Climate Change Litigation – A Vehicle for Changing Corporation and State Behaviour?

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By Johanna Reichel, Second Year, LL.B. Programme.

With only nine years left until climate change becomes irreversible,[1] stopping or slowing it down becomes increasingly crucial every day. One judicial instrument among others to combat climate change is climate change litigation which is gradually perceived to change climate-related policy outcomes and corporate behaviour.

The most prominent case when talking about climate change litigation is Urgenda.[2]In this case, the Dutch Supreme Court ruled in favour of 900 citizens assisted by the Urgenda Foundation and ordered the government to reduce greenhouse gas emission (GHG) by at least 25% by the end of 2020.[3] This “show horse” of climate change litigation is an almost perfect example of invoking human rights to force States to act ‘greener’.

Climate change litigation cases, especially ones relying on human rights, are increasing.[4] When the defendant is the respective government, the claimants can rely on human rights. Especially the right to life[5] and the right to effective remedies[6] have been used more often strategically and successfully by NGO’s and individuals.

Urgenda paved the way for other individuals, such as Ashgar Leghari, a farmer in Pakistan, to hold their governments accountable via litigation. Mr Leghari challenged the Pakistani government for its failure to carry out core provisions of the National Climate Change Policy of 2012. He succeeded and the government was ordered to implement a climate adaption plan.[7]

In 2018, Colombia’s Supreme Court ordered the authorities to implement action plans to address deforestation in the Amazon,[8] another major cause of climate change. As the ‘lung of the world’, the Amazon Forest stores large amounts of carbon that would otherwise be released into the atmosphere and thereby increasing the world’s temperature.[9]

As demonstrated, climate change litigation is a tool to influence climate change law and policy. Nevertheless, as corporations are responsible for over 71% of global emissions,[10] holding them accountable is essential to stop climate change. However, as the provisions in the Human Right Charters are only addressed to public bodies, corporations cannot be held liable under them.[11] After failed attempts in the early 2000s,[12] the second wave of litigation rose with cases such as Huaraz Case[13] where Saúl Luciano Lliuya, a Peruvian farmer, is suing the German multinational energy company RWE in Germany to hold them accountable for their impact on climate change. He is basing his claim on the German Code of Civil procedure, yet the outcome must be awaited as SARS COVID-19 delayed the process.[14]

The precedent for climate change litigation against corporations was recently set in Milieudefensie v Shell.[15] In May 2021, Shell was ordered to cut their GHG by 2030 by 45%.[16] Relying on the Urgenda precedent and the fact that Shell’s GHG was twice as high as the Netherland’s, the court permitted the claim under the European Convention on Human Rights.[17]

Despite the fact that courts do not always rule in favour of the environment, corporations can be influenced to act ‘greener’ due to media coverage. ExxonMobile, for example, misled the public about climate change’s potential business risks to rationalize their behaviour by funding climate change denial front groups and spreading disinformation about climate science.[18] Despite winning the case, the subsequent public and financial scrutiny damaged their reputation, and their credit rating was downgraded.[19] In conclusion, climate change litigation is accurately seen as a tool to influence climate change policies and corporate behaviour. However, cases such as Urgenda and Milieudefensie, while demonstrating an ideal outcome, are rare and must be built upon. Milieudefensie, in particular, needs to be further observed as Shell will undoubtedly appeal the decision. Nevertheless, even unsuccessful cases can drive climate change action long term as public awareness is raised through media attention and a broad public discussion is forced.


[1] General Assembly, Only 11 Years Left to Prevent Irreversible Damage from Climate Change, Speakers Warn during General Assembly High-Level Meeting (28 March 2019) < https://www.un.org/press/en/2019/ga12131.doc.htm> accessed 18 May 2021

[2] Supreme Court of the Netherlands, 20 December 2019, ECLI:NL:HR:2019:2007, English translation ECLI:NL:2019:2007

[3]’Climate Case – Urgenda’ (Urgenda, 2019) <https://www.urgenda.nl/en/themas/climate-case/> accessed 18 May 2021;  Supreme Court of the Netherlands, 20 December 2019, ECLI:NL:HR:2019:2007, English translation ECLI:NL:2019:2007

[4] Elisa de Wit, Sonali Seneviratne and Huw Calford, ‘Climate Change Litigation Update’ (Nortonrosefulbright.com, 2020) <https://nortonrosefulbright.com/en/knowledge/publications/7d58ae66/climate-change-litigation-update> accessed 24 May 2021

[5] Universal Declaration of Human Rights 1848, art. 3; International Covenant on Civil and Political Rights 1966, art. 6

[6] Universal Declaration of Human Rights 1848, art. 8; International Covenant on Civil and Political Rights 1966, art. 2(3)

[7] Asghar Leghari v Federation of Pakistan (2015) W.P. No 25501/201

[8] Demanda Generaciones Futuras v. Minambiente 11001-22-03-000-2018-00319-01, para 3.

[9] Ross W. Gorte and Pervaze A. Sheikh ‘Deforestation and Climate Change’ (Congressional Research Service, 2010) < http://forestindustries.eu/sites/default/files/userfiles/1file/R41144.pdf> accessed 2 July 2021

[10] Tess Riley, ‘Just 100 Companies Responsible For 71% Of Global Emissions, Study Says’ (the Guardian, 2017) <https://www.theguardian.com/sustainable-business/2017/jul/10/100-fossil-fuel-companies-investors-responsible-71-global-emissions-cdp-study-climate-change> accessed 18 May 2021

[11] European Commission, ‘How to report a breach of your rights’ https://ec.europa.eu/info/aid-development-cooperation-fundamental-rights/your-rights-eu/how-report-breach-your-rights_en accessed 26 May 2021

[12] Michal Nachmany and Joana Setzer, ‘Global trends in climate change legislation and litigation: 2018 snapshot’ (2018) Graham Research Institute on Climate Change and the Environment < https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2018/04/Global-trends-in-climate-change-legislation-and-litigation-2018-snapshot-3.pdf> accessed 24 May 2021

[13] Agence France-Presse, ‘Peruvian farmer sues German energy giant for contributing to climate change’ The Guardian (14 November 2017) < https://www.theguardian.com/world/2017/nov/14/peruvian-farmer-sues-german-energy-giant-rwe-climate-change> accessed 24 May 2021

[14] Luciano Lliuya v. RWE AG Case No. 2 O 285/15 Essen Regional Court

[15] The Hague District Court, 26 May 2021, ECLI:NL:RBDHA:2021:5337, English translation ECLI:NL:RBDHA:2021:5339

[16] Roger Harrabin ‘Shell: Netherlands court orders oil giant to cut emissions’ BBC News (26 May 2021) < https://www.bbc.co.uk/news/world-europe-57257982> accessed 26 May 2021

[17] Milieudefensie v Shell [2019] District Court of The Hague < http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20190405_8918_summons.pdf> accessed 26 May 2021

[18] Suzanne Goldenberg ‘ExxonMobil under investigation over claims it lied about climate change risks’ The Guardian (New York, 5.11.2015) <https://www.theguardian.com/environment/2015/nov/05/exxonmobil-investigation-climate-change-peabody> accessed 8 July 2021

[19] Megan Darby, ‘Shareholder Pressure Mounts On Downgraded Exxonmobil’ (the Guardian, 2016) <https://www.theguardian.com/environment/2016/apr/28/shareholders-pressure-mounts-on-downgraded-exxonmobil-climate-change> accessed 25 May 2021

Outstanding Student Representative of the Year

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Congratulations to LLB (Hons) Law student, Danielle Newton, for receiving the title of ‘Outstanding Rep of the Year’ for the Business and Law faculty. We caught up with Danielle about her journey as part of our Student Spotlight 2021.

Why did you want to become a student rep?

“My initial interest came after my first year at the university. Once my confidence grew, I wanted to be a voice for those who went unnoticed, the students who find it difficult to say how they feel and bring to light any issues they are having. I have been that type of student for years and I know exactly how it feels. I knew during a pandemic that the student representative programme could be the perfect asset for getting to know peers and staff alike. I felt the need to still maintain that contact irrespective of all the restrictions we were facing in the world. My hope was to make certain that my faculty’s year felt like a community!

Overall, Student representatives are of significant importance in encompassing the idea of acting on behalf of one body to promote change and success for all.”

What have you gained as a student rep?

“I have developed exceptional communication skills through volunteering as a student representative. The role itself relies on gaining feedback from peers to better establish a reliable working environment. Thus, I actively communicate with staff members and students to be a voice of reason and representation. All of this has been a great topic for conversation in recent interviews.

The most thoroughly rewarding part of the role was being able to make change for my cohort. Whether that be a deadline change, timetable change, teaching addition etc. Any small amount of change would bring with it great satisfaction. Alongside this, the programme gave me the opportunity to speak to various people. I have made many friends despite the virtual restrictions consequently adding to my university experience as a whole.”

What were the challenges you faced over the past year?

“It comes as no surprise that it has been an unprecedented year and with that came many challenges both in and out of university. I found adapting to virtual life hard. Communicating with lots of people in my role but never seeing faces was very strange! I recently came onto campus and have spotted a few of my lecturers who probably wouldn’t know who I am.

The main challenges lied with the shift in academic year dates. This change in schedule was difficult for students to adapt too – myself included. However, it has all been a learning curve and all the students and staff have worked exceptionally hard to try and get the most out of the academic year.”

What have you learnt?

“Foremost what I have learnt from my university experience is the power afforded to those who try hard and persevere to succeed. It may seem a silly concept but, what breaks away from those students who are academically gifted and those who try hard is that university doesn’t discriminate. One of my favourite quotes that I would think about when I competed in Athletics was “all men are created equal, some work harder in pre-season.” This concept is similar for university and you will be recognised for your efforts.

I felt like a slow burner here. I wasn’t academically gifted and I was so shy when walking onto campus for the first time. I had convinced myself I would drop out in the first 5 minutes. But I kept going and once I was ready, I was able to make the most out of my university experience. My advice would be, seize every opportunity given to you, don’t take life too seriously, enjoy the small things and most of all remember – fast success builds your ego but, slow success builds your character.”

Students launch legal directory to help aspiring lawyers

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Lawtask is an online legal directory designed to help future lawyers bridge the gap between leaving university and securing their first positions in their legal careers. Lawtask allows students to gain professional skills and experience, in their pursuit of a legal career. This is achieved through the consolidation of relevant and practical opportunities and resources.

Set up in 2020, Lawtask was founded by Alessia Cucciniello, recent UWE Bristol Law graduate, and Kieran Woodhouse, LPC LLM student at UWE Bristol. Both have ambitions of becoming solicitors and have also been involved with the UWE Bristol Law Society, with Kieran being elected Vice-President.

Formed during the Covid-19 pandemic, Lawtask was a response to the competitive legal sector that students are faced with when leaving University. Alessia and Kieran launched Lawtask to enable law students to stand out through providing knowledge sharing and useful tools to give students a great place to start in the pursuit of their legal careers.

“Our aim was to bridge the gap between graduating university and securing your first legal job. There are plenty of resources out there to choose from, and our aim was to collect them in an easily accessible platform that could help students gain essential skills to stand out.”

Alessia

They explored the concept of virtual learning and discovered the huge variety of MOOCs (Massive Open Online Courses) that applied to legal students. These courses demonstrate transferable skills and a drive to seek personal improvement that employers are truly looking for.

“One thing we realised when searching for these and other relevant experiences, was that there is no single place for law students to discover the opportunities open to them. This then sparked the concept for Lawtask.”

Kieran

The platform is still in its early stages, however, the pair have seen great success so far. The feedback they have received from both students and staff at UWE has been hugely positive and led to consistent audience growth and user interaction.

“Our hope for the future is to be able to grow and provide more opportunities for students. We would like to expand our platform and start offering real work experience that graduates can use on their job applications, in order to truly help them succeed. We are still working on this, but we hope that we will be able to do this very soon.”

Alessia

“My ultimate hope for Lawtask is that it becomes the norm for law students to consider looking outside the traditional scope of experience and learning and that Lawtask can be a place that can guide people to something beneficial for them.”

Kieran

We asked them both for their advice to current students and here’s what they said:

“My advice to current students is to make good use of all the resources and opportunities offered by UWE and engage with the societies. Not only this will enhance your student experience, but it might also give you essential skills that you will carry with you and shape your future career.”

Alessia

“In my personal experience, so many people emphasise their degree being the absolute evidence of their ability to do anything and so often people forget the importance of personal development. With that in mind, my advice would be to take the opportunities that you have available to you either within your subject or elsewhere because now is the time to explore them. Who knows, you may find a whole new career aspiration.”

Kieran

You can visit Lawtask here.

My student representative journey at Bristol Law School

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Blog by Sarah Barnes, Bristol Law School LLB (Hons) recent graduate, as part of the FBL Student Spotlight 2021.

Why I became a representative

I had always wanted to be a representative during my time at UWE Bristol but I felt a bit nervous to do so. However, when I saw the opportunity to become a Law Lead Department Representative I knew I had to apply. I enjoy helping people and I wanted to enable student voices to be heard throughout their time at UWE.

What I gained and learnt

I have learnt so much at UWE, more than I ever would have if I went anywhere else. Firstly, I gained a lot of confidence. I was always a little nervous to speak out for example in lectures, but being in this role I have had to overcome this as I have had to network lots. Luckily I have met lots of friendly and lovely people and such a variety of staff and students across the University.

I also gained team working skills by working with other Lead Department Representatives and staff, and was able to communicate news to them and resolve issues that arose.

On my course, I have learnt so much such as negotiation and mediation. I have also helped to advise real clients through the UWE Bristol Law Clinic. The experiences I have gained have been invaluable.

The challenges I faced

I have faced the challenge of studying from home over the past year. It was a big change from being in the lecture theatres and workshop rooms to being in your bedroom! I overcame this change by ensuring I organised my time, created a suitable study space and also tried to get more involved than I ever did before to ensure that being online did not negatively affect my studies.

The importance of Student Representatives

It is really important to represent students so that they feel that they are being listened to. Furthermore, by having this role, we are the middleman in speaking to lecturers about what students believe is working and what they feel may not be working as well. This role was highly important whilst having blended learning this year as new ways of learning had different levels of effectiveness.

As a Representative, I was able to communicate feedback from students to the staff and helped adapt the module to suit the students’ needs.

My advice

If you are considering becoming a representative, do it! Apply now! Fear can always try to eat you up, but you never know that you may get the role you really want. You have to be determined and resilient to achieve great things. Being a representative has really helped my leadership and team working skills in order to try my best and help the law students at UWE.

The staff here at UWE are always willing to do their best to help you. As a representative, I had meetings weekly with staff and that was truly invaluable. We were able to communicate what was happening on both sides and we would be able to resolve issues much quicker by working together.

“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.

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.

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