Sub Groups

LIABILITY GROUP MEETING
FRIDAY 18 OCTOBER
1 VICTORIA STREET, LONDON SW1

MINUTES

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

Minutes of the previous meeting, on 12 September

2.      Members had previously agreed these in circulation.  They were confirmed.

Matters of report

3.      The group’s liability scenarios consultation paper had been issued on 30 September, with responses asked for by 12 November.  Two responses had already arrived, and copies were circulated to group members.  There were some concerns that the covering letter had not adequately explained the purpose of the scenarios to test the robustness of the current laws and that this omission had caused concern and confusion amongst some of the recipients (notably the science community).  Responses would help in taking forward drafting of the liability report. 

4.      Justine Thornton reported that the United Kingdom Environmental Lawyers Association had held a meeting earlier in the week about environmental liability.  Malcolm Grant had been a speaker, and the event had been an opportunity to raise the profile of the GM debate and of the scenarios consultation.  It would be useful for the liability group to have further dialogue on insurance with the speaker on insurance at that event.  They had been much more positive about the way in which the insurance market could evolve than the people the sub-group had spoken to before, and the sub-group therefore wished to examine this area further.    

Preparation for evidence taking on 5 November

5.      The group discussed the principal areas to focus on with people giving evidence.

6.      The lawyers would be invited to make a brief introductory presentation – of no more than 10 minutes.  The opening order would be Professor Macrory, followed by Stephen Tromans and then Phil Michaels.  After the presentations, the discussion would be opened up to questions to each speaker individually from liability group members.  The group would probably want to ask specific questions of specific people initially, and then open up the responses to all the panel for the last part of the morning.

7.      Areas to cover during the morning included a range of practical issues related to designing an appropriate liability regime, and the limits of liability:

·         the context, including how the practical dynamics of a liability regime work, the problems of allocating rights and responsibilities in disputes such as might arise over cross-pollination

·         how and why environmental liability had emerged as an issue – particularly with Stephen Macrory

·         the proposed EU liability directive - particularly with Stephen Tromans 

·         economic loss, and how it might be redressed - particularly with Richard Macrory

·         the relationship between regulatory and liability regimes - particularly with Stephen Tromans

·         FoE's interest and work in the area of liability, and what seems desirable for the future, including the work they had done on drafting an environmental liability regime - with Phil Michaels

·         how to define damage; how to cover any diffuse damage, including damage to biodiversity, and issues of foreseeability

·         whether an indemnity based regime might be more or less effective than a traditional liability based regime

·         any comments on the scenarios consultation paper

8.      For the social research discussion, Claire Marris would give an opening presentation of about 20 minutes.  The group would particularly like to explore work on how liability is being treated in debates/consultation and in evolving regulations in France, as well as hearing about the PABE study of public perceptions of GMOs in a number of European countries.  Discussing whether the public saw GMOs as different from other agricultural developments in relation to liability and, if so, why.  Whether there were any indications of public reactions to different approaches to liability.

9.      Archie Montgomery, from the NFU biotechnology working group, had accepted the liability group’s invitation to give evidence in the farming perspectives session, with Peter Melchett, Policy Director of the Soil Association.  Members were content that David Hill, a farmer with experience of seed production and the liabilities involved, should also come with Archie Montgomery. 

10. For the discussion on farming perspectives, there would be a short opening presentation of 10 minutes by Peter Melchett, followed by questions, then a presentation by Archie Montgomery and David Hill, also of 10 minutes in total, followed by questions.  Aspects of particular interest included:

·         the focus of the Soil Association's interest, including practical experiences with bringing liability cases to court; how organic standards have been put in place and their basis. 

·         exploring the nature and extent of current liability conflicts between farmers, and between farmers and others – NFU and Soil Association

·         exploring how tolerance and co-existence currently works within and between farms – NFU and Soil association

·         potential ways of obtaining redress / restoration, and of encouraging co-existence in the future: liability and other possible solutions   - NFU and Soil Association.

·         any general reactions to the liability debate and any comments on the scenarios consultation paper – NFU and Soil Association

11. The secretariat would let the speakers have these further details.  Action: secretariat

Discussion of the working document on liability

12. Members discussed areas for the secretariat to develop next in the liability working document/ draft report.

13. A useful starting point could be the introduction, or it could be some of the more technical material, such as description of the current liability regime.  Strict liability should be defined, and distinctions described between civil provisions, where one person pursued a remedy against another, and administrative provisions, where the state pursued the remedy.  The group would take decisions on aspects like gaps in current liability provisions, and the need for/possible elements in a new liability regime, once evidence had been gathered on 5 November.

14. A DEFRA published census could provide some information on the extent to which a range of crops is grown.   Action: secretariat

15. Another area where background research could be progressed was a review of the literature relating to public attitudes to environmental liability generally and GMOs more specifically.

16. The group discussed the ‘difference’ or otherwise of GMOs, and how this would be taken forward in the report.  There might be description of the scientific processes, or more of a focus on outcomes.  Crops on Trial provided a good reference point for descriptions of producing herbicide tolerance.  Questions of ‘difference’ had also been discussed in some detail in earlier meetings.  Sue Mayer offered to write a referenced discussion piece on why GMOs could be seen as different, which other members would find helpful.  Another member might write a complementary note on why GMOs could be seen as producing ‘similar’ issues to other forms of agriculture.  Action: Sue Mayer

17. As well as concentrating on ‘difference’ or otherwise, it could be useful to look at the functions of a liability regime and the current UK and proposed EU legal position on liability.  It could be useful at a later meeting to brainstorm and list some bullet points such as areas of emerging agreement or emerging conclusions. 

18. Members agreed that a substantial report would be needed on liability.  It would be useful to have a short executive summary, possibly supplemented by a longer free standing summary.  (The report on Intellectual Property Rights for DFID could provide a useful model for such a summary.)

19. While there were issues of potential harm to organic farms, it was important to consider potential losses and constraints for farmers more widely.  The general question was about potential reduction in one farmer’s rights or options, which could be caused by another farmer’s choice.  Reverting to the discussion with David Howarth, this turns on who had a right to grow what they chose – who had the property right.  Damage could be defined either by levels of impurity and thresholds, or by the economic loss that might be suffered – the loss of premium.  This was probably a new area of law, with no analogy on which to base expectations.  There was however experience from economic loss in the certified seed industry, where levels were prescribed by statute, and where there was a higher standard, voluntary, ‘HVS’ premium scheme.  Issues had been resolved by goodwill between farmers rather than using a codified system.

20. The group would need to offer conclusions on who should have the right to control what others could grow, where there were potential problems over compatibility between GM, organic and conventional crops.  This could either be based on who had rights to grow, or from setting thresholds, from which separation distances could flow.  A large-scale land zoning arrangement seemed unlikely to be practicable.  A negotiated co-existence regime would seem best - this was a subject the consumer choice group would consider in more detail.  It might be possible to assess a range of different methods of how to reach the outcome wanted.  Imposed solutions were unlikely to be effective – a key to finding a harmonious solution would be to find a set of standards that could be widely accepted.  Tolerance should be a theme, and the law had to operate by consent.  Any solution had also to be robust and long-lasting.   The AEBC report should aim to identify principles which could underlie a long-term regime.  Negotiation could only take place where there was a clear and understood distribution of risks.  If the object was defined as promoting harmony in the countryside, the report should assess what liability can do, and other ways of securing the objective.  

21. The report should cover dispute resolution mechanisms, in addition to court outcomes, since facilitated, mediated, arbitrated, out of court settlements were far more frequent than court rulings.  It could be useful to find out if the Lord Chancellor’s Department had information on costs of taking cases to court, alternative methods of dispute resolution, and the extent to which courts are used eg numbers of cases on public liability issues.  The insurance industry might also have information about dispute resolution.   Action: secretariat.

Liability group remit

22. Members discussed how best to update the group’s remit - which had been unchanged since its inception - in the light of recent discussions within the group and at Edinburgh with the full Commission.  A new remit was provisionally agreed.  This was: “To explore issues of liability in agriculture and the environment relating to GMOs.  To consider whether the existing liability regime is sufficient, to consider whether it needs revision, and to consider whether there are other better ways of addressing potential issues raised.”  Once the terms of the remit were agreed by the group, the website would be updated appropriately. 

Programme for future liability group meetings

23. Members agreed that an additional meeting would be held on Friday 15 November, starting at 2pm, as several members would not be able to manage a group meeting at Eden in December.  This new date was just after the close of the scenarios consultation period.  Dates for meetings in 2003 were confirmed as: 20 January, 27 February and 21 March.

24. The next liability group meeting would be on 5 November.  At the end of evidence-taking in the afternoon, the group would brainstorm key issues which had been raised.      

AEBC Secretariat
October 2002