CONDITIONS FOR THE GRANT OF PLANT BREEDERS' RIGHTS (Hansard, 24 June 1997)

§ Mr. Baker
; I beg to move amendment No. 8, in page 20, line 31, after 'application', insert— ' 1A. The variety shall not be deemed to be distinct if, for the purposes of assessment of genetically modified organisms under United Kingdom or European Union law it has been deemed substantially equivalent to an existing variety.'. The amendment represents an attempt to set out for the Minister what I perceive to be a potential weakness; I hope that he can convince me otherwise. It seems that plant breeders, especially transnational companies, argue clearly for distinctness as a reason for their having benefits under the Bill, but when they seek to convince the European Union that any plant or feedstuff that contains a genetically modified material should be available for 743 human consumption they argue that there is no distinctness and that the feedstuff or material is almost exactly a replica of something that occurs naturally. In some instances, the plant breeding industry will attempt to have it both ways by arguing sameness when trying to obtain EU permission and distinctness when, in future, trying to benefit from the Bill.

§ Mr. Rooker
. I am grateful to the hon. Gentleman again because he has raised an important issue. At the same time, I am not entirely clear what he seeks by way of the amendment. I shall not nit-pick about technical defectiveness, but I am unclear about the use of The variety shall not he deemed to be distinct". Varieties are not deemed to be substantially equivalent in UK law or EU law: they are deemed, to be either distinct or not. A technical protocol has been developed by UPOV, which is recognised internationally, for checking whether there is distinctiveness. It is true that a difference in one characteristic is sufficient to make a variety distinct, but the second variety may be dependent on the variety from which it is derived. In those circumstances, as I said on Second Reading, the holder of rights in the first variety will be able to claim an interest in the exploitation of the dependent variety.
The language set out in the amendment about deeming would be entirely impracticable when considering inclusion in the Bill. That illustrates why we need precision and clarity in the Bill. It is necessary to ensure that everyone knows where he or she stands—breeders, farmers and producers—so that there is no argument in law about deeming something to be substantially equivalent or distinct, bearing in mind the fact that there is a set of international protocols for testing the distinctiveness of plant varieties. The amendment would muddy the waters, if I may put it that way.

§ Mr. Baker
Perhaps I might apologise for my earlier defective amendments, if there were any. I feel rather more vindicated on this amendment because the words The variety shall not be deemed to he distinct are a replication, with the addition of the negative, of the first line of schedule 2. That being so, I assume that it is a reasonable form of words. I am grateful to the Public Bill Office for helping me with the rest of the amendment.
These matters are complicated and I accept that it is possible to move one pawn on the chess board and upset everything else. At the same time, I believe that it is possible for the plant breeder to have it both ways. Perhaps that is not a matter to be pursued now but perhaps the Minister will ensure that what the breeder benefits from in terms of the Bill will not be argued the other way round during another stage in the process. I beg to ask leave to withdraw the amendment.