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LIABILITY SUB-GROUP MEETING held on TUESDAY, 5TH NOVEMBER, 2002 at THE ROYAL HORTICULTURAL HALLS CONFERENCE CENTRE, GREYCOAT STREET, LONDON SW1 ____________ EVIDENCE-TAKING MEETING ____________ Transcript provided by Harry Counsell & Co. Cliffords Inn, Fetter Lane, London EC4A 1LD Telephone: 0207-242-9346 JUSTINE THORNTON: Today is an evidence-taking session. We’ve called, as it were, witnesses before us, although it is not as formal as that sounds. We have before us three lawyers to start the day, and they are Stephen Tromans, who is a barrister from 39 Essex Street, Chambers of Nigel Pleming QC; Professor Richard Macrory, who is a Professor of Law at University College, London; and Phil Michaels, who is a solicitor at Friends of the Earth. The idea is that we will ask each of them to make a ten-minute presentation to us, and then we will focus questions on each of them for about twenty minutes, and then we will finish with the half-an-hour session for a discussion involving the three of them. The session today is being recorded, which is why we have got the sound system. The idea is that a transcript will be made, and this will be posted on the web. The witnesses will have a chance to review the transcript before it is posted on the web and that that is in addition to a note of the meeting that will be made by the Secretariat, which will also be on the web. I hope you have got an Agenda, all those in the audience, to see how the rest of the day is planned out, but, as I say, we are starting with our three lawyers. I would like to ask - unless anybody else from the sub-group would like to add anything? SUE MAYER: Would you like us to introduce ourselves at all, for the record? JUSTINE THORNTON: Good idea. Perhaps if we start with Phil. PHIL DALE: I am Phil Dale, a Research Scientist at the John Innes Centre in Norwich, involved in essentially the safety of GM products within the environment. JOHN GILLILAND: I am John Gilliland. I am a farmer from Northern Ireland. MATTHEW FREEMAN: I am Matthew Freeman. I am with the Medical Research Council in Cambridge. SUE MAYER: I am Sue Mayer. I am a Director of Genewatch UK. ANNE PACKER: I am Anne Packer from the Commission Secretariat. ROGER TURNER: Roger Turner, Chief Exec for the British Society of Plant Breeders. JUSTINE THORNTON: Justine Thornton, Environmental Lawyer at Allen & Overy. DEREK LANGSLOW: Derek Langslow, Environmental scientist. JUSTINE THORNTON: Well, Richard, we thought we would start with you. PROF RICHARD MACRORY: Right. Well, thank you very much for the invitation. Can I start by saying that I am going to be speaking in my personal capacity, but I do wear a number of other hats. I am a Member of the Royal Commission on Environmental Pollution, and we are currently studying chemicals in the environment. In that context, we are ourselves exploring certain aspects of civil liability - interplay with the regulatory system. I am also a Board Member of the Environment Agency and, of course, in that capacity, we are very interested in the outcome of the European Community Environmental Liability directive, because, clearly, that is going to have implications for public bodies such as that. I also worked in the European Commission a number of years ago for a very brief period, but it was just at the time when the first thoughts on environmental liability were being proposed. I should also say I am not an expert in GMO law or technology. I think some of you are going to be far more expert on the details than I am. However, five years ago I was asked by the then Department of the Environment to be the rapporteur of the National Biotechnology Conference at Lancaster House, under the chairmanship of Lord Selborne. I deliberately, produced a very, very succinct report, which I hoped then would be read by ministers and not just civil servants. Although, in some respects, I think it was an early experiment in engaging wider interests, it now seems a kind of eon ago, but I did read it today, in preparation, just to see whether it had anything of relevance, and there were two passages which I thought were useful. First of all, there was a real need to develop a more clearly articulated set of underlying principles concerning the use of GMOs, but our current regulatory machinery was not the right mechanism for doing so. Secondly, the current regulatory machinery did not appear to deal adequately with the wider impact of GMO modified crops on the natural environment; and, in particular, the extent to which food webs and bio diversity could be affected - which, I suppose, is really where your Committee comes in. Now, civil liability issues were not raised at that particular conference, but, as I am sure again you are aware, the Royal Commission on Environmental Pollution in its 1989 report on GMOs had some discussion passages on civil liability, and explored the possible application of traditional common law remedies and the Consumer Protection Act, which I know you have been doing. Now, the passages in that commission report I think are almost as succinct as my biotechnology conference report, but they were based on quite wide research, and it concluded, which I am sure you are going to conclude today, that there were considerable uncertainties of the state of the common law, and recommended that strict liability principles should apply but, interestingly, only to anybody who released the GMO without a licence. So the Royal Commission then - I mean, I was not a member of it - very much tied in their strict liability principles with the licence. Now, that is quite a controversial issue now, actually, under the European Commission's proposals. Although the government, in fact, did put into effect most of the Royal Commission's recommendations concerning the need for a discrete regulatory machine, the recommendations about civil liability were, essentially, put on ice and, as often happens, they said: "Well, let's wait for a test case, and then see what happens". So, in considering any civil liability issues - and just to be clear, because again you will be aware that at community law level there has been a lot of muddle about what is meant by "civil liability", I am talking in the context, which I think you are, of party-party disputes; I mean, this is what we are essentially concerned with - I think really it is fundamental to decide what the main policy motive behind your regime is, or why you are doing it. Some fifteen years or so ago, at the height of the then Conservative government's concern with easing red tape, and so on, there was rumoured - although I never actually saw it myself – to be a paper put before a cabinet sub-committee, which argued, quite forcibly, that we could do away with all environmental and health & safety regulation, and simply reply upon the courts and common law concepts of nuisance and negligence to actually provide effective and, if you like, privatised machinery for inducing good behaviour; and in many areas what would, in fact, happen was that insurers for public liability would become the shadow regulator. Now, that, superficially, is quite an attractive argument, if you are going that way, and regulatory reform is, clearly, very much on the political agenda now. Certainly, I think, part of the original motivation behind the original EC thinking on the issue of civil liability was a concern that traditional regulatory approaches just cannot cope with contemporary environmental pressure, and if you crank up, if you like, the civil liability regime, that might do some of the job. It is also very consistent with what German lawyers describe - I cannot do the German for it - but they describe it as "reflexive law", which are, essentially, legal principles that are designed to make the operator or the producer, or whatever, really think about what they are doing, and therefore change behaviour accordingly. But, in practice, I think that approach, taken to extremes, is fraught with problematical issues, and indeed - I am sure Justine would have told the non lawyers - if you are looking at the way environmental law has developed in the UK, one can go back to the very first serious regulatory machinery, which was the Alkali Act 1863, and that resulted from a Parliamentary inquiry into crop damage - interestingly enough - caused by air emissions from local factories. The inquiry, when they looked into it, was faced with a paradox, that here there was clearly damage being caused - no problem about causation. It was possible to abate it with current technology, and in fact there were very powerful civil remedies available to the farmers (mainly, then, the civil law of nuisance) which, in theory, should have worked and should have been invoked, and should have deterred the behaviour. But, in practice, they hadn't - a whole number of factors: cost risk of litigation; the sheer distraction - anybody who has been involved in litigation will know that it just eats you up and you can't actually do your present job, particularly if you are a farmer - the problem of multiple defendants, and the fact also that farmers were often leasing land from the factory owners, and there were conditions and leases which prevented them taking action. That still happens today sometimes. Essentially all those issues are with us today. In addition, of course, civil law remedies are not good at preventative action. It is very difficult to get injunctions before damage occurs. Now, I think I might have been able to design a civil law liability system - principles, and so on - that might, effectively, replace the regulatory machinery, but I think it would require a lot more than just introducing strict liability. In one of last year's issues of the journal of Environmental Law, the distinguished Australian tort lawyer, Peter Cane, made what I thought was a very powerful case against tampering with civil liability principles for public policy purposes in respect of environment harm. Now, he does not deny the need to develop suitable policies and laws for the environment, but what he is saying is: do not use traditional civil liability for public policy purposes. In his view, the main purpose of any civil liability system should be to develop a fair and efficient system for compensating for harm, and that compensation goal should not be made more complex by introducing other motivating factors. That is, of course, a very traditional tort lawyer's view, but I have to say that it is one overall that I have considerable sympathy with. Certainly, if we look at the application of existing liability principles to GMO type situations, from the perspective of would they provide a reasonable system of compensation in terms of some of the scenarios that you have identified, there clearly are difficulties, and I am sure that others are going to expand further, but let me just summarise. I think I have got five, what I think are problematical areas: First of all - and I think mainly the examples I have got are farmers who suffer damage to their crops, or whatever - For a farmer who suffers damage from a GMO release on neighbouring property, would strict liability principles under Rylands & Fletcher apply? Would it fall within that concept? I should say that none of the three lawyers here have co-ordinated our responses, so you are quite likely to get three different views, being lawyers. But would strict liability principles apply? I think if you look at the Judgment in the Cambridge Water Company case on that, it does suggest that the courts today would take a rather more generous interpretation of what are considered ultra hazardous activities, and so it might well apply. Secondly, if a nuisance action were invoked - and, I think, again, people feel that Rylands & Fletcher are in the form of nuisance, but I might come back to that - to what extent could the defendant (i.e. the farmer who has released the GMO) argue that, say, an organic farmer, who is operating under very strict standards imposed by a private body, such as the Soil Association, was, in law, an over sensitive plaintiff? There are some well-known cases about people who use their property in what is considered to be a sensitive way, and to quote from a well-known case: "A man [or a woman] cannot increase the liabilities of his neighbour by applying his property to special uses, whether for business or pleasure." So I think that could be raised in a case. Thirdly, the Consumer Protection Act, of course, imposes strict liability, with some defences, for products, and was extended in 2000 to agricultural produce, and I see no reason, in principle, why - I mean, that would not apply to a GMO product which caused damage, in the context of the directive - but I cannot see it would apply to a neighbouring farmer, because it is a good defence that the product wasn't supplied to another or, in the words of the directive, was not put into circulation. This would apply to once the product is on the market and then maybe causes some damage, or whatever, but I cannot see that drifting from the place of production is what the Consumer Protection Act was designed to do. Fourthly, civil law liability systems - and I know you want to come back to this - do tend to restrict claims where pure economic damage is concerned, and that approach has been confirmed in recent case law concerning marine oil pollution. So while I think, as I say, the neighbouring farmer who suffered damage to his crops from a GMO contamination, if he was also then suffering economic losses from that because he lost out on contracts, he would have a good claim, I think, for instance, the shop seller of the organic produce down the line, who then missed out on his contracts, or could not get supplies, that would be considered pure economic loss and he would not have a claim. Then, of course, civil liability concepts really apply only to personal injury or property injury which is deemed capable of private ownership, and that means that certain types of environmental damage - such as damage to wild animals - effectively fall outside the system, and one has to look at statutory remedies. Finally, I would notice, again as I am sure you are fully aware, that the proposed EC directive on environmental damage, in the form that it has emerged, is really not concerned, I think, at all with private liability, in this context. It is concerned with, essentially, public liability or people's liability to public bodies to mediate and compensate for damage that they have done. That confusion between understanding what is meant by liability has actually dogged the debate in Europe, and when you talk to people, some people were talking about private liability, and some about liability to public authorities. I think the present outcome, which is essentially concerned with the powers and the responsibilities of public bodies, where damage has been done to certain aspects of the environment, at least that clarifies the situation. That is my twelve minutes. JUSTINE THORNTON: Thank you very much. I think you have certainly given us a lot to think about. Perhaps if we can start with questions. Perhaps I could kick off, and I am slightly thinking on my feet, because you have given us a lot to think about. It seems to me that you have pointed out a number of problems. You have also queried whether, in fact, civil liability is the answer to some of the issues. Query - are you saying we should look to a more regulatory focus? But then you say you did not go further and say what that regulatory focus might be. RICHARD MACRORY: I think, in a sense, I am going to leave it to you. I think you have to decide what the problems are, in a way, and what I am saying is that the civil liability system - and, I think, whenever we use "civil liability" I mean private - is important and it is useful, but it has got a very limited use, and I just feel that if you think this is going to be the answer to ensuring good standards of behaviour, or ensuring that mistakes do not happen, there is a lot of counter evidence on that. To give you another example - and I cannot give you the reference to it, I am afraid - about three years ago I was external examiner for a PhD thesis, written by a lawyer in the nuclear industry, which was looking at the extent to which the very strict civil liability regime in the nuclear industry affect the behaviour of the companies. It is something people are conscious of. Now, the nuclear is, of course, a statutory liability scheme; it is strict; there are upper financial limits, which are something you may have to think about. But the conclusion of that thesis was, in fact, the civil liability system and the need for insurance really was not what counted; what counted was the regulatory system, with the inspectors coming in, and so on, and the civil liability thing was very back in the mind. So I think what I am really saying is that if some of your motivation is that this is, if you like, good for the person being regulated, then I would be a bit suspicious. If, on the other hand, you are concerned about compensation for individuals who may get damaged, and so on, I think you have got another problem. I think one can look at the existing principles, and one can say, well, in certain situations it may work, and presume - and this is where your technology comes in - that in problems of causation, and so on, which is always a problem, there are things like gene markers, and so on, which could help trace causation. But, even then, there are things like pure economic damage, and I think you have then got to bring a very good case why, if you want to change that, is the GMO technology or industry really different from other types. I am sure Phil is going to tell us, yes, it is. I am not sure in the civil liability system it is, and I think there are just some limitations on civil liability. DEREK LANGSLOW: I think it was point number 2 that you talked about essentially a sector ---- RICHARD MACRORY: Over sensitivity. DEREK LANGSLOW: Yes. Where a sector can determine its own sensitivity and thereby influence the freedom of others that operate. PROF RICHARD MACRORY: Yes. MR DEREK LANGSLOW: It would be helpful, for me anyway, to just talk around that a little bit more. I mean, who has the right to determine that? PROF RICHARD MACRORY: This is going into the classic law of nuisance principles, and I am looking to my left and my right to make sure I get this right. I mean, the law of nuisance has essentially been concerned with balancing what are called reasonable interests - you know, what people can do - and the law has always, I mean for a long time, said that somebody who is considered to be over sensitive, whether personally - you know, I may have an acute sense of smell, and some people do, which is much more sensitive than anybody else round here, but the law would say that does not entitle me to impose those standards on you; I can only impose what a standard sense of smell is, and there are case laws about very sensitive technologies, and it is really where the risk falls, if you like; almost, I think, it is a kind of risk apportioning thing. It gets quite complicated, because the courts would not say - okay, I am operating a sensitive industry; you cause some damage - the courts would not say: "You are not entitled to anything". They would say: "Well, you are entitled to what a reasonable person operating a reasonable industry would be", if that makes sense. So it gets quite complicated. I have a feeling - it is very difficult - I mean, I think, you could argue that organic farming now is so widespread that it would not be considered ultra sensitive any more. On the other hand, I think I would be prepared to argue in court, if I was acting for the defendant, that if these were to incredibly strict standards - and it is interesting that the standards are not statutory standards; they are being, if you like, laid down by private bodies for registration - I think I would be prepared to argue that this is imposing too much. I don't know whether Stephen - I mean, am I allowed to bring in others on this point? JUSTINE THORNTON: Yes. DEREK LANGSLOW: Can I just ask: where does the accommodation of diversity, in this case in agriculture, fit in with that? Is that sort of part of the decision of what is reasonable? RICHARD MACRORY: Yes. I think it is related. I turn to the other principal in Rylands & Fletcher about what are considered to be ultra hazardous industries, and there is a certain kind of relationship with that; that if, in fact, you are considered to be an industry which is not ultra hazardous, in that sense, then the liability principle is much more ordinary, because, again, this is considered to be a reasonable thing to be doing, if you like. That is from the defendant's perspective. This is almost the other reversal from the plaintiff's. I mean, you get the same issue: supposing I was a night worker in a block of flats, I was the only night worker there, and I wanted to sleep all day in absolute peace, I would not be entitled to bring a nuisance action against my neighbours for doing what ordinary people are allowed to do during the daytime. On the other hand, if there comes a point where the majority of those particular flats happened to be night workers, that would change the standard. So that is where you begin to see that if more and more people are doing organic farming to a certain standard, then I think they stop being ultra sensitive, in that sense. So it is a matter of scale and judgement. PROFESSOR STEPHEN TROMANS: Well, the principle goes back to a case called Robinson v Kilvert, which is a well-known case involving someone who stored brown paper, which they manufactured on an upper floor of a warehouse, and the defendant produced heat from his industrial processes below, which, because of the nature of the brown paper, caused it to be injured - it shrivelled it up, or affected it in some way that would not have affected ordinary paper; nor was the heat such that it would have made the upper floors unusable for normal purposes, and the court basically said that because the activity below would not have been a nuisance for a normally sensitive type of use, in the words of the judge, "a man who carries on an exceptionally delicate trade cannot complain because it was injured by his neighbour doing something which would not injure anything but an exceptionally delicate trade". So if your injury flows only from the fact you are carrying out an exceptionally delicate trade, then that principle may preclude you having any remedy. However, you have got to distinguish that from a situation where someone does something which would cause injury to someone of an average sensitivity, but happens to cause your injury to the plaintiff or claimant because of the nature of their activities. There is another case called McKinnon Industries v Walker, where someone was growing flowers to sell commercially - orchids, I think - and there was some atmospheric fallout which affected the orchids, and the defendant tried to rely on the principle in Robinson v Kilvert, but could not rely on it because the activity would have affected flowers normally; it just happened to affect his flowers more severely and the effect was not too remote. So I think if you have got a situation where an organic crop producer is able to say: "Well, this would have injured a normal crop producer's crops, but it has affected me in a worse position", they would not necessarily there be precluded from an action, but if their injury arises purely and simply from the nature of their own particular activities, then there may be a defence. I think the difficulty is - and this, of course, is where having a liability regime may be helpful in sorting out, as it were, in advance, these issues of law, so people know where they stand without having to mitigate it - one would not know, under the common law, until you got into the court and argued it out, which way the court would go in relation to organic produce. RICHARD MACRORY: We keep talking about GMO damage. Now, it is quite interesting what we mean by "damage", because it is a very unusual form of damage. I mean, the normal damage is, you know, your product - or your home or your property - is made useless. Well, it is useless for some purposes, assuming it is no longer organic, in the sense that you could sell it, but presumably what is happening, your crop is still growing, in a way. I mean, that would be a bit of an argument in court. I think it would still be counted as damage to your particular interests, although it is a sort of transformation rather than damage. This is the problem why it is rather important, because you could only probably claim for the economic damage if it already flows from some, what is described as, physical damage, so I might have to get over that first hurdle. I think I could argue that a transformation - I call it that in shorthand - is damage. But I would notice again - and this is where I think one has to be very careful not viewing civil liability regimes as deterrent things - I assume that if I was a farmer and my crops were transformed in that way, and I had a claim, I would still be under a duty to mitigate my losses. So if I could sell the crops to non organic buyers, you know, I might end up - it is quite difficult to know what losses could be quantified. So that would all come into it. I would not get damages just for the insult; I would have to show real quantifiable damage. JUSTINE THORNTON: Phil, I think you just wanted to come in there. PHIL MICHAELS: Just a couple of points on the over sensitivity issue - which perhaps Peter Melchett will talk about later in relation to organic crops - that although there has been very little case law, there was the judicial review in the case of Watson two years ago, and in that case, although it was not determinative of the issues, Mr Justice Buxton did say: "The complaint sounds like one of private nuisance. If it were to be pursued in that jurisdiction, difficult questions would arise as to the extent to which the applicant was seeking to impose limitations on NIAB in a farming area by the introduction of special or especially sensitive crops". Those were purely in relation to organic crops that Mr Watson was growing. So I think we have got some indication of the way that the judiciary might look at this type of issue. Just one other point in relation to accommodation of diversity, and whether that would be part of the reasonable use of the land question. I think that is something, subject to what Richard and Stephen have to say, that the courts would take into account. But it is also something that they would be very nervous about ruling on, because it is really straying into a policy area. It is something that they specifically do not like to do. They would be having to rule, in effect, on policy issues of coexistence. JUSTINE THORNTON: Roger. ROGER TURNER: I just wanted to follow up the point you made. I mean, you used exactly the right word - a "transformation" event can be made. I mean, what happens in law, then, if I do one using GMO techniques and one using conventional techniques? You get the same gene sequence in the plant. What is the difference there between the two of them? RICHARD MACRORY: Well, you know, from a pure legal claim, I do not think there is any difference. Whether that causes damage, in legal terms, to me, as a plaintiff, depends on what sort of crops I am selling and what their standards are. You know, it could be crops which I am selling to shops and they have certain standards, and they could be transformed by a neighbour by non GMO techniques, and that could still cause me damage if that has actually ruined my specifications. So, in a sense, I do not actually see, in terms of analysis, any difference from that, you have got the same problems, and I would still have to sell my transformed things, if I could, to mitigate my losses. Again, you would get exactly the same issues if the standards to which I am growing my crops are considered to be so sensitive; you know, I can still find my own claim might be difficult. So I do not actually see - I am sort of looking at Justine, because you have thought about this a lot more than I have - I do not see, as a matter of principle, there is any difference in that. JUSTINE THORNTON: Sue. SUE MAYER: Well, I was going to ask about the sensitive issue a bit more, because I am finding it difficult, when it is a matter of sort of public policy and government policy, and to fund farmers to convert to organic at the moment - and there is a rather large investment in that - to argue that it can be a particularly sensitive use. So I would be interested in your opinion on that, and also this issue of being able to mitigate and taking steps to sell, which is one problem, but obviously with the GM issue there is this potential for contamination and multiplication of seeds remaining in land, and so on and so forth. Does that make it different in that sense? RICHARD MACRORY: If I was a judge having to deal with this - and as Phil has said, they are obviously alive to this as an issue - one would be looking at, you know, how many organic farmers are there? How many are there in this locality? You know, that would be quite relevant to tell me whether it would be over sensitive or not in that way. As you said, they are giving grants - I mean, what do they mean by organic, and all that? I just get a slight worry. We are in an odd area here, where, if you like, the standards are not imposed but have been determined by a private body, so there is not a public definition of the term. ? SUE: But there are European rules on ???? RICHARD MACRORY: But they are not the same as the Soil Association standards, are they? SUE MAYER: I don't know. Perhaps we will get to that later. (?): If I can chip in. European rules define that you cannot use GM technology to produce an organic crop, but I think it is silent on impurities. RICHARD MACRORY: Yes. So I just get a little bit twitchy about that one point. (?): Would it change the sensitivity if the organic issue was in statutory regulation, defining "organic"? RICHARD MACRORY: Well, I think it would help on that, and, picking up your point, if I was then the farmer, I would be saying: "Look, this isn't an over sensitive standard, because this is an industry being promoted by government and to standards set down by government", in a sense, and I think that could change the nature of that argument, or make it easier for a judge to cope with. STEPHEN TROMANS: I think it also helps probably to demonstrate that you have suffered damage, as opposed to pure economic loss, perhaps, if you have got some sort of binding standard like that. There is an analogy, in a way, in the context of ground water pollution, the well-known Cambridge Water Company case, where you had a tannery which contaminated a ground water source with solvents. Now, the evidence before the court was that the levels of solvents there would cause absolutely no harm whatsoever - you could drink it perfectly happily; you could supply it; it would not do you any harm - but the fact is that under EC law, with those levels of solvents present, one could not supply it under the drinking water directive, and therefore the borehole had to be closed down. I think, you know, there is an analogy to be drawn there perhaps. RICHARD MACRORY: Yes. So, in a sense, that would be a useful recommendation which we would, I think probably all three, suggest; to have some sort of standard laid down in law would be helpful to clarify these sorts of issues. If you think the main purpose is to provide a reasonable system of compensation - which does not mean an absolute system, or whatever - this would actually be a sensible way forward and probably would help the courts. JUSTINE THORNTON: Matt. MATTHEW FREEMAN: I guess it leads on a bit from the Cambridge Water Company stuff, but it seems to me that there are two kind of contentious defences that seem to sort of arise in this thing: one is the issue of foreseeability, and the other one is one that you mentioned of regulatory compliance with respect to the EC directorate, and I was just wondering if you could speak to those a little bit. It seems to me that with foreseeability you have a sort of issue of fairness about, you know, if you are a producer and you have done everything you can and, as far as you can tell, everything is fine, and then fifteen years down the road there is a problem. Is it fair that you should be liable? On the other hand, if you are the victim fifteen years down the road, is it fair that you do not have any redress because it was not foreseeable? Similarly with regulatory compliance: if you have done everything you have been told to do, is it fair that you should be held liable? But, in exactly the same way, if you suffer fifteen years down the road, is it fair that you should not have any redress? It seems to me that both of those are really hard problems that sort of surround these issues, and I was just wondering if you could speak to those? RICHARD MACRORY: Well, I think, underneath you have identified often one of the dilemmas for the legal system devising any form of compensation, that, you know, somebody always loses out, and it could be either side, and it is never completely fair, you know, when you analyse it. I think, on the regulatory compliance side, the traditional approach, certainly in nuisance cases, is that the fact that you have complied with a particular regulation is not relevant, because the regulation, if you like, is imposed for public policy purposes, and it is not to do with private civil liability. If negligence is involved - and we have assumed that, I think, negligence is not necessary here maybe, but if it is - then, clearly, the fact that you have complied with a regulation is relevant, but it is not going to be determinative on that. As you know, at the moment the EC proposal does actually talk about compliance with statutory controls. Now, I have to say (and my environmental lawyer friends on my left and right will probably shoot me for saying this) I think that now this civil liability regime in Europe is a public liability regime - it is to do with where the government can force you to do something - I think there is actually some logic in saying: "Well, if we are complying with a standard which government has imposed, why should we then be made to compensate?". I mean, you can see the argument. I think it is less excusable in a civil liability regime, because I think the two are separate, and it is just a bit tough. I would say - which I quite like myself as a model, but I think it is going to be too complicated for Britain - in the German legislation on the environmental liability what they have done, essentially there is a reverse burden of proof. So if you are operating certain industries, it is up to you to show that it was not your emission which caused the problem. But if you can show that you were complying with a discharge consent, or an emissions consent, the burden of proof reverses back to the plaintiff, which has a certain sort of logic to it, because it is saying: well, if the statutory body, the environment agency, says this is your limit, I can make a sort of assumption that it will not cause damage; you know, this will be a good thing to do. But what the German system does not do is to say that that is an absolute defence. It goes back on the plaintiff to prove that actually it was that emission which caused the damage. That actually, to me, has got a certain sort of logic to it, if it makes sense. It is a little bit complex, and heaven knows whether it works in practice, but I could see that as a way of resolving that particular problem. On the foreseeability: again, in one sense, there is a kind of, as it has always struck me, a slight lack of logic in saying - but this goes against all recent case law; "recent" means the last forty years or so - that if you are strictly liable for something, so there is no fault involved, you can still say: "I am only liable for what was reasonably foreseeable. You know, that is still a test that has to be passed, which is a sort of fault based. I mean, it is asking what could people foresee at the time; whereas I think that is appropriate for negligence, I have never quite understood - I mean, the House of Lords in Wagon v Mound in the 1960s said that the remoteness of damage test for nuisance and negligence and strict liability was the same all the way through. I have always felt that was slightly - I could never quite understand the logic of that, but it will be another hurdle to pass for the farmer. Again, in the Cambridge Water Company case, it was quite clear that one had to - to a certain extent one was asking: well, what did people think at the time? That was the critical question. JUSTINE THORNTON: Okay. We are running rapidly out of time, Richard, so Sue, and then John, and then I propose we move on. RICHARD MACRORY: Are you coming back to the economic loss, or is that for later JUSTINE THORNTON: I would speak now, otherwise you might risk losing it. RICHARD MACRORY: Okay. Just on the question of pure economic loss. As we have identified, one problem for the neighbouring farmer is that he has to show there is basically some physical damage to his property that followed, and then the economic losses of the consequential, I think, are alright. I think one can get round that. I think for other people, who, from this particular incident, or whatever, suffer pure economic loss, they have got a real problem, and, basically, I mean, nearly all legal systems of civil liability have imposed some restraints on, what you might call, intangible losses, and there is no question of fairness for the plaintiff in this, because, you know, it is a very real loss for them. As far as one can see in all the cases - and the judges are becoming, I think, a bit more honest about it - it is simply a question of practicability and limiting claims, otherwise one would never know where one stops. Certainly if you look at the United States, at the case law - although the different states tend to differ a bit - but, I mean, you get two cases in 1985, one where the court, in the case of a chemical spill from a ship, clearly said that any pure economic damages are not claimable; it is only if you have suffered physical damage. Whereas, in another case, concerning an air terminal which had to suspend operations because of a threat from a neighbouring property, but no actual physical damage, there the court said they did not like this rule, they thought it was unfair, and they had a test of “particularly foreseeable” - which is a nice new one, but if it is something that you can sort of particularly anticipate - that might be acceptable. My feeling at the moment - and there are exceptions where economic loss is allowed, for things like negligent mis-statements - the courts are tending to be drawing a rather harder line, and they are being a bit clearer, and twenty years ago they seemed to be going down this route. I think the recent cases, and particularly the marine oil pollution cases, are saying: well, there just has to be a limit for public policy purposes. Although, interestingly, if you go back to the Tilbury case, the oil pollution case - which concerned a secondary supplier who could not get the whelks, and therefore it was pure economic loss, he had no claim; and this was under statutory Oil Pollution Act, but it was the basic same principles - they accepted that the fishermen could almost certainly claim under the Act, even though they did not actually own the whelks, and their damage - and it was not to do with private waters or private fishing interests; it was public waters - but they accepted: well, that was a kind of direct interference with your livelihood. So it is a little bit pushing the boundaries on that, but I think it would still be very difficult, pure economic losses, and the only way to get round that, if you think that is a problem, is to have a statutory legislation, where there are examples of statutes which allow for compensation for interference with businesses, but you have to do it in very explicit terms; and then you are faced with this problem that why is GMO different from other forms of pollution or contamination or interferences with businesses, which occur daily. JUSTINE THORNTON: Thank you. Can I suggest we perhaps save your questions until the plenary session, unless you think they are particularly relevant. Is that okay? Thank you very much, Richard. Can we turn perhaps to Stephen now. PROFESSOR STEPHEN TROMANS: Okay. I will try and be fairly brief. As Justine said, in introducing me, I am by profession a barrister, and before that I was a solicitor ... (TAPE CHANGE) ... future, but] The key question seems to me is whether and, if so, why there is any special liability regime needed for GM crops. It seems to me that some of the scenarios that you have put forward in your documents are essentially based on contractual relationships, and, in my view, where you have an issue arising in contractual relationships, that is a matter purely and simply for risk appraisal and allocation of risk by the parties in that contractual context, bearing in mind the product liability rules. So I do not really see that probably the law has too much to say about that. The more difficult issue, it seems to me, is the law of tort, and I think there are perhaps two major facets to what might make GM crops different potentially. One, I suppose, is the wide-ranging and interactive and irreversible nature, potentially, of their affects. If one reads Recital 4 to the Deliberate Release Directive 2001/18, we see that certainly the European Community takes the view that they are special because "living organisms", it says, "whether released into the environment in large or small amounts, for experimental purposes or as commercial products, may be produced in the environment and cross national frontiers, thereby affecting other member states. The affects of such releases on the environment may be irreversible". So I think we see the nub of it there: they can replicate; they are autonomous; they are mobile, and their affects may be irreversible. That is not to say that one cannot have other things that are released into the environment that have widespread persistent affects, but I think it is that autonomy and potential irreversibility which maybe makes GM require particular consideration. The other aspect, it seems to me, is the very detailed regulatory regime. There cannot be many activities, I would have thought, that are subject to such stringent regulatory regime as GM crops under the directive. It seems to me that the whole basis of Directive 90/220 is risk assessment. If one reads the relevant provisions in Annex 2, "Principles for Risk Assessment", we see that the competent authorities are required to identify precisely what types of problems may flow from the release of GM, and we see there that many of the things which you refer to in your scenarios are precisely those matters which are required to be considered and taken into account on a risk assessment. So, for instance, affects on the dynamics of populations of species; compromising prophylactical therapeutic or plant protection treatments; affects on biogeochemistry; adverse affects through mechanisms, including the spread of GMOs in the environment. So, quite clearly, one has that detailed risk assessment which is required before GMOs can be released into the environment. One asks: "Well, how is it that then harm may come about as a result?", and it seems to me that harm can come about in those circumstances in, essentially, one of three instances. First of all, it can come about because the regulator has considered a risk, and has judged that risk to be acceptable, and that risk gives rise to harm. So if the regulator, knowing that there was a risk that these organisms could not be contained and would have these effects on producers of organic crops, well, they would be taking a public policy decision to allow release in those circumstances, and that harm then is entirely foreseeable. The second situation is that the risk assessment is carried out, and then the harm occurs because of some failure in relation to required conditions on containment or conditions of use; in other words, something has gone wrong because somebody, to put it crudely, has cocked up in the release of the mechanism - they have not complied with the conditions which were set. It seems to me that is an entirely different situation when one is considering liability. The third situation is: there is full compliance, but something occurs which was never considered in the risk assessment - it is completely unforeseen to anyone. So I think those, to my mind, are really the three main scenarios that harm could occur under, and I think, in that context, if we look at the underlying common law - as Richard has said, it is really negligence and nuisance, with Rylands & Fletcher subsumed, I would say, as a sub-set of rules on nuisance. Negligence, essentially now, according to the House of Lords, involves three things as conditions for someone being liable under the tort of negligence. First of all, foreseeability of harm; that is an essential requirement. Secondly, a relationship of proximity between the parties; in other words, were the claimant and the defendant in some relationship of proximity which gave rise to a duty of care? Thirdly - and particularly importantly, it seems to me - considerations according to the court of fairness, justice and reasonableness. It is fair, just and reasonable to impose a duty of care giving rise to liability? But, of course, one might say that fairness, justice and reasonableness are precisely those considerations which should inform any statutory liability regime which is set down. I think we see those factors in operation in the case which Richard mentioned, the "Sea Empress" case; the case brought by R J Tilbury & Sons, who were processors (not fishers) of whelks, I think, from Tenby and Saundersfoot. There was a particular fondness for these shell fish in the Far East, and that is where they made their money. Interestingly, the problems occurred, not directly because of damage to shell fish, but because as a result of the "Sea Empress" spill, and, under the Food & Environmental Protection Act, an order was placed preventing harvesting shell fish. So it was indirect, clearly, in that sense; there was no actual harm to shell fish, but there was a restriction of the use of the shell fish, which then fed through into a loss of profit for those processing it. The judge - and it is also worth bearing in mind that this was under a statutory liability scheme; not under common law, but the judge clearly applied common law principles to it and said that all the way down the supply chain loss was clearly foreseeable. You could show that there was foreseeable loss of profit by the fishermen, by the processors, by those who would then import the processed whelks into Korea, and indeed by the Korean restaurateurs themselves, who would otherwise have sold them. So foreseeability was no problem whatsoever. But where the claimants fell over was in terms of the rules on remoteness. The court said it is entirely separate to foreseeability; there are rules which govern remoteness, and this loss which was suffered is indirect relational pure economic loss, which, on those principles, is not recoverable, and they said that these principles are so well entrenched as part of the common law, that it would require very clear statutory words to exclude them from any statutory regime. It seems to me that nuisance, in terms of that, is moving closer and closer to negligence. Many of the principles are the same now as full negligence, in terms of, essentially, a duty of care analysis, and there is a large policy element, it seems to me, in the underlying case law there. So one would say then: "Well, we could leave it up to the courts to deal with all this on a case by case basis, and to apply those principles, which should involve fairness, justice and reasonableness - all those factors we would wish to see - and why would we want to pre-empt that process of adjudication on the actual facts by seeking to lay down our rules?". Well, it seems to me there are two main reasons, potentially, for that. One is a wish to protect those who may be affected. One then says: "Well, why does one wish to put those who are affected by GM problems in any different position to anyone whose personal property is affected by other aspects of modern industrial activity?"; and certainly if one has rules laid down for that basis, one still has the difficult task of saying just how remote the affects are going to be which fall within that liability network, so one is not necessarily solving the problem and affording protection to everyone by laying down those rules. The second possible reason, I suppose, that one might wish to have a liability regime, is actually to promote conditions in which the industry can flourish, and I think the analogy there is with the nuclear industry in the 1950s and 60s. It was clear, when nuclear power stations were being built, that there was great concern by those operating and financing them, and by those contractors who were building them or providing engineering components for them, that the loss they might suffer, in terms of liability, were one of these installations to go wrong, was such as perhaps to make the nuclear industry unviable, and therefore, both at international and domestic level, liability regimes which were produced which struck a bargain, and which said: "Basically we will have a regime which is strict liability, which channels liability to a particular person, so there is no argument that a contractor, for instance, could be liable; we know precisely who is going to be liable", and there is an upper financial limit on terms of their liability, so they know, if they are going into this, precisely how much they are in for. Without that clear liability framework, the nuclear industry probably would not have got off the ground. Whether one says that is a good thing or a bad thing obviously is up to one's individual views. But I think that that is the other reason why one might wish to consider some sort of liability regime, to lay down clear rules within which the industry can operate, so it knows where it stands and it can judge whether those maximum risks are acceptable or not, because, quite clearly, if one had a regime where there was unrestricted liability for things like economic loss, one would query whether anyone sensible would actually take those risks of releasing GM organisms into the environment. JUSTINE THORNTON: Thank you. MATTHEW FREEMAN(?): Sorry, this is a bit of an old chestnut - it is one that we have already had this morning, and I expect we will again - but one of the reasons that you thought there might be a distinction that would allow for a liability regime for GMs was that of an irreversible and replicative wide-ranging nature. The comparisons you were making were with kind of, say, chemical emission, or something like that, but if one compares them to other agricultural processes - so, for instance, I mean, Roger mentioned the possibility that you would produce a crop that had the same trade but not by a GM route, but by just normal breeding techniques - that would seem to me to largely cause that distinction to evaporate. I just wondered whether you think that is true. STEPHEN TROMANS: Or, I suppose, indeed, if someone brought in a non native species. (?): For example. I mean, there are, no doubt, precedents - I am not aware of what they are, because I am not a specialist, but no doubt there are precedents - and one can certainly imagine that, not everything but many of the things one could produce by GM you might be able to produce by conventional crop breeding. So then I wonder whether there is a logical distinction between GMs and conventional crops, or whether that is more of a sort of political construct than based on any kind of - I am rambling now. I will leave it to you. STEPHEN TROMANS: This may be something which Phil will perhaps major on a little more. I can certainly see your point: where is the logical distinction? I think the problem is, of course, that we are addressing now something which represents a bit of a change in terms of the application of that technology. One, logically, perhaps, is not doing anything different to what has been done by other means for centuries, but what I suppose one has got is the potentially common and widespread application of a technology on a much more rapid basis, which I suppose could, therefore, be seen to have greater immediate potential consequences, partly because they could occur quite suddenly, whereas, with normal breeding processes it has occurred over a very long period of time and, as it were, people have adjusted to it. I am not an expert on the science of it, so that may not be correct, but it does seem to me that it is perhaps not so much the logic of the distinction but more the political context and the scientific and commercial context in which this change is coming about; that is the difference, rather than the purely logical one. JUSTINE THORNTON: Phil. PHILIP DALE: Maybe, essentially on the topic of (inaudible) with conventional breeding you could do some quite significant things, in terms of environment impact, so that the genie out of the bottle part you could (inaudible), and then go back to the product process question. But if you look at invasive species over the generations, the ones imported for agricultural use have been the ones that have really made an impact; 10% of the things we import establish well, and 10% of those tend to go crazy - you know, like the rhododendron, and so on. So, according to this rule 1% will become a problem, and it is very difficult to think of crops that have been introduced that have really created a problem. So my question really is that context, and how relevant all of that analysis is in making a judgement that GM crops are unique. STEPHEN TROMANS: I think the difficulty is, isn't it, that, like it or not, they are perceived as being unique, and that is why one has this huge EU regulatory regime governing it. One does not have anything equivalent in relation to the importation of plants, in terms of this very detailed type of risk assessment. PHILIP DALE: () policeability. You know, you can bring seeds in in your turn-ups, and people, when they go on holiday, do it all the time, and so it is unpoliceable. Whereas here we are dealing with technology that is potentially policeable. So is that (????). STEPHEN TROMANS: I think there is an element of that to it, although, of course, one could have people, in principle, importing crops on a commercial basis, but not, clearly, on the major commercial scale that one is looking at potentially quite soon in relation to GMs. JUSTINE THORNTON: John. JOHN GILLILAND: Can I go back. You talked about harm, and the instances that we may see harm occurring, and you mentioned the role of the regulator. STEPHEN TROMANS: Yes. JOHN GILLILAND: How important is, though, the regulator in deciding on liability and where harm lies, and the issue of unforeseen problems, where, you know, properties are approved - the regulator has approved it, and whatever. I mean, if GM is taken up, where everyone meets full compliance but there is an unforeseeable problem. In that scenario, how do you apportion liability there when it has been done by approval of a regulator? STEPHEN TROMANS: Well, I think, in any scenario, it comes down at the end of the day to a policy choice really. I agree with what Richard said, that if one is looking at a liability regime which is not to do with party and party civil liability but which is to do with clean up, then probably it arises in a much more stark way, because one could say: well, it is for the regulator to decide whether the potential effects on bio diversity are acceptable or not, and if they judge that those effects are acceptable, and it turns out then that some sort of clean up of the mediation operation is required, there is a very respectable case for saying it is the State regulator who has judged that to be acceptable who should pay, rather than the regulated party. It is more debatable, I think, where you are dealing with essentially allocated risk between private individuals, which is what we are doing under a civil liability regime, but I think there certainly is, in principle, the same argument to be made that if a regulator has carried out a risk assessment, which has specifically considered a kind of risk - for example, the risk to organic growers of crops - and has said: "We are prepared to take that risk, as society, by authorising you to release under certain conditions", and you comply with those conditions and that foreseeable harm occurs, there is a respectable case for saying: well, it is then society which should pick up the tab. In the second scenario, where the harm occurs because of a breach of condition, I would have no difficulty there in saying: well, clearly, there should be liability on the person who broke the condition. In the third one, where something entirely unforeseen has happened, I think that is perhaps the most difficult one of all. I think, at the end of the day, it comes down to a pure policy choice. Quite clearly, under civil law as it is at the moment, if it is totally unforeseeable, and could not even have been foreseen by the risk assessment process, well, clearly, one is not going to have any chance of establishing civil liability, because, as I have said, foreseeability is an absolutely essential component of that, whether in negligence or in nuisance. So one would have to have a pretty fundamental change to liability rules to create liability in those circumstances; and we come back, I suppose, to all the old arguments about: well, who has, as it were, the property right, from which is your starting point? How do you apply the polluter pays principle, and so on? At the end of the day, it is nothing more or less than a policy and a political choice, it seems to me. RICHARD MACRORY: Just on that, as Stephen said, I think the risk assessment that was done by the regulator, again if I was acting for the defendant, I would say: "Well, that is a good starting point for what was reasonably foreseeable at the time". As the plaintiff, if I could argue: "Well, the risk assessment was done for certain purposes and it did not actually deal with other things which would have been reasonably foreseeable by somebody if they had asked the question", then I can get round that. But it is a very good starting point, and must be good evidence for what is reasonably foreseeable at that particular time. DEREK LANGSLOW: Stephen, could I ask you to elaborate on one of your points, as to why GM crops are different - and you elaborated irreversibility, wide-ranging? Well, precisely the same could be said about organo chlorides, for example, and I do not follow why you argue, therefore, that these are sort of intrinsically different to some other features such as that. There are clearly some things they are different from, I accept that, but why are they different from something like that, do you think? STEPHEN TROMANS: I was not, I suppose, particularly seeking to make the case that they are different. I was sort of saying that these are arguments which could be put forward as to why they might be at organo chlorines going into the environment. They share many of the characteristics of GMOs - they are, to an extent, mobile; they are persistent - but I think, in general, it seems to me that if one has organic chlorines going into ground water, let us say, okay they may be extremely difficult to deal with, and it may take a long time, but, in principle, one can clean up that ground water. It may be very expensive, and it may take a very long time. But if one has GMOs released into the wider environment, and they are totally uncontained, and they thereupon interact with other elements of the natural environment, I do not see how that can very readily be remedied. I mean, there may be technical fixes that I am not aware of which could put it right, but it seems to me that that is the key aspect. Once some of these organisms, anyway, are out there, one cannot call them back or readily control them, whereas with organic chlorines one can, in principle - although, as I say, it is difficult - call them back and control them. ROGER TURNER: I would actually challenge that. I think my view is that crops need protection, in the sense of an agronomy management and the inputs you put into them, irrespective of whether you are a GM conventional or organic farmer. The moment you take away those input regimes, they are then exposed to nature and they go away, and the science evidence shows that: you know, the current range of crops do not persist; they do not have an irreversible aspect to them. STEPHEN TROMANS: Well, I suppose, if that is the case, that would clearly be one of the matters which would be taken into account on the risk assessment, wouldn't it? (?): Yes, and I do (??????) part of that project. JUSTINE THORNTON: Sue, and then Matt. SUSAN MAYER: My feeling is that, you know, we are in a bit of a dilemma with this, because the one issue around some of the hazards of GMOs, and probably other technologies as well, that people have is that there will be unanticipated impacts - so they are anticipating that there will be unanticipated impacts - and driving some of the underlying concerns is that there seems to be, you know: "We can't deal with this. Nobody can take responsibility for this". That is the sort of dilemma that we face. So I would like to get your responses to that, as to how we can deal with it, because, clearly, people are demanding some accountability and some recognition that something unanticipated is probably the most likely thing to happen - to go wrong. But also this issue about difference, which I do not necessarily think that anybody would not expect liabilities - say environmental liabilities - to be more broadly affecting, but we seem to be at a particular time or perhaps - just to get your response to this argument - on the verge of commercialisation, commercial use, where there may be a pressure from the public for that major step not to be taken without liability. Now, maybe that should be applied in every other circumstance as well. We are at a particular time with GMOs. So it was to try and get your comments really to those. STEPHEN TROMANS: Well, it is very curious, isn't it, in a way, the situation we are in, because I suppose one could say: well, what if there had been a similar committee to this, sitting round a table decades ago considering the widespread commercial use of agricultural pesticides or fertilizers, or back in the early years of the century considering the commercial use of asbestos? What decisions would they have come up with. Would they have decided there should be some sort of special liability regime? I rather doubt it, but perhaps, with retrospect, they should have said they were. SUSAN MAYER: Well, I am just wondering whether we have learnt from some of those. I am just thinking about what is driving some of the public concern around the issues, in terms of what we need to respond to and take into account when we are thinking that unanticipated affects is an important issue in the public's mind around GMOs, for example, and wanting to be assured that there is responsibility taken for that in some way or another. Maybe it is that liability - and we will say liability laws - cannot deal with that at all, but it is just to discuss with you, I suppose, that particular problem that we face. RICHARD MACRORY: I am sorry, I know you are doing this sequentially. I think you are absolutely right to raise that dilemma, and I think what we have demonstrated so far - and this may lead very neatly on to the next presentation - is that the existing liability principles, and the way they are likely to be handled by the courts, are not really appropriate enough. They will deal with some things, and they will deal with it fine. It may well be, in fact, that the people who would most want to have some sort of statutory system of liability are, in fact, the industry. I mean, they may feel, just as Stephen pointed out, the nuclear industry would not have got going if there had not been a statutory scheme which helped the insurance - it helped everything - and it was a bargain, and it was struck between, basically, the industry and the government, and the government saying: "Well, we will pick up any liability beyond a certain amount. You can still sue in negligence". It was quite a complicated bargain. I mean, another good example, if you like, of a bargain - which may be coming unstuck now a bit - is the civil aviation, where, you know, private nuisance actions were taken away by statute, because, essentially, we would not have had any existing principles that applied. Now, that has suddenly bumped up against the Human Rights Act and whether that is now permissible - there are some quite complicated things about that - but there are examples of where actually it is the industry who needs the statutory position, which then there are a whole lot of ways that you can handle that: you know, you can have claims for straight causation, interference with businesses. I suspect that if you did that, you know, you are getting rid of the reasonable foreseeability and other sort of limiting tests. You would then be up against some financial limit. You know, you have to have the bargain one way or the other, and you put some financial limit on that, which, you know, it would not be the farmers; it would be the industry who would indemnify that in that way. [] What does this mean???? MS JUSTINE THORNTON: Can I just say by way of comment, though, that I think this comes back to what you were saying about the Peter Cane article. I mean, if I have got an asbestos related disease, at the end of the day I would rather not have it than get the money, and all that liability can do is compensate after the event, whereas Stephen is talking about looking back to the risk assessment to preventing this happening. So I think we need to consider what might be the best solution. But, anyway, Matt. I think, again, we are sort of moving to last questions for this section. MR MATTHEW FREEMAN: Okay. It follows on quite nicely. I was quite taken by the idea of a liability regime as an aid to a developing industry, and a limit on the cap. I just wondered, in practice, how is the limit set, and what sort of size is it? Is it the size that sort of puts a company under, or is not a size that puts a company under; because, obviously, the sort of damage that some people might foresee is well beyond the scale of any company. So where do you set it? I mean, obviously, that is a wide question, but has it been set in the past at a limit that would destroy individual companies or not? STEPHEN TROMANS: Not, I think, under the nuclear regime anyway. It was setting it by reference to a particular incident. So if, to put it crudely, a nuclear power station blew up, from that incident there would be a maximum cap. RICHARD MACRORY: And it is actually pretty small. MATTHEW FREEMAN: It is quite small, is it. STEPHEN TROMANS: And it has stayed unchanged for many years. I think it was changed in about the mid 1980s and put up to a slightly more realistic level, but it is certainly not a level which is going to cause a company to go under. MATTHEW FREEMAN: Right. Okay. Thank you. JUSTINE THORNTON: Okay. Thank you very much, Stephen. Turning now to Phil. MR PHIL MICHAELS: Well, you can see I am going to throw myself into the lion's den a bit, by trying to answer this first question. I should say that I am coming at this presentation not just as a lawyer, which I am, but also from Friends of the Earth, looking at it from the policy perspective, which involves certain value judgements, which will be obvious as we go through this presentation. I think that is important as well. Even these nitty-gritty issues of liability and risk allocation, they are not issues that should be left to lawyers, however valuable the contribution of lawyers is, and I think that is something that this Committee recognises. The question: are GMs different in such a way as to require a specific liability regime? We say "Yes", they are, partly for the reasons that Stephen mentioned, and as they are highlighted in Recital 4 of 2001/18. The damage that they can give rise to is irreversible. They are living organisms, and they represent, therefore, an entirely new class of environmental risk, on the basis that they are able to replicate themselves, which is different, we say, from organic phosphates or other similar chemical risks. I think another issue that came up, and that I will respond to now, is the question of whether or not other agricultural products that are created by non GM technologies should have a similar liability regime attached to them. I would say that our response to that would be, in part, that that question - although it is interesting legally - is something of a red herring, because, in the first place, many of the technologies that we are concerned about can only be, or are only being, produced by GM methods, and there are very, very few forms of conventional agricultural novel technologies - sort of novel agricultural products - that have been bred by non GM technologies that give rise to the sorts of concerns that we and other people have. Other small issues that we would take into account in responding to this question, we would say this is a relatively immature industry, and we are already, in comparison with other industries at similar levels of immaturity, aware of far greater concerns and warning signs. The issue that Sue raised about us being concerned about dangers that we cannot actually foresee in detail, that is something that has to be taken into account when deciding whether or not a specific liability regime should be in place. In addition, the impact that GM technology - GM agricultural - can have on other types of farming. Although that is part of a coexistence rather than a liability debate, it is an important factor to weigh into this question. Adding on to that, one thing that we would say is that even if we were to accept that GMs are not fundamentally different, in such a way as to give rise to a new liability regime, we would say that there is a particular political and social window of opportunity here. There are particular concerns, and this issue of perception is an important one that should not be ignored. What this group might want to consider is whether, in fact, the GM - the biotec industry - should be in the vanguard, in terms of a new liability regime that could, at a later stage, be extended to either to novel agricultural technologies or to other forms of environmental risk and hazard. Friends of the Earth has been looking at the issue of legal liability for quite some time. In 2000 we commissioned a legal opinion from a barrister about whether or not those who suffered damage could obtain redress under the common law, and, in common with much of what Richard and Stephen and many other legal commentators said, we found that there were very serious problems of uncertainty, and certainly no real clarity about whether somebody who was going to law would be able to obtain redress. I will not go into that. I would rather talk now about what we think is the answer. It is worth referring again to this point, which I mentioned briefly before, which is that some people say: well, let the common law develop, even if it is not at the stage now where it can provide the level of redress that people want or need, then maybe in the future it can develop organically, as it were. As this quote from the House of Lords shows, there is a serious and an understandable reluctance by the judiciary to develop the common law in these types of areas to provide a stricter liability regime. What the judges have done in this case, and others, is effectively throw the decision back at the policy makers, and said: "This is a decision for you. You need to decide on the allocation of risk in society, and to see who should bear that risk". I should also say that even if the common law were to develop, it is an iterative and slow process, certainly not quick enough to respond to the pressing agenda of commercialisation, which may be in the next few months or years. So what is the answer? And this is what the rest of this talk will be about. We say the answer is a new statutory liability regime. We say that identifying problems in the common law is actually the easy part. These are some of the things that we think a statutory liability regime should do. The first one is to provide incentives for risk minimisation. That was something that I know Richard said specifically he did not think a civil liability regime should do, as I understood it, and it is effectively [???] RICHARD MACRORY: [(Inaudible)] the main driver. PHIL MICHAELS: No, it is not the main driver; it is one factor. Perhaps the main driver, and the most important, listed number 2: it is to provide compensation for those who do suffer damage, which the common law at the moment simply does not do. The fourth point there is to be clearly comprehensible. I think that does go very much to the issue of a liability regime being of benefit to the industry - something that Stephen raised. People, whether it is the biotec industry or those who are concerned about damage they might suffer, or who do suffer damage, should be able to be quite clear about what the state of the law means for them; what redress they would be likely to obtain, and what, for the biotec industry, their liability would actually be. Finally, as a point of principle, we say that any liability regime should broadly internalise the costs of any risks or hazards actually arising, and I will come on to why we say that is the case. AEBC MEMBER: What does that mean? PHIL MICHAELS: That means that we think if a particular hazard arises, then if liability is to be met by the government or to fall where it lies, to be unmet, then the damage is, in effect, socialised; the costs of the damage are being paid for either by the government or by those who suffer the damage. What we are saying is that any liability regime must specifically, on a policy level, try to make sure that the costs of any risks actually materialising are borne primarily by the industry itself. I can come back to that, if you want to ask me again about that afterwards. The answer, therefore, for us is a statutory liability regime. Something along the lines of what we would suggest has actually been put forward in a Private Members' Bill on two or three occasions in the last Parliament by Alan Simpson, and that is the Genetically Modified Food & Producer Liability Bill. The first point then - and this goes back to the internalisation of costs issues - who should be liable? We are looking here at liability for damage caused by releases under the consent regime - we are not looking at the criminal issues of damage caused by releases outside the regime - and we say that the most obvious target for liability should be the consent holders themselves, for a number of reasons. In the first place, they are the one party that is always identifiable. Where you have got a very complex causation pattern, where it is not easy to determine from which particular release the damage arose, then the consent holder is the one person to whom you can always trace the damage. The other point is that the consent holders are the people with the most to gain, by far and away, and they are the ones to whom the benefit of this technology will, in large part, accrue, rather than to society; and rather than, more to the point, to the farmers. There is also another issue here, which is that even taking into account the positive developments in risk assessment under 2001/18, it is the consent holders that have, by far and away, the best understanding of the science that underpins these technologies. Therefore, when we deal with issues like foreseeability - which I am sure you will ask me questions about later - they are the ones who are in the best position to determine what actual risks are foreseeable. One other feature of the Simpson Bill that is interesting, is we specifically tried to avoid the problem of farmers, or others, becoming liable for damage arising from GM releases, and the Simpson Bill provides for an indemnity system, whereby the consent holders indemnify farmers, or others, who could be on the receiving end of a civil action. The next point is the thorny issue of strict liability, and what we mean by "strict liability" here is simply in contrast to fault-based liability, so it requires that a claimant can recover damages, even in the absence of fault or carelessness or negligence. We also mean it - and I agree entirely with what Richard said concerning the lack of logic, in terms of foreseeability and fault - we mean strict liability in terms of absence of foreseeability. I think that is particularly important, again for the reason that Sue raised, that although many people are concerned about the types of damage that could arise, we are completely unclear, and that is one of the public's concerns about precisely what damage would actually arise. There is also an issue in foreseeability of "whose best science"? There is so much debate at the moment about what the science actually means - what damage will actually arise from these technologies, if any - that to have a foreseeability requirement would, in fact, reduce the strict liability to a fault-based one. On a policy level, we say the reason for strict liability is that where a person is carrying out an inherently hazardous activity of this type - as is recognised in 2001/18, and previously in 90/220 - then they should bear the risk of any hazards arising, regardless of whether they actually carry out the release with due care or not. There are a couple of other advantages of strict liability. One is that it relieves the judiciary of the burden of having to make decisions about fault, negligence and due care. Another, which is important from our perspective, is that it reduces the costs of the claimants - those who actually suffer damage. Richard referred to a study of the nuclear industry a couple of years ago, which said that the regulatory regimes were actually acting as a deterrent for those who were running nuclear companies, rather than a civil liability regime. I think that is probably the case, and that is one reason by the Simpson Bill puts in this rather robust clause concerning personal liability for directors, except for in certain circumstances. That is certainly worth focusing the minds of those who make these decisions. What types of loss are covered? The Bill tries to cover, and we suggest it must cover, all these types of loss: traditional loss; personal injury and property damage; plus economic loss, which is a major gap in the common law system at the moment - that is highlighted by a number of the scenarios that this Committee has put out - and, in addition, environmental damage. So it tries, at least, to deal with all of those types of loss and damage. The point made earlier is that the White Paper for the European Civil Liability Directive effectively deals with environmental damage, and it says specifically that issues of civil liability must be dealt with by the main estate, and that is quite explicit in the guidance notes to that Paper; and at the moment we say that civil liability is not properly addressed in the UK. Another feature of this regime is - and this would not be unique to this country; there is a similar system both in the German Environmental Liability Act and the Austrian Gene Technology Act, and also, I believe, in Norway and Denmark, and possibly in Finland, although I am less certain about that - some form of alleviation and reversal of the burden of proof. Richard referred to this, again, earlier I think. If we were to do this, then, in effect, this strict liability regime would ultimately be, or could be, considerably less strict than many other fault-based liability regimes, and claimants who suffer damage would be left without a real remedy, because they may be unable to prove causation. There are a number of ways of doing this - which Richard referred to - some of them are simple and some are more complex. But that particular idea I had not heard of, and I think that is .... (TAPE CHANGE) .... discuss. I will not go into it in too much detail, but a real problem with so many liability regimes, including the European-wide proposal, is the enormous breadth of the defences, including, notably, the state of the art defence and the compliance with a permit defence. We think there is absolutely no good reason to include either of those defences in a strict liability regime to deal with these particular types of hazards, and that the only permissible defences should be force majeure or a compulsory order of the State. Again it is notable that this is the position, as I understand it anyway, in other countries that have specific GMO liability regimes, including both Denmark and Norway, and I understand there is something similar in the Austrian and German regimes, although they do not go quite as far as this. It is worth noting as well that there is a general move - and I am sure Stephen and Richard will correct me if I am wrong - towards limitation of defences in areas of strict liability environmental regimes, both throughout Europe and elsewhere. Insurance and compensation. This is the final slide really. One of the problems with any environmental liability regime is ensuring that sufficient resources are ultimately available to pay for any damage that arises, and, in the absence of any specific provision, then a liability regime would give rise to socialisation of that damage by default - and I mean socialisation of damage, in contrast to what I was talking about, internalisation of damage and risk. The problem exists on three separate levels here. The first is where the original consent holder can no longer be found, and some people might think that this is a particular problem in a relatively immature and new industry, where we are not sure whether those companies that are around now promoting this industry will be there in 20/25 years' time when the damage arises. The second issue - and, again, a particular issue for a relatively new industry - is whether those companies have sufficient funds to meet any claim that arises, or damages that are awarded. The third issue - more complicated - is whether or not the damage can be identified as being caused by any individual release of GM crops, rather than by another GM crop generally interacting in a complex fashion. Our suggested solution for this - and there are a number of different solutions, some of which you have all seen in the New Zealand Law Commission Report - our solution is double headed, as it were: it is both compulsory insurance, and then, in addition, a mandatory compensation fund, into which, perhaps, consent holders would make payment upon receipt or application for a consent, and which could be used to pay out, at the discretion perhaps of the Secretary of State or the courts. Again, similar provisions to this exist in both Austria and Germany, and in Australia there is something similar, although it is based around the option of the regulator ordering compulsory insurance at the time of consent; and I believe that is what the New Zealand authorities are looking most closely at. It is also something that is set out in the Lugano Convention, which of course does not apply in this country. In conclusion, very briefly, the current system is inadequate, in terms of the common law, for all the reasons that I have set out, and which both Richard and Stephen, and other legal commentators, have set out. There are specific challenges and specific risks that arise from GMOs, and we say that those give rise to the need for a specific statutory liability regime in the terms set out. Finally, too many lawyers. I think there is a real need for us, as lawyers, not to take centre stage on this discussion. Allocations of risk must be considered - as the AEBC is doing, and as the government is proposing to do in the big debate - by society generally, and we must not focus too much on the truths in this case. JUSTINE THORNTON: Thank you very much. Matt. MATTHEW FREEMAN: I think you have been brave, because, unlike the other two, you have come up with some very specific suggestions, which is much easier to discuss and debate than a more general discussion. But the thing I would like to focus on a bit is your notion about internalising the cost. I guess that implies, regarding our previous conversation, that you would not allow for a cap on the liability, or am I wrong about that? PHIL MICHAELS: I would not specifically exclude a cap on the liability, no. It is not something that is included in the Alan Simpson Bill, but I can see there are certain advantages to it, both in terms of persuading the industry that a form of liability regime is something that is in their interest, and also in terms, politically, of moving this ahead. The important point is to establish a statutory liability regime; to add, though, that if there were to be a cap, then that cap must be set at a realistically high level. I think there are concerns that, in the nuclear industry, the cap is actually extremely low, and that is in the process of negotiation. MATTHEW FREEMAN: But if those things that you fear were to come about, can you imagine that there would be an amount of money that could solve it? Because if you are talking about internalising the costs, that is how you define internalising the costs. But the sort of damage that I think you are most concerned about seems to me to be almost, by its nature, unquantifiably large, in terms of bio diversity and large scale environmental damage, and stuff like that. PHIL MICHAELS: Well, there is a big debate about whether a damage to bio diversity is comprehensible, and there is also a serious issue about whether or not any liability regime at all can tackle catastrophic damage and catastrophic loss, and I would say that probably it cannot, and I think we have to accept that. In terms of internalising costs, yes, we say that you do need to internalise costs, but you also need to recommend. But even if you do - even if you have an insurance regime - there is likely to be a cap on the level of the insurance. There needs to be some method above and beyond the internalisation limit for those who suffer damage, or for society as a whole, to recoup that damage, and that is why there is a compensation fund. MATTHEW FREEMAN: Just one other thing, and this goes with it, I think, which is: we have talked to insurance people, and there is this notion that they are a rather reactionary industry; they are very reluctant to insure things that they have not got a risk history of, and it is not their business, as they see it. So I wonder how you see the chicken and egg problem of setting up a compulsory insurance system when there is no insurance market for this; and, also, a secondary issue along the same lines, if you have compulsory insurance, does that not turn the insurance companies into sort of de facto regulators, because, in a sense, it is within their gift whether a company should be allowed to do something or not, because they set a premium? PHIL MICHAELS: I will deal with the first point first. The fact that there is, at the moment, no easy availability of insurance for this, in fact, provides, I think, a pretty good market test of what the risks involved are. The insurance industry is not prepared to take on board these risks, as I understand at the moment, for any premium. MATTHEW FREEMAN: Well, what they have said to us - sorry, just to clarify what they said to us - it did not seem to be along those lines; it was more to do with just the simple lack of a history. So they do not see it as their business, as I understand it, to try and define these things in advance. They are a very kind of conservative lot, and they just say: "Well, in the past this has been the premium we would need to set; this has been the risk, and therefore we do it". So I do not think it is fair to say that their lack of setting premiums so far is to do with their perception of the degree of risk; it is more that they are just not prepared to sort of be in the vanguard. PHIL MICHAELS: Right. I have not spoken to the people in the UK that you have taken evidence from, but my understanding, from reading the evidence in New Zealand, is that the industry was concerned specifically about the level of risk, and the level of damage that could materialise, and, therefore, it does place a certain useful market test on these risks. I am sorry, what was the second part of the question? MATTHEW FREEMAN: Whether they became the regulators de facto, because it is within their gift whether a company can be underwritten or not, and whether they are the right people to be regulators - the insurance people? PHIL MICHAELS: No, absolutely they are not the right people to be the regulators, and regulation plays a quite different role to civil liability, which is something that both the other witnesses have said, I believe. I do not think that the requirement for compulsory insurance would mean that the insurance industry became the regulators. The regulators would decide whether or not any particular release could go ahead, subject to conditions set down in a consent; and one of those conditions - whether an individual consent or, as we suggest, by statute - would be that insurance must be provided, if the consent holder, or if the proposed consent holder, is unable to obtain that insurance, then simply they cannot go ahead. I do not think that makes them, de facto, a regulator. DEREK LANGSLOW: You said some forms of environmental damage cannot be compensated for. Would you like to give me some examples of what sorts of environmental damage you think could be compensated for? PHIL MICHAELS: There is a fairly wide (???). I think perhaps Richard might be better off, or Stephen, answering this than me. DEREK LANGSLOW: Well, I would like your answer, because you said it was in ---- MR PHIL MICHAELS: Of course. Certain types of environmental damage can be compensated, in the sense that compensatory payments can be paid in order to restore the environment to the state it was in before it was damaged. That is the broad sense in which I mean it, but other forms of damage - catastrophic damage - I do not think could be at a compensatory level. DEREK LANGSLOW: But I am still unclear as to what the difference is between the catastrophic and the other forms of damage. That is why I was interested to hear you elaborate a bit more as to what you envisaged in this draft bill as "environmental damage". JUSTINE THORNTON: Maybe I could just move the question slightly. It seemed to me, on the same point - I am sorry to jump in - that, in a way, including environmental damage within this type of Bill is not the best way of protecting the environment, and there is a difference between your economic loss on an individual farmer, say, where you can rely on somebody who has losses or damage to be motivated to take some legal action, albeit how difficult it is. But when you have got an environment that is damaged, people do not have that same motivation, and, therefore, it seems to me, that perhaps the kind of clean-up regimes that we are starting to see the European unions grappling with is perhaps a better way, albeit that they come with their own problems - and I know people like Stephen are sceptical as to whether these will work. PHIL MICHAELS: I think there is something fundamentally right about that argument. The Bill was drafted before the Europe-wide liability directive. The problem with the Europe-wide liability directive, aside from the defence issues that we have looked at, is that it does not deal with the vast majority of Europe's land mass; it only deals with about 11 or 12% of the land mass of Europe, and therefore we do need some other method - and this is going much wider than the GM debate, in fact; it is something that needs to be considered, specifically in this context, to address environmental damage for the wider territory; and it may be right that the best place to deal with it is not in the civil liability bill here. In that case, it would need some other method of approach. MALCOLM GRANT: Possibly, if I might develop that. Are you, in your draft bill, drawing a distinction between compensation for environmental damage and the cost of remediation? PHIL MICHAELS: No. MALCOLM GRANT: They are the same thing? PHIL MICHAELS: Sorry, no, they are not the same thing, but they are not specifically delineated within the bill. They are addressed under one head, as environmental damage. MALCOLM GRANT: But you are envisaging in the bill that this is a private liability regime, as opposed to a State mediation driven regime? PHIL MICHAELS: That's right. JUSTINE THORNTON: Phil, John and (inaudible). PHIL DALE: I was interested in your comment that you see this as a window of opportunity. If you look at the GM crops that are around now, and those which are in the pipeline, you can find conventional breeding parallels which raise many of the same issues: there are gene (?????), thresholds, and so on. As I say, you describe it as "a window of opportunity" - an opportunity for what? PHIL MICHAELS: I think what I was referring to then was similar to what Stephen referred to earlier, when he said that if a group like this had been sitting around earlier in the century looking at asbestos, and deciding whether or not there should be a strict liability regime for asbestos or for organic phosphates, they may well have decided - I don't know - that that would have been appropriate. At the moment there is a very powerful commercial and political drive towards commercialisation in this country, and there is a short time frame, which this Committee is well aware of, in order to decide what the liability regime should be. That is the political window of opportunity I am talking about - now, before commercialisation starts. PHIL DALE: So the things you have said are irrelevant to conventionally bred products? PHIL MICHAELS: No, they are not irrelevant, but the Bill, as it is drafted, and what we are concerned with here, only addresses genetically modified agricultural products, not conventionally bred products. As I have said, perhaps this liability regime, if it was enacted, would then be used to develop to other areas of novel agricultural products, or perhaps even wider, to deal with other environmental risks. PHIL DALE: You see, one of the potential problems is that if we essentially brick-wall this method of breeding, then the breeders will go and find another method to produce very, very similar products. We are saying: "Right, we have a procedure to [block the declarification from GM to normal], or even the whole technology, yet we are not really" - if we are genuinely concerned about the environmental impact of agricultural, and presumably that is one of the major (????), then shouldn't we really be casting the net wider, and just argue it, as well, as just a future risk definitely, but accept that there are regulatory procedures that make it easier. So, in that sense, I can see it is a window of opportunity, but surely it is very short-sighted. We should stand back and ask general questions about environmental impact on agricultural. PHIL MICHAELS: I would delighted, in a sense, to go along, as I understand, with the Canadian model, looking at novel agricultural products as a group, and that makes a great deal of sense. But, realistically, there is no real drive towards that at the moment; there is no great discussion about it. Furthermore, I think it is unrealistic to say - I am no scientist ---- PHIL DALE: But shouldn't you be driving the discussion, rather than saying: "Well, no, we are just concerned about it"? PHIL MICHAELS: Absolutely. Starting with this type of regime as a baseline, then we would absolutely drive that discussion forwards, but this then becomes a policy question. The important point is to start at a realistic level. But just coming back to the first point, which was that you said breeders would find other methods to produce similar crops to those produced by GM technology. I am not a scientist - I am only instructed by scientists - but that is very much not the understanding that I have of the qualitative shift in technology that GM represents, and the entirely new types of crops that GM can give rise to but are not currently out. PHIL DALE: I can give you examples. PHIL MICHAELS: I am aware of one or two examples - I have been given them. But it seems to me that there is this qualitative distinction, plus, furthermore, the opportunity for developing new technologies. PHIL DALE: This is my last point. One of the basic problems is accommodating different forms of agricultural, and if we have a liability arrangement for one kind of crop, then what is to stop John's neighbour suing him for weed seeds going over the fence? And one can apply the same molecular precision - forensic DNA fingerprinting precision - to prove that his neighbour is supplying thistles. So, you know, the whole thing could break down; we would have anarchy. PHIL MICHAELS: I think "anarchy", perhaps, is too strong a word, but I think we do have very serious problems, and that is precisely why we think the common law system as it is does not work; it is sufficiently unclear. Those questions that you have just posed, they are real questions that could come before the courts at any time, and I suspect that the judiciary would be very reluctant to rule on many of those questions in a way that gave anybody satisfaction, because they engage difficult policy questions about coexistence, and it is for precisely that reason - both for us, who are perhaps GM sceptic, and for the industry - that a regime needs to be put in place that gives clarity to all parties. That may well be something that I would have thought you want to talk Peter Melchett about when he gives evidence later today. JUSTINE THORNTON: We have just got a few minutes. Sue, I think, just wants to come in on Phil's point, and then John, and then Roger. SUE MAYER: It was to ask you: presumably your Bill is to cover all GMOs. I mean, we have got rather trapped into thinking it is just GMOs that are going to be () in conventional agricultural practice. Presumably you want it to cover all GMOs; that must be the intention. The reason I ask the question is that I have been looking at what is going on in the United States at the moment, and already there are four, well, drugs, compounds - new compounds - produced commercially from GM maize, which actually would not have been able to have been produced by conventional breeds, and it is already there and in the field. Presumably the regime has to cover those kinds of eventualities as well, and also releases from laboratories, for example, or fish or insects, which seem to me we have to bear in mind. So, in other words, we must not get stuck too much on this just being crops at the moment. It has to be sufficient to encompass some of those other very different things that would affect or might have environmental or economic harm as well. Is that your intention? PHIL MICHAELS: Absolutely. I agree. I am talking about crops because of the remit of this group. SUE MAYER: Well, we also talk about environmental harm, so those other things can have environmental impact - the insects, the fish, or whatever. PHIL MICHAELS: Absolutely. It is wider than just crops. JUSTINE THORNTON: John. JOHN GILLILAND: Can I just go back on one of the issues. You said: "Who should be liable?", and you said, very firmly: "Consent holders". But you also said that consent holders were people with most to gain. If, in the future, there are products that are developed that have significant benefit to consumers and (), does that mean, in your thought process, that they should also bear some of the burden if something goes wrong in that scenario? PHIL MICHAELS: I am not sure if that is a philosophical question. The point is to try and establish, from the outset, which party is likely to gain the most benefit from this technology, and to set down a clear system of allocating risk on the basis of what we can see from this vantage point, and, at this stage, it would appear, clearly, that the party with the most to gain is the party who has spent the years researching, producing, and is now intending to release the product to market. JOHN GILLILAND: But if you take that one step further, at the end of the day they only bring a product to market if there is a consumer to consume it. PHIL MICHAELS: Yes. JOHN GILLILAND: Now, it just so happens that the first generation of products the consumers do not want to consume it, but that is not to say that in years to come that there will be products like that, that consumers do want to consume, and that they create a demand for it, and there is a tangible benefit to society at large, and not just to the development of technology. Now, in that scenario, society has gained, and the company that has developed it has gained. Should society pay part of - you know, if there is an accountable benefit there? PHIL MICHAELS: I think I am going to be slightly repeating myself. It is a matter of allocating risk from this point. The consent holder, it would seem to me - and I don't know what you are saying goes against this - is the one who is going to gain the most; certainly that is their intention. RICHARD MACRORY: Can I just say: one answer to that is that, in terms of whether you have channelled liability on the producer, or maybe the wholesaler, but the consumer does pay - there will a price premium of some sort, if that is reflecting insurance. So, in a sense, the consumer does pick up the tab of that. I mean, that would be the economist's argument. JOHN GILLILAND: Or it might even be a price reduction. All I am saying is: I accept at the moment, as we see, there are many consumers who are not interested in purchasing, you know, the product as it is today, but that is not to say that in future years technology may bring up something that gives nutritious benefit, or something else, and the consumer says: "Actually, I do want to buy this", and they see a tangible benefit, and they buy it, and they create a demand, and that spirals the industry - a demand driven industry - then there must be a benefit to consumers because they are buying it. SUE MAYER: But it would be a bit like, you know, everyone bought asbestos at the beginning, thinking it gave a particular benefit, and then we are talking about at a later stage, perhaps or not, adverse impacts arise, but - I don't know; we must ask the lawyers - we wouldn't then think that the people who had got the benefit from using asbestos to line or to use on their ironing boards, or whatever, should be taking that liability, would we - no? JOHN GILLILAND: No, but there is an issue about society then. Society has a gain. I am not saying individual consumers (). What I am saying is: if society gets a benefit, and, you know, that creates a demand and encourages the industry, and such, it is the responsibility of society too, because they have shared in the benefit. JUSTINE THORNTON: I think that probably is met, as Richard said, by a price agreement, I suspect. RICHARD MACRORY: Or where you get the case, as we talked about the nuclear liability, where, if you like, the upper costs beyond the limit are picked up by society, and, if you like, there was a public policy choice being made then that, you know, society is going to benefit from this source of energy, but the only way to do it is for society to bear some of the potential costs. I mean, that is the policy bargain. JUSTINE THORNTON: Okay. Final question - Roger. ROGER TURNER: I was listening earlier to Richard and Stephen, and one of you used the words, I think, "fair, just and reasonable in law", and I don't think anything that you have proposed this morning meets that particular test. In fact, I would say that it is something out of Alice in Wonderland, where, at the end of the court case, a character says: "I'll be judge, I'll be jury - I'll try the whole lot and condemn you to death". If I could then go on a little bit and just say: most, again, the farmers will have a benefit in that, and you are actually giving them a "get out of jail free" card. No-one would release a variety that the farmer can abuse, when it then falls back on that person's shoulders. I mean, that just sounds illogical. Finally, what is your definition of an "immature industry"? I first got involved in GMs 20 plus years ago, when I was a sort of up-and-coming young executive; now I am an old aged pensioner. I do not regard that as an immature industry. Plant breeding is as old as mankind itself. It is enshrined in international legislation. It fails considerably on the test of being fair, just and reasonable. PHIL MICHAELS: I am not sure what the question was? ROGER TURNER: What is an "immature industry"? PHIL MICHAELS: It is relative, and I think I said "a relatively immature industry", so, if we were to be slightly glib, relative to other areas of the plant breeding industry it is certainly immature. But let us say it is a new industry, in the sense that it is developing very rapidly, and the types of technology that are proposed for release in the next few years are extremely new, and I do not think there is any real debate about that. JUSTINE THORNTON: Malcolm. MALCOLM GRANT: I just wanted to develop the first part of Roger's question. Let me put it another way: if you allocate all the risks to the consent holder/producer, what safeguard have you got against a user using it otherwise than in accordance with the producer's instructions? PHIL MICHAELS: You mean, because, in effect, the farmer then sees it ---- MALCOLM GRANT: It is like pesticides, when the farmer uses them otherwise than in accordance with the label. PHIL MICHAELS: That particular clause in the Bill was inserted because of concerns that any strict or statutory liability regime would turn farmer against farmer, as it were, and this was designed to avoid that. It was also designed, again, to try and place the vast majority of the risk in one easily identifiable defendant. MR MALCOLM GRANT: But you would not prevent that defendant from laying off the risk to the user - sort of contractual negligence? MS (?): That would be the way of doing it. PHIL MICHAELS: That makes sense. Just on that point: this Bill, it is certainly not a final position. I do not think anybody treats it like that. It sets out a number of important principles about what we consider should be included in a statutory liability regime, but it certainly does not have all of the answers, and it can be developed. STEPHEN TROMANS: Surely the answer to Malcolm's question depends on how one looks at it and what one is trying to achieve, because, clearly, you are never going to achieve total certainty as to who ends up picking up the tab, because it is always going to be possible for commercial arrangements to be made outside any regime which will affect that. But your point was, surely, it is channelling, in the sense that the "victim", as you put it, has got a very clear defendant in their sights, and there is no great confusion as to who they should be going against. So it is looking at it from the victim's point of view, rather than trying to make some god-like decision as to where the liability ----lies RICHARD MACRORY: I mean, it is rather similar to the siutation - which I mentioned at the very beginning - the Royal Commission is looking at chemicals and liability, where as I am sure you know, under the Consumer Protection Act, it is the producer who is strictly liable under the European directive. That is a way of channelling strict liability onto a particular source. If you look at the United States, for a similar product, strict liability is also placed on the wholesaler and the retailer as well. It is up to them to sort it out, but the liability has been spread all around; and one of the things we are interested in, if you did that, is how would that change the relationship between the wholesaler and the producer, which might be similar to your farmer and the user. MALCOLM GRANT: I think the other difficult issue, which we clearly have not got time to address and we have not talked about, is that this is, in regulatory terms, a (inaudible) European regime, isn't it, because risk allocation decisions are made at community level. Once a product is able to be put onto the market, then it can be put onto the market throughout the community, so in what sense can one have differing liability regimes anyway within member States without creating all sorts of problems? MALCOLM GRANT: Because, as a question of law, it would be proper, and you would expect member States could introduce enhanced liability rating, over and above whatever baseline is established (inaudible). JUSTINE THORNTON: Phil. PHIL MICHAELS: Very briefly, in response to the Alice in Wonderland point. It is worth bearing in mind that these types of regimes, although not specifically this regime, do exist in other countries, both European and outside. ROGER TURNER: The list you gave me, I wouldn't regard Norway and Sweden and others as major agricultural countries, with respect. SUE MAYER: I do want to come back to this point that, you know, we must not think that we are dealing with just strict agricultural issues. We are looking ---- ROGER TURNER: I thought we were dealing with agricultural and environmental issues. SUE MAYER: I don't know, maybe it is something we have got to come back to, but it is not just crops. ROGER TURNER: No, no, I agree with that, that it is crops and agricultural. SUE MAYER: That is one part of it, yes. PHIL MICHAELS: Have we run out of time? JUSTINE THORNTON: We have, but I don't want anybody to feel they haven't had a final word. I am now going to draw the proceedings to a halt, and thank our three lawyers very much for what was a really interesting morning. (Luncheon adjournment) JUSTINE THORNTON: I would like to introduce Claire Marris, who is going to be giving evidence to us first, and Claire is from the National Institute for Agronomy Research (INRA), and, again, we also have Professor Richard Macrory, who makes a return appearance this afternoon. So perhaps if I start with Claire. CLAIRE MARRIS: Thank you for inviting me. I just want to go back to what was actually asked of me in the notes sent by the sub-group on what you would like to hear from me, and there were these three things: How are liabilities being treated in debate consultations in France? How are liabilities being treated involving regulations in France? The results of a study on public perceptions of agricultural biotechnologies in Europe that I was involved in. Now, that is quite a few different things, and also, quite legitimately, because I am coming from France, you want to know more about what is going on in France. But in the time I have been given I am going to try and focus more on my experience as a sociologist, science, and public perceptions - what we can learn from the studies of public perceptions for liability issues - and a little bit about what the evolutions and debates are in France, and what the key issues are. I presume you do not want to go into the intricacies of French law, and also I am not a lawyer; it is not my domain of expertise. I did consult a few colleagues and friends in preparation of this on the legal aspects, so if ever you want to know about French law in these things, Christine Noiville, who is a researcher at Seine House in Paris University, works exactly on these issues, and she briefed me. There has also been, as I will mention later, several - not to say many - official reports and consultations on GMOs in the last few years, all of which had considered liability, and stopped to some extent, so I went back and looked at those reports just to see what they said. So the main relevant points from the PABE study that I want to pick on - I mean, I could easily have been speaking twenty minutes or more just on the PABE study, but I will just pick the points which seem to me relevant for liability. You have all been given a copy of the report - there are a few copies there for members of the public, and if there is not enough I will send you one - and there is also a short summary available. It was a study funded by the European Commission, with five European teams. The UK team was from Lancaster University; I was the French team; there were teams also from Italy, Spain and Germany. So the key points, I think, which were key results from the study, and seem most relevant to liability, was that the public - (?????), I should say, was focused research with what we call "ordinary members of the public", meaning people who are not involved in debate and do not have any prize stake in the debate; have not particularly thought about it before. We also did lots of interviews with the stakeholders, using different methods. I will be talking mostly here about what came out of the focus groups with ordinary members of the public. So these focus group participants were mostly concerned about what I am calling here "unknown bits", meaning unintended - in the language that was being used this morning - unforeseen affects in the long term, which can occur in indirect and diffuse ways due to multiple causes, and which can be irreversible. That was what they were most concerned about. Secondly, that the public does not react so much to risk, as such, but institutional behaviour. The third one is that the public is not demanding zero risk, as one often hears, but rather zero arrogance. So I will be going through all these points, and I hope you will see why we have come to those conclusions. So unknown risks. For the focus group participants, they recognised and accepted that uncertainty occurs. It was fairly obvious to them that it is impossible to anticipate and predict all the harmful, or indeed the beneficial, impacts of a new product or technology. That is not unusual; it is not shocking for them; it is not something that seems new to them. What they do not accept, and reacted negatively to, is a denial of this uncertainty - so that people pretend that they can anticipate or predict all consequences. When they talk about these things they found that the discussion focuses on all their previous experiences, so we are asking them to talk about GMOs, and they will talk to us about BSE and ???DTT?? or asbestos. They will use all these other previous experiences to say what they have learnt about unknown risks and how you cannot predict or anticipate all harmful consequences in advance - and that is normal. They assume that short term chronic risks, especially to health, for example, are adequately taken into account by risk evaluation procedures that take place before a product is put on the market, but they feel the unknown risks are not so well dealt with by risk evaluation processes. In the face of this uncertainty, they do not demand that innovation be stopped because it has unintended, unforeseen, unknown risks. What they do demand is that this uncertainty be recognised and taken into account in decision making. So what do they mean by "taken into account in decision making"? They make an immediate link with demonstrating social need. What is it for? Why do we need it? Since we know that there is going to be unforeseen impacts, we need to think about is it needed; you know, there needs to be some balance with need. I use the word "need" because it is the word that comes up most for them, and also to distinguish it very much from "benefits", and the way benefits is used in the debates, and by economists in particular. They are not talking about individual benefits as measured usually, often, in cross benefit analysis, and I will come back to that. They also mean that since we do not know all the potential harmful affects, we need to monitor; we need to be watching; we need to be watching for things that we might have [??hypothesis??] about, and also we have to have systems that can measure or notice if there are some completely unforseen impacts, you know, that might be low level, or might be diffuse, and are quite complicated; they are worried, if that is quite complicated, to have ways of observing these affects, and they make a link with labelling and traceability on those issues: how can you possibly be monitoring for harmful affects if the products are not labelled and not traceable? And that you should have a plan of action ready for remedy in case harm is realised: you know, you should have some idea of what you are going to do if some harmful impact occurs. As I say at the bottom there: "Social need does not mean individual benefits to farmers or consumers, as in reduced costs or increased profit to farmers". The report goes into this in much more detail, and I will not do it now, but we often hear this idea that the public or consumers accept medical GMOs but refuse GM food, and it is usually said: well, they are completely irrational because it is the same technology. Why are they refusing one and accepting the other? What we find is, of course, people feel more positive towards medical GMOs than GM food and agricultural, but it is not only, and even not mostly, because of this idea of individual benefits. It is not just because "I will be benefit. I will be cured, or my children will be cured". It is much more to do with the institutional behaviour, and the whole regulatory process is perceived very differently. The reactions about institutional behaviour. As I said, you know, we talked to them about GMOs, they talked to us about BSE, and many other things. So when they do that, instead of just saying: "That's funny. You know, BSE has got nothing to do with GMOs; there are no genes in BSE", or whatever. We try and think what is it for them that makes a link between BSE and GMOs, or asbestos and GMOs; and, of course, in France HIV contaminated blood is the very high profile issue that they ring up. So the first one is the one I have mentioned already, that risk and uncertainty exists but it is denied and not taken into account in decision making. That preventative action is delayed even when the risks become apparent - when there is some evidence for it. That the decision makers or the industry only acts when they have to - when they are forced to - by some kind of scandal. Even when regulations are put in place, they are not strictly adhered to, and that can be due to fraud or to negligence, or to incompetence, or to not putting enough means there to make sure that they are actually inspected, or simply that the regulations actually are not realistic compared to practice on the ground. The third one is that there is no transparency about decision making. What they mean there is not just that we do not get told what decisions have been made - they usually do get told what decisions have been made - but about how that decision was made, in the sense of they understand that there must be conflicting interests when a decision has to be made - there are different stakeholders who have different interests - and they want to know how those interests will be considered, saying that safety has been paramount; we have not taken economic interest into account at all; we have just done it for your health, or the environment. That is not convincing, because they know you have to balance one against the other - and that is just simplifying it. There are lots of different interests you have to balance against the other, and they want to know how that balance was made. The last one, which is a general one again, they feel that decisions with important consequences on their lives are made by institutions which are beyond their control, and they are not accountable to them, so they have no way of not only knowing what they are doing but having any influence on what they are doing, or even holding them accountable when they make a decision which they are not happy about. The other thing they react to is actually visions of the public - i.e. themselves - which are incorporated into institutional behaviour, and that includes, actually, social science representations of the public. I mean, I am giving you my own representation of the public. Opinion surveys do that as well. Different social scientists do it in their own way. But institutions do it also. They do it in their communication, and they do it in their whole behaviour in the decisions they make. Overall - and this has been documented in lots of different research - the lay public is almost systematically, either implicitly or explicitly, assumed to be irrational, irrelevent, basing their reactions only on emotions or subjective things, and only interested in personal benefits, as I mentioned earlier. This is what is known in the field as a "deficit model" - the idea that the irrational behaviour and attitude of lay people is just due to a lack of knowledge. These things are important, because then the solution is based on how you diagnose a problem. If you diagnose a problem as being a problem of lack of knowledge and irrational behaviour, with people only being interested in personal benefits, you think of solutions, provision of information, and education, and usually that means about genes. The idea is that people need to know more about what the gene is in order to be more rational, and that if we produce GMOs which have individual consumer benefit, that produce food at a lower cost, or more nutritious, then somehow we will not have the same problems of acceptability and public controversy that we have today. I cannot go into the details of what we found, but of course the people we were talking to did not know much genes; they do not know much about genetic modification processes, but they were not founding their arguments and their opinions and their attitudes on this lack of knowledge, or even on false knowledge about genes. They were basing it, as I mentioned before, on their previous experience of institutional behaviour, and on some other kinds of more lay knowledge about how living organisms behave and how human beings behave; and they were not basing them either on wanting just individual consumer benefits. So the general overall conclusion is this idea that they don't demand zero risk, but zero arrogance. They recognise .... (TAPE CHANGE) .... they mean all of the people involved in the production of GMOs - (????) technologies - and it is the arrogance that they seem to claim that they actually do know and can predict all the consequences. That is what bothers them. Not that they cannot predict them, but that they pretend that they can; and when they claim that there is no risk. It is particularly the case where they feel that there are complex ecological and social mechanisms involved; so, you know, GMOs, the living organisms, interact with each other, the idea that there are chains of little beasties eating smaller beasties, and if you interrupt one bit of the chain it is going to affect others; and that if you are talking about farming and the whole agro food chain, there is a lot of human behaviour involved in the whole chain as well. So what would we learn about all this - about liability mechanisms? The more I thought about what I was going to say today, the more I felt the extent to which the current and proposed legislation is inappropriate to respond to the kinds of concerns we were hearing in the focus groups. The first one is the state of the art clause, which again has been talked about more under foreseeability this morning: the idea that if you did not know at the time, then you are not liable, because of the state of scientific and technical knowledge. The problems of having to prove direct causality, when what they are concerned about, by definition, are things that are more complicated in the causality chain. It is not necessarily going to be one cause and one effect. The prescription delays. Again, I do not know if that is the right word in English, but the fact that you have only got ten or thirty years, depending on the laws, before you can bring an action against a producer after putting on the market. In product liability in France it is ten. And the fact - and I come back to it - that I think is maybe the most important actually, or, for me, most important, the one that is not actually recognised, I think, in a lot of the debates going on, is that uncertainty is defined only in terms of low or undetermined probability of a recognised known potential harmful affect. So we talk about, you know, trying to define how much gene flow there is going to be, and in what distance. So all the debate is about how much evidence is there; how credible is that evidence; minority views, and all those. But we do not think about the other things which we are not even talking about, because we do not know what those consequences are. So we talk about the probabilities of recognised hypothesised harmful affects, but we do not talk about unknown harmful affects, and that is the case in a lot of the discussion about the proportion of (??????) in general. I have told you what I think the participants in the focus groups said, and that is obviously my interpretation, or our team's interpretation. I did not mention it, but we had these five countries involved. There were focus groups conducted in all five countries by teams independently, who obviously share a kind of framework, but we come from slightly different disciplines, and we came up, to our own surprise, with the same results in all five countries, and that is why I am not distinguishing between the results from the different countries. But you do not have to believe me, and my interpretation of the results. There was a consensus conference in 1998 on GMOs in France, and the citizen panel wrote a report that had five chapters, one of which was entirely devoted to liability issues, and I am going to just tell you what they said. I am going to cite directly what they said, but you have to be aware that this is them using their own language, so they are not necessarily using correct, you know, scientific or legal terms. You have to try and understand what they were talking about, and if you look at the whole debate you can have some better idea of what they meant. So the question they pose is the title of their chapter, which is: "How is law going to prevent hypothetical damage in the medium or in long term that could be caused by GMOs?". So, you see, they are talking about "hypothetical damage" - to get an idea of things we do not necessarily know - and they are talking about the long term. So this is what they said: "Existing laws with respect to prevention of risk associated with GMOs are not satisfactory. No law specifically addresses the problem of protection of consumers and farmers with regards to potential damage caused by GMOs, who therefore feel defenceless. Consumers and farmers should be protected by precise legislative measures, considering that insurance companies seem currently incapable of fulfilling this role." So you see the idea that they seem to see insurance and law as sort of alternatives. "The 1998 law on product liability should be modified to ensure that it covers GMOs". This 1998 law is the French application of the '85 directive on liability. "The law" - and I was unclear whether they meant that law; even in French you cannot tell - "should include a presumption of liability and culpability on the part of the person who introduced into the environment or on the market a GM product in order to enable or facilitate recourse by victims." I think this is an important one, and again, unfortunately, this is what happens when you ask citizens to express themselves, it is not entirely clear what they mean, but, having listened to the whole debate that they had in public before they wrote this report, I think that is getting very directly at the state of the art clause. They were totally shocked to hear that there was a clause that said if you did not know at the time of marketing then you were not liable; and I will come back to it in the French evolutions. That was only introduced in '98 in France; it did not exist before. Therefore, the ten year delay was just completely ridiculous, because, you know, when they talk about "long term", they are talking about two or three generations - the language they tend to use is numbers of generations, and they are taken to talk about two, three or four generations - so to talk about a ten year prescription delay seems to them totally farcicle. "Legislative measures should be made to make the seed producer, from his own financial funds, directly and totally liable for damage caused to the environment by GMOs." So they are talking about the GM producer. I thought I would do a little bit about evolutions in French law. As I say, I have got quite a few other slides, but I will not use them all. But I think an interesting thing to look at is that, in France as elsewhere, there is increasing litigation by victims, and there is an increasing recourse to criminal liability, rather than civil liability, and this is often used to substantiate the idea that the public does demand zero risk, and I think it is important to look at this. But to go back a bit historically: I was not quite sure what the remit of your group was, but I noticed this morning you were only talking about civil liability, but I think it is important - for the public, anyway - that there is a distinction between civil liability, which aims to compensate victims, and criminal liability, aiming to punish irresponsible behaviour. As I say, I am not a lawyer, so I do not know much, and I might be saying things which are incorrect, but what was very striking is both by talking to this colleague, who is a specialist, and reading all the reports, they were all consensual about how they described the historical evolution of law in France. They had different opinions about what was good and bad about it, but they all said the same thing about how it has evolved. So even whether or not it is completely accurate, I think it is interesting, and in the social debate at the moment the same description is being used about the evolution of law. So this is the social perception of law in France. At the end of the nineteenth century there was the beginning of important changes that meant that civil liability was based on no fault mechanisms, and there was no moral judgement on behaviour - so the introduction of no fault mechanisms - and risk (), that was used to replace fault. This was considered to be absolutely necessary for the social acceptability of risks. They were talking about industrial risks ---- MATTHEW FREEMAN: Can I just ask you: is no fault liability the same as strict liability? CLAIRE MARRIS: I think so. It is not my field, and I am translating from French into English. MATTHEW FREEMAN: Right. No, I understand. But I think approximately we are talking about the same kind of concept. CLAIRE MARRIS: Yes. So what lawyers say repeatedly is risk is acceptable only if it is compensatable. So it is the idea that we need an innovation in our society to progress, for society to sort of benefit, but that means that the people who develop new innovations and technologies in the industry should have to compensate victims - so civil liability. But in recent years - you know, twenty/thirty years - this does not seem to work any more; it does seem to be perceived as appropriate. That is because the way in which risk is managed is increasingly questioned, so compensation of victims no longer seems sufficient. That there are, in some cases, large scale, diffuse, irreversible consequences, and that civil liability procedures are sort of perceived or have become slightly harmless to the person liable, because of insurance mechanisms and compensation funds. It is an interesting sort of perversity of the system. Of course, behind this in France is the HIV contaminated blood case. I do not know how much any of you know about this, but this was absolutely traumatic for the legal system and the political system and the scientific system in France. So it means that, you know, victims seem to turn more to criminal liability. I believe there to be (inaudible), and reading these reports co-written by lawyers, I was quite surprised to see they said the same thing actually. It is not an expression of demands for zero risk, but a reaction to institutional behaviour and this lack of agency; this feeling that you cannot act to have any influence on these institutions that control your life. So criminal liability, which is punishing rather than compensation, is perceived as the only way to have face-to-face confrontation with decision makers that you think are responsible. It is to find out what motivated the risk taking, and you can see the parallels of what I was saying before, and, you know, this is what the lawyers were saying. They want to clarify the decision making process; how was the decision making made, and how could it be possibly made better. So it is not as punishing, but trying to have some influence on how the decision making process is going to evolve. So, in the early nineties the law changed to facilitate, actually, criminal prosecution of public decision makers because of the HIV case. They made it possible to prosecute elected representatives and ministers, which was not possible before, but not the President - not yet! But this was perceived as very unfair - and this, again, is a matter of effect - and seen as unfair by politicians, who said: "Well, look, we are elected. We do our best to serve the public good. We take risks. You cannot blame us, and also it is potentially dangerous for political action, because it means that we politicians will have to take excessive security measures, or we will not take any decisions at all, and it will lead to perhaps paralysis." Partly as a result of this, there has been a backlash more recently, and there is a new law in 2000 which again limits the liability (inaudible?????). JUSTINE THORNTON: Claire, we are running out of time. CLAIRE MARRIS: Yes. I will jump then. State of the art, I mean, you know what we are talking about. How much time - none at all? JUSTINE THORNTON: A couple of minutes. CLAIRE MARRIS: Okay. There have been lots of public debates in France on consultations. There has been no official response from the government - which means everybody is getting fed up with it! (laughter) - and there are orders demanding that the government take some decisions. Liability has not been the centre of these things, but it has been addressed in all of them, and increasingly so, and these are some of the issues which have come out: the absence of insurance; the liability for diffuse health affects; the liability for field tests has come up, because the whole debate in France has moved up to field tests rather than commercialisation; the state of the art clause is very controversial and considered by all lawyers as a complete regression on the system; and, just like it seems in England, actually the main thing is cross-pollination, leading to pollution - and this is a term they use, not me - of organic or non GM fields. That is the main thing which is debated, and the same kind of issues that we were talking about this morning: who will be liable; which farmer, if it is two farmers; or should it be the farmer, the local co-op, the seed producer; the need to avoid excessive litigation. There is, I think, possibly in France, more sort of consensus that there should be State intervention for coexistence of different farming systems. The idea that the State should sort of get involved, and talk of zoning in the country is not so shocking in France as I think it might be elsewhere. I was going to go to the last slide, but I can't! So I suppose that is it! JUSTINE THORNTON: Thank you very much. I suggest, perhaps, we turn straight to Richard, because I know you have got to head off. RICHARD MACRORY: No, no, you can keep on with it, because I will be slightly different. JUSTINE THORNTON: Oh, you are slightly different. Okay. Alright. PHIL DALE: Three fairly quick ones. The first one is: how different would it be if you do the same exercise on MMR, on blood, supply and vaccination, on food additives, and other things? Are you essentially saying that the public would respond in a very similar way, and therefore would require liability arrangements for any new innovation? CLAIRE MARRIS: Yes. PHIL DALE: Thank you. The next one is: we collaborated on the (?????) programme in Norwich, which you know is very detailed, and approval of???fuel release essentially goes to a very similar (???inaudible???), and it disturbs me to read that the processes, you know, denies risks, or they are not taken account of, and so on. Is this a reality or a perception? CLAIRE MARRIS: (Inaudible), it is the idea that they do not take into account unforeseeable harm - yes? PHIL DALE: I am just wondering how we could do it better, because you spend hours and hours and hours arguing things out? CLAIRE MARRIS: They do not expect you to predict them. They do not expect you to predict them. They want you to do all that good work in order to predict things which are fairly simple, short term, chronic, and you are doing a great job, but it is obvious, you know, however the good science is, there are things you will not be able to predict. So then there are things that have to be taken into the decision making process, which is not necessarily up to the expert scientific committees to do, as to what you do in the decision making process to take that into account. PHIL DALE: Right. So are you there proposing risk benefit? CLAIRE MARRIS: Yes, except, as I say, you know, it is not risk benefit as it is often talked about at the moment. It is need; it is social society need. PHIL DALE: My next question is institutional behaviour. By that, I assume, you principally mean the regulated process, or the government process. I am just wondering whether there is any mention of institutions, in the sense of campaigning groups, and so on, because there was the Reith lecture, which I found quite interesting, which spent quite a lot of time talking about micro accountability, micro transparency, in the regulatory process, but no accountability, no transparency of the campaigning groups, and I am just wondering whether they believe that campaigning groups are whiter than white and have no influence, in the negative sense, and it is they that use terms like "genetic pollution", and so on? You hardly hear anybody in the regulatory process field use those kind of terms. So I am interested in whether they included campaigning groups in the institutions? MS CLAIRE MARRIS: Just a small point, under the "pollution" thing, when I said "they" use it, this is official government bodies in France that are using the word "pollution", and of course Greenpeace is also. But for your more substantial point, institutional behaviour, as I say, in the focus groups they do tend to talk a lot about "them" - you know, "they do this", "they do that" - and it is quite difficult to get them to then distinguish between different actors, and it is because they have this feeling that there is this big body of people out there - you know, it is the industries, and the government, and the scientists, and the regulators - and they do not distinguish that much between them. They do distinguish with the NGOs. I will come back to that. So it is not just government; it is also the industry; it is also the scientists, and scientific institutions. For the NGOs there was a little bit of difference between the countries. They are not seen as whiter than white. They are not seen as not having interests. They are seen, obviously, as having their own interests, their own agendas, their own (????inaudible?????). The only thing is that they are perceived a little as having sort of the interests of the environment or of consumers - in the case of consumer NGOs - more at heart than others. They are seen as exaggerating everything - as always going for the catastrophic scenario, when it might not be so bad after all. So that is recognised. "Of course, if Greenpeace says it is going to kill everybody, I know probably it is not, but I am glad they are there; I am glad someone is there asking the questions", is what they often say. AEBC MEMBER: It is quite natural that people that suffered from the blood contamination will kick at whoever might be responsible in the decision making process. I think the question, or the problem we have is: if one accepts that these things will happen - it is not condoning them - we should have measures in place to minimise them as soon as possible, but it is whether one puts in a really comprehensive policing legal process to try to soften those things. CLAIRE MARRIS: No. I mean, I did not have time to go into that. I do not think they are asking for - I mean, and, again, neither in the focus groups or in the consensus conferences do they go into enough detail to be able to say what kind of legal structure they want, but I do not think that is what they are asking for - and the reports coming out of all sorts of different official bodies in France in the last couple of years are all going to the same way. As I say, France has gone from one extreme to the other, and it is seen as both bad extremes: you know, first you can prosecute any public decision makers, and now you cannot prosecute them at all any more, and that is just seen as going from one bad extreme to the other. The discussion is about the governance of risk; how do you make more transparent decision making, in the sense I was talking about it, of making more explicit how you have made compromise between different interests; that that should be made more explicit, and it should be made after a wide public debate. So all the discussion is about how to have a wide public debate; how to organise the (????inaudible) that informs decision making, and how to make decision making more explicit. PHIL DALE: In the way, that innovation process will involve ---- CLAIRE MARRIS: That is part of it, yes. PHIL DALE: Well, I will pass on. MS (?): Phil, you have dealt with my question. MR PHIL DALE: Oh, sorry. MS (?): No, that is good. MALCOLM GRANT: Claire, I am fascinated by this, as you have read the report in detail. I suppose the missing thing still in one's imagination is how do we move from where we are to where there would be a situation that found public acceptability and decision making, and how we might develop a process in which uncertainty was made more explicit, and in which decision makers were more explicit about how they dealt with it. Have you thought forward and tried to project such a model of what a decision making process might look like? CLAIRE MARRIS: It is not about trying to be able to better predict uncertainty. MR (?): Oh, no. CLAIRE MARRIS: You know, we can go as far as we can, but you have to always admit there is going to be other things. So then it is about - as I keep going back to - a deliberative democrative process to do the cost benefit and the risk benefit analysis, but to do that through a democratic process. I mean, as was discussed earlier, with the nuclear industry, that sort of a deal was struck, albeit in this case (???inaudible), and whether that was a democratic decision is maybe debatable, but it is that kind of thing. If society decides that this is a wonderful thing, and it is potentially very useful, and it has unknown risks, then we can make decisions about how to implement it and how to limit the risks as much as possible. It must always make victims compensatable, but have a system that has taken that into account and admitted it. MR (?): You use the word "we" - "we can take decisions". CLAIRE MARRIS: Yes. MALCOLM GRANT: Inherent in much of this is a mistrust of government, isn't it and the way in which government operates? How do we take decisions in a manner which will regain trust where there has been trust? CLAIRE MARRIS: I mean, that is the key question, and that is actually where the debate in France, among sort of the experts, is going, and it is not easy, especially because there has been an erosion of trust. I mean, with the GMO issue it is going to be harder than with most, because we have gone so far down a public controversy, you know, that has not been on that basis; you know, it is ten times harder to go back to increase trust than to destroy it, as it were. So it is going to be long term. I think you have said it, but it is not just about better communicating; it is about how do you make better decisions and better decision making processes. I mean, I am not giving you any precise answer, maybe, but, I mean, in the things that are being discussed in France, there are more consensus conferences; more upstream debates in the innovation process. It has moved up to the field tests now, and it is moving up further. There was a big public debate on field tests in February, and the report from that public debate recommended that there should be a benefit analysis before you go to the field - so not commercial, but actually about the field tests. JUSTINE THORNTON: We have bumped you through the public debate process, and perhaps this isn't the forum for discussion, and maybe we will have other opportunities for that. But I wondered whether you might say just a little bit more about the liability law in France. You gave us a rather enticing introduction in which you suggested that this had not figured very powerfully in, at least, the public perception of GMOs, but is it your impression that France might move in a different direction from other member States within the EU in developing liability conditions? CLAIRE MARRIS: As I say, I am not enough of an expert on law to know how much is different. I was struck this morning in the discussion that what seemed different is that in France, as I said, it is product liability, so it is not environmental damage. It is the main thing that has been discussed (???inaudible). People disagree as to whether it applies. I mean, they all agree about the uncertainty of what would happen if ever they went to court. But the clause about the state of knowledge at the time when you put the thing on the market was only introduced in the product liability law in 1998, so thirteen years after the EU directive, because the French lawyers did not want it; the French consumer NGOs did not want it; the industry obviously did want it, and, in particular, by '98 they were thinking specifically about GMOs. So it is in there, but, in fact, the law has a clause that says the victim can use previously existing law if he prefers, which does not say you can get away with it. Judges have interpreted that clause in a way that makes it almost impossible to use it (???inaudible) in France, because they say, you know, if there was any article anywhere, or anybody saying anything about information, then ---- RICHARD MACRORY: Can I just elaborate on that, so as to make it clear. We have talked about the state of the art defence, which came under the consumer liability directive, and was optional - countries could either do it or not - and we took that option; Germany still has not; France, obviously, can change its mind; and one of the things, in fact, the Royal Commission is trying to find out is whether that actually has any affect on innovation at all. What is quite clear - and it is clear the French courts have picked this up - is that the state of the art defence is a much tougher defence than reasonable foreseeability, in the conventional sense, and as the European Court said, or the Advocate General, to ask yourself is something state of the art - is it foreseen or not - where, in the whole gambit of scientific opinion at any particular time there is also one isolated opinion as to the potentially defective or hazardous nature of the product, the manufacturer is no longer faced with an unforeseeable risk. So it is a very tough hurdle, and I think one needs to recognise that. So, in a way, I suspect that the public have not picked that up when they were responding - this is outrageous - because I think it would be very difficult to pass that hurdle. I mean, I was just saying to Justine, the very fact that you have published all these scenarios of what the legal liability might be - well, in five years' time, or ten years, I am going to refer to them and I will say: "I know somebody who published it". (Laughter). No, seriously, the more one thinks about it. So I think it is not a very strong defence any more now. CLAIRE MARRIS: And what I have been told is that the '85 directive is going to be revised, and the general opinion is that that, of course, is going to disappear. MR (?): It might well do, yes. JUSTINE THORNTON: Okay. I think I will now have to draw Claire's session to a close, so thank you very much, Claire, and to ask Richard to jump in. PROF RICHARD MACRORY: I am now wearing my hat as a Member of the Royal Commission on Environmental Pollution, and not as a lawyer. I was just asked to try and give you some insight on the Commission's report, which is now just about four years ago, on environmental standards; just why we came to some of the proposals that we did, which are about the public deliberative institutions, and so on, which is now clearly terribly relevant here. I am sure you fully understand all the arguments. It was clear to us, when the government responded to this report, on those particular passages about involving the public they completely misunderstood the nature of the dilemma then; they got muddled up with what a stakeholder conference was, and so on. So I just thought it would be useful to try and sort of go through that difficulty we had. The Royal Commission on Environmental Pollution we often describe as not an expert committee; it is a committee of experts from various different disciplines, but always dominated by scientists of various types, but with a lawyer, such as myself, economists, and so on. This was a long study on environmental standards, and we looked at it because we were concerned and intrigued about how do people make, or how do governments of various types come up with, standard setting. "Standard setting" is a very broad definition. You know, it includes things like emission standards, but it could also include things like a decision to allow commercial releases of GMO, or whatever it is; that would fall within our definition. To kind of simplify an argument, we were very clear that in most areas of environmental standard setting scientific expert input is incredibly important, and almost essential, to know what you know and what you don't know, if you like. But we were equally clear - and this is a very simple mistake, but I think it needs repeating - that the role of the scientific assessment, if you like, in very simple terms, is to try and describe a dose-effect curve, and to say: "Well, if you do this, this is what is likely to happen. If you do that, that may happen", and also to describe what degree of certainty there is in that knowledge, and where there is uncertainty. When it comes to setting a standard - deciding at what level you are going to allow a release, or how much - that is not a scientific assessment; in crude terms, it is a political or a value judgement, that you are deciding, you know, how many trees do you want to save - it could be people, trees, crops, or whatever - or what risk, and that, if you like, in shorthand, is a political judgement, and it is very important to separate that, and since this report came out - the Philips report on BSE came out - which also makes that point very clearly, scientific committees often get confused or they are deliberately confused. So we start with that - that is very easy. But our next stage of analysis - and this really came from some of the points that Claire was making - that, you know, it is clear that there is a lot of distrust of government and environment agencies, and bodies like that, and one of our conclusions was that the decision makers - be they the politicians, be they the Environment Agency or, indeed, the European Commission - often do not actually understand the nature of people's values enough; they do not have sufficient information about really what people think about things, and they need that as part of their judgement. How did we describe what we meant by "value" in something? We described it as a belief, either individual or social, about what is important in life, and thus about the ends of objectives which govern or shape public policies. So our question was: how do decision makers understand the nature of public values and the difficulties, and try and weigh them up? At that point we entered what was probably a nine-month philosophical debate between opposing disciplines; very tough, very hard. On the one side - and you probably recognise this; I am sorry you have been through some of this before, but it was very intriguing - economists, very tough and powerful economists, saying: "Well, that's what we have economic appraisal for and cost benefit. That is precisely what it is there for"; and it is not real pounds when we try and measure the value of hillsides and things - of course it is not real money - but it is trying to give decision makers a sense of how strongly people feel about things, and we can measure it - as our economist said, it could be bread, it could be bottles, it does not matter; it gives you some comparative weight of what people want - if there are limited resources, do they want more spent on that, and that is what it is all about. On the opposing team, if you like, was the moral philosopher, and the moral philosopher you will recognise very well. He was a very powerful advocate, who simply just argued very strongly that Economic appraisal is about preferences. I am talking about values, and people do not often understand or know what all their values are. You measure them in quite different ways. It is apples and pears, and you have got to have a different system. I have to say that that debate went on for about six months, essentially - and I may be slightly exaggerating - with the scientists in the middle, just going left to right, left to right, and just wondering what is going on. At a certain point the Chairman said: "Well, can't there be a compromise? There must be a compromise, because the Royal Commission has always had consensus reports" - except for one, in about 1976, when the minority report was written by an economist, interestingly enough! (Laughter). I have to say, I do not think there is a compromise. These are two completely different belief systems, starting from a different premise. I mean, it is like arguing with a Jehovah's Witness or a Marxist, or something: if you don't buy the first premise, there is no point arguing, essentially. If I could just have that on the screen. One good thing lawyers are quite good at drafting - and it is tucked away in 5.48, deliberately - and I think it is the most important paragraph of the whole report, because it actually managed to get the economist and the philosopher on board, and you can see it simply says: "If you accept that people's values ... are regarded as not answerable to economic equation, the question then arises whether there is any other approach that could provide additional assistance". (Laughter). That joined up the two arguments, because the economist was saying: "Well, you are not actually saying I am wrong. You are just saying 'if it is not thought'", and the philosopher said: "Well, that's fine, because you are not rejecting my approach ". So that was a very important paragraph. But we then did start exploring, and there is a whole chapter on, are there other methods? I think the answer is that, certainly then - and I know life has moved on a bit since then - there were a number being experimented with; not actually tending to be in the environmental field - they tended to be in the health field particularly - of trying to explore that. We were looking for mechanisms which actually take the debate forward, in the sense of exposing people to difficult choices, and that is what the value system is about. It is not asking them in the street what they think about things. That is to do with preferences, which is quite different. I think, basically, I would buy that distinction. I have to say, I still went to the economist and said: "Do you believe there is a difference between values and preferences", and he said: "No. Values are just strong preferences, and they are always valuable". All we could do was to say there is not any perfect method. I think we were very unhappy with some of the names being given to things. I mean, first of all, we quite clearly said that stakeholder meetings are not the same things. You still have to have them, probably, but stakeholders are where you have interest groups trying to negotiate and accommodate. All you are doing, you are trying to understand what people's values are about. Citizens "juries" - I don't like the word myself at all, because a jury suggests to me somebody who is actually doing a thumb's up or a thumb's down. Here again - and this almost gets to Malcolm's point - we are still saying that the decision maker is almost certainly government, or environment agency, or a public institution. We are trying to give them better information about the nature of values, so we are not transferring the decision making to other bodies. Similarly, consensus conferences are not necessarily really so, because there may be no consensus about this. So I am not very happy with the terminology, but, I think, again, it gets back to what we were talking about this morning, you have to decide what you are doing and what you are doing it for. I think there are some difficult questions, because if you look into things like court procedural rules, and indeed even public inquiries, you know, lawyers develop a whole set of rules really about fairness, at the end of the day, and we have hardly started even thinking about sort of guidance rules, best practice, and so on, with these. For instance, at the very end - I mean, through the debate we were talking about citizens' juries, and somebody said: "Well, should you have people who have already got views about this on the jury - you know, members of Greenpeace or members of the industry?", and the moral philosopher said: "Yes, of course. Why does it matter?", and other people said: "No, no. We should be able to weed people out". That is the kind of debate that I do not think yet we have even started on that kind of procedural thing. The one recommendation which I do not think has really been picked up -but you may know better - is that we did think there are a lot of experiments being done by different parts of the policy-making machinery, and I think the health field is probably almost the most developed, and we really need somebody - and we suggested Parliament or POST post, or something - to be actually monitoring this; to actually be trying to see and to learn from the different things, and that has not yet been picked up. As I said, in the response, particularly on those passages, we were very disappointed. Whoever wrote the response to the government simply got it very muddled what this machinery was trying to do. ? [That is very simply, again, just to reinforce.] There is a much more complicated diagram, where everything has got feedback loops. We said that in this sort of decision making process about the environment, defining the problem and framing the question is not done in a very public way - you know, it just happens - and we said it is very important that that should be done, and there should be the public involved. There are analytical stages, which, if you like, there could either be science or economics or risk assessment coming in, and then this process about public values, which we felt were quite different. Then, because the difficult thing, some sort of deliberation synthesis, putting that altogether, which is where you could get the government or public body coming in; and then a decision as to what sort of standard do you want - what sort of law do you want; and then the monitoring is really just the feedback, which again often is not done in practice very well, of learning from experience: what does actually happen on the ground, and feeding back. In fact, because I could not do verticals on my computer, on the diagram on the Royal Commission, public consultation actually runs all the way down the side, so the public are kept informed and necessarily involved in all of that, in the broader sense. But the public values thing is a very specific type of exercise, which, in a sense, is what maybe is going to be happening here; this may be the first example of where it happens. But it is quite difficult to run, and, it seems to me, you need very good moderators; people who will actually start pushing the debate, pushing the arguments, within that. So I do not know whether that is helpful as a broad perspective. JUSTINE THORNTON: Very helpful. Matt. MATTHEW FREEMAN: Do both of you suggest, then, that the public, in your view, is still prepared to delegate decision making to government and government committees, and agencies, and things, if they believe that the sort of process by which that is done is more transparent and takes into account a genuine understanding of their values? CLAIRE MARRIS: If there is a process which includes people like them, so not delegating ---- MATTHEW FREEMAN: Do they have to be part of the decision making process itself, or do they have to see that the decision making process takes into account their values, because it seems to me that it is quite an important distinction? CLAIRE MARRIS: Yes. That is what I mean. I mean, obviously, not every single citizen can be involved in every single decision actively. So in the kind of sense of saying "people like them" is what they say. As long as they know that there are some people with the same kinds of values as they have, who are actively engaged, then that is what they are asking for. RICHARD MACRORY: I would say that people - I cannot speak for everybody, but people are prepared to accept that but, as you say, it is both process and the justification. Certainly, again, wearing my Environment Agency hat, you know, the Environment Agency has to take quite difficult decisions on things. I think now, although it is very unpleasant, you get quite unpleasant confrontational situations where there is nothing really, you know, one can do. But I do think we have moved in the last five years: from this idea of no risk, you know, to the fact that there is always some risk, because, you know, inspectors get asked: "Can you guarantee no risk?", and they say: "Of course we can't", and I actually think people are beginning to accept that more. One of the things that I think is terribly important: the defining of the problem and the framing of the questions, I think actually that is what we are still very weak at, and I would argue that one of the great problems of the whole Brent Spar situation was, if you remember from that, there was an environmental assessment done of the decommissioning of that particular thing, and within its own terms it was fine, but nobody had actually sat down before they started that process of regulation and said: "Well, what are the questions we need to be considering?", and nobody ever sort of opened that out. Now, whether that would have helped the situation, I do not know, but I think that was one of the lessons to be learnt, that when you are thinking about the questions that have to be asked that should go much broader, so at least you pick up some of these early concerns. But I would not want to delegate down the decisions to just members of the public, and I do not think they would want that either. PHIL DALE: What you have just been talking about resonated, I think, to all of us, in the sense that we have been going through a similar process, and sometimes we end up talking past one another, because our values and our criteria are different. But it is really how may we get that engagement right. There is innovation all the time - there are breakthroughs in science all the time - and you never know right at the beginning, in the early stages, what they will yield, and you will sit in the first week of a breakthrough and try and imagine what can come out of this. You know, how it will revolutionise society or impact on the environment is incalculable. So I would be interested in your thoughts about how we can make the passage. .... (TAPE CHANGE) For example “There was a report in 2002, and it decided that important matter”. Now, I suppose there have been a host of these things - consensus conferences - going back in time, and the cynical view would be: "Well, we will just carry on until certain people want to get the answer they want". RICHARD MACRORY: On an analogy, the Royal Commission has recently done a study on environmental planning, and we do come up with the term "planning fatigue". There are certain areas of the country you look at, and so many people are doing plans on this and plans on that. Part of the problem is that they are not even being co-ordinated properly, but just everybody has got rather tired with plan making, and you have to be very careful to do that. I am not sure I have got a clear answer, except that I think government - I mean, going back to our sort of set of criteria, which is not necessarily perfect - I think whoever is setting up these things, the government, have to be absolutely honest what they are about - what they are trying to do with them - and I do think the public, and certainly the NGOs, see through that pretty quickly if it is a purely cynical exercise. I mean, they used to talk - and Malcolm will remember this; there were judges talking about it - it used to be thought that public inquiries were there simply to let the public let off steam; and, you know, that is a role for that sort of thing. But I think in terms of, for instance, this debate coming up, I do not know how clear it is what the purpose of that is. In Royal Commission terms, we would say: "This is to help the final decision maker" - you know, the government or whatever - "to understand people's values better”. But it is just part of the system. I mean, you may decide to reject that in favour of the economics and the analytical stages. You know, we are not saying in this report that public values will always outweigh other interests, but it is to give a better understanding of that. But that is what I mean - you have got to be very honest about what it is about. That would be my starting point. If you are not honest about it - I don't know, you are saying it has got a different function - I think it will lead to more cynicism at a later date. CLAIRE MARRIS: I can answer that now: I go along the same way. As you said we do not have a guide book on how to do these things; you know, we are still learning. I think nobody has the answer. We do not know how to do it right today. I think, on the other hand, there has been quite a lot of experiences, and I think there is collective learning. I mean, I study these things, and each new government department within the same government when asked to do it again have not asked their colleagues down the corridor what happened the last time. So I think there is not enough collectivisation of experiences, because there is quite a lot of literature about these things now, and quite a lot of social science research about it, and I think that is not being used enough. But, still, even with all that, we do not have a set of rules; and, also, it will vary each time, according to the particular circumstances. But there are a few sort of key principles. I think often people come to us, who are involved in this kind of work, and they want the guide book on what we do - stage 1, stage 2, and stage 3 - and I think all we can come back with are key principles, and this kind of thing as well; so the key kinds of stages that they have to think about. We cannot say, you know: "Exactly what you do is stage 1, then stage 2". For me the key principles are: the person who has commissioned it, or who is organising it, has to be clear to themselves and clear to the participants about why they are doing it. I mean, it is not as if there are good and bad objectives; they just have to be clear about what the objectives are. If the objective is participation in decision making - meaning, informing decision making. That is also often a very difficult misunderstanding. We do not mean delegating responsibility to other participants. Politicians are the ones who take decisions, and they always will be, but it is informing them, as you said, about what different opinions and values might be out there that could inform them. The key point then - and I believe it is absolutely fundamental in the procedures - the person who is organising it and initiating it, the decision maker who has done that, must say they will respond. That does not mean that they will do what these people say, but they will say, exactly as you said, which of these things they are going to follow and not, and why. But the participants do not expect the decision maker to follow everything, but they do expect a response, and that is what has totally failed so far in all European countries mostly on these procedures, because there has been no response, or no specific response. Sometimes governments have actually acted on these things, but they have not bothered telling the participants, or have not dared; you know, they don't even sometimes want to tell them that they have actually followed it or not. So I think a clear commitment from the start from the decision maker that they will respond, I think, is fundamental. Then the issue of who frames the question. We have said that that is absolutely crucial. But, of course, the decision makers are going to have their problems - with definition - and they can make that clear, but they have to let the participants also bring their own framings to the question, and that is a difficult sort of compromise and negotiation that is going to happen, because there was something else Richard mentioned, which was exposing people to difficult choices. You have to actually pose a problem - you know, you have got a policy problem - because otherwise, a bit like in the focus groups, people will have a lot about the ideal world and what they would like, and it can go all over the place, but, you know, what other choices they would make in the real world. So you have to sort of limit it by posing a policy question, and yet let the participants bring anything they want that seems relevant to them to answer that question, and that is essential - just sort of opening up and closing down. Then, going back to Phil's question, this issue of when do you do it in the technology trajectory. That is again difficult, but it is something about doing it when the technology trajectory is still open enough that it can be changed - so not when the product is near marketing, is already on the market, or about to be on the market - and yet not too early on, where, as we said, we do not have any idea where this is going anyway. So it is always going to be difficult to exactly set. RICHARD MACRORY: We were clear in the Royal Commission - we did discuss that a little bit - that, if you like, the full monty procedure for everything, you know, would not be appropriate for every single standard, and there are going to be some cases where the science and the economics maybe are much more important than other things. But, there again, it would not necessarily be a new technology, but it was a difference of approach. I mean, something like, say, the debate about chemicals going on at the moment - as you probably know, there is a big division about risk and hazard, and some really quite important policy decisions, which will have implications for innovation, and all sorts of things. That might be a very good example to do it, but a decommissioning of something in the North Sea might be an example of where you would do it. So I think you would decide each time. So this is not every single decision about a landfill site or an emission standard for a thing that should not necessary go through all that. JUSTINE THORNTON: I am afraid we have run out of time, so thank you very much, both of you. That was very interesting. I am concerned to keep us on track, so can I suggest that people just quickly get a cup of tea and then come back, and we will continue straightaway, otherwise, I think, people are going to miss the end session. So perhaps five minutes. (Short adjournment) JUSTINE THORNTON: Welcome back to the final session this afternoon, and this is what we have entitled: "Evidence-taking from farming perspectives", and we are taking evidence from Peter Melchett, first, who is Policy Director of the Soil Association, and he will give a ten minute presentation, followed by questions, and then we are going to talk to Archie Montgomery, and the replacement for the gentleman who appears on your agenda. It is not, in fact, David Hill - who, I understand, is harvesting his maize - but we have Bob Fiddaman, again from the National Farmers' Union. Peter, thank you for coming. MR PETER MELCHETT: Thank you, Justine. I am also an organic farmer in Norfolk, farming 890 acres. I was going to try and cover six - and if I have time, seven - points; mainly things that, I hope, pick up some of the discussion from this morning, which I listened to with great interest, and one or two things with significant disagreement, which I will cover. I wanted to cover just a quick update on the organic market and farming in the UK; a word about organic standards; are GMOs different; The fourth thing would be what we, the Soil Association, see as the particular dangers for farmers with the introduction of commercial growing of GMOs. Fifth is the difficulty in bringing a case - there was a lot of discussion this morning about the law, but not much, if any, discussion about what evidence you would need and who you would sue if you were a farmer, which seems to us the overwhelming problem. Sixth is a brief discussion about the brown paper case, the ‘especially sensitive’ issue; and then, if I have time, I have a scenario to put back to you, answer a question for you to answer! (Laughter) The organic market in the UK is nearly a billion pounds, the retail market, now. 80% of households in the UK bought something - an organic product - in the last year. It is still growing rapidly; 15% a year. It is the fastest growing bit of the retail food market, and also of food services restaurants and catering and so on; it is rapidly growing there as well. AEBC MEMBER: What does that billion represent, in terms of percentage? PETER MELCHETT: About 1% of the overall food market. UK production - organic food produced in the UK - represents about 35% of the UK retail market, and the government have a policy to double that in the organic action plan, and the minister has given a commitment in Parliament for the timetable on that. It has not been fixed yet, but there was an organic action plan meeting with the minister yesterday, and it looks as if the timetable will be around 2010. So government policy will be to double UK output, or at least UK share of the total market, by 2010. UK organically managed farmlands is 730,000 hectares; that is about 4.3% of UK farmland. So if the market continues to grow, and the government stick to that target, you would expect a more than doubling of UK organic output, if the government target was met. The organic standards. It seemed to me there was some confusion about this - and it is a slightly confusing picture - in the discussion you had this morning. There are international standards set by an organisation called IFOAM. These are then set in national or regional law. For example, in an EU regulation, or now, in the US, by the US Department of Agriculture, in binding legal instruments. So there is an EU regulation which defines organic agriculture. It is not a private scheme dreamt up the Soil Association, or anyone else, as was suggested this morning. The EU regulation is not a set of standards; it is the definition of a farming system, and national standards have to comply to the EU regulation, and indeed have to follow it. No country can set minimum standards higher than EU regulation. As long as you offer everyone in the marketplace the option of being certified organic at the EU regulation minimum, as it were, other organisations can then set higher standards if they wish to. So if the Soil Association has additional conservation standards, and some other additional standards, that is a question then of the market, of whose standards the public and retailers and manufacturers prefer. But what I have got to say is really directed at the international - the IFOAM - standards and the EU regulation, which seems to me to be the relevant point. Bear in mind that this defines a process: the regulation and the IFOAM standards prohibit the use of GMO crops, ingredients, derivatives, and so on and so forth. What is not ruled out by the standards is contamination, because, as I say, the standards define a farming system in the process of producing crops and food. Now, that may seem very significant, and I know it is seized on by the industry as being significant but from a farming perspective it is not significant, as a farmer - for two reasons. First of all, you cannot use GM as an organic farmer. Say I am growing feed barley, and it was contaminated by GM barley, I then would not be able to sell it as organic feed, because the next step up the chain is prohibited by the EU regulation from using it. You cannot deliberately use something you know as GM in organic production, so I would lose the market; and if I had fed it to my own animals knowing it had GM in it, I could not then sell the animals as organic. This, of course, does not cover the sale directly from the farm to the public - I mean, something that is not going into a production process - so if cabbages, for example, got contaminated, I might legally be entitled to put them in the market as organic cabbages, even if I knew they were contaminated with the GMO. The question then would be whether they would sell; I mean, would a supermarket buy them knowing they were contaminated, and the answer is definitely "No". But there would be nothing to stop Phil Dale, or somebody, setting up an Organic Certification Limited (GM contamination allowed) - the government would be legally obliged to allow that to happen - and then the market could decide whether that certification body succeeded or not. So that is standards. Is GM technology different? You had some discussion about that this morning. Again, looking at it from a farmer's perspective - and the Soil Association represents and certifies about 70% of organic farmers in the UK - there is a huge difference, because it affects my market and my products in a way that pesticide contamination and ubiquitous presence of PCBs or DDT, or whatever it might be in the environment. So there is, clearly, a difference from that point of view. It is prohibited, in terms of use in production, as I have said, by an EU regulation, which pesticides and other cross contamination from the farming perspective are not. I will not go into the other distinctions of science and replicating, and all that - you discussed that this morning - but it did strike me that a better analogy, again thinking of it from the farmers' point of view, than the ones you were talking about, was the release of grey squirrels by the Duke of Bedford at Woburn, whenever it was, a couple of hundred years ago or something. If there had been this Committee sitting, and you had thought about the possible implications of the release of grey squirrels and being able to control that, I think it would have been a very good thing that you had said "No", or that there is going to be strict liability for any damage, and somebody is going to have to put the red squirrels back when they are driven out by the greys. Of course, in practice, the law has since been changed and you are not allowed to deliberately release a species like that any more. The fourth thing I wanted to mention was dangers to farmers. Clearly, from a farmer's point of view, the fact that this risk is uninsurable, because it is a new risk or for whatever other reason, is a significant concern. Another major concern for organic farmers is that, without some clarity in what the legal position is, there is a danger of farmers being set against farmers in the countryside, and neighbours being set against neighbours. If there is damage to an organic farmer from a GM crop, they are going to look to neighbours who are growing GM crops, and saying: "Can I sue to get my money back?", but they do not want to sue their neighbours, and they do not want to fall out with their neighbours, and they do not want to quarrel with their neighbours; and that has been our experience in looking at the possible scenarios that we have done with organic licensees when it came to the question: "If this crop is damaged, who would I sue?". The two other quick points I wanted to make: there was a comparison with the nuclear industry this morning several times and, in the sense of being an uninsurable risk, it is an easy comparison to make. It is our impression - and what we can learn from talking to organic farmers in America and Canada, which we have done quite extensively - is that the likelihood of damage to organic farmers is overwhelming; I mean, it is a near certainty. Damage from radiation seems to me to be rather less likely and more difficult to prove, in any event – damage from low level radiation. So there, I think, is a real difference between this technology and the nuclear industry. In Saskatchewan, for example - organic farmers - have had to stop growing oilseed rape completely because levels of contamination are so high, and they are now suing the chemical industry and the State government for damage as a result of the loss of that crop in the organic sector. The second difference, it seems to me, is that with nuclear there are generally a small number of point sources - nuclear power stations or reprocessing plants - but in this instance there are going to be hundreds, maybe thousands, maybe tens of thousands of sources, potential sources, of contamination as far as an organic farmer is concerned - every field, and indeed not just every field. This is, it seems to me, from the farmer's point of view, the main legal problem, that in almost every case it is going to be impossible to identify the right person to sue, even if there is a cause of action under common law and nuisance. Just to give you an example, just on the farm - so this is between the crop being planted on the farm and leaving the farm to the wholesaler - you could have nearly a dozen different sources of contamination. You would first of all - and we went through this with an organic farmer - you would need to know the field history of cropping, because you would have to show that any contamination did not arise from seeds which were already on the field from an earlier crop, and, once commercialisation has been going for a while, that would be up to twenty years of records you would be needing in the case of oilseed rape, if the seed is viable for twenty years. I guess actually, to take a case, if you planted oilseed rape on the field previously, you would have to have kept samples of the seed in a condition in which they could still be tested to show that there was not a particular GM DNA in the previous crop that had grown. If you were suing for damage to a current crop, you would have to be certainly clear that the cultivation machinery - tractor, plough, and so on and so forth - had not introduced seed into the field. You would obviously have to have good evidence that the seed you had planted was not the source of the contamination. Availabilty of samples and chain of custody might be rather more difficult between the person who produced the seed and the farm and the drill, so you could actually prove it was that seed that went into the field. You have to show that there was not any possibility of seed being moved onto the field by floods or wind or wildlife. In America floods are a common form of transport of GM seed onto non GM farms. You would have to be clear that the drill was not contaminated which planted the seed, particularly if you had a contract driller. Any machine weeding or spraying early in growth, which could have introduced seed, you would have to be clear was not the cause. Then there is the usual one that everyone gets excited about, pollen, birds, bees, and so on, that cause contamination during the pollination process. The combine, you would have to prove that had not introduced contamination into the sample. In my experience, it is very, very difficult to get combines completely clean. You would have to show that any trailer or lorry used to move the crop from the field to the barn had not introduced the contamination, and that the barn storage bins, if it was on a farm, and the dryer and the dresser, and so on, were all completely clean of any source of GM contamination; and then the lorry to the grain merchant would have to also be clean. All of this would need to be capable of being produced in evidence, I guess. Having done all that, and even if it worked out - and we think it is more or less, in practice, impossible; we have got legal advice (which would have been sent to you; I don't know if everyone has seen it) which says there would not be any cause of action in common law in any event, and that really, I think, accords with what the lawyers were saying this morning, as I understood it - so even if it worked out, obviously you would not be able to bring a case. Our legal advice is that a strict liability regime on the owners of the patent is the way in which you can achieve the two objectives we would want to see achieved. One is that there should be compensation for damage for legitimate interests, and it should be simple and straightforward for the farmer to know who to sue and how to do it, if that is necessary. Secondly, you should not set farmer against farmer, and neighbour against neighbour, in the countryside, and a strict liability regime would avoid that. I heard it described in rather uncharitable terms, I think, this morning but, as I understand it, there are precedents: for example, the water industry is strictly liable for damage the water does if it escapes, and it seems if you can be strictly liable for damage that water does, then you can be strictly liable for damage that GM crops do. The sixth point I want to make centres on the ‘especially sensitive’ issue, which seems to me a red herring. It is very interesting, and it may or may not be that judges would decide that organic agricultural was especially sensitive. It seems a little unlikely given that it is defined in EU law, and there is government money going in to expanding it; millions of pounds of public money going into encouraging people to convert to organic agriculturel. It is over 4% of agricultural land area now, and if the government target is met, it will probably be around double that in the next eight years. But what our legal adviser suggests is that a more substantial problem is that if this is left to the courts, they would be asked to choose between two legitimate forms of agriculture; and you have a scenario which poses that very clearly, where both farmers are able to sue each other, both the GM seed producer, whose seeds are contaminated by organic, and the organic farmer. So I think, and our lawyer thinks - and this is a sensible conclusion - that judges would not be prepared to intervene in what is basically and clearly a public policy matter. So whether it was especially sensitive or not, we would not have a case. As I say, even if we could identify who to sue, we think it is almost impossible. Shall I just, very quickly, tell you what my question was? I am farming next to a green lane which is owned by the county council - it is in public ownership - and the verges contain plants which harbour predatory insects which I rely on to keep my carrots clear of insect attack. A lorry drives down the green lane, which is a public highway, and spills some GM seed, which has got a Bt toxin in it; that spreads to a native plant; the native plant is then toxic to the predatory insects. All of that, as I understand it, is simply damage to public property, and I have no rights at all, but my farming business depends on being able to grow carrots in my rotation - that is my high value crop in a seven-year rotation - and I cannot grow carrots without these predatory insects in the roadside verge. Now, do I have a cause of action, and against whom? AEBC MEMBER: What is the fee! (Laughter). PETER MELCHETT: Anyhow, we come down to the feeling that we need a strict liability regime. That is the only way that the farmers can have any certainty that their business will be protected, and that they will be able to take action. JUSTINE THORNTON: Thank you very much. PHIL DALE: Just one or two points. The first is: the problem I have with the organic farming perspective is that the criteria they have decided upon is largely, but not completely, self inflicted, and any threshold values that we may agree on eventually will have to be negotiated, but the position at the moment, I think - and I would welcome your perspective on it - is self inflicted. You could either produce a product that you believe that your customers want, but it is something you have decided, or the organic industry has decided for itself, and it risks limiting the choice of the 96% of farmers - I say "the choice of 96% of farmers" - who may wish to evaluate transgenics. The other problem, as I talked about earlier, is how do we find a solution to accommodate different forms of agriculture. If we have one farmer suing another – pests, diseases, weeds are moving about, and if we have a culture of one farmer suing another - then it is quite likely that it will spread into the 96% of farmers. If it is the organic farmers that are suing the non organic or the GM, then it is likely to be that farmers will want to reciprocate. There are sort of molecular methods where you could, with a reasonable degree of accuracy - it has to be tested, of course - say: "The 1959 Noxious Weeds Act: all the legislations are there but rarely used because farmers accommodate them; they get on with it; they have to”. So, essentially, what we have to do is to find a way of accommodating and giving people choice - all farmers, a hundred per cent of farmers, a choice - and that involves compromises. PETER MELCHETT: Well, I very strongly agree that we need to avoid a situation where farmers start suing each other. That is absolutely a prerequisite from the Soil Association's perspective. I have been pretty horrified to get legal advice which suggests that there is no likelihood, in the current law, of organic farmers receiving any protection anywhere - or very unlikely, I should say. The only scenario I can see, where an organic farmer who has suffered a financial loss might have a case, would be if GM crops were still relatively rare, and they had a neighbour, or near neighbour, who had grown the GM crop, and you could say, with a fair degree of certainty, that that was the only source of the loss. So that does then set up farmer versus farmer, which we do not want to see. So we are looking to you to make sure that does not happen, frankly. We hope you will make recommendations to the government which will give the organic industry some protection which does not involve us having to sue other farmers. You describe this as "self inflicted". Well, I don't know. I mean, the international definitions of organic agricultural were drawn up by representatives from a large number of countries in the world. The EU regulation was passed with the agreement of all EU governments. Whether that counts as being self inflicted or not, I mean ---- PHIL DALE: I was talking about the decision not to embrace transgenic crops in your agriculture. It is really a matter of finding the ground rules for coexistence. PETER MELCHETT: Well, under the EU regulation, and the IFOAM definition of organic, no GM ingredients are allowed in organic agriculture. That is the EU law and the IFOAM law. So any organic farmer who knowingly used a GM ingredient, or something derived from GM - and it is not just direct; it is the intermediaries as well - would be in breach of EU law. PHIL DALE: So what we are saying is that it is absolutely unworkable, even if we decided in the UK not to commercialise this trading, and so on. So it is going to be very, very difficult to hit zero. The other thing is, you can't prove zero. PETER MELCHETT: As a farmer supplying supermarkets, you would be working to 0.01%. That is what the British supermarkets expect. But you say it is impossible. That is not what was said a few years ago. As you know, Geoff Rooker gave a commitment on behalf of the government - an absolute categorical commitment - when the farm-scale evaluations started, that the government would take steps to ensure there was no damage to the organic farming industry. He said that in terms. He repeated it. He then said: "I want to be absolutely clear, this is not just something being said in Hansard. I am repeating it to make this absolutely clear", and he then said, "it would be foolish for the government" - and I am paraphrasing - "to pour millions of pounds into getting farmers to convert to organic farming if we then allowed anything to happen that could damage the organic farming industry". PHIL DALE: Well, it depends what you mean by "damage". PETER MELCHETT: Well, as I say, it is defined in the EU regulation and IFOAM international rules, which all countries in the world follow, and it always has been. It was when Geoff Rooker made the commitment. JUSTINE THORNTON: Malcolm. MALCOLM GRANT: Can I just explore one aspect of this with you, which is this: is it conceivable that advances in biotechnology, and in GM in particular, might bring about methods of enhancing the organic method; in other words, might provide an opportunity for substitution for instance, at the moment, where an organic farmer has a derogation from requirements as to pesticides because there is no other means of dealing with a particular problem? I mean, today we have been projecting our minds a bit forward, and I ask the question in order to test whether the organic movement's attitude towards GM is, as it were, a moritorium attitude, or whether it is a long term, inviolate, permanent opposition to the use of any GM in organic agricultural? PETER MELCHETT: Well, I cannot speak on behalf of the organic movement as a whole, but I think it is much more the latter than the former. It is a view that this technology does not have any place in organic agriculture. There are derogations to the use of pesticides. There are no herbicides allowed in organic agriculture in the UK at all. There are three active ingredients of insecticides which are used, in the UK, but only in some small scale vegetable crops, usually in glass houses. There is virtually no, or no field scale and outdoor use of insecticides, and no use at all of herbicides. But there is clearly a need for improvements in organic agriculture, in the standards - which, I think, at the moment, in some respects, do not meet public expectations and need to be improved, and that is certainly the government's view; they have expressed that in the organic action plan and it is our view as well. And there are, as you say, some derogations which, we believe, need to be removed. We do think technology and science have a major part to play in that, and we would be in favour of, for example, marker assisted breeding, using knowledge of the DNA to improve plants, and for many years, we have been on record as such. So there is no sense of complacency, and there is certain unease that we are not yet meeting public expectations and need to improve, and that we need all the help we can get to do it. But we do not believe that genetic engineering, as such, has any part to play. ROGER TURNER: If there was a strict liability law introduced, would you be prepared for GMs to be commercialised in the UK? PETER MELCHETT: Well, as you know, we oppose the commercialisation and commercial growing of GM because we think it will cause these huge problems to the organic sector. But if it is going to happen - and that is not our decision, as you know, or indeed the Committee's - but if it does happen, we do think one prerequisite would be to have a strict liability regime, so that, as we say, farmers are not trying to sue each other, and so that farmers have some security as far as loss of their business. Maybe I should make the point, that for organic farming - depending on the nature of the contamination of the GM crop, and what crop it is, and a whole host of other factors: rotation; climate may be a factor, and so on - you can be looking at very significant losses, because you would be looking at the loss of the ability to farm in that way. So it is not necessarily just the loss of a particular year's crop but, for example, with a crop like oilseed rape - which, as I say, the seeds remain viable for a lengthy period of time - it may be very difficult to clean them all economically, even using chemicals, so you might have to use sprays, lose your organic status, re-convert over two years, but you would only be able to start your re-conversion period when you can be sure you have got rid of all the GM seeds in the field, and that can mean huge financial losses. ROGER TURNER: You said that was one prerequisite. Would you like to say what the others are? PETER MELCHETT: Well, I am focusing on legal liability today, but a part of it certainly has to be, we believe, some agreement about threshold levels of contamination in seed, and in other food products, because organic farmers are part of the farming system as a whole; they are not divorced from it. A lorry driving down a green lane next to the farm, if it spills something, can affect me and my conventional neighbour just as easily, and so it is what goes on in the countryside as a whole that matters. That has been the experience in America, as I say. You can get, for example, GM oilseed rape so ubiquitous that co-existence is really, in practice, impossible. It is not possible to grow organic oilseed rape in that province; I mean, it is the main organic farming province in Canada. So, you know, you can lose the ability to grow a particular crop, or you can lose the ability to farm organically on a field or a part of the farm. JUSTINE THORNTON: Matt. MATTHEW FREEMAN: I may be slightly asking you to repeat yourself, but is it a consequence of what you have said that in the way agriculture works in this country - in a sort of patchwork of farms and the increasing use of organic agriculture, and the separation distances that you would envisage, and the very low levels or zero levels of contamination - is the consequence of all that, you actually do not believe that there is a way of getting organic and GM agriculture to coexist in this country? PETER MELCHETT: I think it is very hard at the moment to see how they could, yes - that is quite right - again drawing on the experience in North America and Canada, and the US particularly. But, of course, it will depend on a number of things. The GM industry initially said, of course, that it would be perfectly possible, and there was very little risk of contamination, and it could be controlled, and that is what the government's view was when Geoff Rooker made this resounding commitment to protect the organic sector. Now, if that proves not to be the case with the current generation of GM crops, then the answer to your question is "Yes", at least as far as they are concerned. Whether there are possibilities in terms of how the industry controls the use of their seeds. If they had strict liability it would be up to the companies, who have plenty of opportunities to pass on that liability - it does not mean they have to pay, depending on their contractual arrangements with farmers and others - and the conditions they lay down. Then there are still industry spokes people in North America who are saying that buffer zones, and other things, will allow coexistence quite happily. It is not the industry's view that coexistence is impossible. I think from that point of view, put them to the test, I suppose. MATTHEW FREEMAN: But then if you step back from it - I am not sure how to put this without sounding unduly confrontational, because I am not trying to - but is it reasonable that a sector, which is about 4% of farming, should prevent the other 96% of agriculture from trying out a new agricultural system? I obviously understand what you said, but if you sort of step back from that, and if you put it in that perspective, it does seem like you, because of what... I think what you said was that the precise, or I think what I took was that the precise level of impurities that you, the Soil Association, would accept is a self imposed issue, because that is not actually covered by the EU legislation? MR PETER MELCHETT: No, sorry, that is not right. The EU regulation and the IFOAM Rules do rule out the use of GM in organic agriculture. AEBC MEMBER: But that is different from adventitious presence. MATTHEW FREEMAN: Yes, precisely. PETER MELCHETT: Those rules do not cover contamination. MATTHEW FREEMAN: Precisely. So the adventitious presence is self imposed. I mean, it is something that the Soil Association has decided is right. PETER MELCHETT: The Soil Association has, but I was quite deliberately not going into that, because, of what is relevant from a legal and liability point of view. Let me just deal with the Soil Association's position now. It seems to me much more likely that the Soil Association rules about adventitious contamination would be seen in the same way as the brown paper case. MATTHEW FREEMAN: Yes, it sounds like it does. PETER MELCHETT: But that is only for adventitious contamination. As I said, if you think of it from a farmer's point of view, rather than a lawyer's point of view, you have got to sell your crop. Now, some of your crop may go direct to the supermarket, and in that case the adventitious contamination would not be in breach of EU rules. Let us say I am certified by somebody other than the Soil Association - there are 12 or 13 other certifiers as well as the Soil Association in the UK. Now, if I knew it was contaminated I would declare it to the supermarket, or they would test it, and they would then reject it, and so that is a market control; it is nothing to do with anybody's private or other sorts of rules. But if I am going to use the crop in the organic food chain in any way - feed it to my cattle; sell it for animal feed; sell it to be processed - it then becomes in breach of the EU rules, nothing to do with self-imposition, because it is then GM being used in organic production. MATTHEW FREEMAN: Yes, I understand that. JUSTINE THORNTON: What, even a minute proportion of adventitious presence, then further down the chain becomes use of GM? PETER MELCHETT: Yes. Under the EU regulations and the IFOAM Rules, yes. MATTHEW FREEMAN: Just before we move on, can I just re-put the question about the 96% and the 4%? PETER MELCHETT: Yes. Well, I suppose another way of putting the question is should the 4%, which government policy and public money is being used to expand to 8% or 10%, or maybe more, be put at risk by zero percent, because nobody is growing GM crops commercially at the moment. But I am not sure that either of those approaches is helpful - I think that maybe I can characterise my way of putting it as unhelpful, and not be rude by saying that yours is also unhelpful. I do not think that this is the way to answer what is clearly a public policy question, and one in a field which is dynamic, which is changing; it is not static. I would look, I suppose, to the Currie Report, if you are looking nationally; to Fischler's reform proposals for the common agriculture policy, if you are looking at Europe, or WTO and the impact that is having on global agriculture, if you want an international view, to inform me about the policy trends. All of these are saying - leaving organic aside for a moment - that the future of agriculture in a country like the UK, and in a region like Western Europe, is to provide public goods - nature and access, and pure water, and all these things; and high standards of welfare. And to produce high value specialist regional organic foods, and so on. Then look to those - that is the agricultural policy which is given - look to that to say: "What do we want to do, in terms of: do we need to protect the UK organic production, or can we let it - poof - disappear?". That is a choice. Those things seem to me to be giving a pretty clear signal that that would not be desirable. Currie says it explicitly. JUSTINE THORNTON: Can I just ask two things. I have not read the regulation, but it seems to me an interesting jump that is being made legally here to say that adventitious presence can become use of GM further down the line. If there was a legal opinion that said: actually you have taken one interpretation and there are other interpretations, would the Soil Association be prepared to modify its stance on that? But, secondly, my point is: I hear what you say about a strict liability regime, but it seems to me that that is not the answer, because you again come down to what is the damage that is being caused to the organic crops, which, in turn, comes down to what is adventitious presence. So it seems to me that liability may be used here as hiding what is essentially a policy decision by the Soil Association, which, in turn, comes down to the sort of adventitious presence question again. That is where I keep coming back to. PETER MELCHETT: Well, no, it would not change our policy, because our own standards are drawn up in a way that we think reflects the public views and the market. If we are wrong about that, we lose market shares to our 12 or 13 competitor certifying bodies, and if we are right, we gain market shares. We operate in an organic certification marketplace, and it is an extremely competitive one. So, our judgement, and indeed the market's judgement, at the moment, is that our view is correct, and all the research we do on the opinion of people who buy organic food is that the absence of GM in the organic food is important. (TAPE CHANGE) .... I think I have missed the second part of your question. JOHN GILLILAND: Can I come in. I mean, I think this issue about adventitious presence is, you know, a very pertinent issue, because, you know, I am neither an organic farmer nor a GM farmer, but I have a right, you know, either to be an organic or whatever. What worries me in this debate is if I find myself beside a neighbour who becomes organic, I lose my right, and that does concern me, because I have a right to choose subsequently, if I want to. If the market does develop for GM technology, I cannot do that under what you are saying at the moment. Now, if you take the seed industry at the moment, the seed industry has lived with coexistence, you know, very well over decades and centuries, where certainly if I was a seed producer growing to a certain standard, in looking to get purity, I facilitate my seed business within my farm. So if I have a minimum distance to adhere from a potential crop that may give me adventitious presence, then I have to facilitate that within my farm without causing an impact on my neighbour's rights. The real issue, I think, in coexistence is how we get this right without upsetting the rights of your neighbour as well. You know, you have a right, but your neighbour also has a right, and they may be equally opposed. The issue of coexistence - I mean, I would totally concur with you, the last thing, as a farmer, I want - is we have to learn to live with each other; we have to learn to respect, you know, a different market, demands and desires. PETER MELCHETT: Well, I take the point. I do not think it is quite as equal a balance as you suggest. If I think of my own farming case - it is easier to think in practical terms - if I am an organic farmer, and I am surrounded on three sides by conventional farmers, if one of them decided to go GM, and we go ahead a bit, and there was a GM grass, for example, and that was capable of cross-pollinating with my clover grass leys ---- AEBC MEMBER: That would be impossible. MR PETER MELCHETT: Okay. Well, take some other example. AEBC MEMBER: I think (inaudible) clover grass ley it could. AEBC MEMBER: Oh, he meant the grass bit. Okay. PETER MELCHETT: Didn't I say that? AEBC MEMBER: No, you said clover with grass. PETER MELCHETT: I thought I said clover first. Sorry. The leys in organic farming, you don't grow pure clover; you grow clover with grass in it to make the silage palatable, and for other reasons. So if the grass ley became capable of being contaminated with GM, I would then, I think, lose the ability to farm organically - it would become completely impossible. Now, I would not just lose a seed crop or a year's cropping; I would lose, you know, all the money I had invested in changing my farming system - 80,000 quid into a cattle building; a 100,000 quid into the pig equipment ---- JOHN GILLILAND: I also have a right too. PETER MELCHETT: But I am just saying it seems to me it is not equally balanced just between us as individuals. You would lose the ability maybe to grow your GM seed crop. You would not lose the ability to grow a GM crop because I am organic. JOHN GILLILAND: But under the laws of nuisance, isn't that not the nuisance to me in regards ---- PETER MELCHETT: You will see from the barrister's advice we have that I would be very unlikely to have any basis to sue you at all, so what does it matter to you. You can mess up my business, but I cannot do anything about it. Your seed crop - which is the scenario the Commission put forward - you could lose the premium on the seed crop, but you would still be able to sell it as a conventional crop. I would lose my entire business, or that way of doing business - all the investment I had put in, and livestock. MR JOHN GILLILAND: The reason I mentioned this as an example is that there is an example of where coexistence has worked and has been based on adventitious presence, as such. It has worked and we, as a farming community, have been able to live with that. MR PETER MELCHETT: Well, as I have said, first of all there are international standards for the organic sector, which is not true of the conventional sector. The organic farming system is the only one that has an international, European and national legal definition. ROGER TURNER: No, that is not the case. There are international seed standards requirements. PETER MELCHETT: Yes, but I said "farming system". I am sorry, I am not obviously speaking clearly - Farming system. It is the only internationally legally defined farming system - I know there are international standards for seed purity and many other things - and that is the point the government made in the organic action plan. So, it does present us with real difficulties and real conflict - I am well aware of that. I am not pretending they do not exist. From the Soil Association's point of view, we clearly do not want the organic sector to have to cease farming in the UK, which would be one option, one way of resolving this. I am well aware of that - and that appears to be happening in, as I say, parts of America and Canada, or at least a risk at the moment, in terms of some crops, which is why there is so much opposition to the introduction of the next GM crop in America, which would be GM wheat. AEBC MEMBER: Is there a solution that you can foresee which would involve coexistence? PETER MELCHETT: Well, we have thought about this, obviously, and I know that there have been discussion of regional zoning. That does seems to me to be a starter, just from the organic sector's point of view, To stop people converting to organic - which would be impossible in the GM zones, if there was such a thing – would be against government policy, public policy,, and there would be all sorts of other problems. Otherwise, if the industry is right and this is containable - and, as I say, the evidence we have from North America suggests it is not in practice, but if it were, and the industry says it is and is prepared to burden that risk because of the commercial advantages they see - then that would be the way they would proceed, I guess. PHIL DALE: But isn't the solution to set tolerances for crops that go into organic production? PETER MELCHETT: No, I do not think it is, because that assumes that the organic market is determined by the State, rather than by citizens. I know it is an easy idea, but I have tried to be very clear that we are driven both by the EU regulation, which defines the system, but also by the marketplace. It is our view that were organic produce in the UK to be allowed an adventitious presence of GM - and that was part of the regulations of whatever it would be, 0.5% or 1%, or whatever - then, very quickly, there would be organic producers in other European countries, or elsewhere in the world, who would offer products down to the level of detection, and they would win in the marketplace. We already have 65% of organic products imported; we do not want to see that increase. We might be proved wrong by the marketplace, but all the evidence we have is that we would not, and that, therefore, you would, effectively, close down UK organic production for that reason. PHIL DALE: But that emphasizes the fact it is, to a fair extent, self inflicted. PETER MELCHETT: By the public, you mean? PHIL DALE: It is your perception of public opinion, but if you, as the Soil Association, a respected certifier, said that the practicalities of a mixture is that these are the workable - you know, in the context of harmony within agriculture - these are the workable tolerances - "we have decided to accept these" - then wouldn't they ---- PETER MELCHETT: Well, you are assuming several things: first of all, that there has been a change in the IFOAM rules about the deliberate use, or are you just talking about adventitious accidental contamination? PHIL DALE: Adventitious mixing in crops that are used in organic productions - you were arguing the supermarket - but used in that ---- PETER MELCHETT: As I understand it, that would require a change in the IFOAM rules, so it would need to be international agreement. PHIL DALE: But there are other inconsistencies in the regulation. Anything that is not approved - any GMs not approved in the regulatory process - there is zero tolerance. Completely unworkable in practice. PETER MELCHETT: We want to work to the EU regulation. If you want to make a recommendation that it should be changed, and take evidence from organic bodies in Europe, and so on, it is another discussion, frankly, but I just note that we do not agree with that. So, to take your point, you would need a change in the international rules which govern not just organic agriculture in Europe but around the world - in China and America, and all the rest of it. You would need a change in the international position on GM use in organics from well outside this country. The moves in the rest of Europe are tending to go in the other direction - to get stricter about this - in response to public concerns. You say this is self inflicted; I am saying it is the market. But what a market wants is ---- JUSTINE THORNTON: Hang on. We have other people who want to come in. PHIL DALE: I am sorry. PETER MELCHETT: So, I mean, no, we would not do that, both because of the international position that we think is right; and because what we think the market needs, and with the evidence of that, we believe that is right; and because we do not think that GM has a part to play in organic farming, and we want this system to stay separate. JUSTINE THORNTON: Okay. We are moving to final questions, I think. We have got Sue and Matt, or is it Roger? ROGER TURNER: I will give up my slot! (Laughter). I would like to talk to you for about two hours, so I could understand it, really, but this isn't the forum to do it. (Laughter) PETER MELCHETT: Let’s do so. ROGER TURNER: Well, we are running out of time, but I would really like to at some point. JUSTINE THORNTON: Sue. SUE MAYER: I would like to ask two quick questions. One was a slight difference between the way you thought liability should lie compared to Friends of the Earth, and FoE talked about the consent holder, whereas you said the patent holder. So I just wondered what the reasons for that was. Then also, on this issue of coexistence, and people coming to agreement between each other, and I wondered whether the Soil Association had thought about issues if the GM crops were to have gene containment measures in them, so that there wasn't pollen flow, or a much restricted likelihood of gene movement, and whether that was something that the organic movement would see as a positive step towards respecting those interests from the GM group or not? PETER MELCHETT: On the first point, I do not have a strong view about it, frankly. I mean, the barrister's advice we have suggests that the owner of the patent would be easily identifiable and therefore the easiest. We were looking for a system, as I said, which avoided farmers suing farmers, and which was simple and secure - gave some security to farmers. That is really our starting point in looking at liability. If there is another equally effective way of those being achieved - I mean, we do not have a particular legal dogma in this; we just took the barrister's advice about it, and what there were precedents for. On the question of containment, obviously anything that helps reduce this sort of GM contamination of organic farms and food would be welcomed by us. I mean, we need any help we can get! The experience of organic producers in North America (and I deliberately went through a long list to try to make this point) is that there has been an awful lot - I mean, there are environmental groups, and I am sure the Soil Association as well, that are partly responsible for this - a lot of focus on pollination, on what happens to a crop in the field. The experience in North America seems to suggest that the sources of contamination of an organic crop, or of the conventional non-GM crops, are so widespread. The reason why it is impossible for oilseed rape to be grown organic is largely because there isn't any GM free oilseed rape seed available. That is why - going back to the rights of seed producers - it is worth bearing in mind that a lot of seed production has moved out of Canada and the US for precisely that reason. So you can lose your rights in different ways. If you are a conventional seed grower, you should be worried about the introduction of GM crop, which could cross-pollinate with the crop you are trying to grow. MATTHEW FREEMAN: Mine builds on Malcolm's and Sue's points about your implacable opposition to GM, and if I can just draw your attention to sugar beet, where there is no pollination outflow issues. You know, the likelihood of wild species interaction is virtually zero, and GM sugar beet may well offer a huge environmental benefit, and I would submit that organic sugar production, using beet as the vehicle, is environmentally deleterious. PETER MELCHETT: Well, there is a simple answer, and the simple answer is British Sugar, who are the only purchaser of sugar beet, disagree with you, and they are the people that count. MATTHEW FREEMAN: But the market can change, though. PETER MELCHETT: Well, let us look at what the position is now and what it has been over the last few years. Whilst GM sugar beet has been trialed in the UK, British Sugar, having considered the matter - and you have to have, as you know, a quota from British Sugar to grow sugar beet; you cannot even grow the crop without their permission, or their quotas, - they have looked at this, have said they will not buy GM sugar beet. In that time period they have started to process organic sugar beet, and now have contracts for organic sugar beet and have, I learnt the other day, a healthy manufacturing market for the sugar - the organic sugar - they are producing. That market is partly being driven, from the manufacturer's side, by a desire to buy British farmers' produce, to help the British farming industry, and because they believe - and I think there is good evidence for this - that organic sugar beet has substantial environmental benefits. If you look at the farming system as a whole, and the rotation as a whole, compared to conventional sugar beet - whether it is GM or non GM - it has very, very substantial environmental benefits. That is what the government's organic action plan says in Annex 3, where the environmental benefits of organic farming, as agreed with the government, the Environment Agency, English Nature, the RSPB, and different scientists, are set out in some detail. ROGER TURNER: I would love to debate that, if I could spend a couple of hours with you. JUSTINE THORNTON: Okay. Well, I am afraid we do not have a couple of hours, so I am going to have to call this particular session to a halt. AEBC MEMBER: But not before we tell you the answer to your scenario – ‘NO!’ (Laughter). MR PETER MELCHETT: I thought so. AEBC MEMBER: The scenario doesn't work well. A predatory insect, by definition, is going to feed on other insects and not on the leaves (inaudible). PETER MELCHETT: It depends on the life stage in the insect's life cycle. AEBC MEMBER: And there is also going to be caterpillar life in order to be killed by (inaudible), and I can't perceive of any insect's life, other than a predator's. JUSTINE THORNTON: Thank you for that. Very helpful. Thank you very much for an interesting session. PETER MELCHETT: Okay. JUSTINE THORNTON: We now have Archie and Bob. I realise that you were not here this morning when we introduced ourselves. I do not know whether it would help if we reintroduced who we are, or whether you know enough about us. MR ARCHIE MONTGOMERY: I personally know most of you. JUSTINE THORNTON: Right. Okay. Well, over to you two. ARCHIE MONTGOMERY: Okay. Well, thank you very much for asking me, and for allowing Bob to come as well, because I think it is going to be very useful for Bob to give you a personal account of a seed grower, and how that works in practice. I farm. I am also Chair of the NFU Internal Biotechnology Working Group. The remit of that group is to produce a policy document on the whole GM technology, which goes before our Council for ratification, and it is then taken as the policy document of the Union. We are responsible to all our members, including organic members of various certification sectors, and, though not by right, I will always ask the Chairman of our organic sector to sit in on our working group discussions. It is absolutely essential in our remit that we try and provide for free choice for our members, and we try and avoid inter-member conflict. We attempt to be independent, objective, and produce practical, workable scenarios in consideration of all things such as labelling, traceability and thresholds. We are constantly faced with extreme positions from either side of the industry, whether they are promises or threats, and we are trying all the time to try and thread our way to find a balance of truth with which to allow our members to make their free choice. For instance, we have been studying carefully the Soil Association's book, Seeds of Doubt, which we will attempt, as best we can, to verify and validate; and there is no doubt that we have learnt over the three or four years that GM has been commercialised in North America; we have learnt a great deal from their experience. On the particular AEBC scenarios for liability that have been proposed, we have produced a response document, which we will table in due course. I would just say that we thought the scenarios to be rather unrealistic and very much worse case. I would like to include them in our perception of all the liability issues, as it appertains to various other directives that are out and scenarios that are out in front of us at the moment. We have just given consideration to the proposed environmental liability directive, and we have considered all the technology issues from the technology companies on liability with contract, and we have just held workshops on coexistence. Now, the liability, as it applies to all those various scenarios, we would say generally, given that no GM technology would be commercialised before having passed all the regulatory assessments, we have no opinion that it should be any different to the current technology which is out there at present. On things such as the environmental liability directive, we do make the statement that we think it is very important to retain such defences as we have now, such as due diligence, permit defence, and state of the art defence. On specific draft liability, our working group only met yesterday. We have, after a great deal of discussion, put together a document on draft liability, which I would rather not leave with you at this moment, but I feel able to just read you the summary of that document, if you can just bear with me. "The NFU believes that the UK government and the European Commission must ensure a statutory liability regime in place can adequately address the issues raised by novel production methods, without penalising new technologies out of proportion with the known risks posed by their application. The first point: we suggest that the most appropriate mechanism for managing liability related to GM crops is to ensure new varieties undergo an effective risk assessment for food safety, animal health, human health, and environmental damage prior to approval for environmental release or marketing. Secondly, we suggest that several potential litigious situations relating to loss of market share or economic damage could be minimised by application of practical codes of practice to minimise gene flow through cross-pollination and maintain segregation along the production chain. Thirdly, we suggest each business should be responsible for ensuring, to the best of its ability, that its product meets the market standard. The supply chain as a whole has a responsibility to ensure market standards are practical, workable and deliverable. Fourthly, we believe it is particularly important to establish criteria for what constitutes damage, in the legal sense, and to provide a mechanism for an ongoing view of these criteria in the light of developing scientific knowledge. There is a particular need to establish agreed de minimus thresholds for accidental presence of GM material in non GM products. Lastly, we would not advocate additional and potentially onerous legislation relating to any new technology where increased risk of damage to property, person or the environment, in comparison to current production technology, has not been demonstrated." We have recently, as I said, had an in-house coexistence meeting. It is an issue which we will be discussing further. At that meeting we had representatives from organic groups, seed production, industry, and we discussed issues such as testing liabilities, methods of testing, cost of testing, and segregation distances, and such like. I think it is very important that we have an understanding of what is currently good practice in these areas, and I would like Bob to give you his knowledge. MR BOB FIDDAMAN: Thank you. Again, I am a farmer - how I earn my living - but I also am one of those that have volunteered to take part in the farm-scale evaluations and currently taking part in what is the last of the autumn rounds of oilseed rape, and which will actually be my fourth year, because I took part in the first year protocol. So, in that sense, I have had to understand and use one of the points that is being raised, which is a code of practice. It is not something that I am unused to anyhow, because I have also been a seed grower, and there are codes of practice there, which have applied too. I have grown oilseed rape many years ago, when it was fairly new on the farm, and before we went to double zeros, and at that point I decided it was not worth the rotational requirements to continue in oilseed rape seed production, but had managed to continue in all the others; that is, the cereals and pulses and things. So, therefore, I understand and recognise the sort of requirements that have been made, particularly in the pulse sector, where there is again a position of where you have to recognise a distance. My farm is long and thin, and is barely more than a field and half wide, so therefore I have neighbours all the way around. I am about eight miles length, end to end, if one actually took distant points, just to give you an idea of my neighbours. So it is something that has been perfectly natural for me, and obviously, therefore, my neighbours are aware of what I am doing and are quite ready to receive a call about: "What are you going to put in this or that field, because I want to try and do this, you know, and is there a problem?". So that is nothing unusual for me. But can I emphasize also, it is also nothing unusual for a conventional grower, because I also do contract farm work some distance away from the base holding, and it was only two years ago that my neighbour rang up and said: "Oh, what are you putting in this field just along the road there? I see you haven't planted anything yet". I said: "No", and I said: "Why is that?". He said: "Well, I actually want to put the field next door into HEAR rape, and the regulations require that there is a 50 metre barrier between that and any other rape crop". So he, as part of his normal production process, had to find out from me what I intended to put in that field, and this is some 13 miles from home. MR (?): I am sorry, HEAR rape is what? MR BOB FIDDAMAN: I am sorry, HEAR rape is high erucic acid rape, which is poisonous to humans, and therefore must not be allowed to contaminate the food standard rape, which is now currently double zero. It is a practical ongoing situation for any HEAR farmer that wishes to grow HEAR rape, and there are obviously rotational consequences of what he is doing as well, in that he needs to know what I was doing in this particular instance, and obviously I was able to say to him: well, no, that actually was going into a spring crop of peas, so there was not a problem, and he was very grateful, and obviously went ahead and planted, and fulfilled, more importantly, the regulations that were required within IACTS, because it is actually a statutory requirement that he has that distance if he wishes to claim support within the current mechanism. So really to highlight and emphasize the point that the business of contacting neighbours is not unusual. It is very much something - certainly with most of one's neighbours one meets anyhow for other reasons, socially and otherwise - so there is an inevitably of: "What are you doing there?", and, you know: "Oh, I see this is happening", and so on. It is interesting, in the four years that I have been involved, that, yes, I have had one or two neighbours who have said: "Well, I am interested in what you are doing as far as the GM issues are concerned, and at the moment I just want to watch"; and, yes, one of my fields wasn't too far from his boundary, but it was well outside any particular concern of his; and the other neighbours were all saying: "Well, we actually want to see the results". That is quite a common comment that one hears when I go to various meetings, and it gets raised obviously: "Well, when are we going to hear the results, because we want to know whether there is or isn't any benefit", and therefore whether the current sort of malaise that there is in public opinion that you can actually formally go out and say: "Well, scientifically, there does seem to be some environmental benefit". I mean, already, because of the release regulations, there is not allowed to be any harm in the product that is being produced, because otherwise it would not be allowed to be released, or if it is a HEAR rape, it is very specifically going to have restrictions on how it should be managed, so that there wasn't a harm from, say, a food quality product. In some ways it reflects the experience in America, where they decided not to register Starlink as a food runner but as an animal feed product only, so, consequently, if there was a mixing of the food chain, they had the problem that they had. If it had been passed with safety on food use, I am sure the problem would not have been as difficult as it was for them. But it is an issue, and it means that we are already required and prepared to understand what we have got, where we have got it, and, more importantly, that we will obviously wish to keep those products separate within storage, not least because one wants to actually sell them then for the best beneficial value. If you are growing HEAR rape, you are growing it for that specific market where they will offer you a quality premium for the oil because it has a particular benefit, and it will happen, or could happen in the future, if we are able to produce various specific oils within the oilseed crop - which I know are apparently biologically possible, but at the moment are commercially not available - that one would still wish to therefore see that the various agreed recognised separation distances to get the purity levels required would be part of what a farmer would want to do, because he would not want to grow that crop if he was not able to fill an end contract. The distances that we currently recognise, which have been well shown through the current seed standards to get this very high purity level, I feel is a very sensible system by which commercial farming can continue, where GM farming, I hope, will be eventually part of the process that we are all able to proceed with. I am very concerned that the potential benefits of the technology are lost within particular instances of a particular construct. We currently only have herbicide tolerant constructs, which do not have any obvious consumer benefit. Perhaps, as I say, when we begin to hear the results of the evaluation of the trials, that where there is - I believe, from my own current experience - a real potential benefit for the environment, that is a message that many consumers will be pleased to hear, and, on that basis, would be supportive of any move that will enhance their food production, as is highlighted with the current concept of integrated crop management, where one is trying to use all the mechanisms of farming to lower any additional costs of control through pesticide use and/or fertilizer use, because it is a mechanism of both. Now, I honestly feel that there is not a problem in seeing that within the commercial standards - and it has already been mentioned - we need to have agreed de minimus levels - zero does not exist, therefore there does need to be a de minimus level - by which any standard can be verified; that once that is agreed, then I do not see a problem why the farming industry cannot actually provide that as a result as an end product. In other words, we can guarantee that we would offer that product. It is obvious that if one has a situation where - and it applies whether it is a feed wheat or a milling wheat - if you end up mixing up half a feed wheat with half a milling wheat, then the only way you can sell it would be through a feed wheat market, because the millers would not be able to get the benefit. That is why I am certain, the way the whole of the industry is going, that identity preservation and keeping separate these various benefits will always be, and will go on being, more important in the future. JUSTINE THORNTON: Thank you. MALCOLM GRANT: Could we perhaps build on what we heard previously from Peter Melchett, and ask you the extent to which you would accept the Soil Association's argument that a growing sector like that should be protected from the introduction of GM, and perhaps test with you his belief, which is that coexistence really is not possible? MR BOB FIDDAMAN: Well, I don't have a problem that someone wishes to grow, as a system, organically. What I don't believe is any mechanism that says zero exists, because it doesn't; and that therefore I don't see a problem why they shouldn't be able to apply to organic crops. I mean, you were questioning earlier that if there was an adventitious presence, why that would affect. Certification if they have decided not to use genetically modified materials as a mechanism within their growing system, that is a decision they are quite free to make and I have no problem with them saying they don't want to use a GM variety within their growing systems. What I think is not realistic is to turn round and say that if we have decided that there is to be zero GM, and therefore you cannot have organic growing because someone might be having a product that is, I might, for example, want to have a quality wheat (inaudible) - I know one of those that is being developed now - that has been using the technology to make sure the quality is there. I might have been denied the potential advantage of having that quality wheat, because the breeders find it is currently the most financially beneficial and best way to be able to produce that product in this instance. So I do not actually feel that there ought to be a problem on coexistence, because there needs to be a de minimus level which has to happen in practice, and they have already accepted in nearly all the other elements that they have within their production. They don't have zero for pesticide tolerance, and so on. They don't have to use the pesticides, I quite agree. They don't have to use GM products. MALCOLM GRANT: Let me just test that further. Imagine there was such a de minimus - let us say 1%, for the sake of argument - did I understand you to say that you felt that that level of protection, in fact, could be achieved using separation distances, or whatever other approach that you would have? You felt that that could be delivered? MR BOB FIDDAMAN: From all the evidence that I have, in the sense of being a seed grower, having to provide 99.7% of purity - and, you know, as I have indicated, I have grown quite a wide range of crops. The answer is that with separation distances which are recognised within the seed growing market, then the answer is "Yes", because I have been doing it for thirty years. MALCOLM GRANT: Just thinking in terms of liability, would it be therefore realistic to suggest that where there was a failure to achieve that, as a result of a farming method, let us say, so that there had been cross-pollination which had caused economic damage to an organic farmer, that liability should rest with the GM farmer or with someone further up in the chain, as we have been discussing earlier today, to compensate for that intervention? ARCHIE MONTGOMERY: That would require a proof of fault, negligence or nuisance, which might be extremely difficult to prove, and, as we have written in our report, we feel that some onus should go forth - whoever it is growing a crop to whichever market standard they wish to grow it to, should go through procedures which try and guarantee the production of that crop to that purity. As Bob has said, the levels of, for instance, separation that have been used for seed growing for very much higher purity levels have proven to be very workable in the past. When you consider the crops that are going to be currently, or potentially currently, available, one has to take them on a crop by crop basis, as Roger has said earlier, on what is the likelihood of (inaudible) scenario, which, for instance, with sugar beet, is extremely small, if good codes of practice are adhered to. MALCOLM GRANT: Just dealing with my question still: what if we follow all agreed processes and there is still some contamination? I mean, listening to Peter Melchett, I could understand, I suppose, the potential economic impact to an organic farmer of a contamination of that form, and what we, as a Committee, I suppose, are trying to get at is this question, which is if that were to occur is there a liability question, or is it a sort of give and take of the countryside? ARCHIE MONTGOMERY: Well, we currently have incidences now where you can have nuisance and negligence, where you can effectively be on a boundary, and the most common would probably be spray drift, where you affect your neighbour's crop, and there is a fault programme, and it is common law redress. With GM I think it is slightly more difficult. For one thing, the crop has been cleared by a regulatory procedure, which has proven to be safe to human health and safe to the environment. It then comes back to if somebody wishes to grow to a specific criteria, by arrangement with his neighbours, you try and guard against eventualities, and try, to the best of your ability, to grow to that criteria. That is not to say that crop may fail for any number of reasons. AEBC MEMBER: Just a quick point of fact, I think: if a seed producer fails to reach his or her level of purity because his neighbour has grown something next door, either in contravention of their original agreement, or whatever, do you ever sue your neighbour for that, or do you just absorb that loss? MR BOB FIDDAMAN: Well, the short answer is there has never been an incidence of that occurring as a reality. AEBC MEMBER: You have never hit your 97.7% ---- MR BOB FIDDAMAN: The only crop at one point that was - and it was because at the time when I was starting I actually managed to get a basic crop of pulse, and it was needed to be a 400 metre boundary, and because of what was planted I was 350 odd, I think, so, effectively, what I had to stand was actually a 50 metre loss along that boundary edge of seed at that value. But because we farm together, you know, there are many other things that would cause me to lose that seed premium anyhow, and the totality of the value to me was to get the majority of it to the level, not least because maybe the end buyer would not want it all in the first place. So, to me, the 50 metre edge was a normal risk factor that I built into the value of me growing that crop. AEBC MEMBER: But there isn't any precedent for litigation between conventional farmers and seed producers? MR BOB FIDDAMAN: No. I don't know of any at all. ARCHIE MONTGOMERY: As you have said, there is a feeling out there in the community that it is live and let live, and I suppose a more realistic scenario of what happens now is a coexistent situation of actually between organic and non organic in issues of fungus, and I will just give two examples, which are real examples. I happen to grow a quite large acreage of potatoes. In the area we farm, in the south-west, the biggest concern to any conventional potato grower, particularly if he is growing the seed, is the nearest proximity of an organic grower, because that is likely to be a source of blight infection which can, I mean, dramatically and disastrously affect the value of his crop. In other parts of the country it can be cereals, where there are seed dressings, and things. So, in reality, actually those are things that are out there now and are risks now, but actually, as far as I know, nobody has taken each other to court. For one thing, it is quite difficult to prove damage. SUE MAYER: I was going to ask you about the guidelines and code of practice, which quite a lot of these things hang on at the moment, and really what your views were on whether they should not be made into statutory requirements to both bring in some more clear safeguards, not just for the organic farmers but for non GM farmers who might be trying to supply conventional markets - and for there to be some independent policing and recording of that - what your views would be on that. MR ARCHIE MONTGOMERY: My answer is that the code of practice was built on very much other codes that are already in existence, but not least, obviously, to do with the way the distances, and so on, should be maintained. But, equally, they are also not dissimilar to what are the requirements that if you a part, as I equally am, of the (inaudible) crop scheme, where I have to record the field data; I have to record what I do in the field, and I have to maintain that record - okay, in the ACCS case it is 7 years; in the SCIMAC protocol it is 10. I mean, the two are so near each other it would be irrelevant to me if I had to keep the whole lot for 10. I probably will anyhow, because it is all on computer, and as long as the computer doesn't crash - I always keep a spare copy separate from it, etc. - you have got the data if you need it. I certainly do not think the idea that they should be statutory is any benefit over what we have in the way the current mechanisms work, because I need to be certain that when I am offering a product that I can actually say, with due diligence, that that product is what I say it is. So, therefore, I need to have information and data there to record it, and that is equally what is behind the SCHIMAC protocols and the way they are handling it. JUSTINE THORNTON: Okay. Well, thank you very much. That was very helpful. I think that brings to the end today's evidence-taking, so thank you very much for all our witnesses and also to the audience for coming along. It has certainly given us a lot to think about. Thank you. (The meeting concluded) _________ |
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