Health Bill [HL]

I suspect that the interpretation of the European Court of Human Rights would be exactly the same as mine. Intellectual property rights are a cornerstone of the whole of western civilisation and economic activity, hence both their significant value to their owners and to the wider economy, and the need for them to be effectively protected at both domestic and international levels. The UK Government are not entitled to interfere with trademarks and related intellectual property rights in respect of lawful products by reference to the nature of those products, because such interference would be contrary to the harmonised EU and the international system of trademark protection, with which we are obliged to comply. The protection of trademarks is harmonised at the EU level by means of the trademarks directive and Community trademark registration. The UK may not introduce measures that are inconsistent with that harmonised regime, which requires the consistent protection of trademark rights across the EU. Plain packaging regulations would be contrary to the harmonised regime. Accordingly, the UK Government cannot introduce plain packaging without breaching its obligations under EU and international law. Such breaches would render the regulations liable to be struck down. Furthermore, plain packaging regulations would amount to deprivation of a manufacturer’s valuable property rights, in the trademark, copyright and designs incorporated in the packaging, as well as in the good will arising in the resulting brand, which would be contrary to Article 1 of the First Protocol of the ECHR. Such deprivation is unlawful, and it would require the payment of compensation to those who had been deprived. Given the commercial value of manufacturers’ trademarks and related rights, it is clear that the compensation due in these circumstances would be very substantial. Plain packaging would inevitably inhibit the ability of manufacturers to communicate with consumers in relation to—I emphasise this—a lawful product. That ability, both of the manufacturer to communicate and of consumers to receive information, is protected by Article 10 of the European Convention on Human Rights, which recognises free speech, including commercial free speech, as a fundamental right. Prohibiting a rights holder enjoying his intellectual property rights in respect of a lawful product creates for the first time globally a pariah class of goods, in respect of which the universal protection of intellectual property rights does not apply. If the principle of such discrimination by reference to the goods themselves were established, its application would not logically be limited to tobacco products. It would probably be extended to alcohol and, surely, to certain food products. That seems to me to be the situation. If it ever happened—a totally unlawful prospect—first, the competition would be on price, as the noble Lord said; the price would come down and consumption would go up. Secondly, if we have a problem now with the illicit importation of cigarettes—27 per cent of cigarettes are already imported illegally—once there is plain packaging, it will be as easy as wink for any distributor, any retailer, any car-boot seller anywhere in the United Kingdom to ensure that they have their illegal sources and you will not be able to tell where on earth the cigarettes have come from. Once again, Her Majesty's Government will lose £3 billion or £4 billion. Referring briefly to the question asked on the Floor of the House, if we are so short of money that we cannot provide drugs for those two categories which I mentioned this afternoon, I am sure that we should be saving on £3 million or £4 million-worth of illegal importation.