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LIABILITY SUB GROUP MEETING
10 MAY 2002
GLAMORGAN BUILDING, CARDIFF

MINUTES

Note: These are the views of the sub-group, not necessarily of the full Commission

Present

Phil Dale
Matthew Freeman
John Gilliland
Malcolm Grant
Derek Langslow
Sue Mayer
Justine Thornton (Convenor)
Roger Turner

Anne Packer (Secretariat)
Richard Abel (Secretariat)

Apologies

1. There were no apologies – all members were present.

2. Members would let the secretariat have comments on the draft note of the 25 April meeting by 17 May.

Follow-up to the full AEBC discussions on liability

3. Members agreed that next stages, to discuss today, were work on the draft liability report, developing scenarios, and considering whether to take formal evidence. An area that had not been touched on during the full AEBC meeting was whether or not a liability regime was an appropriate way for dealing with issues around possible commercialisation of GM crops - if not, the report would need to flag this up. Members agreed that the purpose of a liability regime was to reinforce regulatory controls, and provide a legal mechanism for possible remediation and compensation, within wider provisions.

4. Members noted that issues included the limits to liability, the question of ‘difference’ of GMOs, gaps in the existing liability regime, and the recurrent question of how to deal with possible economic loss.

Discussion of scenarios

5. Scenarios would need to cover the range, to be realistic, would possibly cover extreme as well as more likely cases, and would include application of the principle of looking from both ways, identified by David Howarth. An aim was to help identify gaps and possible ways of dealing with them. Other relevant practical aspects included limitation periods, useability, the role of insurance, and being aware that thresholds and separation distances would be the arbiters of damage and fault. An introduction to the scenarios would be needed, noting that GM crops could have significant economic effects, not all of which could or should be dealt with as liability issues. Following commercialisation, and if the relationship between liability and the post-commercialisation monitoring regime worked well, there should be early awareness and notification of emerging issues. (A system currently monitors introduction of new herbicides, aiming to identify any emerging problems.)

6. Members identified a number of aspects to cover in scenarios:
  • Biodiversity, public goods and the environment – in an SSSI; on common land not in an SSSI; and on farmland
  • An unforeseen outcome – including something unforeseen when regulatory decisions were taken eg Bt toxicity over a wider spectrum than envisaged
  • Diffuse effects
  • Long term effects
  • Effects on groundwater and soil eg soil fertility effects from monoculture
  • Economic damage
  • Where responsibilities would lie - with companies and/or farmers
  • The problem of farmers being in conflict with their neighbouring farmers
  • Practicalities eg gathering evidence, burden of proof
  • Arbitrary discrimination against a technology per se. (eg two farmers growing herbicide tolerant crops, one conventionally bred and the other GM, and their position vis a vis an organic neighbour.)
  • Possibly ‘offence to the senses’, such as a sense of nature.
7. Phil Dale would draft a paragraph each on a number of scenarios, and send them to the secretariat for further work. Justine Thornton would add to each scenario an assessment of the effect of current legal provisions, highlighting areas of uncertainty.
Action: Phil Dale, secretariat, Justine Thornton

8. The scenarios would then be sent out to consultation, to a broad range of people and groups. It would be important to set them in context, explain why AEBC is looking at liability, what the group has learned, that liability is one small part of a bigger picture – with scope for pluses as well as negatives - and how liability fits in to that. (The secretariat might usefully contact a number of consultees to encourage early responses.)

Draft report

9. In parallel, the secretariat would work on the draft report. This would include sections on:
  • Functions of a liability regime
  • The current legal position on liability
  • Gaps in current liability provisions
  • Scenarios addressing inter alia whether GMOs are different
  • Whether or not there seems a need for a new regime
  • Possible elements of a new liability regime
  • Limits to liability: role of other provisions eg insurance
Action: secretariat

Timetable for next steps

10. Members agreed an outline timetable for next stages: · Drafting work on scenarios and report. · Discussion of scenarios and of draft report to date at next sub-group meeting (June). · Revision, circulation to, and discussion by full AEBC at July meeting. · Issue of consultation paper on scenarios, in their context, by end July. Responses requested in around 6-8 weeks. · At AEBC September meeting, discussion of initial consultation responses. · Sub group meeting soon after September AEBC meeting. 11. Members decided not to take evidence at the July AEBC meeting, but might take evidence later in the year, at a full AEBC meeting or sub group meeting, to test emerging conclusions or areas of uncertainty.

Any other business

12. The next meeting was confirmed as 17 June. It would be a half-day meeting, in London, from 10.00am to 1.00pm. Roger Turner would be unable to attend.

13. Members agreed that sub-group meetings would generally be for members and secretariat. On occasions, the group might invite officials to all or part of their meetings.

AEBC Secretariat
May 2002

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