Examination of witnesses (Questions 120
- 139)
TUESDAY 18 JULY 2000
BARONESS HAYMAN,
MS SARAH
HENDRY, THE
RT HON
MICHAEL MEACHER
and DR LINDA
SMITH
120. They told us that they use this PCR test
but there appears to be a bit of a scientific debate about which
is the best and the right test. Which is the test that the Government
approves of?
(Dr Smith) The Central Science Laboratory are, at
present, deciding which test methodology is going to be the most
appropriate. The CSL do carry out a large number of tests on GM
material. They do it for food testing under the food legislation.
So they have the capability and they are devising the best way
to carry out this sort of testing.
121. Is all this material going to be made available
to scientific peer review so that everybody knows what is going
on in this obviously sensitive field of science?
(Dr Smith) Certainly the work the CSL do, for the
contract with DETR, the information is made publicly available.
122. My final question to the Minister. He was
very clear indeed—if I understood him and please correct
me if I am wrong—but I got the feel that Advanta should
not really have imported this seed and that checks should have
been carried out to ensure that this did not occur. Have Advanta
broken the law, perhaps inadvertently, by bringing this seed into
the United Kingdom?
(Mr Meacher) If a seed importer introduces a seed
into this country, which subsequently turns out to be contaminated
with some GM construct, and if they then sought to market it,
then because, as we have already said, there is a zero level,
a zero threshold, that would be against EU law, yes.
123. So what happens now?
(Mr Meacher) We are looking at the full legal implications
of this. That is as far as I can go.
Mr Jack: Okay.
Chairman
124. They are looking at the implications and
you are looking at the implications, so the lawyers are, at least,
going to have a jolly time in the next few weeks, are they not?
(Baroness Hayman) I was only going to try and follow
up something about Mr Jack's line of questioning. This has illustrated
an issue that we are going to have to deal with, if this is within
the Seeds Directive, because conventionally seed purity and assurances
about seed purity have been developed on the basis of production
methods rather than spot testing—assurances about different
processes in the seed production—and that has given certification
for imports. Now if there is—and what there has been has
given assurance as to quality and purity—but if there is
to be a different standard around GM, it may well be appropriate
for there to be a different regime in terms of enforcing that
particular regulation. That is one of the issues that will have
to be looked at in the legislation, which we are looking at, for
the future.
Mr Jack
125. That is very helpful. Are you still confident,
in the light of that important and potentially scientific and
quite complex description you have given us, that Europe, with
its labyrinthine ways of cross-consultation, will be able to resolve
a fundamental change of establishing a purity question on seed
by the end of the year?
(Baroness Hayman) I do not want to change the answer
that I gave you earlier, which was my understanding that this
was the intention. I do think we have to look at the interaction
of legislation on deliberate release into the environment of GMOs,
and the labelling requirements and the purity requirements in
terms of food or seeds or anything else. One of the difficulties,
as I said earlier in this, was that the deliberate release into
the environment is ipso facto an absolute offence, but
in terms of enforcement action we go back to this issue of whether
you could destroy the crop. There has to be grounds in terms of
risk to health and the environment. That is a difficult regulatory
framework in which to operate. I do believe, at a European level,
there needs to be some dovetailing of the legislation which has
gone on on different planes and at different times.
Mr Drew
126. Just an observation on that. Certainly
the evidence by Advanta in their memorandum, states quite categorically
that on 25 April they felt the DETR had said, did give them the
impression, that there had not been any offence committed. That
is something which clearly there is a disagreement over.
(Mr Meacher) We will take issue with that statement
in the Advanta evidence. This was, I understand, a phone call
that Linda Smith, beside me, held with a representative of Advanta.
It is probably best to ask her to respond to that.
(Dr Smith) When Advanta came to see me and my colleagues
from MAFF on 17 April, we did not have one of our lawyers present
at the meeting so we discussed at that meeting what the legal
circumstances were, as best we could in that meeting. I had undertaken
to go away and consult my own lawyers in order to be able to discuss
the legal circumstances with Advanta. So after I had had this
conversation, when I was given the information about the further
tests from Canada, we then discussed the circumstances in which
an offence would arise under the legislation. That is what I discussed
over the telephone: what somebody would have to do in order to
commit an offence under the legislation. So the legislation says
that you would commit an offence if you released a genetically
modified organism, that did not have a consent, and you did so
knowingly. That is the circumstance of this discussion. The representative
from Advanta could then slot that into understanding what they
had done. There was no further conversation than that.
(Mr Meacher) I wanted Linda to say that because she
was the person who had the telephone conversation, but it is quite
clear that as the Advanta memorandum is written, it is not true
that the conversation indicated that no offence had been committed;
simply that the basis for the commission of an offence was established.
The further statement that no further action will be taken was
not, I understand, stated. Certainly nothing that would suggest
that there might not be a prosecution. There is no suggestion
that there would be, but there was no suggestion that there would
not be.
127. May I take us then on to the issue of regulations.
We have danced around it and maybe we have covered it in sufficient
detail, but so that it is absolutely clear for the record. If
the general public make—whoever the general public may be—a
clear decision that they wish their food to be non-GM, can we
put a regulatory regime in place? (Retrofitted because obviously
we are talking about flows of seed from one year to another.)
Is it possible to put a regulatory regime in place in this country
and in Europe to allow that to be the case? That is clearly something
that we need to know.
(Mr Meacher) Let me start off. We are concerned that
the regulatory framework needs to be tightened. It is perfectly
clear from all the discussion we have had this morning, that in
terms of the Seeds Directive with MAFF responsibility, we are
looking for greater clarity at an international level. With regard
to the DETR responsibility, which is the conduct of the field-scale
trials, we also believe that there needs to be a tighter regulation,
which we have been seeking through the provision of 90/220. The
Environment Council has reached a common position on it. The European
Parliament has put forward a number of significant amendments
and it is likely that there will be the normal conciliation process
over the course of the autumn. Obviously, we welcome that. I should
say that the revised 90/220, I think, is an important measure.
It is not marginal. It does, for the first time, standardise the
risk assessment; and I have to say that whereas I think we are
pretty stringent in this country, it is not always the same across
the EU. So it is important because we could be the recipient of
products from them. It lays down the requirement for post-market
evaluation, so that is not just monitoring up to the point of
sale, but beyond. It removes antibiotic marker genes for well
understood reasons. I think that could compromise the effectiveness
of antibiotics for medicinal purposes. It lays down time-limited
consents, in this case ten years. There are a number of other
measures about verticalisation; equivalent legislation; all of
which seeks to give greater clarity to the industry. This is the
reason why I think the industry welcomes it, and at the same time
gives greater protection to consumers. So it is very important
that we get that measure into place as soon as we can. The one
issue, which I think is still lacking from it, is the whole issue
of liability, which is a very important issue. At the informal
council, which was held in Paris over this last weekend, which
I attended, one of the results of the discussion—I have
to say this was not a negotiating session, not a formal council,
but at an informal council, where Dominique Voynet, my opposite
number in France, decided to have a focused debate on her attitude
to this whole question of GM—there was agreement by the
Commission that they would come forward with further tighter proposals
on labelling and traceability and on liability, as a basis for
looking again at the question of the issuing of marketing consents.
So all of this, I think, is good progress. When I come to your
specific question: can we have a regulatory framework which will
guarantee that there would not even be trace elements? I think
the honest answer has to be that we cannot. In these islands,
which are so small and where 60 million people live, as compared
with the prairies of North America, where they have GM here and
hundred of miles away they have the rest of the biodiversity and
conventional crops, they can do that. We cannot, or probably elsewhere
in Europe. What we have to do is to ensure that those elements,
which I call trace elements, are of the minimalist kind. What
those acceptable thresholds are to our consuming population, I
repeat, is something that they should have a major say in deciding.
Zero is probably impossible but whether it should be 0.1, 0.5,
1 per cent or whatever is, I think this is a very important issue
for public debate, in which the consumer must have a serious,
informed and effective voice.
Chairman
128. What do you think?
(Mr Meacher) As I have already said, it is not a matter
for Ministers or for officials. It is for the consuming population.
My view, as the Environment Minister, is that it should be the
minimum that we can control. I think the O.1 per cent, if that
is practicable, is probably at the kind of level which would satisfy
consumers. My view is only just one of 60 million people in this
country. It is not a matter for Ministers to lay down, set down
an edict, and thus it will be. I really mean it when I say that
the consumer should have a voice.
Mr Drew
129. May I hear Helene's response to that. Then
I will come on quickly on the back of what Michael has to say
on product liability.
(Baroness Hayman) I think Government can put in place
within the European framework, because it has to be European,
a labelling regime and a system of tolerances that feed into that
labelling regime, including definitions of "GM free",
which we have not yet got, that enables consumers to make their
own choices. As long as you have a framework at a European level
that allows for the approval of GM crops or food after very strict
assessments, if crops and food go through those assessment processes,
and if we have no evidence about harm to health or the environment
in order to create a barrier to trade, then my understanding is
that we are bound by those rules. Now that does not make anyone
have to buy a product they do not want to buy, but the existence
of a framework for approving crops or foods that contain GMOs,
presupposes that this is the regulatory framework; so I would
not want to mislead you in the sense of the ability to act unilaterally
without any evidence of harm. That is why I think it is very important
that we understand, for example, the effects on biodiversity of
crop production in this country, because the attitude that people
might have in the prairies to growing something could be quite
different from the attitude that we have here because of the effects
on the biodiversity. If we had the evidence on that, then we could
take appropriate regulatory action.
130. May I come back quickly on the product
liability issue because clearly, to my mind, regulation is really
only as effective as the people testing and trialling and so on.
Clearly product liability does put the obligation of those who
produce, distribute and so on to be accountable to what they say,
what is the label on their particular food. Now clearly with product
liability we want it in yesterday because that would significantly
help. Can you foresee, if consumer pressure is such, that consumers
will want to take—maybe their own legal action—where
they buy GM food according to the label and it is proved subsequently
that it is not GM free? Clearly, product liability is crucial
to that and something that we must want to see as soon as possible.
(Mr Meacher) I am in favour of it for the reasons
that you have given. On behalf of the United Kingdom I put down
a minute statement at 5.30 in the morning, concluding our discussions
of the revised 90/220, and asking the Commission to go away and
come back with a specific environmental liability provision with
regard to GMOs. The Commissioner, of whom I have great respect,
takes the view—or at least until the informal council this
last weekend has taken the view—that it should be covered
by a cross-cutting environmental liability provision, which would
apply not just to GM but for the whole range of environmental
damage from whatever source. It is her intention to produce a
statement, a White Paper, a communication on this, by the end
of next year. I might say this has been under discussion for something
like ten years. Even so, that is quite an ambitious target, given
the range of it. The problem, as I have indicated to her, is that
countries like the United Kingdom have a problem in the meantime.
Her response is, "Well, you have your national provision."
The national provision turns out to be the common law in respect
of the tort of nuisance, which the Victorians formulated 100,
150 years ago, rather a long time before GMs were ever thought
of and, of course, are not directly applicable. There is the famous
case of Rylance v Fletcher which deals with this. In answer
to your question, will consumers or public interest groups like
the NGOs, if they have the power to do so, will they take action
in the courts where they find that they have not bought the product
that they expected? That is clearly possible. They would, of course,
under the current law, have to show harm, not simply that they
were sold something slightly different from what it said on the
label. They would have to show not only was that true, but they
suffered some harm as a result. Now I believe that there will
be a testing of this in the court before long. That would be my
expectation.
131. Very quickly, my final point. The industry,
according to Advanta, welcomes product liability. Does that help
the speed by which this can be put in place? If the industry is
itself saying, "We want regulation, we want product liability,"
one wonders why it is taking so long. Obviously, there are a lot
of legal niceties to be gone through, but one would have thought
that this is something which needs to be moved at the speed of
lightning.
(Mr Meacher) I agree with you. I strongly agree with
you. If Advanta have said that, then it must be helpful. I can
see that the industry wants clarity and certainty and stability.
The problem is that it has fallen between a number of stools here.
Should this be UK legislation, which would be rather odd when
the Commissioner has indicated that she is bringing in a wide-ranging,
across-the-board environmental liability provision to cover all
environmental damage. There will be resistance, I understand,
in that situation, to bringing in our own UK law. On the other
hand, is that overriding provision going to be able to deal in
quick enough time with a problem which is acutely pressing in
this country?
132. The problem is that even if she does produce
this document by the end of next year, we estimate that it could
take between three to five years before it is made law and transposed
into national legislation. I am concerned about that gap. I am
still very concerned about it.
Chairman: Whilst we are talking about the speed
of lightning, we will go over to Mr Opik.
Mr Opik
133. Dealing with it in terms of the environment,
if there is a non-zero threshold and there does turn out to be
a problem with GM in the environment, what do we do then?
(Mr Meacher) That I think is exactly what Mr Drew
has just been questioning me on. What legal redress is there for
someone who has been sold a product which was not what they expected?—I
think this is what you are saying—the level of threshold.
134. I am not really looking at it from the
public point of view. I am looking at it from the ecological point
of view. What happens if we set a non-zero threshold? Therefore,
there are viable plants out there which are probably cross pollinating,
and it turns out that there is an ecological problem?
(Mr Meacher) If the result of the farm-scale trials
is that the null hypothesis—which is that there is no difference
in impact on the environment from the use or management of GM
crops, applying particular herbicides; no difference from that
which is applied to conventional crops—if that null hypothesis
is not proven, then we would take action to prevent the commercialisation
of GM crops. Now we would have to look at exactly what that evidence
was. Whether it required a modification. Whether there was serious
damage which was endemic in the use of GM crops or the management
of those crops. If there was, we would certainly prohibit further
commercialisation of GM crops.
135. Has the Government made any contingency
plans—I accept this is unlikely—were it to find that
GM product crops were damaging the environment? Has the Government
thought about how it would close the stable door after the GM
has bolted?
(Mr Meacher) If you are saying to me that this voluntary
agreement is not sufficiently continent, in the sense that the
isolation distances to contain the GM impact on the environment
is not secure and sufficient cross-pollination takes place, my
response to that is that I do not believe that those effects are
on a scale which does cause at all significant damage to the environment,
but in order to be very careful, that is why MAFF are carrying
out their review of our isolation distances. If we can reduce
what is already an minimal impact even further, we will certainly
consider that.
Dr Turner
136. If I can return briefly to this issue of
acceptable levels of GM content, and initially concentrate entirely
on where the GM content is known to present no danger to human
health, and is also thought not, on available evidence, to be
of any likely harm to the environment: concentrating on that mix,
that does not seem to be a very rational reason for fixing 5 per
cent, half per cent, 0.5 per cent, or any other figure. Is that
the case or does the Government have a view as to how we should
arrive at a figure; and should this be plucked from the air?
(Mr Meacher) As I have indicated my view, and it is
only my personal view, is that there has to be—
137. I was asking for a Government view. If
we are going to negotiate in Europe and this is a European discussion,
are we waiting for someone to tell us or do we have a view?
(Mr Meacher) We have not had the systematic discussion
about the threshold level for seeds, the 0.5 per cent that Baroness
Hayman referred to, we are in the process of having that discussion
but we have not had a formal discussion as such about that. We
have already had the agreement of the Agricultural Council to
a one per cent labelling requirement and, of course, one asks
do the buying, consuming populations throughout the EU understand
and accept that? I do not know the answer to that. Do they realise
what those provisions are? Do they find them wholly acceptable?
You are asking if it is a GM construct which is not required either
by ACRE or ACNFP as a risk to health or the environment, should
we worry about what the level is? My answer to that again is that
is a matter in which consumers should have a say. The problem
arises—this is at the back of so many consumers' minds—that
Government has in the past in good faith stated there was no risk,
a classic example of this was BSE and CJD, and they were wrong.
I think consumers understand that they want that risk, therefore,
to be minimised because 15/20 years down the track there can be
no-one scientifically or technically who can be absolutely certain
of the results. That is why they want to have—
138. If you ask somebody what do they want,
they will say "We will have it pure. What level of mix do
we want? Zero". I know as a former scientist that if I wanted
99.999 per cent gold I paid a different price than if I bought
a nine carat gold ring. We normally have mechanisms where the
market is allowed to determine. We have that, for example, in
organic produce where the consumer, through the marketplace, can
in fact show what the costs are. Advanta's evidence to us is if
you insist upon .001 certainty you are talking about testing,
millions of tests on every batch of seed and clearly there are
cost implications in driving towards the zero figure which the
normal public would simply pluck from the air. Does there not
have to be a mechanism where the public can, in fact, vote through
the marketplace and if something is going to be called GM free
that may be a much higher standard and the public would have to
pay to buy it than if the public were not so concerned and were
willing to accept two per cent or something of a mix of something
which is thought to be publicly safe? Is there not a mechanism
which we ought to be looking to which is market driven?
(Mr Meacher) I have spoken at length about this, Helene
can answer.
(Baroness Hayman) I agree with that and that is why
I bang on about the need for definitions of GM free as well as
the need—
139. Can I return to my first question.
(Baroness Hayman) As to what the tolerance should
be.
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