Dáil Éireann debate -
Thursday, 26 Feb 1998

Vol. 487 No. 8

Plant Varieties (Proprietary Rights) (Amendment) Bill, 1997: Second Stage.

Minister for Agriculture and Food (Mr. Walsh)

I move: "That the Bill be now read a Second Time."

The purpose of this Bill is to update the Plant Varieties (Proprietary Rights) Act, 1980 to take account of new developments in the area of plant breeder's rights, which have been adopted internationally since the Act came into force and to provide for Ireland's ratification of the International Convention for the Protection of New Varieties of Plants, as revised in 1991.

States which are party to the convention constitute the International Union for the Protection of New Varieties of Plants, known as UPOV.

UPOV currently comprises 13 member states of the European Union and 22 other states including the USA, Australia, Canada and South Africa. The convention as revised in 1991 was signed by Ireland, subject to ratification, in February 1992 and the proposed Bill will give effect to the provisions of that convention.

The Plant Varieties (Proprietary Rights) Act, 1980 provided for the establishment of a system of plant breeder's rights in Ireland based on the principles set down in the International Convention for the Protection of New Varieties of Plants as revised in 1978. The central principle of the UPOV Convention is that the breeder of a new variety of plant is granted a title of protection, the effect of which is that the breeder has the exclusive right to reproduce and sell material of the variety and to authorise others to do so on conditions which he may specify throughout the territory where he has been granted plant breeder's rights. He can also apply to the appropriate authorities in other states to have the same rights granted to him in respect of his variety. Accordingly breeders are enabled to obtain royalties from reproduction of their plant material and protection against infringements of their rights.

The Irish plant breeder's rights system is administered by the Office of Controller of Plant Breeders' Rights. The controller who is an official of the Department of Agriculture and Food holds his office under the general supervision and direction of the Minister for Agriculture and Food but acts on his own and not under the name of the Minister. Under the Act, the controller is responsible for any decision taken under the Irish plant breeder's rights system including the granting of compulsory licences. The scale of operation of this office is modest but nonetheless since 1980 it has received 487 applications for plant breeder's rights and has issued 354 grants of plant breeder's rights of which 112 are still extant, published 34 Official Journals of Plant Varieties and maintained the Register of Plant Breeders' Rights.

Ireland acceded to the UPOV Convention in 1981 because Irish plant breeding interests needed protection against infringement of varieties bred by them, many of which they also exported. As a country where agriculture is of such importance we needed to have access to the very best varieties of grasses, sugar beet and cereals which might not otherwise have been available to us in the absence of a national system of protection for plant variety rights. Most of the varieties for which plant breeder's rights are taken out are varieties that are of very considerable significance to Irish agriculture.

The main conditions to be satisfied for the grant of a breeder's right are that the variety must be novel, distinct from other varieties of the species, uniform, stable in its reproduction and be given a suitable name or other designation. Novelty is essentially a legal condition to be satisfied at the time of filing the application for breeder's rights. Distinctness, uniformity and stability are established by means of growing trials under agreed protocols. The results of such technical examinations can be purchased from other member states under bilateral agreements.

In relation to agricultural crops, the breeder's right is circumscribed to the extent that under the various marketing of seed regulations only seed of a variety which has been officially certified by the Department of Agriculture and Food may be marketed. The seed can only be of varieties registered in the "National Catalogue of Agricultural Plant Varieties" or the "European Community Common Catalogue of varieties of Agricultural Plant Species" which is an amalgam of all member state catalogues. Acceptance of varieties into the national catalogue is based on growing trials which establish value for cultivation and satisfactory use under Irish conditions.

There have been many advances in the biological sciences since the UPOV Convention of 1978 was signed and those changes have impacted on the legal protection of new varieties. The International Convention for the Protection of New Varieties of Plants was revised in 1991 to strengthen the protection afforded to holders of plant breeders' rights and to enable them to obtain a fair return on the investment made in their varieties from all the persons making commercial use of such varieties.

Under the existing convention there were clear weaknesses in the system in that other breeders could use a protected variety in order to produce a new essentially derived variety to compete with the protected variety without payment of any royalties to the breeder. This problem arises from the unqualified nature of the breeder's exemption in the 1978 UPOV Convention.

The plant breeder's exemption is the cornerstone of the plant breeder's rights system in that a plant variety may be freely used to create other varieties by crossing of two varieties and selecting from their progeny a variety that will be better than the original. However, various plant improvement methods such as selecting mutations of vegetatively propagated varieties or back-crossing sexually reproduced varieties have had the effect that often, at little cost, another breeder produces a new variety from the protected variety. Such a variety is considered an essentially derived variety and will possess all the characteristics of the initial variety and will differ from the initial variety in one or a limited number of characteristics. The second breeder thereby takes full advantage of the investment made by the breeder of the initial variety without making any contribution to the costs of the development of the initial variety. The revised 1991 UPOV Convention therefore discourages such types of "cosmetic" breeding. Additionally breeders were concerned at the extent of the use by farmers of seed saved from previous harvests to grow their next crop without payment of financial contribution for use of the protected variety.

The European Community, under Council Regulation 2100/94 EEC, has set up a separate system of community plant variety rights, based on the UPOV Convention but operating parallel to the national plants breeders' rights system in each member state. Under the community system breeders can obtain with one application complete protection throughout the European Union for their variety, but they are precluded from exercising national rights in respect of the same variety or from subsequently submitting applications to individual countries in the EU for a national grant of plant breeders' rights. The Community legislation, however, requires member states to provide corresponding penalties for infringements of community rights as apply for infringements of national rights and I have provided for this in section 12.

Under the Bill, protection will be extended to all plant genera and species of the plant kingdom whereas heretofore rights applied to varieties of cereals, grasses, potatoes, fruit trees, ornamental shrubs and roses only. However, in practice, I expect that only a limited number of applications for plant breeder's rights will be received from Irish breeders, namely for the small number of cultivated species on which breeding work is being done and which it is necessary to protect, and from nationals of other member states of UPOV who wish to market selected varieties in Ireland.

The right to apply for a grant of breeder's right belongs to the breeder and, where the grant is made, the breeder's authorisation is required in order to carry out certain acts of exploitation of the variety. Section 18 of the draft Bill provides that the breeder's authorisation is required for acts in relation to the propagating material of the protected variety, and in certain circumstances to harvested material of the protected variety. These are cascading provisions; that is to say, unless the breeder has had a reasonable opportunity to exercise his right in relation to propagating material of the protected variety, he can exercise his right in relation to harvested material obtained through unauthorised use of such propagating material. If the defendant can demonstrate that the breeder has had a reasonable opportunity to exercise his rights in relation to the propagating material the breeder is barred from exercising his rights against the harvested material in question.

Sections 16 and 19 respectively provide for the exhaustion of the breeder's right and for the application of exemptions to the breeder's right which are, however, narrow. The holder of a breeder's right can only exercise it and be paid royalties once in every production cycle. Breeder's rights are, however, not exhausted where further propagation of the protected variety takes place. The minimum period of plant breeder's rights under the Bill is set at 30 years for trees, vines and potatoes and 25 years for all other species. I propose on Committee Stage to introduce an amendment setting a maximum period of protection for any species or plant grouping.

The Bill also provides that the holder of plant breeder's rights shall have the same rights in respect of a dependent variety. Dependent varieties are those whose production requires the repeated use of the protected variety, namely hybrid varieties and essentially derived varieties. An essentially derived variety is a variety that is predominantly derived but still clearly distinguishable from the initial variety by a limited number of characteristics. It is typically obtained by selecting natural or induced mutants within the variety, by back-crossing and transformation by gene technology.

The extension of rights to the dependent variety means, in plain terms, that the holder of rights in an essentially derived variety cannot exploit the variety without the permission of the holder of rights in the initial variety. The holder of rights in the initial variety does not, however, hold plant breeder's rights in the essentially derived variety. It is accordingly envisaged that the two holders will reach a commercial agreement which will allow the holder of rights in the essentially derived variety to exploit them. If, however, there is no such agreement between the two parties, the holder of rights in the dependent variety may apply to the controller for a compulsory licence where the holder of the rights in the initial variety unreasonably refuses to authorise exploitation of the essentially derived variety.

A compulsory licence is only issued in the public interest and requires that the holder of the breeder's right in respect of whose variety such a licence is issued shall receive equitable remuneration. Legal provision for compulsory licensing of exclusive rights in the public interest is standard in all member countries of UPOV.

The 1991 Convention requires a member country of UPOV to safeguard the interest of the breeder during the period between the filing or the publication of the application for the grant of plant breeder's rights and the grant of such rights. The holder of the breeder's rights is entitled to claim equitable remuneration in respect of such acts as would have infringed his exclusive rights had the grant been in force during the period of interim protection. I have made such provision in section 8.

Section 19(1)(d) provides for the farm saved seed exemption which has come about more through traditional practices rather than legal rights in the area of protection of intellectual property. The UPOV Convention of 1991 provides that a breeder's right may be restricted within reasonable limits and, subject to safeguarding the breeder's legitimate interests, permits a farmer to use the farmer's own farm saved seed on his own holding. The section applies the equivalent provisions under national legislation as apply under European Union regulations for the community protected variety. The Minister will have powers to specify by order the species, such as cereals, fodder plants, oil and fibre plants and potatoes, to which the restriction applies. The Minister will by regulations lay down the necessary arrangements to enable the farm saved seed exemption to operate.

Farmers who have saved seed of varieties of these species will be liable to pay holders of plant variety rights equitable remuneration, which must be sensibly lower than the royalty charged for the use of those protected varieties. The amount to be charged is for the holders and farmers collectively to decide between themselves. Small farmers will be exempt from the requirement to pay for the use of the farm saved seed. Small farmers under community legislation are those whose cereal and fodder plant production area would not exceed 15.13 hectares excluding permanent pasture established more than five years and in the case of potatoes one whose production area does not exceed 6.3 hectares.

The Minister, when making regulations and orders in connection with the farm saved seed, will apply the provisions of the Community legislation establishing implementing rules on the agricultural exemption for farm saved seed — Commission Regulation (EC) No. 1768/95 of 24 July 1995.

A particular problem arises for breeders of ornamental varieties such as rose bushes and pot plants, in that they face major difficulties in enforcing their rights, particularly in relation to royalty payments. These varieties are easily propagated and pass through many channels before they reach the consumer and are sold from a wide range of sales outlets. Unless the breeder knows the source of the plants being sold, he cannot establish whether the material being sold has been taken from an authorised propagation. It is not only the breeders of ornamental plants but also traders who properly pay royalties who are put at a disadvantage by illegal propagation of plant varieties.

I propose on either Committee or Report Stages to insert a provision to enable breeders to exercise their rights more effectively by tracing plant material back through the supply chain from the retail sales outlet. Under this provision the holder of a breeder's right for the protected variety or his or her agent will serve an information notice on the trader asking him or her where he or she has obtained the harvested material being offered for sale. If the trader does not supply the information within the time limit laid down in the notice, certain presumptions will operate in any subsequent infringement proceedings in the civil case, unless the defendant proves otherwise or shows he or she had a good reason for not supplying the information in the first instance.

In any proceedings in court between the holder of the rights and the trader, the holder of the breeder's right will have to prove the link between the harvested material which was the subject of the information notice and the harvested material which is the subject of the infringement proceedings in order to activate the presumptions. The presumptions are that the harvested material was obtained through the unauthorised use of the propagating material, and that the holder did not have a reasonable opportunity before the harvested material was obtained to exercise his or her rights in respect of the unauthorised use of propagating material.

Any information obtained by means of an information notice can only be used in proceedings in connection with infringement of plant breeder's rights and any abuse of such information can be similarly proceeded against in the courts.

The Bill also makes provision for the annulment and cancellation of grants of plant breeder's rights. Revocation or nullity is retroactive to when the grant was made, whereas cancellation is from the current date. Revocation or nullity arises where the grant of a breeder's right should not have been made in the first place, while cancellation will arise if the holder fails to meet obligations imposed on him or her arising from the grant of such a right.

The Bill is based on the principles of the UPOV Convention as revised in 1991, which I indicated earlier was signed by Ireland, subject to ratification, in February 1992. The Bill will establish equitable relations between breeders, between holders of breeder's rights and patent owners, and between holders of breeder's rights for ornamental plants and traders.

I encourage breeders to retain the scent of ornamental plants, flowers and shrubs. Many breeding programmes seem to lose the exotic and beautiful scents we used to get when we travelled around the countryside in the old days.

Mr. Connaughton

Is the Minister talking about the woodbine?

Mr. Walsh

As Deputy Coveney knows, it is possible to grow vines in the south where there is expert cultivation of vines and the production of quite good quality wine. Breeders might extend the activity of vine growing from the lovely county of Cork to other parts of the country.

Mr. Coveney

I am somewhat thrown by the wine making suggestion but I support the Minister in that regard. The Bill is welcome and timely because it relates to the UPOV Convention, 1991, which Ireland signed six years ago in February 1992. We support the thrust of the Bill on Second Stage, while reserving our position for Committee Stage when we might make some suggestions.

I wish to share my time with Deputies Connaughton, Ring and Naughten.

An Leas-Cheann Comhairle

Is that agreed? Agreed.

Mr. Coveney

I know this is not Question Time, but could the Minister indicate in his reply if the other 34 signatories to the convention updated their legislation in a similar way? It is important to know if there is a degree of unanimity about the operation of the convention.

The Minister stated he proposed to table an amendment on either Committee or Report Stage "to insert a provision in this Bill to enable breeders to exercise their rights more effectively by tracing plant material back through the supply chain from the retail sales outlet". That applies primarily to ornamental varieties and would be a useful addition to the legislation.

I understand there was a weakness in the 1978 convention, in that it allowed breeders to use protected varieties to produce new derived varieties to compete with the protected variety, without payment of any royalties to the breeder. This arose from the unqualified nature of the breeder's exemption in the 1978 convention. The breeder's exemption is the cornerstone of the plant breeder's rights system, in that a plant variety may be freely used to create new varieties by crossing new varieties and selecting from their progeny a variety which is better than the original. However, the production of the essentially derived variety from the protected variety could be done by using modern plant improvement methods, such as selecting mutations, back crossing and many other methods which I do not fully understand but with which the legislation seeks to deal. To that extent, we welcome it also.

The subject of genetic engineering is creating a great deal of controversy at the moment. Deputy Naughten, who has expertise in that area, will speak on that matter. There has been a great deal of irrational comment on the issue, with people being frightened by very exaggerated and unsubstantiated claims. It is incumbent on the Government to lead in this area and promote a debate. I understand the Minister for the Environment and Local Government is preparing a White Paper on the subject, and the sooner it is published the better. The Oireachtas could also give a lead in the matter by promoting debate and discussion in the Oireachtas Joint Committee on Agriculture and Food.

I have raised the matter here because the Bill is largely concerned with the ratification of a 1991 convention. Is legislation which is brought in to ratify a measure dating from 1991 capable of dealing with all the technological and genetic advances which have occurred in the interim? Does the Bill need to be updated to deal with modern technology, genetic advances and so on? For example, does the Bill control the extraction of very large royalties by large multinational monopolies in the area of genetic engineering? Can those with a worldwide monopoly on a particular breed who are in possession of plant varieties derived from genetic engineering charge what they like for royalties or is there a control mechanism in the Bill? We support this Bill on Second Stage but will reserve our position on Committee Stage.

Mr. Connaughton

This Bill is important in that it protects the rights of plant breeders who put considerable effort into their work. This is an aspect of agriculture on which I have not spent much time, but I want to say something about potatoes which might run into trouble under this Bill if it is not clarified.

This area is of great importance to the human race and to the world generally in that when scientists produce a new variety of plant, it can eventually enter the human food chain. Against that background it is reasonable that the rights of people who are capable of producing new varieties are protected in the same way as the rights of people in the music industry. What this Bill proposes to do is similar to what IMRO does for the music business.

I understand, from what the Minister said, that this Bill is a general updating of the legislation in this area. It has been stated twice this morning that we are one of 35 signatories to it. What worries me is what the other countries might be doing, because plant breeding is not confined to any particular part of the world. I wonder whether we would be advantaged or disadvantaged by being outside this bloc.

It strikes me that it is much more difficult to obtain a patent for plant breeding than it is to obtain a patent in industry. In his summing up, perhaps the Minister will let us know how it will be policed. I understand there is great piracy in this business, that there is no shortage of copycats. I note also that it is extraordinarily difficult to keep track of varieties that are crossed again. I cannot say I understand the process but I understand that, in the case of back-crossing or genetic modification, a scientist or breeder could perfect a new variety which meets the criteria laid out in the Bill for obtaining a patent but that the scientist or breeder may not benefit, that his or her work would be hijacked. The Bill is trying to ensure that this does not happen. To every book its cover and to every cow its calf is the basis on which this Bill is drawn up; people who have the capability to invent a new variety will have their rights protected.

I wish to refer to section 19(1)(d) in the context of the potato industry. If a farmer grows certified potatoes on an acreage greater than 15 acres, he has to pay a royalty. If such a farmer holds on to the seed from the first year's production of certified potatoes and sows it on his farm the second year, does he have to pay royalties? Perhaps when the Minister is replying he could tell us how much the royalties are. I hope there will not be a secondary charge, but I thought the Minister said that the charges can be continued at farm level years after the first certified seed is sown.

For a country as small as ours, we have a great plant breeding history. We have produced wonderful potatoes. The one with which most Irish people readily identify is the rooster variety which is one of the best potatoes ever invented here. Consequent on this Bill, we must try to get the best varieties to suit our conditions, whether we are talking about white clover, perennial rye grass, sugar beet or cereals. We have to ensure the maximum return because we are competing on a European stage with people who have those facilities. I pay tribute to the scientists — mostly unsung and unheralded — involved in this area. It is a part of Irish agriculture on which few people get an opportunity to speak. The information we get every year on cereals is a case in point. It is very important to know what varieties did well and which were problematic, before farmers use them on a commercial basis.

Genetic engineering was mentioned. I will not go into it because the Bill does not cover it, but what the Bill covers is close to it. I have no hangups about genetic engineering but I worry about the excesses, and I never like to tamper with nature. However, it has good aspects. The blight resistant potato has eluded scientists for many years. They are not able to breed a potato that is resistant to blight. It was done once or twice, but the potatoes were no good, producing very few tubers. If we could produce a blight resistant potato, that would be a good day's work.

Mr. Ring

Let me take up the points made by Deputy Connaughton in relation to the potato industry. At Enniscrone House, Crossmolina in north Mayo, we were noted for our potatoes, and they are now setting potatoes for sale abroad. I welcome that.

I am glad that plant variety rights will be protected. I hope we can go further because in recent times we saw what multiple supermarkets could do in relation to the beef industry. I hope Tesco will not do in the area of plants what they did in relation to beef and import produce from Britain and other countries into Ireland. We already have people involved in this industry who do a fine job. I hope this Bill will protect them but, in respect of our vegetables and other plants, the multinational supermarkets will not get away with what they did in relation to beef. The Department must monitor this industry on a regular basis. Given the action it took in relation to Irish beef, I no longer trust Tesco. I will table parliamentary questions to see if imports in this sector have increased.

Deputy Connaughton referred to royalties. However, we know from the music business the problems associated with collecting these. In some cases those responsible for collecting royalties have adopted a heavy handed approach and threatened the owners of public houses with court action. People who produced a new variety of potato or plant may want to patent it so that they will be paid royalties. However, it is difficult to patent such products. I hope this matter can be resolved and that the Bill will be easy to implement.

Traders and shopkeepers should not be held accountable under the Bill. We are all aware of the case involving a shopkeeper from Ballina who was taken to court for selling cigarettes to a young boy. It is not easy to run a business. One must pay tax, VAT and rates; one is effectively working for the State on a full time basis. My family is involved in business and it is wrong that a businessman who pays his dues was set up by a State agency in this way.

I have received many representations on genetic engineering. Many people are concerned about this matter and more information must be made available on it. Like Deputy Connaughton, I do not like to see nature tampered with. As we have seen in many areas, if nature is tampered with it has a way of responding, sometimes in an unpleasant way.

This is not the most exciting Bill brought before the House. It is the only Bill on which I have not received representations. Earlier this week I sought the views of the IFA and various breeders but there was not much interest in it. Deputies Connaughton and Coveney asked how many countries have signed up to this convention. We are great at implementing EU directives — sometimes we are too good at doing this — and I would like to know the number of countries which have implemented similar legislation.

I will deal with the Bill in more detail on Committee Stage. It is not the most exciting Bill but if it regulates the industry it is welcome. I hope the Minister monitors the industry as it will ensure that those involved in it are treated fairly by the multinationals. If problems similar to those in the beef industry arise the multinationals will have to be taken on. We may have to call on the public to respond to this in a certain way.

Mr. Naughten

I ask the Minister of State, Deputy Davern, to raise with the Minister the possibility of growing vines on the banks of the Shannon. They could be called Shannon valley vines.

The purpose of the Bill is to facilitate Ireland's ratification of the 1991 UPOV Convention and the EU Council regulation setting up a Community plant variety rights system. Such a system is vital to ensuring the proper exploitation of new varieties of plants which may have major economic or nutritional benefits for the consumer and, therefore, I welcome it. However, I would like the Minister to clarify a few points which may be regarded as ambiguous, particularly in view of new technologies such as genetic engineering.

Sections 10 and 14, which define the types of new varieties, need to be clarified. Under these sections the word "stability" is used as a method for defining the characteristics of the variety and for declaring plant breeders' rights null and void. How is the word "stability" defined in the Bill? Section 14(3)(a) refers to stability after repeated propagation. What is the Minister's definition of the term "repeated propagation"?

I ask this question because there may be an alteration in the genetic make up of a genetically modified plant which may instil herbicide resistance but which does not change the plant. Is it proposed to have 97 per cent or 100 per cent stability in the case of herbicide resistance? According to the Darwinian theory, 100 per cent stability is not possible. I would like this definition clarified as it has major implications for jumping genes where a gene moves from one plant to another.

The same argument applies to life cycles. For example, a variety may be stable for five or ten life cycles but unstable after 50 life cycles. Both these phrases need to be clearly defined so that we know exactly what they mean.

The definition of "distinctiveness" under section 14(1)(b) also needs to be clarified. This section states that the plant variety concerned must be clearly distinguishable from any other plant variety. How is the term "clearly distinguishable" defined? Are we talking about the genotypic or phenotypic plant variety or both? It is important that this is defined as two plant varieties may look the same and produce the same product or fruit — the phenotypic expression — but they may be dissimilar in terms of genetic make up.

I will again use the example of herbicide resistance which is a topical subject. While two sugar beet varieties may produce the same product, genetically one may be resistant to a herbicide. This may have major implications from an economic point of view. Will the legislation ensure that other breeders have access to such varieties? Clarification of this is vitally important in terms of section 9(1) under which a person refused authorisation by a breeder to use a plant variety which clearly has major consumer and-or producer benefits can be granted authorisation by the controller if he is satisfied it is in the public interest to do so.

Clarification of these points will help to allay fears among consumers regarding genetic modification of plant varieties. We have been irresponsible in not having a full and open debate on this matter. Expert groups should be called before the Committee on Agriculture, Food and the Marine to ensure that the Legislature has the full facts regarding genetically modified organisms. This would enable us to make an informed decision on issues which will come before the House in future years. It is only when the Legislature and public are fully informed that we can tackle the serious problems caused by regulations which inhibit the development of this revolutionary technology.

All those involved in biotechnology research fully subscribe to the need for the regulation of biotechnology, including GMOs. During the early 1970s when the technology was being developed genetic engineering researchers voluntarily agreed to introduce their own controls. We now have significant experience of GMOs and a clearer picture of their economic, environmental and health benefits. Instead of imagining the disadvantages and dangers of GMOs, it is time Ireland and the rest of Europe recognised the opportunities and benefits they can provide.

Deputy Ring spoke about tampering with nature. We are talking about genetic manipulation, not genetic tampering. It is the manipulation of existing organisms.

Deputy Ring stated that man should not interfere with nature but man has interfered with nature since time began. In developing new plants, man has always mixed species and varieties to come up with new products and better plants. We are using genetics as a tool to do that. With genetic manipulation we are only speeding up the process.

Industries here are losing out financially and are disadvantaged economically because the EU has the most restrictive regulations in the world. We need a full, open and frank debate rather than scaremongering. People do not have the basic facts. Genetic engineering can be of major benefit to the public in increasing food safety and the quality of life. It has even been suggested that Dolly, the famous sheep may have been of help in the health area and the techniques may be used in transplant operations. This would be advantageous because, as the House will be aware, there is a shortage of available donor organs.

We must give this new science a fair opportunity. We need a full and frank debate in this Chamber and at the Oireachtas Joint Committee on Agriculture, Food and the Marine, where we can debate the issues with the expert groups from both sides. Then we can come up with a realistic proposal instead of the scaremongering entered into by one organisation.

Dr. Upton

I agree with the general trend of what Deputy Naughten said. Obviously he has benefited from his background in science and I welcome the introduction of a little science to this Chamber.

With regard to what was said about interfering with nature, certainly we should not do it lightly. However, we must recognise that it has been done since man moved on from being a huntergatherer. In essence, the agriculture and food industries are about interfering with nature. Medicine interferes with nature in a pretty grotesque manner. Nobody here would suggest for a minute that giving people blood transfusions is natural, yet it is highly desirable. Therefore, when terms like "interfering with nature" are used we need to think a little more about it. I am not suggesting there should be gross or reckless interference with nature, but we must recognise that we do it all the time and there is wholesale support for it. I doubt many people want to argue that we should abandon medicine or that man should return to being hunter-gatherers in the wild.

I welcome the Bill in as much as it caters for the development of new plant varieties, etc. It is important that Ireland keeps pace with these developments in its legislation.

The Bill is another response to an EU Directive. It protects the rights of breeders over a wide range of countries. It is important that those who engage in scientific research have their rights and investments protected since the development of plant varieties is expensive and important. The development of a new plant variety, as I understand it, takes about 20 years from the initial research to developing the new variety to the stage when it is used in commercial farming. It is important that the Bill defines the concept of novelty, and I welcome that development.

It is also important that the Bill will expand the potential offered to Irish plant breeders. The number of people engaged in plant breeding in Ireland is small. There have been between ten and 20 people engaged in it at any one time. Nevertheless, Irish plant breeders have made a significant contribution to the science. In the 1930s and 1940s, when Irish agriculture was fairly primitive, significant progress was made in the area of plant breeding, largely due to the work of the late Professor Pat Carroll, giving rise to the Glasnevin varieties of plants which fulfilled a valuable function in those days. In later times there has been the work of Teagasc and, indeed, the great success which Mr. Kehoe had with the new variety of potatoes which was developed in Oak Park, County Carlow. There is also the fine work being conducted by the Department of Agriculture and Food in this area, where it has built up considerable expertise and where it provides a valuable service to people engaged in commercial agriculture by assessing new plant varieties coming on the market. Such work must greatly help the industry in decisions on investment in these new varieties.

The Bill will help to stimulate research in this area, which is important. It will increase the rate at which new and better varieties come on the market, and that is a welcome development. It will also help to increase the variety offered to consumers, and to reduce the cost of food. It will improve the quality of food in as much as some of these products are less prone to disease and attack by pests.

It is important in developing plant varieties that the concerns of consumers are taken into account, but that has not happened to the desired degree. The main concerns taken into account were those of the farming industry. I do not want to belittle their concerns and I know they translate into improved products for the consumer to some extent, but I would like to see greater attention given to the concerns of consumers and have it filter back into the plant breeding industry.

The Bill is also welcome as it gives rise to a rare occasion on which the Houses of the Oireachtas discuss matters which relate to science and technology. This is very much the exception. It is a pity we do not afford more attention to science and technology. In many ways there is a great fear of science and technology and this is an aspect of life to which Deputy Naughten referred. This Bill deals with genetic engineering in the old fashioned way but it is still genetic engineering, the modification of the genetic composition of plants in an old fashioned and crude way. There is no point deluding ourselves that this is not genetic engineering. It is. However, when it is done it is important that all concerns are taken into account. It is important to have an adequate supply of information on genetic engineering, but we have not. It is important to have appropriate controls and, as I understand it, they are not there. It is very important that there is proper assessment of the risks attached to genetic engineering, and science and technology generally.

There is a huge fear of genetic engineering, yet those who are close to science would understand that this is the next big frontier to be crossed. There is a huge potential for good. There is a huge opportunity. We must go forward on that basis rather than turning our backs on science.

Most factors relating to genetic engineering are driven from outside the country. We have relatively little control except whatever influence we can exercise through the EU. We certainly have very little control over what we can do here. Many developments are being driven by the US. Given its dominance in science and technology, it would be hard for us, regardless of what we do, to avoid the impact of these developments. It is very important then that we set about understanding them and influencing their direction as far as possible.

I welcome the fact that an important conference on science and technology will be held next month which I understand is being organised by Professor David McConnell in Trinity College. It is unfortunate that it falls to somebody like Professor McConnell to take the initiative and organise this type of conference. I would have thought those engaged in policy formation and development would be organising these conferences rather than leaving it to a scientist. That should not be the case. Parliament should be behind the development of understanding in these areas.

Some of the realities in relation to what is taking place in genetics, and the implication of that for all of us, are chilling. I understand we are not far from the day when it will be possible to say, having carried out a DNA analysis on an individual, that he or she will be a schizophrenic by the age of 30 or will suffer from Alzheimer's disease at 60. The implications of that are mind-boggling, particularly for agencies such as the insurance industry because it works on the concept of risk. If all risk is eliminated, responsibility for problems that arise will fall back on the State. The implications of these developments are enormous and it is a pity that the Irish chattering classes, those who lead opinion in Ireland, are not interested in these matters because inevitably they will visit us.

It is unfortunate that some effort is not put into increasing public understanding of science and technology. The key industries are science and technology based. The food, farming, electronics and chemicals industries depend on science and technology, yet a large number of people do not make the connection between developments in those industries and the economic welfare of the country.

I should have mentioned that I wish to share my time with Deputy Gormley.

An Leas-Cheann Comhairle

Agreed.

Dr. Upton

In relation to plant breeding and various other aspects of that, it is important that there is an understanding of the concept of risk and that some assessment is carried out of the risks attached to various aspects of the human condition. One wonders at the mentality of a person who says they have stopped eating meat because they are afraid of contracting CJD, yet they smoke 60 cigarettes and drink ten or 12 whiskeys each day. They are afraid of contracting CJD yet they are burning out their lungs and developing cirrhosis of the liver as they gulp down alcohol. That is an enormous paradox and I wish those people in charge of disseminating information would make more of an effort to introduce an element of balance on these matters.

Mr. Davern

It is the real purity of the Irish socialist.

Dr. Upton

We are not pure and we are not perfect.

Mr. Gormley

I thank Deputy Upton for sharing his time. This has developed into a debate on genetic engineering, which I welcome. It is timely that we are discussing this important issue in the House.

Deputy Upton stated that Professor McConnell in TCD will soon hold a conference in the Point Depot, which is welcome, but until now a debate on this issue has not taken place in this House or in the public arena but in our courts because of the judicial review granted to Genetic Concern on foot of the Monsanto trials.

I want to return to some of the points made by the previous speakers. Deputy Naughten said that some of us are engaged in scaremongering. That is a charge often levelled at the Green Party. I have been called a scaremongerer for many years in relation to other issues.

Mr. Naughten

I was not talking about the Green Party, but Genetic Concern.

Mr. Gormley

Genetic Concern has close links with the Green Party and I have great admiration and respect for that organisation and Mr. Quentin Gargan who has put forward the case very well in debates on radio.

Mr. Naughten

He was very inaccurate.

Mr. Gormley

He was accurate in all the statements he made. Deputy Naughten also said that we have made statements to the effect that pigs will fly. Pigs will fly when companies like Monsanto put people's health over profit. That is what this is all about. Genetic engineering is essentially driven by profit.

A number of statements have been made about the fact that genetic engineering has continued for hundreds of years but they are inaccurate. We are not talking about genetic engineering but traditional plant breeding which is known as hybridisation.

Dr. Upton

It is the same.

Mr. Gormley

No. This allows us to cross different varieties of fruit or vegetable from within the same family to produce strains with improved characteristics. For example, we can have tomatoes which grow in colder climates. That is a welcome development but with genetic engineering, scientists cross barriers between species so that, for instance, genes from a fish are put into a tomato to stop it freezing. Genes taken from a virus, a bacteria or a flower are spliced into sugar beet to make them resistant to herbicide, which Deputy Naughten referred to. Maize is being engineered so that its leaves produce a pesticide. We have to recognise that we are moving into a completely different area.

Dr. Upton

Of genetic engineering.

Mr. Gormley

There is a great deal of public concern about this and, for once, I am not in the minority on this important issue. The Deputies who are clearly in favour of going ahead with genetic engineering talked about calculating the risk factor. They are not calculating the risk factor because there have been instances in the past, and I referred to this when I called for an Adjournment debate on this issue, where companies like ICI and Dupont produced CFCs. This was a cheap, safe product yet we now know it has caused enormous damage to the ozone layer. Recent reports indicate that using sunscreen is not sufficient protection, and instances of skin cancer have greatly increased, yet scientists said this product was absolutely safe.

Dr. Upton

No scientist can say anything is absolutely safe.

Mr. Gormley

A scientist stated on "Morning Ireland" the other day that genetic engineering was a very precise technology and that there was no danger whatsoever. Those were his words.

Dr. Upton

He did not say that.

An Leas-Cheann Comhairle

Deputy Gormley, without interruption.

Mr. Gormley

There is great concern throughout Europe about this issue. Over one million Austrian citizens signed a petition calling on their Government to stop the release of genetically engineered organisms into food and the environment. Austria has banned the import of genetically engineered maize and has legally challenged the EU for sanctioning its use. We should follow that direction.

A Bill has been introduced in Brazil which would ban the planting, commercial growing and consumption of genetically engineered organisms and products anywhere in the country for two years. Brazil has a unique opportunity of becoming the world's leading supplier of natural soya beans for which a large European market is forming. We know that market exists because a MORI poll commissioned by Greenpeace found that 59 per cent of Europeans are opposed to the development of genetically engineered foods. The poll was undertaken in Denmark, France, Italy, the Netherlands, Sweden and the UK. Opposition in Sweden was as high as 76 per cent.

There is grave public disquiet about this issue. A number of farmers who had intended to carry out these trials have backed out. We must have a public debate on this issue so that parties can nail their colours to the mast. In Opposition, Fianna Fáil had good policies in this area. I would remind Deputy Davern of the statement by Deputy Dempsey, then Opposition spokesman on the environment, on 26 April last year in the run-up to an election:

We are deeply concerned about the development and sale of genetically modified organisms whether they are used in agriculture, food or food processing. It is our position that it is premature to release genetically modified organisms into the environment or to market foods which contain any genetically modified ingredients or where genetically modified organisms have been used in the production of the food.

Current scientific knowledge is inadequate to protect the consumer and the environment from the unpredictable and potentially disastrous effects which may appear immediately or at any time in the future.

The Minister, Deputy Davern, should clarify whether that is still Fianna Fáil's position. Deputy Dempsey went on to say: "Fianna Fáil will not support what amounts to the largest nutritional experiment in human history with the consumer as guinea pig".

We have a responsibility to the people who are genuinely concerned about genetic engineering. It is not good enough at the time of an election to pull the wool over people's eyes by making such statements. There must be substance behind them. To make such statements was a cynical exercise because since coming to office the Government has not been very concerned about this matter. Genetic Concern requested a meeting with the Minister, Deputy Dempsey, to discuss this vital issue with him, but while he was happy to meet that body when in Opposition, he will not meet it now.

The Taoiseach gave a commitment that the Government will produce a policy document on genetic engineering, which will be published towards the end of March. I welcome that, but the Food Safety Authority has no real powers in this area and we are awaiting a Bill in that regard. The Food Safety Authority was set up two years ago because of the problem with BSE, which was referred to by Deputy Upton. One member of the Authority, Darina Allen, has said she is very concerned about developments in genetic engineering and about the Monsanto trials. Her views should be taken on board. The Food Safety Authority said that there is no evidence to show that genetic engineering is dangerous, but neither is there evidence to show it is safe. We must adopt the precautionary principle — if one is not sure of the consequences, one must progress very slowly. We owe it to the public to do that.

Monsanto is a company with a very poor record and with a credibility problem. It said it has a good record in regard to safety, but that is not the case. There have been difficulties, for example, in regard to rape seed. The company had to withdraw 60,000 bags of rape seed last year because of the emergence of an unexpected and unauthorised gene. Its cotton crops have twice failed to perform as expected. This is a huge company which is desperate to get its products on the market because of the profit motive. In regard to research, the company was asked to conduct trials on dioxin, the most carcinogenic substance known, but it doctored the results. That is clearly documented by Genetic Concern.

We must be extremely vigilant and cautious in regard to this matter. I look forward to a debate in the House when the policy document is laid before us and the various parties can then decide their policies. I listened to Deputy Connaughton this morning who seemed to take a different view from that of Deputy Naughten. Deputy Connaughton referred to the issue of potatoes. On the question of diversity, Genetic Concern stated:

The wide variety of seeds currently grown have different levels of resistance to pests, viruses and changes in climate. Genetech seeds would replace the vast pool of traditional varieties with a more vulnerable single strain. This could result in diseases such as potato blight having disastrous effects on food supply. We in Ireland should know better.

Mr. Davern

If we took the Deputy's advice, there would be another famine.

Mr. Ellis

The protection of plants and foodstuffs may be compared to copyright in another sphere. It is imperative that we consider the overall development of various foodstuffs, plants and seeds coming on the market. We are all concerned about Monsanto and its proposed trials. In that context certain trials should be allowed which would be fully controlled. We could then come to a conclusive decision on the matter. I do not agree with what that company is doing, but it has the right to carry out trials.

This Bill was introduced mainly to allow Ireland to ratify EU regulations setting up a plant variety protection system. We should look at some of the developments that have taken place here in the past ten or 15 years, for example, in breeding new varieties of potatoes, some of which have been very successful. The Department of Agriculture and Food is to be praised for its work in that regard. It has helped the potato industry, but the full benefits have not accrued in terms of international sales of some of those species.

While this may not be the proper place to do so, we must consider this matter from the point of view of herbicide use and its effect on plants. There should be tight control on the use of herbicides. People are concerned that products coming into this country which may have been sprayed with organo-phosphorus sprays will have an effect on their health.

This is a technical Bill which will be of more interest to technocrats and lawyers than politicians because they will want to protect the interests of people who develop different varieties of plants and seeds. It is imperative that assistance and protection is given to developers. It is unacceptable that a person who produces a superior product would not get the full benefit of it. In the industrial field there are copyrights and patent rights, but in this case there are limited rights in terms of protection. If a developer has made a large investment, it is possible that someone could steal their development at the last minute and they would have few rights in terms of obtaining restitution.

Plant breeders are affected by the origin and source of various plant varieties. In the past, litigation procedures were instigated in respect of the production of the best variety of roses. This might seem amusing but litigation procedures arose in the UK when a person claimed that a variety of rose they developed had been stolen.

When the Bill is enacted I hope we will be able to protect and encourage plant breeding in Ireland. That is imperative for the future development of the agricultural scene. There is scope to encourage plant breeding and profits to be gained from it. We should not leave development of plant varieties to major companies with large resources to reinvest. We should put in place mechanisms to encourage the development of plant varieties. Perhaps venture capital funding could be provided for this type of work.

It is important that members of the public should be made aware of the contents of the Bill. I accept it will be passed by the House without great debate. However, it is imperative that the various organisations involved make the general public aware of the Bill's provisions and what they can achieve.

Minister of State at the Department of Agriculture and Food (Mr. Davern)

I thank the Members who contributed to the debate, which may have gone slightly off track. This Bill is concerned with the rights of individuals — a fact to which the Green Party does not seem to have given consideration — in respect of claiming ownership of and gaining royalties from plant varieties. I believe it was inappropriate for the Green Party to react in that way. I thank those who asked questions and I will do my best to answer them.

Deputy Naughten inquired about varieties which are clearly distinguishable. This is a difficult concept but it is outlined in the legislation. Using modern techniques, varieties can be identified at the level of genotype and phenotype.

Deputies Coveney and Connaughton raised the issue of royalties. The pattern of royalty payments is determined by market forces and neither the controller nor the Minister have any role in fixing the level of royalties. It is the responsibility of the breeder to decide the level at which royalties are set.

Deputies Coveney and Ring inquired about the action taken by other states. There are 35 members of the UPOV, the majority of which have signed or are currently developing legislation to ratify the 1991 convention. Under GATT agreements, all member states of the WTO will, by 1999, be obliged to put in place a sui generis system for plant varieties. There will have to be worldwide compliance with these systems.

Deputy Ring inquired about a shopkeeper selling cigarettes to a child and whether this could be considered legal because tobacco is a plant.

Mr. Ellis

Was the Deputy referring to cannabis?

Mr. Davern

No, he was referring to commercial tobacco. Anyone who sells cigarettes to children should be prosecuted. No one, regardless of whether they are constituents of Deputy Ring, should be defended in that light. It will be the responsibility of the shopkeeper or trader to advise the holder from where the harvested material being sold was obtained. That information is clearly stated on packets of cigarettes and I hope it will be clearly stated on other products to make life easier for retailers.

Deputy Naughten raised the lack of stability. The technical examination of the variety will be determined if the variety meets the criteria on distinctiveness, stability and uniformity. If a variety is found to be unstable at growing trials, the rights are then revoked or cancelled. Varieties would die a natural death if they were found to be unstable or unsuitable. I intend no personal slight to the Green Party or the generic views of its members in that regard.

Mr. Gormley

Will the Minister of State answer my question?

Mr. Davern

Yes, in a moment. Deputy Connaughton inquired about the use of farm saved seed. A farmer who saves potatoes, for which plant breeding rights exist, from a previous year's planting will have to pay compensation if his production area exceeds 6.3 hectares, which equates to 150 metric tonnes of ware potatoes.

With regard to genetically modified organisms, I accept that people are rightly concerned about this matter which should be discussed openly. However, I do not agree with the fanaticism expressed in certain statements on this matter. For example, a member of the Green Party recently called me a fascist. I do not hold with fascism, if I believe in any "ism" it is one which begins with the letter "R".

Mr. Gormley

What about the statement of the Minister of State?

Mr. Davern

The statement to which the Deputy refers says that we are deeply concerned. Everyone is anxious that these matters should be discussed and investigated in full. However, as Deputy Ellis inquired, why should we not allow experiments with proper protection mechanisms to proceed?

The damage done by certain individuals who destroyed plants in County Carlow last year strikes me as another form of fascism. People who oppose field sports have also done damage. It is extraordinary that those who oppose coursing place broken glass on the same track on which dogs will be running. I was sorry to see that there was some level of support among Green Party members for this behaviour.

Mr. Gormley

To what level of support is the Minister of State referring?

Mr. Davern

I referred to "some level of support".

Mr. Gormley

What level of support does that entail?

Mr. Davern

I am not familiar with the way Green Party members rank themselves.

Mr. Ellis

Deputy Gormley can disown such behaviour if he was not involved.

Acting Chairman (Mr. Kirk)

The Minister of State has the floor and he should be allowed to conclude without interruption.

Mr. Davern

The Environmental Protection Agency is responsible for the regulation of genetically modified organisms in Ireland. Council Directive 90/219/EEC lays down common measures for the contained use and research in industrial facilities of genetically modified microorganisms. Council Directive 90/220/EEC covers the deliberate release into the environment of genetically modified organisms for experimental purposes and for placing products on the market. Those directives were transposed into Irish law under the Genetically Modified Organisms Regulations 1994-7. Before genetically modified organisms can be released into the environment for research and development, namely, field trials, the competent authority must give its consent when it has studied the technical description of the proposed release, evaluated the risks involved and the impact it will have on human health and the environment and considered representations made in respect of the proposed release.

The procedures to be followed for placing GMOs on the market in the EU involve the submission of a notification and a detailed technical dossier to a competent authority. The competent authority is responsible for carrying out the main environmental risk assessment in relation to humans, plants, animals and the environment and must make its decision within 90 days.

In the case of a favourable opinion by the authority to authorise the placing of the GMO on the market the application is forwarded to the EU Commission and the competent authorities of other member states with a favourable opinion for consent. In the event that an objection to consent being given is made by any member state, the Commission must table a proposal for a decision before the Committee on the Release of Genetically Modified Organisms to the Environment and consent can be given by qualified majority.

Accordingly, the only issue to be considered in relation to the application of a plant bidder's rights for a GMO variety is whether the variety satisfies the criteria for granting such rights, namely, whether the variety is novel, distinct, uniform and stable and whether it has suitable denomination.

Dutch elm disease wiped out elm trees. Research trials have given rise to a tree which is resistant to the disease. That has been achieved through research by people who care. I did not want a generation to grow up without seeing an elm tree.

Mr. Gormley

What the Minister of State says is the opposite to what he said in Opposition. He said he would seek a moratorium on GMOs.

Mr. Davern

We said that we would be concerned——

Mr. Gormley

He said more than that. I have the quotes.

Mr. Davern

The Deputy's quotes are selective as always. If we do not find varieties which are resistant to disease we would not have the flowers that we have today or the variety of plants and foliages available. Nature needs help.

Mr. Gormley

There is less variety now than ever before, less biodiversity.

Mr. Davern

There is a greater number of varieties. If the Deputy visits any of the hardy nurseries and examines their stocks he will see they have done a tremendous job on plants, trees and shrubs. That has been possible because of research, which the Deputy is against.

Mr. Gormley

I am in favour of research.

Mr. Davern

Why does he object to this research?

Mr. Connaughton

Will we be able to rid potatoes of blight?

Mr. Davern

We hope to do so.

Acting Chairman

I invite the Minister of State to direct his remarks to the Chair. It might help to dissuade Deputies from interrupting.

Mr. Davern

There has been violent opposition to the confined and controlled trials to be carried out. A number of people have withdrawn from those trials this week because of threats of intimidation.

Mr. Gormley

Who threatened them?

Mr. Davern

Farms have been identified and maps were circulated with their locations. Deputy Gormley might smile about the matter but it is serious for people to feel threatened.

Mr. Gormley

Is the Minister of State trying to associate me with violence?

Mr. Davern

No. However, I see the Deputy as being on the same side as some of the people involved in violence.

Mr. Gormley

I condemn any intimidation.

Acting Chairman

I advise Deputy Gormley that there will be ample opportunity for detailed discussion of the Bill on Committee Stage.

Mr. Davern

It is unfortunate that there are objections to trials which may improve the health of plants and, therefore, the health of people.

I disagree with Deputy Connaughton when he said the rooster was a good potato. I would prefer a golden wonder any day.

Mr. Connaughton

I will be looking for some soon if I get a few minutes.

Mr. Barrett

What about the Queen's variety?

Mr. Davern

Coming as he does from Queenstown I can understand why the Deputy would like them.

If the varieties are not improved upon they will disappear because of over cultivation. Research must be done. I do not like rumours and exaggeration to be stated as facts which are damaging to research and to those carrying out the research. In particular, I am sorry that a number of people were obliged to withdraw from the closely monitored trials because they felt threatened by militants.

I am pleased that the Bill has come before the House and that it promotes the protection of the rights of individuals to plants which they breed. I look forward to an interesting Committee Stage debate.

Question put and agreed to.