Select Committee on Delegated Powers and Deregulation Third Report



Memorandum by the Home Office


This memorandum, which is submitted by the Home Office, indicates the delegated powers conferred by the Firearms (Amendment) Bill ("the Bill") and explains the position with regard to Parliamentary procedure.

Clause 2(2)

2.     This provision amends section 15 of the Firearms (Amendment) Act 1997 ("the 1997 Act") so as to enable the Secretary of State to make arrangements under subsection (1) of that section for the orderly surrender of small-calibre pistols prohibited by virtue of clause 1 of the Bill, in the same way as he is able to make such arrangements in respect of firearms prohibited by section 1 of the 1997 Act. The section 15(1) power was not made the subject of any Parliamentary procedure because it was considered to be essentially an administrative arrangement of a short-lived nature which might require some flexibility as developments unfolded. Accordingly, this extension of the power is similarly not subject to any such procedure.

3.     The amendment made by clause 2(2) also enables chief officers of police to designate police stations for the surrender of small-calibre pistols which are prohibited by the Bill, in the same way as for the surrender of firearms prohibited by the 1997 Act. This power seems to be an inappropriate subject for Parliamentary procedure, being of a localised, administrative nature.

Clause 2(3), (4) and (5)

4.     Subsections (3) and (4) amend section 16 and 17 of the 1997 Act, which require the Secretary of State to make a scheme compensating persons who surrender firearms which are prohibited by the 1997 Act, or ancillary equipment, so as to require the Secretary of State to make a similar scheme in respect of small-calibre pistols which are prohibited by the Bill, and ancillary equipment.

5.     Subsection (5) amends section 18 of the 1997 Act so as to disapply, in the case of the scheme which the Secretary of State is required to make in respect of small-calibre pistols and ancillary equipment, the provisions of that section which require a compensation scheme (and any alteration to it) to be laid before Parliament, in draft, and to be approved by resolution of each House, before it can be made. However any such scheme (and any alteration to it) must be laid before Parliament after being made.

6.     The reason for the disapplication is not related to the calibre of the firearms, as such. As the Government announced at the Second Reading of the Bill in the House of Commons on 11 June, they intend the compensation scheme for small-calibre pistols and ancillary equipment to be based on the same principles (including the basis for the values used) as the scheme which has already been made under section 18 of the 1997 Act in respect of firearms prohibited by that Act, and ancillary equipment. That scheme was laid in draft, in accordance with the provisions of section 18, and has been debated in full (on 9 June) and approved by both Houses of Parliament.

7.     The firearms and ancillary equipment prohibited by the 1997 Act comprise approximately 80% of the items for which compensation is to be payable under that Act and, if it receives Royal Assent, the Bill. It was felt that little purpose would be served by requiring the further scheme for the firearms prohibited by the Bill and ancillary equipment (that is, the remaining 20%) to be debated and approved when Parliament had already approved the principles on which the scheme is to be based.

8.     Clearly, however, Parliament will need to be assured that the Government has fulfilled its stated intention, and the Secretary of State is accordingly required to lay the scheme before Parliament after it is made.

Clause 2(6)

9.     This provision attracts section 51 of the 1997 Act, which enables the Secretary of State to make regulations containing transitional, consequential and saving provisions in respect of the commencement of that Act. This provision was included in the 1997 Act as a safeguard against difficulties which might arise as a result of the complexities involved in commencing the provisions of the 1997 Act and, given the relationship between the Act and this Bill, it was felt appropriate to attract it in the Bill. Although the scope of the provision is limited to matters of commencement it is not part of the commencement provisions as such, and it was thought appropriate therefore that it should be subject to the negative resolution procedure.

1 July 1997


Memorandum by the Ministry of Agriculture, Fisheries and Food


1.1    This Memorandum on delegated powers in the Plant Varieties Bill has been prepared in accordance with the Government's undertaking to the Committee in section 2 of the Government Memorandum (January 1993) appended to the Committee's First Report (2 March 1993).

Outline and Scope of the Plant Varieties Bill

2.1    The Plant Varieties Bill replaces most of Part I of the Plant Varieties and Seeds Act 1964 (the 1964 Act). The existing national system of plant breeders rights is based on the 1978 International Convention for the Protection of New Varieties of Plants (the 1978 Convention). The United Kingdom is, however, a signatory to the revised Convention, dated March 1991 (the 1991 Convention). The Bill will enable us to ratify the 1991 Convention.

2.2    It will also align our national system of plant breeders' rights with the quite separate European Community wide system introduced by Council Regulation (EC) 2100/94 of 1 September 1994 (the Council Regulation), which is based on the 1991 Convention. As a separate issue, the Bill also amends Part II of the 1964 Act to extend the period in Great Britain during which proceedings may be brought for contravention of seeds legislation from 6 to 12 months from the date of the offence. Apart from this one provision, the Bill applies to the United Kingdom.  

2.3    The main changes which the Bill introduces are:

(i)    The possibility of protection is opened to the whole plant kingdom, replacing current arrangements whereby protection has to be extended to individual species by statutory scheme.

(ii)     The breeder's right is strengthened and extended to cover a wider range of acts in respect of propagating material. It is also extended to harvested material obtained through the unauthorised use of propagating material, where the breeder has not had reasonable opportunity to exercise his right in relation to the unauthorised use of propagating material. It may be further extended by regulations to products of harvested material in certain circumstances.

(iii)     Breeders are given some control over varieties which are dependent on their protected varieties, to take account of developments in breeding technology.

(iv)     Rules on prior commercialisation are relaxed and a simplified system of provisional protection pending a decision on a grant of rights is introduced.

2.4    The Bill re-enacts provisions of the 1964 Act relating to the administration of the plant breeders rights system, with consequential or clarifying amendments where appropriate. It also provides for the continued existence of the Plant Varieties and Seeds Tribunal.

Proposals for Subordinate Legislation

3.1    The Bill contains the powers to make delegated legislation which are described in paragraph 5 onwards. The majority of the delegated powers in the Bill re-enact similar provisions in the current legislation, subject to minor changes of a technical or clarifying nature.

3.2    Any regulations or orders made under the Bill are to be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament except an order under Clause 9 (11), which is subject to affirmative resolution (see paragraph 6.1.6 - 6.1.7 below) and orders made under the commencement provisions in clause 51.

3.3    As well as delegating powers by legislation, the Bill delegates administrative powers to the Controller in certain circumstances, which are described in paragraphs 21 - 23 below.

Classification of Subordinate Legislation

4.1    In deciding whether subordinate legislation was appropriate in any particular case, the Ministry had in mind the following criteria, based on those set out in paragraphs 4.4 and 5.2 of the Government's evidence to the Committee as appended to the Committee's First Report:

- to make alterations of detail within a narrowly defined field;

- to avoid too much technical detail on the face of the legislation;

- to allow detailed administrative arrangements to be set up and up-dated within the basic structures and principles set out in the Bill, subject to Parliament's rights to challenge any inappropriate use of powers;

- to allow flexible timing to ensure that the drafting of technical details is right, affected parties can be consulted and changes to the details of legislation can be made in the light of changed circumstances;

- to ensure flexibility in responding to changing circumstances and provide a measure of ability to make changes quickly in the light of experience without the need for primary legislation.

4.2    The powers to make subordinate legislation reflect the very technical nature of the Bill as well as the need to be able to respond to changes in the Community regime to keep the national regime parallel to it. They also reflect the need for flexibility to meet changing circumstances and developments in plant breeding technology. The detailed nature of most of the matters to be prescribed in secondary legislation also leads the Ministry to conclude that the negative resolution procedure is appropriate, particularly where the Bill is re-enacting provisions from the 1964 Act which were subject to this procedure. The exception is at clause 9(11), where the order making powers to amend the substance of the clause itself suggest the affirmative resolution procedure is more appropriate.

Clause by Clause Analysis of Delegated Powers


5.1  Clause 6 - Protected variety

5.1.1  Clause 6(1)(a) - (g) defines the scope of the breeders' rights in respect of propagating material. It lists specific acts which the holder of rights can prevent anyone doing in respect of the propagating material of his protected variety. Clause 6 (1) (h) provides that rights may extend to other acts prescribed by regulations. It is founded upon Article 14(4) of the 1991 Convention, which allows contracting countries to prescribe additional acts which require the authorisation of the breeder. This provision would enable extension of the breeder's right to, for example, the production of cut flowers or foliage. A similar provision which enables rights to be extended by scheme exists at s.4(1)(c) and Schedule 3 of the 1964 Act.

5.1.2  Under clause 6(3), the breeder has the rights described in clause 6(1) in respect of harvested material obtained through the unauthorised use of propagating material, if he has not had reasonable opportunity to exercise his rights against unauthorised use of the propagating material.

5.1.3  Clause 6 (4) provides that such rights should also be available in relation to products which are made directly from harvested material, where the description of the product (e.g. oil used in perfumes) and the description of the variety (e.g. varieties of lavender) are prescribed by regulations. As in paragraph 5.1.2, such rights would only be available where the product was obtained through the unauthorised use of propagating and harvested material, where the breeder had not had a reasonable opportunity to exercise his rights at the earlier stage. It is envisaged that these powers would be used only in exceptional circumstances or to keep the United Kingdom regime in step with the European Community regime. In the latter context, the Council Regulation contains a similar provision at Article 13.4. No additional products have been prescribed to date in implementing rules made under the Council Regulation and the issue is not under discussion.

6.1  Clause 9 - Farm Saved Seed

6.1.1  Clause 9 exempts from the breeder's right a farmer's use, as seed, on his own holding, of harvested material obtained from the holding, i.e. the use of farm saved seed. The exemption applies only to varieties of species or groups specified by Ministers by order (see Clause 9 (2)). The Council Regulation allows the use of farm saved seed of certain species or groups, listed at Article 14.2, without the prior authorisation of the breeder. The intention is to mirror the Council Regulation and Ministers will specify, in an order, those species or groups listed at Article 14.2. If the list at Article 14.2 is subsequently amended, then an amending order can be used to keep the national regime of plant breeders' rights in step with the Community regime.

6.1.2  Farmers who use farm saved seed of a protected variety are liable to pay the holder of rights equitable remuneration which is sensibly lower (as defined in the Council Regulation) than the royalty payable on certified seed of the variety sold in the same area. However, farmers who have saved seed of a particular variety before the Bill comes into force may continue to do so, without payment (see clause 9(5)), until Ministers discontinue this provision by order (see Clause 9(6)).

6.1.3  Again this mirrors a similar provision in the Council Regulation (Article 116.4, second indent). It is intended that Ministers will discontinue the provision in the national regime at the same time as the Community provision ends. As currently stated, this is 30 June 2001, but before then the Commission is required to produce a report on a variety by variety basis. The provision in the Council Regulation may be extended if the report indicates this to be desirable. It is thus necessary for Ministers to maintain flexibility in the national regime to act in step with the Community regime.

6.1.4  Clause 9(7) enables Ministers to make regulations:

- enabling holders of plant breeders rights to require certain information from farmers and seed processors and vice versa;

- restricting the circumstances in which farm saved seed may be processed off the farm on which it is obtained;

- enabling Ministers to monitor the operation of this clause.

It is intended that the requirements in regulations should be similar to those in the Council Regulation and in implementing rules on the farm saved seed exemption (Commission Regulation (EC) 1768/95 of 24 July 1995) and should be capable of amendment if the Community regime is changed.

6.1.5  Examples of how the powers set out in clause 9(7) might be used are:  

- Farmers and seed processors may be required to provide holders of rights with information on the amount of farm saved seed of protected varieties used or processed. Holders of rights may be required to provide farmers or processors with details of the amount of royalty payable on certified seed in their area, to enable them to decide whether what they are being asked to pay for farm saved seed is "sensibly lower".

- Where farm saved seed is to be processed off the holding, farmers and seed processors may be required to take appropriate steps to secure the integrity of the seed.

- Ministers may require aggregated information on farm saved seed usage to enable them to assess the operation of the farm saved seed exemption.

6.1.6  Clause 9(11) allows Ministers to amend clause 9 by order, subject to affirmative resolution procedure, to ensure it corresponds with the farm saved seed provisions of the Community regime. This provision is required because farmers, seed processors and plant breeders may deal with both UK and EC protected varieties when using farm saved seed and it may be confusing for them to deal with two different systems.

6.1.7   To illustrate the circumstances where this provision may need to be used, the Bill defines "small farmer" and "sensibly lower" by reference to the Council Regulation. If these definitions are changed in, or removed from, the Council Regulation, clause 35(1) (definition of "the Council Regulation") may suffice to keep the two farm saved seed regimes in step. However, if there is substantial change to the definitions, or further concepts are introduced into the Community legislation, Clause 35(1) may not be sufficient to keep the two regimes in step. In these circumstances, Ministers may wish to make corresponding changes to the national regime.

7.1  Clause 11 - Duration

7.1.1  Clause 11 sets the duration of plant breeders' rights at 30 years for trees, vines and potatoes and 25 years for all other species. Clause 11(2) allows Ministers to extend by regulation the period of protection for a species or group. The 1964 Act contains a similar power (at section 3) enabling Ministers to set or change the period for which rights are exercisable by scheme. The period of rights in the Bill is the same as in the Council Regulation. However, the Council Regulation provides for the period of rights to be extended for up to 5 years for specific genera or species by an amending Regulation (Article 19 refers). If the duration of Community rights is changed in the future, Ministers may wish to use the powers in this clause to keep in step.

8.1   Clause 15 - Compulsory Licences

8.1.1  Clause 15(8) enables Ministers to provide in regulations a minimum time which must elapse before a compulsory licence can come into effect for a species or group. This re-enacts section 7(2) of the 1964 Act, which enabled such a minimum time to be prescribed by scheme. The purpose of prescribing a minimum time, is to enable a breeder of a variety of a species or group which is slow to multiply, sufficient time to build up stocks of his protected variety and establish his position in the market place as its originator. Potato varieties are, for example, slow to multiply and a minimum time of two years has been prescribed by scheme for potatoes.

9.1  Clause 16 - Selection and registration of names

9.1.1  Clause 16 re-enacts Ministers powers from Section 5 of the 1964 Act to make regulations providing for the naming of plant varieties and for keeping a register of names. It is a requirement of the 1978 and 1991 Conventions that all protected varieties should have a unique name, registered with the plant variety rights authority. So far as possible, the name by which a variety is registered should be the same in any state which is a contracting party to one of the Conventions in which it is protected. The 1991 Convention lays down the broad principles for naming varieties, which are implemented in the Bill. The Union for the Protection of New Varieties of Plants (known as UPOV), which comprises of contracting parties to a Convention, also provides more detailed guidance on naming. This is internationally recognised and followed by the UK and the European Community. It is intended to include this detailed guidance in regulations (as at present).

10.1  Clause 20 - Cancellation

10.1.1  Clause 20 prescribes the circumstances in which the Controller may terminate the period for which plant breeders' rights have effect. One of the circumstances in which the Controller may terminate rights is if the holder of rights applies to surrender them and the Controller is satisfied that rights may properly be surrendered. Clause 20(2) provides that the Controller must give notice of an application to surrender rights, in accordance with procedures in regulations made under this clause. He must follow procedures prescribed in the regulations for hearing any representations by interested parties (see also clause 22, which provides regulation making powers in respect of rights to be heard). Clause 20(2) re-enacts section 3(6) of the 1964 Act.

11.1  Clause 22 - Right to be heard: general

11.1.1  Clause 22 enables Ministers to make regulations providing for the opportunity to make representations to the Controller (or a person appointed by him) in the case of decisions where an appeal lies to the Plant Varieties and Seeds Tribunal. This allows interested parties to make their points in a more informal situation, and before the decision which may be appealed is taken, if they so wish. The detail of, for example, how representations should be submitted and the principles establishing whether a person has sufficient interest in a decision to acquire a right to be heard, are left to regulations. This clause re-enacts section 9(3) of the 1964 Act.

12.1  Clause 24 - Appeals to the Tribunal

12.1.1  Clause 24(1) prescribes those circumstances where key decisions taken under provisions in the Bill may be appealed to the Plant Varieties and Seeds Tribunal. Clause 24(2) enables Ministers to confer, by regulations, a right of appeal to the Tribunal against a decision of the Controller taken under regulations made under clauses 16, 26 or 27, or a decision to refuse an application under clause 23(3)(a) of the Bill. There are similar powers to this in section 9(4) of the 1964 Act.

13.1  Clause 26 - Regulations

13.1.1  This contains basic powers enabling Ministers to make regulations, governing the detail of how the Controller should discharge his functions in respect of applications for the grant of plant breeders rights and other related matters. It includes a non-exhaustive list of matters which Ministers may cover in regulations. Similar powers to make regulations are at section 9(5) of the 1964 Act.

14.1  Clause 27 - Fees

14.1.1  This clause enables Ministers to make regulations prescribing fees payable in respect of plant breeders' rights matters. Regulations may also authorise the Controller to refuse applications, or terminate rights, if fees are not paid and to restore applications or rights if non payment of fees is made good. Similar provisions in relation to fees are in the 1964 Act (section 9(1)&(2)).


15.1  Clause 39 and Schedule 3 - The Tribunal

15.1.1  Clause 39 provides for the Plant Varieties and Seeds Tribunal to continue in existence and introduces Schedule 3, which contains detailed provisions on its constitution and membership, where it may sit and how it makes its decisions and awards costs. Paragraph 13(1) makes provision for the Lord Chancellor to make rules, subject to negative resolution procedure, as to procedure and fees. Similar powers exist at Schedule 4, paragraph 9(2), of the 1964 Act.

16.1  Clause 41 - Statutory jurisdiction: regulations

16.1.1  Clause 41 enables Ministers to make regulations making provision for various matters relating to appeals. Similar powers exist at section 10(5) of the 1964 Act.


17.1  Clause 45 - Regulations and orders

17.1.1  This clause contains general provisions concerning regulations and orders made by Ministers. It also specifies that regulations and orders are subject to negative resolution procedure, apart from orders under clause 9(11), which are affirmative, and commencement orders which are not subject to any Parliamentary procedure.

18.1  Clause 50 - Extent

18.1.1  Clause 50(2) provides that Her Majesty may by Order in Council direct that any of the provisions of the Bill be extended to any of the Channel Islands or the Isle of Man, subject to such modifications as appear to Her Majesty to be appropriate. The power to make such an Order in Council is, in accordance with precedent, not subject to any Parliamentary procedure since it does not affect the United Kingdom. There are similar provisions at section 40 of the 1964 Act.

19.1  Clause 51 - Short title and commencement.

19.1.1  This clause contains standard commencement provisions. It provides that the provisions of the Bill apart from this clause and clauses 46 and 50 may be brought into force by order.

20.1  Schedule 2, Part II - Priorities between applicants for rights

20.1.1  Schedule 2, Part II describes how priorities are established between applicants who independently breed, or discover and develop, the same variety and provides for applications for a grant of rights submitted in other jurisdictions to be recognised as establishing priority in certain circumstances. The Bill defines applications for a Community plant variety right, and applications for

a grant of rights in any other country or intergovernmental organisation which is a member of UPOV, as qualifying for priority, providing the appropriate conditions are met.

20.1.2  In addition, Ministers may by order designate other countries which they recognise for the purposes of establishing priority (see paragraph 6(2)(c) of the Schedule). A similar provision appears in the Council Regulation (Article 52.4). The most likely situation in which this power would be used would be to keep the UK regime in line with the Community regime.

20.1.3  The 1964 Act requires Ministers to designate, by order, all countries or territories which are recognised for the purpose of establishing priority (Schedule 2, Part I, paragraph 2(7)). No countries or territories outside the UK are designated in the 1964 Act itself.

Delegation of Administrative Powers

21.1  The Committee may also wish to note the following administrative powers delegated to the Controller.

22.1 Clause 3: Grant on application

22.1.1  Clause 3 enables the Controller to require applicants for plant breeders' rights to provide whatever information, documents, plant or other materials, facilities or test or trial result he considers necessary to enable him to reach a decision on an application. If the applicant fails to provide these details within a specified time limit, the Controller may refuse the application. The Controller may specify requirements either by notice published in the Plant Varieties and Seeds Gazette and/or by notice served on an individual applicant.

22.1.2  Section 9 (5) of the 1964 Act currently provides for matters such as this to be specified in regulations. Delegation of powers to the Controller to specify requirements will enable him to react flexibly and rapidly where necessary. This is particularly important given that the possibility of protection is opened to all genera and species.

23.1   Clause 14 - Maintenance of protected variety

23.1.1  Clause 14, which re-enacts section 6 of the 1964 Act, sets out the duty of a holder of rights to maintain the protected variety and allows the Controller to specify the information and facilities he requires to satisfy himself that this obligation is being met. The range of information or facilities which might be required are too variable and numerous to specify within secondary legislation.

June 1997

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Prepared 11 July 1997