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Mr. Paice: I understand exactly what the Minister has just said, but I am sure that if he reflects he will find that at odds with what he said earlier, because he said quite clearly that the right could apply in the earlier example of the issue of oil as a matter of last resort. That would imply that, in the case of milling wheat, if the breeder had not been able to get his rights before then, they would still lie on the milling wheat. I must press the Minister to be a little clearer about what appears to be a clear contradiction between the answers that he has given on these two amendments.

Mr. Rooker: I have obtained further clarification, for which I am extremely grateful. The point is that the breeder's right does not extend to the production of the seed, but if there has been illicit propagation--part of this is the policing process--and the breeder has not had the opportunity to exercise his rights, he may do so later, but only if illegal actions have taken place at earlier stages.

Lords amendment agreed to.

Lords amendment No. 6 agreed to.

Clause 11

Duration

Lords amendment: No. 7, in page 6, line 35, after ("period") insert
(", not exceeding--
(a) in the case of paragraph (a), 35 years, and
(b) in the case of paragraph (b), 30 years,")

Mr. Rooker: I beg to move, That this House doth agree with the Lords in the said amendment.

The House will enjoy my first sentence about this amendment. The amendment addresses concerns about the unlimited powers of Ministers to extend the period of rights by restricting their powers to extend the rights for particular species or groups to five years in total. Effectively, that means that the rights for trees, vines and potatoes may be extended to a maximum of 35 years and the rights for other species or groups may be extended to 30 years in total. I hope that the House will agree with the amendment.

Mr. Baker: I certainly agree with the amendment because it is not dissimilar to one that I moved on 24 June 1997, which appears in Hansard at column 735. As the hon. Member for South-East Cambridgeshire (Mr. Paice) was claiming that the first Conservative amendments of

26 Nov 1997 : Column 1049

the new Parliament have been woven into legislation, I can perhaps claim something similar for a Liberal Democrat amendment.

I am delighted by the efforts of the House of Lords and by the Minister's change of heart. When I first introduced an amendment to restrict the unlimited power of Ministers it was--I would say "rubbished" but that is probably unparliamentary, Mr. Deputy Speaker--comprehensively and strongly rejected by the Minister. He said:

"I cannot accept the amendment because it would prevent periods of rights being altered by secondary legislation, which is currently possible under the 1964 Act."--[Official Report, 24 June 1997; Vol. 296, c. 736.]

I am delighted that he has found a way of accepting something similar and I am happy to support it.

Lords amendment agreed to.

New clause

Lords amendment: No. 8, after clause 13, to insert the following new clause--Presumptions in proceedings relating to harvested material--
".--(1) This section applies to any proceedings for the infringement of plant breeders' rights as respects harvested material.
(2) If, in any proceedings to which this section applies, the holder of the plant breeders' rights proves, in relation to any of the material to which the proceedings relate--
(a) that it has been the subject of an information notice given to the defendant by or on behalf of the holder, and
(b) that the defendant has not, within the prescribed time after the service of the notice, supplied the holder with the information about it requested in the notice,
then, as regards the material in relation to which the holder proves that to be the case, the presumptions mentioned in subsection (3) below shall apply, unless the contrary is proved or the defendant shows that he had a reasonable excuse for not supplying the information.
(3) The presumptions are--
(a) that the material was obtained through unauthorised use of propagating material, and
(b) that the holder did not have a reasonable opportunity before the material was obtained to exercise his rights in relation to the unauthorised use of the propagating material.
(4) The reference in subsection (2) above to an information notice is to a notice which--
(a) is in the prescribed form,
(b) specifies the material to which it relates,
(c) contains, in relation to that material, a request for the supply of the prescribed, but no other, information, and
(d) contains such other particulars as may be prescribed.
(5) In this section, "prescribed" means prescribed by regulations made by the Ministers."

Mr. Rooker: I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker: With this, it will be convenient to take Lords amendments Nos. 9 and 10.

Mr. Rooker: The House will forgive me if I take a little longer over these amendments. They are three new clauses and, taken together, they address the particular

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problems that breeders of vegetatively propagated ornamental plants face in enforcing their rights. I will put that into plain English in a moment.

Ornamental plants are traded to the public through a wide range of retail outlets, including garden centres, supermarkets and by mail order. They are things that we and our constituents buy every week as gifts or to enhance our living rooms.

Ornamental plants, by their very nature, are easy to multiply through, for example, taking cuttings or using modern tissue culture techniques. The products--rose bushes or pot plants--which have been produced legitimately and on which royalty has been paid, can easily be diverted from their proper end use and used for further propagation, without the breeder's authority, as they are traded through a chain to the final consumer.

Illicit propagation, where no royalty is paid, enables less scrupulous traders--there are spivs in our society--to undercut legitimate traders who are operating correctly and fairly. It gives people an unfair advantage. It is similar to the reason why, in due course, we intend to introduce a national minimum wage.

Plants that have been produced through illicit propagation are the same as those produced by authorised propagation--it is, after all, a condition of protection that plants reproduce true to type. Therefore, a plant breeder cannot identify infringing material simply by looking at the plants. He needs to know the source of the plants on sale. If the seller refuses to provide information on where he obtained the plants--those who knowingly trade in illicitly produced protected varieties will almost certainly refuse to do so--the breeder is left with a strong suspicion that his rights are being infringed, but nothing more.

The new clauses provide for plant breeders to issue information notices, in a form prescribed by Ministers in regulations, to people trading in plants or directly made products of protected varieties. Where the trader refuses to provide the information requested within a period specified in the regulations, without reasonable excuse, the clauses require the courts to presume that the material or directly made products to which the notice relates were obtained in circumstances which infringed the breeder's right, unless the defendant can show otherwise. In effect, the burden of proof is reversed in those carefully defined circumstances--I emphasise that they are carefully defined circumstances.

The information to be provided will not be onerous. It will basically be details of the supplier and the amount of material supplied by him. It is reasonable to suppose that anyone selling plants will know whom he bought them from and how many he bought.

The breeder must treat the information obtained in a notice as confidential, except where he uses it to establish whether his rights have been infringed or in infringement proceedings. If the breeder breaches the obligation of confidentiality, the person who supplied the information will be able to bring an action for breach of a duty of confidentiality.

I expect plant breeders to use those provisions in a proportionate and sensible way, in respect of transactions which are in the normal course of business. There should be no question of plant breeders laying siege to local church fetes and bring-and-buy sales, demanding information on the source of plants on the plant stall. I must also emphasise that the clauses do not permit plant

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breeders to serve notices on private individuals growing plants in their own gardens, for their own private and non-commercial purposes.

Mr. Paice: The Minister is right to spend a little longer on these new clauses, because they are significant. I congratulate him on using, word for word, the same speech used by the noble Lord Carter when he moved the same new clauses in the House of Lords.

Mr. Rooker: Same Government.

Mr. Paice: Yes, indeed. Two Ministers speaking with the same voice. The Minister without Portfolio has obviously been into the Ministry of Agriculture, Fisheries and Food recently.

There is something serious about the amendments and that is the reversal of the presumption of innocence. As we all know, that is well enshrined in English law. A proposal to reverse that is a major step. It is not without precedent, but we must take it seriously and consider carefully whether it is necessary. I am persuaded that it probably is necessary, but there are issues of concern.

The Minister and his noble Friend Lord Carter--I should say our noble Friend because he is an old friend of mine--referred, rightly, to charitable activities, car boot sales, church fetes and so on. He made it clear, as we would expect, that plant breeders should not be roaring round the countryside handing out information notices at every little place that sells plants.

I have no doubt that the Minister's words were well intentioned and that he meant them, but there is nothing that he or I or any other hon. Member can do to stop that happening. I wonder whether he has given any thought to what measures could be taken or what advice or guidelines could be issued to try to prevent that happening. As he implicitly accepts, there would be a major problem for many valuable community activities if that were taking place.

The second issue of concern is imported material. I am sure that the Minister is aware that considerable numbers of ornamental vegetation and plants are produced overseas and that there is a considerable amount of two-way trade between us and other countries, particularly the Netherlands. Somebody who has an information notice served on them could say that the parent material was imported. As the Minister said, because of type reproduction, it can be traced back to the breeder originally, but I wonder whether he can tell the House about the relevance of the international aspect of the trade. It is not clear from the new clauses how that would operate. I do not know whether a breeder would have the authority to seek information from growers abroad from whom it might be claimed that somebody purchased the plants being sold on. That is important, particularly because of the relevance of the Bill, as the Minister reminded us, to the UPOV convention. I hope that he will respond to the two important concerns that I have expressed.

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