GMOs - UK GOVERNMENT FAILS TO IMPLEMENT EU LAW?
More of Paul Cawtorne's excellent work lies behind item one:
1. MPs 'astonished' by hushed-up GM sites
2. nlpwessex: GMOs - UK Gov fails to implement EU law?
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1. MPs 'astonished' by hushed-up GM sites
- by Geoffrey Lean, Environment Editor, Independent on Sunday - 3 December 2000
GM crop sites are still being kept secret, despite repeated government assurances of increased openness.
Four more unpublicised sites were used to test modified maize this summer, and their locations have been kept so confidential that even ministers do not know where they are.
We have also learned that similar tests have been conducted, in secrecy, since 1995, and that more are planned for next year.
The revelations have astonished politicians and environmental groups. Tim Yeo, the shadow agriculture secretary, who says he is "absolutely staggered" by it , is to write to Michael Meacher, the environment minister, to ask whether there are any more secret trial sites that have yet to come to light.
Meanwhile, Britain is opposing a European Union proposal to set up a public register of land used to grow GM crops when they are farmed commercially.
Today's disclosure blows a new hole in the credibility of the Government's
constant protestations of openness over GM trials. Ministers repeatedly
take the credit for giving detailed map references
for the 25 farm-scale trials being undertaken into the environmental safety of the crops and allowed the impression to grow that these were the only tests taking place.
But two months ago this newspaper revealed that the Ministry of Agriculture had authorised a further five tests. Mr Meacher said he had "no information" on them and it was extremely difficult to find out where they are.
Finally, after a major row, Nick Brown, the Agriculture Secretary, put the names of the parishes in which they were located: Histon in Cambridge-shire, Stoke Talmage in Oxfordshire, Ercall Magna in Shrop-shire, Brockley in Somerset, and Bramham cum Oglethorpe in Yorkshire; on his ministry's website.
But today's revelation show that there is another series of even more secret sites. Aventis, the biotech company, tested herbicide-resistant maize on four sites, the size of tennis courts, between April and October this year. They were used to try out different varieties of maize with the gene, and the effectiveness of weedkillers.
The company is under no legal obligation to tell the Government or the
public where the sites are, as the genetic modification they are using,
the same on as in the Ministry of Agriculture tests has
been approved by the EU.
The Department of the Environment, Transport and the Regions says it does not know where the sites are, but believes that three of those used this summer were next to sites where publicised trials took place.
Chris Mullin, a junior environment minister, says that the department is "discussing with industry" whether they wished to make the locations public but adds, "given the recent vandalism of such sites they may be reluctant to do so".
Aventis confirmed late last week that the trials had taken place, but refused point blank to identify the sites, citing the "extreme levels of pressure and intimidation" suffered by some farmers testing GM crops.
The company declined even to name the counties in which the trails took place. But Roger Turner, chairman of the Supply Chain Initiative on Modified Agricultural Crops, the industry's umbrella body for GM trials, urged openness.
While stressing that it was a matter for Aventis, he said: "We have got nothing to hide. There is no point in keeping things secret because we know that people like you will find out."
Tim Yeo said; "I am absolutely staggered that you have found yet more sites, after all the publicity there has been. I will write to Michael Meacher to ask how many more there are."
Patrick Holden, head of the Soil Association, added: "We were under the impression that all the test sites had been put in the public domain."
Secrecy may grow in future as Britain has been resisting EU plans, proposed by France and Italy, for a public register of all commercial GM crops. Negotiations on the plan resume this week, but the Department of Environment will only say the issue is "under review".
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2. nlpwessex: GMOs - UK Gov fails to implement EU law?
Has the UK government correctly implemented EU law in relation to GMOs? Read on.....
Following NLPWessex's attempts earlier this year to get West Dorset District Council to serve stop and enforcement notices under the Town and Country Planning Acts to secure the destruction of a trial crop of GM maize, there has been much debate as to whether such crops do or should require planning consent.
This issue may not be finally resolved until the subject is taken through
the English courts in a test case. Meanwhile the question is continuing
to attract the attention of leading land management professionals.
In addition to widespread reporting in the professional planning press
), the main opinion piece in the prestigious Property Law Journal (whose contributory board is dominated by major British law firms) focused on this subject in October.
Written by two lawyers at international law firm Denton Wilde Sapte the article (see below) reaches two important conclusions:
1) It is questionable whether such trial crops really constitute 'agriculture' (if not they may need planning consent).
2) Additionally the UK government may be guilty of failing to implement EU law correctly in allowing a situation where such crops are not subject to a mandatory environmental impact assessment under the Town and Country Planning Environmental Impact Regulations 1999. The lawyers conclude that: "This would appear to be an issue to be raised with central government, concerning whether or not it properly introduced the EC Directive into domestic legislation in the first place".
The opinion of Denton Wilde Sapte may prove to be particularly prescient
given what has since been included in the government's Rural White Paper
published in November. This puts forward the proposal that 'projects
intended to make more intensive agricultural use of uncultivated land'
(e.g the ploughing up of downland) should be subject to an environmental impact assessment. These are agricultural activities which would not normally require planning consent. The new government proposal acknowledges, therefore, that the need for planning consent is not a
pre-condition for the requirement for such an assessment under EU law.
Given the likelihood of pollen flow from such crops spreading recombinant
DNA onto neighbouring land there is a strong argument for saying that the
potential environmental impact may ultimately be as great, if not greater,
than the ploughing up of the downland which the
government now proposes be subject to such assessments under European law (even though no planning consent is required in such cases).
NLPWessex would, therefore, be interested to hear from any persons or bodies interested in pursuing further either of the above two legal points against the appropriate authorities.
Such a situation may also apply in other member states of the EU, and possibly other parts of the world under different legislation.
NATURAL LAW PARTY WESSEX
* Footnote: see p110 Rural White Paper http://www.wildlife-countryside.detr.gov.uk/ruralwp/cm4909/pdf/rural.pdf
Property Law Journal
16 October 2000. Number 58
Can natural law defeat GM crops?
In view of the recent decision to clear Greenpeace activists, Margaret
Casely-Hayford and Sandra Banks of Denton Wilde Sapte argue that it is
surely time for the wider issue to be discussed, namely whether or not
the crop trials should be carried on at all without an environmental
The Natural Law Party recently caused a flurry in West Dorset by trying to obtain the destruction of a genetically modified crop that had been planted in order to enable a trial to be carried out in Over Compton.
The contention was that the council should consider that the trial should be classed in planning terms as scientific research and not agriculture. On that basis, the planting would represent a change of use and would require planning permission.
The local authority took expert legal advice. The barrister said that,
in his opinion, in the High Court, the growing of genetically modified
maize would be considered to be an agricultural operation, particularly
because the activity was undertaken in a field which formed a part of a
much larger agricultural holding. So the trials would be considered ancillary to the agricultural operation (even if not in themselves strictly speaking agricultural).
This raises two questions. Would a sufficiently large genetically modified
crop trial constitute something other than agriculture,and might it be
considered to be scientific research requiring an
application for consent?
If such an application were required, the need for an environmental impact assessment would also come to be considered.
It has been found through GM crop trials carried out in Canada that pollen has travelled as far as two miles and contaminated organic crops. In the light of this, it seems extraordinary that there has been no requirement for an environmental impact assessment to enable anybody to ascertain the importance of the predicted effects on the environment here. In itself, this seems to put the UK in breach of EC regulation.
We would contend that the reason for this potential breach is because
the wrong question is being asked when determining whether these trials
fall under 'agriculture'. Do farmers really need to carry out such
trials in the same way as they need to drive tractors? The causal link
trials and agriculture is not necessarily strong.
Chemical companies such as Fisons might carry out fields of research on the efficacy of certain methods of crop fertilisation. This would not usually be taken to be an agricultural operation. The need for an environmental impact assessment In England and Wales, the necessity for an environmental impact assessment to be carried out falls under the Town and Country Planning Environmental Impact Assessment Regulations 1999.
The Regulations explain the situations in which an environmental impact
assessment for projects would be needed, and it is clear right from the
outset that this consideration only arises for projects that require planning
permission, or consent. However, if a specific consent to carry out
development is not required either under planning legislation or otherwise,
then the is no set of regulations in England and Wales whereby the relevant
authority can require information on likely
environmental effects as required by EC regulation.
Therefore, although the UK planning system has successfully introduced
the European Council
Directive (see box) into UK law by way of the regulations mentioned, it has only done so insofar as the development or operation under consideration is one that requires a consent. The problem with
genetically modified crop trials (if they are small enough to be considered to be ancillary to agricultural activity) is that it appears that no consent is required. So, the question of whether an
environmental impact assessment is required just does not arise.
However, in our view, the competent authority here is not the local planning authority but central government. This is because central government has decided that agriculture is 'a good thing' and that, therefore, any form of agriculture can be carried out without express consent. In other words, the competent authority has given a blanket consent.
There is, of course, no reason why, in introducing the Directive into England and Wales, the regulations could not have anticipated a situation in which operations might be carried out that did not require express consent. In such a situation, the regulations could still provide for an environmental impact assessment to be carried out within certain prescribed parameters. In fact, it is interesting to note that the 1999 amendments to the original 1998 regulations introduced a procedure concerning applications where a developer might be using 'permitted development rights' (a form of blanket approval for certain types of development). It would appear that the Natural Law Party was aiming its question at the wrong competent authority.
This would appear to be an issue to be raised with central government,
concerning whether or not it properly introduced the EC Directive into
domestic legislation in the first place.
Article Box: Environmental impact legislation - background
The environmental impact legislation was introduced originally in 1988
and updated significantly in 1999 as an implementation of a European Council
Directive. The Directive 85/337 came into force in 1988, and the bulk of
the England and Wales instruments were published in 1988 introducing the
regulations that the government thought necessary. The objective of the
Directive was to make sure that any decision-making authority, or what
the Directive called 'the competent authority', for a
particular project could make its decision, having been given sufficient information for it to be able to assess the likely significant effects upon the environment from the project in question.
The directive sets out a procedure, and that process has been substantially
adopted in the 1988 and 1999 regulations when they were introduced into
domestic UK legislation. It is this procedure that is described as the
process of obtaining an environmental impact assessment. It requires any
proposed developer or introducer of a particular type of project to gather
together a significant body of information on all the ways in which the
project is likely to impact upon the environment, and to explain the way
in which efforts will be made to mitigate or reduce those effects so as
to make them acceptable in the circumstances. That assessment should then give the general public comfort that the project is being properly considered and handled by the competent authority.
[*NLP Wessex footnote:Denton Wilde Sapte is a leading international law firm based in the City of London. The firm is particularly known for its expertise in banking and finance, energy and infrastructure, media and technology, property, retail and aviation. The firm is a founder member
of Denton International which, with Denton Wilde Sapte, has 33 offices in 21 jurisdictions around the world.Margaret Casely-Hayford and Sandra Banks are partners heading up the planning and public law group at Denton Wilde Sapte. ]