COMMONS AMENDMENTS (Hansard, 2 November 1988)

§ Lord Young of Graffham

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 295 and 296 en bloc. In doing so I should like to speak also to Amendment No. 389.

Rules made under the Patents Act 1977 give the comptroller considerable discretion in dealing with problems which arise in connection with individual patent applications or patents. In particular, they give him the power to extend the period of time laid down for performing some action, even though that period has already expired. The comptroller uses this power quite frequently.

Unfortunately, doubts have recently been expressed about whether extensions of time, once that has expired, is infra vires, and it has been put to us that that should be made clear. Amendment No. 389 inserts a declaratory provision into the Act to do this. Declaratory provisions are retrospective: they declare what the law is, rather than change it for the future. The justification for this retrospection is that it is to the benefit of no one, least of all those most directly concerned, that the myriad decisions made by the Comptroller General of Patents extending time should be held to have been ultra vires.

Because of the retrospection, this provision must come into force on Royal Assent. It makes no sense for Parliament to say, "We declare the law always to have been so-and-so—but not until the Secretary of State makes a commencement order". Accordingly, Amendments Nos. 295 and 296 add the provision introduced by Amendment No. 389 to the list of those coming into force on Royal Assent.