Plant Varieties Bill [H.L.] (Hansard, 30 November 1982)

The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers)
My Lords, I beg to move that the Plant Varieties Bill be read a second time. The Bill introduces amendments to the legislation relating to plant breeders' rights, which is contained in Part I of the Plant Varieties and Seeds Act 1964 as amended by the Agriculture (Miscellaneous Provisions) Act 1968.
Part I of the 1964 Act established the plant breeders' rights system in the United Kingdom. It provides a means of encouraging plant breeding so that farmers, growers and gardeners may be able to obtain improved varieties of a wide selection of plant species. Before the introduction of the 1964 Act, plant breeding in this country was at a very low ebb. Largely as a result of altering the law, this position has now changed, and it continues steadily to improve because the plant breeder is now assured of a fair reward for his original work.
New varieties are not produced overnight. Many years of patient work requiring high capital investment are necessary before a new variety enters the market. The plant breeder needs some assurance that, when his variety reaches this point, he will have some protection for his original work against unauthorised 1143 exploitation, as well as the means to recover his original outlay with some additional return to be ploughed back into further plant breeding. In other words, the plant breeder needs—and deserves—a form of protection similar to that which is offered in other fields by patents, trade marks and similar devices. The existing legislation provides this.
The law places no obligation on a plant breeder to apply for rights in his new variety. But if he does, then he must comply with the provisions of the 1964 Act. The duration of the exercise of rights is limited to periods which are prescribed in the Act. During those periods anyone who wants to sell reproductive material of the variety or to produce such material must be licensed by the holder of the rights. While this limitation may seem to have the appearance of a monopoly, it has always been a fundamental aspect of policy that these rights shall not be exercised restrictively. If any breeder is disposed to operate restrictively to the detriment of the industry or of individual growers or traders, then the 1964 Act provides for the issue of compulsory licences to remedy that.
The United Kingdom is not alone in seeking to encourage plant breeding. Other countries do the same. We have co-operated with them for many years under the International Convention for the Protection of New Varieties of Plants. This convention was drawn up in 1961 and was ratified by the United Kingdom in 1968. The 1961 convention was revised in 1978 and the United Kingdom is a signatory to the new convention which has already been either ratified or accepted by seven states. The 1978 convention will come into force, superseding the old one, when it has been ratified or accepted by all members of the union which ratified or acceded to the 1961 convention. The Bill which is now before your Lordships enables the United Kingdom to ratify the 1978 International Convention for the Protection of New Varieties of Plants. It also reflects changes in the pattern of trade which have occurred since our 1964 Act was amended in 1968.
Perhaps I can now explain the new provisions of this Bill, having given that brief background. I referred earlier to the prescribed periods for which plant breeders' rights are exercisable. The maximum period, which was laid down in the 1964 Act, was 25 years, and the minimum period was 15 years. There was, however, provision for one extension to a maximum of 25 years where the holder of rights can show that, for reasons which are beyond his control, he has not been adequately remunerated despite his enjoyment of those rights. Within the membership of the International Union for the Protection of New Varieties of Plants there is a clear trend for the minimum period of plant variety protection to be 20 years instead of 15 years.
Clause 1 of the Bill proposes, therefore, that the minimum period for the exercise of rights should be 20 years and that the maximum period be increased to 30 years in order to accommodate breeders of the slower reproducing species. Within these periods we propose that the minimum period for fruit trees, forest and ornamental trees and grape vines, including their rootstocks, should be 25 years. But there would be the 1144 repeal of the provision in the Act which allows for one extension of such a period. This means that a plant breeder's right will be granted for a prescribed period and for no longer. I should perhaps add that the law in no way lays down that a right must be kept in being for the whole of the prescribed period. If the customer shows no enthusiasm for the variety, then the breeder gains no benefit from his rights in it, and he will withdraw them.
Clause 2 of the Bill would enable the extension of plant breeders' rights to the imported parts or products of a protected variety, for example, cut blooms and fruit, as well as to the propagation or production in the United Kingdom for the purpose of selling such items. There have been substantial changes which have occurred over the last decade or so in the pattern of trade. It is now common practice for very considerable quantities of material—for example, cut flowers—to be imported by air from abroad. When these imports are derived from varieties which are protected in this country, not only is the value of the plant breeder's rights seriously eroded but the British grower is at a disadvantage in having to compete with cheap imports which are produced from plants on which no royalty has been paid.
Clause 3 of the Bill is concerned with compulsory licences. Section 7 of the existing Act requires the Controller, when considering an application for a compulsory licence from someone who is aggrieved by the restrictive attitude of a holder of rights, to take account of certain factors—namely, the availability of the variety to the public at reasonable prices, its wide distribution, the maintenance of its quality and the availability of reasonable remuneration for the holder of rights. There is no reference there to the supply of an export market from production in this country. We want to repair this omission.
This clause would also provide that interventions in compulsory licence applications, which involve a company in which Ministers have shares, could be made by interested persons or organisations. The reason for this provision may appear obscure. I should explain, therefore, that in 1967 the agriculture Ministers set up the National Seed Development Organisation Limited, whose primary function is to develop in this country and abroad plant varieties resulting from research which has been assisted by public funds. In view of the relationship between Ministers and NSDO Ltd., it is considered that all interested people or organisations should have an opportunity to intervene if a compulsory licence application involving NSDO Ltd., or a company of that type were received. Where this involved a request for a hearing then, in order that justice should be manifest, the law provides that the intervener may be invited to state whether that hearing should be conducted by the Controller, who is a public servant, or by a person appointed by the Controller whose independence could not be in question.
Clauses 4 to 6 of the Bill are mostly what might be termed the usual "house-keeping" clauses. I should, however, briefly draw attention to some of the amendments which are proposed in Schedule 1. Paragraph 1 of the schedule brings the act of offering or exposing for sale within the control of the plant breeder, in accordance with the international 1145 convention. This necessitates similar consequential amendments of other parts of the 1964 Act as set out subsequently in the schedule. The term "offering or exposing for sale" needs an interpretation, as some advertisements which appear at first sight to be "offers for sale" might be construed in law simply as "invitations to treat". Paragraph 4, therefore, makes it clear that the term includes any advertisement which is likely to be understood as meaning that the advertiser had plants or material for sale.
The principal effect of paragraph 2 would be to allow a trade mark to be used with the registered varietal name so long as it were awarded no greater prominence than the varietal name and would in no way, therefore, usurp the status of that varietal name. Paragraph 6 tidies up a legal point by amending the definition of "statutory jurisdiction" in paragraph 9(3) of Schedule 4 to the 1964 Act to include a reference to jurisdiction under the Seeds Act (Northern Ireland) 1965.
Paragraph 8 is largely self-explanatory. It remedies an omission from the 1964 Act of references to successors in title to the breeder or the discoverer of the variety, and it removes the administratively burdensome requirement that the form of application for a grant of plant breeder's rights—and consequently any amendment to it, however small—has to be prescribed in regulations made under the Act. Paragraph 9 would give effect to minor amendments in order to bring the 1964 Act into line with the provisions of the international convention of 1978 concerning distinctness of a variety submitted for award of plant variety rights and the previous commercialisation of such a variety.
The schedule repeals the provisions for custodial sentences which are currently provided for certain offences under the 1964 Act. That type of sentence is inappropriate for the type of offence which we are considering here. The revised level of fines which are in the current Criminal Justice Act should meet the case. I hope I have given your Lordships an adequate explanation of the purpose of the Bill. It is a short, technical Bill which should help to protect better and encourage plant breeders. I beg to move that the Bill be now read a second time.

§ Lord John-Mackie
My Lords, we are very grateful indeed to the noble Earl, Lord Ferrers, not only for his explanation of the Bill itself but for his very lucid explanation of the background and of why the Bill has been brought forward. It is quite a while since I stood at the Dispatch Box and dealt with the complexities of legal language in Bills, and I well remember that when this Bill was going through another place the now Chief Whip there came to me and said: "Do you understand the bit about roses, John?" I said, "Vaguely"; and he said, "Well, that is fine because I am in the same position." So we got on well during the Committee stage on that particular point.
The noble Earl mentioned the importance of plant breeders. I should like to emphasise that. The three bodies of people who have helped agriculture most during the last 30 or 40 years are the engineer, the 1146 chemist and the plant breeder. I would certainly put the plant breeder at the top of the list by a long way. When one thinks of what they have done for arable and grassland fanning, with the new seeds et cetera, and the enormous improvement in yields, one appreciates that farmers in the whole country are greatly indebted to these people for what they have done to improve the plants in this country.
This is a non-controversial Bill and naturally we approve of anything which helps the plant breeders. I always remember the story of a small farmer in Banffshire, in the North-East of Scotland, who bred a potato, of which a lot of Sassenachs in this House will not have heard, called Kerr's Pink. It has stood the test of time. It is a floury potato, a little deep in the eye. Having bred this potato, the farmer never expanded it at all. He just bred it and grew a few for himself. But a neighbouring farmer saw the advantage of it. He bought his stocks and developed them and so made a lot of money. If there had been plant varieties legislation before the 1914–18 war, that small farmer would have benefited. It is nice to know, as the noble Earl, Lord Ferrers, said, that the plant breeders of this country' will benefit tremendously from this Bill; and we are thoroughly in agreement with the amendments to the 1964 and the 1968 Acts. I note—and the noble Earl emphasised this—that under Clause 3 there is help given to bodies such as the NSDO. That is a body which has done a tremendous amount to help the Plant Breeders Institute to develop and market their stocks. There is no doubt about it that there has been a tremendous benefit to the country and they made a big profit last year. I hope that the Government are not casting their dogmatic eye on the NSDO. They have so far avoided privatisation in this field and I hope that it will be left in that way, because the NSDO does a good job of work. I do not want to go in any detail into the Bill. The noble Earl has given a very good explanation, both of the background and of the Bill itself, and we give it our blessing.

§ Lord Walston
My Lords, this is a small but important Bill, and from these Benches I should like to welcome it. I should also like to welcome it as one of the beneficiaries of the work of plant breeders. The noble Lord, Lord John-Mackie, pointed out the value of the previous Act to plant breeding, and the importance of seed breeding to the agricultural community as a whole. I would say also to the consumers as a whole, because it has enabled us as farmers to keep our costs far below what they would otherwise have been.
A great deal of the increase in efficiency and of the advance in plant breeding dates from the time when the first plant breeders' rights legislation was introduced. Prior to that, one had to look, in the main, to other countries, such as France, Holland, Germany and, to a certain extent, Scandinavia for the most productive varieties, particularly of cereal crops and of sugar beet, because there was not the financial incentive to breeders to undertake this work. The private breeders now have that incentive and, of course, as the noble Lord, Lord John-Mackie, has rightly pointed out, the Plant Breeders Institute and the National Seed Development Organisation have taken it up, have prospered and have enabled all 1147 farmers to prosper, also. So I welcomed the previous legislation, and I welcome this small piece of legislation as a very logical second act in this continuing drama.
There is one small question which I should like to ask the Minister. As I understand it in Clause 2 there is power reserved to the Minister in sub-paragraph (1) (b) to levy some form of duty or monetary payment on varieties which are imported into this country from stock which has been produced over here, but for which no royalties have been paid. That seems to me a perfectly reasonable and logical thing to do. But I am puzzled as to how this could be done. If strawberries are imported from Israel, or if carnations are imported from Kenya, from varieties which were originally from this country, how will it be possible at the point of entry to establish from what stock they have come and to levy the appropriate amount on those imports? It is not something which is of enormous significance, but it would be interesting to know whether my interpretation is correct and what means the Government have in mind for enforcing this perfectly reasonable regulation. I shall say no more. I merely want once more to welcome this Bill. It is useful and it will add some more strength to the position of the seed breeders of this country, whose contribution to our agriculture and to our food production has been of enormous value over the past 20 or 30 years.

Earl Ferrers
My Lords, I am grateful for the welcome which both noble Lords have been kind enough to give this Bill. As the noble Lord, Lord John-Mackie, said, it is quite a short Bill and quite a technical Bill and I am grateful to him for what he said. He said that the three most important advances in agriculture were due to the engineer, the chemist and the plant breeder, and I think he was largely right. The noble Lord, Lord Walston, said that breeders have been good not only for agriculture but for consumers as well, and that is entirely correct, because, in the end, it is the consumers who have benefited as a result of the very considerable increases which have been achieved owing to the new varieties.
The noble Lord, Lord Walston, quite correctly asked: how is the breeder to secure his rights on imported products? It is, of course, up to the breeder. If he finds that products are coming into the country on which he has the rights, he is entitled to go to the importer and say, "These are products which have been brought in from another country and of which I have the rights, and no levy has been paid upon them." It will be up to the breeder to assert his rights on the incoming produce. As I said, I am grateful to both noble Lords for the welcome which they have given to this Bill.