Burning down the house: Should ecocide be an international crime?

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Last week on 22nd November I attended a webinar on ‘The Crime of Ecocide’, as part of Inner Temple’s Social Context of the Law series. For those with eighty minutes or so to spare, the recording is publicly available online and well worth watching in full.

I had encountered the word ‘ecocide’ fairly frequently in activist circles.[1] I was also aware that a campaign exists to make it a criminal offence. However, going into the webinar I realised how little I actually knew about the substance of the campaign, the history of the concept, the individuals responsible for pioneering it, or how it might operate in practice. Happily, the webinar answered many of the questions I had going in, and plenty more besides.

Sir Geoffrey Nice QC, moderating the session, began by reflecting on the frustrations of COP26 and the scale of the climate and biodiversity emergencies, and noted that “the urgency of these matters under consideration no longer allows for the passage of time”. He posed a question which must surely have occurred to every practitioner seeking to use the law as an instrument for progress on environmental issues. Is the law going to be able to work fast enough to deal with these challenges, or do we have to think about alternatives? Dealing with shortness of time and the need for implementable solutions were common themes which came out strongly in the talks of both speakers and in many of the questions posed by the audience at the end of the session.

The first speaker was Professor Philippe Sands QC. He began his talk by explaining that the concept of ecocide has a fairly long history, having first been raised in the late 1960s in the context of the Vietnam War and the use of Agent Orange by the United States military. As an aside, it is surely no coincidence that Vietnam was the first of ten countries around the world which have, to date, adopted ecocide into their domestic criminal law as a specific offence. It is defined in Article 278 of the Vietnam Penal Code 1990 as “destroying the natural environment, whether committed in time of peace or war.” The term itself was coined in 1970 by the American academic Professor Arthur W. Galston, who viewed it as being analogous to genocide, and it gained widespread recognition after Olof Palme, then Prime Minister of Sweden, used it to refer to what was happening in Vietnam at the United Nations Stockholm Conference on the Human Environment in 1972.

However, Prof Sands explained that the concept remained somewhat marginal for several decades after the Stockholm Conference. He recounted a conversation in 1991 with the late great Professor Ian Brownlie about why his Principles of Public International Law contained nothing on environmental law and being told that it was because public international environmental law simply didn’t exist. After the International Court of Justice ruled that that the environmental principle of prevention was part of customary international law in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons in 1996, the subject did appear in the fifth edition of the textbook in 1998, but it was allotted just four pages. In 1998, when the preamble to the Rome Statute of the International Criminal Court was drafted, it was felt to be premature to include specific references to ecocide or to environmental crimes more broadly.

After the Rome Statute was drafted, however, the late Polly Higgins, a pioneering barrister and campaigner, took up the notion of ecocide and began to campaign for its widespread acceptance and adoption by relevant law-making institutions. The campaign is still spearheaded by Stop Ecocide International, the organisation she co-founded along with its current chief executive Jojo Mehta, and its charitable sister-organisation, the Stop Ecocide Foundation. In November 2020, at the request of politicians from Sweden’s governing parties, the Foundation convened an Independent Expert Panel for the Legal Definition of Ecocide, co-chaired by Prof Sands and Senegalese jurist Dior Fall Sow. The purpose of this panel was to draft a proposed definition of ecocide that could be used as the basis for further campaigning efforts to effect its adoption by the International Criminal Court (ICC) and other relevant institutions.

Prof Sands explained that in carrying out this drafting work, the panel were inspired by the work of Hersch Lauterpacht and Raphael Lemkin and the adoption by the international community after World War II of three new international crimes, in addition to the classical ‘war crimes’. These were crimes against humanity, which sought to protect the rights of individuals; genocide, which sought to protect the rights of groups; and the crime of aggression, which sought to curb and penalise the waging of illegal war. To this day, these remain the only international crimes of pertinence to be introduced in the post-war period, and all are codified in the Rome Statute. It is to this list that campaigners now propose the crime of ecocide be added.

The full text of the definition that the Independent Expert Panel proposed can be found at page 5 of its Commentary and Core Text document, published in June 2021, but the core component is this:

For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

Prof Sands highlighted that, despite the similarity in the name, the definition is not based on genocide because the suggested crime of ecocide would not have the same intent. Environmental degradation, while often committed intentionally (or at the very least recklessly), is not an end goal in itself in the way that the systematic destruction of a national, ethnical, racial or religious group is the end goal of a person who commits genocide. Rather, the destruction of the natural environment occurs as a by-product of other choices, usually in the pursuit of specific economic and social ends. Thus, the drafters instead modelled their definition on that of crimes against humanity under Article 7 of the Rome Statute.

The reason for the choice of nomenclature was rather simpler. When the Stop Ecocide Foundation carried out market research on the subject, they found that the public did not respond at all to the concept of ‘environmental crimes against humanity’, but had a much stronger and more instinctive response to the concept of ecocide, which the individuals polled almost universally agreed should be stopped.

Although they borrowed elements from the definition of crimes against humanity, the drafters wanted to come up with a non-anthropocentric definition of ecocide. Prof Sands stressed the legal significance of severing the link with humans in the definition, so that any potential future prosecutions under an amended Statute would not have to prove a causative link with harm to humans. On a more philosophical level, the definition reflects the notion that the natural world has some intrinsic and fundamental value, independent of its value to humanity.

There was a spirited debate about whether the definition should include a list of acts which would qualify as ecocide. In the end, a narrow majority favoured not including one, since lists in such a context tend to imply that anything not included is permissible, and this was not an impression that the drafters wished to create. Moreover, one could not realistically include a list of qualifying acts without including runaway climate change and to do so would be to place a huge political hurdle in the way of states signing up to support the concept, because it would create the impression introducing regulation to control their emissions by the back door. The consequence of adopting a definition without a list is that, were the proposed definition to be adopted by the ICC, it would be up to prosecutors to decide what acts to prosecute and judges to decide whether they qualify for conviction.

Prof Sands ended on a moderately optimistic note by highlighting that the concept of ecocide has been endorsed by the Secretary General of the UN, António Guterres, and Pope Francis. One of the committees in the Belgian Parliament has proposed to adopt a resolution in support of the adoption of the crime of ecocide and the full Parliament is expected to do so in the coming weeks. Prof Sands feels confident that there is momentum behind the concept which means that its adoption by the ICC is a matter of when, rather than if.

The second speaker was James Cameron, founder of FIELD (Foundation for International Environmental Law and Development). His talk moved beyond the text of the new proposed offence and considered its application in a wider context. He began by situating the ecocide campaign within the broader context of the youth climate movement, which has emerged partly in response to younger generations’ sense that current political and legal structures are inadequate to deal with the challenge at hand. He also noted that this movement uses the language of climate justice and made a plea for legal practitioners to think more creatively about how the law can be used to transformative effect.

Reflecting again on the early work of Polly Higgins on the issue of ecocide, he confessed to having been initially sceptical of a strategy which focused primarily on the ICC. He felt that a more productive approach would be to pursue existing rights arguments, especially those which argued environmental issues through the prism of human rights, through national courts and tribunals. Over time, however, he has come to view the concept more sympathetically as one potential way for the legal order to give expression to the most vulnerable pieces of the natural environment. He highlighted the parallel phenomenon of natural capital, more often discussed in the field of economics, as another potential way of giving institutional voice to a somewhat abstract idea, namely the protection of the natural world. He suggested that both natural capital and ecocide are fundamentally about creating rights in and for the environment for its own sake, beyond of its utility to humans.

Even though Mr Cameron has come around on the concept of ecocide as an addition to the ICC Statute, he still made a compelling case, first that radical concepts need to work through familiar structures, and second that ecocide could be more effectively embedded if it was able to operate through national as well international institutions. He suggested that trustees, ombudsmen, and advocates general could all help to ensure that there are people with procedural rights to pursue the issue in various tribunals, and counselled against putting all of the proverbial eggs in the basket of the ICC. He also argued that any campaign to add ecocide to the Statute of the ICC needs to think creatively about access to justice in this context and raised the question of whether there might be any scope for individuals to press charges under such a law.[2] While a new ecocide law would be significant and exciting step, it would still need to be viewed in the context of more general legal and non-legal advocacy on behalf of the environment. 

One theme which emerged across the webinar and the Q&A was the extent to which the problems which ecocide is designed to address stretch traditional notions of international law, which are geared towards relations between sovereign states. After all, it is not only, or even primarily, states which are responsible for the most egregious acts of environmental damage and degradation. One questioner asked whether corporations might potentially face prosecution by the ICC, but Prof Sands didn’t really see how corporate criminal responsibility could work in practice. The largest polluters can afford to pay almost any fine levelled at them and one cannot lock up a corporation.

Besides, international crimes are ultimately not committed by abstract governments or corporations but by individuals. This is as true for ecocide as it is for genocide, or crimes against humanity. Every active decision which results in catastrophic harm was made by someone. Thus, it was suggested by the speakers that the focus would have to be on prosecuting (and, if necessary, imprisoning) chief executives and politicians as individuals. Although the members of the Independent Expert Panel have all studiously avoided naming names, Pilita Clark, writing for the Financial Times, identified Brazilian President, Jair Bolsonaro, and ExxonMobil CEO, Darren Woods, as potential candidates. As outlandish as it might seem now, if the momentum keeps building behind the idea of ecocide, perhaps they might be the first of many.

What I have been watching this week…

After Sam’s lovely tribute to the joys of Advent last week I must admit that I have not been consuming anything nearly as highbrow as César Franck’s violin sonata recently. Instead I have been indulging in a bit of timey-wimey escapism and very much enjoying the current series of Doctor Who, which has been a slightly silly delight for the past few weeks, as the days have grown chillier and the evenings darker.

[1] The word derives from the Greek oikos, meaning home, and the Latin caedere, meaning demolish or kill. Thus, a rough translation (though not technically a correct etymology, since the word was a modern coinage) is “to kill one’s home”.

[2] The webinar did not include a discussion of the Aarhus Convention as a potential model and/or point of comparison for such participation and procedural rights but, as Sam pointed out to me, it certainly seems to offer some interesting parallels.

For the birds? Judicial review challenges to protect hen harriers and other animals

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This week I learned that some 7% of the United Kingdom consists of moorland cultivated for the sport of grouse shooting. The area of land used for grouse shooting within national parks alone is more than twice the size of Greater London. The sport of grouse shooting involves trying to kill red grouse with a shotgun. It is practised in two forms. In a driven grouse shoot, the more common and more prestigious form, beaters sweep across the moor in a line, driving grouse towards a stationary parallel line of shooters, who aim at the oncoming birds. In a walked-up shoot, which provides more physical exercise for the shooters, a line of shooters and beaters walks across the moor, causing the disturbed grouse to fly away from them and be shot at from behind. In both cases, the speed and low flight of a grouse presents a challenge to those wealthy enough to participate. 

The shooting of grouse and other birds for sport does not attract the same scale of public condemnation as fox hunting. This could be because mammals earn our compassion more easily than other animals, because shooting a bird is perceived as delivering a quick death not comparable to the suffering of a hunted fox, or because shooters tend to wear less ostentatious costumes than hunters. Nevertheless, grouse shooting is controversial. On the one hand, it involves the annual burning of vegetation on carbon-storing peat bogs, the culling of animals thought to threaten the health of grouse, and, of course, the killing of birds for fun. The Royal Society for the Protection of Birds campaigns, not for the end of grouse shooting, but for more sustainable practices. On the other hand, the British Association for Shooting and Conservation, a membership organisation that lobbies for the “interests of shooting”, claims that grouse shooting delivers local economic benefits and preserves unique moorland habitats at a low cost to the taxpayer.

Gamekeepers are responsible for ensuring that there is sufficient wildlife (or game) on an estate to provide good sport. In the context of grouse shooting, this primarily involves the elimination of animals considered to threaten the population of grouse. One of these animals is the hen harrier. Hen harriers are birds of prey that can be found across Europe and Asia. In the United Kingdom, hen harriers nest in moorland heather and feed grouse chicks to their young. Nesting hen harriers are often killed and their nests destroyed. It is suspected that this is done by gamekeepers, because the presence of this predator is not conducive to the aim of a large population of shootable grouse. Although such treatment of hen harriers is criminal, the law is not well enforced, due in part to the inherent difficulty of monitoring activity on vast expanses of moorland, and also due, it could be thought, to the political power of those running and visiting the estates. But the persecution of hen harriers cannot be allowed to continue without accepting the disappearance of the species from this country, because their numbers are extremely low. Birds of Conservation Concern 4: the Red List for Birds, published in 2015 by the British Trust for Ornithology, lists hen harriers as a species of conservation concern. In 2017, it was reported that only four breeding pairs remained in England. For this reason, it has been considered necessary to find ways of protecting and promoting the propagation of hen harriers while preventing or disincentivising their deliberate destruction on grouse moors.

Natural England, the public body charged with protecting and promoting the natural environment in England, has grappled with this problem. One potential solution has been the licensing of diversionary feeding. Diversionary feeding involves providing hen harriers will food so that they do not need to eat grouse chicks. Although this practice has succeeded in Scotland, landowners in England have not embraced it because it is claimed to be costly, ineffective, and liable to interfere with the suppression of other predator species.

Another potential solution is known by its proponents as brood management and by its detractors as brood meddling. These euphemistic terms refer to the practice of removing hen harrier chicks from their nests, raising them in captivity and releasing them as adults into the wild. BM, as one can neutrally say, is controversial. It is generally supported by those associated with grouse shooting and opposed by conservationists. However, such is the nature of the hen harrier problem that some find it difficult to imagine any successful solution without the buy-in of the landowners and shooters.

We now have to interrupt this narrative for a brief but important exposition of some relevant law.

Section 1(1) of the Wildlife and Countryside Act 1981 makes it a criminal offence to intentionally kill, injure or take any wild bird; to intentionally take, damage or destroy the nest of a wild bird while that nest is in use or being built; or to intentionally take or destroy the egg of any wild bird. Further, in respect of those species of birds listed in schedule 1 of the Act, section 1(5) makes it an offence to disturb a bird while the bird is building a nest or is in, on or near a nest containing eggs or young, or to disturb the bird’s dependent young. Hen harriers are listed in schedule 1.

It can be seen that section 1 of the Wildlife and Countryside Act makes unlawful practices including BM. However, under section 16 of the Act, the Secretary of State (who delegates this power to Natural England) may grant licences to permit an activity that would otherwise fall foul of section 1. In order to be so permitted, an activity must be for one of a fixed list of purposes set out in section 16(1). These include (section 16(1)(a)) “scientific, research, or educational purposes”, and (section 16(1)(c)) “the purpose of conserving wild birds”. Section 16(1A)(a) provides that Natural England may only grant a licence for any of these purposes if “it is satisfied that, as regards that purpose, there is no other satisfactory solution”.

Further to this, hen harriers are listed as a threatened species in annex 1 of the EU Birds Directive (2009/147/EC). This means that EU member states are required to take special conservation measures to ensure the survival and reproduction of hen harriers and to designate “special protection areas” for them. There are two special protection areas in England relevant to hen harriers: the Bowland Fells and the North Pennines Moors. Most hen harrier nesting activity in England takes place in these areas.

Section 8(1)(d) of the Conservation of Habitats and Species Regulations 2017 provides that a special protection area under the Birds Directive is a “European site” for the purposes of those Regulations. Under regulation 63 of the Regulations, if Natural England is considering authorising a plan or project that is likely to have a significant effect on a European site (for example when it is considering an application for a licence under section 16 of the Wildlife and Countryside Act), it must make an assessment of the implications of the plan or project for the site in view of the site’s conservation objectives. Having made that assessment, Natural England can only agree to the plan or project (that is, grant the licence) if it is satisfied that it will not affect the integrity of the European site.

In practical terms, the legal provisions explained above have the following effect. If you want to undertake BM or another conservation practice in England that would involve committing an offence under section 1 of the Act and that is likely to have a significant effect on a special protection area, you must apply to Natural England for a licence. In order for a licence to be granted to you, (a) the practice you wish to undertake must be for a specified purpose, (b) there must be no other satisfactory solution to achieving that purpose, and (c) the practice must not affect the integrity of the special protection area.

Back to our regularly scheduled programming. In 2015, Natural England’s Science Advisory Committee advised the Board of Natural England to initiate a scientific trial of BM in England. The Board accepted the advice and passed it to the Secretary of State for the Environment, Food and Rural Affairs (then Liz Truss MP). published a document called the Joint Action Plan which proposed, among other things, diversionary feeding and a BM trial. Such a trial would, it was proposed, need to be licensed under section 16(1)(a) of the Wildlife and Countryside Act 1981. In 2017, an application was made to Natural England for a licence under that section to carry out activities to obtain evidence of the effectiveness or otherwise of BM. The trial would examine the effect of BM on the moorland community as well as whether released hen harriers would go on to become successful breeding adults in the wild. The licence would cover the first two years of a five-year trial.

Considering the application, Natural England completed two assessments. One, the Technical Assessment, assessed the merits of the proposed trial generally. The other, the Habitats Regulations Assessment, assessed the implications of the proposed trial in view of the conservation objectives of the two relevant special protection areas (the Bowland Fells and the North Pennines Moors), as required by regulation 63 of the Conservation of Habitats and Species Regulations. In 2018, the Chief Operating Officer of Natural England accepted the application and approved the grant of a licence.

Natural England’s decision to grant this licence was met with disagreement by those who consider that brood management is an ineffective way to protect hen harriers that prioritises the concerns of the shooting lobby. Both the RSPB and Dr Mark Avery applied for permission to apply for judicial review the grant of the licence. Dr Avery is a scientist, a conservation activist and a former International Director of the RSPB. Permission was granted and the applications were heard together in the High Court by Mrs Justice Lang in December 2018 and January 2019. In March 2019, judgment was handed down dismissing the applications: R (RSPB) v Natural England; R (Mark Avery) v Natural England [2019] EWHC 585 (Admin). In October 2019, Lord Justice Newey granted both claimants permission to appeal to the Court of Appeal. The appeals began to be heard together in March 2020, but the hearings were interrupted by the illness of one of the judges. In May 2020, Natural England granted a second licence, in similar but not identical terms to those of the first licence, to enable the BM trial to continue until 30 September 2021. The appeals were re-listed and finally fully heard by Lords Justices Underhill (VP), Newey and Phillips in January 2021. Now, the parties made arguments about the second licence, and not the first licence, which had expired but which remained technically the subject of the legal challenge. Judgment was handed down dismissing the appeals on 9 November 2021: R (RSPB) v Natural England; R (Mark Avery) v Natural England [2021] EWCA Civ 1637.


There was no point in my creating suspense about the outcome of these proceedings. Judicial review challenges concerning animals tend to fail. It is more interesting to try to ask why this might be.

There were eight separate grounds of challenge before Lang J. They were clearly set out and dealt with at paragraphs [52] to [124] of the High Court judgment. The most interesting are the two in respect of which permission to appeal was granted. They are, first, that Natural England misapplied section 16(1) of the Wildlife and Countryside Act 1981, and, second, that it was unlawful to permit BM in the two special protection areas.

The claimants’ primary argument on the first issue was that it was a mistake to characterise the relevant purpose as that under section 16(1)(a), a “scientific, research, or educational” purpose. What had to be assessed was not the direct purpose of the proposed trial but the ultimate purpose of the activity, which was conservation (section 16(1)(c)). Once this was understood, it was clearly not the case that there was no other satisfactory solution to achieving the relevant purpose. Namely, either diversionary feeding or the effective enforcement of the offences under section 1 would be a satisfactory solution in respect of conservation. As such, if Natural England had identified the correct purpose, it should not have granted the licence. The Court of Appeal disagreed about the identification of the purpose. The appropriate purpose is the specific purpose for which the licence is sought. If it were necessary or possible to identify a higher-level purpose, which could often be conservation, the extended list in section 16(1) would be pointless. Natural England was right to consider that this trial had a research purpose, namely to gather evidence about the conservation and social science impacts of BM in England, and as such that there was no other satisfactory solution to achieving this purpose.

On the second issue, the claimants argued that the concept of BM was fundamentally incompatible with the integrity of the special protection areas. Even if the displacement of hen harriers took place within a single area, the birds were still removed from their habitat. The Court of Appeal considered that both the trial and BM more generally should be seen in the long term. On this view, any displacement was temporary, while the real purpose of the activity was the preservation and promotion of the hen harrier population in the area.

These issues, and those dispensed with in the High Court, are relatively pedestrian public-law issues. Can the fact that they were relied upon, and the fact that they failed, tell us anything about the use of the judicial review procedure to challenge decisions affecting the welfare of animals?

First, judicial review generally attacks procedural defects. Unless a decision is vitiated because it is ultra vires (outside the powers of) the public body altogether, or so unreasonable that no reasonable decision-maker could have made it, both of which are rare, an application for judicial review will usually have to identify a material consideration that was not taken into account, or a consultation requirement that was not met, or a principle of natural justice that was neglected (we have all heard enough about that recently). It is really only in the realms of fundamental rights that substantive review grows any teeth by way of proportionality analysis. And, as we all know, animals have no fundamental rights. If a public body makes a decision that is harmful to animals, the law is such that that in itself will usually provide no basis for a judicial review. If the decision is vulnerable, it will be by accident, because there happens to have been a legally significant error besides the contended moral wrongness of the decision. Until animals are granted or recognised as having meaningful rights in public law, or until more weighty duties are placed on the public bodies charged with making decisions affecting them, judicial review will be an unreliable technique for animal activists.

Second, judicial review is a powerful but blunt instrument. It can nullify a decision whatever the consequences if that decision is vitiated by a legal error. This is because the courts, in this field at least, are concerned with absolute rights and wrongs. A public body may never act contrary to procedural fairness or beyond its legal powers, regardless of any countervailing reasons for doing so in a particular case. In the same way, if a public body is within its rights to act in a certain way, a court will not weigh that against any reasons why it should not do so. The law’s dealing in such absolute terms is to be contrasted with politics and the balancing-acts and trade-offs between incommensurable interests that are conducted in that field. (These are the two moralities described by John Laws in The Constitutional Balance.) This situation puts animals at a disadvantage under the law because the law, like our society, generally takes the view described by Robert Nozick as utilitarianism for animals and Kantianism for people (by which he meant humans). This means that, while humans are recognised as possessing some absolute rights that can never be overridden, animal interests are only relative, always susceptible to submission to another goal. To succeed in a judicial review, you need a trump card, and animals have no trump cards.  

These two considerations do not mean that animal activists cannot usefully use the judicial review procedure. There will be times when an unpopular decision is vitiated by a procedural error unrelated to the merits of the decision, and a campaigning organisation could legitimately challenge that decision. The rule of law requires that unlawfully-made decisions be open to challenge regardless of litigants’ motivation. There will also be times when, even under the current law, a decision is unlawful for reasons genuinely related to the consideration of or impact on animal interests. The Humane League’s litigation about inherently unhealthy breeds of chicken could be one such case. Finally, the common law develops through litigation, and each application for judicial review presents the court with an opportunity, of varying significance, to do things differently.

These potential benefits have to be balanced against the significant financial cost of taking cases like this to court. Money is sometimes raised from individuals who have not been presented with a sober and objective assessments of the legal merits of the case. Might animal activists not do better to bring fewer speculative judicial review challenges, and spend the time and money building up their own voices on the political field, so that they do not have to complain after every decision that the shooting lobby, the farming lobby, or the development lobby has captured the public institutions? That way, they could set their sights higher than the dozens of UK-resident hen harriers, and aim to protect the thousands of red grouse that are killed for fun every year. If it could be done for foxes through political means, why not for birds?

This intersects with a further issue for animal activists. Should the guiding principle be conservation, that is the protection and promotion of species, or animal rights or welfare, where the focus is on individual living beings? My background, as can probably be seen by reading this post, is in the latter approach. I have not rehearsed the arguments here. It is fundamentally a moral question, not a legal or a tactical one. However, it is interesting to wonder whether one approach lends itself more readily than the other to legal enforceability against the state. If the aim is to lift certain debates outside the realm of politics and situate them in the courtroom, a campaigning organisation, or the movement in favour of animals generally, could cynically adopt the moral position that would most readily achieve this. Whether there is indeed a difference here, and if so in whose favour, is a question for another day.

What I’ve been listening to this week…

It is so nearly Advent. I have been sustaining myself with this incredible recording of César Franck’s Violin Sonata, performed live in Moscow by David Oistrakh and Sviatoslav Richter in 1968. I don’t think I am projecting an Advent feeling onto it: The first three movements have searching qualities, sometimes lost, sometimes frenzied and sometimes in deep despair. The final movement feels like Christmas.

Photo by Mark Hamblin.

Planning to Level Up  

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Last month Tewkesbury Borough Council lost their challenge against the decision by a planning inspector to grant permission for 50 homes at Gotherington, after an appeal by developers JJ Gallagher and Richard Cook against the local authority’s initial refusal of permission. Under paragraph 74 of the National Planning Policy Framework (July 2021 version), a local planning authority is required to maintain a five-year supply of deliverable housing sites, designed to meet its local housing requirement calculations. Paragraph 11 establishes that, where a local authority has failed to maintain such a land supply, the so-called “presumption in favour of sustainable development” applies and planning permission should usually be granted.

The central issue in Tewkesbury Borough Council v Secretary of State for Housing Communities And Local Government [2021] EWHC 2782 (Admin) was whether a local authority which had previously delivered more homes than its own average annual delivery target suggested were needed during the earlier part of its Local Plan period was: a) entitled; and b) required to factor that past oversupply into its future housing land supply calculations. The council claimed that, when past delivery across the plan period was taken into account, they had a land supply of 4.37 years, but the inspector disagreed, estimating that the local authority had just 1.82 years’ supply and consequently applying the presumption in favour of sustainable development and approving the Gotherington application.  

The council appealed, and the High Court was therefore required to consider a question upon which the NPPF and Planning Practice Guidance on Housing Supply and Delivery are both silent, namely how authorities should treat past oversupply. The Court upheld the inspector’s decision in this instance, but before hard-pressed local planning authorities throw up their hands in despair, they should turn to the judgment of Mr Justice Dove. Although Dove J was clear in his rejection of the claimant local authority’s contention that they were required by law to factor past oversupply into their future housing land supply calculations [42], he did not go so far as to state that it could never be a relevant consideration. Rather, he held that “the question of whether or not to take into account past oversupply in the circumstances of the present case is, like the question of how it is to be taken into account, a question of planning judgment which is not addressed by the Framework or the PPG and for which therefore there is no policy” [47]. It will therefore be for local authorities and inspectors to consider the relevance of previous housing delivery levels to current local planning policies, applications and appeals on a case by case basis, doubtless creating plenty of work for planning barristers in the process.

The nave of Tewkesbury Abbey

This judgment does result in considerable ongoing uncertainty. However, one can see why Dove J declined to offer a rigid legal precedent on this issue, holding that it would be inappropriate “to introduce, by way of inference, text into the policy of the Framework which does not exist” [45]. The interpretation of planning policy will always be contingent upon local circumstances and the application of an overly legalistic blanket approach to decision-making will rarely be appropriate. Moreover, the imposition by the Court of a mandatory rule one way or the other on this issue might have had a deleterious effect on the ability of local authorities to meet housing need in their area. If councils were never allowed to factor any past delivery into their future housing land supply calculations, it might create a perverse incentive for some authorities which would otherwise be proactive about promoting development to meet local need, to delay the allocation of land for housing, the granting of planning permission, and potentially the supply of social housing until later in the plan period, to maintain their rolling housing land supply. Conversely, if authorities were always required to take past oversupply into account, this could potentially put an unnecessary constraint on their delivery ambitions. In either case, it would be deeply unfortunate if an overly prescriptive approach to paragraph 73 of the NPPF were to prevent local authorities from housing people on their waiting lists.

Also raising important questions about the relationship between past delivery and future housing need in the last couple of weeks was the first report of the Building Back Britain Commission, entitled ‘Levelling up and the housing challenge‘. Established by six commissioners from organisations across the housing and construction sectors, this Commission has suggested that the Government’s methodology for calculating housing need requires a radical overhaul if the levelling up agenda is to be achieved.  

The standard methodology for calculating “objectively assessed need” (OAN) for housing, as set out in the PPG on Housing and Economic Needs Assessment has four stages:

  1. First, local planning authorities are required to set a baseline figure according to household growth projections for their area.
  2. Second, they adjust that figure according to the local housing affordability ratio, so that areas with the biggest gap between earnings and house prices are required to deliver the most homes.
  3. Third, an authority may cap the upwards adjustment of its housing need figure, provided that it has up to date strategic policies in place, including any relevant policies contained in a spatial development strategy.
  4. Fourth and finally, in the twenty most populated urban centres in England a further 35% uplift is applied after the cap in Stage 3.

This methodology was first introduced in the 2018 revision of the NPPF, at which point it comprised only stages 1–3. The Government has since attempted to tweak the method to bring it into line with its national ambition to deliver 300,000 homes per year. (One might question whether a methodology designed to result in a predetermined figure can really be said to be measuring housing need at all, but that is an argument for another post!) The first proposal from what is now called the Department for Levelling Up, Housing and Communities (formerly MHCLG) was to place an even greater emphasis on local affordability indices to determine the uplift required after initial household projections were calculated, but this was extremely controversial and faced a great deal of backlash, including from Conservative backbenchers. Eventually the Government abandoned this approach and adopted the new “top ups” for large urban centres instead, fixing on the 35% level to bring the overall figure into line with the 300,000 homes per year goal.

This adjustment brought the numbers up on a national level but did nothing to address one of the underlying issues with the current methodology, namely that it produces local housing need calculations which are higher in areas where the market is already overheated and lower in areas where it is depressed. Planning policies based on these calculations will inherently reinforce market forces rather than doing anything to proactively shape the housing market or rebalance the economy away from the South East and from major urban centres and towards other regions of England and smaller cities and towns. At present, for example, the OAN standard methodology leaves councils in the London commuter belt attempting to meet ever more ambitious housing targets, within the constraints imposed by Green Belt and AONB designations, while many post-industrial towns in other parts of the country are deemed to need far fewer new homes, despite having a good deal of brownfield land which would be ripe for redevelopment.

Planning policy could be a powerful tool in the Government’s armoury as it pursues its levelling up agenda. The opportunity is there, especially with regards to brownfield sites. In the latest of its series of reports on the subject, published in October of last year, CPRE calculated that there are currently enough sites on local authority brownfield registers to build 1.3 million new homes, of which 53% already have planning permission. A large proportion of these sites are in the North and Midlands, and in smaller urban centres as well as major cities. The Building Back Britain report recognised this opportunity and called for a new national housing strategy, which would be explicitly aligned to the levelling up agenda. Rather than calculating housing need on the basis of historic growth, this strategy would proactively identify more deprived areas of the country which would benefit most from future investment in housing. It would also involve explicit targets for the delivery of affordable homes and the greater implementation of ‘Modern Methods of Construction’ (MMC), to speed up housing delivery and reduce its environmental impact relative to traditional construction.

A post-Covid world seems like an ideal time to put some of these ideas into practice. As Sam highlighted in his post last week, more of us than ever before are now working from home on a full- or part-time basis, and with the increased possibilities allowed by remote working, smaller towns in less well-connected areas of the country might seem like increasingly attractive places to live. The Government should seize this moment, while the agglomerative forces binding large portions of the workforce to major cities and to London in particular are at their weakest in a generation, to promote a truly transformative planning agenda, which directs investment to where it is most needed rather than following the market.

There have been some signs that developments on this front might be in the pipeline. Appearing on the 2nd November before the House of Lords’ Built Environment Committee, Housing Minister Christopher Pincher told members of the committee to “watch this space” on the possibility of the Government introducing new methods of land value capture to encourage and support local authorities to start building homes again [p. 18]. Meanwhile, Planning Resource magazine ran an article on 5th November reporting that the Building Back Britain Commission proposals for a national housing strategy has been backed by Secretary of State Michael Gove.

It is always as well with proposed planning changes not to get ahead of oneself. The last few years have seen a wide variety of proposed alterations and overhauls to the NPPF make it to the consultation stage only to be abandoned. But right now there does seem to be a window of opportunity for the government to introduce a more equitable method of calculating housing need, which would help direct public and private investment towards areas which are most in need of it. As the Tewkesbury judgment shows, it is not enough to rely on past delivery statistics. There is now authority for the fact that these cannot serve as an excuse for future under-delivery on a local level. Neither should they be used to predict and direct future policy for housing delivery on a national scale. As we emerge from the pandemic, it is time for  a more interventionist approach to planning, informed by a genuine levelling up agenda. The Government should remember the old adage and know that if they build it, we will come.    

What I’ve been up to recently…

I was very happy to have the opportunity be one of the judges for the first round of the City Law School GDL moot recently. A year ago, the first round of the 2020/21 competition was my first ever experience of mooting and an excellent way to get more comfortable with the process before tackling any external competitions. So it was really nice to come full circle and have the chance to offer some advice to students just starting out on their GDL adventures.

Not remotely fair: When you need planning permission to work from home

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The pandemic revealed that many jobs could be done more or less effectively from home. Inevitably, the phenomenon has become controversial on a number of fronts. Does working from home improve quality of life by cutting out commuting, or does it erode the boundary between work and leisure to the detriment of the latter? Are home-workers environmentally responsible, or are they reckless towards the livelihoods and institutions that rely on their presence in an office? Is it only the insufferable hipster laptop class that can enjoy the new possibilities, or only an older generation that luxuriates in large studies? Does working from home improve accessibility to certain jobs, or does it rob junior workers of opportunities to learn from their peers and their seniors? What kind of TW&T are you?

More attention has been paid to whether we should work from home than to whether we may work from home. This was understandable in March 2020, when there seemed to be little choice. But now we can reflect. Planning law regulates the use of land, including the use of one’s home. The change in the use of land since this time two years ago has been enormous. It would be odd if the law had nothing to say about this.

The issue arose in a recent High Court case, Sage v Secretary of State for Housing, Local Government and Communities (sic) [2021] EWHC 2885 (Admin). Before we look at the case, it is helpful to set out some of the relevant law and policy provisions. There is nothing very complicated.

Section 57(1) of the Town and Country Planning Act 1990 sets out the general rule that “planning permission is required for the carrying out of any development of land.” Section 55(1) gives the general definition of “development”: “the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.” It is the last part that is relevant to us. So our starting-point is that, if you want to make a material change in the use of a building or land, you need planning permission.

Section 55(2) provides exceptions to the definition of development. One of these is as follows, in section 55(2)(d):

the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such

So, if you want to make a change to the use of your home, there are two questions. First: Is the change material? Second: Is the new use incidental to the enjoyment of your home as a home? If the change is material, and the new use is not incidental, you need planning permission. If the change is not material, or the new use is incidental, you do not need planning permission.

In order to answer these questions in the context of a particular case, we need to flesh out the two rather obscure terms, material and incidental. Judges have opined on the meaning of each of these terms and others that are of importance in planning law. However, this is not very helpful to laypeople, who need practical advice in an accessible form. To this end, the government publishes Planning Practice Guidance online alongside the National Planning Policy Framework, which is the government’s planning policies for England.

Each piece of Planning Practice Guidance addresses a different issue. One piece of the Guidance is entitled When is permission required? This contains two passages that are helpful in our context. First, there is a passage entitled When does a change of use require planning permission? The passage is as follows:

A change of use of land or buildings requires planning permission if it constitutes a material change of use. There is no statutory definition of ‘material change of use’; however, it is linked to the significance of a change and the resulting impact on the use of land and buildings. Whether a material change of use has taken place is a matter of fact and degree and this will be determined on the individual merits of a case.

This gives us limited guidance about what material means.

Second, there is a passage entitled Do I need planning permission to home work or run a business from home? The passage is as follows:

Planning permission will not normally be required to home work or run a business from home, provided that a dwelling house remains a private residence first and business second (or in planning terms, provided that a business does not result in a material change of use of a property so that it is no longer a single dwelling house). A local planning authority is responsible for deciding whether planning permission is required and will determine this on the basis of individual facts. Issues which they may consider include whether home working or a business leads to notable increases in traffic, disturbance to neighbours, abnormal noise or smells or the need for any major structural changes or major renovations.

This first sentence of this paragraph appears to address the term incidental, while the phrase in brackets describes the term material.  The second and third sentences appear to be of general application. The overall impression that this paragraph makes is that the two questions whether a new use of land is incidental to the use of a home as a home and whether a change of use is material are two ways of looking at the same question, and that the kinds of factors relevant to answering that question have to do the impact of the change of use on others in the area. Based on this paragraph, you could assume that planning permission to work from home would not be required if the change did not disturb the neighbours.

Finally, if you want to confirm that how you are using your home is lawful, you can apply to your local planning authority for a certificate of lawful use under section 191 of the Town and Country Planning Act 1990. If the authority refuses the application, you can appeal under section 195 to the Secretary of State (for Levelling Up, Housing and Communities). The appeal would be considered by an Inspector on behalf of the Secretary of State. If the Inspector dismisses your appeal, you can make a further appeal to the High Court under section 288. An application to appeal in this way requires permission from a judge to proceed to a full hearing, based on the merits and importance of the appeal.  

That is the background. On with our case.

Ricki Sage is a personal trainer who lives in Beckenham. He has a shed in his garden that contains, among other things, gym equipment. Starting in 2016, Mr Sage’s clients would come to his home and use the shed and the equipment in it. Clients would access the garden and the shed from a passage between the house and the neighbouring house. Mr Sage did not apply for planning permission to use his home in this way, presumably because he did not think he needed it. Instead, he applied to his local planning authority, the London Borough of Bromley, for a certificate of lawful use to confirm that his use of his property was lawful. Bromley rejected the application. Mr Sage appealed to the Secretary of State. 

The Inspector described the issue that he had to decide as follows:

whether the appellant has shown that use of a residential outbuilding as a one-to-one personal training studio is ancillary to the residential use of the dwelling and has not amounted to a material change of use requiring planning permission.

We can see here the two issues we identified earlier, although the statutory term incidental has been replaced with the word ancillary.

The Inspector referred to the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? and focussed on the issue of noise highlighted in that passage. The Inspector considered that there was no or negligible noise resulting from the use of the property for personal training. The Inspector was more concerned by the clients’ comings and goings, using the passageway between the properties and arriving and leaving by car. He said the following about this:

Given the residential setting, this is likely to have caused a noticeable increase in general noise and disturbance in and around the property. Consequently having regard to the number, frequency and duration of the training sessions the studio use is materially different in character to use as a home gym by occupiers of the dwelling and it has appreciably changed the manner in which the property is being used.

The Inspector’s conclusion was that using the shed and garden for personal training sessions did constitute a material change of use of Mr Sage’s home. His appeal was dismissed.

Mr Sage responded to this decision by making a second application to Bromley for a certificate of lawful use. In this application, Mr Sage intended to address the deficiencies of his first application, which he considered had been rejected solely because of the disturbance caused by the comings and goings of his clients. He provided the hours in which his property was accessed by clients, the means of transportation that his clients used, letters from neighbours stating that they were not disturbed by any noise from his clients, and a report by an acoustics expert stated that the clients’ arrival and departure created no discernible noise or disturbance.

Bromley rejected Mr Sage’s second application. Having asked local residents, it found that the opinion that Mr Sage’s clients’ comings and goings caused no disturbance was not universally shared. Based on the information it had gathered and that provided by Mr Sage, Bromley considered that the use of the shed and garden for personal training had “the potential to have a negative impact on existing residents.” As such, that use was sufficiently different in character from the use of Mr Sage’s home as a home to change the character of the use of the land.

The Inspector who considered Mr Sage’s appeal against the refusal of his second application said that the issue was whether Mr Sage’s use of his shed and garden was “incidental to the residential use of the dwelling or represents a material change in that use, that requires planning permission.” The Inspector accepted that the impact of the personal training in terms of noise was negligible. However, this was not the only issue. In her decision letter, the Inspector said as follows:

18. I acknowledge that the training sessions themselves appear to be well controlled, and this is a view supported by the acoustic report and evidence provided by local residents about the lack of noise. Nonetheless to my mind, noise is not the only factor to consider. The comings and goings that arise from at least 4 to 5 clients a day, in addition to those individuals who would usually be expected to visit a dwelling, can also cause disturbance to neighbours. Any disturbance is exacerbated by the tight knit design of the properties and need for callers to use the narrow access and small rear garden, which is clearly visible [from] the rear windows and gardens of the neighbouring dwellings.

19. For the above reasons, in this compact residential setting, I do not consider that the scale of the business related training sessions, both at the time of the application, and at the reduced level, can reasonably be considered to be either de minimis or incidental to the enjoyment of the dwelling house. Accordingly, a mixed use has occurred. I am satisfied that this finding accords with the advice found on the Planning Portal and referred to in the appellant’s statement.

20. Consequently, in the particular circumstances of this case, I find that as a matter of fact and degree, the use of the outbuilding for business related training sessions on this scale, is not incidental to the use of the dwelling and results in an overall change in the character of the property.

In summary, the Inspector decided that the level of disturbance other than noise created by the personal training, primarily the visible passage of clients into and out of Mr Sage’s property, means that the use of the property for this purpose was a material change of use and was not incidental to Mr Sage’s use of his home as a home. It followed that Mr Sage’s appeal was dismissed.

Mr Sage appealed against this decision to the High Court. He was granted permission to proceed to a full hearing by Timothy Mould QC, sitting as a Deputy High Court Judge. Mr Mould said as follows:

This claim raises an arguable issue about the materiality of environmental and amenity considerations to the question whether the use of a building within the curtilage of a dwelling house is for a purpose incidental to the enjoyment of the dwellinghouse as such, within the terms of section 55(2)(d) of the Town and Country Planning Act 1990.The issue is of some importance given the increasing use of the home as a place of work and business. The court will be assisted by the parties’ submissions on the correctness in law of the current Planning Practice Guidance on that question.

Mr Sage appealed against the second Inspector’s decision on three grounds. First, he argued (or his barrister, Kate Olley, argued on his behalf) that visual disturbance was an immaterial consideration in this case, and that the Inspector had erred by basing her decision on this. Second, he argued that the Inspector’s reasoning was legally inadequate: in particular, she had not explained why it was more visually disturbing for a client to visit Mr Sage’s home than for a friend to do so. Third, he argued that the Inspector’s decision on disturbance was irrational because the evidence was not capable of supporting a conclusion that Mr Sage’s use of his land disturbed anyone, either aurally or visually.

The judge who heard the appeal was Sir Duncan Ouseley, a retired High Court judge with experience in planning law who stills hears cases occasionally. He rejected Mr Sage’s first ground of appeal. It is true that the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? does not list visual disturbance as a relevant issue. However, the list is non-exhaustive. Visual disturbance was not immaterial. The judge also rejected Mr Sage’s second ground of appeal. In the context of the decision letter as a whole, the nature and extent of the visual disturbance caused by Mr Sage’s clients was perfectly well explained. Finally, the judge rejected Mr Sage’s third ground of appeal. The Inspector’s treatment of the issue of visual and aural disturbance was well within the scope of permissible planning judgment. If she erred, it was in favour of Mr Sage. It followed that Mr Sage’s appeal was dismissed.

Having dispensed with the appeal, the judge dealt with two remaining matters. First, he addressed serious deficiencies in Mr Sage’s application form for a certificate of lawful use, which could have resulted in his case failing even if one of his legal arguments had succeeded.

Second, and it appears that this is why Mr Mould granted permission to appeal, the judge addressed the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? The passage (again) states as follows:

Planning permission will not normally be required to home work or run a business from home, provided that a dwelling house remains a private residence first and business second (or in planning terms, provided that a business does not result in a material change of use of a property so that it is no longer a single dwelling house). A local planning authority is responsible for deciding whether planning permission is required and will determine this on the basis of individual facts. Issues which they may consider include whether home working or a business leads to notable increases in traffic, disturbance to neighbours, abnormal noise or smells or the need for any major structural changes or major renovations.

Two things about this passage concerned the judge. First, the first sentence is a confusing statement of the law. Just because a property is “a private residence first and business second” does not mean that the business use will be “incidental” to the use of the home as a home. And the two distinct questions, of material change and incidental use, are blurred. Second, the third sentence suggests that the focus of these questions is on environmental impact such as might affect neighbours. This is misleading. Environmental impact may be one of many factors. As the judge said at paragraph 82: “The crucial test is whether there has been change in the character of the use.” This may be measured by having regard to disturbance produced, but no disturbance is required is order for land to be used differently from before.

This is important for any home-workers whose conventional place of work would be an office. Such work, in general, would create significantly less disturbance than personal training, and would not tick any of the boxes in the guidance. A computer-based home-worker could easily infer from the guidance that they would never require planning permission to work from home. Following this High Court decision, that is in doubt.

The guidance, as criticised by the judge, gives the impression that the threshold for requiring planning permission in these cases is higher than it is. Your home can be a home first and a place of work second, where the work is imperceptible by neighbours, and still undergo a material change of use from being purely a home and the business use not be incidental to the home use. Of course, if disturbance is not the only or even the primary factor, the question is: what are the factors to be taken into account? Does the number of monitors I set up in my home office determine whether my move to working from home is a material change of use? Or the number of days each week that I work from home? Does the size of my home office affect whether my use of part of my home as an office is incidental to the use of my home as a home? Is it about space, or time? If neither, what can we go by?

These are exactly the questions that judges in planning cases regularly decide and that planning professionals answer. We could conduct a review of the case-law to anticipate what the answers might be. But, as the judge pointed out, what is considered a normal use of a home has changed a great deal recently. Principles from the past may not be directly applicable to today’s cases. The millions of people who now work from home at least some of the time require practical, accurate and up-to-date guidance from the government so that they do not have to pay lawyers or involve themselves in litigation like Mr Sage did to ensure that they are in a legally sound position. Hopefully, the DLUHC will update its guidance so that it accurately reflects the law as it applies today and so that we can all know whether we need to ask the council’s permission to sound-proof the spare bedroom.

Finally, we have to recognise a further set of questions. If the factors determining how I can use my land go beyond the use’s effect on others, what is the justification for that limitation of my property rights? What business does the state have controlling what I do quietly within my four walls? Balancing the interests of the individual proprietor with the interests of the community is the classic rationale for planning law. The answer to the question is that the community to whose interests my rights must sometimes submit is broader that the immediate geographic area around my home. My choice to work from home affects the cafés and the air quality around my now-quiet office. It can contribute to changes in house prices; it could influence investment in infrastructure. If the government wants to put its thumb on the scales of the debate alluded to in my opening paragraph – is working from home to be encouraged or discouraged, and under what circumstances? –  one of the easiest ways it can do so is by simply making it unlawful for me to work from home. Whether this would be an abuse of state power or an appropriate displacement of the market from its decision-making role is a debate for another time. But we can probably all agree that it would be best if planning policy at least knew what it was doing.

What I’ve been listening to this week…

After the clocks go back, it suddenly feels like Advent, but it is three weeks until I can put on those albums. So I have been looking for other warming, comforting music. This week, it has been Fauré’s Cantique de Jean Racine, which may as well be Advent music to me. Who knows why, but Bruce Springsteen has been really hitting the spot too. 

And I finally saw No Time To Die, but I can’t talk about that.

1066 and All That: The role of bishops in the courts after the Norman Conquest

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The decades after the Norman Conquest of England in 1066 were a time of tremendous political and administrative upheaval, which saw the transformation of many Anglo-Saxon institutions, including the church and, to a lesser extent, the courts. In consolidating his rule over an unfamiliar kingdom, whose language he did not speak, William the Conqueror relied heavily on his bishops. Initially content to allow incumbent bishops to continue in post, in 1070 William changed strategy and deposed five bishops who had especially close ties to powerful pre-Conquest families. These he replaced with men from the continent, several of whom had already served as chaplains in the royal chapel. During the rest of his reign, William continued to appoint bishops who had been educated at prestigious cathedral schools on the continent before serving for a period in the royal chapel.   

By the time of his death in 1087, the king had assembled an impressive episcopal bench in England, full of men of proven loyalty and exceptional administrative abilities. The Conqueror’s bishops played a crucial role in the establishment of the new Anglo-Norman regime, as did two bishops of Norman dioceses — the king’s half-brother Odo of Bayeux (at least until his imprisonment in 1082 or 1083) and Geoffrey, bishop of Coutances. They served the king as royal justices and administrators, tutored his children, led military expeditions on his behalf, and played an important part both in the coordination of the Domesday survey of 1086 and in the effective functioning of the legal system of the day, through their role presiding over meetings of the shire court. It is this last responsibility which forms the main subject of this piece.[1]

Scene from the Bayeux Tapestry in which Bishop Odo blesses the first meal that William the Conqueror and the Norman barons ate on English soil

William I inherited a kingdom in which the shire was already established as the standard territorial subdivision for administrative and fiscal purposes, except in the far North. Its court was of fundamental importance in local government. The principle that the shire court should meet twice a year was enshrined in the mid-tenth century in the Andover law code of King Edgar, which also specified that the bishop and the ealdorman of the shire should preside over the assembly, as representatives of sacred and secular law respectively. This code also decreed that no one should take a plea to the king unless his own lord had refused, or been unable, to do right by him. This provision was expanded during the reign of King Cnut, whose surviving law code stipulated that a man might not take his plea to the shire court until he had demanded justice three times in the hundred court, and must never take any dispute to the king’s court which could be resolved in a lower court. Even in the tenth and eleventh centuries it would seem that there were concerns about the higher courts being overwhelmed by frivolous challenges.

Although pre-Conquest law codes suggest that an apparent hierarchy of courts already existed in England by the mid-eleventh century, in practice it might not always have been readily apparent where a case ought to be resolved. This potential ambiguity can be observed in legal historian Patrick Wormald’s discussion of a dispute in 990 between a nobleman, Leofwine, and a noblewoman, Wynflæd, over lands in Berkshire.[2] In this instance, Wynflæd wished to take her case directly to the king but Leofwine insisted upon it being heard in the shire court of Berkshire. Eventually the shire court was convened to hear the plea, Bishops Æthelsige of Sherborne and Æscwig of Dorchester presided, the king sent his seal with the abbot of Bath, and Wynflæd ultimately won. The case illustrates the successful functioning of an Anglo-Saxon shire court, but also how, despite the promulgation of royal law codes, there might still be some confusion as to whether it was the correct forum for certain disputes to be aired. It is also striking that the account of this plea records two bishops presiding alone, without a secular lord alongside them.

The shire court in this period performed a wide variety of judicial and social functions. It was a forum for litigation, certainly, but also a place where arrangements were made for the collection of taxes, where men might be outlawed, where business transactions might occur, or marriages be arranged. It was thus in the interests of every landholder, great or small, to be in attendance at the court, or at least to make sure he (or more infrequently she) was represented there.

Despite the centrality of the shire court to Anglo-Saxon and Anglo-Norman government in the localities, however, it is difficult to obtain a complete picture of how the institution functioned in practice during the turbulent years after 1066. Two possible facets of its operation are presented in contrasting, but not incompatible, reconstructions by Richard Sharpe and Nicholas Karn. In his pioneering 2003 article on ‘The Use of Writs in the Eleventh Century’, Sharpe gave a clear account of how a type of document known as a writ-charter might have been requested and obtained by a beneficiary, delivered to the shire court and there read aloud to the assembled company, before being returned to the beneficiary, who could choose whether to retain the document.[3] The process Sharpe envisaged was a sophisticated and systematic one, initiated at the request of beneficiaries but firmly controlled and directed by royal government at the centre. Karn, by contrast, presented shire courts as potentially chaotic forums which ‘were not designed for the efficient processing of business sent to them from on high, but rather seem often to have found decision-making difficult. Their importance does not derive from their usefulness to kings, as a means of imposing policy and decisions, but from their usefulness in debate.’[4]

It is possible to reconcile these interpretations to some extent. We may accept that kings had a sophisticated administrative mechanism at their disposal, in the shape of writs and writ-charters, while also recognising that the institutions to which documents were directed might sometimes have operated in a rather unruly fashion. It is also probable that a good deal of routine business was carried out smoothly and uneventfully in local assemblies but has left no trace in narrative accounts and documentary archives concerned with recording and preserving the exceptional. Nevertheless, the tension between the two readings may reflect an actual tension in the shire courts of the eleventh century, between the governmental objectives of the king on the one hand and political circumstances on the ground in the localities on the other.

The Conqueror’s reign was an important period in the development of the shire court, with the loss of many of the earldoms which had characterised the political geography of pre-Conquest England. From the middle of the tenth century until the reign of Edward the Confessor, bishops and ealdormen or earls had habitually presided over the court together. The old Anglo-Saxon earldoms did not disappear entirely after the Conquest, nor were all of their English incumbents immediately removed. Nevertheless, English earldoms diminished in number and altered in nature over the ensuing decades. No longer was every county and every shire court necessarily presided over by an earl, as they had been during Edward the Confessor’s reign.

Where earls vanished, however, bishops continued to appear, presiding over meetings of the shire court long after their secular counterparts had ceased to do so. They occur occasionally in narrative accounts of shire court proceedings but most of the evidence for their involvement comes from contemporary royal writs. These were short documents in epistolary form, authenticated by the king’s seal and usually contained some kind of notification or injunction for the recipient. Or they might be writ-charters, which took a similar form but conferred land or rights on their beneficiary. Because these documents took the form of letters, and most historians agree they were intended to be read out in the shire court, their address clauses provide useful clues as to which officials usually presided over meetings of the court.

The origins of the writ in England may lie as far back as the ninth century. They were certainly in habitual use by Anglo-Saxon kings by the late tenth century, alongside longer and more formal documents known as ‘diplomas’, although the earliest surviving examples date from the reign of Cnut in the early eleventh century. The reign of Edward the Confessor saw the proliferation of writs, which quickly supplanted the more unwieldy diplomas. After 1066 diplomas to English beneficiaries all but disappeared. By contrast, the writ flourished and performed an increasing range of functions. A number of supposed writs of William I are in fact forgeries dating from the mid twelfth century onwards, mostly from the abbeys of Westminster and Battle. The eagerness of twelfth-century forgers to produce counterfeit royal writs, as well as spurious diplomas, demonstrates that writs were considered important enough to be worth forging.

David Bates’ edition of the charters of William I, Regesta Regum Anglo-Normannorum, contains 171 writs or writ-charters, of which thirty-one are outright forgeries.[5] During my PhD research I analysed these writs for the individuals or groups to whom they were addressed and their language of composition. The main impression which emerged was one of variation, with practices far from standardised. Groups and individuals in late-eleventh-century landed society appear in a wide variety of combinations and sometimes it is difficult to identify for certain the office which a particular addressee held. For example, Gamel, son of Osbeorht, appears alongside Earl Morcar in a writ of 1067 × 1069 granting land to Beverley Minster in Yorkshire. His appearance in this context suggests that Gamel was probably the sheriff of Yorkshire at this date but this writ is the only evidence that he ever occupied the office.

Variation and occasional uncertainty notwithstanding, it is possible to gain a general sense of what proportion of the surviving writs of William the Conqueror featured different kinds of people. Of all the office holders addressed in these documents, bishops appear in the greatest numbers. Ninety of the 140 writs which are certainly or potentially authentic include a bishop or bishops among their addressees, a proportion of 64.3% or a little under two-thirds. Sheriffs are the second most prolific group, with eighty-four appearances. Earls appear thirty-seven times, and two early writs, in favour of the abbeys of Bath and Westminster, include a type of Anglo-Saxon official known as a ‘staller’ among their addressees, apparently taking the place of the earl.

Bishops, then, appear in a majority of extant writs of William I, though by no means in all. Several factors may have affected the likelihood of a bishop being among the addressees of any given writ. In some cases, he may have been omitted from a document because it detailed a grant, or the outcome of a plea, which ran contrary to episcopal interests and which the bishop in question might therefore have wished to obstruct. Such may be the case in a writ of 1081, addressed to Roger Bigod, the sheriff of Norfolk, notifying him of the resolution of the long running dispute between the local bishop, Herfast of Thetford, and the abbot of Bury St Edmunds. The king informed the sheriff that he and his leading magnates had heard the case and decided in favour of Abbot Baldwin, and ordered that the bishop should make no further claims upon the church of St Edmund. Bishop Herfast must have been informed of the outcome of this plea, if indeed he was not present when the decision was made, but in the context of a protracted and acrimonious dispute such as this one, it makes sense that the sheriff alone should be addressed and that the king should charge him, as a neutral party and royal representative, with enforcing the outcome.

On the other hand, there are those documents where the bishop himself, or his cathedral church, was the beneficiary. This did not necessarily preclude him from also being an addressee, but it did make it less likely. Forty authentic or potentially authentic writs in favour of episcopal beneficiaries survive, of which just over half include a bishop among their addressees (lower than the two-thirds figure for the total corpus). Of the twenty-one writs where bishops do appear, six are addressed to the beneficiary bishop, seven more generally to ‘episcopis’ or ‘archiepiscopis’, four to the bishop of the diocese where the land being granted was located, and a final four to a named bishop who is neither the beneficiary nor the diocesan for the shire in which the grant was made.

Of these categories it is perhaps the last group which is most interesting, demonstrating as it does the part that might be played by bishops in the local politics and administration of areas beyond the boundaries of their own dioceses. Two of these writs are addressed to Archbishop Lanfranc and indeed it makes sense that a writ might be directed to the archdiocesan bishop in cases where the diocesan bishop was either the beneficiary of a grant or involved in a dispute in need of resolution. However, two other writs demonstrate that, in exceptional circumstances, ordinary diocesan bishops might be addressed about business which had nothing to do with their own dioceses. Both are connected with that most extraordinary of events: the Domesday survey.

One is a writ issued by Bishop Geoffrey of Coutances, acting in a vice-regal capacity, and addressed to Remigius, bishop of Lincoln, and several other nobles, informing them of the outcome of a dispute between the bishop of Worcester and the abbot of Evesham. This writ is undoubtedly connected with the role of these men as Domesday commissioners in the West Midlands, which is recorded in a late-eleventh century account of a Worcestershire Domesday session by a monk from Worcester cathedral named Hemming. The function of this document was not to effect a grant or settlement in itself, but to provide the commissioners with information which was of use to them in the performance of their commission. Hemming makes it clear that it was not directed to a routine meeting of the shire court but to an extraordinary assembly which occurred at the time ‘when the king ordered the whole of England to be described’.

A second writ dealing with the grant of Bishop’s Stortford castle to Bishop Maurice of London is addressed to Bishop Osmund of Salisbury and the sheriffs of Oxfordshire and Essex. This grant must have been made after Maurice’s appointment as bishop at Christmas 1085 and presumably before King William’s departure for France in the autumn of 1086. Great Domesday Book tells us that Maurice held land at Stortford but makes no mention of the castle. It is therefore possible that the grant was made some time during 1086, after the first stage of the survey was completed. Unlike the Worcestershire example, it does not seem to be explicitly connected with the Domesday survey.

The language of the writ is Old English rather than Latin, even some fifteen years after King William had adopted Latin as the normal language of written communication with his key officials. However, there is considerable evidence that the shire courts were still operating in English some forty years after the Conquest. This may, therefore, be a rare surviving example of a once numerous body of Old English writs, which continued to be issued to shire courts after the apparent 1070 transition to Latin as the language of central government.

If this is to be interpreted as a writ designed to be read in the shire court, however, it raises questions about which shire is being addressed, and why Bishop Osmund should appear to have presided over an assembly which must have occurred outside his own diocese and was not explicitly part of the Domesday survey. Is it possible that, as a consequence of the unavoidable upheaval that the survey must have caused, and the forced itinerancy of some of the most important men in the country, shire court meetings during the first half of 1086 might have been presided over by whichever ecclesiastical or secular magnates happened to be on hand, so as to avoid an eleventh-century court backlog?

This flexibility regarding who William entrusted to preside over local courts is further reflected in the number of his surviving writs which are addressed to some combination of Archbishop Lanfranc, Geoffrey of Coutances and, less frequently, Odo of Bayeux and Robert, count of Mortain. This select group of men were William’s closest advisors and most capable administrators. At least until the disgrace and imprisonment of Odo in 1082 or 1083, each of them stood right at the heart of the king’s council. Two, Odo and Robert, were his half-brothers. Three were bishops, though only one presided over an English diocese. At different times both Odo and Geoffrey issued writs on behalf of the king, acting in an effectively vice-regal capacity.

William seems to have employed this ‘task force’ of powerful and experienced men in situations which were too urgent, complex or delicate to be resolved through the usual channels of local government. Such is the case in a series of writs in favour of the abbey of Ely, addressed variously to Lanfranc, Geoffrey of Coutances and Robert of Mortain and datable to 1081 × 1087, during which period the abbey was in a customs dispute with Bishop Remigius of Lincoln. Sometimes members of the ‘task force’ were explicitly charged with resolving disputes over jurisdiction between bishops and neighbouring abbeys, as in a Worcester writ of 1078 × 1085 demanding that Lanfranc and Geoffrey settle a disagreement between Bishop Wulfstan of Worcester and Abbot Walter of Evesham and specifying that Geoffrey should preside in place of the king. In other cases, there are writs which do not directly address a dispute but still refer to circumstances which have arisen because of it, such as an instruction that the abbey of Ely should be allowed to take repossession of various lands in Cambridgeshire, Suffolk and Essex.

William issued an increasing number of these ‘task force’ writs during the later years of his reign, a fact which might seem to support Nicholas Karn’s suggestion that the shire court was rather an unwieldy forum for resolving disputes, structured as it was to facilitate debate more than decision. It may have become increasingly apparent to the king that the shire courts, so well adapted to the routine business of eleventh-century government, were not fully equipped to deal with some of the more protracted and complex disputes which arose in the turbulent years after the Conquest. It is a testament both to William’s political judgement and to the flexibility and utility of the writ as an instrument of royal government, that he was able to counter extraordinary circumstances with specific instructions to some of his most powerful and competent men.

Does it necessarily follow that the individuals addressed in a writ were actually present at the shire court to hear it read out? It is true that bishops are the most frequently addressed group of people in the surviving writs of William I. Yet even in cases where the subject of a writ was a straightforward grant of property or privileges, the addressees did not always include the bishop/s for the shire, or shires, where the property was situated.

Sometimes, for example, when the beneficiary institution and the property being granted were in separate shires, writs seem to have been addressed to the relevant archbishop, as though the matter had been referred higher up the ecclesiastical hierarchy. A general confirmation of all the lands and customs of St Mary’s of Abingdon, probably issued shortly after the accession of Abbot Adelelm in 1071, was addressed to Archbishop Lanfranc and the relevant sheriffs for the shires where the abbey held land – that is Berkshire, Oxfordshire, Warwickshire and Gloucestershire. At this time Berkshire was part of the diocese of Salisbury, Oxfordshire part of the diocese of Lincoln, Gloucestershire split between the dioceses of Worcester and Hereford (though mostly in Worcester), and Warwickshire between the dioceses of Worcester and Lichfield. The abbey, then, held land in many different dioceses and it makes sense that this confirmation of its possessions should be addressed to the archdiocesan, rather than to each of the diocesan bishops in question.

However, the anonymous author of the abbey chronicle provided an account of this writ being read out in the shire court of Berkshire and this raises questions about the purpose of the writ and the reasons for the identity of the addressees. Was this a routine or an extraordinary meeting of the shire court of Berkshire, and did Archbishop Lanfranc actually preside over it in person? Was the writ also read in other shire courts? If so, why did the Abingdon chronicler only mention Berkshire? Lanfranc himself was also omitted from the account of the writ being read at the shire court. These questions remain unanswered, and perhaps unanswerable in this instance, but they are a salutary reminder that the presence of an individual in the address clause of a writ is not a guarantee of his presence in the shire court at its reading.

Bishops were busy men, with many competing demands on their time. It is highly likely that, the address clauses of writs notwithstanding, they were sometimes unable to attend meetings of the shire court and that their places were taken by deputies. This was also the period during which archdeaconries began to be established on a significant scale, including the earliest territorial archdeaconries, with archdeacons assisting bishops in a variety of spiritual and pastoral duties. By the time of Bishop Remigius’ death in 1092, the vast diocese of Lincoln had seven territorial archdeaconries, each of which corresponded with a particular shire: Lincoln, Huntingdon, Northampton, Leicester, Oxford, Buckingham and Bedford. While I was able to find no specific references in contemporary sources to an archdeacon presiding over the shire court in place of a bishop, it seems highly likely that they did sometimes deputise for bishops in secular as well as ecclesiastical affairs, especially in cases where the boundaries of an archdeaconry corresponded with the boundaries of a shire. It is possible therefore that some of the surviving writs addressed to diocesan bishops were actually delivered to assemblies at which they were not present, and where their place was taken by a deputy, perhaps an archdeacon.

Nevertheless, the different types of writ that continued to coexist throughout the Conqueror’s reign indicate a legal and administrative system built on solid and lasting foundations, but which was also responsive to the political needs of the moment. Traditional practices obviously continued, and probably more widely than surviving documents would suggest. The Old English writ concerning the grant of Stortford castle to Maurice of London was clearly directed towards some kind of assembly operating in the vernacular, despite the fact that the three named addressees were all Normans. It seems almost certain that more vernacular documents like the Stortford writ have been lost and that the surviving impression of Anglo-Norman administration is therefore skewed towards new and innovative forms and practices, at the expense of older and more conservative ones.

The Conqueror, meanwhile, seems to have been prepared to rely on existing structures where they were useful to him, and to devise alternative systems where traditional ones failed. The shire court system, and the simplicity and flexibility of the royal writ as an instrument of government, offered the English king a direct channel of communication with the localities, of a kind which was unparalleled in contemporary Europe, while his network of trusted bishops provided him with a competent and well-educated civil service of sorts. Moreover, unlike secular magnates, bishops left no legitimate heirs and had no independent power base derived from hereditary lands, and the king could ultimately appoint their successors to further cement his power in the provinces. More than any of his continental contemporaries, King William looked to his bishops to help him navigate the political and administrative challenges of consolidating his rule over a foreign and sometimes hostile kingdom. The Conqueror’s bishops played a profound role in almost every aspect of the law and government of England.

[1] A more detailed and fully-referenced discussion of this subject can be found in Chapter 2 of my PhD thesis, Clerks and Commissioners: The Role of Bishops in the Government of England, c.1050–1087 (Unpublished PhD Thesis, King’s College London, December 2017).

[2] Patrick Wormald, The Making of English Law: King Alfred to the Twelfth Century, Volume I: Legislation and its Limits (Oxford: Blackwell, 1999), pp. 151–2.

[3] Richard Sharpe, ‘The use of writs in the eleventh century’, Anglo-Saxon England, 32 (2003), 247–91, pp. 251–3.

[4] Nicholas Karn, ‘Centralism and local government in medieval England: constitutional history and assembly politics, 950-1300’, History Compass, 10 (2012), 742–51, p. 747.

[5] David Bates, ed., ‘Regesta Regum Anglo-Normannorum’: The Acta of William I (1066–1087) (Oxford: Oxford University Press, 1998).

Over my dead body: Privacy rights of the deceased under the ECHR

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Most people are dead. Nevertheless, dead people have little in the way of legal rights. They are (probably) not eligible for many of the common important rights: the right to bodily integrity and physical liberty; political, social and economic rights. In a striking exception, the wishes of the deceased in respect of their property are protected by the well-developed process of probate. That branch of the law aside, it may generally be said that, once a person passes away, the law washes its hands of them. Inquests deal with the dead, of course, but they are primarily concerned with rights that the subject had in life, rather than with any rights that they retain. The same goes for litigants whose estates can be represented in proceedings after their demise.

So I sat up when this Tweet by Andrew Tettenborn crossed my desk:

The decision referred to in the Tweet was ML v Slovakia [2021] ECHR 821 (application number 34159/17), which had been handed down by the European Court of Human Rights that day, 14 October 2021. The case provoked a small amount of displeasure on the platform, including on the part of the well-loved anonymous legal commentator SpinningHugo, who described the decision as “a disgrace”.

How did we get here? How did the European Convention on Human Rights reach a point where (in Professor Tettenborn’s words) it “may require the reputation of the dead to be protected”? In this blog post, I will follow the lines of authority that lead the Court to the decision in ML v Slovakia in order to clarify exactly what it stands for. Luckily for us, the cases are generally interesting and varied in their subject-matter. But I should say, for the benefit of anyone who would rather not read about such topics, that one of them, Hadri-Vionnet v Switzerland, discusses the consequences of a stillbirth, and another, ML itself, mentions sexual abuse by a Catholic priest.

I intend to stick to the expository side of legal analysis and not give my opinion on what the law should be. But it would be remiss of me to fail to contextualise the discussion. That is why I included the opening paragraph, and why I note that the field of information law in the UK generally excludes the dead too. Recital 27 of the GDPR, which has been incorporated into UK law, provides that “this Regulation does not apply to the personal data of deceased persons”. And section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 provides that, in contrast to most claims, defamation claims may not be maintained on behalf of the estate of a deceased person. This context is what makes ML v Slovakia interesting.

Before we explore the cases, it is worth briefly reminding ourselves about Articles 8 and 10 of the ECHR and the relationship between them. Article 8 provides as follows:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

And Article 10 provides as follows:

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

A qualified ECHR right such as Article 8 or 10 generally has a certain structure. The purpose of the right is primarily to restrain state action. In certain circumstances, the Articles place the state under a positive obligation to take action, but this is less common. An Article makes it unlawful for the state to do A, or requires it to do A as the case may be, but carves out an area B, described by its paragraph (2), that is not encompassed by A. A is the state’s zone of obligation and B is its zone of freedom. Article 8 prevents the state from doing 8A (interfering with privacy etc generally), but permits it to do 8B (interfering with privacy etc in accordance with law when necessary in a democratic society and for a purpose listed in paragraph (2)). Article 10 prevents the state from doing 10A (interfering with the freedom of expression generally), but permits it to do 10B (interfering with the freedom of expression as prescribed by law, necessary in a democratic society and for a listed purpose).

This is possibly an overcomplication of a familiar mechanism, but it is worth spelling it out in this way to make a preliminary point. Frits Hondius said in 1983: “Article 8 and 10 are each other’s reflection in the mirror”. One person’s right to privacy often has to be weighed against another person’s right to freely express information. This is structurally possible because Article 8(2) provides that “the protection of the rights and freedoms of others” is a justification for interfering with privacy, and Article 10(2) provides that “the protection of the reputation or rights of others” is a justification for interfering with the freedom of expression. The state is permitted to interfere with a person’s right to privacy in order to protect the freedom of expression in circumstances that put the interference within 8B. But that does not mean that that interference, which constitutes protection of the freedom of expression, will itself be required under Article 10. 10A does not begin where 8B ends. And, similarly, 8A does not begin when 10B ends. A state may be free to limit privacy to protect the freedom of expression where that protection goes beyond its obligations under Article 10. And a state may be free to limit the freedom of expression to protect privacy beyond what Article 8 requires.

The point to take away from this is that it matters whether the court is deciding a case under Article 8 or 10 ECHR, even if issues of both privacy and the freedom of expression are at stake. A court’s decision in an Article 8 case about balancing privacy and the freedom of expression may well not be seamlessly transferable to an Article 10 case. If you think this point is obvious, please join me on my journey through cases in which that does not appear to be the universal position.

Our starting-point is Editions Plon v France (application number 58148/00), which was decided in 2004. This case revolved around the death of François Mitterrand. Mitterrand was President of the French Republic from 1981 until 1995. In 1981, shortly after his first election as President, Mitterrand was diagnosed with prostate cancer, and it was from this illness that he died on 8 January 1996. The cancer was not revealed to the French public until a surgical operation took place on 11 September 1992. Even then, it was not public knowledge that the President had been diagnosed long before.

On 8 November 1995, Editions Plon, a French publishing company, signed a contract to acquire the rights to Le Grand Secret, a book co-written by a journalist and Mitterrand’s former doctor, Claude Gubler. The big secret to which the title referred was the concealment of the French President’s illness for longer than ten years. The publication of the book, originally scheduled for mid-January 1006, was postponed upon Mitterrand’s death. However, this decision was reversed because of what were perceived to be public slights upon Dr Gubler’s professional reputation. Publication was set for 17 January 1996. The Mitterrand family sought and were granted in urgent proceedings an injunction prohibiting distribution of the book on 18 January 1996. The injunction was subsequently made permanent in standard civil proceedings and upheld on appeal, not on the ground of interference with the privacy of Mitterrand or his family, but on the ground of the breach by Dr Gubler of his duty of medical confidentiality towards the late President. The publisher, its managing director and Dr Gubler were each ordered to pay damages to the Mitterrand family. Further, Dr Gubler was convicted of the crime of breaching professional confidence and given a suspended sentence.

The publisher made a claim against France before the European Court of Human Rights for breach of its Article 10 rights. It claimed that the injunction was not prescribed by law, did not pursue a legitimate aim, and was not necessary in a democratic society. It further claimed that the fine it had to pay was disproportionate to the aim it pursued.

The Court allowed the publisher’s claim in part. It held that the interference with the publisher’s Article 10 rights was prescribed by law and pursued a legitimate aim. The urgent injunction had been necessary in a democratic society, but the permanent injunction had not been. As a result, the publisher’s Article 10 rights had been violated. The Court did not make a finding about the damages the publisher had been ordered to pay.

For our purposes, the interesting part of the judgment is at paragraph [34]. Here, the Court is deciding whether the injunction against distributing Le Grand Secret pursued a legitimate aim. The Court said as follows (emphasis added):

It is apparent both from the reasoning of the judgments of the domestic courts, in particular the Court of Appeal’s judgment of 27 May 1997, and from the Government’s submissions before the Court that the judicial authorities based their decisions on a combination of two of the “legitimate aims” listed in paragraph 2 of Article 10 of the Convention, namely “preventing the disclosure of information received in confidence” (information covered under the national legislation by the rules of medical confidentiality) and protecting the “rights of others” (those of the President, and of his widow and children, to whom they were transferred on his death).

It is not for the Court to determine whether the civil liability incurred on account of the breach of medical confidentiality comes, in abstract terms, under the first of these legitimate aims, the second or both at once. It is sufficient for it to note that in the instant case the measures complained of, namely the interim injunction and the decision on the merits to keep the ban in force, were intended to protect the late President’s honour, reputation and privacy, and that the national courts’ assessment that these “rights of others” were passed on to his family on his death does not appear in any way unreasonable or arbitrary. Moreover, it is precisely because much of the information disclosed in the book was classified in law as secret, and was therefore a fortiori received in confidence, that it was capable in practical terms of infringing the rights of others, the protection of which is deemed legitimate in paragraph 2 of Article 10.

Accordingly, the interference in issue pursued at least one of the “legitimate aims” set out in the second paragraph of Article 10 of the Convention.

It is important to see what the Court says here in the context of the Article 10 analysis. The Court is saying that France was free to restrict the publisher’s freedom of expression in order to “protect the late President’s honour, reputation and privacy”. It is not saying anything about what Article 8 requires. In 2004, there was no indication that Article 8 required the protection of the reputation of the dead.

Our next case is Hadri-Vionnet v Switzerland (application number 55525/00), in which judgment was handed down in 2008. In 1996, Dalila Hadri-Vionnet, an Algerian national, sought asylum in Switzerland. On 4 April 1997, Ms Hadri-Vionnet gave birth to a stillborn baby. When asked immediately after the birth, the baby’s mother and father said that they did not want to see the body. The local civil service proceeded to transfer the baby’s body to a communal grave for stillborn babies, where the body was buried without a ceremony. Ms Hadri-Vionnet’s criminal complaints against the authorities for misuse of official authority, disturbing the repose of the dead, unlawful removal of property, and violation of her personal freedom under the Swiss Federal Constitution. The last complaint was made in the light of a decision of the Swiss Federal Court that the constitutional right to personal freedom encompassed the right of parents to object to any unjustified intervention in relation to the remains of a deceased child. All of Ms Hadri-Vionnet’s complaints were dismissed by the Swiss courts. She applied to the European Court of Human Rights in December 1999, complaining that her not having been able to attend her child’s funeral and the body’s transportation in an ordinary delivery van violated her rights under Article 8 ECHR.

The Court held that Article 8 had been violated. Having established that Ms Hadri-Vionnet’s Article 8 rights were engaged and interfered with in the circumstances, the Court was quickly able to decide that there had been no legal basis for the interference. Of interest are paragraphs [50] to [52] of the judgment, where the Court said as follows (emphasis added):

50.  The Government did not contest the applicability of Article 8 to the instant case.

51.  The Court reiterates that the concepts of private and family life are broad terms not susceptible to exhaustive definition (see, for example, Pretty v. United Kingdom, no. 2346/02, § 61, ECHR 2002‑III). Thus the former Commission had considered that the wish to have one’s ashes scattered on one’s own land was covered by the first concept (see X v. Germany, decision of 10 March 1981, no. 8741/79, Decisions and Reports 24, p. 137). Later, in the case of Znamenskaya v. Russia (no. 77785/01, § 27, 2 June 2005), the Court considered the “private life” aspect of Article 8 to be applicable to the question of whether a mother had the right to change the family name on the tombstone of her stillborn child. In the case of Pannullo and Forte v. France (no. 37794/97, § 36, ECHR 2001‑X), the Court considered the excessive delay by the French authorities in returning the body of their child following an autopsy to be interference with the private and family life of the applicants. Lastly, in the case of Elli Poluhas Dödsbo v. Sweden (no. 61564/00, § 24, ECHR 2006‑…), the Court considered that the refusal to authorise the transfer of the urn containing the applicant’s husband’s ashes was a matter falling within the scope of Article 8, without however stating whether the interference found related to the concept of private life or family life.

52.  In the light of that case-law, the Court considers Article 8 to be applicable to the question of whether or not the applicant was entitled to attend the burial of her child, possibly accompanied by a ceremony, and to have the child’s remains transported in an appropriate vehicle.

There are two points to note in these paragraphs. First, Switzerland did not contest the applicability of Article 8, so although the Court stated that its conclusion was supported by its previous decisions it would not have heard full argument on the point. Second, the decision is focussed on the wishes and feelings of the living applicant, Ms Hadri-Vionnet. Both the Court’s conclusion and the decisions cited concern the impact of state action or inaction on a living person. Paragraph [52] puts within the scope of Article 8 whether “the applicant was entitled to attend the burial” and “to have the child’s remains transported in an appropriate vehicle”,with Ms Hadri-Vionnet as the grammatical subject despite the second component concerning the treatment of the body, not of the mother. It was emphatically Ms Hadri-Vionnet’s Article 8 rights, as a matter of both substance and form, that had been violated.

The Court decided some relevant cases between 2008 and 2011, including Palade v Romania (application number 37441/05), Hachette Filipacchi Associés v France [2007] ECHR 5567 (application number 71111/01) and John Anthony Mizzi v Malta [2011] ECHR 1960 (application number 17320/10). However, none of these contributed anything new after Editions Plon and Hadri-Vionnet. The next case worth examining in detail is Putistin v Ukraine [2013] ECHR 1154 (application number 168882/03), decided in 2013. The applicant, Vladlen Mikhaylovich Putistin, was the son of Mikhail Putistin, a professional footballer who had taken part in the “Death Match”, a notorious football match between Ukrainian and German players during World War Two. When the Ukrainian side lost, at least eight of its members were sent to concentration camps and at least three, which were executed. Fast forward to 2001, by which time Mikhail Putistin had died, not by execution of the Nazis. A newspaper published an article that essentially alleged that the Ukrainian players who had not been executed after the match had been collaborators with the Gestapo. The article did not mention Mikhail Putistin’s name. But his son applied to the Ukrainian courts for rectification of untrue information and damages. He had no success. He applied to the European Court of Human Rights to complain of a breach of his right to the protection of his reputation under Article 10 ECHR, but the Court decided that the application should be considered under Article 8. The Court decided that Article 8 was applicable to the application before dismissing it on the basis that that the interference with the applicant’s Article 8 rights had been minimal and the Ukrainian courts had struck an appropriate balance between the competing rights of the applicant, the newspaper and the journalist. Paragraph [33] is the interesting part, where the Court considered the applicability of Article 8. The Court said as follows:

33.  The question of whether the damage to the reputation of an applicant’s family can be considered an interference with the right to respect for the applicant’s private life was raised, but not finally decided, in Palade v. Romania ((dec.), no. 37441/05, § 25, 31 August 2012). The Court can accept, as do the Government, that the reputation of a deceased member of a person’s family may, in certain circumstances, affect that person’s private life and identity, and thus come within the scope of Article 8.

Three points to note. First, again, Ukraine accepted the applicability of Article 8 to the situation, limiting the precedential value of the decision on this point and perhaps contributing to the terseness of its expression. Second, while still formally directed to the applicant and not to his late father, the formulation of what falls within the scope of Article 8 is more protective of the deceased individual than Hadri-Vionnet. In that case, what mattered was the protection of the applicant’s agency in respect of her child and her feelings consequent to the denial of that agency. In this case, the applicant’s relationship with his late father was not in any way interfered with. It was simply the impact on the applicant of the impact on the father’s reputation that mattered. This seems to be different. Third, the “certain circumstances” are not fleshed out at all. Especially in the light of the novelty of the conclusion, the Court does not give any guidance as to how, or how often, it will apply.

The decision in Putistin was considered in an interesting 2014 decision, Yevgeniy Yakovlevich Dzhugashvili v Russia (application number 41123/10). This case related to a complaint by the grandson of Joseph Stalin that the Russian state was failing to protect the reputation of the latter against attacks in newspapers. The Court essentially rejected the application on the basis that legitimate criticism of public figures was to be distinguished from defamatory attacks on private persons. Part of the Court’s reasoning, in paragraphs [21] to [27], is worth reading in full. The Court said as follows (emphasis added):

21.  The complaint is twofold. In so far as the applicant can be understood to be complaining of a violation of the Convention rights of his grandfather, the Court will first examine the applicant’s locus standi in this respect.

22.  In the case of Sanles Sanles v. Spain ((dec.), no. 48335/99, ECHR 2000-XI) the applicant, as the heir of a deceased person, was complaining on behalf of the latter in respect of his claims for recognition of the right to die in dignity. The Court considered that the right claimed under Article 8 of the Convention, even assuming that such a right existed, was of an eminently personal nature and belonged to the category of non‑transferable rights.

23.  The Court confirmed the principle that Article 8 rights were non‑transferable when it refused a universal legatee to pursue an application lodged by the immediate victim in the case of Thevenon v. France ((dec.), no. 2476/02, 28 June 2006).

24.  The Court does not find sufficient reasons to depart from its established case-law in the instant case. It follows that the applicant does not have the legal standing to rely on his grandfather’s rights under Article 8 of the Convention because of their non-transferable nature.

25.  It follows that this part of the complaint is to be rejected under Article 34 as being incompatible ratione personae with the provisions of the Convention.

26.  As to whether the applicant’s own right to respect for his private and family life are at stake in the instant case, the Court will proceed with the examination of whether the two above-mentioned disputes and the way in which they were resolved by the domestic courts affected the applicant’s own private and family life and, if so, whether the State took such measures as to secure effective respect of the latter.

27.  In its recent case-law the Court has accepted that the reputation of a deceased member of a person’s family may, in certain circumstances, affect that person’s private life and identity, and thus come within the scope of Article 8 (see Putistin v. Ukraine, no. 16882/03, §§ 33, 39, 21 November 2013, where a publication in the mass media allegedly provoked the presupposition that the applicant’s father had been a Gestapo collaborator).

This is worth reading for two reasons. First, it is authority, if any were needed, for the proposition that, as a formal matter, a family member cannot apply to the Court to vindicate a deceased person’s Article 8 rights. Any rights protected must belong to a living person. Second, the Court accepted in principle the decision in Putistin, although it said at [28] that it was “not ready to draw a parallel with the Putistin case” because of the different subject matter of the application. Although it is not clear, this indicates that the Court did not reject the application on the basis of justification for interference, but on the basis that the “certain circumstances” did not extend to Yevgeniy Yakovlevich’s situation, meaning that no Article 8 rights were interfered with at all. So we have a small indication of how the “certain circumstances” are to be drawn.

For our next case, we leave the terrain of Article 8 and return to Article 10. In Genner v Austria [2016] ECHR 36 (application number 55495/08), Michael Genner had written a piece for publication on the website of an organisation supporting asylum seekers and refugees that celebrated the death of the Austrian Interior Minister, Liese Prokop (referred to as “L.P.” in the judgment). Mr Genner was convicted of the crime of defaming Ms Prokop, partly due to the association of the late Ms Prokop with Nazi ideology. His conviction was upheld on appeal and he complained to the European Court of Human Rights that his Article 10 rights had been violated. The Court dismissed the application, since the interference with Mr Genner’s Article 10 rights was prescribed by law, pursued the legitimate aim of protecting the reputation and rights of both Ms Prokop and the members of her family, and was proportionate.

Two short passages stand out. First, when discussing the relevant principles, the Court said at [35] as follows:

35. Dealing appropriately with the dead out of respect for the feelings of the deceased’s relatives falls within the scope of Article 8 (see with further references Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008, Editions Plon v. France, cited above § 46 and Putistin v. Ukraine, no. 16882/03, § 33, 21 November 2013). […]

It may be said that this is a pedantic point, but to say that the action described here simply “falls within the scope of Article 8”, with no mention of the “certain circumstances” from Putistin, is striking. Perhaps this is part of a trend of moving the whole battle into the justification stage from the earlier interference stage. Or perhaps, because this is not strictly an Article 8 case, the Court did not feel the need to express itself precisely on this point. Whatever is the fair judgment on that point, it is concerning that the Court cites Editions Plon, an Article 10 decision that does not mention Article 8 once, to support a proposition about Article 8. It is unclear why it was thought relevant to explain this Article 8 principle at all, when any balancing exercise between Articles 8 and 10 is far from explicit in this case. It is all the harder to work out when paragraph [46], to which the reader is referred, does not appear to be relevant and it may have been an error to cite it.

Second, when applying the principles to the facts of the case, the Court said at [41] as follows (emphasis added):

41.  The Court further agrees with the government that the interference did pursue the aim of the protection of “the reputation or rights of others”, namely those of L.P. and the close members of her family ‒ in particular her husband ‒ which constitutes a legitimate aim within the meaning of paragraph 2 of Article 10 (see, Editions Plon v. France, cited above, § 34).

What we remarked upon at the start of our journey in Editions Plon is referenced and repeated: as a matter of justification for interfering with Article 10 rights, a state is free to consider that the rights of a deceased person continue to be capable and worthy of protection. This is in marked contrast to the formal position under Article 8, as expressed in Dzhugashvili at [24]. The fact that the principles in these two classes of case need to be carefully distinguished is what makes it problematic that the Court cited Editions Plon in the way it did at [35].

This brings us to our recent case: ML v Slovakia [2021] ECHR 821 (application number 34159/17). We come back to Article 8. The son of the anonymous applicant had been a Roman Catholic priest and a convicted sex offender before dying in 2006. In 2008, newspapers ran articles about the deceased man that, in the applicant’s view, alleged more than had been proved in court, interfering with both his and her privacy rights and contributing to a deterioration in her health. Although partly successful at first instance in her attempt to secure apologies and damages through the Slovakian courts, the applicant failed following all possible appeals. The applicant applied to the European Court of Human Rights, arguing that her Article 8 rights had been violated. The Court agreed. The applicant’s Article 8 rights had been interfered with; the deceased’s lack of prominence, the sensationalism of the articles, and their lack of any contribution to a debate of general interest should have led the Slovakian courts to conclude the balancing exercise in favour of the applicant.

Two passages demand remarks. First, the Court said at [23] about the applicability of Article 8 as follows:

23. It is clear from the Court’s case-law (see Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008, with further references; Editions Plon v. France, no. 58148/00, § 46, ECHR 2004‑IV; and Putistin v. Ukraine, no. 16882/03, § 33, 21 November 2013), and the Government accepted, that dealing appropriately with the dead out of respect for the feelings of the deceased’s relatives falls within the scope of Article 8 of the Convention.

This is basically a repeat of paragraph [35] of Genner, with the garnish of Slovakia’s acceptance of the principle. Notably, the same authorities, with the same apparently erroneous or at least unhelpful paragraph reference to Editions Plon, appear to have been copied and pasted in. But Genner itself is not even cited in this case, which is no wonder, because it is an Article 10 case, not an Article 8 case. So why is it the source of such an important principle in this decision?

Second, the Court said at [48] in the context of the balancing exercise as follows:

48.  Lastly, the Court is ready to accept that the distorted facts and the expressions used must have been upsetting for the applicant and that they were of such a nature as to be capable of considerably and directly affecting her feelings as a mother of a deceased son as well as her private life and identity, the reputation of her deceased son being a part and parcel thereof (see Putistin, cited above, § 33, and Dzhugashvili v. Russia (dec.), no. 41123/10, §§ 27 and 30, 9 December 2014).

This paragraph seems to be doing nothing more than reassuring the reader that it is substantively as well as formally the rights of the applicant that are at stake, not any rights of her deceased son. But it does so in a fascinating way absent from the other cases. It does not say that the impugned articles were upsetting for the applicant, but that they “must have been upsetting” for her, because they were “capable of” affecting her feelings by reason of her relationship to the dead man. The justification for including the protection of the reputation of family members within the scope of Article 8 is not the real impact on the applicant in this case, but the principled point that the reputation of a deceased family member is “a part and parcel” of one’s private life and identity. This is the opposite of Putistin’s “certain circumstances”, and we have left the applicant-focussed reasoning of Hadri-Vionnet. The reasoning, if not the conclusion, in Dzhugashvili is difficult to maintain in this light. The Court is no longer hesitant to include the protection of the reputation of family members within the scope of Article 8, accepting arguments on a case-by-case basis. It now does so on principle.

It is easy to understand why ML provokes strong feelings. Pre-existing concern with a perceived excessive extension of ECHR rights allies with a distaste for the substance of the claim brought by the applicant in this case. But if hard cases make bad law, it would not have made ML a better decision if it had been decided differently simply because the applicant’s son was a sexually abusive priest. What makes ML a bad decision is that it is built on insecure foundations. We have seen in these cases that states routinely fail to argue arguable points, resulting in thinly-reasoned conclusions; principles are passed between the contexts of Article 8 and Article 10 analysis with insufficient distinction; infelicities in language that are of little importance in one case are carried over into another in which the change is substantial; and the important anchor of the applicant’s own experiences of their private life in Article 8 cases has left the jurisprudential seabed. It is no exaggeration to say that paragraph [48] of ML suggests that deceased persons have a right to the protection of their reputation via the Article 8 rights of their living relatives, in substance if not in form. Seemingly throwaway statements like it in the earlier cases have had serious consequences down the line.

What I’ve been listening to this week…

I’ve been to a marvellous party. Specifically, Shefali and I celebrated our engagement surrounded by as many of our loved ones as circumstances allowed. Not a natural dancer, I approached that aspect of the event with (unnecessary) trepidation. So, of course, I have been listening to You Never Can Tell by Chuck Berry, on a loop, to get my practice in.  

A canary in the coal mine? Why the UK legal system is ill-equipped to deal with the climate crisis

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I grew up on the west coast of Cumbria, about two miles north of Sellafield nuclear reprocessing plant and eight miles south of the former mining community and port town of Whitehaven. Further up the coast near Workington, onshore wind turbines overlook the fascinatingly alien landscape of the Workington slag banks, formed from the by-products of pig iron production by the Workington Haematite Iron Company during the second half of the nineteenth and first half of the twentieth century. On a clear day, you can also see the larger offshore turbines of the Robin Rigg windfarm out in the Solway Firth.

Steel production ceased in West Cumbria in 1974 and the county’s last deep coal mine, the Haig Pit at Whitehaven, closed in 1986, but the landscape still provides an insight into the area’s industrial heritage. It also offers a clear indication as to what now sustains the economy of many of the coastal communities between Silloth and Barrow-in-Furness — the energy and especially the nuclear sector. In 2008, a public-private partnership called ‘Britain’s Energy Coast’ (since renamed ‘Building Extraordinary Communities’) launched its masterplan for the West Cumbrian economy, designed to show how it could be put on a sustainable footing by 2027 through investment in new nuclear power plants and renewable energy projects.

The view of Sellafield from Nethertown railway bridge
Workington wind turbines
Workington slag banks. The unusual shape of the rock is due to the giant ladle that was used to dump molten slag off the banks above.

But thirteen years later very little of what appeared in the masterplan has come to pass. The area’s economy is still extremely reliant on Sellafield, with research by Oxford Economics in 2017 suggesting that close to 60% of all jobs in the borough of Copeland are in some way dependent on the nuclear site [p. 21], and instead of major new renewable energy schemes generating jobs and economic growth we have the controversial Woodhouse Colliery proposal. If it goes ahead, this colliery near Whitehaven will be the UK’s first new deep coal mine in thirty years.

The company behind the project, West Cumbria Mining (WCM), started developing its plans for the extraction and processing of metallurgical (or coking) coal in 2014. The company claims that the mine would create 530 permanent jobs, of which 80% would go to local people. More controversially, it argues that it would be a ‘net zero’ emissions development, which would achieve compliance with the UK’s legally binding climate commitments via offsetting residual emissions with carbon credits certified by the Gold Standard Foundation.

It is easy to see why the prospect of a major new employer in area, creating hundreds of jobs, might seem appealing. Although wages at Sellafield are high, West Cumbria overall has faced sustained economic decline over several decades. Its working-age population is shrinking. An ever-increasing number of shops in Whitehaven town centre are shuttered up. The area is badly in need of some of the ‘levelling up’ promised by the Government.

In this context, it is perhaps not surprising that the proposal was previously approved by Cumbria County Council on three separate occasions. However, in February this year the council announced that it would be reconsidering the application for a fourth time. A month later, having previously declined to intervene, then Secretary of State for Housing, Communities and Local Government Robert Jenrick announced that he would be calling the application in for a public inquiry after all, citing new recommendations by the Government’s Committee on Climate Change as the rationale for the U-turn.

The inquiry opened on 7 September 2021 and ran for four weeks. The applicant, WCM, and Rule 6 Parties, local campaign group South Lakes Action on Climate Change (SLACC) and Friends of the Earth, appeared and were represented by counsel. Cumbria County Council did not take part in the proceedings, having decided to adopt a neutral stance on the application. Especially keen readers can find the recordings of all the sessions on the Planning Inspectorate YouTube channel.

Before being called in, the proposed development had already been subject to legal challenges on both sides of the debate. A judicial review application against the County Council’s approval of a previous version of the proposal by campaign group Keep Cumbrian Coal in the Hole received permission in February 2020, before proceedings were curtailed when WCM submitted a revised planning application. Earlier this year, the mining company itself announced that it would seek to challenge the County Council’s decision to reconsider the proposal for a fourth time, but the Secretary of State announced a public inquiry before the matter could reach the permission stage.

The entire process to date has served to highlight yet again the extent to which our legal and planning systems struggle to fully assess the climate impacts of proposed developments. Despite the UK’s legally binding obligation under s.1(1) of the Climate Change Act 2008 to reach net zero emissions by 2050 and the obligation on the Secretary of State to set regular carbon budgets (s.4, CCA 2008), the Act is not prescriptive about the actions that the Government or other relevant decision-makers must take to achieve these obligations.

The courts have also tended to be hesitant about pushing back too hard against decisions to approve individual carbon-intensive infrastructure projects. In a recent interview with The Planner magazine, barrister Estelle Dehon, who frequently acts on behalf of environmental campaign groups, suggested that this hesitation might be due in part to a political environment shaped by “many years of politicians… telling the courts ‘If you go too far, you will be knocked back. If you take liberties, we will act to ensure that you can’t do that any more. If you criticise too closely, we’ll clip your wings’.”

Finally, it is difficult to draw precise causal links between specific proposals under challenge and the vast global impact of the climate crisis. Indeed, a recent paper by researchers at the University of Oxford found that the claimants in 73% of cases surveyed across 14 jurisdictions did not even try, failing to cite any peer-reviewed evidence in their submissions. All these factors feed into an environment which makes it hard for legal challenges around climate change to succeed.

In the UK in the last two years, a number of high-profile challenges to emissions-heavy developments have been dismissed. In R (on the application of Finch) v Surrey County Council [2020] EWHC 3566 (Admin), [2021] PTSR 1160, concerning the grant of planning permission for the drilling of four new oil wells in Surrey, the High Court held that a developer’s obligation under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 to provide an environmental statement describing the likely direct and indirect impacts of a development did not extend to assessing the greenhouse gas emissions resulting from the use of an end-product originating from that development. In R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWCA Civ 43, [2021] PTSR 1400, the Court of Appeal held that then Secretary of State Andrea Leadsom had carried out the balancing exercise under s.104(7) Planning Act 2008 correctly and was entitled to conclude that the benefits of the proposed new gas-fired Drax Power Station outweighed the environmental costs [108–109].

Finally, in R (on the application of Friends of the Earth and others) v Heathrow Airport Ltd [2020] UKSC 52, [2021] PTSR 190, the Supreme Court overturned the judgment of the Court of Appeal that the Government’s Airports National Policy Statement was unlawful on climate change grounds. The Court of Appeal had held that the ANPS failed to satisfy the obligation under s.5(8) of the Planning Act 2008 to “include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change”. It defined ‘Government policy’ as being both the UK’s ratification of the Paris Agreement and subsequent statements by ministers Andrea Leadsom and Amber Rudd (Plan B Earth v Secretary of State for Transport [2020] EWCA Civ 214, [2020] PTSR 1446 at [228]). The Supreme Court dismissed these oral statements as being insufficiently clearly formulated to constitute Government policy and held that it would be unreasonable to expect civil servants to “trawl through Hansard and press statements” to identify policies [105]. One might question why the Court did not consider the Paris Agreement itself to constitute Government policy, since ratified international agreements form a clearly defined and readily identifiable list. Given the rather general wording of the agreement, however, it might not have made a difference to the outcome of the case even if the Court had held that it was Government policy to adhere to it.

The cases cited above are not an exhaustive list. Other challenges to the construction of HS2 and the design of the new UK Emissions Trading Scheme have also failed on broadly similar grounds, namely the wide margin of appreciation enjoyed by decision-makers when it comes to translating the UK’s legally binding emissions reduction targets into actual policy. This degree of discretion, coupled with the growing weight of adverse precedent, means that climate campaigners seeking to bring public law challenges against Government policy are facing an uphill battle.

Indeed, the outcomes of these cases beg the question of whether legally binding climate targets are actually enforceable in any meaningful sense. At a national level, the Committee on Climate Change calculates that the UK is not on track to meet its fourth or fifth carbon budgets, and there is an overwhelming scientific consensus that we are headed for catastrophic warming without drastic emissions reductions in the next decade, let alone by 2050. Yet on a case by case basis, it always seems possible for a decision-maker, company or industry body to argue that the emissions from a specific carbon-intensive infrastructure project will be offset by emissions reductions in other sectors of the economy and/or that the socio-economic benefits of a proposal outweigh its negative environmental impacts.

Thus, judicial review challenges brought against the lawfulness of such decisions are likely to keep failing, because of the near impossibility of proving that a particular project in isolation will prevent the UK from meeting its emissions reduction targets. Irrationality challenges seem even less likely to succeed, since the bar for such challenges is set so high (although if one asked an 18-year-old whether they thought it was rational to be constructing new coal mines, oil wells, runways or gas-fired power stations in the 2020s, one suspects they might give a rather different answer from a judge).[1]

Fortunately for campaigners against the Cumbria coal mine, the planning system offers more flexibility about how climate impacts are included in the decision-making process than the legal system does, in part because planning decisions are more explicitly informed by political considerations than legal decisions are. For example, as Estelle Dehon, acting for SLACC, submitted in her closing statement to the inquiry on 1 October 2021, the judgment in Finch v Surrey County Council relates only to whether end-use emissions must be factored in when determining the legality of an Environmental Impact Assessment. It is not authority for the proposition that such emissions cannot be a material planning consideration. In the case of a coal mine, end-use emissions are necessarily fundamental in determining the overall climate impacts of the proposed development.

The inquiry spent its first week dealing with the potential economic benefits of the scheme, its second focussing on the need for coking coal in UK and EU steelmaking, and its third considering the impact of the scheme on carbon-dioxide and methane emissions. The Rule 6 Parties lead a range expert witnesses, whose evidence challenged WCM’s assertion that the project was compatible with the UK’s goal of reaching net zero emissions by 2050. In particular, Professor Stuart Haszeldine of Edinburgh University suggested that the coal was unlikely to be of sufficiently high quality for use in the UK and EU steelmaking markets and the majority was likely to end up being exported further afield, thus negating any net emissions savings on transport, while Professor Paul Ekins of University College London stated that there was no doubt in his mind that the proposals were incompatible with the UK’s emissions targets.

A further blow to the contention that the mine could be rendered net-zero-compatible via carbon offsetting was dealt by the very organisation proposed to supply the carbon credits required to facilitate the offsetting, the Gold Standard Foundation. In a letter to Friends of the Earth and to the inquiry, the Foundation stated that:

“The latest scientific paper from the Intergovernmental Panel on Climate Change on August 9 gave a stark reminder of the pace at which the planet is warming and the unequivocal influence of human activity on this warming, in particular the extraction and use of fossil fuels.

“We note that achievement of the goals of the Paris Agreement would be rendered impossible by the already planned increase in fossil fuels (UN Production Gap Report, 2019), and that the International Energy Agency has clearly stated that further investment in fossil fuels is unnecessary, with achieving global net zero goals instead requiring a rapid reduction in their use.

“It is clear to us, in light of this evidence and reflecting the principles of the mitigation hierarchy, that a new coal mine in 2021 is an activity that must be avoided in the context of the climate emergency.”

Beyond the decision to call the application in, there have also been further signs that the tide of political opinion within the Conservative party might have turned against the project, with Energy Secretary Kwasi Kwarteng stating that there were “very compelling reasons” not to open it and MP for Penrith and the Border, Dr Neil Hudson, dropping his support for the project ahead of COP 26 and urging the Government to invest in clean energy jobs in Cumbria instead. Inspector Stephen Normington indicated that his report should be expected in late December or early January, after which the ultimate decision will rest with the Secretary of State.

Whatever Michael Gove ultimately decides, however, a legal challenge seems fairly likely, at which point all the issues around how our courts deal with climate litigation may come into play once more. All this raises the question — at what point will it become so apparent that we are not on track to meet our net zero emissions targets that the courts will feel justified in declaring new fossil fuel developments to be unlawful? At what point will the effects of the climate crisis become so severe and so unarguable that any decision to approve such a development will be held to be irrational? How many more canaries will we allow to die before we finally decide to close the coal mine?

[1] For discussion of irrationality in this context see R. (on the application of Finch) v Surrey County Council [2020] EWHC 3566 (Admin) ,[2021] PTSR 1160, [127]; R (on the application of Friends of the Earth and others) v Heathrow Airport Ltd [2020] UKSC 52, [2021] PTSR 190, [125-129].

What I have been listening to this week…

A couple of weeks ago, some eighteen months after the gig was initially scheduled to take place, I was finally lucky enough to see Nick Cave in concert at the Royal Albert Hall. I have been a fan of his music since I was a child and so seeing him live was an absolute privilege and delight. Almost the entire setlist was from two albums: 2019’s majestic, if sometimes harrowing, ‘Ghosteen’ — a meditation on love and loss written in the aftermath of the death of Cave’s teenage son in 2015 — and 2020’s ‘Carnage’, a wild and surreal lockdown album composed over just three days alongside longtime collaborator Warren Ellis. Both are exceptional in their own way and I have been listening to them and the rest of the Bad Seeds back catalogue a lot since the gig.

On a slightly more sedate note, my choir is currently rehearsing for a performance of Brahms’ Requiem in December, so I have been reacquainting myself with one of my absolute favourite choral works, and trying not to get too out of breath singing the fugue in movement six!

Saint George on a bicycle: Why we should repeal the Human Rights Act

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Ever since its introduction by the last Labour government, the Conservative party has railed against the Human Rights Act 1998. This has been primarily for two reasons. (David Allen Green, who is twice as clever as I am, puts it at four.) First, the Human Rights Act represents the imposition of foreign values on the United Kingdom. The elision of the European Court of Human Rights and the European Court of Justice is not (or not always) a mistake: both are used in the press to exacerbate a general Europhobia. This is what motivates the desire for a “British Bill of Rights”, promised in the 2015 Conservative manifesto and then again after the party’s surprise general election victory. With Brexit dominating the constitutional agenda from the next year, human rights reform never materialised. Second, the Human Rights Act frustrates the state’s maintenance of public order by, for example, prohibiting the deportation of foreign criminals. As Home Secretary, Theresa May gave a speech to the Conservative party conference on Tuesday 4 October 2011, in which she described, among the absurd cases that the Human Rights Act had brought about, “The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here.” There is a third reason for the unpopularity of the Human Rights Act, although this cannot really be associated with the Conservative party and is probably limited to scholarly circles. It is that the Human Rights Act is constitutionally inappropriate. In a Parliamentary sovereignty, judges should not twist the words of elected representatives, but should allow laws to mean what they say, especially those passed before the Human Rights Act. The Human Rights Act also imports the illegitimate jurisprudence of the European Court of Human Rights.

None of these criticisms withstands serious scrutiny. On the first point, the Human Rights Act makes enforceable in domestic courts the rights and freedoms guaranteed by the European Convention on Human Rights, which was ratified by the member states of the newly-formed Council of Europe in 1953. Winston Churchill was an early proponent of the Council of Europe and Sir David Maxwell Fyfe, later Lord Chancellor, led the drafting of the Convention. Since then, the UK has had as much influence as any other country on the interpretation of the Convention by nominating judges to sit on the European Court of Human Rights. Critics of the Convention rights cannot convincingly point to any individual articles or lines of authority that are continental or un-British in nature. It is a pretty British project. On the second point, the Convention rights are crafted in such a way as to enable the state to govern properly. The right to respect for one’s private and family life, for example, is qualified so that it can be interfered with if a public good such as public safety justifies interference. In respect of the deportation of foreign criminals, the law changed in 2014, showing that Parliament is capable of pursuing what it considers to be the public good. Today, the case referred to by Theresa May, decided in 2009 and upheld by the Court of Appeal in 2011, would probably be decided differently. On the third point, as liberal lawyers never tire of pointing out, the Human Rights Act was passed by Parliament, and, by applying it, judges are doing nothing more than enforcing the will of Parliament. Squeezing primary legislation into conformity with Convention rights under section 3, or striking down secondary legislation made by a minister under section 6, is exactly what Parliament has decided it would like judges to do. That is Parliamentary sovereignty.

Nevertheless, complaints about the Human Rights Act continue to emerge from the Conservative party. The newly-appointed Lord Chancellor, Dominic Raab, spoke about “overhauling” the Human Rights Act at the party conference in Manchester on 5 October 2021. The 2009 case reappeared, although whether it forms part of a legitimate case against the Human Rights Act since the 2014 amendment is unclear. Raab’s demotion (or promotion, depending on your perspective) provoked fears because he has a track-record of antipathy towards the Human Rights Act. However, the choice of the strong but vague word “overhaul” might suggest that a full repeal is not on the cards.

I will not say that this is a bad thing. Especially in the context of the present government, the loss of an opportunity to vindicate Convention rights in UK courts, by way of judicial review or a claim directly under the Human Rights Act, would have a disastrous human impact. However, on a level of constitutional principle and for the protection of rights in the long term, there is a case for repealing the Human Rights Act.  

Parliamentary sovereignty was the primary constitutional principle to emerge from the tumult of seventeenth-century England. At that time, the emphasis was on Parliamentary sovereignty as opposed to sovereignty of the Crown. However, at least since A. V. Dicey’s 1885 work, Introduction to the Study of the Law of the Constitution, the English legal establishment has considered that the emphasis is on the sovereignty of Parliament, as opposed to a Parliament with limited power to legislate. Professor Dicey wrote at pp. 3–4 (eighth edition, 1915, reprinted by the Liberty Fund, 1982):

The principle of Parliamentary sovereignty means neither more or less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.

Wade and Forsyth’s Administrative Law (eleventh edition, Oxford University Press 2014) states at p. 21:

The power of an Act of the sovereign Parliament, howsoever enacted, is boundless.

During the UK’s membership of the European Union, the single important exception to this principle was that primary legislation passed by Parliament would be invalid to the extent that it conflicted with EU law.[1] However, since it was Parliament, by the European Communities Act 1972, that authorised this state of affairs, and Parliament could put an end to it if it wished, as it eventually did, Parliament remained in principle sovereign.[2] And now that the UK has left the EU, no higher law exists than primary legislation on the domestic legal plane, according to orthodox constitutional theory.

The UK is unusual in this regard. In few other developed democracies is the legislature able to pass whatever law it wants by a simple majority, unlimited by fundamental rights or other constitutional restrictions on legislation. That is because an elective dictatorship, as Lord Hailsham called the UK system of Parliamentary sovereignty combined with executive dominance of Parliament, is illiberal in that it offers no protection to individuals or groups that fall into disfavour with the majority. Every person’s fundamental rights and freedoms demand protection, from the courts as a matter of justice and from the state as a matter of justification for its existence. Absolute Parliamentary supremacy is not an acceptable constitutional principle.

UK constitutional law is creeping towards acceptance of this reality. This can be seen on two levels.

On a structural level, senior judges have held, usually obiter and hypothetically, that the courts might not enforce a law enacted by Parliament that violated fundamental constitutional values. In Jackson v Attorney General [2005] UKHL 56; [2006] 1 AC 262, Lord Nicholls of Birkenhead said at [102]:

The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.

And Lord Hope of Craighead said at [104], at the start of a whole speech on this topic:

Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.

In Hartian terms, the rule of recognition in English law is up for grabs. Alternatively, in the terms of T. R. S. Allan, who rejects the idea of a positivist rule of recognition, judges are beginning to recognise that a statute that flouted “the essentials of justice and good governance” would not be legitimate, and would therefore not “qualify as law”.[3] Whatever constitutional-theoretical model one prefers, the cases show that it is no longer clear that judges will unfailingly accept primary legislation as valid law.[4] Two weeks ago, Abella J, writing for the minority of four justices in the Supreme Court of Canada, cited Jackson, AXA and Privacy International (see [4]) as well as R (Miller) v Prime Minister [2019] UKSC 41; [2020] AC 373 to support the proposition that “unwritten constitutional principles have full legal force and can serve as substantive limitations on all branches of government” (Toronto (City) v. Ontario (Attorney General) 2021 SCC 34 at [166]).

On the level of rights, the courts have developed the doctrine of common-law constitutional rights, whose enumeration is determined by constitutional values such as the rule of law. As Lord Hope said in Jackson at [107], “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.”[5]

But what role can constitutional rights or the rule of law have under Parliamentary sovereignty? The courts have tried have it both ways. Their main tool in this respect is called the principle of legality. Lord Hoffmann’s explanation of the principle of legality in R (Simms) v Secretary of State for the Home Department [2000] 2 AC 115 has become the standard account. He said at 131:

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

The principle of legality allows the courts to uphold and apply constitutional values while not only paying lip-service to, but in substance maintaining, Parliamentary sovereignty.

The result is that the protection of constitutional rights is weak for two reasons. First, the principle of legality is half-hearted in its application because of its subservient relationship with the principle of Parliamentary sovereignty. Second, the courts have been hesitant to recognise a wide range of individual rights as constitutionally guaranteed. The common-law constitution, in both structure and substance, is small and struggling to grow.

Why? Because of the Human Rights Act.

The legal mechanics of the Human Rights Act are similar to what the courts currently accept is their role in protecting constitutional rights. Section 3 of the Human Rights Act mirrors the principle of legality, in that it requires courts to interpret legislation in line with Convention rights wherever possible. Lord Hoffmann drew this parallel in Simms at 132: “the principle of legality will be expressly enacted as a rule of constriction in section 3 [of the Human Rights Act]”. Section 4, which provides for declarations of incompatibility with Convention rights, has no practical effect.[6] The Human Rights Act’s chief virtue over the common law is its explicit enumeration of rights. As is inevitable, there remains debate over the scope of each right, but there are clear starting-points. The Human Rights Act provides effective protection or redress in countless situations, including state surveillance, protest, welfare policy and inquests.

That all sounds wonderful. What’s the problem? The problem is that the Human Rights Act has arrested the development of the common-law constitution. It removes any incentive for the common law to develop, while providing only moderate protection against the abuse of state power. The Human Rights Act is no substitute for fully-developed constitutionalism, but the constitution cannot fully develop while the Human Rights Act remains. To borrow David Allen Green’s image, the Human Rights Act is a set of constitutional stabilisers, and they need to come off.

There are two ways in which common-law constitutional doctrine needs to evolve. The first is structural: What do constitutional principles such as the rule of law and fundamental rights mean in practice, and what is their relationship with Parliamentary sovereignty? The second is elaborative: What are the rights that the constitution guarantees? These are difficult, controversial questions. Litigants will not build their cases on uncertain foundations unless they have no choice. If you were at risk of deportation, and you could ask the court to prevent your deportation on the basis of either the settled law of the Human Rights Act, or some untested constitutional theory, what would choose? The same goes for most judges, who are not attracted to controversy. There is no reason – arguably no way – for the common-law constitution to develop while the Human Rights Act is squatting on top of it.

This matters because the Human Rights Act only achieves a fraction of what the common-law constitution could and should become if given a chance to flourish. The Human Rights Act respects and affirms Parliamentary sovereignty. It purports to fulfil the role of guardian of rights while permitting Parliament to pass laws that expressly and seriously violate fundamental rights. It would not have been passed otherwise: Parliament would not willingly give up its sovereignty. But the protection that fundamental rights require is both from government and from Parliament, as the framers of written constitutions around the world knew. Until it is repealed to enable the constitution to develop rightly, so that the rule of law, and no longer Parliamentary sovereignty, is the master constitutional principle,[7] the Human Rights Act will remain the tapeworm in the belly of the constitution. Dicey called the British constitution “the most flexible polity in existence” (p. 39). Constitutional law must be permitted to flex in the only way the common law knows how to develop, through litigation, so that the normative basis of the constitution can be reflected in doctrine. 

During the previous decade, aware of the Conservative party’s unkind intentions towards the Human Rights Act, the courts have prodded the doctrine of common-law constitutional rights awake. In R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115, Lord Reed said at [57]:

The importance of the [Human Rights] Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based on the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.

And in Kennedy v Charity Commission [2014] UKSC 20; [2015] AC 455 at [46], Lord Mance said:

Since the passing of the Human Rights Act 1998, there has too often been a tendency to see the law in areas touched on by the Convention solely in terms of the Convention rights. But the Convention rights represent a threshold protection; and, especially in view of the contribution which common lawyers made to the Convention’s inception, they may be expected, at least generally even if not always, to reflect and to find their homologue in the common or domestic statute law.

And at [133] Lord Toulson said:

The analysis set out above is based on common law principles and not on article 10, which in my view adds nothing to the common law in the present context. This is not surprising. What we now term human rights law and public law has developed through our common law over a long period of time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizen’s daily life. The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.

The subtext is that, if the Human Rights Act is repealed, we will need another means of preventing the abuse by the state of fundamental rights. And we have such a means. But while we in fact do have the protections of the Human Rights Act, the common law will not have the opportunity to fully flesh out constitutional principles. As the essays in Mark Elliott and Kirsty Hughes’ book show, the only rights that have been seriously developed during this period are those related to the institutions of justice, such as the right of access to the courts or the right to have justice done in public.[8] The courts have cleaved to the core of the rule of law and have been hesitant to explore the full range of protections that the constitution guarantees.

Maybe this is all wishful thinking. Maybe it is a risk whose costs are too high. Under the Human Rights Act, we have some kind of guarantee of fundamental rights enforceable in domestic courts, which is better than we have had for most of our history. But the 1970s and 1980s showed us that the courts are capable of using the constitutional means at their disposal, even if they have been neglected, to address the problems of the day the according to what are recognised as the pressing demands of justice. Further, do we want to wait for Parliament to pass a flagrantly oppressive law that the Human Rights Act is powerless to touch before asking the courts for a definitive answer to the question raised in Jackson? It will happen one day. The courts have started to deal with the reality that politicians don’t play by the rules anymore (R (Miller) v Prime Minister). They must take the full implications of that realisation seriously. The common-law constitution needs to evolve beyond Parliamentary sovereignty. It needs to regain its confidence and mature. If one more metaphor will not break the camel’s back, we have been sending villagers to appease the dragon since 1688. Do we have to wait until the princess is chosen as tribute before summoning Saint George? When he comes, he can’t be riding with stabilisers. We have to repeal the Human Rights Act.

What I’ve been doing this week…

I moved to Cambridge! So almost all of my reading has been prescribed. But Cambridge means walking which means podcasts. I’ve returned to Talking Politics: HISTORY OF IDEAS, hypnotically delivered by David Runciman. And I’ve started the wonderful Borderline Jurisprudence with Başak Etkin and Kostia Gorobets, which as an international law amateur I struggle to keep up with sometimes but it’s fascinating and imbued with humanity and a sense of humour. In other news I have continued my struggle to make tofu crispy.

[1] R (Factortame Ltd) v Secretary of State for Transport [1990] 2 Lloyd’s Rep 365 and [1991] 1 AC 603.

[2] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] AC 61 at [60].

[3] T. R. S. Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford University Press 2013), p. 167.

[4] See also Lord Hope’s words in AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46; [2012] HRLR 3 at [50] to [51], and, more recently, Lord Carnwath’s words in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22; [2019] HRLR 13 at [144].

[5] For examples of common-law constitutional rights in action, see, R (UNISON) v Lord Chancellor [2017] UKSC 51; [2017] ICR 1037 at [66] to [85] and R (Bugdaycay) v Secretary of State for the Home Department [1987] AC 514 at 531. Mark Elliott and Kirsty Hughes’ volume Common Law Constitutional Rights (Bloomsbury 2020) attests to this developing area of the law.

[6] Notwithstanding Lord Reed’s challenging comment this week in the Scottish UNCRC case [2021] UKSC 42 at [50].

[7] Lord Hope in Jackson at [107].

[8] Mark Elliott and Kirsty Hughes (eds), Common Law Constitutional Rights (Bloomsbury 2020); UNISON; A v BBC [2014] UKSC 25; [2015] AC 588.

The Kingsland Cup 2021… Or How I Learned to Stop Worrying and Love the Moot

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Last Thursday, after a year of virtual advocacy exercises, I took part in my first ever in-person moot. The Kingsland Cup and Prize Moot is run annually by Francis Taylor Building. Named in honour of Lord Kingsland QC, it covers a wide range of public, environmental and European law topics. Participants tackle two moot problems over the course of three rounds, with a paper sift of skeleton arguments followed by two ‘live’ rounds.

The 2021 final took place last week and my teammate, Tom Lambert, and I were fortunate enough to be declared the winners after a closely matched competition with an excellent team from the University of Oxford. It was judged by Sir Keith Lindblom, Senior President of Tribunals, and Professor Alison Young, Sir David Williams Professor of Public Law at the University of Cambridge. I am extremely grateful to both of them for giving up their time and to Esther Drabkin-Reiter and Michael Brendan Brett from FTB for organising this year’s competition and setting two fascinating and finely balanced moot problems.

The first round and semi-final involved a highly technical planning law problem, focusing on whether a Lawful Development Certificate (LDC) can be granted under s. 191 Town and Country Planning Act 1990 (“the 1990 Act”) to certify that a site has ‘nil’ planning use, and the circumstances in which a previous use may be said to have been abandoned. The claimant was a local authority, which had refused to grant an LDC to a multiplex cinema chain to certify that a recently acquired site had nil use. That refusal had been overturned on appeal by a planning inspector, who decided that s. 191 gave him the power to grant an LDC for nil use and that he was justified in granting one in the present circumstances, on the basis that the previous use of the site as an independent cinema had been abandoned. The multiplex chain appeared in the proceedings as an interested party but was not represented by counsel.

The claimant brought a judicial review on two grounds:

  1. The Decision by the Inspector was unlawful on the basis that there was no power to grant a Lawful Development Certificate under s. 191(1)(a) of the 1990 Act for a ‘nil’ use.

  1. The Inspector erred in law in concluding that the use had been abandoned.

For the first round, teams had to submit two skeleton arguments, one for the claimant and one for the defendant. Four teams were then selected to go forward to the semi-final, which took place on Zoom in April this year, with the claimant and defendant roles in each semi-final being assigned at random. Tom and I were representing the claimant local authority. Alongside a team from the Inns of Court College of Advocacy, we battled our way through some significant technical difficulties to present our submissions.

On Ground 1, which I took, the case ultimately turned on the somewhat esoteric semantic question of whether the phrase “any existing use of buildings or other land” in s. 191(1)(a) of the 1990 Act extended to cover nil use. Could “any” also encompass “none” or did it have to refer to a positive use? I was both gratified and slightly disappointed when Sir Keith Lindblom, who also judged our semi-final, beat me to the King Lear quote I had planned to include in my summing up (“nothing will come of nothing”) in one of his interventions. One of our central submissions was that, since planning enforcement action cannot be taken against a site that truly has nil use, the only possible reason the interested party could have had for wishing to obtain an LDC was to circumvent the ordinary planning process and the policies in the Local Plan designed to prevent the loss of grassroots leisure and entertainment venues.

Ultimately, although he reserved judgment, Sir Keith indicated that he was inclined to agree with the claimant’s position that the provisions of s.191 did not extend to nil use. This was primarily due to the plain meaning of the words in the statute but also because of the impossibility of enforcement action against a site that has truly been abandoned and has no planning use. 

We advanced to the final and out of my comfort zone. Having previously worked in housing policy, I was at least somewhat familiar with planning legislation and policy, even if the provisions around Lawful Development Certificates were new to me. The problem for the final, however, involved a range of legal issues with which I was less familiar, including the relationship between Article 8 and Article 10 of the European Convention on Human Rights, the nature of proportionality review and whether or not consistency should be accepted as a freestanding ground of judicial review. Perhaps inspired by a certain viral parish council meeting earlier this year, it was an appeal to the Supreme Court concerning the decision by a District Council Monitoring Officer to sanction a parish councillor for breaking the parish council Code of Conduct with an unruly outburst in an online meeting.

Though clearly inspired in part by the Jackie Weaver saga, the facts of the case and the legal issues raised were actually most similar to those in R (on the application of Robinson) v Buckinghamshire Council [2021] EWHC 2014 (Admin), where the High Court quashed the decision of a Deputy Monitoring Officer to sanction Cllr Clive Robinson over comments he had made about fellow councillors, which were said to be in breach of the PC Code. The court in Robinson held that the sanction represented a disproportionate infringement on Mr Robinson’s right to freedom of Expression under Article 10 ECHR, and therefore a violation of s. 6 of the Human Rights Act 1998.

The case in the Kingsland final centred on whether or not the decision to uphold a complaint against a councillor for saying “You do not have the authority to do this, Alice Tinker! You can’t just expel them from the meeting, face up to the accusations of incompetence, you big girl’s blouse!” was a similarly disproportionate interference with his Article 10 rights, and whether it mattered that a similar complaint against Ms Tinker had been decided differently. The grounds of appeal were:

  1. The judge at first instance erred in finding that the speech in question was not supported by case law on protection of political speech and/or that the decision to uphold the complaint was proportionate.
  1. The judge erred in finding that she could not consider consistency as a freestanding ground of review.

As the final was in person, each team was required to bring two hard copies of the bundle, one for ourselves and one for the judges. With nearly 500 pages of authorities between us, this meant that each team arrived with around 1000 neatly tabulated pages, which certainly helped add to the illusion that we were taking part in a real hearing. 

This time, Tom and I were acting for the respondent and again I took Ground 1. I submitted that the Monitoring Officer was correct to decide that the quoted portion of Cllr Trott’s outburst was not political speech and should not therefore be afforded enhanced protection under Article 10, drawing heavily on the judgment in Heesom v Public Service Ombudsman for Wales [2014] EWHC 1504 (Admin), [2014] 4 All E.R. 269, which distinguished between “matters of public administration and public concern including comments about the adequacy or inadequacy of performance of public duties by others” on the one hand and “gratuitous personal comments” on the other, and held that the former would be classed as political speech, while the latter would not [38(v)]. I characterised Cllr Trott calling Cllr Tinker a “big girl’s blouse” as a gratuitous personal comment.

I also submitted that the sanction was justified on the basis of the qualifications to the right to free expression in Article 10(2) ECHR, in light of the need to balance Cllr Trott’s Article 10 rights against Cllr Tinker’s right to a reputation under Article 8.  Finally, I submitted that proportionality is not a substitutionary review, and an appellate court should therefore uphold the decision of a lower court, provided it is satisfied that the lower court carried out the balancing exercise correctly, even if it might itself have come to a different conclusion on the facts. On this last point, I deployed a cricketing analogy, likening the process of proportionality review in an appellate court to a scenario in which hawk-eye indicates that a DRS review of an LBW decision remains “umpire’s call”.

Our opponents, Daniil Ukhorskiy and Amy Gregg, made some excellent arguments drawing on the jurisprudence of the European Court of Human Rights, about the difficulty and undesirability of disaggregating comments made in the heat of the moment and separating them into categories of political and non-political speech. Tom was extremely patient with me as I dealt with numerous judicial interventions on the plausibility of such disaggregation and overran my allotted time, leaving him with only ten minutes or so to make his submissions on whether consistency should be accepted as a freestanding ground of judicial review.

On Ground 2 the key questions were whether or not the case law indicates that consistent administration can be viewed separately from the doctrines of irrationality and legitimate expectation, and whether it would be desirable for it to stand alone as a ground of review in its own right. Counsel for the appellant submitted that the Supreme Court’s judgment in R (on the application of Gallaher Group Ltd and ors) v The Competition and Markets Authority [2018] UKSC 25, [2019] A.C. 96 was only authority for the fact that equal treatment is not a distinct principle of administrative law. It did not address the issue of consistent administration — that is the obligation for public authorities to apply their policies in a consistent way. Tom submitted in response that such a fine distinction would create unnecessary confusion in the law and that there was, in any event, no need to draw it. Decisions which might fall foul of a doctrine of consistent administration would probably be overturned anyway on the basis of irrationality or the frustration of legitimate expectations.

The judges deliberated for around fifteen minutes and, while they again reserved their judgment, they suggested on Ground 1 that the appellant’s position on the disaggregation of intermingled comments would likely be accepted, though they agreed that the role of the court in a proportionality review was not to remake the decision. On Ground 2, Sir Keith questioned whether it really mattered if consistency was officially accepted as a freestanding ground of review or not, since the facts of the case clearly indicated that Cllr Trott was not treated fairly by the Monitoring Officer and the decision might therefore have been deemed to be unsound on that basis. However, he did conclude by suggesting that the law should not be like mushrooms (a running theme throughout counsel’s submissions) and multiply grounds of review excessively.

Had this been a real case, we likely would have lost, since the judges indicated that they probably would have allowed the appeal, at least on Ground 1. Fortunately for us, however, mooting is not real life and we were declared the winners by an extremely narrow margin. Competing in this year’s Kingsland Cup has been a wonderful experience. It has taught me a great deal, both about the relevant areas of law and about online and in-person advocacy. I would highly recommend the competition to anyone with an interest in public law.

The European Animal Rights Law Conference 2021

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On 17 and 18 September 2021, I attended the European Animal Rights Law Conference 2021 in Cambridge, United Kingdom. This was the second such conference to be hosted by the Cambridge Centre for Animal Rights Law. It brought together legal academics and practitioners from around Europe and beyond to discuss their latest research. For an explanation of what falls within the scope of animal rights law, as opposed to animal welfare law, please see my previous blog post.  

The programme for the conference can be found here and recordings of all the presentations will shortly be made available to watch online. This post does not provide an exhaustive account of the conference. It aims to whet the appetite, and to give an idea of the range of ideas circulating in the animal rights law community.

Raffael Fasel, executive director of the Cambridge Centre for Animal Rights Law, introduced the conference. As is impossible to resist, Dr Fasel drew a parallel between the work of the Centre and our common experiences in the last eighteen months, saying that animal rights are inseparable from human health, but that animal interests are generally only taken seriously when human interests are also at stake. The aim of work in this field is both to clarify such connections and make the case for the importance of animal rights for their own sake. 

Animals as agents, animals as knowers, animals as activists?

Angie Pepper and Richard Healey made the first substantive presentation. It was not legal, but philosophical. Drs Healey and Pepper developed the concepts of assent and dissent to address the problem of reconciling human-animal relationships with animals’ right to self-determination. The presentation was extremely clear and came in two parts. First, Dr Healey summarised the paper they had published together earlier this year, entitled ‘Interspecies justice: agency, self-determination, and assent’. Second, Dr Pepper explained their doubts about the conclusions in the paper.

The paper states that animals have a right to self-determination in a certain context, which is to say that their will is authoritative in that context, when two conditions are met. The conditions are, first, that the animal has sufficient interest in self-determination to ground duties in others, and, second, that the animal is a sufficiently competent decision-maker in the relevant context. Animals’ interest in self-determination itself derives from their agential capacities. When an animal (human or not) has a right to self-determination in a certain context, their will is structurally decisive in that context, which is to say that their will has normative authority in that context. To illustrate, a crow has a right not to have their body interfered with, and this right excludes all other reasons for interfering with the crow’s body. In other words, their right is absolute.

Humans use consent to navigate their self-determination. This means that they understand their right to self-determination and its correlative duties and are capable of intending to waive that right. For example, I understand that I have a right to non-interference with my body, but I waive that right when I consent to being hugged. But most animals cannot understand their right to self-determination on a normative level. This means that they cannot consent to waiving that right. As a result, it appears that it would be morally impermissible for humans to interfere with an animal’s right to self-determination by, for example, stroking, cuddling or bathing an animal.

To solve this problem, the paper develops the concepts of assent and dissent, which are, respectively, the wilful affirmation of, and the wilful refusal to engage in, an interaction. Assent and dissent may be active or passive but must be voluntary and based upon understanding of the interaction in question. In this way, the paper proposes that an animal can assent to an interaction with a human being without having the normative understanding to consent to it, making permissible certain human-animal interactions. A dog may not normatively consent to being cuddled, but they can assent to being cuddled by voluntarily affirming the cuddle in an active or passive way.

Dr Pepper explained that the inspiration for the paper was a stray cat who had adopted her and Dr Healey. The paper implicitly focussed on the question whether interactions within a companion animal relationship could be permissible. What it failed to tackle was the question whether the broader project or relationship within which such interactions took place could itself be permissible. On reflection, it appeared that the answer was no. Valid assent to specific interpersonal interactions cannot legitimise the relationships and institutions in which animals find themselves. This is because, in order to assent to something, an animal requires sufficient information about it and understanding of it, which as an empirical matter they cannot have in the cases of relationships and institutions. For example, an animal cannot consent to being a pet because they cannot, at the onset of the relationship or at any other stage, understand what is at stake, and their assent to specific interactions cannot be aggregated to form assent to a relationship or a status. Further, in the absence of any meaningful opportunity to leave the relationship, they cannot dissent from it. In order to be at all justifiable, a companion animal relationship would have to provide a pet with the opportunity to leave at any moment. The presentation concluded on this doubtful note.

Eva Meijer gave a wide-ranging presentation on the theme of animal agency and animals as knowers. Like the one before, it asked, rather than answered, questions. Dr Meijer’s starting-point was a new law passed by the Dutch legislature earlier this year that will significantly improve the welfare of farmed animals when it comes into force in 2023. Among other things, it may end factory farming in the Netherlands. Dr Meijer proposed that laws such as this move the conversation on from animal welfare to animal flourishing. And the question of animal flourishing is both species-specific and individual-specific. It cannot be easily measured from the outside. If we are going to take animal sentience seriously and go beyond anti-cruelty laws, we must grapple with the fact that animals are knowers, of the world and of their own lives; that animals are subject to epistemic injustice when we deny them this status; and that our knowledge of them is distorted by anthropocentrism, which is to say by our own interests in observing animals. Not only this, but the means of acquiring knowledge about animals generally violate their dignity in one way or another. So we are caught in a situation where we do not know enough about animals’ subjectivity to properly legislate for their flourishing, but we are both morally and epistemically constrained from understanding the circumstances under which they would flourish. 

Alasdair Cochrane gave the keynote address. He described it as more of a call to arms than a tight argument. The subject was interspecies solidarity, and there were two questions. Why should we think about solidarity in an interspecies context? And can solidarity cross a species barrier?

The context of the talk was Dr Cochrane’s work on the animal turn in political philosophy, or the political turn in animal ethics. The political-animal turn, from whatever perspective, is broadly based on the premise that benign human-animal relations require not only personal but also political and legal transformation. Changing hearts and minds is not enough, because political and legal institutional barriers prevent animals from leading good lives. Works such as Zoopolis by Sue Donaldson and Will Kymlicka, and Dr Cochrane’s own book Should animals have political rights?, set out visions of just worlds. Less effort has been expended asking how we achieve, and sustain, those visions. These, according to Dr Cochrane, are “very very very very very very very” tough questions. But he proposes that solidarity plays an important role. This is because it has played an important role in other social justice movements, in three ways: as a bond to create and maintain a political community; as a shared commitment to unite activists; and as an institutional framework to cement support of the vulnerable. In short, solidarity is a bridge between compassion and political or legal change.

Turning to the question whether solidarity with animals is possible, Dr Cochrane adopted the three forms of solidarity identified by Sally Scholz. These track the three purposes of solidarity. They are social, political, and civic solidarity. Humans can share social solidarity with animals: pets and police dogs are recognised as part of our communities. Even though not all animals are currently seen this way, it is in principle possible. Humans can share civic solidarity with animals: there exist institutional apparatuses for the protection of vulnerable animals, such as shelters, vaccinations for endangered animals, and police dog pensions. These examples may apply to a tiny proportion of animals, but they show that, in principle, civic solidarity can cross the species barrier. Can humans share political solidarity with animals? This is not clear, but it seems not. Political solidarity requires a unifying commitment to political action, which animals cannot share with humans because they cannot understand political action. Some might see animals’ deliberate resistance to oppression as commitment to the political fight against oppression. Dr Cochrane is doubtful. But even if we can only share social and civic solidarity with animals, we can have political solidarity with each other as humans on behalf of animals, which serves the same purpose. 

Animals in constitutions

We moved from the political to the legal. John Adenitire presented his forthcoming paper, which argues for a conception of the rule of law that takes seriously the sentience of animals other than humans. The paper forms part of an ongoing research project conducted by Drs Adenitire and Fasel on animal rights and constitutionalism. The top-line contention is that constitutional principles that focus only on humans at the expense of all other animals (and also at the expense of humans who lack certain privileged traits) lack justification. New, more justifiable principles must be forged. The rule of law is just one aspect of constitutional theory that must be reshaped to accommodate animals.

The (or a) dominant account of the rule of law is that it facilitates the guidance of human conduct by the law. On this account, the rule of law does not protect those who cannot fit their conduct to the guidance of the law. Such individuals are passive legal subjects, who are to be contrasted with active legal subjects, who are capable of understanding and adjusting their conduct to fit the law. Animals are passive legal subjects, as are some humans, such as infants and severely mentally disabled individuals. The rule of law as generally conceived only accounts for active legal subjects. If the rule of law is to protect not only animals but also the humans who are passive legal subjects, it requires a different rationale. Dr Adenitire proposes that a more inclusive account of the rule of law is that it restrains arbitrary power. Anyone, whether capable of understanding the law or not, can be protected by the restraint of arbitrary power. This conception of the rule of law is preferable and should be promoted.

Dr Adenitire substantiated this central argument with reference to three representative theories of the rule of law: Lon Fuller’s formal theory, Jeremy Waldron’s procedural theory, and T. R. S. Allan’s substantive theory. Each of these theories of the rule of law has a different thickness, but each is addressed exclusively to active legal subjects. Dr Adenitire does not commit to a thicker or a thinner conception of the rule of law, although he notes that a thicker conception would provide animals with greater protection. What he shows is that each of the formal, procedural and substantive theories can be adjusted to embrace passive as well as active legal subjects. So wherever a theorist sits on the question of the thickness of the rule of law, they should accept that the rule of law protects passive legal subjects, including animals, by restraining arbitrary power.

Are animals legal subjects at all? Dr Adenitire answers this question with an emphatic yes, because animals can and sometimes do hold legal rights. His justification for this position, which is familiar to animal rights lawyers, is set out clearly in the paper.

David Bilchitz’s presentation made legal theory concrete. He asked the question: Through which institutional structures should animal interests be addressed in democracies?

Professor Bilchitz’s starting-point was a 2016 decision of the Constitutional Court of South Africa, National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development and another [2016] ZACC 46; 2017 (1) SACR 284 (CC). The case concerned a constitutional challenge by the National Council of Societies for the Prevention of Cruelty to Animals (as is its correct name) to section 7(1)(a) of the Criminal Procedure Act (CPA). In summary, section 7(1)(a) of the CPA means that, in South Africa, only natural persons, not legal persons, may institute a private prosecution. This excluded the NSPCA, which is a legal person. In effect, the NSPCA could not privately prosecute animal welfare offences. In the context of the poor enforcement of animal welfare law by public bodies, the inability of a specialist body to enforce the law was a significant problem. The NSPCA argued that the exclusion of legal persons from the power of private prosecution deprived them of the equal protection and benefit of the law for no legitimate government purpose. As such, section 7(1)(a) of the CPA was contrary to the rule of law and unconstitutional.

The High Court and Supreme Court of Appeal dismissed the NSPCA’s claim, but the Constitutional Court allowed the NSPCA’s appeal and declared that the NSPCA has the power of private prosecution, but not because the NSPCA’s main argument succeeded. Section 7(1)(a) of the CPA was not declared to be unconstitutional. However, the Court decided that the power of private prosecution was “expressly conferred by law” on the NSPCA under section 8(1) of the CPA. Section 6(2)(e) of the Societies for the Prevention of Cruelty to Animals Act, which gives the NSPCA the power to “institute legal proceedings connected with its functions”, should be read broadly to include the power of private prosecution. This broad reading is justified by “the unique legislative context of the animal protection regime” [52], “changes in legislation which have made the NSPCA structurally capable of private prosecutions” [53], and the “constitutional values” of animal welfare and conservation that the NSPCA is charged with upholding [61].

Professor Bilchitz pointed out that, in this fascinating judgment, the court did not properly tackle the issue of the NSPCA’s fitness as a prosecutor, in terms of resources and conflicts with its other functions. How, in principle, should a public body be set up in order to defend sentient beings with inherent value who cannot participate in democratic process? And can the NSPCA function in such a way in practice? The presentation answered these questions in such detail that the answers are best left to the recording. But they showed Professor Bilchitz’s expertise in both normative animal rights issues as they apply to institutions and the granular detail of the animal rights institutions that we have inherited.

Animals as persons and/or rights-holders?

Saturday’s first presentation was by Małgorzata Lubelska-Sazanów, who, refreshingly, took a civil-law approach to the issue of animal personhood. The civil codes of many European countries contain both dereification clauses, which affirm that animals are not property, and respective applicability clauses, which state that the provisions that govern property govern animals too. The result is that animals are property in all but name. However, judicial decisions tell another story. Since not all civil-law ownership rights (ius possidendi; ius utendi, fruendi, and abutendi; and ius disponendi) straightforwardly apply to animals, judges sometimes treat animals as special cases.

We were given two examples. First, in the German case AZ. VIII ZR 210/06, 9.1.2008, a horse that was sold suffered from a defective castration operation. The judge took into account the horse’s health when deciding whether damages could be recovered for breach of the contract of sale. (With my rusty German, I cannot locate the relevant passage in the judgment, but we can be confident that Dr Lubelska-Sazanów knows what she is talking about.) Second, in the Polish case I ACa 528/14, SA Krakow, 17.6.2014, the Court of Appeals in Kraków (First Civil Division) dealt with the issue of ownership rights over animals designated as homeless by the Polish Animal Protection Act. The Court summed up the trouble that judges face when confronted by the paradoxical legal status of animals:

Należy jednak podkreślić, że ustawa nakazuje stosować przepisy dotyczące rzeczy „odpowiednio”. Zastrzeżenie to wiąże się z postawą humanizmu wobec zwierząt. Z tego względu określa się wyraźnie, że zwierzę nie jest rzeczą (art. 1 ust. 1 ustawy). Taka interpretacja ustawy powoduje, iż odpowiednikiem prawa własności (rzeczy) jest prawo własności zwierzęcia, które jednak – ze względu na przedmiot niebędący rzeczą, nie jest własnością w rozumieniu art. 140 kc. Przepisy kodeksu cywilnego mają tutaj tylko odpowiednie zastosowanie.

It should be emphasized, however, that the Act requires that the provisions concerning things be applied “appropriately”. This reservation is related to the attitude of humanism towards animals. For this reason, it is clearly stated that the animal is not a thing (Article 1(1) of the Act). Such an interpretation of the Act means that the equivalent of the ownership right (thing) is the animal ownership right, which, however – due to the object not being a thing, is not property within the meaning of Art. 140 of the Civil Code. The provisions of the Civil Code only apply appropriately.

(Apologies for the Google-Translate-based translation!)

Dr Lubelska-Sazanów concluded that the simplest way out of this absurd situation was the creation of a third category of legal entities apart from persons and property, which would be the category of animals. This would avoid the troubles associated with applying a pre-existing package of rights or vulnerabilities to a sui generis group of beings. Civil legal codes would be capable of introducing such structural change with the addition of only a few articles.

Marina Lostal, presenting a published article, continued the trend of asking bold questions. Could animals qualify as victims before the International Criminal Court? She always knew, she said, that the answer to this question would be no. Under Rule 85 of the ICC’s Rules of Procedure and Evidence, there are three requirements to be satisfied in order to qualify as a potential victim. One must be a natural person; one must be capable of suffering harm; and such harm must be as a result of crimes under the jurisdiction of the court. Animals satisfy the second and third requirements, but not the first. As a matter of ICC precedent, a natural person is simply a human being.

Dr Lostal did not discuss whether this precedent was justified or capable of being overturned, because, in her opinion, it would also be wrong for animals to be treated as victims. It would open up the Court to accusations of triviality and of failure to use its limited resources efficiently, and it would mean using legal tools to address crimes that they are fundamentally ill-suited to address. But the question should be asked because it exposes the non-existence of animals in the Court’s legal framework. Animals feature in every reparations case that the ICC has ever dealt with, as an important practical and cultural part of the daily lives of victims of international crimes. The silence of international criminal law on the legal status of animals sits awkwardly alongside developing bodies of domestic law that consider animals to be legal subjects capable of bearing rights. Like Dr Lubelska-Sazanów, Dr Lostal considers that the codification of more nuance in this area would be reflective of legal practice and animals’ moral status.

Josh Jowitt spoke about what is probably the most famous animal-rights case in the English-speaking legal world: the Nonhuman Rights Project’s habeas corpus petition and subsequent appeals on behalf of Happy, a fifty-year-old Asian elephant kept alone in the Bronx Zoo in New York City. That litigation, like many topics mentioned here, deserves its own blog post. For now, it suffices to say that the New York Court of Appeals, the highest court in the state of New York in the United States of America, will shortly hear arguments about whether Happy is a legal person entitled to bodily liberty.

Dr Jowitt began by drawing a parallel between Happy’s case and the film Miracle on 34th Street. In both cases, a court must choose whether to follow a rule that would lead to injustice, or to disregard the rule and apply a broader principle in favour of justice. To support this analogy, Dr Jowitt drew on the work of the legal theorist Gustav Radbruch. In his 1946 paper, ‘Statutory Lawlessness and Supra-Statutory Law’, Radbruch proposed that judges consider a hierarchy of interconnected virtues when deciding cases. They are, in descending order, legal certainty, justice, and public benefit. Although, ordinarily, the primacy of legal certainly requires the application of unjust laws, some laws are so unjust that they undermine legal certainty, losing the very quality of law. In these situations, judges are obliged to do justice rather than apply the unjust rule. Dr Jowitt likened this situation to H. L. A. Hart’s penumbral cases, in which judges have discretion to go beyond the positive law. He argued that the fact that the Court of Appeals has agreed to hear Happy’s case, as part of a tiny minority of cases, shows that it is a penumbral case.

Dr Jowitt went on to make the point that the common law has always addressed injustice by being flexible. He referred to R v R [1991] UKHL 12; [1992] 1 AC 599, in which the House of Lords upheld Lord Lane CJ in the Court of Appeal in abolishing, or ceasing to recognise, a marital defence to rape. The Lord Chief Justice said: “This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.” He also referred to a case beloved of animal rights lawyers, Somerset v Stewart (1772) 98 ER 499, in which Lord Mansfield held that the common law could not support a practice as immoral as human slavery. In conclusion, the presentation sought to provide a soft natural-law reason why the Court of Appeals should allow the Nonhuman Rights Project’s appeal in Happy’s case.

Darren Calley gave a presentation focussed on the question whether animals have any right to life. This issue is not generally given much space in animal law discussions, with the focus being on welfare and quality of life. Dr Calley puts this down to the utilitarian moral origins of animal welfare laws. Jeremy Bentham, the utilitarian philosopher, famously said that whether a being could suffer was what decided whether that being mattered morally. He wrote of animals in Morals and Legislation in 1789: “The death they suffer in our hands commonly is, and always may be, a speedier, and by that means a less painful one, than that which would await them in the inevitable course of nature. If the being killed were all, there is very good reason why we should be suffered to kill such as molest us: we should be the worse for their living, and they are never the worse for being dead.”

The two hundred subsequent years of animal welfare legislation in the United Kingdom prioritised the prevention of cruelty and, eventually, the positive promotion of welfare. Richard Martin’s Act in 1822 was broadened by John Pease’s Act in 1835; the 1849 Cruelty to Animals Act replaced that, and was in turn replaced by the 1911 Protection of Animals Act. The modern Animal Welfare Act 2006 was the first new piece of animal cruelty legislation in almost 100 years. Each new law was an incremental improvement, with no step-changes.

Dr Calley proposed that, in the late 1700s and early 1800s, animals lived such painful lives that the prevention of suffering was the overriding moral priority. The intervening years have seen the lives of animals significantly improve, or at least the lives of those that live visibly among us, as pets or in zoos. If animals’ lives are now more worth living in some sense, is it more meaningful to speak of a right to life than when Bentham wrote? One small statutory provision might hint at this. Section 17A of the Animals (Scientific Procedures) Act 1986, added by amendment in 2013, provides for the release and re-homing of animals that have been subjected to experiments. If animals’ lives have no inherent value, there could be said to be nothing wrong with painlessly killing animals once their use as test subjects has ended. This is contemplated in section 9(4) of the Animal Welfare Act 2006: “the destruction of an animal in an appropriate and humane manner” is not an offence. The 2013 amendment is a slight indication that it is not just pain and pleasure that matter for animals, and that Bentham’s comments in 1789 are no longer, as it were, good law.

Joe Wills and Saskia Stucki gave talks about animals and warfare, which I was unfortunate enough to miss. Knowing their work, I am sure that the recordings of their presentations will be worth watching.

At the risk of sounding obsequious, I struggle to reflect on the conference without feeling proud that this community is producing such original, rigorous and compassionate work. I was aware on several occasions during the talks that, to many in the wider legal world or outside the law altogether, the ideas discussed would seem far-fetched. To speak of a pet’s right not to be a pet is far removed from the concerns that most people have about animal welfare. To be an animal rights lawyer is often to be acutely aware of the distance between one’s own views and the views of most of society. But this is what it is to be at the vanguard of a movement for justice. Some ideas that now seem radical will gain acceptance as society hosts new conversations; some will be discarded. When Lord Pannick QC was before the Divisional Court in the second Miller case, about the prorogation of Parliament, he opened with a joke. “That got a good laugh, but unfortunately so did the rest of my submissions.” At first, the view among lawyers was that the case was the Prime Minister’s to lose. Lord Pannick went on to successfully convince the full bench of eleven Supreme Court justices of the correctness of his case. We will see which of the ideas aired at this conference will stand the test of time.

What I’ve been doing this week…

As part of my attempt to keep up with the debate on common-good constitutionalism in the United States, I read three great pieces by three great young scholars. Conor Casey sums up the debate so far (from the point of view of a proponent) (for Westlaw subscribers only, but the author can be contacted for a copy). Michael Foran valiantly makes the case for judicial review and fundamental rights under common-good constitutionalism. And Jamie McGowan makes the case against rights. I am far from ready to wade into this one, but I do feel prepared to say that the debate could do with more diversity of views about what constitutes the common good (and, indeed, more diversity of participants).

And train journeys prompted me to start my second viewing of Netflix’s Call My Agent! / Dix pour cent. Joyful, melodramatic escapism.