Environmental crises in Nigeria and extraterritorial judicial achievements: A wake-up call for Nigerian courts?

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Written by Cleverline T Brown, Doctoral student, member of Environmental Law and Sustainability Research Group.

The decisions of extraterritorial courts have left much to be desired about the efforts of the judiciary at the national level to assert itself in the fight to tackle environmental crises. While access to court has been one of the notable barriers to securing environmental justice in Nigeria, alternative pathways have been established through which litigants find access to courts in furtherance of environmental justice which they would otherwise have been deprived of. One such pathway is the recourse to foreign courts. Nigerian courts can draw some lessons from the stance of foreign courts in dealing with environmental cases.

Notable cases decided in foreign jurisdictions

Three notable cases were decided in the last year that may have possibly marked a turning point in the way environmental cases are resolved. However, the Nigerian courts do not seem to be taking the cue as quickly as they need to, considering the volume of environmental cases pending or likely to be instituted.

Vedanta Resources Plc. and Another (Appellants) v Lungowe and Others (Respondents)

In this case,[1] the UK Supreme Court held that UK courts can assume jurisdiction in certain circumstances, over cases instituted in UK Courts by non-UK citizens against both foreign subsidiaries and the UK parent company in cases of human rights violation outside of the UK.[2] The Appellants vehemently opposed unsuccessfully, the institution of the case in the UK Court on grounds of jurisdiction and their willingness to submit to the jurisdiction of the Zambian Court. The opposition was rejected by the Supreme Court. The court reasoned that a parent company should take responsibility for harms caused by its subsidiaries and affirmed that England is the right jurisdiction to hear the claim because substantial justice is guaranteed where the claimants have access to appropriate legal representation which is unlikely in a Zambian Court.[3]

Okpabi and Others (Appellants) v Royal Dutch Shell Plc and Another (Respondents),

The UK Supreme Court, in this case,[4]held that the polluted Ogale and Bille communities can sue Royal Dutch Shell as a parent company to Shell Petroleum Development Company (SPDC) because it owed the communities a common law duty of care and raised a real and triable issue since it exercised significant control over material aspects of the operations of its subsidiary SPDC in the communities.[5] It is contended that this decision implies that rural communities who have suffered environmental harm due to the activities of multinational corporations can bring an action in the original jurisdiction of their parent companies.

Milieudefensie Voor Veranderaars (Friends of the Earth Netherlands) & Others v Royal Dutch Shell PLC[6]

In this case, Milieudefensie, six other organisations including Greenpeace and over 17,000 co-plaintiffs sued Royal Dutch Shell in an attempt to stop it from causing climate change.[7] The plaintiffs claimed that Shell is breaching its legal duty of care by causing climate change across the globe and undermining the ambition of the Paris Agreement[8] and demanded that Shell must remedy this unlawful situation by aligning its corporate activities and investment decisions with the global climate targets. This case is significant in the sense that it has attempted to force climate action through the court. The reliefs sought by the plaintiffs are first, that as a multinational and worldwide operating company, Shell accepts legal responsibility to amend its corporate strategy and investment decisions and to align them with the global climate change objectives laid down in the Paris Agreement by following the global emission reduction pathway of the IPCC. Second, that Shell immediately starts reducing its CO2 emissions to at least 45% by 2030 relative to 2019 levels, and to net zero in 2050. Only if Shell follows this emission reduction pathway, can it truly contribute to preventing catastrophic climate change. The court ruled in favour of the plaintiffs.

Resorting to extraterritorial jurisdiction: some concerns

While the option to seek access to courts in extraterritorial jurisdictions in environmental cases, guarantees access to appropriate legal representation and substantial justice,[9] it raises some concerns. First, prospective litigants must ensure that all other local remedies have been exhausted before they can approach some foreign courts.[10] While this would have been an opportunity for the national courts to play a stronger role, some of the challenges of the national courts would make this effort almost fruitless; for example, court delays, lack of specialised judges etc.[11]  Second, high cost of litigation in foreign courts and jurisdictional challenges as some courts may not have the power to hear and determine some cases.[12] Third, it is argued that the continuous reliance on this pathway robs the national courts of the opportunity to assert themselves and create lasting judicial precedence and case law.

Is this a wake-up call for the Nigerian courts?

Nigerian courts must take a cue from the stand of foreign courts in environmental cases and give better audience and remedies to victims of environmental harm in Nigeria,[13] especially from foreign court decisions with impact in Nigeria. This will serve to strengthen environmental laws in Nigeria and encourage institutional structures in their implementation functions. The stand of the Nigerian courts can serve to strengthen the law, policy statements and ultimately support the efforts at effective regulation of the environment and petroleum sector operation.

There are some positive signals from the Nigerian judiciary. In the case of Centre for Oil Pollution Watch v Nigerian National Petroleum Corporation (NNPC),[14] the Nigerian Supreme Court removed the locus standi barrier by granting NGOs the right to sue without exhibiting specific injury to them. Prior to this decision, NGOs and third parties lacked the locus standi to sue where sufficient interest was not established.[15]

While this is a step in the right direction, more needs to be done at the national level and examples are plentiful. For instance, the European Commission is finally ready to consider a new law to hold businesses accountable for their impact on people and the planet.[16] These rules on ‘mandatory human rights and environmental due diligence’ would require all companies, from fossil fuel giants and agribusiness to fashion retailers and electronics makers, to establish effective policies to make sure human rights and the environment are not being harmed in their global operations and supply chains.[17] In the Netherlands, Urgenda[18] sued the Dutch government to force them to reduce CO2 emissions in the country.[19] Urgenda succeeded on appeal when the Supreme Court of the Netherlands emphasised the duty of the state to protect its citizens by reducing CO2 emissions as soon as possible.[20] In Germany, it has also been held by the First Senate of the Federal Constitutional Court of Germany that the provision of the Federal Climate Change Act of 2019 is at variance with fundamental rights because they lack specificity for emission reduction beyond 2031.[21] In addition to the Supreme Court decision on locus standi of NGOs and third parties, the Nigerian judiciary could act suo moto and be proactive in contesting legislative provisions or policies of government that are incompatible with fundamental rights. Considering the volume of actions arising from the petroleum sector, the judiciary needs to play a far more important role in ensuring environmental justice.

Conclusion

Local communities are more vulnerable to the negative impacts of environmental decisions of multinational corporations.[22]  Oftentimes, it takes a long time for victims of environmental harm to get relief because of the many obstacles of access to courts and remedies. However, the audience and remedies that prove elusive in Nigerian courts are found in foreign courts. Considering the achievement by foreign courts and the effort of other national courts at holding perpetrators of environmental harm accountable as discussed above, Nigerian courts could use this opportunity to reassert themselves in environmental law cases before it. This is a wake-up call for Nigerian courts to rise to the occasion and improve on their judicial precedents regarding environmental law decisions. Since judicial decisions and statutory interpretations form part of the law, this can further strengthen the environmental legal framework of Nigeria and also solve the problem of access to courts and remedies.


[1] Vedanta Resources Plc and Anor (Appellants) v Lungowe and Others (Respondents) [2019] UKSC 20.

[2] The UK Supreme Court rationale for this decision was that considering some factors such as competence, capacity and integrity of Zambia’s justice system, evidence abounds that the Zambian claimants would almost certainly not get access to justice if the claims were pursued in Zambia.

[3] TV Ho, ‘Vedanta Resources Plc and Another v Lungowe and Others’ (2020) 114(1) The American Journal of International Law 110, 113; PT Sambo, ‘Vedanta Resources PLC and Konkola Copper Mines PLC v Lungowe and Others [2019] UKSC 20′ (2019) 2(2) SAIPAR Case Review 5.

[4] Okpabi and Ors v Royal Dutch Shell Plc and Anor [2021] UKSC 31. On appeal from [2018] EWCA Civ 191.

[5] E Ojeda, ‘Transnational Corporate Liability Litigation and Access to Environmental Justice: The Vedanta v Lungowe Case’ (2021) 6(3) LSE Law Review 223, 224.

[6] Milieudefensie Voor Veranderaars (Friends of the Earth Netherlands) & Ors v royal Dutch Shell PLC ECLI:NL:RBDHA:2021:5339.

[7] ‘Milieudefensie et al v Royal Dutch Shell PLC’ (2021) <https://climate-laws.org/geographies/netherlands/litigation_cases/milieudefensie-et-al-v-royal-dutch-shell-plc> accessed 9 June 2021.

[8] Milieudefensie, Friends of the Earth Netherlands. ‘Notice Letter Shell’ (2021) <https://en.milieudefensie.nl/news/noticeletter-shell.pdf> accessed 26 May 2021.

[9] See Vedanta Resources Plc and Anor v Lungowe and Others [2019} UKSC 20; Okpabi and Ors v Royal Dutch Shell Plc and Anor [2021] UKSC 31. On appeal from [2018] EWCA Civ 191; Milieudefensie Voor Veranderaars (Friends of the Earth Netherlands) & Ors v royal Dutch Shell PLC ECLI:NL:RBDHA:2021:5339.

[10] Article 50 of the African Charter on Human and Peoples’ Rights.

[11] These challenges usually negatively impact the justice delivery in such cases.

[12] Ojeda (n 5) 224; S Varvastian and F Kalunga, ‘Transnational Corporate Liability for Environmental Damage and Climate Change: Reassessing Access to Justice after Vedanta v Lungowe‘ (2020) 9(2) Transnational Environmental Law 323, 330; EO Popoola, ‘Moving the Battlefields: Foreign Jurisdictions and Environmental Justice in Nigeria’ <https://items.ssrc.org/…environments/moving-the-battlefields-foreign-jurisd…> accessed 19 August 2019; Socio-Economic Rights and Accountability Project (SERAP) v. Nigeria, ECW/CCJ/APP/08/09; RULING No: ECW/CCJ/APP/07/10.

[13] As exhibited in the three landmark judgments outlined in this writing.

[14]  (2019) 5 NWLR (Pt.1666) 518.

[15] See Oronto Douglas v Shell Petroleum Development Company Limited & Ors (1998) LPELR-CA/L/143/97 Law Pavilion Electronic Law Report- Court of Appeal.

[16] S Kotanidis, ‘Parliament’s Right of Legislative Initiative’ (2020) <https://www.europarl.europa.eu/RegData/etudes/BRIE/2020/646174/EPRS_BRI(2020)646174_EN.pdf> accessed 8 June 2021.

[17] Austrian Chamber of Labour (AK), ‘What is Human Rights and Environmental Due Diligence?’ (2021) <https://www.enforcinghumanrights-duediligence.eu/en/what-is-due-diligence> accessed 27 May 2021.

[18] An organisation for innovation and sustainability that promotes the sustainability of Netherlands in conjunction with companies, governments, social organisations and private individuals.

[19] Urgenda Foundation v State of the Netherlands [2015] HAZA C/09/00456689.

[20] KJ De Graaf and JH Jans, ‘The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change’ (2015) 27(3) Journal of Environmental Law 517, 527.

[21] Bundesverfassungsgericht, ‘Constitutional Complaints Against the Federal Climate Change Act Partially Successful’ (2021) <https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2021/bvg21-031.html;jsessionid=BDDC5CCCCC30DD7A5791EAC6A0ECA022.1_cid377> accessed 8 June 2021.

[22] S Varvastian and F Kalunga, ‘Transnational Corporate Liability for Environmental Damage and Climate Change: Reassessing Access to Justice after Vedanta v Lungowe‘ (2020) 9 (2) Transnational Environmental Law 323, 324.

“Too big to fail and too big to jail?” Are some corporations’ untouchable to the UK regulators?

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Blog by Amber Egan, UWE Bristol Law alumni

Public trust in business has been tarnished by the disclosure of fraudulent, dishonest and harmful activity by banks and corporations, such as the fall of Arthur Andersen and Libor Scandal.[1] The extent of corporate crime was brought to light during the 2007-2008 financial crisis, there was vast illegal conduct of many financial institutions who were then bailed out by the taxpayer. This was the turning point for the regulators and governments, it highlighted that tighter controls and sanctions were needed for corporations.

For corporations to be held accountable the prosecution had to prove that a person had “the directing mind and will of the company,” which is known as the identification doctrine.[2] This doctrine failed at many hurdles, including ignoring the complexity of modern corporations, the inequality between different sized corporations and individuals, but also, a lack of evidence for prosecution. Due to such ambiguity surrounding responsibility in larger complex corporations, it may be impossible to show ‘a controlling mind and will’. The identification doctrine can cause inequality between how ‘the untouchable executives’ and the ‘low-hanging fruit’ are treated, lower-level employees can be easy scapegoats for large corporations.[3] Following the Libor scandal, several low-level traders were prosecuted such as UBS trader Tom Hayes[4] whereas UBS could not be held criminally liable due to difficulty in fulfilling the requirements of the doctrine.

To try and address the issues with the identification doctrine, the UK introduced a series of statutes using the failure-to-prevent module to strengthen the approach to corporate economic crime. The new module was employed in both The Bribery Act 2010 and The Criminal Finances Act 2017, the offences can be classed as strict liability as the only defence available to corporations is a due-diligence defence, where the corporation can prove that ‘adequate procedures’ were in place to prevent such conduct making prosecution straight forward.[5]  The results from charges brought by the Serious Fraud Office (SFO) are disappointing, the failure-to-prevent bribery offence[6]has only had two convictions since the introduction in 2010. The regulators have mainly employed DPAs as punishment instead of pushing for conviction. Unfortunately, the enforcement strategy is often determined by the size and the importance of the corporation, there has only been two convictions using the failure-to-prevent module, both being SMEs.[7] The regulators and even the judges fear prosecuting corporations that are ‘too big to fail’ and as a result it can be argued they alter the rules to fit the corporation making them ‘too big to jail.’

The SFO is not the only regulator in the UK with power, the Financial Conduct Authority (FCA) can take action such as suspending or withdrawing a firm’s authorisation, issuing civil fines, injunctions, restitution orders and insolvency orders, however breaches rarely amount to anything but fines.[8] The FCA has the power under the Money Laundering Regulations 2017[9] to criminally prosecute a person or organisation it suspects of not putting in place sufficient safeguards against money laundering. The FCA has not brought a single criminal prosecution against a firm or individual for breaching its new Regulations which came into effect in 2017.[10]

The UK introduced DPAs in 2013,[11] the driving force for legislating DPA’s is the difficulty in achieving successful prosecutions of corporate offenders, however they have had limited application. They often include provisions for corporations to pay large fines, along with improving their conduct and governance through an external monitor. The aim is to foster cooperation between corporations and regulators by encouraging self-reporting in aid of leniency.[12]  Even though DPAs are available to be used by all enforcement agencies, so far they have only been used by the SFO for nine agreements and have largely been for bribery offences.[13] Whereas since 2013, the US has entered into 280 DPAs for numerous financial crimes. [14] Some positives of DPAs are that funds and resources are saved by avoiding a lengthy court trial especially where a corporation self-reports and it limits the uncertainty of a trial. One of the weaknesses with a DPAs is inconsistency between large and SMEs. SMEs often commit much less severe crimes, but as they do not pose a risk to the economy when they go bankrupt, a prosecution can pushed for. Another weakness is the deterrence given with a DPA, HSBC is a repeat offender when it comes to financial crime so there is a risk of financial penalties from DPAs becoming “a cost of doing business, lessening the impact and the effectiveness of DPAs.”[15]

The regulators principal argument for the move towards DPA’s is the risk of the collateral consequences caused by a prosecution.[16] When a corporation is convicted it would bring collateral consequences on potentially innocent employees and shareholders, along with possible catastrophic effects for the industry, the stock market and the knock-on effects for the wider community.

For example, HSBC being a systematically important institution meant that it was untouchable by regulators, the fear of the damage to the global economy was far greater than the need for prosecution in the UK and US. As a result, they were offered a DPA and controversially kept their banking licence. Many corporations have essential government contracts so prosecutors are careful to avoid penalties leading to automatic debarments that would affect government operations where government contracts are essential the collateral consequences would be severe, such as military contracts.[17]

Prosecutors seeking to deter corporate crime should adjust their strategies to focus more on charging culpable individuals, as there has been very little prosecution activity for individuals also. However, prosecution is only a benefit if the correct individuals are being identified, as discussed above, lower-level employees are made scapegoats by senior executives.

Does the Senior Managers Certificate Regimer light at the end of the tunnel?

The SMCR aims to encourage a culture of staff at all levels taking personal responsibility for their actions and making sure staff clearly demonstrate where responsibility lies.[18] This makes the issue of identification much easier as responsibilities of senior managers will be clearly set out and, should something in their area of responsibility go wrong, they can be personally held accountable. For the senior managers regime, firms must provide documentation to the FCA to show responsibilities of senior managers and their suitability for their jobs.[19]

The certification regime is for those that are not senior managers but ‘whose role means it’s possible for them to cause significant harm to the firm or customers’.[20] A firm should not permit an employee to carry out certain functions unless it has issued them with a certificate to say that they are fit and proper for the specific function.

The FCA has extensive powers allowing them to issue penalties, custodial sentences and prohibitions[21] for breaches of the SMCR including breaches of the Code of Conduct[22] and breaches of The Fit and Proper rules,[23] set out in the FCA handbook.[24] However, as seen before just because the FCA has the power to impose custodial sentences does not mean they will, the FCA has only imposed fines under the SMCR as yet.


[1] Ministry of Justice Corporate Liability for Economic Crime Call for Evidence (Ministry of Justice: London, 2017) p3

[2] Tesco Supermarkets LTD v Nattrass [1972] AC 153

[3] Nick Werle, ‘Prosecuting Corporate Crime When Firms Are Too Big to Jail: Investigation, Deterrence, and Judicial Review’ (2019) 128 Yale L J 1366, p1412

[4] R v Tom Alexander William Hayes [2015] EWCA Crim 1944.

[5] A Ashworth, ‘A new generation of omissions offences?’ (2018) 5 Crim. L.R. 354 p.4.

[6] The Bribery Act 2010 s7.

[7] There have been two convictions under s7 of the Bribery Act 2010 for failing to prevent bribery, while under s45 and s46 of the Criminal Finances Act 2017 there has been no convictions to date. The government is unable even to specify the number of companies who fail to file tax returns or the amount of penalties collected for late filing.<https://leftfootforward.org/2021/04/our-watchdogs-are-toothless/ > accessed 29th April 2021

[8] The Financial Conduct Authority ‘Enforcement’ (FCA,2016) <https://www.fca.org.uk/about/enforcement> accessed 29th June 2020

[9] This replaced the Money Laundering Regulations 2007

[10] Rozi Jones ‘FCA yet to prosecute under 2017 money laundering rules’ (Financial Reporter, January 2020) <https://www.financialreporter.co.uk/regulation/fca-yet-to-prosecute-under-2017-money-laundering-rules.html#:~:text=For%20over%20two%20years%20the,up%20to%20two%20years’%20imprisonment.> accessed 5th August 2020

[11] Crime and Courts Act 2013 s45 Schedule 17

[12] F Mazzacuva, ‘Justifications and purposes of negotiated justice for corporate offenders: deferred and non-prosecution agreements in the UK and US systems of criminal justice’ (2014) 78 J. Crim. L. 249

[13] SFO have come to nine agreements since the introduction of DPAs in 2013.

[14] Gibson Dunn, ‘2019 Year-end update on corporate non-prosecution agreement and deferred prosecution agreements’ (Jan 2020) <https://www.gibsondunn.com/2019-year-end-npa-dpa-update/> accessed 4th August 2020

[15] Editorial, “Too Big to Indict”, New York Times, 12 December 2012, quoted in Reilly, “Justice Deferred is Justice Denied” (2015) Brigham Young University Law Review 101, 103.

[16] Nick Werle, ‘Prosecuting Corporate Crime When Firms Are Too Big to Jail: Investigation, Deterrence, and Judicial Review’ (2019) 128 Yale L J 1366, p1378

[17] For example, Rolls Royce, Airbus and G4S all have government contracts.

[18] Press Release, ‘FCA outlines proposals to extend the Senior Managers and Certification Regime to all financial services firms’ (FCA, July 2017) <https://www.fca.org.uk/news/press-releases/fca-outlines-proposals-extend-senior-managers-certification-regime-all-firms> accessed 8th April 2020

[19] Financial Services (Banking Reform) Act 2013 Part 4 s29

[20] O Jackson, ‘Primer: the senior Managers certification regime’ (2018) International Financial Review 1

[21] Lexis PSL ‘FCA and PRA investigations, enforcement and discipline overview’ (Lexis Nexis, 2020) <https://www.lexisnexis.com/uk/lexispsl/corporatecrime/document/393813/583N-GY51-F18F-M1K2-00000-00/FCA-and-PRA-investigations,-enforcement-and-discipline—overview> accessed 29th April 2020.

[22] Referred to as COCON

[23] Referred to as FIT

[24] Examples of penalties include J Staley CEO of Barclays for breaching COCON 2.1.2 fined £321,200 by the FCA, Guillaume Adolph a former Deutsche trader for breaches of Principle 5 and FIT fined £180,000 and a prohibition by the FCA. See Financial Conduct Authority ‘Fines 2018’ (FCA,2020) <https://www.fca.org.uk/news/news-stories/2018-fines> accessed 29th April 2020.

Combating environmental degradation in Nigeria through the recognition of the Rights of Nature

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By Cleverline T Brown, PhD student, a member of the Environmental Law and Sustainability Research Group.

Environmental degradation has increasingly plagued the human and natural environment especially since the discovery of petroleum in Nigeria. The right to a clean and healthy environment although provided for in the Constitution,[1] has been seen to be non-justiciable[2] except by alternative pathways such as through the application of the African Charter on Human and Peoples Rights (ACHPR) [3] or in a foreign court. It is also a fact that environmental pollution cases have been lost due to technicalities.[4] This has emboldened some petroleum sector operators to continue bad environmental practices. Hence the need for alternative ways to combat environmental degradation from bad environmental practices such as the recognition of the rights of nature.

Global development of rights of nature

The concept of the rights of nature is an emerging field that is gradually being recognised by countries around the world. While the rights of human victims of environmental harm are protected under human rights law,[5] other victims of environmental harm such as nature and natural resources, exist and have been left behind by policy and law-making thereby rendering them invisible and silenced in the search for justice.[6] Rights of nature are rights that nature and natural resources possess, as distinct from the right of humans to a healthy environment. It can be a reformulation and expansion of existing human rights and duties in the context of environmental protection.[7] In some jurisdictions like India, New Zealand, Ecuador, Brazil, Columbia, Bolivia, nature is accorded human status.[8] This implies the right to be protected just like human beings under human rights laws; and the right to enforce such rights under the law.[9] Stone noted that until the rightless thing receives its right, we cannot see it as anything but a thing for the use of ‘us’ – those who are holding the rights at the time.[10] More countries are legally recognising the rights of nature in their domains. In February 2021, the Innu Council of Ekuanitshit recognised the Magpie River, a 3000km (186 miles) waterway in the cote Nord region of the Canadian province of Quebec, as a legal person.[11] Some of the sources of the rights of nature in these jurisdictions include case law,[12] the Constitution and other legal instruments.[13]

Rights of Nature in Nigeria

The non-justiciability of the environmental rights provisions in the Constitution of Nigeria has prompted victims of environmental harm to seek access to courts in pursuit of justice, through other pathways.[14] While this effort has yielded some positive results, it has not yielded an express pronouncement on the rights of nature and natural resources per se to be protected, specifically in Nigeria. When environmental harm occurs, the rights sought to be protected are the rights of the human victims alone and these rights do not extend to the protection of nature. Recognition of the rights of nature in Nigeria can expand the definition of ‘victims of environmental harm’ and extend the frontiers on which environmental degradation can be combatted. The closest to rights of nature practiced in Nigeria is the designation of protected areas. These areas include forest reserves and plantations, national parks, nature reserves and gazetted forests.[15] This implies that the areas so designated are protected against farming, hunting, trapping, timber cutting and other human activities. It does not, however, protect these natural resources and rivers from the effect of oil spills and other negative impacts of petroleum sector activities.[16] This does not also give the protected areas personhood or the right to enforce the protected status. Legally recognising the rights of nature in Nigeria could be a game-changer in the move to combat environmental harm especially from petroleum sector operations. It is argued that an outright pronouncement on the rights of nature and natural resources can provide an alternative option in the fight against environmental degradation from environmental harm and easy access to courts to enforce those rights.

Challenges of Rights of Nature

While some gains have been made by the countries that have taken the lead in establishing rights of nature,[17] challenges remain on the full realisation of the effect of the rights of nature. First, it is difficult to assess how far the courts will go on the issue of enforcement of such rights. This is because the concept of rights of nature has not been rigorously tested before the courts to establish precedents.[18] Second, like every other law, the challenges of compliance and enforcement remain due to the lack of political will to enforce compliance with the laws.[19] Third, governments still place the exploitation of natural resources for gains over the protection of nature and natural resources. This is because often, the government relies on the proceeds from the exploitation of natural resources to provide basic amenities for its citizens.[20] Fourth, individuals and small businesses fear that such rights will lead to a multiplicity of lawsuits threatening their businesses and livelihood.[21] Fifth, it is believed that existing legal and statutory frameworks adequately cater to protect nature and new laws stipulating new rights are not required.[22]

Conclusion

The significance of the attention on the rights of nature is vital to the fight against global environmental degradation. If more countries recognise the rights of nature, it could put a check on how nature is interacted with by human beings because these rights will be put into consideration in such interactions. Such considerations can be in form of complying with environmental regulations, policies and standards. Therefore, it is contended that if compliance and enforcement of environmental laws are effectively observed, the environmental rights of human beings and nature can easily be realised.

Recognition of the rights of nature could lead to stronger natural resource laws. Legally recognised rights of nature and the human right to a healthy environment can work simultaneously to promote effective compliance and enforcement because humans have an interconnectedness with the natural world and should acknowledge the rights of nature to exist, persist and maintain its vital cycles.[23] The legal recognition of the rights of nature by Nigeria can be an effective legal tool to save the Nigerian environment from a gradual but steady decline.[24]


[1] S 20 of the Constitution of Nigeria 1999 requires the government of Nigeria to protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria and s 33 (1) which guarantees the right to life of every citizen of Nigeria.

[2] See s 6 (6) c of the Constitution of Nigeria 1999 which essentially prevents any enquiry into any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution (under which a protected environment is provided for in the Constitution).

[3] Articles 4 which provides for the right to life and 24 which provides the right to a general satisfactory environment.

[4]  Such as standing and loopholes in the law. See Oronto Douglas v Shell Petroleum Development Company Limited & Ors (1998) LPELR-CA/L/143/97 Law Pavilion Electronic Law Report- Court of Appeal. Some of the oil pollution related cases arising from some Ogoni communities fall into this category.

[5] EO Popoola, ‘Moving the Battlefields: Foreign Jurisdictions and Environmental Justice in Nigeria’ <https://items.ssrc.org/…environments/moving-the-battlefields-foreign-jurisd…> accessed 19 August 2019.

[6] It has been argued that other victims of environmental harm exist and have been left behind by policy and law-making thereby rendering them invisible and silenced in the search for justice. See M Hall, Environmental Harm: The Missing Victims?, vol 90 (Centre for Crime and Justice Studies 2012) 1.

[7] D Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991) 28(1) Stanford Journal of International law 103, 117.

[8] Examples are New Zealand’s Whanganui River was granted rights of personhood in 2017, India’s Ganges River, Article 71 of the 2008 Constitution of Ecuador, essentially provides that nature has the right to integral respect for its existence and the maintenance and regenerations of its life’s cycle’s structure, functions and evolutionary processes. Examples of jurisdictions that have also recognised the legal rights of nature include Bolivia (Law of the Rights of Mother Earth and the Framework Law of Mother Earth and Integral Development for Living Well 2012); Columbia (A 2018 Supreme Court decision held the Columbian Amazon to be a subject of rights based on the Columbian Constitutional’s Courts ruling that Atrato River had legal rights to be protected, conserved and restored); India (The 2018 Uttarakhand High Court decision declaring the animal kingdom to legal entities with rights, duties and liabilities of a living person); and the United States of America where Tamaqua Borough in Pennsylvania recognised the rights of natural communities and ecosystems in a 2006 ordinance) see G Chapron, Y Epstein and JV Lopez-Bao, ‘A Rights Revolution for Nature’ (2019) 363(6434) Science 1392, 1393

[9] CD Stone, Should Trees Have Standing? Law, Morality, and the Environment (Oxford University Press 2010) 264.

[10] ibid 3.

[11] J Kestler-D’Amours, ‘This River in Canada is now a ‘Legal Person’’ (2021) <https://www.aljazeera.com/news/2021/4/3/this-river-in-canada-now-legal-person> accessed 12 April 2021.

[12] As in the Indian cases of Maharaj Singh v Indian Oil Corporation (1999) A. I. R. 81; M. I. Builders v. Radhey Shyam Sahu M.C. [1999] A.I.R.  SC 2468; Mehta v Kamal Nath (1997) 1 S.C.C. 388.

[13] Constitution of the Republic of Ecuador 2008 Chapter 7, Articles 71, 72 and 73; Te Urewera Act 2014 of New Zealand; Constitution of Brazil 1993.

[14] Popoola (n 5).

[15] OI Imasuen, JN Oshodi, TUS Onyeobi, ‘Protected areas for environmental sustainability in Nigeria’ (2013) 17 (1) Journal of Applied Science and Environmental Management 53, 56.

[16] AP Onyena and K Sam, ‘A Review of the Threat of Oil Exploitation to Mangrove Ecosystem: Insights from Niger Delta, Nigeria (2020) 22 Global Ecology and Conservation 1, 3.

[17] S Borràs, ‘New Transitions from Human Rights to the Environment to the Rights of Nature.’ (2016) 5(1) Transnational Environmental Law 113, 143.

[18] CR Giraldo, ‘Does Nature Have Rights? Successes and Challenges in Implementing the Rights of Nature in Ecuador’ (2013) <https://constitutionnet.org/news/does-nature-have-rights-successes-and-challenges-implementing-rights-nature-ecuador> accessed 4 December 2020.

[19] Ibid.

[20] Ibid.

[21] OA Houck, ‘Noah’s Second Voyage: The Rights of Nature as Law’ (2017) 31(1) Tulane Environmental Law Journal 1, 29.

[22] C McDonough, ‘Will the River Ever Get a Chance to Speak? Standing Up for the Legal Rights of Nature’ (2020) 31(1) Villanova Environmental Law Journal 143, 161.

[23] Borràs (n 17) 143.

[24] DR Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (ECW Press 2017) 280.

Professor Nicholas Ryder wins Anti Financial Crime Award

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Congratulations to UWE Bristol Law School’s Professor in Financial Crime, Nicholas Ryder, on receiving the Themis ‘Strides Against Money Laundering’ award at their recent Anti Financial Crime Awards virtual ceremony on Tuesday 23 March 2021. This award promotes the fight against Money Laundering by recognising the efforts of an individual or organisation making significant progress in the prevention of illicit monies entering the banking systems.

“This award reflects Nic’s innovative research and commitment to encouraging collaboration between academic and professional policy-making arenas, a fantastic achievement, well done.”

Rob Thompson, The London Institute of Banking & Finance, judge of the Strides Against Money Laundering award

“I’m very humbled and very honoured to accept the award from Themis. It was very unexpected so I’d like to thank the company and the judging panel. I think it goes to show the importance of research that academics can conduct and how we can positively contribute towards tackling the threat posed by financial crime.”

Professor Nicholas Ryder

Themis is a purpose led organisation committed to reducing the global impact of financial crime. As a bridge between the public and private sectors, we want to highlight the fantastic work, best practices, achievements and determination of individuals and organisations in their contribution in the fight against financial crime.

You can watch the full awards ceremony video and find out more information on the Themis website.

Towards sustainable cities: best practices and challenges of urban sustainable policies implementation

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By Francesco Venuti, a member of the Environmental Law and Sustainability Research Group.

Cities’ role in achieving Sustainable Development

Cities are thrilling places that allow people to develop new and innovative ideas, offering many opportunities to put into practice the shift to the brain-based economy and mechanised labour.[1] However, they also represent the major source of greenhouse gases (GHG) emissions worldwide and the areas in which most of the resources are consumed.[2] Urban environmental footprint is even expected to increase because projections estimate that 68% of the world population will live in cities by 2050.[3]

For these reasons, the United Nations decided to pay special attention to urban areas integrating them within the 2030 Sustainable Development Agenda.[4] In particular, Sustainable Development Goal (SDG) 11 conceives the idea of a sustainable city, calling the international community to ‘make cities and human settlements inclusive, safe, resilient, and sustainable’.[5] SDG 11 comprises 10 sub-targets that address different sectors of urban sustainability. Each city’s level of compliance with these sub-targets is measured through a series of indicators developed by the UN.[6]

SDG 11 and human health

Some sub-targets are closely connected with human health, e.g., those related to the transport sector (SDG 11.2), urban development plans (SDG 11.3), and air quality (SDG 11.6). In 2014, the transportation sector alone accounted for almost 1/5 of the GHG emissions,[7] playing a central role in worsening the air quality and thus impacting the health of millions of people. Besides, in 2017 air pollution represented the fourth leading cause of death worldwide.[8] Finally, urban development plans are critical in enabling broader citizens participation in cities development, offering a means to avoid discrimination that leads to social inequality and poor standards of living.

Best practices

Research shows that some cities are role models in one of the sectors taken into consideration. In particular, Singapore regarding SDG 11.2, Medellín (Colombia) regarding SDG 11.3, and Stockholm (Sweden) regarding SDG 11.6.

In Singapore, for example, recent investments made by the government allowed the public transportation sector to achieve high-efficiency levels[9] while maintaining itself affordable even for lower social classes and vulnerable people.[10] These improvements enabled Singapore to have a percentage of people conveniently served by the public transport system near 100%.[11]

In Medellín, the concept of sustainable development firstly appeared in an urban development plan in 1993.[12] Since then, environmental concerns and citizen participation progressively gained momentum, offering alternative perspectives in solving many issues (e.g., the problem of landslides in the peri-urban area).[13]

Stockholm offers a great example of how taxing polluting vehicles can increase urban air quality and positively impact human health from different angles. The 2006 congestion scheme implementation produced positive outcomes concerning traffic reduction,[14] lower CO2 emissions,[15] and dwellers health[16] and road safety improvement.[17] The good effects on air quality are confirmed by the fact that Stockholm is currently compliant with the World Health Organisation’s recommended levels of air polluting particles.[18]

Challenges

Other cities, e.g., Milan, present an opposing situation with some sectors that are characterised by measures that promote SDG 11, while others show clear obstacles to urban sustainable development. In Milan, several measures directed to decrease air pollution targeted both the transport sector[19] and the GHG emissions generated by domestic heating systems.[20] The results in terms of air quality improvement are promising.[21] However, concerning the link between urban development plans and social inclusion and integration, research shows both an unequal wealth distribution[22] and irrational land utilisation.[23] These elements produce social fallouts related to immigrant communities’ inclusion and integration and widespread illegal housing.[24]

In conclusion, data gathered on these four cities demonstrate that the best way to address SDG 11 is by adopting an integrated approach that has collaboration between different actors as its core and gives the same importance to all the three pillars of sustainable development.

This blog is based on the LLM dissertation on ‘Are policies on Sustainable Cities complying with SDG 11? Milan as a case study’.

References:

[1] Steven Cohen, The Sustainable City (Columbia University Press 2017)

[2] United Nations, ‘Tracking Progress Towards Inclusive, Safe, Resilient and Sustainable Cities and Human Settlements: SDG 11 Synthesis Report High Level Political Forum 2018’ (2018) available at: https://unhabitat.org/sites/default/files/2019/05/sdg_11

[3] United Nations Department of Economic and Social Affairs, Population Division, ‘World Urbanisation Prospects 2018: Highlights’ (2019) 5 UN Doc ST/ESA/SER.A/421; UN Department of Economic and Social Affairs, ‘68% of the World Population Projected to Live in Urban Areas By 2050, Says UN’ (United Nations, 16 May 2018) available at: https://www.un.org/development/desa/en/news/population/2018-revision-of-world-urbanization-prospects.html

[4] United Nations General Assembly Resolution 70/1 ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ (25 September 2015) UN Doc A/RES/70/1 (adopted without vote)

[5] available at: https://sdgs.un.org/goals/goal11

[6] United Nations General Assembly Resolution 71/313 (6 July 2017) UN Doc A/RES/71/313 (adopted without vote), annual refinements contained in E/CN.3/2018/2 (Annex II), E/CN.3/2019/2 (Annex II), and 2020 Comprehensive Review changes (Annex II) and annual refinements (Annex III) contained in E/CN.3/2018/2 (Annex II), E/CN.3/2019/2 (Annex II), and 2020 Comprehensive Review changes (Annex II) and annual refinements (Annex III) contained in E/CN.3/2020/2

[7] European Environment Agency, ‘Sectoral greenhouse gas emissions by IPCC sector’ available at: https://www.eea.europa.eu/data-and-maps/daviz/change-of-co2-eq-emissions-2#tab-chart_4

[8] Hanna Ritchie and Max Roser, ‘Air Pollution’ (Our World in Data, October 2017) available at: https://ourworldindata.org/air-pollution#air-pollution-is-one-of-the-world-s-leading-risk-factors-for-death

[9] ‘Completion of The Bus Service Enhancement Programme (BSEP)’ (Land Transport Authority, 9 December 2017) available at: https://www.lta.gov.sg/content/ltagov/en/newsroom/2017/12/2/completion-of-the-bus-service-enhancement-programme-bsep.html

[10] ‘Concessionary Card Fare Structures for Lower-Wage Workers and Persons with Disabilities’ available at: https://www.mot.gov.sg/docs/default-source/default-document-library/annex-a_concessionary-card-fare-structures-for-lower-wage-workers-and-persons-with-disabilities.pdf

[11] available at: https://www.singstat.gov.sg/find-data/sdg/goal-11

[12] Peter Brand, ‘The Sustainable City as a Metaphor: Urban Environmentalism in Medellín, Colombia’ in Mike Jenks and Rod Burgess (eds), Compact Cities: Sustainable Urban Forms for Developing Countries (Spon Press 2000)

[13] Joseph Claghorn and others, ‘Rehabitar la Montaña: Strategies and Processes for Sustainable Communities in the Mountainous Periphery of Medellín’ [2016] 8 Urbe: Revista Brasileira de Gestão Urbana 42

[14] Staffan Algers and others, ‘Facts and Results from the Stockholm Trials’ (2006) available at: http://www.stockholmsforsoket.se/upload/Sammanfattningar/English/Final%20Report_The%20Stockholm%20Trial.pdf

[15] Jonas Eliasson and others, ‘The Stockholm Congestion Charging Trial 2006: Overview of Effects’ [2009] 43 Transportation Research Part A 240

[16] Christer Johansson, Lars Burman, and Bertil Forsberg, ‘The Effects of Congestion Tax on Air Quality and Health [2009] 43 Atmospheric Environment 4843

[17] Jonas Eliasson, ‘A Cost–Benefit Analysis of the Stockholm Congestion Charging System’ [2009] 43 Transportation Research Part A 468

[18] European Environmental Agency, ‘Air Quality in Europe: 2019 Report’ (2019) EEA Report No 10/2019 95 available at: https://www.developmentaid.org/api/frontend/cms/uploadedImages/2019/10/Air-quality-in-europe_2019-final.pdf

[19] Milan City Council Deliberations (Deliberazioni della Giunta comunale di Milano) 1788/2007, 2526/2011, 1366/2018 (IT)

[20] Ordinance of the Mayor (Ordinanza del Sindaco) 51/2020

[21] Edoardo Croci and Aldo Ravazzi Douvan, ‘Urban Road Pricing: A Comparative Study on the Experiences in London, Stockholm and Milan’ (2016) Centre for Research on Energy and Environmental Economics and Policy available at: ftp://ftp.repec.org/opt/ReDIF/RePEc/bcu/papers/iefewp85.pdf

[22] Pietro L Verga, ‘Rhetoric in the Representation of a Multi-Ethnic Neighbourhood: The Case of Via Padova, Milan’ [2016] 48 Antipode 1080

[23] ‘Urban Development and Green Economy’ available at: https://osservatoriomilanoscoreboard.it/en/goals/urban-development-and-green-economy/urban-development-and-green-economy-2019

[24] Petros Petsimeris, ‘Social and Ethnic Transformation of Large Housing Estates in Milan, Italy: From Modernity to Marginalisation’ in Daniel Baldwin Hess, Tiit Tammaru, and Maarten Van Ham (eds) Housing Estates in Europe: Poverty, Ethnic Segregation and Policy Challenges (Springer 2018)

UWE Students Participate in Vaquita Conservation Hackathon

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Written by Ethan Franks (in collaboration with James Pettipher and Bethany Foster).

On December 12 to December 13, the world’s first dedicated Vaquita conservation Hackathon took place. A Hackathon brings a large group of people together to work tirelessly for a 48-hour time period to address separate issues that threaten a cause. The people that take part in the project come together from different countries and different career backgrounds that all relate to the issue at the base of the Hackathon. The Vaquita conservation project is a complex multi-faceted issue that spans many fields, from criminal law to biology. The aim of this Hackathon was to develop a brighter future for the Vaquita, of which the methods and lessons learned can be incorporated into other complex conservation and criminology problems. UWE Bristol Law students proudly represented almost all the United Kingdom within the ‘criminal law review’ sector of the Hackathon.

The criminal law review aimed to try and combat the issues that Mexico is having in enforcing the law against illegal Totoaba Cartels fishermen and meeting its treaty obligations. This is to be done by all the groups, collaboratively developing a white paper. The hope is that by publishing a white paper and then implementing its recommendations the Vaquita and other marine wildlife in the Gulf of California will be sufficiently protected by the Mexican government.

Each individual group comprising a small number of students was set up with a mentor. Groups worked together to suggest their solution and then go away to work on small tasks that worked towards a final solution. This process would take place repeatedly over the weekend reinforcing the solution before the closing ceremony at midnight on the Sunday.

UWE law student James Pettipher and I worked under our mentor Volcy Boilevin, forming group six of the Hackathon. We were tasked with supporting the law enforcement efforts of the Mexican government. We decided that the best approach to take to impact Mexico was to try and use Mexico’s agreements with neighbouring countries to help impose pressure on Mexico. The pressure was implemented with the intention of encouraging the Mexican government to value its environmental obligations, without using the ineffective environmental law.

Additionally, group four included another UWE student, Bethany Foster who under the guidance of Daniel Marsh and alongside other professionals and students, worked on a proposal addressing the weak judicial framework that operates in Mexico that fails to deter the illegal totoaba trade. The suggested solution was twofold: introducing a judicial exchange programme between the UK and Mexico and assisting Mexico in implementing sentencing guidelines to ensure consistent sentencing of wildlife criminals. These proposals involve mutual co-operation between the UK, Mexico and industry experts and success is largely determined by Mexico’s willingness to co-operate. However, these proposals were inspired by the work of international criminal barrister Shamini Jayanathan whose efforts have focused on judicial reform where jurisdictions have weak judicial processes. Her work has been incredibly successful which provides a blueprint for the potential success of these propositions.

The entirety of the event will be concluded this year when a decision is made as to the best legal solutions to be put forward and incorporated into a white paper. Though it is not the motivation of any of the participants, there will be a prize awarded to the best proposed solution as well.

The Hackathon was organized by the Conservation Project International, a platform dedicated to supporting and mentoring young conservationists and future leaders, in collaboration with Earth League International, Earth Hacks and the Countering Wildlife Trafficking Institute. The event was financially supported by the two research groups of the Bristol Law School (the Global Crime, Justice and Security Research Group and the Environmental Law and Sustainability Research Group).

Criminal Justice in ‘Crisis’: Covid-19 and the Right to a Jury Trial

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Blog by Dr. Edward Johnston, Senior Lecturer in Law at UWE Bristol.

In November the back log of outstanding cases in the criminal courts of England and Wales stood at 457,518. According to the same Sky News report, this is some 100,000 more than February 2020. Of the near half a million outstanding cases, just under 54,000 are for cases to be heard in the Crown Court and the remaining 403,000 cases are set to be heard in the Magistrates’ Court.

Moving forward, the picture looks even more bleak. Crest Advisory, who specialise in predictions and analytical models concerning criminal justice suggest that by 2024, there could well be 580,000 cases outstanding in the magistrates’ court and 195,000 outstanding in the Crown Court.

It is clear that something has to give to solve this ‘crisis’ – a word often used to describe the current state of criminal justice. However, is ‘crisis’ the correct term? The Oxford English Dictionary defines a crisis as ‘ a time when a problem, a bad situation or an illness is at its worst point’. From the Crest predictions, it is clear we have not even begun to hit the ‘worst point.’ Furthermore, a crisis can be defined as a period of ‘great danger’ – well, criminal justice was in a state of crisis long before Covid-19; from cuts to police officers and PCSOs to court closures throughout England and Wales. The Guardian reported in January 2019 that almost 50% of magistrates’ courts have closed and according to a report by the National Audit Office, the government plan to close another 77 courts by 2025/26. Is it no wonder that the backlog of cases is so large and continuing to grow.

As ever, it is the right to trial by jury that is the first fundamental freedom to be attacked. It always is. In 2018, Labour MP Ann Coffey suggested that we ‘do away with juries in rape trials’ in order to allow a trained judge, sitting alone decide the case Just this week, Simon Jenkins, writing for the guardian suggested that we abolish jury trials as the huge backlog of cases has allowed us to ‘reform our archaic and irrelevant court rituals.’ Jenkins suggests that after 3 terms as a juror he is convinced that they are a ‘costly indulgence’  and ‘have nothing to do with justice except often distort it.’ Additionally, he claims that his final case was a ‘blatant’ attempted murder case which involved young lawyers making mistakes, before the judge declared all relevant evidence ‘prejudicial’ and instructed the jury to acquit the defendant – quite how this has anything to do with the role or function of the jury is beyond me. But it perhaps goes some way to explain his misunderstanding about the role and its importance.

It came as no surprise this week to see Labour call for alterations to the jury system. Shadow Justice Secretary, David Lammy, called for juries to be reduced to 7 people to ‘stem the gravest crisis in the justice system since WWII‘. As highlighted above, Crown Court cases (not all will be heard by a jury because of guilty pleas) make up a fraction of this current and predicated backlog of cases. This is a marked shift from Lammy, who in his 2017 Review into the treatment of BAME individuals in the criminal justice system found that the ‘jury system was fit for purpose’ (see page 41). The system was already in a state of crisis – why suggest amendments now?

Furthermore, why would 7 people allow the backlog to be cleared any quicker – they still have to deliberate and properly consider the evidence they have heard and therefore are not likely to make the process any swifter. And if they are not going to be quicker – they will not help tackle the backlog. Writing in 2021 Dr. Hannah Quirk outlined the importance of juries and proffered a way forward to tackle the growing backlog. In her Criminal Law Review Editorial, she suggested that ‘juries may provide an important safety net against unfair prosecutions. The difficulties are immense but alternative measures should be tried, such as using university facilities or a purpose-built site. If convention centres could be turned into field hospitals in a few weeks, creating a functioning courtroom cannot be impossible. The medical profession is discovering unexpected long-term side-effects of Covid-19; the criminal justice system should ensure that the right to trial by jury is not another casualty of the crisis.’

If the criminal justice system was adequately funded (to provide opportunities to pursue a career in the CPS or defence professions), if courts were not closed and therefore unable to hear cases then that would provide a way forward to tackle the crisis. Perhaps the government ought to look to re-open the closed buildings they have not sold off or as Quirk suggests, repurpose existing buildings to be suitable for criminal trials.

Amending trial by jury will do little to reduce the backlog of cases, in fact it would be the start of a slippery slope and the death knell to jury trials in England. Following Quirk’s suggesting again,  we need to ensure that jury trials are not another casualty of the current crisis.

FCA regulation of cryptocurrency service providers: A slow start

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By Henry Hillman, Lecturer in Law at UWE Bristol.

The UK implemented the 5th Anti-Money Laundering Directive in January 2020,[1] which extended anti-money laundering and counter terrorist financing (AML/CTF) regulation to include exchanges of fiat currency for cryptocurrency. As of 10th January 2020, the Financial Conduct Authority (FCA) was made responsible for the regulation of cryptocurrency service providers (CSPs) for the purposes of AML/CTF. As part of taking on such responsibility, and brining CSPs into the AML/CTF regulatory perimeter, the FCA required applicable CSPs to register with them by 9th January 2021, or cease operations. At the time of writing there are only four entries on the FCA’s register,[2] and 104 firms awaiting registration, which raises questions as to the proactivity of the FCA in fulfilling its responsibilities. This paper will set out the intended regulation of CSPs, and consider the reasons behind the FCA’s lacklustre performance so far.

AML/CTF regulation of cryptocurrencies in the UK is to exceed the requirements of the latest EU Directive, by applying AML/CTF measures to transactions involving exchanges between cryptocurrencies as well as exchanges between cryptocurrencies and fiat currencies. The CSPs which will be regulated are those that provide exchange services or are custodian wallet providers. Regulation 14A(1) defines a “cryptoasset exchange provider”[3] as any individual or firm which provides services for “exchanging, or arranging or making arrangements”[4] to exchange cryptocurrency for either money[5] or another cryptocurrency,[6] including any activities which are automated.[7] A custodian wallet provider is defined as any individual or firm that “provides services to safeguard, or to safeguard and administer”[8] cryptocurrency on behalf of customers, or provides “private cryptographic keys”[9] for customers to manage their cryptocurrency with. Cryptocurrency transactions are protected using public-key cryptography, which allows a user to receive cryptocurrency that has been sent to their public key, much like an address, using their private key, akin to a door key.[10] Not all cryptocurrency users use custodian wallets. A custodian wallet as described in the regulations is comparable to an online bank account, and so may be the most appealing to cryptocurrency beginners as the security is managed by their service provider. More experienced cryptocurrency users may utilise alternative types of wallets, which will not be regulated.[11] 

The amendment to the Money Laundering and Terrorist Financing Regulations 2017,[12] means any business carrying out newly regulated activity must register with the FCA, and comply with the Regulations. AML/CTF regulation can be divided into two broad elements; data collection in the form of record keeping and completing customer due diligence requirements, and reporting requirements, principally suspicious activity reports. The measures are intended to increase financial intelligence.

Bringing CSPs into the regulatory perimeter shows the intent of the government to address a clear gap in its approach to AML/CTF, but the amended legislation is only valuable if it is utilised by the FCA. The initial steps by the FCA appeared to be positive, with the announcement of a year-long registration period, but this time looks to have been wasted as only four entries appear on the register as of January 2021.[13] A mitigating factor for the FCA’s performance so far could be the ongoing coronavirus pandemic, and that they are working through the 104 applicants on their temporary registration list, but neither of these arguments hold up to scrutiny. Firstly, the entries on the register so far were all added between 18th August and 1st September 2020, which illustrates firms could be vetted within the restrictions in place over the summer and autumn of 2020. Secondly, the temporary register appears to have a very low bar for inclusion, yet bestows included firms with “temporary registration”[14] to carry out regulated activities. The FCA state that the firms on the temporary list have not been assessed by them as “fit and proper,”[15] and the information appears to simply be an alphabetical list of firms which have applied to the FCA. The 104 temporary registered firms appear with their name, their address, and any other trading names used, however, this data is inputted in an inconsistent manner. There are entries which are in full capitals and other which lack capitals where required, the address formats vary, and there are two near identical entries; such errors and inconsistencies suggest the temporary register is simply pasted data from the firms applications. Questions might also be raised as to the integrity of the approved register too, as three of the four entries are registered at the same address and two of those entries lack a registered telephone number.[16] Based on the state of both the register and the temporary register, the commitment of the FCA to regulating CSPs can be questioned. While disappointing, the performance of the FCA in implementing AML/CTF regulation of cryptocurrency activity is consistent with their approach to cryptocurrencies to date.

The FCA has repeatedly stated that it does not regulate cryptocurrencies. The leading lines of advice on the FCA website state that cryptocurrencies are “considered very high risk, speculative investments”[17] and those buying them should be “prepared to lose all your money.”[18] Since the extension of the AML/CTF regulation, the FCA has caveated its advice, to state that cryptocurrencies are “only regulated in the UK for money laundering purposes.”[19] The FCA appears reluctant to be proactive with regards to cryptocurrencies, it could have interpreted the broad definition of a ‘money services business’ in Regulation 3 of the Money Laundering Regulations[20] to allow it to regulate cryptocurrencies three years before being explicitly handed the role by government. A money services business includes “an undertaking which by way of business operates a currency exchange office, transmits money (or any representations of monetary value) by any means,[21] which can clearly include cryptocurrencies, given their monetary value.

The FCA has commissioned research to ascertain the level of consumer engagement with cryptocurrencies. The research by Revealing Reality for the FCA identified three main factors fuelling cryptocurrency investment; a weakened trust in mainstream media, looking for the next ‘shortcut’, and acting on recommendations.[22] These are worrying trends in behaviour, which will lead to individuals making losses as they invest in spurious products in an unregulated market. Such findings should be the catalyst for an intervention, but no such response has materialised. The justifications for the FCA’s approach are not clear, but may be explained by their understanding of the demographic of cryptocurrency investors. In December 2019 the FCA claimed that 80% of cryptocurrency holdings in the UK were held by 1% of the population,[23] suggesting the industry is not popular enough to be of concern. 50% of those who had invested held less than £260,[24] which further suggests a low risk in terms of potential losses. The information from the FCA also suggested investors were well informed as 89% knew they were not protected, and 92% could identify a definition of a ‘cryptoasset’.[25] It appears that although research shows poor investment practices from consumers, the levels of money involved means the FCA does not see the need to regulate.

In conclusion, it appears as though cryptocurrencies and CSPs will remain largely unregulated, unless the FCA’s approach changes drastically. The legislation is in place to cover a degree of cryptocurrency activity, but this legislation does not appear to be being enforced. The FCA has only processed four entries onto its register of approved firms, out of 108 applicants, which is a poor performance. It appears as though the FCA does not hold cryptocurrencies in high regard and does not view the issue as affecting a large proportion of the population. The approach of the FCA has been lacklustre, which raises a number of questions as to the reasoning; a lack of understanding, a lack of available resources, or simply a low priority?

First published in the Open University Law, Information, Future, Technology Blog.


[1] The Money Laundering and Terrorist Financing (Amendment) Regulations 2019, SI 2019/1511.

[2] Financial Conduct Authority, ‘Registered Cryptoasset firms’ <https://register.fca.org.uk/s/search?predefined=CA> accessed 21 January 2021.

[3] The Money Laundering and Terrorist Financing (Amendment) Regulations 2019, SI 2019/1511 Regulation 14A(1).

[4] ibid at Regulation 14A(1)(a) and (b).

[5] ibid at Regulation 14A(1)(a).

[6] ibid at Regulation 14A(1)(b).

[7] ibid at Regulation 14A(2).

[8] ibid at Regulation 14A(2).

[9] ibid at Regulation 14A(2)(b).

[10] For an accessible explanation of public-key cryptography see: Robert Miles – Computerphile, ‘Public Key Cryptography’ (22 July 2014) <https://www.youtube.com/watch?v=GSIDS_lvRv4> accessed 22 January 2021.

[11] For further details in types of wallet see: Bitcoin.org, ‘Choose your Bitcoin wallet’ <https://bitcoin.org/en/choose-your-wallet?step=1> accessed 22 January 2021.

[12] Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017.

[13] Financial Conduct Authority, ‘Registered Cryptoasset firms’ <https://register.fca.org.uk/s/search?predefined=CA> accessed 21 January 2021.

[14] Financial Conduct Authority, ‘Cryptoasset firms with Temporary Registration’ (8 January 2021) <https://register.fca.org.uk/servlet/servlet.FileDownload?file=0154G0000062BtF> accessed 21 January 2021.

[15] ibid.

[16] Financial Conduct Authority, ‘Registered Cryptoasset firms’ <https://register.fca.org.uk/s/search?predefined=CA> accessed 21 January 2021.

[17] Financial Conduct Authority, ‘Cryptoassets’ (7 March 2019, last updated 11 January 2021) <https://www.fca.org.uk/consumers/cryptoassets> accessed 22 January 2021.

[18] ibid.

[19] ibid.

[20] Money Laundering Regulations 2017, Regulation 3.

[21] ibid Regulation 3(1)(d).

[22] Financial Conduct Authority, ‘How and why consumers buy cryptoassets: A report for the FCA’ (07 March 2019) <https://www.fca.org.uk/publication/research/how-and-why-consumers-buy-cryptoassets.pdf> accessed 22 January 2021 at p.47.

[23] Financial Conduct Authority, ‘Infographic: Cryptoasset consumer research 2020’ (December 2019) <https://www.fca.org.uk/publication/documents/crypto-assets-infographic.pdf> accessed 22 January 2021.

[24] ibid.

[25] ibid.

Course Connect partnership with LexisNexis Risk Solutions

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The Course Connect partnership between LexisNexis Risk Solutions and the University of the West of England (UWE) is an academia-industry collaboration that aims to bring together cutting-edge academic knowledge with leading commercial practice, for the mutual benefit of students, academics, researchers and practitioners. We caught up with Professor Nic Ryder to find out more.

What’s the aim of this partnership?

It’s a platform, in essence, for information and knowledge sharing. A formal partnership like this one makes it a great deal easier to share thinking and analysis of financial crime and compliance, financial risk management and anti-money laundering regulation, between organisations, for the benefit of both sides.

How does each side benefit?

Working with industry partners allows us access to valuable resources we’d otherwise not have. From real life case studies that can be implemented into the curriculum, to offering students the opportunity to work with the latest commercial information, trends and practices, as if they were already operating in the industry. This is not only highly motivating for them, but puts them in the driving seat following graduation. With support from commercial partners, we can set students in-depth challenges that often develop into dissertation projects, student internships and placements where they gain first-hand work experience.

In return, LNRS gains access to fresh insights and a rich seam of graduate talent they can offer placements and evaluate their potential for full-time employment opportunities, in many cases making an offer after the placement ends. LNRS also benefits from first-hand access to academic expertise and cutting-edge research outputs which can develop into webinars and round table style events that marry the academia and commercial worlds and provide a platform for healthy and insightful debate of current trends and topics surrounding the financial crime and compliance industry. Students’ input into these debates is a great way to identify the opinions of the future experts in these fields.

How important is industry collaboration in preparing graduates for the practical experiences they will face in industry?

UWE prides itself on providing students with the opportunity to study commercially-relevant subject areas where career paths are quite clear. We work closely with the commercial sector on embedded placements (sandwich years), consultation projects where students are set real-life industry challenges to solve, guest lectures from industry experts, and others – all opportunities for students to better understand how the theory they learn in class translates into the real world.

What does success look like for this partnership?

Success is long-term partnership resulting in a plethora of opportunities for both UWE Bristol and LNRS to work together. That can range from straightforward guest lectures, to student projects, competitions and dissertation projects, all the way through to internship opportunities that ultimately lead to graduate employment. As academics, we’re ultimately focussed on preparing these young people for their careers.

How many other Course Connect partnerships do you run?

We have 20 partnerships at present with a mix of public and private sector organisations ranging from large nationals like Lloyds Banking Group and Enterprise Rent-A-Car, to local and regional SMEs.

What do your other partners think of this process?

“We want young people to get a great start to their working life – sharing our experiences, knowledge and skills is a great way to make that happen. This approach supports our own organisational drive to ‘Help Britain Prosper.’” Lloyds Banking Group

“We are genuinely excited about the opportunity to share knowledge and learn from each other.” Nationwide

“This initiative… promises institution-wide recognition of our brand, as well as offering an opportunity to address known skills gaps in our industry.” Enterprise Rent-A Car

What does the future hold?

It’s important to see this as an evolving partnership. This first year is very much a ‘toe in the water’ for both sides, allowing us to understand what activities we are comfortable collaborating on and what won’t work for us. As time progresses, we very much hope that the relationship will develop to offer a much greater variety of activities and benefits for both sides.

Get involved. Contact us at courseconnect@uwe.ac.uk.

One Planet Development in Wales: A Sustainable Future?

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Written by Rachel Kelway-Lewis, LLM and member of the Environmental Law and Sustainability Research Group

The Institute of Public Policy Research[1] of UK has urged that ‘the historical disregard of environmental considerations in most areas of policy has been a catastrophic mistake’[2] which suggests that policy, in many instances, is failing to protect the environment. Thus, as international obligations prioritises the need for policy to promote sustainability[3] it seems necessary to begin analysing the policies which claim to do so.

One Planet Development

The Welsh Assembly Government has created the One Planet Development policy[4] (hereafter referred to as OPD) with the objective of adhering to global sustainable development targets. The OPD policy aims to encourage individuals, families and co-operatives alike to create residential developments that are either low impact, or do not significantly degrade the environment.[5] Such developments are required to meet 65% of the residents’ basic needs from the land within the first five years, including income, energy and food. The mere creation of such a policy could be deemed an achievement, however in practice, the policy appears to be facing some challenges.

OPD Challenges

The flow chart below identifies the key concerns challenging the policy’s implementation, and classifies the concerns as legal, non-legal, and procedural. The flow chart visualises the issues, the result of the issues and, the underlying constraint.

It is evident that the content of OPD policy[6] has the potential to intrinsically meet all three pillars of sustainable development (i.e., economic, social and environmental), however implementation related challenges may be restricting this. Research suggests that there is a resource deficiency within local planning authorities which is affecting the policy’s implementation from planning applications to monitoring OPD settlements’ progress. Thus, the policy cannot be successful without additional resources or a change in the policy’s specifications.[7] Despite efforts to support participants through the application process[8] as well as training being offered to planning authorities specifically for OPD developments,[9] there remains a gap which has not been addressed. Demands upon local planning authorities are likely to grow and exceed their capacity.[10] Furthermore, without addressing the challenges, the OPD is unlikely to achieve its’ objectives thus, will not promote the aims of ‘One Wales: One Planet’.[11]

Moving forward

The following reforms have been suggested to ensure that the solutions are feasible, ranging from providing mandatory online training to reducing the reporting obligations of established OPDs. Whilst these reforms are focused upon accessible improvements to the OPD policy, long-term reform is essential.

  • Community land trust

The Calon Cymru report identified the challenges associated with funding and finding suitable land due to increased prices.[12] Thus, the short-term reform suggestion to promote community land trusts is based upon a successful case in London[13] and more recently, the prospective plan to establish the first Welsh community land trusts in Solva, Pembrokeshire.[14] Furthermore, by creating community land trusts partnerships with housing associations such as Ateb[15] and ceiling prices on land for such projects, funds and prices could be more accessible. Such reform could benefit the community, promote UN Sustainable Development Goals 11,[16] the Well-being of Future Generations (Wales) Act[17] and the ‘Improving lives and Communities, homes in Wales’ scheme[18] throughout Wales. 

  • Public Transport

The long-term regional reform of improving public transport links within rural Wales could result in additional suitable land being accessible for such projects. Such improvements could also support many of Wales’ objectives at all levels, from the Well-being of Future Generations (Wales) Act[19] to the Paris Agreement[20] and UN Sustainable Development Goals 11.2.[21]

  • Low carbon building

Nationally, more must be done to promote accessible, low-carbon building. This could be achieved by mainstreaming environmentally conscious building methods and utilising training programmes to educate trades people. Furthermore, the establishment of ‘green mortgage’ can promote and incentivise low-carbon building for the public as seen in the Netherlands.[22]

Concluding comments

The fundamental constraint identified is a lack of resources, the impact of which is significant. Challenges associated with the resource deficiency range from inconsistent implementation[23] to failures of OPD settlements to submit reports.[24] The policy will require additional funding to meet its objectives, however in the short-term practical solutions could elevate the strain. Such reforms have been discussed to ensure that the solutions are feasible. Whilst the suggestions are focused upon accessible improvements to the OPD policy, long-term reform is essential specifically with regards to the resource deficiency.

This article is a brief summary of a document titled ‘One Planet Development: a sustainable future? A critical analysis of whether the One Planet Development Policy promotes the United Nations Sustainable Development Goal 11 (Sustainable communities)’ which has been published by Lammas.


[1] Institute for public policy research, ‘This is a crisis facing up to the age of environmental breakdown’, Institute for Public Policy Research, February 2019, available at: https://www.ippr.org/files/2019-02/risk-and-environment-feb19.pdf

[2] Ibid.

[3] United Nations, The Millennium Development Goals Report 2012 (New York, 2012).

[4] Welsh Assembly Government, ‘Technical Advice note 6’ (Planning for sustainable rural communities, July 2010), available at: https://gov.wales/docs/desh/policy/100722tan6en.pdf

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] One Planet Council, ‘The One Planet Council’ (Supporting One Planet Developments, no-date), available at: http://www.oneplanetcouncil.org.uk/about-the-one-planet-council/

[9] Welsh Assembly Government, ‘Technical Advice note 6’ (Planning for sustainable rural communities, July 2010), available at: https://gov.wales/docs/desh/policy/100722tan6en.pdf

[10] BBC, ‘Put a stop to eco-homes being built, says councillor’, BBC news, 29 April 2019. Available at: https://www.bbc.co.uk/news/uk-wales-48084556

[11] Welsh Assembly Government, ‘The Sustainable Development Scheme of the Welsh Assembly Government’ (One Wales: One Planet, May 2009), available at: http://www.wales.nhs.uk/sitesplus/documents/829/One%20Wales-%20One%20Planet%20%282009%29.pdf

[12] Calon Cymru Network, ‘Feasibility of a resilient neighbourhood at Llandovery’ (Affordable Homes and Sustainable Livelihoods in Rural Wales, 2017), available at: http://www.caloncymru.org/uploads/1/4/9/3/14932334/affordablehomessustainablelivelihoodsruralwales.pdf  

[13] Emma Howard, ‘ Could community land trusts offer a solution to the UK’s housing crisis?’ (The Guardian, 25 June 2014), available at: https://www.theguardian.com/society/2014/jun/25/community-land-trusts-uk-housing-crisis-east-london-mile-end

[14] Becky Hotchin, ‘Solva Community Land Trust wins Pembrokeshire County Council second home council tax grant’, The Western Telegraph, 10th October 2020.

[15] Ibid.

[16] United Nations, Transforming our world: The 2030 agenda for sustainable development (New York, 2015) No. A/RES/7011.

[17] Well-being of Future Generations (Wales) Act 2015, available at: https://www.futuregenerations.wales/about-us/future-generations-act/

[18] Gov.wales, ‘Homes in Wales’ (Improving Lives and Communities, 2010), available at: https://gweddill.gov.wales/docs/desh/publications/100421housingstrategyen.pdf  

[19] Well-being of Future Generations (Wales) Act 2015, available at: https://www.futuregenerations.wales/about-us/future-generations-act/

[20] The Paris Agreement (2015), available at: https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement

[21] United Nations, SDG 11: Make cities inclusive, safe, resilient and sustainable, available at: https://www.un.org/sustainabledevelopment/cities/

[22] UK Committee on Climate Change, ‘UK housing: Fit for the future?’ (2019), available at: https://www.theccc.org.uk/publication/uk-housing-fit-for-the-future/

[23] Louise Kulbicki, ‘Does Welsh National Planning Policy effectively address Low Impact Development in the open countryside?’ (2011) 6. Available at: http://lammas.org.uk/wp-content/uploads/2013/03/Does_Welsh_National_Planning_Policy_effectively_address_Low_Impact_Development_in_the_open_countryside_Louise_Kulbicki_2011.pdf

[24] BBC, ‘Put a stop to eco-homes being built, says councillor’, BBC news, 29 April 2019. Available at: https://www.bbc.co.uk/news/uk-wales-48084556