It looks as if a policy position of our elected government in Holyrood is about to be circumvented by the overarching legislation contained in the United Kingdom Internal Market Act 2020. The latter you will recall is a Tory government ‘fix’ for domestic consequences of Brexit.
The House of Commons Library (HoCL) has just published a briefing on the Genetic Technology (Precision Breeding) Bill. This was introduced to the Commons on 25 May 2022: the second reading is scheduled for 14 June 2022.
The Bill applies to ‘precision bred plants and vertebrate animals (excluding humans)’, meaning ones that are gene edited: it proposes to remove them from the regulatory system for genetically modified organisms (GMOs).
The justification is that precision breeding technologies can make targeted genetic changes to produce beneficial traits which, arguably, can also occur through traditional breeding and natural processes. Proponents claim this makes it different to genetic modification (GM) where techniques are used to insert functional DNA from an unrelated species into another species. The Government has said the changes in legislation will mean the level of regulatory scrutiny for precision bred organisms will be “somewhere between that of GMOs and traditionally bred organisms”.
The subject of gene editing and therefore the objectives of this Bill are controversial. The Westminster government held a consultation with ‘stakeholders’ which received diverse views and split judgements on what is being proposed. However, the HoCL briefing notes that: ‘there is some consensus between the Government’s position and the Labour Party position about the value of using genetic technologies to improve food security and improve health. The Liberal Democrats are largely in agreement with the other two parties on GM.’ So the Bill is likely to pass.
Adding to the controversy, Defra Secretary of State, George Eustice, is reported to have said that precision bred organisms created under the Bill’s framework will not have to be labelled as such because they are “fundamentally natural”. The HoCL paper reports concerns among some food campaigners that the bill “would lead to the removal of labels that allow consumers to choose what they are buying and eating”.
Candidly, I am not yet well-enough informed on the pros/cons of gene editing but I would like to know what I’m eating! My concern is with who decides on policy change! And my concern is with the negation of Holyrood’s power to decide!
The prospect of ‘bypass’
A Defra factsheet accompanying the Bill notes that the regulation of the production, release into the environment and marketing of precision bred plants and animals, and food and feed derived from them, are devolved matters So the provisions of this Bill generally apply in relation to England only. However, there is a big BUT!
The Scottish Government has long been opposed to genetic modification in food production: it announced a ban on genetically modified crops in 2015. The Scottish Government has also said it would block the imposition of this Bill in Scotland and has stated that it wishes to consider the implications of the legislation further. The Welsh Government also wants precision bred organisms to continue to be regulated as GMOs in Wales.
The crucial point is that the Bill will have an impact on Scotland (and Wales) regardless of the position of the elected government in Edinburgh (and Cardiff). If precision bred products can be legally produced in or imported into England they can be legally placed on the market in Scotland and Wales (but not Northern Ireland). The HoCL reproduces a section of the Explanatory Notes to the Bill:
‘The mutual recognition principle in the United Kingdom Internal Market (UKIM) Act 2020 will apply to precision bred plants and animals, and food and feed derived from them, which are produced in or imported into England, meaning that it would be possible to place them legally on the market in Scotland and Wales if they can be marketed lawfully in England as a result of this Bill and the delegated legislation to be made under it. Owing to the Northern Ireland Protocol, precision bred organisms and food and feed derived from them will only be able to be imported into Northern Ireland if they undergo a full GMO authorisation.’
The scope for this kind of circumvention of the devolution settlement – and effectively, the negation of the powers vested in Holyrood and the Scottish Government – must be huge. It could cover any legislation enacted by Westminster whose consequences lead to an activity, output or outcome deemed to fall within the ambit of the ‘mutual recognition principle’ in the UK Internal Market Act. And it would do so regardless of the constitutional/legal status of the power to legislate – reserved or devolved!