Tag Archives: Public Law

Animals in constitutions around the world

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Animal lives are shaped by human laws, though they do not elect or lobby or stand as lawmakers. And animals may benefit from those laws, though they do not draft pleadings or instruct counsel or make choices about the use of litigation in broader social change strategies. In terms of prevailing constitutional theory and practice, they are subjects, but not citizens; beneficiaries, but not enforcers, of law. They think, and feel, and communicate, but not in ways that allow them to speak for themselves in the languages of formal law.

Jessica Eisen, ‘Animals in the Constitutional State’, I•CON (International Journal of Constitutional Law) (2017), Vol. 15 No. 4, 909, p. 941

Animals occupy an interesting position within legal systems. Animals have traditionally been considered property or things in law, but there have always been laws designed to deal with animals’ unique character within that class. For one thing, animals have minds of their own, autonomous physical mobility, and the ability to reproduce. The same laws that govern chairs could not completely suit such creatures, so special laws for animals are required. For another thing, humans are sometimes sufficiently morally concerned about the treatment of animals or their well-being to seek to rebut the usual presumption that one may do whatever one wishes with one’s property. Animals are not unique in this respect – ask anyone who owns a listed building – but the nature of the legal protection that animals receive, when they do receive it, is different from the nature of protection granted to inanimate property because of the different kinds of harms that animals suffer. (I discussed this phenomenon in my first post on this blog.)

Above, Eisen identifies a third way in which animals might need to be treated as a special category. This is by constitutional law. If you are not a lawyer: roughly, constitutional law is the body of law setting out how the state is constituted: its component parts, their relations with one another, and their powers and duties towards individuals, often expressed in the form of a bill of rights. Constitutional law is usually some combination of a written constitutional document (a Constitution with a big C) and unwritten constitutional principles or values, which are developed and applied in judicial decisions. A written constitutional document is usually adopted by a process that at least claims to be democratic and derives its legitimacy from that fact. If animals are part of the community of beings whose lives are governed by law, how can a constitution validated only by humans legitimately apply to animals? How could a constitution be legitimate with respect to animals? And how could, or should, a constitution recognise the status of animals as worthy of protection if the law treats them as property?

These questions assume that animals are part of the community of beings whose lives are governed by law and that animals are worthy of protection. The first assumption is a not-widely-held answer to a difficult question of legal theory. However, the second assumption is a widely-held view. It is not universal, and the nature and scope of the legal protection that animals deserve are controversial. But, without entering heavily-contested territory or getting into legal-theoretical weeds, we can quite safely ask: How can animals be protected by constitutions?

I hope to write a number of blog posts addressing this question. This post is a short survey of the countries that have explicitly mentioned the protection of animals in their constitutional documents. There are nine such countries: Austria, Brazil, Egypt, Germany, India, Italy, Luxembourg, Slovenia and Switzerland. Without dwelling on every example, we can see the range of approaches that have been adopted so far and their effects.

Constitutional provisions protecting animals have been classified in a number of ways, but no one ever got rich using someone else’s analytical framework. I think that a helpful way to divide up these provisions is between subject-matter duties, vague substantive duties and specific substantive duties. A subject-matter duty arises when a state is obliged to make laws concerning a particular subject, but the constitution does not guide or limit the state as to the content of those laws. A vague substantive duty arises when a state is obliged to undertake a particular activity or respect a particular value but is not obliged to achieve a particular result. A specific substantive duty arises when a state is obliged to achieve a particular result. We can classify our provisions along these lines by taking their text at face-value, but the interpretation of a provision will depend on legal doctrines and culture in the country.

We can start with the subject-matter duties. Article 72 of the Constitution of the Republic of Slovenia provides as follows (I have emphasised the crucial words for our purposes):

Zdravo življenjsko okolje
Vsakdo ima v skladu z zakonom pravico do zdravega življenjskega okolja. Država skrbi za zdravo življenjsko okolje. V ta namen zakon določa pogoje in načine za opravljanje gospodarskih in drugih dejavnosti.
Zakon določa, ob katerih pogojih in v kakšnem obsegu je povzročitelj škode v življenjskem okolju dolžan poravnati škodo.
Varstvo živali pred mučenjem ureja zakon.

Healthy living environment
Everyone has the right in accordance with the law to a healthy living environment. The state shall promote a healthy living environment. To this end, the conditions and manner in which economic and other activities are pursued shall be established by law.
The law shall establish under which conditions and to what extent a person who has damaged the living environment is obliged to provide compensation.
The protection of animals from cruelty shall be regulated by law.

The reason that this is only a subject-matter duty is that the fact that animal protection “regulated by law” does not guarantee any substantive level of animal protection. While it is arguable whether this provision would be satisfied if a law stated animals shall not be protected from cruelty (is this the regulation of the protection of animals from cruelty?), it is hard to interpret the provision as requiring the state to prohibit any specific acts.

Very recently, the Italian Chamber of Deputies approved a constitutional amendment that will, among other things, brings animals into the Constitution of the Italian Republic. Article 9 will now say as follows:

La Repubblica promuove lo sviluppo della cultura e la ricerca scientifica e tecnica. Tutela il paesaggio e il patrimonio storico e artistico della Nazione. Tutela l’ambiente, la biodiversità e gli ecosistemi, anche nell’interesse delle future generazioni. La legge dello stato disciplina i modi e le forme di tutela degli animali.

The Republic promotes the development of culture and scientific and technical research. It protects the landscape and the historical and artistic heritage of the nation. It protects the environment, biodiversity and ecosystems, also in the interest of future generations. The law of the state regulates the ways and forms of animal protection.

We can call this a subject-matter duty for the same reasons as apply to Slovenia.

Do these provisions have any value with respect to protecting animals? Even if they do not set a minimum standard of animal protection, they require the state to pass some kind of law relating to animal protection. Unless the legislature (or the executive, depending on the national system) can devise and pass a law unnoticed, there will have to be a national conversation of some sort about appropriate standards of protection for animals. Constitutional provisions imposing subject-matter duties are therefore of political value with respect to protecting animals.

Next we have vague substantive duties. Article 11 bis of the Constitution of the Grand Duchy of Luxembourg provides as follows:

L’Etat garantit la protection de l’environnement humain et naturel, en œuvrant à l’établissement d’un équilibre durable entre la conservation de la nature, en particulier sa capacité de renouvellement, et la satisfaction des besoins des générations présentes et futures. Il promeut la protection et le bien-être des animaux.

The State guarantees the protection of the human and cultural environment, and works for the establishment of a durable equilibrium between the conservation of nature, in particular its capacity for renewal, and the satisfaction of the needs of present and future generations. It promotes the protection and well-being of animals.

Similarly, Austrian constitutional law no. 111/2013 on sustainability, animal welfare etc, provides at paragraph 2, as follows:

Die Republik Österreich (Bund, Länder und Gemeinden) bekennt sich zum Tierschutz.

The Republic of Austria (at the federal, state and local levels) commits itself to the protection of animals.

These provisions commit the state to a substantive position on the issue of animal welfare. It cannot neglect or choose to attach no importance to the protection and well-being of animals. It must promote them. But this is such a high-level duty that it is difficult to see how it would be enforced by a court or applied to a particular context.

A further example can enlighten us. Article 20a of the Basic Law (Grundgesetz) for the Federal Republic of Germany, which is the German constitution, provides as follows:

Der Staat schützt auch in Verantwortung für die künftigen Generationen die natürlichen Lebensgrundlagen und die Tiere im Rahmen der verfassungsmäßigen Ordnung durch die Gesetzgebung und nach Maßgabe von Gesetz und Recht durch die vollziehende Gewalt und die Rechtsprechung.

Mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.

This is another vague substantive duty. The state is committed to protecting animals, but what does this mean? Elien Verniers argues that this provision has both political and legal effects. Legally speaking, it allows fundamental constitutional rights to be limited on the basis of the protection of animals, which is a constitutional value of equal status. This has resulted in little change in judicial decisions involving the rights to freedom of research and freedom of religion, but it has had an impact on the scope of the rights to freedom of artistic expression and freedom of teaching. While before the adoption of this constitutional provision, constitutional freedom of artistic expression or teaching could not be limited on the basis of animal protection, now that can happen, because animal protection is a constitutionally-protected value. This led the Cologne Administrative Court to forbid educational experiments on mice when they could instead learn by watching videos (Verwaltungsgericht Köln, 22.08.2018 – 21 K 11572/17). This example shows that vague substantive duties can have an effect in practice, which will depend on how the constitutional law works in a given country.1

Now we have specific substantive duties. Article 45 of the Constitution of the Arab Republic of Egypt provides as follows:

.تلتزم الدولة بحماية بحارها وشواطئها وبحيراتها وممراتها المائية ومحمياتها الطبيعية
ويحظر التعدى عليها، أوتلويثها، أواستخدامها فيما يتنافى مع طبيعتها، وحق كل مواطن فى التمتع بها مكفول، كما تكفل الدولة حماية وتنمية المساحة الخضراء في الحضر، والحفاظ على الثروة النباتية والحيوانية والسمكية، وحماية المعرض منها للانقراض أو الخطر، والرفق بالحيوان، وذلك كله على النحو الذى ينظمه القانون

The State shall protect its seas, shores, lakes, waterways and natural protectorates.
Trespassing, polluting or misusing any of them is prohibited. Every citizen is guaranteed the right of enjoying them. The State shall protect and develop the green space in the urban areas; preserve plant, animal and fish resources and protect those under the threat of extinction or danger; guarantee humane treatment of animals, all according to the law.

This provision requires the state to guarantee “al-rifq bil-hayawan” (the humane treatment of animals or animal welfare). This is a specific substantive duty because, if the state fails to guarantee animal welfare, for example by allowing cruel practices, the state can be said to be in breach of the duty. The state must make laws that guarantee the welfare of animals and enforce them effectively.

Another specific substantive duty is to be found in Brazil. Article 255 of the Constitution of Brazil provides, in relevant part, as follows:

Todos têm direito ao meio ambiente ecologicamente equilibrado, bem de uso comum do povo e essencial à sadia qualidade de vida, impondo-se ao Poder Público e à coletividade o dever de defendê-lo e preservá- lo para as presentes e futuras gerações.
§ 1º Para assegurar a efetividade desse direito, incumbe ao Poder Público:
[…]
VII – proteger a fauna e a flora, vedadas, na forma da lei, as práticas que coloquem em risco sua função ecológica, provoquem a extinção de espécies ou submetam os animais a crueldade.

All have the right to an ecologically balanced environment, which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations.
Paragraph 1 – In order to ensure the effectiveness of this right, it is incumbent upon the Government to:
[…]
VII. protect the fauna and the flora, with prohibition, in the manner prescribed by law, of all practices which represent a risk to their ecological function, cause the extinction of species or subject animals to cruelty.

The provision is quite clear that the government must prohibit “as práticas” (literally the practices, but translatable as all practices, as in the official translation) that subject animals to cruelty. The value of this provision is illustrated by judicial decisions striking down laws that permit such practices. One such case concerned the practice of vaquejada (STF, ADI No. 4983, Relator: Min. Marco Aurélio, 06.10.2016, Diário Da Justiça Eletrônico [D.J.E.], 10.10.2016, 215). This is a traditional sport in north-east Brazil, involving two horse-riders who between them try to direct a bull into a marked area before knocking the bull over. In 2016, the Supreme Federal Court of Brazil (Supremo Tribunal Federal), sitting en banc, ruled, by a majority of 6 to 5, that the law passed by the State of Ceará permitting vaquejada was unconstitutional and void because it permitted the infliction of unnecessary suffering on animals. This case shows the force of a specific substantive constitutional duty, but it also shows a danger inherent in overturning democratically-approved laws. The decision was very controversial, and resulted not only in the passing by other states in Brazil of similar laws in protest (which were presumably also unconstitutional), but also in the adoption of a constitutional amendment creating a specific exception from the constitutional prohibition of cruel practices for traditional cultural practices (meaning that the new laws now comply with the constitution). It is a topic for another time, but one step forwards can be followed by two steps back when legal developments are far removed from popular opinion.

Now we have seen three kinds of constitutional provision protecting animals: subject-matter duties, vague substantive duties and specific substantive duties. We have two more countries to visit, one that combines several kinds of duties and another that has an unusual constitutional provision.

Switzerland is regarded as a progressive country when it comes to laws protecting animals. Although the electorate of the canton of Basel recently voted not to extend fundamental rights to primates in a long-awaited referendum, Switzerland has a reputation for legally innovative animal welfare laws. This is reflected in its constitutional law. Four articles of the Federal Constitution of the Swiss Federation are of interest to us. They provide as follows:

Art. 78 Natur- und Heimatschutz
1 Für den Natur- und Heimatschutz sind die Kantone zuständig.
2 Der Bund nimmt bei der Erfüllung seiner Aufgaben Rücksicht auf die Anliegen des Natur- und Heimatschutzes. Er schont Landschaften, Ortsbilder, geschichtliche Stätten sowie Natur- und Kulturdenkmäler; er erhält sie ungeschmälert, wenn das öffentliche Interesse es gebietet.
3 Er kann Bestrebungen des Natur- und Heimatschutzes unterstützen und Objekte von gesamtschweizerischer Bedeutung vertraglich oder durch Enteignung erwerben oder sichern.
4 Er erlässt Vorschriften zum Schutz der Tier- und Pflanzenwelt und zur Erhaltung ihrer Lebensräume in der natürlichen Vielfalt. Er schützt bedrohte Arten vor Ausrottung.
5 Moore und Moorlandschaften von besonderer Schönheit und gesamtschweizerischer Bedeutung sind geschützt. Es dürfen darin weder Anlagen gebaut noch Bodenveränderungen vorgenommen werden. Ausgenommen sind Einrichtungen, die dem Schutz oder der bisherigen landwirtschaftlichen Nutzung der Moore und Moorlandschaften dienen.

Art. 78 Protection of natural and cultural heritage
1 The protection of natural and cultural heritage is the responsibility of the Cantons.
2 In the fulfilment of its duties, the Confederation shall take account of concerns for the protection of natural and cultural heritage. It shall protect the countryside and places of architectural, historical, natural or cultural interest; it shall preserve such places intact if required to do so in the public interest.
3 It may support efforts made for the protection of natural and cultural heritage and acquire or preserve properties of national importance by contract or through compulsory purchase.
4 It shall legislate on the protection of animal and plant life and on the preservation of their natural habitats and their diversity. It shall protect endangered species from extinction.
5 Moors and wetlands of special beauty and national importance shall be preserved. No buildings may be built on them and no changes may be made to the land, except for the construction of facilities that serve the protection of the moors or wetlands or their continued use for agricultural purposes.

Art. 79 Fischerei und Jagd
Der Bund legt Grundsätze fest über die Ausübung der Fischerei und der Jagd, insbesondere zur Erhaltung der Artenvielfalt der Fische, der wild lebenden Säugetiere und der Vögel.

Art. 79 Fishing and hunting
The Confederation shall lay down principles on fishing and hunting and in particular on the preservation of the diversity of fish species, wild mammals and birds.

Art. 80 Tierschutz
1 Der Bund erlässt Vorschriften über den Schutz der Tiere.
2 Er regelt insbesondere:
a. die Tierhaltung und die Tierpflege;
b. die Tierversuche und die Eingriffe am lebenden Tier;
c. die Verwendung von Tieren;
d. die Einfuhr von Tieren und tierischen Erzeugnissen;
e. den Tierhandel und die Tiertransporte;
f. das Töten von Tieren.
3 Für den Vollzug der Vorschriften sind die Kantone zuständig, soweit das Gesetz ihn nicht dem Bund vorbehält.

Art. 80 Protection of animals
1 The Confederation shall legislate on the protection of animals.
2 It shall in particular regulate:
a. the keeping and care of animals;
b. experiments on animals and procedures carried out on living animals;
c. the use of animals;
d. the import of animals and animal products;
e. the trade in animals and the transport of animals;
f. the killing of animals.
3 The enforcement of the regulations is the responsibility of the Cantons, except where the law reserves this to the Confederation.

Art. 120 Gentechnologie im Ausserhumanbereich
1 Der Mensch und seine Umwelt sind vor Missbräuchen der Gentechnologie geschützt.
2 Der Bund erlässt Vorschriften über den Umgang mit Keim- und Erbgut von Tieren, Pflanzen und anderen Organismen. Er trägt dabei der Würde der Kreatur sowie der Sicherheit von Mensch, Tier und Umwelt Rechnung und schützt die genetische Vielfalt der Tier- und Pflanzenarten.

Art. 120 Non-human gene technology
1 Human beings and their environment shall be protected against the misuse of gene technology.
2 The Confederation shall legislate on the use of reproductive and genetic material from animals, plants and other organisms. In doing so, it shall take account of the dignity of living beings as well as the safety of human beings, animals and the environment, and shall protect the genetic diversity of animal and plant species.

We can see our three kinds of provision concerning animals here. First, and mostly, we have subject-matter duties. The first sentence of Article 78(4) and all of Article 79 and Article 80 set out domains in which the state is obliged to pass laws without specifying what those laws should achieve. Second, the commitment in Article 120 to take account of the dignity of living beings is a vague substantive duty. It is an interesting provision because it recognises at a constitutional level the distinctively Swiss legal value of animal dignity, but it is not hard-edged and it is unclear whether it applies in any way outside the direct context of genetic technology. Third, the second sentence of Article 78(4) is a specific substantive duty. The state must pass laws that protect endangered species from extinction.

Our last country is India, and it is unique because the constitutional provision we are looking at imposes a duty not on the state but on the individual citizen. Article 51A of the Constitution of India provides, in relevant part, as follows:

Fundamental duties
It shall be the duty of every citizen of India
[…]
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
[…]

As written, this would not grant animals any real protection at all. Not only does not concern the law-making power of the state, but it only requires citizens to “have compassion”, not to act with compassion. However, it has been interpreted expansively. This is, in the first place, because the constitutional role of fundamental duties has been expanded beyond what is obvious in the text. This was established in AIIMS Students’ Union vs All India Institute of Medical Sciences & others (2002) 1 SCC 428, in which R. C. Lahoti J said as follows:

Fundamental duties, though not enforceable by a writ of the court, yet provide a valuable guide and aid to interpretation of constitutional and legal issues. […] Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by courts as a tool to tab, even a taboo, on State action drifting away from constitutional values

In Indian constitutional law, the values underlying fundamental duties can serve as aids to statutory interpretation and can ground limitations on state power. This was seen in the context of Article 51A(g) of the Constitution in Animal Welfare Board of India v Nagaraja and others (2014) 7 SCC 547. In this case, the Supreme Court of India considered the compatibility of state legislation permitting jallikattu, a traditional form of entertainment involving bulls, with the federal Prevention of Cruelty to Animals Act 1960. The court (K. S. Panicker Radhakrishnan J) concluded that jallikattu violated the Act and that laws permitting it were invalid. It did so by using Article 51A(g) of the Constitution to read new content into the Act and to give the protections in the act the normative force of constitutional rights. The judgment takes some time to expose fully but these three paragraphs show how the

32. Sections 3 and 11, as already indicated, therefore, confer no right on the organisers of Jallikattu or bullock-cart race, but only duties, responsibilities and obligations, but confer corresponding rights on animals. Sections 3, 11(1)(a) & (o) and other related provisions have to be understood and read along with Article 51A(g) of the Constitution which cast fundamental duties on every citizen to have “compassion for living creatures”. Parliament, by incorporating Article 51A(g), has again reiterated and re-emphasised the fundamental duties on human beings towards every living creature, which evidently takes in bulls as well. All living creatures have inherent dignity and a right to live peacefully and right to protect their well-being which encompasses protection from beating, kicking, over-driving, over-loading, tortures, pain and suffering etc. Human life, we often say, is not like animal existence, a view having anthropocentric bias, forgetting the fact that animals have also got intrinsic worth and value. Section 3 of the PCA Act has acknowledged those rights and the said section along with Section 11 cast a duty on persons having charge or care of animals to take reasonable measures to ensure well-being of the animals and to prevent infliction of unnecessary pain and suffering.

54. […] These five freedoms, as already indicated, are considered to be the fundamental principles of animal welfare and we can say that these freedoms find a place in Sections 3 and 11 of PCA Act and they are for animals like the rights guaranteed to the citizens of this country under Part III of the Constitution of India.

56. Rights guaranteed to the animals Under Sections 3, 11, etc. are only statutory rights. The same have to be elevated to the status of fundamental rights, as has been done by few countries around the world, so as to secure their honour and dignity. Rights and freedoms guaranteed to the animals Under Sections 3 and 11 have to be read along with Article 51A(g)(h) of the Constitution, which is the magna carta of animal rights.

The point of producing these paragraphs is not to show you exactly how the Indian constitution protects animals. That would require several blog posts. The point is that textually vague and unpromising constitutional provisions can have a profound legal effect when the system of constitutional law enables an underlying value to be identified and applied independently. Does this mean that our analysis of subject-matter duties, vague substantive duties and specific substantive duties is worthless, because the effect of a constitutional provision depends more on the constitutional context than on the words of the provision?

I think not, for two reasons. First, words do matter. India’s muscular constitutional jurisprudence makes it an outlier, at least among the countries we have looked at, with respect to how far from the literal meaning of the text courts are willing to go. In most countries, the precise formulation of a constitutional provision determines its effect, so it is useful to understand the possible formulations. Second, a country that wishes to add a provision concerning animal protection to its constitution may have one of a wide range of intentions. Maybe the population and the legislators are overwhelmingly pro-animal-rights, or maybe a constitutional amendment is the controversial result of a coalition agreement. Democratic considerations require a variety of options to be available to constitutional drafters. And, relatedly, if law-makers understand that the possibilities are more nuanced than having fundamental rights for animals on the one hand or no protection for animals on the other, it is more likely that animals will end up appearing in constitutions at all.

1Verniers’ full analysis of the effect of the German constitutional provision can be read at: Elien Verniers, ‘The impact of including animals in the constitution – Lessons learned from the German animal welfare state objective’, Global Journal of Animal Law (2020) 8.

What I’ve been watching this week

I have returned to, and finished, North Square, the 2000 barrister drama series by Peter Moffat. It’s not as polished as Silk but it is fantastic entertainment, held together by Phil Davis as the terrifying senior clerk. And it’s available to watch for free on All 4.

Part 4 of the Police, Crime, Sentencing and Courts Bill and Article 14 of the ECHR

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The Police, Crime, Sentencing and Courts Bill (which I will simply call the bill) is nearing the end of the Parliamentary ping-pong process. It is at the report stage in the House of Lords, having had its three readings in the House of Commons. Although there is still time for further amendments, it is highly likely that the bill will be passed in something resembling its current form. Many aspects of the bill have been seriously controversial and experts have commented at length on the merit or otherwise of the proposed legislation. I would like to ask an analytical question. How would Part 4 of the bill, if enacted, be interpreted by courts? In particular, is it compatible with Article 14 of the European Convention on Human Rights, which guarantees freedom from discrimination?

Part 4 is entitled “Unauthorised encampments”. The long title of the bill appears to allude to Part 4 somewhat euphemistically as aiming “to make provision about the removal, storage and disposal of vehicles”. The aim of Part 4 is to address the perceived problem of members of the Gypsy, Roma and Traveller communities moving their homes onto land without the permission of the landowner and causing nuisance and distress to the landowner and others in the area. (I will use GRT as shorthand for Gypsy, Roma and/or Traveller, without wishing to elide the differences between distinct cultures.) Part 4 seeks to achieve this aim by creating a new offence, which is again named euphemistically the “offence relating to residing on land without consent in or with a vehicle”, and by creating associated powers for the police to confiscate property, including vehicles, belonging to anyone suspected of committing an offence.

The formal history of these proposals, in brief, is that the government consulted from April to June 2018 on proposed powers to deal with unauthorised development and encampments. The then Secretary of State for Housing, Communities and Local Government, the late James Brokenshire, published a consultation response in February 2019. This did not propose the creation of a new offence. Later in the year, a second consultation was launched, this time by the Home Office. This consultation ran from November 2019 to March 2020. This consultation proposed the criminalisation of unauthorised encampments. The Home Secretary, Priti Patel, published a response in March 2021. This coincided with the publication of the bill. Interested readers can compare the responses to the 2019 consultation questions with the 2021 government response and the proposals in Part 4 of the bill.

Part 4 of the bill comprises three clauses. They were originally numbered 61 to 63 but are now numbered 63 to 65, which is how I will refer to them. The bill can be read in its current form here. It is mainly clause 63 (that is the original clause 61) with which we must concern ourselves.

Clause 63 inserts a new offence at section 60C of the Criminal Justice and Public Order Act 1994, entitled the “Offence relating to residing on land without consent in or with a vehicle”. I will simply call this the offence. Clause 63 also adds sections 60D and 60E to the CJPOA. Section 60D creates powers for police to seize and retain property involved in the suspected commission of the offence. Section 60E provides for forfeiture orders in cases of conviction of the offence.

The new offence created by the proposed section 60C is a little fiddly, but the main part of it, which is formed by clause 63(1)–(4) at pp. 58–59 of the bill, can be summarised as follows:

A person P, who is over 18, commits an offence if:

  1. P resides, or intends to reside, on land without the consent of the occupier, O, and
  2. P has, or intends to have, a vehicle with them on the land, and
  3. O or a police officer requests P to leave the land and/or remove P’s property from the land, and
  4. Either
    1. P fails to comply with the request, or
    2. P enters the land within 12 months of the request with the intention of residing there with O’s consent and with a vehicle on the land, and
  5. Either
    1. P’s residence on the land has caused or is likely to cause significant damage or disruption, or
    2. P’s offensive conduct on the land has caused or is likely to cause significant distress.

In summary, the proposed section 60D means that, if a police officer reasonably suspects that the offence has been committed, they may seize any relevant property, including any relevant vehicle, to be retained for three months. If notice is given that no prosecution will be brought, the property must be released, but if a prosecution is brought, the property may be retained until the conclusion of proceedings.

In summary, the proposed section 60E means that, if someone is convicted of the offence, any property that was seized under the proposed section 60D may be subject to a forfeiture order. Forfeiture means that the property is permanently taken from the offender.

As I have already said, the aim of these proposed provisions is to address the perceived problem of members of the GRT communities moving their homes onto land without the permission of the landowner and causing nuisance and distress to the landowner and others in the area. GRT communities are culturally distinct groups which share some traditions, primarily a nomadic lifestyle that is nowadays predominantly maintained in caravans (although not all GRT individuals lead a nomadic lifestyle). GRT communities are the subject of a high level of racism in the UK, which is more widely socially accepted than most forms of racism and which is in large part based on a prejudiced association between GRT individuals and crime and antisocial behaviour. The situation of GRT families is complicated by a long-standing shortage of allocated sites for encampment, following the abolition (by section 80 of the Criminal Justice and Public Order Act 1994) of the statutory duty (in section 6 of the Caravan Sites Act 1968) on local authorities to provide such sites. 

That is the context of the proposals. Their effect at face value is that, if a traveller family were to move their home onto a patch of land, and a police officer reasonably suspected that they had been asked to go away and had refused to do so, and they also suspected that the family’s presence was causing significant disruption, the officer could seize the family’s home and all its contents and hold onto it for three months, or until it was certified that no one in the family was to be prosecuted, or until the conclusion of proceedings if they were prosecuted and acquitted, or potentially forever if they were prosecuted and convicted.  

The context is relevant because it might inform how a court would interpret the proposed provisions. The offence, while applying to everyone, targets a specific group of racial and cultural communities. This raises the question whether there is anything in the United Kingdom constitution that could influence the interpretation of the offence in order to avoid a discriminatory effect.

The UK constitution is famously characterised by Parliamentary sovereignty. There is no written bill of rights that limits legislative power. The orthodox view is that primary legislation that tramples on fundamental rights, any way conceived, remains legally valid, with possible exceptions around institutional questions such as attempted abolition of courts. However, there is one well-established constitutional safeguard against discriminatory legislation. It is provided by section 3 of the Human Rights Act 1998, which requires courts to interpret legislation as far as possible so that it is compliant with the rights contained in the ECHR, which, at Article 14, include the right to non-discrimination in the enjoyment of the other protected rights. There is a second, more speculative, constitutional protection from discrimination. This is the constitutional principle of equality to be found in the common law. It is controversial whether such a principle exists, and, if it exists, what are its content and nature. Even if its existence were accepted, it would be unlikely to produce a different outcome in this case from Article 14 of the ECHR. Analysis of it is best left for another day.

In the recent Court of Appeal decision of R (Kaitey) v Home Secretary [2021] EWCA Civ 1875 at paragraph [91], Singh LJ summarised the process to be followed when section 3 of the Human Rights Act might come into play as follows.

91. I would summarise the approach which needs to be adopted in the following order:

(1) First, ascertain the ordinary meaning of legislation, having regard to all the usual aids to interpretation. This is not a purely linguistic exercise but seeks to give effect to the purpose of the legislation. The aids to interpretation include the presumption that Parliament does not intend to put the UK in breach of its international obligations, including those under the ECHR.

(2) If – but only if – that ordinary interpretation would give rise to an incompatibility with the Convention rights, section 3 requires a different interpretation so far as possible. This is a strong form of interpretation, which is not the same as ordinary interpretation.

(3) If, even then, it is not possible to give the legislation a meaning which is compatible with Convention rights, the court has a discretion to make a declaration of incompatibility under section 4 of the HRA (if it is one of the courts specified in that section).

So the first stage is to find the ordinary meaning of the legislation. This we have done. The second stage is to see whether that meaning is incompatible with Article 14. The Joint Committee on Human Rights of the House of Commons and the House of Lords published a report on 2 July 2021, which states, at paragraph 39, that it is “likely” that the proposed provisions would contravene Article 14. (The report also raises the possibility of  incompatibility with other Articles of the ECHR, but we will not discuss that today.) The report does not contain any structured analysis of Article 14, which would be necessary to establish incompatibility. We can do this ourselves. The relevant four-stage test was given by Lady Black in R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51 at [8] as follows:

In order to establish that different treatment amounts to a violation of article 14, it is necessary to establish four elements. First, the circumstances must fall within the ambit of a Convention right. Secondly, the difference in treatment must have been on the ground of one of the characteristics listed in article 14 or “other status”. Thirdly, the claimant and the person who has been treated differently must be in analogous situations. Fourthly, objective justification for the different treatment will be lacking.

Before addressing the four-stage test, we need to identify precisely the different treatment or difference in treatment, the hypothetical claimant, and their comparator. This is stage zero.

The European Court of Human Rights has held that Article 14 prohibits indirect discrimination, that is a general measure that has a disproportionately prejudicial effect on a particular group: DH v Czech Republic (2008) 47 EHRR 3 at [175]. This means that we do not need to frame the different treatment clumsily as: GRT individuals are subject to criminalisation and the confiscation of property for pursuing their traditional way of living, that is nomadism, to a greater extent than other individuals are penalised for pursuing their traditional way of living, that is permanently in settled accommodation. Instead, we can say: The offence has a disproportionately prejudicial effect on GRT individuals because it criminalises behaviour associated with their traditional way of living, that is nomadism. Our hypothetical claimant is a GRT individual who commits the offence, because they must be demonstrably affected by the impugned measure: Buckley v United Kingdom (1997) 23 EHRR 101. Their comparator is an individual who occupies or intends to occupy another’s land without a vehicle and who causes or is likely to cause significant disruption. For the sake of example, a wild camper in a tent. The vehicular element is the distinguishing feature of the offence and of the way of living threatened by the offence.

Does the offence fall within the ambit of a Convention right? Yes. This is a low hurdle. The ambit of a Convention right consists of both the rights protected by an Article of the Convention and any additional rights falling within the scope of an Article that a state decides to protect: Fábián v Hungary (2018) 66 EHRR 26 at [112]. It is established that Article 8 (right to private life) protects the right of GRT individuals to practise their itinerant cultural tradition: Chapman v United Kingdom [2001] 33 EHRR 399 at [96]. The offence makes it more difficult for GRT families to do so, and it interferes with their use of their homes. So it seems that the offence falls within the ambit of both Article 8 and Article 1 of Protocol 1 (right to peaceful enjoyment of possessions) of the ECHR.

Is the difference in treatment on the ground of a characteristic listed in Article 14? Yes. The difference in treatment is on the ground of “association with a national minority”, because GRT individuals are members of a minority group in the UK, and the criminalised behaviour is associated with that minority group.

Are the hypothetical claimant and their comparator in analogous situations? Yes. Again, this is a low hurdle. Unless there are obvious relevant differences between the (hypothetical) claimant and the comparator, we should proceed to the fourth stage of the test: AL (Serbia) v Home Secretary [2008] UKHL 42; [2008] 1 WLR 1434 at [25]. There are no obvious relevant differences between a GRT individual who occupies another’s land with a vehicle and causes or is likely to cause significant disruption and a camper who causes or is likely to cause significant disruption. It cannot be argued that the presence of a vehicle makes a difference because that is more disruptive, since both hypotheticals involve actual or likely significant disruption.

Is the difference in treatment objectively justified? Then burden now passes to the state to show that the difference in treatment is objectively justified. This involves the application of well-trodden proportionality analysis. The relevant four-stage test was given by Lord Reed in in Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39; [2014] AC 700 at [74] as follows:

(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the right, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom is applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.

In an Article 14 case, it is not the measure as a whole, that is the offence, that must be justified. Rather, the different treatment itself has to be justified: A and others v Home Secretary [2004] UKHL 56; [2005] 2 AC 68 at [68].

Finally, the state enjoys a margin of appreciation with respect to justification, which means that its decisions about when differences justify different treatment must be accorded a level of respect that depends on the circumstances: Carson v United Kingdom (2010) 51 EHRR 13 at [61]. Different factors within the whole set of circumstances may pull in different directions in this regard: R (SC, CB and eight children) v Secretary of State for Work and Pensions [2021] UKSC 26; [2021] 3 WLR 428 at [130].

With these points established, we can undertake the four-stage proportionality analysis.

Is the objective of the measure sufficiently important to justify the limitation of a protected right? The government’s March 2021 consultation response, referred to above, introduced “the case for action” as follows:

Unauthorised Encampments can, in some cases, cause harm and misery to those affected by them and it can be time-consuming and costly for local communities to have them removed.

Some of the harms and problems that are caused can include:

  • interference with electricity, water or gas supplies
  • animals out of control or attacking people using the land or passing nearby
  • animals defecating on the land without owners subsequently clearing up
  • excessive noise pollution as a result of behaviour such as playing loud music or revving the engines of motor vehicles
  • improper deposit of human waste or sewage (such as bath water)
  • failure to remove excessive litter
  • disposal of clinical waste

The response also refers to the costs incurred by local authorities and private individuals in addressing the enumerated harms and problems.

The objective of addressing these problems, which can collectively be described as antisocial behaviour associated with unauthorised encampments, at first appears to be sufficiently important to justify the limitation of the right to non-discrimination. However, it would have to be demonstrated by evidence that these problems are in fact associated with unauthorised encampments, that is with trespassers with vehicles, as opposed to those without vehicles: Re A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) [2017] EWCA Civ 2164; [2018] 4 WLR 60 at [109]. Analysis of such evidence is beyond the scope of this blog post, but it would be necessary for a state seeking to discharge the burden of justification to base its case on evidence. The association of unauthorised encampments with antisocial behaviour of the kinds described by the government, if based on anything less than indisputable evidence, would simply constitute racial prejudice against GRT individuals. The aim of addressing the problems associated with unauthorised encampments would then not be legitimate. We can proceed with the analysis, not assuming that such evidence exists, but in order to know what the answer to our question would be if it did exist.

Is the measure rationally connected to the objective? The measure intends to dissuade the establishment of unauthorised encampments and to quickly bring to an end any that are established. This would contribute to the achievement of the objective of preventing antisocial behaviour associated with unauthorised encampments. Again, if and only if the state can show based on evidence that unauthorised encampments are associated with the problems it describes, there would be a rational connection.

Could a less intrusive measure have been used? Three alternative approaches to addressing the problem present themselves. First, if the police powers associated with the offence were less harsh, for example if pre-conviction or even pre-charge confiscation were not available, the effect on GRT families would be reduced. Those who would temporarily lose their homes could, in theory, be limited to those genuinely causing significant disruption. This would be less intrusive, although still seriously intrusive. However, it is arguable that the deterrent effect of the offence would then be reduced. Second, the perceived problem of unauthorised encampments is capable of being addressed through the planning process rather than through the criminal law. If local planning authorities allocated sufficient sites for GRT encampments, there would be no need for unauthorised encampments. Third, the requirement of being on land with a vehicle could be removed. This would still criminalise being seriously disruptive on another’s land, but it would not target GRT individuals in any way. This would significantly reduce, if not eliminate, the discriminatory effect of the proposed provisions. However, it is unclear if this would qualify as a suitable substitute measure, since the objective of the provisions is to address the antisocial behaviour associated with unauthorised encampments specifically. Given the complexity of this issue, it is likely that a court would refrain from putting itself into the place of the legislative decision-maker by deciding that an alternative measure would have been equally effective. But this is uncertain.

Has a fair balance been struck between the offence’s effects on GRT individuals’ rights and the importance of the objective? We have reached the crux of the proportionality exercise, where the margin of appreciation is relevant. The greater the margin of appreciation, the less convincing must be the objective justification of the measure. In cases involving general economic or social policy, such as welfare benefits cases, the court applies a manifestly without reasonable foundation standard. This is a wide margin of appreciation, where a measure will only be held to be disproportionate if it is manifestly without reasonable foundation: R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16; [2015] 1 WLR 1449 at [92]–[93]. This is not such a case. On the contrary, this case concerns discrimination on the basis of ethnic origin, which is considered a form of racial discrimination, and which, whether direct or indirect, requires a very narrow margin of appreciation to be accorded to the state: Biao v Denmark (2017) 64 EHRR 1 at [94], [131] and [138]. Very weighty reasons unrelated to ethnic origin must be shown to justify the discriminatory effect of the offence.

How severe are the effects of the measure on GRT individuals’ right to non-discrimination? They are severe indeed: GRT individuals can lose their homes because a police officer suspects that they intend to reside on another’s land without the occupier’s consent and that this would cause significant disruption. GRT individuals can suffer life-changing consequences as a result of a police officer’s suspicion. That suspicion could be informed by anti-GRT prejudice. Even if a decision by a police officer to confiscate property were later shown to be flawed because it was based on prejudice and so not on reasonable suspicion, serious damage would already have been done to the family whose home was confiscated. This harm applies overwhelmingly to GRT individuals because the requirements of the offence apply overwhelmingly to those who lead a nomadic lifestyle that is part of GRT communities’ cultural heritage. In short, the discrimination is very grave.

How important is the objective to the extent that the difference in treatment will achieve it? The harm that persistent antisocial behaviour can cause should not be underestimated. Addressing that is an important objective. However, it is the choice to specifically criminalise GRT individuals that must be justified. Given the level of justification the state must show in a case of discrimination on the basis of ethnic origin because of the inherently unacceptable nature of such discrimination, and the gravity of the effects of the discrimination in this case, the objective of addressing antisocial behaviour associated with unauthorised encampments is not sufficiently important to justify the discrimination at hand. In other words, the discrimination is disproportionate.

That is the end of the Article 14 analysis. Since we have concluded that a court is likely to find that the proposed provisions are incompatible with Article 14, we can move on to Singh LJ’s stage 2 of statutory interpretation (see Kaitey above). We apply section 3 of the Human Rights Act to interpret the provisions to avoid incompatibility, if this is possible.

There is a lot of case-law on what kind of interpretation is considered possible under section 3. In Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust [2016] EWCA Civ 607; [2016] ICR 903, Underhill LJ quoted Sir Andrew Morritt C’s summary of the law from Vodafone 2 v Her Majesty’s Commissioners of Revenue and Customs [2009] EWCA Civ 446; [2010] Ch 77 at [37]–[38]. In short, a section 3 interpretation can depart from the literal meaning of legislative words and can read in additional words. However, a section 3 interpretation must be compatible with the underlying thrust of the legislation. Nor can it require the court to make decisions which it is unequipped to make. 

How could the proposed provisions be interpreted in order to avoid the discrimination that we have found? The problem is that the provisions are directly, although not explicitly, targeted at GRT individuals. The discrimination is not a side-effect of the legislation. It is a fundamental feature. This means that a section 3 interpretation is unlikely to be possible. Interpretive amendment of the provisions would need to create some kind of exception for GRT individuals, which would entirely defeat the purpose of the legislation. It would go against the grain because the grain is discriminatory.

This means that a court’s only remedy would be to make a declaration of incompatibility under section 4 of the Human Rights Act. This would not have the effect of striking down the provisions or otherwise rendering them ineffective. Under the UK constitution as predominantly understood, that is not possible. It would send a message to the government, to Parliament, and to the public about the non-compliance of the legislation with human rights.

As we have seen, the discrimination against ethnic minority individuals inherent in this legislation is remarkable. It may be that it prompts the courts to take an unusual step in the defence of the constitutional value of equality, which is at least arguably ambient in the common law as well as crystallised in Article 14 of the ECHR. However, the law as we understand it would permit the proposed offence and the attached police powers to be effective. The constitutional function of section 4 of the Human Rights Act in such a situation is to encourage the legislature to think carefully about whether it wishes to legislate contrary to human rights. Analyses such as this, if they are sufficiently rigorous, can pre-emptively serve a similar purpose in an informal way. It remains to be seen whether this Parliament is susceptible to such encouragement.

Image from Friends, Families & Travellers.

What I’ve been doing over the holidays…

My new year’s project is to learn to play chess properly. This is proving to be harder than I thought it would be and probably much harder than if I had taken it seriously ten or fifteen years ago. I have made a start on Fundamental Chess Openings by Paul van der Sterren, which is very engaging so far. Recommendations of books, strategies or states of mind are most welcome.

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.

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.

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.