With the increasingly negative perception of GM products, what impact would a Welsh Government ban on GM crops entering Wales from England have? Kevin Kennedy, partner, Simon Tilling, senior associate, and Nick Laver, trainee solicitor in litigation, consider a hypothetical scenario and explain how any neighbouring disputes could be resolved.

Scenario

Following heavy debate in the European Parliament, the opposition to GM crops is lifted and EU member states are allowed to choose whether they allow GM crops to be grown in their jurisdiction. England opts to allow certain crops to be grown once satisfied that they present no risk. Wales, through powers gained through devolution, decided for an outright ban on GM crops.

A farm on the English side of the England-Wales border decides to grow crops that use GM seeds in an effort to bolster the resilience of the crop. The land borders, but does not cross into Wales. A farmer on the Welsh side of the border is concerned that the GM crops could affect his farm. In addition, concerns are raised that products resulting from the use of GM crops in England could enter Wales.

In this fictional scenario, could the Welsh government prevent products resulting from GM crops entering Wales?

Yes. The Welsh government have the power to ban food products under the Food Safety Act 1990 s16(1) in accordance with the Wales (Transfer of Functions) Order 1999 (S.I. 1999/672). The Welsh government can ban GM crops from being grown in Wales under section 111 of the Environmental Protection Act 1990, although they would have to carefully consider any arguments against a ban to prevent any challenges via judicial review.  

If the Welsh government did ban GM crops from coming into Wales, they could face a challenge from other EU countries trying to export the crops to Wales under the EU’s freedom of movement provisions. The Welsh government could defend their actions under Article 36 of the Treaty of Rome which allows prohibitions on the free movement of goods to protect the health and life of humans, animals and plants. The threshold for using Article 36 as a defence to a ban on inter-state trade is high and the Welsh government would have to prove that the aim of the ban could not be achieved with a less restrictive effect on inter-state trade (such as clearly labelling products as GM).

To what extent would GM crops on the English side of the border present any threat to Welsh farming?

Presently, there is a commercial threat, which comes from a negative perception of GM products.  If the English option for GM is controversial, resulting from a loss of consumer confidence in English agricultural produce, the threat both within Wales and from outside Wales to the perception of Welsh agricultural produce is real.  It is conceivable that EU member states and other export markets would fail to distinguish between the United Kingdom and England and seek to impose restrictions upon United Kingdom exports.  

A further economic threat is that the potential success of GM crops would provide an economic advantage to English farmers, in the long term presenting a viability issue to Welsh farmers.

There does not seem to be evidence to support an adverse physical impact upon Welsh farms, but GM technology is little used in the EU.  If farms in close proximity to each other in England and Wales produced the same type of crop, the GM crop could pollinate the non-GM crop.

How would any dispute between neighbouring border farms be resolved?  

There has been extensive litigation over a similar issue in the Australian case of Marsh v Baxter. In the case an organic farmer claimed that a neighbouring GM farmer was causing him a nuisance by producing GM crops as the seeds from the GM crop were blown onto the organic farm and caused it to lose its organic accreditation.  The claim was denied by the Supreme Court of Western Australia which found that GM farmer had not done anything unlawful in producing a legal crop, had adopted an orthodox harvest methodology, had taken steps to prevent the seeds from the crop reaching his neighbour’s land and, in any case, had not caused any physical harm.     

It is likely that there may be tenanted farms where landlords seek to impose prohibitions on growing GM crops and it is conceivable, albeit less likely, that covenants between neighbouring properties could achieve the same end.

The political dimension in any dispute between neighbouring farms on the boarder should not be underestimated given that agriculture is a devolved matter to the Welsh Assembly.  It is likely there will be considerable political focus on this, particularly if GM continues to be a high profile issue that attracts considerable opposition.  

In Marsh v Baxter, the litigation became a wider battle between advocates of GM food and those seeking to ban it. Any dispute in the UK could attract attention from lobby groups and interested parties on both sides.

How would the Environmental Liability Directive feed in to this discussion?

The Directive would only be relevant if there was environmental damage caused within the meaning of the legislation. Environmental damage includes damage to a natural habitat that causes it to lose a conservation status or prevents it from gaining a higher conservation status, damage to protected species and any damage that causes the land to be contaminated.

If any such damage were to occur to a Welsh farm (and that is a significant hurdle), a English farmer could be potentially liable under any action brought by Natural Resources Wales (the relevant enforcement body in Wales) under the “polluter pays” principle. If found to be responsible the English farmer would have to pay the costs of remediation or, if remediation was not possible, compensation.

Further, England and Wales have not transposed the Directive in an identical manner.  Although both the English and Welsh versions of the legislation include a  “state of the art” defence (which provides a defence if the activity undertaken was not considered harmful according to scientific and technical knowledge at the time), Wales expressly provided that this defence did not apply to environmental damage from GM crops.  Therefore, the farmer might be liable for unforeseeable damage caused by GM crops in Wales but not in England.

Do you envisage any additional challenges if the UK does not act in concord on an environmental issues such as the approach to GM Crops?  

The external perception of the UK as one country without necessarily having specific regard to the component parts of it always provides a challenge, particularly if there is a difference in practice between England and the other parts of the UK.

This article was first published on LexisNexis on 8 June 2015