What is environmental law?

There was another cracking edition of Radio 4's 'Unreliable Evidence' last night. Last week, the issue of the legal framework concerning the right to protest was discussed and included the most-marmite of the Law Lords, Lord Hoffmann. His contribution to the programme essentially consisted in spelling out the courts' approach which is that in order to get your point across "you can break the law a little bit". 

This week, the issue was environmental law. The central question is, can law really have an impact on climate change? The programme's conclusion was that law is a necessary but by no means sufficient solution to this global problem. There were three themes that were discussed and they illuminate the open-texture of this emerging area of law.

1. Domestic Context

In the UK, quite a lot of 'environmental law' is simply the application of ordinary tort law in certain circumstances. Obvious examples are nuisance (public & private) and Rylands v Fletcher-type situations. Here the law targets polluting individuals and seeks the relevant damages for those effected. So, traditionally, what we understand as environmental law has its roots in private law.

The public law aspect is, therefore, a recent development and has been produced by the enactment of the Climate Change Act 2008. By all accounts, this is a novel piece of legislation since it sets a legally binding target on the UK. In the words of the Act itself:

(1) It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline.

That's pretty unequivocal stuff and, although it is subject to potential amendment (s.1(2)(1)), politically such amendments are thought to be highly unlikely. 

For us lawyers, the interesting question is - what role for the courts? A typical case might be an application for judicial review of the decision to grant planning permission for a coal-fired power station or a new airport. Typically, the courts are reluctant to get involved in decisions which may have impacts for resource-allocation - this reluctance is constitutional (judges are not accountable like politicians) and institutional (judges often lack the expertise to authoritatively rule on complex or 'polycentric' issues). It is to be hoped that the courts will actually wake-up to the very real issue of climate change and will not attempt to wriggle out of scrutinising the straight-forward statutory duties contained in the Act. At its most revolutionary, the Act could be seen as taking the issue of climate change out of the limp-wristed sphere of politics and affords a special, over-riding status to environmental concerns. 

But, as Stephen Hockman QC rightly pointed out, law must be accompanied by a cultural change to help create a 'virtuous circle'. Law cannot be expected to do all the work. An example of such a circle was the smoking ban which saw both legal and cultural changes have positive effects. Creating a similar circle is something those interested in human rights would like to achieve too - currently human rights law is far more developed than a human rights culture. 

What exactly can be done to push forward cultural change is an issue for another time...

2. International Context

I've never really got international law - as Clive Anderson said, it seems better to say 'international aspirations'. From my point-of-view, international law doesn't actually seem to do a great deal. Finding a violation of some international code is all very well - but what about sanctions and enforcement? (Of course, the exception to this is European Law administered by the ECJ and ECHR, which is generally seen as a paradigm of successful international law).

The Kyoto-protocol introduced a series of measures that were binding if the state ratified it. Famously, the US didn't ratify it - another sorry chapter in America's fixation on wealth rather than well-being. There is another climate conference coming up in Copenhagen - it'll be interesting to see how far Obama is willing to go. 

Anyway, the point is that even with the obligations under Kyoto, there is no international tribunal that can resolve and sanction states that refuse to meet their targets. Stephen Hockman QC said that an International Environmental Court would be a crucial part of giving teeth to this area of law. For my part, it sounds like an eminently sensible idea.

3. Principles

A final area of discussion was what principles should we use to approach the environment in the future? With particular reference to the domestic context, there were two ideas. 

The first was the idea of 'wild law' - this wacky-sounding approach involves giving rights to the sea, trees, fish etc and is apparently part of the Ecuadorian constitution (a bit of legal trivia there). In my head, this seems to lead to a situation where you could have the case of Tree v Dog, with the tree suing the dog for defecating on it over a period of years. Obviously, it's not like that (!) but it does involve balancing the rights of the sea with the rights of a trawler-man to catch lots of fish. I'm a bit unsure about this approach - if environmental concerns are to be given their proper place they should amount to an over-riding principle rather than an ordinary and limitable legal rule. Perhaps from the UK's point of view, the best thing about this approach is that its makes standing wide-open - anyone can bring a case on behalf of a wood or a pond - which is something that seems eminently practical. 

The second approach was to try and extend the 'public trust doctrine'. This is a common law principle that the local authority is under a duty to protect and maintain public and common areas - i.e. playing fields. This idea could be extended to 'the common atmosphere' and so one could take action against a local authority that has not protected a park or other common land from a newly-built incinerator, for instance. 

Ultimately, whatever set of principles are used, the scope for development is wide and the challenge is for the courts to assert themselves in this emerging area of law and already crucial global issue.

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Unreliable Evidence has now gone off-air but there is another great Radio 4 programme called 'The Report' which is on this evening at 8pm. Tonight they are discussing an issue I have been following closely: Freedom of Information and MPs expenses. Also, you can still listen to previous shows on the BNP, the right to protest and other hard-edged topical issues. All very much worth the license-fee (which, weirdly, you don't have to pay for the radio). 

The Would-be Barrister's Wardrobe

It's probably a sign of vanity but the issue of what a would-be barrister should wear frequently diverts my attention when mooching about the Inns and, in my opinion, is something that deserves a decent level of attention. Whether on a mini-pupillage, going to an interview or at a Qualifying Session the appropriate look is key to that essential first-impression which - as all career-guides tell us - actually determine our success (whether this is a law of nature, as such guides would have us believe, is an open question).

(Note - these opinions are essentially focused at gentlemen; ladies - amongst all the other superior qualities bestowed upon them - tend to be adept in this department. Opening jars, map-reading and the production of sperm are the three remaining functions of men in the 21st century). 

The Suit (Jacket)

Undoubtedly the thorniest area of professional-men's dress, having the wrong suit which is ill-fitting is a depressing sight. The sign of a really good suit is that you hardly notice it: it fits and looks as though it was meant to be there. 

The first issue is, therefore, one of fit. A perfect fit can be achieved through a bespoke suit or an almost-perfect fit via a 'made-to-measure' suit - both these suits are more expensive that your average off-the-peg suit due to the number of hours that will be devoted to creating the suit for you. This is not to say that you cannot get an ok-fitting suit off-the-peg - but you will be lucky if this is the case. A good example is TM Lewin - they have some cracking offers on at the moment but the way they cut their jackets simply doesn't work on my upper-body. 

The second issue is one of fabric. Good suits are made entirely of wool of some description - this does not mean they are necessarily going to be sweltering in summer because the weave and weight of the fabric also plays a role. The more interesting aspect of the fabric is the colour and/or pattern. 

Good colours are dark blues (navy) and dark grey (charcoal). I'm iffy about completely black suits - they can often look a bit cheap and naff. QCs are obliged to wear black with morning-trousers - but they will be expensively tailored, whereas a would-be barrister is unlikely to be in the same financial position...

Good patterns are plain and pinstripe. It is crucial that the pinstripe is subtle, thin, close together and not brash. TM Lewin do a line of pinstripes where the lines are too thick and obvious - not so good. 

The third issue is 'features'. Good suit-jackets have working buttons on the cuff, pocket-flaps which do not puff-out from the main body, a working button-hole with a stitch behind the lapel to keep flowers in place, two vents at the back and ample internal pocket-space. More contentious are: ticket-pockets and whether you have a two or three button jacket. Ticket-pockets are a little extra pocket just above one of the 'main' exterior pocket of the jacket. I used to think they were quite natty since they used to be a symbol of tailor-made jackets - but, of late, the humble ticket pocket is seen on every other newly-bought suit. Now it looks common and untidy on most jackets. My advice: avoid them. The lesson: shun novelty in your suit. Conformity is (almost) all. 

- As to two vs three button jackets, it depends on your frame. I would advise against a three-button jacket if you are smaller since they can look a bit like a sack on slighter people, whilst the two button is more complementary. Some say that two-button jackets look a bit dated. Exactly - that's precisely the look we're going for (although, use 'classic' instead). Do not get a jacket with more than three buttons. 

- The Trousers

Again, fit is all important. Three issues: pleats, turn-ups and belt-loops. Single pleats are acceptable, but double-pleats are over the top. I prefer no pleats at all. I'm also a bit anti-turn-ups - they look a bit fussy at the bottom of the leg. The professional alternative to wearing a belt is braces - the sort that button into the trouser. Belts on a suit are a bit Carphone Warehouse.  Also, a button-fly is a good thing since it is less likely to break than its zip-cousin.

- The Waistcoat (Two or three piece...?)

The Waistcoat is traditionally meant to keep office-workers warm during the colder months. Accordingly, it's a bit OTT to wear one during the summer months. 

It was also considered improper during the hyper-prudish Victorian era to reveal one's torso. That isn't a problem now but the easy solution is to simply button your jacket.   

Also, I have often thought that it's a little wannabe for would-be barristers to wear a full three-piece into an interview - much like the irritating person at school who always had all the kit whether he was good at cricket or not. For me, this is the line - would-be barristers, no to waistcoats; actual barristers, yes to waistcoats. 

If you are investing in a suit, I'd get the three-piece if you can and save the waistcoat for first months of pupillage. 

Shirts

Keep shirts simple. Especially at first. White, blue, light pink are acceptable colours. No stripes, no gingham etc. Get a collar that suits your neck - don't make the error of getting a button-down collar (too American). The shirt should have double-cuffs - i.e. it accepts cuff-links. Practicing barristers have 'court tunics' - shirts with detachable collars - it's probably jumping the gun to get loads of those. A decently-woven cotton is desirable - it's just more attractive. 

Cufflinks

With cuff-links the principle is: no tat. This means, no novelty designs. They look irredeemably wally. Say no to the following: Disney characters of any description, flags, taps ('hot' and 'cold'), balls (i.e. golf balls, footballs, rugby balls etc) or any cuff-links that try to do something - i.e. those which contain compasses, small watches or lights. Cuff-links need to be cuff-links rather than cuff-links pretending to be corkscrews.  

Old-style cufflinks are made with a small chain-link between them - they are the preferable sort. Allegedly, they are the main reason nature gave us wives or girlfriend (they are impossible to put on by oneself). The more modern bar-link cufflinks are acceptable too - just don't fiddle with them. 

Ties

No would-be barrister should wear a tie with the following: any cartoon characters (including Wallace & Gromit), a piano-keyboard, a scene of a plucky-golfer getting a hole-in-one etc - the same cuff-link principle applies. I would also be wary of paisley-patterned ties - they look, for the most part, dreadful. 

The three acceptable type of ties are: plain coloured ties (i.e. just red, blue etc - not black); neatly-patterned ties (i.e. small dots); and 'club ties' (diagonal stripes - can give a nice sense of identity). The common theme is simplicity and taste. 

As to fabric, avoid polyester. Primarily, go for silk - and decent silk. There are plenty of flimsy-silk ties out there which look and feel like school-ties. All-wool ties have made a bit of a come-back in recent years and they can look quite nice - not too showy - but they look best in plain colours. 

  

Shoes

 

The safest bet has always been - and will remain - the humble but magnificent Oxford. It is a simple and confident style that indicates you know what you're doing. Avoid shoes with pointy-toes - in 'fashion' and therefore deeply unstylish - and slip-ons (too casual). 

Full-brogues are perhaps a little much although the half-brogue is an elegant alternative. 

Whatever your choice, it is absolutely crucial to look after your shoes - polish them regularly, even it doesn't look like they need it. In the long run, the leather will age beautifully rather than cracking. A good pair of shoes, taken care of, will last a lifetime.  

Lessons

The principles to be drawn are these:

1. Keep it simple. Being well-dressed is a matter of wearing good-quality, uncomplicated garments that enable you to shine. Clothes should not compete for an interviewer's attention. We hardly notice those who are well-dressed in comparison to those who are poorly-dressed. Do not be the one wearing a suit with huge pinstripes, a tie with the West Ham crest on it, cuff-links with 'HOT' and 'SEX' written on them and scuffed shoes from River Island that smell like cheap cocktails. You will look like a moron (even if you aren't).

2. Quality first. One good suit will beat ten horrible suits. Buy slowly, invest in the best you can. 

3. Look after your stuff. Dry-cleaning suits/ties or polishing shoes will extend the life your kit indefinitely. 

4. Recognise the sphere of conformity. At the bar, one is pretty constricted as to what one can wear and be deemed to be well-dressed. It is important to remember that barristers are not bankers, who are typically more ostentatious and, therefore, crass. However, within our small sphere we can choose several things - the colour of our tie, which suit we wear, the particular cuff-links etc. The point is we should rejoice in our (limited) freedom.

5. Finally, be natural. It is important that when you get all your would-be barrister garb on it looks like you're meant to be wearing it. To be at ease in your suit is the very essence of good style. So, discount everything I've said: it's not just what you wear - it's how you wear it too. 

Any thoughts? 

ECHR Protocol 14-bis

Interesting goings-on in Strasbourg, the home of the European Court of Human Rights...

For those not familiar with the operations of the ECHR, here is a potted history of his operations. The European Convention on Human Rights began life in 1950, in the bleak shadow of World War II. The Convention enshrines many rights which you will probably be familiar with - right to life, right to freedom from inhuman and degrading treatment et al.

When the ECHR was created it originally created two bodies - The European Commission on Human Rights and The European Court of Human Rights. These got going in 1954 and it is important to stress that the Court didn't do a great deal as the Council of Europe (the organisation which ultimately oversees the Convention) preferred the more political means of resolving violations via the Commission. Accordingly, ECHR case law between 1954 - 1998 is fairly thin although the cases that were decided tended to be hugely significant for the parties involved. Over the 44 years of the twin system of Court & Commission, the Court did see increasingly more cases...

In 1998, it was decided to make the Court full-time and scrap the Commission in its original form. The was a crucial shift; whereas it used to be the Commission that decided which cases would end up in the Court, now it was the Court's responsibility.

The 'admissibility criteria' is given by Article 35. In a nutshell, there are eight different criteria which the court applies to a case in an initial hearing to decide whether to hear the case in full. Of these criteria, which are mostly procedural, the most important and interesting one is whether the case is "manifestly ill-founded". What does this mean? It is not entirely clear what threshold this imposes and remains a flexible tool for the Court.

Why all this discussion of dry-sounding admissibility criteria and what's the relevance of Protocol 14-bis? Over time, the number of countries that have signed up to the ECHR has increased considerably. There are currently 47 countries that come within the jurisdiction of the ECHR - including Russia. This has meant that the case-load for the Court is absolutely phenomenal and with the finite resources at Strasbourg it means that the system is almost at breaking point.

Protocol 14 was drafted to try and resolve this. The Court would be restructured and the admissibility criteria would be tightened up so that a case might be inadmissible if the applicant has not suffered 'significant disadvantage'. Protocol 14 has not come into force since the Russians have failed to sign it. This is because it actually suits the Russians quite nicely to have an over-loaded and inefficient Court so that their dubious (to put it lightly) actions in Chechnya can continue with the prospect of justice somewhere long into the distance (click this for more).

So, Protocol 14-bis - I imagine 'bis' means something like an 'interim solution' - has been prepared. This essentially allows for the speedy restructuring of the Court in cases that relate to countries that sign it. Crucially, this Protocol doesn't need all 47 countries to sign it, so Russia's inertia can't hold up an entire continent's human rights protection.

The Protocol doesn't mention the 'significant disadvantage' aspect of the admissibility criteria although word on the grapevine is that the 'manifestly ill-founded' criterion is wielded by the Court in such a way that it is, statistically, highly-unlikely that an unimportant case will make its way to a full hearing. In practice, the admissibility stage at the ECHR amounts to a 'mini-merits hearing' and if you're a lawyer who manages to get your client through this stage you have done very well indeed (the legal equivalent of a hole-in-one).

There are clearly some cunning people in Strasbourg and to come up with such a solution shows great creativity. Let's hope it works.

Assisted Suicide on Radio 4

Taking this blog's namesake as inspiration, if there was ever 'a lacuna' in the law it is the current ambiguity relating to the law of assisted suicide.

I write this post partly as a brief comment on the law and partly in praise of the Radio 4 programme 'Unreliable Evidence' which this evening covered the topic. If you're interested in this area, click the link and it will take you to the BBC iplayer. The show's panel included Lord Bingham, Sir Ken MacDonald QC (former DPP), Alastair Pitblado (Official Solicitor) and Philip Havers QC, and was a thoughtful and not overly legalistic discussion about issues surrounding assisted suicide and the law's role in end-of-life situations. I thoroughly recommend giving it a listen.

English law's approach to suicide and euthanasia is informed by a historical and (more importantly) religious attitude to what 'life' really means. This, ultimately Catholic, way of looking at the world sees life as a gift from God and highly sacred. As individuals, we cannot simply reject God's gift to us and so to kill ourselves before we were 'called to Heaven' is deeply sinful. This approach is the basis of the 'Sanctity of Life' principle and this still underscores the current approach of English Law.

Against 'the Sanctity of Life' principle is what you might call the 'Quality of Life' principle. This principle embodies the idea that what is more important is not maintaining life for as long as possible, no matter what harm, distress or humiliation this may cause (as per the Sanctity of Life principle) but instead considering the quality of each individual's life. Such an approach provides a justification for ending the life of someone who is in unimaginable pain or faces no prospect of recovery. (Central to a humane application of the Quality of Life principle is the patient's consent).

As the discussion on 'Unreliable Evidence' showed, English law is at somewhere of a cross-roads. Death can be hastened by administering increasing levels of pain-relief (usually via morphine). This technique has been used for many years and Doctors have been insulated from prosecution by the legally dubious 'doctrine of double effect' (it's 'dubious' because it distinguishes between the Doctor's primary and secondary intentions in a way that can be quite disingenuous. But if it allows a dignified death for a terminally ill patient, the criticism is mostly academic rather than pragmatic).

Also, as the cases of Dianne Pretty and Debby Purdy show, whilst assisted suicide remains illegal, the Director of Public Prosecutions usually does not prosecute in cases where a patient's partner travels with them to another country (normally Switzerland) to be helped to die. The law of assisted suicide is a curious beast being unenforced where 'the public interest' would not be served by prosecution.

So, English law strikes - as it often does - an uneasy balance. On the one-hand assisted suicide remains a crime under the Suicide Act 1961 and the legal system still labours under the shadow of the Sanctity of Life principle. Yet on the other-hand, in the real world, assisting suicide is permitted (albeit at arm's length) whilst other techniques to hasten death are frequently used.

Is there a solution? Ken Macdonald, the former DPP, made the point that this ambiguity enables the legal system to be compassionate towards patients on a case-by-case basis. However, the benefits of ambiguity only go so far: surely, it is absurd that terminally ill patients have to travel to a foreign country to die with dignity? Lord Bingham made the point that so-called 'Living Wills' have made torturous decisions easier as a patient can express their wishes before they lose capacity: but these have their limits, not all patients who are suffering unimaginably torrid conditions may have lost their 'capacity' (in a legal sense).

In my view, the solution is to finally get Lord Joffe's 'Assisted Dying for the Terminally Ill Bill' off its feet again and onto the statute book. We need a humane and structured approach to this delicate but important issue. The Bill will not suddenly give license to Doctors to end the lives of 'inconvenient' patients - what it will do is give protection to the loved ones of patients who have a right (though perhaps not a 'human right' under Art 2 ECHR), to die with dignity.

The next episode of Unreliable Evidence discusses the right to protest which should also be a thought-provoking programme.

Wednesbury

May it please the court...

This blog is primarily interested in three things:

1. The arduous road to Pupillage

2. Goings-on in the law - in a general sense, but with an emphasis on judicial review and human rights law.

3. Other things that catch my fancy - most probably notes on the latest juicy music releases.

I've tried to lay out the blog in a useful way: there are feeds from other great law-related blogs (which try to tap into the burgeoning legal blogosphere); there are feeds from the House of Lords, Court of Appeal (Civil) and Administrative Court; and there are a few of my favoured music blogs towards the bottom (which probably isn't of interest to most!).

A little about myself: I'm 23, I am originally from Sussex but am currently living in London, studying for an LL.M at the University of London. My first degree was in philosophy, politics and economics (PPE) from Durham University and then I did the GDL. I am interested in becoming a barrister - the primary reason is how it fuses together the academic and the practical. I'm an enthusiast of public law generally but specifically judicial review.

I hope that the posts on the this blog are brief, interesting and timely. Essentially, I won't be posting everyday but I will post when I have something to contribute.

Since it's my first post, I thought I'd give everyone (who's interested in j.r.) a present:

JUDICIAL REVIEW HANDBOOK CASE SYNOPSES

The fifth edition of Michael Fordham's amazing Judicial Review Handbook has come out and he has provided - for free - all the relevant case synopses. All 1,339 pages of the stuff. Crikey. If you're interested in JR this is the motherlode.

'Till next time (which will be quite soon - there are hot topics afoot: 1) Merging the Temple libraries, 2) Pupillage Portal, 3) Weaver v London and Quadrant (CA) etc etc).

W