My Lords, we come now to the question of performers’ rights. I will not dwell at length on the purposes of Clause 5 but merely focus on the processes that it puts in place in relation to the definition of a qualifying country. There is a central issue here about the availability of the protection of rights holders and performers’ rights in the United Kingdom being part of a reciprocal process for the protection of UK performers in other countries. I am just sweeping the ground ahead of the noble Lord, Lord Foster of Bath, who may explain a bit more—or he may not, it is up to him.
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The point is that, for the United Kingdom, this is an important and very valuable protection. We have a terrific creative industries sector and, in those markets, the CPTPP can be terrifically important to us. I mentioned my interest in Japan before—you only have to begin to assess the relationship between our creative sectors and those in Japan to realise the importance of this trade and, indeed, of protecting the rights of performers.
This is a question of reciprocal right. The legislative structure on this is the Copyright, Designs and Patents Act 1988, which was, in this respect, principally amended by the Intellectual Property Act 2014. The definition of a “qualifying country” falls under Section 208 of the Copyright, Designs and Patents Act 1988. It provides
that a country designated as enjoying reciprocal protection effectively becomes a qualifying country. That is an important Order in Council. Likewise, an Order in Council under Section 206 can amend that definition
“so as to add a country which is not a party to the Rome Convention”.
From 1961, that was the convention under which signatories afforded what were, in effect, common standards regarding protection for performers’ rights in the countries that were signatories to that convention.
My only question is a substantive one: would it not be better for this important secondary legislation—these orders—to be made following consultation? One set is about defining what has reciprocal protection, the other is about extending the definition of a qualifying country. They may overlap or use either route in relation to CPTPP countries but, for our purposes, it is not just about CPTPP. This goes further and wider. It changes the legislation not simply to add the CPTPP but to enable secondary legislation to come forward.
We have previously debated primary legislation that gives the Government powers in future when they have free trade agreements to incorporate the provisions of those into domestic legislation by statutory instrument. That must be the right way forward. We are still building this practice up since our acquisition of trade policy responsibilities, but it must be a better way of proceeding. If we do not do that, we will end up with these bits and pieces of legislation in primary legislation, imagining that we are debating the overall rationale of the treaty when, in fact, we are not. We will be amending legislation in detail when it could all be done by regulation and we, as a Parliament, could accept or not accept that regulation.