Trends in Long-term Climate Laws

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In this post Anusha Witt (University of Sussex LLM Environmental Law alumna) discusses the emergence of long-term climate governance frameworks from jurisdictions across the globe which are often the locus for net-zero by 2050 commitments. She points to the evolution of net-zero by 2050 as a legal norm, and poses the question: are we reaching a tipping point where net-zero is becoming the accepted standard for climate law?

               

Introduction

For decades the scientific community have sought to highlight that greenhouse gases (GhG) in the atmosphere as a result of human activity is leading to dangerous levels of warming. We have already reached 1°C and alarmingly climate scientists predict that we will reach 1.5°C between 2026 and 2040. To address this, we need to reduce GhG emissions to zero.

The Paris Agreement provides an international framework to respond to this, it calls on Parties to pursue efforts to limit warming to 1.5°C and sets a target achieve this by balancing emissions and removal of GhG from the atmosphere by the second half of this century – frequently interpreted to mean net-zero by 2050.

Given the non-binding nature of international climate law, domestic law provides a critical role in facilitating a transition to a low GhG economy. Long-term climate governance frameworks with similar key features have emerged from jurisdictions across the globe and are often the locus for net-zero by 2050 commitments. They play a critical function by putting a legal duty on States to manage the transition to a low GhG economy. Pointing to the evolution of net-zero by 2050 as a legal norm, this article poses the question: are we reaching a tipping point where net-zero is becoming the accepted standard for climate law?

This question is particularly pertinent given how rapidly climate law is developing, the statistics are compelling, the number of climate change laws in major economies has grown from 40 in 1997 to almost 500 at the end of 2013. The likelihood of climate law being enacted increases with the amount of climate laws passed elsewhere. Knowing this trend this article aims to raise some thought-provoking questions on the governance frameworks we are seeing the commitment to net-zero nested in.

 

UK Climate Change Act

The United Kingdom (UK) became the architect of long-term climate governance frameworks, in 2008, when it enacted its Climate Change Act (UK CCA), aimed at crafting steady but ambitious economy wide decarbonisation, whilst allowing for flexibility. Policymakers are not restricted to making reductions in specified sectors, instead they have the flexibility to choose the most cost-effective path to emissions reductions.

Several features within the CCA combine to form a governance framework, including:

  • a legally binding long-term, scientifically informed greenhouse gas (GhG) emissions reduction target (recently updated to net-zero by 2050) and a mid-term 2020 target;
  • a system of ‘carbon budgeting’;
  • an independent expert advisory panel called the Climate Change Committee (CCC);
  • regular reporting and monitoring requirements facilitate compliance.

The carbon budgets are consecutive, and each cover a period of five years with the CCC advising on the limit for GhG emissions for each budget eleven years in advance. This creates a system of policy back casting, whereby policy decisions that are made today (to remain within the carbon budget) are consistent with reaching the long-term target. With each budget more ambitious than the last, the intention of the governance framework is to allow policymakers to chart a steady but progressive course towards the long-term target.

 

Other long-term climate governance frameworks

Since the advent of the UK CCA a proliferation of long-term climate governance frameworks with similar features to the CCA have been enacted in other jurisdictions. Notable examples include: France, Norway, Finland, Ireland, Sweden, Mexico, The Netherlands, Denmark and New Zealand, who have all enacted long-term climate governance legalisation with similar features to the CCA, while Spain, Australia, South Africa and Malaysia (among others) are in the process of developing similar legislation.

 

Comparing national frameworks

Climate Laws in Europe: Good Practices in net-zero management’, provides a comprehensive and up-to-date global picture of this rapidly evolving landscape. As the authors remind us ‘no two climate laws are the same, the frameworks tend to draw on a set of common elements, such as targets, planning, measures, monitoring, public participation and scientific advisory bodies.’

Each of these instruments have a long-term target, however the picture is varied. For the UK, France, Denmark and New Zealand, the target is net-zero by 2050. Both Sweden and Finland are even more ambitious having legislated for net-zero by 2045 and 2035 respectively. Whilst the draft laws in Spain and Australia both have net-zero commitments. Each of these instruments also have their own unique aspects.

Sweden’s Act adds fiscal responsibility to its governance framework through provisions to align climate policies and budgetary decisions and a climate report to be presented with the yearly budget bill.

Australia, with its high susceptibility to climate impacts, requires a climate change risk assessment to assess the current and future effects of climate change on the economy, society, agriculture, environment, and ecology, to identify the most significant risks based on their severity and to assess the need for a coordinated response. The assessment is to be carried out once every five years. The recent catastrophic bush fires serve as a reminder of why this provision is important for the safety of society and the economy. In Australia there was widespread public outrage that leaders in emergency services had repeatedly raised concerns that the bush fire season was bound to be far more severe than usual due to prolonged drought. However, these risk warnings were largely ignored. Assessing the need for a coordinated response to future risks is particularly pertinent given Australia’s federal system of government with different structures for emergency services across States and Territories. Given the transboundary nature of climate change, assessing the need for a coordinated response to climate induced risks seems particularly pertinent and has been a key ask of government in the aftermath of the fires.

The French ‘Energy Transition Law’ stemmed from a public debate around concerns with nuclear energy and has a strong provision for public consultation. The intent is to enable citizens to be key drivers of the transition. The importance of this cannot be underestimated, in France, we have seen citizens making their voices heard loudly and violently through the des gilets jaunes (yellow vest movement). The movement originated from concerns about rising fuel costs due to a fuel tax aimed at emissions reductions. The experience of France illustrates the importance in increasing public awareness of the reasons why transitioning is critical, ensuring the transition is inclusive and that all sectors of society (particular high emitting sectors and those already economically vulnerable) are included in decision making and planning. Ireland also has a social dimension to its Climate Action and Low Carbon Development Act 2015, which includes the concept of a just transition.

Both public participation and strong mechanisms to ensure a just transition are critical, particularly, given the current COVID-19 crisis. The global economic impact of COVID-19 remains to be seen, but it is clear it will exacerbate existing societal inequalities and it is from this shaky ground that we will need to craft economy wide decarbonisation.

 

International Climate Governance Frameworks

The EU framework

Recently, the European Union published its proposal for a Climate Law with a net-zero by 2050 commitment. The significance of the EU announcing its commitment to net-zero by 2050 cannot be understated, the EU are supporting the momentum behind net-zero and raising the bar of ambition globally before COP 26 (the 26th Conference of the Parties to be attended by countries that signed the United Nations Framework Convention on Climate Change – which the Paris Agreement complements and falls under). The EU has also adopted a long-term governance framework with similar key features to the aforementioned national climate laws and within which its net-zero commitment lies. The European Commission has extensive reporting and monitoring requirements one of which is to report on progress to the European Parliament, within six months of the global stocktake required under the Paris Agreement. Creating an additional layer of accountability in that poor performance may be seen as a reputational risk for the EU’s leadership image and reinforcing the legitimacy of the Paris Agreement by timing EU domestic decisions to international mechanisms. Interestingly, the EU adds another dimension to the framework by complementing it with the European Green Deal which adds an economic package to accompany the framework and support a just transition.

 

Paris Agreement

The Paris Agreement illustrates that borrowing of legal concepts between jurisdictions is not confined to horizontal diffusion between national jurisdictions, but we can also identify vertical diffusion between international law and national law.

The Paris Agreement exhibits similar features to the aforementioned climate governance frameworks:

  • It has a long-term goal (to keep the global temperature increase to well below 2°C and pursue efforts to keep it to 1.5°C) and encourages long-term action by calling on countries to produce long-term low GhG emission strategies by 2020.
  • It places an obligation on Parties to submit Nationally Determined Contributions (NDC), every five years in which Parties detail their GhG emissions reductions targets to contribute to meeting the temperature target. Like the UK CCA carbon budgets, Parties are expected to rachet up ambition with each NDC.
  • Lastly, the Paris Agreement is flexible in that it does not prescribe how nation states need to reach the long-term goal they are free to choose the most appropriate path for their context.

Whilst there are many factors that influenced the architecture of the Paris Agreement, there appear to be some clear similarities between long-term governance frameworks and the Agreement. If COP 26 goes ahead this year it will be a critical year for the Paris Agreement. We are five years on from its initial signing, countries’ initial pledges to meeting the temperature goal will be reviewed and countries are expected to raise the ambition of their NDCs.

 

Net-zero by 2050

An increasingly common feature of long-term climate governance frameworks is the provision for net-zero by 2050. Article 4.1 of the Paris Agreement is frequently interpreted as an objective to achieve net-zero emissions globally by 2050. Whilst, its legal root can be found in the Paris Agreement, it is no surprise net-zero  found its way into the agreement – it was conceived and documented by influential people in the world of climate diplomacy well before the negotiations began.

Despite this, the net-zero provision ended up being somewhat hidden in the Paris Agreement. Hidden, because it was one of the components Small Island States (among other proponents) had to compromise on in the negotiations. Instead of appearing explicitly as a net-zero by 2050 commitment it is phrased much more loosely:

‘In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century, on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.’

The interpretation of this article as a net-zero commitment is explained by Matthias Duwe:

‘Article 4.1 specifies that this goal requires a global emissions trajectory that starts with a “global peaking of greenhouse gas emissions as soon as possible”, followed by “rapid reductions”. This should lead to “a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century”, which can be interpreted to specify global carbon neutrality after 2050.’

There is widespread momentum behind net-zero from numerous civil society actors, who are pushing countries to adopt the commitment. It’s not just countries that are adopting net-zero –  states, cities, sports teams, even fossil fuel companies are taking up the challenge, with BP recently announcing that it has committed to reaching net-zero by 2050. Which invites the question: what does net-zero actually mean?

 

What does net-zero by 2050 mean in practice?

Net-zero by 2050 means that all GhG (that a country chooses to include in their target) are reduced by at least 100% of the level they emitted in the year or base period (the average over several years) they choose as their baseline. If the country still emits GhG after 2050 they need to find a way of offsetting those emissions so that they are stored (for example through carbon sinks) and are not released into the atmosphere. As Josh Burke explains, ‘In contrast to a gross-zero target, which would reduce emissions from all sources uniformly to zero, a net-zero emissions target is more realistic because it allows for some residual emissions.’

Different actors have adopted different interpretations of net-zero, for example the UK’s net-zero target currently excludes emissions from the UK’s share of international aviation and shipping. New Zealand includes all greenhouse gases except biogenic methane. Many actors allow for net-zero targets to be met through the purchase of carbon credits from abroad – which is not without controversy.

 

Conclusion: the future of long-term climate laws

It is clear that legal ideas travel between jurisdictions. Finnemore and Sikkink describe a process where norms reach a ‘tipping point’ in which a critical number of key States adopt the norm and it becomes the accepted standard. Is net-zero by 2050 becoming the accepted standard of climate laws?

Finnemore and Sikkink also explain that before a norm becomes the accepted standard some States may adopt it for purely strategic reasons, perhaps in this case to be seen to be acting on climate change. They stress that once the tipping point is reached it becomes the benchmark through which actions are evaluated and justified.

Civil society actors are celebrating long-term climate governance frameworks (with a certain level of ambition) as ‘Paris Compatible’ and therefore in line with international law. Whilst it is clear that long-term climate laws play a critical function by putting a legal duty on States to manage the transition to a low GhG economy, as we have seen it depends on how the State choose to interpret net-zero. Even if all States adopted the net-zero target (and met it) it may not necessarily mean that warming stays below 2 degrees. Indeed, civil society groups are advocating that net-zero will need to be achieved earlier than 2050 to avoid the worst impacts of climate change and are placing increasing pressure on governments to accelerate action.

 

Principles into Practice: Protecting Offensive Beliefs in the Workplace – by Amir Paz-Fuchs

[Republished with permission from the UK Labour Law blog]

 

Over the past two decades, there has been a growing interest in the impact of human rights discourse on the employment relationship and employment rights. In particular, in light of the increased opportunity, or risk, of the public exposure of an individual’s life outside of work, more attention has been drawn to the implications of employees’ private life to their place of employment.

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Image by xuanklpt from Pixabay

For progressives, the interest in preserving and protecting one’s right to privacy happily overlapped, for many years, with the substantive actions that the demand for privacy protected. In other words, progressives were determined to stand by the claimants and, where relevant, criticise courts that did not do so, not only in the name of privacy, but also because we/they asserted that the claimants in question did nothing wrong to begin with. Thus, in Pay v Lancashire Probation Service, a probation officer was dismissed because of his involvement in a business venture that was connected to sado-masochistic activities. In X v Y, a gay man was cautioned and placed on the Sex Offenders Register after a policeman arrested him for engaging in sex with another man in a public toilet. In Saunders v Scottish National Camps, the employee’s homosexuality was deemed sufficient grounds for dismissal. In Crisp v Apple Retail UK Limited [2011] ET/1500258/11 an employee was dismissed after he posted a critical appraisal of the new iPhone. And in Mathewson v RB Wilson Dental Laboratory [1989] IRLR 512 EAT the employee was dismissed after being caught in possession of cannabis. In all those cases, the employers’ decisions were upheld by the courts, and these decisions were criticised for neglecting to respecting an employee’s right to privacy, which should be constructed in a way that would ‘protect individuals from employer domination’.

In all these cases, it would seem that the liberal, progressive intuition recoils not only from the conclusion that homosexuality and the private use of cannabis can be grounds for dismissal, but even that they should be the subject of severe moral condemnation.

I thought of these cases recently, following the aftermath of the football match between Manchester United and Manchester City, in which City fans were caught on camera racially abusing United players. The Football Association investigated, and a man was quickly arrested for racially aggravated public order. So far, so reasonable. But the story took a peculiar turn, at least for me, when it was reported that the individual was identified as working for a construction company – Kier Company – which was quick to suspend him, citing the company’s ‘zero-tolerance policy towards any racist and discriminatory behaviour’.

It is here where I became slightly uncomfortable. And perhaps it is worth saying that my discomfort is, in no way, meant to minimise the, quite frankly, terrible times we are currently facing in this country. I could not agree more with the charge that the way politicians, including the Prime Minister, address the issue of migration, fuels this hateful vitriol.

But, those politics notwithstanding, the pertinent question is: should such behaviour, which occurred, of course, outside the workplace, have employment ramifications? Two of the main arguments that favoured the claimants in earlier cases – privacy and freedom of speech – clearly apply here as well. If we (as progressives) are to be taken seriously about our principled claims, i.e. that human rights should apply in the workplace even when the employer does not hold the same progressive values, we should be ready to bite the bullet and apply the same principle when those acts are offensive, and are clearly such that we (as a society) wish did not exist.

This position, simple as it may sound, must confront several objections. First, it is argued that we want to allow employees who express racist views, and hate speech in general, to be dismissed because we want to eradicate those expressions in society. ‘Society’ does not tolerate those views in this day and age. However, this view falls into a couple of familiar traps. First, the historical one: LGBT employees, and those with questionable morals (like the adulterous employee who lost her job for that reason in Spiller v Wallis) suffered from their divergence from public norms at the time, in a way we (justifiably) scoff at now. Of course, we feel that racism and homophobia are different, and that they truly should be eradicated, but some humility should guide us to assess the historical analogies. Second, there is the utilitarian argument: do we really think that sanctioning, shaming and publicly ostracising such behaviour would facilitate its eradication? There is a strong argument to suggest that it would only lead individuals harbouring those inclinations to go underground, feel victimised and even, at times, start wearing their foul opinions as badges of pride. There are examples for all of the above. This, in other words, is the argument that has at its axis the free speech of employees, and finds its justifications in the rationales of free speech in general. And yet, the workplace is a unique micro-cosmos, where people are forced to interact on a daily basis, and where concepts such as (industrial) democracy and (managerial) prerogative are deployed by way of analogy to the relationship between citizens and governments. And yet, those are still analogies, and the different context should be acknowledged.

So if we are to contextualise further, we find that there is a more sophisticated counter-argument to the one just discussed. That is, instead of focusing on public morals and public norms, one can place the centre of gravity on the employer’s values, as expressed by Kier Co (‘zero tolerance policy towards any racist and discriminatory behaviour’). Surely we cannot bar an employer from advancing such a laudable policy in her own workplace? I was considering this issue when a case just published – Forstater v CGD Europe – generated plenty of heat.

In this case, a public policy researcher who had a consultancy agreement with a not-for-profit think tank claimed that the respondent refused to renew her contract because of comments she had made on Twitter, etc expressing her beliefs about trans issues. The tribunal’s decision was limited to the preliminary question of whether the claimant’s beliefs qualified for protection under the Equality Act 2010 section 10(2) as any religious or philosophical belief in accordance with the Grainger criteria (which, in turn, relied on the ECtHR case of Campbell and Cosans v UK, which concerned corporal punishment. In particular, the tribunal found that the claimant’s belief faltered on the fifth, and final, criterion, namely: a belief that ‘must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others’. The tribunal did not consider in this preliminary hearing any question of unfair dismissal or the application of the Human Rights Act 1998 (including the rights to privacy and freedom of expression, although the latter was mentioned in brief [74]).

Why did the tribunal find that Forstater’s views are incompatible with human dignity and the rights of others? Probably the most problematic of those beliefs, from the tribunal’s point of view, is the claimant’s (factually incorrect) assertion that there are only two sexes in nature – men and women, along with the position that, from the claimant’s point of view, a person cannot transition from one sex to another [84-85]. The tribunal emphasised, at some length, the fact that the first position is scientifically misguided, and the second is legally mistaken. While it is true that the claimant was, in fact, mistaken on both counts, it is not clear how these mistakes affect her power to hold those beliefs.

Starting with the latter – a person is perfectly entitled to dispute any position taken by the legal system at any time. In fact, many academics have made a career, and scores of activists made history, by doing so. It is true that British law recognises a person’s right to transition and gain a Gender Recognition Certificate. The claimant recognised the legal state of affairs but held that this was a ‘legal fiction’ because a man can never truly become a woman, and vice versa [84]. This, perhaps, is an immoral belief, but it is not undermined by the fact that it contests the current state of affairs. One can think, for example, of (radical, for the time) 18th century advocates for women’s rights who argued that a man’s ownership over a woman is ‘legal fiction’, whilst still acknowledging the practical consequences of that fiction.

And as for the former, clearly the factual veracity of a position is not a precondition for its protection, or else no religion would overcome such an obstacle. And whilst we’re analogising ‘religion’ and ‘belief’, shouldn’t we pause to consider how the fifth criterion, on which the claimant’s belief failed (in a manner that it is controversial in itself), should have barred any of the three major, monotheist religions from protection? In other words, it would seem that as a belief (as opposed to a manifestation of a belief – more on that below) – the claimant failed in her quest for protection because she grounded her positions in her understanding of feminism and the protection of women and girls. However, if she were to ground her position in the tenets of a major religion (e.g. Christianity or Judaism) – it would have been very clear that the religion itself would be covered by the scope of the Equality Act. This distinction between political (or ideological) beliefs and religious beliefs seems, indeed, arbitrary. The question would then turn to the manifestationof the belief. This, I would argue, should have been the focal point of the tribunal’s analysis here as well. Alas, no such discussion is apparent.

Indeed, while the tribunal offers a detailed account of letters and tweets by the claimant, there is not even one occasion in which the claimant’s beliefs are asserted to have targeted a colleague in the workplace. For example, she repeated the need to be polite to others, including referring to all people using the pronouns they prefer; and argued for a ‘broader national conversation about how to reconcile the welfare of people who seek treatment for gender dysphoria and the basic human rights of women and girls’. In other words, this is an occasion where the right to privacy and the right to freedom of speech should have been front and centre to the analysis. And yet, the latter is only mentioned, and its impact is not assessed; whereas the former isn’t even mentioned. Moreover, I would argue that the right to privacy (in this sense – the separation of work from life outside of work) is the more important of the two.

Thus, I believe that the court in Smith v Trafford Housing Trust was absolutely right to conclude that the employer wrongly demoted a housing manager who posted on his Facebook wall a post in opposition to gay marriage. Crucially, Briggs J focused on the fact that the post could not be attributed to the manager’s employer, that he used moderate language and never offended any employee in their interaction with them. Pace Paul Wragg, I don’t find this analysis to be ‘intellectually unsatisfying’ in the least. Quite the contrary. It would be quite problematic for an employer to ignore, in the name of free speech, hate speech of one employee towards another. Indeed, just as acts that may be classified as hate speech can and should be addressed by the state, and prosecuted accordingly (see the very recent ECtHR case of Beizaras and Levickas v Lithuania, with thanks to Virginia Mantouvalou for the reference), it would seem implausible for an employer to ignore similar speech if it happens within the workplace, leading other employees to feel unsafe, and justifiably so. But if such speech happens outside the workplace, it is the preserve of the government to act against those individuals.

Returning to the case at hand: if an employee, such a Forstater, suffers a detriment for actions that happened outside the workplace, the only conclusion that one can reach is that she is sanctioned for her beliefs, and not for the manifestation of those beliefs. To repeat, the claimant asserted that she ‘would of course respect anyone’s self-definition of their gender identity in any social and professional context’. And no examples were given that she behaved differently.Similarly, to close circle on the case of the Manchester derby – whilst it could be that the City fan does harbour racist beliefs, his employer gave no indication that those beliefs were manifested in the work environment.

Sanctioning someone for their beliefs is a dangerous road to follow. I have consistently taught my students that there are very few absolute rights, of which the ‘right to freedom of thought’ is one (a position accepted by the Equality and Human Rights Commission). An employer has a right, indeed a duty, to protect the work environment, to enhance inclusivity and tolerance, and make sure that all are felt welcome. When realising that some workers are (surprise, surprise) impacted by the relentless torrent of hateful narratives coming from the tabloid press and the highest political echelons, but do not act on them in a way that affects others in the workplace, employers should not respond by removing such workers from employment and into victimhood. The authoritarian control of employers, which John Gardner and Hugh Collins recently alluded to, is wide enough within the workplace, and should not extend to ‘thought control’. And as Collins and Virginia Mantouvalou wrote, apropos Redfearn v UK, ‘a democracy cannot eliminate obnoxious views by permitting the imposition of economic hardship through dismissal’. Instead, employers should have the courage of their convictions, opt for opening the discussion, through training and dialogue. That is where their social responsibility lies and so, I would argue, is where the law should be.

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Amir Paz-Fuchs is Professor of Law and Social Justice at the University of Sussex, where he teaches Employment Law and is Director of Sussex Clinical Legal Education.

 

 

(Suggested citation: ‘A Paz-Fuchs, ‘Principles into Practice: Protecting Offensive Beliefs in the Workplace,’ UK Labour Law Blog, 12 February 2020, available at https://wordpress.com/view/uklabourlawblog.com).

The Istanbul Convention and Its Standalone Right to be Free from Violence: Feminising the Subject of Rights?

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In this post Dr Gizem Guney (Doctoral Tutor in Law and Sociology at the University of Sussex, and recent PhD graduate) analyses the Istanbul Convention, with a specific focus on its recognition of the ‘right to be free from gender-based violence’ as an independent and standalone human right. Examining the potential implications of this approach within the women’s rights framework, she questions whether this could be a step forward to reconstruct the male subject of rights.

 

The Istanbul Convention in Context

We have left behind 2019 with a worrisome level of gender-based violence against women (VAW) across Europe, alongside the evident failure of domestic laws to address the problem efficiently. The Council of Europe Istanbul Convention remains the most prominent legal tool to address VAW in Europe, as the first legally-binding treaty specifically devoted to all forms of VAW (and domestic violence) within the European human rights framework.

Although the Istanbul Convention entered into force only five years ago, it has already been acceded to by a high number of Council of Europe member states (at the time of writing, 45 signed and 34 ratified). With this high rate of accession to the Convention, one could claim that the Istanbul Convention has proved its potential for reconstructing gender policies across Europe.

At this point, it is noteworthy to underline that the UK is one of the countries which has not yet ratified the Istanbul Convention. Although the Convention was signed in 2012, and the former SNP MP Eilidh Whiteford’s Bill, which requires the Secretary of State to produce an annual report each year setting out the steps to ratify the Convention, passed in 2017, legal reforms are still needed to align UK laws with the Convention. One provision of the Convention (Article 44), which obliges states to prosecute criminal conduct even when that conduct is committed outside their territory (extra-territorial jurisdiction), has been particularly contentious in the UK context.

The Domestic Abuse Bill, which aimed to close the normative gap in UK law with regards to the Istanbul Convention (including extra-territorial jurisdiction) fell due to the prorogation of the parliament last year. Despite campaigners emphasising the pivotal nature of the Bill and Boris Johnson’s promise to bring it back, considering the current ambiguity around European laws in the context of Brexit, there is enough reason to not hold one’s breath for the resurrection of this Bill in near future.

Nevertheless, the potential of the Convention is worthy of discussion, particularly its recognition of VAW as an independent human rights violation. The rest of the article focuses on this.

The Istanbul Convention’s Recognition of VAW as an Independent Human Rights Violation

There are many firsts that the Istanbul Convention achieves, at least in theory, yet its practical success remains to be seen. In this article, I explore particularly Article 3(a) of the Convention, which defines all forms of VAW and domestic violence as both a form of ‘discrimination’ against women and a ‘human rights violation’. In doing this, the main focus is on the potential implications of defining VAW as a ‘human rights violation’, together with a brief commentary on the Convention’s approach to ‘discrimination’.

Starting with the discrimination aspect, the Convention identifies VAW as a form of discrimination against women on the grounds that VAW is a manifestation of historically unequal power relations between women and men, and therefore a structural problem. What is striking here is that the Convention brings this discrimination reading without any need for proof, such as the unequal treatment of women before the law or the evidence of women being disproportionately violated.

This is not the first time that the discriminatory nature of VAW has been established within the structures of human rights law. In its 1992 General Recommendation 19 the monitoring body of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) made the link between inequality and VAW, and consequently found the violation of CEDAW in VAW and domestic violence cases, although CEDAW originally did not make any reference to VAW.[1] Similarly, and for the first time, the European Court of Human Rights (ECtHR) found the violation of Article 14 of the European Convention on Human Rights (prohibiting discrimination) in the landmark 2009 domestic violence case of Opuz v Turkey.[2] The discrimination approach of the Istanbul Convention towards VAW is therefore not novel, but essential in the sense that the discriminatory nature of VAW is being confirmed for the first time in a ‘legally-binding instrument’ in Europe.

I would like to focus in particular on the implications of the Convention in its confirmation of VAW as an independent human rights violation. VAW had previously been found by other human rights bodies to have led to the violation of numerous rights such as the right to life, the right to be free from torture, the right to privacy and so on. This was mainly due to the normative gap in the human rights treaties regarding VAW, namely the lack of a VAW provision in human rights instruments. VAW incidents therefore had to be handled under these gender-neutral human rights.

At this point, we should remind ourselves of the well-established feminist critique arguing that, under the disguise of gender-neutrality, rights are actually gendered. It is not possible to cover the critique in detail here, but it is necessary to establish that:

  • Liberally constructed (gender-neutral) rights exclude women’s gendered problems in their origin and prioritise male interests.
  • In other words, rights are constructed only with the imagination of men as right-holders, and with the aim to address men’s common concerns.
  • Rights are constructed to a male standard and therefore the subject of rights is men.

The Istanbul Convention defines VAW as a human rights violation in itself, in its very own nature, without leaving VAW having to fit in other (gender-neutral) rights categories. VAW had been previously identified as an independent human rights violation in the Organization of American States, via the 1994 Convention of Belem do Para, the first regional treaty that specifically handled VAW. However, the Istanbul Convention is the first legally-binding treaty carrying this onto the European context.

It is important to mention that the journey to this confirmation in the Convention was not an easy one. In the drafting process, some delegations insisted that violence against women merely formed an obstacle for women to fully realise their human rights, instead of being an explicit human rights violation in itself. For example, the United Kingdom suggested the removal of Article 3(a) of the draft Convention, which categorised violence against women as a human rights violation. It proposed this article be replaced with the statement that ‘[v]iolence against women constitutes a serious obstacle for women’s enjoyment of human rights’. This proposal was heavily criticized by Amnesty International in its report, ‘Time to Take a Stand’, which opposed these amendments on the grounds that they could potentially weaken the effect of the Convention.

Deconstructing the ‘Male’ Subjects of Rights?

The questions to be asked then are:

  • Why is this identification of VAW as an independent human rights violation important?
  • What is the message given by the drafters of the Istanbul Convention by this?
  • And, what are the potential implications of this approach in practice?

This outright recognition of the standalone ‘right to be free from VAW’, besides its symbolic value, leads to important legal implications. As the previous president of the monitoring body of the Convention, GREVIO (Group of Experts on Action against Violence against Women and Domestic Violence), said to me in an interview, this recognition means that the ECtHR and other human rights law bodies are likely to take the issue of VAW more seriously.[3] The Convention does not leave any room for dispute as to whether VAW is a human rights violation.

This confirmation also allows victims to invoke states’ responsibility to prevent, investigate, and prosecute gender-based violence on stronger and more secure grounds. Recognising the issue as a violation under international law narrows states’ freedom to determine the manner in which they handle VAW within their jurisdictions. It therefore impedes states’ tolerance of the phenomenon, i.e. a failure to address it on effective and appropriate grounds.

As Paulina García-Del Moral and Megan Alexandra Dersnah state, ‘[t]hough the power to enforce those rights lies with the state, the ability to claim rights still has legitimising functions’. As a result of deeming VAW a human rights violation, and thus transforming the language of politics, women have a stronger hand when seeking protection against such violence, which is ‘less about whether or not states will immediately comply with the decisions of institutions (but) more about the extension of what women can demand’.

Looking at the issue from a theoretical point of view, the recognition of VAW as an explicit form of human rights violation strongly challenges the male standard of liberally constructed rights. In fact, by recognising the unique harm that results from gender-based violence (which disproportionately affects women) as a wrong in itself, the Istanbul Convention reveals a shift towards an approach whereby women’s gendered problems are handled in explicit terms, and are not left to be addressed under rights which were drawn in a gender-neutral sense, but ultimately promote male interests. This serves the feminist aim of deconstruction of the male standard within law.

This declaration of the Istanbul Convention does not impede other human rights law bodies, like the ECtHR, from addressing domestic violence cases by reference to other violations of rights contained in the instruments that they supervise, such as the right to be free from torture or ill-treatment, the right to privacy or the right to life. On the contrary, it will strengthen the grounds on which to find these violations. However, to recognise VAW as a human rights violation in itself, within a legally-binding treaty, demonstrates that the human rights law framework has finally reached a point whereby a gendered problem against women is directly integrated into the scope of human rights violations. This is a departure, in terms of the subject of rights, from a male to a female standard.

Concluding Remarks

It is perhaps too early to make conceptual and assertive evaluations on such a young instrument as the Istanbul Convention. Over time, the extent to which the Istanbul Convention will have affected state policies and laws, as well as international human rights responses to VAW, will be more visible and measurable. Undoubtedly, the ongoing state report mechanism, which is supervised by GREVIO, will help clarify the picture. It can, however, still be argued that the Convention has the potential, not only to lead states making necessary legal reforms regarding VAW, but also to deconstruct and redefine the gendered foundations of human rights, which have long subordinated women.

[1] In the context of domestic violence cases, see AT v Hungary (CEDAW Committee, 26 January 2005) Com No 2/2003, UN Doc A/60/38 (2005); Goekce v Austria (CEDAW Committee, 2005) Com No 5/2005, UN Doc CEDAW/C/39/D/5/2005 (2007); Yıldırım v Austria (CEDAW Committee, 2005) Com No 6/2005, UN Doc CEDAW/C/39/D/6/2005 (2007); VK v Bulgaria (CEDAW Committee, 2011) Com No 20/2008 UN Doc CEDAW/C/49/D/20/2008 (2011); Isatou Jallow v Bulgaria (CEDAW Committee, 2012) Com No 32/2011 UN Doc CEDAW/C/52/D/32/2011 (2012); Angela González Carreño v Spain (CEDAW Committee, 2014) Com No 47/2012 UN Doc CEDAW/C/58/D/47/2012 (2014).

[2] Opuz v Turkey App no 33401/02 (ECtHR, 9 June 2009).

[3] Interview with Feride Acar, then President of Group of Experts on Action against Violence against Women and Domestic Violence and Retired Professor of the Faculty of Economic and Administrative Sciences in METU (Ankara, Turkey, 18 January 2017).

 

The politics of evidence: ‘Doing nothing’ about LGBT health inequities by the WHO

Po-Han Lee

In this post Dr Po-Han Lee (Doctoral Tutor in Sociology and Law at the University of Sussex) summarises key findings from his recently completed PhD in Sociology, which examines international inaction in the face of the health disparities of sexual and gender minorities.

 

How is ‘nothing’ produced and justified, and how is it functioning? Here, I will take a multilateral debate in the World Health Organisation (WHO) over the issues regarding health inequities experienced by sexual and gender minorities (SGMs) as an example.[1]

On request by the US and Thailand, the WHO Secretariat produced a report on LGBT health in May 2013 for the Executive Board (EB) – the organ authorised by the WHO Constitution to adopt policy agenda for the WHO governing bodies especially the annual World Health Assemblies. That was the very first time that the LGBT health issue had been put on the table in the WHO governing body. The debate was an intense one, lasting more than six hours, and in the end, the agenda item was removed from the final agenda, and kept only as a footnote. In May 2015, the footnote was deleted for good, and after that, an interstate informal consultation was pursued by Colombia.[2] However, the working group failed to achieve any consensus either. Since then, the topic has never been brought up again.

Geographically, the WHO divides the world into six regions – each has its own governing body and a committee with regard to health affairs on the regional level. The degree of development of LGBT health issues varies across different regions. The Pan American Health Organisation is the most active one; it has recognised sexual orientation as a social determinant of health (Res. CD50.R8). It adopted another resolution (CD52.R6) addressing the causes of LGBT health disparities in October 2013 after the discussion in the EB was suspended. In the Regional Committee for Europe, it was discussed in the context of the Health 2020 policy framework. LGBT populations are referenced only in relation to HIV/AIDS response and prevention by the Regional Committees for the Western Pacific and for South-East Asia. In the Regional Committees for the Eastern Mediterranean and for Africa, nothing is mentioned at all.

At the debate between members of the Executive Board in 2013, the reasons for removing the agenda item included:

  1. a lack of capacity for the WHO to address politically sensitive human rights issues, which had been addressed by the UN human rights bodies;
  2. a lack of consensus between states on what health issues should be prioritised;
  3. a lack of a universally agreed definition of affected communities, ‘LGBT people’ in this case; and,
  4. a lack of evidence regarding the existence of the health inequities in question.

In those meetings, member states employed many human rights notions, but eventually they decided that the WHO should step away from other human rights concerns, as if the right-to-health issues could be addressed in isolation. This suggests that these states were not committed to the so-called human rights-based approach to global health governance, although they had spoken a great deal in the language of human rights.

Can no-evidence say anything?

The WHO member states involved in the debate in the end made an unusual decision, which was to ‘do nothing’ about the health disparities experienced by SGMs. That decision is particularly relevant to the power of official and expert discourses regarding knowledge production in health research. That is, the inaction was taken and justified based on the fact that the epidemiological science had not proven the existence of SGM health inequities yet.

Among those ‘lacks’ mentioned above, I will focus on the assertion of lacking evidence. In this regard, in terms of theoretical and methodological approaches, the sociological interrogations concerning ‘absence’ and ‘ignorance’ would be useful; they have critically identified the symbolic meanings of non-existence and non-knowledge as well as the socio-political organising and functioning of such. Deconstructing the notion that ‘we don’t have enough proof’ enables us to argue that what ‘no evidence’ shows is no less than what evidence does.

On the one hand, it is that ‘queer trouble’ makes a comprehensive survey concerning the health of SGMs almost impossible. Out of the different understandings regarding sexuality and gender between health and social scientists, it is very difficult to define SGM populations across societies. In short, there are too many ways of naming queer people due to their diverse locationalities considering the dominant culture of the place where they live. This conceptual difficulty informs us that, on the one hand, the social determinants of health may be universal, but are context-sensitive as applied, and on the other, related studies are hardly achievable without generalising the population under research. Even the researchers themselves would have to acknowledge this partiality in the research process.

It is true that SGM health is far from simply a scientific question, especially if we consider the situations in which SGM members are afraid to see a doctor and face persecution, let alone voluntarily accepting to be studied. This has exposed the limits of evidence-based public health when the target populations are hard to define, and even harder to reach in many societies. That is to say, the nexus between the lack of evidence and the lack of definition of queer populations seems inextricable.

Yet, what counts as ‘evidence’?

Yet, it would also be irresponsible to simply blame the lack of evidence on ‘queer trouble’. The real problem in regard to the underrepresentation of queer communities and the misinterpretation of their health information should be uncovered. Here, I am arguing that, other than the troubling definition of queer people, the intended ignorance – due to non-recognition (omissive) and misrecognition (commissive) of SGM communities and hence non-production of knowledge concerning their health – plays a greater role in reinforcing the social and health injustices against them. That is to ask: What counts as evidence? Could it be that the lack of evidence manifests the evidence of health inequity? Namely, the socially constructed ignorance can be seen as the evidence of health injustice. Therefore, it is important to know how not-knowing functions.

In the absence of knowledge that meets professional standards, we shall consider the knowledge coming from local communities. The selection process of and resource allocation with regard to conducting health research may result in the invisibility of the non-recognised and the misrecognised. For example, a Bangladeshi activist stated at the International Lesbian, Gay, Bisexual, Trans and Intersex Association’s Asian Regional Conference (ILGA-Asia) of 2015: ‘Health issues of hijra are always related to social discrimination. We are often denied access to seeing a doctor.’ A Thai transman activist expressed concerns about health professionals’ insensitivity: ‘Most trans health information is accessible only to transwomen…doctors just don’t know what to do with us and our health issues’.[3]

These narratives are rarely documented and used as evidence for health inequity, but they call on us to rethink the absence of evidence in certain places, as reported by the Bangladeshi and Thai governments, for instance. In this light, the tolerance of no-evidence itself could be a form of state-sponsored health inequity. Where there is ‘evidence’, it can be misrepresented in a biased manner. Indeed, the powerless position of queer people is both the cause and the result of the misinterpretation of health data – mainly by governments and mass media.

Local queer activists are ambivalent about the efforts towards making social injustices against SGMs a health issue, while they have suffered a lot from being over-medicalised subjects. This ambivalence is quite salient in Asian societies. At the 2015 ILGA-Asia Conference, an activist from the Philippines stated that: ‘The news about our poor lives attracts audiences for sensational stories’, as if ‘we are ill for being sexually active and self-indulgent’. And, according to a Nepalese activist: ‘The information can be quoted out of context’, when people only read that ‘international studies say we are less healthy’.

Conclusion: Health is political!

After all, do states really presume that there will be ‘enough-ness’ of evidence? Can health inequity research be capable of establishing the causation between any social determinant and one’s health outcome? If not, what do national delegates mean? Observing the debates in the WHO and elsewhere, what certain national governments have been doing is to avoid – by not making anything happen – a potential formulation of future international pressure through global health policymaking and its normative discourse.

Through deconstructing the discourse of a ‘lack of evidence’, we can thus identify the socio-political functions of ignorance and ignoring. That is, they did nothing, not because they didn’t understand and care. Quite on the contrary, it was because they cared and knew too well that health is always political, and yet, it is not just the politics concerning knowledge production and media representation; it is also international politics.

 

[1] In my research, I tend to use the term ‘SGM’ to encompass not only people who identify as lesbian, gay, bisexual and transgender (LGBT) but also those whose sexual practices or gender expressions are considered bad/immoral/abnormal in varied historical and sociocultural contexts. So, SGM and LGBT should not be used interchangeably.

[2] For more information, see the meeting records of the 139th session of EB in 2016, pp. 3-5.

[3] These are my notes taken at the meetings of the sixth ILGA-Asia Regional Conference, held on 28-30 October 2015 in Taipei.

Manifestos of nature – what the parties are saying about biodiversity

Joanna

In this post Dr Joanna Miller Smallwood (ESRC/SENSS Post Doctoral Research Fellow at Sussex Law School) discusses how the Labour, Conservative, Lib Dem and Green manifestos for the upcoming general election propose to tackle issues around biodiversity through law and policy.

We are living in a period of mass extinction more catastrophic than any other including the mass extinction period of the dinosaurs. Recent global reports show that 1 in 10 animals and plants will be extinct by 2050, and the loss of species is faster than ever. In the UK, the State of the Nature report 2019 finds that terrestrial and freshwater species have declined by 13% since 1970. This loss is not a natural phenomenon, it is human led. Society is waking up to this fundamental issue, with the help of key media personalities such as David Attenborough and rising social movements such as Extinction Rebellion. All party leaders apart from Boris Johnson took part in a recent televised debate on the approaches of their parties to tackle climate change. This televised debate also touched upon biodiversity related issues, which is promising as biodiversity often plays the underdog to debates on climate change, despite that fact that biodiversity loss is of at least equal importance in terms of planetary health. The loss of biodiversity (alongside climate change) should be at the top of any party political manifesto, these environmental issues really do trump Brexit and other societal concerns, for the simple fact that if our planetary ecosystems fail then none of the other issues will matter anyway as we may in fact cause our own extinction.

The good news is that more than ever, party manifestos for the 2019 general election are addressing key environmental issues. Not only are approaches outlined, but laws and policies are being put forward and funding promised for biodiversity in the manifestos themselves:

  • The Conservatives pledge £640 million for a new nature and climate fund;
  • Labour promise to launch a £250 billion green transformation fund;
  • the Liberal Democrats pledge to increase government expenditure to 5% of the total government expenditure within 5 years;
  • and the Greens undertake to reform the tax system to fund a green revolution.

Finally, environmental issues in the UK are receiving more focused political attention. This blogpost critically reviews the different approaches taken by the parties in relation to tree planting, nature conservation, biodiversity in agriculture, and  it highlights some transformational ideas as well as those which are fundamentally flawed.

Trees

Much has been made of party pledges to plant trees:

  • In their manifesto, the Greens promise planting 700 million trees by 2030 (an average of 70 million a year).
  • The Conservatives promise to raise the number of trees planted to 30 million trees a year by 2024 and the creation of a Great Northumberland forest of 75,000 acres by the end of next parliament.
  • Labour commits to an unquantified ‘ambitious programme’ of tree planting and an NHS forest of 1 million trees in their manifesto and Corbyn recently made an announcement committing Labour to plant two billion by 2040 (100 million a year).
  • The Liberal Democrats promise in their manifesto to raise the number of trees planted to 60 million trees a year by 2024.

If planting trees were the answer to biodiversity loss then it would be relatively clear who has the strongest party manifesto with the ranking from top to bottom being Labour, Greens, Liberal Democrats then Conservatives.

However, the focus on tree planting is problematic for two reasons:

  1. Firstly the amount of trees suggested is highly ambitious and currently much lower targets are left unmet, recent figures show tree planting is 71% short of government targets in the UK.
    This raises doubts whether the party commitments to ever increasing numbers of trees is realistic without systematic change to support these ambitious programmes.
  2. Secondly, despite the huge benefits of tree planting both as carbon sinks and for creating forest ecosystems, planting trees alone will not fully address the biodiversity crisis we are experiencing.
    This is largely because forests are only one of many important types of ecosystem and only focusing on planting trees does not address the main drivers of biodiversity loss. According to the State of the Nature 2019 report, in the UK, the main drivers of biodiversity loss are agricultural management, climate change, hydrological change, urbanisation, pollution, woodland management and invasive non-native species. The causes of biodiversity loss are therefore multiple and complex, and they demand more than tree planting alone and any tree planting that does take place has to be carefully thought out.

Nature

The most obvious solution that springs to mind when considering biodiversity loss is its antithesis, nature conservation. How can nature be conserved, restored and enhanced?

Each party have made broad promises in their manifestos in relation to nature conservation. The Greens’ ‘Green New Deal’ pledges to make space for nature, create policies to restore habitats in urban, suburban and countryside environments and uphold access to diverse nature as a human right. Recognising access to a healthy biodiverse environment as a fundamental human right is a ground-breaking but incredibly sensible rights-based approach to secure more protection to biodiversity. It opens numerous avenues to provide much greater legal protection for biodiversity and nature through the provision of potential legal actions for infringements of this right.

The Greens also aim to create a tryptic of environmental legislation: an Ecocide act (providing for crimes against the natural environment), a Clean Air Act (with ambitious binding emissions targets) and a Sustainable Economy Act (with binding targets for soil quality and biodiversity).

It is envisaged that these legal environmental obligations will be monitored and enforced through a new Environmental Protection Commission. Providing such a means of accountability is vital for the success of the laws introduced. Unsurprisingly the Greens have a strong and comprehensive well thought out environmental programme which addresses biodiversity loss. Key to the Green approach is not only the inclusion of a human right to nature and environmental laws but also a means to enforce compliance. In the UK, conservation legislation is often difficult to enforce due to vague provisions and insufficient funding of regulatory bodies to monitor compliance and to bring non-compliance cases to court. Equally important to the creation of clear environmental laws are well funded independent bodies, that can enforce legal provisions and, in this way, bring real meaning to them.

Labour heralds a ‘green industrial revolution’ not only by creating a million green jobs but by restoring nature. Labour promises a Plan for Nature that sets concrete legally binding targets to drive restoration of species and habitats, this is good news.

Furthermore, they promise to fully fund the Environment Agency which is the existing body that regulates environmental issues from flooding to air quality as well as bringing prosecutions. Labour pledge to increase funding to Department for Environment, Food and Rural Affairs (DEFRA) agencies by a combined annual total of £70m with a significant amount going to the Environment Agency (EA) and over half to Natural England (NE) to expand their role in monitoring and evaluation of the natural environment. These expanded roles for the EA and NE are key to incentivise businesses and other stakeholders to change behaviours so that the new species and habitat restoration targets can be met.

Labour also pledges to create an environmental tribunal to ensure that administrative decisions are consistent with environmental and nature-recovery obligations, this is a real positive step forward and would hold government departments accountable for their impact on nature. Labour provide a robust approach to nature conservation; their approach moves beyond solely laws and policies outlining binding obligations, but addresses means of monitoring and enforcement and therefore accountability to nature within decision making of the sectors that drive biodiversity loss as well as across government.

The Conservatives promote the Draft Environment (Principles and Governance) Bill 2018 (the Environment Bill) which is currently awaiting parliamentary approval depending on the outcome of the election. It has received a mixed response with positive feedback in that it increases ambition in relation to nature recovery, it also adopts a principle based approach where principles such as the precautionary principle will be applied by Ministers of the Crown in making, developing and revising their policies. It is yet not clear exactly how this principle based approach will be applied and work in practice.

The Environment Bill has also been criticised as it does not include definite binding targets or a statutory duty on ministers to create such targets. Without any backbone to the law that places a clear duty on ministers, it could be a token nod to the creation of targets and a principle-based approach and this is very concerning.

The Conservatives propose to set up an Office for Environmental Protection (OEP), an independent body to provide scrutiny and advice on environmental law as well as having enforcement functions which is positive and the OEP would promote the new provisions within the Environment Bill. there are concerns the body is too closely linked to DEFRA in terms of funding and accountability which raises some concern about its independence.  Further, if the provisions laid out in the Environment Bill are too vague then enforcement of them will be difficult in practice.

The Liberal Democrats promise a Nature Act to set legally binding near term and long-term targets for improving water, air, soil and biodiversity and guaranteeing an Office of Environmental Protection (OEP). They promise the independence of the OEP and powers and funding to enforce compliance.

They also provide for structural changes within government including establishing a Department for Climate Change and Natural Resources. As well as the appointment of a cabinet-level Chief Secretary for Sustainability in the Treasury – this is a promising suggestion as it begins to promote the ‘mainstreaming’ of environmental issues across government departments which is key to addressing the underlying drivers of biodiversity loss.

The Liberal Democrats’ proposals for nature also provide a dedicated department for natural resources. Whilst a step forward, more important than dealing with ‘nature’ as an isolated issues is the mainstreaming of biodiversity across sectors, which is promoted at the global level by the 1992 Convention of Biological Diversity (CBD), the main global treaty on biodiversity. It is a fundamental approach that has been agreed by the CBDs 196 Member Stated and is a key approach that must be adopted by countries to avert the biodiversity crisis.

The Liberal Democrats’ proposal requires every government agency to account for its contribution towards meeting climate targets which is good – even better would be an extension of this to biodiversity targets although this is not in the current remit of the manifesto. Ensuring government departments such as agriculture, trade and industry address biodiversity begins to get to the heart of mainstreaming and accounting for their role in biodiversity loss.

The party manifestos all to a greater or lesser degree account for nature conservation within their manifestos. This is really positive and moves nature further up political agendas. However, nature conservation alone is not enough to tackle the biodiversity crisis. Political parties need to look further than solely nature conservation laws to effectively conserve, restore and enhance biodiversity. Biodiversity also needs to be mainstreamed across society and accounted for in policies and practices in relation to those sectors who drive biodiversity loss, the main one in the UK being agriculture. Legally binding targets will go some way to change behaviour, but it is key that nature conservation is also at the heart of decisions made by all sectors and incorporated into the relevant laws and policies. This is the greatest challenge and where efforts are most needed for change.

Agriculture

A recent report highlighted that the main driver of biodiversity loss in the UK is agricultural management. In the last 50 years the UK’s biodiversity has been destroyed through the intensification of agriculture. A recent DEFRA report on the abundance of birds on farms shows a 56% decline in the number of farmland birds nationally since 1970. Considering that 71% of UK land area is agricultural land this statistic is shocking. The way land is farmed in Britain is key for the restoration and enhancement of biodiversity and farming systems are needed that protect biodiversity rather than destroy it.

In their manifesto the Greens pledge to transform food and farming systems to improve human and environmental health by shifting away from intensive towards smaller-scale farming. The Green plan is for a ten-year transition to agro-ecological farming which includes the transfer of subsidies to farming methods and food systems that create jobs and restore ecosystem health. They promise to encourage the expansion and replanting of most hedgerows lost in the last 50 years through new subsidies. They will create laws to give farmers greater security of tenure to encourage investment in improvements to the land and to reduce pesticide and fungicide use by at least 50% by 2022, phase out all non-agricultural uses of pesticides, and immediately ban the most harmful substances.

They also talk of ‘encouraging’ the ‘rewilding’ of spaces through the planning system. They pledge to establish a Food and Agriculture Research Council to research sustainable and health-promoting farming, the reduction of methane emissions and soil quality. Their comprehensive approach tackles multiple practices which drive biodiversity loss and puts in place a system of farming that moves towards smaller scale farms, reduced pesticide use and planting hedgerows and other rewilding activities. This holistic approach to farming is likely to play a very positive role in not only stopping the ongoing decline in biodiversity driven by agricultural practices but transforming practices to restore and enhance biodiversity. The Greens’ revised subsidy system is planned to fund such changes.

Labour states in its Plan for Nature that it will support farmers to adapt and improve agricultural practices to reduce greenhouse gases and to change use of fertilisers and pesticides to benefit environment quality. They also pledge to consult to set appropriate targets for the reduced use of harmful pesticides and fungicides and adopt the precautionary principle in regulations. They will focus on supporting sustainable farming methods with less reliance on chemicals.

Labour pledge to maintain agricultural and rural structural funds but to repurpose them to support environmental land management and sustainable methods of food production. This talks to the elimination of subsidies and incentives which are harmful to biodiversity and promotion of positive incentives for the conservation and sustainable use of biodiversity. The Labour manifesto has many strengths including setting targets on pesticide use, supporting sustainable farming as well as reforming the subsidy system. The manifesto and Plan for Nature, however, provide little detail as to how this will be achieved and do not extend to rewilding activities on farms.

The Conservatives promote a change to the role of farmers to act as stewards of the natural world and pledge to guarantee the annual budget of farmers in return for farming in a way that protects and enhances the natural environment and safeguarding high standards of animal welfare. Their vision is to lead the world in quality food, agriculture and land management – driven by science-led, evidence-based policy. However, no detail is given on how this vision will be achieved and no laws or policies are put forward to implement these changes. There are no commitments made in relation to reduction in pesticide use, rewilding of farms or providing greater security of tenure to farmers.

The Liberal Democrats in their manifesto propose to reduce basic agricultural subsidies to larger recipients and redeploy the savings to support the public goods that come from effective land management, including restoring nature and protecting the countryside. They also pledge to support farmers to protect and restore the natural environment alongside other critical roles such as in producing food. They do not make any commitments to reduction in the use of pesticides. Their commitment to the redirection of subsides and commitment of money to nature restoration are positive. However, lack of any detail of how this will be achieved is concerning.

The political parties all envisage major changes to the way land is farmed in the UK with a focus on the farmer’s role in safeguarding and enhancing biodiversity, which is hugely positive.

However, concrete plans in the form of laws and policies and governance structures which outline how this ambitious level of change will take place are completely absent in the Conservative manifesto and lacking detail in the Liberal Democrat manifesto. The Greens provide the clearest plan of how biodiversity will be incorporated into a new agricultural system and promise laws to increase security of land tenure as well as pesticide reduction and bans, they aim to promote rewilding using the planning system and change subsidies to encourage the planting of hedgerows. Labour also have a comprehensive approach with the aim to set targets for pesticide use as well as the use subsides to promote environmental land management and sustainable farming.

Beyond nature conservation and agriculture

Nature conservation and the role of agriculture in protecting and enhancing biodiversity discussed in this blogpost are just two areas in which biodiversity needs to be addressed.

Other areas are also key to a comprehensive approach but cannot be covered here. Such areas include the importance of acknowledging the UK’s role in destruction of biodiversity overseas, either within British Overseas Territories or through trade deals. This is a crucial issue as most of the world’s biodiversity is held in the Global South and support and funding from the Global North are needed to protect vital biodiversity reserves.

Further, the role education can play in transforming societal ideologies are key to shaping a future society that respects biodiversity and the essential role it plays, and this will require great change in the way we all live and how society functions.

Things clearly must change, and political parties are beginning to recognise this. This gives some hope but is very much the tip of the iceberg, only when these commitments turn into concrete change through law and policy and strong systems of governance will the decimation we have caused to biodiversity begin to repair. Friends of the Earth and Greenpeace have produced comprehensive environmental assessments of the political parties manifestos and place the Greens and Labour as parties with the best score for environmental objectives with Liberal Democrats not far behind. They both agree that the Conservatives are very much at the bottom of the list.

Farming Through Brexit: How will leaving the EU affect farmers in and around the South Downs National Park?

photo of Helena Howe

Helena Howe

In this piece Dr Helena Howe (Lecturer in Law at the University of Sussex) gives snapshot findings from a pilot study of how the UK leaving the EU will affect Sussex farmers. In addition to outlining findings, Helena sets out potential policy implications of the research, as well as next steps for the project.

Initial snapshot of findings from pilot study

WHAT IS THE STUDY AND WHO IS INVOLVED?

In a way this project started in 2016, just after the vote to leave had been announced. I stood at the base of the Downs talking to a farmer who has worked hard to enhance the wildlife on the farm and is justly proud of his farmland bird populations. But his vision of the future was not a comfortable one. If food prices fell and financial support for farming reduced significantly, he feared being left with no choice but to squeeze every ounce of productivity out of the farm; thereby squeezing out the wildlife. A well-designed and funded system of support for farmers and land managers could do much to address the flaws in the existing approaches, buffer uncertain markets and foster sustainable food production in the UK. But the risks of getting it wrong were evident.

Withdrawal from the EU and the Common Agricultural Policy is likely to have significant impacts on farmers in the UK. The Department of Environment, Food and Rural Affairs (DEFRA) is currently developing the new regulatory framework for land management, including the proposed Environmental Land Management Scheme (ELMS) to deliver ‘public payment for public goods’, although there is ongoing uncertainty due to the election and Brexit process.

This is the first stage of a study following a dozen farmers in and around the South Downs National Park until 2024. The aim is to contribute an in-depth, regional exploration of farmers’ lived experience of farming as we leave the EU and their responses to the emerging post-Brexit law and policy.

The research began with this pilot study of six farmers in the Eastern South Downs. The farms involved differ in terms of output, approach and tenure. Four of the farms were described as conventional or commercial, one is organic dairy and another has sustainability firmly integrated with food production. There is a mix of owner-occupiers and tenants.

The farmers were interviewed during summer 2019 and asked for their views on:

  1. the impact of Brexit on their farm business, including the changes to existing payment schemes;
  2. whether the potential changes to their markets and the introduction of the Environmental Land Management Scheme (ELMS) were likely to alter the way they farm;
  3. features of the proposed ELMS and opportunities for participation in the process of development;
  4. any other issue they felt important.

 

WHAT ARE THE INITIAL FINDINGS?

1. Potential impact on the farm business

All the farmers felt uncertainty about the future. Several were extremely concerned about the financial viability of their farms post-Brexit given the lack of information on market conditions – particularly tariffs, food standards and distribution channels – as well as payment schemes. Most felt that without either higher food prices or substantial public good payments their farm business would be in a precarious financial position. One noted that their farms and other risked ‘going bankrupt wholesale’ (Farmer A). Most already relied on diversification to support the farm financially, although several questioned why the return on food production was so low as to make diversification necessary.

For most, removal of income support through Direct Payments and lack of detail around the new ELMS was a major concern. The majority felt that the loss of Direct Payments could be mitigated if payments for ‘public goods’ under the new ELMS were set at a suitably high level. However, most of the group acknowledged the problems with an area-based payment to landowners, particularly the impacts on land prices and rent. Several noted that the position was more challenging for tenant farmers than owner-occupied farms. Some also expressed concern for the new generation entering the sector.

Farming in this region was seen as a mixed blessing. Those who farmed in the South Downs National Park felt that this was a potential benefit under a system of payments for the provision of public goods. Several farmers were critical of the South Downs National Park Authority management of issues, particularly in relation to recreational access and planning.

2. Changes to farming focus and practice

For all but two of the farmers producing food was the priority. Two of the participants felt that food production was vital but more integrated with wider environmental and social goals. All the farmers were aware of the potential impact of their practices on the environment, both positive and negative. Several felt the degree of damage done by farming to the environment was mispresented.

The majority of participants appeared pragmatic about what they would produce and how they would manage their land and livestock in the future. As one farmer stated: ‘…if I need to change something because that’s where the money is, then that’s what I have to do’ (Farmer B). Decisions on what to produce and how they produced it would be largely determined by what was required by the market or any payment schemes. One spoke of willingness to produce wildlife if that was what became financially sensible. However, another was prepared to become more intensive if this was the only way to maintain the viability of the farm, against his personal preference. Another two felt they could accept a system in which conservation was integrated into food production but would not prioritise public goods over food.

The other two were less pragmatic. They felt that their commitment to broader principles of sustainability meant that they would not be willing to intensify if it meant seriously compromising these principles.

A recurring theme was that the costs of producing food were not adequately recognised or reflected in the prices consumers expect to pay. Several farmers noted that income support through Direct Payments to farmers worked to subsidize cheaper food. The loss of these payments and low returns on food mean farmers are being asked to absorb this cost unfairly; in effect being asked to produce public goods – in the form of cheap food – without this being acknowledged or paid for. They felt this was a major issue for them and for the future of the sector.

3. Initial responses to ELMS

There was enormous frustration at how inflexible and prescriptive the existing agri-environment schemes (AES) have been in setting and enforcing objectives. Many felt that there was insufficient account taken of farmers’ knowledge of their farm and that enforcement was unduly harsh.

All felt that to be successful the new scheme must address these issues. Recommendations included:

  • a move to a more outcome- based system: ‘so what they need to do is to put it in our hands and say … “you deliver this and we want to see results”’ (Farmer E);
  • greater flexibility to enable farmers to try different approaches without being penalised;
  • regional implementation and support for ‘sensible’, knowledgeable, local advisors to help co-design a plan for the farm and to monitor achievement.

For one famer the scheme was simply flawed because it focuses on environmental goods and ignores food production.

Four of the six farmers are part of the same farming cluster. Some found the experience useful for peer learning and social interaction but others seemed unsure as to their real value or purpose. The importance of having a good facilitator was mentioned by several participants. There was ambivalence about an enhanced role for clusters under the new ELMS system amongst this group. Some recognised that this could help to provide public goods at the landscape level but were concerned about how this could work in practice. Several farmers stated that everyone wants to do their own thing on their own farm and not be tied into a scheme with other farms.

All but one farmer felt that they had not been enabled to participate in the development of the new scheme sufficiently. Some felt that that their views had not been sought, save via online consultation or by bodies such as the National Farmers Union (NFU) and the Country Land and Business Association (CLA). But many also felt they had not been – or would not be – listened to. One farmer mentioned that the South Downs National Park Authority has played a role in feeding their views back to DEFRA. Several famers felt that clusters should be used to feed farmers’ views into policymaking.

4. Additional issues

Several participants highlighted the challenges facing younger entrants into farming, such as access to available land – on which to both farm and live – as well as comparatively low levels of pay. Some linked this to the wider issue of how to support thriving rural communities through planning and communications policies. Others mentioned the move towards plant-based diets. Some noted the vital role of cattle and sheep farming in maintaining the Downs landscape but others were trying out products for the growing vegan market.

One farmer emphasised the role of farming in mitigating environmental and social crises through innovative sustainable practices and opportunities to provide experiences that educate and enhance well-being. He wanted farmers, schools and policymakers to embrace and support this vision.

 

WHAT ARE THE POTENTIAL POLICY ASPECTS FOR THE STUDY TO EXPLORE?

  • The funding and design of ELMS is potentially key to maintaining both viability of farms in the region and integration of environment and food production. The research will explore ELMS’ capacity to support farms in the South Downs to produce food alongside public goods.
  • If farmers are pragmatic and adaptable there are opportunities and risks for sustainability. Financial and other support could promote a resilient, sustainable farming sector but insufficient funding, excessive bureaucracy or delays could do the reverse. The challenge is to ensure that farmers adapt to changes in ways that promote ecological sustainability rather than being resilient by intensifying their food production. The study will help understand what farmers feel is needed to enable sustainable adaptations in farming practice.
  • Changes in the delivery of advice, monitoring and enforcement are likely to be key to helping farmers adapt to more sustainable practices and make the most of public funding under ELMS. A shift in the balance towards useful advice and away from inspections could significantly improve farmers’ experience of regulation and motivation to engage. The study will explore the role of advice, what makes valuable advisors and how they can enable farmers to make innovative and beneficial use of a more flexible and reward-based scheme.

    The experience of these farmers validates DEFRA’s aim to enhance flexibility and reward outcomes through ELMS. The research will help evaluate how well farmers feel the developing schemes meet these goals.

  • A role for clusters in the administration of ELMS appears challenging. The study will capture members’ experience of participation and suggestions for working at landscape scale.
  • Policymakers could increase efforts around effective participation in the design of ELMS. This study aims to monitor farmers’ perceptions of this and provide another path for feedback.

 

WHAT NEXT?

Discussion is underway with key policymakers and stakeholders to ensure the study is as useful as possible. Additional recruitment of participants in the project is also taking place.

Please contact: h.r.howe@sussex.ac.uk for further information or to get involved.

‘Seeing What is Invisible in Plain Sight’: How Effective Is the New Law on Coercive Control?

Cassandra Wiener

 

[Originally published by the Howard Journal of Crime and Justice’s Policy Insights blog. Republished with permission]

 

In early 2013, Rob Titchener, a tall, dark and handsome dairy farmer, arrived in Ambridge and started an affair with Helen Archer. And so began the controversial story line of the usually staid and very popular BBC Radio Four drama, ‘The Archers’, that ‘gripped the UK’ for three and a half years. The portrayal of Rob’s torturous coercive and controlling persecution of Helen culminated in a thrilling Sunday night ‘special episode’ in September 2016, as the programme was extended to an hour for the first time in its 65 year history. The dramatic conclusion prompted a fund-raising campaign that raised over £200,000 for domestic abuse charities, and even lead to a supportive statement from the Prime Minister’s Office. Public awareness of ‘coercive control’ as a new way of framing domestic abuse added momentum to a successful campaign for legal reform run by a coalition of women’s groups. In the afternoon of January 20th 2015, then Attorney General Robert Buckland introduced a new clause on coercive control into the Serious Crime Bill, which was the government’s major crime bill of 2014 – 2015. The Attorney General’s introduction to the committee on that afternoon was appropriately rousing: ‘abuse is hidden behind the closed doors of far too many families. We must bring domestic abuse out into the open if we are to end it. The first step is to call it what it is: a crime of the worst kind’.

Activists and front line specialists in the domestic abuse sector have long bemoaned what they see as a ‘gap’ between rhetorical intent and operational reality. Despite the Attorney General’s best intentions, the new clause ended up quietly tucked away as section 76 in Part V of the Serious Crime Act 2015 under the heading ‘Protection of Children and Others’. The poor drafting of section 76 is typical of the gap – relegating domestic abuse victims to the status of ‘Others’ is a significant step down from ‘calling it what it is’. However, while section 76 is imperfect, it is also both radical and progressive. When it came into force on 29 December 2015, England and Wales became the first jurisdiction in history to make ‘controlling or coercive behaviour’ a brand new criminal offence punishable by a maximum of five years in prison.

Domestic abuse is, unfortunately, qualitatively different as a crime in that perpetrators have 24/7 access to their victims. This makes it uniquely dangerous – recent BBC figures show that domestic homicide is at an all-time high: an unthinkable 173 people lost their lives last year at the hands of their partners or ex-partners. That there is a relationship between control and homicide is no longer in question. Criminal justice, in this context, is an essential tool for the front-line organisations who work to keep vulnerable women and children (it is almost always women who are the victims of coercive control) safe.

Four years on, there is a key question. Has section 76 helped the criminal justice system be more effective? Are the real-life Helen Titcheners – who live in what pioneering academic Professor Evan Stark has termed ‘a state of entrapment’ – any closer to freedom and/or safety? The future of Teresa May’s long awaited Domestic Violence and Abuse Bill is, at the time of writing, uncertain; if it does become law, it will introduce some important procedural changes, such as making it easier for victims to give evidence in court. None of these changes in themselves are likely have much of an impact on the most recent ONS figures, which show that there were only 235 successful coercive control prosecutions last year, in the context of an estimated 1.3 million women who experienced domestic abuse. However, a new paper in the Howard Journal of Crime and Justice suggests that the picture on the ground is more complicated. It also argues that urgent training is needed if section 76 is to reach its undoubtedly progressive potential.

Analysis of data from interviews and focus groups with survivors, their closest advisors, and police shows that section 76 has the potential to change the way the criminal justice system deals with domestic abuse radically and for the better. This will only be possible, however, if police, CPS and the judiciary are trained to understand the dynamics of coercive control. Last year, the World Health Organisation declared that domestic abuse is an international emergency. An approach to the prosecution of domestic abuse that is informed by the theory of coercive control could help keep women safe. Change is needed. Rhetorical intent in the context of domestic abuse is a good start. Compulsory training in coercive control for all key criminal justice agents would help make this intent an operational success story.

Cassandra Wiener is a doctoral researcher in the School of Law at the University of Sussex, and a Visiting Lecturer in Sociology at City, University of London. Her research focuses on coercive control and the criminal law and she advises governments and activists around the world on the doctrinal implications of domestic abuse law reform. Her monograph, Coercive Control and the Criminal Law, is being published by Routledge next year.

This blog is based on the following article: Seeing What is Invisible in Plain Sight: Policing Coercive Control, Cassandra Wiener. First published: 25 October 2017.

https://onlinelibrary.wiley.com/doi/full/10.1111/hojo.12227