Frontstage rhetoric, backstage forces in current debates around the European Court of Justice ruling on GM crops

Below is a scholarly but hard-hitting analysis of the EU Court of Justice ruling on the GMO status of new gene editing techniques. It contains a masterly deconstruction of GMO advocate Prof Ottoline Leyser's high-handed and unscientific response to the ECJ's ruling.
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Is the new European ruling on GM techniques "anti-science"?

Andy Stirling
STEPS Centre, 6 Aug 2018
https://steps-centre.org/blog/european-court-of-justice-ecj-gene-editing-anti-science/
[links to sources at the URL above]

* Frontstage rhetorics, backstage forces in current debates around the European Court of Justice ruling on GM crops

There has been much commotion in the media over the past week, following the ruling by the European Court of Justice over how to interpret EU laws bearing on the regulation of GM crops.

The ruling clarifies an anomaly, in that new plant varieties developed by longstanding non-GM gene-altering techniques of ‘mutagenesis‘ (using chemical reactions or ionising radiation) are now interpreted “in principle” to be classifiable as GMOs. The new GM techniques of "gene editing", on the other hand, are interpreted by the ECJ to be included in existing GM regulations.

In a complex case, the Court’s rationale is not without some ambiguity or persisting questions. But the bottom line is pretty clear.

With gene editing lauded by many GM advocates for its claimed greater "precision" than either existing GM or mutagenesis, it is this obstacle to the passionate aim of deregulating GM that has caused greatest fuss.

STRONG REACTIONS

The outcry from GM proponents has been quite deafening. Decrying a supposed departure from “science based decision making”, acceptance of gene editing technologies is advocated by proponents as if they were synonymous with science more generally. Calls that the ruling is “backward looking and hostile to progress” imply GM in general to be tantamount to progress itself. Normally measured and thoughtful, the Observer newspaper is pushed into a shamefully misleading editorial, charging the ECJ with “an intellectually vacuous decision that will hobble its agricultural output for decades”. Other voices frame the decision as a “rigid judgement” that will “prohibit European consumers, producers, researchers and entrepreneurs from accessing the benefits of these innovations”. Dark warnings of “a chilling effect on research” portray GM as if it were the only focus for research in this field. And – as if GM technologies also offer the only available innovation strategies for improving agriculture – ominous threats are made that business will “move somewhere else”.

Amidst the hullaballoo, one particular voice commands special attention. Professor Dame Ottoline Leyser of the Royal Society, and Cambridge University’s Sainsbury Laboratory has been energetically doing the rounds. Speaking as a leading scientist in this field through flagship media like the BBC Radio 4 Today Programme and the cross-university website "The Conversation", she is clear in her own advocacy of GM (as distinct from other plant breeding) technologies.

Such subjective preferences are entirely legitimate. And much of Professor Leyser’s commentary is characteristically authoritative, qualified, nuanced and reflective. But in asserting so unequivocally that the ECJ position is “wholly inadequate” and displays a “deep logical flaw”, Professor Leyser’s language – like so many other ostensibly "scientific" voices – actually departs from these essential qualities of science under uncertainty. Her immoderate dismissal of the European Court of Justice plays to the Brexit deregulation gallery in the UK, but risks jeopardising more than just her own reputation.

WHAT DOES THE EUROPEAN COURT RULING MEAN?

It is wrong to suggest, as do Professor Leyser and others, that the ECJ judgement seeks to adjudicate the risks or benefits of any plant breeding technique. In fact, this ruling does much to balance regulatory treatment of GM and non-GM technologies. In particular, it thwarts a rather clumsy attempt by the GM industry to engineer the deregulation of recently-developed ‘gene editing’ techniques, as if they were older, entirely non-GM, forms of mutagenesis.

Yet what the ECJ was actually aiming at was not to make new law, but to clarify existing EU legislation. If GM proponents like Professor Leyser dislike the implications, they should not attack the ECJ for failing to share their own general view, but argue for different laws. However, important as such misunderstandings are (and ironic given her corrective tone), Professor Leyser’s piece embodies some deeper and more serious misrepresentations that it may be illuminating to unpick.

In so “wholly” dismissing contending views and laying such ostensibly exclusive claim to “logic”, Professor Leyser shares a common tone with many other GM advocates – especially in elite institutions. Such a style can make it seem as if the resolving of this long-running controversy should simply involve society as a whole bowing to the authority of senior scientists. It can make it appear as if particular scientific disciplines and organisations hold no values or interests of their own. Disproportionate advocacy of one particular innovation at the expense of others, is presented as neutral disinterest.

WHICH WAY? HOW DO WE DECIDE?

Yet the issues here are not just about being "for" or "against" some notionally singular scientific “logic” or technological “way forward”.

What is at stake are two far more complex and crucial matters. Which among many alternative – possibly irreversible – directions for progress, should be pursued in the crucial field of food production? What degree of tolerance should be shown for different kinds of (equally valid) ways of reasoning in democratic debates concerning these complex, uncertain and intractable questions?

In accusing the ECJ reasoning of being “wholly inadequate” and “logically flawed”, then, Professor Leyser is showing a regrettable disrespect for other ways of deliberating rationally about which directions for science and technology are more appropriate, and which less.

For some, GM may indeed offer particular promise. Opportunities to charge rents on intellectual property or exploit wider product synergies can make them very commercially attractive. This is why they are so powerfully backed. But the issues are actually far more multidimensional and shaded than the stark “yes” or “no” picture presented by clamouring advocates.

And – whatever view is taken – it is very clear (contrary to the emphatic claims of proponents like Professor Leyser) that both GM in general and gene editing in particular certainly do display legitimately-distinguishable characteristics.

Of course, there is plenty of scope to wrangle over details here. But what is both untenable and undermining of reasoned debate, is to reject even the possible validity of any distinction of GM and gene editing from other techniques. For Professor Leyser to be so self-assured and dismissive in such assertions, is to erode the self-scepticism and tolerance that makes science such a potentially sensitive (and so effective) way to apprehend the world. It is this disrespect for other ways of understanding issues around GM – and such single-minded, partisan, all-or-nothing advocacy – that has helped provoke such polarised and counterproductive debates in this field.

For instance, Professor Leyser lampoons the ECJ position as effectively amounting to a conclusion that anything "natural" must be good for you. This is a caricature that bears no relation to the terms actually used by the Court in its ruling. But the problem here is not just factual error. For a senior scientist so brazenly to ridicule other ways of thinking in this way – let alone that of such a carefully deliberative body – does more than just undermine reasoned debate about GM crops. It risks throwing science itself into disrepute. And in a climate of growing authoritarianism and intentional disinformation, democratic societies should be very wary of the wider consequences of such cavalier rejection of contending ways of reasoning.

To so dismiss careful judicial deliberation and treat such complex, long-run – potentially irreversible – choices as if they should be determined by a single narrow parochial kind of “logic” is not an innocent fallacy. It is a routine strategy on the part of the powerful interests behind GM technologies to seek to assert a particular scientific view and pretend that it speaks for science as a whole.

In fact, it is diversity and reasoned contention that are the lifeblood of science. To emphasise a supposedly singular "sound science", "evidence-based", "pro-innovation" “logic”, is to deploy science itself as a partisan political resource. Such engineered closure does not just exclude other less privileged (but equally innovative) alternatives, it is – again – ironically undermining of science.

WHAT INNOVATIONS ARE POSSIBLE?

In reality, there exists a wide diversity of highly effective non-GM innovations (social as well as technological) for enhancing agricultural productivity – for example, open pollination, marker-assisted breeding, open source seed sharing, pursuing diversity rather than standardisation, and harnessing farmers’ own knowledge of their local conditions. Lacking such commercial attractions, these "Cinderella options" tend to be neglected in existing global markets and research and innovation systems. If any of these were jeopardised by the ECJ ruling, would there be such a fuss?

But around each, there is a similar diversity of equally valid ways of being rational about the associated complicated social choices. It is these kinds of diversity that are threatened by Professor Leyser’s overbearingly singular assertion of her own “logic”. So, the issues at stake deserve more pluralistic, respectful, reflexive – and precautionary – discussion.

And here, Professor Leyser’s intolerant dismissal of the ECJ is also problematic in another way. It is incontrovertible that transgenic techniques intentionally move genes between species in ways not otherwise possible. Claims that these new technologies offer unprecedented ‘precision’ may be good for patenting and financing, but clash with pleas to regulators that they are "natural". But in the early stages of development of these new organisms before they become widely released out into a complex world, recent research is suggesting that this assertively imagined precision may be questionable.

The techniques involved certainly are impressive in their scientific accomplishment. But no matter how great the attempted – or claimed – ‘precision’ in these interventions, experience warns there can be no guarantee of any corresponding precision in their consequences.

PRECISION, UNCERTAINTY AND RISK

It is on points like this that the muted topic of uncertainty comes to the fore. The issues at hand are not merely about simple quantified ‘risk’, but a range of far more multidimensional and intractable "uncertainties".

Performing "precise" quantification and restricting attention just to particular parameters, a simplified "risk" picture is convenient to an industry that wishes to establish their own assumptions as a default and close off wider debate. But "precision" is not the same as accuracy. A clock may be impressively exact, but nonetheless wrong. What awareness of scientific uncertainty underscores, is that confident assertions are not the same as robust understanding.

In fact, hubristic assertions can be a counter-indicator of robustness. Overbearing imposition of simplified, circumscribed ‘risk’ frameworks emphasise the kinds of quantitative analysis that industry is best placed to dominate. So the effect is not neutral, but can steer attention away from wider qualitative assumptions begging inconvenient – but potentially serious – questions.

GENES, TRAITS, PROCESSES AND THE LAW

This simplification can also play to the vanities of scientific disciplines, whose funding and prestige can depend on the confidence with which they express their own particular stylised understandings – such as the “central dogma” of GM, which sees an individualised ‘‘gene’’ (in Nature) as a sole one-to-one determinant of a (human) category of interest called a ‘‘trait’. ’In downplaying wider, complex, systemic dynamics, such expedient reductions favour business models based on intellectual property claims over the ostensibly-tiny supposedly uniquely-generative features of the world, that are highlighted in this simplified vision.

This is why the GM industry – as well as many scientist advocates like Professor Leyser – tend to argue so vociferously for regulation to be based on simply-stated "traits" rather than the far more complex realities of different "processes".

Yet acknowledging the multidimensional uncertainties associated with processes is no less scientific than calculating the apparently straightforward risk attached to a notional trait. Indeed, it is the far richer challenges of uncertainty that arguably inspire and drive science most effectively.

So marginalisation or denial of uncertainty in the emphasis on traits rather than process, can be recognised as a partisan economic and political position. The effect of such dismissal on qualities of understanding of the issues at stake, can be not just unscientific, but anti-scientific.

Of course, none of this is to say that GM strategies in agriculture are necessarily ill-advised. Nor – depending on one’s political values – are the associated concentrations or expressions of power and privilege in science and industry somehow automatically negative.

But this is why the intensity of the hullaballoo is so odd. The ECJ ruling does not take a position on these issues. Nothing has been “banned”. Interpreting laws that simply recognise the novelty and distinctiveness of different kinds of GM breeding processes, the ECJ is merely offering a consistent framework of interpretation within which continuing healthy reasoned argumentation can be more rigorously played out.

WHAT IS "NATURAL"?

Here there arises a final crucial aspect of this ongoing debate that also features prominently in Professor Leyser’s recent interventions. This concerns what may – or may not – be considered "natural".

The question is not self-evident. For instance: by whatever process it is moved around, might not any gene sequence be seen as "natural", if it is derived from the "natural" genome of another species? Does not Nature herself move genes around in all kinds of complex ways – many probably still unknown? For that matter, is not humanity itself an intrinsic part of Nature – along with all our behavioural practices including GM? Are not particular assumed and actual properties of "Nature" intrinsic to what we call a ‘society’? Issues around what is (and is not) "natural", are far more complicated than first appears – or is loudly asserted by all sides in this debate.

One idea that might be helpful in thinking about the resulting conundrums is a notion that spans both Nature and different aspects of human societies. This is the concept of "agency". Relating simply to the making of choices, agency in general can be understood to be about the conditioning among many possibilities, of selective orientations for change in the world.

In these terms, both Nature and human affairs are pervaded by many different sources, contexts and kinds of agency. In society this is a large part of politics. And in Nature, after all, myriad plants, animals, ecosystems – arguably evolution and the Earth itself – are all revealed in different scientific disciplines to be exerting their own forms of agency.

So the question that emerges from this for GM debates, then, is not about whether any given form of agency can be asserted to be ‘natural’ or not, but: what particular kind of agency it is? How intense? Where does it emerge from? Where is it oriented? Who wins and loses?

WHAT MAKES GENE EDITING DIFFERENT?

It is on these kinds of question that the ECJ ruling may help a little, in that it establishes a more clear and level playing field for deliberating the legal implications and unknowns associated with natural genetic processes, mutagenesis and different kinds of GM. And one key issue that emerges here with GM – and especially gene editing – is that the kind of agency involved is very specific. Whilst the other plant breeding practises mentioned above all afford more scope for diverse kinds of agency – natural as well as social – it is the quality of "precision" (as emphasised by proponents themselves), that involves a particular and especially intense assertion of agency.

This particular kind of agency associated with GM as well as many industrial forms of plant breeding is "instrumental" – in the sense that it aims for specific "traits" as ends in their own right (whatever may be their wider effects). And it is "commercial’"– in the sense that the motivation is to engineer a viable business model (rather than unfold more diverse random effects). These general qualities are held in common.

But what the intended "precision" associated with GM (and especially gene editing) arguably does, is intensify this aspired control. And this sharp-elbowed intensification of controlling ambitions applies irrespective of the uncertainties that apply to actual outcomes.

So it is here that even conventional mutagenesis can (if one wishes) be entirely reasonably distinguished from gene editing. Implicating many other processes and unintended possibilities, the kinds of random change involved are less exclusively and intensively assertive of a particular (instrumental and commercial) form of agency. But they remain, of course, open to serious adverse surprises of their own. This is again neither necessarily good nor bad. But it does highlight another crucial implication that Professor Leyser seems entirely to miss. The inclusion by the ECJ of mutagenesis as a focus for more stringent regulation alongside GM might be a point that GM advocates would be expected to welcome.

IS DIVERSITY BEING DISMISSED?

Anyhow, none of this detail needs to be agreed with, for the central point of this commentary to hold. The point is that the many uncertainties and ambiguities around the ECJ ruling (and GM issues in general) leave plenty of room for reasonable contention. This applies also to the present argument – on which it is entirely legitimate that others may differ. But it is the dismissive tone of interventions like those of Professor Leyser that are most of concern.

Whatever view is taken, it is simply not right for one side to seek so comprehensively to exclude other ways of reasoning. There should remain space for questioning in multiple contrasting ways, the sources, intensity and implications of diverse forms of agency embodied in different plant breeding techniques.

In the end, then, these are matters not for the excludingly scientific “logic” asserted by Professor Leyser, but for more inclusive, openly political discussion. The view typically exemplified by GM proponents is oriented towards an ostensibly scientific – but actually romanticised – vision of “precise” intervention, comprehensive control and quantified risk.

By contrast with this, a more caring – less hubristic – view might respect a diversity of perspectives, agencies and more intractable uncertainties. Indeed, a shift from expedient fallacies and fantasies of control towards the more equitable and earthily grounded of values of care, might be a move that could benefit other features of contemporary political culture. But whatever view might be taken in the resulting spectrum of understandings of GM, it is simply not reasonable so dismissively to brand the ECJ ruling as being in itself either logically “flawed” or “wholly inadequate”.

Indeed, it is this kind of intolerant overbearing language – from whatever side – that poses a serious problem. Such behaviour seems sadly endemic in current politics. But if important choices around GM technologies are to be made in democratic ways that are socially as well as scientifically robust, then we should expect – and strive for – better.