Subordinate Legislation
Genetically Modified Organisms (Deliberate Release) (Scotland) Regulations 2002
I welcome members to the 33rd meeting in 2002 of the Transport and the Environment Committee. The first item on the agenda is subordinate legislation. I welcome to the committee the Deputy Minister for Environment and Rural Development, Allan Wilson. With him are Scottish Executive officials Derek Bearhop, David Williamson, Paul Cackette and Lesley Mure.
We are first considering the Genetically Modified Organisms (Deliberate Release) (Scotland) Regulations 2002. The instrument is laid under the affirmative procedure, which means that the Parliament must approve it before its provisions come into force. I draw members' attention to an amendment that Robin Harper has lodged, which seeks to amend the motion in the name of Ross Finnie and has been selected for debate today.
In the past, our practice when considering instruments under the affirmative procedure has been to give members an opportunity to put questions to the minister before moving to a general debate on the motion—and, in this case, the amendment. Maureen Macmillan and Bruce Crawford have indicated that they would like to ask questions. Before they do so, the minister will have an opportunity to make some introductory remarks.
I am sure that my introductory remarks will obviate the need for any questions. [Laughter.]
The Scottish Executive takes a precautionary approach to the application of genetically modified technology. That precautionary approach is built on a strong regulatory framework and well-informed public debate. It is crucial that everyone should have confidence in the ability of the regulatory procedures to protect them and their environment. That protection should include protection from any possible threats posed by the unrestricted use of genetically modified organisms.
The Europe-wide framework for regulating GMOs has been in place since 1990. The original deliberate release directive was born in a completely different era, in which GM crops were largely unknown and the technology was in its infancy. At that time, there was little public interest in the matter and consumer choice did not carry the weight or market influence that it carries today.
Member states had been working on a revised directive for some time before directive 2001/18/EC was published in April 2001. In anticipation of the directive, we in the UK had adjusted our practices to make our processes more transparent and to provide for greater public involvement.
The new directive formalises many of those adjustments and builds in further requirements to strengthen the regulatory system. The strengthened regime will be implemented in Scotland through the regulations that the committee is considering today. The committee's deliberations are particularly important in that regard.
As members know, the regulations follow a process of detailed consultation. They parallel similar arrangements and instruments that are being introduced by the UK Government and the National Assembly for Wales. They provide benefits to human health, the environment, GMO producers and the public in addition to those that the previous regulations offered.
The new regulations will introduce an explicit requirement for environmental risk assessments to cover indirect and long-term effects of GMOs and for mandatory post-market monitoring to detect unanticipated effects of any GMO that is released commercially. There will be mandatory public consultation before decisions are taken on applications and antibiotic-resistant marker genes that could adversely affect human health will be phased out. There will be mandatory traceability through the production and supply chain and no consents will last longer than 10 years without a reassessment.
All those measures take steps towards improving transparency and public involvement in the decision-making process. That is because we believe that the public voice should not be ignored. Our concern is obviously to ensure that the public have every opportunity to contribute towards the regulations, which is part of the reason why we have gone past the European target date for implementation. We consider that proper consultation leads to sound legislation and I am sure that the committee would agree that sound legislation is better than rushed legislation.
I hope that the committee will support the introduction of the regulations, which reflect the principles agreed and set out in the European directive and represent a significant strengthening of the existing regime. That regime has served us well, but it is now in need of improvement to take account of the developments in rapidly progressing technology. The regulations better reflect the needs of the Scottish public, which, as parliamentarians, we are here to serve. I commend the regulations to the committee.
Again, I ask members whether they have questions. I see that both Maureen Macmillan and Bruce Crawford still do, so the minister's remarks did not obviate the need for any questions.
My first concern is about the definition of harm on page 5 in section 4(6). It has been suggested to me by constituents that—
I am sorry to interrupt, but I want to be sure that I have the right reference. Where is it?
It is on page 5, in section 4(6).
Mine is on page 6.
Either way, Maureen is referring to section 4(6).
Perhaps people have the document in different formats.
My constituents are concerned that the definition of harm does not include property, as was originally the case. They fear that that could have a significant impact on the ability of organic farmers or farmers who are trying to grow GM-free crops to seek redress if their crops are contaminated by GM pollen.
For the sake of clarity, it seems to me that Maureen is referring to regulation 4(4).
Yes, I beg your pardon.
David Williamson (Scottish Executive Environment and Rural Affairs Department):
Proposed subsection (6) is an amendment to the Environmental Protection Act 1990 and is contained in regulation 4(4).
I am sorry for that confusion.
Will there be protection for farmers who are growing organic or GM-free crops?
Do you want me to answer that now, or do you have other questions?
Do you want to answer the questions one at a time?
I am easy.
If you want to ask all your questions at once, Maureen, you might as well.
I will do that.
My next question concerns regulation 22, which is about the powers to revoke consents and a political judgment of risk. We hope that Mr Finnie would use those powers to stop the trials at Munlochy, but my constituents are telling me that the powers are being watered down by the requirement for new information. Will the minister make it clear whether that is the case?
My final question is about the role of the Health and Safety Executive in partnership with the minister. If the HSE has a veto, does that remove ministerial responsibility?
On the definition of harm, which is a reference to regulation 4(4), the amendment to the Environmental Protection Act 1990 has been necessary to reflect the new directive. In that context, harm is taken to mean any adverse effect on human health or the environment. I understand that the European Union is giving separate consideration to some of the points that you raise. The issue will certainly feature in the public debate that we anticipate will ensue. Our primary concern is to protect human health and the environment from any risk raised by GMOs, so we welcome the directive's significantly higher standards of scientific scrutiny.
You raise in general terms the issue of co-existence and the issue of economic liability in particular. We recognise that the directive does not make provision for non-safety issues, such as economic liability—for example, the presence of GM crops causing economic loss. On co-existence, we want to ensure that organic and GM-based agriculture can co-operate without damaging each other. Both those topics will feature in the public debate to which I referred. My colleagues can give supplementary scientific or legal information.
At this stage, officials can add to the minister's answers.
Paul Cackette (Office of the Solicitor to the Scottish Executive):
The flavour that I took from the question was that it related to organic farmers' concerns about legal liability, because of a feeling that the definition of harm in the new directive was different from the definition in the old one. Neither directive deals directly with legal liability of a GM farmer in respect of organic farmers, but I can certainly see that issues arising from the regulations could play a role when an organic farmer wanted to pursue a claim for loss resulting from negligence.
I am unaware of any cases since the first directive came into play in which a farmer has successfully pursued a claim for economic loss in relation to GMOs. The important point is that, although the wording in the regulations is different, the rights will not be diminished—if the farmers have those rights, they have them already.
We are talking about the regime that regulates GMOs. A separate regime deals with issues of negligence. In terms of the current law of negligence, I am unaware of any cases where a pure economic loss claim has succeeded. The change of definition will not make it harder to pursue a claim. The directive does not make any difference to the position of organic farmers; it is certainly not the intention of the directive to do so and that is not a conclusion that is likely to be drawn.
Does the minister want to come back on the other points that Maureen Macmillan made? I should say to the minister and members that this stage of the discussion is about technical clarification. We should not get into the wider debate, because we will have that in due course.
Some of the points raised relate to the debate around Robin Harper's amendment. I will try as best I can to explain what are complex points of European and domestic law.
On Maureen Macmillan's question about new information, it is important to explain what the regulations are not. They do not represent a restriction whereby any revocation of consent is based simply on new information coming to light. New information can be interpreted widely to mean a new assessment that is based on advances in scientific knowledge—in either a directly or indirectly related sphere of science—and that examines, or re-examines, pre-existing information to substantiate a revocation of consent. That is a much broader interpretation than some may have applied to the regulations.
I am sure that it is not the wish of Maureen Macmillan, or indeed the committee, that we should ignore health and safety advice to ministers on dangers to those who handle genetically modified material. We would not under any circumstances do so. It is important to stress that the ultimate decision lies with ministers. Part B consents require the agreement of the HSE, but we might choose not to grant consents for reasons that are unrelated to any health and safety concerns expressed by the HSE.
I would like to ask a question for clarification. Could situations arise in which the minister decided to refuse a consent for health reasons but, after the HSE said that it did not have a problem with the health aspects, the minister would have to back down?
I think that that is what I just said.
Okay—I was not quite clear about that.
Derek Bearhop (Scottish Executive Environment and Rural Affairs Department):
The minister requires the consent of the HSE if his decision is to approve a consent. The HSE might have no health concerns, but the minister might have environmental concerns, for example, and could refuse an application. In that sense, the HSE does not have a veto. Are you with me?
Yes—although I am still trying to clarify what the situation would be if the minister had health concerns, never mind environmental concerns.
Are you asking about health concerns unrelated to the safety of the workers who are handling the GM materials?
Health concerns for whatever reasons.
The answer is yes.
It is just that health and environment are different concerns.
There is an important consideration here. The HSE exists to protect the health and safety of workers regardless of the sphere in which they are employed. It would be an irresponsible minister who sought to ignore the HSE's advice that the introduction of a GMO could endanger the health and safety of those who handled it.
Have you taken advice from—
Excuse me, John. Please address your questions through the chair. I will call you in due course. I call Bruce Crawford.
I look forward to the debate—it will follow shortly—but I wish to raise a point of clarity and understanding. The Executive note deals with the precautionary principle. In his opening remarks, the minister said:
"The Scottish Executive takes a precautionary approach to the application of genetically modified technology."
What is the Executive's definition of the precautionary principle?
I refer you to the full text of introductory paragraph 8 of the directive. The precautionary principle has been taken account of in the drafting of the directive and must be taken into account when implementing it. The precautionary principle should be used where a scientific assessment has identified the possibility of harmful effects or where there is ambiguity, as I said in my preamble. All proposals to release a GMO are subject to intense scientific scrutiny and approval is not granted if there are concerns about possible harmful effects.
However, the precautionary principle should not be used to stifle scientific development. There is an important distinction. The precautionary principle is intended to be used where there is scientific uncertainty or an absence of information. Where the scientific evidence is unambiguous and no scientific evidence exists to support concern, it would be a distortion of the purpose of the precautionary principle to invoke it.
The precautionary principle is built into the regulation of GM crops, which are released only on a step-by-step basis after detailed scientific assessment of the risk entailed. As members are aware, there is no such thing in scientific terms as no risk—it is important to remember that. GM trials are of course a precautionary step that puts a brake on what might otherwise be commercial development. That is a brief response to the question on the application of the principle.
Thank you. That was a good explanation of the application of the principle. However, I asked for a definition of the principle from the Executive's perspective.
I thought that I had just given that.
No, you explained when you would apply the precautionary principle, but we have not had a definition of the principle.
The minister has given the answer that he feels is fit for the question. As Sir David would say, I am not responsible for the answers that ministers give. The minister has answered the question that he was asked.
Perhaps I am not picking the question up. I thought that I gave a fairly full explanation of not just what the principle is but how it is applied. Approvals are not granted if there are concerns about possible harmful effects. The Scottish Executive would not take risks with human health or the environment. As everybody here knows, we act on the basis of the expert scientific advice that we receive.
We will move on. Does John Scott still want to ask a question?
No.
Does anyone have the original definition of harm, which we are replacing?
The reference to harm is in section 107(6) of the Environmental Protection Act 1990, which says:
"‘Harm' means harm to the health of humans or other living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes offence caused to any of his senses or harm to his property."
Property is the subject of separate European Union consideration.
Thank you.
In his opening remarks, the minister said that there would be a mandatory review of the long-term implications of the deliberate release of GMOs. He also spoke about traceability of GMOs. How will the Executive achieve the mandatory target? Given that we now have scientific evidence of cross-contamination, will the Executive test fields that are adjacent to and up to 6km away from field test sites?
The minister also made much of consultation with the public. What consultation was made with farmers before the regulations were laid before the Parliament?
I will ask my colleague to reply.
There is a requirement on member states to monitor the implementation of the new directive. As a competent authority, Scotland would feed into the UK member state response to the Commission on the issues that arise from the implementation of the directive. The Commission would report on an annual basis in some instances and on a three-yearly basis on other issues that arise from implementation of the directive. Does that answer Fiona McLeod's questions?
No.
Have I missed something?
The minister said that he would study the long-term effects of the deliberate release of GMOs. He also talked about traceability of GMOs in the crop once it is harvested. How does the Executive plan to do that?
If a part C marketing or commercial consent is involved, the new environmental assessment process requires the applicant to include a mandatory post-marketing monitoring plan. That is designed to assess impacts on the environment or human health. The applicant has to report impacts to the competent authority that granted the consent.
Two consultations were held—one on the principle and one on the regulations—into which farmers and others were entitled to feed. I am not sure whether Fiona McLeod is seeking further information about the farmer input to that process.
Yes.
Both consultations were copied to the National Farmers Union of Scotland.
As that exhausts members' questions, we will now consider the motion in the name of Ross Finnie and the amendment in the name of Robin Harper. I call the minister to speak to and move motion S1M-3560.
I welcome the opportunity to try to clarify members' questions, some of which relate to the merits—or perhaps demerits, as they are perceived—of GM technology. However, as the amendment recognises, today's meeting is clearly neither the time nor the place for that debate. Today is the time to implement regulations that strengthen the existing regulatory regime, which we all want to do. The regulations also provide additional benefits in relation to issues involving human health and the environment. As I said in my introductory remarks, the regulations introduce a more robust framework in which to take decisions on whether to allow the release of GMOs.
The regulations have been developed in conjunction with Department for Environment, Food and Rural Affairs colleagues down south, the National Assembly for Wales and the Department of the Environment in Northern Ireland. It is important to note that the regulations ensure consistent and complete implementation throughout the UK.
Whatever happens in the future, which I am not in a position to predict, we need a robust framework in which to take sound, scientifically based decisions. The regulations under the directive provide for that. It is for those reasons that I commend the motion to the committee.
I move,
That the Transport and the Environment Committee recommends that the Genetically Modified Organisms (Deliberate Release) (Scotland) Regulations 2002 be approved.
At the start of the debate, I should have said that standing orders allow us a maximum of 90 minutes to debate the instrument. I hope that we will not need to use all 90.
In general, I welcome the EU directive but, as I have already indicated in a previous response to the minister and in an e-mail that I sent to the minister last night, I have concerns. I will condense them now.
There are six areas where the meaning of the directive has been lost in the translation—I think that is the best way of putting it—or become weakened. The regulations narrow the definition of harm and weaken the existing definition in the 1990 act of proper control. I have concerns about information, about the existing powers of Scottish ministers and about the Scottish ministers' joint powers with the Health and Safety Executive. I will consider those concerns in detail.
The first part of my amendment relates to the consideration of "ethical principles". Recital (9) of the EC directive clearly states:
"Respect for ethical principles recognised in a Member State is particularly important. Member States may take into consideration ethical aspects when GMOs are deliberately released or placed on the market as or in products."
However, under the regulations, it is not apparent where and how consideration of ethical aspects would be undertaken when GMOs are deliberately released into the environment or placed on the market. A consideration of ethical principles in determining the release of GMOs should be contained in the regulations, which should not be approved until that happens.
Point (a) of my amendment relates to the new definition of harm in the regulations. Regulation 4 would define the key terms and essential concepts of the new legislative regime and would amend the EPA as necessary. Regulation 4(4) would amend and seriously weaken, to include any adverse effects on human health or the environment, the existing definition of harm, which is:
"‘Harm' means harm to the health of … living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes offence caused to any of his senses or harm to his property".
That has been referred to already.
The removal of the reference to harm to property is a particular concern, given that recital (16) of the EC directive states:
"The provisions of this Directive should be without prejudice to national legislation in the field of environmental liability, while Community legislation in this field needs to be complemented by rules covering liability for different types of environmental damage in all areas of the European Union."
The definition of harm must retain the reference to property and the regulations should not be approved until that happens.
Point (b) of my amendment relates to the definition of control. Under the EPA, organisms are defined as being
"under the ‘control' of a person where he keeps them contained by any system of physical, chemical or biological barriers (or combination of such barriers) used for either or both of the following purposes, namely—
(a) for ensuring that the organisms do not enter the environment or produce descendants which are not so contained; or
(b) for ensuring that any of the organisms which do enter the environment, or any descendants of the organisms which are not so contained, are harmless."
The regulations would significantly alter the definition of control:
"Organisms of any description are under the ‘control' of a person where that person keeps them contained by specific measure designed to limit their contact with humans and the environment and to prevent or minimise the risk of harm."
The reference in that definition to the minimisation of the risk of harm appears to represent a considerable weakening of the definition in the EPA and should not be accepted.
Regulation 11 states that applications for consent to release or market genetically modified plants should contain information that is prescribed in schedule 2 or 3
"to the extent that such information is appropriate to the nature and scale of the release or application".
It is not clear who would be responsible for deciding which pieces of information outlined in the schedules could be omitted or on which grounds such omissions could be made. The ability to vary the scope and nature of the information in the application does not appear to be identified in the directive. A key element of the directive is that any application should include a risk assessment that takes into account indirect, delayed, cumulative and long-term effects of the release of a GMO into the environment. Selecting the information to be included in an application to release a GMO may compromise our ability to assess fully all the potential impacts of such a release.
The regulations propose that, in future, ministers may revoke consents only if "new information" comes to light. At present, ministers are allowed to revoke any consent at any time. The regulations propose a worrying reduction of ministerial powers. What is meant by "new information"? Can the Scottish ministers say that information that has been submitted to them is not new and that they will not consider it? Why is the Executive narrowing ministerial powers when that is not necessary? The regulations would give the Health and Safety Executive a veto on decisions to refuse consent for growing GMOs on health grounds. Why?
I ask the committee to support my amendment. It does not throw out the regulations but expresses regret at the omissions and insertions to which I have referred. It puts a moral obligation on the Executive to consider each of them and to lay revised regulations before the Parliament. Of course, if we believe that the regulations are fatally flawed, we can reject them all.
I move amendment S1M-3560.1, to insert at end:
"but, in doing so, regrets that the regulations do not require the consideration of ‘ethical principles' before genetically modified organisms (GMOs) are released or placed on the market, as highlighted in the preamble to Directive 2001/18/EC, and that the regulations (a) narrow the existing definition of ‘harm' from GMOs under the Environmental Protection Act 1990 instead of retaining the existing definition which includes harm to property, (b) weaken the existing definition in the Act of proper ‘control' of GMOs that currently requires any GMOs that enter the environment to be ‘harmless', to only having to ‘minimise the risk of harm', (c) allow the requirement for information to be contained in an application for consent to release/market GMOs, as required in the Directive, to be varied ‘to the extent that such information is appropriate to the nature and scale of the release or application' but do not require full information to be provided according to Annex III of the Directive for any release of GMOs, (d) reduce the current powers of Scottish ministers to ‘revoke a consent at any time' to instead only allowing a consent to be revoked if ‘new information' comes to light and (e) provide for joint powers with the Health and Safety Executive to refuse a consent on health grounds rather than such powers being retained solely with Scottish Ministers."
On a couple of occasions, Robin Harper said that the committee should not approve the instrument until a particular change had been made. However, if the amendment is agreed to, the committee would still have recommended that the regulations be approved.
I will deal later with some of the points that Robin Harper made, as I am confused about his intentions.
I welcome the general direction of the directive—at issue is whether it goes far enough. We are here to approve legislation that reflects the Scottish position and—as the minister said—the concerns of the Scottish people. We are not here simply to endorse the position of DEFRA. Some of the changes that were made to the original draft instrument seem merely to reflect the wishes of the UK department.
In my view, the draft instrument is seriously flawed—for a number of reasons. I am appalled by the failure to apply the precautionary principle throughout the draft SSI. I am concerned that the instrument would dilute existing powers and about the way in which it would define harm—an issue that Robin Harper raised. Other issues of concern are the passing of responsibility from the Scottish Executive to the Health and Safety Executive, the serious gaps that exist on testing issues and the potential impact of the instrument on human health. I will deal with those criticisms in detail.
In its note to the draft regulations, the Executive claims:
"The precautionary principle was taken into account in drafting the Directive and has been taken in account in drafting these implementing Regulations."
The Executive may have taken the precautionary principle into account, but it is a pity that it chose to ignore that principle entirely with regard to the risk of damage.
The precautionary principle advocates a proactive rather than a reactive approach to risk and works on the premise that it is better to be roughly right ahead of time than to be precisely wrong too late. In other words, the precautionary principle demands that action be taken before proof of environmental damage or likely environmental damage is available. Scottish Natural Heritage, which is the Executive's adviser on natural fauna and such matters, interprets the precautionary principle to mean that
"full scientific proof of a possible adverse environmental impact is not required before action is taken to prevent that impact."
There are 12 references in the regulations to the risk of damage, but none has the key word "potential" before it. The precautionary principle will not be applied properly unless the word "potential" is inserted before the phrase "risk of damage". In my view, the regulations are weakened fatally. To save time, I have circulated a list of proposed changes to the regulations. I do not want to go through them individually because that would take a heck of a lot of time. I hope that the list will save the committee some time.
Frankly, Robin Harper's amendment is pointless. Given that, as he said, the regulations are flawed, the only course of action is to vote against them. A vote for Robin Harper's amendment would be a vote to approve the regulations as they stand, which I cannot do. Fiona McLeod will deal with some of the issues that Robin Harper raised about existing powers and protections as well as the passing of powers from the Scottish ministers to the Health and Safety Executive, but I want to consider how the regulations could be strengthened beyond the EU directive's requirements. We must apply the precautionary principle to the testing of conventional crops that are adjacent to genetically modified crop trials. It is vital that such conventional crops are tested for genetically modified contamination, which might freely enter the human food chain.
The European Environment Agency report on genetically modified organisms describes clearly its view of the high risk of crop-to-crop gene flow from oilseed rape. The Executive will no doubt tell us that its advisers, particularly the Advisory Committee on Releases to the Environment, say that the risk is minimal and can be set aside. However, there are risks, which is why we must apply the precautionary principle. I do not dispute that different bodies have different scientific opinions and give different advice. That does not matter; the important point is that the precautionary principle does not require absolute proof; SNH states that full scientific proof of possible adverse impact is not required.
Given that the minister, if I heard him rightly, said that the precautionary principle would be applied in cases of ambiguity or scientific uncertainty, my points should be acceptable to him. If the Executive were truly intent on applying the precautionary principle, it would require tests to be carried out on conventional crops that are situated adjacent to genetically modified crop trials in order to provide guarantees that no contaminated material will find its way into the human food chain.
Forgive me if I misunderstand this complex piece of legislation, but the regulations do not take a precautionary approach to the potential implications for public health. The British Medical Association has advocated strongly that a precautionary approach should be taken with regard to the implications for public health. In its recent advice to the Health and Community Care Committee, the BMA stated:
"Further research is required into the health and environmental effects of GMOs before they can be permitted to be freely cultivated. This must be executed in such a way as not to expose the population to possibly irreversible environmental risk, which may, in turn, have as yet unquantified public health implications."
That is the point of the precautionary principle. The advice continued:
"The BMA recommends that the only way to assess the impact on health is to track any subtle changes in the trial areas. Routine health surveillance currently in place would not pick up adverse effects on the health of people living in the vicinity of GMO trial sites in Scotland".
The BMA recommends that there should be a moratorium on such sites.
The BMA's position represents a precautionary approach. As I have stated, the Executive has failed to do that in a number of ways throughout the regulations. If members believe, as I do, that the precautionary approach has not been properly applied, there is only one course of action that can be taken with regard to the regulations. We should reject them and ask the minister to redraft them and bring them back. That would not take a great deal of time to achieve, but we could end up with a much strengthened position, as Scotland could say for real that it was applying the precautionary principle.
I would like some clarification. Where has the piece of paper that has been circulated to us come from?
I understand that that document covers areas where Bruce Crawford believes that the instrument could be improved; it does not have any formal status at this stage. The committee must consider whether to approve or reject the motion in the name of the minister—and thereby the instrument—and whether to approve or reject Robin Harper's amendment. Those are the options before the committee.
As I said in my address, I circulated that piece of paper to try to save time.
I do not think that what Bruce Crawford has suggested adds anything at all. In particular, I think that he misunderstands the notion of the term "risk", which implies an assessment of the potential for damage. What he has put forward is just nonsense, frankly. He ought to read a dictionary.
The points that Robin Harper makes are reasonable, as they relate to identifiable areas of debate. What is surprising is how he is making those points—by proposing an amendment to the motion. Robin Harper has commented on issues that will be taken forward not just in the context of this SSI, but also in the implementation of future SSIs. The committee has raised issues, and Robin has added to and amplified a number of those points in relation to the instrument that we are considering today.
Bruce Crawford's position is the honest one. He is saying, "Reject this." What he is not saying is what he would put in its place. He is offering the addition of the word "potential" a number of times throughout the instrument. That is pretty much a nonsense and I suggest that we reject what Bruce Crawford has to say.
There are a few points that the minister will not be surprised to hear me raise. They have been raised by other members already, both in the debate and when previously questioning the minister. First, I want to look at the redefinition of "harm" in terms of the environmental assessment and the answers that the minister and his civil servants gave in support of the order. Bruce Crawford has already raised that issue under the precautionary principle. As I have stated on many occasions, the minister knows that evidence is available to show that there is cross-contamination over many kilometres. An environmental assessment has to take that risk into consideration, so any definition of "harm" must take that evidence and the precautionary principle into consideration.
In reply to my earlier question, I was told that the environmental assessment of harm would be done by the applicant for a part C consent. I understood that ministers had no intention of granting part C consents in Scotland and that we were still at the stage of part B consent, which is the consent to trial. The minister and his civil servants have told us today that the new definition of "harm" in the regulations will allow people to grow genetically modified organisms under a part B consent without having to carry out an environmental impact assessment that looks at the effect on
"humans or other living organisms"
of
"interference with the ecological systems … and, in the case of man … offence caused to any of his senses or harm to his property."
The minister has already read out that definition of "harm". Quite clearly, the new definition of harm, coupled with the answer that we have had about its applying to part C consents, but not to part B consents, leaves us in the position in Scotland where genetically modified organisms can be grown as a trial and nobody has any comeback.
Des McNulty raised a point about risk assessments and using dictionaries. He knows as well as I do that when we carry out a risk assessment, we have to define the risk that we are assessing. Therefore, if the risk assessments are to have any meaning, we have to apply the precautionary principle.
When we talked about the definition of harm, the minister said that there were no non-safety issues in the new definition. It is quite clear to all members of the committee as well as to farmers and the public that the cross-contamination of crops is a safety issue. It is not merely an issue of economic damage to the adjacent farmer; it is an issue of damage to the environment and, possibly, to public health in Scotland. The minister cannot just dismiss the point by saying that there are no non-safety issues.
I want to home in on the point about economic damage. Paul Cackette's answer made it quite clear that in his interpretation a farmer on an adjacent farm that suffered cross-contamination would still have a case to put that he had suffered economic harm. After having been questioned many times, mostly by John Scott, will the minister now accept his civil servant's definition and say that he will accept liability for economic damage caused by cross-contamination?
I move on to the issue of the Health and Safety Executive. Section 111(10) of the Environmental Protection Act 1990 states that the minister
"may at any time, by notice … revoke or vary the consent".
Mr Finnie has constantly argued that that does not give him the ability to revoke or vary a consent in Scotland for some reason. On each occasion he said that that was because the Advisory Committee on Releases to the Environment said that the scientific evidence would not allow him to do that. I wonder why the HSE was introduced in the new regulations. Was that in case ACRE no longer provided the minister with the advice that he wanted to hear? Was it to enable him to turn to another agency to get the advice that he does want to hear?
The fact that I have to ask a Scottish minister to go to the UK environmental regulatory agency, not to the Scottish environmental regulatory agency seems rather strange. However, I am sure that the minister will be able to explain why he would prefer the UK HSE to the Scottish Environmental Protection Agency when considering damage to the environment.
Within the HSE, which is a UK agency, genetically modified organisms and their deliberate release are dealt with by a very small department in Bootle, which is a suburb of Liverpool. As I understand it, the department has three members of staff. From now on, the minister is going to take advice on whether to revoke or vary a consent on the deliberate release of genetically modified organisms in Scotland from a very small department of a regulatory agency, which determines the deliberate release of genetically modified organisms.
I think that the minister misunderstands the HSE's role in these matters. On at least two occasions, the minister referred to the HSE in relation to the health and safety of workers, which, I presume means the farmers and anybody working with the genetically modified crops. That was the basis for the minister's reasoning that the HSE will not have a great power of veto and that the minister will make the ultimate decision. I agree that that should happen. Has the minister read section 3 of the Health and Safety at Work etc Act 1974? It states clearly that it covers not only workers but the public, when they come into contact with the work that is being carried out. Therefore, section 3 will cover adjacent farms and members of the public on land adjacent to the farms where the genetically modified crops are grown. The HSE could, using section 3 of the Health and Safety at Work etc Act 1974, veto anything that the minister decides to do.
The minister kept saying that there should be a full public debate. Should not the public debate have taken place before the regulations came before us rather than unfolding, as the minister implied, after we have implemented them? One of the civil servants stated that the consultation had been copied to the National Farmers Union of Scotland. Does that union represent all farmers in Scotland? Does it take a particular interest in the needs and requirements of organic farmers in Scotland? Could the minister tell us what reply he received from the NFUS and whether he took into account suggestions that it may have made to him?
The statutory instrument is, on many counts, fatally flawed in respect of the protection of the environment in Scotland. It will therefore have to be rejected and, I hope, redrafted and replaced to take account of the concerns of committee members.
I am unhappy about parts of the affirmative instrument. I declare an interest as a farmer.
I favour the ultra precautionary principle, as we do in the Conservative party, so I cannot accept the reduction of responsibility that the affirmative instrument seeks for Scottish ministers. It is unacceptable, when the Health and Community Care Committee is considering evidence on the matter, that the minister is seeking to reduce his responsibilities and liabilities in this respect.
Our problem, as lay people, is that we are confronted with apparently conflicting advice. The BMA's submission to the Health and Community Care Committee last week posed the question:
"should the Executive prevent GM crop trials from continuing on the grounds that it is against the precautionary principle to allow them to continue?"
In response, the BMA states unequivocally that those trials should not proceed:
"There has not yet been a robust and thorough search into the potentially harmful effects of GM foodstuffs on human health. On the basis of the precautionary principle, farm scale trials should not be allowed to continue."
It does not get much clearer than that, minister.
On the other hand, the minister and ACRE say that there is not a problem and there is nothing to worry about. Who are we to believe? That is key to our consideration of the affirmative instrument. The Royal Society of Edinburgh states in its submission to the Health and Community Care Committee that GM crops probably do not harm human health, because no one has shown yet that they do. It nonetheless accepts that there has been
"no formal assessment of the allergenic risks posed by inhalation of pollen and dusts."
It cites evidence from the US that suggests that effects are likely to be only "small and long term"—there is no need to worry then.
ACRE's criteria to gauge harm when releasing genetically modified organisms into the environment tell us nothing apart from the fact that the traditional methods used to carry out risk assessment of the "seven attributes of harm" are not ideally suited to the assessment of risk from GMOs and that it proposes a new set of matrices to do that.
I will now address the Government's role in the matter. Today, Ross Finnie—in the unlikely guise of Allan Wilson—is seeking to get out of his responsibilities. Why else would he seek to so significantly water down section 107(6) of the Environmental Protection Act 1990 on the meaning of harm. It states:
"‘Harm' means harm to the health of humans or other living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes offence caused to any of his senses or harm to his property."
Regulation 4(4) of the SSI states:
"‘Harm' means adverse effects as regards the health of humans or the environment."
By any standards, that is a diminution. Why is Ross Finnie so determined not to put his money where his mouth is and say, "I will be liable. We, the Scottish Government, will be liable if it can be shown subsequently that we got it wrong"? The only conclusion one can draw from the needless reduction of his responsibilities is that he and the Government are not prepared to accept the liabilities that might fall on them if adverse effects on human health and the environment subsequently come to light.
I do not believe that that approach is good enough. The Executive has called all the shots on the matter from the outset. It has chosen to ignore those, including the BMA and the Transport and the Environment Committee, who have expressed reasonable fears and doubts on GM crops. The bottom line is that if it goes wrong, ministers must take the blame and the responsibility. Ministers cannot give up the power under section 111(10) of the Environmental Protection Act 1990 to revoke any consent at any time and substitute that with the statement that they shall revoke a consent only when new information becomes available that ministers consider
"would affect the assessment of risk or damage being caused to the environment by the release."
That is a cop-out, minister, and to make the HSE responsible is an abrogation of your responsibilities and duties. Therefore, the committee cannot support the affirmative instrument.
The committee has been presented with conflicting evidence. Should it believe the BMA or ACRE? To adequately adopt the precautionary principle, the committee must note the concerns of the BMA and others and act on them. Based on the evidence that it has received, it is to be regretted that the committee could not responsibly pass the affirmative instrument today.
I had not intended to speak, but some things must be said. The HSE is not responsible. It merely advises the minister, with whom the responsibility rests. We are discussing removing property from the definition of harm. However, should property have been included in that definition in the original Environmental Protection Act 1990?
I do not see any difficulty in saying that the minister needs new information before he revokes a consent. Presumably he would not have given consent in the first place, in an irresponsible or unconsidered way, based on the information that he had.
There are serious and important arguments to be made about GM trials, crops and foods, none of which have been made today. The possible exceptions are the points made by Robin Harper, but they have not altered the way in which I intend to vote. I deplore especially the idea, which has been used as an argument in other contexts and other places, and was repeated yet again by SNP members, that if an agency is in Bootle, it is bad, and if it is in Banff, it is good. That is nonsense.
I am in a slightly difficult position. An amendment of regret is a new idea. It appends to an Executive motion a series of concerns that one hopes it would address. A large section of the directive has been adopted, and the Executive has moved on some other areas where recommendations were put in asking them to make changes. There is a feeling that the new regulations should be brought in as soon as possible because the bulk of them represent improvements on the present situation.
Members are concerned about the risk of cross-contamination. A serious event occurred in the United States recently, whereby a crop that had been modified to produce medicines cross-contaminated a crop that was destined for the food chain. Where such events are possible, consequent to a further roll-out of GM crops into the environment in Europe—and Scotland in particular—the regulations must be robust enough to ensure that they never happen here. Any concerns over cross-contamination must be taken extremely seriously.
As to how I would like to progress with my amendment, Bruce Crawford has indicated that the SNP is not disposed to support the amendment. In one sense, it is immaterial how the committee votes on my amendment, which expresses serious concerns. Enough concerns have been expressed for the committee to reject the regulations as they stand—although that is consequent on the Executive response—and ask the Executive to come back as quickly as possible with any further amendments that it is prepared to make to the regulations so that they can be operative as soon as possible.
Are you pressing your amendment, or do you wish to withdraw it?
I press my amendment, but if it is agreed to, I will still urge the committee to reject the amended motion. Have I made myself clear?
I understand what you are saying; I am sure that other members do as well.
In that case, if—
I was just clarifying whether you were pressing the amendment. You have had the chance to respond to the debate.
Is Robin Harper saying that he wants to—
I do not wish to re-open the debate, Angus, because a number of members would wish to do that.
If there is a misunderstanding, I will withdraw my amendment and leave it as a clear vote on whether to accept or reject the motion.
Amendment, by agreement, withdrawn.
A few red herrings have been introduced into the debate. I do not know whether a red herring is a genetically modified fish, but some have certainly been released into the environment of the debate by the SNP and the Tories—I exclude Robin Harper from that analogy.
Nothing comes without risk. Zero risk is impossible. Everything carries a potential risk, as Bruce Crawford outlined. His suggested amendments to the regulations would prevent any GMO releases in Scotland. That is presumably his intent.
Are those amendments compatible with European law? We understand that the Greens wish to withdraw from the European Union; that is not the SNP's position—not yet, anyway. The answer is that the amendments would probably not be compatible with European law, because, if a case passed the test in the directive, which obliges an assessment of risk to health and the environment—I will come to that test later—not to permit that trial would potentially contravene European law. The insertion of "potential" would effectively contravene EU law.
The amendment to the Environmental Protection Act 1990, which has been introduced, is necessary to reflect the new directive. As I said to Maureen Macmillan in the question-and-answer session, "harm" is taken to mean any adverse effects on human health or the environment. I accept that questions remain about economic liability and co-existence. Robin Harper and Maureen Macmillan outlined those questions. I attempted to address them in the question-and-answer session.
In terms of the ethical considerations, the new directive and the implementation of the regulations remain firmly based on a scientific assessment of risk. Individual applications to release or market a GMO are risk-assessed on a case-by-case basis.
There is provision in the directive for the European Commission to have regard to social, economic and ethical issues. In the light of member states' practical experience of implementing the directive, the Commission may issue further guidance to address the ethical concerns to which Robin Harper and others have referred, which arise from the release or marketing of particular types of GMO.
That is important in relation to the information that is being sought under the directive. The information that is required reflects the type of application. For example, an application for the import of cut flowers would require a more limited risk assessment than a GM product for human consumption, but Scottish ministers remain the competent authority in that context, which is as it should be.
The idea that cross-pollination equates to harm is another red herring; cross-pollination does not equate to harm. The purpose of the regulatory system is to assess risk. Ministers will give approval only if the advice is that the GMO carries no greater risk than its conventional equivalent.
Another red herring is the question of the robustness of the consultation process with regard to both the National Farmers Union of Scotland and, latterly, the organic movement. In fact, the consultation that was issued to 120 stakeholders, including local authorities, community councils, health boards, research establishments, universities, environmental groups and associations, as well as all colleague MSPs, attracted a total of 24 responses, which were summarised. At the outset of the consultation, the Executive made clear its intention to make the responses available to the public and to the Scottish Parliament. That consultation included the Scottish Organic Producers Association.
I have dealt with the question of revoking consents and the powers of ministers. In response to Maureen Macmillan, and in relation to the serious point that Robin Harper and other members made, I explained that the reference to new information does not restrict revocation of consents to situations where there has been no prior assessment of pre-existing information. It does, however, provide for the development of the science base, which is taken on board in relation to future assessments and potential revocations.
The last red herring that I wish to deal with prior to asking members to support the Executive's motion came from the Tories, interestingly enough. It is the suggestion that the evidence from the BMA is not contradictory. As members know, Dr Charles Saunders suggested that GM field trials should, simultaneously, be discontinued and be used to quantify potential risks to human health. That is a contradictory position. We favour the continuation of trials, which is obviously necessary to obtain the evidence upon which future assessments of the risk to human health can be based.
For all those reasons, and for those that I outlined before moving the motion and that are contained in the preamble of our informatory debate, I ask members to support the motion to recommend that the regulations be approved.
The question is, that motion S1M-3560, in the name of Ross Finnie, be agreed to. Are we all agreed?
No.
There will be a division.
For
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Radcliffe, Nora (Gordon) (LD)
Against
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Harper, Robin (Lothians) (Green)
McLeod, Fiona (West of Scotland) (SNP)
Scott, John (Ayr) (Con)
The result of the division is: For 5, Against 4, Abstentions 0.
Motion agreed to.
That the Transport and the Environment Committee recommends that the Genetically Modified Organisms (Deliberate Release) (Scotland) Regulations 2002 be approved.
Large Combustion Plants (Scotland) Regulations 2002 (SSI 2002/493)
I will deal briefly with the regulations, after which I intend to give members a couple of minutes' break before we proceed to amendments to the Water Environment and Water Services (Scotland) Bill.
The regulations are subject to negative procedure. No members have made points about the regulations and no motions to annul have been lodged. Do members confirm that the committee has nothing to report on the instrument?
I do not wish to annul the regulations, but I have a question about the science, which is a bit confusing. I understand the need for greater restrictions on NOCs and SOCs—non-volatile organic compounds and semi-volatile organic compounds—which the instrument tries to impose, especially to help to deal with issues such as acidic rain and how it impacts on the environment. However, I understood from discussions with bodies such as Scottish Power that such restrictions would increase the amount of CO2 that is required to be burned because of the temperatures that are involved and the greater burning issues that are involved. I am a bit concerned that we are on the one hand trying to stop NOCs and SOCs going into the atmosphere, but that we might on the other hand contribute more to climate change. I want clarification on that—I thought that an Executive representative would be here to answer such questions.
It is not normal for the Executive to send a representative to answer such questions about a negative instrument. The clerks normally circulate statutory instruments well in advance of meetings and if members want technical clarification, they should try to obtain that before meetings. That is not a major criticism, but a suggestion about how to deal with negative instruments in the future.
I understand that, but in passing the instrument, could we ask the Executive to confirm the impact that greater control of NOCs and SOCs will have on CO2 levels?
I am happy to seek clarification, but is the committee agreed that we have nothing to report on the instrument?
Members indicated agreement.
I am afraid that it is about 17 years since I last studied chemistry, so I could not give Bruce Crawford a technical answer to his question.
Meeting suspended.
On resuming—