13 Mar 2023
The Genetic Technology (Precision Breeding) Act 2023 became law on 23 March.
‘Precision breeding’ is the new rubric for certain uses of genetic technology in agriculture.ⁱ Several arguments have been made in favour of precision breeding, including: making animals better adapted to production systems, reducing the use of environmentally damaging chemicals or pharmaceuticals in the production process, and increasing productivity in the food system in various ways. However, many of the concerns that attached to first-generation genetic modification (GM) still frame the public reception of new biotechnologies.
For the English agricultural sector, the new Act carves out a more permissive regulatory regime for ‘precision bred organisms’ from the retained EU regulations that will continue to apply to other genetically modified organisms. It doesn’t apply in Wales or Scotland (whose governments don’t want it), or in Northern Ireland (who are keen but are stuck with the EU rules regardless).
This difference is not surprising for a legislative initiative that was the long yearned-for child of Brexit. However, when we look back at where the policy process started, it is clear that we have travelled a long way from simply taking a divergent view on the same old preoccupations that were enshrined in the European Directives (the ones that shoehorn deeply held societal attitudes uncomfortably into areas of EU competence). Whereas the initial Defra consultation, launched in the first days after Britain’s disengagement from the EU, was largely framed around risk, the Nuffield Council (among others) successfully argued that there were distinctive ethical issues to unpack, particularly in relation to farmed animals.
We were therefore heartened when the (then) Secretary of State for the Environment, Food and Rural Affairs signalled, at the beginning of 2022, that specific provisions would be made to take account of animal welfare and that a more cautious, staged approach would be taken to implementation. When the Bill was revealed, it turned out to make provisions in a lot of the areas we had explored in our 2021 report. In fact, as I wrote at the time, the legislation appeared, at first blush, to offer point-for-point responses to many of our recommendations.
What I also wrote at the time (and the Bill passed through Parliament largely unamended, despite running the gauntlet of insightful, and sometimes incisive, debate) was that these elements needed to add up to a more coherent system of governance in order to avoid an outcome whereby unacceptable costs are merely displaced and one set of challenges traded for another. By seeking to drive forward agricultural productivity under free market principles, and only curtailing its most directly harmful consequences, the Act may make little contribution to tackling the many complex challenges facing the food and farming system.
As Labour’s shadow Defra minister, Daniel Zeichner, said in the final parliamentary debate, we may have missed an important opportunity to address the damaging historical effects of commercial animal breeding, which have contributed to entrenched problems in the current food and farming system, and which prospective innovations promise to supercharge. This is not about the regulation of a particular class of technologies, though (Zeichner’s comment was in the context of advocating a supervisory Genetic Technology Authority); it is a question of underlying policy. (Thus, our own recommendations tended to bear on governance of all commercial breeding, regardless of the technology, rather than of all biotechnologies regardless of the organism.) It remains unclear, for example, how the new Act interdigitates with governance of biotechnology research (governed by the Animals (Scientific Procedures) Act 1986) and the treatment of animals on farms (the Animal Welfare Act 2006). Additionally, it is uncertain what purchase the scheme set up in last year’s Animal Welfare (Sentience) Act 2022 will have on international trade policy, or, for that matter, the operation of the internal market (which means that products that may not be produced in some home countries must be capable of being marketed there).
Furthermore, governance that must flow around this archipelago of legislation has been left to be worked out in future regulations (an approach that gave rise to persistent criticism during the passage of the Act). And it is not clear, despite repeated ministerial bromides, that that the use of commencement orders is a reassuring or effective way to achieve the staged implementation of the Act for different species. (We had argued, at the least, for an approach that linked the species modified, the purpose or effect of the modification, and other relevant factors, to be set out in an amendable Schedule to the Act.)
A lack of integrity at the policy level potentially opens the door for a divergence between rewards and responsibilities. Leaving these to be sorted out by market mechanisms relies, ultimately, on faithful signals about consumer preference reaching producers. It is a peculiar feature of the Act, then, that it does not mandate labelling of precision bred products, thereby depriving consumers of information on which to base their decisions. It does this on the facetious ground that precision bred products are analytically indistinguishable from conventionally bred ones – as if, after the nuanced debate we have heard, that is still all there is to consider. This reveals a danger of the Act, that its support for British life sciences and English industry, a privileged engine of economic growth, could come at the expense of British consumers, and in tension with the public interest.
There has, of course, been some predictable handwringing from committed anti-GM campaigners, matched by some spluttering broadsides from aroused innovationists. But if the two public dialogues we initiated demonstrated anything it was, first, that the issues that previously polarised the camps generated more sound and fury than signification, and, then, that reasonable people with complex and non-coincident interests can find ways to address a set of challenges when they recognise they must face them in common. The overriding concern that emerged was not about biotechnology per se, but that biotechnology innovation might deliver benefits only to producers, and not also (more importantly) to consumers, to animals and to the environment.
At the same time, the public dialogue participants recognised the powerlessness of individuals to secure this outcome through the supermarket checkout. While taking part in the dialogues had caused many to look again – often with misgivings – at the contents of their shopping baskets, they returned to the view that it should not be their responsibility as individuals to decide what was put on the shelf. People simply lack the time in their day to devote to understanding all the ramifications of their purchasing decisions, or the resources or determination to disentangle themselves from the snares of surveillance capitalism.ⁱⁱ It is not bad faith, they concluded, to expect public authorities to safeguard their longer term and collective interests: to make and enforce coherent public policy that promotes public good.
ⁱ Whereas first-generation genetic modification using recombinant DNA techniques was largely concerned with the (often ‘hit-and-miss’) transfer of well-characterised, functional genes between different species, new techniques that enable the precise, targeted alteration of sequences of DNA in living cells have since emerged, particularly since 2012 when the CRISPR-Cas9 ‘genome editing’ system was first described. The subset of applications of these techniques marked out by the new Act concerns bringing about features that could have resulted from ‘traditional’ breeding processes (including conceivable spontaneous mutations). ‘Precision breeding’ techniques have therefore been rhetorically positioned between (first generation, transgenic) ‘genetic modification’ and ‘conventional’ controlled breeding (which' often makes use of insights from genomics), implicitly – but imponderably – a ‘short-cut’ that achieves its aim by intervening directly in the genome rather than encouraging genomic variation indirectly.
ⁱⁱ As we said in our report, if public policy is to be given effect through labelling, it is not the products we need to label, but the retailers. See paragraph 6.44 and recommendation 9 of our report, where we propose a concordat on the marketing of animal products with supporting accreditation, to overcome the problem of retailers passing on responsibility for encouraging poor production practices to individual consumers.