1. Do Members consider that the scenarios are comprehensive and useful?
   
   
2. Do Members agree that it would be useful to consult stakeholders and the wider public about the scenarios which the sub-group has been developing? Also, do Members have views on who should be consulted.
   
   
3. Do Members agree that it would be useful for the Commission to take evidence in Edinburgh in September? The group is considering inviting a lawyer, an NGO and an agricultural economist to discuss supplement evidence already taken in sub-group meetings.

• no specific new provisions have been set in place for legal liability
• GM crops have moved into commercial cultivation.

• Do consultees consider that the current laws are adequate?
• If not, should a legal liability regime apply to genetically modified crops or to crops more widely?
• If so, who should be held liable in cases where liability is unclear?
• How would a legal liability regime operate?

• Harm and damage to biodiversity is difficult to define, and is contentious. Where there is no ‘ownership’, specific damage may be hard to define, to which a liability regime could be attached.
• A large number of people eg many individual farmers, are involved in the decisions and actions which have led to monoculture
• Monoculture is already a problem with conventional farming, and similar damage can happen through conventional, non-GM routes.
• The impacts in the example are diffuse and cumulative, so a single cause is difficult/impossible to identify, prove and take action on.

The harm and damage is to biodiversity. Damage to an SSSI (Site of Special Scientific Interest) would be an offence under the Wildlife and Countryside Act. If this were on land without special protection, damage might not be recoverable. [JT: grateful for your input. AP]

Issues

This scenario identifies the different regimes that would apply in SSSIs and other areas. · How would outcomes vary depending on whether the genetically modified plant were originally grown legally or illegally? (For example a farmer might experiment with seed from another country where he’d been travelling.) 

Scenario 3. Indirect effects eg Impacts on groundwater. 

GM herbicide tolerance is commercialised in GM oilseed rape, to give it glyphosate tolerance. There is cross pollination between the oil seed rape and weed populations of Brassica rapa. B. rapa becomes tolerant to glyphosate and becomes difficult to control. This has an impact on weed control in conventional non-GM farming, where they are forced to use more persistent conventional herbicides to control weeds and to remove persistent volunteers, or to use different mechanical or rotational methods of weed control. The change to a more persistent herbicide then contributes to higher levels of persistent herbicides in groundwater. This is also relevant to weed control by local authorities and on railways, where glyphosate is the herbicide extensively used, because of its low impacts apart from on weeds. There are two changes taking place: (1) geneflow to weed populations, and (2) extensive use of the herbicide resulting in weeds which develop resistance over time to that herbicide – which happens with many herbicides over time.

Liability under current laws 

The damage here is higher levels of persistent herbicides in ground water. The conventional non-GM farmers are at risk of prosecution for polluting the ground water under the Water Resources Act 1991. The maximum fine is [£20,000]. Under the Act it is a criminal offence to ‘knowingly cause or knowingly permit’ the entry of [poisonous noxious or polluting] matter into controlled waters’. It would be up to the Environment Agency and ultimately the courts to determine whether the levels of herbicides amount to the entry of ‘poisonous noxious or polluting matter’.

Issues

• Some of the aspects in this case are:
• Is this a liability issue?
• Who would be responsible for damage?
• What issues arise if water is extracted downstream for human consumption?
• Would regulatory compliance and compliance with permits lead to a different outcome than non-compliance?

Scenario 4. Economic impacts on farming

Neighbouring farms grow oilseed rape on adjacent fields. One crop is organic, the other is a GM crop for certified seed production*. Both farmers need to maintain a high level of genetic purity by minimising pollination with adjacent crops. Cross pollination (both ways) results in the organic farmer losing his organic premium and the GM farmer losing his certified seed premium.

*Note: Certified seed has high genetic purity and is required for supplying to farmers to grow crops. There is a requirement for certified seed to reach a statutory level of genetic purity.
**We are aware that criteria used to measure geneflow are different for geneflow and morphological/physical measures.

Liability under current laws

Both the organic and GM farmer suffer an economic loss. Each of them can sue the other for nuisance [Rylands -v Fletcher], or for negligence if either of them has not obeyed the separation distances. (An explanation of the legal principles is at the end of these scenarios.) However they may find it difficult to recover any compensation on the basis the damage is economic. The issue of cross-pollination or geneflow causing economic loss to organic or conventional farmers, by the loss in value of their product is likely to prove a difficult issue for the law to resolve. As a general rule it is not possible to recover for any economic losses under the law of tort. The only way in which the courts might be prepared to allow this type of loss to be recovered is on the basis that the cross pollination has altered the genetic make-up of the plant (which amounts to a physical alteration) as a result of which the crop has lost value.
It may also be that a court decides that either organic farming or certified seed production amount to a sensitive use of the land in which case the law will not protect the particular use of the land.
The farmers would be unlikely to succeed in any claim against the seed manufacturer under product liability rules, because the problem is not with the crop itself but the manner in which the crop is used.

Issues

• Is the liability different between the GM farmer and the organic farmer?
• What is ‘damage’ to an organic farmer?
• To what extent does that have external reference and to what extent is it dependent on organic farming rules?
• Does the outcome depend on the rules for organic accreditation? (What are the relevant rules?)
• Is certified seed-growing a possible ‘sensitive’ use of land, outside legal protection?
• Were the activities carried out in compliance or breach of regulatory requirements/permits? How does this affect the outcome? Would the position vary if agreed separation distances were not observed by one farmer or the other?

Scenario 5. Potato Virus resistance.

A leading potato variety is made resistant by GM plant breeding to all important virus diseases. Conventionally, seed potatoes are produced in Scotland and Northern Ireland (areas relatively free from insect-spread virus diseases), where seed potato production is an important farming enterprise. The introduction of the GM virus resistant potato variety reduces the demand for growing seed potato crops in Scotland and Northern Ireland, and therefore significantly reduces the income of seed potato farmers.

Liability under current laws

The seed potato farmers have suffered to decline an income because of changes in consumer demand. This is regarded as a business risk rather than suitable for recovery under a liability regime.

Issues

• Is this damage, or change in demand/change in economic circumstances? This may be a particular example of a very general type of change. Changes in business risk and pure economic loss do not appear to be liability issues – though such examples show the potential major indirect effects within agriculture from changes in agronomic practice.
• Are there legal implications of GM crops resulting in a significant reduction in the income of Scottish/Irish seed potato producers?
• Are there liability issues?

Scenario 6. Intentional or unintentional introduction of GM seeds into a non-GM crop: adventitious presence.

1. GM wheat seeds are introduced into non-GM seed stocks intentionally or unintentionally (faulty seed handling) eg a combine harvester contractor fails to clean his harvester sufficiently after harvesting a GM crop
2. seed imported from abroad is found to contain GM seeds in excess of the threshold, and seed has to be destroyed.

These result in the loss of a price premium for one or several years.

Liability under current laws

(a) People might be prosecuted for criminal damage to property, but this would not assist the farmer in recovering his loss of income. The non-GM farmer could bring a claim of trespass, and could bring a negligence claim against the GM farmer if the faulty seed handling is negligent, but as the loss is economic, it might prove difficult to recover. The farmer might have a claim in negligence against the combine harvester contractor but might find it difficult to recover the losses on the basis the court regards the loss as economic. It is not clear whether the seed company marketing the seed would be liable for the GM seeds in the crop. The test of liability is whether the ‘safety of the product’ is not such as might reasonably be expected. This test cannot be applied easily to threshold levels etc. What constitutes harm would be defined by the threshold: if the crop is not approved by the EU, the threshold would be zero, and the crop would have to be rejected eg ploughed in. When this scenario occurred in reality, the seed company voluntarily paid compensation to those farmers affected, but without accepting liability.

Issues

• Is there harm?
• This scenario raises product liability issues, including intermediary and grower issues.
• Who would be liable for the imported seed? There could be product liability against the producer or the provider.
• This scenario links with issues on tracing and labelling, and with price premiums for organic or non-GM products.
• Any intentional damage would seem to be covered by the same principles as for other damage; it is often not practical to recover money in these circumstances. If there were adventitious mixing, would the outcome depend on a person’s mental state?

Scenario 7. Loss of resistance to Bt. 

A maize variety is made resistant to important pests by introduction of a Bt gene. The variety becomes widely used and insect pests develop that are able to overcome the resistance. The Bt crops fail because of pest damage, and Bt sprays are made ineffective as a pesticide.

Liability under current laws 

The loss of resistance has occurred because of the wide use of the crop, which in turn is analogous to the change in farming practices considered in Scenario 1, and similarly, use of GM may continue or accelerate existing trends. It might be possible to claim against the seed company on the basis that the product becomes defective when used widely. Liability may then depend on whether the seed company could have foreseen this occurrence, which in turn will depend on expert evidence about the particular crop.

Issues

• Is there harm?
• Is this a liability issue?
• Bt sprays would be ineffective against pests in organic crops and non-GM crops. Is anyone liable? If so, who?
• This may be a cumulative impact issue – are there similar other examples within product liability?

Scenario 8. Product and process. 

Two different ryegrass varieties are made tolerant to glyphosate herbicide, one by GM and one by conventional plant breeding. Both kinds of herbicide tolerant crop pollinate an adjacent organic crop of ryegrass and the organic farmer loses the organic price premium for his milk. The ecological/environmental consequences are considered to be the same whether pollination is from the GM or conventional herbicide tolerant ryegrass. (Ryegrass is widespread and is easily pollinated by wind.) 

Liability under current laws 

The organic farmer could sue both the conventional and GM farmer in nuisance, and also negligence if at fault. It would be up to the court to decide if the loss was economic and therefore not recoverable, or economic loss arising out of damage to property (i.e. the crop), and therefore recoverable.

Issues

• In general terms, this highlights the question of whether it is the process or the product which should / does determine the outcome of decision-making frameworks.
• Existing law would treat both products in the same way for liability purposes but not for regulatory purposes.
• Is anyone liable for loss of organic status? If so, who?
• Is GM and non-GM herbicide tolerant material treated differently?
• Is this difference sustainable in law? · Can one tell – from genetic ‘fingerprinting’ – whether the herbicide tolerance comes from GM or conventional grass?
• How does the cumulative development of resistance affect outcomes? 

Scenario 9. Unpredictable impact. 

Scenarios that consider unknown scientific principles are by definition difficult to describe. It is likely that impacts will fall into classes that are examined in the statutory risk assessment process and may be part of any post commercialisation environmental monitoring, including the assessment of: invasiveness, persistence, toxicity, soil fertility, wildlife biodiversity, non-target effects, groundwater etc.

The incidence of BSE is a scenario that illustrates unpredictable elements as a hypothesis. The main unknown in the BSE incident was that proteins can have “infective” properties. The state of scientific knowledge before the BSE incident could not have predicted the BSE outbreak.

Liability under current laws 

Damage caused by unpredictable scenarios are unlikely to be recoverable under a liability regime as foreseeability of damage is a pre-requisite for a successful claim in nuisance, negligence, Rylands & Fletcher and under the product liability regime. [NB JT to consider trespass] The seed company would not be responsible if its product caused damage that was unforeseen.

Issues

• Who is responsible if an incident could not be predicted by the state of the art scientific knowledge?
• What is the role of the Government as insurer of last resort (particularly if there has been regulatory and permit compliance) if the technology is considered to add value for the nation, and the damage was not foreseeable? (This was the general model for industry in the 19th century.)
• Are there parallels with a virulent flu epidemic, a train accident, an earthquake or locust infestation?
• Is there any justification to treat GM crops differently from non-GM crops?
• Is there justification to develop a liability arrangement specifically for GM and by-pass unpredictable environmental impacts from other agricultural causes?

Scenario 10. Decisions by purchasers 

A supermarket decides not to buy produce – organic or conventional - from farmers within 6km of GM sites, because the produce may contain traces of GM material and the supermarket considers this will be unacceptable to consumers. An organic or conventional farm is near to a farm growing GM crops. The non-GM produce, on testing, shows impurity from GM material, though the levels are below those laid down in regulations relating to labelling/traceability . The non-GM farmer cannot sell the product, producing economic loss.

Liability under current laws 

This would be an example of economic loss. It seems unlikely that the farmer would have any redress against the decisions of the supermarket: it would simply be an example of market forces. There seems little likelihood that anyone could be defined as being at fault. (This would seem to apply whether or not any liability regime were put in place.) Insurance is unlikely to be available.

Issues

• This would not be a regulatory issue, as the parameters would be established by the supermarkets, based on their assessment of the views of their customers. Markets would be behaving in ways unrelated to regulation, because of peoples’ perceptions.
• Is there an issue for liability, in this scenario?
• Would the growers have any redress?

LEGAL PRINCIPLES RELEVANT TO GM CROP SCENARIOS 

The basic principles of nuisance 

1. The tort of nuisance is the invasion of the claimant’s interest in the possession of or enjoyment of his land. Its function is to control activities of an owner or occupier of property within the boundaries of his own land and which may harm interests of the owner/occupier of other land. It may also be described as being concerned with the relationships between neighbours.
2. There are three types of private nuisance:

1. Nuisance by encroachment on a neighbours land (for example by [ ]. Not relevant for the purposes of the GM crop scenarios;
2. Nuisance by direct physical injury to a neighbours land; and
3. Nuisance by interference with a neighbour’s quiet enjoyment of his land.

3. Direct physical injury to land will include activities that cause a material injury to neighbouring land/property such as damaging a neighbour’s trees or orchids. (Insert GM crop example.) To succeed in any claim a claimant will need to; (a) prove physical damage to the neighbours land or to things growing on it, (b) that the physical damage was foreseeable (see below), (c) that the use being made of the land did not amount to a reasonable use of the land (see below) and d) that there was no defence of statutory authority (see below)

Quiet Enjoyment of the Land

4. This type of nuisance is concerned with activities which create personal inconvenience and interference with an owner’s quiet enjoyment of his land and will include, for example fumes travelling onto land or loud noise. (Insert GM crop example.)

5. To succeed in any claim the claimant must prove that; a) his enjoyment or use of the land has been interfered with, b) that the interference was foreseeable (see below); c) that the use of the land in question did not amount to a reasonable use (see below) and d) that there was no defence of statutory authority (see below).

The person liable

6. The person liable for a nuisance is the actual wrong doer, whether or not he is in occupation of the land. This could therefore include, in the case of trial sites, a farmer on whose land the crop is grown and the company in whose name the consent to release the GMOs, is held.

Damage to the environment

7. Damage to the environment, which will include impacts on insect or plant biodiversity will be not be recoverable under the law of nuisance, (as well as Rylands and Fletcher or negligence (see below)) unless the reduction in biodiversity is show to have interfered with the use or enjoyment of the land of a neighbouring landowner. In practice this means that, under current laws, such losses will not be recoverable (the European Union is currently debating a proposed law which will mean environmental damage can be recovered. For a discussion on the scope of this law, please see [ ])

Causation

8. In any claim in nuisance, (as well as negligence or Rylands & Fletcher (see below)), it will be necessary for a claimant to establish on a balance of probabilities that the damage complained of was caused by the particular GM crops grown by the defendant.

9. The issue likely to arise in the context of commercial growing of GM crops is that the damage cannot be attributed to a specific GM crop but only to one of several GM crops or possibly to the combined effects of several GM crops) grown by different farmers. It has been the case that in order to establish liability against any of the farmers it would be necessary for the claimant to prove that it was the GM crops grown by a particular farmer which caused the damage. However a recent decision by the House of Lords on asbestos is an indication that in cases where causation is complex and a number of different actors have behaved negligently, the courts will not let technical difficulties in establishing precisely how the damage was caused, stand in the way of compensating the claimant. [NB Consider again one the Fairchild decision has been published.]

Foreseeability of damage

10. For a claimant to succeed in both types of nuisance claim, it must be proved that the damage caused was foreseeable. The basic principle here is that as long as some damage, however slight, of a particular kind was foreseeable to the personal property of the claimant, he can recover for the full extent of it though neither the extent of the precise manner of its incidents was foreseeable.

11. The issues arising with respect to GM crops include whether [gene flow to weeds, cross-pollination, loss of resistance to Bt, and glyphosate tolerance] are foreseeable events.

Reasonable use of the land

12. The principle of reasonable use of land has been described as embodying the “give and take as between neighbouring occupiers of land”. The effect is that if the activities being complained about are a reasonable use of the land, the defendant will not be liable for consequent harm to his neighbour’s enjoyment of land. However if the use is not reasonable, the defendant will be liable, even though he may have exercised reasonable care and skill to avoid the damage. The question that arises in the context of growing GM crops is whether growing GM crops is a reasonable use of the land or not.

Statutory Authority

13. The defence of statutory authority applies where the activities complained of have been expressly or impliedly authorised by statute. The relevance of the defence in this context is whether a consent for the release of GMOs granted by the Secretary of State under Part VI of the Environmental Protection Act 1990 amounts to a defence to any damage caused by the GM crops.

The principle in Rylands -v- Fletcher

14. The "Rylands and Fletcher" principle comes into play where a person is using his land for some “special use bringing with it increased danger to others”. Under the principle he will be responsible for any escape of [the dangerous substances or activities] which cause damage to neighbouring land [even where the person has exercised reasonable care and skill in the manner in which he has carried out the activity. Forseeability of damage is a necessary ingredient of the rule and the person liable is the owner or controller of the dangerous thing. The question that arises in the context of GM crops is whether growing GM crops amounts to a "special use of the land"

Negligence

15. The law of negligence comes into play when a person suffers damage as a result of the careless act of another. However not all careless acts will entitle the victim of any harm to claim damages;
"The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails consequences in the law of negligence. The cardinal principle of liability is that the party complained of should be able to prove that he has suffered damage in breach of that duty". (Lord Macmillan in Donoghue v. Stevenson (1932)).

The following elements are therefore needed for the tort of negligence:
(1) a duty to take care;
(2) breach of that duty;
(3) ensuing damage.

Cross pollination and economic loss

16. The issue of [cross-pollination or geneflow] causing economic loss to [organic or conventional farmers, by the loss in value of their product] is likely to prove a difficult issue for the law to resolve. As a general rule it is not possible to recover for any economic losses under the law of tort. The only way in which the courts might be prepared to allow this type of loss to be recovered is on the basis that the cross pollination has altered the genetic makeup of the plant (which amounts to a physical alteration) as a result of which the crop has lost value.

Product Liability

17. Under the Consumer Protection Act 1987 the producer of a product (and others (see below) will be made liable for any damage caused wholly or partly by defective product irrespective of how much care and skill they have taken in designing the product. A defective product is a product whose safety is not what a user of the product is generally entitled to expect.

18. It is a defence for the producer to show that the state of scientific and technical knowledge at the [time at which the product was put on the market] was not such that the producer might be expected to have discovered the defect that had existed in his products while they were under his control. This will need to be decided on the basis of expert evidence as to the state of the scientific and technical knowledge at the relevant time.

19. A claim under the product liability regime may be brought against (a) the producer of the product, (b) any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to the producer of the product or (c) any person who has imported the product into a member state from a place outside the member states in order, in the course of any business of his to supply another.

20. The relevant issue as regards GM crops is whether a company manufacturing any GM crop might be made liable in the event of any "damage" caused by the crops on the basis that the crop is "defective".

The Human Rights Act

21. The Human Rights Act allows a person who claims that a public authority has acted or proposes to act in a way which seems incompatible with one of the rights protected by the European Convention on Human Rights to bring an action against the public authority. This could include an action against the Secretary of State for granting a consent to release GMOs to the environment.
[Although this is less clear, it may be that the Act allows a farmer to bring a claim against another farmer or seed company need to consider -subject of discussion amongst e.g. Matrix chambers’ barristers]

22. Article 8 of the Convention is likely to prove most relevant to the commercial growing of GM crops. It provides as follows:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There should be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.

25. Under current European regulations, labelling requirements are triggered by the presence in the final food of detectable GM material. Any food or food ingredient produced from a GM source which contains detectable GM material has to be labelled. There are European Commission proposals to extend the labelling regime to include all foods and animal feed produced from GM crops, irrespective of whether they contain detectable GM material. This would impose labelling requirements to two categories: foods and ingredients produced from GM organisms but which contain no GM material and GM animal feed. The European Commission has proposed a new traceability regime, to come into force after the EU has established a system of unique codes for GMOs for purposes of identification, to be consistent with mechanisms being developed under wider international organisations – including OECD work. It would also need to conform with the Cartagena Protocol on Biosafety.

26. The EU and Member States, including the UK, signed the Protocol in May 2000, and there are plans for ratification of the Protocol by the Community in 2002. The Protocol’s overall objective is to “contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of GMOs resulting from modern biotechnology that may have adverse effects on conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on trans-boundary movements”. To achieve this, the protocol introduces procedures to control the movement of GMOs from one country to another.

AEBC/02/11: ANNEX B

AGRICULTURE AND ENVIRONMENT BIOTECHNOLOGY COMMISSION

LIABILITY SUB-GROUP:
PROPOSED CONTENTS OF WORKING DOCUMENT ON LIABILITY

CONTENTS

Chapter 1 Introduction: Purpose, scope and method of study; the need for a study of liability

Chapter 2 Summary of conclusions and recommendations

Chapter 3 Functions of a liability regime

Chapter 4 The current UK and proposed European legal position on liability

Chapter 5 Scenarios (addressing inter alia whether GMOs present different liability issues)

Chapter 6 Gaps in current liability provisions (including those identified in the scenarios)

Chapter 7 Is there a need for a new liability regime? Principles underpinning any liability regime including GMOs

Chapter 8 Possible elements in a new liability regime

Chapter 9 Limits to liability. And the role of other provisions including insurance

Chapter 10 Conclusions and recommendations

ANNEXES

Annex A Outline of current relevant legal liability provisions in common /civil law and criminal law (attached)
Annex B Environmental liability provisions (attached)
Annex C Timescale for Farm Scale Evaluations (attached)
Annex D Liability provisions relevant to GMOs in other countries
Annex E Evidence we received/obtained from meetings and in writing
Annex F Explanation of legal terms
Annex G Who we are; how to contact us
Annex H Glossary