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.

 

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

Gizem

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).

 

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.

Hurrah for the judges and the rule of law

Sue Millns
Sue Millns

The judgment of the High Court of 3 November 2016 about the process that should be followed to enable the UK to leave the EU raises profound questions of constitutional significance for the United Kingdom.

At the centre of the case is the legal question of whether or not the government is entitled to trigger Article 50 of the Treaty on European Union (the exit provision under EU law) solely by the exercise of the Crown’s prerogative powers (meaning that this is purely an executive decision which can be made by the Prime Minister) or whether reference must be had to Parliament (the democratically elected, legislative body).

High Court judges wearing traditional red and white robes - photo courtesy of FruitMonkey (CC BY-SA 3.0)High Court judges wearing their traditional red and white robes. Photo © FruitMonkey (CC BY-SA 3.0)

The government, in suggesting that it could use the prerogative to put in motion the procedure contained in Article 50, relied on the suggestion that the conduct of international relations, including the making and unmaking of treaties (as is the case here), is a matter that falls within the Crown’s prerogative powers.

The judges have a duty to uphold the Constitution and to ensure that the system of constitutional checks and balances is respected.

The Unwritten Constitution

Putting politics to one side for a moment, which is exactly what independent judicial authority is required to do, the legal question is tricky to resolve because the United Kingdom, unlike most states, does not have a written Constitution.

We have an unwritten system of constitutional arrangements, conventions, doctrines, some parliamentary legislation (like the European Communities Act of 1972) and case law (decisions of the judges). We do not therefore have an easily accessible text which sets out the rules of the constitutional game. Instead we are left to follow principles derived from an array of sources which have amassed over time with varying degrees of force and authority.

Resolving the thorny legal question at the heart of this dispute is exactly what the three judges of the High Court had to do in their landmark decision of 3 November.

At the heart of the legal problem lies the question of the extent of the Crown’s powers under the royal prerogative. The prerogative, which is a key aspect of the UK’s unwritten constitutional arrangements, refers to those residuary (arbitrary) powers which continue to remain with the Crown (or executive) despite the sovereignty of Parliament (which was confirmed in statute by the 1689 Bill of Rights following the Glorious Revolution).

The Crown (i.e government or executive power) cannot override legislation enacted by Parliament simply through its use of the prerogative.

The government argued that it could legitimately use the prerogative to give notice under Article 50 of its intention to begin the process of leaving the EU. This process would have the effect of taking away, or putting an end to, rights derived from EU law and incorporated into domestic UK law by the 1972 European Communities Act once the process was completed.

A photo of the High Court building in LondonThe Royal Courts of Justice in London, where the High Court judges made their ruling. Photo © sjiong (CC BY-SA 2.0)

What the judges of the High Court found, however, was that the government’s argument was not supported by the constitutional law of the UK.  The most fundamental rule of the UK’s constitution is the principle of parliamentary sovereignty or legislative supremacy. This means that Parliament is the supreme law-making body in the country and that it can make or unmake any law it chooses.

The Crown (ie government or executive power) cannot override legislation enacted by Parliament simply through its use of the prerogative. That would be precisely the effect were the Crown to trigger Article 50 without reference to Parliament.

The completion of the Article 50 withdrawal process would result in the loss of rights for individuals. However, what Parliament has given (through the 1972 Act) can only be taken away by Parliament. It should escape no one that the desire of those supporting Brexit – that the UK parliament should have its sovereignty better respected – is precisely the outcome of the High Court’s decision.

Respect for the Rule of Law

Much of the media commentary surrounding the decision of the High Court has been about the lack of accountability of the judges in the face of the majority victory in the referendum for leaving the EU (51.9% against 48.1%).

Who are the judges to fly in the face of the wishes of the majority who voted for Brexit? The answer to this question is that the judges, far from being the ‘enemies of the people’ as the popular press would have us believe, are the independent authority whose task it is to uphold the rule of law in the midst of a political storm.

For centuries governments and executive authorities have attempted to usurp individual rights and freedoms through the use of regulatory powers.

The judges have a duty to uphold the Constitution and to ensure that the system of constitutional checks and balances is respected. The judges are there to provide independent judicial review of executive action to ensure precisely that the executive/Crown/Prime Minister act within their powers and do not act unlawfully or against the wishes of a sovereign Parliament. The judges are the guarantors of individual rights and liberties and it is absolutely their role to defend the Constitution, to defend the rule of law, against the arbitrary and unaccountable use of executive power.

For centuries governments and executive authorities have attempted to usurp individual rights and freedoms through the use of regulatory powers and judicial review of executive action is exactly the legal tool required in order to ensure that the use of executive power is not arbitrary, unlawful or ultra vires. This is precisely the role of the judges and the purpose of a Constitution (written or otherwise) and for that we should all be thankful.

How curious then that the Lord Chancellor and justice secretary, Liz Truss, should be so underwhelming in her endorsement of the principle of judicial independence and so lacklustre in her defence of the judiciary in the face of hostile media attacks. The Bar Council of England and Wales has lost no time in pointing out the absence of leadership shown by the Lord Chancellor and has rightly expressed concern about the rule of law being undermined in the name of press freedom.

A photo of Liz Truss, current Home Secretary, standing at a podiumLord Chancellor and Justice Secretary Liz Truss was criticised for her lukewarm response to criticism of the judiciary following the ruling of 3 November. Photo © Policy Exchange (CC BY 2.0)

Not surprisingly, the government is appealing against the judgment of the High Court with a decision expected in December. This will enable the Justices of the Supreme Court (exceptionally all of them) to consider the strength of legal argument on both sides and a further, ironic, twist in the story could then be a preliminary reference to the EU’s Court of Justice in Luxembourg for its interpretation on the matter.

What is clear is that this profoundly important judgment of the High Court will resonate for years to come and that resonance comes not so much from the political consequences of the decision, but from its statement about the boundaries and the limits of executive power.

 

Professor Susan Millns is Head of the Department of Law in the School of Law, Politics and Sociology at the University of Sussex.

 

Brexit: the lawyer’s first 100 days

Erika Szyszczak
Erika Szyszczak

Reposted with permission from the UK Trade Policy Observatory

 

The “first 100 days” has become a standard by which to evaluate important political times. Undoubtedly, the momentous decision on 23 June 2016 to break up the current geopolitical space of Europe will be examined by historians as a decisive period of modern European history.

From a lawyer’s perspective the most striking feature of the last 100 days has been the legal uncertainty of how to implement the referendum result. This represents the challenge we love. So this blog post examines some of these uncertainties.

Dreams of a quick divorce

Dreams of a fast divorce from the EU have been thwarted by a lack of legal consensus on who may trigger the Article 50 TEU notification to leave the EU, and as to when is the optimal time to do it. The lack of a pre-nup gives much scope to the lawyer.

PM Theresa May is determined to retain a tight rein on this legal act, considering it within the powers of the executive. But this position is being challenged in the courts. For example, in the English High Court, several applications for judicial review have been given leave to proceed and the skeleton argument in the lead judicial review action has been published.

The thrust of the legal argument is that the correct UK constitutional requirement in order to trigger Art 50 is for parliamentary scrutiny and approval, alongside consultation with the devolved administrations in Scotland, Northern Ireland and the Welsh Assembly.

The legal issues framing the decision of when to trigger to Article 50 are also contentious.

Domestically, there is the need to reconcile the future internal relationship of the UK with Northern Ireland and Eire and also with Scotland and Wales.

The UK must also reconcile its future relationship with its largest trading partner: the EU. But there are other relationships to consider that are the offspring of the relationship with the EU. For example, there are third states linked (currently and in the future) in trade agreements with the EU, and the World Trade Organisation (WTO). It is a matter of legal conjecture as to what should be in the content of the withdrawal agreement with the EU under Art 50(2), and how far this agreement will set out the future legal relationship between the UK and the EU and other trade arrangements.

Living apart

How will the UK untangle 40 years of marriage? A first step will be to examine the existing EU law that has been transposed into domestic law. The UK has always fought hard to determine the final shape of EU law, and has had little difficulty in transposing EU law into domestic law using the ‘copy out’ procedure. One example of is the recent transposition of procurement law into UK law.

Lawyers must find a way to give effect to EU law that the UK wishes to retain in the future.

The repeal of section 2 of the European Communities Act 1972 is at the heart of the UK withdrawal process. Sect 2 gives effect to the supremacy and direct effect of EU law, and allows for EU Directives to be implemented quickly into domestic law by means of a Statutory Instrument (SI). Thus lawyers must find a way to give effect to EU law that the UK wishes to retain in the future, especially EU law which has been transposed using the SI procedure, as well as laws necessary to ease future trade deals.

Just because we’re divorced doesn’t mean we can’t be friends

Looking to the future relationship with the EU there are a number of existing legal trade frameworks developed by the EU with non-member states which could be bought off the shelf. The most immediate choices would be to take a look at the EEA Agreement, the Deep and Comprehensive Free Trade Agreement with Ukraine, the comprehensive economic and free trade agreement with Canada or the EU-Turkey customs union.

But PM Theresa May appears to want something more bespoke for the UK. High on the shopping list of UK desires is access to the Single Market without the concomitant demands of membership of the Single Market; in particular, special rules on the free movement of persons and not having to contribute to the finance of the EU. Here there is little scope for mediation: the EU has made it clear that there is no Single Market a la carte.

Access to the Single Market would only ease trade in a limited way. The UK would not participate in the rule-making for the Single Market and also would not be able to stop the influence of the European Court of Justice (CJEU) on the interpretation of the Single Market rules, in particular the definition of no-tariff barriers to trade, the scope of mutual recognition and the host of legislative lacunae filled by the CJEU in its day-to-day work.

The legal limits on finding future trading partners

The indications are that the UK seeks future trading partners in a similar bespoke fashion, spurning the tendency for large multi-party deals.

Dr Liam Fox, the international trade secretary, has indicated to the press that exploratory talks with non-EU states such as India have already taken place.

Liam FoxDr Liam Fox, International Trade Secretary, has said he is already in talks with India over a trade deal.
Photo © Chatham House.

This is tricky from a legal perspective.

The UK is tied to the rules of membership of the EU; it cannot negotiate any new deals until after Brexit has occurred. EU trade policy is within the exclusive competence of the EU. Even in policy areas where the EU has shared competence with the member states, the UK would still be limited in its actions by Article 4(3) TEU, the duty of fidelity. So, for example, the UK may not depart from a position agreed by the EU in international negotiations. Even where mixed agreements are found the European Commission takes the lead negotiating position for the EU and the member states.

There are press reports that legal advice given to Dr Liam Fox suggests that “there is a high risk” of the European Commission starting infraction proceedings against the UK if such talks went ahead, with the UK being landed with a “big fine”.

This is sensationalist reporting. Any infringement proceedings brought by the European Commission under Article 258 TFEU are not automatically brought before the CJEU. There is a long period of negotiation. Only when talks break down will the European Commission go to court. This takes several years. If the CJEU finds a member state in violation of EU law, a member state is under a duty to comply with the judgment of the Court. It is only when a member state does not comply that financial sanctions come into play under Article 260 (2) and (3) TFEU. Fines do not automatically flow from a breach of EU law: the European Commission must bring a second action against the member state.

Brexit means Brexit: but what does it mean?

Law and lawyers will have a central role to play in easing the UK divorce from the EU and drawing up the divorce settlement. PM Theresa May has not acted hastily or given away details on what the UK negotiating stance will be, or when it will start with earnest. But she cannot delay for long. The next 100 days will bring more certainty to many of the legal issues churned up in the aftermath of 23 June 2016.

Erika Szyszczak is Professor of Law in the School of Law, Politics and Sociology at the University of Sussex, and a member of the University’s UK Trade Policy Observatory