Alteration to effect of 1964 Act (No. 1)

Plant Varieties Bill [Lords] – in the House of Commons at 7:43 pm on 12th April 1983.

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`In section 2 of the 1964 Act the following subsection shall be inserted— (5) A plant variety discovered growing in the wild outside the United Kingdom may become subject to plant breeders' rights only with the consent of the government of the country in which the variety was discovered and the applicant must establish to the satisfaction of the controller that he possesses this consent.":.—[Mr. Hooley.]

Brought up, and read the First time.

Photo of Mr Frank Hooley Mr Frank Hooley , Sheffield, Heeley 7:47 pm, 12th April 1983

I beg to move, That the clause be read a Second time.

The new clause might appear self-evident to the layman as a common sense proposition. I suspect that many laymen might be startled to learn that a wild plant variety can be patented by anyone in any circumstances.

Clause 2(4) of the Plant Varieties and Seeds Act 1964 reads: References in this section and Schedule 2 of this Act to the discovery of a plant variety are references to the discovery of a plant variety, whether growing in the wild or occurring as a genetic variant, whether artificially induced or not. In other words, it is possible to secure what, for shorthand, I call patent rights or plant breeders' rights over a variety of plants which no one has bred or produced or done any work on in terms of breeding but has simply been found somewhere by people who are interested in looking for different plant varieties. In other words, it is at least theoretically possible for a plant breeder in the United Kingdom, or in other industrialised countries, to discover a natural variety of plant that has existed and grown happily for thousands of years in an obscure region, to pick it, to bring it back to the United Kingdom and to assert patent or plant breeders' rights. The plant will have been not bred, but simply discovered by a firm or a plant breeder. As a layman, that seems to me to be a curious concept.

We are accustomed to patenting machinery, equipment, devices and tools on which the human mind has expended time, money and ingenuity to produce. Although the concept is philosophically doubtful, it is widely accepted in the industrial world. However, the idea of exercising a patent right over and receiving royalties from a plant is curious. That is what the original Act provides with the words the discovery of a plant variety … whether growing in the wild … whether artificially induced or not. The matter is of fundamental scientific importance and is not purely academic, because to breed new strains of plant there must be a continuous process of upgrading the genetic varieties. Plant breeding frequently produces varieties that may seem good initially, but are subsequently found to be vulnerable to disease or climate. Therefore, one must vary their genetic constitution. The plants that we are considering are the staple food of millions of people. The world's storehouse of new genetic resources is largely the Third world—Asia, Africa and Latin America. The ability to acquire new plant varieties from Third world countries and to use them is scientifically and practically important. Therefore, the House should consider that aspect, the consequences of current legislation and whether it is satisfactory in the closing years of the 20th century.

In Committee my hon. Friend the Member for Newham, South (Mr. Spearing) and I made proposals that were unacceptable to the Government. They may have been drawn too narrowly, too rigidly or not carefully enough to satisfy our aim. The new clause does not purport to prevent or to hinder the discovery of new varieties of plant, nor is it intended to prevent the patenting of such discoveries or the exercise of plant breeders' rights as set out in legislation. We accept that the discovery of a plant variety involves cost and effort. One does not just wander round the Amazon forest and find such plants. Experts must be flown there to look for plants, which must be brought back to the United Kingdom and propagated. The new clause seeks to ensure that if wild plants are discovered whose genetic composition is important to the breeding of plants for practical use in industrialised countries, the Third world country concerned should consent to their removal. When an application is made for plant breeders' rights, the applicant must establish to the satisfaction of the controller that he has secured the consent of that Government.

It is feared that the botanical treasures of the Third world—the enormous variety of wild plants—will be plundered by richer countries. Third world countries are sensitive about that. They are aware of how in recent decades—or even centuries—their mineral resources have been plundered and of the ferocious arguments at the law of the sea conference about access and rights to the mineral riches of the seabed. Their wishes have been disregarded and flouted by powerful countries, including Britain. They are also aware of the power of multinational companies, which are heavily involved in plant breeding in Britain and elsewhere. They are nervous about what will happen to their botanical treasures if there is an indiscriminate right to patent discoveries as opposed to cultivated seeds.

To reinforce the view that this is not just an academic point, some Third world countries are refusing permission to companies to look for wild plants. They include Madagascar, the Ivory Coast, Brazil and Malaysia. This matter is of immediate practical and political importance. The new clause seeks to bring in an element of fair and open dealing between the advanced industrial countries, which have considerable expertise in plant technology, and Third world countries which are vast storehouses of the raw materials for plant breeding, but which do not possess the technology.

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If I understand the Bill correctly, it introduces the idea that if a variety is discovered, bred and subsequently patented or made subject to plant breeders' rights and the flower, fruit or vegetable is then produced in the United Kingdom, the plant breeder will have the power to discriminate against imports of that variety of flower, fruit or vegetable and keep out the same or similar varieties produced in the country of origin.

A British firm could send its experts to collect a wild variety of flower or vegetable, return and breed from the plant for similar purposes as in the country of origin. If that country wishes to export its flowers or vegetables to us, under the terms of the Bill the plant breeders will rush along to the controller and say, "No, we bred that plant. We cannot stop you growing it in Kenya, Tanzania, Brazil or wherever but you are not going to export it to us." Those countries are becoming important exporters to the United Kingdom market of out-of-season vegetables and various types of flowers for decorations.

The original material could have been discovered in Kenya, brought to Britain and used to develop a variety of plant. If the Kenyans then wished to develop, grow and export it as part of their export trade, they would find that it was kept out of the British market, even though part of the genetic constitution of the flower or vegetable involved originated in their country. Indeed, it may have been taken from their country without their knowledge and consent.

A related problem is that there might be discrimination against individual varieties of plants or vegetables from certain countries on political grounds. This point was raised in Committee. The Minister wrote to me subsequently saying that the United Kingdom has never placed politically inspired embargoes on the release to other countries of plant genetic material. I am grateful to the Minister for pursuing that point and giving that assurance. While I entirely accept what he has said in respect of the United Kingdom, that does not appear to have been so in the United States. That is a danger.

The fundamental point that the new clause seeks to make is that there shall be open and honest dealings between the two sides in respect of the discovery and use of wild plant varieties originating in the Third world.

If this type of clause is not inserted in the Bill, not only will Madagascar, Brazil and the Ivory Coast, as well as the other countries that I have mentioned, object to such material being collected, but, if it is necessary formally to ask for the consent of Third world countries before collecting such material, they will refuse. The business of discovering new genetic resources for plant breeding purposes may come to a halt, but I doubt that. However, Third world countries clearly have an interest in the production of better seeds and new varieties of crops.

The United Kingdom is fortunate in possessing world famous institutions for plant breeding and the related technologies and sciences. Everybody throughout the world understands Kew in terms of plants. Wellsbourne, the Plant Breeding Institute at Cambridge, the Tropical Products Institute and the Centre for Overseas Pest Research also deal with the problems of protection and storage of crops. Those institutions are highly regarded and greatly respected throughout the world, especially by Third world countries which use those resources and skills.

The new clause would be a signal to Third world countries that, far from wishing to plunder their botanical resources, we wish to deal honestly and fairly with them. This will eliminate the suspicion and mistrust which undoubtedly exists and establish better dealings and greater confidence between the two sides that their mutual interests are being looked after.

Britain has the technology in plant breeding, but the Third world countries have the raw materials. The new clause purports to promote a fair deal between the two sides.

I commend the new clause to the House.

Photo of Mrs Peggy Fenner Mrs Peggy Fenner , Rochester and Chatham

I fully understand and sympathise with the motives behind the new clause tabled by the hon. Member for Sheffield, Heeley (Mr. Hooley). His anxiety, expressed in the House, for the Third world is well known and I understand it. The Government would certainly not condone the removal of plant material from another country heedless of that country's interests or wishes or in contravention of its legislation. Nevertheless, for a number of reasons the new clause is not acceptable.

The effect of the new clause would be limited to varieties discovered in the wild outside the United Kingdom and only to those that were submitted for grant of plant breeder's rights in the form in which they were collected. It would not extend to material discovered in the wild and used as part of a breeding programme involving other material, which is the more likely practice.

The eventuality which the new clause seeks to control occurs extremely rarely and nowadays only in the sphere of ornamental plants in the major agricultural and horticultural species. The days have long passed when an explorer in a distant land would chance upon a plant capable of immediate commercialisation, even then at some financial risk and outlay. I was pleased to hear the hon. Member for Heeley say that he appreciated that that was not a likely circumstance today. The vast majority of modern varieties are the result of intensive and costly breeding programmes, or they are discovered in the course of such programmes. The new clause may be seeking to shut the stable door long after the horse has bolted. Rightly or wrongly, the main collection of wild species from overseas took place many years ago.

An objectionable feature of the new clause is that it would make a grant of plant breeder's rights in this country dependent upon action in another state which the latter is under no obligation to take and might have no interest in taking or might only be ready to take subject to the imposition of unacceptable conditions. Any country is at liberty to impose controls on the release of plant material. The hon. Member referred to some countries that had taken this action. They are at liberty to do so if they consider it desirable. However, surely it is not for the United Kingdom to initiate an attempt to legislate on behalf of other countries.

Evidently, there is a risk of conflict arising between the interests of countries seeking to protect their plant genetic resources and those of plant breeders in other countries wishing to use such material. To obviate that risk there may well be a need for a more structured international arrangement to govern the conservation and exchange of genetic material, such as that which is under consideration in the FAO, which the United Kingdom has supported in principle. Therefore, a lasting solution to the problem perceived by the hon. Member for Heeley lies in that direction and not in unilateral action by individual countries.

Adoption of the procedure envisaged by the new clause in the United Kingdom would unfairly put our breeders at a potential disadvantage compared to their competitors in other countries, who would not be subject to the same restrictions. There would, moreover, be administrative problems. Enforcement of the proposed requirement would present formidable difficulties. It would be well nigh impossible to distinguish between discovered material and that which had been bred. It would be extremely difficult to determine whether material originated abroad or in the United Kingdom, and the authenticity of a document purporting to grant the consent of the country concerned might often not be readily ascertainable—[Interruption.] I have given three examples of possible administrative problems.

The new clause is well intentioned, but it is unnecessary and anachronistic in seeking to shut the door long after most of the wild species have been discovered. The solution to the problem that it envisages lies in international agreement of the kind that I mentioned earlier. The United Kingdom will readily participate in discussions to that end, and is already doing so in the FAO.

Photo of Mr Nigel Spearing Mr Nigel Spearing , Newham South

This is the first occasion that we have had to discuss the Government's Bill on the Floor of the House. On 17 February the Bill was discussed in a Second Reading Committee and was discussed again in Committee on 3 and 8 March. As the Minister knows, the Bill's purpose is to amend the base statute, the Plant Varieties and Seeds Act 1964, in order to extend the protection and rights given to plant breeders in this country in respect of the sale of products for which they have been responsible.

The new clause refers, I believe, to section 2(2) of the 1964 Act, which states: The applicant"— that is, the applicant who is applying to the controller for plant breeder's rights— must be the person who has bred or discovered the vareiy, or his successor in title, and the provisions of Part I of Schedule 2 to this Act shall have effect as respects priorities between two or more persons who have independently bred or discovered a variety. I am glad that the Minister agrees that there is concern about this issue in the Third world. Indeed, there is proper concern throughout the world about the future of our genetic store of "natural" plant varieties. We discussed this rather big subject in Committee and it does not fall within the ambit of the new clause. However, there is deep concern. I understand that the principle is that the law gives protection to plant breeders and the Bill promotes an extension in time.

8.15 pm

However, the protection of the law also implies certain obligations and duties. The new clause refers not to anything bred or discovered in the United Kingdom, but to anything that is discovered in the wild—not bred in a breeding station—in another country. The Minister's reply was not very convincing. It was full of the sort of phrases with which we, as Back Benchers, are all too familiar. They trip easily off the tongues of Ministers and the pens of those who advise them.

First, the Minister said that the Government would not condone improper behaviour by plant breeders collecting in other parts of the world. She may not have used those exact words, but that was the implication. How on earth can the Minister make such a claim? On the one hand, the hon. Lady says that this is all out-dated and that it does not happen very often, and on the other hand she says that she would not condone bad behaviour if it occurred. She cannot have it both ways. If it does occur, I cannot see what statutory, administrative or other controls there are on those involved in it. Therefore, I should have thought that that phrase alone would extend the fears of Third world countries.

The Minister then said that it would be difficult to distinguish between varieties in the wild and "other material". She did not exactly say what that was. Perhaps she will tell us at the end of the debate what that "other material" is. My hon. Friend the Member for Sheffield, Heeley (Mr. Hooley) clearly refers to the natural environment and not to that which is in or adjacent to any plant breeding station abroad. I should have thought that that was clear from the wording of the new clause. Having said that all this did not really happen, the Minister said that, when it did happen, only ornamental plants were involved, as if they were not significant. They may not be of commercial significance in terms of food or crops, but is the Minister saying that they are not of financial significance? We all know that people may pay more per plant for an ornamental plant than for a food crop. Keen gardeners in Britain know that only too well, and good luck to them. However, it is certainly a matter of financial consequence. Who has not heard, for example, of orchids? Therefore, the Minister's sentence did not strike a chord with me.

The Minister also said that it would be unfair to impose on another state conditions as to what should be done in this country. However, are these wild plants, which the Minister says are not now of great importance in our plant breeding programme, the property of anyone other than the people and the Government of the country from which they are taken? I should have thought that prima facie they were their property. Out of courtesy, if nothing else, one would have expected the condition to be granted if plant breeders' rights were to apply in law. I am not suggesting that such consent should necessarily apply to someone bringing back a plant to put in his back garden who has no intention to use it commercially. I am not suggesting that conditions should be written into our law concerning what other countries should do. As the Minister rightly said, other countries can put conditions on such exports if they wish, and for whatever purpose.

To say that we should not ask the permission of another country for plant specimens and cuttings that are given legal protection under this Act is illogical. The Minister then said—someone must have been looking around for all the possible disadvantages—that the provision would place our plant breeders at a disadvantage compared with other countries that did not have such a provision. However, she said earlier that all this was not really relevant anyway. If that is so, how can the provision place those countries at an advantage? I suspect that the Minister has a list of all the possible disadvantages, but they are not necessarily compatible.

Then the hon. Lady came to the good administrative Whitehall standby, administrative problems. As my hon. Friends know, I do not discount administrative problems. Frequently, they are very important, and all too often they are ignored by some Ministers, particularly Chancellors of the Exchequer. The hon. Lady then said that there might be some difficulty in the documentary evidence about the authenticity of the consent. I suppose there could be. However, is the hon. Lady seriously suggesting that it would be too difficult for the Government to tell whether a document issued by the Minister of Agriculture in some other country was not the genuine article? That is what she said. I do not find that a convincing argument. Of course, it may be difficult for the Ministry of Agriculture, Fisheries and Food to satisfy itself that the stamp of the Kerala state in India was authentic, but I have no doubt that it could get help from the Foreign Office.

For the reasons that I have given, I do not find the hon. Lady's resistance to the new clause in any way convincing, and I look forward to her rejoinders to my few observations, although I am sure that my hon. Friend has further observations to make.

Photo of Mr William Hughes Mr William Hughes , City of Durham

I have listened with great care to the debate, because it repeats some of the matters that were raised in Committee. I find the Parliamentary Secretary's reply to this debate no less unsatisfactory than her replies in Committee. The hon. Lady has failed to take on board the deep resentment that is felt in much of the Third world and in sensitive areas of this country that it is possible for plant breeders in this country to exploit the genetic resources of the Third world without any adequate protection of Third world countries, in a wholly unscruplous exploitation of their genetic wealth, if not their monetary wealth. Although I accept some of the hon. Lady's technical strictures about the wording of the new clause, until I have from her a clear undertaking that this Government, in the international convention through the FAO and so on, are prepared to take much more seriously the requirement to protect the Third world from piracy of this nature, I shall not allow her to get away with the reply that she has just given and the replies that she gave on Second Reading and in Committee. To say that it never happens or that if it happens it only happens to unimportant ornamentals is no answer.

As the law in this country now stands, the power of the United Kingdom Government is put behind an accidental acquisition, with or without the consent of the country from which the plant is acquired. The plant is then used as a source of genetic material, or in its own right, without being hybridised. On that, we have had no clear answer. At one stage it appeared that a plant breeder's right could be obtained only if the plant had been used as material for hybridisation. At other times, it seemed that it could be used of itself, without any hybridisation.

Let us take the case of an orchid. If I had the good fortune to win the pools and go on an orchid hunt in the Brazilian jungle and found a new orchid, as the law stands, if I could smuggle it out of Brazil—

Photo of Mr William Hughes Mr William Hughes , City of Durham

Although Brazil signed a convention, it is not yet a member. I shall read out the 16 countries that are members of UPOV. They are: Belgium, Switzerland, the Federal Republic of Germany, Denmark, Spain, France, the United Kingdom, the Republic of Ireland, Israel, Italy, Japan, the Netherlands, New Zealand, Sweden, the United States of America and South Africa. Brazil is not a signatory to UPOV. So, if I find a new orchid on an expedition up the Amazon, I can bring it back. I do not need to use it for hybridisation, and I can acquire a patent right. Thereafter, the sale of that orchid throughout the world can be inhibited. If someone tries to sell it back to Brazil I can say, "No way. It is a patented variety." If I sell it to any of the named countries, I can acquire a plant breeder's right on it.

That is unacceptable in the relationship between Third world countries and the advanced world. I accept that if a chance form of maize growing at the roadside in Honduras or Guatemala is brought back to this country with the permission of the Government of that country, and then through the scientific skills of Nickerson or someone else is turned into a commercially useful form, some recompense should be paid for that commercial aspect. However, that is protected under the new clause. It should be done only with the consent of the donor genetic country.

I shall not be satisfied until we are given a much clearer undertaking that this Government will pursue a positive approach internationally to enable the donor countries of genetic materials to protect their own resources. I cannot advise my hon. Friends to seek to divide the House, but I trust that the Government will realise that the hon. Lady's reply is unacceptable and that we require that something close to the spirit of the new clause should be contained in the negotiating posture of Her Majesty's Government in the international forum of the FAO convention. The Government should go to the discussion on the new convention with the spirit of new clause 1 as part of their remit for negotiation.

Photo of Mr Frank Hooley Mr Frank Hooley , Sheffield, Heeley

I shall reply briefly to what the Minister said, although my hon. Friend the Member for Newham, South (Mr. Spearing) dealt cogently with parts of her speech. Basically, there were four points. The first concerned competitors. I should have thought that the existence of a clause of this nature in our legislation, to which the British high commissioner or ambassador could point, would be a passport for our people going to Malaysia or Brazil or anywhere, and would show clearly that what we were doing was straightforward and above board. We should state clearly that we are asking for the permission of the country and say broadly what is our interest. If other competitors were known to be prowling around without such a provision, this would place the United Kingdom in a better light and give it more prestige and advantage in this activity.

I have already pointed out to the Minister that we have something to offer in return. We have internationally famous and prestigious institutes which deal with aspects of tropical agriculture and plant breeding. We could offer to make available our technology and say that we were writing into our legislation a provision for fair and honest dealing between the two sides. The competitors' argument works the other way.

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Then there is the weird argument of the Government that we cannot get authentic certification from other countries. Has the Minister never heard of a thing called a passport? Every year we accept millions upon millions of documents issued by foreign Governments to authenticate the right of individuals to visit this country. Millions and millions of travel documents are issued by foreign countries and our Government Department, called the Home Office, accepts these as authentic documents for all purposes. The argument put forward by the Minister is the most weird that I have heard from the Civil Service for a long time.

A further argument is that this is somehow anachronistic and that nothing interesting will be discovered in the wild in future. That is the most arrant nonsense. I shall quote to the Minister just one plant that is becoming extremely economically important. Its usefulness was discovered only relatively recently. That plant has the weird name of jojoba. It was discovered only a few years ago, either in Mexico or California. It is important because it grows in and ground and produces a form of oil that can be used in the leather industry and for cosmetics as a substitute for the oil of the sperm whale. I know that this plant was not bred here. I think that it was developed in the United States.

The idea that there will be no new discoveries of plant varieties of economic, food or vegetable importance in the next 10, 20 or 30 years is rubbish. Scientific knowledge on breeding and genetics is growing at such a staggering pace that a brilliant use might even be discovered next week for dandelions from our back gardens. The notion that in the whole of the Third world, Asia, Africa and Latin America there is not likely to be anything useful discovered and that we are shutting the door after the horse has bolted is utter drivel. I am sorry that the Minister should come up with such an argument.

Subject to the approval of the Chair, I hope to deal more fully with international agreements on the next new clause. I find the Minister's arguments unconvincing and in no way effective reasons for not accepting the new clause.

Photo of Mrs Peggy Fenner Mrs Peggy Fenner , Rochester and Chatham

At the outset I should point out that I was not referring only to ornamental plants as though they were not important. I was making the point that such discoveries are so rare—I did not say never ever, but certainly rare enough—as not to require special legislation about things found in the wild.

Many of the points referred to by hon. Members were made on previous stages of the Bill. The hon. Member for Newham, South (Mr. Spearing) referred to the concern felt in some Third world countries. I can only reiterate the comment that I made before, that those countries are at liberty to impose whatever conditions they desire to protect their plant genetic resources. This is fully accepted. Let the countries concerned impose the conditions. Some have, and undoubtedly others will, but not the United Kingdom.

The hon. Member for Sheffield, Heeley (Mr. Hooley) will refer to the international situation and perhaps I may come back to it later, but the solution lies in international action. Unilateral action by the United Kingdom might be a valueless gesture if other people took wild material and were not subject to restriction by the countries concerned. We shall look for international agreement in the FAO. That is the right approach.

Photo of Mr William Hughes Mr William Hughes , City of Durham

It might be helpful if the Minister made it clear that there should be an international solution rather than a national one, especially for the developed countries. Will she assure us that she will argue for the spirit of the new clause at the FAO? Will Britain make it clear that the matter should be handled internationally and argue that case?

Photo of Mrs Peggy Fenner Mrs Peggy Fenner , Rochester and Chatham

In international circles, it would be the province of the countries with genetic resources to make that point. The United Kingdom will be at the international convention and discussions, supporting in principle the concerns being expressed.

Question put and negatived.