PLANT VARIETIES

HC Deb 09 March 1965 vol 708 cc333-46

Order read for resuming adjourned debate on Question [25th February], 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 28th January, be annulled.—[Mr. Scott-Hopkins.]

Question again proposed.

8.1 p.m.

Mr. John Farr (Harborough)

I should like, first, to thank the occupant of the Chair at the time for being so courteous as to adjourn the debate on 25th February to give us a further opportunity this evening of putting forward several points for examination. I should like to take this opportunity to thank also the hon. Gentleman the Joint Parliamentary Secretary for having been so courteous and considerate as to send to those Members who were interested in the debate his summary of some of the answers to the points which were raised.

When I was speaking on 25th February, I raised one or two points in con section with the Controller and his staff. The hon. Gentleman was good enough to answer them, and there are a couple of other points which I propose to make now. First, it seems to me that there has been a long delay in bringing into operation the first two Regulations under the Plant Varieties and Seeds Act of 1964. This Act enjoyed its Third Reading on 23rd February, 1964, and received the Royal Assent on 12th March, 1964. Thus, almost a year lapsed before we received the first two Regulations under it.

The right hon. Member for Workington (Mr. Peart), who at that time was the Opposition spokesman on agricultural matters, gave a warm welcome to the provisions of this Conservative Measure, and there is not a shadow of doubt that it incorporated legislation which should have been introduced years ago.

The result of our breeders of plants of all varieties not enjoying patent rights has been that farmers in this country have utilised few home-bred cereals, especially wheat and barley. We have one or two excellent home-bred oats, developed largely at Rothamsted, but most of our wheat and barley is developed on the Continent, and exported here and used by our growers. This has happened solely because our growers, not only of cereals, but of a variety of plant life, have not, until the introduction of this Measure, enjoyed protection from pirating by their competitors.

I hope that the hon. Gentleman will be able to assure the House that the Government will now get a move on and get this scheme under way. For instance, has the procedure under Schedule 5 begun to operate? Is there an initial register of seeds in use at the moment? As the hon. Gentleman is aware, one of the procedures for which the Act calls is the compilation of this initial register. Has this started, and, if so, what stage of preparation has it reached, and when is it likely to be completed?

Another matter to which I should like to refer is the Answer which the hon. Gentleman gave in the House on 3rd February when he said that the Act was likely to apply to wheat, oats, barley, potatoes and roses. This answer is, of course, confirmed in item 20 of the Schedule in S.I. No. 66 which we are considering tonight, but can the hon. Gentleman tell me when these different schemes will be published?

Can he tell me, too, what has happened about the assurance given by his predecessor in the illustrious office which he now holds to the then Member for King's Lynn that sugar beet would come within the ambit of the Act? Has the hon. Gentleman any plans for introducing a scheme for sugar beet? Is it his intention to implement the undertaking given by his predecessor, and, if so, when is the sugar beet seed scheme likely to see the light of day?

I propose next to deal with other species of plant life and seeds in general. Recently I have been having talks and correspondence with a number of people in the trade. They are wondering whether the intention is to introduce schemes for other species such as kale, turnips, mangels, grass seeds, vegetables and flower seeds. They would like to know what the Minister intends to do with regard to these items.

I believe that the hon. Gentleman has received representations from the N.F.U. which has expressed fears about cut flowers. If the hon. Gentleman has not as yet received such representations, I am sure that my right hon. Friend the Member for Rushcliffe (Sir M. Redmayne) will inform him of the fears which have been expressed by those who produce cut flowers and who are associated with the N.F.U.

I am delighted to see these Regulations. I hope that they are the first of many. I hope that we shall see the remaining regulations and schemes published at an early date so that we can put some life into the Plant Varieties and Seeds Act. I hope that when he replies the hon. Gentleman will be able to tell me whether we have ratified the International Convention on Plant Breeders' Rights, and, if so, whether it is in force.

8.8 p.m.

Sir Martin Redmayne (Rushcliffe)

I follow my hon. Friend the Member for Harborough (Mr. Farr) in thanking the hon. Gentleman for his courtesy in sending detailed answers to hon. Members. The trouble is that those answers do not get on the record. If we wanted to put them on the record by talking about them tonight as well as by referring to other points we could go on for a long time. I wonder whether he will consider either publishing an explanatory pamphlet about the Regulations or putting out some sort of guide to them, so that plant breeders generally can understand them more clearly than we do. Possibly—and this perhaps stems back to the parent Act—the fault is that we follow patent law too closely. Patent law, which has to cope with a multiplicity of inventions, both professional and amateur, has to be a good deal more complicated than is necessary in respect of this matter.

I know that my hon. Friend the Member for Edinburgh, West (Mr. Stodart), who is unable to be here but who I believe has spoken to the hon. Member, is very grateful for the reassurance contained in the letter that no far-off tribunal will take decisions closely affecting somebody in Scotland. That will warm all Scotsmen's hearts. I want to make one or two points on the letter addressed to my hon. Friend the Member for Cornwall, North (Mr. Scott-Hopkins) who has exhausted his right to speak. My hon. Friend asked what progress was being made with the schemes for various commodities. In a previous debate I referred to the fact that this Prayer appeared to arouse apprehensions in the breasts of some breeders. I have had this put to me in another form, in the sense that the fact that we have prayed against the Order and have properly asked for information has delayed the rose scheme. Will the hon. Member categorically deny that this quite proper Parliamentary procedure has caused any such delay?

My hon. Friend also expressed uneasiness about the term "substantial interest" which is included in the parent Act. He wondered whether it was a sufficiently precise definition. The fact that it is not more closely defined may increase the number of appeals made under Regulation No. 9. Perhaps the hon. Member will consider that point.

My hon. Friend also referred particularly to the fee necessary for representation on the Authority. I will come to the fees Regulations in a little more detail later, but I want to draw attention to the sentence in the hon. Member's letter to my hon. Friend in which he says, However the Fee Regulations as a whole will be reviewed after two years. I feel sure that that statement will be received with a sigh of relief by many people who will have to deal with these Regulatinos, because I suspect that they are based too much on existing patent law and have not been specifically designed for these purposes.

On Regulation No. 11(2), the hon. Member in reply to my hon. Friend said that the Controller would no doubt normally rely on his own tests and trials but in some cases tests by the applicant could provide useful supplementary information. It is impracticable to be more precise, having regard to the great variety of circumstances which will be encountered. I wonder whether a limit should not be set on tests which, it would seem from the regulations as drafted, could run almost endlessly.

In respect of Regulation No. 13 the hon. Member's letter said: In a case where the Controller refuses to extend the period the suspension of his decision will have no effect because if the appeal is delayed the rights might expire in any event. An attempt to avoid this position by granting an automatic extension of rights simply because an appeal was outstanding against the Controller's decision not to extend them would, it is thought, open the door to abuse whereby such a provision could be used to obtain in many cases what would virtually amount to an unjustified extension of the rights. I put it to the hon. Member that in a sense that provision is surely an abuse of justice, since a delayed appeal would automatically confirm the Controller's decision that the rights should expire. In this case some protection should be devised.

I now want to run quickly through one or two remaining points about the Regulations. Under Regulation No. 18, which deals with the register of plant varieties, I should like to know whether this register is a separate publication from the index of existing varieties which is published in the Gazette. I presume that it is. If so, how can breeders get at it? Is it also to be published in the Gazette? Is it to be published, as it were, as an amendment to the index of existing varieties, or do breeders have to come down to London to see it? If they have to come down to London, or if they have to apply for a copy of it, do they have to pay? That is the sort of point in which they will have quite a lively interest.

Regulation No. 20 deals with the loss or destruction of grants. It seems to me that there ought to be included in the grants referred to a grant for compulsory licences. Regulation No. 21(1) quite properly lays it down that breeders have to give an address in the United Kingdom for service. I wonder whether there are any organisations in this country which will assist plant breeders—whether they be from the United Kingdom or from foreign countries—in this extremely devious and complicated procedure. In patent law there are many patent agents. Many of us who have an ingenious turn of mind have used those agents to protect our amateur inventions. Plant breeders will need a plant breeders' rights agent if they are to have the same protection. I suppose it is possible that the National Farmers' Union and other bodies could provide such a service, but I am in some doubt whether it will be provided.

Regulation No. 21(4) provides for the way in which papers shall be served. I notice that such documents can be sent by ordinary post. I should have thought that since the penalties involved are in many cases heavy it would be wiser to send these documents by registered post. Regulation No. 23(3) compels the Controller to invite observations within a specified period in regard to any proposal in respect of the rectification of errors and irregularities. I know that the Controller is not bound by any specific time, whereas anybody else covered by the Regulations has to carry out its provisions within a period of 14 or 28 days. I do not see why the Controller should be completely free in this respect. It does not seem to be justice. Again, in Regulation No. 25(1) a period of 28 days is laid down, after which, if fees remain unpaid, applications are void.

It is noticeable that the periods of grace vary from seven to 14 days. I should have thought, although I realise that we cannot amend Regulations, that after some time when they may be reissued, or when the Scheme, having been working for a while, is found to be working not altogether smoothly, it would be reasonable to make the periods more uniform.

I am not clear about the fees. Has the Minister any idea what sort of sums in total are likely to be involved? Has the Controller the right to hold the fees or are they set off against the Vote which supports him? It would be helpful to have an explanation of that. Referring to the question of fees in detail, I think that here again we are at fault through following the patent procedure too closely. Rose growers find no fault with the overall cost although if one tots up the charges it will be found that the total for a new breed of rose can amount to about £50. They do not think that excessive, but it seems to me a little rough that, although it may be fair to pay £5 on an application to extend, limit, vary or revoke a compulsory licence, it would seem hard to have to pay £5 for each of these. It is necessary to pay £1 to rectify an error or omission in the register of plant varieties, but is that paid only once or, if one or two mistakes are made, does one go on paying?

According to the Regulations Nos. 8 and 9 there is a charge of 10s. every time a representation is made in writing, which means that there is a 10s. charge for putting pen to paper. That will be, if not onerous, at least irritating. Under Regulation No. 10 to attend to be heard by the Controller necessitates the payment of £5, and I am sure that it will be said that one must pay £5 to open one's mouth.

Under Regulations Nos. 21 and 22 to inspect the register of plant varieties will cost 5s. with 1s. for supplying a document of foolscap size or smaller and 1s. 6d. for a document larger than foolscap. Except that one is dealing with patent procedure, I do not think that all these charges are necessary. There has to be some check on the great flow of professional and amateur business coming to the Patent Office, but I suspect that here the charges are not really necessary. I am not in any way being critical or patronising when I say that I think that the Ministry may be working a little in the dark regarding how these Regulations will operate. If the Minister is determined that within a year or two he will look at these questions again and may be ready to streamline the whole procedure, it would be a great relief to the Controller and those who are bound by the Regulations.

We have given the Minister a task in replying to all these points. If he finds the burden of getting all the answers on to the record too great, he might produce a 6d. pamphlet, which would be a great relief to us and the plant breeders.

8.25 p.m.

Mr. John Maginnis (Armagh)

We are discussing these Regulations for the second time in a week. I wish to reinforce the point made by my hon. Friend the Member for Rushcliffe (Sir M. Redmayne) about roses. I have a copy here of a brochure which was sent out recently by one of the largest rose growing organisations in Western Europe, which is situated in my constituency. The organisation is worried because it has been told on good authority that the Regulations relating to roses are being delayed.

The date on which applications have to be made in respect of roses is 11th May, 1965, which leaves little time. Much time has been spent by the producers in preparing brochures and putting their house in order. We may applaud their efficiency, but it would be tragic if the Regulations were delayed, because the firms which have produced varieties for the market and had their brochures and catalogues printed would lose considerable sums of money.

I hope that the Parliamentary Secretary can give us an assurance that the discussion on these Regulations will not delay the production later of the Regulations relating to roses.

8.27 p.m.

Mr. John Brewis (Galloway)

I wish to reinforce what has been said by my hon. Friend the Member for Armagh (Mr. Maginnis) and to draw an analogy with patents. The fees for taking out patents are remarkably low. I am sure that this is to encourage people of moderate means to patent inventions rather than to rely on secret processes, so that everyone may see the information available in a particular kind of manufacture. The same should be true in respect of plant breeding. The fee in respect of patents is only £1, but on application for a grant of plant breeder's rights the fee will be £10, which seems a remarkably greater amount.

The second point is that when a patentee has patented his invention, if he is a man of moderate means, for the next few years he tries to put it into commercial production, and the fees for renewing the patent are comparatively small—I think about £1, or perhaps as much as £2. But, in the case of plant breeders' fees, on the grant of plant breeders' rights, £20 has to be paid. Also, under Regulation No. 14, there appears to be an annual fee of £25, while, under Patent Rules I think that it is only £1.

This seems to me to be likely to discourage the small man in this art, and I should like the Parliamentary Secretary to explain why these fees seem to be so remarkably high.

8.30 p.m.

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

As the right hon. Member for Rushcliffe (Sir M. Redmayne) said, this is a fairly big job which the House has given me, to try to answer all the points which have been raised, and I am grateful to him for his sympathy. Also, although any reply by letter and question and answer last week—particularly to the hon. Member for Cornwall, North (Mr. Scott-Hopkins)—was mainly to try to help hon. Members who are very interested in this, it was not altogether just for their sake. It was to help myself as well, because as I could see, when the debate was adjourned, that it might come up again, it might have caused difficulties if I had not supplied all the details. It was not completely for the sake of hon. Members. There was an element of self-interest.

The hon. Member for Harborough (Mr. Farr) was worried about the long delay. He said that these Regulations should have been introduced years ago. I think that he is probably right. Let us be thankful that they have been introduced and not blame somebody for not having introduced them years ago. Plant breeders have not had a fair deal in this respect. I remember the late Donald McKelvie, who produced the Arran potatoes—including Arran Pilot and others—which were such a tremendous help for farmers, and who got no benefit from that at all. I remember that my father, who was interested in the subject, was absolutely furious when he saw that McKelvie had been given only an O.B.E. He said that a knighthood was too little.

I think that the Bill and Regulations are long overdue, so let us hope that we can get the thing going as quickly as possible, but they are not easy. We are often accused from the other side of being a little too hasty and the more complicated a matter is, the better it is to take plenty of time to see that it is right.

The register is on the way, and there is a good deal of informal work going on behind the scenes with breeders, so that when the various schemes are laid before the House, there may be no delay and a lot of schemes can operate straight away. The Controller has made a considerable number of arrangements with the various plant breeding stations in the country—Scotland, Northern Ireland and, of course, at Cambridge—to carry out tests in addition to the tests which breeders make themselves and for which they produce the evidence. So I can assure the hon. Member for Harborough that arrangements are further on the way than they appear, because of this informal action with breeders, with no pledges to anybody, and with breeders' concurrence.

There is a considerable number of plans at present. I can assure the hon. Member that schemes relating to wheat, oats and barley will be laid before the House on Thursday. Provisions for potatoes are on the way and are under discussion, and those for roses should follow very quickly. We are thinking of provision for peas, beans, lettuce, rhubarb, apples, strawberries, chrysanthemums, rhododendrons, dahlias, sweet peas and some herbaceous plants. I was asked about sugar beet. I cannot give any hard and fast assurance about that, but it will be taken into consideration.

On the International Convention, nothing can be done until five schemes go into operation. As soon as five schemes go into operation, the question of ratification will be given our full consideration. I understand that no other country has yet ratified that convention. We would hope that it would be done as soon as we get five schemes on the way.

I should like to assure hon. Members opposite and any of their constituents who are interested in roses that we on this side do not think that there is any question of delay over the roses scheme which would hurt anyone at all. They can give that assurance. The Prayer put down last week certainly did not cause any delay, if there has been any. This point was raised by the hon. Member for Edinburgh, West (Mr. Stodart) and I hope that he will be satisfied. He explained to me why he could not be here tonight.

The hon. Member for Cornwall, North said that he would like a little more enlightenment about the phrase, "substantial interest". We have to leave a considerable amount to the Controller. This is a difficult scheme. It is a new scheme which has been likened to the patent rights scheme, but there are differences. It would be impossible to include in the Regulations a phrase which would cover exactly what was meant by a "substantial interest". These words can be interpreted by the Controller. There is a right of appeal. I have here a list of the various matters on which an appeal will lie, and I will send it to the hon. Member for Cornwall, North.

I thank the right hon. Member for Rushcliffe for his excellent idea that we should put out a simple guide which could be circulated. I was sorry that after bitterly complaining about odd charges of 1s. or so, the right hon. Gentleman suggested that we should charge 6d. for this, because that immediately abolished his argument on the other matter. Nevertheless, it was an excellent idea, for which I thank him. We will consider it.

I was asked about fees. We shall review the whole question of fees in two years. The hon. Member for Galloway (Mr. Brewis) made a comparison with patent fees, but there is a considerable difference between the two schemes. There is a considerable number of applications to the Patent Office, about 40,000 a year, providing a substantial income. This has been well-established over the years. It is not fair to suggest, as yet, that the fees in this respect are too high. In any event, they are being reviewed in two years.

I do not want to go into all the details about fees. I was asked what will be the general picture. We expect that the total cost will be about £40,000 to £50,000 per annum. The early costs will be borne on the Ministry Vote until the scheme is going, but when it is going we expect that over the years the fees will bring in a substantial income. The figures are £90 for a new cereals variety and £60 for a new rose. In view of the tremendous advantages, that does not strike me as untoward for a new scheme. The hon. Member for Harborough suggested that it would spiral up farmers' costs, but I think that he will agree that the scheme will be of great advantage and will not add much to the cost of new seed.

I know only too well that during more than 30 years during which I have been farming the greatest advantage to farmers has been new seed. That is without any doubt whatever. We have had new barleys, new wheats, new oats, new grasses and many other seeds. Instead of this costing the farmers money, if it encourages better breeding in this country it will be of great advantage to the farmers and will lower their costs.

Sir M. Redmayne

The hon. Member has not taken the point which I made. I understand that the schedule of fees is based upon patent law procedure. I suggest that there is too great a variety of fees. In patent procedure there is a protective screen of fees set up to avoid too many frivolous applications. I fully agree that it is necessary here to get a reasonable income, but it seems to me that that income is very much better obtained with comparatively few fees, by having quite solid fees for quite specific purposes instead of a multiplicity of minor fees for minor applications.

Mr. Mackie

I take the point. There are 23 different fees, but they are all for different applications. These all involve some part of the proceedings, and it would be difficult to charge a common fee and then perhaps pay part of it back. This is different from the Patent Office procedure, because there is a long period of testing in plant production. All this has to be gone through in two or three years. Although there are similarities, and the language is based on normal patent law, we will take those matters into consideration. After two years we would certainly review the situation and, if necessary, amend the Regulations, which would then be brought before the House.

The hon. Member for Cornwall, North referred to test limits, a separate register and similar matters. I assure him that all the information—and there will be a considerable amount of it; the index as well as the register of new varieties—will be published in a Gazette and that those two matters, the register and the index, will give separate information.

I was then asked about the Controller giving information and keeping in touch with people; having their addresses, and so on. This is not an easy matter to decide but, generally speaking, it is necessary for us to have these addresses, particularly when people may be abroad.

Reference was made to the period of 14 days not being enough and one hon. Member mentioned that while everyone concerned appeared to be tied down, the Controller was not. I suppose that that is a point, but we should remember that the Regulations are designed to benefit the people who are getting these rights. The Controller must work a system and he is making these Regulations for their benefit in the long run.

Discussion centred at one point around the question whether registered post should be used to a great extent. I was asked if that system might be tried. Although it states in the Regulations that the ordinary post should be used, I will bear that point in mind.

I have already dealt with the question of the charges. I assure hon. Members that this is not an easy subject to consider because people are bound to say that it costs 10s. to put pen to paper and £5 to open one's mouth. All these are individual actions and they could stop at an early point. As hon. Members know, any Government Department which does not make a charge for matters of this kind is bound to come in for a good deal of criticism, if only for having given away something for nothing.

There are two small points which the hon. Member for Cornwall, North might have noticed in the reply which was given to him. The first was a typing mistake. The number 14 was given instead of 13. The second concerned a question he particularly asked about the Regulations. He wanted to know why persons were not entitled to make representations under Regulation No. 3(4) and why there was no appeal under Subsection 3. He will find, if he studies them, that that is covered under Regulation No. 9, where people are entitled to make representations. I assure him that Regulations Nos. 3 and 9 are covered in that way. I agree that this is a somewhat complicated matter, but I suggest that if he takes the Regulations to bed with him tonight and studies them he will see why it is not necessary to refer back to Regulation No. 3(4) in the same way as with Regulation No. 3(3).

I have not really done justice to the remarks of the hon. Member for Ormskirk (Sir D. Glover) about there being 25 Regulations in one Statutory Instrument and four in the other, with 23 charges, and so on. I will put the hon. Gentleman's suggestion to the Department, that we should issue a sort of child's guide to the Plant Breeders' Regulations and hope that anybody who wants grants will not begrudge the 6d. which is involved.

I hope that, with these remarks, the hon. Member for Cornwall, North will withdraw the Motion.

8.45 p.m.

Mr. Scott-Hopkins

The point that the Parliamentary Secretary has made about Regulation No. 9 underlines what my right hon. Friend has said about trials. I am grateful to the hon. Gentleman for dealing with this matter so satisfactorily. In view of the generally courteous and exhaustive way in which he has tried to cover all the points which have been raised, I beg to ask leave to withdraw the Motion.

Motion, by leave, withdrawn.