Riverford Organic Judicial Review: Court of Appeal 1998 (R v Secretary of State for the Environment ex parte Watson, Court of Appeal 21 July 1998.)
This case received national and international coverage, highlighting environmental contamination concerns over the release of genetically modified organisms (GMOs). Charlie acted for Guy Watson, one of the UK's leading producers of organic fruit and vegetables. In an action supported by Friends of the Earth and the Soil Association, the Secretary of State for the Environment was taken to the High Court, and then to the Court of Appeal, over a decision to allow the trial planting of GM maize on plots adjoining Guy Watson's organic farm in Devon.
Evidence was produced to show that there was a very real risk of cross-pollination of a crop of organic sweetcorn for human consumption by the GM maize. As the organisation responsible for the certification of organic produce, the Soil Association warned that Guy could lose his organic status, with very serious effects on his livelihood.
Legally, the action was brought on three separate grounds. Firstly, it was argued that the Secretary of State had acted illegally in allowing the GM trial to proceed without having fully taken into account the potential risks of cross-pollination and the likely effects on Guy's business. On this point the Court ruled that if damage did occur to the organic crop then Guy could take out an action for private nuisance and claim compensation. In other words he would have to wait for the cross-pollination to actually happen and then act.
This aspect of the decision has been heavily criticised as flying in the face of recommendations of the Royal Commission on Environmental Pollution and such principles as the precautionary principle. As Richard Macrory, Professor of Environmental law at Imperial College put it: "…hardly comfort to someone whose business may be ruined" (ENDS Report, July 1998).
Secondly, the permission granted by the Secretary of State to carry out the GM trial had been given to Sharpes, the seed company which had developed the GM maize. However, the trial itself was actually being carried out by the National Institute of Agricultural Botany (NIAB), by an arrangement with MAFF (Ministry of Agriculture, Fisheries and Food). It was therefore argued that as the body carrying out the trial had no valid consent to do so, the release of the GM maize was in breach of the 1990 EU Directive and the UK Act implementing the Directive.
On this point the Court found that as the 1990 Environmental Protection Act made no such specific requirement, the consent to release had not been breached. Once again, this aspect of the judgement has been heavily criticised as flying in the face of the EU Directive and the law concerning consents and licenses in general.
Thirdly, it was argued that the trials were, in any event, in breach of the Seeds Regulations of 1982, in that MAFF had not required the results of two replicated trials prior to considering applications for seed listings. MAFF conceded this point in Court, and the Court was critical of the Minister for ignoring the clear requirements of the Regulations. This breach however was not enough for the Court to order a cessation of the GM trial, claiming that it had no power to destroy the GM crops. As Professor Macrory commented: "Again, this seems a surprising conclusion given the very broad powers available to a court in judicial review proceedings."
Although the case was ultimately unsuccessful in legal terms, it served to raise the public profile of GMOs and foodstuffs, and contributed significantly to widespread public opposition to GMOs in food and the broader environment.
A full case report and commentary can be found in Environmental Law Reports.
- Court of Appeal rules that government acted illegally over genetic maize trial crop—but refuses to order its destruction, Friends of the Earth: press release, 21 July 1998.
- Frankenstein foods" threaten organic farmer, Friends of the Earth press release 7 May 1998.