Sowing doubt over engineered crops

A new firm has found recognition after representing an organic farmer in a dispute over genetic engineering, writes Roger Pearson.

Just one month after setting up in practice, two-partner firm Earthrights Solicitors, of Takeley in Essex, has found itself in the High Court and the Court of Appeal facing formidable opposition – in the form of the Government, Hammond Suddards and Herbert Smith.

Charlie Hopkins (formerly of Leigh Day & Co) and John Dunkley (who had been with the Earthrights Environmental Law Resource Centre), spearheaded a case which has established guidelines surrounding the law relating to genetic crop growing.

Hopkins and Dunkley's client, Devon organic farmer Guy Watson, failed to win a court order preventing genetically engineered maize – which was being grown two kilometres away from his crop of sweetcorn – from flowering, on the basis that there had been insufficient consultation in respect of the decision to grow the genetic crops.

Watson, believed to be the largest organic farmer in the country, claimed that the risk of cross-pollination could have devastating effects on his business.

Watson had claimed, inter alia, that if the maize was allowed to flower it could lose him his prized Soil Association organic status.

Apart from the obvious implications for farmers who find that genetically engineered crops are being grown in close proximity to their own conventional crops, consent for such experiments could affect the value of land on farms neighbouring experimental sites.

In a signpost ruling, Lords Justices Simon Brown, Judge and Buxton unanimously upheld the High Court decision of Mr Justice Jowitt that the genetic maize should be allowed to flower. But in reaching this decision the court held that the Government had originally been wrong in its legal approach to the question. However, they held there was no legitimate basis on which the consent could now be varied.

Lord Justice Simon Brown said it was conceded that in allowing the maize crop trial to go ahead the Government had acted contrary to the Seeds (National Lists of Varieties) Regulations 1982. He said that in the light of what had happened the court considered that the Seeds Regulations would have to be amended.

Despite not achieving their goal, Dunkley predicts that as crop experimentation escalates, this case will be the forerunner to other challenges.

He says that the court ruling has clearly revealed the state of "disarray" that exists in respect of the approach towards genetic crop experimentation.

"Basically, as far as the seed regulations are concerned, it shows the whole regime is in a mess," he says.

He believes that one of the factors that may have been against Guy Watson was the fact that he had taken all possible steps to mitigate potential loss and had ensured that his sweet corn crop was grown as far away as possible from the maize.

However, he says the situation could be different for farmers with smaller farms who are not able to distance their crops from the experimental ones in the way Watson had done.

"Had that been the situation, the outcome might have been different," he says. "I am sure there will be other cases similar to this one which will test this area of the law still farther in the future."