§ 3.26 p.m.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers)
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.—(Earl Ferrers.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]485
§ Clause 1 [Period for which plant breeders' rights are exercisable]:
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ Lord Beaumont of Whitley
Unfortunately, I was not able to be present at the Second Reading of the Bill, and therefore I have not, in accordance with the customs of your Lordships' House, put down any amendments at this stage. However, I do not think that this is a Bill that is entirely uncontroversial; indeed, equivalent Bills in other countries have caused considerable problems. I think that it would not be out of order if at the moment I were to limit what I have to say to asking two or three very brief questions, of the Minister in charge. I have not been able to give him notice, and of course I shall understand if he feels that he has to write to me, but I think that these are questions that we ought to get out of the way before we move on to the Report stage. One of the questions comes under Clause 1, one comes under Clause 2, and one comes under Schedule 1, and they are all reasonably brief.
Clause 1 is before us at the moment and, as is usually the case, the first clause is the hub of the Bill. The Government will be aware that since the 1964 legislation there has been a dramatic change in the structure of the seeds industry. The majority of small, traditional seedsmen have been taken over by large companies. For example, over three-quarters of the packet seed trade is now controlled by only three companies. Under the circumstances, it would prima facie seem necessary—particularly to a Liberal—to increase competition, rather than to give further protection to producers. Can the Government make clear what research and reports have been undertaken to demonstrate the need for, and justification of, this extension of the periods of exclusive control?
I am grateful to the noble Lord, Lord Beaumont of Whitley, for putting his question so succinctly. He said that the Bill was not without controversy. I would remind the noble Lord that it is a Bill the prime object of which is to enable us to ratify a convention, and the 1978 convention for the protection of new varieties of plants is a convention to which the United Kingdom has been a party, as indeed it was a party to the previous convention. It is true that plant breeders have become fewer in number, a matter to which the noble Lord drew attention. This is so in almost every facet of life with which we deal. Breeding is a very complicated issue, inevitably takes a long time and inevitably a lot of resources are applied to it.
Before 1964, we in the United Kingdom certainly had dropped behind because of inadequate returns to plant breeders to get better protection for their work. Clearly, it is correct that people who are going to indulge, whether as individuals or as firms, in the long-term business of plant breeding should have some protection and some remuneration for their work. This is the reason for the Bill. It is the reason for the convention to which we are a party. The noble Lord was good enough to say he was not here at Second Reading. Had he been here for the Second Reading he would have realised that the protection given under this is extended marginally and in the light of all the 486 facts which have been made known. The extension is such that it goes up to a longer period of years than before but there is no possibility of having the period extended a second time, as happens under the current legislation. The answer to the noble Lord's question is that it is the result of the convention which enables us and has encouraged us to draw up this Bill in order that we shall be fully party to it.
§ Lord John-Mackie
The noble Lord, Lord Beaumont, raised a very interesting point as to whether the reduction in the number of seedspeople has made a reduction in the number of new plants that we have. My experience as a farmer is that over the last 10 or 20 years the number of new seeds and new plant varieties that we have has exceeded the demand by a long way. In fact, it is very difficult today to decide which new variety to sow. The one point that I should like to make is that it has certainly not reduced the number of varieties coming on to the market.
§ Clause 1 agreed to.
§ Clause 2 [Plant breeders' rights in special cases]:
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ Lord Beaumont of Whitley
I have a brief question at this stage, while thanking the noble Earl the Minister for his reply to my question on Clause 1. The mention that this Bill is not uncontroversial stems from the fact that the convention he referred to is very much disliked by a great number of third world countries—and, it seems to me, for perfectly good reasons. Under Clause 2, there is widespread concern about the question of the patenting of life forms, including plant varieties. Could the Government make clear whether or not, under the Bill, it will be possible to patent a newly-discovered variety of flower or fruit discovered in the third world? I think this was raised in an article in last week's Sunday Times, which pointed out that this is not an academic possibility since scientists estimate that there are thousands of undiscovered flower and shrub varieties in the developing coutries. Under this clause, it appears that they could be literally stolen from nature, patented and become corporate property for a long period. I think we should like reassurance that that is not so.
I am aware of the view that is taken that some of the plant breeders have (as I think the noble Lord said) plundered the resources of the third world by using some of their genetic material. I do not think there is any question of plundering: it is a question of making the most of the resources which are available. It is true that when breeding is carried out new breeds appear and old ones tend to disappear, if one is not careful. The way one avoids that is by having gene banks. In the United Kingdom, for instance, the Plant Breeding Institute at Cambridge holds some 25,000 cereal varieties, and the National Vegetable Research Station has the capacity for seed of 12,000 vegetable varieties of only 34 species.
The noble Lord, Lord Beaumont, asked whether it is possible for breeders to use material of a third world country, to bring it to this country and to use it and claim rights upon it. The answer, I think—and if I am 487 wrong I will let the noble Lord know—is that it is perfectly possible for that to be done provided the discovery was a genuine discovery and provided that the plant breeder had the plant breeders' rights.
§ Clause 2 agreed to.
§ Clauses 3 to 6 agreed to.
§ Schedule 1 [Amendments of the 1964 Act:]
§ 3.37 p.m.
Lord Walston moved as an amendment to Schedule 1:
Page 4, line 15, at end insert
§ ("( ) In subsection (2) of that section for the words from "who reasonably believes" onwards there shall be substituted the words—
- "(a) who reasonably believes that the material is to be exported from Great Britain: or
- (b) who reasonably believes that the material is not to be used as reproductive material.".")
§ The noble Lord said: This is a small and somewhat abstruse point but I think it is worth raising here. I hope that the noble Earl will be able to agree to this amendment or to something very close to it because I believe that it would make this useful Bill more useful and clearer than it is at present. Section 5 A of the 1964 Act—one could almost call it the parent Act—makes it unlawful, as things are at present, when selling reproductive material of a registered variety to attach a name, other than the registered name, which is intended to distinguish that variety from other plant varieties of the same class. This prohibition does not apply if the seller reasonably believes that the material is to be exported and it does not prevent the use of a trademark or other trade name. There is a prohibition on using trademarks and trade names where such names are used exclusively with the registered varietal name. Although it is a Plant Varieties Bill, if this Bill were enacted, even this would be permissible where no greater prominence was given to the trademark or trade name than that given to the varietal name. That undoubtedly is of considerable advantage and I think we should all support the intention that I have described.
§ The question has been raised—and this is the reason for this amendment—as to the exact scope of the existing labelling restrictions and, in particlular, of the definition of "reproductive material". I think we all know in common sense what we consider to be reproductive material. We would consider a potato, or sack of potatoes, which is bought in order to plant and reproduce itself, to be reproductive material, but a sack of potatoes bought in order to put into the pot and to eat we would not consider to be reproductive material. That is not, as I understand it. how this Bill would actually be interpreted. What seems to be the case under Section 15 of the 1964 Act is that parts of plants—which, of course, means the fruits or cut blooms—would fall within the definition of "reproductive material" even where they were not to be used as such. I understand from approaches that have been made to the Plant Variety Rights Office that they are quite clear in their own minds that cut blooms and plants would be treated as reproductive material for the purposes of restrictions on labelling even where 488 they were being sold and purchased solely for ornamental purposes or to go into the pot in the kitchen.
§ Breeders' rights are intended to give the breeder the exclusive right to sell and produce the reproductive material used as such. That undoubtedly is something which I think your Lordships will support. I certainly support that. What is worrying is the criminal penalties which could well fall on someone selling material of a registered variety when that material was not intended to be used as reproductive material and was sold in circumstances which clearly precluded any such prospect. For instance, sales in garden centres or even supermarkets to domestic consumers. Specifically, for instance, there are varieties of apples which normally would be sold under the name known to the housewife but which, according to this Bill as it is proposed before the Committee, will have to be described by the trade name, which is completely unknown to the housewife or even to the amateur gardener. Those are the reasons behind this amendment. I hope that the noble Earl and the Committee will agree that, although the matter is a small one and somewhat complicated, the adoption of this amendment will improve an otherwise very worthwhile Bill. I beg to move.
I am sure that the members of the Committee who are not familiar with this particular Bill will agree with the noble Lord, Lord Walston, that his amendment is abstruse. He said that it was just a small, little amendment which he hoped would clarify the position. I think it makes it somewhat more obfuscate than it already is. He said it is only a clarification of the present legal position, because if material which is capable of being reproduced is not intended to be used for reproduction, and this is clear from the circumstances surrounding the sale, then such material is not reproductive material for the purposes of either Section 15 of the Act or Article 13 of the convention, and any sale of it will not be caught by Section 5 A of the Act.
If this opinion is correct, then the amendment as it stands will be unnecessary. If it is incorrect, as we believe at the moment, then this amendment will prevent the United Kingdom from meeting its international obligations both under the convention which we ratified in 1965 and the revised convention which we are now seeking to ratify through the passage of this Bill. So far from making the problem clearer, it makes it a little more difficult. If this amendment were accepted it might prevent the United Kingdom from ratifying the convention for the protection of the new varieties of plants, and therefore it would defeat the whole object of the Bill. I refer to Article 13.
It could also put the United Kingdom in the position of not fully implementing the original 1961 convention, which we ratified in 1965, since this contains similar provisions. These provisions are designed to protect the consumer and to ensure that anybody who buys plants may know what variety is being offered. The amendment would erode this protection. It would also reduce the protection which is offered to the breeder by Section 5A(1) since material could be used for the purpose of reproduction, even though the seller may reasonably believe that the purchaser did not intend this.
489 The proposed amendment would also reduce the ability of holders of United Kingdom rights to enforce those rights in respect of imported material. In this respect, your Lordships will recall that Clause 2 of the Bill is designed specifically to strengthen their protection in that area. I realise that Lord Walston's amendment has a serious point to it. I am doubtful at the moment whether the amendment would be a helpful one or an improvement to the Bill. If the noble Lord were to be good enough to withdraw his amendment, I shall take the opportunity to look further into the matter and see whether the point that he seeks to make could be made and, if so, incorporate it into the Bill, should that prove to be workable and proper.
§ Lord Walston
I am grateful to the noble Earl for his answer. He suggested that my few words in introducing this amendment tended not to clarify but obfuscate the situation. I shall not return the compliment to him; but undoubtedly a considerable amount of clarification is needed. The object of this amendment is a simple one: to take one example it is to enable the greengrocer to sell a Crispin apple known to the housewife as such without giving its more technical Japanese name and without committing any criminal offence, because it is clear that the apple is for the housewife and her children to eat and then to throw the pips and the core away. So long as that can be achieved in that specific case and in other similar cases, I shall be completely satisfied. I hope that the noble Earl and his advisers will be able to figure out a way of convincing us that that can be done. In the circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Schedule 1 shall be the first Schedule to the Bill?
§ 3.48 p.m.
§ Lord Beaumont of Whitley
One of the peculiar aspects about this Bill is that it is entitled the Plant Varieties Bill and in this schedule paragraph 5 states:the definition of 'plant variety' shall cease to have effect".The loosening of the definition in this way seems to be an unfortunate precedent since it opens up the possibility of the patenting of sub-species or even, by a stretch of the imagination, whole species of plants. I wonder whether the Government can have a look at this particular point, and either provide a clear reason for the inclusion of this section or perhaps rethink the possibility of producing some definition of "plant variety".
It is not only the present situation that we have to deal with. At the present time, when there is a great rate of scientific change, it is very difficult to know what forms of plants will be bred in the future. It is important that we try to get as good a definition as we can, not least because I suspect that this Bill may provide a precedent for legislation in other fields, and in the field of living organisms there are already attempts to patent whole species of micro-organisms for genetic engineering.
The current definition of "plant variety" is to be removed from the Act because in the 490 present state of the art it is no longer sufficiently comprehensive or accurate. It has not been possible to devise a satisfactory alternative. The noble Lord says that he would like a proper definition to be produced. Obviously, if such a good and clear definition could be produced I have no doubt that we would produce it. My understanding and my advice is that it is very difficult to produce a definition which will be comprehensive or accurate, and it has not been possible to devise a satisfactory alternative. But I do not think this should cause difficulty, because the rules on distinctness, uniformity and stability in Part II of Schedule 2 to the 1964 Act enable a variety to be distinguished readily. I hope, therefore, that the noble Lord, much as he wishes to see a clarification in the Act itself, will understand that this particular proviso covers the point about which he is concerned.
§ Schedule 1 agreed to.
§ Remaining schedule agreed to.
§ House resumed: Bill reported without amendment.