Seema Nanua
Posted on 26 Feb 2021

Gene editing – UK government announces post-Brexit consultation

Written by Alex Ricketts & Seema Nanua

The UK government has announced plans to consult on gene editing techniques designed to modify crops and livestock in England.

The announcement, which follows the UK's departure from the European Union, underscores the government's readiness to unlock the potential environmental benefits offered by gene editing of crop and animal species (and other genetic technologies) in the fight against climate change. 

What is gene editing?

Gene editing involves the process of making precise changes to the DNA of crop or animal species.

Unlike traditional genetic modification ("GM") techniques, gene editing does not introduce the DNA of other organisms. Instead, the process reflects naturally occurring mutations to DNA and centuries' worth of breeding practices designed to develop stronger and healthier species variants. Whereas ordinary breeding practices can take years for breeders or growers to identify advantageous traits in a particular species, gene editing involves the application of modern biotechnology to enable scientists to produce quick results.

It is hoped that modern gene editing practices will enable the UK to mitigate against the consequences of climate change, while working towards long-term sustainability objectives.

However, gene editing techniques have been plagued by concerns over how the process should be regulated.

EU regulation and post-Brexit autonomy

The European Court of Justice ("CJEU") considered the question of gene editing, and how it should be regulated, in 2018. At the time, the UK was a member state of the EU and as a result was obliged to adopt decisions made by the CJEU.

The case of C528/16 Confédération paysanne and Others v Premier minister and Others concerned a dispute brought by the French agricultural union, Confédération paysanne, which argued that seed varieties which had been modified so as to be resistant to certain herbicides posed a significant risk to the environment and human safety. It sought to compare gene editing techniques to GM practices involving the insertion of a foreign gene.   

The CJEU ruled, contrary to the earlier opinion of the Advocate General, that organisms obtained through gene editing techniques should be regulated in the same way as traditional GM techniques and would fall within the scope and obligations laid out in the EU's GMO Directive ("the Directive").

Although the court provided much needed legal clarity, the ruling was met with resistance. The UK and several other member states opposed the CJEU's decision, arguing that it represented a significant setback for new plant breeding techniques and a missed opportunity for the EU to lead the way in agricultural innovation.

The UK considered that the Directive imposed unduly restrictive regulatory provisions which hindered technological advancements in the field of genetics, and it was suggested that the court's decision was one based on legal interpretation and not on scientific evidence. Regardless, in 2018, the UK had no choice but to adopt the CJEU's judgment as a member state of the EU.

The UK has now left the EU and is free to pursue its own policy decisions on the regulation of gene editing. Accordingly, on 7 January 2021, the Environmental Secretary, George Eustice MP, launched the government's consultation at the Oxford Farming Conference which aims to consider how gene editing (and other genetic technologies) should be regulated in the future in the UK.

The consultation

The government has indicated that its consultation will consider whether gene editing techniques would benefit from deregulation in the UK.

The consultation is split into two parts:

  1. Part 1 will focus on the regulation of gene edited organisms which have been genetically altered in a way to mirror traditional breeding practices.
     
  2. Part 2 of the consultation will aim to gather views from academics, environmental groups, agriculturalists and the wider public on the existing regulatory framework which governs Genetically Modified Organisms ("GMO"). The feedback will drive policy developments and wider reform on GMOs. 

Subject to the findings of the consultation, the government could decide to amend the definition of a GMO (currently defined under section 106 of the Environmental Protection Act 1990). If it does, it would mean that the existing legal framework would not apply to organisms produced by gene editing. This approach has been adopted by several other countries including Japan, Australia and Argentina.

In its announcement, the government confirmed that the consultation forms part of a longer-term project to "gather evidence on updating our approach to genetic modification" and to ensure that the UK is "in step with the current science and knowledge we have learned from 30 years of existing regulation." The consultation will continue for ten weeks and conclude on 17 March 2021.

Would gene editing benefit from deregulation?

There has been considerable debate over the ethical and safety concerns surrounding gene editing. There are concerns about the risk that scientists could inadvertently breed a species implanted with certain negative properties which could cause harm to the environment. Others suggest that gene editing should be regulated just as rigorously as GM techniques, as per the CJEU's ruling, because the process creates an entirely new organism. These issues also sit against a wider backdrop of ethical concerns relating to the application of gene editing on humans.

However, the UK government has indicated that gene editing for agricultural purposes could unlock many benefits in the fight to tackle food insecurity and environmental challenges posed by climate change. The view advanced proposes that unduly restrictive regulation, aimed at safeguarding human and environmental safety concerns, inadvertently impedes sustainability efforts.

Indeed, gene editing techniques have the potential to, among other things:

  • Create new plant varieties naturally resistant to disease, pests and extreme climate conditions;
     
  • Create new plant species which provide improved nutritional value and higher yields for consumption by humans and animals;
     
  • Assist in the fight against water scarcity; and
     
  • Improve the ability of farmers and growers to grow crops with fewer necessary inputs: less water, less fertilisers and fewer herbicides necessary. Thus, refining farming practices and reducing costs.

Comment

The announcement will come as good news to many and represents a valuable opportunity for key stakeholders, including agriculturalists, environmental groups, scientists and the wider public to voice their views on how gene editing (and other genetic technologies) should be regulated going forwards. It is also illustrative of the UK government's eagerness to tackle its ambition of achieving net zero by 2050.

If you have any questions about how the government consultation might affect you or your business, please do not hesitate to contact Seema Nanua, Solicitor in the Agriculture team at Michelmores or Alex Ricketts, Paralegal in the Commercial Litigation team at Michelmores.

You may also be interested to read our Rachel O'Connor's overview of insect farming: Insect farming – achieving a sustainable food cycle.