EU rules to regulate both research releases and marketing of GMOs were originally introduced in 1990. The legislation was overhauled in 2001, with the main changes including extended requirements for environmental risk assessment of proposed releases, monitoring requirements for commercial GM releases, and a ten-year limit on the duration of release permits (ENDS Reports 294, pp 50-52 , and 313, pp 49-50 ).
The 2001 Directive was due to be transposed into national laws by 17 October 2002. In the UK, only England met the deadline. Wales and Scotland followed in December, but legislation is still outstanding in Northern Ireland.1In England, the Environment Department has published a guide to the new regime.2 The document is still in draft form pending the incorporation of recently published European Commission guidance on environmental risk assessments, post-market monitoring and other issues.
Both the regulations and guide appear generally uncontentious, transposing the EU requirements accurately but no more. But there is one exception which has lingered since the Government's first consultation on the Directive in 2001 (ENDS Report 319, pp 43-44 ).
The Directive obliges Member States to establish registers recording the location of commercial releases of GMOs, "inter alia so that the possible effects of such GMOs on the environment may be monitored." It goes on to require that such locations "shall be notified to the competent authorities, and be made known to the public in the manner deemed appropriate by the competent authorities and in accordance with national provisions."
The regulations appear to fall well short of transposing these requirements. They provide that public registers shall identify the location of proposed GMO releases only "to the extent that this information is notified to the Secretary of State" by the applicant.
As for the locations of actual releases once a consent has been granted, the regulations provide that these must be entered on the public register only "insofar as that information is supplied to the Secretary of State in accordance with the monitoring requirements imposed on the consent."
The guide does not amplify on the Government's intentions in this area, but for one point. It advises applicants that informing the Secretary of State about the location of proposed GMO releases is "not...relevant to the marketing consent applications." The steer could not be clearer.
Part of the background can be found in the Environment Department's report on the outcome of the second consultation on the Directive. This notes that industry respondents "were strongly of the opinion that the exact locations of releases ...should not be made public, and nor should the names and addresses of individuals. This was necessary to protect the privacy of farmers, and to reduce the chance of vandalism of GMO release sites."
The report adds: "It was felt particularly strongly that there should be no provision to require the locations of commercial growing of GM crops...to be made publicly available at anything more detailed than the regional/national level. It was also felt that such information should be historical - i.e. after the event rather than before the release takes place."
Organisations associated with these views included the National Farmers' Union, the Crop Protection Association, the British Society of Plant Breeders, biotechnology business Syngenta, and crop research institute Rothamsted.
A regulatory impact assessment of the legislation prepared for the Government by Risk & Policy Analysts further gives the game away. It comments that transposition of the Directive's provisions on disclosure of GMO locations has been kept "deliberately vague". The European Court of Justice would be likely to take a dim view of the Government's approach if the matter was referred to it.
The regulations also make a highly significant amendment to provisions on GMOs in the Environmental Protection Act 1990.
In spelling out the aims of the regulatory system, the Act defines "damage to the environment" in terms of "harm". This, in turn, is defined as including harm to property.
When the regulations were debated by the Welsh Assembly, AMs complained that the reference to property had been deleted. Rural Development Minister Michael German explained that this was intended to bring the Act into line with the Directive, which permits restrictions to be imposed on GMOs only on grounds of risk to humans or the environment.
It does not allow such restrictions, Mr German added, "because of the risk of conventional and organic farmers suffering economic loss" as a result of, say, GM contamination of their crops.
Some AMs protested at the change, particularly because the question of liability for such economic losses remains _unresolved.