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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 607-ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE ENVIRONMENT, FOOD AND RURAL AFFAIRS COMMITTEE (GM PLANTING REGIME SUB-COMMITTEE)
Monday 24 May 2004 PROFESSOR MALCOLM GRANT MR ELLIOT MORLEY MP and DR LINDA SMITH Evidence heard in Public Questions 105 - 223
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Environment, Food and Rural Affairs Committee: GM Planting Regime Sub-Committee on Monday 24 May 2004 Members present Mr David Drew, in the Chair Ms Candy Atherton Patrick Hall Joan Ruddock Paddy Tipping Mr Bill Wiggin ________________ Memorandum submitted by the Agriculture and Environment Biotechnology Commission Examination of Witness Witness: Professor Malcolm Grant, Chair, Agriculture and Environment Biotechnology Commission, examined. Q105 Chairman: Professor Grant, welcome. You are a regular recidivist for both the MAFF Select Committee and the Defra Select Committee. You know what we are trying to ascertain and we will obviously call upon your expert knowledge to help us do so and, as is usually the case, you are the precursor to the Minister, who I am sure will be very keen to read, if not to hear in person, what you have to say. Not everybody is completely au fait with what AEBC does and stands for, so could you tell us in a few sentences where the body is at and who is represented on it? Professor Grant: By all means, Chairman, and thank you for the invitation to appear before the Committee this afternoon. The Agriculture and Environment Biotechnology Commission was set up four years ago with a wide range of members in an attempt to provide the government with an expert commission who could give it strategic advice on the potential implications of biotechnology for agriculture and the environment. It is a twenty strong commission; it has membership from a group of different communities who have interest and experience in biotechnology matters including from NGOs, from the farming community, consumer representation, and from the industry, but the critical thing about it is that its members are not there to represent foregone conclusions but to participate in an intellectual argument, such as you will see in the coexistence and liability report that I know the Committee has read, to try to bring the government some profound, or at least, worthwhile advice. Q106 Chairman: That is very succinct and helpful. If we could start then with the issue of tolerance, or dare I say thresholds, there is at least from the evidence we received last week some criticism of these thresholds. One could advance the case that there is considerable confusion even amongst the aficionados on both sides of the argument; I suppose there is also a possibility that people could advance a view that there is a bit of a fudge going on; that we really want to talk about GM free, for those who wish to be assured that that is the case of what they are eating but in reality no such thing exists, or the industry says no such thing exists, so we start with this 0.1 per cent threshold, and that really is a very difficult figure to make sense of so we get to this 0.9 per cent threshold over which a label which you cannot guarantee is GM free will so be ascribed. Can you give us some clarity on what is going on with these thresholds? Professor Grant: I can come at it from two different angles. One is this is an issue that exercised the Commission for quite a long time. If you come at it from a general public policy perspective, the arguments that tended to divide our members related to the use to which the thresholds were being put, because in our conversations that use was around the prospect that compensation might be paid by one party to another if the threshold were exceeded as a result of growing a GM crop nearby, and the economic framing of the question therefore resolved around on which party it was most equitable to impose that burden. Was it on the party who wished to maintain an entirely GM free output, whether that be organic or other agriculture, or should it be on the party who was introducing a GM type of agriculture into the area which was having an impact on the other, and according to those arguments one could find a range of potential thresholds from nought or, as it is commonly interpreted in practice 0.1, per cent through to a higher threshold. The second line of approach that we adopted, however, started to emerge from the threshold of 0.9 per cent that had been adopted in the food and feed regulation last September, and it is around that area that I think there is some confusion. The regulation in Article 12 and Article 24 talks about "adventitious or unavoidable presence", and I know that an argument has been raised with this Committee that that means that, if the presence is avoidable, then the true threshold should be zero, in other words it should be an obligation on the part of those seeking to market the produce to ensure that there is zero threshold, or else I assume that the product is labelled accordingly. I have not had the advantage of seeing the legal advice on which that view is based. I would, though, I think draw to the attention of the Committee a couple of other provisions of the regulation. One is in the recitals at the beginning, Recital 24, which stresses that "a threshold should be established for the adventitious or technically unavoidable presence of GM material in foods and feeds both when the marketing of a material is authorised in the Community and when the presence is tolerated by virtue of this regulation". The recital seems to be saying that such material may be present in minute traces in conventional food and feed as a result of adventitious or technically unavoidable presence during seed production, cultivation, harvest, transport and processing, and it may be possible to read into that that the 0.9 threshold is intended to be a tolerance. Where the presence of the material is avoidable, in other words it is under the control of the producer, then there is an obligation to take reasonable or appropriate steps to avoid it, but where it is adventitious, which may mean that it is as a result of cross-pollination or as a result of contamination through the production process due to the acts of others, then it seems to me that it is at least arguable that it is adventitious that the 0.9 per cent becomes a threshold. I would just add to that a brief reference in Article 43 to an amendment that the food and feed regulation makes to the main Directive No 18/2001 on deliberate release to the environment, when it puts the obligation on Member States to take appropriate measures to avoid the unintended presence of GMOs in other products and requires the Commission to gather and co-ordinate information and to develop guidelines on co-existence. If that line of argument is correct, it suggests certainly to my mind that 0.9 per cent is a level of tolerance for adventitious reasons, but should it be a presence that is due to the acts of the person bringing the product to market then appropriate steps should be taken to reduce the GM content. I do not know that I can help the Committee further than that. Q107 Chairman: That is very useful. We will have to look at that in contextual analysis because some of us will want to unpick it, but what you are saying at least gives me some fear that the only people who really will ever gain from this are the lawyers, because there is always going to be a tendency for someone to talk about an accident adventitious escape of the GM materials and the real difficulty is tracing this back. If I could link this to something which has not had due attention paid to it, which is the non farm likelihood of the transfer of GM materials - whether in the form of transport material, the use of equipment - this is really going to open up a bit of a can of worms. I know it may be that this is already the case because an organic farmer could be facing this threat at the moment from conventional crops, but there does not seem to be the same sensitivity as you in your four years lying on this bed of nails will realise is likely to be opened. How do you see this potentially going? Professor Grant: I should start by declaring an interest as a lawyer -- Q108 Chairman: We did not want to remind you of your previous incarnation! Professor Grant: -- but I do not think it is the only profession that is likely to benefit. One of the complexities, as we set out in one of the annexes to the report, is that of testing, and the inherent unreliability of some of the methods of testing, and the expense of the PCR method which is probably the least unreliable of all of them. What we have been anxious to do in our thinking about this is to find a common sense approach, one which will not pit farmer against farmer in the courts and one which will allow, so far as is possible, a co-existence regime to be introduced, to be monitored, and to be enforced without constant recourse to litigation. That, of course, depends on goodwill on all sides, and it also depends to a significant extent on, first of all, the labelling regime around 0.9 per cent and, secondly, the attitude and responses likely to be taken by the Soil Association and the other certifying authorities. On their current approach to GM they would be entitled, I think, applying the present GM regulation to decertify a crop or a farm even where GMOs were used in the course of agriculture. Where GMOs have been deliberately used it would not be possible for the crop to be sold as organic because that would be contrary to the law. However, so far as thresholds are concerned, for organic agriculture, there is a stance which is taken by the Soil Association and the other certifiers but it has no statutory base. There is an ability to introduce a statutory base under European legislation of which advantage has not yet been taken, so there is an inherent area of uncertainty at least between 0 per cent and 0.9 per cent which, if it is to continue, could itself cause some of the confusion and practical difficulty to which you have referred. Chairman: Let me take up the organic issue and ask Joan Ruddock to look specifically at the problems that that boundary may cause. Q109 Joan Ruddock: You have just said, Professor Grant, that there is a provision in EU law that could be taken up and has not been. Is it your expectation that it will be? If so, how do you expect that to go? Professor Grant: It has been my optimistic expectation that it might be for some years now but it would, of course, require agreement across a range of States who are not presently in agreement and between a range of certifying authorities who are not necessarily in agreement with their Member States. I understand that there is such a threshold established in other countries outside Europe that has not yet found a basis within Europe. Q110 Joan Ruddock: Is it not very clear to you, as it was to us, that as far as the Soil Association is concerned their understanding is that there should be no GMO presence, and that means detectable at 0.1 per cent so all that can be guaranteed is 0.1 per cent, but there is no rationale if one is an organic producer to moving to 0.9 per cent, so how could agreement ever be reached? Professor Grant: But if you turn that round and ask then whether there should be a statutory threshold, I do not really mind where it is as long as there is one because if you have a statutory threshold you have an underpinning in law that then allows you to design liability provisions around it which will make sense. At the moment we have this grey area that my Commission struggled with for years frankly between 0.1 and 0.9 per cent. The issue though, if you put it in liability terms, then resolves itself into a question of whose rights prevail. This is not an uncommon question but it is fundamental to this issue. Q111 Joan Ruddock: Let's leave that aside for the moment. Would it be correct to say that you could envisage a statutory basis for 0.1 per cent? Professor Grant: Oh, yes. If that were to be resolved under the European law, that would be a statutory basis. Q112 Joan Ruddock: And therefore everything else would become clear, because if I were to take you up on the distinction that I thought you were making between adventitious and other forms of contamination, you were saying that you thought it was possible to accept where it was unavoidable that that was a responsibility which would then translate into a threshold that was acceptable across the board but, if it were adventitious, then the separation distances which would be deliberate and determined by the national states, would clearly influence the level of adventitious contamination, would they not? Professor Grant: Yes, they would. There would be a relationship. Q113 Joan Ruddock: Precisely, and therefore it is arguable, surely, that that level of contamination that occurred because of the separation distances was an avoidable form of contamination? Professor Grant: Avoidable depends upon who is charged with the avoidance. Q114 Joan Ruddock: I am suggesting the GM producer would be, or the government that set the threshold that enabled the GM producer to contaminate? Professor Grant: But going back to the argument I was trying to put before, I would have argued that adventitious presence and avoidability in the eyes of an organic farmer, were a GM crop to be introduced in the neighbourhood, would not necessarily impose obligations on the organic farmer to avoid it but on the GM farmer to establish, or to work to appropriate separation distances to achieve it. That is subject to one very important qualification, I think, which we stress throughout our report, which is that we expect reasonable behaviour on both sides. We would not expect an organic farmer to have a right of action if they deliberately went and planted an organic crop right alongside a GM crop. Q115 Joan Ruddock: But the advice that is given by bodies such as your own or anybody else's and the government that takes the decisions clearly is about setting up with separation distances a factor in the level of contamination that could occur in certain crops, so I do not see it as an equal situation in the way in which you imply. Professor Grant: But nor would I draw it as an exact equivalence. Contamination is not a precise consequence of separation distances. Separation distances, the greater they are, may have a greater impact on the reduction of potential contamination, but it depends on the type of the crop, its cross-pollination, the viability of the seed that comes about as a result of the crossing and, also, on a wide variety of post-cultivation factors in the handling of the product from harvesting through to the farm gate and beyond. Q116 Joan Ruddock: What I am suggesting is that it is one factor which potentially could be deemed avoidable in the case of certain crops where the separation distance would be very significant. Professor Grant: Let me just qualify that. The language is "adventitious or technically unavoidable", and I think there is quite a scope for argument about that and where the burden of avoidability rests. Q117 Joan Ruddock: Is it your belief that it is the organic farmer that should be responsible for the level of contamination, or the avoidance of contamination? Professor Grant: This is at the heart of all of this. Our Commission took the view that, at a threshold of 0.9 per cent, the responsibility should rest with the GM farmer and, indeed, that that should be underpinned by a compensation scheme. We could not come to an agreement about where responsibility should rest between 0.1 and 0.9 per cent. There are quite strong arguments on both sides, and we have recorded them, I hope fairly, in the report. Q118 Joan Ruddock: But if, for example, consumers, which is the situation I believe that prevails, believe that organic produce should be free of GM, which equates to 0.1 per cent, is it then your view that the organic farmer must be responsible for ensuring that his or her crop is not at 0.9 per cent but, if he wants to take a lower level, that farmer bears the sole responsibility for getting down to the 0.1 per cent? Professor Grant: I think that must remain the default position under the recommendations that we were able to agree on, in other words not being able to agree on 0.1-0.9 in effect embeds 0.9, but with one qualification. Firstly, around 0.1 there are real problems of detectability and the tests which have been devised are not cheap and create operational problems. The second question is that, in order to be able to comply with a 0.9 threshold, it is going to be incumbent on the industry and particularly on the GM industry to work to much lower thresholds in practice in order to have an appropriate margin of risk. We were not convinced that 0.1 per cent was a practically achievable threshold in the event of cultivation of GM crops, particularly if cultivation started to become more widespread, hence a measure of unwillingness on many of our members to go for a 0.1 per cent threshold. Q119 Joan Ruddock: There is a difference there between 0.1 per cent being difficult to measure and 0.1 per cent being difficult to achieve if you had a lot of GM in the country. Is it your view that at the moment, when the supermarkets say that in their own brands they only have 0.1 per cent maximum GM, that that is correct, or are you suggesting that may not be correct at the present time? Professor Grant: I am not competent to comment on that but we are, as a Commission, aware of the growing difficulty of sourcing non GM foodstock for animals for supermarket use. It is not going to get any easier. Chairman: We have already trespassed partly into the area of separation distances but I want Patrick to look at this in a bit more detail now. Q120 Patrick Hall: The SCIMAC guidelines on separation distances presumably assume the 0.9 per cent threshold that has been agreed by the EU. Professor Grant: Well, the SCIMAC guidelines were set up before the EU adopted that regulation, but previously the labelling regulation had a threshold of 1 per cent as opposed to 0.9. Q121 Patrick Hall: So the separation distances are based on 1 per cent? Professor Grant: I assume so. I am sorry I am not an expert on that. Q122 Patrick Hall: Let's for the purposes of this discussion say it is going to be something along those lines. There are separation distances that have been recommended in order to achieve a set threshold, and your Commission has argued strongly that there should be a statutory threshold, and it may be 0.9 per cent because that is what the EU has said, although we had evidence last week to suggest that in practice, as the Chairman has said, the supermarkets are certainly claiming that they want lower levels - zero in effect, certainly as far as the consumer is concerned. If farmers are to be able to achieve a lower threshold than 0.9 per cent, are those farmers not going to have to introduce a wider separation of distances? Your colleagues have looked at these questions in some detail, I guess. Amongst your colleagues, was there support for wider separational distances set down under certain circumstances according to either the wishes of the grower or to meet the needs of the consumer, or at least the supermarkets, and having that set down in some sort of way, rather than just an average statutory base which would satisfy some but not all? Professor Grant: We did not get into the specifics of separation distances. We noted a lot of the literature on separation distances which is helpful, which distinguishes, for example, between different crops and even between the same crop and different sowing seasons, spring and winter, so rape, for example, might not require a separation distance at all because of the capacity for cross-pollination being minimised. But we did insist that the government should, before it allowed commercial growing to proceed, have established a proper coexistence regime that would include appropriate separation distances, and by that we mean appropriate to particular crops, but which may be also appropriate to different micro environments on the understanding that no single set of separation distances would necessarily obtain under all conditions. We also looked at evidence of coexistence in other countries, including I think Denmark and Spain where there is now a growing body of literature, and we suggested to the government that there should be a period of very close monitoring of crops so that we could learn from experience rather than necessarily regarding that statutory separation distances were binding for all time. Q123 Patrick Hall: Indeed. Did you come up with ideas about who should be carrying out that presumably independent monitoring and auditing of separation distances as well as, I think you recommended in your evidence to this group, that if and when a new crop is commercialised there should be an intensive monitoring and auditing of the coexistence arrangements. Did you come up with suggestions as to who would be best placed to do that? You say the government has accepted that recommendation in principle but I am not sure if there are details as to who is competent and able to do that. Professor Grant: If the separation distances are statutory then the responsibility rests with the government. It may, of course, lay that off on expert advisory committees but, ultimately, the conversion of risk into separation distances is a political choice that the government itself must make. I should emphasise that this is not the sort of monitoring that we would expect to be undertaken by the ACRE, the Advisory Committee on Releases to the Environment, because their interests are constrained by the legislation they work under as being related to the environment and to human health. We are talking here about economic relationships which is the underpinning construct of what coexistence really is. Q124 Patrick Hall: But would the Commission be capable and able to carry out this auditing and monitoring? Professor Grant: Do you mean the AEBC or the European Commission? Q125 Patrick Hall: I mean the Commission that you chair. Professor Grant: No, we think not. We do not think we have the expertise on the Commission at the moment. It is not set up to undertake what is I think largely scientific and technical study. Q126 Patrick Hall: But could you be persuaded? After all, government is responsible but nonetheless it has to be seen to be independent and objective and government is not always seen in that light for all sorts of reasons, rightly or wrongly, and therefore as you are carrying out a great deal of work that seems independent on this I just wondered if it is something that maybe you could just leave on the table. If it did happen you would obviously need to expand a bit? Professor Grant: Yes. Q127 Patrick Hall: Has the government asked you at all? Professor Grant: We are not short of challenges! I will certainly accept this on the table but I would not earn enormous popularity with my colleagues on the Commission were I to go further than that today. Chairman: Moving on to another interesting idea the government has come up with, which is this idea of the voluntary GM free zone, this is a concept that we had some difficulty in obtaining any real sensible answer on from last week's contributors because there was not a lot of confidence that this was deliverable. Q128 Ms Atherton: I have the pleasure of representing a Cornish constituency and the County Council of Cornwall has declared Cornwall a GM free zone. To be perfectly honest I do not think all the farmers are signed up to this concept, but the County Council has declared that Cornwall is a GM free zone. How useful do you think this is as a concept? Professor Grant: The Committee will have noted that the government in their response to our report has said that they will be coming up with their further thoughts on voluntary GM free zones, and I have to say we await this with enormous interest. Q129 Ms Atherton: Methinks you did not answer that! Professor Grant: Let me just put it this way. There is no difficulty with compulsory GM free zones, under Article 19, if there is good scientific reason for having a compulsory zone, but that has not yet prevailed in any European state. If you have not got the force of regulatory law, and you cannot use law otherwise for fear of interfering with free market principles, then the only thing that can give you any force at all would be some sort of multiparty contractual relationship which people might be able to sign into, but that would carry with it no mandatory element, so a voluntary GM free zone is only as good as the volunteers who sign up to it and are willing to abide by it. Q130 Ms Atherton: I accept that, but let's talk a little bit about European law. As I understand it, we would need changes to European law for mandatory GM zones. Do you think there will be any merit in seeking that? Professor Grant: The problem with mandatory zones is that the whole regulation of GM within Europe is based upon laisser faire market principles and if it cannot be shown that this is likely to be harmful to human health or the environment then it should not receive a Part C consent, and there would be great difficulty within European law to dilute that along the lines you are suggesting, in other words to allow local communities the choice not to have GM crops grown in their area because it would defend against the fundamental principles of freedom of trade. Q131 Ms Atherton: Talking perhaps more on the voluntary side, was the Commission approached by the government and consulted for advice that is going out to farmers seeking a voluntary GM free zone? Professor Grant: We did discuss it briefly and there is a paragraph in our report which is not strongly encouraging of the concept. Q132 Ms Atherton: I do not really feel you are signed up to this process at all! Professor Grant: I think that there is simply a fundamental conceptual concern about it because for it to work it would not merely be a matter of farmers agreeing to separation distances, which they may do, and, indeed, there are one or two instances of voluntary interdependence in the countryside for producing high uracic oil seed rape, for example. What is not so readily conceivable is there could be any sort of restraint upon others transporting GM produce through the zone, and that would be potentially a source of contamination for non GM crops through the zone. It is not just to my mind pinned to land use; it is tied to a number of other activities. Q133 Chairman: So what was the government up to, then, when it came up with this wonderful concept of a voluntary GM free zone? That was from the Secretary of State herself; it was a key part of the statement in March, that if such a thing was brought forward by people, the government were minded to think this was a jolly good idea. Now, it would appear if they had taken the advice from the Commission, and whilst we had no clarity whatsoever of what this concept really meant, surely the government would be forced to think again. Professor Grant: I think that question has to be for your next witness! Chairman: I think we will leave that topic to the Minister to come and defend. Moving on then to almost the most crucial issue of liability, both in terms of environmental implications but also the economic liability where people's business potential on one side or the other is going to be affected by these changes, and I will ask Joan to lead on this. Q134 Joan Ruddock: Firstly, obviously, what is your reaction to the government's decision that it should be the GM industry that has to have the responsibility for contamination and the liability? Professor Grant: "They would, wouldn't they". This is not an easy question. We were very clear from the evidence we took that nobody wanted to foot this bill, and you will see that we were not clear in who we thought should foot it because we could not get clear agreement around our table. Getting agreement to the effect that there should be a liability regime was difficult enough, and to try to cast the entire cost on to the industry or the farmer on the government proved a challenge too far for us. We ultimately would wish in the case of economic liability to see this become a matter for insurance. It makes perfectly good sense that the insurance industry, once it can see a market developing and once it can quantify the risk and its exposure, should start to write cover. At this stage the insurance industry is not willing to do that. It is standing well away from the problem because it is impossible for it to assess the level of cover and the premiums. So our view was that there should be an interim period and, during that period, experience would develop on not only the number of claims but also the extent of exposure of the fund which would help the insurance scheme to develop. Now, there is still one outstanding question which is who buys the premium? Should it be a first party scheme such as a crop assurance scheme in which the farmer buys the cover, in which case you would be in effect putting on to the shoulders of the non GM farming industry the cost of the risk, or should it be third party in which case the industry or the GM farmer would buy the cover to lay off claims from a non GM farmer. We have rehearsed those arguments in our report; it would seem to us on balance that the second model was more consonant with the notion of the risk being introduced by a particular form of agriculture and the industry, if you like, standing behind its product and standing behind its assurances that, with proper handling, contamination could be avoided. Q135 Joan Ruddock: So is the GM sector to you the company plus the farmer? Is that what you regard as the GM sector? When the government says that the GM sector should bear it, some interpretation has been made that that is just the companies. Professor Grant: It is more complex than that, I think, because you have got between the company and the farmer a legal relationship, a contractual relationship. Ultimately you have the licence holder who then license the seed companies who supply the seed to the farmers, so there is a chain, and my personal view is that you are best to take the sector as a whole and then allow offsetting liabilities to be arranged through that chain rather than trying to ascribe liability perhaps simply to the farmer. Let's just take the sector as a whole. Q136 Joan Ruddock: The Soil Association I think and others have made the case that, if there is a victim in this, if there is a farmer who has suffered economic damage, then that farmer should not have to identify who is the GM farmer who has caused that damage. If there were a number of such farmers in that area it would be impossible for the person who suffered the damage to say which of them had caused that damage, and therefore there is a logic in saying it should go further back, to the company, whose product ultimately caused the damage. Is that something you accept as a logical scenario? Professor Grant: I think there are two issues. One is the convenience of the line of causation and being able to prove that the company has this particular construct, which can be identified in a laboratory and ascribed back to them, but the other is that in causing the damage it may well have been the negligence of the farmer that brought about the cross-contamination or the spillage or whatever else it was, and nothing at all to do with the company, so it is necessary to have some way of laying off the responsibility between the two of them. From the point of view of the farmer who is suing, one can see the convenience of what we would call a plaintiff's rule which is one simple defendant who you sue, but from the point of view of the company there is a real risk in exposing themselves to liability which is wholly the fault of the farmer's negligence. Q137 Joan Ruddock: So is it at all likely that a system could be set where the person aggrieved would be able to go directly back to the company? Is that unlikely because of the things you have just suggested? Professor Grant: It is not uncommon in some other areas of law, and product liability for example, to be able to ascribe faults back to a manufacturer rather than having to involve the retailer. Q138 Joan Ruddock: You mentioned that you thought that in time the insurance companies would be able to make an assessment. How true is that given the North American experience where, from what we can tell, the situation is worsening with time, because there is more contamination and it is becoming incremental, it appears, in some circumstances with certain crops. So you obviously see a situation where it is possible to have an interim and then the insurance company can pick it all up, but North American experience to me, anyway, as a lay person, suggests that that might not work because they might not see an advantage in having insurance policies in this field? Professor Grant: There is a risk of confusing quantity with quantification. I have never known an insurance company back away from growing volume of business. Their real worry is about quantifying their risk, so experience might assist in quantifying the risk and then being able to assist the policy and the premium, even whilst the business is growing. Q139 Joan Ruddock: GeneWatch has suggested there should be a GM liability tribunal. Do you think there is any merit in that? Professor Grant: It is something we flirt with in our report and the reason is quite simple; that what we wanted to avoid is to have farmers suing farmers. The rules of litigation anyway about common law liability are so complex, particularly in this area. We have done full analysis of it in the report. To suggest to a farmer who may have suffered, let's say, a loss of premium of £200 on a particular crop that they need to go to the County Court in order to recover damage is ludicrous, so what we wanted was alternative dispute resolution. I think we are relatively open as to whether this should be a form of mediation or an informal tribunal, but something which kept down the transaction costs and provided real brevity would be a sensible proposition for the government to review. Q140 Joan Ruddock: Finally, could we have your thoughts on environmental liability, because that has not been discussed much elsewhere, apart from in your own report. Professor Grant: I have to say we spent a long time on environmental liability over a period of two or more years, and at that time we were reviewing the possibility of having quite a complex scheme, one that, for example, would allow certain types of plaintiffs, individuals even, to bring actions for compensation in the form of remediation, which struggled with different definitions of environmental damage, but as we were going along in that direction so the European Union's draft Directive on Environmental Liability was coming in a different direction, and at one point we changed horses and decided it would make much more sense for us to follow that model, given the growing likelihood that it was going to be adopted, and indeed was formally adopted last month. It provides a basis of administrative liability and puts a competent authority in the frame, so it much diminishes the role of the courts by allowing a competent authority, perhaps the Environment Agency, to determine what is environmental damage caused by GMs, what were the priorities and against whom action should be taken. But there are some major gaps in the Environmental Liability Directive, as you know. It is focused on protected species and habitats under other EU legislation, so it is not, as it stands, wholly appropriate for potential environmental damage to agricultural areas that are not specially protected. We have, however, in our report suggested to the government that they use the directive as their starting point and that they design liability rules on those foundations. Q141 Chairman: Just quickly, have AEBC discussed at all the setting up of this indemnity fund and whether you, as a body, would maybe underwrite that and see that as an on-going role? Professor Grant: Do you mean an indemnity fund for environmental liability? Q142 Chairman: And possibly economic as well. In other words to kickstart the insurance industry because at moment, if there is going to be any real way in which GM can be introduced, there may have to be some form of quasi state involvement and one presumes a form of indemnification underwritten by a body like AEBC. Have you discussed that, and is that something you could see yourselves doing? Professor Grant: I would distinguish between the two cases. I think for economic liability it is entirely a case of setting up a fund into which contributions are made, whether by the industry or by government or even by both, and that is not so much an indemnity fund as a compensation fund. For environmental liability you have to ask who is the last resort, and ultimately it is the state. If there were some unforeseen and unforeseeable environmental damage caused by the growing of GM crops, and nobody has yet suggested to us what that might be, because we are here trying to look with foresight at what arrangements could be put into place for something which we cannot properly foresee, but if that were to occur and if action were to be brought against a company which was no longer solvent, it will be the state that ultimately bears the cost. So we did consider whether this should be an indemnity fund set up with contributions from the industry or elsewhere, but we were not able to come out with a unanimous view about that. You suggested, Chairman, that the AEBC itself might stand behind it. I have to say that we have robust members but fragile finances. Q143 Paddy Tipping: I think Professor Grant has covered most of the principles of the insurance market, but can I just ask you directly whether you have talked to any insurance companies? What are they saying to you about the possibility of providing economic cover? Professor Grant: We have spoken quite extensively to insurance companies, including the NFU Mutual who are probably the most experienced insurers in this area. They felt that there was an opportunity for a market to develop and they were interested in seeing how it might develop, but that it was premature yet to speculate on what might occur. As in all other markets, and contaminated land is another very good example, they really need some practical experience before they can start to quantify their risk and exposure. Q144 Paddy Tipping: And the length of time of that practical experience will depend entirely on how far GM planting goes on, so there is no point in me saying to you, "How long is the market going to take to develop?" We have no idea. Professor Grant: We do not know, and there is another great uncertainty which is the regulatory environment. If liability is tied to regulation and regulation changes over time then it is extremely difficult for a market to develop. It would have to be on claims made rather than on an occurrence basis anyway to minimise longer term exposure, but against that some of the major insurance and reinsurance companies are relatively optimistic that a market could develop in due course. This is a very immature industry. Q145 Paddy Tipping: What about the interim period? Presumably interim arrangements have to be made. Is that where government steps in? Professor Grant: Yes. In terms of economic loss our recommendations were that there should be an interim compensation fund, and that would be, I think, of value only unless and until an insurance market matured. Q146 Chairman: Can I thank you? As always, Malcolm, it has been a treat. I do not know how many more times you will wish to come back and visit your views upon us, but we thank you. It has been very concise and clear to understand where you are coming from. I am afraid even your asides will be printed so you will have to answer for them some time, but we have enjoyed the session and you have given us a very good run into the ministry. Professor Grant: Thank you very much for the opportunity to appear before you this afternoon. Memorandum submitted by Department for Environment, Food and Rural Affairs Examination of Witnesses Witnesses: Mr Elliot Morley, a Member of the House, Minister for Environment and Agri-Environment, and Dr Linda Smith, Head, GM Team, Department for Environment, Food and Rural Affairs, examined. Q147 Chairman: Minister, welcome. I am sure you are well aware of who we are given that you were here last week! Mr Morley: It is always a pleasure. Q148 Chairman: It is a good job next week is Whitsun otherwise you would be back again! I think it would be very useful if, Dr Linda Smith, you could introduce yourself and tell us what you do? Dr Smith: Within Defra I am head of the GM team dealing with policy science and regulation of all sorts of GMs that fall within the remit of Defra. Q149 Chairman: You know what we are looking at; we have done a very short inquiry and you are the concluding part, as always, to that short inquiry. I hope it is not going to put you in the stocks too much, but we have had some interesting evidence last week and as always, as I said to Professor Grant, he is a treat because he says it as it is and we got some real clarity there. If I could start with the issue of tolerance and indeed the threshold levels, I think it is fair to say that we will have a difficult report to write because there is not a great deal of agreement; there is certainly quite a lot of confusion; and there is the likelihood that the courts could be asked to arbitrate on some of these issues. Could you just give me some idea of the rationale behind the point where the government is at now, this notion of GM free, which is somewhere below 0.1 per cent, and the now accepted European level, which in a sense follows on from what SCIMAC took to be an acceptable level following some element of adventitious contamination of 0.9 per cent? Mr Morley: Sure. As you rightly say, Chairman, the EU have come to an agreement that the threshold rates shall be 0.9 per cent. Now there was a lot of argument about that, as you can imagine, and I am sure that Professor Grant went through with you some of the discussions with the AEBC. I might just say for the record that I think Professor Grant has done an excellent job, and the AEBC has been a very helpful forum in terms of advising the government and shaping policy, but that is now an EU Directive and it might be useful for the Committee just to understand that this is the framework that we have to operate within in terms of what has now been agreed. The EU Commission's guidance says that, "Coexistence measures shall not go beyond what is necessary in order to ensure that adventitious traces of GMOs stay below the tolerance thresholds set out in Community legislation, and indicates that it would be disproportionate if statutory coexistence measures went beyond those needed to meet the EU labelling threshold". That is a very clear legal framework and we are obliged to work within that, and it therefore forms the basis of the work that we are doing in relation to such things as separation distances and also monitoring that will deliver a framework that will operate with that 0.9 per cent threshold. Now, it is the case, Chairman, that we can choose to set a lower threshold for organic farming and that will be part of the consultation we will have. It may well be the case that we could ask the Commission to look again at the thresholds for the organic sector, for example, because there will be an issue of enforceability within that threshold going back to the actual framework as agreed by the EU. So that is the basis on which we are working, and the legal framework we have to operate within. Q150 Chairman: Joan is going to ask you about organic in a minute but just looking at what we were given by one of the NGOs as a likely scenario last week, this is going to be tested in as much as somebody somewhere is going to say, "I was supplying my food on the basis that it was GM free, or which the consumer takes to be GM free, not at a level of 0.9 per cent". If the government gets called into this, without pretending to give the government its own legal advice, what is going to be the government's defence? Mr Morley: It is a legal definition now in relation to 0.9 per cent in that, under the EU regulations we are obliged to work within, if foods are below 0.9 per cent they are not classed as GM foods. Now, in terms of being GM free it is, of course, up to the organic sector, who in relation to their own rules can set their thresholds in relation to their own members, but in terms of the legal and statutory position and the potential liability, the 0.9 is the threshold and the baseline figure because that is now established within EU law and within this country. Q151 Chairman: Finally from me, there has been a lot of concentration on the issue of cross-pollination, and we are talking about distances between crops, but I do not think there has been much understanding of the potential of adventitious contamination through other means like transport and shared use of equipment. How is this going to be understood by those on both sides of the argument, but more particularly who is going to monitor this? Mr Morley: It will certainly be part of the regulations in that it is irrelevant if the threshold has been breached, whether it is because of mixing up seeds or the inadvertent addition of GM material, or whether it has come from contamination on farm equipment or for any other failure in relation to the management that crosses the threshold, once that threshold is crossed then the food is classed as GM. This cuts both ways. Once you go over the 0.9 it is classed as a GM product. It can be enforced in the sense that we already have the SCIMAC code of conduct that applies to farmers who are using GM products. In terms of the package of measures that we will be consulting on, it will include controls on such things as volunteers, cross-contamination, the cleaning of farm machinery. Our proposal is that the basis of what is currently a code of practice should become a statutory code of practice to deal with all these aspects, so it will be enforceable so they can be addressed and they can be enforced. How they are enforced at the present time is that there is testing and monitoring which is done by the seed companies themselves. There is a quality control check which is done by our GM Inspectorate, and that quality control check involves both taking samples of seeds but also, more importantly perhaps, checking the paper trail, checking the traceability of the actual products. The tests are carried out by our Central Science Laboratory in York and if there are transgressions then at the moment we insist on the product being recalled, whether it is a crop or whether it is seeds. That can have severe financial consequences for the producers. They do not want that to happen. Of course, it can also damage the reputation of the companies concerned and they do not want that to happen either. There are some fairly effective sanctions in relation to control. Q152 Chairman: Just on that, can you give us a feel for how often this is happening? Mr Morley: I can give you some examples. You are probably well aware of the very well known Adventa example. That was a GM seed that was mixed up with, was that GM or non-GM, the wrong kind of GM? Dr Smith: It was conventional seed. Mr Morley: It was conventional seed. That was mixed up from the source, which was Canada, and in that respect the crops had to be destroyed, the seeds were all withdrawn, and the financial consequences must have been huge for the company concerned. There have been one or two other smaller examples as well, I am sure we can give you details on that, Chairman. Chairman: That would be very useful. Joan, you want to talk about organic. Q153 Joan Ruddock: In a moment. How many quality control inspectors do you have? Mr Morley: Have we got the figures for that, Linda, the number of the GM Inspectorate? Dr Smith: I think it is five but I can confirm that. Chairman: Again, if we could have a note on that, that would be very useful. Q154 Joan Ruddock: Do you envisage any increase given that things are changing now? Mr Morley: That is not impossible. Obviously you have to look at the level of inspectors depending on the amount of product which has approval and which is being sold. Five does sound low at the present time but you have to bear in mind that this is a quality control check. The companies are obliged to do their own testing, and they do their own testing. This is a quality control to make sure that the testing meets the standard and the paper trail is relevant. It is a belt and braces approach, it is not the frontline of quality control; the frontline of quality control is through the companies. Q155 Joan Ruddock: I just want to go back over what you were saying about the 0.9 per cent threshold. You were telling us in your opening remarks about what the EU has said. Do I take it from that that you are very, very clear that allowing 0.9 per cent contamination meets requirements, that there is nothing in the argument that has been mounted by the Soil Association that adventitious and unavoidable contamination has a legal definition that is not the same as an acceptance of a 0.9 per cent threshold? Mr Morley: We will certainly look at the arguments. I would not want to dismiss any arguments. This might be one where we may have to refer to our legal advisers. Our current legal advice on this is very clear. Basically the action on co-existence rules will be consistent with Article 25a(1) of Directive 2001/18, which is the Directive they are talking about. The regulations will be made under section 2(2) of the European Communities Act, which is the normal way of doing it. We think it is a misinterpretation of the actual wording within the text, which I have to say in terms of European legislation is not unusual and sometimes people find all sorts of different interpretations. I come back to the point that I opened with, that the Council of Ministers and the Commission have approved the thresholds, which are very clear. It is very clear about this: under 0.9 it is not a GM product; over 0.9 it is. It is very straightforward. Q156 Joan Ruddock: Is not a consequence of this that if separation distances were set such that there was a clear acceptance that 0.9 per cent contamination of non-GM crops would occur, that the separation distances were set to allow for contamination up to 0.9 per cent, that would then wipe out a non-GM farmer who had a farm next to a GM farm? If it were a crop, of course, where there was a GM and organic equivalent - I accept there is not in all cases - and in that scenario 0.9 per cent contamination was allowed for in the separation distance, the GM farmer cannot meet what is understood in this country, what is certified in this country, 0.1 per cent. Mr Morley: This raises some really quite complex arguments which are not just for the Government but also for the organic certifying bodies themselves and their umbrella group, which is currently discussing this particular issue. The problem is it is true that if you have a certifying body, and there are a number of certifying bodies in this country and they do not all have the same standards on the same things, as you understand, and it does set a threshold for the sake of argument at 0.1 then, of course, if that threshold is exceeded they could argue it does not meet the standards they have set, that is true, but the dilemma for the sector is that at the moment the bulk of organic produce in this country is imported, and we would like to see that changing, and that imported produce is already working on the basis of 0.9. I also understand in the draft consultations in the same things that we are doing, which is happening in other European countries, major producers like Denmark, Germany and France are already talking about 0,9 for their organic producers. There is a difficult issue here. I do understand the dilemma for organic sectors that have set those particular standards and they are free to do so. Of course, they may have a standard but legally if an organic crop does not go over the 0.9 it can still claim to be organic. Q157 Joan Ruddock: That is arguable, is it not? Organic means something other than conventional non-GM because there is certification. If I just might go on. It is a fact that the supermarkets are saying, rightly or wrongly, that in their own source products they are GM-free, ie 0.1 per cent. Are you suggesting that imported organics at the moment are not meeting that standard? Mr Morley: I would very much doubt whether all organic food is meeting the standard of 0.1, I would seriously doubt that at the present time wherever it is coming from. To come back to this point about what is organic and what is not organic. The organic sectors already allow such things as spray drift, for example, in relation to pesticides and herbicides because it is a fact of life and you cannot guarantee that it will not happen. You have got a similar issue in relation to GMs should they become established in this country in that you cannot guarantee that there will be no GM presence. You can argue whether you can keep that down, you can argue whether 0.9 is the right amount, it is the level that has been set at the present time. I repeat, we are willing to look at a lower threshold for the organic sector. We are also willing to argue within the EU that that should be an enforceable EU standard as well. We are willing to do that, but if you come at this on the basis that you are absolutely against GM, you do not want any GM, then of course you will argue for a zero threshold, I understand that, but we do not have that luxury in relation to the position we have to take as a Government within EU law. What we are trying to do is put in place a workable co-existence regime with the minimum levels of measurable GM in non-GM crops. That is what we are trying to do within the threshold that has been set legally. Q158 Chairman: Can I just make one point. Certainly I talk to farmers and the analogy with the implications of pesticide spraying is quite good here because for want of my own innocence I put forward an EDM looking at the idea of buffer zones and farmers, understandably, got very, very nervous about that and basically said to me that co-existence cannot work if you are really taking that to mean that what is next door will be free from whatever you want it to be free from. We are going to look at co-existence a bit more in a moment but this is one of the crunch points, that the consumer will think one thing and in reality the practicalities are saying something different. How do we overcome this dilemma? Mr Morley: You have to have a recognition, as I think you said, Chairman, that if you have conventional crops and organic crops there will be detectable levels of pesticides, for example, and if you have GM crops then you will have detectable levels of GM material in some cases. We have the legal maximum and what we are trying to do is see how we can make that work taking into account the concerns of various sectors and, of course, the responses that we will get in on consultation. That is what we are trying to do at the present time. Q159 Joan Ruddock: You said a moment ago that the Government would be willing to argue within the EU for a statutory threshold for organic. What level might that threshold be at? Mr Morley: The level would be what is enforceable and obviously what is detectable. Q160 Joan Ruddock: It is not below 0.1 per cent, is it? Mr Morley: You can detect there is 0.1. Q161 Joan Ruddock: I know you can. Mr Morley: But it is whether it is really practical. Q162 Joan Ruddock: Where between 0.1 and 0.9? Mr Morley: That is right. You have to examine what is feasible, I think. Q163 Joan Ruddock: But where is that? Mr Morley: That will be part of the consultation in terms of we will obviously receive different representations, I am quite sure. All I can say to you, and I know it is not a great answer, is I would like to see that set at the lowest practical level. Q164 Joan Ruddock: Have any other Member States expressed a view on this? Mr Morley: Austria have approached it on the basis that they would like to take the GM-free route and they would like to make it statutory GM-free areas, but it has been made clear by the Commission that that is not acceptable and will not be allowed. All the other figures for organic have been 0.9. Denmark, France and Germany have said 0.9. Q165 Joan Ruddock: If it were to be placed lower than 0.9, who do you think should then be responsible for seeing that the lower standard is met? Is it the organic farmer? Mr Morley: If you had a lower threshold there would be some responsibilities on the organic farmer, but also you would have to gear your thresholds in relation to the GM farmer to deliver 0.5. At the moment we are gearing to 0.9. We may have a lower figure for the organic sector but we would have to do that on a voluntary basis in relation to the thresholds that we would set. The difference would be that it would be enforceable if it was an EU standard. Chairman: We will come back to GM-free zones in a minute because we did take some time with Professor Grant. If we could now move on with Patrick to look at the separation distances and some of the implications of whether these distances are going to be easy to determine and introduce. Patrick? Q166 Patrick Hall: Could I look at what I think has happened but also looking at the Department's evidence to this Committee. I may have got some of this wrong, so can I clarify this first. The SCIMAC guidelines came out before the NIAB work. That is correct, is it not? Mr Morley: And before the FSEs, yes. Q167 Patrick Hall: So the SCIMAC guidelines predate the year 2000 and that was looking at the separation distances required to achieve a one per cent labelling threshold. Defra asked NIAB to carry out some work on some different threshold levels and what separation distances would need to be attached to those levels. I think just recently - it says in your evidence - that body has been asked to review the work that was done a few years ago in the light of the farm-scale evaluations. Mr Morley: That is right. Q168 Patrick Hall: When is that current review likely to be available? Mr Morley: I think the work on maize has been produced. The work on oilseeds is due this summer, is it, Linda? Dr Smith: Yes. Mr Morley: We would expect that work to be reviewed, possibly by ACRE in terms of a peer review. Q169 Patrick Hall: Is it the NIAB guidelines that are likely to be those the Government proposes to adopt rather than the SCIMAC one which is older and also not based on 0.9? Mr Morley: It is true that SCIMAC produced separation distances. Those separation distances were based really on established agronomy in relation to different strains of the same plant, for example. They were using figures like that for separation. The work that has been done by the National Institute of Agricultural Botany is more up-to-date in the sense it is actually doing some gene flow studies from the field-scale evaluations. It is very useful data. When we have all that data together, when we have an opportunity for giving it a thorough scientific review, it will form the basis of the separation distances that we will put forward as a recommendation in the consultation. That will be open for consultation and it will be open for comment and discussion. Q170 Patrick Hall: With the aim of that being the statutory basis of how we achieve the EU threshold? Mr Morley: That is right. The aim will be to deliver the minimum of that 0.9, that will be the aim of it. That will be the scientific basis of the judgment. Q171 Patrick Hall: How and who will monitor and enforce practice on the ground vis a vis those separation distances? Mr Morley: There are a number of ways that this can be approached and, again, we will consult on this because there are different options. It could be that we would have a role for our GM Inspectorate, for example. It could be done in relation to standards applied of Crop Assurance. It could be done in relation to contractual standards applied to GM farmers in terms of the contract for the growing of the actual crop. It could be done in whole-farm assessments which are coming as part of the changes within agriculture. There are a number of options by which we can do that. Do you want to answer that, Linda? Dr Smith: I think that covers the range. May I add something about the SCIMAC code because the SCIMAC code, as you said, was published before the start of the farm-scale evaluations and as a result of the review that NIAB did of separation distances, SCIMAC then amended their code and used figures that were recommended in NIAB. Q172 Patrick Hall: That was part of the FSEs, was it? Dr Smith: For the farm-scale evaluations, yes. As the Minister has said, there are several ways of ensuring compliance with the code. SCIMAC themselves put forward a system of assurance through the sale of the seeds which was the basis of their code, which would be one of the things that could be looked at as part of the consultation. There were sanctions through the contract in selling seeds, that the farmer had to comply with the code and if he did not apply with the code then sanctions could be applied. That is one of the options but there are others. Mr Morley: That was a voluntary code that people voluntarily entered into. What it meant was that if farmers transgressed the code then the company would no longer sell them the product. Q173 Patrick Hall: Can I just anticipate a few years hence when the whole structure of regulation, law and licensing is focused around, and flows from, the 0.9 per cent labelling threshold. You said, Minister, that one could, and you are in favour of I gather, look at lower limits for organic. Mr Morley: Yes. Q174 Patrick Hall: That was the example. That would have to be negotiated with the EU Commission, would it? Mr Morley: No. We could set our own standard in the EU and we could build that into the statutory code. Q175 Patrick Hall: Would that not be challengeable? Mr Morley: Yes, it would be challengeable because at the moment the standard that we would agree would be a voluntary standard and we could not apply it as a statutory standard because of the current 0.9 threshold. Q176 Patrick Hall: So the position of producers who want to achieve a more challenging threshold, such as organic producers, and indeed the supermarkets say they want to be able to sell GM-free, or at least at a lower threshold, that could only be achieved on a voluntary basis but there are bound to be instances where neighbours do not agree and challenge. Before we enter all that, is this not the time to try to avoid it by having some legal flexibility by negotiating with the EU Commission about circumstances under which 0.9 per cent could actually be lowered? Is this not the time to do that? Mr Morley: Under the present rules and the present Directive, Member States are free to set a lower threshold for organics. We are taking up that option, it will be part of our consultation. You are right about the enforceability, potentially this looks to be a very difficult area because of what is, what is not a factor. As I mentioned to you, you can legally sell imported organic food using the 0.9 per cent threshold. It does not mean that we cannot explore this. It does not mean that if there is support for this approach that we cannot build this into the guidelines in the way that we structure the co-existence rules to deliver that as an objective in relation to the organic sector. Clearly it would be preferable to remove any doubt or any potential for legal challenge to have the force of EU law. We are prepared to argue for that. I do not know the views of other countries, we would need support for that, but it is something that we are prepared to look at. Q177 Chairman: Can I be clear about a couple of points. The AEBC have talked about this idea of an introductory period and in a sense that follows on from what Patrick has been saying, that now is the time to do things. Have you actually taken the AEBC's advice to look at how you would put that in place or is this still something being discussed by Government? Mr Morley: We are following the advice that the AEBC has given us and that will influence the shape of the consultation document. We will build their advice into that. Q178 Chairman: In terms of the monitoring of this - again Patrick was trying to get this from you - who is going to do this monitoring? Mr Morley: There are a number of ways it can be done and what we will have to do as part of the consultation is decide what is the most effective way forward on that. Q179 Chairman: You have not got a notion at least of whether it is going to be self-policing or an independent body? Mr Morley: I have given you a range of examples of what could be done. You could do that as part of the statutory code. Chairman: Let us go on to GM-free zones. I think it is fair to say that this has not got a terribly good press so far from the people we have been cross-examining. If we go over to Bill on GM-free zones. Q180 Mr Wiggin: How useful in practice do you think is the concept of GM-free zones? Mr Morley: The concept of GM-free zones has really come from pressure groups. I think some people may have got a bit over-excited about what can and cannot be done with GM-free zones. Our view is that it is a matter for individuals and areas who may want to come together. There may well be some discrete areas, some National Parks, for example. All the farmers within some National Parks may want to be a GM-free zone. They may market some foods with a regional identity, for example, and they may not want that to be connected with GMs. That is fine with us if people want to do that, as far as Defra is concerned. We are very happy to give people advice about what can and cannot be done in relation to what the law states on this. It is really an issue of co-operation, and where people are prepared to co-operate I think that is to be encouraged myself. I think there is a risk of overplaying it. I know a number of councils have declared themselves GM-free zones. Those of us who go back some years will remember the nuclear-free zone declarations which did not necessarily stop nuclear activities. It was a movement and it was a way of raising awareness of the issue and a way of discussing the issue and it had some merit, if only that alone. Q181 Mr Wiggin: I am slightly critical of that approach because what you have said is essentially people are not going to be forced to grow genetically modified crops and if they choose not to, all well and good. I do not think there were any farmers who were proposing to grow nuclear weapons or have bases on their land either. Whilst your example is charming it is not very relevant. I think the important thing is if you wish to be part of that, one farmer can change that desire. Mr Morley: I cannot deny that. Q182 Mr Wiggin: Therefore, it is going to be very interesting to know what sort of advice you are going to be giving to farmers who need to set up a voluntary GM-free zone. Mr Morley: The main advice will be what the law is on this. Again, the EU Directive makes it clear that people have every right to choose whether they want to grow organic, conventional or GM, that is part of the Directive, so individual farmers have that legal right, there is no two ways about that. On that basis you are right, if you get one farmer, and in my experience there is always the odd one awkward farmer ---- Q183 Paddy Tipping: Just one! Mr Morley: Just one, that is right. That is their individual right if they so choose. I come back to the point I was making. I am all for co-operation and I think there is scope for a lot more co-operation in British agriculture and one way of co-operating is if people feel it is to their advantage or that is what they want to do then they can come together voluntarily to declare themselves a GM-free zone. We can tell them what the law is and what they can and cannot do. Q184 Mr Wiggin: Unfortunately, that does not tell us very much. Obviously every farmer can grow whatever he likes, that is a given, I think. Mr Morley: Some things they cannot grow. Paddy Tipping: They could get arrested. Q185 Mr Wiggin: They can grow hemp but certain drugs they could not grow. I think the important thing was what you said earlier about Austria, and I think it is true in Wales as well, where there is definitely political will to have GM-free zones. Mr Morley: Maybe. Q186 Mr Wiggin: To some extent we look to the Government really to negotiate in Europe on our behalf if that is what people want. The fact that the Austrians have already indicated that is what they would like, what is our Government doing to push this? Mr Morley: Certainly we have no objection to the concept of GM-free zones. The point you made earlier on is while we do not want to see people being forced to grow GM, we think it is a matter of choice for growers, there are some very difficult legal issues in also denying people the right who may want to as well. There are some human rights issues here as well. It is quite a complex legal issue in terms of how you deal with it. We have an open mind on this. If there was a consensus within the EU for this approach then we would not object to exploring these options. I do not believe there is consensus at the moment, it is only Austria who are being very serious about this. Q187 Mr Wiggin: Probably you are right that there is not complete consensus across Europe but there are certainly rumblings of discontent at this stage. Given that we are supposed to be a part of Europe, we seem reticent. Mr Morley: These are choices and in the end if people want to have that GM-free status they can voluntarily come together for it. There is a lot to be said for that voluntary approach because it is a co-operative approach. I think there is everything to be encouraged in terms of a co-operative approach within agriculture and that is why we are very happy to give advice to people. The main advice we will give is the legal advice and what can and cannot be done. Q188 Chairman: The Secretary of State did make a big play in her March statement on the idea of GM-free zones. That was certainly what got the headlines, that the Government were actively encouraging this as a way forward. You seem rather more dismissive of this as tokenism. It is a very relevant time, councils are going around one after another passing these wonderful motions. I know the analogy with nuclear-free zones is there but that was after nuclear power was introduced. I think their view is if they pass these motions now they will stop it coming. Mr Morley: I think that is a bit misleading in relation to what people thought they could and could not do in relation to passing a council resolution. I am not dismissive about voluntary GM-free zones. I do not think that when she announced the policy Margaret Beckett gave it undue emphasis, it was a statement of fact. The heart of this approach is that there must be choices for people to make - consumers, growers, processors - and that is why it is important to have the labelling and the traceability so people can make those choices. Part of that choice is if people want to come together and declare themselves a GM-free zone, that is fine, we do not have a problem with that from the Government, and we will provide advice to people about what they can and cannot do to assist them if that is what they want to do. It has to be put into perspective that it is not legally enforceable, it would have to be a voluntary co-operation. Chairman: If we can go on to liability. Joan will want to ask you about both environmental and economic liability. Q189 Joan Ruddock: Let us start with economic liability. Obviously the Government has made it very clear that it should be the GM sector itself that deals with any compensation. What do you mean by the GM sector? Is it the companies plus the GM farmers? Mr Morley: Again, as part of the consultation there are a number of approaches to this. For example, you could have liability on the farmers who are growing GM produce, which I think is a route that Denmark is planning to take. You could have liability on the GM companies. You could have some form of joint liability. You could have a liability fund that is managed by the GM companies who could theoretically, just for the sake of argument, recover some of that money if it was due to a failure or a breaking of the regulations by a particular GM farmer. There are issues, of course, of proving that and all the things that go with that, which is why there is an argument for a fund of this kind. There are a number of choices to be taken on this, a number of options, and that will be part of the consultation. We will not make a final decision until we have heard what people have to say about this and what their views are. We do believe that the principal liability should come from the GM sector because I think it is a bit hard to put it on non-GM farmers and I think it is a bit hard to put it on the general taxpayer as well. Q190 Joan Ruddock: Taking the case, which is the case the Soil Association has envisaged, which says there are several GM farmers and then there is an organic farmer who suffers contamination but is unable to say which of his or her neighbours caused this contamination, in those circumstances making the company directly liable is obviously a much easier legal route, is it not? Mr Morley: That may well be the case and, indeed, that may well be the favoured option but we are very happy to listen to people's views on this. Q191 Joan Ruddock: You might agree with the Soil Association that it would not be necessary in such a circumstance for the complainant to have to identify the individual farmer? Mr Morley: I acknowledge that in circumstances where you may have widespread GM use it may be very difficult to identify an individual farmer as responsible and in that case you would have to have a more general approach in terms of a general compensation fund. I thought that was the Soil Association jumping in adulation at my comments! Q192 Joan Ruddock: Because of the noise I was distracted for a second. I am trying to see if the Government already has a position on this or is this part of the consultation and the Government has not got a fixed view as yet? Mr Morley: We have not got a detailed position apart from our belief that the compensation fund should come from the GM sector. How you construct it and how you operate it, of course, is open for discussion in the consultation. Q193 Joan Ruddock: Another thing that the Soil Association has said is that if there are actual economic losses it should be possible for the farmer who has suffered the economic losses to claim compensation even if the regulations had been adhered to because the actual contamination still produces a loss and, therefore, you could argue it is back to the regulations being imperfect. What do you imagine in that kind of scenario? Mr Morley: It depends on what kind of loss ---- Q194 Joan Ruddock: A loss arising from contamination. Mr Morley: It depends on the threshold in that the thresholds will be designed at a minimum not to go above 0.9 per cent. Realistically, if you set 0.9 then to be on the safe side you are going to have to set your threshold lower than that and the various biotech companies know that very well. That should not arise. If that arises there may be some other kind of failure. I am afraid you would have to look at the legal details on a case by case basis. I think you are getting into some very difficult legal areas there. Q195 Joan Ruddock: It sounds as though you are acknowledging wherever thresholds might be set there could be error and, therefore, you are suggesting that has got to be built in. Mr Morley: Yes. In my experience, if you have rules and regulations there are all sorts of errors, and we have seen all sorts of examples of that. You do have to build that in. To be on the safe side, just listening to the discussion within the GM sector and outside the GM sector, I think most people are gearing up for designing their structures to deliver at a level below the minimum, so if it is 0.9 they will be aiming for a lower level to give them a little bit of leeway. Q196 Joan Ruddock: There is an argument about how adequate existing laws are to deal with compensation claims. Is it the view of the Department that existing legislation is sufficient to deal with compensation claims? Mr Morley: Again, you are into some really quite complex legal areas and perhaps you ought to have the Lord Chancellor before you to answer some of these questions. Q197 Joan Ruddock: I would be surprised if he knew, would you not? Mr Morley: There is a view, and we have taken legal advice on this, that there is the existing law and you can pursue damages under the existing law. Where this becomes difficult is that if you can identify who is responsible then you can pursue damages. You can also have contractual arrangements as well and you can pursue that if something goes wrong within the contractual arrangements. The situation which is difficult, and where I agree with what the Soil Association has had to say, is if you had an organic farmer surrounded by a lot of GM farmers it would be very difficult to prove who was responsible so, therefore, there is an argument for some level of compensation provision. Q198 Joan Ruddock: I think they suggest that current case law is just not adequate to deal with the kinds of cases that might occur in the future. Mr Morley: We will have a look at that as part of the consultation. Of course, there is the EU Directive on Environmental Liability which is new as well. Q199 Joan Ruddock: We are not talking about environmental liability at the moment, we are talking about economic liability on individual farmers. Mr Morley: I understand that, but it could be the basis of a structure. Dr Smith: The EU law on environmental liability is being implemented by Member States. The Department will be going out to first consultation on that in the autumn. GMs are covered but only in relation to damage to sites that are already protected, nationally protected habitats of some sort. Of course, if the GM operation is permitted by a permit then it will not be covered necessarily because the potential damage to the environment will already have been assessed and judged that there will not be adverse effects. Q200 Joan Ruddock: I am conscious of the time otherwise I would like to pursue environmental liability with you. Mr Morley: That is a much wider issue. Q201 Joan Ruddock: It is a much wider issue. From what has just been said by your adviser it is clear that on the European Directive there will be Government consultation and it is likely to begin in the autumn. Mr Morley: That is right. Q202 Joan Ruddock: So we will all look out for that with interest. Just to return to the economic liability and individual farmers, do you think there is any merit in the suggestion that has been put forward by GeneWatch to have a tribunal to deal with these matters? Mr Morley: I think GeneWatch is right, if you set up a fund it is inevitable that you would have to have some form of tribunal both in terms of dealing with disputes and possibly dealing with appeals as well. I think that would be inevitable, yes. Q203 Joan Ruddock: Finally, just to link all of this liability to insurance. We have heard evidence and we know that the insurance bodies have said at the moment they are not prepared to issue policies to cover GM liabilities, so what steps do you intend to take to encourage the insurance market to develop? Mr Morley: I think much depends on the shape of the liability fund. If we go down the route of the GM sector being responsible then, of course, primarily our concern is to make sure that there is a level of compensation and liability should it be needed. If that is in place, that is our principal concern. It may well be that the GM sector will wish to involve the insurance companies in how they operate. They may wish to make insurance part of the contract in relation to the product. There are price implications, of course, and they would have to look at those in relation to the competitiveness of the product, but it might be something that they may want to do. That is an issue for the market to decide rather than us as a Government. Q204 Joan Ruddock: So you are just accepting if the insurance companies do not move on this issue, and it appears they will not at the moment, there has to be some other solution and the Government does not take any steps to look at insurance? Mr Morley: As we are approaching it at the moment we are looking at the concept of a liability fund or provision. Our stated view is that should come from the sector basically. Q205 Joan Ruddock: The corollary is you do not envisage non-GM and organic farmers as having to take out insurance against GM cultivation in this country? Mr Morley: Not as a general rule. I do think there is an issue of insurance generally for agriculture and horticulture and livestock, but that is a much, much wider issue which I do not think we want to go into today. Chairman: You have mentioned consultation on at least two occasions, I am going to ask Paddy to conclude your evidence. Paddy Tipping: I do not think it was two occasions, I think it was every other sentence. Q206 Chairman: I was being polite. Mr Morley: We are a very open Government. Q207 Paddy Tipping: Just tell me what is going to be in this consultation, the scope of it? Mr Morley: Just very briefly, the scope of it is we will have to operate within the legal framework, which I have to keep coming back to. The consultation in terms of co-existence will be based on the legal framework and how we can deliver that, the ways that we can do that, issues of enforceability, all the points that you have raised, separation distances, the issue of science and how the distances have been come to, issues of gene flow. It will all be in the consultation. As part of the liability regime, we have explored some of the models and issues that will be there, they will be part of the consultation. In the consultation we will give options that people can consider basically. Part of that consultation is the kind of response that we will get to those options. Q208 Paddy Tipping: When is this consultation going to kick off because it has to be in place for planting next year, has it not? Mr Morley: We do not envisage any planting next year, so therefore there is a bit of pressure off. We envisage that the consultation document will be available before recess. You do appreciate that there is always pressure and slippage and I do not wish to ---- Q209 Paddy Tipping: Which recess? The summer recess? Mr Morley: Yes, the summer recess. Q210 Joan Ruddock: I thought you meant the Whitsun recess. Mr Morley: Whitsun is a bit overambitious. Poor old Linda and her team were going white there at the idea of that. Q211 Paddy Tipping: Cancel your holidays quick! So the kick-off may be before the summer recess. Mr Morley: I hope so. Q212 Paddy Tipping: What is the closing date? Three months? Mr Morley: It will be a three month consultation, yes. Q213 Paddy Tipping: You said as an aside "we hope to have it ready for spring planting season 2005 but we do not think there is going to be any planting". Mr Morley: That is still very much in line with the kind of timescale. There is no reason why we should not have this ready for spring 2005 but we are sure that there will be no GM applications for the planting season 2005 and realistically not in 2005 at all. Q214 Paddy Tipping: When can we expect some planting? Mr Morley: I guess the very earliest is 2006 and I would be doubtful about that. Do you have any idea? Dr Smith: Bayer were talking about 2008 before they would be ready with their next crop that they wish to bring forward. Certainly there are not any crops that are suitable to be grown in Britain that would necessarily have varieties that were approved that would be suitable for growing in Britain on the very near horizon. Although there are a couple of maize GM events that are approved for cultivation, the varieties that are approved are only suitable for growing in the Mediterranean, the varieties are not suitable for growing in Britain. Q215 Paddy Tipping: Just wrap this up for me. In effect we have had a five year freeze, have we not? Mr Morley: Yes. Q216 Paddy Tipping: We are now in 2004. Mr Morley: Yes. Q217 Paddy Tipping: We are speculating into the future and it looks as though we are going to have another four year freeze at least. Mr Morley: Definitely not in 2005 in my view, doubtful in 2006, probably realistically in 2007. Q218 Paddy Tipping: I thought Linda had mentioned 2008. Dr Smith: I said Bayer said that they were not proceeding until 2008. Mr Morley: We just cannot really say post-2005 for sure. In the regulatory pipeline you can see what is coming down the pipeline and there is nothing coming that will get here for some years. As Linda has said, there will be some GM crops approved in Europe, in fact there are GM crops approved in Europe now, and once you get approval within Europe then it is legal to sell it in other countries, but the crops which have approval are designed to resist pests for maize that you do not get in this country, so it is not really suitable for growing in this country and we are not going to see them. Q219 Paddy Tipping: Just going back to the consultation. It is going to go out and responses will come back to the Department. Are you going to involve scientific groups and advisory groups in looking at this, or is it a consultation that you are doing yourselves? Mr Morley: All the various groups who have had an interest in GMs will be part of the consultation and we will encourage them to give us their views. Dr Smith: May I say something about the devolved administrations who will be doing their own consultations. Q220 Paddy Tipping: Will that be over the same timescale? Mr Morley: Roughly, yes. Dr Smith: The Department has been working with colleagues in the devolved administrations talking about whether there are common interests. Q221 Paddy Tipping: Will it be the same structure, the same questions being asked? Mr Morley: Broadly, although they are free, of course, to take a slightly different position in relation to these rules, it is a devolved issue. Basically we are approaching it on the same basic concept. Q222 Chairman: You promised us at least one note, maybe two. One was in terms of the way in which you currently monitor products. Mr Morley: Yes, that is right. You wanted some examples of where we have picked up failures and we can give you that. Q223 Chairman: Apart from that, what you have said will have to remain said on the record although there is always the possibility of sending us a note to clarify what you have said. Thank you for your evidence, I am sure it will not be too long before we meet again. Mr Morley: I look forward to it, Chairman. Chairman: Thank you for your time. |