The High Court yesterday handed a major victory to organic and consumer groups when it ruled that the Government failed to properly assess the consequences of controversial legislation of gene-editing techniques.
In a legal challenge brought by advocacy group Beyond GM, the High Court’s judgment found that government advisors gave the Food and Farming Minister incorrect advice about his own legal powers. This led to a failure to investigate the full implications of removing safeguards on gene-edited organisms around labelling, transparency and regulatory oversight. Passing the regulations on this basis was therefore found by the Court to be unlawful.
Beyond GM had argued that the Government’s determination to push through so-called ‘light touch’ rules on gene-editing in England would pose heavy burdens on organic and non-organic supply chains. It would be more difficult and costly for farmers, food businesses and consumers who seek to avoid genetically modified crops and foods derived from them, as well as for those who wish to export food and other agricultural products to the EU. A co-complainant, the organic farmer Patrick Holden, warned that the new rules could in some circumstances, make it impossible for organic growers to get there produce organically certified.
Beyond GM says this week’s judgement means the current regulatory framework is now in effect transitional and temporary and will likely need to be reconsidered. The Court found that the government did not investigate fully the consequences of its decision to deregulate gene-edited (so called ‘precision bred’, or PBO) organisms before removing longstanding safeguards relating to transparency, traceability, labelling and regulatory oversight.
In particular, the Court found that the Defra Farming Minister was wrongly advised about the scope of his legal powers by his advisors and so “pressed ahead” with a regime lacking transparency based on an incorrect understanding of the powers available to him under the legislation. This was uncovered in documents that were only released as a result of Beyond GM’s legal case. The decisions made by the Minister and based on this wrong advice, were found to be irrational and unlawful. The judge concluded that had the Minister understood his powers correctly, he would have considered a materially different range of options and a fundamentally different regulatory approach might reasonably have been adopted.
The Court also recognised that the absence of mandatory labelling and traceability places additional significant burdens on organic6 and non-organic supply chains, making it more difficult and costly for farmers, food businesses and consumers that seek to avoid genetically modified products, as well as for all exporters of agricultural products that seek to export to the EU.
In addition to making it more difficult and costly for consumers and others to avoid PBOs, the new Regulations specifically prohibit the Secretary of State from applying any test to PBOs that would not apply to ordinary food. The Court judgment highlights that this effectively undermines Defra’s own capacity for oversight.
The Court also recognised – importantly and for the first time in case law – that organic farming is not merely a technical standard or certification scheme. For many, it represents a distinct and fundamental set of values, principles and professional commitments which the Regulations make much more difficult to maintain.
Pat Thomas, director of Beyond GM, said: “This is a significant judgment and we are grateful to the Court for bringing clarity to a range of issues that have remained either hidden or disputed throughout the passage of the Genetic Technology Act and Regulations. This case was never about whether gene editing technology is good or bad. It was about whether the government had followed careful procedures and fully investigated the consequences of removing labelling and end-to-end traceability for genetically modified PBOs, and whether Parliament, stakeholders and the public were being given an accurate picture of the options available. Today’s judgment suggests they were not.”
“Today’s judgment makes clear that the Secretary of State handled the issue of tracing PBOs in an unlawful way, and prioritised commercial interests over concerns raised about the impact on the organic sector, consumers, and trade within the UK and EU”
Julia Eriksen, solicitor at Leigh Day, representing Beyond GM, said: “Our clients have long raised concerns about the potential issues the new Regulations pose by removing traceability safeguards in the food chain. Today’s judgment makes clear that the Secretary of State handled the issue of tracing PBOs in an unlawful way, and prioritised commercial interests over concerns raised about the impact on the organic sector, consumers, and trade within the UK and EU. The Court also helpfully clarified the role of the Food Standards Agency in testing PBOs to ensure people and the environment are safe. We welcome the Court’s findings, and the recognition of the value of the organic and non-GMO food sectors.”
