Select Committee on Environmental Audit Fifth Report



53. Civil liability in the UK liability for environmental damage is currently governed by the normal rules of tort law. For instance the common law tort of nuisance imposes liability where damaging weed seeds are allowed to escape onto neighbouring land, although application of this has yet to be tested in the courts.[96] The UK Environmental Law Association (UKELA) pointed out that the unique characteristics of biological agents are likely to cause problems for establishing proof of harm and causation.[97] Specific provisions governing liability for damage caused by the release of GMOs have been the subject of debate in both an EC and international context.

54. The European Parliament has proposed an amendment to the Deliberate Release Directive to include such provisions with a related requirement for sufficient liability insurance to be held by those "legally responsible for deliberate releases of genetically modified organisms". This is described as an incentive for industry to ensure the safety of their releases.[98] The report notes that in 1989 the Commission promised development of a general proposal on liability for environmental damage throughout the EU (including GMOs) but, despite a Green Paper in 1993, no proposal had been tabled.[99] In addition to the European Parliament's initiative we note that the question of the liability of the State for (negligent) decisions made by its regulators also needs to be considered.[100] The issue of liability was also discussed in the context of the negotiations on the Biosafety Protocol and proved contentious.

55. Mr Meacher told us that the Commission was working on a White Paper on the overall situation but that it might yet be "several" years before agreement is reached.[101] The Government wrote that it was considering the need for specific provisions in the light of what it saw as a balance between concerns about biotechnology (and calls for secure liability measures) and the achievement of rapid progress on the Directive in question.[102] On grounds of promoting public confidence alone we see merit in the inclusion in the Deliberate Release Directive of specific provisions for the liability of those with responsibilities for the release of GMOs that cause environmental damage. We note that with the farm-scale trials due to begin this year large-scale releases of GMOs are set to occur. It appears important that legal certainty is established over responsibility for damage as soon as possible. We further recommend that the UK seek agreement within the EU for a provision on liability to be part of the EU's mandate for further negotiations on the Biosafety Protocol.

96  Appendix 9, paragraph 7 Back

97  Appendix 16 Back

98  Report on the proposal for a European Parliament and Council Directive amending Directive 90/220/EEC on the deliberate release into the environment of genetically modified organisms (COM(98)0085 - 98/0072(COD)), Committee on the Environment, Public Health and Consumer Protection, 28 January 1999. Evidence from Friends of the Earth states that this proposal has been rejected by the Commission (Appendix 4). Back

99  Ibid, Opinion, Committee on Research, Technological Development and Energy. Back

100  Appendix 16 Back

101  Q392 Back

102  Ev p63 Back

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Prepared 13 May 1999