Politics of the environment – FoE annual Local Groups Conference written by Walker Syachalinga 17th September 2010
FoE hosts an annual conference where all members and local groups from across England, Wales and Northern Ireland are allowed to attend. This year’s conference was held at Reading University, and opened with a debate introduced with speeches by Ken Livingstone and Phillip Blond. On the blog below, I will briefly highlight the speeches and will also seek to respond and comment on some of the arguments they made on advancing the causes of the environmental movement.
Ken Livingstone – former Mayor of London
In his speech at the conference, Mr Livingstone argued that more green activists should consider getting involved in politics in order for them to have a greater influence on government decisions on environmental issues. Mr Livingstone gave as an example, an alliance he had made as London Mayor with members of the Green Party. He stated that a lot of decisions on environmental matters were easily made as a result of the alliance with the Greens. From this perspective he suggested that more environmental decisions will be made as a result of the Coalition between Australia’s Labour Party and the country’s Green Party MPs.
In addressing the question of how people could be more environmentally friendly, Mr Livingstone said that this simply would mean being less wasteful and more economical in the use of resources. He bemoaned society’s general attitude towards resources by saying that nothing was being built to last because people were now used to simply buying a replacement instead of fixing the broken items. In this regard it was argued that businesses would soon come to the realisation that simply building new things was not sustainable in the long term and that people simply ought to do more with what they have. Expanding on this point, the former Mayor of London advocated for more alliances between big business and green movements suggesting that that would be beneficial in furthering the interests of environmental groups.
In regard to the role of the state in the green movement, Mr Livingstone emphatically argued that the state was essential in bringing about environmental change. He cited the Low Emission Zone which was instituted during his tenure as an example of how the state can bring about direct change on environmental issues. He continued that the nanny state wasn’t altogether evil and that the state has a huge role to play in bringing about environmental change.
He concluded by advocating for more local action in tackling climate change and endorsed Friends of the Earth’s Get Serious About CO2 Campaign, which he said was a great way of taking localised action in tackling climate change.
Phillip Blond – Founder, ResPublica and author of the “Red Tory”
In his speech to the conference, Phillip Blond argued that the environmental movement had ground to a halt and there was a need for forming new associations which would be critical to the movement. He argued that the scale of environmental degradation was extreme and that the environmental movement had failed to tackle climate change. These failings were linked to the failures of the state and as such both the environmental movement and the state had failed.
He then identified five ways in which both the state and the green movement had failed.
1) The first failing was that the environmental movement had allowed itself to be dominated and taken over by the political left. This was a failure because the Green Movement was non-partisan and should therefore attract both left and right wing advocates. He gave examples of the RSPB and the National Trust as organisations which would normally connect with the Green Movement but do not because of the latter’s allegiance with the left.
2) The second criticism was that the green movement privileges the far and abstract over the near and graspable. By this Mr Blond argued that there were a lot of campaigns on issues which cannot be seen such as CO2 emissions over what can be seen such as trees and flowers. He argued that the green movement had a fetish with carbon emissions which had resulted in desegregation with other environmental movements. He further argued that the environmental movement had to run campaigns on issues that most people could relate to rather than abstract concepts. He then criticised what he perceived as an alliance with the state against normal citizens.
3) The third criticism was cited as a false duality between people and nature. He argued that people and nature live in symbiosis and that the environmental movement should not be against hinting because this is a reflection of the relationship between people and nature. He reasoned that if people were allowed to hunt then they would take better care of animals realising that animals were essential to their way of life. Thus he concluded on this point that there was a need to reconnect people with things that they liked and enjoyed.
4) His fourth criticism and closer to his theme was that centralisation was key to the destruction of the environmental movement. His argument was that centralisation destroys vital but key local codes. Centralisation, it was argued, also removes established sustainable living.
5) Expanding on this point and moving to his next, Mr Blond argued that behaviour change was not possible to be brought about by state action alone. He argued that behaviour change could only be driven on a local level and not state sanctioned. It was from this angle that he advocated for the “Big Society” arguing that bottom-up association was essential as was the need to create local links. He criticised the green movement for creating opposition between nature and culture and argued that the state should play a minimal role in the environmental movement as its main responsibility was to create infrastructure and a conducive environment for local action. In responding to the criticism that in his book, “Red Tory”, he had missed the role of corporations which had now taken over the threat once posed by the state, Mr Blond argued that the answer to big business was not the creation of an even bigger state but the creation of the associative state and mutual ownership through charities, corporations and entrepreneurship.
Blurring the left-right divide: my reflection on the speeches
Politics and green activists
Mr Livingstone’s contention that green activists should consider engaging with politics as a way of bringing about change in environmental issues may be a pragmatic and natural solution to the current stale mate in environmental campaigns. However, this suggestion though practical is only useful depending on what end of the political spectrum you associate with. If Phillip Blond’s assessment that the environmental movement has sold itself to the left is anything to go by, then any engagements with politics that the green movement may make could end up alienating those on the political right. This would have limited effect because only those on the left would benefit at the expense of the rights (environmental or otherwise) of those on the political right. Additionally any such associations would be useful only in instances where a right wing government is not in power.
So what about Mr Blond’s argument that the environmental movement has failed by associating with the left? There could be some force in this argument if you accept his general point that the environmental movement should be non-partisan. But my view is that the problem is not so much that the environmental movement has aligned itself with the left for one could argue that the left wing domination of environmental politics has arisen from a void created by the nonchalant attitude of the political right towards environmental issues. There certainly isn’t much in the way of right wing movements launching their own campaigns on tackling climate change. Perhaps the problem arises when one considers what tactics to use in doing this and the extent of sacrifices to be made by society. It is at this point that political affiliations are betrayed.
So how do we reconcile the arguments made by Mr Livingstone and Mr Blond? My preliminary thoughts on this are that it is difficult if not futile to separate environmental issues from political affiliations and by extension political solutions. This is because once the environmental threat is identified (e.g climate change) views will always differ on how to address the threat. Individuals with an appetite for 4×4s will inevitably be demonised by those with an appetite for cycling; similarly those with major business interests may consider an offshore oilrig a small price to pay for economic progress while others may argue that the potential threats that oil drilling may generally pose are not worth the economic gains. So political affiliations within the environmental movement could be argued to be spontaneous and the greatest advantage of having them in place is that they provoke debate on the tactics to use in tackling climate change. This by extension leads to greater awareness on environmental issues and more ideas on tackling them.
The role of the state
Mr Livingstone made a valid argument in saying that the state has a huge role to play in tackling climate change. Citing the London Congestion charge as an example of a way in which the state can get directly involved in environmental campaigns, it is conceivable to argue that the role of the state as an enforcer of environmental causes is invaluable and should be encouraged.
A different concern raised in Phillip Blond’s speech was a call for decentralisation. My view is that the state plays a vital role in the fight against global warming because of the global nature of the threat. The state has responsibilities imposed on it by the many EU directives and other treaties on climate change some of which would need the state to centralise local action in order to get uniform input from the various local authorities. Even though it is true to say that a lot can be done on the local level, state action should not be relegated to near insignificance. State mechanisms such as those that have resulted in the Climate Change Act 2008, national policy statements and various regulations on planning law help to compel reluctant local authorities and private entities to comply with the UK’s climate change obligations.
However, this role should not be exaggerated to the point of the state intruding on individual freedoms. For state action should not be viewed as a replacement for individual responsibility in tackling climate change. The best efforts in the fight against global warming are as much about shutting down unsustainable biofuel power stations as they are about taking small steps such as turning off the light or cycling to work instead of driving. Recognising that much of global warming is as a result of household waste, there is indeed much force in Phillip Blond’s argument that a big society would produce more local action and therefore more traction in the fight against climate change.
However, the force of the argument on the “big society” and by extension decentralisation, as the sole mechanism for fighting global warming loses momentum when one considers the scepticism which now surrounds the concept. Some of the sceptical views on the big society include the following:
1) Who governs and coordinates local action? There is a danger of possible elitism and disadvantaging the less well off and the least powerful if more able individuals are allowed to dominate local action. Single parents, the least well off and those who may not even be aware of their rights could suffer from a type of localism that simply leaves social causes to be championed on a purely local level by those “best able”. For instance, a struggling single parent may not have the luxury to campaign on the need for more trees and flowers at the local park when their priorities may be accessibility to affordable state housing or a better paying job. This does not mean that they don’t care about the environment; it simply means that their priority for environmental justice issues may differ from a member of the same local community who may have a good job and good housing. Local action would therefore need a mechanism which ensures that all local concerns are addressed and that the tactics adopted to tackle climate change do not adversely affect the poor and the less powerful. There is therefore a need for the state to play a supervisory role over activities taking place in local areas to ensure that all members of the local community have an equal say and that not only the causes of those who may be “loud enough” are addressed.
When I put this point to Phillip Blond, he argued that what would be needed is good governance at the local level and a culture of “what a good leader is”. He also argued that it is normally the case that those with the most pressing needs would naturally speak out the loudest and campaign to address their concerns. However, this too may not be sufficient because as stated above the least well-off are less likely to take part in leadership contests and though they may be aware of their grievances, they may not know the best ways of addressing them.
2) Resourcing and equipping local activity – Secondly, it is difficult to see how local action could be encouraged without the state stepping in to empower and equip some of the least equipped local people. As alluded to above, some people may not be aware of what they are entitled to and they may also not know what channels are available to them to address their concerns even on the local level. In the absence of such equipping some people would not be aware of what their rights are while others may not have the means of enforcing or pursuing these rights. This would result in some people’s interests taking precedence over others e.g the educated and those with resources. The “big society” therefore fails to sufficiently address these concerns as it starts off on the assumption that society is filled with able people.
3) Big society = state sanctioned localism? The other perhaps paradoxical criticism of the “Big Society” is that it could be a type of state sanctioned localism. If the object of it is that local people are empowered and radicalised and if its aim is for a bottom-up system of governance then it is hardly reassuring that the greatest campaign for the big society is coming from the top. In this, there is a danger that the big society if created would produce a society that is contrived and subtly engineered by the state. It is certainly difficult to subscribe to a type of localism that is suggested and championed by the state. To embrace a call for bottom-up governance especially when that call is coming from the top is contradictory. My view is that a big society should be organic and a reaction to activities of the state rather than necessarily pursuing state aims as would be the case with the “big society”.
The other point raised by Mr Blond was that environmental campaigns had concentrated on the far and abstract over the graspable and thus alienated ordinary people. His argument that people would struggle to embrace campaigns about CO2 emissions over those about visible aspects of their communities such as the lack of trees or open spaces may be valid. However, there is a danger in this criticism of oversimplifying the invisible threats caused by climate change. A practical example is necessary to demonstrate my point:
The invisible threats posed by poor air quality in London
I was recently asked as part of my internship to conduct some research on air quality in London. During this exercise I came across a report commissioned by the Mayor of London, Report on estimation of mortality impacts of Particulate air pollution in London, which suggested that as many as 4 267 infants die each year across London due to exposure to pollution caused by fine air particles. Such pollution is caused by combustion sources including transport as well as domestic and industrial combustion.
In fact the dangers to health posed by such emissions are so serious that the EU has legislated over them and imposed pollution limits in each member state. According to Directive 2008/50/EC, the annual limit for Nitrogen Dioxide (NO2) pollution is 40 μg/m3, which was effective from January 2010. The same limit was imposed for Particulate Matter (PM10) but this limit has been in force since January 2005. The limit values for PM2.5 (fine particles) as set out in the above Directive are 25 µg/m3 effective from January 2015.
With the dangers caused by these invisible yet harmful gases readily identified, it may be slightly difficult to fully embrace Mr Blond’s view that the environmental movement has lost touch with the general public by campaigning on the far and the abstract. Even though people may not see harmful substances such as CO2 or NO2, the dangers they pose are grave and environmental groups are right to campaign on them.
The past three months have been an interesting journey for me. I have been able to appreciate a new dimension to both public and environmental law which I had never previously appreciated. One of the strong arguments at FoE has been that it is the poorest people in society who suffer the most from environmental harms and climate change. This is not only true for the UK but especially so for the developing world where people are affected by droughts, floods and acute water and food shortages caused the western world’s addiction to oil and industrial expansion. This realization has in turn awakened a sense of personal responsibility and a new approach to the manner in which I use my resources.
Over the course of the internship, I have also come to embrace some of the methods that Friends of the Earth employ in effecting change in society. The Rights and Justice Centre uses both the law and empowerment schemes to raise awareness on social justice. Some of the legal methods including judicial reviews, drafting legislation and court hearings I have already highlighted on previous blogs. Such legal mechanisms are coupled with empowerment schemes which involve teams from FoE working closely with campaign groups from across the country on any local environmental concerns they may have in their communities. An example of such a scheme is a weekend of training called Power-Up which is provided to local campaign groups and members of the public on what tactics they could use to address local concerns.
It has been both fulfilling and educational to have undertaken the internship at FoE and I hope that I will be able to use some of the knowledge and skills I have acquired to make whatever contribution I can to bring about social justice.
1) A decision on the Veolia case previously highlighted on this blog has not yet been reached by the Court of Appeal. To follow up on this case please simply search for Veolia ES Nottinghamshire Limited v Nottinghamshire County Council 2009/2300 on the appropriate search engines.
2) The Get Serious About CO2 campaign has gathered huge momentum over the last few months as we push for a low-carbon future for all our local communities.
In June, Climate Secretary Chris Huhne asked councils to make an ‘offer’ of how they will do their bit to help meet the challenge of the Climate Change Act. Friends of the Earth met Chris Huhne’s challenge by launching a petition with council leaders across the country saying that local carbon budgets was their ‘offer’ and asking for legislation in this session of Parliament.
The initiative has caused a real stir in local and national Government. Support ranges from some of the biggest councils in the country to small district councils, and with council leaders from all parties signing up: http://www.foe.co.uk/resource/briefings/council_offer_government.pdf
This response has only been possible as a result of the invaluable work of local Friends of the Earth groups – demonstrating to councils the strength of local support for more action on climate change.
The case for local carbon budgets was also made by council leaders and business and trade union allies at packed Friends of the Earth fringe meetings held at Lib Dem, Labour and Conservative party conferences in September and October – where Chris Huhne, shadow Secretary of State John Denham and Climate Change Minister Greg Barker were left in no illusion as to the strength and breadth of support for local carbon budgets legislation.
“Think globally, act locally” written by Walker Syachalinga 17th September 2010
In early August, I was asked to attend a planning inquiry in Bristol. The planning inquiry was held after an application was made to Bristol City Council for a “Green Energy Plant” which would produce up to 50MW of electricity out of palm oils and urea sourced mostly from South East Asia. Bristol City Council rejected the application on the grounds of concerns about the sustainability of the source of the palm oil. The City Council argued that “the wider sustainability concerns of the proposed development, particularly in relation to the source of the fuel and impact on the natural environment, are considered to be contrary to the aims of the adopted Bristol Local Plan Policy…” As a result W4B Bristol Ltd, the company proposing to build the power plant appealed to the Planning Inspectorate to have this decision of the City Council overturned. As part of the Public Inquiry which was held to hear the Appeal, both W4B and the Council were required to produce witness statements supporting their arguments. Supporting the Council in opposing the proposed plant, Friends of the Earth and an organisation called Biofuelwatch produced evidence as Rule 6 parties. As part of the hearing, the Inspector had to choose what oral evidence to hear and he chose not to hear oral evidence on fuel sustainability preferring instead to have it submitted to him as written evidence. The arguments below were made in order to persuade the Inspector to hear evidence and cross examination on the sustainability of the fuel source.
Arguments against evidence on sustainability
In their Appeal, W4B argued that national policy, specifically, the Companion Guide to Planning Policy Statement 22 (PPS22) and the draft National Policy Statement indicated that the production and/or sustainability of the fuel source should not be considered when addressing planning applications. W4B added that issues of sustainability of the fuel source were being comprehensively addressed at the national and international level and therefore did not need to arise in the local context.
Arguments for hearing evidence on sustainability
Biofuelwatch (represented by barristers instructed by the Rights & Justice Centre, acting pro bono) argued that such evidence should be considered by the Inspector. The arguments advanced by Friends of the Earth were as follows:
1) There was no governmental policy which precluded a decision maker from hearing evidence on the sustainability of the fuel source. In relation to the draft National Policy Statement which suggests that evidence on sustainability should not be heard, counsel for Biofuelwatch argued that the draft NPS referred to was currently being redrafted by the Coalition Government and would be reissued for further consultation in the Autumn. They added that in any case, the aspect of the draft NPS relied on by W4Bhas been criticised by the Environment Agency, the Sustainable Development Commission, the English National Park Authorities Association, National England, Royal Institution of Chartered Surveyors and WWF. Additionally the House of Commons Energy and Climate Change Committee in response to the draft NPS has recommended a full assessment of sustainability of fuel source before approving the building of a biomass power station.
2) That excluding evidence on fuel sustainability may not be consistent with the UK’s international obligations under the Aarhus Convention.
3) In addressing the argument based on the case of Bushell v Secretary of State for the Enviornment (1981) that Biofuelwatch were seeking to go behind settled government policy, it was argued that there was no established rule which dictated that government policy was a “no-go area” at a planning inquiry. Additionally, in a recent High Court decision R(on the Application of London Borough of Hillingdon & others) v Secretary of State for Transport (2010) LJ Carnworth held that Bushell cannot be read “as laying down any general rule that government policy is automatically outside the scope of debate at a local planning inquiry.”
4) That Inspectors have previously considered evidence on sustainability when deciding on planning applications. A case supporting this argument was the Inquiry into the Pressurised Water Reactors (PWRs) at Sizewell and Hinkley Point where the Inspector, Michaeal Barnes Qc found that “if the construction of a PWR at Hinkley Point might exacerbate unacceptable conditions endured by human beings in other countries that possibility cannot…be dismissed in the decision whether to grant consent.”
The Inspector’s decision
The Inspector gave an oral ruling that he would not hear oral evidence on fuel sustainability. This decision was very regrettable given the far reaching consequences of ignoring sustainability arguments. The decision is furthermore unsatisfactory in as far it denied the Council and Biofuelwatch the opportunity to produce their expert witnesses who would argue on the wide world impacts of ignoring arguments on fuel sustainability.
Considering the fact that the Inspector’s role is to only recommend to the Secretary of State for Communities and Local Government, Eric Pickles, whether or not to allow W4B’s appeal, Biofuelwatch have launched a campaign asking him to fully consider all the written evidence on fuel sustainability including the expert evidence from our witnesses.
Implications of the decision not to hear evidence on sustainability
Friends of the Earth Europe recently published a report, Africa: up for grabs, which highlighted impacts of biofuel demand in Europe. The report claims that “up to a third of the deals for land are reported to be for land to grow agrofuel crops…to supply overseas markets…” This has resulted in food shortages in Africa as land which could have been used for food crops for the African market is now being taken up to grow biofuel crops. The report states that in Ethiopia where 46% of the population has been classified as “undernourished” and 5.2 million people affected by drought, around 24 million ha of land has been set apart for growing agro fuel crops such as jatropha and sugar cane with UK and German companies operating some of the farms. Similarly, some local farmers were reported to have lost land in Ghana when a Norwegian company, Biofuel Africa bought it off the local chief to grow jatropha.
The decision not to hear evidence on fuel sustainability is therefore more significant in light of the above report on the impact of importing biological fuels from places such as Africa. Greenpeace have also reported that Indonesia is losing huge forest areas as they clear forests to set up palm oil plantations . This surge in palm oil plantations has been attributed to the high demand of biofuels in Europe and China. For its part, Europe has set up a 10% target of all fuel sold in the region by 2020 to be biofuels. This has in turn created a demand for biofuels leading to unsustainable farming methods in parts of South East Asia and Africa.
With examples of such injustices going on around the world, the case for hearing and considering evidence on sustainability could not be stronger. It is possible that a decision made on a local level in Bristol could have a lasting impact on the local population in other parts of the world. Bristol City Council should definitely be commended for their principled position in relation to the arguments on sustainability. Whatever the economic merits of having a biofuel plant may be, it is true that we cannot escape the reality of the impact that fuels produced at such a plant may have on people in other parts of the world. It is in light of such a realisation that the planning Inspectorate’s decision to not hear oral evidence on fuel sustainability is regrettable.
The effect of defamation laws on the rights of members of the public written by Walker Syachalinga, 3rd August 2010
I recently attended a meeting held by my supervisors at the Rights and Justice Centre where I had to present research on the law on defamation. One case that was drawn to my attention during the meeting was that of Greenpeace India and Tata where Tata instituted defamation proceedings against Greenpeace for the use of the Tata logo in a campaign video game launched by Greenpeace. The Greenpeace case and the meeting itself highlighted the delicate balance that exists between the need for NGOs and the public to campaign on contentious issues and the threat of a defamation claim that they often face.
Below is a brief note on the 2006 House of Lords case of Jameel and others v Wall Street Journal Europe  UKHL 44 which constituted part of the research on defamation that I presented during the meeting.
A note on the House of Lords decision in Jameel
In the case of Jameel, the issue on appeal to the House of Lords was whether a trading company called Abdul Latif Jameel Group could sue and recover damages in defamation without proving special damage (special damages are awarded for injury that may result naturally or not unduly remote from the defamatory statement). The second issue related to the “scope and application” of the Reynolds defence. The claim related to an article published in the Wall Street Journal Europe (WSJE) some 5 months after the September 11th attacks alleging that certain prominent Saudi businessmen including the claimant Mr Jameel were under scrutiny by the Saudi and US governments for possible terrorist links.
The House of Lords ruled that corporations could recover damages without proving actual damage as long as they produced evidence of the defamatory remark. It was also held that the WSJE could rely on the Reynolds defence in publishing the article, which was said to be in the public interest. As such, the article though defamatory of the claimant could be published because of the public interest inherent in its content and the steps taken to verify the validity of the content.
1) Corporations and damages
Lord Bingham stated that a corporation could bring an action and recover damages without proving financial or actual damages as long as there was evidence of the alleged defamatory statement. His Lordship invoked South Hetton Co Ltd v North-Eastern News Association Ltd  where it was stated that “whether on a person, a firm, or a company – the law is that damages are at large. It is not necessary to prove any particular damage…” However, Lord Hoffman and Lady Hale (in the minority on this point) disagreed with the above analysis with Lady Hale arguing that allowing corporations to sue without having to prove special damage may have a disproportionate effect on individuals and result in a chilling effect on freedom of expression. She quoted from a case note written by Tony Weir where he argued that “To prefer the interest in maintaining the corporate image to the right of the citizen to say what he reasonably believes to be true is a grim perversion of values.”
2) Reynolds defence and responsible journalism
In Reynolds v Times Newspapers Ltd  a list of 10 criteria were established which journalists had to fulfil in order for them to satisfy the court that they had carried out responsible journalism and could therefore rely on the defence of qualified privilege in the event of a defamation claim. The test as set out in Reynolds is that “there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify.” A journalist therefore has to take responsible steps to ensure that the information is “accurate and fit for publication.”
Lord Hoffman in Jameel further defined responsible journalism as “the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals…”
Lord Hoffman provided some guidance arguing that in ascertaining whether the material is in the public interest “one should consider the article as a whole and not isolate the defamatory statement”.
He added that the point of Reynolds privilege is the public interest inherent in the material coupled with the level of responsibility applied in producing the material.
3) Criticisms of the decision in Jameel
Some of the criticisms of the decision in Jameel include the idea that the decision may have lowered standards of journalism as journalists are no longer required to strictly adhere to the 10 points established in Reynolds. Some commentators have criticised the decision arguing that the court’s answer to the need for serious journalism was to “loosen the definition of responsible.”
Additionally, commentators like Jonathan Coad have written that defamed individuals are left without any redress once a defamatory remark has been published because the privilege “defeats the whole object of libel proceedings which is both to restore the individual’s reputation and to inform the public where untrue allegations have been communicated to them…”
A recent Report by the Culture, Media and Sport Committee of the House of Commons concluded that trading corporations should be required to prove damage when bringing claims in libel or as the Report puts it a ““corporate defamation” should be introduced which would require a corporation to prove actual damage to its business before an action could be brought.” This view was also supported by Kate Beattie who argued that “given modern accounting it is implausible to say that companies could not present evidence of loss.”
Jameel suggests that individuals should avoid making unverifiable comments or comments which though popular may not necessarily be in the public interest. It is worth pointing out also that the House of Lords in Jameel did not provide a definition for public interest but Lady Hale provided a clue when she argued that “vapid tittle-tattle about footballers wives and girlfriends” could not constitute public interest. Additionally, an individual need not draw up a tick list of steps to take before publishing potentially defamatory remarks. The point to take from Jameel is that provided the remark is in the public interest, that one is careful in gathering the information and also that an attempt to get a response from the subject of the allegation is made then the defamatory remarks can be made. This has however led to criticisms that Jameel has effectively created a “licence to libel.”
However, a lamentable outcome of Jameel is that corporations can sue without proving actual damage. The effect of such a case is that if a local campaigner made a defamatory remark about a large corporation, the corporation would be entitled to sue such an individual irrespective of whether or not any damage or loss would result from the remark. This has the potential of producing a chilling effect on individuals by making them unnecessarily cautious in their attempts to expose bad practice or even argue simple academic points. A case in point is BCA v Simon Singh where the British Chiropractic Association was able to sue the science writer Simon Singh for defamatory remarks he had made in an article for the Guardian. The BCA were not required to prove or even approximate any damage which may have arisen from the remark, all they had to provide was evidence of the defamatory remark. The case is strong evidence for the now belaboured point that the law defamation needs some reform.
The many faces of the law: legal process, empowerment of the people and commercial interests
By Walker Syachalinga 26th July 2010
As stated in the preceding blog, I recently attended a Court of Appeal hearing which Friends of the Earth is involved in. Before reflecting on what I had observed and any potential implications of the case, I will briefly state the background to the hearing and the arguments raised by both sides. The case was heard by Lords Justice Rix, Etherton and Jackson but a decision is yet to be made. I will update this blog once a decision is made.
Veolia ES Nottinghamshire Limited v Nottinghamshire County Council 2009/2300
*(Friends of the Earth Rights and Justice Centre are acting on behalf a local campaigner who is listed as the “interested party” in the case)
In June 2006, a contract containing commercially confidential information had been signed between Nottinghamshire County Council and Veolia ES Nottinghamshire Ltd, a waste management company. A local campaigner made a request in 2009 under the Audit Commission Act 1998 (ACA) to view the contract and the accompanying accounts. The county council agreed to his request and informed Veolia, the other party to the contract, that they would be releasing the contract including its confidential schedules to the local campaigner. This prompted the waste management company to seek a judicial review of the county council’s decision as they were eager to keep the commercially sensitive schedules of the contract confidential.
In a judicial review at the High Court, the first instance judge agreed with the council’s decision and ordered the disclosure of the confidential information further to s.15 of the Audit Commission Act 1998. Veolia objected to the disclosure of the contract and “any related accounts” which they claimed contained confidential information and trade secrets which if released could possibly end up in the hands of their competitors and therefore give them a commercial advantage.
At the Court of Appeal
Veolia appealed the outcome of the judicial review contesting that in interpreting the phrase “accounts to be audited” (s. 15(1) ACA 1998); the first instance judge should not have adopted a “much broader approach” and “a wider view” of the section. Counsel for Veolia argued that by adopting a broad interpretation of the section, the judge had widened the number of cases where confidential information could be disclosed.
Further to this, Veolia also argued that disclosing the confidential information contained in the contract would be contrary to Community law. To support this point, Veolia relied on a case called Varec  All ER (EC) 772 in which the ECJ upheld a company’s right to keep as confidential certain private clauses of a contract submitted during the tendering stage. Additionally, it was argued that confidential information could be treated as a possession within the meaning of Art.1 Protocol 1 of the ECHR. Disclosing the information would therefore destroy the attribute of possession. Lastly, Veolia contended that their participation in the contract constitutes “private life” within the meaning of Art.8 ECHR and that disclosing the contract in its entirety would destroy their entitlement to enjoying this privacy.
The respondents, Nottingham County Council argued that the financial transactions between Veolia and the county council relate to the contract and as such the local campaigner should be entitled to view the statement of accounts as well as the terms of the contract. As regards the Community law points, it was argued that Art.8 (2) permits the disclosure of the confidential information as it was both in accordance with the law and necessary in a democratic society. The right to disclose and inspect such confidential information was said to ensure “proper democratic accountability and transparency in relation to the use of public money.”
Additionally, such disclosure did not constitute a disproportionate interference with the Applicant’s convention rights and Veolia having entered into a contract with a public body ought to have been aware that “various persons acquire statutory rights to inspect certain categories of documents…” In conclusion the council argued that the case of Varec could be distinguished because it related to confidential information supplied during the tender process and subsequent procurement procedures. The present case however, relates to the exercise of statutory rights over a contract which has already been concluded.
The case has important implications for the right of members of the public to ensure accountability and transparency in public accounts. The local campaigner whom Friends of the Earth are representing should be entitled to view relevant documents in the possession of a public body because as a rate payer it is his money that the council is using in the contracts it engages in. It is only by looking at the details of the contract terms, even the confidential ones that an assessment would be made of whether the council’s decision to contract with Veolia was a good bargain or not. Additionally, the fact that the actions of the local authority including the private contracts it signs are subject to public scrutiny ensures proper conduct and transparency.
However, the above points have to be balanced with due regard to the necessity to keep certain terms of a contract confidential. This is essential for confidence in commercial transactions and it encourages private companies to enter into contracts with public bodies without fear that their commercial know-how might be compromised. This in turn, it could be argued, would result in improved public services as providers of high quality public services would not be put off at the prospect of having their trade secrets disclosed. There is also some credibility in the argument that widening public access to commercially confidential information would result in abuse by commercial competitors. As argued in Varec, there is nothing to prevent a commercial competitor from using confidential information acquired by a member of the public via the ACA.
It will be interesting to see how the Court of Appeal will balance the need for the public to access information as a way of keeping public bodies in check and the corresponding need to sustain confidence in commercial transactions. The case has also got important implications for media law as the press routinely use statutory provisions as a way of conducting investigative journalism. One would argue that a restrictive approach to such access would limit investigative journalism and the press’s role as society’s watchdog. Perhaps the greatest achievement of the case so far could be the fact that a request triggered by an ordinary member of the public has gone as far as the Court of Appeal. Nottingham County Council should also be applauded for upholding the local campaigner’s request to view the confidential information.
As stated above, I will update this blog on the outcome of the Court of Appeal’s decision.
Understanding Judicial Review by Walker Syachalinga 12th July 2010
When I was informed that I’d be undertaking an internship with Friends of the Earth, I was excited for a number of reasons. Firstly, I had waited 7 months for this, having applied to Friends of the Earth Rights and Justice Centre in September 2009, I had not heard back from them until April 2010, at which point I’d almost given up on any hope of getting it. Secondly, the internship would involve environmental law and public law. Public law has always been my favorite subject, so it would have been against my instincts to reject the opportunity of taking up the internship. Thirdly, I was drawn to the strong social ethos at Friends of the Earth. Having worked at the Kent Law Clinic and gained an appreciation of the effects of the law on society, I was keen to work in a team founded on social justice albeit in relation to the environment.
by Walker Syachalinga 19th July 2010
One of the roles of the (lawyers) at Friends of the Earth is to empower the campaign teams within the organization with the law. In addition to providing legal advice on running effective campaigns to the various teams, the Rights and Justice Centre also takes on cases on behalf of campaigners and members of the public. Such cases range from requests for information from public bodies under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 to the review of actions carried out by public bodies or private companies carrying out public functions.
As part of my role as an intern, I attended a workshop for campaigners conducted by one of my supervising solicitors who also heads up the Rights and Justice Centre. The workshop held for the different campaign groups within FoE was specifically concerned with judicial review as a mechanism for campaigners to achieve their objectives. I therefore decided to blog and reflect on this workshop because of the central role that judicial review plays in public law.
As a starting point, judicial review (JR) has to be approached with caution. Some of the points to be aware of include the low prospect of a JR succeeding, the fact that the final outcome of the review might not change the eventual decision or action of the public body, the huge amounts of time involved in carrying out a JR and the accompanying huge costs that may result from this. Additionally, individuals have to realize that JR is not concerned with whether or not a decision was good or bad, rather it is concerned with whether the decision was reasonable and within the law. These pointers however do not undermine the real value of judicial review which is vital as a mechanism for ensuring accountability and transparency in the manner that public bodies carry out their functions.
Strands of JR
Thus judicial review is a court case that involves the review of actions and decisions of public bodies. It is triggered by any of the following three instances:
a) a public body acting ultra vires i.e. beyond the limits of its legal powers
b) a public body acting illegally
c) a public body being guilty of procedural impropriety
Judicial review can be brought by an individual or group of individuals with a sufficient interest, a feature which makes it an appropriate mechanism for local community action.
One of the things that campaigners have to keep in mind when bringing judicial reviews is the cost of the review and the possibility of losing. As such campaigners are advised to undertake a protective costs order at the beginning of the JR which is a declaration of the limit in money that the campaigners would pay should they lose the JR. In environmental law cases, this order is strengthened by the provision in the Aarhus Convention which requires that access to justice should not be “prohibitively expensive.” The order therefore ensures that JR cases are responsibly run and money matters are given due consideration.
The objectives of JR
The ultimate aim of a judicial review is to have a public body decision quashed so that the public body can make the decision again. It is however up to the judge to decide whether to take any action or not and this may simply mean the judge advising public bodies on ways that they can carry out their functions lawfully. Secondly, the remedies available are relatively narrow when compared to normal court cases. Thus for the campaigners, JR is a vital tool for acquiring otherwise inaccessible information because public bodies often have to release information during hearings. JR can also be used by campaigners as a threat to remind public bodies to act lawfully as the last option for campaigners is to go court
It was also emphasized that JR was only possible if promptly brought i.e within three months of the decision or action of the local authority. Additionally, judicial review cases may take up to a year or even longer to conclude and as such “…it is not always possible to prevent the environmental harm from going ahead whilst the case proceeds….” in environmental law cases.
The workshop was a helpful reminder of how legal mechanisms can be used to effect change or at least provoke good practice in public bodies. What was interesting about the workshop was that even a somewhat complex mechanism like judicial review can be used by ordinary members of the public and local campaigners when properly advised. This use is however not restricted to private individuals as companies and corporations can bring a claim under JR. The value of JR, in addition to ensuring accountability and transparency, also lies in the fact that it provokes debate and sheds light on other issues which may be kept away from the public.
A case in point is R v Nottinghamshire CC  which Friends of the Earth is currently involved in. The case, triggered by a local campaigner under s 15 of the Audit Commission Act 1998 was first heard as a judicial review before reaching the Court of Appeal in July 2010. On my next blog, I will provide a detailed analysis of this case including the issues considered during the hearing and the role that judicial review played in the whole process.
My supervising solicitor informed me that it would be unpaid but that an expenses allowance would be provided which was incidentally enough to cover half of my transport costs. She also alerted me to the fact that because I would be working in a team of three solicitors, my work there would be quite engaging and that I would be expected to get involved at every level of the work. Thus a mere two weeks after my final exam, I joined a team of solicitors and was ready to learn and contribute in whatever way possible.
Week 1 – providing legal support to NGOs at the Bonn Conference
On the first day of the internship, I took part in co-coordinating negotiations taking place at the Bonn Climate Change conference in Germany. Our job as co-coordinators was to provide legal support to NGOs at the conference that had questions about aspects of the Climate Change process. The team of co-coordinators that I was working on consisted of solicitors and barristers who took turns to provide the support to the NGOs via email from the London offices of Simmons & Simmons. Questions posed by the NGOs would be emailed over to us and our role was to research the answers to these questions and email the answers back to our contact at the conference in Germany. Taking part in the co-ordination opened my mind to the realization that legal work takes many shapes and forms and this was one of them. It was particularly interesting to work as a team given that all the people I was working with were drawn from different organizations including Greenpeace and a number of different firms and sets of Chambers in London. As far as the legal aspects of the work was concerned, I wasn’t entirely familiar with the law and procedures involved in climate change so it was my research skills that came in handy.
Week 2 – the Carbon budget bill
In the second week of my internship, one of the main issues I took part in was the Local Carbon Budget bill being developed at Friends of the Earth as part of the Get Serious About CO2 (campaign). This was a very exciting prospect for me having spent the past three years of university looking at statutes in their completed form. The purpose of the bill is to ensure that coordinated action in local authority areas contributes fully to meeting the UK Climate Change Act requirements. Further to the Climate Change Act 2008, the Secretary of State is required to establish a carbon budget which is an outline of the limit of carbon emissions in England for a specified period of time. Friends of the Earth are however proposing to extend the authority to set these budgets to cover local authority areas. It is hoped that this would encourage local authorities to be more proactive in coordinating the reduction of carbon emissions.
My role in the development of the bill was to conduct research on the effects that such a bill would have on the devolved authorities in Scotland, Wales and Northern Ireland. I also had to establish whether the Westminster Parliament had the authority to legislate on the environmental and local government affairs of the devolved nations. Having conducted the research, I drew up a report which I then presented to my supervisors.
Secondly, I took part in a meeting where we discussed how we would make the bill more practical and easier to apply for the local councils. During this process, we discussed drafting explanatory notes which would assist local authorities in interpreting and implementing the bill without seeking further clarification from the Secretary of State. I found this very interesting because until now, I had not thought about the work involved in drafting legislation.
The bill is still being developed and I will provide frequent updates of its progress on this blog. Throughout the process of researching for the bill, I thought back to the times at Kent when we were required to conduct assessments in public law which at times appeared to be so mundane. It has been reassuring therefore that the very skills that I developed during those assessments are the ones which are being applied on this internship. I hope that in subsequent weeks on this blog, I will provide an accurate reflection of the work carried out within the Friends of the Earth Rights and Justice Centre, the contribution that such work makes to society, how the skills I acquired on my degree are being used and also the different ways that I am being challenged.
1) The elusive internship by Walker Syachalinga, 7th July 2010
There are a lot of discussions at the moment about graduate prospects and whether there is the proverbial light at the end of the degree tunnel. The Guardian recently (reported) that there are now 70 applications to every available vacancy and “that nearly 78% of employers are insisting on a 2.1 degree, rendering a 2.2 marginal…” The article then went on to suggest a wide range of work experiences including that graduates should “consider flipping burgers or shelf stacking to build skills”. But the (article) strongly recommended taking up internships, boldly suggesting that “the only way was unpaid work. ” The value of taking up an internship has never been questioned; the Chartered Institute of Personnel Development (CIPD) recently suggested that “some employers are even using internships as a way of assessing potential new recruits.”
However, the unquestionable value of an internship is compromised by the view that it is only accessible to a select few, namely, that class of privileged middle and upper class students. This is because most internships are unpaid in spite of the fact that most run for a period of 3 to 12 months. This fact, it is alleged, hampers social mobility and condemns students with limited means to very limited access to certain professions as they are put off from undertaking an internship. Organizations such as the National Union of Students and the Trade Union Congress have argued for paid internships alleging that “in the absence of any remuneration, there is potential for an intern to be exploited.” On the other hand, the government through reports such as the Milburn Report, have suggested that the long term benefits of undertaking an internship in terms of career prospects and potential high earnings justify the current system of unpaid internships .
The above arguments are further compounded by the report in December 2009 in the Telegraph, that some (internships) are on offer for up to £8 000 through recruitment agencies. Additionally, the NewStatesman recently reported that an auction was held at Oxford University where individuals had to pay £300 to take part in the bids and among the “items on offer” where a mini-pupilage at One Essex Court with Neil Kitchener QC and one public relations & marketing internship at the London office of fashion house, Escada. Thus (Laura Pennie) writing for the NewStatesman rather apocalyptically concluded that “Any graduate or school-leaver without the means to support themselves in London while working for free can currently forget about a career in journalism, politics, the arts, finance, the legal profession or any of a number of other sectors whose business models are now based around a lower tier of unpaid labour.” I wouldn’t put it so bleakly.
Where does all this leave me?
Reading the above articles made me reflect on the reality of my own internship and the cost at which it had come. Like most internships available in London, mine is unpaid, a fact which has left me to fund my transport and other costs by taking up part-time employment on weekends. Additionally, I was fortunate to have been offered the option of either turning up five days a week or three days a week in order to save on costs as well as an expenses allowance which accounts for half of my travel costs. I opted for the three day a week option mostly due to the cost of transport from my home in Kent to the Friends of the Earth offices in London. FoE are currently looking at ways in which they could provide paid placements in order to minimise the burdens that unpaid internships may have on students. But I’m not alone in this, a university friend of mine, had to consider transport as well as accommodation costs in order to undertake his mini-pupilage in London. What is my view on the current state of internships, should they be funded as the CIPD suggests and are they as invaluable as most people suggest? I cannot provide an immediate answer to these questions but I will draw my conclusions in subsequent blogs as I reflect on my experiences during my three month internship at Friends of the Earth.