ELEVENTH COMMISSION MEETING
9 - 10 MAY 2002
GLAMORGAN BUILDING
CARDIFF UNIVERSITY
CARDIFF, WALES

MINUTES

Papers

AEBC 02/07 Liability Sub Group Draft Paper on Issues for discusion
AEBC 02/08 Stocktake of developments relating to GM crops

Present

Professor Malcolm Grant (Chair)
Ms Julie Hill (Deputy Chair)
Revd Professor Michael Banner (Thursday only)
Ms Helen Browning (Thursday only)
Professor Phil Dale
Dr Ed Dart
Dr Matthew Freeman
Mr John Gilliland
Professor Robin Grove-White
Dr Rosie Hails
Ms Judith Hann
Ms Chi Chi Iweajunwa
Dr Derek Langslow
Professor Jeff Maxwell
Dr Sue Mayer
Ms Justine Thornton
Dr Roger Turner

Secretariat

Mr Richard Abel
Mrs Anne Packer
Mr Pat Wilson
Ms Mileva Novkovic
Mr Chris Hepworth
Mr Andrea Bovolenta

Officials also present

Judy Britton, Office of Science and Technology
Derek Bearhop, Scottish Executive (Thursday only)
Huw Jones, Welsh Assembly Government
Liz McCullough, Department of the Environment Northern Ireland
June Milligan, Welsh Assembly Government (Thursday only)
Keri Torney, Department of Environment, Food and Rural Affairs
Claire Bennett, Welsh Assembly Government

THURSDAY 9 MAY

THE MEETING WAS OPEN TO THE PUBLIC TO OBSERVE

Apologies for Absence

1. Apologies had been received from Dr Dave Carmichael, Anna Bradley and Professor Ben Mepham.

Introductory matters

2. The Chair opened the meeting by welcoming members of the public to observe the Commission’s proceedings. The Commission was pleased to be holding its first meeting in Wales. Members had met Carwyn Jones, the Welsh Assembly Government Minister for Rural Affairs and Assembly Business, over lunch, and he had welcomed the AEBC to Wales.

Minutes of the Previous Meeting

3. Members’ comments had already been incorporated into the minutes. These were now confirmed as a correct record and would be posted on the AEBC website as such.

Matters of Report

4. The AEBC’s advice on a public debate on the possible commercialisation of GM crops had been finalised on the lines agreed at the 18 April meeting and submitted to Government. The Commission looked forward to a speedy response from Government.

5. Work on the animals and biotechnology report had been slower than anticipated because priority had necessarily been given to the public debate work. Discussion of the draft report would be high on the agenda for the AEBC July meeting with a view to publication during the summer or early autumn. The secretariat would circulate a revised draft of the report, taking account of views expressed at the AEBC March meeting, to all members for comment before the July meeting.

ACTION: Secretariat

6. The Chair had appeared before the House of Commons Environment, Food and Rural Affairs Select Committee on 23 April. The Select Committee had shown interest in the AEBC advice to Government on a public debate. Roger Turner had appeared during the previous week in his SCIMAC capacity. Members would be told when transcripts of evidence were available.

ACTION: Secretariat

7. The Chair, Deputy Chair and secretary had met Stephen Smith of the new Agricultural Biotechnology Council for lunch, during which relationship and presentational issues were discussed. The AEBC would seek to ensure that there was no confusion in the public mind about the respective identities of the two bodies.

8. Members had been requested by the secretariat to look again at their entries in the Register of Interests, to update their interests where necessary and to keep them current. The secretariat could advise in cases of doubt as to what should be included.

ACTION: Members and secretariat

9. Rosie Hails gave an update on the DEFRA baseline study. DEFRA had let the contract to a team drawn from the Centre for Ecology and Hydrology at Monk’s Wood, the Centre for Rural Economic Research, Cambridge University, and the Northmoor Trust. A review group including two AEBC members – Dave Carmichael and Rosie Hails – would liase with the researchers and keep AEBC informed. Members were pleased that the contract had been let, particularly since such a study had been recommended by AEBC in Crops on Trial.

Discussion of draft paper on liability issues (AEBC/02/07)

10. Commission Members had seen the paper (AEBC/02/07) before the meeting, which raised a number of issues for discussion. Justine Thornton introduced the discussion by saying that the sub-group would develop some scenarios giving examples of liability issues at a meeting the following day, and that she wished to focus initially this session on whether genetically modified organisms (GMOs) were sufficiently different to need a specific regime for liability purposes. She would describe some snapshots of issues in agriculture, and highlight whether commercial growing of GM crops might introduce fundamentally new issues. She had worked on these on her way to the meeting, and so had not had the opportunity to discuss them with the liability sub-group. Members of the sub-group commented that they would have preferred to discuss the examples together before the meeting. The examples were therefore, not used as the focus of discussion.

11. Example 1. Around thirty years ago, a plant-breeding institute developed frost-resistant plants, so seeds could be sown in autumn. Since then, areas of arable farmland have been used throughout the year without needing fallow periods. The practice has become widespread, and is now thought to be one of the reasons for a reduction in farmland biodiversity. Should the institute - which may no longer exist - be required to take responsibility, thirty years on, for damage that was then unforeseeable to a public good (biodiversity)?

12. Example 2. Spray drift. A sudden, unexpected change in wind when a farmer sprays crops can result in spray drifting to another farmer’s fields and cause damage to crops, with a resulting loss in income. This is not uncommon. Cases could in principle go to court, but in practice farmers resolve them via their insurers; quite often the same insurer acts for both farmers.

13. Example 3. In an area with a patchwork of small farms, a ‘model’ farmer finds his potatoes are suffering blight, and knows that nearby farmers have had low levels of blight for some years. The farmer cannot identify the source of the problem and has to bear the loss.

14. Example 4. A beekeeper finds numbers of bees have died, quite probably from spraying of crops. Farmers spraying eg oil seed rape, should give advance notification to beekeepers, and spray at sunset when bees are inactive. It is very difficult for the beekeeper to identify which among a number of farmers might have caused this by not adhering to guidelines.

15. Example 5. A farmer grows lavender, and part of the economic value of the crop is that people find it attractive and so visit the farm. A pig farm nearby produces unpleasant smells. The result could be loss of visits and resultant income to the lavender farm, or the pig farm might be required to close, perhaps through stringent enforcement of existing regulations.

16. Members commented that although some of the examples offered an approach to thinking about some of the questions in paper AEBC/02/07 on whether or not GMOs were intrinsically different for liability, and why AEBC was studying liability, some of the examples were over-simplified and did not help the debate. Spray-drift had parallels with pollen movement and the potato blight example highlighted the accommodation necessary between different types of farming. The winter crop example raised the question of changes in agronomic practice resulting from a new variety or technology. It was widespread adoption of the crop, rather than the crop itself, that could give rise to a problem.

17. In discussion, Members identified a number of main areas for further consideration by the group.

• On the ‘difference’ of GMOs, there might well not be a single answer to the question of whether GMOs were different for liability purposes. GM crops were certainly different from conventional crops in having generated widely expressed public concerns. It would be useful to look at the nature of potential problems and what situations might arise. On initial reading of the paper and annex, it seemed as if a liability regime might not add a great deal of value and was not the only or most important part of the approach to commercialisation. Assessment of differences might not be the most fruitful approach;
  
  
• The approach in Crops on Trial, looking at all impacts of commercialisation, was fruitful, and perhaps had more to offer than comparisons with earlier decades, since society and agricultural practice had both changed. For example, winter sowing had had a very significant impact on agriculture and the environment but this had not been assessed in advance of it becoming widespread after new crop varieties had made it possible, and Government encouragement to increase cereal production and subsidies to farmers had caused it to happen. It was much better to assess the potential beneficial or damaging wider impacts of major new agricultural technologies, such as GM crops, in advance;
  
  
• Damage. It could be useful to focus on the nature of damage and whether that would differ for GMOs;
  
  
• Possible need for a liability regime. The law was a blunt instrument and extension of laws might not be a good option; though conversely commercialisation could be seen as a watershed, which could lead to pressure for a liability regime. It would be important to be able to attribute responsibility for consequences which no-one could yet specify. A liability regime might be needed across the board for all agriculture or for all new crops - not limited to GM crops. On the other hand, if all types of (new) crop were to be included, it could take a long time to develop a new regime. One view was that there should be a proviso before commercialisation could go ahead, that there should be a liability regime for all agriculture – people were unlikely to accept commercialisation without having a liability regime in place;
  
  
• Some of the legal issues around GM crops were:
  (1) the immediacy of decisions on commercialisation;
  (2) acute economic issues for conventional, organic and other non-GM farmers;
  (3) the possibility of environmental effects that were hard to specify in advance. Three possibilities noted were: transfer of genes to non-native species; potential effects of multiple copies, transgene copying and gene silencing; effects of making the same modification to a wide variety of crops; effects (positive or negative) on farmland biodiversity. Some of these concerns might be unfounded and similar issues arose in relation to conventional plant varieties, but the issue of diffuse and long-term environmental effects did need to be taken into account;
  
  
• Other aspects. The AEBC could usefully consider liability on the product rather than the process: the nature rather than cause of impact was central, agriculture itself was at a watershed. There was a need to avoid double standards, perhaps by having the same set of laws but a particular focus on genetic modification. Gaps might include human rights aspects. The context was to aim for co-existence in the countryside, with practicable solutions, and ability for consumers to have choice - it would be very undesirable to resort to widespread litigation;
  
  
• Working through specific examples could help identify gaps in the present regime. Accepting that there were gaps in current liability provisions, a useful focus for the group could be on whether there were liability solutions to resolve these;
  
  
• There would be a practical problem of timing, since any legislation would take a number of years to introduce and implement; and
  
  
• The extent to which GMOs were different and if so on what grounds remained a matter of debate between commissioners, with very different opinions being held. Finding a mutually agreed way forward on liability would inevitably be challenging.
  
  
• The law was complex. Three examples of gaps existing in civil liability were:
  
  (1)Current laws do not cover the un-owned environment and its biodiversity. This is not a GM-specific issue, and the EU is developing environmental liability legislation;
  
  (2)Organic farmers could face the loss of their accreditation. The question whether a use of land to grow GM crops was ‘unreasonable’ (which is likely to arise in any court case involving and organic and GM farmer) was not one which judges wanted or should be asked to decide - it was an area for public policy; and
  
  (3) If GM crops caused unpredictable damage in the long-term, this would not be covered, though unforeseeability was not limited to GM crops.

18. Summing up the discussion, the Chair noted the need to understand the limits of liability: it was a blunt instrument and not the only tool with which to influence agricultural practice. For example the issues raised by winter-sown crops might not be about liability. Whether GMOs were ‘different’ depended on the question “different for what purpose?” For example, assessment by process or product would provide different frameworks. Socially GM might be viewed as a watershed, with a capacity to accelerate change and scale in agricultural practices, and liability provisions could offer some reassurance. It was therefore appropriate that the Government should consider whether a new liability regime was needed.

19. The AEBC’s concern was not with criminal liability, which underpinned the regulatory system for GMOs. There was a European deliberate release directive, transposed by regulations into UK law, with criminal sanctions. Given these criminal provisions, the focus for AEBC work was on the potential role of a civil liability regime in reinforcing the underlying provisions, in providing compensation and remediation, and in preventing harm from continuing. An aspect of such a regime was that of who was liable for any economic harm to individuals in the context of the co-existence of GM and non-GM crops. Another aspect was whether and to what extent wider, unforeseeable environmental damage could be covered by a liability regime.

20. In the civil liability regime (the law of 'tort') the starting point was that a general liability existed for harm caused by one person to another, so the issues in relation to the liability regime in this area were about what the type and limits of liability should be, rather than whether or not there should be a regime at all. For example, could damage to biodiversity be covered by a civil liability regime? The question arose because biodiversity did not 'belong' to a single claimant, so it could be argued that no person would be entitled to bring a case on the grounds that harm had been done to an individual's 'property'. And even if a case could be brought, what would it be feasible to require a liable party to do in relation to the damage: compensation or remediation? Because of these difficulties over the civil regime in relation to the environment, governments commonly took an alternative route to dealing with environmental damage - taking statutory powers. Such powers could allow them to require someone to clear up or pay for a water pollution incident, for example.

21. A second question about the civil liability regime was the burden of proof: was the onus on the defendant or the person bringing the action, and what standard was required for a successful action. The highest standard was 'strict' liability, which would mean that if an event (e.g. release of a pollutant) took place and someone was shown to have caused the event (whether intentionally or not) then the person would be found liable. But in existing liability rules it was more normal to have a lower standard than this, with the person bring the action having to show that the damage caused by the event had been foreseeable by the defendant at the time the event had occurred. These differences would need to be included in the examination of whether commercialisation of GM crops would require changes to the present civil liability regime; and whether a changed regime would in fact solve the perceived potential problems.

Briefings from Welsh Assembly Government Officials

22. June Millligan and Huw Jones, officials from the Countryside Division in the Welsh Assembly Government, briefed the AEBC on Welsh Assembly policy on agricultural biotechnology in Wales and the future strategy for agriculture. June Milligan set out the broad context, explaining that devolution had enabled a tailored system of governance to be developed for Wales. She highlighted the Assembly’s strong commitment to inclusiveness, partnership and openness in the conduct of business and the statutory duty in relation to sustainable development. Final decisions on the direction of policy involved political judgements and were made by Ministers.

23. The Welsh Assembly Government had developed and published a policy document, ‘Farming for the Future’ which had synergies with those of the other devolved administrations and the report of the Curry Commission in England. It lay the foundations for the future of Welsh farming. The background was that family farming underpinned the rural economy and Welsh language. Farming was predominantly dairy and livestock based (around 90% by value) with a small arable sector (around 10%). Farms were small and three-quarters of agricultural land was in less favoured areas, mainly upland.

24. Presenting the policy, Huw Jones underlined its key features:

• it was based on sustainable agriculture principles with targets for the development of organic agriculture (aiming for 10% by 2005);
  
  
• support for small farms, which were the predominant agricultural unit in Wales, for example through the Farming Connect scheme set up in September 2001;
  
  
• use of the precautionary principle in respect of GM crops. Wales had developed its own policy towards GM crops of applying the most restrictive approach possible within EU legislation.
  
  

25. Welsh agriculture faced challenges similar to those faced by a number of other European countries. These included:

• trends of declining incomes, falling employment (down by 10% in recent years), decreasing number of holdings and an increasingly unbalanced age structure (more than 50% of farmers being over 50 years of age);
  
  
• loss of export trade as a result of BSE and Foot and Mouth Disease; and,
  
  
• continuing downward pressure on prices through increased global trade liberalisation and a highly competitive world food market, EU enlargement, further CAP reform, changing domestic food consumption trends and growing concerns over animal health and welfare standards.
  
  

26. The officials explained the background to the Welsh Assembly Government policy on agricultural biotechnology. The Welsh National Assembly had taken the view that unrestricted release of GM crops, which could cross pollinate with non-GM crops, would involve a risk to the environment under the terms of the EC Directive on the deliberate release into the environment of genetically modified organisms (90/220/EC). The Farm-Scale Evaluations proposed for Wales had been T25 maize trials and Assembly Government concerns over the possible contamination of non-GM maize by cross-pollination had been confirmed by ACRE. The Assembly decided that in such conditions it would be difficult, if not impossible, to produce maize which could be lawfully described as organic or non-GM maize. They therefore had introduced proportionate, appropriate and temporary legally enforceable separation distances. The Article 16 notification under the Deliberate Release Directive which had been prompted by the Assembly's stance had argued that the Deliberate Release Directive was incompatible with European directives on organic agriculture which specified that organic crops should be free of GM material. A response from the European Commission to the Article 16 notification was awaited.

27. Although they could not therefore support the AEBC’s qualified recommendation that the FSEs should continue, the Welsh Assembly Government nevertheless welcomed the other recommendations and the fact that Crops on Trial addressed key issues such as the need for a debate on co-existence and the matter of how the public debate on possible commercialisation of GM crops should be taken forward.

28. The Welsh Assembly Government believed that it would be important for the AEBC to consider the combined impact on its work of various developments in Europe, e.g. Commission proposals on traceability and labelling, food and feed, liability and adventitious presence. Issues of co-existence and the development of compatible regimes were now on the agenda for EU discussions. The Commission’s recent Communication on life sciences and biotechnology (March 2002) made specific reference in action point 17 to “measures to ensure the viability of conventional and organic farming and their sustainable coexistence with genetically modified crops”.

29. The ensuing discussion with AEBC members included a question about availability and monitoring of GM-free animal feed, on which the Welsh Assembly would send AEBC information, and discussion on issues with English neighbours who might wish to make the choice to pursue GM agriculture. In response to a question, officials said that the Assembly library and website had information about comments received during policy development.

30. The Chair invited the views of observers, and discussion included the irreversibility of any harm arising from GM, patenting, patent issues, lack of insurance cover for GMOs, the view that GM was not needed in farming, the need to consider horizontal and vertical geneflow, and the possibility of reversal of policies by future Ministers.

31. AEBC then hosted a reception for Welsh Assembly members and people attending the meeting.

FRIDAY 10 MAY 2002

Stocktake of recommendations made in Crops on Trial; developments since publication of the report; and the main issues relating to GM crops in the United Kingdom over the next two years (AEBC/02/08)

32. The Chair presented further apologies for absence from Michael Banner and Helen Browning.

33. Introducing discussion of paper AEBC/02/08, the Chair said that it was good practice for the AEBC to review progress against its reports from time to time, and in particular to review the impact of the Commission’s work in the controversial area covered by Crops on Trial in the light of developments. All recommendations in Crops on Trial had been accepted by the UK Government and the devolved administrations, with the exception of the first recommendation which the Welsh Assembly Government had been unable to accept. Two recommendations had already been acted upon by Government: it had sought AEBC’s further advice on how to initiate a public debate on the commercialisation of GM crops and DEFRA had set up a baseline study of the environmental effects of different agricultural practices.

34. Members considered that Crops on Trial had been generally welcomed. The farming community, environmental agencies including English Nature, and the technology providers had broadly welcomed the report. In some quarters it had been seen as creating a welcome breathing space to enable consensus to be built, for example, on separation distances.

35. Members sensed that Crops on Trial had moderated the level of controversy, but this was conditional upon how Government eventually implemented its recommendations. Non-governmental organisations opposed or sceptical to agricultural biotechnology remained anxious as to how far it would be taken into account by Government. Members had different perceptions of the extent of controversy around FSE sites. Some thought that the controversy had diminished: at several sites, local communities had voted in favour of FSEs going ahead. Other members disagreed, noting that at other sites, communities had voted against. It was clear that for people protesting at certain hotspots such as Munlochy, the only desirable outcome of Crops on Trial would have been cessation of the trials and AEBC had not recommended this.

36. The AEBC was mindful that its report was not the Government’s only source of advice and that it could not necessarily expect all its recommendations in every report to be fully adopted. Equally, the report's impact should not be underestimated.

37. The Commission reflected on forthcoming developments in the light of the events reported in the aide memoire. Agreement on co-existence and liability would be crucial. There was optimism on the part of industry that co-existence issues could be resolved and there was evidence from other countries eg Switzerland that it was manageable. There were a range of ways for developing co-existence, such as separation distances, zoning and pollen barrier crops, and lessons available from the growing of certified seed to very high quality standards. It was clear that any solutions had to be found within the framework of European developments.

38. Welsh Assembly Government officials informed AEBC of Directorates General in the European Commission with an active interest in co-existence issues and that a report would be produced by ISPRA in the next few weeks. They would send this to AEBC.

Action: Huw Jones

Update on consumer choice developmental group

39. The group had been considering the factors that people use to make an informed choice, had had insights on factors affecting consumer decisions from a talk by Anna Bradley on work undertaken by the National Consumer Council (NCC), and were planning further briefings e.g. a technical workshop. Discussions had focussed particularly on the impact of production systems on consumer choice, and threshold issues were emerging as a key debating area. The group was also thinking through whether recent in-depth NCC work provided it with sufficient information about public attitudes.

Update on horizon scanning study

40. Comments, both positive and negative, on the horizon scanning study had been received by different members of the Commission.

Public/private research work plan topic

41. Ed Dart had previously e-mailed fellow Commission members setting out his concerns about the priority afforded to the proposal in the AEBC Work Plan for the Commission to study the balance between public and privately funded research. He thought that the Commission should revisit the rationale for studying this area and the priority it had been given.

42. Dr Dart felt that the rationale was opaque. He failed to see how any study in this area could lead to useful recommendations to Government. The AEBC would encounter difficulties in obtaining evidence about private research programmes because companies would be unwilling to share commercially confidential details of research strategies. Companies were generally international in character and it was difficult to see for example why a company based outside the UK should feel bound to respond to questions from a body based in the UK. There was some support among members for this view. However, with wealth creation now at the heart of publicly funded scientific research, there was also a recognition that meeting public interest goals through private and public research would be a recurring issue. Issues of control, the direction of private research and whether pubic research was able to conduct sufficient research for the public good were now important in the debate around GM crops.

43. In the discussion it was suggested that the AEBC might focus on identifying areas where market failure meant that important public interest research goals were not being pursued. Bio-safety issues might be an example of such an area. Another member though that the AEBC might explore the question of whether research funding in biology was excessively concentrated on molecular biology. Questions of ownership of modern biotechnology were another issue. It was clear that the narrow question of peer-review of commercial research undertaken by companies was not a subject which could or should be tackled by the AEBC. But it was not clear whether AEBC would be best-placed to tackle all the other areas raised in discussion, nor were all necessarily within the Commission's remit.

44. In conclusion, Dr Dart said that the discussion had illustrated the varied views Members had on the subject and that further clarification of the objectives would be needed. The Deputy Chair said the discussion had been helpful. AEBC would need to think through carefully what it was remitted to do in this area but as a strategic body the balance of public/private research was within its domain and it was an issue flagged up by respondents to the horizon scanning consultation. For the discussion of the Work Plan proposals in July, more thought would be given to what it would be practicable and appropriate for the AEBC to do in this area and what value it could add.

ACTION: Chair, Deputy Chair, secretariat

Any Other Business

45. AEBC had a specialist profile rather than a high profile. It was working in line with the principles of balance and openness which tended to militate against high-volume media coverage. It would be timely to revisit the whole area of AEBC’s communications strategy. This should include plans for regularly reviewing AEBC’s success with people who should be aware of its work. Pat Wilson was asked to work up a new draft communication strategy for discussion initially by the Chair, Deputy Chair and secretariat.

ACTION: Pat Wilson

46. Judith Hann had been approached by a TV producer from the BBC/Open University who would be interested in becoming involved in an editorial partnership to produce a non-controversial documentary film about GM. She had received a video copy of a film on the topic made by the same producer which could be passed round Members with an interest. This approach offered the AEBC another option for producing a film should Government decide to accept its advice on public debate.

47. Members suggested that the AEBC could usefully examine the extent to which there were counterpart bodies to it abroad and be more aware of what work those bodies were doing. The Chair and Deputy Chair would reflect on how best to do this and discuss it at a future AEBC meeting.

ACTION: Chair, Deputy Chair, secretariat

48. Members noted that Julie Hill and Pat Wilson were visiting the Eden Project next week to develop plans for the AEBC meeting there.

Close of meeting

49. The Chairman thanked Members for their contributions and observers for attending, and re-iterated the AEBC’s thanks to the Welsh Assembly Government and National Assembly.

AEBC secretariat
May 2002