My Lords, this is a continuation in some senses of the debate that we have just had and an attempt to probe a little further about the opinions service. The Minister was clear about what is intended here. My noble friend Lord Young made the point that the wording in the Bill might set people off on the wrong track with its notions of appeal. An appellate position is usually quasi-legal, if not legal, and therefore people will get into the wrong mode if the wording remains as it is. The suggestion might be to reflect a bit more about how this could be expressed in the Bill without setting people off down the wrong track. However, if the Government were minded to accept this amendment, it would certainly become a different beast, and I recognise that.
I am not trying to frighten the horses because it is not our game. The point here is that in the consultation responses a number of respondents expressed concern that some gaming may be involved in the use of the opinions service. That means that large companies might simply utilise the opinions service but ignore it, in the sense that the process of going in to get an opinion from the registrar could be forced on the smaller company or individual designer, who would go to some expense, but not much, to get an opinion from somebody who should know, in the words of my noble friend Lord Borrie, and would take that opinion, which perhaps supported the view that the design was covered by an unregistered design arrangement, or had a copyright, or whatever it is that the registrar would be able to opine on. The designer would go back to the larger company and say, “See, I have evidence now that you have done me a terrible wrong by stealing my design and using it, and I wish to be recompensed for it”. The company would just laugh in the face of that person and go straight to court,
raising proceedings that might be very expensive and effectively using economic muscle to get rid of the small designer.
If our amendment were accepted, the judge or the court could take into account when awarding costs and damages whether the defendant or claimant had gone to the registrar and then ignored that opinion. I hope that that is not falling into the trap of giving this a legal status that it does not deserve or has not earned, but it adds teeth to the process, which would be useful to those who had to judge or settle claims in a way that would be effective and could raise the stature of the opinions service in the medium and long term. This is the thinking behind the amendment. The intention is to try to build up and support the opinion service by giving it a bit of steel behind its decisions, but without, I hope, falling into the trap of creating a quasi-legal approach. I beg to move.
5.30 pm