Joint Committee on Statutory Instruments Fourth Report

Further memorandum from the Department of Environment, Food and Rural Affairs

Genetically Modified Organisms (Deliberate Release) Regulations 2002 (S.I. 2002/2443)

1. The Joint Committee has requested the Department to submit a further memorandum concerning the above regulations on the following point ­

In relation to paragraph 9 of the Department's memorandum, elaborate upon the specific considerations which led the Department to conclude that the reverse onus provisions in section 119 of the 1990 Act (as amended by regulation 30) are compatible with Convention rights, and in particular, how those provisions strike a fair balance between the rights of the defendant and the interests of the public.

2. The amendment to section 119 concerns the onus of proof in relation to a breach of the condition imposed on consents granted under section 111(1) of the Environmental Protection Act 1990 by section 112(5)(c) of that Act (the requirement to take measures necessary to prevent damage from being caused to the environment from the release or marketing of genetically modified organisms). None of the other provisions cited in section 119 are currently in operation.

3. The emphasis of the deliberate release regime and of those provisions in Part VI of the Environmental Protection Act 1990 which, together with the regulations, constitute the legislative basis for the regime, is to secure the protection of the environment (including human health). Consent must not be issued to permit the release of genetically modified organisms into the environment unless the applicant ­ normally the commercial enterprise which developed the particular organism ­ can ensure that those organisms do not currently, and as far as possible will not in the future, pose any risk to the environment. The consent regime achieves this by placing ongoing responsibility on the consent holder to identify any risk that the genetically modified organisms might pose, be aware of what measures exist to prevent damage to the environment resulting from such risk and to take those measures.

4. It is therefore considered fair that this duty to protect the environment should be borne by the consent holder responsible for the release of the genetically modified organisms in respect of which consent is granted. Moreover, this is necessary ­ as the consent holder is in a unique position to be able to monitor the release of the genetically modified organisms and to keep abreast of scientific developments which relate to potential risks they might pose.

5. Before the question of the availability to a consent holder of a defence under section 119 can arise, that consent holder must first be in breach of its consent. It is for the prosecutor to prove the fact of the breach. Given the obligations imposed on the consent holder by the regulatory regime (as described in paragraph 3), if the consent holder wishes to avail itself of the defence that, despite the fact of the breach of consent, it has complied with its statutory obligations, it is considered fair that it should be required to prove this. If the consent holder has complied with these obligations, it should have no difficulty in producing evidence to prove this on the balance of probabilities. By contrast, if the consent holder has not met its statutory obligations, it would be a far more difficult task for the prosecutor to anticipate this and prove that the consent holder has not done so by adducing, first, background scientific evidence of best practice and, secondly, evidence of the particular measures carried out by the consent holder.

6. For the above reasons the Department considers that the provision of section 119 which the regulations amend complies with Convention rights and achieves a fair balance between the interests of the defendant and the public interest in securing the protection of the environment.

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2002
Prepared 17 December 2002