My Lords, the noble Viscount needs to offer us some compelling reasons for the creation of a new criminal offence. It is undesirable in principle to create new criminal offences unless there is a clearly demonstrable need for them. Successive Governments over decades in this country have been promiscuous in the creation of new criminal offences. They have been trigger-happy in this matter. It makes
them look as if they are being tough and it is quite popular in certain quarters, but it has not been very good for our national life or our culture. It tends to create a more pervasive culture of distrust, suspicion and fear within our society.
There are also a lot of practicalities to think about. If you have a criminal offence, you must commit policing resources. You are laying another burden on the courts. The police and the courts are already excessively burdened and their resources are diminishing. You must consider the capacity of the prisons, which are bursting. I hope that we will not have to anticipate many people being incarcerated in consequence of the noble Viscount’s measure but that is clearly what it points towards. I do not know what thought the noble Viscount has given to the cost of all this. We understand that the Government are intent on reducing the deficit but he is proposing here a measure that will have clear implications of additional public spending. I can quite understand why the measure is popular with small and medium-sized enterprises in the design field: the burden of the enforcement of rights will be transferred from civil action being taken by them where necessary to criminal prosecution by the police and the Crown Prosecution Service. It saves SMEs troublesome, tedious and possibly expensive activities. I can see why they like that. However, I am a bit surprised that the Minister has been willing to gratify them in this way.
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I always think of the noble Viscount as a mild and kindly man, but here he is about to expose people to some draconian penalties. I do not know what the maximum fines would be for people found guilty of the offence that he is going to create, but I see that he plans to bang them up for up to 10 years. That seems uncharacteristically harsh. One would have thought that that scale of penalties would be more appropriate for major fraud and expropriation. As I have suggested in earlier proceedings on the Bill, a governing principle should be that we protect intellectual property no more than is necessary to encourage and reward innovation suitably. It goes too far to extend that protection by creating offences in the criminal world. I understand that there is a case for criminalisation in a situation in which a powerful corporation is deliberately and systematically trawling and appropriating the designs created by individual designers, sole traders, and small and medium-sized enterprises. There is inequality of power and arms here.
As my noble friend Lord Stevenson said and as the noble Lord, Lord Clement-Jones, also indicated earlier this afternoon, there are many situations in which there are definitional issues. There are penumbra and grey areas where it seems far from clear that we should be reclassifying behaviour that we consider wrong as criminal. The creation of this criminal offence is taking a sledgehammer to crack nuts of various sizes, which may not be the right thing to do.
The noble Viscount has much more to do to persuade the Committee of the case for creating a criminal offence. When he spoke earlier he made his case in terms of the desirability of simplification and presumably of consistency with the laws that apply in the fields of
copyright and trade marks. As I also suggested earlier, simplification or consistency are not necessarily paramount virtues, not least in the field of intellectual property, which is highly differentiated and complex, and in which pragmatism and common sense are always required. He suggested that it would be helpful in the enforcement of rights but, as I have said, I am not clear that the state should take over the enforcement of the maintenance of their rights from individual designers and design companies and partnerships. The case has to be made more strongly.