which would protect Mr Watson’s interests, even though it was not disputed that
the trial would harm Mr Watson’s crop in much the way he claimed. The central
point seems to be a Wednesbury irrationality challenge to the decision that the
planting was safe. The Secretary of State relied on the advice of the Advisory
Committee on Releases to the Environment (ACRE), which had told him that it
estimated that one sweet corn kernel in every 40,000 would be cross-pollinated.87
In the light of this, Simon Brown LJ said:
If cross-pollination occurs, it will have a devastating effect upon the applicant’s business,
reputation and livelihood. The Soil Association take an absolute stance with regard to
accreditation. Not merely would the organic status of the applicant’s present sweet corn crop
be imperilled; so too would the rest of his farming enterprise. Grave though I accept the
consequences of contamination here would be, and understandably worried though the
applicant must be, I cannot regard this as an irrational decision . .. the assurance [given by
ACRE is] a reasonably confident assessment that realistically there is no more than minimal
risk. Of course, this falls short of the guarantee which the applicant and [another interested
party] were looking for. But it seems to me a perfectly reasonable point at which to strike the
balance between the competing interests in play.88
This is ceteris paribus reasoning indeed. Though no doubt some such argument
will arise in future litigation, it is quite beside the point to attempt to draw a
reasonable line between one in 40,000 and the one in 1,000 which ACRE thought
the level of cross-pollination in the ‘worst case scenario’.89 The real point is that,
on the facts he accepted, Simon Brown LJ condoned Mr Watson having his
livelihood taken from him without compensation in the belief that a benefit will
accrue to Sharpes that makes this taking reasonable.90 Following this decision, the
future for the cultivation in Britain of organic crops as accredited by the Soil
Association appears bleak indeed.91 One is uncertain whether to admire or deplore
87 The applicant claimed that ACRE had actually said the risk was ‘likely to be zero’, which Simon
Brown LJ seemed, and if so rightly, to have thought would have been irrational, but he regarded
ACRE’s advice as more complex than this. n 11 above, 315–316. The advice was published on 16
July 1998 as ACRE, Advice for the Secretary of State for the Environment, etc on Genetically
Modified Maize in National List Trials Adjacent to an Organic Farm in Devon, 23 June 1998.
That Simon Brown LJ’s generous reading is questionable is argued in the commentary provided in
the Enviromental Law Reports, n 11 above, 326–327. With respect, I believe it to be wholly wrong.
MAFF itself does not appear to agree with it. A MAFF public information document currently being
circulated to those, like myself, who have tried to raise the issue with their MP, claims that the
decision that the trial should proceed was taken following receipt of the advice that cross-pollination
was likely to be zero, and that this was ‘a decision subsequently upheld by the High Court and the
Court of Appeal’. Joint Food Safety and Standards Group of the Department of Health and the
Ministry of Agriculture, Fisheries and Food, Fact Sheet: Genetic Modification of Crops and Food.
88 n 12 above, 315–316.
89 ibid 316. Research commissioned by the Soil Association put the level as high as 1 in 93. J. Emberlin
et al, The Dispersal of Maize Pollen, January 1999 (available from The National Pollen Research
Unit, University College, Worcester, WR2 6AJ).
90 I will not pursue this implication here, but it is clear that criticism of this aspect of ex parte Watson
involves criticism of the, indeed extremely suspect, ethical background of the justification of
intervention by theoretical compensation calculated according to the Kaldor-Hicks welfare criterion.
N. Kaldor, ‘Welfare Propositions in Economics and Interpersonal Comparisons of Utility’ (1939) 49
Economic Journal 549 and J. R. Hicks, ‘The Foundations of Welfare Economics’ (1939) 49 Economic
91 One anticipates that the Soil Association will either have to dissolve itself or, more likely, water down
its standards, which are agreed with national and European authorities, the Association’s wholly
owned subsidiary, Soil Association Certification Ltd, being a licensing body authorised by the EU and
UK under the UK Register of Organic Food Standards. 2092/9/EEC. This is exactly what the Organic
Trade Association, an American equivalent to the Soil Association, claims will be the effect of
national organic certification standards currently being proposed by the United States Department of
Agriculture. Organic Trade Association, ‘Organic Trade Association Cites Nine Threats to Organic
Integrity in USDA’s Proposed Rule’, Organic Trade Association Press Release, 15 December 1997.
March 2000] A (Sort of) Defence of Private Nuisance
ßThe Modern Law Review Limited 2000 211