Lords Sitting of 15 February 1977

Preamble
The House met at a quarter-past two of the clock: The CHAIRMAN of COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.

BARONESS JACKSON OF LODSWORTH
Barbara Mary, Lady Jackson, DBE, wife of Sir Robert Jackson, Knight, KCVO, CMG, OBE, having been created Baroness Jackson of Lodsworth, of Lodsworth in the County of West Sussex, for life—Was, in her robes, introduced between the Lord Caradon and the Baroness Llewelyn-Davies of Hastoe.
LORD BAKER
Sir John Fleetwood Baker, Knight, OBE, having been created Baron Baker, of Windrush in the County of Gloucestershire, for life—was, in his robes, introduced between the Lord Kings Norton and the Lord Nelson of Stafford.

THE LORD CHANCELLOR'S ABSENCE
2.42 p.m.
The LORD PRIVY SEAL (Lord Peart): My Lords, the House will see that the noble and learned Lord the Lord Chancellor is not in his place today on the Woolsack. I should explain that at very short notice he left on Friday to attend the State funeral of the late President of India, and will be returning this evening. He would have wished to seek the leave of the House for his absence, if this had been possible. In giving this explanation, may I take this opportunity of expressing on behalf of the whole House our deepest sympathy with the Indian people on the death of their President.

HELSINKI AGREEMENT: MONITORING GROUP
Baroness ELLES: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether consideration has been given to the setting up of a governmental or non-governmental group to monitor Britain's adherence to the Helsinki Agreement.
The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts): My Lords, Her Majesty's Government do not propose to set up a governmental group to monitor Britain's adherence to the Helsinki Final Act. Her Majesty's Government started from a very high threshold of existing achievement in implementing the provisions of the Final Act and remain determined to implement it fully in all parts. The Government are aware that suggestions have been made about the possible creation of a non-governmental group to monitor implementation of the provisions of the Helsinki Final Act by all signatory States. They welcome the expansion of public knowledge and understanding of and interest in the Conference on Security and Co-operation in Europe, and would be ready to furnish appropriate information to a properly constituted and broadly based independent monitoring group.
Baroness ELLES: My Lords, I thank the Minister for that very full reply. In particular, in relation to Basket Three, would the Government have any objection in principle to the setting up of nongovernmental monitoring groups? Also, would the Minister agree that it is very important to establish the principle that in this country groups would be free to do so, and to set up groups similar to those of Dr. Orlof in Russia and Charter 77 in Czechoslovakia?
Lord GORONWY-ROBERTS: Yes, my Lords; certainly. In this country, any group within the law is entitled to form itself into a monitoring body, and I have indicated that we would look with favour on such an independently constituted group. If it was seen in any way to be connected with the Government, its efficacy might be impaired. So we find ourselves in total agreement that such a group could be useful and we stand in readiness appropriately to assist them in their inquiries into the position.
Lord BROCKWAY: My Lords, may I first ask the Minister whether, on our behalf, he will express to the family of the Secretary of State our deep sympathy in their anxieties, which we share.
Several noble Lords: Hear, hear!
Lord SHINWELL: My Lords, may I ask this question, which I hope is in order——
Lord BROCKWAY: I am sorry, my Lords. On the subject of the Question, while we are rightly concentrating on human rights, may I ask whether Her Majesty's Government will make a Statement at an early stage as to the advance made in economic co-operation between West and East, which, after all, was the core of the Helsinki Agreement?
Lord GORONWY-ROBERTS: My Lords, I am sure that the House appreciates the motives of my noble friend in expressing his, and I am sure everybody else's, sympathy with the family of the Secretary of State in the present difficult and tragic circumstances, and in wishing him well. On the substantive question which my noble friend put to me, doubtless there will be a number of opportunities, Parliamentary and other, for interim Statements on the progress of the implementation of the Final Act, including implementation of those aspects of it which ray noble friend has mentioned this afternoon.
Lord SHINWELL: My Lords, I apologise first to my noble friend Lord Brockway for having intervened, but there was a somewhat prolonged pause which misled me. May I ask a question which I hope is in order? Is my noble friend aware that if the noble Baroness opposite had put the Question,
"…cares to get further information on the attitude of the Russians to the Helsinki Agreement",
I should have said that there is a meeting next week when a senior counsellor from the Embassy is coming to address a non-governmental group—namely, the all-Party Defence Group—and she is invited to come and ask the question then.
Lord GORONWY-ROBERTS: My Lords, no doubt the noble Baroness and everybody else has listened to my noble
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friend's plug in favour of the meeting in which he is interested. I am almost inclined to support him in his appeal for a full attendance at that meeting. On what he said before he put his point, I am sure everybody here understands that my noble friend Lord Shinwell would be the first to join my noble friend Lord Brockway in what Lord Brockway said about the situation.
Viscount ST. DAVIDS: My Lords, will the noble Lord agree—I am sure he will—that, when we are urging other nations to take such actions as setting up a monitoring body, there is very great value to be obtained if we first do it ourselves?
Lord GORONWY-ROBERTS: My Lords, as I understand my noble friend's question, I do not think there is value in us, as a Government, setting up a monitoring group. But I think—and I am sure this is what my noble friend meant—that there is value in independent groups coming together, especially in a free country, to take an objective view of the implementation of this important Act by all signatory States.

CONCORDE: PERFORMANCE MODIFICATIONS
2.49 p.m.
The Earl of KIMBERLEY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government when they will decide to improve the existing range and payload of Concorde to make it a more acceptable aircraft to foreign airlines.
Lord WINTERBOTTOM: My Lords, the British and French authorities have already agreed to the manufacturers undertaking certain modifications to improve the aircraft's existing performance, and these are being incorporated.
The Earl of KIMBERLEY: My Lords, I thank the Minister for that rather more satisfactory Answer. Do the Government realise that if the airlines that are interested in Concorde take up their options, the existing five aircraft, whether improved

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or not, will all have gone? So have the Government considered consulting the French Government with a view to buying the existing five aircraft and leasing them, and then putting down an order for, say, 12 more keels so that 1,500 workers at BAC may not be made redundant by the end of the year?
Lord WINTERBOTTOM: My Lords, as regards the first part of the noble Earl's supplementary question, the policy issues involved in various forms of leasing are currently being examined by the British and French Governments. As regards the second part, that is another question.
Lord THOMAS: My Lords, would the noble Lord agree that it is of great importance for the Government to press for route rights and overflying facilities? We can rest assured that the British Aircraft Corporation, the makers of Concorde, will have already advised likely purchasers of the improvements that they can incorporate. Therefore, the urgency of obtaining route rights is much more important for the existing aircraft which have not been fully occupied, and for the parts of the aircraft which are already in existence and which will be assembled in further aircraft, so that the aircraft can be flown.
Lord WINTERBOTTOM: My Lords, I thank the noble Lord for the positive suggestions contained within his question.
The Earl of KIMBERLEY: My Lords, may I ask this further question: Do the Government realise that if these existing five unsold aircraft go in one way or the other, it will take at least three years to produce the next one off the production line?
Lord WINTERBOTTOM: My Lords, I think that this is a very wide subject, which could be better dealt with other than by means of simple questions.
Lord TREFGARNE: My Lords, arising from the Question on the Order Paper, can the Minister say whether the range of Concorde, as now being improved as the Minister has announced, is sufficient to enable it to serve certain more Southern gateways in the United States if access to New York is, in the final event, denied to us?
Lord WINTERBOTTOM: My Lords, that is another question. However, the 7½ per cent, increase in the contingency rating of the powerplant should help its hot and high performance.

ARGENTINE/CHILE: AMBASSADORIAL REPRESENTATION
2.52 p.m.
Baroness EMMET of AMBERLEY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper. May I say that I am very sorry that a Question on foreign affairs should coincide with the tragic illness of the Secretary of State, and I should like to join with previous speakers in wishing him a rapid recovery.
The Question was as follows:
To ask Her Majesty's Government whether they are aware of the disastrous effect to our trade and influence due to the lack of ambassadorial representation in the Argentine and Chile, especially in view of the large element of inhabitants of British descent in both countries and the general good will of the population towards Britain.
Lord GORONWY-ROBERTS: My Lords, Her Majesty's Government regret that it is not at present possible for them to be represented at ambassadorial level in Santiago and Buenos Aires. Her Majesty's Ambassador in Santiago was withdrawn in protest over the torture of a British subject. Her Majesty's Ambassador in Buenos Aires was withdrawn following a deterioration of relations with the Argentine Government. The lack of ambassadorial representation must inevitably affect our relations with Chile and Argentina, but the Government consider that in all the circumstances our trading relations are satisfactory.
Baroness EMMET of AMBERLEY: My Lords, I thank the Minister for that reply. Once there is an improvement, in that there is either abolition of torture or whatever else may be at issue, it is much better to have an Ambassador there to consult with than to have a void, however well our charge d' affaires are doing. Now that these points are in the background I should have thought that this

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is the time when the Minister would agree that the situation might be reconsidered. This is an enormous Continent which lacks Ambassadors from Britain.
Lord GORONWY-ROBERTS: My Lords, I can assure the noble Baroness that the situation is being kept constantly under review. What she has just said will no doubt form part of our consideration of the situation.
Lord MURRAY of GRAVESEND: My Lords, is my noble friend aware that the Government's views, particularly on the question of political views and individual freedom in Chile, will receive widespread support? We hope that the Minister will enlighten us on the further measures that the Government are prepared to take to ensure that more political freedom is allowed in Chile and Argentina.
Lord GORONWY-ROBERTS: My Lords, as I have informed the House from time to time, we miss no opportunity of appropriately drawing this problem to the attention of certain Governments whom we think are remiss in applying the basic principles of human rights and freedom. This applies to Chile also. On the point raised by the noble Baroness, that our trade relations may suffer because of the absence of ambassadorial representation, I was glad to be able to say that that aspect of our relations has proved to be satisfactory. I agree, however, that the sooner full representation is arranged by agreement between these two countries the better in order to be able to promote, among other objectives, the expansion of human rights.
Viscount MONTGOMERY of ALAMEIN: My Lords, in view of the stronger economic position in Chile, can the noble Lord state when ECGD cover for the medium term will be restored?
Lord GORONWY-ROBERTS: My Lords, I should wish to have notice of the ECGD point. On the question of trading relations, I have here a number of figures. They are too detailed for me to go into in answer to a supplementary question, but if the noble Viscount would consider putting down a Question for Written Answer on both of those points I should be able to answer fairly quickly.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, if, as the noble Lord says, the Government consider that human rights would better be promoted by representation at ambassadorial level, are the Government in a position to say what conditions they would consider as satisfactory in order to restore ambassadorial representation in both countries?
Lord GORONWY-ROBERTS: My Lords, I have said that the position in regard to Chile is continuously under review, which indicates that we are anxious, under appropriate conditions, to restore ambassadorial relations. At the moment I could not indicate in detail what those conditions would be, but clearly there would need to be a substantial change in the internal practices of the Chilean Government.
Baroness ELLES: My Lords, would the Minister apply the same standards to Cambodia and other parts of the world where human rights are denied both daily and hourly?
Lord GORONWY-ROBERTS: My Lords, the House is aware that successive Governments apply policy according to the merits of the case of each country, but the position in Cambodia is totally different from that in Chile.
The Lord Bishop of SOUTHWARK: My Lords, would Her Majesty's Government agree that there are some of us, certainly on this Bench and probably in many parts of this House, who wonder why it is that there cannot be Ambassadors in the countries named while we have Ambassadors in countries where Christians, Jews and others are continuously persecuted?
Lord GORONWY-ROBERTS: My Lords, as I have said, each country and its circumstances in relation to this country must be specifically considered. The positions in regard to Chile and, indeed, to Argentina and to the countries which the right reverend Prelate has in mind, are different. In relation to diplomatic recognition, there is no way in which one can apply a general practice to all countries.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, do the Government

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agree that it is important for this country, both as regards its internal public opinion and as regards its status in the world, to adopt intelligible standards and principles'? Does the Minister really think that it is satisfactory, when apparently inconsistent attitudes are taken without disclosure of the principles involved?
Lord GORONWY-ROBERTS: My Lords, there may be apparently inconsistent practices, but the noble and learned Lord must agree with me that successive Governments have found it very difficult indeed to find a basic principle of application to diplomatic representation. Countries vary, circumstances vary, relationships vary.
Baroness GAITSKELL: My Lords, a couple of months ago the Chilean Government released a certain number of political prisoners. Could we not encourage or press the Chilean Government to release some more, with the bait of ambassadorial representation?
Lord GORONWY-ROBERTS: My Lords, we are constantly making these representations, in regard not only to Chile but to every other country which we feel is falling short of the international requirements relating to human rights. We have made such representations to Chile and we shall continue to do so. While doing so, of course we shall be reviewing the possibilities, as I have said, of restoring ambassadorial relations. This is not always easy, but it must always be an objective of our diplomatic policy.
Baroness ELLES: My Lords, would the Minister agree that it must be observed as a principle that it is surely for the benefit of the United Kingdom that this country is always represented by somebody of ambassadorial rank in a large and important country of the world?
Lord GORONWY-ROBERTS: My Lords, I think that is a generalisation which might not stand up to detailed examination.
Lord GEORGE-BROWN: My Lords, while rejecting in a way the description of Ambassadors as "bait", I should like to ask the Minister whether he is aware that to many of us, including those who, like myself, have actually served in
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the office, the present double standards that we are applying to countries East of the Iron Curtain and the other countries, such as the two mentioned in this Question, where the only difference is the Party label, are impossible to sustain? May I, therefore, ask him, even in the tragic absence of the present Secretary of State, to consider with the Prime Minister whether we really should not move to the same standard in all, which I think would mean putting Ambassadors back into Argentina and Chile, and not the reverse?
Lord GORONWY-ROBERTS: My Lords, certainly I take full note of what my noble friend has said. He will know, with his experience, that it is not easy to attain what might be called a consistent basic principle in ambassadorial representation. It is not a question of deliberately applying double standards; it is that relationships and circumstances vary as between one country and another. But I think the fundamental point made by my noble friend is acceptable to us all.
Lord INGLEWOOD: My Lords, may I ask the noble Lord whether he will draw the attention of the Chileans and the Argentinians to the example we are setting by letting the Angry Brigade out of prison, and suggest that, taking that as an example, they might do something on a bigger scale in their own country?

AIRCRAFT AND SHIPBUILDING INDUSTRIES BILL
3.2 p.m.
Lord ORR-EWING: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask the Leader of the House when the House will have its first opportunity in the present Session of discussing the Aircraft and Shipbuilding Industries Bill, following its references to the Examiners on 8th December.
Lord PEART: My Lords, on Second Reading.
Lord ORR-EWING: My Lords, is the noble Lord aware that Government Ministers take every opportunity to pretend that it is the House of Lords which

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is delaying this Bill? Is it not a fact that the Bill was first presented to the House of Commons on 13th April 1975 and in the 22 months which have elapsed since that date the debate in the House of Lords has taken only 12 days? Will the Government therefore take this opportunity of setting the record straight and making it clear that it is not the House of Lords which is delaying the Bill?
Lord PEART: My Lords, the noble Lord knows very well that the Bill was submitted for examination, and that examination is still going on. I do not want to get involved in political arguments, but I think the attitude of some noble Lords in opposing all the Bill helped to delay matters.
Lord BYERS: My Lords, was it not a fact that the Government could have had nine-tenths of this Bill by dropping their proposals, even though only temporarily, to nationalise ship repairing; and is it not a fact that the House of Lords as a House had nothing to do with sending the Bill to the Examiners?
Lord PEART: I know, my Lords, and I am satisfied that it should be examined, but we must await their report.
Lord CAMPBELL of CROY: My Lords, does not the noble Lord agree that the time since November has been occupied in the accepted procedures which are there to protect the rights of the citizen without any Member of this House yet having taken any part in the proceedings?
Lord PEART: My Lords, I am sure noble Lords will agree that after the Bill had been declared prima facie hybrid by the Clerks in another place, it was quite proper that it should be referred to the Examiners in this House. I have answered the Question: we must await the report and then we shall have a Second Reading.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, has the noble Lord any intelligence as to the probable date on which the Examiners will unburden themselves to this House?
Lord PEART: My Lords, the "grape vine" suggests that it will be very soon.
Lord PAGET of NORTHAMPTON: My Lords, when the noble Lord, Lord Byers, referred to the availability of nine-tenths of this Bill if we were prepared to drop certain clauses, would it not be a rather bad precedent to drop clauses in proportion to the amount of money which their opponents were to spend on lobbying?
Lord ORR-EWING: My Lords, will the noble Lord perhaps take this opportunity of confirming that the Examiners are Officers and servants of Parliament: there are two Examiners from the House of Commons and there are two Examiners who are Officers of the House of Lords, and it is therefore a misunderstanding on the part of the public and the media at large when they suggest that the House of Lords is somehow concerned with this reference to the Examiners?
Lord PEART: My Lords, I think I have explained that, and I am sure noble Lords on all sides of the House know what is happening.
Lord TREFGARNE: My Lords, will the noble Lord be so kind as to clarify what he said a moment ago: that certain parts of your Lordships' House had opposed the whole Bill?
Lord PEART: My Lords, I said that I did not want to get into political arguments at this stage. I think it is far better to await the Examiners' report.

PATENTS BILL [H.L.]
3.6 p.m.
Lord ORAM: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve itself into Committee.—(Lord Oram.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Lord ABERDARE in the Chair.]
Clause 1 [Patentable inventions]:
Lord LYELL: We are now at the start of what I believe will be the most difficult stage of this very long and very

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complicated but, I hope, non-controversial Bill, and before I move the first Amendment I hope that it will be in order to make one or two brief preliminary comments.
The noble and learned Lord who normally sits upon the Woolsack pointed out, when he was concluding the Second Reading of the Bill, that it deals with a highly complex subject. He pointed put—and I think he was totally right—that the Bill requires consolidation with the 1949 Act, while at the same time attempting to harmonise our domestic law with European legislation. For this reason, we give our support to what I think the entire Committee will agree is a large number of Government Amendments.
We see these Amendments as a major attempt to put the Bill into its proper shape and form. We have worked through all these Amendments; we have gone through the Bill in its original form when we looked at it on Second Reading, and I think the whole Committee would agree that the Amendments which the Government have tabled in order to clarify and amend certain sectors of the Bill will of necessity reduce the speed at which we should like to see the Bill dealt with. I think this is inevitable because we shall have to take further advice and possibly proceed at a slower pace and ask for explanations from the Government. Nevertheless, the Committee would wish to dispose of the Bill speedily. We hope that many of the Amendments which we propose to move, and indeed which the Government and others will be moving, will be merely drafting Amendments. Many of our Amendments are to set the Bill out into an improved and, we hope, more understandable and legible form.
A valuable bonus for many of us on these Benches and elsewhere is that many of the Government Amendments meet a large proportion of our minor drafting and clarifying Amendments. This in itself will accelerate the work of the Committee. In those circumstances, let us hope that the Bill can pass speedily to another place.
Lord LYELL Lord LYELL moved Amendment No. 1:
Page 1, line 18, leave out ("(among other things)").
The noble Lord said: The first Amendment stands in my name and in the names of my noble friends Lord Belstead and Lord Cawley. This Amendment seeks to remove some words from the Bill. We also hope that the Amendment will remove a certain amount of doubt and certainly some confusion, because the words which we seek to delete seem to us to be unnecessary and misleading, for two reasons.
The first reason why we believe these word as incorporated in the Bill seem to be misleading is that subsection (2) is designed to give some indication of things, and indeed inventions, which are not patentable. Yet when we look at Article 52 of the European Patent Convention this gives pari passu the same provisions as does Clause 1(2) of the Bill. In the European Patent Convention, Article 53 shows the exceptions which in our Bill are set out in subsections (3) and (4) of Clause 1. We believe that the two Articles of the European Patent Convention could have been put straight into our Bill as we have it today, for the reasons I raised at Second Reading. I seem to remember that at that stage we had a brief skirmish about the words "susceptible" and "capable". We are very grateful for some guidance from the noble Lord, Lord Alexander, who has great experience in clarity of expression, I was pleased to receive support from him.
The second reason why we believe that these particular words are misleading is that the Secretary of State already has power to vary the provisions of subsection (2) should he so wish. We find that he has these powers provided in subsection (5) on page 2. Taking these two reasons into account, would it not be that the Secretary of State would be able to prescribe different criteria, different exceptions, from those in Article 52? We see this to be the case, and if this is indeed so he will require to set out that these inconsistencies with Article 52 of the European Patent Convention do not apply to a European patent. This is the main reason why we seek some clarification on this point. It may appear trifling, but we think that these words are unnecessary and could give rise to some confusion. For that reason, I beg to move.
Lord ORAM: Before I deal with this Amendment, may I warmly thank the

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noble Lord, Lord Lyell, for the spirit of his introductory remarks; I think I agreed with every word he uttered. It is indeed a complex Bill, highly technical, and there are a great number of Government Amendments. I am glad he recognised that this was an assiduous attempt on our part to get the Bill into proper shape as early as possible. The noble Lord went on to say that this inevitably means slower progress. Well, of course, these Amendments will have to be explained. I take his point that this Bill is non-controversial; noble Lords on all sides of the House, as was shown at Second Reading, welcome it and want it to proceed to the Statute Book as soon as possible. When he says that a great number of the Amendments are drafting Amendments, I agree with that; there are also a great number of Amendments which are not purely drafting but are small points which I hope I and my noble friends will be able to deal with quite shortly. Therefore, it will not be necessary for us to take a lot of time in dealing with many of the Amendments.
If I may deal with Amendment No. 1, which the noble Lord has moved, I would recall that during the Second Reading he himself emphasised the importance of ensuring harmony between our laws and the European Patent Convention. He has drawn attention this afternoon to Articles of that Convention in support of the Amendments he has moved. I would suggest to him that he has it rather the wrong way round, because the words which this Amendment seeks to delete were included in Clause 1(2) for precisely that reason, to ensure harmony between our laws and those of the European Patent Convention.
The noble Lord referred to Article 52 of the Convention. I would point out that that Article states that the things listed—and I agree that they correspond as between the Convention and Clause 1 of this Bill—are in particular not to be regarded as inventions. I suggest that that makes it clear that the list is not exhaustive and that other things may also not be regarded as inventions. So the words which this Amendment seeks to delete are, I suggest, intended to have exactly the same effect as the words "in particular" in the Convention document. I therefore hope that the noble Lord, having heard that explanation, will not insist upon this Amendment.
3.16 p.m.
Lord LLOYD of KILGERRAN: In view of the large number of Amendments to this Bill put forward by the Government, perhaps I may be permitted to make a few general observations which may be of assistance to the Minister and the Government in processing this Bill more quickly, and to assure the Minister that there is no political aspect in relation to this Bill. We on these Benches will endeavour to assist him in whatever way possible to get it through. I well know the vast amount of work that has been done by men very experienced in patent matters since the publication of this Bill to try to improve it. I know of the work of the Chartered Institute of Patent Agents, the Senate of the Inns, the Law Society, and even the Institute of which I happen to be the President. In those circumstances I shall find myself very much in sympathy with the Amendments which are put forward by the Government to improve this Bill, and very much in sympathy with many of the Amendments being put forward by the noble Lords, Lord Belstead and Lord Lyell, in this Committee.
I should like to indicate that I shall be concerning myself largely with broad, basic Amendments attempting to clarify the position of the employee inventor, and also endeavouring to put forward Amendments which will assist the individual inventor and the small firm to reduce in many respects the cost of the operation of this Bill. I am sure that I shall receive the sympathy of many noble Lords in the attempt that we are sincerely making to reduce the cost to those classes of people who cannot afford the very expensive litigation that is usually associated with patents. I do this with some confidence because the noble and learned Lord the Lord Chancellor indicated to me that in view of my experience as a practitioner in this field it was up to me to put forward such suggestions; therefore, I hope at least to have his sympathy in putting them forward.
May I come very briefly to the Amendment moved by the noble Lord, Lord Lyell. I have listened with great attention to what the noble Lord, Lord Oram, has said, that the reason why the words the noble Lord, Lord Lyell, wishes to delete were put into the Bill was to harmonise

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the Bill with the European Patent Convention. To leave these few words in the Bill is likely to be misleading because the intention of this clause is to set out a code of those things that cannot be patented. I think that it would have been less misleading if the words were deleted, as is proposed in the Amendment in the name of the noble Lord, Lord Lyell.
Lord CAWLEY: This is an example of a peculiar feeling on the part of draftsmen that they have to alter wording because presumably the official translation of Article 52 uses the words, "in particular". Why on earth could not the draftsmen have included those words in the Bill?—because it immediately suggests that there was some good reason for changing the wording. It may be that "among other things" and "in particular" have exactly the same meaning, but there is certainly a suggestion that they do not.
Lord ORAM: I thank the noble Lord, Lord Lloyd of Kilgerran, for the tone of his introductory remarks. If we continue like this we shall make friends, if not progress. I also acknowledge that the noble Lord wrote to me and to the noble and learned Lord the Lord Chancellor indicating the main areas of his interest in this matter. That information has been of help to us in looking to our future work. I acknowledge, as he does, not only the work that has been done in this Chamber but the vast amount of work that has been done by all sides on drawing up the detailed Amendments. I am sure that we shall be able to reach the right consensus because, as he rightly said, there is no political significance in the vast number of Amendments that we shall deal with.
Nevertheless, the noble Lord gave some support to the view expressed by the noble Lord, Lord Lyell, as did the noble Lord, Lord Cawley. The noble Lord, Lord Cawley, reverted somewhat to the point that was raised in several quarters on Second Reading about the differing wording between the Bill and the European Convention. Although I agree that we do not want to have different words for different words' sake, I assure the noble Lord that that has not been the approach in drafting the Bill. We must bear in mind that although we are, so to speak,
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harmonising with the Convention, in particular we are legislating law for this country and therefore the wording must be exact in terms of what is required by the law of this country. I have no doubt that the draftsmen had this point in mind when choosing the particular words which are being criticised. Nevertheless, I have noted the points that have been made. I shall make inquiries. I do not thank that there is sufficient difference between us for us to make very much more of this matter—I hope not.
Lord LYELL: First, I should like to thank the noble Lords, Lord Oram and Lord Lloyd of Kilgerran, and my noble friend Lord Cawley for their support and for the interesting remarks that they have made on this Amendment. The noble Lord, Lord Oram, pointed out that in Article 52 there is mention of the two words, "in particular". I go some way to agreeing with him that these words seem to be restrictive. Yet I believe that the phrase "among other things"—the phrase we seek to delete—is too liberal and allows too wide a concept for inventiveness. Therefore, I wonder why we could not reach the mid-position? If we deleted these words, we would reach the middle position which would not be too restrictive—there may be grounds for believing, as the noble Lord, Lord Oram, has suggested, that we are indeed legislating for the United Kingdom—and we would remove this wide-ranging concept. We should like to reach the mid-position. Nevertheless, we are grateful to the noble Lord for saying that he will examine the matter and I hope we can resolve it. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
3.26 p.m.
Lord ORAM Lord ORAM moved Amendment No. 2:
Page 2, line 4, leave out (" business;
(f) a")
and insert ("business, or a").
The noble Lord said: This Amendment arises from a point raised by the noble Earl, Lord Halsbury, during the Second Reading debate. It removes the phrase "a program for a computer" which is at present a separate item in those things which are excluded from patentability under Clause 1(2) and it includes it

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among the schemes, rules and methods mentioned in subsection 2(e). This is to ensure that computer programmes are construed together with other schemes and methods so that—and I think this was the noble Lord's point—the exclusion will bite only on so-called computer softwear and not on programmes which may be embodied in the hardwear. I see that the noble Lord is nodding his head. I hope that means that he agrees that we have met the point he raised. I beg to move.
The Earl of HALSBURY: I am obliged to the noble Lord, Lord Oram, for having studied what I said on Second Reading. I am very glad that the Amendment that he proposes gives effect to my remarks, in which case I shall support it. However, I take it that he has taken notice of Amendment No. 358 on page 43 of the Marshalled List which is in the names of my noble friend Lord Ironside and myself. In it we define a computer programme as meaning:
"One or more recorded symbols or signals representing a sequence of instructions which is capable of causing a computer to perform a useful function."
I shall not anticipate things by withdrawing Amendment No. 358 because my noble friend Lord Ironside does not happen to be in the House at present and I have not consulted him upon it. If I support the Amendment in the name of the noble Lord, Lord Oram, I shall reserve my position on the definition contained in Amendment No. 358.
On Question, Amendment agreed to.
Lord LYELL Lord LYELL moved Amendment No. 3:
Page 2, line 25, after ("technology") insert ("and may prescribe different criteria for patents under this Act and European Patents (UK)").
The noble Lord said: This Amendment follows from the previous Amendment in my name. It seeks to include in subsection (5) some small provisions that will allow the Secretary of State not merely to use his powers by order to vary the provisions of subsection (2), but also to vary the criteria for United Kingdom patents as opposed to European patents which were granted for the United Kingdom. This may fly in the face of everything that I mentioned on Second Reading and indeed today as regards our wish to harmonise our patent laws with the laws and provisions of the European Patent Convention.
I understand that there is a possibility at this stage that something, indeed an invention, could in the future become patentable in the United Kingdom as a result of technology in this country. One example that has been suggested to me, as was mentioned in the last Amendment by the noble Lord, Lord Oram, and by the noble Earl, Lord Halsbury, is that of computer softwear. I think that the Committee will agree that the United Kingdom is in the forefront of research into computer programming and technology.
The Amendment is not necessary just for computer programming, but so that we allow the Secretary of State to take account of developments in technology in this country which may not have been reached in the Member States which have signed and agreed the European Patent Convention, or ratified it. We want to broaden his powers so that he may be allowed to vary the criteria for United Kingdom patents; and they may also be different from the criteria for European patents. When we were discussing the first Amendment in my name the noble Lord, Lord Oram, mentioned that in this Bill we were legislating for the United Kingdom. Would not this particular Amendment be doing that? I beg to move.
Lord ORAM: On the last Amendment the noble Earl, Lord Halsbury, asked us to make a sudden leap towards the end of the Bill, to Clause 118. I am just about to do the same thing in connection with this Amendment, and would ask the noble Lord, Lord Lyell, to realise that Clause 118(5) makes it clear that Clause 1, among other things, is to be equalled in its effect with the corresponding provisions of the European Patent Convention. It is therefore most unlikely that in practice the two systems will diverge. If any serious divergence occurs this will be dealt with not by acknowledging different standards of criteria which the noble Lord's Amendment would seek to establish, but by endeavouring to bring the two systems back into line. I therefore suggest that the Amendment is not necessary. Moreover, I believe it to be undesirable because it invites the Secretary of State to break the basic obligation of the European Patent Convention, that is to treat European patents in the same way as British patents. That is one of the

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basic principles. As the noble Lord acknowledged in his opening remarks, the policy of the Bill is to give effect to that obligation to bring the two systems into line. I think he will acknowledge that the Amendment that he has put forward does not help the Bill to do that; rather the reverse.
Lord LYELL: I take the noble Lord's point that the Amendment does not necessarily help the Bill. I would add as a rider that possibly it does not help it in a restrictive sense. All the Amendment is seeking to do is to allow the Secretary of State to take account of further technology so that, far from diverging forever, we could in this country declare that some particular concept or invention should be patentable, and we would then be able to discuss with the European Patent Office our reasons as to why we thought that concept or invention should be patentable.
The possibly rather narrow example I was quoting, and the possibly narrow concept I was considering, only regarded technology and a technological breakthrough which may, and we hope would, occur in this country but not in the other Member States which had signed and were members of the European Patent Convention. Nevertheless, I take the noble Lord's points. I think that they bear considerable merit. There is a great deal to be said for the fact that at this stage in the Bill we should not seek to give the Secretary of State power to diverge too much, particularly since the noble Lord, Lord Oram, referred me to Clause 118—although I did not see necessarily that Clause 118(5) precluded anything from the criteria. It was more restrictive. What I was seeking to put forward was that we should be allowed to fly an inviting kite, and to put it to the European Patent Convention that we might think this a useful kite to which we could attach patentability. I do not think that we should argue or discuss this at greater length now, and for that reason I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 1, as amended, agreed to.
Clause 2 [Novelty]:
The CHAIRMAN of COMMITTEES (Lord Aberdare): I should point out that
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if Amendment No. 4 is agreed to I cannot call Amendment No. 5.
3.35 p.m.
Lord ORAM Lord ORAM moved Amendment No. 4:
Page 2, line 30, leave out from ("art") to end of line 31.
The noble Lord said: With the leave of the Committee may I deal with Amendments Nos. 4, 6, and 7 together. As I shall make clear, Lord Lyell's Amendment No. 5 covers a similar point. Clause 2 defines the state of the art for the purposes of testing whether an invention is new as required by Clause 1(1)(a). The time at which the newness of the invention is to be tested is its priority date. Any matter entering the state of the art on or after that date is to be disregarded. The present drafting of the Bill makes no reference to this time. Amendments Nos. 6 and 7 bring into subsection (2) a time reference in relation to the invention being considered, and this makes such a reference unnecessary in subsection (1). Moreover, the new drafting follows more closely that of the European Patent Convention, and makes no change in effect.
As a consequence of these Amendments, it has been possible to avoid the use of the word "immediately", which I see from the noble Lord's Amendment concerns him, as it has concerned others, as being ambiguous and likely to cause undesired effects. Therefore, I hope that the Committee will agree to the three Amendments, and that the noble Lord, Lord Lyell, will recognise that consequently his proposed deletion of the word "immediately" will not be necessary. I beg to move.
On Question, Amendment agreed to.
3.38 p.m.
Lord ORAM Lord ORAM moved Amendment No. 6:
Page 2, line 32, after ("art") insert ("in the case of an invention").
Lord DOUGLAS of BARLOCH: I should be grateful if my noble friend would explain the purpose of this Amendment. It seems to be totally superfluous.
Lord ORAM: I think not. It is necessary to make it clear that it is in relation to an invention that the state of

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the art is being defined. I think that my noble friend will accept that this has been carefully looked at, and that this phrase "in the case of an invention" ought to be inserted.
Lord DOUGLAS of BARLOCH: I am sorry; I do not follow it. This whole Bill deals with inventions. Surely we do not need to put words like this into it every now and then.
Lord ORAM: I am afraid it is necessary to put words in every now and then. It is true, of course, that the whole Bill is dealing with inventions, but when one examines the form of an application for a patent there are such sections as the disclosure of matter within which an invention has to be seen, there are sections where a specific claim is to be made, and there needs to be clear definition of the particular inventions in respect of which a claim is made. Therefore, I assure my noble friend, although I fully accept that these things are difficult to comprehend, that it is necessary to insert this word at this point.
The Earl of HALSBURY: Pursuing a little further the point made by the noble Lord, Lord Douglas of Barloch, may I ask the Minister to explain how the state of the art would differ in the case of an invention from what it would be in the case of something that was not an invention?
Lord ORAM: I said at the outset—and noble Lords agreed—that it was a highly technical matter. The state of the art is a description of the knowledge which exists when an application is made for a patent and it concerns the question whether or not the invention is new. The question of dates is very much involved in this matter. Thus, one has to be very careful, as we are careful here, to make sure that the definition of the state of the art is properly drafted.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 7:
Page 2, line 34, after ("has") insert ("at any time before the priority date of that invention").
On Question, Amendment agreed to.
3.43 p.m.
Lord BELSTEAD Lord BELSTEAD moved Amendment No. 8:
Page 2, line 37, after ("invention") insert
("to which an application for a patent or a patent relates (the application or patent in suit)").
The noble Lord said: In moving Amendment No. 8 I will, with the permission of the Committee, speak at the same time to Amendment No. 9. They are together designed to solve the following problem. Let us suppose that an inventor discovers a new way of joining the uppers of a pair of shoes to the soles and he describes the machinery necessary for doing this in a first patent application. Then, a few months later, the same inventor realises that the same basic principle can be used for attaching roller blinds to their rollers or canvas hoods to the roofs of cars and, in a second application, that same inventor includes a broader description of his invention as it applies to shoes, roller blinds and car hoods.
As I understand Clause 2, the claim in that second application will contain matter referring to shoes which has a priority date earlier than that of the invention, so the second application will have been anticipated and, by the provisions of Clause 3(2)(a) and (b), the application will be invalidated unless an Amendment to this subsection is made. It is for this reason that the Amendment to line 37, Amendment No. 8, has been tabled and the word "another" has been included at the beginning of the second Amendment, No. 9. As I hope the Government will accept, the effect of the first Amendment and the inclusion of the word "another" in the second Amendment is to ensure that when examining the second such application—the wider application which the inventor has put forward—for novelty, the examiner shall not take into account the publication of that application itself. My Amendment is also requiring the examiner to exclude from his examination any other applications which under Clause 5, because they contain that same matter, may claim the same priority date.
The second Amendment, which is quite long, also refers to Clause 12(4) and here the problem is a little different in that if an inventor puts forward a first application which contains two inventions, the applicant who is wanting to broaden his claims in the way I explained earlier may either

1415
file two second applications, both claiming the priority date of the first application, or choose to file a single second application with claims covering the broader inventions which he is now choosing to import into his second application.
If an inventor chooses the latter course, as I understand Clause 12(4) the examiner will require what I believe is called a divisional application and any such divided out application is also bound to contain matter which has already been disclosed. Therefore, the last part of my second Amendment also needs to provide that such divisional applications claiming the same earlier priority date should be excluded from the effect of Clause 2(3). I apologise for this rather lengthy explanation. I hope that the matter is clear and that the Government will accept the Amendment.
Lord ORAM: The noble Lord, Lord Belstead, did not make reference to what I think would be one other effect of Amendment No. 8; namely, to bring patents granted under the Patent Act 1949 within the ambit of Clause 2(3). He may not have had this principally in mind in tabling his Amendment, but it is, I am advised, one effect of his proposal and I will deal with that first. I am grateful to the noble Lord for drawing attention to the fact that there should be provision for dealing with conflicts between existing patents—that is, those granted under the existing Act—and applications made under; the Bill. This problem is not without difficulty, but fortunately it is not one that can exist for long and we feel that the best course is to deal with it in the transitional provisions of the Bill, and we propose to do that.
As the noble Lord indicated, the main purpose of his two Amendments deals with a different matter, that which I think is technically called "self collision" and that, as he rightly said, is much more difficult to grasp. As I understand it, it is intended to cope with the problem of self collision which might arise from the application of Clause 2(3) as it now stands. We recognise that there may be some problem but we believe that in most cases this can be avoided by the careful drafting of patent specifications and that, if it does arise, it can in many cases be resolved without much difficulty by appro-
1416
priate amendment of the patent specification. However, given that there may in some cases be a problem that the noble Lord is seeking to meet, in our view his Amendment goes too far in seeking to overcome it and could, if adopted, create an obscure and confusing situation which would be contrary to the general public interest. Indeed, the Amendment could result in a multiplicity of patents for the same or overlapping monopolies, since there would be no obvious way of preventing an applicant from pursuing to the point of grant several applications derived from the same first filing of an application.
As the noble Lord, Lord Lyell, made plain during the Second Reading debate—and I have referred to this previously—we need to ensure that the provisions of the Bill do not depart from the European Patent Convention, and the Government are very conscious of this, as the Lord Chancellor said in his opening speech on Second Reading. In our view, Clause 2(3) of the Bill gives effect to Articles 54(2) and (3) of the European Patent Convention. We can find nothing in the Convention which clearly and specifically excludes from consideration in this context certain other applications. The Amendment deliberately provides for such exclusions and, if we adopted it, we would be taking a definite step away from the terms of the Convention, and most certainly be running the risk of being found to be in breach of Convention obligations.
It is for these reasons that I fear that I must resist this Amendment, although I recognise that it points to a real problem and makes a real attempt to meet it. Therefore, I want to make it clear to noble Lords that I am very willing to discuss the difficulty which they have foreseen, and to see whether some other way around this difficulty can be found, without—I must stress this—offending against the terms of the Convention. I might add that the terms of the Convention result from very lengthy negotiations during which the problem of self-collision was much discussed. Therefore our approach to this has come only after a great deal of careful thought. I give the assurance that if the noble Lord agrees not to press the Amendment we can still look at the problem together. I think that no Amendment will be found to be necessary, but certainly we can look at the problem afresh.
Lord HARMAR-NICHOLLS: The noble Lord said that one of my noble friend's problems could be easily overcome—I think that was the term he used—by amending the original applications. If there is a time lag it is not very easy to get an original application amended. Is the noble Lord suggesting that under the new rules it will be easier to have an amendment accepted than it is at present, because if the position is as now it would not be as easy as the noble Lord seemed to imply in his reply to my noble friend.
Lord ORAM: I think that the word, "easy" which I used referred rather to the drafting, the drawing up, than to the procedure which is what I think the noble Lord is referring to. Of course, the Bill deals with opportunities of making amendment to the specifications, but my reference to "easy" was more in drafting terms.
Lord LLOYD of KILGERRAN: I hope that it will not be considered that I am being disrespectful if I say with the greatest respect that I had some difficulty in appreciating the arguments of the noble Lord, Lord Belstead, and the reply given in this matter by the noble Lord, Lord Oram. I appreciate the fact that the noble Lord, Lord Oram, is going to reconsider this position. I wonder whether he can say, either now or at a later date, whether the purpose of subsection (3) of the clause is to replace the prior claiming provisions of the present Act. The noble Lord referred to self-collision. That is a term with which I am not very familiar, but I am very familiar with the difficulties arising from the term "prior claiming" in practice in relation to patent applications.
Lord CAWLEY: The noble Lord suggested that applications under the 1949 Act might be brought in, but Clause 2(3) refers to application for a patent, and Clause 118 says:
"'patent' means a patent under this Act;"
So presumably Clause 2(3) has nothing to do with applications under the 1949 Act.
Lord ORAM: I thank the noble Lord for drawing my attention to that point. I confess that it might be a point which has been overlooked. I will look into it and return to it, if need be. With regard to the intervention of the noble Lord,
1418
Lord Lloyd of Kilgerran, yes, he is right. This subsection brings in a new concept. The existing concept is that of prior claim. The new concept is of whole contents of the state of the art. It was this point that the Banks Committee dealt with at some length in, I think, chapter 10 of their report, where they had received evidence on these two philosophies (I think they call them this), and they came down quite firmly in a recommendation of the whole content philosophy, rather than the prior claim philosophy.
Lord BELSTEAD: I am grateful to the noble Lord for his reply, which I must admit was a great deal more illuminating than was my moving of the Amendment. As we go through this Committee stage I find myself trying to learn, and I certainly have no intention of pressing anything. I do not think that I have the temerity to do so. I wish to thank my noble friend Lord Cawley for what he pointed out, in relation to this Amendment, and with respect to the Government it does not have the effect of referring in any way to 1949 Act applications.
I was surprised that in his reply the noble Lord referred me to the European Convention. I should have thought that these two Amendments are necessary in order to conform with the EPC. My reading of the EPC is that the examiner in European patent cases may not hold that the publication of an application which he is examining is itself anticipatory, which I suppose is the meaning of self-collision. In the same way, the examiner in Europe must exclude any divided case or other case claiming the same priority. I base that upon my reading of Article 54(3), which corresponds with Clause 2(3) of the Bill. If one reads Article 54(3) in conjunction with Article 89 of the EPC, then so far as I can see it is provided that the examiner may look only at publications resulting from patent applications of which their dates of filing are prior to the date of filing of the application which he is examining.
In simple language the European patent examiner may therefore consider neither the publication of the specification which he is examining nor the publications of any divided out or other case which claims the same priority date for the same material and come up with the answer that there is novelty, and therefore that

1419
particular application must fall. I hesitate to say that I may be right and that the noble Lord may have overlooked something; but for the record that is the way I understand Article 54(3) of the EPC.
With regard to adding to the Amendment references to Clauses 5 and 12, I should be grateful if the noble Lord, in looking at these two Amendments again, would look at the inclusion which I have made of references to Clauses 5 and 12(4) to see whether they ought to be imported into the particular subsection we are talking about. If the noble Lord takes a different view from the one which he has given me on these two Amendments across the Committee, then perhaps between the Committee and the Report stages he will be able to communicate with me. With that I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4 p.m.
Lord ORAM Lord ORAM moved Amendment No. 10:
Page 3, line 3, leave out ("information or any other matter ") and insert ("an invention").
The noble Lord said: This is a purely clarifying Amendment to place it beyond doubt that it is disclosure of an invention which is to be disregarded if a later application is made for that invention in the circumstances set out in subsection (4). The present draft could possibly have included matter extraneous to the invention, but in practice the Amendment produces no change in effect, and the new drafting corresponds more closely to that of the EPC, and in practice does not provide any different effect. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 11:
Page 3, line 19, leave out ("or") and insert—
("(aa) the disclosure was made in breach of confidence by any person who obtained the matter in confidence from the inventor or other proprietor of the invention or from any other person to whom it was made available, or who obtained it, in confidence from either of them; or").
The noble Lord said: The present draft only covers cases where the disclosure was
1420
made possible by the matter having been obtained unlawfully or in breach of confidence at some stage. It fails to cover those cases where the disclosure is made in breach of confidence by a person who obtained the matter in confidence by a person who obtained the matter in confidence in the first place. It sounds a bit like the box within the box within the box, but I think that, if noble Lords read carefully what I have said, they will see the importance of this. The new draft would cover, for example, the case when an employee owned an invention and his employer, thinking that he was himself entitled, disclosed the invention in confidence to a third person who subsequently disclosed it to someone else in breach of that confidence. The present drafting does not cover that sort of case and we therefore regard this Amendment as necessary. I beg to move.
On Question, Amendment agreed to.
4.3 p.m.
Viscount ECCLES Viscount ECCLES moved Amendment No. 12:
Page 3, line 26, at end insert—
("(c) the disclosure was effected by the inventor in a paper—

(i) presented as a thesis for the award of a degree or like qualification of a University or Polytechnic Institute; or

(ii) read before a learned society; or

(iii) published with his consent in the transactions of a learned society.").

The noble Viscount said: Before I come to the Amendment, may I just add one word to what my noble friend Lord Lyell and the noble Lord, Lord Lloyd of Kilgerran, have said about the 380 Amendments—and there will of course be more—which appear on the Marshalled List? It appears that there has been a great deal of consultation between the Government and various interested bodies since the Bill was read a second time. I suggest to the Government—and this was certainly the method used in days long ago when I sat on the other side both in this House and in the other place—that one should get this consultation over with before the Second Reading because what must have happened is that the Government have been persuaded by experts in this field to change the text of the Bill in a great number of places. They could have been persuaded to do that before the Second Reading and, had

1421
they done so, they would have produced a Bill which would have been much easier to get through the Committee stage. I believe that the consultation was absolutely right, but it was not taken at the right time.
Having said that, may I move to the Amendment? Section 51 of the 1949 Act which deals with previous communication, display or working, states in subsection (2):
"An invention claimed in a complete specification shall not be deemed to have been anticipated by reason only of…
(d) the description of the invention in a paper read by the true and first inventor before a learned society or published with his consent in the transactions of such a society."
That provision granted a period of grace of six months to members of the academic community so far as their theses and other publications were concerned. At present, therefore, provided they apply for a patent within six months of producing the thesis or publishing the paper, that publication does not count as prior disclosure. My Amendment is intended simply to restore the benefit received by the academic community under the 1949 Act and to define it a little more carefully.
One must ask why this protection has been dropped between the 1949 Act and the present Bill. I do not understand why the Government take such a swipe at academic researchers because this was a very useful privilege in that it is not always easy to hold up the research one has done when one is being pressed to read papers by one's colleagues and various learned societies. It is very hard to have to wait until one has gone through the patent application procedure.
I have a second reason for moving the Amendment and here I must declare my interest as Chairman of the British Library. If the Amendment is not put into the Bill it will be very serious for the lending division of the British Library because it is almost certain that when the universities are deprived of this protection they will restrict the publication of theses for fear that it may hamper the getting of a patent. In that case, if the theses are not published, they will not be deposited with the lending division of the British Library, whereas we pride ourselves—and I think I can say that the whole world acknowledges—that we are
1422
very quick off the mark in making available to borrowers all over this country and outside the theses published by academic researchers. I cannot believe that the Government appreciate what an unfortunate thing it will be if they leave out what was Section 51(2)(d) of the 1949 Act. I beg to move.
Lord ORAM: May I first deal with the noble Viscount's introductory remarks about the consultations which have gone on and which I readily admit are continuing to go on? The noble Viscount explained that, from his experience, the normal case was that consultations took place fully before Second Reading, but I suggest to him that this is not quite as normal a case as that because, as has been admitted on all sides, it is a most complex, difficult and technical Bill with regard to which many experts take differing views on minutiae of drafting. It is not therefore possible to tidy up everything in the normal processes of consultation. I am sure that the noble Lord would agree that it is right that the consultations should continue and that the Government should take note of the points that come from the various bodies that have a point of view. That is the real reason why quite a number of drafting Amendments have had to be brought forward as they have.
Dealing with the Amendment, the noble Viscount took the somewhat harsh view that the Government were "taking a swipe" at academics. I assure him that there is no such intention. It is another case of our implementing our intention to conform to the European Patent Convention and the narrowing of protection to which he points arises from that. The generally accepted view is that it is not in the public interest or the interest of inventors to give any encouragement, by way of safeguards against prior disclosures, to the delayed filing of patent applications. They should be encouraged to put in the applications early rather than later. That point of view is reflected in the Strasbourg Convention of 1963 and in the European Patent Convention, which provides only limited safeguards; and it is these that are expressed in Clause 2(4) of the Bill. To go further, as the noble Viscount proposes, would involve a departure from the conventions and would lead to different standards being applied in the United Kingdom to European patents, on the

1423
one hand, and British patents, on the other, and during the Second Reading debate a number of noble Lords urged that this should be avoided.
Perhaps I should add that the rejection of this Amendment, which I recommend to your Lordships, does not really create hardship for the inventor, since he is always able to file an application for a nominal sum, and this will give him protection. I do not think that the point that the noble Viscount makes about the restricting effect on lending libraries is as serious as he suggests, because surely it would be possible for a library which wished to house and lend out a learned document to advise the inventor, the academic, that he can very easily gain protection if he files an application in the way that I have suggested. So I think that, on reflection, the noble Viscount will realise that, although there is some loss of protection, in a sense, compared with the earlier Act, it is not at all a serious one and does not bear comparison with our duty, our intention, to conform as closely as possible with the European Patent Convention.
The Earl of HALSBURY: I think the noble Viscount's sub-paragraph (i) has a rather different status from his sub-paragraphs (ii) and (iii), because the position of Ph.D. theses in a university library is somewhat ambiguous, and I think the situation ought to be clarified and that there ought to be a declaration that they do not constitute publication. Practice differs from one university to another, I understand, but very commonly Ph.D. theses are in the university library and are available to students and academic staff in that university, but are frequently not made accessible to members of the general public. Therefore, I think we ought to clarify the status of the Ph.D. thesis.
With regard to the other two points, when I was responsible for the affairs of the National Research Development Corporation I always told academic inventors that if they would send me a carbon copy of whatever they proposed to publish in an academic journal I would get it into the Patent Office long before they would get it accepted for publication. The problem was to get them patent minded. Therefore, I am rather with the noble Lord, Lord Oram, here, in saying that we should not
1424
liberalise things too much or they will go and miss the date on which they ought to have filed the application. What they ought to do is send a carbon copy round to a patent agent.
Viscount ECCLES: I am of course inclined to bow to what the noble Earl, Lord Halsbury, says, because he is a greater expert than I am. I can only say that the academic community asked us to put down this Amendment, so they must have some real feelings about it; and if they are right, then I think it is the sort of case where one ought to argue with the EEC and say, "We know something which is to the advantage of inventors which you apparently do not know." I do not see why we should give in every time. It happens many times in this Bill; there is another case coming in this clause, which I propose to raise on the Question, Whether the clause shall stand part? At any rate, it is not our business in the library to tell the author of an academic thesis whether or not he should apply for a patent. That is not what we are there to do. We are simply there to take the copy of his thesis and, when anybody asks for it, to make it available to that person. After listening to what has been said, I should like to refer back to the library and ask them their opinion, so for the time being I will ask for leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger): I have to call the attention of the Committee to the fact that if Amendment No. 13 is agreed to I shall not be able to call Amendment No. 14.
Lord ORAM Lord ORAM moved Amendment No. 13:
Page 3, line 33, leave out from ("art") to ("if") in line 35 and insert ("shall not prevent the invention from being taken to be new").
The noble Lord said: Perhaps I may speak to Amendments Nos. 13 and 15 together. The words deleted by these two Amendments are rendered unnecessary following Amendments Nos. 4, 6 and 7 to Clause 2, with which we were dealing earlier. The words inserted by Amendment No. 13 are intended to make quite clear the effect of the subsection; so these two Amendments are little more than drafting Amendments, I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 15:
Page 3, line 37, leave out ("at that time").
On Question, Amendment agreed to.
4.15 p.m.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
Viscount ECCLES: I should like to ask a question on paragraph (b) of subsection (4), which says:
"the disclosure was effected by the inventor displaying the invention at an international exhibition…".
The phrase "international exhibition", as defined in Clause 118 on page 86,
"means an official or officially recognised international exhibition…".
Why only at an international exhibition? Why could we not have this benefit given to an inventor if his invention is displayed at a registered or certified exhibition in this country? I cannot see why it should be confined to international exhibitions.
Lord ORAM: I think the answer would be, as the noble Viscount will recall from what I said when I was answering his Amendment, that one does not wish to extend protection too far. One does not wish to discourage the submission of early applications. Therefore, one has to draw the line more tightly, perhaps, than in other circumstances one would wish. That is why the definition is worded in the way to which the noble Viscount has drawn attention. But I take his point that there may be other important exhibitions which do not fall within this strict definition, so I will have a look at it and will write to the noble Viscount or raise it at a later stage. I think that that is about as far as I need go this afternoon.
Clause 2, as amended, agreed to.
Clause 3 [Inventive step]:
The DEPUTY CHAIRMAN of COMMITTEES: I should draw the attention of the Committee to the fact that if Amendment No. 16 is agreed to, I shall not be able to call Amendment No. 17.
Lord ORAM Lord ORAM moved Amendment No. 16:
Page 3, line 40, leave out from ("which") to ("part") in line 41 and insert ("forms").
The noble Lord said: This Amendment is consequential upon the Amendments made to Clause 2(2). The Amendment deletes the reference to time in the clause and so removes the word "immediately", deletion of which was also proposed by the noble Lords, Lord Lyell and Lord Belstead, in the Amendments they tabled. I beg to move.
Lord BELSTEAD: As we have had the falling of Amendments to leave out the word "immediately" on about three successive occasions, I cannot resist asking the noble Lord what would have been the effect, if the word "immediately" had been left in.
Lord ORAM: I think that there would have been some ambiguity. There might have been too much stress put upon the word "immediately", whereas what is intended is that all the period beforehand should have been covered. There was some possibility—I do not put it very strongly—that ambiguity would arise. I assume that that kind of consideration was in the mind of the noble Lord when he put down his Amendment.
On Question, Amendment agreed to.
4.22 p.m.
The Earl of HALSBURY The Earl of HALSBURY moved Amendment No. 18:
Page 3, line 43, at end insert—
("(2)(i) Any claim for a chemical process which involves a series of chemical reactions all of which are known to a person skilled in the art shall not be taken to involve an inventive step.
(ii) For the purpose of determining what is deemed to be a reaction known to a person skilled in the art the Secretary of State shall appoint a Consultative Committee the members of which shall be nominated by—

The Royal Society of London

The Royal Society of Edinburgh

The Royal Institute of Chemistry

The Chemical Society

The Society of Chemical Industry

and by any other body which he thinks appropriate. Such Committee shall have power to compile a list of such chemical reactions which list shall be published by the Patent Officer and be revised from time to time as the Secretary of State thinks fit.").
The noble Earl said: In moving the Amendment standing in my name I am implementing a promise that I made at Second Reading that I should try to draft something—which I have done with the help of a practitioner at the Patents Bar—

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to cover a situation which I regard as not entirely desirable and which occurs in the field of chemistry.
The law on patents is more or less coeval with mechanical engineering. Chemistry is perhaps a younger subject; it is a more abstract one, and it is not always easy to reconcile doctrines applicable in the field of mechanical engineering to those applicable in the field of chemistry. If you get a chemical patent your claims (which are a kind of barbed wire fence surrounding territory to which you propose to ban the entrance of anybody else) are divided into two kinds. One kind is called a product claim and the other a process claim. Product claims give you a monopoly of the manufacture (by any method), use and sale of a particular material for a purpose. You could get a product claim on butazolidine for the purpose of relieving gout or arresting the progress of the degeneration at the time of diagnosis, maintaining the patient in a more or less constant condition from that point on. Twenty years later that product claim would expire and anybody else would be free to distribute butazolidine for this purpose. But, in the meantime, your process claims which cover the way of manufacturing it, might have been extended by finding a better way of manufacturing. There is no objection to that if the better method of manufacture really produces something cheaper and it is available at a lower price.
These chemical processes may occur at a single stage and may have very much inventive merit. The person who first thought of combining propylene and ammonia together to form acrilo nitrile as the basis of the acrylics, or some of them, had a very original chemical mind. It was a great triumph. But many of these multi-stage syntheses involve the stringing together of chemical reactions, all of which are textbook stuff. There is the ghost of an old doctrine haunting the Patent Office that the course of a chemical reaction is unpredictable.
I have consulted the three other chemists in your Lordships' House: the noble Lord, Lord Todd, who is a chemist of the utmost distinction and a Nobel Prize Winner, as is the noble Lord, Lord Tedder; and I had hoped to see the noble Lord, Lord Wynne-Jones, in his place.
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They all applaud my intention; although the noble Lord, Lord Todd, has put me on notice, as it were, that the list of perfectly predictable chemical reactions would be so long that you would never come to the end of drawing it up. The noble Lord, Lord Tedder, too, praises my intention, but he agrees with Lord Todd that it would be a big job to list all the processes and he draws attention to the fact that there are textbooks containing lists of reactions that everybody ought to know and which therefore can be used for reference. Therefore, while I do not intend to press this Amendment, I hope that the comments that I shall elicit from the Front Bench will be helpful for forward thinking; and the fact that this debate will be almost certainly reported in the technical Press will enable other minds to be bent to the problem. I beg to move.
Lord ORAM: I recall listening with fascination to the noble Earl's speech on Second Reading in which he put forward the argument that he has set out again today. Not being by any means a chemist, I am not able to join in the discussion of chemical formulae but will deal rather with the second part of the Amendment to which, I am sorry to say, we take exception. I do not mean that in any offensive way; but we cannot accept it.
It would appear that in his Amendment the noble Earl is intending to give the Consultative Committee power to determine what might be considered obvious in the field of chemical processes. He referred to textbooks where these things are set out; therefore, it would be obvious. This would be quite contrary to the underlying philosophy of the Bill and of the European Patent Convention. Whether an invention involved an inventive step is a matter for the court and the comptroller, to be judged in the light of the state of the art. To substitute a Consultative Committee would usurp those functions in the chemical processes field and, in our view, there is no justification for treating chemical processes differently from other kinds of inventions. I do not think that the noble Earl would propose that they should be so treated; but it could lead on to similar suggestions in relation to many other fields of invention, and obviously that will be undesirable.

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Furthermore, a number of difficulties would arise as to the processing of an application. Would it be possible to convene the committee, if necessary, in the time available to the applicant, and would its pronouncement be binding in any way on the court or on the comptroller in subsequent proceedings? No doubt, the noble Earl would reply that these would be consequential matters which could be taken care of; but for the other reasons that I have furnished, about the Bill being based on the court and the comptroller being the powers to make these decisions, I was glad to hear the noble Earl say that he was not proposing to press this Amendment.
Lord CAWLEY: I think I ought to say that I had a certain amount to do with the butazolidine patent, sometimes known as phenyl butazone. I must say that among all these chemical patents I have rarely found any emphasis put on the process. In nearly every case the product claim appears to be the main point of the patent. I should have thought that the cases where people tried to argue that the process had some novelty were very few and far between.
The Earl of HALSBURY: May I first thank the noble Lord, Lord Oram, for the courtesy of his reply, over which he had obviously taken a lot of trouble and which he gave at some length. I attach no particular importance to the format in which I put forward this Amendment. As I said, I am not going to press it. I thank the noble Lord, Lord Cawley, for giving his view. I saw the noble Lord, Lord Lloyd of Kilgerran, shaking his head when I defined a product claim. I hope that I have not misled the Committee. If so, some lawyer, possibly the noble Lord, Lord Cawley, will correct me. If there is no more to be said, then I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 3, as amended, agreed to.
Clause 4 agreed to.
Clause 5 [Priority date]:
4.30 p.m.
Lord ORAM Lord ORAM moved Amendment No. 19:
Page 4, line 25, leave out first ("the") and insert ("an").
The noble Lord said: In moving this Amendment, I should like to speak to Amendment No. 22 and also Amendment No. 20 which is in the names of the noble Lords, Lord Lyell and Lord Belstead. The present draft of Clause 5(2) could be taken to imply that an application for a patent can relate to only one invention. Amendments Nos. 19 and 22 avoid this implication and, together with Amendment No. 20, make it clear that each invention may be accorded its own priority date. I beg to move.
On Question, Amendment agreed to.
The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger): Amendment No. 20 is a duplicate of Amendment No. 19 and will not be called.
Lord BELSTEAD Lord BELSTEAD moved Amendment No. 21:
Page 4, line 25, after ("which") insert ("a claim in")
The noble Lord said: I should not have thought that the Government Amendment to insert the word "an", to which we have agreed, goes far enough. The effect of this Amendment is to make it clear that an invention depends upon a claim of a specification in an application and that therefore each claim in an application may have a different priority date. I think that is the purpose of subsection 2 (a) and I hope that the Government agree that the wording of this Amendment clears the matter up completely by clarifying the text. I beg to move.
Lord ORAM: I understand the point that the noble Lord, Lord Belstead, makes. I assure him that the Amendment is unnecessary in view of Clause 114. That clause defines an invention in terms of the claims. To speak of an invention to which a claim relates—which would be the effect of the noble Lord's Amendment—would result in a circularity of drafting, and cast doubt on the meaning of Clause 114 and on the meaning of the word "invention" in the Amendment we are now considering. If he looks at Clause 114, the noble Lord will find that his point is covered and that his Amendment is therefore not necessary.
Lord BELSTEAD: I am grateful to the noble Lord for helping me. It was precisely because Clause 114, dealing with the extent of an invention, says that an invention is that which is specified in a claim or claims contained in a specification in an application that I put down this Amendment. It seemed to me that because Clause 114 said that, it was necessary to further clarify the text here. If the noble Lord is telling me that by so doing I am going in a circle, I will take his advice. I will look at what he has said, and I now withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord ORAM Lord ORAM moved Amendment No. 22:
Page 4, line 27, leave out second ("the") and insert ("that").
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 24:
Page 4, line 41, leave out ("of which the second") and insert ("filed in or in respect of the same country as each other by the same applicant as in the case of the application in suit or a predecessor-in-title of his and the second of those relevant applications").
The noble Lord said: With this Amendment I should also like to speak to Amendments Nos. 24, 26, 27 and 29. These Amendments, taken together, clarify the situation dealt with in Clause 5(3), where the invention or other matter is disclosed in two earlier "relevant applications" of which the second "relevant application" is specified in the declaration of priority referred to in subsection (2). In this case, certain conditions are to be satisfied, these being laid in the Industrial Property (Paris) Convention. Subsection (3) does not at present include all of the conditions specified in that Convention and the Amendments add those further conditions. I think that makes the main intention of my Amendments clear, and I hope that the Committee will accept them. I beg to move.
Lord BELSTEAD: My Lords, our Amendment No. 23—which we have not; moved—and Amendments Nos. 25 and 28 were tabled by my noble friends and myself in order to bring this Part of the Bill in line with the wording of the Paris Convention. It is my understanding that the Amendment which the noble Lord is
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now moving will also do that. Therefore we shall not be moving those Amendments.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 26:
Page 4, line 44, leave out ("before") and insert ("not later than").
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 27:
Page 4, line 45, leave out ("refused, without") and insert ("abondoned or refused, without—(a)").
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 29:
Page 5, line 2, leave out (" and without") and insert—
("(b) leaving any rights outstanding; and (c)").
On Question, Amendment agreed to.
Lord CAWLEY Lord CAWLEY moved Amendment No. 30:
Page 5, line 4, at end insert—
("( ) Where an invention, as claimed in a claim, is not supported by matter disclosed in an earlier relevant application, but includes within its scope an invention which is so supported, the claim may be notionally divided for the purpose of allocating priority dates into as many sub-claims as may be necessary, provided that each sub-claim is narrower in scope than the claim from which it was divided, and the invention of each sub-claim shall have its own priority date.").
The noble Lord said: Under the present Act, each claim can have only one priority date. It is provided by the European Patent Convention, Article 88(2), that where appropriate multiple priorities may be claimed for any one claim. But this Bill gives no mechanism for doing this. With the permission of the Committee I would also refer to the Amendment to Clauses 114. It is suggested that this mechanism should be inserted in order to allow for more than one priority to each claim. The two Amendments are intended to secure this. I beg to move.
Lord ORAM: I regret that I cannot advise the Committee to accept the Amendment. We consider the Amendment to be misconceived in that it is

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based upon the concept of allotting priority dates to claims as under the present Act. The noble Lord, Lord Cawley, referred to that. Under the Bill, priority is allotted to an invention, and however many separate, but specified, inventions there may be in a claim, each will attract its own priority date. Where an applicant sees fit to claim an invention generically in broad terms, then that generic invention will be allotted its own single priority date. Any separate, more specific inventions falling within that generic group should be claimed separately, either as specific alternatives in a single claim or each the subject of a separate claim. We also believe that the concept of notional sub-division is vague and that the Amendment would tend to mislead the public since, although expressed in broad terms, the claim might only give protection back to the priority date for an invention expressed in much narrower, but unspecified, terms.
To adopt the Amendment would probably also affect the present practice, which it is intended should continue, of including in a specification a number of claims of progressively narrower scope. In our view, it is vital that this practice should continue unchanged so that third parties may know exactly what the patent protects. With that explanation, I hope that the noble Lord will see his way to withdrawing the Amendment.
Lord CAWLEY: I will, of course, consider with great care what the noble Lord has said. Certainly at this stage I have no desire to press the matter to a Division. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.41 p.m.
Lord ORAM Lord ORAM moved Amendment No. 31:
Page 5, leave out lines 8 and 9.
The noble Lord said: This is a drafting Amendment. Subsection (4) defines "relevant application" for priority purposes. There is, however, no need to refer to applications for a European patent in subsection (4)(b) or an international application in subsection (4)(c), since those which designate the United Kingdom are
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included in subsection (4)(a) by virtue of Clauses 74 and 83 respectively, while those which do not designate the United Kingdom are already covered by subsection (4)(d). Therefore, lines 8 and 9 are considered unnecessary.
Lord BELSTEAD: May I just ask the noble Lord one question? This is a little difficult to follow, and I regret to say that I was not listening to him when he started. Where in fact are paragraphs (b) and (c) reproduced in the Bill if they are taken out here?
Lord ORAM: The noble Lord would need to refer to Clauses 74 and 83, which have the effect of including paragraph (b) in an application for a European patent under paragraph (a). If the noble Lord reads what I have just said and what I said in my opening remarks, I think he will find that paragraphs (b) and (c) are adequately covered.
Lord BELSTEAD: I am most grateful to the noble Lord.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 32:
Page 5, line 10, after ("in") insert (or for").
The noble Lord said: I beg to move Amendment No. 32. This is another drafting Amendment, intended to make it quite clear that subsection (4)(d) includes within its scope applications made in accordance with regional patent treaties such as the Patent Co-operation Treaty and the European Patent Convention and which designate Convention countries, as well as applications actually made in a Convention country. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 33:
Page 5, line 15, leave out ("Act") and insert ("section").
The noble Lord said: I beg to move Amendment No. 33. This again is a drafting Amendment, enabling a change to be made which makes it clear that the provisions of Clause 5(5) are applicable only for the purpose of claiming priority under Clause 5. I beg to move.
Lord BELSTEAD: Surely the word should be "subsection"?
Lord ORAM: Off the cuff, I am not able to react to that. I think it would seem to be "section" but I will look at it and, if necessary, bring the matter forward at a later stage.
On Question, Amendment agreed to.
Clause 5, as amended, agreed to.
Clause 6 [Right to apply for and obtain a patent]:
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey) moved Amendment No. 34:
Page 5, line 23, leave out from ("granted") to end of line 26 and insert—
("(a) primarily to the inventor or joint inventors;
(b) in preference to the foregoing, to any person or persons who, by virtue of any enactment or rule of law, or any foreign law or treaty or convention, or by virtue of an enforceable term of any agreement entered into with the inventor before the making of the invention, was or were at the time of the making of the invention entitled to the whole of the property in it (other than equitable interests) in the United Kingdom;
(c) in any event, to the successor or successors in title of any person or persons mentioned in paragraph (a) or (b) above or any person so mentioned and the successor or successors in title of another person so mentioned;
and to no other person.")
The noble and learned Lord said: This is a purely drafting Amendment. The Amendment makes no material change in the intended effect of Clause 6. The purpose is to indicate how persons may become entitled to a patent. This Amendment clarifies that intention perhaps rather better than the original draft, with a view to facilitating the practical implementation of the subsection. I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 35:
Page 5, line 28, leave out ("subject to subsection (4) below").
The noble and learned Lord said: With your Lordships' permission, I should like to speak to Amendments Nos. 35 and 36 together. Clause 6(4) was intended to deal with a situation where two or
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more persons devised an invention independently of each other. It did so by providing that the inventor, for the purpose of the Bill, would be taken to be the person whose published application had the earliest priority date, unless the contrary were established under the Bill, for example, under Clause 7. The effect of subsection (4) is, however, already catered for by Clause 2, which provides that the later application will be defeated by one with an earlier priority date. Clause 6(4) is therefore unnecessary, and Amendment No. 36 proposes its deletion. Amendment No. 35 is consequential upon such deletion. I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 36:
Page 5, line 30, leave out subsection (4).
On Question, Amendment agreed to.
4.47 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 37:
Page 6, line 3, leave out from ("person") to ("and") in line 4 and insert ("who is entitled under subsection (2) above to be granted a patent").
The noble and learned Lord said: By leave, I should like to speak to Amendments Nos. 37 and 38 together. These are, again, purely drafting Amendments. Clause 6(1) states that anyone may apply for a patent, while subsection (2) defines who is entitled to be granted a patent. Subsection (5) creates a presumption that the applicant is the person entitled, unless the contrary is established. The Amendment makes no difference to the intended effect of subsection (5). I beg to move.
On Question, Amendment agreed to.
The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger): Amendment No. 38 is misprinted. It should read: "Page 6, line 5".
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 38:
Page 6, line 5, leave out from ("persons") to end of line 6 and insert ("so entitled").
The noble and learned Lord said: I beg to move Amendment No. 38, in relation to page 6, line 5.
On Question, Amendment agreed to.
Clause 6, as amended, agreed to.
Clause 7 [Determination before grant of questions about entitlement to patent, etc.]:
The DEPUTY CHAIRMAN of COMMITTEES The DEPUTY CHAIRMAN of COMMITTEES: If Amendment No. 39 is agreed to I shall be unable to call Amendment No. 40.
4.49 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 39:
Page 6, line 11, leave out from ("granted") to ("patent") in line 12 and insert (" (alone or with any other persons) a patent for that invention or has or would have any right in or under any patent so granted or any application for such a").
The noble and learned Lord said: Mention has been made of Amendment No. 40. Amendment No. 39, which I now beg to move, accepts in principle Amendment No. 40 standing in the name of the noble Lord, Lord Lyell. This Amendment, No. 39, is intended to make the Bill clearer and to pave the way for later Amendments to the clause. The substantive changes are as follows. First, the words in parentheses at the beginning of the Amendment make it clear that the comptroller can deal with questions involving joint inventors and applicants under subsection (1)(a), which concerns entitlement, as well as under subsection (1)(b), which is to do with whether a joint applicant should be able to deal with his share despite opposition from his co-owners. Secondly, the addition of the words "or would have" makes clear that the comptroller can deal with questions involving rights which would arise only on his determination or on the grant of a patent. It is the second point, of course, which accepts Amendment No. 40 in principle. I beg to move.
Lord LYELL: If I may speak to this Amendment in so far as it covers Amendment No. 40, may I say that I am very grateful for the clear way in which the noble and learned Lord, Lord McCluskey, has explained how the Government see the essence of Amendment No. 40, and I am very grateful for what they have done.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 41:
Page 6, line 14, after ("patent") insert ("for that invention").
The noble and learned Lord said: This is a purely drafting Amendment. I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 42:
Page 6, line 23, leave out from ("before") to the third ("the") in line 24 and insert ("the reference is disposed of by the comptroller")
The noble and learned Lord said: Once again this can be described as a drafting Amendment. As the clause stood, the comptroller had power to order that the application proceed in the names of different applicants, or to refuse the application and allow a new application to be made notwithstanding that the application had already been withdrawn or refused provided that it had been published. It remains the intention that a new application should be allowed in such circumstances and later Amendments deal with this point, but it is clearly impossible to allow an application which no longer exists to proceed in different names. Accordingly, the Amendment provides that the orders listed in subsection (2) may be exercised only when there is a subsisting application. I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 43:
Page 6, line 38, leave out from beginning to end of line 2 on page 7 and insert—
("(d) make any order transferring or granting any licence or other right in or under the application and give directions to any person for carrying out the provisions of any such order.
(3) Where a question is referred to the comptroller under subsection (1)(a) above and—

(a) the comptroller orders an application for a patent for the invention to which the question relates to be so amended;

(b) any such application is refused under subsection (2)(c) above before the comptroller has disposed of the reference (whether the reference was made before or after the publication of the application); or

(c) any such application is refused under any other provision of this Act or is withdrawn before the comptroller has disposed of the reference, but after the publication of the application.").

The noble and learned Lord said: Once again this Government Amendment can, I think, be dealt with quite shortly.

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It adds a new paragraph (d) to subsection (2) and substitutes new conditions for the powers exercisable under subsection (3). Under the new paragraph (d) the comptroller is given power to make orders concerning licences and other rights in or under the application. This power is needed to give effect to the comptroller's determination of questions referred to him under subsection (1)(a), which may include questions under subsection (5) of the new clause, and which I hope to move into the Bill after Clause 9. That is the one to which Amendment No. 56 relates. I think that that may be sufficient explanation for your Lordships, but I can clarify the matter further if required.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 44:
Page 7, line 7, at end insert ("subject in either case to section (Amendments of applications and patents not to include added matter) below,")
The noble and learned Lord said: May I make clear what is proposed here, so that your Lordships will not let me away with this unwarily. This Amendment is allied with Amendments Nos. 47, 68, 73, 81, 82, 83, 107, 108, 274, 286 and 289. I hope that we shall be able to dispose of all these fairly swiftly. The position here is that in several clauses, being the clauses that I have mentioned, there are prohibitions on amendments, which add matter to patent specifications. It is intended to deal with these comprehensively in one new clause, and the Amendments to Clause 7 and all the other clauses that I have mentioned are consequential upon this. The Amendment which I hope to move, which would bring in the new clause, is Amendment No. 295. I do not propose at this stage to speak to Amendment No. 295, but, as your Lordships will see, that is the general clause which takes over from all these words in the individual clauses, and I should make it plain that if that clause were rejected the Government would, of course, move Amendments on Report with a view to restoring the original wording, which would then become necessary. So, for the moment, I beg simply to move Amendment No. 44.
Lord BELSTEAD: I wonder whether I may just ask the noble and learned Lord
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about the wording of the new clause, which is Amendment No. 295, and which is referred to by Amendment No. 44. Article 100 of the European Patent Convention provides that one of the grounds for opposing a patent is that,
"…the subject matter of the European patent extends beyond the content of the application as filed."
What I am asking the Government is: why does not the wording in Amendment No. 295 harmonise with the wording of Article 100 of the European Patent Convention? Why does not Amendment No. 295 provide that,
"No amendment of an application or the specification of a patent shall be allowed under any of the provisions of this Act to which this section applies if it—
(a) results in the application or specification disclosing subject matter which extends beyond that disclosed in the content of any relevant application as filed"?
It seems to me that if that wording was chosen by the Government, this new clause would exactly correspond with Article 100 of the European Patent Convention, and I should be grateful if the noble and learned Lord could explain to me why it does not do so.
Lord McCLUSKEY: Perhaps I may be allowed to deal with that specifically when we come to Amendment No. 295. At the moment, I would say only this—and this is general in relation to the Conventions and the Act—that the Conventions are drafted, as your Lordships will be aware, on what is known as an indicative basis. The drafting is not intended to be as precise as the drafting that Parliamentary draftsmen adopt when drafting Statutes of the United Kingdom. I can say only that that accounts for some differences in the wording. There is a desire for a precision in language in United Kingdom Statutes that is not universally shared, even around the rest of the civilised world, and that sometimes accounts for differences. I will attempt to give a more specific answer when I come to Amendment No. 295, if I am allowed to do so.
Lord BELSTEAD: I am grateful to the noble and learned Lord, but I must press him to give an answer a little before that. As he has pointed out, this arises again on Amendments Nos. 73 and 81, and on Amendment No. 84 to write in the words "subject-matter beyond the content of".

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The reason why I have gone ahead like this is that I submit to the noble and learned Lord that, if his Amendment No. 83 succeeds, I shall not have the chance of moving Amendment No. 84. Therefore, between now and that point on the Marshalled List, I should like to ask him this question again, and perhaps in the intervening time it might be possible for further information to reach him.
Lord McCLUSKEY: Perhaps I may publicly, within earshot of those in the Box, indicate to the noble Lord that I will try to get a precise answer when I deal with Amendments Nos. 81, 82 and 83.
Lord BELSTEAD: I am most grateful.
On Question, Amendment agreed to.
5 p.m.
Lord LYELL Lord LYELL moved Amendment No. 45:
Page 7, line 10, at end insert ("and, if the earlier application had been published, the new application shall be treated as if it had been published on the date on which the earlier application was published.").
The noble Lord said: This Amendment relates to Clause 7. In the clause that we have in front of us today, thankfully unamended, we can see that the text of subsection (2) contains these words in lines 22 and 23:
"unless the application is refused or withdrawn before its publication".
However, if we take these words as they appear in the Bill, it seems that the clause deals with cases where published applications may well be the subject of litigation or dispute and where all this is to be settled, we hope, by the comptroller. It seems that all the provisions of the clause are applicable to such published applications. If this is the intention of the Bill, could not the Amendment that we have put down on the Marshalled List be thought to improve the original drafting of the Bill? Also, is there not a chance that where an application is amended and has to be resubmitted, its priority date could be defeated by the published application of an earlier priority? This would seem to be unreasonable in a case where an amendment had to be resubmitted and should get the earlier priority date, yet would be defeated by an application which had been published
1442
subsequent to the earlier priority date. If our Amendment were to be added at the end of line 10, we are wondering whether this particular problem, with publication of an application, would be removed. This is purely in the form of a probing Amendment to find out whether we can obtain any information from the noble and learned Lord. I beg to move.
Lord McCLUSKEY: This Amendment, and our response to it, perhaps exemplify the Government's open-mindedness in relation to the helpful observations that have come from your Lordships. My instructions, if I may put it that way, were to resist the Amendment. However, having looked at the matter more closely, we appreciate that there is a point here, for which we are greatly indebted to the noble Lord. The Government would like to consider the matter further. We do not wish to accept the Amendment in its present form. Although these are early days on the matter, having come to a view on this just an hour or two ago, we think that further consideration might produce a more exact result. In the light of this open-mindedness on my part, I hope that the noble Lord might be persuaded not to press the Amendment at this stage. We accept it in principle.
Lord LYELL: I was somewhat startled to receive this reply, having noted the noble and learned Lord's face while I was attempting to explain the complications. Therefore I am gratified that the noble and learned Lord feels that there might be a point to consider. It is abstruse, but certainly we appreciate the kind words that he has used in relation to this Amendment. In view of what the noble and learned Lord has said, we shall be happy to withdraw the Amendment at this stage and will look forward to whatever developments may take place at a later stage. With that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 46:
Page 7, line 13, leave out from ("contain") to end of line 29 and insert ("directions to any person for transferring or granting any right in or under the application.
(5) If any person to whom directions have been given under subsection (2)(d) or (4) above fails to do anything necessary for carrying out any

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such directions within 14 days after the date of the directions, the comptroller may on application made to him by any person in whose favour or on whose reference the directions were given authorise him to do that thing on behalf of the person to whom the directions were given.
(6) Where on a reference under this section it is alleged that, by virtue of any transaction, instrument or event relating to an invention or an application for a patent, any person other than the inventor or the applicant for the patent has become entitled to be granted (whether alone or with any other persons) a patent for the invention or has or would have any right in or under any patent so granted or any application for any such patent, an order shall not be made under subsection (2)(a), (b) or (d) above on the reference unless notice of the reference is given to the applicant and any such person, except any of them who is a party to the reference.").
The noble and learned Lord said: This Amendment covers several points, the purpose of which again is to make the Bill more readily comprehensible at this point. They are purely matters of drafting and do not involve matters of substance. Also there is a change to the new subsection (5) which replaces the old subsection (5). This makes it easier for a party in whose favour the comptroller has made an order under the subsection to obtain enforcement of it. Instead of having first to require the other party to comply, he will have to wait only 14 days and can then ask the comptroller to authorise him—that is to say, the successful party—to do whatever the unsuccessful party has been ordered to do but has not done. I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 47:
Page 7, line 30, leave out subsection (7).
The noble and learned Lord said: Noble Lords will recall that Amendment No. 47 was one of the long list of Amendments which I mentioned when moving Amendment No. 44. Therefore I beg to move formally Amendment No. 47.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 48:
Page 7, line 36, after ("and") insert (", without prejudice to the court's jurisdiction to determine any such question and make a declaration, or any declaratory jurisdiction of the court in Scotland,").
The noble and learned Lord said: Clause 7(8) is analogous to the proviso to Section 56(1) of the 1949 Act, in that it
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enables the comptroller to decline to deal with disputes which could more properly be dealt with by the court. The proviso to Section 56(1), however, did not specifically confer jurisdiction upon the court, since it clearly had an inherent jurisdiction to do so. Since Clause 7 deals with a wider variety of disputes than does Section 56 of the 1949 Act, it was thought advisable to specify that upon the comptroller declining to deal with the case the court had jurisdiction to do so. This, however, could conceivably throw doubt upon the inherent jurisdiction already possessed by the court. The purpose and effect of the Amendment is simply to make it clear that such inherent jurisdiction does exist and will remain. I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 49:
Page 7, line 41, leave out ("Subject to section 76 below").
The noble and learned Lord said: Again this is a formal Amendment and, with your Lordships' leave, I will discuss Amendment No. 50 with it. These Amendments are to make clear that Clause 7 is affected only by Clause 76 in so far as European patents and applications for such patents are concerned. That is the purpose of Amendment No. 49 and also of Amendment No. 50. I beg to move Amendment No. 49.
On Question, Amendment agreed to.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Douglas of Barloch): I am informed that there is a slight printing error in Amendment No. 50 and that the second line should read:
"an application for any such patent ".
The word "any" has been left out.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 50:
Page 8, line 11, at end add ("and this section, in its application to a European patent and an application for such patent, shall have effect subject to section 76 below.").
The noble and learned Lord said: I am obliged to the Deputy Chairman of Committees. I acknowledge that the error may be treated as a printing error and that the wording in the second line should read:
"an application for any such patent".

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I beg to move Amendment No. 50 with that typographical error corrected.
On Question, Amendment, as corrected, agreed to.
Clause 7, as amended, agreed to.
Clause 8 [Determination after grant of questions referred before grant]:
5.10 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 51:
Page 8, line 12, after ("question") insert ("with respect to a patent or application").
The noble and learned Lord said: Amendment No. 51 should be considered along with Amendment No. 52. They are both Amendments of a purely drafting character, the object of which is to make it clear that the ambit of Clause 8 is confined to United Kingdom applications. I beg to move Amendment No. 51.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 52:
Page 8, line 14, leave out from ("for") to end and insert ("the patent").
On Question, Amendment agreed to.
Clause 8, as amended, agreed to.
Clause 9 [Handling of application by joint applicants]:
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 53:
Page 8, line 21, leave out subsection (1).
The noble and learned Lord said: With the leave of the Committee, I should like to speak to Amendments Nos. 53 and 54 together. Clause 9(1) derives from Section 17(4) of the 1949 Act, but the case with which it deals is now fully covered by Clause 28(4) and the new clause to cover Scotland which is to be dealt with in Amendment No. 130, and so there is no need to retain it. The Amendment to line 32 is consequential on the deletion of subsection (1), so I will move that formally when I come to it. In the meantime, I beg to move Amendment No. 53.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 54:
Page 8, line 32, leave out ("any such") and insert ("a").
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 55:
Page 8, line 34, leave out from ("may") to ("by") in line 35 and insert ("on a request made").
The noble and learned Lord said: This is purely a drafting Amendment to simplify the matter and to avoid possible confusion which may arise from using the word "application" in two different senses in the same subsection, so the word "request" has been inserted in place of the word "application" on the second occasion. I beg to move.
On Question, Amendment agreed to.
Clause 9, as amended, agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 56:
After Clause 9, insert the following new clause:
Effect of transfer of application under s. 7 or 9.

.—(1) Where an order is made or directions are given under section 7 or 9 above that an application for a patent shall proceed in the name of one or some of the original applicants (whether or not it is also to proceed in the name of some other person), any licences or other rights in or under the application shall, subject to the provisions of the order and any directions under either of those sections, continue in force and be treated as granted by the persons in whose name the application is to proceed.

(2) Where any such order is made or directions are given that an application for a patent shall proceed in the name of one or more persons none of whom was an original applicant (on the ground that the original applicant or applicants was or were not entitled to be granted the patent) any licences or other rights in or under the application shall, subject to the provisions of the order and any directions under section 7 or 9 above and subject to subsection (3) below, lapse on the registration of that person as the applicant or, where the application has not been published, on the making of the order.

(3) If before registration of a reference under section 7 above resulting in the making of any order mentioned in subsection (2) above—

(a) the original applicant or any of the applicants, acting in good faith, worked the invention in question in the United Kingdom or made effective and serious preparations to do so; or

(b) a licensee of the application, acting in good faith, worked the invention in the

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United Kingdom or made effective and serious preparations to do so;

that or those original applicant or applicants or the licensee shall, on making a request within the prescribed period to the person in whose name the application is to proceed, be entitled to be granted a licence (but not an exclusive licence) to continue working or, as the case may be, to work the invention.

(4) Any such licence shall be granted for a reasonable period and on reasonable terms.

(5) Where an order is made as mentioned in subsection (2) above, the person in whose name the application is to proceed or any person claiming that he is entitled to be granted any such licence may refer to the comptroller the question whether the latter is so entitled and whether any such period is or terms are reasonable, and the comptroller shall determine the question.

The noble and learned Lord said: Amendment No. 56 proposes the insertion of a new clause after Clause 9. The object of this new clause is to introduce into Section 7 procedures provisions similar to those of Clause 35. Clause 35 is modelled on Articles 28 and 40(2) of the Community Patent Convention, and Article 45 of that Convention applies Article 40(2)—and hence by reference to Article 28—to applications as well as patents. The effect is thus that licences and other rights lapse on a complete change of proprietorship, but not otherwise. However, the original applicant or his licensee can obtain a licence to continue to work the invention if, in good faith, he had begun to do so before the dispute began or had made effective and serious preparations to do so. I beg to move.
On Question, Amendment agreed to.
Clause 10 [Mention of inventor]:
Lord ORAM Lord ORAM moved Amendment No. 57:
Page 9, line 17, leave out ("the register and").
The noble Lord said: I beg to move Amendment No. 57. Subsection (3) provides for a change in the person mentioned as inventor to be recorded in the register of patents. Subsection (1), however, does not specifically require the name of the person originally mentioned as inventor to be recorded in the register as this will be prescribed by rule and any change in the person mentioned as inventor will equally be dealt with by rule. Therefore, it is unnecessary to refer to the
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rectification of the register in this respect in subsection (3). I beg to move.
On Question, Amendment agreed to.
Clause 10, as amended, agreed to.
Clause 11 [Making of application]:
5.20 p.m.
Viscount ECCLES Viscount ECCLES moved Amendment No. 58:
Page 9, line 32, leave out ("and").
The noble Viscount said: It may be for the convenience of the Committee if I speak to Amendments Nos. 58, 59 and 63 together. In the Patents Act 1949 Clause 4(1) reads as follows:
"Every specification, whether complete or provisional, shall describe the invention, and shall begin with a title indicating the subject to which the invention relates."
The title is wanted for two purposes. First, for indexing. It is really essential for the patent library, as early as possible, to be able to put an application into a category, and that requires a title that means something.
The second purpose is that of course it helps the searchers that there should be the earliest possible notice that a patent referring to some broad subject is being sought. I quite understand that the Government may say that at present the titles which are required under the 1949 Act can be useless; and perhaps they may go on to ask: Therefore, why have them at all? I have here an example of what I mean. It happened by sheer chance last week that the top application on the pile of patent applications read as follows:
"No. 1463303: improvements in or relating to flow control devices".
That means nothing. It is no help to the indexer, no help to the searcher. But a cursory glance at that patent by one of our experts showed that it could have had a title probably as follows:
"Valve system for burettes and fluid separators".
That is a useful title both for indexing and for searching.
I think that example shows that there really is no justification for dropping titles altogether because some are obscure, and in my Amendment I have taken care to deal with that point, leaving it to the

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comptroller to change the title into one which makes sense for the two purposes I have described. I feel that we should be impeding the smooth flow in dealing with patents if we did not retain what was clearly meant to be a useful step as described in the 1949 Act. I beg to move.
Lord ORAM: The noble Viscount has raised an important point in an interesting way. Although I am to advise the Committee not to accept this Amendment, I think I can without doubt give him much more satisfaction than I was able to do with his earlier Amendment. He described the importance of titles for indexing and other purposes, and, as he said, they are at present required under the 1949 Act. I can assure him that the requirement for title will be continued, but the intention is to impose the requirement not within the Bill but by rules. The noble Viscount will note that Clause 11(1)(b) requires the application to be in the prescribed form, and Clause 112(2) enables rules to be made concerning the form and contents of patent applications. I hope the noble Viscount will therefore see that his Amendments are unnecessary. I can give him the assurance that his points are fully taken. The method by which the present practice will be continued means that I must ask the Committee not to accept the Amendment. The substance of his case is fully accepted.
Viscount ECCLES: I am very grateful to the Minister for that explanation. May I just ask him for an assurance that when these rules are made the point made in my Amendment will be brought out, namely, that the comptroller shall have the authority to change the title for which he is going to prescribe the need, if it is as obscure and useless as the one which I happened to give in my example? In this way we can do better than the 1949 Act. I should like to have an assurance that that is the intention of the Government.
Lord ORAM: I can give the noble Viscount the assurance that the points he has so lucidly made will of course be taken fully into account when the rules are drawn up. I would not like to give any particular assurance about the contents of rules, but his comments will certainly be fully taken care of.
Viscount ECCLES: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord ORAM Lord ORAM moved Amendments Nos. 60 and 61:
Page 9, line 36, leave out first ("invention") and insert ("application").
line 40, leave out ("invention") and insert ("application").
The noble Lord said: I beg to move Amendment No. 60, and I would ask the Committee to consider Amendment No. 61 at the same time. The purpose of both Amendments is the same; namely, to correct a drafting error in subsections (3) and (4) of Clause 11 which at present refer to the specification of "an invention" instead of the specification of" an application ". These Amendments would put the matter right. I beg to move.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Douglas of Barloch): If no noble Lord disagrees, I will put Amendments Nos. 60 and 61 together.
On Question, Amendments agreed to.
5.28 p.m.
Lord BELSTEAD Lord BELSTEAD moved Amendment No. 62:
Page 10, line 29, after ("granted") insert ("unless there are proceedings pending under section 7 above").
The noble Lord said: If I may refer back to Clause 7 in moving this Amendment, that clause deals with cases in which there is conflicting evidence as to who should be granted the patent. If, under Clause 7, the comptroller is in the process of determining who is the genuine applicant, the person who has made the application and whose right to do this is being contested must not be allowed suddenly to withdraw the application. If the other party is eventually found by the comptroller to be the rightful applicant, his right to the patent would be considerably reduced if he then found that the application had been withdrawn. In such an event a party who successfully contested the right to a patent under Clause 7 would find that he had lost the priority date of the patent, and this could be disastrous; someone else could then file another patent with the same specification and get in before him.
I would suggest to the Government that such an eventuality is not fanciful. Once an application has been published and filed, I understand that very often the company employing the inventor will publish in the trade papers a description of the new invention. If the application for such an invention were then withdrawn while its parenthood was being contested, it would be simple for someone else to step in under the provisions of Clause 12 and deprive the rightful owner of the patent of his opportunity. It is this that this Amendment seeks to prevent. I beg to move.
Lord ORAM: The point the noble Lord, Lord Belstead, has made was indeed considered when the Bill was being drafted. It was rejected on the question of the possibility of enforcement, as an applicant cannot be compelled to prosecute his application. Even if denied the opportunity to withdraw his application, he could obtain the same effect by allowing it to lapse through passage of time or by causing the comptroller to refuse it under other provisions. So if we were to accept the noble Lord's Amendment, it would not be possible to enforce it.
It is appreciated that there would be some advantage in preventing an applicant withdrawing his application where Clause 7 proceedings are pending but, as I have said, in practice it is not feasible to do so. In any event, an aggrieved party, if successful, can file a new application of his own if the relevant application is withdrawn or refused before the termination of Clause 7 proceedings. Therefore, I think that his interests would be safeguarded without the acceptance of the Amendment that the noble Lord has moved.
Lord BELSTEAD: I am grateful to the noble Lord for that explanation. He referred to the fact that the same effect could occur by the proprietor of the patent who is being attacked by an aggrieved party allowing the patent to lapse through passage of time. I did not think that that was, perhaps, a very strong argument, because the period of time before a patent can elapse is a year, as written into the Bill. In fact, my noble friends and I have tabled an Amendment to extend that period to 18 months. The last part of
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the noble Lord's explanation, that the successful applicant can file a new application at the very moment that the unsuccessful applicant has his patent refused, or the patent is withdrawn, was, I thought, persuasive argument. On those grounds, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 11, as amended, agreed to.
Clause 12 [Date of filing applications]:
Lord ORAM Lord ORAM moved Amendments No. 64 and 65 en bloc:
Page 10, line 36, leave out ("the patent is sought") and insert ("a patent is sought in pursuance of the application").
line 39, at end insert ("for which a patent is sought").
The noble Lord said: These Amendments are drafting changes which give added provision to the wording of Clause 12 without affecting its meaning or intention. I beg to move.
On Question, Amendments agreed to.
Lord ORAM Lord ORAM moved Amendment No. 66:
Page 11, line 23, after ("filed") insert ("by the original applicant or his successor in title").
The noble Lord said: This Amendment is a drafting change which makes clear that the new application can be filed only by the original person who made the application or his successor in title. I beg to move.
On Question, Amendment agreed to.
5.35 p.m.
Lord ORAM Lord ORAM moved Amendment No. 67:
Page 11, line 24, leave out ("subject-matter of") and insert ("matter contained in").
The noble Lord said: This Amendment is needed to make the wording of the Bill consistent. Elsewhere in the Bill the term "matter" is used to express the same concept.
Lord BELSTEAD: The noble Lord's colleague, the noble and learned Lord, Lord McCluskey, was good enough to say that he would return to this subject

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when we reach Amendment No. 81. However, in spite of accepting that offer from the noble and learned Lord, the matter has come up again on Amendment No. 67. The noble Lord, Lord Oram, said that this Amendment is in order to bring the wording into line with the rest of the Bill. However, in Amendment No. 84 we imply that we do not believe that the Government have this right. If we look at Article 11 of the EPC, we find the expression, "subject matter". It seems to us that in some parts of the Bill that would be a more accurate way in which to refer to "matter". If it is not, perhaps the Government could explain why it is not. I should like a fuller explanation why the Government want to change the wording in Amendment No. 67.
Lord ORAM: Unfortunately I was temporarily out of the Chamber when the exchange with my noble and learned friend Lord McCluskey took place. Equally unfortunately, he has been absent while this exchange has taken place. However, I shall do my best. Perhaps I may refer in advance to Lord Belstead's Amendment No. 84, because the explanation fits more neatly there. I appreciate that the noble Lord has not yet moved the Amendment, but with the leave of the House it would be convenient to make these points now.
If that Amendment were to be adopted, it would provide that it was "subject matter" rather than "matter" that could not be added to an application as a result of amendment. The noble Lord's intention seems to be to provide that the prohibition of subsection (2) applies only to what may broadly be referred to as "inventive matter", and so does not prevent an amendment which serves to clarify an obscurity or resolve an inconsistency. We consider that Clause 16(2), as now drafted, has this effect. It does not, as seems to be thought, refer to "matter" without any qualification. On the contrary, it refers to "matter disclosed" which, in the context, can only mean "matter" which is revealed for the first time by the application. It follows that Clause 16(2) prohibits the addition of matter which is concerned with the invention itself. When understood in this way, the noble Lord's Amendment No. 84 will be seen to be unnecessary.
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The use of the term, "subject matter" would also complicate the Bill and lead to confusion. I am sorry if I have had to step into my noble and learned friend's shoes without having the preparation that I might have wished in answering the noble Lord, but if he will be good enough—although this is complex—to look at the account in the Official Report, I hope that he will agree that the Government's argument is sound.
Lord BELSTEAD: I am grateful to the noble Lord for that explanation. We shall, with advice, want to look at the explanation which he has given. I am afraid that I have further complicated the matter by referring forward to Clause 16 when, in fact, at the moment we are on Clause 12. I am grateful to the noble Lord for dealing with my argument in the way he has. With the proviso that we shall look closely at what he has said and possibly return to this again on Report, I shall agree to his Amendment.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 68:
Page 11, line 27, leave out from ("application") to ("the") in line 29 and insert ("(without the new application contravening section (Amendments of applications and patents not to include added matter) below)").
The noble Lord said: This is one of the group of Amendments consequential on a future Amendment. It is the one that my noble friend Lord McCluskey was dealing with earlier. I beg to move.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Douglas of Barloch): There is a slight ambiguity in the way in which this Amendment is stated on the Marshalled List. It ought to be: Page 11, line 27, leave out from the first. "application" to ("the") in line 29 and insert "without the new application contravening" the section referred to.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 69:
Page 11, line 33, leave out from ("withdrawn") to ("the") in line 34 and insert (" at the end of the relevant prescribed period unless before that end ").
The noble Lord said: This Amendment clarifies subsection (5) by identifying the

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point in time at which an application will be taken to be withdrawn unless the conditions mentioned in the subsection have been met. I beg to move.
On Question, Amendment agreed to.
Clause 12, as amended, agreed to.
Clause 13 [Publication of application]:
5.42 p.m.
Lord ORAM Lord ORAM moved Amendment No. 70:
Page 11, line 42, after ("it") insert ("as filed").
The noble Lord said: This Amendment does not affect the intention of the clause, but puts beyond doubt that applications will be published in the form in which they were filed. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 71:
Page 11, line 44, leave out from ("applicant") to ("during") and insert ("may published it as filed").
The noble Lord said: This Amendment, similarly to the last, puts beyond doubt that it is applications in the form in which they were filed that will be published and also gives the comptroller a necessary discretion over publication at the request of applicants. I beg to move.
Lord BELSTEAD: May I ask the noble Lord why there should be the discretion for the comptroller? The discretion is not given in the Bill as it is drafted at the moment. It is "shall publish it", meaning an application, "except in any prescribed cases", whereas the Amendment is changing the word to "may" publish it as filed. I think I am right that it is important for an application to be published, because under Clause 67 that then gives an applicant the right to claim damages for infringement. Before we go any further, I should like to know why it is that now under this Amendment the comptroller is being given this discretion.
Lord ORAM: I understand that there may be technical reasons preventing an earlier publication, and that therefore the comptroller has to have a discretion.
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That is the only point I can make at this stage. If the noble Lord would like me to write to him in greater detail I should be prepared to do so.
Lord BELSTEAD: I should be most grateful.
On Question, Amendment agreed to.
Clause 13, as amended, agreed to.
Clause 14 [Preliminary examination and search]:
5.46 p.m.
Lord ORAM Lord ORAM moved Amendment No. 72:
Page 12, line 29, after ("period" insert ("subject to section 12(5) above)").
The noble Lord said: This Amendment removes a possible point of doubt from Clause 14(4). It makes clear that, although provision is made for the applicant to have the opportunity to amend within a specified period, this must be read in conjunction with Clause 12(5), which is overriding. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 73:
Page 12, line 30, leave out ("16(2)") and insert ("(Amendments of applications and patents not to include added matter)").
The noble Lord said: This is another of those consequential Amendments to be considered in connection with Amendment No. 295. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 74:
Page 12, line 33, leave out from ("shall") to end of line 35 and insert ("make such investigation as in his opinion is reasonably practicable and necessary for him to identify the documents which he thinks will be needed to decide").
The noble Lord said: This Amendment clarifies the intention of Clause 14(4) by giving the examiner the discretion to carry out such a search as appears reasonable and necessary in any particular case. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 75
Page 13, line 4, leave out ("as aforesaid") and insert ("in relation to the whole or part of the application").
The noble Lord said: This Amendment makes the wording of Clause 14(5) internally consistent without making any material change. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 76:
Page 13, line 8, after ("examiner") insert (", either before or").
The noble Lord said: Clause 14(6) prescribes the procedure to be adopted when the claims of an application relate to two or more inventions. It may become apparent that the claims of an application relate to two or more inventions before, as well as during, the search, and the purpose of the Amendment is to cause the subsection to cover both possibilities. This does not involve any change in the intention of the subsection. I beg to move.
On Question, Amendment agreed to.
5.50 p.n.
Viscount ECCLES Viscount ECCLES moved Amendment No. 77:
Page 13, line 28, at end insert—
("(9) When an applicant has made a request for a search under this section and before the examiner begins the search the applicant discloses the results of any competent search made with the express purpose of identifying any publications relevant to assessing the patentability of the invention under the United Kingdom law, the comptroller may remit all or part of the search fee.").
The noble Viscount said: The purpose of this Amendment is to remedy what appears to be an injustice to British patent and trade mark searchers. Your Lordships will see that the previous subsection empowers the comptroller to remit all or part of the search fee when an applicant discloses the results of a search under the law of any other country than the United Kingdom. The Amendment extends this power to remit the fee in respect of any competent search made with the express purpose of identifying any publications relevant to assessing the patentability of the invention under United Kingdom law. Why should searches carried out abroad, particularly by The Hague branch of the
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European Patent Office, benefit and not searches in the United Kingdom? We know that The Hague office will carry out searches for the public and not only for the European Patent Office, and I am asking that patent agents and professional searchers in this country, acting privately, should have a similar benefit.
The Government may say that the search might not be one that they would particularly like. That is why I have included the word "competent". That word is important, for once the word is there, the comptroller is perfectly capable of judging whether the search which has already been made under United Kingdom law is an effective search. I do not see why they should not have the same benefit, otherwise they might drive searches abroad which should have been made here. The Patent Office, so far as I know, accept the judgment of patent agents; why should they not accept the judgment of patent searchers?
Lord ORAM: As the noble Viscount, Lord Eccles, explained, his Amendment seeks to extend the facility provided by Clause 14(8) to searches carried out privately by or on behalf of the applicant. It is appreciated that such searches may be well carried out. Nevertheless, I must resist the Amendment because I suggest that the public interest requires that patents be granted on the basis of searches in respect of novelty and inventive step that are made quite independently of the applicant, and that would not be the case if the Amendment were accepted. We consider that failure to do what I have suggested—that is, to have searches conducted independently of the applicant—would undermine confidence in the presumptive validity of granted patents. Also, it would place the Patent Office in a difficult position, because it would need to exercise its discretion on a case by case basis. If the Amendment were accepted, there would, for example, be difficulties in determining whether the search was competent (a word he stressed), but it would raise difficulties of administration. For those reasons, I am afraid that I must advise the Committee not to accept the Amendment.
Lord CAWLEY: Does the provision as it stands cover searches at The Hague? I should like some illumination on this

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and to know whether they are under the laws of any other country. Are they under the laws of the Netherlands? The subsection as it stands might rule out The Hague searches if they are not conducted under the laws of the Netherlands.
Lord ORAM: I confess that that is a question which I am not in a position to answer, but I will seek the answer and let the noble Lord have the information by the quickest means possible.
Viscount ECCLES: I am disappointed in the Minister's answer. It is one more occasion on which the Bill shows that we are putting out business abroad; that, I fear, is what will happen. Naturally, if people can get the fee remitted, they will have the search carried out somewhere else. It is with sorrow, therefore, that I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.56 p.m.
Lord LLOYD of KILGERRAN Lord LLOYD of KILGERRAN moved Amendment No. 78:
Page 13, line 28, at end insert—
("(9) The applicant shall be informed of the results of and extent of the examiners search within six months of the date of the request by the applicant, or if at that date all formal requirements have not been complied with, within six months of the date on which the applicant has complied with all formalities.").
The noble Lord said: The clause with which we are dealing is concerned with the question of the preliminary search and examination of applications, and this Amendment is designed to insert a new provision which would make it mandatory for the applicant to be informed of the extent and results of such a search within six months. It is important that the applicant should know the results of a search as early as possible, and six months would seem to be a reasonable period, provided the formalities have been dealt with. If the formalities have not been dealt with in that six months, my Amendment goes on to cover that situation and says that the notification should come six months after the formalities have been completed.
In my view, not only should the results of the examination be given to the applicant but the extent of the search should be given to him as well. The extent of the
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search is most valuable and will probably save the applicant a great deal of money in relation to his foreign applications. Thus, the Amendment would merely add a provision suggesting that the notification should be of the extent and results of the examination within six months of the request for such information or within six months after the formalities have been completed, after the application has been processed.
Lord ORAM: The Bill as drafted imposes no time limit within which the Patent Office has to inform the applicant of the results of his search. This is deliberate because the Patent Office needs to preserve flexibility in order to make the most efficient and economic use of the skilled manpower available. I am sure that the wide experience of the noble Lord, Lord Lloyd of Kilgerran, is such that he realises that the Patent Office is not in a position to control the input of patent applications. In some technical fields, the input runs at a fairly steady level, but in others it is not unusual for there to be a flood of applications within a relatively short space of time. If therefore the Patent Office was obliged by Statute to act within a fixed period, as the noble Lord suggests, this would be likely to create considerable difficulties.
The intention of the Patent Office is to do its best to ensure that the search result on an application is available to the applicant by the time his application is published, and I think Lord Lloyd can be assured that, in many cases, this will be no later than would be the case if his Amendment were accepted. The Amendment would, however, in other cases require the Patent Office to disturb the orderly fashion in which it carries out its operations. As to this, I would hope the noble Lord could agree that this would not serve the general public interest. I must therefore resist the Amendment.
However, I should like to add that, as the noble Lord seems to wish, the Patent Office appreciates that there may well be a need for a quicker search in those cases where the applicant is contemplating taking out patent coverage in other countries. The Green Paper published in 1975 agreed with this, and I can say that the Patent Office hopes to be able to give such a useful service to British industry. However, it is better for this to be arranged

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administratively rather than to be the subject of a statutory duty which could add to the difficulties and affect the high standards of the Patent Office.
The Amendment also seeks to oblige the Patent Office to inform the applicant of the extent of the search. I am grateful to the noble Lord, Lord Lloyd, for raising this point and I can assure him that the Patent Office recognises that it is useful for applicants to be given information about this. Indeed, the Patent Office intends to indicate to the applicant the classified files in which the search has been carried out, but, bearing in mind the need for the Patent Office in everyone's interest to perform the search in the most efficient and economical way, it will in many cases be necessary to qualify the statement made to the applicant. In view of this, I would prefer to avoid any statutory obligation about the extent of the search, particularly since this would need to be interpreted and could give rise to argument and limitations on the activities of the Patent Office which, I can assure your Lordships, need to be carried out in a flexible manner.
In view of those arguments—and I believe that the noble Lord will understand that we recognise his case but feel that it is better done administratively than by the acceptance of his Amendment—I hope that the noble Lord will see his way to withdrawing the Amendment.
Lord LLOYD of KILGERRAN: I am very grateful to the noble Lord for his explanation and I fully appreciate the administrative difficulties under which the Comptroller General of Patents works and has worked for many years. I should be the last person to suggest that there should be a time limit in this matter that could not be met by the Comptroller General. If it embarrasses the administration of the Patent Office I will gladly withdraw the Amendment, having regard to the assurances given by the noble Lord in his reply.
Amendment, by leave, withdrawn.
Clause 14, as amended, agreed to.
Clause 15 [Substantive examination and grant or refusal of patent]:
6.2 p.m.
Lord ORAM Lord ORAM moved Amendments Nos. 79 and 80:
Page 13, line 29, leave out from first ("the") to ("to") in line 30 and insert ("conditions imposed by section 14(1) above for the comptroller").
line 32, after ("search") insert ("are satisfied").
The noble Lord said: With permission, I shall speak to Amendments Nos. 79 and 80 together. These two Amendments go together. They are minor drafting changes which point more clearly to the conditions which must be satisfied before the application is referred to an examiner for preliminary examination and search. I beg to move.
On Question, Amendments agreed to.
Lord ORAM Lord ORAM moved Amendment No. 81:
Page 14, line 8, leave out ("16(2)") and insert ("Amendments of applications and patents not to include added matter)").
The noble Lord said: I beg to move the Amendment and, since my noble and learned friend Lord McCluskey has now returned, I ask him to intervene at this stage in the light of his earlier undertaking.
Lord McCLUSKEY: I gave the Committee a hostage to fortune, as it were, earlier in that I undertook to reply to the noble Lord, Lord Belstead, in relation to the question that he asked. I am advised that the answer has been anticipated by my noble friend Lord Oram in dealing with Amendment No. 67, but that it may be put as follows: in various parts of the Bill we use the expressions "matter", "matter contained" and "matter disclosed". "Matter" is the general word; it means everything. "Matter contained" refers to matter contained in the patent specification by way of description. "Matter disclosed" refers to matter contained which is revealed for the first time; in other words, it is matter which relates to the invention. Accordingly, when one extends the matter disclosed, one is adding to knowledge which was not revealed at the date of filing. It follows, I believe, that we use the term "matter disclosed" as the exact equivalent of the words "subject matter" in the Convention and, in particular, in Article 100. I should add that we expect the practice under the Bill to be the same as that under the present law. I hope that the noble Lord, Lord Belstead, can accept that as an answer to the question that he asked me at an earlier stage.
Lord BELSTEAD: I think I understand that explanation of this matter, though I must confess that there is a great deal about this Bill that I do not understand. Firmly and stoutly, we are standing up for our rights in Europe and maintaining that as a nation we can call something by another name. So this Bill will continue to refer to "matter disclosed" when in fact it really means "subject matter".
On Question, Amendment agreed to.
Clause 15, as amended, agreed to.
Clause 16 [General power to amend application before grant]:
Lord ORAM Lord ORAM moved Amendments Nos. 82 and 83:
Page 14, line 22, leave out ("subsection (2)") and insert ("section (Amendments of applications and patents not to include added matter)").
Page 14, line 24, leave out subsection (2).
The noble Lord said: With permission, I shall move Amendments Nos. 82 and 83 together, since both are consequential on Amendment No. 295. I beg to move.
On Question, Amendments agreed to.
Lord ORAM Lord ORAM moved Amendment No. 85:
Page 14, line 28, after ("specification") insert ("and abstract").
The noble Lord said: This is a minor Amendment to allow the comptroller to acknowledge registered trade marks in abstracts as well as in specifications. It is necessary because the comptroller's power as given by Clause 16(3) does not at present extend to abstracts, since by the terms of Clause 11(2)(b) an abstract is not part of the specification. I beg to move.
On Question, Amendment agreed to.
Clause 16, as amended, agreed to.
Clause 17 [Failure of application]:
6.8 p.m.
Lord ORAM Lord ORAM moved Amendment No. 86:
Page 14, line 31, after ("application") insert ("for a patent").
The noble Lord said: This is a drafting Amendment. The term "application" means different things in different parts of the Bill. Here, it is intended to mean an application for a patent, and the Amendment makes this plain. I beg to move.
On Question, Amendment agreed to.
Clause 17, as amended, agreed to.
Clause 18 agreed to.
Clause 19 [Information prejudicial to defence of realm or safety of public]:
Lord ORAM Lord ORAM moved Amendments Nos. 87 and 88:
Page 16, line 26, leave out ("that") and insert ("above that the").
Page 16, line 38, leave out ("any") and insert ("the").
The noble Lord said: With permission, I shall speak to Amendments Nos. 87 and 88 together. These are drafting Amendments which do not affect the meaning of Clause 19. I beg to move.
On Question, Amendments agreed to.
Lord ORAM Lord ORAM moved Amendments Nos. 89 and 90:
Page 17, line 21, leave out ("the said") and insert ("that prescribed").
Page 17, line 30, leave out ("expiry of the said") and insert ("end of that").
The noble Lord said: With permission, I should like to move Amendments Nos. 89 and 90 en bloc. In subsection (7) it is not wholly clear what is referred to by, "the said period". The intention is to refer to the period prescribed for the purposes of Clause 13, which is mentioned at page 17, line 14. Amendment No. 89 makes this plain, and Amendment No. 90 is a minor drafting Amendment to provide consistency of terminology.
On Question, Amendments agreed to.
Clause 19, as amended, agreed to.
Clause 20 [Restrictions on applications abroad by United Kingdom residents]:
Lord ORAM Lord ORAM moved Amendment No. 91:
Page 18, line 14, leave out from ("filed") to ("unless") in line 15 and insert ("outside the United Kingdom an application for a patent").
The noble Lord said: I beg to move Amendment No. 91. This Amendment merely clarifies the drafting of Clause 20(1) without affecting its meaning.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendments Nos 92 and 93:
Page 18, line 18, leave out from ("whether") to ("before") in line 20.
Page 18, line 28, leave out from beginning to ("in") and insert ("containing the same information as that application has first been filed (whether before or after the appointed day)").
The noble Lord said: My Lords, I beg to move Amendments Nos. 92 and 93 en bloc, and I should like also to speak at the same time to Amendment No. 95. Clause 20(1) lays down conditions that must be met before a United Kingdom resident may apply for a patent in another country. This is necessary for security purposes. Subsection (2) provides that those conditions do not apply when an application for a patent for an invention has first been filed outside the United Kingdom by a person not resident in the United Kingdom. However, the provision in subsection (2), as drafted, does not take account of the fact (as does subsection (1)(a)) that what is significant for security purposes is the information contained in a patent application. The proposed Amendment to page 18, line 28, remedies this defect. The other changes which would be made by the Amendment, including the new subsection (4), affect the drafting of Clause 20 without affecting its meaning.
On Question, Amendments agreed to.
6.14 p.m.
The Earl of HALSBURY The Earl of HALSBURY moved Amendment No. 94:
Page 18, line 29, after ("resident") insert ("or travelling").
The noble Earl said: This is a probing Amendment to ascertain the exact position of a British subject travelling abroad, as described by me at Second Reading. An offence against Clauses 19 and 20, which are connected with security matters, involves on summary conviction a fine not exceeding £1,000, and on conviction on indictment imprisonment for a term not exceeding two years or a fine, or both.
I should like to remind the Committee what I said on Second Reading. A very fertile, distinguished British inventor, a Nobel prizewinner, a professor in a British university, had also a consultancy with a big American firm and an honorary professorship in America. While temporarily resident in America, travelling during the long vacation, he made an invention, took it to an American patent attorney, made a patent application, and executed an assignment to the National Research and Development Corporation. My question of the noble Lord is whether this man had broken this law? Is it our intention that in such circumstances one would sacrifice a possible priority date in order to satisfy the provisions regarding penalties laid down here? Is it really the wish of the Legislature that we should fine a Nobel prizewinner £1,000 for inventing something in America, which he patented there and assigned to a British public corporation? I beg to move.
Lord ORAM: As the noble Earl has explained, his Amendment would extend subsection (2) to a person travelling outside the United Kingdom, and it is evidently intended to simplify matters for a United Kingdom resident when travelling abroad, by allowing him to make his initial application in the country where he happens to be staying. However, in providing this facility the Amendment would largely defeat the intention of subsection (1), since anyone wishing to circumvent its provisions—not a Nobel prizewinner, but someone less distinguished—could do so merely by personally filing his application in, say, France, and for this reason I am afraid that the Amendment must be resisted.
As I have said, the Amendment would undermine the provisions of Clause 20(1). They exist for security reasons and prohibit United Kingdom residents filing patent applications abroad unless certain conditions are satisfied. It is appreciated that the prohibition may inconvenience the United Kingdom citizen who has a good idea while travelling abroad, but to adopt the Amendment would be to overcome that inconvenience at the cost of providing an easy route for circumvention of the principal purpose of Clause 20. It should be borne in mind, too, that the Patent Office accepts business by post, so that the United Kingdom resident abroad should

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not normally have great difficulty in filing a patent application within a few days of drafting his specification. I hope that with that explanation the noble Earl will see fit to withdraw the Amendment.
The Earl of HALSBURY: I thank the noble Lord for that reply. I can quite see his point. We must have some system of security. I wonder whether I might probe a little further into this matter. Would it be an offence to have the specification drawn up by an American patent attorney and then send it to the British Patent Office for filing? It is very difficult to correspond about an invention. It is necessary to have something of a session between the patent agent in this country, or the patent attorney in America, and the individual inventor.
Lord CAWLEY: This provision was first conjured up in the 1949 Act. Nobody thought about it before then and I cannot help thinking that the basis of it was not security but exchange control, because it does not cover British subjects who are resident abroad. They are not of course subject to exchange control. I cannot help thinking that all this business of security is a blind. If one files first abroad one can easily get around exchange control.
The Earl of HALSBURY: I am greatly obliged to the noble Lord, Lord Cawley, for coming to my rescue on this matter. I beg leave to withdraw the Amendment on this occasion but I reserve the right to bring the matter forward again on Report stage after I have had an opportunity to inform myself a little more closely.
Amendment, by leave, withdrawn.
Lord ORAM Lord ORAM moved Amendment No. 95:
Page 18, line 36, at end insert—
"(4) In this section—

(a) any reference to an application for a patent includes a reference to an application for other protection for an invention;

(b) any reference to either kind of application is a reference to an application under this Act or any convention or treaty to which the United Kingdom is a party."

The noble Lord said: I beg to move this Amendment formally, having spoken to it earlier.
On Question, Amendment agreed to.
Clause 20, as amended, agreed to.
Clause 21 [Publication and certificate of grant]:
Lord ORAM Lord ORAM moved Amendment No. 96:
Page 19, line 1, leave out from ("proprietor") to end of line 2.
The noble Lord said: Subsection (2) of Clause 21 requires the comptroller, following the grant of a patent, to send the proprietor a certificate that the patent has been granted to him,
"in respect of the invention described in the specification of the patent".
The Amendment deletes the quoted words since they are unnecessary. Moreover, because more than one invention may be described in a specification the words are inaccurate. I therefore beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 97:
Page 19, line 5, leave out ("in the prescribed manner").
The noble Lord said: Subsection (3) of Clause 21 requires the comptroller to publish the specification of the patent "in the prescribed manner". The Amendment deletes the quoted words for consistency with Clause 13, which imposes no qualification on the manner in which the comptroller is to publish patent applications. The form in which patent specifications are to be published is in any case an administrative matter, and if necessary rules can be made by virtue of the rule-making power given by Clause 112. I beg to move.
On Question, Amendment agreed to.
Clause 21, as amended, agreed to.
Clause 22 [Term of patent]:
Lord ORAM Lord ORAM moved Amendment No. 98:
Page 19, line 6, after ("Act") insert ("shall be treated for the purposes of the following provisions of this Act as having been granted, and").
The noble Lord said: Clause 67 provides protection for an applicant in the event of an infringement which occurs in the period between the date of publication under Clause 13 and the date on which a patent

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is granted. Under the present terms of Clauses 21 and 22 the latter date is earlier than the date on which the rights conferred by the patent take effect, this date being the date on which notice of the grant is published in the Patent Office journal. It follows that for a short period there is no protection. The Amendment fills this gap by making clear that a patent is to be treated as having been granted on the same date as the rights conferred by it take effect. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 99:
Page 19, line 11, at end insert—
("(1A) A rule prescribing any such other date under this section shall not be made unless a draft of the rule has been laid before, and approved by resolution of, each House of Parliament.").
The noble Lord said: Clause 22(1) provides for the maximum life of a patent to be 20 years beginning with the date of filing the application for the patent "or with such other date as may be prescribed." These last words have given rise to some doubts and uncertainty among those interested in patents, and the object of the Amendment is to allay any fears by making it clear that the starting date can be changed only by means of the Affirmative Resolution procedure.
Revision of the Industrial Property Convention is now being negotiated, and there is a proposal, which is much supported, to oblige the member countries to use the priority date—that is, the date of the first filing in a member country of an application for protection of an invention—as the starting date for fixing the term of patents, instead of the date of filing of an application for protection of the invention in the country concerned. With this in mind the words "or with such other date as may be prescribed" have been added at the end of Clause 22(1) so as to enable the starting date to be changed without the need for further legislation. This would be an important change, and the Government accept that it should not be made without the tighter control by Parliament that the Amendment provides. I beg to move.
On Question, Amendment agreed to.
The PRINCIPAL DEPUTY CHAIRMAN of COMMITTEES (Baroness Tweedsmuir of Belhelvie): Before I call Amendment No. 100 I should mention that, if it is agreed to, I cannot call Amendment No. 101.
Lord ORAM Lord ORAM moved Amendment No. 100:
Page 19, line 15, leave out ("may, if so requested, specify") and insert ("shall, if so requested, allow").
The noble Lord said: This is merely a drafting Amendment. I beg to move.
Lord BELSTEAD: I think this Amendment is a little more than drafting. It imposes a duty, and it is one which we on this side of the Committee would certainly support.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 102:
Page 19, line 16, after ("months") insert ("specified in the request").
The noble Lord said: This, again, is a small drafting Amendment, if the noble Lord, Lord Belstead, will agree. I beg to move.
On Question, Amendment agreed to.
6.28 p.m.
Lord ORAM Lord ORAM moved Amendments Nos. 103 and 104:
Page 19, line 19, after ("and") insert ("accordingly—
(a)").
line 21, leave out ("accordingly be valid") and insert ("be valid; and
(b) subject to section 26(5) and (6) below, an act which would constitute an infringement of it if it had not expired shall constitute such an infringement ").
The noble Lord said: Perhaps I may take Amendments Nos. 103 and 104 together. Clause 22(2) provides that, if a renewal fee is not paid when due, the patent shall cease to have effect. However, Clause 22(3) provides for a grace period for payment: if the fees are paid during the grace period, the patent is to be treated as if it had never expired. The question therefore arises as to what should be done about an act carried out during the period when the patent is ineffective which would be an infringement if the patent had not expired. The Amendments

1471
supply the answer by providing that the act shall nevertheless constitute infringement, this being justified since the grace period is no longer than six months and to let infringers escape would negative any advantage conferred on the patentee by the provision allowing extension of the time for paying the renewal fee. However, any person who in good faith begins, in the interval between expiry and resurrrection of the patent, to do an act which would infringe, or make preparations to this end, should be free to carry on without being liable for infringement. The Amendment makes this clear by referring to "section 26(5) and (6) below". I beg to move.
On Question, Amendments agreed to.
On Question, Whether Clause 22, as amended, shall stand part of the Bill?
6.30 p.m.
Lord BELSTEAD: I wonder whether I could make one or two points about this clause. Although the Banks Committee recommended a 20-year term for patents—and Clause 22(1) provides for that term of 20 years and brings our patent law into line with the EEC Directive in this way—the Government will be aware that this provision is not received by some existing patentees as being entirely fair. Existing patentees, or some of them, see the term of patents filed (after Clause 32 comes into force) extending to 20 years while their own existing patents will end after 16 years without the possibility of the ten-year extension, as was provided until this Bill was published. I admit that the 10-year extension depends on two points which one has to prove: either that one had received insufficient remuneration for one's patent or else one had suffered from war damage; and the applications under those two legs of the case did not occur very often.
Indeed, I am not rising here to ask the Government to change their mind about this length of time of 20 years; even though I think that existing patent holders have a case for feeling aggrieved to some extent. If one looks back at the White Paper, paragraph 14 says:
"Given a 20-year term, there is no justification for the present provision for extending the 16-year term in certain circumstances and the provision will therefore be abolished as Banks also recommended."
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That really is a splendid non sequitur which conveniently omits to mention that existing patentees are not going to qualify for the 20-year term at all; and, not unnaturally, some of them feel a sense of grievance.
Laying that aside, I should like to make it clear to the Government that my concern is for those people ready to file a patent application now and who may be waiting to do so until this Bill becomes law, and the Secretary of State comes to appoint a day for Clause 22 to come into operation by order. I understand that filings in the United Kingdom have run in the region of 45,000 to 60,000 patent applications a year. This Bill was ordered to be printed on 20th December last year but, presumably, as soon as the Queen's Speech in November revealed that a Patents Bill was going to be introduced some potential applicants have waited to see whether the Bank's recommendation of a 20-year term would be provided for and whether any exception would be made for existing patentees. It is not possible to guess exactly when this year the Bill is going to become law. Certainly, with the mass of Amendments already put down, the timetable is likely to be a little longer than perhaps either the Government or any of your Lordships had hoped.
I should like to ask the Government three questions. If the noble Lord prefers to write to me on them I shall be satisfied. The first question is this. Is it the intention of the Government to bring Clause 22 into operation at the very earliest date on which any other clauses in the Bill are going to become operative? Secondly, can the Government indicate when that date is likely to be? Thirdly, have the Government any cause for concern that quite a considerable number of filings are being deliberately held up in order to qualify for the 20-year term after the Bill has come into operation? It is that third question which has caused me to rise now to put these questions to the Government.
Lord LLOYD of KILGERRAN: May I support the noble Lord, Lord Belstead, in regard to the difficulties arising from the extension of patents, particularly those in existence now or those which will be filed before this Bill is passed. I should be grateful if it were possible for the noble

1473
Lord, Lord Oram, to communicate with me also on the three questions put by Lord Belstead. I would mention at this stage that at a later stage I shall be suggesting a form of extension of patents and safeguarding the interests of persons who independently have made certain experiments and investigations during the period, believing that a patent would be expiring. It would be premature of me to outline at this stage the form of Amendment that I am proposing to put forward.
Lord CAWLEY: I support the noble Lord, Lord Belstead. It is a fact that the same invention will often arrive at the Patent Office from different parts of the Kingdom at the same time. Getting one's patent in as quickly as possible is of the greatest necessity for a patentee. It seems somewhat hard luck on a patentee if he must gamble between being anticipated and getting 20 years and not being anticipated and getting 16 years.
Lord ORAM: I recognise the importance of the issues raised by the three noble Lords. I am grateful to Lord Belstead for indicating that possibly the answers could be provided more effectively in writing. I shall gladly take up this matter and let him have a letter on the matter. Noting what the noble Lord, Lord Lloyd of Kilgerran, has said, I would certainly include him in that correspondence as, indeed, I would include the noble Lord, Lord Cawley. I would point out now that there will be an opportunity later in the Bill, when we come to deal with transitional provisions, when these matters can be explored further. Hopefully, the correspondence can take place so that the discussion at that later stage can be better informed.
Clause 22, as amended, agreed to.
Clause 23 [Patent not to be impugned for lack of unity]:
6.38 p.m.
Lord LYELL moved Lord LYELL moved Amendment No. 105:
Page 19, line 22, after ("patent") insert ("or to an amendment of a specification").
The noble Lord said: This clause seems brief and fairly uncomplicated. Nevertheless, there are two small suggested
1474
Amendments and it might be for the convenience of the Committee if I speak to them together. We believe that these Amendments are in the form of clarification. They seek to improve the clause so that where a patent specification for some reason has been amended, this particular case is treated in the same way as the original patent. I think it is under Clause 24 and also under Clause 34, among other clauses, that the comptroller has power to amend a patent. It seems to us that it would be logical and would prevent any possible injustice if the amendment to that patent were treated, for this purpose in this clause, as a patent.
Dealing with the unity of the patent, we are told that unity is not necessarily a ground for objection to the patent after the patent has been granted, once the broad inventive concept has been disposed of. But, from this broad inventive concept, other claims may have been submitted as separate inventions. Once submitted, they no longer will be linked by this broad concept. If these separate inventions are submitted, we believe that there is always the chance that some, or all of them, will require to be amended in due course during search and examination. Do the Government not consider that this pair of Amendments meets the case where an inventor has to, may require to or may merely desire, with the concurrence of the comptroller, to amend his claims? I hope the Amendments clarify the clause and improve the Bill. I beg to move.
Lord ORAM: I can be quite brief in reply to the noble Lord, Lord Lyell, because we agree with him that amendment of a patent specification in post-grant proceedings should not give rise to objection on the grounds of lack of unity of invention. We accept the point that he made. At this point I would rather not accept the Amendments simply because we should like to look at the drafting of Clause 23 again with a view to putting down a Government Amendment at a later stage. In principle, I accept what the noble Lord has said.
Lord LYELL: That is admirable news and is indeed an admirable reply. I am very grateful to the noble Lord for the reply that he has given and the fact that the Government are going to be kind

1475
enough to do the drafting and see how our concept and ideas can be fitted into this clause. We hope to improve the Bill. With the kind reply that the noble Lord has given, I am pleased to beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 23 agreed to.
Clause 24 [General power to amend specification after grant]:
Lord ORAM Lord ORAM moved Amendment No. 107:
Page 19, line 28, after ("section") insert ("and to section (Amendments of applications and patents not to include added matter) below,").
The noble Lord said: This is another consequential Amendment. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 108:
Page 19, line 32, leave out subsection (2).
The noble Lord said: This is again a consequential Amendment. I beg to move.
Lord BELSTEAD: I have almost certainly missed something; but it seems to me that in cutting out subsection (2) one is cutting out a most important subsection which removes the protection to competitors who could be turned otherwise into infringers. I feel sure that the Government have dealt with this in some other way somewhere else, but I am not aware at the moment where this is. It just seems to me that this subsection, which is important, is being deleted.
Lord ORAM: I understand that this matter is picked up in Amendment No. 295. Perhaps the noble Lord would like to check that and return to the point later if he is not fully satisfied.
Lord BELSTEAD: I am grateful to the noble Lord. It is hardly surprising that I had not reached so far as Amendment No. 295; but I now have and I understand the situation.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 110:
Page 19, line 36, leave out from ("be") to end of line 40 and insert ("allowed under this
1476
section where there are pending before the court or the comptroller proceedings in which the validity of the patent may be put in issue.").
The noble Lord said: Amendments Nos. 110 and 288 are consequential. Clause 24 deals with amendments to the specification of a patent on application by the proprietor of the patent and provides that no such Amendments should be allowed when certain other proceedings are pending before the court or the comptroller. I hope that that is sufficient explanation. I am a little doubtful.
Lord BELSTEAD: This Amendment cuts out references to both infringement and revocation. I am wondering whether those two "sins" are covered by reference to the validity of the patent. I do not know whether the noble Lord can give me a reply to that. If he cares to glance at the subsection, it will read:
"No such Amendment shall be allowed under the section where there are pending before the court or the comptroller proceedings in which the validity of the patent may be put in issue".
By wording it like that, one has cut out any reference to either revocation or infringement. I am wondering whether revocation and infringement are covered by reference to validity.
Lord McCLUSKEY: If I may offer a "Stop Press" reply, I understand that the matter is picked up by Amendment No. 287 which the noble Lord, like myself, may not have yet perused with the care which it deserves.
Lord BELSTEAD: The noble and learned Lord is indeed kind. It is a mystery tour through later Amendments. Little by little we are picking up more information. I will put a ring round that Amendment and accept what the noble and learned Lord says as being true.
On Question, Amendment agreed to.
6.46 p.m.
Lord ORAM Lord ORAM moved Amendment No. 111:
Page 20, line 5, leave out ("the application") and insert ("a patent").
The noble Lord said: This Amendment corrects a drafting slip. Clause 24 is about amendment of the specification of a patent by the proprietor of the patent and Clause 24(6), which provides for third party opposition to an Amendment, should

1477
clearly refer to the application for amendment being made by the proprietor of the patent. I beg to move.
On Question, Amendment agreed to.
Clause 24, as amended, agreed to.
Clause 25 [Amendment of register and certificate on death, etc., of applicant]:
On Question, Whether Clause 24 shall stand part of the Bill?
Lord ORAM: Clause 25 deals with the rare case where it is found after the grant of the patent that the proprietor had died or, in the case of a firm, had ceased to exist before the grant was made. It enables the comptroller in this circumstance to amend the register of patents and the certificate issued to the proprietor on the grant so as to record the name of the person to whom the patent should have been granted. The clause reproduces Section 20 of the 1949 Act which appears to have been introduced in order to prevent the patent being regarded as never having been granted. This result may have arisen under the 1949 Act since because of the saving for the Royal Prerogative in Section 102(1) of that Act no person had an absolute right to the grant of a patent. It could therefore be argued that a grant to a person who at the time of grant was non-existent was really no grant at all. However, since the Bill does not preserve the saving for the Royal Prerogative, the premise on which the provision of Clause 25 is founded is no longer valid and the clause is unnecessary. In any case, Clause 25 is a provision concerning a procedural matter and not substantive law and is more appropriate to the rules. I beg to move.
Clause 25 negatived.
Clause 26 [Restoration of lapsed patents]:
Lord ORAM Lord ORAM moved Amendment No. 112:
Page 20, line 18, at end insert ("to the comptroller").
The noble Lord said: This is a drafting change which makes it explicit that the application for restoration must be made to the comptroller. At present the comptroller's jurisdiction is only to be implied from reference to him at lines 26 and 28. I beg to move.
On Question, Amendment agreed to.
6.50 p.m.
Lord LYELL Lord LYELL moved Amendment No. 113:
Page 20, line 19, leave out ("one year") and insert ("eighteen months").
The noble Lord said: With this Amendment, we come to a particular point of interest concerning renewal fees and the restoration of lapsed patents. Although I am not a patent agent and, indeed, until the end of last year I was not intimately connected with this immensely complicated subject, I am given to understand that most cases of lapsed patents occur or rather, are first noticed, when the time comes to pay the renewal fee. Assuming that neither the patent agent nor the Patent Office are habitually incompetent, or indeed that the owner of the patent is not an habitual late payer, it seems that the omission to pay the renewal fee will be noticed when the fee is tendered for the second year.
Normally, no one would tender payment early, and thus it can easily be understood that when payment is due, say, on the 1st January, 1977, the patent agent is told that he has not paid the renewal fee for 1976. I understand that renewal fee is payable within 12 months, and it would appear that the renewal fee has to be paid within the calendar year of 1976. Then, when the patent agent comes along to pay the fee for 1977, promptly and correctly, he will find that his prompt payment in respect of 1977 will not ensure that the patent has not lapsed. We wonder whether it is not reasonable for a patent agent, when paying a renewal fee—which I understand in any case may be paid up to six months after the due date—to have some small element of grace, since the act of payment will in all probability represent the first occasion when he or anyone else is made aware of the previous omission. That omission, as noble Lords will know, could have very grave consequences. Indeed, the patent could lapse and then all the procedures would have to be gone through again in order to restore it. There is also a risk that someone else might be able to obtain a patent for a similar invention, or the patent might be permanently lost.
We believe this ultimate penalty is too grave a penalty for what we regard as a

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minor oversight. I acknowledge it may well be an annoying oversight from the point of view of the Patent Office, but we should be very grateful to hear the Government's view on that ultimate sanction. We understand that the Bill proposes a 12-month period, whereas I understand that under the 1949 Act no patent lapsed if a fee were tendered within three years. Possibly three years is rather a long time: we would ask for 18 months. I beg to move.
Lord ORAM: The argument put forward by the noble Lord in support of his Amendment was that failure to pay a renewal fee may not be discovered until the time arrives for paying the renewal fee for the following year. What the noble Lord said sounded very reasonable and kindly, but I am sorry to tell him there are at least three reasons why the Government do not feel able to accept what may seem, on the face of it, to be a reasonable Amendment. First, when considering the period during which an application for restoration may be allowed, it is necessary to pay close regard to the uncertainty which is created for third parties who, knowing the patent has ceased to have effect, are themselves contemplating going into production. To increase the period, as the noble Lord proposes, would increase that uncertainty.
Secondly, under the European system, it has been accepted that applications for the restoration of rights must be made within 12 months to the European Patent Office. Clause 26 is completely in line with that, and it would be in no one's interest to adopt a different practice for the British Patent Office. Thirdly, we feel it is unnecessary to increase the period, because the Patent Office are prepared to issue reminders. Administratively, that really takes account of the points made by the noble Lord.
Lord LLOYD of KILGERRAN: I should like to add a cri de coeur to this matter over a point to which the noble Lord, Lord Lyell, did not refer. If there is a failure to pay the fee, it represents a very serious liability on the patent agent. He may be sued for negligence, and I have known very serious cases to arise because of an oversight of that kind, and the agent has found himself in considerable difficulty. Having regard to the
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fact that payment of the fee can be made six months in arrears under Clause 22(3), and having regard to the fact that the noble Lord, Lord Oram, said that the noble Lord, Lord Lyell, had put forward a reasonable Amendment in a reasonable manner, I wonder whether further sympathetic consideration might be given to some relief over this matter.
Lord CAWLEY: Of course, all patent agents take out substantial insurance policies against this kind of thing.
Lord ORAM: I am glad to have that inside information from an expert, put forward in reply to another expert. However, I did not say that the noble Lord had put forward a reasonable Amendment: I said that it sounded reasonable—which is a rather different matter.
Lord BELSTEAD: Before my noble friend speaks, I think it might be wise if we were to look at Amendment No. 114. I do not know what my noble friend will do about the Amendment, but it really asks for further jam to be put on the top of jam, in the sense that he is asking for another month to be put on top of an 18-month period. If I have any influence with my noble friend, I would advise him not to press that very far as I cannot see there is a very strong case for it. But, despite what my noble friend Lord Cawley has said, I hope the Government will give a little thought to this. If they do not want the period of eighteen months, what would appear to be self-evidently wrong is that on the very day you are paying your fee for the new year, you may be told in the same breath, or by return of post, by the Patent Office that they are very glad to have received that fee but they are terribly sorry that the patent has now lapsed because, by a matter of two days, you have run over your time.
I wonder whether the noble Lord might urge the Government to look at this again, perhaps from the point of view of importing part of Amendment No. 114 into Amendment No. 113, and giving, say, one month's grace over and above the period of one year. I think that is all we are asking for—a sensible administrative arrangement—despite what the noble Lord

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said as regards the European Convention, just to make sure that when the new year's fee is paid one does not find that by a few days one has overrun the renewal date.
Lord ORAM: That sounds even more reasonable than what the noble Lord, Lord Lyell, said, and I will give an undertaking to look at it again. I think that, if anything is forthcoming, it will be on the administrative level rather than in the form of an Amendment to the Bill. I should not like to forecast the outcome at this stage, but I will give that undertaking to the noble Lord.
Lord LYELL: I am very grateful for the support I seem to have had, certainly from one Member of the Committee. I was fascinated to hear one of the reasons given by the noble Lord, Lord Oram. I think we might be able to use that as a very interesting hook on which the noble Lord could dangle his case. I believe that the third reason he gave for my Amendment being unnecessary was that the Patent Office were prepared to issue reminders. To me, this means that they do not already do this. I was unaware that the Patent Office were prepared to issue reminders and to take some action to assist patent agents. If the Patent Office are prepared to issue reminders in due time—say, one or two months before the renewal fee is payable—this might go some way to alleviate our fears. However, when the noble Lord talked about uncertainty for third parties, I wondered whether the suggestion of my noble friend Lord Belstead, of a reasonable administrative period of one or two months, would obviate considerable expense, as well as the risks for patent agents to which the noble Lord, Lord Lloyd, referred.
If I likened the noble Lord, Lord Oram, to a bowler at cricket, I would say that he has at least removed a bail, if not one of my stumps, with his comment on the precedent in the European Patent Convention. But I would ask whether he would again go carefully over all the reasons, because the reason that the Patent Office were prepared to issue reminders was totally unexpected and this might go some way towards meeting the case. Nevertheless, I still persist in my belief -in which I believe I am supported by those on this side of the Committee—
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that the Amendment seeks something which is reasonable, and I should like to pursue these discussions further, although possibly not in Committee. With that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.2 p.m.
Lord ORAM Lord ORAM moved Amendment No. 115:
Page 20, line 31, leave out ("specified") and insert ("allowed").
The noble Lord said: This Amendment is a direct consequence of Amendment No. 100, dealing with page 19, line 15. The further period is not a period specified by the comptroller, but a period which he allows on request. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 116:
Page 20, leave out line 36 and insert ("any unpaid renewal fee and any prescribed additional fee").
The noble Lord said: This Amendment is intended to clarify the situation, which is to be the same as under the existing law. Before a patent can be restored, two kinds of fees must be paid: first, the renewal fee, failure to pay which led to the lapse of the patent, and any other renewal fee which has become due for payment in the meantime; and, secondly, such additional fee as may be prescribed. As presently drafted, the "additional fee" can be interpreted as being the same as the "additional fee" which is payable under Clause 22(3), as a condition for extending the grace period for paying renewal fees. The Amendment makes clear that it is not the same. Under present practice it is somewhat higher, being in the form of a penalty, and the intention is to continue this practice. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 117:
Page 20, line 39, leave out from ("requiring") to ("have") in line 40 and insert ("compliance with any provisions of the rules relating to registration which").
The noble Lord said: This is a purely drafting Amendment which makes no material change. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 118:
Page 21, leave out line 8 and insert ("subsection (6) below").
The noble Lord said: This Amendment is a simple drafting Amendment, which identifies subsection (6) as the provision conferring the right. I beg to move.
On Question, Amendment agreed to.
Lord LYELL Lord LYELL moved Amendment No. 119:
Page 21, line 10, at end insert ("or acts of the same nature").
The noble Lord said: This Amendment is intended to seek some clarification. At the end of line 10, we see the words "do that act", and we believe that in this context the word "act" could give rise to some ambiguity. Subsection (5) contains the words:
"a person began in good faith to do an act which would constitute an infringement",
and so on. We are seeking some explanation as to whether the mere beginning of what could be a lengthy process entitles any person to continue with that action at a certain time or place. Alternatively, does the word "act" in this context entitle that person who is acting in good faith to carry out a whole continuous series of processes, all possibly dependent on the first action?
I should not like to go to extremes and suggest that the infringement might consist of an entire chain of power stations, or an enormous chemical processing plant with a series of interrelated activities and plants. But it seems to me that there is some ambiguity in the words, "do that act", and that is why we have proposed this Amendment. We hope that it might clarify the position, and permit a more liberal interpretation to be placed upon this subsection. I beg to move.
Lord ORAM: The intention of this Amendment, as the noble Lord has explained, is to make clear that if in good faith a third party begins to do something in the period when the patent has ceased to have effect, he may continue to do it after the patent is restored without his being liable for infringement. For instance, if during that period a third party in good faith uses a process or
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makes a product covered by the patent, he must have the right to continue use of the process or manufacture of the same product. We agree with this, but we believe that Clause 26(5) and (6) has this effect. However, we are prepared to look at the point and to consider what the noble Lord has said in support of his Amendment. If on further reflection it seems desirable to make the position still plainer than we now believe it to be, a Government Amendment will be put down.
Lord BELSTEAD: Before my noble friend responds, may I ask the noble Lord this question? When I was reading Clause 26(5) and (6), I wondered about an act, which was started between the time when the patent ceased to have effect and the time when it was restored, for the manufacture of a certain kind of tin-opener, and when the person concerned, acting in good faith, had done little more than begin to install the necessary machinery in order to produce 500 tin-openers a day. I then wondered whether it would be taken that he had made, "effective and serious reparations to do such an act" if he then put his machinery into operation and produced not only 500 tin-openers a day but 5,000. From reading the text at the top of page 21, I do not know the answer to my question, and I would hazard the guess that even the noble and learned Lord, Lord McCluskey, might not give me an exact answer. It is for that reason that, if the Government feel that some extra clarification is necessary, we shall be very grateful.
Lord ORAM: I will take those points into consideration in conjunction with the Amendment and the points which have been made by the noble Lord, Lord Lyell.
Lord LYELL: Naturally my noble friend Lord Belstead presented a much | more florid example than I was prepared to give. We are very grateful to the noble Lord, Lord Oram, for the way in which he has received the Amendment and for his promise to examine it further. I do not think that there is anything else that I want to say. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.10 p.m.
Lord ORAM Lord ORAM moved Amendment No. 120:
Page 21, line 24, at end insert—
("(8) Where a patented product is disposed of by any person to another in exercise of a right conferred by subsection (6) above, that other and any other person claiming through him shall be entitled to deal with the product in the same way as if it had been disposed of by a sole registered proprietor.").
The noble Lord said: I beg to move. The Bill already provides protection against infringement actions for purchasers who obtain patented goods from a person, other than the patentee, who has a right to deal in the goods. Such protection is given by Clauses 33(5) and 111. On reflection, it is right also to give this protection in a case where the goods are obtained from someone who has a right under Clause 26(6). The Amendment that I move therefore fills a gap.
On Question, Amendment agreed to.
On Question, Whether Clause 26, as amended, shall stand part of the Bill?
Lord LLOYD of KILGERRAN: Very briefly, may I say that Clause 26 as it originally stood in the Bill caused very grave concern to practitioners in the field and also to industrialists. I should like to thank the Government very much for the improvements which they have introduced as a result of the Amendments we have discussed in connection with this clause. I should like to make the further plea, that a certain period of time should be given for a person who forgets to pay the renewal fee, a point which was discussed in an earlier Amendment moved by the noble Lord, Lord Lyell.
The noble Lord, Lord Oram, gave three reasons why he had to reject that Amendment. The noble Lord, Lord Lyell, dealt with the third one when he referred to the fact that now reminders would probably be given by the Patent Office. The second reason that the noble Lord, Lord Oram, gave was that the Bill had to be in line with the European system, and I should be grateful if he could indicate to me how he justifies the fact that the Bill must be in line with that system. Is he saying that in respect of the lapsing of a national patent the United Kingdom comptroller has no discretion and cannot have discretion because of what the European
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Convention, or the European system has laid down?
There are two aspects to many of these matters. One of these important aspects is that a national patent system is still in being. In giving as his reason that there must be harmony between the European system and the United Kingdom national system over relaxation of the general principle of giving relief to a man who forgets to pay the fee, I am wondering whether no discretion is left to the comptroller to deal, as a matter of justice, with a difficulty of this kind.
Lord ORAM: I do not think that it is an absolute requirement. I was making the point that since the European system prescribes the period of 12 months and that since a large purpose of the Bill is to bring our practice and law into line with the European Convention, it would be in nobody's interests to adopt a different practice for the British Patent Office. It is not an absolute requirement but a wish to conform if there is no strong reason against. It was in connection with this Amendment that I undertook to look at the whole question, in particular making the point that I thought that it would be an administrative rather than a statutory solution. I think we can leave it at that. I reiterate the undertaking which I gave earlier.
Lord LLOYD of KILGERRAN: I thank the noble Lord.
On Question, Clause 26, as amended, agreed to.
Clause 27 [Surrender of patents]:
7.15 p.m.
Lord ORAM Lord ORAM moved Amendments No. 121:
Page 21, line 32, leave out from ("and") to end of line 33 and insert (",as from the date when notice of his acceptance is published in the journal, the patent shall cease to have effect, but no action for infringement shall lie in respect of any act done before that date").
The noble Lord said: Clause 27 enables a patentee to offer to surrender his patent, and subsection (3) provides for the comptroller to accept the offer and declare that the patent shall cease to have effect. The purpose of the Amendment which I am now moving is twofold. First, in order to give certainty it identifies the date on

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which the patent ceases to have effect as being the date when notice of the comptroller's acceptance is published in the journal. Until that date the patent remains effective, and it follows from this that the patentee could sue for any infringement which occurred before that date. This, however, could put third parties to unnecessary expense and difficulty in defending themselves, bearing in mind that the real reason for the offer to surrender is because the patentee realises that the patent is invalid and wishes himself to avoid the trouble of an application for revocation of his patent. The second purpose of the Amendment is therefore to provide that no action shall lie in respect of any infringement before the date on which the patent ceases to have effect. I beg to move.
On Question, Amendment agreed to.
Clause 27, as amended, agreed to.
Clause 28 [Nature of, and transactions in, patents and applications for patents]:
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 122:
Page 21, line 35, leave out ("Except in Scotland").
The noble and learned Lord said: Amendment No. 122 is to leave out the words "except in Scotland" at the beginning of Clause 28, Perhaps at this hour I might be permitted for one moment to unburden myself of a matter which has been troubling my conscience since the debate began. I understand that one's geographical origin can be betrayed by the way that one pronounces the word which is the subject matter of the Bill. The noble Baroness, Lady Tweedsmuir of Belhelvie, joined the ranks of those speakers who pronounced "patent" with a long "a". I am not sure whether the present Deputy Chairman of Committees has declared himself on the matter. The noble Lord, Lord Oram, has slid from patent to join the noble Lord, Lord Belstead, who has impeccable Southern origins, and who pronounces it as "pay-tent". I hope that I shall be forgiven if I continue to call it patent.
In moving Amendment No. 122, may I refer to Amendments Nos. 124, 125, 126, 127 and 128 and also to Amendment
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No. 130. The matter here concerns Amendment No. 128 which puts in a new clause. The other Amendments remove from Clause 28 all references to Scottish legal terms. This Amendment adds a new clause to the Bill dealing separately with the nature of, and transactions in, patents and patent applications in Scotland. It is preferable to make separate provision with regard to these matters for England and Wales on the one hand and Scotland on the other, on account of certain differences in the legal concepts and terminology used in the two systems. The new clause will have as nearly as practicable the same effects in Scotland as will Clause 28 South of the Border. The separation of the provisions relating to the two legal systems into two separate clauses should also add to the clarity of the provisions. So at this stage I beg to move Amendment No. 122, and in due course I shall move the others formally.
Lord LYELL: I, too, am one of the speakers in your Lordships' Committee from North of the Border. I have been pronouncing the term "patent" with a short "a", ever since I became acquainted with this particular measure. I am sure the Committee is grateful for the very clear way in which the noble and learned Lord, Lord McCluskey, has explained to us the provisions of the new clause, and indeed that the new clause will bring the Scottish law into line with the law South of the Border. Perhaps I might be permitted to apologise to the Committee. I understand that earlier in the Committee deliberations I did not refer to the noble and learned Lord. Lord McCluskey, as being learned in the law and I hope he will take this apology in the spirit in which it is offered.
On Question, Amendment agreed to.
7.21 p.m.
Lord CAWLEY Lord CAWLEY moved Amendment No. 123:
Page 21, line 36, leave out ("(without being a thing in action)").
The noble Lord said: This is a probing Amendment. Most practitioners in the; art know of letters patent for inventions, things or choses in action. I can only imagine that now that letters patent for inventions will no longer be granted and because a new statutory right is being

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created—by implication, but nevertheless a new statutory right exists—it is no longer a thing in action, and we should like elucidation as to why this provision has been put into the Bill. I beg to move.
Lord McCLUSKEY: I hope the English lawyers present will forgive me if I venture into this field. The "thing in action" does not survive in the cold climate North of the Border. Clause 28(1) is designed to establish a code which regulates the creation and transfer of patents, applications for patents and rights in or under them. In this respect it is like Section 73 of the Companies Act 1948, which makes similar specific provision in respect of shares in companies. The appropriate provision for Scotland is Section 455 of the same Act.
The new code is tailored to the nature of patents, whereas the rules governing things in action are not and are in many respects difficult to apply to patents, patent applications and the like. Moreover, the new code will facilitate operation of the registration system provided for in the next following clauses of the Bill. In keeping with the general policy of the Bill to make as nearly as possible the same provisions in relation to United Kingdom patents, applications, and so on, as are made under the European Patent Convention in relation to their counterparts, it becomes necessary for the United Kingdom law to put it beyond doubt that applications for patents are objects of property capable of being transferred and otherwise dealt with. That is the explanation which I would offer to the noble Lord, Lord Cawley.
Lord CAWLEY: I am most grateful to the noble and learned Lord for that explanation. I do not think I can say much more. I never thought a "chose in action" was of very great importance but now apparently, in relation to patents, it has been abolished. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord McCLUSKEY Lord McCLUSKEY moved Amendments Nos. 124 to 128 en bloc,
Page 21, line 40, leave out subsection (2).
Page 22, leave out lines 5 and 6.
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Page 23, line 16, leave out from beginning to second ("and").
Page 24, line 24, leave out from ("assignment") to second ("a") in line 25 and insert ("or mortgage of").
Page 25, line 34, leave out ("or assignation").
The noble and learned Lord said: With the leave of the Committee, I beg to move en bloc Amendments Nos. 124, 125, 126, 127 and 128, to all of which I have already spoken.
On Question, Amendments agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 129:
Page 22, line 39, at end insert ("or to bring proceedings under section 56 below for a previous act").
The noble and learned Lord said: I beg to move Amendment No. 129. Under the existing law it is doubtful whether, on an assignment of a patent, the assignee can sue for infringements which took place before the assignment, since, at the time when they occurred, he had no interest in the patent and so suffered no injury. After the assignment, the assignor may not wish to pursue claims for such infringements, assuming that he has the right to do so. The subsection permits the parties to the assignment to agree contractually that the assignee shall have the right to sue for past infringements. It also permits the same right to be conferred by contract on an exclusive licensee. Thus, under the new code the point will no longer be in doubt.
Clause 53 of the Bill empowers a Government Department to use a patented invention for the services of the Crown (as defined in Clause 54(3)) and Clause 53(5) requires such use to be paid for, either upon terms to be agreed between the Department and the proprietor of the patent or, in default of agreement, to be determined by the court on a reference under Clause 56. Such use by the Government Department is not infringement of the patent (Clause 53(1)) and so the right to bring proceedings under Clause 56 for the Section 53(5) payment is not covered by the wording of lines 38 to 39 of the subsection as drafted. As it is desired to enable assignees and exclusive licensees to take contractual assignments of the right to recover payment for past Crown use of patented inventions, the Amendment is needed in order to extend

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the provisions of Clause 28(8) to such assignments. I beg to move.
On Question, Amendment agreed to.
Clause 28, as amended, agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 130:
After Clause 28, insert the following new clause:
"Nature and transactions in, patents and applications for patents in Scotland.
(.—(1) Section 28 above shall not extend to Scotland, but instead the following provisions of this section shall apply there.
(2) Any patent or application for a patent, and any right in or under any patent or any such application, is incorporeal moveable property, and the provisions of the following subsections and of section 33(3) below shall apply to any grant of licences, assignations and securities in relation to such property.
(3) A licence may be granted, under any patent or any application for a patent, for working the invention which is the subject of the patent or the application.
(4) To the extent that any licence granted under subsection (3) above so provides, a sub-licence may be granted under any such licence.
(5) Any patent, any application for a patent, or any right in or under any patent or any such application may be assigned, and security may be granted over it.
(6) Any assignation or grant of security under this section may be carried out only by probative or holograph writing.
(7) An assignation of a patent or application for a patent or a share in it, and an exclusive licence granted under any patent or any such application, may confer on the assignee or licensee the right of the assignor or licensor to bring proceedings by virtue of section 59 or 67 below for a previous infringement or to bring proceedings under section 56 below for a previous act.").
The noble and learned Lord said: This also is one of the group to which I have already spoken. I beg to move Amendment No. 130.
On Question, Amendment agreed to.
Lord ORAM: Before we pass to Clause 29, may I say that I think we have made satisfactory progress. We feel so on this side of the Committee, and I hope others do. Therefore, this might be the point to move that the House be resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

PUBLIC LENDING RIGHT BILL [H.L.]
7.29 p.m.
Lord WILLIS: My Lords, I am sorry to drag the House away from that fascinating quartet about "patent" [with a short "a"] or "patent" [with a long "a"] back to the pilgrim chorus of public lending right, but I hope your Lordships will bear with me. Standing here moving this Second Reading for what appears to be the umpteenth time, I feel rather like Omar Khayam who, your Lordships will remember, said:
"Myself when young did eagerly frequent
Doctor and saint, and heard great Argument
About it and about: but ever more
Came out by the same Door as in I went."
I feel exactly that way about public lending right.
I apologise for bringing this measure once again before your Lordships, but it is not my fault and it is not the fault of authors. The Government got to the brink with their Bill last year, but it fell at the last hurdle. Fell! I think perhaps I put that too kindly. My Lords, it was pushed. It was smothered in words. I find it interesting to reflect that the Lord's Prayer has 56 words, the Ten Commandments have 297, the Declaration of Independence has 300, but one speech in Committee on Public Lending Right had 7,516. I counted them!
I do not intend to give your Lordships many words tonight. You know the arguments. I would just remind the House of a few salient facts. First of all, I must declare an interest: I am the President of the Writers' Guild of Great Britain, which includes a great number of novelists, and I am a novelist myself; my next book will be out in May on sale at all bookshops. Now for the facts. The Bill corrects a long-term injustice. When the public library system was inaugurated many years ago, the Government provided for everyone involved except the authors. The buildings were paid for or rented; the librarians were paid; the cleaners and everybody else involved in the free public library service were paid—all except authors. We had to provide our services virtually for nothing. In effect, the rights of authors were taken away from them by the free public library system.

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This Bill restores their rights. It does not ask for handouts; it does not ask for charity. It simply establishes the principle that each time a book is borrowed from a public library and gives the customer pleasure, the author is paid for giving that pleasure, as the author is paid in the theatre, as the composer is paid in the opera house or concert hall. All the major political Parties agree with this and have declared in favour of the principle.
What the Bill is not, is anti-public library. It would not, if passed, in any way harm or dilute the public library system, of which we are rightly proud. All we are saying, quite simply—and we have said it, God knows! for the last 25 years over and over again—is that if the nation wants a free library system, just as it wants a free National Health system, it must pay for it, and it must not expect authors to go on and on giving this secret hidden subsidy to the public libraries.
Secondly, we are not asking the public to pay at the library counter, despite the fact that they already do so, quite cheerfully it seems, for cassettes and records and so forth, not a penny of which, of course, finds it way back into the pockets of the authors, composers or musicians who provide those cassettes or records. Money will come from central funds, and this has been agreed. What is more, such is the monumental patience of authors that we have said that we do not want the money immediately; that we recognise that the country is in some kind of financial difficulties. From the passing of this Bill it would take something like a year or 18 months to enshrine this principle, to get the organisation going and begin paying out authors.
The third point is that the operation of public lending right has been the subject of close study both by the Government and the writers' organisations, and we are informed that there are no great technical difficulties to prevent the smooth operation of the scheme. If Parliament enacts this measure, as I say, public lending right could become a reality in about a year to 18 months.
My Lords, those are the basic facts, and I will not weary your Lordships by going into the Bill in any detail clause by clause, because I think we have done that before. Essentially, the Bill the Government
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support is the Bill which is before your Lordships' House; it is the Bill which went through this House and was amended in the other place. It is not quite the Bill—I must be honest—that the authors would want. We regret the fact that it mentions "books" instead of "works", and that it is not clear on the question of reciprocity for overseas authors. But these are things we are prepared to forgo because we are so anxious to get this principle put on the Statute Book. That is what we want. I hope that the House will give it a quick and clean passage. It would be improper for me to suggest to your Lordships that you should not put down Amendments, but I hope that my friends on all sides will restrain themselves in this matter, and that even tonight we can have short speeches and get this Bill through quickly. There is a slender chance, we are assured, that if time does make itself available in another place, the Bill, if passed here quickly, can go down there and take its normal course.
May I say in conclusion, my Lords, that authors have been enormously patient and it is time they were given consideration, and more than consideration, on a matter of simple justice. I leave your Lordships with one final thought. Some people have said that this is another way of giving money and handouts to authors, to a lot of long-haired, wild-eyed artists and so on. The other day a pamphlet came through my letterbox from the National Coal Board proudly proclaiming that coal helps the balance of payments by £100 million a year—£100 million a year from the mining industry. Fine. But, my Lords, that is more or less what authors bring in to the balance of payments in this country. From our book sales abroad, from royalties and so on, it is very close to £100 million a year contribution to our balance of payments. And what do we need? Our factories run here. We have pencils and pads and typewriters. We do not need expensive machinery or enormous investment. All we need is our rights, and this is what this Bill will provide. I beg to move.
Moved, That the Bill be now read 2a.—(Lord Willis.)
7.37 p.m.
The Earl of GOWRIE: My Lords, as the noble Lord, Lord Willis, has implied, there is a slightly depressing air of déjàvu about this third Second Reading of a

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House of Lords Public Lending Right Bill in less than two years. It may be that a little cynicism about human affairs is a necessary seasoning for literary talent; certainly authors may be justified in feeling both cynical and sceptical about the progress of a Bill designed to redress a grievance which many of them share. We are all permitted to disagree among ourselves as to what may be the best means for redressing the grievance, but I believe that it is generally recognised that authors have had a bad deal from the free lending policy of our public libraries. It really is time, therefore, that something was done about this bad deal; indeed we are long overdue, as witness the almost monotonous frequency with which Bills of this kind are introduced in Parliament with a great flourish and fanfare of good intentions, only to sputter out and die a month or two later. I should like to congratulate the noble Lord, Lord Willis, for his persistence and patience in hammering this cause home yet again, even as I commiserate with him in recognising that the response of the noble Lord, Lord Donaldson, the Minister for the Arts, will be a more or less coquettish variant of the theme of "Not tonight, Josephine".
My Lords, the Government's record on public lending right is not really very good. It is no use, either, for them to say that there are Conservative reservations about the Bill—most of which I myself share, and some of which I shall come to in a few moments—or that Back-Benchers on the Opposition as well as the Government side in another place did not help the passage of this Bill's predecessor. It is surely the business of Governments to get their business through, or to modify it so that it does get through, or to drop their commitment to any particular piece of business if they do not think it can or should go through.
We on this side are unequivocal about our desire to improve the lot of authors. If we had won the Election of February, 1974, my right honourable friend Mr. Norman St. John Stevas would have introduced a Bill along these lines very rapidly, building on the good work of my friend, the former Member for Ipswich, Mr. Ernie Money, and indeed with the backing of the then Secretary of State for Education, who later, of course,
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became the Leader of the Opposition. My right honourable friend's successor as Minister for the Arts, Mr. Hugh Jenkins, whatever else we on this side may feel about him, did get a commitment to public lending right into the Queen's Speech. The Conservatives echoed this commitment. They made a commitment to PLR in their policy document The Right Approach, which was published last October. The noble Lord, Lord Donaldson, as the responsible Minister, is known for his support of PLR and not simply, I am sure, because he happens to be married to a highly successful and, if I may say so, very readable authoress. In short, we are all on the side of light; yet we on this side suspect that this Bill will fail in the House of Commons and that the authors will be left in the dark yet again. Why should this happen, and why should we allow it to happen? There seem to be two answers to that question. One is a matter of personality and politics; the other is a matter of principle.
I do not for one moment blame the noble Lord, Lord Donaldson. He is not in the Cabinet; he is a junior Minister in the Department of Education. Indeed, in my opinion there is something to be said for having the Ministry for the Arts moved to the Department of the Environment because junior Ministers there, being responsible for housing, transport and the like, have more clout than is possible in a smaller Department such as Education. The noble Lord is not in the House of Commons, where his powers of persuasion could tell, but in this House, where on this subject at any rate we are all in relatively close agreement.
I do, however, blame Mr. Foot, the Lord President of the Council. Time and again he has told parties interested in PLR -his fellow authors in fact—of his commitment, and time and again he has gone back on it. Some of us may think of him, to put it at its most polite, as an indifferent Minister; but none of us would deny that he is an extremely powerful one. When he was Secretary of State for Employment he initiated very section-ally-interested and sectionally inspired laws. When he became Lord President he had to deal with the consequences of such legislation on his Parliamentary timetable.
My Lords, the Government have re fused to compromise with their minority

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status and drop contentious legislation. No wonder then that they have lost control of their Parliamentary timetable in another place, let alone business like the PLR Bill, on which there is inter-Party agreement. Perhaps the Lord President is unaware that the TUC Working Party on the Arts-no less, my Lords!—has written:
"The introduction of legislation to provide authors with a fee for loans of their work from public libraries is very welcomed by the Working Party since it will do much to lessen the effect of commercial pressure on creative writers and give them a more just return on their work."
If the noble Lord, Lord Donaldson, would draw this positive if somewhat optimistic, approach to the Lord President's attention, I suspect time could be found in another place for the Bill of the noble Lord, Lord Willis.
The other problem is more fundamental and I am afraid less ephemeral than the Lord President. It is that the Bill is not a very good one. It is not good through no fault of the noble Lord, Lord Willis, nor through the fault of the Parliamentary draftsmen. In my view it is impossible to reward authors at all appropriately, let alone reward them fairly, for loans of their books, so long as our society clings to the concept of absolutely free libraries. This concept is an honourable one but it is a legacy of Victorian paternalism, wretched low wages and cultural deprivation in a newly industrialised society.
The way to pay authors for the loan of their books is not through a central fund and Government expenditure programmes, which, as we all know, are liable to the vagaries of political and economic weather. It is not through an administrative system which will need to claw back £400,000 of every £1 million designated—and I understand that £1 million is the figure being designated. The cheapest, most effective and most equitable way is by charging, say, 5p per book borrowed and returning 4p to the author or the holders of his copyright. The authors themselves would be only too pleased to form or adapt a guild or society to attend to the problems of distributing the monies so consigned. We all know of the ease with which we can exempt such special groups as students and pensioners from such a scheme. However, as the noble Lord's predecessor, Mr. Hugh Jenkins, has told us, free libraries are a sacred
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principle; I am afraid I should have to translate that into the phrase "sacred cow".
Few things have depressed me more in recent years than the opposition of the museum establishment to the Heath Government's introduction of museum charges—charges which, as my noble friend Lord Eccles knows, were worth many times their weight in increased block grant. Until we in this country shake off our rather elitist and paternalist hangover, learn to trust the consumer and allow him to earn and retain more money, all our public institutions, let alone our museums and libraries, will crumble through the effects of high taxation and high inflation. And speaking of taxation: if we want to help authors, why do we not also do so through the fiscal system, as the Irish do?
In spite of these reflections and reservations, I give a modified welcome to the Bill. It will not in my view get on to the Statute Book. There is the rather sinister phrase in Clause 3:
"As soon as may be after this Act comes into force, the Secretary of State shall prepare the draft of a scheme…"
I have never read a Statute which contains the phrase "as soon as may be ". If the Bill does get on to the Statute Book, in my view it will not put much money into the average author's pocket. Average annual sums ranging from 5p to £10 have been calculated. Nevertheless, as my noble friend Lord Elton said from this Box during the Second Reading debate last time round—or was it the time before that?—this Bill is at least a framework for a framework—that is to say, for the scheme—for something which authors want and which both political Parties are in honour bound to provide. Perhaps not until such legislation reaches the Statute Book and we are able to see its limitations in action shall we on all sides see a better way to allow authors to claim some of the money we owe them.
7.47 p.m.
Lord McNAIR: My Lords, it was in the Second Reading debate on the Public Lending Rights Bill last year that I addressed your Lordships for the very first time. Therefore I, too, this evening have a strong feeling that this is where I came in. I appreciate that for some noble Lords

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this déjà vu sensation must be even stronger as they will have taken part in the debate when the noble Lord, Lord Willis, introduced yet another Private Member's Bill two years ago.
I must admit that I do not find this familiarity particularly helpful. One does not want to repeat oneself and yet the case must not be allowed to go by default. Every year that passes with no PLR only increases the need for it and the injustice of denying it. I must, again, declare my personal interest, however small, in the measure. I must also congratulate the noble Lord, Lord Willis, on his persistent and eloquent advocacy of this cause. We are so polite in this place that, when one wishes to congratulate someone, it is rather difficult to make it clear that one means it. I hope that the noble Lord will believe that I greatly admire the way in which he has stuck to his guns. However, I am sure he would agree that it would have been even more an occasion for congratulations if his perseverance had been no longer needed. We could have had a Public Lending Right last year if one or two people—not in this place—had been able to resist the temptation to show off. That was not to be. So we have to start all over again, and once more it is my welcome duty to assure the House that I and my colleagues on these Benches support this Bill all the way, and I think I should say with a little more enthusiasm than I detected in the speech of the noble Earl, Lord Gowrie.
We have not changed our minds since the days when we used to throw all the weight we had behind the never to be forgotten efforts of A. P. Herbert. We still believe that a public lending right in some form or other is a right too long denied, and that it could eventually do something to improve the lot of authors and thereby bolster the defences of the written word, perhaps even of literacy itself, against all the forces which are threatening it in this electronic age. Another thing I must not fail to say is how much I am looking forward to hearing the maiden speech of the noble Lord, Lord Kilmarnock. I can assure him that in only a few minutes I shall sit down and leave the floor to him.
I said that a public lending right in some form or other had been too long denied. It has not always been seen in the form in
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which we see it in this Bill, which is, of course, apart from a notable improvement in the wording of the opening subsection, the same Bill that we discussed last year. I have a feeling that this may be the last chance for PLR in this form. I hope that if we can send it to that other place at least two months earlier in the Session than we were able to last year, then it may be on the Statute Book by Christmas. But if that does not happen, I shall be surprised to see this form of public lending right before your Lordships again.
If I sense the changing climate correctly, I think we would more likely find ourselves back with the "penny on the counter" idea which, in some ways, makes more sense but also arouses much fiercer opposition. I think that that is the direction in which things are moving. I prepared these remarks with no idea that the noble Earl was going to say what he did; but that seems to me to confirm my belief. The conclusion that I draw from this is that if we want to avoid a complete waste of all the work that has been done by the Technical Investigation Group, the Writers Action Group, the Society of Authors, and by many individuals, some of them in this House, then there is absolutely no time to be lost and we must pass this Bill with the maximum despatch.
Before I sit down, I should like to ask two questions. First, may I ask the noble Lord, Lord Willis, whether he is sure that it is wise to name the sum of £1 million in Clause 2(2), as we all know it to be both inadequate and unobtainable. Is it included in the Bill in an attempt to disarm our opponents? Is he quite sure that it would not be better to leave the sum unspecified? Perhaps when he is winding up he could give me his thoughts.
My second question is addressed to the noble Lord, Lord Donaldson of Kings-bridge, the Minister who will be replying for Her Majesty's Government. I was not able to give the noble Lord any warning, and if he regards this as "a fast one" I apologise and withdraw it at once and will wait for an answer on some other occasion. He probably will be able to take it in his stride. When I was rereading our debates of last year I thought I detected a certain confusion in our thinking. It may only have been in my thinking, but I should be grateful to know what other noble Lords think. We were all most insistent

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that PLR was not a subsidy, not a charitable handout; it was a payment of a wage for work well done, and so on.
At the same time we were assured that at a time of such economic stringency the £1 million could not possibly be found. Yet in that same debate many speakers were congratulating the noble Lord's predecessor—I think I have this right—on having found an additional £10 million to add to the £22 million which the Arts Council had disbursed in subsidies and helpful handouts to no doubt very worthy people and organisations in the year then ending. I find this puzzling. I should be most interested to know how the noble Lord the Minister for the Arts sees the claims of public lending right in relation to the claims of the Arts Council. How do the priorities arrange themselves in his eyes? I shall no longer deny you the pleasure of hearing the noble Lord who is addressing you for the first time, as I did myself in the equivalent debate last year. I am sure that we shall give this Bill its Second Reading tonight.
7.56 p.m.
Lord KILMARNOCK: My Lords, in rising to address your Lordships' House for the first time, I must beg not only the indulgence customarily and generously accorded to a maiden speech but additional indulgence on account of the lateness of the hour and the history of the Bill, on which much discussion has already taken place. But I shall be brief. My qualification for intervening at all is slender but it does exist. I have published three books and hope to publish others. My personal interest—which I should like to declare—is extremely limited, for even if I climbed from the ranks of "little borrowed" authors into the lower middle rank, it appears that I should be unlikely to receive more than £10 or so per annum under the provisions of the Bill. But this, at least, has the advantage that I can speak from the standpoint of an author without, I hope, giving rise to any suspicion that I am feathering my own nest.
Now £10 will not keep me or anyone in business as an author, but hope is held out that some writers in the middle to upper ranges of popularity might receive sums in three figures. Here we do move into an area of relevance for an author,
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for such sums even today could be of the greatest importance in freeing a vital extra week, or even a month, for the completion of a significant work. Authors have many adverse factors to contend with. I propose to mention only a few. First, publishers' advances in the case of commissioned books are seldom sufficient to cover the cost of writing them, particularly if any element of research or travel is involved. Then, grants from the Arts Council to writers of creative work run at only about 1 per cent, of their budget; I think the figure was £289,000 for 1975–76. Literature, therefore, is the poor relation of the Arts. Furthermore, the amount of cushioning of writers by universities through sabbatical years of paid leave in general extends only to a very limited number of authors, naturally in specialist fields.
There may, of course, still be some who hold that authors ought to be left out in the cold, that it is good for them, that the weakest will go to the wall and only the strongest survive—which will be a good thing, as too many books are written and published anyway. I am not remotely suggesting that this line of thought is likely to commend itself to your Lordships' House. I am simply trying to foresee the objections which this Bill may yet give rise to and must overcome if it is to get on to the Statute Book.
I do not see how such a view of authors of books can possibly be sustained at a time when libraries and reading matter in general are becoming of increasing importance because of the increase in leisure which has already taken place this century and which will continue, because of greater longevity and even, it must be said, because of greater redundancy and the corresponding need for re-training and for the re-launching of people's interests in new directions. Books are vital in adolescence, during higher education, when out of work and during retirement, some of the problems of which were interestingly and movingly expressed in your Lordships' House the other day. Are not great efforts being made at this present time to promote literacy through an Adult Literacy Campaign? Thus, the author's role in life can hardly be said to be parasitical.
It may be said, "If we must have authors, let the users pay for them; let

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habitual readers buy season tickets to libraries ". Despite what has been said to the contrary this evening, it was not my intention to be controversial and I made my notes before I had the honour of hearing the noble Earl, Lord Gowrie. Libraries are against this; half the users would be students and pensioners and they would have to be excluded. It would also go against the great principles of the Libraries and Museums Act, on which our use of these vital props of a civilised society are based.
How, then, are we to assist the struggling author, a member of society who, we discover, somewhat to our surprise perhaps, is not a luxury but a necessity? As we have seen, we cannot make him a charge on the individual borrower. I believe there is no solution but a public lending right, and I feel there are very adequate grounds for a wide consensus of all people of good will and good sense, of whatever Party or no Party, on this point. Of course, what is provided in the Bill will certainly not allow any author to put his feet up and wait for the annual PLR cheque to come in. All it may do is to provide some of the more deserving and hard-working with a little additional help to achieve what all true authors want, which is simply the ability to survive and go on working. The best authors do not want more than that.
With this in view, I very much hope that when the detailed scheme comes before Parliament the payments will be so devised as to make a meaningful, if modest, contribution to the capacity of serious, hard-working authors to support themselves and their families while continuing their work. The scheme should not offer a large bonus to authors already financially successful, and I do not believe that this is the intention. Both a tapering scale and a fixed maximum have been discussed in order to prevent the most heavily borrowed authors from scooping the fund. Whatever solution is eventually adopted, I submit that its net effect should be to spread meaningful payments over a broad range of authors with, I would suggest, a maximum of £500 a year for any one author so long as the fund is pegged to £1 million, less expenses.
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I am not sure if it is inappropriate to say this, but I think it is considerably to the credit of the Government that they have continued to give the Bill their blessing in its present form. Naturally, the proposals as they stand have given rise to thoughts about the rights of composers, performers, sculptors, painters and others who contribute to the quality of life in this country. At one stage, some noble Lords thought it would be only fair to substitute the wider term "works" for "books", and while respecting the generosity of their motivation, I feel it is liable to be counter-productive for several reasons.
First, there is the purely practical one of the limited amount of money that will be available for distribution. Second, records, cassettes, slides, films and other audio or audio-visual material would require a completely different scheme, if indeed one could be devised at all, and the extra cost would be out of all proportion to the benefits to be derived by anyone. Painters and sculptors certainly have a claim on the community, but their situation is fundamentally different from that of authors of books. I number several painters among my friends and I could expand on this, but time does not permit me to do so.
Although the supporters of "works" were undoubtedly acting on the highest principle of equity among the creative arts, the greatest objection to the term is the way it lays itself open to misconstruction by opponents of the Bill, for whom it all too easily becomes the subject of prolonged quibbles about what is and what is not a "work". This led in large measure, so far as I could see, to the loss of the predecessor of this Bill. If it is still claimed that "works" should be in the Bill so that the right can be extended to other branches of the arts at some unspecified date in the future, my simple fear would be that such a wide enabling measure, particularly if it had no financial provision, would remain on the Statute Book as an expression of good intentions which succeeding Governments might well not see their way to implementing.
There are, of course, bound to be some divergent views on the scope the Bill should have, the categories to which it should extend and the funds with which it should be endowed. But because we

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cannot do all the good we should like to do, that is not a reason for doing none at all, and the opportunity we now have to do some good may not be speedily repeated. I would in fact go so far as to say that this is still, and just, a historic juncture between the energetic promotion of the authors' cause by the noble Lord, Lord Willis, and others on the one hand, and the civilised disposition of the Government to come to an accommodation with these legitimate aspirations.
My Lords, I thank you for your patience. I will end by saying only one thing more: let us not miss this opportunity; it has already knocked more than twice.
8.7 p.m.
Lord VAIZEY: My Lords, I wish at the outset to congratulate most warmly the noble Lord, Lord Kilmarnock, on his maiden speech, which was very eloquent and convincing, and I am sure that your Lordships will wish with me that we shall hear from him frequently in future on this and any other topic he cares to address his obviously well-informed mind towards. I must, like everyone else who has spoken in this debate, declare an interest in that I am an author and my books are borrowed from the public libraries. Furthermore, I am represented in this House by my leader, because I am a member of the Writers' Guild and where my leader goes there go I. I should also like to renew the congratulations which have been extended by other speakers in the debate to the noble Lord, Lord Willis, for his tireless furthering of this necessary Bill, and I wish to pay tribute to those angels behind the scenes, Miss Brophy and Miss Duffy, without whose efforts the Bill would certainly not have got as far as it has now.
I think there is little controversy in your Lordships' House or in the country at large about the principle behind the Bill, and I was slightly edgy at the thought that the noble Earl, Lord Gowrie, raised the issue of charging at public libraries at this stage. There may well be a theoretical case, which I know the noble Lord strongly believes in, for the free market operating in such a way that nothing is free and everything is charged for, but I think that that general argument of a philosophical kind can only at this stage jeopardise the passage of the Bill by enraging the librarians who, despite their other admirable
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qualities, appear totally to be unable to understand the literature which is issued in connection with the furtherance of the cause of the Bill.
I share very strongly with the noble Lord whose maiden speech we have just heard the belief that the maintenance of the free public library in this country is a necessary part of the maintenance of such part of the civilisation as remains with us, and therefore I hope very much that rather than take the step towards charging for public libraries we shall in fact take the step of enacting this Bill which gives, first of all, a token payment to authors, but which paves the way for a proper way of paying authors in the long run for the contribution which authors of all kinds make to the permanence and perpetuation of civilised values at a time when the values of evil people are rising on all sides about us.
What the Bill does is to set up the machinery by which authors can be paid a just reward for their labours, which is only fair, right and proper and is supported by the TUC and by every major organisation in the country which is concerned with the equitable distribution of income. It has the Government's blessing and, we know, the very strong! support of Mr. Hugh Jenkins, the noble Lord's predecessor, and the present Minister for the Arts, the noble Lord, Lord Donaldson, who has laboured hard and long in this worthy cause.
Though I shall not detain your Lord-ships long because we want to get the Bill through as soon as possible, I must say in all seriousness that if the Bill does not pass in another place I very strongly share the fears of the noble Lord, Lord McNair, that we shall see the beginnings of a demand for an end to the free library service. I would go further: I think that a very small but influential section of the community will become increasingly disillusioned with the democratic Parliamentary process. The thought that a Bill supported by all sides in this House and the other place can be held up by the antics of three people of a kind that I would not wish to refer to in your Lordships' Chamber in language that would be acceptable to your Lordships, is calculated to bring Parliamentary democratic institutions into disrepute. This kind of filibustering has no place in serious

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debate about serious matters which are not controversial between the major Parties. It is perfectly fair for one major Party to try to stop another major Party from getting controversial legislation through, but this legislation is not controversial and Parliament exists to see that the law is put right in the public interest. That is what the present Bill seeks to do. With that, I sit down in the fervent hope that the efforts of my noble friend Lord Willis will be rewarded.
8.12 p.m.
Lady KINLOSS: My Lords, I should like to congratulate the noble Lord, Lord Kilmarnock, on his excellent maiden speech. I hope that we may hear him again soon in your Lordships' House, though I am sure he will agree with me that it should preferably not be on yet another Second Reading of the Public Lending Right Bill.
Once again—now, for the third time—I find myself speaking on the Second Reading of a Public Lending Right Bill. The whole thing puts me in mind of that very successful play The Mousetrap, which has been going for more than 25 years and has had more than 9,000 performances. My heart trembles for the noble Lord, Lord Willis, but I am sure that other noble Lords who have spoken are, like myself, hoping not to have to speak as many times.
I do not want to repeat anything that I have said before on two previous occasions, but there are several points that require mention. Of the two preceding Bills, the noble Lord, Lord Willis, withdrew his Bill because the Government gave an assurance that they would introduce their own Bill. This they did, as we all know. Unfortunately, the Bill did not get through in the other place. Let us hope that this time it has more luck.
I feel that each time a Public Lending Right Bill is drawn up so it is improved. In Clause 1(2), it is a question of the books in which public lending right is to be held to subsist. This is obvious enough in the case of books that are lent in such a way that they may be taken outside libraries. But, if the words "public lending right" have any meaning at all, there is also a kind of loan that takes
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place inside the reference sections of public libraries for, although borrowers may not carry the book outside the library, it is nevertheless lent for use inside it. I hope that at the Committee stage we may perhaps obtain a clearer definition and that, when the Secretary of State's scheme or schemes are presented, the sharp distinctions made in the last two Bills between loan works and so-called reference works will have disappeared.
In the City of York public library an official sits and photographs the code number inserted on the inside of the back cover of each book together with each borrower's card. It would surely be just as simple to install a camera in the reference section. There are, of course, other ways of determining the frequency of use of reference books. It is obviously impossible for the Secretary of State to tag particular books into particular categories. The so-called reference books—dictionaries included—can be borrowed from the open shelves of the mobile library which halts near my house every Wednesday. The only difference occurs when the same book that the mobile library lends out is placed under restriction in a reference library.
I am glad to see that there appears to be no restriction on joint or multiple authors. I find only one question to put to the noble Lord, Lord Willis. Clause 1(7)(b) provides that the scheme for public lending right shall be "transmissible by assignment or assignation". "Assignment" I understand perfectly well. But "assignation", if the noble Lord, Lord Willis, will forgive me, reminds me of an opera in which there figures a certain Private Willis and in which a very adequate definition of the word "assignation" is given by a certain noble Lord—by name Tolloller—as follows:
"I heard the minx remark,
She'd meet him after dark,
Inside Saint James' Park
And give him one!"
Perhaps the noble Lord, Lord Willis, would enlighten us as to the assignation to which he refers!
8.17 p.m.
The MINISTER of STATE, DEPARTMENT of EDUCATION and SCIENCE (Lord Donaldson of Kingsbridge): My Lords, I am very glad that we should end

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this discussion by a quotation from a very famous and much loved opera. It is really rather sad for me, as it is for all of you, to be at it again as we are tonight. I think I have seldom been more angry than I was when I observed the treatment the previous Bill got in another place where, as three noble Lords have said, the Labour Party, the Conservative Party and the Liberal Party had all expressed themselves as in favour of it, but three individuals-one of ours and two of yours, if I may so put it—used the old-fashioned Irish technique of deliberate filibustering. One of the glories of a free society is that one occasionally runs into things one cannot control. What these people did was perfectly legal, and I do not see how Parliamentary procedure can be altered to stop this kind of thing except by timetable agreements between the Parties which are very difficult to attain. It was very largely the fact that the Government realised that, if they were to give time in the Commons for this Bill, there was absolutely no guarantee of what time they would require, that made it so extremely difficult for them to do so.
Our commitment to the principle of public lending right remains as firm now as when we introduced our own Bill, which I had hoped to be able to reintroduce here and which closely resembled the present Bill. It is the pressure on the legislative programme that has prevented the Government from reproducing the Bill in this Session, so I am delighted to give support to my noble friend Lord Willis, as I could not do it myself; to support his initiative and to affirm our support for the principle. I wish him every success in this venture. He has shown how well he has been able to master the intricacies of a subject which is full of pitfalls in practice, though it is simple and challenging in principle. I am also glad to see that the Bill incorporates a number of improvements as the result of the debates in this House on the previous Bill.
My Lords, I have to say, quite honestly, that, as things stand at the moment, I do not see how this Bill will get through another place. But things can change and our intention when we discussed what would be the best course to take was that we should have the Bill alive and kicking so that, if an opportunity arose, we could force it through in another place. Let us
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also support the three Parties in controlling their maverick Members by extensive propaganda in this House and the newspapers for the virtues of a Bill of this kind. This gives a little time to work that out.
Having said that, I should like to say how very much I enjoyed the maiden speech of the noble Lord, Lord Kilmarnock. It seemed to me to be totally controversial because it was saying the opposite to Mr. Sproat, Mr. Moate and Mr. English. That is to be controversial. But apart from those three people, I think that within this House the noble Lord observed the normal rules which we expect. He managed to say two or three things which I think need saying. First, he said that literature is a poor relation. I am not quite sure that I agree with that. I think that parts of literature are a poor relation and other parts are not.
The objective of a Bill of this kind is a very simple one. It is to see that if there are two people who have a book bought by a library and one book is not borrowed for ten years while the other is borrowed a hundred times a year, some distinction is made between them. This is what the Bill is about. It is not a very elaborate or complicated idea. It does not cover all kinds of additions which could, I think, justifiably be added if they were practical. I think that the addition of works instead of books is something which one day one should like to see. I certainly think that the addition of reference books, to which the noble Lady referred, is a matter which, if a method can be worked out, might well be included later. I think the question of joint authors might be considered as well. But for the moment we are asking this House and the other place to pass a very simple Bill, with a very simple conception, unfortunately with a very expensive way—and we can find no other—of honestly and fairly finding out who ought to have what. This is one of the difficulties of the Bill.
I must say a few words about payment for books. There was, I think, some years ago, the original Brophy penny. If it had been introduced then it might by now possibly have been morally and politically acceptable. But, quite honestly, to take away something from people which they have had for years and have made such amazingly good use of is not, either morally or politically, justifiable. In any case, I think that politically it would be extremely

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awkward, as noble Lords opposite found with museum charges. But there is a reality which one would be depriving people of, and of which they are now immensely proud. This goes not only for the librarians, who would be absolutely solid about this, but it also goes for the people who use the libraries. I as an Englishman am proud of the fact that, I think, 600 million books have been borrowed free of charge in this country. It is an absolutely amazing achievement, and we have enough troubles to make it worth while occasionally reflecting on the good things that we do.
It is perfectly clear that if we were to introduce payment for books we should have to exempt school children and old age pensioners. My Department has looked at various ways of doing this and has always come to the conclusion that by the time the exceptions were made and the work had been paid for it would not be worth the candle. The Government's view is perfectly clear about this. We do not think that that is the way forward.
I was very glad that the noble Earl, Lord Gowrie, referred to the TUC report. I felt that it was a very good report; it was very forward looking in backing the public lending right, and it was a great help for us that it did. My noble friend Lord Willis has to be—otherwise he would not be where he is—a tremendous optimist. When he said one year to 18 months I thought he was being tremendously optimistic. I do not see the timescale as low as that.
What we want in putting the Bill through this House is to get an enabling Bill. Once we have an enabling Bill, which is part of the law of the land, we shall get money allocated in due course. As I told the House last time round, the money is a paper figure. It has not yet been allocated, and it will not be allocated until the Bill is passed. But once the Bill is passed the Government have an undertaking, and in due course this will come.
In the course of our previous discussions we came very clearly to the view that we must set limited objectives which we know how to achieve, and not try to do everything at once. This is the only rider of principle that I must insist upon making. Our support—by that I mean the Government's support—for the Bill is in the
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form in which it now stands and not, I must say to the noble Lady, Lady Kinloss, to any extensions or major modification of its principles. I hope that when we come to the Committee stage we will not elaborate the Bill. Getting it through in this form will be the easiest way to get it through—and even that will not be easy. Therefore I hope that we will not, for example, substitute works for books or get involved with libraries which are not public libraries, where nobody has yet found out how the effective measurement which would be fair to authors could be devised. The cost of administering any scheme of PLR which is fair is so high that to add to the complications of administration to satisfy issues of principle would spoil the effect of the Bill and might even result in failure.
With regard to foreign authors, we must be careful not to be discriminatory against our obligations under the Treaty of Rome, nor to impose a vast amount of detailed work on the system in order to try to increase the entitlement of authors in this country. But if it proves possible within those constraints to encourage reciprocation by other countries, the Government will certainly be prepared to consider doing so when preparing the scheme.
My Lords, I hope that I have not misled the House. I have been very much less forthcoming than I should like to be about the Bill. I have not given, and cannot give, undertakings about the next stage in another place. But my view is that if we have the Bill cut and dried with the full support of this noble House, with support which I hope people will perhaps try to arrange outside in newspapers and in other ways for the principles of the Bill, a situation may, by good luck, arise when it can be shoved in, and we will get it through. I have the greatest pleasure in supporting my noble friend in his Motion that the Bill should now have a Second Reading.
8.27 p.m.
Lord WILLIS: My Lords, I will be very brief. I should like to join in the congratulations extended to the noble Lord, Lord Kilmarnock, upon his maiden speech which was eloquent and provoking. I am grateful not only to the ranks of those in this House who have spoken

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but also to the ranks of those who support public lending right and I look forward to debating the matter further with the noble Lord on another occasion. There are one or two very brief points I should like to make. I want to put the record right about a point made by the noble Earl, Lord Gowrie. In the course of his speech he mentioned Michael Foot. I can say this: that nobody, but nobody, in the other place was more helpful to us when we were trying to fight against these filibusters than was Michael Foot. He was patience itself at a time when he was enormously busy. He showed himself to be dedicated to the principle of PLR, and no author could have wished for finer support. That it failed at the last stage was not his fault; nor was it the fault of the noble Lord, Lord Donaldson of Kingsbridge. As we have all heard, it was the fault of those—forgive me, my Lords, I will swallow the words.
The noble Earl, Lord Gowrie, also made one other point, which I think was probably a slip of the tongue, when he said that £400,000 out of every million— "every million", I think, were the words he used—would be "sewn up" in administration. That, of course, is not true. Once you have launched the scheme and spent the first £400,000 out of that first £1 million, collecting the next £1 million will be relatively less expensive because you will have already set the machinery in motion, and so on. So the larger the sum allocated the smaller will be the percentage of costs.
The noble Lord, Lord McNair—and, again, I thank him for his support and his eloquent speech—asked me the question: Should we name the sum of £1 million? The noble Lord, Lord Donaldson, used the best phrase, I think, when he said that it is "paper money"; and "token money" was mentioned by my noble friend Lord Vaizey. That is really what it is. It is better to have something named in the Bill, because if you do not have anything named in the Bill you may very well find yourself kicking off with a much smaller sum, even, than this rather miserable amount.
Finally, in answer to the noble Lady, Lady Kinloss—and once again I congratulate her on her persistence about reference books, which I entirely support—I would say that there is no real reason in principle
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why reference books should not be included but, as the noble Lord, Lord Donaldson, has quite rightly said, at this stage we must keep it simple and get the principle on the Statute Book, and I support that. In reply to the noble Lady's question, I am informed that "assignation" is the equivalent in Scottish law of "assignment", but if that explanation does not entirely satisfy her I would be delighted to have an assignation with her and explain it further.
My Lords, I should like to thank the noble Lord, Lord Donaldson, for his continued support and for the remarks he made. We have a clash here between the optimist and the pessimist. I am hopeful that some gap in time may open up in the other place and that the Government will give us their support on this Bill; but in the meantime I again thank noble Lords for their support and for the splendid hearing they have given to the speakers tonight.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

PASSENGER VEHICLES (EXPERIMENTAL AREAS) BILL [H.L.]
8.32 p.m.
Baroness STEDMAN: My Lords, I beg to move that this Bill be now read a second time. The question of changes in the public service vehicle licensing system in this country has been raised in your Lordships' House on several occasions during the last year or two. I myself have taken part in two debates in the past 12 months during which the matter was touched on, as I recall, in a rural context. But the last time the matter was raised in its own right was, I believe, when noble Lords opposite added certain clauses about bus licensing to the Government's Road Traffic Bill in June 1974. These represented a slightly modified version of earlier legislative proposals by the previous Administration, which had been criticised in this House and elsewhere. The Government spokesman on that occasion accepted those clauses as expressing the will of the Committee, though he made it clear that the Government still had reservations about the merits of those proposals and were engaged in discussions with the bus industry.

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In another place the clauses were removed from the Bill pending the outcome of the further consultations which had been embarked on, with all the interests concerned, about how rural transport problems should most usefully be tackled, whether by amendment of the law on the lines favoured by the Party opposite or by some other means. The main point of difference between the two Parties on this issue has, throughout the past four or five years, been on the question of consultation. The present Government have consistently been of the view that legislative proposals for across-the-board changes in this important area should not be brought before Parliament unless there has been proper consultation. Because of this, we have been accused frequently of dragging our feet while bus services decay and vanish. Yet somehow we in this country seem to have managed to retain the capacity, size for size, to carry more people about by bus than most of our European neighbours. Perhaps there is more than a little to be said in favour of making haste slowly after all in this field, where anyone who is really honest with herself or himself must surely have to admit of the possibility that there is no simple answer to a problem that has so many facets, and that it is far easier to destroy in haste than it is to rebuild at leisure.
My Lords, the series of extensive and detailed consultations begun by the Government in 1974 did take a long time; there is no denying that. It is never easy to bring together the right people to discuss matters of this kind with Ministers. They, as well as Ministers, have heavy commitments. But it was time well spent, because it meant that people had time to think and not just to react. A good deal of new light was thrown on the variety of problems that tended to be lumped together as "the rural transport problem". It became clear that although various alternatives to conventional stage bus services were being tried out or considered, no systematic effort seemed to have been made to exploit to the full the scope for flexibility in the provision of services that existed within the licensing system. There was certainly no agreement on how to proceed. What, appeared to be needed before one risked throwing out the baby
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with the bathwater was exploration of a range of possible solutions to problems that could be matched to the circumstances of particular areas.
The Minister for Transport announced the Government's conclusions in December 1975. They intended to promote a series of experiments in various parts of the country to test on the ground what could be done to help rural communities within the existing licensing system. A steering committee would be established, of representatives of all the interests meeting under the chairmanship of a Minister, to oversee the whole series of experiments; and Working Groups with similar representation would be set up in the areas selected by the committee to design the projects. A short Bill would also be introduced, when an opportunity presented itself, which would allow the effects of a modified licensing system to be tested under controlled conditions in the selected areas. This, my Lords, is the Bill we have before us today. Its provisions will allow various ways to be explored of permitting and, indeed, encouraging innovation of a kind that is not possible at the moment, without wrecking existing services that still have a vital part to play.
The steering committee is already well forward in its work on the four areas it selected—in North Yorkshire, Devon, South Ayrshire and Dyfed—and experiments will be starting on the ground this summer. The experimenters are looking at the problems of the selected areas on a broad basis. It is clear that in practice some of the experimental schemes will be within the present law, and others outside it. This is where this Bill will assist. Broadly, it will enable the Secretary of State to designate experimental areas within which the county council (or the corresponding authority in Scotland) would be able to issue authorisations for a limited period for certain transport arrangements by privately-owned cars or minibuses, or by commercially-owned cars.
Clause 1 defines an experimental area as any area designated in accordance with its provisions within which the requirements of the Road Traffic Act 1960 on public service vehicle licensing may be modified. The Secretary of State may designate the whole or part of a county

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council or corresponding area by means of an order which will be effective for an initial period of two years and which can be renewed. Before making an order the Secretary of State must consult the local authority, the bus industry and other bodies that seem appropriate, and the order is subject to annulment by either House of Parliament.
Clause 2 sets out the powers of the local authority concerned to grant authorisations, either general or special, for the use of certain vehicles for hire or reward within the designated area. A general authorisation applies to private vehicles generally or to certain sizes of private vehicles; a special authorisation applies to a specified private or commercial vehicle and is issued to a specified person. Special provision is made where there are contiguous designated areas to allow authorities to issue permits that apply in more than one area. The approval of the Secretary of State is required to the grant of authorisations, and where vehicles are used in pursuance of authorisations they are to be treated as not being public service vehicles.
Clause 3 deals with the short title, interpretation and extent of the Bill when enacted, which is not to extend to Northern Ireland. The Schedule, dealing with the attachment of conditions and various procedural matters, is applied to authorisations issued under Clause 2. Certain limiting conditions have to be attached to every general authorisation—which is granted by resolution of the local authority. In the case of special authorisations, the issuing authority has power to attach conditions relating to a range of matters including who may operate the vehicle, routes, timetables, stops, charges and so on. The local authority concerned has to have regard to considerations of safety in relation to authorisations and there are provisions for revocation.
Perhaps, my Lords, I might refer to one or two points arising on the provisions of the Bill. It may be of interest to mention some of the kinds of transport arrangements it is envisaged could be made under authorisations. The general authorisation is essentially to enable contributions to petrol costs et cetera to be made by people taking advantage of good neighbour arrangements for lifts, made over the fence.
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The special authorisation would permit various more organised arrangements to be made. These could include social car schemes, run by the WRVS, for example; many noble Lords will be aware of existing schemes of this kind, but because of the effect of the present law no fares may be charged, so, in practice, they can be run only to the extent that the cost can be met by the local authority. Offers to give lifts regularly in cars could be advertised, and money could be accepted—not with the idea of making something out of it, but simply to avoid the feeling, we have been assured many people have, that there is something not quite right about accepting lifts regularly and making no return.
The commercial vehicles would be able to carry passengers who regularly shared the cost of hiring; hire-cars would be able to operate on loosely defined routes and be hailed by passengers paying separate fares. And private minibuses with up to 12 passenger seats could be used to provide regular routes to, say, a hospital or a market town that was not served by ordinary public transport.
Commercial minibuses could not be used under authorisations. They are a different proposition altogether. If there is a need which a professional minibus operator can meet with a 12-seater, and which is not catered for by existing services, he can apply for a permit under Section 30 of the Transport Act 1968. This is an alternative to a road service licence and is dealt with under a streamlined procedure. But the operator does have to have a PSV licence—which should not be difficult for any reputable and competent professional to obtain. The essential point here is that the Bill is not intended to provide short cuts for people who want to be in the business of carrying passengers. This is a perfectly proper aim, but the licensing system is there to regulate professional activities with buses, and it should be used. It may be somewhat tiresome for those who dislike form-filling, but that is another matter.
Some of your Lordships may wonder what the connection is between this Bill and one introduced recently in another place whose title has a similar ring. They deal with different aspects of the same complex of issues. The Passenger Vehicles (Educational and Other Purposes) Bill, introduced by a Private Member in

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another place, is concerned with a separate problem, that of disentangling from licensing a whole range of activities which voluntary bodies have built up, using minibuses, in blissful ignorance of their implications in licensing terms. It is not concerned with bus licensing as a whole, as the framework for public transport. As the Parliamentary Under-Secretary of State at the Department of Transport said during the Second Reading of the other Bill last Friday, the two Bills do not conflict; there is room for both. The Government are tackling the larger problems of licensing pragmatically with the intention of seeing, with the aid of the Bill before us, what happens on the ground under modified licensing arrangements in experimental areas before deciding how to proceed for the country as a whole.
My Lords, it will be apparent from what I have said earlier that the ground has been well prepared for both the idea of experiments and for the Bill. The kinds of provision that it embodies have been discussed in detail by all the interests involved through the medium of the steering committee. It would be untrue to suggest that they were united in their views on every aspect of these; some members were concerned that its scope might be too wide, others that it was too narrow. But I think it is true to say that all the interests understand the need to explore the various possibilities that are opened up by a measure of this kind and are keen to see the results that will flow from the experiments to be undertaken with its assistance.
My Lords, I must stress this final point. The Bill is not a blueprint for general changes to the licensing system. It is a genuine attempt to probe and explore, to assemble as a result some hard evidence about what can be done and with what effect, in a field where there are views aplenty, but few facts and not a great deal of agreement. We hope that the provisions of the Bill can be applied on the ground by the late summer and that interim conclusions can begin to be drawn by this time next year. I believe the Bill will prove to be a measure that will repay the effort devoted to it, and I commend it to your Lordships' House.
Moved, That the Bill be now read 2a.—(Baroness Stedman.)
8.47 p.m.
Lord MOWBRAY and STOURTON: My Lords, not for the first time, I have to thank the noble Baroness for introducing a measure to us and explaining it. This time I can only say that although she has done her best with this problem, we on these Benches do not consider it a good enough best because the question with which we are dealing today is about the availability of transport in rural areas and it is a matter of great and increasing concern to a large number of people. Basic mobility is absolutely essential for any modern community, and although 70 per cent, of families in rural areas now possess motorcars and although it is reasonable to consider public transport in rural areas as ancillary to the motor car, there remains and will always remain a substantial minority of people without ready access to cars who will be dependent on public transport for transport to essential services. The problem is becoming more serious in one crucial aspect. I refer to the contraction of services in rural areas: to the closure of village post offices and the increasing tendency for country doctors to move into shared practices in market towns; and both of these examples particularly affect the elderly who are, of course, least likely to have ready access to a motor car.
At the same time, it is clear that traditional public transport does not easily adapt itself to rural areas. In the first place, public transport deals most adequately with regular flows and long distances; and also the increasing burden of the wage bill places traditional public services under increasing strain in areas where possible revenue is inadequate to support the services. I give an example. Last year, Oxfordshire County Council decided, in these difficult times, that it was necessary for them to subject the National Bus Company's request for revenue support to somewhat closer scrutiny. In doing so, they discovered that they were being asked to pay £330,000 per annum to support 18 rural bus services which carried a total of 75 persons per day. In other words, it would have been cheaper to buy all those 75 people a car.
Your Lordships will hardly be surprised to learn that support for these services was promptly discontinued. However, although such expenditure is indeed

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wholly disproportionate, it is still necessary to make other arrangements for these 75 persons and their equivalents in rural areas all over the country. And that there are many such persons, no one who has any contact with any rural community can possibly doubt.
In view of the seriousness of this problem, a casual observer might well ask why am I not hastening to compliment the Government for bringing forward this Bill. He might see my failure to do so as ungenerous or ungracious. But I am afraid that I cannot discover in myself much enthusiasm for this measure before your Lordships today. I am, alas! only confirmed in this view by the noble Baroness's remarks, from which it would appear that her right honourable friend has been so busy consulting, that he has only just woken up to the fact that there is an urgency as regards rural transport.
Although we on this side of the House will lend the Bill our support, and will join with the Government in passing it into law, I cannot refrain from regretting that the Government should have taken so long to do so little. Consider, my Lords: we are being asked to approve a Bill permitting experiments in these selected four rural areas. But we have had experiments in rural transport for at least 10 years. I saw some of the papers and reports concerned with these experiments when I was at the Department of the Environment, and I can assure your Lordships that they were both voluminous and comprehensive. I am sure that they have not got any less so in the past three years, however much dust may have settled on them.
It is nonsense to suggest that we need further information or further experiments. Indeed, I submit that those living in rural areas would be thoroughly justified in strongly resenting the implication of "experiment". The countryside is a living community, not a laboratory, and those living in the countryside want basic mobility not test tube transport. There is something demeaning about the whole notion of experiments, especially when the process, as I say, has been going on for 10 years and seems endless. The noble Baroness said that this was not a blueprint but an effort to probe, and in a year's time she is hoping for interim conclusions only. My Lords, I ask you!
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The early experiments were necessary; but, like any experimental phase, it should have been brought to an end as quickly as possible. The Government's failure to do so and persistence in regarding the transport problems of the countryside as a fit subject for casual "guinea-piggery" is deplorable, and the patronising implications of all this will not be lost on those living in rural areas.
Also, as I have said, there have been experiments for 10 years past. These, such as the very successful rural bus experiment at Holt in Norfolk, took place under various provisions which essentially relaxed the 1960 Road Traffic Act. Were further experiments necessary—and, my Lords, I for one would be most sceptical about this necessity, and would take a great deal of convincing—the Government ought, first, to have said why, and what they expected to learn from them; and secondly, why a separate Bill is necessary.
However, I would adhere to the view taken by my right honourable friend the then Minister of Transport in 1973, that we had all the experimental data we could possibly require, and that we could therefore proceed to legislate in a definite manner, and to construct a new framework for rural transport. We did this, quite simply, in four clauses of our 1973 Road Traffic Bill, which would have enabled the relaxation of the public service vehicle licensing requirements in rural areas, so as to permit the development of minibus services, to regularise the position of vehicles owned by charitable and voluntary organisations; and, in short, to remove the dead hand of the licensing system from rural transport all over the country, not just in four selected areas.
My Lords, we must remember that the Traffic Commissioners licensing system dates from a 1930 Act, based on a Royal Commission of 1928. The world has moved on since 1928 and 1930: in particular, as regards transport, the intervening years have seen the steady erosion of traditional services. Whereas in 1930 the Traffic Commissioners were introduced to bring a modicum of order to a booming bus industry, and to ensure that in the full flood of innovation and competition, safety and maintenance standards were not neglected, there is no likelihood today of such an on-rush of new entrants to the bus

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industry as to jeopardise such standards; least of all would this be a problem in rural areas, where indeed traditional bus services are seriously threatened. It is indeed our view on this side of the House that the Traffic Commissioners system as a whole is now in need of a full re-evaluation. In a rapidly changing world, it is hardly surprising that an administrative arrangement which has lasted for 50 years now requires rescrutiny.
But there is no need to re-scrutinise the licensing system in rural areas; it should simply be relaxed in the manner envisaged in our 1973 Bill. As I said in this House during our debate last year on the Transport Consultation Document, the position of rural transport is a prime example of the weaknesses of our present approach to transport policy. We concentrate on systems, we subsidise systems, our policy is frequently influenced by the representations of lobbies representing such systems. But the user of transport, the customer, wants a service, not a system; and this is above all true in rural areas, where traditional transport systems are wholly inappropriate; but where the licensing system prevents innovation, stifles new developments and stops, for instance, the garage owner who happens to have a minibus from making a small amount of money and help his neighbours at the same time by running a bus service on a part-time basis.
My Lords, those of us who know the countryside will be aware that one can never underestimate country people's capacity for quiet, unspectacular improvision. After all, there is many a farmer and countryman living miles from a town who, as a matter of course, acts on many occasions as his own vet, his own motor mechanic, and his own plumber and decorator. This same gift for getting on with the job that needs to be done, and finding a way to do it with the tools that come to hand, holds the key to solving many—if not all—of the countryside's transport problems, if only we allow it to operate.
Our 1973 Bill would have done just that; but it was, alas! lost with so much else in February 1974. In the intervening years, the Government have done nothing in this field. In the face of protests from the countryside, of protests in this House
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and in the other place, successive Ministers have sat on their hands. They have resembled nothing so much as the caterpillar in Alice in Wonderland who told Alice that he could do nothing for her. He could not do nothing straight away, then and there, but he hoped to do nothing very shortly. Why, then, have the Government neglected this problem? After all, it cannot be said that all their policies are dictated by cynical inaction—would that they were!
I am afraid that the answer lies, I suspect, in trade union pressure. In a debate in this House only last week, I had occasion to refer to trade union pressure; in that case, also, I referred to the origin of that pressure in demoralisation. I do not wish to broaden my remarks even further, but our transport industries are under attack; this Government have, I regret to say, consistently shown themselves to be unwilling to define sensible criteria for the allocation of scarce resources, at a time of economic crisis, and to be, alas! only too readily subject to political pressure, and only too aware of short-term political considerations, in the formulation of their transport policies.
It is, therefore, only too understandable that those in the transport industries should dig themselves in behind defensive networks; should abandon any notion of justifying their position by rational argument, and should seek only to exert political muscle and pressure. Everyone in transport is on the defensive: therefore it is only natural that the Transport and General Workers' Union should prefer a suspicious defence of the status quo than an open-handed acceptance of innovation.
But the purpose of easing licence restrictions is not to undermine traditional bus services—quite the opposite. If we succeed in regenerating public transport in rural areas, there will be more employment opportunities for busmen, not fewer, because although volunteer schemes are thoroughly desirable, especially as an expession of community concern for the less mobile, nothing can really replace the professional skills of a professional busman as the mainstay of the road passenger industry.
My Lords, we have here a shabby, tawdry little scenario. The Government cravenly bowed to pressure, and dropped

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a sound desirable measure of reform. After three years of mounting pressure and protest, they bring forward, in the most niggardly, grudging and belated fashion, an experiment. And even this experiment would not have been possible without the co-operation of my honourable and right honourable friends in another place, who have agreed to hold their Second Reading upstairs in Committee.
My Lords, I have on many occasions expressed my respect for the noble Baroness opposite; and I know that she is not responsible either for the delay or for the tawdry, half-hearted and half-baked naure of this Bill. But I hope that she will convey to her right honourable friend the Secretary of State our thoroughgoing dissatisfaction with the Bill's niggardly concession. I hope she will also tell him that our feelings will be more than echoed in rural areas. After all, people in the countryside understand wool. They know when it is being pulled over their eyes—but they might object less if it were cashmere or angora and not some shoddy piece of synthetic wool like this Bill.
9.1 p.m.
The Earl of KIMBERLEY: My Lords, I should very much like to join with the noble Lord, Lord Mowbray and Stourton, in thanking the noble Baroness, Lady Stedman, for moving the Second Reading of this Bill tonight, and to say what a pleasure it is—it has happened frequently in the last few weeks—to have debates with her. I feel I should say here, perhaps slightly tongue-in-cheek, that I wondered whether this Bill had come on so late at night because the Government had asked for the matter to be arranged in that way since they appear to be supporting private enterprise!
We on these Benches have for a long time called for a review of the working of the transport policy in this country. In another place, many pieces of legislation have been brought forward by my Party in an attempt to inject some life into the transport system of this country. But the restrictions that have been placed on rural transport by the traffic commissioners have done a great disservice to the rural communities at large. Nevertheless, we welcome this Bill and hope it will be seen as a beginning to the rationalisation of the system.
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There are one or two reservations to be made in welcoming the Bill. While we agree that the Government have taken a step in the right direction, it remains only a step and there are many more steps to be taken before we shall really enjoy a cheap, serviceable and fair system of transportation for people in both urban and rural communities. Our objections to the Bill centre around the essential vagueness of the whole conception. The Bill allows the Secretary of State to create these experimental areas when he wants to, where he wants to and if he wants to; and the decision therefore appears to lie entirely in Whitehall as to where the experimental areas are to be situated. Indeed, once a decision has been made, the Secretary of State, or perhaps the civil servants in Whitehall, will still have an absolute power over the local authority to revoke or rescind whatever transport decision has been taken in the local town hall. As the noble Lord, Lord Mowbray, has said, that is rather like Alice in Wonderland. Surely, once a decision has been taken on where the experimental area is to be located, the town hall must be allowed to deal with its own bus routes and local transport problems without Whitehall constantly looking over its shoulder. The power of Central Government is already strong in local affairs and this Bill will only increase it. We on these Benches firmly believe that local transport decisions should be made in the town hall by the elected representatives of the people, and not by people in Whitehall, who are not elected by anybody and who very often remain completely inaccessible to everyone.
Therefore I repeat that we regret the power of Central Government in this Bill; but we also regard as ridiculous—I hate to use the word, but I think I must—the length of time which has been given to the experiment. The noble Lord, Lord Mowbray, said it should not be an experiment at all. I am inclined to go half-and-half and say that two years is far too short a time to allow for the working of such an experiment, because what entrepreneur has ever entered a market knowing that in two years' time there is a likelihood that the market might be closed to him? If five years were allowed, we would think that a much more sensible time limit to be given to the experiment, if experiment there has to be. Five years would allow the entrepreneur

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to put his roots down in the market and allow him some return on his capital outlay. Without extending the length of time given to the experiment there seems to be very little point in holding it in the first place, because it cannot possibly work. I do not think anyone would be prepared to lay out capital and effort over such a short period of time.
When this Bill goes to the Committee, as I hope it will, we shall seek to impress on the Government the importance of extending the experiment to areas which are not included in the Ministry of Transport's Press release dated 28th October 1976. If this Bill is designed to allow transport experiments to take place only in the four areas of Devon, North Yorkshire, South-West Wales and South Ayrshire, it is not good enough. We shall seek to commit the Secretary of State to creating a number of experimental areas within a time limit of this Bill's becoming law. We shall seek a reduction in the power of the civil servant in local matters, and we look forward to an extension of the experimental period from two to five years.
As I said at the beginning, my Lords, this Bill is a move in the right direction, but we still have a long way to go before we get a reasonable transport system in this country. Nevertheless, we welcome the Bill, and I personally sincerely hope that it will finally reach the Statute Book in a true and proper form.
9.8 p.m.
Lord DE CLIFFORD: My Lords, I rise to address your Lordships on rural transport, as I have done on a number of occasions in the past, as the noble Baroness will remember. I have the feeling that we might at last be seeing some great creature awaking to a small glimmer of sunshine coming in the future. But from the way in which this Bill has been drafted and produced, it looks at the moment more as though those areas which are not included in North Yorkshire, Devon, South Ayrshire and Dyfed will for the next two years be rather like Bisto kids wandering down the road on bare feet, smelling the beautiful things that are happening next door to them.
I am glad to see a Bill like this. I am also glad to see the Bill which is now in
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another place, because this is another matter about which I have spoken to your Lordships earlier. But what really horrifies me—and here I agree with the noble Earl, Lord Kimberley—is this appalling situation where we have so much central control over rural transport. We are not dealing with thousands of people in congested areas. We are dealing with a number of individuals who are grouped together in isolated areas, or spread over miles of country. It is an impossible position when one reaches a stage where, every time one wants to go to one's market town, one should virtually go there at the consent of some civil servant who is situated in London, or even 50 or 60 miles away.
One of the things that we in the rural areas want to get rid of is the appalling grip of the Traffic Commissioners. Any time anybody wants to do anything, there is immediate opposition from the Traffic Commissioners, and the quicker we can relax their powers for the benefit of the rural areas, the better we shall be pleased. I do not wish to refer in detail to this Bill, because if it goes to Committee the time is coming when we shall have an opportunity to say more. The last remark which I should like to make is that, while giving a rather tepid bathwater welcome to this Bill, I can only look forward to 1978, when I hope we may see my noble friend's 1973 Bill which I trust will cure the trouble.
9.11 p.m.
Baroness STEDMAN: My Lords, I am grateful to those who have taken part, for the views which have been expressed today. I think it has been a very useful debate on what is admittedly a small but, I think, important measure—important because, if it is enacted, it will enable experiments to be carried out which hitherto have been impossible because they have been outside the law. We are now enabled to make experiments of this kind and still keep within the law.
I share the view of the noble Lord, Lord Mowbray, that mobility is one of the prime necessities, particularly for people living in rural areas. But we have gone over that ground time and time again, and now that we are trying to get something off the ground I should have thought it might have been given a little warmer welcome than it had from him today, as an indication that we are trying

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to do something. We accept that there is an urgent need for rural transport, but what we also accept is that we want to get it right when we start on these experiments. When there is a scheme over the whole country, we want to know that we have the right scheme and the right kind of ideas to work on, because needs vary from area to area and these experiments will show the type of use that is best fitted for the different areas. I really attribute the noble Lord's despondent attitude to the lateness of the hour and a surfeit of patents before we got on to road transport.
The noble Lord certainly carried the debate very much wider than the bounds of this Bill, and I do not propose to follow him into all his details and byways. But I am afraid that, as I remember it, his memories of the ill-fated licensing provision in the 1973 Bill are perhaps a little too rosy. If he would carry his mind back to the ifs and buts that were festooned around its provisions, and the promise of his right honourable friend to introduce even more conditions, he might well agree that perhaps his right honourable friend was not so much frustrated as saved by the 1974 Election.
The noble Earl, Lord Kimberley, welcomed the Bill and I am grateful for his support so far as it goes. We are certainly not trying to override the powers and duties of local authorities, and anything that we do will be carried out in the fullest consultation with them. We will also, of course, be open to suggestions from those which we have not approached. I am sure that after consultations, if the right kind of suggestion is made to my right honourable friend and they have a need, they have the means and they have the right kind of area in which experiments could be carried out, there will be no problems whatsoever about that. The whole programme of experiments is under local Working Parties who are bringing together the National Bus Company, the independent operators, the bus crews, the local authorities and, above all, the local voluntary bodies who are doing so much of this work at the moment and who are not able to get any help with their costs.
The noble Lord also suggested that our time scale was too short. Again we had the same problems when we held consultations at national level, to which I
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referred in my opening speech. Some people thought that we were taking too long a time while others thought that we were taking too short a time. The same problem has been identified in this House tonight. Perhaps I confused noble Lords by referring specifically to the four areas to which the noble Lord, Lord de Clifford, referred. These are the four areas where we have done some ground work on the experiments; they can get off the ground fairly quickly.
A number of points have been raised by noble Lords which no doubt we shall be discussing in much greater detail when we come to the Committee stage. However, I should like to stress again that the object of enabling these further experiments to be carried out is to obtain evidence on the extent to which licensing changes of the kind that this Bill permits will help in a particular situation and what, if any, might be their effects on the existing licensed services. That might then automatically lead on to the suggestion made by the noble Lord, Lord Mowbray and Stourton, that perhaps the licensing system itself will need to be looked at in more detail at some future date.
The Bill, I repeat, is not a blueprint for general changes to the licensing system and I make no apology for repeating that assertion; it needs to be clearly understood if misconceptions about the Government's aims are to be avoided. We are acutely aware of the difficulties and conflicts that bedevil the field of passenger transport and of the frustration that so many people feel because of their limited mobility and, in some cases, because of their complete lack of mobility in some areas of the country. During the Second Reading debate on the minibus Bill last Friday in another place reference was made to an elderly man who had not been outside his own house for seven years until a local voluntary body came along and revolutionised his whole existence. These are the kind of things that we can do when we are able to achieve a better rural transport system. I have no doubt that that story can be matched by hundreds of others and by stories known to Members of your Lordships' House. That is one specialised area of transport which the minibus Bill will be tackling, with Government support.

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The broader problems of transport for the public at large call for an examination of other solutions. The transport policy review is concerned with the major issues of subsidies, the organisation of the bus industry, and so on. Licensing must also be reviewed to see how far it is still apposite to current situations. But if the review is not to be conducted entirely on a hypothetical basis, then we need to try out the various possibilities and to collect the evidence from the results. That is what the Bill will help us to do and I look forward to its speedy passage through this House.
On Question, Bill read 2a and committed to a Committee of the Whole House.

INTERNATIONAL PLANNED PARENTHOOD FEDERATION BILL [H.L.]
Read 2a, and referred to the Examiners.
KENSINGTON AND CHELSEA CORPORATION BILL [H.L.]
Read 2a, and committed to a Select Committee.
WEST MIDLANDS COUNTY COUNCIL BILL [H.L.]
Read 2a, and committed to the Committee on Unopposed Bills.
PROCEDURE OF THE HOUSE
First Report from the Select Committee made and to be printed.