National Assembly for Wales and GM crops
Five essential steps for the Welsh Assembly to take now:
Step One:
Mike German must refuse to add Chardon LL to the National Seed List
Once a seed is added to the UK National List of Varieties it can be marketed across the UK. Since devolution, a decision to add a seed to the List must be made jointly by Ministers in England, Wales, Scotland and Northern Ireland. In 2000 Christine Gwyther, the then Welsh Agriculture Secretary, gave a provisional approval for GM maize Chardon LL to be added to that List – against the advice of the Assembly’s Agriculture Committee.
Objections to the provisional approval ensured that a hearing was called into the Ministers’ decision to put the seed forward for listing. Hearings were held into the variety between 2000 and 2002. They were adjourned for a significant period as the fact emerged that Chardon LL had not completed the necessary two year experimentation period before French authorities approved it for marketing.
The hearings have finished and the Chairman is due to send a final report to Ministers in the National Authorities around the end of October 2002. They will make the final decision.
It is our opinion that:
The National Authorities MUST refuse to add ChardonLL to the National List because:
- ChardonLL is not of satisfactory value for cultivation and use (Reg. 5(3)(c) of EU Directive 2001/3510); and
- It cannot be said that “all appropriate measures have been taken to avoid adverse effects on human health and the environment” in accordance with Art. 4(4) of Directive 70/457 (as amended).
In addition, the National Authorities MAY lawfully, on the evidence before them, refuse to add ChardonLL to the National List because:
- The cultivation of ChardonLL could be harmful, in relation to plant health, to the cultivation of other varieties or species (Reg. 5(4)(b) of 2001/3510); and
- The National Authorities retain a residual discretion (outside of the provisions of Reg. 5 of the 2001 Regulations) which is sufficiently wide to allow them to do so.
[A full justification of this opinion is contained in Friends of the Earth’s final submission to the Chardon LL hearing.]
StepTwo:
The Welsh GM deliberate release regulations must be as strict as possible and ensure that the system is as open and democratic as possible.
The Regulations for transposing the EU Directive on GM Crop Releases (2001/18/EC) into Welsh Law must be made much more restrictive than the draft issued by the Assembly Government.
The Assembly has the freedom to write its own regulations on this issue as long as it does not deviate from the objectives of the Directive. There is scope for the Assembly to draft distinctive regulations which support its stated policy on restricting growth of GM crops in Wales. However, the consultation draft issued by the Assembly is virtually identical to that issued by the UK Department for Environment, Farming and Rural Affairs (DEFRA).
The Assembly Agriculture Committee will discuss the draft regulations on 30 October.
The Assembly should:
- Reject the amendment to the definition of “harm”, which would make it more difficult for the Assembly to protect the Welsh environment.
- Improve the scope for public consultation by including a provision for a public hearing before marketing consents for GM crops are drafted.
- Tighten the requirements for information on location of releases
- Make direct reference to the precautionary principle, which underpins the whole EU Directive.
Step Three:
The Assembly must investigate use of the Deliberate Release Directive to exempt Wales from future releases of commercially approved GM crops.
Article 19.3(c) of Directive 2001/18/EC allows conditions to be placed on any future marketing consents for GM crops, including re-evaluations of existing consents.
The Directive specifies that such conditions can be “for the protection of particular ecosystems/ environments and/or geographical areas”. The Assembly already has a specific policy restricting the use of GM crops within its borders. It is in a prime position to argue for an exclusion for Wales from future GM marketing consents. This could apply to growing or import on the basis of its declared policy and the need to protect Wales’ unique farming systems and agricultural environment from GM contamination.
The drafting of the clause is vague and we are seeking further legal advice on it ourselves. Nevertheless, this is an area the Assembly should be exploring if it is really serious about keeping future releases of GM crops out of Wales.
Step Four:
Assembly Must reject DEFRA’s proposed changes to the Seed Listing regulations.
DEFRA and the Assembly Government have proposed changes to the National List Written Representations and Hearings Procedures which establish the rules for public involvement in the Seed Listing process.
The UK Government is known to be frustrated that individuals and organisations objected to the Listing of Chardon LL and gave evidence about the GM aspects of the new seed. A variety cannot progress to National Listing until it has a licence for marketing in Europe under the 90/220 Directive (which has just been replaced by the 2001/18 Directive). The UK Government belives that GM safety isses should have been settled by that process.
In support of this position, the Welsh Assembly Government believes that “the National List system is not the place to challenge GM safety assesments” (19 September 2002, letter from Huw Jones, National Assembly, attached to consultation paper on National List Written Representations and Hearings Procedures). WAG promises “to put in place improved, effective and transparent mechanisms that will enable public concerns on GM safety to be heard and taken into account before approvals are granted (ie under the Directive 90/220/EEC regime on the release of GMOs) [his emphasis]”.
We are not satisfied that the proposals for implementation of 2001/18 offer an equivalent right to the public hearings under the Seeds Listing procedures.
These proposed changes would remove our right to a public hearing on GM safety issues before commercialisation of new GM crops. This right was used by individuals and groups from Wales to object to the listing of Chardon LL. It is the only opportunity throughout the entire EU and national GM approvals process for stakeholders, such as farmers, beekeepers and members of the public to participate in a public hearing on GM crop commercialisation.
Changes to these procedures cannot be changed in the UK without the approval of the National Assembly. It is important that the Assembly holds firm on maintaining people’s rights to a public hearing.
Step Five:
Establish an independent Welsh ACRE to advise the Assembly on GM issues
The Advisory Committee on Releases to the Environment (ACRE) has been a key limiting factor on how Assembly Ministers use their powers. Assembly Ministers feel constrained in rejected ACRE’s advice in case it appears that they have acted unreasonably. Such action, they are concerned, could open them up to judicial review of their decisions.
The Assembly needs to establish its own Advisory Committee which would give it independent advice, especially since the Assembly has been misled by ACRE in the past.
[A further briefing is available from Friends of the Earth Cymru on how ACRE has misled the Assembly.]