HC Deb 25 February 1965 vol 707 cc761-74

10.43 p.m.

Mr. James Scott-Hopkins (Cornwall, North)

I beg to move, That an humble Address be presented to Her Majesty, praying that the Plant Breeders' Rights (Fees) Regulations 1965 (S.I., 1965, No. 66), dated 20th January, 1965, a copy of which was laid before this House on 1st February, be annulled.

Mr. Speaker

With this it may also be desirable for the convenience of the House to discuss the second Prayer— That an humble Address be presented to Her Majesty, praying that the Plant Breeders' Rights Regulations 1965 (S.I., 1965, No. 65) dated 20th January, 1965, a copy of which was laid before this House on 1st February, be annulled.

Mr. Scott-Hopkins

Yes, it would be convenient, Mr. Speaker.

It is now almost a quarter to eleven and at the beginning of this truncated debate I must make a protest that we should have so little time to discuss these extremely important Regulations. Statutory Instrument No. 65 contains no fewer than 25 completely different Regulations and I would have hoped that we would have had longer than three quarters of an hour to probe the Government's intentions and purposes. The Government seem to be overloading the programme to an undesirable extent. Last night, for instance, we did not reach the Prayer which then appeared on the Order Paper. I must register once more the protest that we on this side regard this as a quite unsuitable arrangement when so little time is given to such important matters as we are discussing now.

As I have said, we are discussing 25 separate Regulations in this one Statutory Instrument, to say nothing of the others under Statutory Instrument 1965 No. 66, which specifies the various levels of fees. This is a complete departure from anything we have had previously. It flows directly from the Plant Varieties and Seeds Act, 1964, which was enacted by the previous Administration. These are the first Regulations arising from that Act and, therefore, particular scrutiny is needed to ensure that they are correct and operate fairly.

Under that Act, we are setting up a new office and giving to the Controller of Plant Variety Rights extensive powers. He is able to perform all kinds of functions and make important decisions which will affect a great many people and could affect them extremely harshly financially. The Regulations lay down how he shall carry out his duties, what those duties will be, how applications for rights and licences are to be dealt with and the rules governing them. It is, therefore, important that we get this right.

I welcome the fact that the Regulations have been made, but they are pointless unless there are schemes going with them under the Act. Without schemes in the pipeline, all the Regulations in the world will be of no advantage to growers of any varieties, whether of plants or of seeds. The first question which I hope the Joint Parliamentary Secretary will be able to answer is whether any schemes are about to be made and what they will embrace. I imagine that the first one would concern roses and that after that we will have schemes for cereals. I should like confirmation from the Parliamentary Secretary that the Controller intends to get on with these schemes as quickly as possible.

Again, the Regulations will not even what I might call get off the ground unless an index is compiled of the existing varieties, so that breeders can know not only the names of existing varieties which are so designated by the Controller, but also so that they may know what is included in the indices for any section or variety, so that they may make up their minds whether it is worth while submitting applications. These two matters are extremely relevant. Unless the Minister can tell us authoritatively that schemes are about to be made, the Regulations will be a complete waste of time and merely an academic exercise.

Having said that, I turn to the details of the Regulations. I will go through them as quickly as I can in the short time available to us as I know that many of my hon. Friends wish to speak and to raise points of their own. My first query concerns Regulation 2, which uses the phrase "any organisation". The word "organisation" occurs many times throughout the Regulations. What is meant by the word? What qualifies for description as an organisation? This is the Interpretation Regulation, and I should have thought that it would have been proper for the phrase "any organisation" to be explained here. I find it difficult to understand what is meant by an organisation, and I should like the hon. Gentleman to explain that point.

Regulation 3 deals with applications for the grant of plant breeders' rights or protective directions. It lays down the form which these applications shall take, and a specimen application form is shown in the Schedule. I notice that an applicant need not put in the form laid down in the Schedule, but that he may put in any like form. It seems rather a waste of time to put in that provision.

Why is there no form in the Schedule for an application for a compulsory licence? This, too, is very important, and I should have thought that if the hon. Gentleman was going to the trouble of laying down a particular type of form for an application for plant breeders' rights, he would have considered it equally important to lay down a form for the application for a compulsory licence.

Regulation 3(3) refers to Any person who satisfies the Controller that he has a substantial interest … This is one of those controversial phrases, and I should like to know what is meant by "substantial interest". This is important in this respect, that it will allow, or will not allow, the person concerned to make representations to the Controller.

If the Controller decides that the person concerned does not have a substantial interest, he has no right of appeal to anybody else. He has no right of appeal to a tribunal if his application is turned down by the Controller. I should have thought that it was right and proper to write into the Regulations an appeal procedure similar to that which is provided in other Regulations.

Regulation 3(4) deals with priorities where two varieties are found at the same time. Will breeders' rights be granted to the first person who gets his application to the Controller? Will he be given a protective direction as well as plant breeders' rights? As I understand it, if two people discover the same species at the same time, the first person to get his application to the Controller on the authorised form will be granted the rights. Will he, during the interim period, be given the protective direction as well?

Perhaps I might pause for a moment to congratulate the hon. Member for Gloucestershire, West (Mr. Loughlin) on his elevation to the Front Bench. We wish him well, and hope that his stay there is short. I expect that he has quite a lot to learn.

It appears from Regulation 3(4) that there is to be a 14-day time lag in which the application can be made, and that if the applicant does not apply within that time he can lose his right of priority. This may be all right for those who are based in the United Kingdom, but I wonder whether 14 days are enough for somebody overseas; somebody who may have to produce all sorts of material which the Controller may require before granting him the rights. It may well be that the applicant concerned is residing in some foreign country and is applying for rights in this country, as frequently happens. I am wondering whether 14 days would be enough in this context.

I turn now to Regulation 3(6) which states: An appeal shall lie to the Tribunal against any decision of the Controller under paragraph (4) of this Regulation. As far as any appeal is concerned against the question of priority, why is not an appeal allowed as far as paragraph (3) is concerned?

I turn to Regulation 5. This deals with the question of compulsory licences, where the plant breeder is not prepared to let someone else use the material. In that case the Controller has the right to grant a compulsory licence to the applicant for these compulsory powers to be applied to the use of this material. I think that as far as the applicant for a compulsory licence is concerned he is in a completely different position from the applicant for the breeding right. I should have thought that under the original Act of 1964 he should be on a parity with the applicant for the plant breeders' rights. This is a point which arises in the next Regulation as well.

A great deal of written evidence is required to be given to the Controller in all kinds of applications—for licences, revocations and changes. In each case application has to be made in writing. In another Regulation we find that when someone applies in writing he has to pay a fee. This seems a rather strange way of doing things. I should not have thought there was any need to make a change.

The Minister will see in paragraphs 8 and 9 of the Schedule to Statutory Instrument No. 66 that on delivery of the written material the applicant has to pay 10s. This really does seem rather stupid and unnecessary. Would it not be worth while washing that out? There is no point in irritating people unnecessarily. I should have thought it was bad enough having to do a great deal of writing without being charged for doing it.

I turn now to Regulation 7 (2). How is it going to work? How is the person herein mentioned going to satisfy the Controller? I should like the Minister to say how the paragraph is expected to work.

In Regulation 8 it is up to the Controller to serve upon the holder of plant breeders' rights in a plant variety notice of any proposal to terminate and so on.

I cannot understand why this Regulation is necessary, why the Controller should be required to do this. How is he expected to carry this out? Later in the Regulation the applicant is told how and where he is to apply to the Controller, but there is nothing in the Regulation which lays down how the Controller should go about the various jobs he has to do. Looking through the Regulations we see that in many cases the Controller has to get in touch with the applicants. He has to get in touch with interested parties. How is this to be done? Will it always have to be done by registered letter, or in what way will it be done? The difficulty may arise that the Controller has not sent any information to the breeder, who may say, "This fellow did not get in touch with me." A procedure should be laid down in these Regulations by which the Controller assimilates information and serves notice to applicants or interested parties. If such a procedure were laid down the situation would be quite clear.

I am confused a little by Regulation 9, which refers to a period of 28 days from the publication of a notice in accordance with Regulation 10. This publication will presumably have to be done by the Controller. Where, how and when does he publish? Nothing is laid down. Does this mean that this is done only when there is an appeal pending, or when an appeal procedure is possible? Does it apply, for instance, in relation to Regulation 3 (3)?

Regulation 9 (4) brings us up against the difficulty of organisation. I do not see any point in this paragraph. It says: The right of any such person or organisation as aforesaid to participate in any proceedings and of any organisation or person as aforesaid to make representations and be heard shall be conditional upon application to the Controller in accordance with paragraph (1) of this Regulation. That seems superfluous. It is covered by the other Regulations.

Under Regulation 10, does the Controller publish in the Gazette only on a question which can go to appeal under paragraph (1), or when he has been given notice that it might go to appeal? Or does he have to publish in the Gazette whether or not the matter under discussion can go to the tribunal? As far as I can understand it, it seems that only when a matter can go to appeal is it necessary to publish.

Paragraph (2) contains the word "descriptions". This seems particularly vague. The Controller has to publish in the Gazette "descriptions of persons". How does he describe persons? Will he describe what a person does, or what his occupation is, or what is his previous history? What points will be brought out in this way? We want to be quite clear about this. When he has read these proceedings the Controller should have no doubt in his mind as to what he can include in any information which he publishes in the Gazette.

This Gazette will be a remarkably crowded document. It will have to contain a great many announcements of all kinds. It will have to refer to all the varieties laid down, and all the schemes. I shall be interested to hear from the Parliamentary Secretary how he envisages putting out this publicity not only in this country but overseas.

Regulation 11 seems to be of some importance for people overseas. It is quite possible that we shall have applications from people in France, the Commonwealth and elsewhere who will want plant breeders' rights in this country for certain varieties which they have managed to breed. They will have to deliver to the Controller, on his direction, details of the kind of materials for which they are applying. I should like to know how the Parliamentary Secretary expects this to happen, and how much information should be supplied, for instance, about difficulties of transport.

As for the provisions of sub-paragraph (iii) of Regulation 11 (1), it is impossible for the Controller to have sufficient staff, who could be flying around the world examining breeder stations and farms and perhaps advising on different types of seeds and plants in faraway, distant countries. I wonder what staff the Parliamentary Secretary expects that the Controller will have, and whether he expects the Controller to use local staff. I would hope that the latter was the case. That is a point which will probably be raised later—that it would be excessively expensive, although it would be a splendid holiday for the Controller.

In Regulation 11 (2), we read that The Controller may from time to time require a person … to go through various tests. Surely the Parliamentary Secretary should be more precise than that in his Regulations. This may put an intolerable burden on someone who is trying to produce a new variety. What do the words "from time to time" mean? How many tests are there to be? Surely a particular period of time could be written into this Regulation, so that after two, three or four years, if the Controller were not satisfied with the results of the tests, the whole thing would be washed out. To leave the words as vague as this and not to put a time limit on it could put an intolerable burden on the breeder who is trying to secure his rights.

Regulation 12 is most important. This is the Regulation under which the Controller acts in a quasi-judicial capacity. As I said, this is a complete departure from anything which we have had before. Quite obviously, under this Regulation, the Controller would be unable to carry out all these duties himself. The Regulation says that after the Controller has refused an applicant for any of the various reasons, that person has the right to go to the Controller and appeal to him, and at the appeal proceedings the Controller acts in a quasi-judicial fashion, and the appellant is on oath. Quite obviously, the Controller cannot do all this. There is provision for the Controller to appoint other people to act for him. I should like to know whose these people are to be. Will they be locally trained, or will they be from the hon. Gentleman's Ministry? Where will they be recruited? Will the hon. Gentleman have any say in this, or will it be left entirely to the discretion of the Controller? Excellent though the Controller may be, one would not necessarily be satisfied that he would be able to choose the right people to act for him in this quasi-judicial capacity.

This is extremely important, because under Regulation 12(12), witnesses may be required to give evidence on oath, and the question of perjury arises, in which the sole arbiter will be the person whom the Controller has appointed to act for him. This raises very big issues, but I do not think that I need to pursue them here. I think that I have made the points sufficiently clearly. It is extremely important that, under this Regulation, we should know what is involved and how it is intended to act. I am very glad to see that in 12(1) the condition has been brought in that there shall be appeal to the Controller. One could easily foresee that the entire tribunal procedure could become clogged up if there were not some intermediate machinery to ensure that every decision against an applicant is not immediately taken to the tribunal by that applicant.

Regulation 12(8) states that the Controller shall give to each of the persons concerned at least 14 days' notice of the time and place of the hearing. This seems superfluous in view of Regulations 12(6) and 12(7), and I wonder whether the hon. Member will explain why 12(8) is included. I presume that under 12(12), which provides for the administration of an oath, the penalties for perjury are those laid down by common law, and I assume that the Controller would be the person to indict an offender, if there were one—or possibly he would get guidance from the Director of Public Prosecutions. Will the hon. Member explain how this will be done?

There are many more Regulations. I do not want to take up the time of the House unnecessarily. I could go on for a long time, as I have only so far reached Regulation 12, and, as I said when I started, there are 25 Regulations.

Sir Douglas Glover (Ormskirk)

And there are 23 parts to the Schedule under the other Regulations.

Mr. Scott-Hopkins

That is true. We cannot possibly give these Regulations tonight the consideration which they ought to have. My hon. Friends wish to speak about them, and I could make many more points about them. I hope that the Government will bear in mind that these Regulations have not been fully discussed and will find time at a more suitable date for a discussion of the remaining Regulations.

Regulation 13(3) deals with the extension of the time during which plant breeders' rights are exercisable. How does the Parliamentary Secretary see this provision being carried out? It seems to me that if a plant breeder's rights are to expire on a given date and the appeal procedure has not been gone through, then a plant breeder's rights are nevertheless extinguished even though on appeal he might get a favourable decision from the tribunal. This would be a gross miscarriage of justice. There appears to be a gap between the time of the expiry of the rights and the time of the decision on appeal. I hope that the hon. Member will look into this.

I am being as quick as I can, but I must point out that Regulation 17 deals with the selection of names for plant varieties. Unless we have an index published before these Regulations are brought into force, the scheme as a whole will he useless. Are the Ministry or the Controller in the process of preparing an index? As the hon. Member knows from the Act—

Mr. John Farr (Harborough)

Schedule 5.

Mr. Scott-Hopkins

I am obliged to my hon. Friend.

In Section 20 of the Act, too, it is laid down that this shall be done. It can be introduced in sections—for example, for roses or for mushrooms or for whatever the Controller or the right hon. Gentleman decide is appropriate. Without the index the scheme is useless. I hope that we shall have an assurance from the hon. Member about this. I understand that a separate and distinct list is to he published under Regulation 17 as well as the index. Perhaps the hon. Member can clear up that point.

Regulation 17(8) says that if an applicant cannot find a name because the Controller has turned him down time and again, within 14 days the whole application falls to the ground. This seems hard. If the Controller has turned down the applicant three times, why should it not be an obligation on the Controller to find a name? I think that the Controller would be delighted to name a variety after his wife or daughter or god-daughter. Why should not the onus be put on the Controller after he has turned down the applicant's selection for a third time?

Another point is that if, as it stands under this paragraph, the Controller does turn down the things in Regulation 17(8), he cannot refuse to act in his quasi-judicial capacity; nor, it is important to remember, is there an appeal to the Tribunal. Those are points of which we should not lose sight.

Yet, on the whole, I welcome these Regulations. There is a great deal that the Parliamentary Secretary will have to explain in going through them. My right hon. Friend the Member for Rushcliffe (Sir Martin Redmayne) had a great deal to do with the introduction of this Act. He could not talk about it during its passage through this House, for reasons which we all know, but I am sure that, if he can catch your eye, Mr. Speaker, he would welcome the opportunity to say something about it this evening.

When my right hon. and hon. Friends formed the Government we had an extremely heavy programme in hand, but the difference between then and now is that, this evening, only three-quarters of on hour has been left for discussion of these Regulations. Many of my hon. Friends would wish to speak, but it is quite impossible for us to have a positive debate this evening. I hope that that fact will be noted and that, when we do reach 11.30 this evening and the debate has to conclude, we shall be given an assurance that we may continue at another time more convenient for hon. Members on this side.

Sir D. Glover

When the Act dealing with plant breeding went through this House it had my enthusiastic support; but tonight we have a Statutory Instrument dealing with this very complicated piece of legislation brought before us for examination at 10.45 p.m. I object to this most strongly.

I am getting very tired of objecting to the scandalous way in which this Government treat the House of Commons. Here are two Statutory Instruments, Nos. 65 and 66. The former contains no fewer than 25 Regulations and a Schedule, while No. 66 contains four Regulations and a Schedule. This great democratic institution, the Socialist Party of Great Britain, now in power seems to think that three-quarters of an hour is sufficient time for a debate of any substance on those.

The Joint Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food (Mr. John Mackie)

The hon. Gentleman's hon. Friend the Member for Cornwall, North (Mr. Scott-Hopkins) made a very good point about this, but he spoke for nearly half an hour. If hon. Members would like some replies, the hon. Member should say no more.

Sir D. Glover

That is not the point. My hon. Friend spoke for about half an hour and made a most constructive speech. I do not complain and, in my view, he should have spoken for an hour on a subject of such importance as that before the House. In half an hour he could not possibly cover all the 29 Regulations and Schedules. He hardly had any time at all to refer to Statutory Instrument No. 66. All the time he was trying to make the very good point of how vital are these Regulations to those people affected.

Looking at the Statutory Instruments as they are published, I see that they come into operation on 22nd February; and if I know anything about calendars, today is the 25th February. Have they been operating for three days completely illegally? On what basis have the Government brought them into operation before they were debated and passed by Parliament? What right have the Government to say, "These Instruments will come into operation on 22nd February, but Parliament will not debate them until 25th February"?

Mr. John Mackie

rose—

Sir D. Glover

Too little time remains to enable me to give way. I know that the Joint Parliamentary Secretary is thinking that this is all very unfortunate and that this business should not be raised because it is a procedural point, but evil starts in a small way and can grow into big issues. If this were one isolated case I probably would not be complaining, but the Government are repeatedly flouting the interests of the House.

There must be some procedural way by which these Statutory Instruments can be debated more fully than is possible in the time available to my hon. Friends tonight. If I had time I should like to examine each of the 25 Regulations and 23 Schedules. I am not trying to be funny, because I have a large constituency interest in plant breeders' rights. Indeed, in my constituency this is a great issue. Many agriculturists and firms in my constituency have written to me about a great number of points they would like me to raise in the debate, but since it is now 21 minutes past 11 o'clock, unless you can rule that more time may be provided for the Debate, Mr. Deputy-Speaker—

Mr. Deputy-Speaker (Dr. Horace King)

Order. I think that the hon. Member will help to lose his case if he does not talk about the Instrument.

Sir D. Glover

With the greatest respect, Mr. Deputy-Speaker, I was making the point that I did not want to do that because if I did I would be reducing almost nil time to nothing. I want the opportunity—

Mr. Deputy-Speaker

Order. I hope that the hon. Member will now speak about the Instrument.

Sir D. Glover

I thank you, Mr. Deputy-Speaker. You are always helpful to back benchers. I cannot think of any better person to occupy the Chair and keep we back benchers on the right rails. I will not say more, but give my hon. Friends an opportunity to make a similar protest because the Joint Parliamentary Secretary really cannot ask the House to pass these two Statutory Instruments on the basis of such a short debate. If that is his intention, I would be prepared to register my objection in the only way open to me.

11.24 p.m.

Mr. J. A. Stodart (Edinburgh, West)

I will, following the extraordinarily able way in which my hon. Friend the Member for Cornwall, North (Mr. Scott-Hopkins) dealt with many of the matters involved, concentrate on only one aspect; but first I must say—although I say it with slightly mixed emotions—how much I deprecate the absence of a Scottish Minister, for I have some distinctly Scottish points to raise. I use the phrase "mixed emotions" because the Minister of State was of little help to us in a Committee elsewhere.

In Regulation 13, which deals with appeals to the tribunal, it is stated that the chairman of the tribunal will decide where the tribunal will meet to hear appeals. There is a reference in Schedule 4 of the Act to proceedings before the tribunal in Scotland. Can the hon. Gentleman tell me when and on what occasions the tribunal sits in Scotland? Does it depend upon the decision of the chairman of the tribunal who is appointed by the Lord Chancellor? Does it sit in Scotland whenever there is an appeal by a Scottish plant breeder or when a Scottish interest is involved? Could it be that if there were a collection of cases and there were one Scottish case and four English ones to be heard on the same day the Scots would have to come south? If that were the case I am certain that the hon. Gentleman would agree with me that it would be an outrage, because I am certain that he is as well aware as I am of the complete difference in the laws of evidence as between Scotland and England.

I do not suppose that the hon. Gentleman wants me to go into detail on the legal differences in the matter of evidence between Scottish and English courts. They might be slightly embarrassing to him. I take this substantial point seriously, as I hope he does. Where there is room in the provisions for the appointment of a Scottish chairman, on what occasions are Scottish cases to be heard in Scotland? It seems from Regulation 13 of Statutory Instrument No. 65 that the decision on where in the United Kingdom the tribunal is to meet is solely a matter for the chairman of the tribunal which is appointed by the Lord Chancellor. I hope, therefore, that the hon. Gentleman will address himself seriously to this point.

11.27 p.m.

Mr. John Farr (Harborough)

I cannot begin to say tonight what I should like to say on these two important sets of Regulations. My interest in this matter is not a fleeting one, because for a number of years now I have been tabling Questions at the instigation of a number of important plant breeders in my constituency to try to have put into operation the Act which the last Government got through the House. Tonight we have before us only the first two of many Statutory Instruments connected with the Act. They are both long and complex and I have a number of points to put to the Parliamentary Secretary.

Could he give the House some detail of the duties of the office of the Controller of Plant Variety Rights? Has the Controller been appointed? If he has, at what salary? As my hon. Friend the Member for Cornwall, North (Mr. Scott-Hopkins) so aptly asked, what sort of staff will he have? I assume from the Act and the Regulations that the Controller will have vast and comprehensive duties. What size of staff was originally envisaged, and was it considered that it would be likely to increase?

I raise this question not so much as one with a constituency interest in plant breeders as one who represents a farming constituency where farmers are very concerned lest this be another twist in the price spiral which has affected them ever since hon. and right hon. Members opposite came into office. We have had—

Mr. Deputy-Speaker

Order. The hon. Gentleman must talk about the Regulations.

Mr. Farr

Of course I will. I was trying to ask the Parliamentary Secretary whether the fees envisaged in the Regulations were not rather high and whether the registration fees will not be yet another inflationary demand in the ever-rising spiral of farm costs.

It being half-past Eleven o'clock, Mr. DEPUTY-SPEAKER, being of opinion that the time for debate had not been adequate, interrupted the Business, and the debate stood adjourned till Monday next, pursuant to Standing Order No. 100 (Statutory Instruments, etc. (procedure)).