New clause

HC Deb 26 November 1997 vol 301 cc1049-53

Lords amendment: No. 8, after clause 13, to insert the following new clause—Presumptions in proceedings relating to harvested material—

".—(1) This section applies to any proceedings for the infringement of plant breeders' rights as respects harvested material.

(2) If, in any proceedings to which this section applies, the holder of the plant breeders' rights proves, in relation to any of the material to which the proceedings relate—

1. (a) that it has been the subject of an information notice given to the defendant by or on behalf of the holder, and
2. (b) that the defendant has not, within the prescribed time after the service of the notice, supplied the holder with the information about it requested in the notice,

then, as regards the material in relation to which the holder proves that to be the case, the presumptions mentioned in subsection (3) below shall apply, unless the contrary is proved or the defendant shows that he had a reasonable excuse for not supplying the information.

(3) The presumptions are—

1. (a) that the material was obtained through unauthorised use of propagating material, and
2. (b) that the holder did not have a reasonable opportunity before the material was obtained to exercise his rights in relation to the unauthorised use of the propagating material.

4) The reference in subsection (2) above to an information notice is to a notice which—

1. (a) is in the prescribed form,
2. (b) specifies the material to which it relates,
3. (c) contains, in relation to that material, a request for the supply of the prescribed, but no other, information, and
4. (d) contains such other particulars as may be prescribed.

(5) In this section, "prescribed" means prescribed by regulations made by the Ministers."

Mr. Rooker

I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker

With this, it will be convenient to take Lords amendments Nos. 9 and 10.

Mr. Rooker

The House will forgive me if I take a little longer over these amendments. They are three new clauses and, taken together, they address the particular problems that breeders of vegetatively propagated ornamental plants face in enforcing their rights. I will put that into plain English in a moment.

Ornamental plants are traded to the public through a wide range of retail outlets, including garden centres, supermarkets and by mail order. They are things that we and our constituents buy every week as gifts or to enhance our living rooms.

Ornamental plants, by their very nature, are easy to multiply through, for example, taking cuttings or using modern tissue culture techniques. The products—rose bushes or pot plants—which have been produced legitimately and on which royalty has been paid, can easily be diverted from their proper end use and used for further propagation, without the breeder's authority, as they are traded through a chain to the final consumer.

Illicit propagation, where no royalty is paid, enables less scrupulous traders—there are spivs in our society— to undercut legitimate traders who are operating correctly and fairly. It gives people an unfair advantage. It is similar to the reason why, in due course, we intend to introduce a national minimum wage.

Plants that have been produced through illicit propagation are the same as those produced by authorised propagation—it is, after all, a condition of protection that plants reproduce true to type. Therefore, a plant breeder cannot identify infringing material simply by looking at the plants. He needs to know the source of the plants on sale. If the seller refuses to provide information on where he obtained the plants—those who knowingly trade in illicitly produced protected varieties will almost certainly refuse to do so—the breeder is left with a strong suspicion that his rights are being infringed, but nothing more.

The new clauses provide for plant breeders to issue information notices, in a form prescribed by Ministers in regulations, to people trading in plants or directly made products of protected varieties. Where the trader refuses to provide the information requested within a period specified in the regulations, without reasonable excuse, the clauses require the courts to presume that the material or directly made products to which the notice relates were obtained in circumstances which infringed the breeder's right, unless the defendant can show otherwise. In effect, the burden of proof is reversed in those carefully defined circumstances—I emphasise that they are carefully defined circumstances.

The information to be provided will not be onerous. It will basically be details of the supplier and the amount of material supplied by him. It is reasonable to suppose that anyone selling plants will know whom he bought them from and how many he bought.

The breeder must treat the information obtained in a notice as confidential, except where he uses it to establish whether his rights have been infringed or in infringement proceedings. If the breeder breaches the obligation of confidentiality, the person who supplied the information will be able to bring an action for breach of a duty of confidentiality.

I expect plant breeders to use those provisions in a proportionate and sensible way, in respect of transactions which are in the normal course of business. There should be no question of plant breeders laying siege to local church fetes and bring-and-buy sales, demanding information on the source of plants on the plant stall. I must also emphasise that the clauses do not permit plant breeders to serve notices on private individuals growing plants in their own gardens, for their own private and non-commercial purposes.

Mr. Paice

The Minister is right to spend a little longer on these new clauses, because they are significant. I congratulate him on using, word for word, the same speech used by the noble Lord Carter when he moved the same new clauses in the House of Lords.

Mr. Rooker

Same Government.

Mr. Paice

Yes, indeed. Two Ministers speaking with the same voice. The Minister without Portfolio has obviously been into the Ministry of Agriculture, Fisheries and Food recently.

There is something serious about the amendments and that is the reversal of the presumption of innocence. As we all know, that is well enshrined in English law. A proposal to reverse that is a major step. It is not without precedent, but we must take it seriously and consider carefully whether it is necessary. I am persuaded that it probably is necessary, but there are issues of concern.

The Minister and his noble Friend Lord Carter—I should say our noble Friend because he is an old friend of mine—referred, rightly, to charitable activities, car boot sales, church fetes and so on. He made it clear, as we would expect, that plant breeders should not be roaring round the countryside handing out information notices at every little place that sells plants.

I have no doubt that the Minister's words were well intentioned and that he meant them, but there is nothing that he or I or any other hon. Member can do to stop that happening. I wonder whether he has given any thought to what measures could be taken or what advice or guidelines could be issued to try to prevent that happening. As he implicitly accepts, there would be a major problem for many valuable community activities if that were taking place.

The second issue of concern is imported material. I am sure that the Minister is aware that considerable numbers of ornamental vegetation and plants are produced overseas and that there is a considerable amount of two-way trade between us and other countries, particularly the Netherlands. Somebody who has an information notice served on them could say that the parent material was imported. As the Minister said, because of type reproduction, it can be traced back to the breeder originally, but I wonder whether he can tell the House about the relevance of the international aspect of the trade. It is not clear from the new clauses how that would operate. I do not know whether a breeder would have the authority to seek information from growers abroad from whom it might be claimed that somebody purchased the plants being sold on. That is important, particularly because of the relevance of the Bill, as the Minister reminded us, to the UPOV convention. I hope that he will respond to the two important concerns that I have expressed.

Mrs. Anne Campbell (Cambridge)

I have an interest in this subject, having previously worked as head of statistics at the National Institute of Agricultural Botany in Cambridge, which dealt with many of the issues that we are discussing. The institute works mainly with agricultural varieties, but it has dealt with the propagation of chrysanthemums and associated plant varieties.

I congratulate my hon. Friend the Minister on the new clauses. They were obviously needed, and he seems to have covered every aspect, including, I am pleased to say, exemption for the car boot sales and church fetes. We all appreciate that. Will my hon. Friend clarify the status of material that has been taken illegally, perhaps from a garden centre, a botanical garden or some other public place, and used as propagating material for private or public use? It would be helpful for people to know that, and to have it put on the record. I hope that I am not putting my hon. Friend in any difficulty. The problem may already be covered by the law.

8.30 pm

Mr. Baker

I shall not repeat at length the comments made by the hon. Member for Cambridge (Mrs. Campbell), but it is fair to say that the Liberal Democrats agree with the points that she made, and are concerned that a presumption is being built into the legislation that is against the farmer in an unusual way. Not to put too fine a point on it, it seems that the voice of plant breeders is heard more loudly than the voice of farmers. I would not say that they have been nobbled, but we are concerned about the balance between the two views. The National Farmers Union has written to most hon. Members who are interested in this matter to show its concern about the way in which the Bill has been loaded against farmers. How often are we presented with loaded presumptions, as we are in this legislation?

I should also like to draw attention to the speech of Lord Carter, which the Minister quoted verbatim. It is all very well for the hon. Gentleman to say that he would expect plant breeders to use those provisions in a proportionate and sensible way, but there is no guarantee that they will be so used. We may expect and hope that a fox, let loose in a chicken coop, will behave sensibly, but there is no guarantee that it will. Hon. Members may forgive me if that is not an exact parallel.

It is dangerous to introduce such open-ended legislation, which relies on people to behave reasonably when they could benefit from behaving unreasonably. We require answers from the Minister to the questions that have been asked on this subject.

y other concern, which I also expressed when we debated amendment No. 4, relates to the restriction of information that is implicit in amendment No. 10. I acknowledge that the Minister and his colleagues have been more open. The door to freedom of information has been opened within the Ministry of Agriculture, Fisheries and Food and within other Departments, but it has not been opened far enough, and the proof of the pudding will be in the White Paper to be published shortly. I do not want to be antagonistic, but I must say that the Minister's feel for freedom of information may not be the same as the feel within the Department that he inherited. Liberal Democrats are looking to him and his colleagues to ensure that the culture of freedom of information that he wants to achieve is not stymied by the traditions of his Department. It is easy to slip back into habits of secrecy, so I ask them to be on their guard for any such moves.

Mr. Rooker

The hon. Member for Lewes (Mr. Baker) referred to the history of the Department. Civil servants are professional, dedicated people who serve this Government in the same professional, dedicated way in which they have served other Governments. They act on the instructions of Ministers, and it is the current Ministers who have decided to be open.[Interruption.]The hon. Gentleman must take the issue seriously, or we cannot have a proper debate. I ask him to judge us on our performance, and not on his prejudices or what the press cuttings say.

In answer to the final question of my hon. Friend the Member for Cambridge (Mrs. Campbell), I was tempted to say that the Theft Act 1968 would cover that aspect, but that is not the full answer. The status of material that is taken illegally is an important issue. If the plant is a protected variety, it is exempt if it is used for private propagation but, if it has been stolen, it will be covered by the Theft Act 1968. If it is used publicly for commercial propagation, the rights of the plant breeder can be exercised, notwithstanding the fact that the material has been stolen.

The hon. Member for South-East Cambridgeshire (Mr. Paice) said that this measure was a reversal of the presumption of innocence, but I am not sure that it goes that far. This is a modest change. I must make it absolutely clear that information notices cannot be handed out for private and non-commercial acts. The notices do not reverse the burden of proof: there have to be court proceedings. The courts will have to deal with that matter, and the burden of proof in the courts will remain: that is not being changed.

I have no doubt that, in due course, Ministers will address that issue when they agree the form to be prescribed in regulations. If there is any abuse of the notices and regulations, we shall alter them.

On the international aspect, the Bill applies to the United Kingdom.

Mr. Paice

rose—

Mr. Deputy Speaker (Mr. Michael Lord)

It is not usual for hon. Members to make a second speech.

Mr. Paice

I am sorry, I should have spoken with the leave of the House. I wanted to challenge the Minister on the amendments, and I should have intervened while he was speaking.

Will the Minister think again about imports? He rightly said that the law applies only in the United Kingdom but, in the particular circumstances of ornamental plants and the international aspect to which I referred, there is a glaring loophole. Anyone who is served an information notice can simply claim that the original plant was imported.

Mr. Rooker

I shall look into the matter and, if there is a loophole, I shall see what action can be taken. Clearly, action cannot be taken under the Bill, but it may be taken under regulations.

Lords amendment agreed to.

Lords amendments Nos. 9 and 10 agreed to.