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.

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.

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.

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

Rights redacted – a global view

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By Ezinwa Awogu – BA philosophy graduate, current GDL Law student at UWE Bristol and aspiring solicitor 

With the UK’s announcement of approval for the Pfizer vaccine, a cautious sense of hope and optimism has been restored as the public dares to envision an end to a year rife with uncertainty and confusion. However, as technology and science leap forward in their red capes as the saviours of the day, democracy around the globe takes several staggering steps back. A combination of draconian restriction implementation, global confusion, economic downfall and, widespread fear, has created the perfect storm for abuse of power and democratic regress to take place throughout the world. Under the thick cover of chaos, oppressive legislation and disgraceful abuses of power have been able to take place largely un-reported. Due to the unrelenting dominance that COVID-19 has wielded over the news headlines this year, regressions and oppressions have been able to thrive, unchallenged by the usual scrutiny of the public eye.

According to this year’s annual global report on political rights and civil liberties from Freedom House, democracy has worsened in 80 countries so far. Particular areas of decline seem to be freedom of speech, democratic elections (especially in countries declaring a state of emergency), and freedom of religious practice. Whilst true that a lot of false and misleading information was spread about COVID-19 and how to treat it, some governments have used the excuse of limiting inaccurate information to go above and beyond to restrict journalistic rights and push political agendas by silencing anti-government voices. Democratic elections have been postponed or discarded altogether and government opposition parties have been systematically attacked under the excuse of the pandemic.

Earlier this year in Algeria, legislation aimed to reduce media and curtail freedom of expression were reportedly passed with ‘minimal discussion mechanisms’ in parliament. Further to this, the sentencing of three government critics took place in May due to their choice of social media activity. Amongst these was Yacine Mebarki, a pivotal member of the Hirak anti-government protest movement, arrested on September 30th and sentenced to 10 years in prison. An expression of concern has been published by Reporters Without Borders, over the zealous tightening on freedoms of expression in Algeria. However, no change seems imminent, as currently the scheduled Algerian 2020 constitutional referendum has been announced as ‘no longer a priority’ by President Tebboune.

Similarly, according to published interior ministry statements from Turkey, on the 25th of March over 400 people were arrested under charges of ‘provocative’ social media posts concerning the virus. A report by Human Rights Watch four months later in late July displayed evidence suggesting Turkish police involvement in torture and ill-treatment of citizens. In terms of parliamentary democracy, the revocation of status was implemented for three deputies in the opposition party on the 4th of June. All three were then arrested the very next day. Electoral law reformations that may prevent future opposition parties from entering parliament at all are currently under discussion. Should this move forward, it would mean that without opposition in parliament, the government (and legislature passed by the government) goes unchecked and unchallenged, thus, an already fragile democracy suffers another critical blow.

In Hong Kong, The pandemic has been sighted as justification to delay elections by a year, however, this decision is widely viewed as an attempt by Beijing to buy more time to solidify the eradication of certain remaining freedoms and autonomies. In Sri Lanka, the arrest of critics of the official government line of the pandemic has been authorized by Prime Minister Mahinda Rajapaksa. In Nigeria since the start of restriction implementation and curfews, up to 18 people have been killed in the hands of security forces reportedly enforcing COVID-19 restrictions with minimal reported penalties against the individual offending security officers. Meanwhile, the Nigerian democratic by-elections for the senatorial districts in Bayelsa state, Imo state, and Plateau state have been indefinitely postponed with no new date announced. In the USA, although the scheduled presidential elections have taken place, the incumbent Trump administration consistently and embarrassingly attempts to discredit the result of the democratic election in an attempt to cling to a fading political spotlight.

In Russia, a combination of laws implementing drastic penalties on individuals and media organizations who spread ‘knowingly false information’ was approved by President Vladimir Putin, on top of the already existing prohibition of ‘false information’. In practice, however, it would seem that said ‘false information’ happens to include anything that may highlight failings and present criticisms of the government’s handling of COVID-19. Most worryingly, this year’s referendum – originally set for April but rescheduled for the 1st of July – was approved by a 77% majority and includes provision amendments allowing President Putin to remain in power until 2036.

Restrictions on freedom of religion have been more evident this year with instances of faith-based discrimination and religious targeting in Pakistan, Sri Lanka, Serbia, and India. In Pakistan COVID -19 has been renamed ‘the Shia virus’ and there have been reports of Christians forced to recite the kalima in order to access help and aid. Hindu communities in Lyari have been rejected from receiving essential rations and Muslims in India have been labelled as “super spreaders” in a bid to use the pandemic as a weapon of religious prosecution.

This is of course simply a snapshot exposing only a fraction of the hidden pandemic of global rights redaction taking place. Fragile democratic advancements – some of which took over a decade or longer to instil – have been swiftly and devastatingly destroyed by opportunistic governments all over the world, using the tragedy of this year as an advantageous edge in disgraceful power-play dynamics. Meanwhile, citizens are stripped of hard-fought rights and left more vulnerable than ever before. As an end to COVID-19 seems to become more of a reality, we must not forget that for many around the globe, things will certainly not return to ‘business as usual’. Perhaps, with the potential of COVID-19 soon no longer dominating the media platform, the scrutiny of the public eye can return to where it is desperately needed most, and assist each of the 80 countries through the steep uphill climb to the restoration of civil liberties and democratic progression.

Useful Reference links

  1. https://freedomhouse.org/report/special-report/2020/democracy-under-lockdown
  2. https://freedomhouse.org/article/new-report-democracy-under-lockdown-impact-covid-19-global-freedom
  3. https://www.idea.int/gsod-indices//#/indices/countries-regions-profile?rsc=%5B770%5D&covid19=1
  4. https://www.economist.com/international/2020/10/17/the-pandemic-has-eroded-democracy-and-respect-for-human-rights
  5. https://www.idea.int/news-media/news/malawi-victory-democracy-after-euphoria-long-hard-work
  6. https://abcnews.go.com/Health/wireStory/turk-evacuated-sweden-coronavirus-treatment-70361281
  7. https://english.alaraby.co.uk/english/news/2020/10/8/algeria-sentences-activist-to-10-years-for-inciting-atheism

What role can the Ramsar Convention play in protecting Lake Urmia in Iran?

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Written by Siavash Ostovar, Doctoral Student and a member of the Environmental Law and Sustainability Research Group

Lake Urmia located in the north-western part of Iran between the two provinces of East-Azerbaijan and West-Azerbaijan was declared a wetland of international importance by the Ramsar Convention on Wetlands of International Importance in 1971 and designated a United Nations Educational, Scientific and Cultural Organization (UNESCO) Biosphere Reserve in 1976. It is also designated as a ‘National Park’ in Iran. The Lake is drying out and it is in its worst condition ever. Over the years, the water level has been declining continuously and there are different reasons causing such degradation.

The direct drivers (i.e., climate change, highway and dam constructions around the Lake, over-exploitation of water) and indirect drivers (i.e., growth of agriculture in the region and inefficient irrigation methods and poor water management) have been considered as the causes of wetlands’ degradation. The shrinking of Lake has also led to detrimental consequences such as climate change in the region, agricultural degradation, threats to human health, migration problems, threats to the tourism industry, threats to flora, fauna and habitats.

Accordingly, my research investigated the effectiveness of the legal regulations of the ecosystem of Lake Urmia. To study the effectiveness of the legal regulation around the Lake Urmia, a complex array of international and national legal provisions which to a large extent converges around the Ramsar Convention were scrutinised. This convention was signed in 1971, in Ramsar City, Iran. The Convention focuses on ‘wetlands’ and how States should ensure their management, conservation and stewardship. Lake Urmia is indeed 722 Km (448 mi) from Ramsar City.[1] The Ramsar Convention is considered the first global agreement to address the conservation and enhancement of wetlands as a particular part of the ecosystem.[2] The Ramsar Convention is the intergovernmental treaty that provides the framework for the conservation and wise use of wetlands and their resources.[3] Since 1975, almost 90% of UN member states, from all the world’s geographic regions, have acceded to become ‘Contracting Parties’.[4] UNESCO is responsible for the adoption of the Ramasar Convention and performs secretariat functions.  

In my research, the drying up of Lake Urmia is used as an example to study the weaknesses of the international and national rules and regulations aiming at protecting the environment in general and wetlands in particular. In highlighting the local effects of such a crisis, the thesis argued that there is an urgent need for global action to preserve such essential environmental assets across the world. We all depend on the natural world for our survival, so every environmental degradation becomes a concern touching us all.

In order to investigate the opportunities and challenges to implement the Ramsar Convention in Iran, my research focused on the following concepts and provisions of the Ramsar Convention:

  • Definition of the wetlands (Articles 1 and 2)
  • Listing approach (Article 2)
  • Exclusive sovereign right (Article 2)
  • Wise use (Article 3)
  • Ecological character of wetlands (Article 3)
  • Information exchange (Article 4)
  • Financial resources (Article 6)
  • NGO participation (Articles 7 and 8)

The thesis showed that a successful plan for conservation and sustainable use of Lake Urmia and their resources and for the benefit of present and future generations needs a rigorous study of the current condition of the Lake in combination with an in-depth analysis of their feasibility concerning existing legal, political, administrative constraints. Hence, in Iran, it is crucial to regularly review the national laws on/related to wetlands management, share information between involved legal bodies, designate a competent body to wetlands management, and ensure political support for effective national laws and policies on wetlands.


[1] Behrah , ‘ Ramsar route to Urmia’ ( Behrah ) < http://behrah.com/direction.php?sid=473&did=28>

[2] Sands P and Peel J, ‘Principles of International Environmental Law’ (3rd end, Cambridge University Press 2018) 492-493.

[3] Ibid.

[4] Ramsar Secretariat, ‘ About the Ramsar Convention’ ( Ramsar.org 2014) < https://www.ramsar.org/about-the-ramsar-convention>

The contagion of disinformation

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By Ezinwa Awogu – BA philosophy graduate, GDL Law student at UWE Bristol and aspiring solicitor 

More connected than ever, information spreads instantaneously, and amongst that information, none seems to spread quite as viciously as disinformation. To be distinguished from misinformation, disinformation, as defined in 1952 by the great soviet encyclopaedia, is information deliberately designed to spread falsehoods for the deception of the public, usually with an underlining agenda for political, social, or economic gain. Disinformation is often more entertaining, and attention-grabbing than reality, and there it finds its strength over real news. Between the COVID-19 health crisis and the highly influential USA presidential election, we have seen myths, conspiracy theories, and disinformation erupt like wildfires. As the global pandemic has forced increased digitization, a higher rate of IT reliance, and an increased online presence, people are liking, sharing, re-tweeting, and subscribing more and more. The conditions are prime for the contagion of disinformation to spread within the algorithm networks of our social media and news provider outlets.

Battling disinformation in democratic countries is a delicate task, often fraught with debate and controversy. The right of freedom of expression under the common law was incorporated into domestic law in 1998 from the European convention, and the right to freedom of expression (subject to certain formalities, conditions, restrictions, and penalties) was ratified by Article 10 of the Human rights act (1998). Many of these restrictions, however, are intentionally broad and appear to have a high degree of subjectivity making them difficult to apply strictly. This broadness can make it hard to police media content, which on one hand rightly protects freedom of expression but on the other makes it more difficult to identify and combat disinformation. Section 127 of the communications Act (2003) criminalizes the use of an electronic communications network to put out messaging that is ‘grossly offensive or of an indecent, obscene, or menacing character’. However, in practice, enforcement is largely absent, as we all know, offensive and obscene content has flooded electronic communication networks for a long time with few criminal actions brought forward.

COVID-19 conspiracy theories, such as the idea that the virus is part of an elaborate government plan to increase observations and curtail rights, started around January and has culminated in mass no-mask protests with many swearing that the pandemic is fake. Whilst true that the response to the virus has been confusing and unclear on many accounts, the deliberate efforts of some to persist in the spread of conspiracy disinformation works to distract from the reality of the inequalities that the virus had illuminated. Realities such as the disproportionate effect on BAME communities and the worldwide devastating disparities in social welfare and healthcare that the virus has exacerbated are therefore pushed to the wayside with attention-grabbing disinformation headlines taking the spotlight.

The efforts in the summer months by the outgoing Trump administration, amongst other world leaders, to spread disinformation, hailing hydroxychloroquine as a ‘miracle cure’ based on insufficient evidence and inadequate testing, served the political ulterior motive to use hope and optimism as a distraction from criticisms of poor handling of the pandemic. We can see similar attempts to capitalize on the pandemic when we observe the Russian disinformation campaign labelling the Oxford vaccine as the ‘monkey vaccine’ in favour of the Russian vaccine, conspicuously named Sputnik. Most recently, the current saga of electoral fraud claims during the recent USA elections attempts to delegitimize the incoming Biden presidency and stoke the fire for social and political upheaval.

In England and Wales, Law aiding the efficient battle of disinformation is scarce. Ofcom, established under the Communications Act (2003) is a regulatory body set up to enforce certain content standards across TV and radio broadcasting, ensuring accuracy and impartiality, but there is currently no regulatory body set up for social media and online content in the same way, which has become a major source of information communication. There have been proposals to change this, and introduce more regulation and accountability in online platforms, namely in the 2019 Cairncross Review report. Nothing concrete has amounted from this as of yet. Social media outlets have recently been taking it upon themselves, in response to public pressure, to internally implement regulations on the content published on their sights. During the ongoing voter election disinformation campaign, Twitter has been flagging up tweets from outgoing president Donald Trump as misleading. Other popular social media sights such as Facebook and Instagram have displayed instances of some resistance to disinformation, but this has been limited and certainly not widespread enough to effectively battle the contagion of disinformation.

A strong argument can be made in favour of social media giants exercising more of their social responsibility and offering more content regulation. However, constitutional protection of freedom of expression limits the allowance for online content restriction, and admittedly, the more content policing happens, the less freedom is available. Finding the delicate line between personal liberty and public interest is an age-old dilemma that has not appeared to be solved as of yet, so it would seem for the moment that the responsibility lies largely with us the audience. In an age where information is so easily weaponized, it is important to be conscientious consumers with regards to the plethora of information flooding our screens. More than ever, active engagement, independent research, and a degree of critical analysis must be essential activity when choosing which information to accept and which sources to trust. We can no longer afford to be passive recipients of information that may harbor active ulterior agendas.

Useful Reference links

  1. https://www.nytimes.com/2020/11/05/technology/donald-trump-twitter.html
  2. https://www.thetimes.co.uk/article/russians-spread-fake-news-over-oxford-coronavirus-vaccine-2nzpk8vrq
  3. https://www.loc.gov/law/help/social-media-disinformation/uk.php
  4. https://www.bbc.co.uk/bitesize/guides/zyt282p/revision/2
  5. https://www.statnews.com/2020/06/15/fda-revokes-hydroxychloroquine/
  6. https://www.kcl.ac.uk/investigating-the-most-convincing-covid-19-conspiracy-theories
  7. https://www.legislation.gov.uk/ukpga/2003/21/section/127

Is there light at the end of the tunnel?

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Blog by Demelza Hall and Professor Nicholas Ryder

Financial crime is synonymous with the seminal work of Professor Edwin Sutherland who famously and somewhat controversially used the term ‘white collar crime’ in his 1939 presidential lecture to the American Sociological Society.[1] He defined white collar crime as “a crime committed by a person of respectability and high social status in the course of his occupation”.[2] Sutherland concluded that financial crime was committed by “merchant princes and captains of finance and industry” whilst working for a wide range of corporations including those involved in “railways, insurance, munitions, banking, public utilities, stock exchanges, the oil industry [and] real estate”.[3] White collar crime has also been referred to as ‘financial crime’, ‘economic crime’ and ‘illicit finance’.[4] The early interpretation offered by Sutherland has attracted a great deal of debate amongst criminologists and commentators. Some have expressed their support for the definition such as Benson and Simpson,[5] whilst a majority of others have disputed the accuracy of Sutherland’s definition including as Bookman,[6] Podgor,[7] and Freidrichs.[8] Brody and Kiehl concluded that “many scholars continue to redefine and develop a more useful and working definition of the term”.[9]

Whilst commentaries on Sutherland’s definitions have concentrated on crimes committed by individuals who are an employee, representative or agent of a corporation, very few have considered financial crime committed by corporations. Corporations are juridical persons that through the legal process of incorporation are endowed with a legal identity which distinguishes them from its creators. The common law provides that corporations are qualified to breach certain offences under the criminal law largely because of this legal procedure.[10] A number of common law rules have evolved in order to limit disproportionate abuse of power by corporations, including breaches of criminal law.[11] Corporate financial crime has been referred to as a “complex subject on many levels and efforts at strict definitional exactitude rapidly become self-defeating”.[12] The international profile of corporate financial crime has substantially increased during the last past three decades. This is due, in part, to instances of corporate financial crime in the US including ZZZZ Best Cleaners, the Savings and Loans Crisis, the collapse of several large corporations including Enron and WorldCom, the Bernard Madoff Ponzi fraud scheme and the ‘Great Wall Street Rip-Off’. Similarly, the UK has experienced wide scale corporate financial crime including Barlow Clowes International, the Bank of Credit and Commerce International, Barings Bank, market manipulation by financial institutions and money laundering. It is within this context that this blog comments on the approach towards corporate financial crime in the US and UK and suggests a number of reforms.

The United States of America

The evolution of the doctrine of corporate criminal liability by the US judiciary resulted in the Department of Justice (DoJ) initially prosecuting the employees of corporations and they then moved towards targeting prosecuting corporations. However, this approach culminated in a change of policy following the acquittal of Arthur Andersen, which resulted in the DoJ prioritising Deferred Prosecution Agreements (DPAs) as opposed to corporate prosecutions. The appropriateness of DPAs has been questioned in light of the actions of HSBC in December 2012. A DPA is placed on a corporation when it is under investigation for breaching the law for a set period of time, acting as a contractual agreement between that corporation and financial regulatory or government agency. The offending corporation is required to pay a fine, cooperate with the investigating agencies, illustrate good conduct and improve its internal corporate governance procedures.[13]When the offending corporation can demonstrate they have complied with the terms of the DPA, the charges they are under investigation for will be dropped. Whilst DPAs have been used as alternative method to indicting corporations and generated substantial financial penalties,[14] the case of HSBC is a prominent example of why it is an enforcement tool that ultimately lacks impact.

HSBC entered into its first DPA in 2012 for anti-money laundering and sanctions violations, lasting five years. The financial institution also agreed to pay $1.92 billion in financial penalties and improve its compliance procedures.[15] In 2017, the DPA against HSBC expired and all charges were deferred.[16] A main aim of DPAs is to deter corporations from committing further corporate criminal offences but, like many others, HSBC has been a repeat offender. In total HSBC has entered into three DPAs with the DOJ since 2012, the most recent in 2019 for assisting US clients to evade tax.[17] This suggests that for tackling corporate economic crime the use of DPAs as an enforcement tool is inadequate and fails to prevent future wrongdoing by offending corporations. Moreover, for corporations it appears to be no more than a tick box exercise in the normal course of business.

United Kingdom

The enforcement of corporate economic crime in the UK has been limited by the seminal, if rather restrictive decision of the House of Lords in Tesco v Nattrass.[18] Subsequent attempts to tackle corporate economic crime have focused on the introduction of failure to prevent offences under the Bribery Act 2010 and the Criminal Finances Act 2017  In January 2017, the Ministry of Justice published its Call for Evidence on Corporate Economic Crime, in which is sort views on

  • whether the need to prove the involvement of a “directing mind” in corporate offending is hindering the prosecution of companies for wrongdoing
  • alternatives to proving “directing mind” complicity in corporate criminal conduct, including:
  • a US-style ‘vicarious’ liability offence, making companies guilty through the actions of their staff, without the need to prove complicity
  • the failure to prevent model, whereby a company is liable unless it shows it has taken steps to prevent offending
  • the benefits of strengthening regulatory regimes.[19]

After receiving evidence from interested parties and key stakeholder, the Government published its response in November 2020. The government concluded:

“After careful consideration and a further evidence gathering exercise, the government has concluded that the evidence submitted was inconclusive. Further work is required before considering any change to the law and the Government has commissioned an expert review by the Law Commission”.[20]

This response by the government has been described by Susan Hawley, director of campaign group Spotlight on Corruption, as ‘a real danger that…kicks reform into the long grass, and will result in corporate impunity for large banks and companies for several more years.’[21] Further, it demonstrates that the fight to hold corporations to account lacks the political will to make a significant difference and that maybe a more appropriate course of action to take would be holding those who run corporations accountable.

Within the UK, mechanisms are already in place to hold senior individuals within corporations accountable for financial crimes committed to benefit a corporation. In 2016 the Senior Managers Certificate Regime (SMCR) was introduced to the banking sector to deter misconduct and improve culture, governance and accountability. Its overall aim is to ensure those in senior positions have more responsibility and accountability for their conduct, actions and competence. For non-compliance with the SMCR, the FCA will take enforcement actions against senior managers which are effective and proportionate.[22] However, whilst the FCA has issued financial penalties on individuals since the SMCRs introduction, the overall effectiveness and deterrent of the regime has been questioned.

A recent Freedom of Information request from financial regulation consultancy Bovill has revealed that since its inception there have been only 34 investigations with one successful enforcement action.[23] In 2018 the FCA together with the PRA each imposed Staley with a £458,000 financial penalty, which was combined to a total of £642,430 after a 30% discount for early settlement. This followed Staley’s two attempts in 2016 to uncover the identity of an anonymous whistleblower who had raised concerns regarding his hiring strategy.[24] The regulators found Staley had not declared his conflict of interest in the allegations, nor had he sufficiently let compliance take control of the matter.[25] By attempting to unmask a whistleblower Staley was found to have breached Individual Conduct Rule 2 (to act with due skill, care and diligence); however, he was not found to be in breach of Individual Conduct Rule 1 (to act with integrity) and had not lacked the fitness and propriety to continue in his role as CEO.[26] It is praiseworthy that a financial penalty was imposed upon Jes Staley for his actions, but it must be acknowledged that the outcome in this instance seems insufficient considering the seriousness of Staley’s actions and his position held. Further, with only one successful prosecution in four and half years, whilst a step in the right direction to tackle corporate economic crime, a more proactive stance needs to be taken by the FCA to show the SMCR can serve its purpose; an approach that can be adopted from the CMA.

Conclusion

It has now been four years since the then Justice Minister, Dominic Raab, announced the Government’s plans to reform how the UK tackles corporate economic crime. It is rather worrying that successive Governments have continued to delay tackling the problems associated corporate economic crime and it will continue to highlight the success of the Bribery At 2010 and its nine DPAs. The decision to as the Law Commission to investigate proposals for reform on corporate economic crime is to be welcomed. However, the limited action to tackle corporate economic crime in the UK following the association between the 2007/2008 financial crisis and financial crime, the revelations of the Panama Papers, the Paradise Papers and the FinCEN Papers suggest that we are a long way from introducing a new regime for corporate economic crime.


[1] E. Sutherland ‘The White Collar Criminal’ (1940) 5 American Sociological Review 1.

[2] E. Sutherland, White Collar Crime (Dryden: New York, 1949) 9.

[3] See Sutherland, above n. 1 at 2.

[4] For the purpose of this blog we will use the term financial crime.

[5] M. Benson and S. Simpson, S.S. White-Collar Crime: An Opportunity Perspective, (Routledge: New York, 2009).

[6] Z. Bookman ‘Convergences and omissions in reporting corporate and white collar crime’, (2008) 6 DePaul Business & Commercial Law Journal 355.

[7] E. Podgor ‘White collar crime: a letter from the future’ (2007) 5 Ohio State Journal of Criminal Law 247.

[8] D. Freidrichs ‘Wall Street: Crime Never Sleeps’ in S. Will, S. Handelman and D. Brotherton (eds), How they got away with it – white collar criminals and the financial meltdown (Columbia University Press: New York 2013) 9.

[9] R. Brody and K. Kieh ‘From white- collar crime to red-collar crime’ (2010) 17 Journal of Financial Crime 351.

[10] Ministry of Justice Corporate Liability for Economic Crime Call for evidence (Ministry of Justice: London, 2017) at 10.  See generally Salomon v Salomon [1897] A.C. 22.

[11] See generally R. v P&O European Ferries (Dover) Ltd (1991) 93 Cr. App. R. 72, 83.

[12] T. Edwards House of Commons Library Briefing Paper – Corporate Economic Crime: bribery and corruption,  Number 7359, 22 March 2017, at 3.

[13] N Ryder, ‘Too scared to prosecute and too scared to jail? A critical and comparative analysis of enforcement of financial crime legislation against corporations in the USA and the UK’ (2018) The Journal of Criminal Law 1, 6.

[14] See United States Department of Justice, ‘Airbus agrees to pay $3.9 Billion in global penalties to resolve foreign bribery and IATR case’ (United States Department of Justice: 31 January 2020) < https://www.justice.gov/opa/pr/airbus-agrees-pay-over-39-billion-global-penalties-resolve-foreign-bribery-and-itar-case> accessed November 2020.

[15] United States Department of Justice, ‘HSBC Holdings Plc. and HSCB Bank USA N.A> Admit to money laundering sanctions violations, forfeit $1.256bn in Deferred Prosecution Agreement’, 11 December 2012, <https://www.justice.gov/opa/pr/hsbc-holdings-plc-and-hsbc-bank-usa-na-admit-anti-money-laundering-and-sanctions-violations> accessed 16 November 2020.

[16] HSBC, ‘HSBC Holdings plc Expiration of 2012 Deferred Prosecution Agreement’ (HSBC: 11 December 2017) <http:// www.hsbc.com/news-and-insight/media-resources/media-releases/2017/hsbc-holdings-plc-expiration-of-2012-deferred-prosecution-agreement> accessed 16 November 2020.

[17] United States Department of Justice, ‘Justice Department Announced Deferred Prosecution Agreement with HSBC Private Bank (Suisse) SA), (United States Justice Department: 10 December 2019)<https://www.justice.gov/opa/pr/justice-department-announces-deferred-prosecution-agreement-hsbc-private-bank-suisse-sa> accessed 16 November 2020.

[18] Tesco v Nattrass [1971] UKHL 1.

[19] Gov UK, ‘New crackdown on corporate economic crime’ (GovUK: 13 January 2017) <https://www.gov.uk/government/news/new-crackdown-on-corporate-economic-crime> accessed 16 November 2020.

[20] Ministry of Justice, ‘ Corporate liability for economic crime: Call for evidence’ (Ministry of Justice: 3 November 2020) <https://consult.justice.gov.uk/digital-communications/corporate-liability-for-economic-crime/> accessed 16 November 2020.

[21]Spotlight on Corruption, ‘Response to the Law Commission’ (Twitter, 3 November 2020) <https://twitter.com/EndCorruptionUK/status/1323591794509205504> accessed 16 November 2020.

[22] Financial Conduct Authority The Senior Managers and Certification Regime: Guide for insurers (Financial Conduct Authority: February 2019) at 16.

[23] Bovill, ‘Only 34 investigations and one enforcement action after four and a half years of SMCR’ (Bovill: 27 October 2020) <https://www.bovill.com/only-34-investigations-and-one-enforcement-action-after-four-and-a-half-years-of-smcr/> accessed 16 November 2020.

[24] Minter Ellison, ‘First case brought by the FCA and PRA under the SM&CR’ (Lexology, 18 May 2018) <https://www.lexology.com/library/detail.aspx?g=88423b44-c1f8-4acf-94a9-7ec00c56ef0f> accessed 16 November 2020.

[25] Financial Conduct Authority, ‘FCA and PRA jointly fine Mr James Staley £642,430 and announce special requirements regarding whistleblowing systems and controls at Barclays.’ (2018)16 <https://www.fca.org.uk/news/press-releases/fca-and-pra-jointly-fine-mr-james-staley-announce-special-requirements> Accessed 16 November 2020.

[26] See MinsterEllison above, n 24.

Don’t worry if stores aren’t accepting cash…

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You could always suggest Pokémon cards as a form of payment – say the Bank of England – if the store is willing, of course

By Dr Monica Vessio, Associate Lecturer, FBL; Research Associate Centre for Banking Law, University of Johannesburg

Through the ages, money has taken various forms, from feathers, cowrie shells, gold and silver to cash and bank deposits. While most of the money in the UK is held electronically as deposits (96%), a small proportion (4%) is still held in physical form as cash (banknotes and coins). Despite the relatively low percentage of cash compared to bank deposits, cash continues to be important. There are over 70 billion pounds of notes in circulation.

Most recently, and because of the Covid-19 pandemic, many store holders are refusing to accept cash. The immediate question that arises is – but cash is legal tender, so are stores not obliged to accept this form of payment?

According to the Bank of England, a shop owner can choose what form of payment they are prepared to accept. If you want to pay for a pack of gum with a £50 note, it is perfectly legal for them to refuse to accept this payment type. It is, apparently, entirely, a matter of discretion. If your local corner shop decided to only accept payments in Pokémon cards, the Bank of England says that would be within their right to.

Legal tender takes on a narrow technical meaning and means that if you offer to fully pay off a debt to someone in legal tender, they cannot sue you for failing to repay.

As to what is classed as legal tender varies, depending where you are in the UK. In England and Wales, Royal Mint Coins and Bank of England notes are legal tender, while in Scotland and Northern Ireland it is only Royal Mint coins and not banknotes. There are further restrictions when using small coins. For example, 1p and 2p coins only count as legal tender for any amount up to 20p. Cheques, debit cards and contactless are not legal tender. Bank of England notes stop being legal tender, once withdrawn, but don’t worry the Bank of England will give plenty of warning before they retire any notes.

Kiyotaki & Wright (1993) tell us that the most important function of money is probably its role as a medium of exchange. While, Wicksell (1906) explained that a medium of exchange means “an object which is taken in exchange, not on its own account, . . . not to be consumed by the receiver or to be employed in technical production, but to be exchanged for something else within a longer or shorter period of time.” Thus, if you could talk a store into accepting Pokémon cards in exchange for bread and milk or other “essential” items, you would not be paying in legal tender but certainly a legal and valid transaction will have occurred.