise Act 2002””." This issue has been raised with us by the CBI. We support the amendment to Part 9 of the Enterprise Act 2002 relating to disclosure of information, but the proposed amendment in Clause 867 is too widely drawn. It is important that the amendment is limited to proceedings concerned with the enforcement of intellectual property rights in order to allow IPR holders to gain information from public authorities so that they can defend their rights and pursue counterfeiters and other infringers through the civil courts or with other appropriate action. An amendment limited to IP rights could be justified on the grounds of the need to comply with international TRIPs, the trade-related aspects of intellectual property rights obligations. The problem caused in this area was an unintended consequence of Part 9 of the Enterprise Act. We oppose any further change that would weaken the Part 9 safeguards and would seriously undermine business confidence in the arrangements under the Enterprise Act. The consumer and competition enforcement regime rests on the fact that a wide range of information is provided to public authorities by business on the basis that it would not be disclosed. In general, the gateways work well. There is no justification for making any wider changes than those needed against infringers of IP rights. The arguments here parallel those that we had about information gateways in our debates about the Takeover Panel under Part 22. We therefore consider that the proposed enabling power in Clause 867 is drafted too widely and is unacceptable. Rather than creating an enabling power, we believe that the clause should be limited to dealing with the specific issue of IPR, including civil actions against counterfeiters where a genuine problem has been shown and where there are international obligations in TRIPs that must be complied with. The amendments in this group are intended to give effect to that. Amendments Nos. A256G, A256H and A256L add specific references to intellectual property rights and amend the drafting slightly to include proceedings of or in connection with IP-related proceedings. The gateway as currently drafted prevents any use outside the UK of any information disclosed pursuant to Section 241A. Counterfeits found on the market in the UK have often been imported. For brand owners to take effective action to reduce the trade in counterfeits, they need to be able to pursue everyone in the supply chain, including the manufacturer. That may involve criminal, administrative or civil action, depending on the local laws applicable in the particular case. It is also essential to be able to use such information to feed into the worldwide intelligence gathering exercise. Amendment No. A256J removes that limit on the disclosure gateway by removing the words, ““in the United Kingdom””, from the last line of page 421. That will also ensure a compliance with the UK’s TRIPs obligations. In referring only to civil proceedings and decisions whether to bring such proceedings, Clause 867 does not allow for the considerable number of cases that are concluded without proceedings, as is indeed encouraged by the civil procedure rules. Amendment No. 256K intends to make allowance for the many ways in which rights holders may seek to protect their rights. Such allowance has already been built into similar gateway provisions—for example, Section 35(2) of the Data Protection Act 1998. Subsection (2) states:"““Personal data are exempt from the disclosure provisions where the disclosure is necessary—""      (a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or""      (b) for the purpose of obtaining legal advice;""      or is otherwise necessary for the purposes of establishing, exercising or defending legal rights””." Amendment No. A256M would remove subsection (4)(b), which, if proceedings are limited to IP proceedings under the order made by virtue of paragraph (a), would be unnecessary to retain. Amendment No. 256N would require the statutory instrument to be subject to the affirmative resolution procedure, rather than the negative, as currently proposed. It is important to ensure that there is full debate and scrutiny when this matter returns in its more detailed form. There is concern that the trading standards or customs officer may disclose information to a rights holder under cover of a letter explaining the precise subsection justifying its disclosure—for example, for the purposes of giving legal advice under Section 241A(1)(c) as proposed to be amended. In theory, under subsection (5) as drafted, any subsequent use by the rights holder for litigation or for other defence of IP rights would not be permitted and would be an offence. However, the information could originally have been disclosed and used for such purposes. We presume that that is not intended. If so, it should be clarified that information that may have been disclosed expressly for one permitted purpose can also be used for another purpose, provided that the latter is also one of the permitted purposes. Amendment No. 256P is intended to achieve that. Finally, Amendment No. 256Q would remedy similar problems in the Enterprise Act 2002 and insert a new clause after Clause 867. I beg to move.