Whilst the climate emergency is one of the biggest challenges human beings have ever encountered, we have been slow to think of the law as one of the ways the emergency can be tackled. And time is one thing there is not much of!
This is a pity. There are large numbers of statutes and provisions set out in secondary legislation aimed at getting things done. Legal remedies are pretty good at making existing legal rights happen… and we, of course, benefit from comparatively progressive legislation.
Areas where intervention may be possible include planning law, company law, and straightforward reparation in the traditional “snail in the bottle” sense, to name but a few. Crucially, court orders banning unhealthy or dangerous activities (interdicts against nuisance, for instance) might also be available.
Stimulated by the forthcoming COP26 climate change conference in Glasgow, groups of lawyers are getting together, co-ordinated by Legal Services Agency, to study these remedies, and the results of their deliberations should be widely available over the next few months. Lawyers looking into the climate emergency will need to study not only the remedies but also legal aid availability. Significant reform is necessary. Believe it or not, it can be more difficult to get legal aid for an individual if there is a “wider interest”. Not only that, but there is currently no legal aid for groups. These issues need to be addressed.
Human rights law has been ignored even more. That, however, seems set to change.
In a recent decision by the Supreme Court in the Netherlands, an action group (“Urgenda”) of nearly 1,000 people obtained an order by the court against the Dutch Government to implement higher standards of climate change mitigation.
The court held that the threats posed by climate change to the citizens of the Netherlands, both current and future, are so extreme as to amount to a threat to the right to life (article 2 of the European Convention on Human Rights), and to respect for personal and family life (article 8).
The details are particular to the Netherlands’ situation; however, the principles may apply to all jurisdictions subject to the European Convention: and that includes Scotland and, to a lesser extent, the UK.
Public authorities: a high obligation
It is worthwhile summarising how human rights law gets drawn into Scots law.
Given the way the devolved Parliament is set up, all Scots statutes and subsidiary legislation are only valid insofar as they are compliant with the Convention. Indeed, all UK secondary legislation (statutory instruments), broadly speaking, is subject to the same constraints. This is frequently forgotten.
In the event that these laws are not human rights compliant, the court or tribunal generally has to adjust them to be so.
Not only that, but all public authorities, from the Scottish Government to local authorities, to the NHS, schools, quangos etc, have to observe human rights in every single thing they do on a day-to-day basis.
This is a high obligation, and one that all public authorities would do well to observe now as regards mitigation of the climate emergency, given the Urgenda decision as well as Scots law.
What does this mean in practice?
It is early days yet, but it would appear that Urgenda means it may be arguable that all public authorities, courts, tribunals, local and central government etc can be required to look at all previous decisions, actions or acts, so as to take reasonably suitable steps to mitigate against the climate emergency.
The assessment of what steps need to be taken in terms of the Urgenda decision probably relates to international standards (hopefully, set to be raised by COP26 in Glasgow in November), as well as the proportionate responsibility the country has for the creation of the climate emergency in the first place.
We in Scotland, of course, have a high responsibility for the creation of the climate emergency. We mined coal, we developed steam power, and have been for decades, and still are, a major oil producing country.
Importantly, the Urgenda decision reminded us that, under human rights law, if a breach of human rights exists, the courts must provide a remedy to individuals who have been affected or may be affected in the future. In terms of article 14 of the Convention, any application of a human right should not be discriminatory and this includes disability, age, homelessness or other status.
Not only must a remedy be provided, but under earlier court decisions on article 6 of the Convention, it appears that legal aid may require to be given to individuals, whilst there are also international conventions which seem to require legal aid for groups to be made available (not that that has so far been implemented in Scotland, although it should be noted that a group action procedure for some matters will be introduced in the near future).
How could all this be applied?
Generally, large organisations do not like the idea of a human rights litigation risk. Not only do they risk losing expensively; there are also reputational issues.
The application of human rights law to a failure to mitigate threats to human rights may mean that issues, from small scale to major ones, can be taken up where previously that was more difficult. For example:
- Are licences being given to oil producers to produce more oil, when we should be reducing the amount produced? This could possibly be attacked on human rights grounds.
- Are large sums of money being spent on encouraging road transport when little, if anything, is spent on providing safe means of cycling (by safe, I mean, well off the road)?
- Is a school being built close to a busy road, heavily polluted with facilities for cars, but none whatsoever for safe cycling by young children?
- Does a hospital sublet premises to a supermarket which has open-freezer cabinets with no curtains, thus wasting huge amounts of power?
- Does a public building have a single door, thus ensuring expensively produced heat is dispersed to the wider world continually? Indeed, is the front door jammed permanently open?
- Do senior staff drive to meetings, when there is perfectly good public transport?
- Are trees chopped down unnecessarily and/or not replaced by the 50 or 100 young trees that are required to replace every single mature tree removed?
The issues are legion.
It will take some time for lawyers to be “tooled up” to take these cases. The arguments are complex and, of course, we cannot be sure that UK courts will take the same approach as the Netherlands Supreme Court did in Urgenda. However, I believe the legal profession in Scotland has a vigorous respect for human rights and will want to take up this challenge once the legal and factual arguments have been looked at. Crucially, campaign organisations and clients need to come forward to instruct us to raise actions.
And, of course, the Scottish Government needs to ensure that some form of legal aid for groups is provided, and to remove the restrictions on “wider interest” cases. This needs to happen very speedily.
Urgenda has led the way: we need to follow through. In November, during COP26, the eyes of the world will be on us!
Advisers wishing to be part of the Climate Emergency Legal network should email firstname.lastname@example.org.
Paul Brown is principal solicitor at Legal Services Agency, Glasgow