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Agriculture and Environment Biotechnology Commission (AEBC) | |||
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LIABILITY GROUP MEETING TUESDAY 5 NOVEMBER 2002 THE ROYAL HORTICULTURAL HALLS CONFERENCE CENTRE LONDON SW1 MINUTES Note: These are the views of the sub-group, not necessarily of the full Commission Present Phil Dale Matthew Freeman John Gilliland Malcolm Grant Derek Langslow Sue Mayer Justine Thornton (Convenor) Roger Turner Anne Packer (Secretariat) Apologies 1. None - all members were present. Introduction 2. Justine Thornton welcomed members of the public to observe the day’s evidence taking meeting. The meeting was being recorded, so that both a full transcript and a note of the meeting could be put on the AEBC website. 3. Justine thanked the speakers for coming to give evidence to the group. In the morning, Professor Richard Macrory, Professor of law at University College London, Professor Stephen Tromans, barrister specialising in environmental law and research professor at Nottingham law school, and Phil Michaels, lawyer with Friends of the Earth would each give short presentations, followed by questions and discussion. Evidence taking from lawyers: Professor Richard Macrory, Professor Stephen Tromans, and Phil Michaels Richard Macrory 4. Richard Macrory said he was speaking in a personal capacity, rather than as expert in GMO law or technology. His background included being a member of the Royal Commission on Environmental Pollution (RCEP), which was currently studying chemicals and the environment, and being a board member of the Environment Agency, which was interested in the proposed European Liability Directive. The 1989 RCEP report on GMOs had considered civil liability, had concluded there were considerable uncertainties in the existing common law principles as they would apply to GMOs, and had recommended statutory strict liability principles should apply to anyone releasing a GMO without a licence. The Government put into effect most recommendations about a discrete regulatory regime, but not those on civil liability. He defined use of civil liability in this context as being individual party-party disputes, rather than liabilities (such as those from notices to remediate) imposed by public authorities. In some contexts (such as the proposed EC Directive on environmental liability) the term was used to include liabilities to public authorities, but this was not his concern here. 5. Richard Macrory considered it fundamentally important to decide what was the main policy driver. As a radical example, removal of most environmental and public health regulation, in favour of relying upon common law concepts of nuisance and negligence to provide effective machinery for inducing good behaviour, might look superficially attractive. Insurers would in effect become shadow regulators. It would be consistent with what Germans call reflexive law - legal principles designed to make the operator or producer consider and change their actions accordingly. However this would be fraught with problematic issues. 6. He felt, however, that this was not a sound approach. As an example of the problems, what might be described as the first environmental regulatory machinery, the Alkali Act 1863, was set up when available civil law remedies were not being used. It resulted from a parliamentary inquiry into crop damage by air emissions from local factories. The paradox was that there was damage with a clear cause, and there were powerful civil law remedies - principally nuisance - that in theory should have been invoked by the farmers concerned. In practice they were not used. The reasons were cost risks, distraction caused by litigation, the probability of multiple defendants, and conditions on some farmers’ leases, which prevented them taking legal action against their landlords. All these issues were still current. In addition, civil law principles were not good at prevention. While it might be possible to design a civil liability system that could effectively replace regulatory machinery, it would require considerably more than merely introducing strict liability. 7. A distinguished Australian tort lawyer, Peter Cane, had recently made a strong case against altering or using civil liability principles for public policy purposes in respect of environmental harm [1]. He had agreed the need to develop appropriate policy and laws for the environment, but considered the main purpose of any civil liability system should be to develop a fair, efficient system for compensation for harm - and that this compensation goal should not be made more complex by introducing motivating factors derived from public policy goals. This was perhaps a traditional tort lawyer’s view, but one to which Richard Macrory was sympathetic. 8. Looking at the application of existing liability principles to situations like GMOs, there would be difficulties in providing a reasonable system of compensation. Five problematic areas were:
Stephen Tromans 10. Stephen Tromans said that he was an environmental lawyer, with no specific expertise in GMOs, but with an interest in the area. He was a barrister and academic and previously a solicitor. Until recently he had been a Council member of English Nature. 11. Two specific things might make GMOs distinctive. First the nature of possible effects. Effects might be wide ranging and irreversible, as GMOs were autonomous, mobile and replicating. Second, the European Commission taking the view that a separate regime was needed for regulation of GMOs - few activities were so stringently regulated. 12. A number of the questions posed by the AEBC liability group’s scenarios were based on contractual relationships. The law of tort was a more complex area. A number of the issues raised by the group’s scenarios would have to be considered under the regulatory regime, in risk assessment, before any consent was granted. 13. Harm might come about in three main ways:
15. Considering why specific liability rules could be an advantage, rather than leaving decisions to courts on a case by case basis, there could be two main reasons:
16. Phil Michaels said that he was a lawyer, working for Friends of the Earth. In the view of Friends of the Earth, GMOs needed separate consideration because they were different from other activities in a range of ways. Changes caused by GMOs could be irreversible, the industry was relatively immature, there were warning signs from disputed science, there were impacts on other farming methods, and genetic modification involved changes to the building blocks of life. There were very few examples of novel products bred by non GM means which gave rise to similar concerns as GM ones did. 17. The answer could be a new statutory liability regime. Friends of the Earth had worked with a backbench MP to prepare potential legislation in a Private Members Bill in the previous session of Parliament. It aimed to do the following:
19. There should be strict liability, meaning no requirement to show fault and no requirement for the outcome to be foreseeable. This was the best way of enacting the ‘polluter pays’ principle. This would also reduce the cost for claimants and relieve courts of the difficulty of assessing fault and foreseeability. There should be personal liability for directors unless they had done everything in their power to prevent the release from taking place. 20. Types of loss to be covered should be: personal injury, property damage, economic loss and environmental damage. 21. The burden of proof should be alleviated or reversed from the normal requirements - so that the onus should fall on the defendant, to prove they were not responsible. Advantages of this would include lower costs for claimants and justified in part by the balance of scientific knowledge being in the hands of the consent holder. The claimant would only have to show that damage had been suffered and show prima facie evidence of a connection between the harm suffered and the activity complained of. Similar systems in relation to GMOs exist in other parts of Europe, including Germany, Austria and parts of Scandinavia. 22. The only permissible defences should be either force majeure, or a compulsory order of the state. There should be no defences for compliance with a permit, or employing ‘state of the art’ techniques. 23. Insurance should be compulsory, and backed with a compensation fund. This was in case the original consent holder was no longer in business, or had insufficient funds to meet a claim. 24. In conclusion, the current system was inadequate because of the specific challenges and risks of GMOs, and there was a need for a statutory liability regime. Discussion during the morning session 25. AEBC liability group members discussed a number of issues with the three lawyers. Richard Macrory considered civil liability important and useful, but with a very limited use. There was much counter evidence to the view that it might ensure good standards of behaviour or prevent mistakes happening. Such evidence as there was, suggested that what affected behaviour was a regulatory system, with inspection etc. To change the system on liability for economic damage (which was essentially driven by judicial policy rather than fundamental principle), there would need to be a very strong case that GMOd damage were different from other sopurces of damage, and he did not see that there was such a case. Asked about how to define damage from a GMO, he said that any economic damage would have to be shown to be a direct consequence of physical damage. He accepted that GMO damage was rather different from the normal type of damage to property involved in civil liability where property was rendered incapable of its normal use. Essentially here there appeared to be a ‘transformation’. But he felt that a court would still consider this to be damage if it render the farmer’s organic property no longer capable of being organic. Nevertheless as with any ordinary civil case, the claimant would have to mitigate his losses - eg sell the ‘transformed’ crop on the open market, and actual losses might therefore be quite small depending on the premium for organics. 26. In response to a question about whether the substantial government investment in organic agriculture would prevent it being considered an ‘over sensitive’ use of land, Richard Macrory said judges were alive to the issue. It would be relevant how many organic farmers there were in an area, and judges would note the extent to which organic standards were set by private bodies. It could be useful to recommend a standard laid down in public law. This could be a useful way forward, and help courts to accept that this was no longer an over sensitive use of property. 27. On pure economic loss, courts tended to take a hard line. Nearly all legal systems imposed limits on intangible loss, and did not cover pure economic loss claims unless the claimant had suffered direct physical damage. There were exceptions (for negligent misstatements etc.) but generally the courts felt lines had to be drawn. The only way would be to allow such claims by statute, and then it would be necessary to argue why GMOs were different from any other interference with business. 28. In nuisance, if negligence were not involved, compliance with terms of a permit would be relevant but not determinative. 29. In German environmental liability law, strict liability was imposed on certain industries, and the burden of proof reversed. It was for the defendant to prove that it was not their emission that caused damage. However, where the industry had complied with relevant permits, the burden of proof then reverted to the claimant. There was a certain logic behind this (if you complied with permits it should be assumed you did not cause damage unless the claimant could do so) and Professor Macrory approved of the approach though he was unaware of how this worked in practice. 30. The group might conclude that existing liability principles and the way in which courts would handle such cases were insufficient. They would cope with some aspects well, but not with everything. 31. Discussion with Stephen Tromans focussed particularly on the ‘difference’ or otherwise of GMOs. He considered that it was particularly the societal/political context that was different. Logically GM might not be very different than from conventional plant breeding, but there was a step change, with possible introduction of changes on a rapid, widespread basis. People’s concerns seemed different for example with the introduction of ‘natural’ non-native species. Regulation of these was far less stringent than for GMOs, though past experience clearly showed imported plants or animals could be invasive. While chemicals such as organochlorines were similarly mobile and persistent, in principle at least there could be clean up over time - given substantial money - whereas it might not be possible to call back and control GMOs. Some AEBC members commented that the current range of crops would not persist - they needed appropriate care to flourish, so concern over spreading/control did not seem to them to be necessary. In terms of unanticipated effects, these might be a driver of public concerns, but liability laws might not be able to deal with them. Similarly, liability could help with recompense, but not with prevention. 32. Apportioning liability involved a policy choice. If allocating liability in a civil regime, there might be a good case for society to pick up the tab, if there had been a careful risk assessment followed by a decision to go ahead. Foreseeability was a fundamental plank of civil liability, so a regime incorporating that would not need a change to current civil liability provisions. 33. Discussing the level at which the limit had been set for liability in the nuclear industry, Stephen Tromans said that the level was based on an individual incident and was fairly low - not at a level causing a company to go under. 34. In discussion with Phil Michaels, he said that he would not exclude a cap on liability, though it needed to be at a realistic level. He said there was debate about whether any regime could cover catastrophic loss - it probably could not. It would not be simple to get over the ‘chicken and egg’ position of insurers gaining experience in a new area. The private member’s Bill had not distinguished between the costs of damage and of remediation. He would be delighted to adopt the Canadian approach of applying a liability regime to novel products as a group, but there seemed little likelihood of that being embraced in the UK. There was also discussion about the extent to which the plant breeding industry was immature or well established. 35. Phil Michaels said there was a need for clarity for all parties, including industry. AEBC Members noted that the existing legislation on noxious weeds was rarely used as farmers have preferred co-existence with their neighbours. Asked whether people should bear part of the liability, particularly for products for which there was a ready market, Phil Michaels said it was a matter of risk and should depend on who would gain most. Richard Macrory noted that consumers would in any event contribute to an extent, through price premia for insurance. AEBC members asked what protection there would be against farmers misusing the technology, if all risk was allocated to the consent holder, and Phil Michaels said that contractual mechanisms would be the way of doing this. Claire Marris 36. Claire Marris reported on the PABE study in the UK, France, Italy, Spain and Germany on public perceptions of agricultural biotechnologies, using focus groups. The main headline results were (1) that the public were mostly concerned about unknown risks: unintended, long term indirect, diffuse effects, due to multiple causes, and/or irreversible; (2) that the public did not react so much to risk per se, but to institutional behaviour; (3) the public did not demand ‘zero risk’ but rather ‘zero arrogance’. The focus group participants accepted that it is impossible to anticipate and predict all harmful (or beneficial) impacts of a new product or technology. What they do not accept is denial of such uncertainty. 37. Taking into account unknown risk meant demonstrating social need, monitoring for harmful effects and having a plan of action for remedy in case harm was realised. The term ‘social need’ was not synonymous with individual benefits to farmers or consumers. 38. Lessons from the PABE study about liability mechanisms were that current and proposed legislation was inappropriate because of:
40. In France as elsewhere, there was increasing litigation by victims and increasing recourse to criminal liability rather than civil liability. Criminal liability aimed to punish irresponsible behaviour, whereas civil liability aimed to compensate victims. One explanation for this is that going to court with a penal claim is the only means by which a victim can have face-to-face confrontation with decision-makers, to find out what motivated the risk taking, and to clarify the way in which the decisions were made. Thus it is not a ‘demand for zero risk’ but rather a reaction to institutional behaviour and to a feeling of a lack of agency. 41. Possible objectives for a liability framework could be:
43. In discussion about whether campaigning organisations lacked transparency, Claire Marris said that people acknowledged that NGOs had their own agendas, and they were seen as exaggerating their concerns, but as having the interests of the environment/ consumers at heart. AEBC members asked what the process might look like, to get from the current position to where there would be more acceptance among the public, and about how decisions could be made in a way that would engender trust. Claire Marris thought it would be a long-term process in view of public loss of trust in institutions creating and managing risks. There needed to be acknowledgement that there were risks, and risk-benefit analyses should be done through a democratic process. Richard Macrory 44. Richard Macrory spoke about the 1998 Royal Commission on Environmental Pollution (RCEP) report ‘Setting Environmental Standards’, covering public engagement, and the reasons why the Royal Commission had come to their conclusions. It was clear when the Government responded that they had misunderstood what the RCEP had meant in some of its proposals concerning deliberative institutions. The RCEP had examined how Government set environmental standards. Two points were particularly relevant. First, it was clear that expert scientific input was essential in many cases, and that the role of science was primarily to provide dose-effect curves and to describe the extent of certainty and uncertainty of these. Secondly, setting any particular standard was a value judgement and essentially a political decision - it was very different from the scientific input. 45. There was much public distrust of environmental decision making, and one of the RCEP’s conclusions was that decision makers did not sufficiently understand peoples’ values, and needed to, as part of the decision-making process. The Commission had debated the very different ways in which economists and moral philosophers assessed peoples’ preferences and values. 46. Economic analysis would be important in almost any standards setting process but there was a major debate of principle as to the extent to which such analysis could represent the nature of people’s values. There was essentially no room for compromise between these two ‘world-views’ since they were built on fundamentally different assumptions about the nature of human behaviour. Nevertheless, the RCEP had produced a unanimous report with fudging the nature of this conflict. Professor Macrory felt that the section in para 5.48 was perhaps the most important connecting passage: "To the extent that people’s values (as expression of fundamental commitments to the environment or to equity, whether within society or between present and future generations) are regarded as not answerable to economic appraisal, the question then arises whether there is any other approach that could provide additional assistance to decision making in that respect." 47. The RCEP report explored a range of methods aimed to take debate forward. Methods to understand the nature of values were not the same as stakeholder meetings (where interests negotiated) but equally did not replace these or forms of public participation designed to elucidate facts or views. Determining values in this sense of the RCEP use of the term required a different approach - testing, probing etc. It did not find generic names such as ‘citizens juries’ or ‘consensus conferences’ particularly helpful, and recommended that the best method for individual circumstances would vary in each case, and would be dependent on the purpose of the particular public engagement. The report suggested that groups such as POST (the Parliamentary Office of Science and Technology) might take forward work on monitoring what was going on now and promoting good procedures. The government response had seemed confused in this area. There were a number of stages in moving towards environmental standards, and public participation was needed alongside all of these. They could be defined as:
49. In discussion, Richard Macrory said that frequently the weakest area in Government seemed to be the way the problem was defined and questions were framed. Government needed to be clear about the purpose of engagement, to avoid the risk of cynicism at a later stage. Claire Marris said that people often looked for a ‘guidebook’ through public engagement. There was not a simple ‘one size fits all’ solution, but there were some key stages and key principles. For example, it was important to be clear on objectives, and to give an explanatory response; participants should frame the questions alongside government. People needed to be made aware that the choices were difficult. Timing of consultation was often complex - neither too early nor too late. Peter Melchett 50. Peter Melchett was policy director of the Soil Association, and an organic farmer. The organic sector was growing rapidly. At present only about a third of organic food sold in the UK came from within the UK and government policy was to double that percentage by 2010 - this involved a major Government commitment to the organic farming sector in the UK. EU regulation and the US Department of Agriculture (USDA) defined organic agriculture, as a system and a process. Within organic agriculture, an international body (IFOAM) set international standards. Regionally, an EU regulation, and for example in the US, the US Department of Agriculture (USDA) defined organic agriculture, as a system and as a process. In the EU, national standards had to comply with EU regulation. Beyond that, organisations could set higher standards if they wished, and there were a number of such organic certifying organisations in the UK. The standards prohibited use of GM derivatives; they did not define contamination specifically. 51. Possible commercial growing of GM crops posed new and major concerns, with the risk of farming neighbours being set against each other, which was very undesirable. It was Peter Melchett’s impression that damage was inevitable. For example organic growing of oil seed rape in Saskatchewan had needed to stop totally, as a result of GM contamination. Comparisons had been made with the nuclear industry during the morning, but there were major differences. For example, with GM there were large numbers of point sources, and it would be very hard to identify the relevant source of problems. 52. It would be virtually impossible to bring a case, and legal advice had reinforced this view. To be able to sue, a farmer would need to
54. It seemed unlikely that organic farming would be seen as an ‘over sensitive’ use of land, since organic standards were indeed defined by law, and much public money was going into organic faming with the policy of substantial expansion. However, if this issue had to be resolved by the courts, they would have to decide between two legitimate forms of farming. As a public policy matter, judges would not want to do this. 55. Peter Melchett suggested a scenario in which an organic farmer farmed next to a green lane, where publicly owned verges contained beneficial predatory insects, which were then killed as a result of a lorry spreading GM seeds of a plant containing Bt toxin. As a result the farming business was affected. Did the farmer have a cause of action, and if so, against whom? In discussion, some AEBC members said that the science would not work in this way in this particular example. There was also discussion about the relative rights for majorities and minorities of farming types. 56. Some AEBC members suggested that threshold values would have to be negotiated, and noted that the criteria of the organic industry were self chosen. A zero threshold was unworkable and not possible to prove. Members asked whether the organic movement’s attitude to GM was a moratorium or a long-term veto, if advances in GM might bring about organic developments. Peter Melchett said that there were needs for improvement in organic standards, that he would like to need fewer derogations and that the movement recognised the input of science. Maker assisted breeding could be one such example. The movement did not think genetic engineering had a part to play. 57. Asked whether the Soil Association would be content with GM commercialisation if there were a strict liability regime, Peter Melchett said that it would be one pre requisite. Others would be agreement about thresholds in seed and other food products. He thought it very hard to see how GM and organic farming could coexist in the UK. There was further discussion about the possibility of zoning, of tolerances, of restricting gene flow and contamination. The Soil Association did not have strong views on whether the patent holder or consent holder should be liable - the aim was simplicity and security to farmers. Archie Montgomery and Bob Fiddaman 58. Archie Montgomery was a farmer who chaired the internal NFU biotechnology working group. The NFU was responsible to all its members including organic farmers, and the biotechnology group always invited the chair of the organic working group to sit in on its discussions. Bob Fiddamen was a farmer with four years’ experience of growing GM crops in the Government’s farm scale evaluations (FSEs). He had experience of working with exacting codes of practice, both for the FSEs and for growing certified seed. In practice farmers already frequently needed to liase with their neighbours about which crops they planned to grow. Examples included high erucuc acid oil seed rape (HEAR), as it had a premium price but was poisonous and so statutory separation distances applied. He would be concerned if benefits of the technology might be lost, and like other farmers, was awaiting the FSE results with keen interest. Separation would become ever more important in future, with farmers keeping crops separate and maintain purity levels in order to fulfil their end contract. A de minimis level was needed, and then co-existence should be possible. In no system could a zero threshold exist. In answer to a question, he considered a 1% threshold could be delivered. 59. The NFU would respond to the AEBC liability group consultation; the scenarios described worst cases and were rather unrealistic. Given that there would be no commercialisation without passing through strong regulatory controls, then it seemed right to consider liability for GMOs in the same way as for other forms of agriculture. Risk assessment was the key, with practicable market standards and codes of practice. It would be important to define damage. There would need to be defences in any liability system to include working with due diligence, and in line with state of the art knowledge. 60. Areas of potential current dispute among farmers, and the ways issues were currently often resolved, was discussed, such as problems with spray drift, and concerns over blight from organic potatoes and smut on organic cereals. In response to a question, the NFU did not see much added value of the SCIMAC guidelines and codes of practice becoming statutory requirements. For example, the code was based on earlier codes, and there would be little advantage in changing its status. Rounding up 61. Justine Thornton thanked all of the speakers for coming and for their very useful and stimulating contributions to the AEBC liability group’s work. She also thanked members of the public for attending. At the next meeting of the working group, members would consider best how to take forward the day’s inputs, in preparation for the commission’s report on liability. AEBC Secretariat November 2002. [1] Peter Cane (2001) 'Are Environmental Harms Special?' Journal of Environmental Law Vol 13 No1 3-20 |
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