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Agriculture and Environment Biotechnology Commission (AEBC) | |||
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LIABILITY GROUP MEETING 16th MEETING AT 10.30AM FRIDAY 15 NOVEMBER 2002 1 VICTORIA STREET, LONDON SW1 MINUTES Note: These are the views of the sub-group, not necessarily of the full Commission Present Phil Dale Matthew Freeman John Gilliland Malcolm Grant Derek Langslow Sue Mayer Roger Turner Anne Packer (Secretariat) Apologies 1. Justine Thornton was on holiday and had sent her apologies. Minutes of the meeting on 18 October 2. These minutes, which included the updated remit for the group, were confirmed. Minutes of the evidence taking meeting on 5 November 3. The draft minutes had recently been circulated and members would let Anne Packer have comments by 20 November. The secretariat had felt it would be useful to have quite a full note of the meeting, and members confirmed this. The secretariat would also circulate the transcript once it was available. 4. Members agreed that it had been a very useful occasion, with good speakers, and that they had contributed much additional information. Arising from the discussions, the secretariat would clarify the EU and UK rules on organic farming. Action: Secretariat Responses to the scenarios consultation paper 5. Some 20 responses to the scenarios consultation paper had now been received, many being substantial, closely reasoned commentaries. Anne Packer tabled a summary of most of the responses so far received, and would extend that to incorporate the further responses.They came from across the range of farming bodies, farmers, private citizens, NGOs, agricultural institutes and industry bodies. A number of responses had been forthright. Members thought this was perhaps because some people had not picked up the aims of the consultation from the covering letter. The group had in mind to arrange a stakeholder meeting in the new year, and the liability report would clearly describe the function of the scenarios paper to test the robustness of the current laws. Some additional responses were still expected. Group members agreed they would like to see full copies of all the responses. Discussion at the forthcoming full Commission meeting 6. Among the papers on liability for the Commission meeting at the Eden Project in December, group members decided it would be useful for all AEBC Members to have the note of the evidence-taking meeting on 5 November, and the summary of responses to the scenarios consultation. 7. Sue Mayer would draft a note on ways in which GMOs might be seen as ‘different’ from conventional agriculture for the secretariat to circulate to liability group members for their comments, ahead of being sent out alongside the other AEBC papers at the beginning of December. Once Sue’s note was available, Phil Dale would draw up a short list of bullet points on ‘similarities’, and both aspects could be discussed with the full Commission. Action: Sue Mayer Any other business 8. In the margins of the 5 November meeting, Helen Browning had asked the group to include issues such as admixture and spillage. Admixture would largely covered by product liability. John Gilliland had provided some examples earlier in the group’s work and would do a flow chart to remind the group where liability might arise. (Action: John Gilliland) 9. Members had read and noted the useful briefing note from DEFRA, which the secretariat had circulated at the previous meeting. 10. Malcolm Grant reported that there was a possibility of the group having some input from a lawyer, particularly to set out the legal framework. Members agreed they would welcome this. 11. The next meetings of the group had previously been arranged for 20 January, 27 February and 21 March 2003. Brainstorming discussion 12. The main item for the meeting was a brainstorming session. The aim was to tease out some possible emerging conclusions. These might be broad eg about the type of policy decisions to be made, or more detailed eg principles for a liability regime. Questions included whether GMOs were intrinsically different, (from what and for what purpose) and so needed a new liability regime; whether GMOs raised different kinds of liability questions from other agricultural activities, and whether liability regimes were in fact fit for this particular purpose, in comparison with/ alongside other mechanisms. 13. Members agreed to consider environmental, product and economic liability separately from each other in the liability report. 14. The recommendations in the liability report would need to be robust. Economic issues and liability 15. Discussions focussed initially on economic issues. An underlying theme, - with considerable emphasis – should be tolerance and co-existence. The necessity of give and take, to maintain good relationships in the countryside. The group would take it as a principle that, in this country’s agriculture, there was no alternative to finding rules and principles for co-existence. This would apply because of imports, even if there were no GM crop commercialisation in the UK. This probably involved setting thresholds. 16. It was essential to resolve the question of co-existence, so the issue then became how to secure co-existence in a pragmatic way. Economic liability turned on tolerance, co-existence and thresholds. 17. Members agreed that problems of co-existence might be more apparent than real. There might be a tendency for over-concern, particularly in relation to organic farming. For example issues over growing of oil seed rape, sugar beet and maize looked feasible to sort out in practice at a local level. GM grass and clover were very unlikely to be grown in the UK. Any GM introduction was likely to be gradual. Of future potential crops, wheat pollen travelled only a few metres, barley a little further. Potatoes and willow might be introduced subsequently, and looked manageable. Potential problems arose mostly with seed mixing, rather than pollen transfer. 18. High erucic acid oil seed rape (HEAR), a non-GM crop currently in cultivation, which must be kept separate from other oil seed rape, might make a useful case study on how to handling crops which have to be kept apart. 19. Differing thresholds might be needed/appropriate for different crops. The first step could be setting rules for co-existence. There was scope for negotiation over thresholds. Afterwards a question could be whether extra liability provisions were needed. How to enforce those would need consideration. Ultimately it was probably an economic liability question. 20. If there were a sensible working rule, an insurance market might develop. 21. To have liability, damage would have to be defined. Setting a threshold could be a way of defining when damage had been done. And if someone damaged a neighbour’s goods, that would be harm. 22. For a desirable outcome, a workable threshold was a basic need. This could be a message from the liability group’s work for the UK organic farming movement. That zero was unrealistic, and unmeasurable. (There might be a need for different rules for imported, and in-country adventitious presence, and different relationships with the regulatory system.) 23. The group agreed that it would rule out ‘zoning’ as a potential way forward. Reasons would include conflicting with the notions in Part C consents, and with principles of freedom to farm. There were good social policy reasons why there should be no zoning. 24. To achieve co-existence, there would have to be hard negotiation over threshold levels. The group would make it clear that this is not cost-free. The more stringent the conditions, the higher the costs – which consumers and/ or farmers would ultimately have to pay. Since much of the cost was related to analytical work, the lower the threshold the higher the cost – analysis being more difficult and time intensive. 25. Distinction between GM and non-GM plants might be argued as appropriate for some economic aspects, because people feel very differently about the two. 26. The group agreed to note that there was a conflict if rules were applied to GM and not other plant breeding methods. This might suggest any regime should be more broadly cast than just GM. As conventional breeding becomes ever more sophisticated, breeders could avoid any rules relating just to GM, by using non-GM methods to achieve a very similar end, where the outcomes might be potentially worse – for example producing herbicide tolerance by mutagenesis, with the herbicide being a more toxic one. 27. It was important to understand the existing legal and regulatory framework, and to be realistic. For example on European legislation, a UK environmental liability regime could be established to extend an EU regime, but AEBC recommendations would have limited impact on WTO discussions. Environmental liability 28. Environmental effects could well be diffuse, emerge over many years and might not have a distinct plaintiff. The first step to consider was whether a liability regime would make a difference. There were subsets of biodiversity loss and ’traditional’ loss – physical damage to property. 29. If there were grounds for an environmental liability regime, the group would not want a distinction drawn between GM and other agriculture. The net should then be cast wider, on an equal basis – perhaps based on novelty. 30. The group might conclude that the distinctions in the EU draft liability directive made it of limited relevance in the UK, as it would impact on few agricultural areas. 31. One of the tricky issues was unforeseen impacts, and whether liability had anything to offer here. This was a driver of public concerns, alongside views on whether there were any ‘benefits’ from GM technology. Members noted that there was no system for incorporating ‘need’ in regulations – and this applied equally to mobile phones as to seeds. A helpful distinction might be made – as in the Commission’s Animals and biotechnology report – between ‘trivial’ and ‘morally compelling’ uses of a technology. Considering whether there was a mechanism for considering social benefits, members noted that with BST there were perceived animal welfare issues, alongside the view that additional milk was not needed. Similarly for US hormone beef – and the UK was paying an economic penalty to the US. Liability and regulation 32. The report must analyse what liability is for, and what are its limits. Liability is a legal tool. What are its relationships to other tools? Can you achieve outcomes in other ways eg through regulation? Liability should not be used to make public policy. 33. Members considered this an important division - some things being better dealt with by liability and others by regulation. Monitoring and reflection was an important principle, especially where there are concerns over irreversibility. 34. A cap on liability might be a useful tool to give certainty, by providing circumscribed liability. It would be useful to know how industry would view this approach. Some ‘headlines’ 35. A brief summary of ‘headlines’ could include:
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