FIREARMS (AMENDMENT) BILL
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
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
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
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
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.
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
PLANT VARIETIES BILL
Memorandum by the Ministry of Agriculture, Fisheries
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
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
(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
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
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
- 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
PART I - PLANT VARIETIES
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
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
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)).
PART II - PLANT VARIETIES AND SEEDS TRIBUNAL
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.
PART III - MISCELLANEOUS AND GENERAL
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
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
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
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
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