Genetically Modified Organism-free Zones
We move on to agenda item 2. The remaining items will be a lot quicker than the first item. Item 2 is on GM-free zones and their consistency with European Community law. We will consider a paper that we commissioned from the Parliament's directorate of legal services.
The background to the paper is that the Minister for Environment and Rural Development wrote to the committee on 23 September on a range of issues, one of which related to the debate on GMOs. We discussed the issue on 4 November and decided not to approach the Scottish Executive, but to request advice from the directorate of legal services to enable us to discuss the matter further and decide what, if anything, to do next. We have a very good paper in front of us, and I express our thanks to the directorate for putting it together. I am delighted that Christine Boch is with us today to talk about the paper, and I have asked her to outline its salient points for a couple of minutes.
Christine Boch (Scottish Parliament Directorate of Legal Services):
I do not intend to repeat all of my paper, so this will just be a quick series of one-liners.
The field is regulated by Community law, with which Scottish ministers must comply under the Scotland Act 1998. Which Community law is relevant? The guidelines were not very helpful in assessing the question of whether GM-free zones are compatible with Community law so, instead, I considered directive 2001/18/EC, which I perceive to be the relevant legislative instrument. I propose to say a few words about that, and when I have talked about which Community law is relevant, I will discuss briefly what Community law requires.
The guidelines cannot be considered in isolation, as they are just an offshoot of the Community legislative regime on genetically modified organisms. That regime grew throughout the 1990s and is now quite comprehensive. It includes legislation and rules on marketing, traceability and labelling of genetically modified organisms. For today's purpose, the most important piece of legislation is directive 2001/18/EC, which regulates two distinct types of releases. In Community jargon, they are known as experimental releases and commercial planting. Members are perhaps more familiar with experimental releases as farm-scale trials, and commercial planting is sometimes known in the UK as the growing of GM crops.
I repeat that Community law regulates experimental releases and commercial planting and that Scottish ministers must comply with that law. I will put that in other words to hammer home the point. Scottish ministers are administering a Community regime and they work within the rules that govern that regime. Therefore, they can derogate from that regime only when all the Community conditions for derogation are satisfied.
What does Community law require? The directive lays down a general obligation to take all appropriate measures to avoid the adverse effects on human health and the environment that might arise from a release. I realise that I should have told you—members may already know this—that there has been only a farm-scale trial of experimental releases in the UK. To date there has been no commercial planting of GM crops in the UK. To put the matter another way, Scottish ministers have a duty to refuse consent to a release in situations in which such a refusal is the appropriate measure to avoid an adverse effect on human health or the environment.
Apart from the general obligation, Scottish ministers must comply with the procedural obligations that are laid down in the directive, which I go through in paragraphs 3 and 4 of my paper. Members will see that the directive creates a system of notification, risk assessment and approval, which means that no experimental releases or commercial planting can take place without consent. The decision on the granting of consent must be based on the safety of a proposed release.
If Scottish ministers remain within the margin of discretion that is laid down in the directive, they have powers to refuse the experimental release of GMOs into the environment or commercial planting, so much so that I suggest in paragraph 7:
"If no consent is ever granted, then in effect Scotland would become a GM free zone."
I go on to say:
"However, the Scottish ministers could not avail themselves of their duties under the Directive by declaring Scotland a GM free zone."
That is because Scottish ministers must examine every application—for example, for a trial of commercial planting—on a case-by-case basis.
Therefore, we see that the legislative framework under directive 2001/18/EC is rather onerous. Can Scottish ministers derogate from the directive? The answer is that theoretically they can do so because, although the directive is primarily an internal market directive that is meant to create a unified market for biotechnology, it also has measures to protect human health and the environment. Article 95 makes it possible to derogate from harmonisation measures, but to do so it would be necessary to fulfil the conditions that are laid down in article 95(5).
Paragraph 12 of my paper outlines Austria's attempt to get such derogation:
"Austria made a request to derogate from Directive 2001/18/EC on behalf of the Upper Austrian Province which was planning to ban the use of GMOs in that part of Austria in order to safeguard organic farming and conventional crops from GMOs contamination as well as protecting bio-diversity."
I took the trouble of spelling out what the legislation proposed to do—sorry, I do not mean "took the trouble"; I mean that I detailed what the legislation proposed to do—to show what it has been possible to do within the Community framework. There was an attempt to ban commercial planting altogether. It was agreed that experimental releases would still be allowed, although they can take place only in closed systems. The Commission considered that decision and rejected the request for derogation, because it felt that the conditions that were laid down in the treaty had not been satisfied in the particular case. Austria had failed to provide any new scientific evidence on the basis of problems specific to Upper Austria.
Upper Austria has since convinced Austria to bring an action for annulment of the Commission decision on its behalf, and the case was lodged in court at the end of November. We do not yet know the outcome. The same opportunity would be open to the Scottish ministers. However, like the Austrians, they would have to provide new scientific evidence, from since the adoption of the directive, to justify its case. They would also have to establish the existence of circumstances specific to Scotland that could justify the more stringent environmental measures that might be contemplated.
I come finally to the guidelines, which are what I was asked to consider. They establish co-existence as a primary value. It is not just important but essential for the Commission to ensure that no form of agriculture—be it conventional, organic or using GMOs—be excluded in the European Union. In other words, the guidelines posit co-existence as a primary value. The guidelines provide an indicative list of possible measures that a member state might want to use to inform us of strategies at national, regional and local levels.
I think that the rest of my written advice is reasonably clear, but I point out that, notwithstanding subsidiarity, the type of measures that the Commission envisages are really management measures at farm level, rather than truly regionwide measures.
Although the guidelines establish co-existence as a primary value, I do not consider that they require us to grow GM foods in every single part of Scotland. In fact, I suggest that it might be possible to argue that the explicit reference to the fact that
"farms may be separated by some distance"
would justify large separation distances between the areas where GM crops are allowed. If one wished to do so, one could call the areas that fell within those separation distances GM-free zones. However, in my view, Scotland as a whole could not be declared a GM-free zone.
I go on to discuss proportionality and non-discrimination, but I think that the convener wants me to stop there.
Thank you, Christine. There are MSPs out there who read our committee agendas, and I am pleased to welcome Mark Ruskell and Rob Gibson, who are attending for this item. We have the paper before us, and I would like to suggest a couple of options. We can note the paper, or we can pass it to the appropriate committees for their attention. If we think that there are issues and further options to consider, we can appoint a reporter.
I have a question on the second option. Have the clerks checked the Environment and Rural Development Committee's report? Perhaps committee members should have checked it. I cannot recall whether we did so. Do the clerks know whether the report took account of the legal situation in Europe? If it did not, perhaps that was an omission. On that basis, it would be worth sending the report back to the Environment and Rural Development Committee. If the report took account of the European legal situation, there is no point in pursuing the matter.
I am not sure whether that point has been checked. Perhaps Christine Boch knows.
The Transport and the Environment Committee, as it was then, considered the legal position in its report on GMOs, but the field was regulated then by directive 90/220/EEC rather than directive 2001/18/EC. The legal framework has changed. The Transport and the Environment Committee did not consider the new regulatory framework, so it would be worth sending the report back to the Environment and Rural Development Committee.
I have a legal point. I have received letters from constituents who indicated that Wales has been made a GM-free area. I wonder whether Christine Boch has knowledge of that and of how Wales managed to get round the directive.
I am happy to look into that question, if the committee wishes me to do so.
We will assume that answers will be provided later for any questions for which we do not have answers at present.
I have a comment on the paper's conclusion. I believe that the conclusion pares down further than it ought, because ministers have powers to refuse consent only in particular circumstances. That should be made clear in the paper's conclusion, because many people will look at the conclusion without necessarily reading the rest of the paper.
I also believe that the last sentence of the conclusion does not fit with the paper and is a non sequitur. The point that the paper's last sentence makes is not argued in the paper; it is almost a political comment that does not belong in this type of paper. The point in the last sentence could be referred to later or could be included as a political comment, but it does not fit with what is meant to be an objective look at the legal situation.
I take on board the member's comment. I realise that the word "strong" in the paper's last sentence should not have been used and I apologise for using it. Perhaps I could have balanced its use by modifying the earlier part of the sentence to read, "an environment very favourable to the bio-technology industry". The paper in no way makes any policy suggestions. In the final sentence, I was trying to say that it is for politicians to make the decisions and I was explaining what those decisions are. I was not making any policy suggestions. The point that it is not for lawyers to make such suggestions is fair.
I believe that the point has been clarified. Of course, the paper is not the committee's paper.
I wonder whether there is a mechanism for taking out the paper's last sentence. I am not commenting on what the sentence says; I just do not believe that the sentence is appropriate in its position. I would be happy if the sentence were taken out.
The committee can express a view on the paper, but it is not a committee paper. It is a paper by the directorate of legal services.
Well, I suppose my reservations and my belief that the paper's final sentence is not appropriate as part of the conclusion are on the record now.
Your point is on the record and I am sure that Christine Boch will take that point on board.
I want to follow up the point that Margaret Ewing raised about Wales. Again, it comes down to the interpretation of what the Welsh have done. I will certainly welcome Christine Boch's clarification of that, but I believe that we already have the answer on the front page of the legal directorate's paper, in paragraph 1, which says:
"the creation of a compulsory GM Free Zone would be inconsistent with the Community Law principles of proportionality and non-discrimination".
Obviously, I await Christine Boch's response, but, without being too presumptuous, I believe that the statement in paragraph 1 answers the question. As far as I am concerned, and subject to the amendment that Nora Radcliffe suggested, we should merely note the paper and move on quietly because the Wales point is, frankly, a non-issue.
I go along with that. The directorate of legal services declares in paragraph 4 of the paper:
"Declaring Scotland a GM free zone would constitute a breach of Community law."
The point could not have been made more specifically. We should simply note the paper and ensure that our colleagues in the Executive and in other parliamentary committees are aware of the point in paragraph 4.
Mark Ruskell and Rob Gibson have been sitting patiently, so I shall allow them to ask questions and make comments.
The paper certainly reaffirms my understanding of the implementation of the directive. However, I note that the conclusion states that Scottish ministers
"also have powers to ensure that a range of measures are taken to protect conventional and organic farming from contamination from GM crops."
My understanding is that it is a bit stronger than that and that Scottish ministers have a duty, arising out of the directive, to take those measures. It is not a power in the sense that they can decide whether or not such measures are put in place, which means that the conclusion is much stronger. Does Christine Boch agree?
Yes, I agree. That is the point that I was making in paragraph 5, which says that Scottish ministers
"have a duty to take all appropriate measures to avoid adverse effect on human health and the environment and they have the duty to refuse consent if a risk to the environment or health that cannot be managed has been identified."
I thought that that was what I was saying, but I confirm that your understanding is the same as mine.
Although the points that colleagues have made about the legality of GM-free zones are valid, paragraph 10 states that new scientific evidence would be required. In such a situation, a GM-free zone could be possible if the European Commission agreed that the evidence backed up a call for a GM-free zone.
Again, I thought that that was what I was saying in my advice. Theoretically, it is possible, if new scientific evidence can be adduced and if circumstances specific to Scotland can be shown. However, as I say at paragraph 11, the Commission must also be satisfied that that in no way creates a GM-free zone.
My reading of the directive is that we must draw a distinction between what you have said and Scotland's ability to declare itself a GM-free zone. That is an important distinction.
Yes.
Conversely, if Scottish ministers were to impose restrictions that could be demonstrated to be unreasonable and not founded on genuine concerns about the environment or safety, I presume that those could be challenged as being unreasonable. That would open up the Scottish Executive to legal challenge, which would be a silly thing to do.
Indeed. As I have said, Scottish ministers must comply with Community law, and a characteristic of Community law is that it is enforced in national courts. That is a consideration for Scottish ministers in any area.
The situation has moved on since the reports that the Transport and the Environment Committee drew up in the previous session, not only because of the adoption of the new directive but also because of activities here in Scotland and in Europe.
We have heard evidence that Upper Austria, via the Austrian Government, is contesting a European Commission decision. Part of the reason for that is that Upper Austria has a lot of organic farming, and it is felt that the area needs special protection. In the area that I represent, Shetland is considering the idea of having a GM-free zone and Highland Council has decided to have one. Many of the reasons given are precisely the ones that Upper Austria is giving in its arguments. Given that a number of regions with legislative powers, including Wales, Salzburg, the Basque Country and many other regions in Europe, are trying to establish new Community practice, the committee would be doing less than its duty if it did not take on board the fact that we in Scotland have good reason to review what is going on in Europe.
As this committee deals with Europe, I ask members, if possible, to keep abreast of the developments in Upper Austria and to report on them. Were the issue to come to the Environment and Rural Development Committee, that committee would be asking the same question and would want to know why the European and External Relations Committee had not been keeping us abreast of what is happening in Europe.
It would certainly help us if we knew what was happening on the issue, because there will be scientific evidence about the field-scale trials fairly soon and the matter will then be for the Environment and Rural Development Committee and many other committees to discuss. The Parliament has an interest, the committee on which I usually sit has an interest and the European and External Relations Committee has an interest because of the links to Europe that it provides. I hope that colleagues will consider making a report to Parliament and to the other relevant committees to keep us up to date with developments.
The committee will be discussing the options available to us in a few minutes. As a matter of course, we keep up to date with developments elsewhere in Europe that impact on Scotland and we do our best to convey that information to the appropriate committees.
What are our conclusions?
Despite the comments from visiting members, I think that there is no appetite among committee members to appoint a reporter at this stage. Views differ on whether we should note the paper or pass it to other committees. Are members happy at least to pass the paper for information to the Environment and Rural Development Committee, instead of us commissioning reports and keeping them to ourselves?
As I said at the outset, I am also a member of the Environment and Rural Development Committee, as is Rob Gibson. I welcome the contributions from visiting members, but I maintain the position that I outlined earlier. The paper is interesting and Nora Radcliffe has suggested a number of amendments to it, but my view is that, although the issue is on-going, it is also a non-issue in many respects, and I suggest that we merely note the paper. Obviously, we will receive further clarifications from Christine Boch on the issues raised by Margaret Ewing and other members.
A detailed point arises from Nora Radcliffe's comments on the final sentence of the paper. It is not our document but a document from the directorate of legal services, but it might be appropriate for Christine Boch to reflect on that point and do any tidying up that is necessary before passing it on.
If we were to copy the paper to another committee for information, it would also get a copy of the Official Report of this meeting, so the points that we have raised would be highlighted.
John Home Robertson suggested that there could be value in passing on the paper to other committees. I think that we should simply go along with that, as it makes sense.
The document is not exactly secret. I would just note it, and if anybody wants to pick it up, they can.
There is clearly a difference of opinion.
There is the on-going matter of the appeal against the decision on Upper Austria. If that appeal is successful, that will change the complexion of the issue. It might be useful to have somebody looking out for the outcome of that appeal.
I, too, suggest that we simply note the paper, on the ground that, if we pass it over, someone will no doubt interpret that as our making an issue and saying that the matter needs to be examined. If Rob Gibson wants to raise the issue in the Environment and Rural Development Committee, we do not have to pass on the paper to allow that committee to get hold of it. The paper is available and Rob Gibson can take it to the Environment and Rural Development Committee without our sending it, as it were.
I suggest that, as a compromise, we note the paper but agree to monitor future developments that might be relevant.
The committee's role in relation to the document has been discharged. Christine Boch has given us the legal opinion that declaring Scotland a GM-free zone would constitute a breach of Community law. I can see that there was an argument for bringing the issue to the committee. I have been uncharacteristically quiet on the matter, but it seems to me that, having brought the issue to the committee, our job has been discharged. I agree with Gordon Jackson and Alasdair Morrison. Individual members of the Environment and Rural Development Committee might want to raise the issue, but for us to pass on the paper to that committee would perhaps send the message that we have a view on the paper that is not really reflected among members of this committee.
The compromise that I suggested attracted lots of nodding heads around the table. Does anyone disagree with my proposal?
I have some concerns about the suggestion that there should be on-going monitoring, which is the role of the Environment and Rural Development Committee and not of this committee.
As deputy convener, you will appreciate that one of our on-going duties is to monitor developments in Europe and their impact on Scotland so that we can flag them up to other committees. Are there any objections to the compromise that I have suggested or to our continuing to monitor developments?
If anything comes our way, we can pass it on.
As that is agreed, I thank Rob Gibson and Mark Ruskell for coming along for that item. Of course, they are at liberty to stay for the rest of the meeting.