§ 3.51 p.m.
§ Order of the Day for the Second Reading read.
THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF AGRICULTURE, FISHERIES AND FOOD
(LORD Sr. OSWALD): My Lords, your Lordships laughed when I read out the long Title of this Bill, thereby wounding me very deeply; and the noble Lord, Lord Wise, went further on the following day and referred to it as "a ridiculous Bill". I cannot help feeling that he spoke with a hastiness unusual to himself, because it is in fact a measure which has long been asked for by the agricultural unions and the industry in general.
First of all, I should like to say that this Bill is really two Bills in one. As those of your Lordships who have read it will have noticed, Part I deals with plant breeders' rights, while Part II regulates transactions in seeds and seed potatoes. There is a third Part which has some common provisions, interpretation and so on. As the Explanatory Memorandum points out, the Bill as a whole has its origin in two Reports made by the Committee on Transactions in Seeds, which studied the subject matter for some years and made Reports to the Government, one in 1957 and one in 1960. It is, however, not entirely for historical reasons that these two subjects come before your Lordships to-day in a single measure. They have a common theme—improvement of the quality of the crops grown in this country—and 607 so they can comfortably share a common title and, I hope, reach the Statute Book together.
It may be for the convenience of your Lordships if I first briefly describe what Part I, on plant breeders' rights, is about, and what the Government hope to accomplish by it. It is, in essence, a scheme for encouraging plant breeding so that farmers and growers, and gardeners, may be supplied with improved varieties. I might remind your Lordships that as long as six and a half years ago no less doughty a champion of important causes than the noble Lord, Lord Lucas of Chilworth, put down a Question on this matter to my noble predecessor in this office, now the Chief Whip; and, later than that, in May of last year, the noble Lord, Lord Walston, also asked when this legislation would be forthcoming.
For agriculture and horticulture, the aim is to improve the efficiency of production. We hope to do this by encouraging the plant breeder to devote effort and money to the arduous and time-consuming task of developing new varieties to perhaps a greater extent than he is prepared, or even able, to do at the present time from his own resources. By giving the plant breeder a form of ownership of the variety he produces, the job of plant breeding will be made more rewarding than it is at present. That is looking at the matter from the point of view of the national and the agricultural interest.
From the breeder's point of view, the present system, under which a new variety produced after years of effort by the breeder becomes public property as soon as seeds or plants are put on the market, is inequitable and, we think, should not be allowed to continue. We are so accustomed in this country to protecting the inventor, the author and the designer by patent, by copyright and by similar arrangements, that it may even come as something of a surprise to many to find that the plant breeder in this country is quite without protection of this kind. Abroad, the position is different, and it is a general rule, at least in most of the Western European countries, to give the plant breeder some sort of protection against the uncontrolled exploitation of his new variety.
608 In the last few years, this practice has gained strength and coherence, and I am glad to say that Her Majesty's Government have taken an active part in helping to work out common principles and procedures for the grant of protection. A Convention known as the International Convention for the Protection of New Varieties of Plants was drawn up nearly two years ago, and we became one of the signatory countries, subject to ratification when Parliament had had an opportunity to consider and debate the issues involved. There are, therefore, three distinct threads to this matter. There is the need to maintain and improve the supply of new varieties of plants, on which so much of the progress of agriculture depends; there is the desire to give fair recognition and reward to the plant breeder; and, lastly, there is the desire to act in concert with European and other countries in the same way as we have done for so many years in the matter of patents and copyright.
Perhaps I may turn now to the provisions of the Bill. These follow very closely the arrangements proposed by the Committee on Transactions in Seeds and published in Cmnd. 1092 of 1960. Your Lordships will recall that this was a Committee representing all sides of the industry, including the breeders, growers, sellers and users of seeds and plants, and that their Report and recommendations were unanimous. In consequent discussions with those representing these interests, a broad acceptance of the proposals in Part I of this Bill has emerged. The other main contributor to the detailed proposals of the Bill is the International Convention, of which I have already spoken.
The system this Bill puts forward for protecting the plant breeder is to grant him a form of proprietary rights in his new variety such that, when he has succeeded in registering the variety and has given it a distinguishing name, he alone during the period of protection has the right to grow it for producing seed or other reproductive material for sale, and the right to sell such material. If anyone other than the breeder wants to carry on these activities with the new variety, he will require a licence from the breeder. Now, as your Lordships will have realised, this has at least the appearance of a monopoly right. But 609 it is a fundamental aspect of the Government's policy, and worth strong emphasis, that these rights should not be used in a monopolistic fashion. While we think that, for practical reasons, and to accord with the terms of the International Convention, these rights to grow and to sell should be expressed in the Bill as exclusive to the breeder, we are sure that, in practice, it will be in the breeders' own interest to license growers and sellers to the maximum possible extent and to allow the widest possible use of new varieties. It is in this way that breeders can hope to obtain the maximum income from royalties obtained under licence.
If, however, some plant breeders with protected varieties should choose to use their rights restrictively to the detriment of the industry or of individual growers and traders, the Bill provides wide co-active powers by means of the issue of compulsory licences. The independent authority to be charged with the administration of the plant breeders' rights arrangements—I will refer to this body again shortly—has adequate powers to deal with complaints against breeders. In considering whether compulsory licences should be granted, it will endeavour to secure that the new variety is available to the public at reasonable prices, that it is widely distributed and maintained in quality, and that the breeder receives reasonable reward from it.
While the Bill proposes certain basic rights for the plant breeder applicable to all genera or species, for practical reasons it adopts a step-by-step approach to full protection for all breeders. The first step will be for Ministers to make individual schemes for particular species or crops, and this will open the door to applications by breeders in those crops for protection of their new varieties. All breeders will have the same basic rights as defined in Clause 4, but in some cases it may be found necessary to add to these in order to ensure that the breeder receives adequate remuneration. It may, for example, be found necessary in a scheme for roses to give the breeder an additional right to license the reproduction of his variety for the sale of cut blooms. This is dealt with in Schedule 3 and, as I have said, will be a matter for the scheme and the subject of con- 610 sultation with interests concerned. I should like your Lordships particularly to note that in no case will the breeder's consent be required to the use of his variety for further breeding or research, only for sale.
In order that rights may be obtained for any plant variety, application will have to be made to the Controller of the Plant Variety Rights Office established under Clause 11. This is a new body called into existence to exercise the new range of responsibilities created by this Bill. It will be a semi-autonomous body standing in much the same relationship to the three Agricultural Departments of the United Kingdom as does the Patent Office to the Board of Trade.
The persons who will be able to apply for rights are the breeder or discoverer of a new plant variety, or his assignee. Rights may also be assigned after they have been granted. Foreign breeders may apply for protection of their varieties provided they comply with the necessary conditions, which will, of course, be the same as for domestic breeders. While our purpose is to strengthen plant breeding in this country by giving the breeder the chance of earning a better reward for his work, it is no part of that purpose to discriminate against foreign breeders. By opening the new system of plant breeders' rights to the whole world, and not insisting on reciprocity although the International Convention would to some extent allow us to do so, the Government hope to obtain the best foreign varieties for our growers as well as give our breeders ready access to foreign markets assignatory or by act of signing the Convention.
The breeder will generally exercise his rights by issuing licences to other persons, and the Bill enables him to do this subject to terms and conditions which can include, of course, the charging of a royalty on reproduction or sale. The breeder will also be able to attach conditions designed to maintain the quality of his variety: for example, that it may be reproduced only under the control of a certification scheme.
As I have already explained, it is the Government's desire that licences should be willingly granted to competent persons on reasonable terms and, if they are not, 611 the compulsory licensing powers of the Controller may be invoked. In the matter of issuing licences, collecting royalties, and so forth, many breeders will no doubt prefer to work through one or other of the organisations which have recently come into existence to represent their interests. One can, I suppose, consider the analogy of the Performing Right Society to see how this will work. I understand anticipatory discussions on licensing arrangements have already taken place between these organisations and bodies representing growers and merchants, and I am sure noble Lords will share the Government's hope that these may lead to full agreement between the different interests. There is a wealth of goodwill for the plant breeder among those who make use of his work, and I am convinced we are right to place on the industry the responsibility for devising suitable licensing arrangements.
We have done our best throughout to strike a balance between the legitimate interests of the breeder and those of the users of seeds and plants. Compulsory licensing I have already mentioned. In addition, all the Controller's decisions on the granting or withholding of rights, the issue of compulsory licences and similar matters, will be subject to appeal to a Plant Variety Rights Tribunal and regulations will be made requiring the Controller to hear representations before making a decision in the first place. Both the appeal Tribunal and the Controller in the exercise of those of his functions which entail decisions that are appealable will be placed under the supervision of the Council on Tribunals. Subject to this, the Controller will act under the general supervision of the Agricultural Ministers in the exercise of his ordinary executive functions. In all these respects the Bill generally follows the well-tried form of patent legislation.
My Lords, I have endeavoured to outline the principles on which Part I of the Bill rests and to explain some of its provisions. Turning now to Part II, we have a somewhat different picture. This Part of the Bill is, on the face of it, a complex measure, as modern consumer protection legislation tends to be, but it raises few important new issues and I shall not have to weary your Lordships with lengthy explanations. The first group of clauses replaces existing 612 legislation governing transactions in seeds and seed potatoes, principally the Seeds Act, 1920, and the last group of clauses provides for continued administration and enforcement of seed regulations. New powers are created under Clauses 20 to 24.
While this Part of the Bill expressly gives effect to the recommendations of the Committee on a number of points, including a revision of penalties to bring them up to date, it is largely an enabling measure and entrusts to regulations certain of the detail written into the Seeds Act, 1920. This was the first major piece of legislation in this country on seeds and seed potatoes and it has served the industry well for more than forty years. Now, however, all sides of the industry are fully accustomed to statutory control of the trade in seeds by means of seed regulations, and the opportunity has been taken instead of amending the Act in detail, to recast it in a somewhat more flexible form. This will enable Ministers, in making regulations under Part II, not only to take account of the technical advances and changed conditions of trade, but also to provide for future developments, without the need, on each occasion, for amending legislation.
From the consultations which we have had with interested bodies during the course of preparing the Bill, we understand that both the trade and production sides of the seed and seed potato industries accept that the Bill should be an enabling measure and place great reliance on their statutory right of consultation in preparing regulations under Clause 16. These are, of course, required to be laid before both Houses of Parliament as statutory instruments.
In enlarging the scope of the Bill we have, however, retained the essential and well-tried principle that the seller of seeds should give an adequate and reliable description of his goods to the buyer. In fact this principle is strengthened in a number of respects, more particularly by the civil warranty provisions of Clause 17. This clause enables the Minister by regulations to require that all or any of the particulars contained in a statutory instrument given to a purchaser of seeds or seed potatoes shall have effect as a written warranty that the particulars are correct. 613 This is a reform that has long been demanded by the farmers' organisations, and the Committee went into the matter very thoroughly. These provisions of the Bill are based on the Committee's proposals, and we have thought it important to include such powers in the Bill, more particularly because of the existing practice of some seeds merchants of contracting out of the usual liabilities of a seller under the Sale of Goods Act. This has given rise to much criticism. It is recognised that there are particular problems in relation to seeds which may be subject to changes of germination while they are in store, and the drawing of these regulations will require close consultation with the trade and other interests concerned.
My Lords, I have already kept you for some time, and I propose now to complete my introduction of this Bill with a brief reference to the provisions of Part II which are new to seeds legislation. Clause 24 enables the Agricultural Ministers to make regulations controlling the importation of certain kinds of seeds. The purposes of this control over quality are clearly set out in the clause. They are to safeguard our indigenous strains against deterioration by admixture and cross-pollination, and to prevent the importation for sale to our farmers of seed which, having been produced under different climatic conditions, is not suitable for growing in this country. Similar controls have been exercised hitherto under general powers vested in the Board of Trade.
The making of regulations under Clause 24 does not, therefore, represent a change of policy but only of method. It was thought right, on the advice of the Committee, to define the Government's powers more closely and to vest them in the Agricultural Departments as a permanent feature of our seeds legislation. As in the past, they will be used with due regard to our obligations under the General Agreement on Tariffs and Trade and so as not to conflict with that Agreement.
I come finally to the provisions in Clauses 20 to 23 which enable the Agricultural Ministers, acting jointly, to prepare an Index of names of plant varieties for use in connection with the sale of seeds and to require new varieties of plants to undergo performance trials 614 before they are put on the market. The Index will be prepared in sections, each possibly applying to a species or crop, and initially will comprise the distinct varieties already in commerce.
There will be full consultation with the industry in drawing up the various sections, and these will be published in an official gazette for all to see. When a section is ready, all varieties to which it applies must be sold under the correct name entered in the Index. Breeders and introducers who wish to market new varieties will be required to apply for an entry on the Index. This will be given automatically, if the variety is distinct. In this way we shall, as time goes on, ensure that all varieties of plants of which seed is in commerce possess distinctive characteristics and are always sold under a name which is known. Protected varieties, which are the subject of plant breeders' rights, will themselves be entered on the Index, thus ensuring that they can be sold only under their approved varietal names, whether or not this is done under licence from the breeder. In this way the breeder's power to enforce his rights under Part I of the Bill by civil proceedings in the ordinary courts will be reinforced by the requirements of Part II.
We shall not put restrictions on the farmer's choice of any variety on the Index, which we think is best left unfettered, but, under Clause 22, it is proposed to authorise Ministers to require new varieties to undergo performance trials before seed may be sold. These trials will be conducted independently and unbiased reports will be published for the information of farmers and growers. Together with the issue of recommended lists of varieties by the National institute of Agricultural Botany and similar bodies, which will continue on a voluntary basis, this system of performance trials under this Bill will provide the industry with invaluable advice on the merits of the different varieties before they are sold or advertised.
My Lords, we began in 1920 with a Seeds Act devoted largely to questions of the purity and germination of seed. These are still important, but the proposals I have outlined stress the importance of the genetic qualities of seed and the need to satisfy the grower's demand for reliable varieties with known 615 characteristics suited to his particular needs. This is the task of the plant breeder, the seed grower and the seed merchant. But legislation also has a part to play, and I commend this Bill to your Lordships as a sincere and effective attempt to create conditions for the industry to do its best work. I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(Lord St. Oswald.)
§ 4.14 p.m.
§ LORD WISE
My Lords, in his opening remarks, the Minister made reference to something that I said, or left unsaid, on a previous occasion, but I think that on that occasion I was dealing only with the Long Title of the Bill and not the Bill itself. If I did make reference to the Bill—well, at this stage, a sinner has come back to repent. I believe that this is the first Bill presented here in this Session by the Government for Second Reading. I say at once that it will serve a very useful purpose and give encouragement to a section of the agricultural industry for whom little or no protection has been provided hitherto. It will not engender much opposition in your Lordships' House nor, I think, in the country. I hope it will be the forerunner of other non-contentious legislation. If so, it will be to the credit of a dying Government that in their last Session such legislation is presented to your Lordships, rather than that the Government should seek to pass through Parliament Bills containing provisions which it would be be impossible for any Government following immediately, of whatever colour, to honour or implement. This Bill seems to be the first example of good intentions. I trust I am not speaking too soon.
I appreciate the Minister's full explanation of the Bill, which is a difficult Bill to explain. If I may say so, he did very well in explaining clearly the many important points throughout the Bill. The Bill itself is extremely comprehensive and includes consideration of most of the problems which will arise in making the necessary alterations in seed production, in marketing and in certification. It seems to me to tie down seed production and the rest very thoroughly.
616 The Bill has been ten years in discussion and investigation and outside opinions seem to be in general agreement with it. I propose to make only a few queries at this stage and any necessary Amendments will be put forward later on. As the noble Lord explained, the Bill affords protection over several years to seed growers and producers, in line with the protection afforded other trades—authors, for example—in allowing royalties to be imposed. On the question of royalties, I wonder whether the Minister could give us some idea of what is likely to be the amount of royalties. That may not be possible at this stage of the Bill, but it would be interesting to know something of them.
At the present time, the ultimate purchasers of seeds cannot be sure of the quality of the seeds they buy, because they may pass through many hands from the time they leave the grower. I sometimes wonder where wild oats come from and why other weeds grow. If they are not inherent in the ground or left from the last crop, then they must come from the suppliers of seeds, and it is necessary that legislation of this kind should safeguard the purity of the seeds which the farmer has to buy. Purification will confer a very real benefit on agricultural producers. Whether crops are good or bad, farmers are frequently asked, "Where did you get the seed?" That question shows either caution or anticipation. If the crop is bad, the inquiring farmer will obviously not purchase from the seed merchant who supplied for that crop, and if the crop is good, obviously he will try to obtain seed of the same quality.
As the Minister has explained, new organisations are to be set up. It seems to me that the Controller who is in charge of the Plant Variety Rights Office will have tremendous powers. He will be, in a manner of speaking, more or less a dictator: he will accept or condemn. The appellant will then have to apply to the Plant Variety Rights Tribunal. This Tribunal will be a small body of only three, whereas the Controller will no doubt have a fairly large office staff, with possibly a sub-controller and other officers. We have been talking about money in the House this afternoon, and, returning to that subject, I wonder whether the noble Lord can give us any idea of what the cost of 617 these two departments is likely to be. They will be new departments, and some estimate may already have been made.
The noble Lord referred to the Index. In my view, the Index will be extremely good and most useful. It is as well to know that nothing will go into the Index in regard to seeds unless the initial performance is up to the mark and the seed is suitable for reference in the particular section.
LORD ST. OSWALD
My Lords, I should not like to think that I have misled the noble Lord. I realised in preparing my speech that this was a difficult matter to explain. I have clearly, in spite of my efforts, given the noble Lord a slightly wrong impression. Existing varieties will go on to the Index so long as it can be shown that they are distinct varieties and are not synonymous with another variety. The existing strains will not have to go through the performance test to get into the Index.
§ LORD WISE
I thank the noble Lord for that explanation. I realise what he is trying to say. Clause 24, dealing with imports, was referred to. It has been said, and I think rightly, that possibly some enlargement of this clause should be made. At the moment, it seems to me that it is not strong enough to prohibit importation of bad seeds from certain areas. Some areas are mentioned in which seeds may be prohibited from importation into this country, but there are other areas over which there seems to be no control. It may be necessary in those areas.
The noble Lord also mentioned the International Convention for the Protection of New Varieties. I know that has been agreed to, but it has not been ratified by the Government. If this Bill becomes an Act, will ratification take place? Reference was made also to reproductive material. This expression presents some confusion in the minds of producers. I would ask the noble Lord how long a compulsory licence lasts. Does it go on for a similar period as that of a licence obtained without compulsion? Who receives royalties in regard to a compulsory licence? It is also difficult to know how to deal with the question of bulbs. A bulb grower plants and he reproduces. Does he have to pay a royalty every time he 618 plants a new field of his own bulbs, or year by year? What is the position of bulbs which have changed hands perhaps half a dozen times before they are put into the ground? When does the payment of a royalty cease, if it does cease?
It has been said chat good agriculture and horticulture deserve good seed; and that is so. Reliability and assurance of purity will bring the confidence this Bill sets out, in the main, to accomplish. There may be a few faults, discrepancies or omissions, but these can be ironed out in Committee and the following stages of the Bill. On the whole, I think the good points of the Bill will outweigh the others.
§ 4.24 p.m.
§ LORD BALERNO
My Lords, there are two reasons why I now venture to address your Lordships for the first time. In the first place, I understand that such a speech should not be unduly contentious; and I was relieved to hear the noble Lord, Lord Wise, say that he did not think the Bill would engender great opposition. As what I have to say applies particularly to Part I of the Bill, this, I think, will engender still less controversy. For this Part will enable justice to be done to a few diligent and inventive and also rather modest persons; and by so doing, it may well result in the encouragement of further scientific research of this nature.
Very few of those who have discovered new varieties of plants have in their own life received adequate reward. Your Lordships will recollect that Sir Walter Raleigh, who introduced the potato and tobacco, was rewarded by being dowsed with a bucket of water, and that he later encountered much worse tribulation from the Government of his day. It is true that towards the end of his life Dr. Saunders, the inventor of Marquis Wheat, was rewarded by the Canadian Government. And he deserved to be, for this variety, by ripening some ten to fourteen days more quickly than any other variety at that time, made it possible to extend the wheat belt some 60 miles further North; and 60 miles, multiplied by the breadth of the three Provinces of Manitoba, Saskatchewan and Alberta, represents a mighty number of acres.
619 Two hundred and fifty years ago Dean Swift prognosticated that whoever could make two ears of corn or two blades of grass grow where only one grew before would deserve better of mankind and do more essential service to his country than the whole race of politicians put together. My Lords, the target set by the Dean of St. Patrick's has been handsomely exceeded. Not only have the yields of corn and grass been quadrupled, and more, but varieties now grow abundantly where none grew before. Perhaps it is jealousy on the part of politicians that plant breeders have not been rewarded or protected in the same way as inventors of machines and medicines. Perhaps it was because the Irishman is now more important politically in America than in this country that the United States Congress as long ago as 1930 passed the Plant Patent Act—though this was limited to plants propagated asexually. In 1941, Holland made a Decree to protect and encourage the breeder of all types of plants. I understand that this has worked well and has led to the phenomenal yields which Holland must obtain from her very restricted acreage.
The excellent and hard-working Committee, under the chairmanship of Mr. Engholm, have carefully prepared the ground for this Bill. As the noble Lord, Lord St. Oswald, has said, measures of protection to breeders exist elsewhere in Europe, in Germany, France and Sweden, as well as, to a lesser extent, in Austria, Italy, Spain, Denmark, Belgium, Russia and South Africa. Sweden, with its renowned station at Svalof, shows how much a small nation can contribute, not merely to its own prosperity but also to farmers all over the world. The Committee have drawn attention to the fact that during recent years in this country the private sector of the seeds industry concerned with the improvement of varieties has shrunk considerably. Development of many crops is now entirely in the hands of the State. But in the European countries I have mentioned, where the breeders have protection, much of the breeding is in private hands. Some of your Lordships will be aware that most of the winter wheat now grown in this country is of foreign origin and the most important one, Cappelle 620 Desprez, is the result of private enterprise in France.
Schedule 2 to the Bill defines in Part II the rules for grant of rights and the duty of the Controller to ascertain that the variety is clearly distinguishable and is sufficiently uniform in its reproduction or multiplication. The Engholm Committee made a further recommendation: that if, in the conduct of trials to prove the foregoing, some major defect should be discovered, then the Controller should have the right to refuse protection or withdraw it, subject, of course, to appeal. As major defects will be such things as susceptibility to disease, I would ask the noble Lord, Lord St. Oswald, whether this recommendation is included somewhere in the Bill. I was particularly glad to note the special references made by the noble Lord to seed potatoes and the new provisions for them in the Bill. This matter is of the greatest interest to Scotland. Scotland has a major interest in disease-free potatoes. We are the principal source of supply of certified seed potatoes. If there is to be any amalgamation of official testing stations, I hope that the one for potatoes will continue to be located in Scotland. The prosperity of many Scottish farmers depends upon the excellence of the seed potatoes which they grow.
My Lords, I have a confession to make, and this is my other reason for speaking to-day. I must admit that I am a geneticist, and that for over 40 years I have been a student of the science of genetics which some people call a mystery. I have, therefore, a considerable interest in this Bill. Britain has done much to advance this science, and I would remind your Lordships of the great work of Sir Francis Galton, from which stems the statistical approach which now dominates this science, and which was so much advanced by the late Sir Ronald Fisher. Here Britain indubitably led the world. But the name which should be especially remembered to-day is that of William Bateson. At the close of last century Bateson put in hand certain experiments with plants the outcome of which would almost certainly have led to his being hailed as the discoverer of the principles of heredity. But just before Bateson concluded his experiments there was the simultaneous discovery by three independent scientists of the paper by the 621 Abbot Gregor Mendel, written 35 years previously, which had lain dormant in the proceedings of the Brunn Philosophical Society. In his modest way, Bateson came forward a few months later fully confirming the work of Mendel, and justifying the conclusions which the good Abbot had made before getting himself (the Abbot, I mean) immersed in the politics of Austria.
To-day we are doing justice to those early geneticists at Cambridge University. I should like to add that one of them, and one of the most brilliant, was a brother of Arthur James Balfour. To-day there are in Britain plant geneticists who have made, and are making, most notable advances. Perhaps the most important of all as regards farm crops are the creators of the new varieties of grasses at the University of Wales at Aberystwyth. Not only have these new varieties more blades of grass in each plant but they have been bred for different rates of flowering, a most remarkable and far-reaching achievement. At Cambridge and Edinburgh, new varieties of potatoes are being evolved which are immune or resistant to those many diseases to which that tuber is heir. By reason of this susceptibility, much anxiety and worry has been the lot of certain politicians, particularly in their dealings with Ireland. To-day, the shades of these inventors and discoverers must be looking down with approbation that those who follow where they led will at least in their lifetime receive due recognition. Besides the ghost of Raleigh there is the satirical smile of the Dean of St. Patrick's, pronouncing a benediction on this Bill, and I would ask your Lordships also to give it your benediction.
I have one final point, one that I certainly should not have ventured to make had it not been that, in his speech in this House last Thursday, the noble Earl, Lord Dundee, in congratulating the noble Viscount, Lord Blakenham, referred to the subject of virginity. If there is one thing that is absolutely abhorrent to a geneticist it is that totally unproductive state known as virginity. My Lords, I refrain from elaborating, but I assure you that it is an immense relief to me, as I feel it must be to you also, that this maiden speech is now a thing of the past.
§ 4.37 p.m.
§ LORD AMHERST OF HACKNEY
My Lords, I have two tasks before starting my speech. The first is to apologise for the noble Lord, Lord Lucas of Chilworth, who asked me to say that he had to catch a train to attend an important meeting at Oxford. In his absence there has fallen on me the task of congratulating the noble Lord, Lord Balerno, on his maiden speech. Sometimes congratulations are perhaps a little of a formality, but I feel that in this case we have listened to a most remarkable speech, extremely interesting and extremely well-informed. I think I am expressing the wishes of all your Lordships when I say that I hope we shall hear from the noble Lord very frequently in the future. The noble Lord has also put me in considerable difficulty, because he hits made many of the points which I had hoped to make in my short speech, and made them so much better than I could ever hope to do.
The Title of this Bill is not a very exciting one, but it is, nevertheless, an important Bill, and it may well have far-reaching, long-term effects. When we come to Part I of the Bill, plant breeders' rights, one feels the case is so overwhelming that it is difficult to see why legislation on this subject was not brought in many years ago. As a farmer, I should like to pay tribute to the vital part played by the plant breeder, both in cereals and in sugar beet. What would have been considered a good yield ten years ago is nowadays almost a crop failure, and that applies to most of our crops. The plant breeder has not only played his part in agriculture and horticulture, but in the realms of flowers and shrubs has also done so much to increase the beauty of this country.
As farming and horticulture become more and more competitive so the rôle of the plant breeder becomes more vital. We are looking all the time for high yields, better and more even quality, resistance to various diseases and pests, early and late extension of the season of the various crops, and keeping qualities. At a time when the maximum effort is required from the plant breeder, although State breeding has increased very much, the work of the private breeder in this country has 623 decreased, not only relatively but absolutely. In spite of many successes we are still dependent far too much on the efforts of foreign breeders. As your Lordships will have noticed in the Report, where it deals with cereal varieties, 93 per cent. of our wheat and 19 per cent. of our barley varieties are foreign. Although 81 per cent. of our barley is home-bred, 78 per cent. is one variety, Proctor, for which we have to thank Cambridge. But, in all, 61 per cent. of our cereals are foreign, which is a very high percentage.
Perhaps it is surprising that even as much private plant breeding is carried on, because the British breeder has little pecuniary reward and no protection whatsoever. Plant breeding is a highly skilled and long-term job. Apparently, to produce a new variety of cereal takes something like fourteen years, yet the moment it comes on the market anyone can, at the moment, reproduce it. It is just as if one of your Lordships wrote a book, whereupon I could buy a copy, reprint it and take all the profit. So I think it is only fair that the plant breeders should be given these rights to license the reproduction of the plants they have bred.
There is another point I should like to ask the noble Lord who is going to reply. In the case of the licences to be granted, I understand that the breeder can lay down such conditions as to quality that he likes, that he can insist on some certification scheme and that sort of thing. Will that also apply in the case of compulsory licences which may be given under this Bill? This is only an enabling Bill and we shall have to wait and see the various schemes which are produced, which I hope will not be long delayed. If the schemes are compulsory and give the hoped for encouragement to private breeders, I hope that traffic in seeds and plants with Europe and the rest of the world will be much more a two-way traffic than it is at the moment.
I also welcome Part II of the Bill, which gives much needed protection to the purchasers of seeds. This will be particularly appreciated by the horticulture industry, because it is difficult to tell from looking at seeds of a similar plant whether they are of a good or bad 624 strain; and the guarantees which will be insisted on under this Bill should help considerably in that. In particular, I welcome Clause 17, which gives statutory effect to the statement by the seller as a warranty, and stops the seller from contracting out of the guarantee.
As regards Clause 20, there seems to be a little bit of misunderstanding. As I understand it, any variety will be included in the Index provided it is a distinct variety, and that has nothing to do with quality other than in the case of some obvious major defect. It has nothing to do with whether it is better or worse than any existing varieties. I think there is strong feeling about this. The National Farmers' Union would like plants to be included in the Index only if they are superior to plants already in existence. I feel myself that that would be placing too invidious a burden upon the Plant Varieties Office. I feel that that is a later job for the various testing stations, and for the recommendations of the N.I.A.B. and other bodies like that. I feel that the fact that varieties are included in the Index will not, in fact, persuade any farmer to grow them. Surely farmers have got beyond that stage. They all read the reports of the research institutes and they are not going to grow a variety just because it appears in an index.
My Lords, the only other point which I should like to mention is one which was raised also by the noble Lord, Lord Wise: that perhaps at the Committee stage we should look again at Clause 24. I am informed at the moment that it does not go far enough to prevent the importation from abroad of potentially deleterious seeds. However, perhaps this is a point we can look at more fully on Committee. In general, I welcome this Bill. Though the farmer, as the noble Lord, Lord Balerno, has said, may be able to make two seeds grow where one grew before, it is the job of the plant breeder, suitably encouraged, to make each of those two seeds more productive. I have pleasure in supporting this Bill.
§ 4.50 p.m.
§ LORD CAWLEY
My Lords, I must declare an interest to start with: I am, in fact, a practitioner in the law of trade marks and patents, and as I have produced a few rhododendron hybrids, 625 though in a very amateurish fashion, I might be called a plant breeder. I am also, like the noble Lord, Lord Balerno, whose maiden speech we have listened to with very great interest and pleasure, a geneticist, since I was once a pupil of Doctor E. B. Ford of Oxford.
I must say that I am glad that Her Majesty's Government have rejected any idea of having a plant patent. The noble Lord, Lord Balerno, referred to the American plant patents. I have had a look at a few and it strikes me that they would be completely unenforceable in this country. One of the earliest ones in fact described a plant as being an "ever-blooming rose", and presumably an infringer could get out of the infringement if he could prove that his rose was not blooming everlastingly. I think Her Majesty's Government have decided that living things are not machines, and I am very glad that power to give this new form of protection has not been given to the Board of Trade, because it is almost impossible to fit plants into the patent system. It is like trying to force a right foot into a left shoe. I know this will disappoint certain patent agents who thought they were going to have a little man in the back room who was going to churn out patents much to their advantage but that cannot be helped.
I notice that Her Majesty's Government have made one significant difference between the protection afforded by the Patents Office and the new protection, and that is that the Comptroller-General of Patents, Designs and Trademarks has a different spelling to his name from that of the new Controller. I think Her Majesty's Government might have gone further and removed one of the "1"s from the title of the new Controller, thereby putting us in line with the American spelling. I also note that he has two different titles, one in Clause 1 and one in Clause 11. I hope Her Majesty's Government at the Committee stage will rectify this.
Another interesting difference in this form of protection from the form of protection given by the Patents Office and in the case of copyrights is that all the schemes and Orders under this Bill are to be made by two Ministers acting in concert; that is, the Minister of Agriculture, Fisheries and Food and the 626 Secretary of State for Scotland; whereas the unfortunate Minister for Northern Ireland is dealt with by Clause 38(3) and any Order the other two make shall be deemed, so far as Northern Ireland is concerned, to be made by him. I fail to see why in this monopoly, unlike any other monopoly granted by the Crown, two Ministers should have their fingers in the pie. I think it is absurd that two Ministers should be conducting this, particularly when the schemes they produce may be very controversial. I would ask the noble Lord what happens if there is a disagreement between the two Ministers as to the content of a scheme. Is there any procedure by which the dispute can be resolved, any method of arbitration? As we all know, Ministers do not always agree, and we all want this Bill to come into force.
§ LORD AIREDALE
My Lords, I think that is where the Minister for Northern Ireland might come in and give the casting vote.
§ LORD CAWLEY
My Lords, I will not keep your Lordships long at this late hour, but there are three clauses to which I wish to refer. The first is Clause 4, which is the equivalent of the infringement sections in the Patents Act. All I can say is that I believe that unless the plant breeder has direct evidence that his variety has been stolen, this clause is quite unenforceable, and for this reason—and I draw on my own experience. I developed a rhododendron of a certain parentage whose flower was absolutely identical with that of a well-known variety, Goldsworth Orange. Apart from the fact that the orange colour was obtained from a well-known Chinese rhododendron called rhododendron dichroarthum the parentage was quite different. It would be very easy for an infringer to say his parentage was quite different, and it might be very difficult to prove his assertion was untrue. Most of your Lordships also know that with soil differences the colouring of flowers may alter considerably. In fact, blueing powder is sold to make pink hydrangeas blue. It would be very difficult to decide that infringement took place. A similar situation occurs with forced flowers. Flowers forced in the early part of the year are usually a considerably different shade from those that 627 come out naturally. I am pointing out some of the difficulties that would occur under this clause.
Difficulty has already occurred in the field of patents. About ten years ago I was concerned in a patent proceeding between two big manufacturers of detergents. It concerned fluorescess, which is the substance which was said in those days to make white whiter than white. Now, according to the television advertisements, that forces white in and grey out. The experiments very largely consisted of comparisons to see whether this substance really did make things whiter than untreated goods. Both parties decided they would settle the action because doing the necessary experiments would have completely immobilised both their research departments for six months. In the case of plants, nobody is ever going to indulge in that sort of proceeding.
On the other hand, Clause 5 is very different, and here I think is the real sting for infringers. Clause 5 says that there shall be a monopoly created in the names of plant varieties on the Index. Plants sell by their names. There was a rhododendron bred in the reign of King Edward VII which was very much admired by Queen Alexandra. It has now been superseded, but it is still asked for by everyone who wants to buy a rhododendron, and its name is Pink Pearl. It is the only name people know and it sells on that name. It is my opinion this clause is by far the most important in this Part of the Bill. It also supplies a very different need, such as Mr. Harry Wheatcroft tried to secure for himself. He tried to register a number of names of his roses as trade marks. Of course he was defeated on that, because a trade mark is an indication of particular origin and not an indication of variety. But this clause will certainly take care of that, and in future persons like Mr. Wheatcroft will, in my view, be able to get the necessary protection for the names of the plants they register.
I welcome the compulsory licence procedure outlined in Clause 7, but I should like to know whether the noble Lord considers that under subsection (4) the plant breeder may be remunerated for the material which he apparently has to supply to compulsory licensees. There 628 is nothing in that clause which deals with remuneration. I do not know whether it is suggested that he is to give material; I think that would be rather unfair. This Bill is, of course, a mere framework, and until the schemes are published one will not know whether it is going to be a success or not. But I think Her Majesty's Government have done a good thing in creating a first step to the protection which plant breeders so very much require.
§ 5.0 p.m.
LORD ST. OSWALD
My Lords, I am, of course, most grateful to noble Lords who have spoken on this, to me, fascinating and important subject. The noble Lord, Lord Lucas of Chilworth, told me, to my disappointment, that he could not be here during the debate as he intended, which of course I regret. But I am most encouraged to sense the general weight of approval for what I have considered to he, every since I have been working on it, a useful and progressive measure.
Before answering the points which have been put to me, I should like to congratulate my noble friend Lord Balerno on his exceptional contribution in the form of a maiden speech. There would, it seems to me, be a certain effrontery in any attempt of mine to commend his observations on a subject on which his specialised knowledge is of international repute. There is to-day more applied science in agriculture than would have seemed possible to anyone a few years ago, and some of the benefits of that science to the industry have been provided by Lord Balerno himself. The oftener he speaks upon agriculture in your Lordships' House the more I shall learn myself, and I think possibly other Members of your Lordships' House as well.
The noble Lord, Lord Wise, asked me points of detail on one or two matters. As regards the fixing of royalties, my answer is that it is a matter for the breeder rather than for the Government. It is up to him to assess the value which the industry will be prepared to put on a new variety; for, after all, it is he who has to sell it. But, of course, the Controller of Plant Varieties will have power to enforce compulsory licensing in cases where it can be shown that a breeder has misused his rights. We do not 629 expect that to happen, but the power is there to correct it if it does. As regards the purity of seed, the noble Lord will recollect that this is already safeguarded under the present seeds regulations. There is, in fact, a specially tight control on wild oats, which he mentioned. The presence of wild oats must be looked for and declared by the seller.
The noble Lord also asked about ratification of the International Convention. This matter will naturally have to be considered when this Bill has passed through Parliament and received Royal Assent, but there is no reason to suppose that there will be any delay after that. The ratification is necessarily waiting upon this piece of legislation. On compulsory licences, there will be no limit as to their duration. That is a matter for the Controller to decide, in the light of the request made by the applicant. The noble Lord, Lord Wise, also spoke on the matter of import control written into the Bill, and he suggested that the Government should consider taking wider powers of import control to enable Ministers to prevent the importation of bad or inferior seed from any source. I quite see how this control appears to be restricted. In fact, when I read the clause for the first time it appeared to me that this control was restricted to seed coming from countries of other climatic conditions. That is not exactly so; the powers are wider than that.
As I explained to your Lordships in my opening remarks, Clause 24, as drafted, applies to the imports of seeds which may adversely affect United Kingdom seeds in two possible ways: first, as a result of cross-pollination for instance; and secondly, because they are unsuitable for growing here, by reason of the fact that they were produced under different climatic conditions. The climatic factor does not apply necessarily to the first of these. While I am aware that there are arguments for keeping out seed which is inferior in other ways and not distinguishable in this way, it must not be forgotten that the seed trade already plays an important part in this. Full disclosure of seed qualities to the buyer is required under the present Seeds Act, and this will be continued and possibly augmented under this Bill.
I must also, I think, point out to your Lordships that although the Government 630 are satisfied that import controls under Clause 24 can be satisfactorily administered without infringing the General Agreement on Tariffs and Trade, the wider powers of import control which are now suggested by the noble Lord, Lord Wise, would not be defensible under that Agreement unless powers were also available, and were used, to impose similar restrictions on home production and sales. That we are not doing. It is for this reason that I have said that the proposal raises a fundamental issue of principle. However, I have naturally taken note of what the noble Lord has said. Perhaps he, in turn, would like to reflect on the points which I have now made and, if he feels it necessary, he and I can discuss it privately with a view to its being raised at a later stage, should he think that desirable.
The noble Lord, Lord Wise, also asked who would receive the royalties payable when the compulsory licences are granted. The answer is that, ultimately, it will be the owner of the rights. The prices paid down the line of distribution would no doubt take account of the royalties paid at an earlier stage. But I think that all this is a matter which should be left to the breeder in discussion with the merchants, subject, of course, to the overriding powers of the Controller as an umpire in the matter. I think it was the noble Lord, Lord Wise, also who asked me a difficult question on the matter of how much we thought the two offices that is to say, the two new bodies, the Plant Varieties Office and the Plant Varieties Rights Tribunal—would cost. This is a most difficult question, and I should not care to be pinned down to this figure; but, as a sort of guide, we think they might cost £50,000 a year. I hope that the noble Lord will not bring this back to me if it proves to be an inaccurate guess. I am not attempting, or intending, or wishing to mislead him.
The noble Lord, Lord Balerno, asked whether the Controller would reject a variety if a major weakness was discovered during the tests for distinctiveness. He pointed out that this power was recommended in the Report. While appreciating the force of the arguments which were put forward by the Committee on Transactions in Seeds, the 631 fact is that the International Convention would not allow us to impose a "major weakness" condition. Such a weakness, on the other hand (I hope that the noble Lord will corroborate this, because his word and opinion count for many times more than mine in this matter) would, in fact, be revealed in performance trials and would become known to the farmers, who would take measures not to purchase it.
With regard to my noble friend Lord Amherst of Hackney, I was able to agree with his attitude to the idea that only the best new varieties should be entered on the Index of Varieties under Clause 20. This may seem an attractive proposition, but it raises a large and fundamental point of principle. The Bill, as drafted, sets up an Index to which all new distinct varieties will be able to claim admittance. Farmers and growers will know that when a variety is on the Index it is distinct from other varieties and is not, as sometimes happens at present, merely an older variety under a different name. The farmer may make his own choice, and of course a great deal is done to help and guide him to make the best choice. New varieties are tried out extensively by the National Institute of Agricultural Botany, and before I sit down I should like to say a word about that.
§ LORD AMHERST OF HACKNEY
My Lords, may I say, before the noble Lord sits down, that he said that I advocated that only the best should go on the Index. I think that I agreed with the Bill that any distinct variety should go on the Index.
LORD ST. OSWALD
My Lords, I am sorry if I have got my words muddled. I started by saying that I agreed with the noble Lord and I am now putting forward the case with which I agree. I am sure the noble Lord, Lord Amherst of Hackney, is right in this, and that it is the best we can do. The farmer can make his own choice, and a great deal is done to help and guide him to make the best choice. New varieties are tried out extensively and there are recommended lists. These things will continue, and in Clause 22 we are proposing in special cases to hold back the marketing of new varieties until they have been tried out and reported on. It is all part of the 632 Government's broad approach that, in the long run, after all the advice has been given and the information has been published, the decision rests with the farmer. The guidance can be provided but the decision rests with the farmer. I would therefore suggest to noble Lords that the method adopted in the Bill of giving the farmer reliable information about new varieties and leaving him with his traditional freedom to make his own choice is to be preferred to the control over cropping and marketing by means of restricted entry to the Index of Varieties. I feel confident that, given adequate information, farmers will sort out the varieties into their proper categories.
My noble friend Lord Amherst of Hackney also raised the question of control of quality by the breeder. This can be done under the Bill within the licensing arrangements. The breeder can put a quality control clause in his licence. When granting a compulsory licence the Controller must, inter alia, take account of the need to maintain quality. My noble friend will find this in Clause 7.
My noble friend Lord Cawley asked me, with great rapidity, a number of questions which unfortunately I am not qualified to answer here and now, but I will do my best to answer them privately or publicly at a later stage of the Bill, if he wishes it. He said that he doubted whether the two Ministers, the Minister of Agriculture and the Secretary of State for Scotland, were always capable of sorting out things and reaching agreement. There are many cases in which it is necessary for them to do so, and so far I can give him the reassurance that in fact they always have been able to do so without any noticeable hostility breaking out.
LORD ST. OSWALD
I should like to end by way of underlining the importance of these measures. In order to gather a little more information on this subject I have twice visited the National institute of Agricultural Botany in the past few months, and I am immensely impressed by the work that they do. I am told that of the 50 or so varieties of wheat in use in this country before the war, none in fact has survived. They 633 have all been superseded by new and better varieties: varieties with stronger straw to stand up to the weather; varieties to suit the varying needs of farmers in different parts of the country; disease-resistant varieties; and, of course, the great essential, higher yielding varieties to which some of these other factors contribute.
In touching on this improvement of varieties the work of the National Institute is, of course, only part of the work being done, but I have had the fortune to see it at close quarters and to understand how they have set about their work through the systematic cataloguing of the existing varieties and the encouragement of those varieties which best meet the needs of the industry. They have provided the agricultural industry with the ability to produce more, and to do it more economically and more independently; and any help we can give to this service I think we should be glad to give. This Bill is one of the attempts we are making to back up that work, and I am grateful for the welcome the Bill has received.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.