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Agriculture and Environment Biotechnology Commission (AEBC) | |||
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LIABILITY SUB GROUP MEETING Note: These are the views of the sub-group, not necessarily of the full Commission PresentPhil Dale Matthew Freeman John Gilliland Malcolm Grant Derek Langslow Sue Mayer Roger Turner Anne Packer (Secretariat) Graham Davis (DEFRA) Apologies 1. Justine Thornton was away and had sent her apologies. Discussions with David Howarth, Department of Land Economy, University of Cambridge 2. Sue Mayer, convening the group for this meeting, welcomed David Howarth from the Department of Land Economy, Cambridge University, to informal discussions. David Howarth talked to the group about issues associated with liability and GMOs, using slides on the theme ‘Law, Economics and Justice – An Agenda’. A copy of the text of these slides is at Annex A. 3. The focus of his talk would be on private law and civil liability, that is where the claimant is a private party. This contrasts with the approach of the European draft Directive in which the plaintiff would always be the Government of a Member State. In looking at economic issues concerning the conflict between GM and organic farming, much hinges on the accreditation rules. These are related in indirect ways to consumer preference and trade association decisions, but it is difficult to assess the strength of the linkage. The conflict between a GM farmer and an organic farmer can be conceived of as a problem concerning the use of someone else’s property. It is useful also to consider the situation in reverse – that organic farmers could be thought of as using their neighbour’s land in a specific sense. There are analogies with the old issue of fencing in versus fencing out cattle from land. In discussing whether it should matter who got there first, David Howarth said common law is not interested in this: who got there first is thought of as essentially arbitrary, and a bias to the status quo is not necessarily appropriate. Though it might be difficult to apply reversal in practice, in principle it is highly relevant. 4. There would be a range of possible remedies via civil courts. It is important to consider not just granting an injunction to deal with the future and damages to compensate for past losses. It might be possible, for example, to order damages without issuing an injunction (or to issue an injunction only on condition that the victim pays compensation to the polluter). With damages measures, if there were an injunction damages would be oriented to the past ie be backward looking, while if there were no injunction, damages would be oriented to the future. The concept of reciprocity, namely confronting each side with the consequences of applying to itself the rule it wants to impose on the other side, could be an interesting way of encouraging dialogue, though not necessarily of predicting outcomes. 5. In discussion, members said they valued the challenging approach of looking at situations reciprocally; David Howarth commented that it could be said that there were no public interests beyond the interests of reasonable people. Members commented that issues were not simply based on organic and GM farming – for example the majority of farming would be conventional rather than either organic or GM and for oilseed rape it would be conventional non-GM production which would be most likely to be affected. They asked how the division of rights would be influenced by any thresholds that might be set by Government. David Howarth said that in both BSE and foot and mouth the Government has both set standards and paid compensation, and that this might provide a possible model. 6. Members said they would probably need to look at damage to environmental goods going beyond traditional damage – aspects of the latter might be quite well covered by civil law. David Howarth said his forthcoming article in the Washburn Law Journal discussed areas that can’t be dealt with by civil liability, eg known interests of unknown people in the future, which include biodiversity. Civil liability depends on a victim both being aware of harm and acting – when this was not applicable there might be a need for more direct state action. Members discussed possible diffuse issues, where it could be virtually impossible to prove causation - David Howarth said that when there was no way to attribute costs or causation, general taxation was a fall-back. A court in California had adopted the approach of ‘market share’ liability, with costs in proportion to market shares. This possibility had not been explored in Britain since group actions have not been possible until recently and were still not full class action suits in the US sense. 7. Members thanked David Howarth for his very useful contribution to the group’s understanding of the issues. Raising the profile of liability issues 8. Members confirmed as agreed at the previous meeting that any future articles to raise the profile of liability issues, associated with the AEBC should have advance agreement from the sub-group. Discussion 9. Members agreed that the afternoon’s discussion would focus primarily on:
11. European environmental liability legislation would be limited both in content and in geographical areas covered. The group would want to consider how to link that to what would be needed in the UK. In terms of timescale, European legislation would take a number of years, and any UK domestic legislation would also take time, whereas decisions on any commercialisation of GM crops following the completion of the FSEs would probably be on a faster timescale. 12. Members concluded they would not consider GMOs as very different for liability from conventionally bred varieties or other forms of intervention which could be damaging, and thus the issues on liability needed to be seen from that perspective. While GMOs posed new issues, so did other agricultural technologies and a regime which covered all hazards to the environment might be most appropriate. If there were damage, methods of redress could be more important than the way the damage occurred, and the group would consider how an existing regime could deal with novel kinds of damage. 13. Members agreed that the tolerance threshold would define what is described as ‘damage’, in the case of economic harm, and agreed they would consider how to approach the concept of ‘novelty’, which would include other agricultural technologies to develop new crops and foods– the approach used in Canada. (The approach to novel foods in the UK of not previously being used in Europe would probably not be appropriate for liability.) It was noted that the group would need to consider its conclusions carefully alongside concerns over introduction of GMOs, and consider the issues in context. Next steps and next meetings 14. Members agreed that it would be useful to develop scenarios to provide more specific examples to test out some of the principles, covering both economic and environmental aspects, and including unforeseen effects and complexity. The secretariat would work up some possible scenarios for initial discussion at the next sub-group meeting, and members would pass on any suggestions for inclusion to Anne Packer. DEFRA might have be able to help with an input on these. Action: Secretariat 15. It could be useful to have an evidence taking session. The group would want to be clear about the objectives and from whom it wanted to take evidence in a more formal way than up to now. 16. Before the next meeting, the secretariat would draft a short discussion paper drawing out the big issues and main principles debated by the group and emerging conclusions. This would provide the basis for a discussion paper for the full Commission. The secretariat had expanded and circulated the draft outline structure for a report in the light of the recent full Commission meeting. The secretariat would subsequently expand and circulate a revised outline draft liability report. Action: Secretariat 17. As arranged at the previous meeting, Roger Turner had been in touch with biotechnology industry contacts to invite them to the next meeting of the sub-group on 25 April. The secretariat had followed that up on behalf of the group by writing formally to Stephen Smith at the Agricultural Biotechnology Council, to invite him and colleagues to discussions at 11.00am. 18. The next sub-group meeting date was confirmed as 25 April, starting at 10.30am. That would be followed by the full AEBC meeting in Cardiff on 9-10 May. AEBC Secretariat March 2002 ANNEX A: Text of David Howarth’s slides GM and Liability Law, Economics and Justice An Agenda The Organic Farmer Problem
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