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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 PresentProfessor Philip Dale Dr Matthew Freeman Mr John Gilliland Professor Malcolm Grant Dr Derek Langslow Dr Sue Mayer Ms Justine Thornton (Convenor) Dr Roger Turner Secretariat Ms Anne Packer Initial discussions: Minutes of meetings on 18 January and matters arising from Brussels discussions 1. Justine Thornton identified some main points arising from the meetings in Brussels for members who were unable to go. Issues for the AEBC report to address would include:
3. Members considered that the meetings in Brussels had been valuable and thanked the Secretariat for effective organisation of the visit. 4. Phil Dale asked for ‘consolidation’ and ‘climate’ in paragraphs 9 and 11 of the meeting with EuropaBio in Brussels on 18 January to be clarified in the minutes. Action: Secretariat Discussions with Sid Gibson, NFU Mutual 5. Justine Thornton welcomed Sid Gibson to informal discussions with the group, and explained the background to the AEBC liability study, including earlier discussions with the Association of British Insurers (ABI). Sid Gibson is an underwriter with the NFU Mutual, which specialises in agricultural insurance; he has 30 years’ practical experience. 6. Sid Gibson said that NFU Mutual had started to consider insurance and GMOs a few years ago, at the start of the Farm Scale Evaluations (FSEs). Particular issues for farmers at that time included access, possible damage to crops by protesters and protection of farmers’ assets. Looking at the general issue of farmers’ liability, NFU Mutual sent out a circular with underwriting guidance on potential liability issues. As the FSEs are research and development work, NFU Mutual consider biotechnology companies should - via contracts – take on any liability, so they have applied an exclusion to their policies, since summer 2000, to clarify an existing exclusion on pollination and contamination. NFU Mutual has said it will review the position once the final FSE results are known. 7. Members asked how frequent claims from one farmer against another were. Sid Gibson was not aware of any such claims, but would check and let the group know. There is an overarching exclusion for pollution or contamination - Sid Gibson would let the group have a copy of the policy wording. (Claims from crop spraying, however are fairly regular, and are based on sudden and unforeseen contamination /damage.) 8. Members asked about a scenario where a farmer might have an economic loss: could that be covered eg if an organic crop lost its premium price because of GM presence? Sid Gibson said there was no general cover for economic loss in the UK. The only way a farmer could cover this would be to take out all-risks insurance for a crop. Such crop value insurance is currently only available against hail. In the USA for example it is common to insure crops against disease, loss of yield etc. These insurances are heavily subsidised by the US Government – to about 80% of the total. Sid Gibson had information on these schemes, on schemes in Spain/ Portugal, and contact details for a specialist broker for agricultural crop insurance, and he would send this to the secretariat. With the same scenario, if the organic farmer could trace the cause, could he be indemnified to sue a neighbouring farmer? Sid Gibson said that legal liability insurance would not cover this, but that in theory it could be covered using legal expenses insurance cover, if the insurance company agreed there was a reasonable chance of success with a case. Legal expenses cover is however a small market in the UK. Sid Gibson said that insurance companies do provide ‘loss of licence’ cover for publicans, and that something similar might be relevant for organic and other farmers. 9. Members said that AEBC’s focus would be co-existence between farming types if GM crops were commercialised, and agreed that up to now there has been considerable give-and-take among farmers on a variety of co-existence issues. 10. Sid Gibson thought that it would be useful to have protocols between the biotechnology company and farmer, for farmers to work within. There would be substantial problems in dealing with issues like this through the legal liability route, and relying on courts. Development of first party insurance could be a better approach. 11. In answer to a question about how to pool/ share risk among farmers. Sid Gibson commented that there has been work in Europe on crop insurance, particularly in Germany, and that there are parallels with ongoing DEFRA work on livestock. With crops there might be less incentive than with livestock for a ‘whole industry’ crop facility. He was unsure whether crop associations would be positive about contributing to a pool or levy. He said there were no discussions in the UK and no appetite in the UK for overall first party crop insurance. Farmers’ unions would be much against taking on any additional costs, and such schemes would put additional pressures on the margins for farmers. 12. In answer to a question about the extent to which the insurance industry was primarily reactive or innovative, Sid Gibson said he considered that it largely reactive. Environmental impairment insurance is an innovative example, but has not yet really got off the ground. 13. Making insurance compulsory would not be the answer for a number of reasons.
Raising the profile of liability issues 15. Members discussed suggestions, which had been explored with the press office, to raise the profile of liability issues. As arranged some time ago, ‘Environmental Liability’ journal had recently published an article by Justine Thornton. Further articles might be written if newspapers and journals were interested, and if members considered it useful to stimulate a debate. In conclusion, and since it appeared that a second round of articles in professional journals might not be feasible for some considerable time after initial articles, members decided that the most helpful timing and purpose of articles would be as a sounding board to test out the group’s emerging conclusions. Wording would be agreed by the group in advance. This would mean postponing articles for a time until the group was further on with its work. Articles associated with AEBC should have agreement from the relevant sub-group or the Commission in advance, as appropriate. Meanwhile, and as previously agreed by the full Commission, this certainly did not preclude individual members writing articles with tact and sensitivity in their individual capacities, without reference to AEBC views. 16. The group might also consider arranging a meeting with stakeholders as conclusions start to emerge, as a sounding board for direct feedback, and would consider how the subject links to debating co-existence. Draft report outline 17. Members discussed the draft outline structure for a report, which had been circulated by the secretariat before the meeting, and concluded it provided a useful framework. Some points for future development were:
20. Justine Thornton asked members if there was tentative agreement to two points:
22. There were four main potential ways for causing economic loss by mixing genes when crops were grown, in addition to any non-compliance with separation distances. These were:
24. The group now had a good understanding of insurance issues. Members would discuss strict and fault-based liability at a meeting soon. The report would describe the draft Directive - the aspects it covers, and those it doesn’t, with reflections on which these were and why the European Commission had decided to exclude them. AEBC conclusions might be different, but it would be useful to understand the thought processes involved in Europe. Next meeting 25. Before the next meeting, the secretariat would expand and circulate a revised outline draft of the report. Action: Secretariat. 26. Members decided that it would be useful to meet members of the biotechnology industry, for example to discuss their views on having a compensation fund. Roger Turner would ask industry people if they could meet the group on 25 April. Action Roger Turner, secretariat 27. Dates for group meetings in London were confirmed as 19 March and 25 April. The meeting on 19 March would now start at 11.00am, and David Howarth would have discussions with the group from 11.30am. Justine Thornton would be away, so another member would chair the meeting. AEBC Secretariat March 2002 |
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