Petition
Genetically Modified Crops (PE470)
The final item is public petition PE470, which is from Mr Anthony Jackson, on behalf of the Munlochy vigil, and is on genetically modified crops. I will introduce the petition briefly, because the minister has only about 15 minutes more with us. Following consideration of the petition, the committee has written twice to the minister. I thank him for his prompt response to both those letters. The minister and I realise that not everyone will agree with every aspect of his response, but nonetheless, I thank him for his full responses on both occasions. They have helped the committee by advising it of the Executive's view.
The committee brought the petition back to the agenda to consider the minister's response to our most recent letter. As the minister was due to attend to deal with the statutory instruments, we thought that it would be useful if he could respond to members' questions about his most recent response before we finalise how we progress the petition. Given the time, I propose that we move straight to members' questions about the response.
I am interested in a couple of aspects of the minister's letter, as I asked the questions about them. The petitioners told me that they had asked the Executive whether a site-specific risk assessment had been conducted at Munlochy. They were told that there was none and that the assessment was conducted at Daviot in Aberdeenshire, after which the effect on Munlochy was projected. When was the site-specific assessment at Munlochy performed? Could a copy of it be given to us or published?
Derek Bearhop (Scottish Executive Environment and Rural Affairs Department):
We are talking about two slightly different matters. The legislation requires that, in applying to release a GM crop, an applicant must specify a site on which the crop release is proposed to take place. It is correct that the initial site for the crop that was planted in Munlochy last autumn was at Daviot, where a site assessment was completed.
If a consent holder applies to the minister for permission to release on subsequent sites, they must confirm that those subsequent sites comply with the original risk assessment—in other words, no additional factors may jeopardise the initial risk assessment. As the minister's response says, the regulatory authorities and our advisers say whether the consent holder's judgment is accurate. That was done for the Munlochy site.
May we have a copy of that information?
We placed some aspects of that assessment on our website. We asked Scottish Natural Heritage about the implications for natural heritage and designated areas. That information is publicly available. I can make the rest available through the same mechanism.
My next question is about the allergic risk that is posed by the inhalation of pollen and dust. The minister's answer to question 8 talks about
"ensuring that … plantings … do not pose a safety threat to human health",
yet his answer to question 3 says that it is inappropriate for any tests to be undertaken on whether the field trials pose a risk to human health.
That is the most worrying issue for the people who live in Munlochy. They feel that the pollen that is now being released may harm their health in some way. How can we assess whether that pollen will have an impact on human health if we are not testing it?
There is some misunderstanding of the status of the seeds that are being used in the trials. It would surprise many people to learn that those seeds have already been approved for use in trials. By 1998, an application could have been made to use them commercially. Before the seeds were approved for use, they were subject first to laboratory tests indoors and then to what are described as plot-scale trials. Many of the seeds that are being used in UK trials have already been grown outdoors, on sites of 20, 40, 60, 80 or 100 sq m. They have already flowered. The crops were tested at the time, both for their alleged herbicide tolerance and for their impact on human health. They were tested both indoors and outdoors. Once those trials were concluded, the seeds were certified under the regulatory process that was in place at the time.
In 1998, the UK Government decided that that was all very well and good, but that full field-scale trials had not been carried out. In those trials, the effect of different herbicide regimes on GM crops, as opposed to conventional ones, would be demonstrated. The impact of sowing GM crops on the immediate biodiversity of an area had not been tested in a farm context. The trials that we are discussing are designed to test that, rather than the seeds per se. I am not saying that people are not concerned about the impact of the trials on human health. I am simply indicating the purpose of the trials and making clear that the crops involved have been grown in the open before.
What tests were carried out to gauge the impact of the crops on human health when they were grown previously?
I was coming to that issue. I simply wanted to put the trials in their proper context.
The regulations require applicants to satisfy the regulator of the safety—in terms of toxicity and allergenicity, and with specific reference to human health—of proposed releases. That process builds on what has been done previously. In the case that we are discussing, the applicant did not come to us in August 2001 with a lab test that had just been done. Rather, it showed us the 20 applications that had already been scrutinised by regulators in the UK and Europe, and indicated what it had deduced from those applications. It then had to present a scientific evaluation that satisfied the Advisory Committee on Releases to the Environment, the Food Standards Agency and the Health and Safety Executive. On that basis, a decision was taken. We are talking about a step-by-step process, rather than one that involves assembling all the raw data for a single application.
Health experts have advised ministers that, on the basis of the work that has been done previously, they are satisfied that the pollen that is being released at Munlochy does not pose the threat to human health that some fear.
The issue will possibly be taken up by the Health and Community Care Committee, so we should not necessarily pursue it now.
I want to home in on the second sentence of the second paragraph of your letter:
"It would be illegal for me to withdraw a consent for a particular release in the absence of sound scientific evidence of potential harm."
I want to consider both aspects of that statement—the legality of your withdrawal of consent and the scientific evidence that is available.
On the scientific evidence, in your answer to question 2 you gave the separation distances between the GM oilseed rape and the non-GM oilseed rape as 1.3km, 1.5km and 1.7km. Are you aware of the article by Timmins et al in Nature, volume 380, page 487, in which pollen from GM oilseed rape was detected 2.5km away from where it was planted? In an article by Levene et al in Theoretical and Applied Genetics, volume 96, pages 886-96, it was found that pollen was travelling longer distances than had previously been thought. Many members of the public are concerned that you and ACRE are perhaps not taking into consideration such scientific evidence, which is coming into the public domain more and more.
Your answer to question 5 related to biodiversity and the effects on wild crops that are related to oilseed rape. I can provide you with references to examples of GM interaction with B campestris, hoary mustard, wild radish and wild turnip. I have references for other areas too. On that subject, what do you believe constitutes
"sound scientific evidence of potential harm"?
You claim that legality is the factor that stops you from withdrawing consent. However, you will know that the Belgian minister has decided to turn down five GM trials for oilseed rape in the past week or so. Why is your advice so emphatically different from the advice that is being received by politicians in Belgium?
I am sure that you are aware of section 111(10) of the Environmental Protection Act 1990, which clearly gives you the ability to withdraw consent. I would like to understand why, when the Welsh Assembly received advice that indicated that sections of the Environmental Protection Act 1990 could be used to stop the growing of GM crops, your legal advice does not allow you to take the same route. It would be instructive to hear on what your legal advice is based.
The minister's answer will probably be his last before he goes. Therefore, I invite Des McNulty, Robin Harper and John Scott to add brief points. If their points are not brief, I will have to ask the minister to respond immediately.
You require a scientific basis for refusing an application. What kind of precautionary test do you apply? Does there have to be clear and demonstrable evidence of harm, or is reasonable uncertainty a consideration that would allow you to introduce a ban?
In your answer to question 8, you stated:
"the interest of the Scottish Executive is focused upon ensuring that any plantings which take place do not pose a safety threat to human health or the environment."
When we considered GMOs, the committee's view was that we wanted you to consider the scientific value of a trial in adding to knowledge. Does the planting in question add to knowledge in a significant way? Should that test be applied?
In your answer to question 7 you said:
"Evidence of harm would … call into question the commercial future of the crop in North America where it has been grown extensively for a number of years."
So what?
I have one other brief question. There seems to be a deep division between us on what we would call harm to the environment. I maintain that any evidence of cross-pollination with wild relatives within kilometres of a site is a threat to the environment. What do you define as a threat to the environment, if that is not?
My question gathers up all those points. It is about liability. The parallels between the GM issue and BSE in the 1990s are stark and horrific. ACRE is giving you the best available scientific advice. Similarly, in the 1990s the Swann committee and the BSE advisory committee gave the Government of the day the best available scientific advice. As a result, there was a huge problem.
Will you give categorical assurances to the public that, should there be a problem with human health or damage to the environment, the Scottish Executive will pick up the tab? Of course, there will not be a problem because you are so certain that there is no problem. Nonetheless, will you give us that assurance?
I will deal with the legal question first because it is germane to all of the points.
We have not been able to find out—and the press reports have not been helpful—whether the Belgian minister acted because the scientific advice was equivocal or whether she made that decision of her own accord. I will pursue that.
The Welsh Assembly was advised by solicitors who act for Friends of the Earth. They directed the Welsh Assembly to invoke article 16 of EC directive 90/220. Despite the UK Government not supporting the proposition, the Welsh Assembly also put the case to the UK Government that, as a devolved assembly, it had a right to do so.
I am advised that the commissioner for the environment, Margot Wallström, has made clear that she does not believe that the Welsh case would stand up in law or is sustainable under the EC directive. That is a matter for the Welsh Assembly, but her advice supports the legal advice that I have received. An applicant for a release must meet the test. The test is to demonstrate on an independent scientific basis whether that release will harm the environment or human health. If the application for a release meets that test, there are no other grounds on which that permission could be refused.
Perhaps that is an unfortunate answer to Des McNulty's question. However, another element cannot be introduced into the test—it is not written into the directive. You were seeking to add a further test of whether the release added to scientific knowledge, but an applicant would or would not be seeking permission for a release. We might argue about what the crop is for, but that is not what is in the test. The test is the scientific evidence of damage to the environment.
I could go to another body for that evidence. That would not get me out of discharging my responsibility under the regulations. I discharge that responsibility by using ACRE. We know that, two or two and a half years ago, some members of that committee were engaged in research that was funded by some of the larger companies. Those people were removed. Michael Meacher acted to remove from ACRE those who were engaged by universities, research institutes or other bodies that were funded by the companies. Those people were removed because there was a clear conflict of interest, which the current committee does not have.
I move on to the questions about Timmins et al and Levene et al and the travelling distance of pollen. I would have to check, but I would be disappointed if ACRE, which has access to all the latest available science, was not taking account of those scientific developments. The pollen transfer issue is not only about the distance that the pollen travels; it is also a question of the time that it takes to travel and whether it is still efficacious at 4.8 miles, 5 miles, or however many miles or kilometres, or whether it has lost its efficacy over the time and distance of travel. That is a matter that ACRE takes into account. The committee constantly takes account of the development of new scientific material and I would be aghast if it was not doing so, as that is the task that it has been set.
The committee was set up to act as an independent advisory body and to take account of new information on tested and properly researched material. I do not set myself up as a scientist; I turn to an expert body for advice on scientific matters. My answer, on the availability of information, is yes. ACRE takes advice on new developments. The legal position is that that is the set test and there are no grounds for permission to be refused other than failure of that test. That is the way in which the regulation is drafted.
Robin Harper raised the issue of the definition of the threat to the environment. That is a difficult debate, as it concerns what is believed to be the precautionary principle. As applied, that principle has meant that those releases have been made on a step-by-step basis. They started with indoor trials and met certain specifications. No jump can be made from allowing an indoor trial to granting a commercial release in a European context. As Derek Bearhop said, at each stage the available knowledge and understanding, as the next steps are approached, is presented on a step-by-step basis. That does not mean to say that, in the absence of proof of there being no risk, the trials are stopped before they even start. That is the other end of the proposition, and no advance in science will be made on that basis.
I stress that I take advice from ACRE and I do not fetter what it can look at or from whom it can take advice. On John Scott's question, the way in which the regulations are drafted means that I have to take advice from somebody. If you tell me that you do not believe ACRE, or if ACRE has given evidence to the committee that I do not have to take its advice, I still have to meet the objective scientific test. It is not up to the minister to say, "I believe," "I think," or "It is my opinion." The regulation requires me to meet the test. I believe that the best way in which I can discharge that responsibility is by asking ACRE to assess the evidence and to come to a view. It is then for me to ask whether that advice is presented in unequivocal terms. If it is not, there is no question that I have powers. If I receive equivocal advice from the scientific advisers, that is sufficient for me to say, "I have not received advice suggesting that there is no risk. There is equivocation and doubt." However, that has not occurred so far.
I am asking about liability, minister.
Sorry. That is an interesting proposition. The whole objective of the regime is the minimisation of risk. If an applicant is required to undergo a procedure whereby they have to meet a test, the regulator should not grant a consent unless they are satisfied that it would not give rise to a scientifically quantifiable risk to the environment or to health. Any liability claim would have to prove that someone had acted negligently, which would require the normal production in court of proof of negligent action. Paul Cackette may have something to say on that.
I have nothing to add to that. On the basis of the current position, a person who has suffered loss would require to establish that there was negligence on the behalf of the Executive in carrying out its regulatory role.
So that is a no.
You are positing a hypothetical question. The onus on you and on me is that if the regime, as prescribed by statute, requires you to demonstrate, on a scientific basis, that there is no scientific harm or harm to the environment or to human health, the only potential basis for that occurring is for a person to act negligently. I do not think that it is reasonable for you to ask me to indemnify persons who act negligently. That matter has to be tested in the courts.
With that, I draw the questions to the minister to a close. I thank the minister very much for his attendance at the committee, for the evidence that he has given on all three matters and for the fact that he has slightly overrun his time and given us 10 minutes more than had been allocated. I hope that we have not prevented the minister from getting to his next appointment.
I realise that we have reached 1 o'clock. I suspect that if we enter into a broad debate about how we should respond on this matter, it will take us some time. It might be appropriate to defer final consideration of how we respond until a subsequent meeting. Fiona McLeod is shaking her head. What do other members think?
I would like to defer consideration of the matter to another time, as I have somewhere else to go now.
I should have been somewhere else 30 minutes ago.
Without any discussion, I would like to put a motion.
I would rather that we deal with the matter thoroughly than in a hurry at 1 o'clock when everybody needs to be somewhere else.
Is there broad agreement that we defer discussion of the matter to a subsequent meeting?
When is the subsequent meeting?
It will be fairly soon. I need to consult Callum Thomson on whether the discussion will be on the agenda next week or the week after, but it will be held as soon as it can feasibly be fitted into our timetable.
I have no desire to be obstructive, but the fact is that those plants are still flowering and may be creating a problem, so it is a matter of urgency for the committee to make a decision.
With respect, I expect that, whatever position the committee adopts, the minister will not change his position. Any consideration of the issue by the committee is more likely to be about broader and longer-term issues.
The decision of the committee still stands. We have asked the minister to take the decision to plough the crops. We are not rescinding that. We should have a discussion next week. We should add an extra half-hour to the meeting. Members can make arrangements so that they can attend for an extra half-hour next week. That gets round the problem of there not being room on the timetable.
I think that we can accommodate that next week.
That is fine, as long as we do not overrun again. The point is that we must leave because the meeting has overrun.
With that, I close the meeting. Thank you very much.
Meeting closed at 13:03.