The debate about the justification of constitutional review: six theses

This blog post is by Dr. Tamás Gyorfi.

Introduction

The justifiability of constitutional judicial review is one of the perplexing questions of constitutional theory. Every generation of constitutional lawyers has struggled with the issue without being able to provide knock-down arguments that would have settled the controversy. In the UK, the adversaries of the two positions are (for better or worse) called political and legal constitutionalists, respectively. Since almost all public law textbooks cover this controversy, the debate is familiar to every undergraduate law student in the country. All this suggests that there is hardly a more hopeless enterprise in constitutional theory than to make a new contribution to this debate. Nonetheless, in my new book, titled Against the New Constitutionalism, I endeavoured to tackle exactly this issue.

My book develops a liberal defence of political constitutionalism and argues that in consolidated democracies, the strong form of judicial review cannot be justified. It is for the readers to judge whether I managed to provide a sufficiently unique combination of arguments and carve out a distinctive place in the political constitutionalist camp. The aim of this post is not to summarise my arguments or convince the reader that political constitutionalism has the upper hand in the controversy. Rather, I would like to put forward a few theses about the nature, the state and the relevance of the debate.

The debate about constitutional review has both an academic and a more popular version and there is a huge discrepancy between the fortunes of the two rival positions at these two levels. The discourse seems to lose its momentum at both levels, albeit for very different reasons. In the academic discourse, many people feel that everything that can be said on the issue has been already said. The debate seems to have reached an impasse, where people with different intuitions reach different conclusions. By contrast, in the more popular version of the controversy, legal constitutionalism has almost conclusively defeated its opponent. As a result of this, virtually every democracy has introduced some type of constitutional review.  As Alec Stone Sweet correctly registers, “As an overarching political ideology, or theory of the state, the new constitutionalism faces no serious rival today” (Stone Sweet 2000, 37). I will address the academic and the popular versions of the discourse in turn.

Thesis One: we can still make progress in the debate

Since the topic has generated a voluminous literature, it is not implausible to argue that the prospects of progress in the debate are rather dim. So can we expect any new insights from further debates?

My answer to this question is an emphatic yes. Let me explain the reasons for my optimism. The justification of constitutional review certainly requires the mobilisation of some fundamental political principles and it is indeed true that a lot has been said about those principles. However, I believe that the proponents of the so-called “institutional turn” are straightforwardly correct in claiming that the argument about constitutional review cannot be won by appealing purely to political principles. Political principles alone are incapable of determining whether we should confer the authority to specify abstract human rights provisions on courts or legislatures (or we should share that authority between the two institutions). The debate about constitutional review is both about political principles and institutional capacities. To assess the capacities of institutions, we need sophisticated theories about the epistemic performance and motivations of our decision-makers.

Those who are sceptical about the possibility of progress in the debate must hold either that (1) such institutional considerations are irrelevant or that (2) new research cannot result in significant progress in the study of institutional capacities. However, it seems to me that the first claim is simply wrong and the second one is unsubstantiated. Contrary to the second thesis, I believe that Adrian Vermeule is right to claim that our understanding of institutions’ capacities is still rather rudimentary (Vermeule 2003, 3).

Thesis Two: doctrinal legal scholarship is (almost) irrelevant for the debate

Above I made the rather cautious and safe claim that when we tackle the justifiability of judicial review, institutional analysis matters. Now I want to make a much stronger and much more controversial claim.

In a slightly exaggerated and provocative form the claim says that doctrinal legal scholarship is irrelevant for the purposes of the debate.

The role of institutional analysis is to say something about which institutions will produce the best outcomes under certain circumstances. Human rights lawyers engage in a rich discourse about what constitutes the best outcome in rights-related issues. Should assisted suicide ever be made legal? Under what conditions is affirmative action justified? Should an employer accommodate its employees if they want to wear religious symbols?

I have a huge respect for those scholars who engage with these types of questions. I myself have strongly held views on many of these issues and consider myself a participant in this discourse. However, the problem is that in most complex constitutional issues, like the ones mentioned above, competent constitutional lawyers will disagree. In a pluralistic society, in such cases, we are unable to provide conclusive arguments as to what constitutes the correct outcome. Institutional analysis should, therefore, be limited to general epistemic, motivational and procedural considerations. Is the diversity of a decision-making body more important than the ability of individual decision-makers? To what extent is the decision-making of our institutions distorted by self-interest? Which procedure is the most conducive to producing good outcomes? For instance, what is the right balance between transparency and secrecy in a decision-making environment? These questions are very different from the ones that I mentioned above and are not doctrinal in their nature. Constitutional lawyers whose primary expertise is related to doctrinal issues are, therefore, not the best qualified to answer such general institutional questions.

Thesis Three: the debate must be contextual

Although championing contextual analysis generally seems a safe methodological bet, it is far from self-evident that we need such an approach here. Many of the available argumentative strategies claim that judicial review is justifiable/unjustifiable across the board, regardless of the specific features of a political system. If someone believes, for instance, that the lack of democratic legitimacy is, in itself, a decisive argument against judicial review, then she must claim that judicial review is unjustifiable everywhere. If, by contrast, someone believes that the interpretation of human rights is primarily a technical legal exercise, she must hold that judicial review is always justified, provided that human rights themselves are justified.

However, it might be the case that: (1) although the set of relevant arguments is the same everywhere, their strength will differ from jurisdiction to jurisdiction; and (2) the relevant arguments pull in different directions. In that case, one might conclude that constitutional review is justified in certain countries but is unjustified in other ones. I argue in my book that both of the aforementioned conditions are met. Both of the adversaries in the debate have strong arguments, and the strength of at least some of these arguments is not constant but depends on the particular features of the political system in question. One could argue, for instance, that the political process has malfunctions everywhere in the world, but these malfunctions are clearly not equally severe in each political system. If there are strong arguments on both sides, it does matter how severe these malfunctions are and this factor might be decisive in the overall balance of arguments.

Thesis Four: tertium datur

The debate about judicial review usually pitches the legislative body or the elected branches in general against courts or a specialised constitutional court. In that binary framework, an argument against one of the institutions is automatically treated as an argument for the other. This binary framework fits well with many argumentative strategies that are used routinely in the controversy. If, for instance, the lack of political accountability is a conclusive argument, the issue is settled: in that case, constitutional review cannot be justified. Similarly, if the protection of human rights is understood as a technical legal issue, the superiority of courts will be beyond doubt and the justifiability of constitutional review is difficult to challenge.

When we form an overall judgement about the justifiability of judicial review, we have to consider both process-related and outcome-related reasons. Some of the latter can be classified as epistemic, others as motivational arguments. In my book, I argue that we do not have strong epistemic arguments to justify judicial review. The strongest argument of legal constitutionalism is motivational rather than epistemic. Even the most ardent opponents of judicial review would have to admit that the political process has many blind spots. Let us suppose that this motivational argument outweighs all the objections made by political constitutionalists. In the binary framework, this would imply that judicial review should be considered justified. However, once we give up the binary framework, it becomes clear that the arguments against the normal political process do not automatically support judicial review.

The argument that relies on the malfunctions of the political process suggests that the main asset of the judiciary in the interpretation of human rights is its independence. But independence is not unique to the judiciary. I also argue in my book that legislatures are superior institutions to courts in epistemic terms so far as the specification of human rights are concerned. What gives them an edge in this comparison, is their greater cognitive diversity. I do not expect the readers of this post to accept my empirical claim about legislative bodies. However, they might accept that (1) cognitive diversity is a crucially important epistemic asset; (2) courts are very far from the ideal of an epistemically diverse institution; (3) independence is not unique to the judiciary. If these conditions are met, it is at least conceivable that a third institution combines independence and cognitive diversity better than a constitutional court.

Thesis Five: the debate can shape the future of weak judicial review

The above four theses have focused on the academic debate. However, since in most jurisdictions the power of specifying the meaning of abstract human rights has already been conferred on courts, one could ask whether the debate matters any more. Let me offer two reasons to support my affirmative answer.

Although most contemporary democratic states now subscribe to the strong form of judicial review, the constitutional review of many consolidated democracies still deviates from the paradigmatic examples of that institution, like the US Supreme Court or the German Constitutional Court. The New Commonwealth model of judicial review, well-known to comparative constitutional lawyers, represents one important deviation from the reigning paradigm. I argue in my book that the deferential judicial review of the Nordic countries should also be classified as a distinctive subcategory of weak judicial review. What gives the debate practical relevance is that these deviant forms of constitutional review are under immense institutional and intellectual pressure. Although in the New Commonwealth model legislative bodies have the final say in matters of constitutional law, they very often follow automatically the courts’ interpretation of constitutional rights. We cannot rule out the possibility that this practice solidifies into a constitutional convention and with time the ‘final say’ becomes a mere formality, like royal assent being applied to British legislation.

In the Nordic countries, courts tended to exercise their power with extreme self-restraint. Judges disapplied a legal provision only if it was manifestly in conflict with the constitution. This requirement of manifest conflict has been recently removed from the Swedish constitution and is also under attack in Finland. More importantly, the supervisory role of the Strasbourg court is inconsistent with the internal logic of both the New Commonwealth model and the deferential judicial review of the Nordic countries. The upshot is that political constitutionalism still has some strongholds in mature democracies but the judicial review of these countries is at a crossroads. Political constitutionalism can and must make an intellectual case for preserving the distinctive constitutional traditions of these mature, first-wave democracies.

Thesis Six: the debate is relevant for the secondary allocation of decision-making authority

It is an undisputed fact that in most countries the authority to specify the meaning of human rights provisions has been conferred on courts. However, we should keep in mind that the establishment of judicial review does not determine once and for all how courts can and will exercise their powers. Let me call the initial decision whether to establish judicial review the primary allocation of decision-making authority, and the fine-tuning of how this power should be exercised the secondary allocation of decision-making authority.

For instance, the Human Rights Act 1998 has fundamentally changed the British constitutional landscape by moving away from the traditional understanding of parliamentary supremacy. However, the Act requires fine-tuning. The question about the proper grounds and extent of judicial deference is one of the central issues of British public law today. The Act defines what the Parliament may do when a court issues a declaration of incompatibility. However, it leaves open what the legislature should do if that happens. Although the secondary allocation of decision-making authority is less dramatic than the primary one, it raises, nevertheless, many important questions. Therefore, we need a theory that guides the secondary allocation of decision-making authority and this theory will naturally draw on the arguments about the justifiability of judicial review.

Conclusion

My book is a plea for both institutional conservativism, and institutional experimentalism. On the one hand, the fifth thesis of the foregoing analysis suggests we should regret if the distinctive constitutional traditions of mature, first wave democracies are lost. I am not against significant reforms or giving human rights a more prominent place in those legal systems. However, moulding them into the uniform template that legal constitutionalism offers is something that we should regret.

On the other hand, my book is also a plea for institutional innovation and radicalism. Even if legal constitutionalists are right to claim that the normal political process has inherent blind spots and malfunctions, if cognitive diversity is as important as I think it is, I find it hard to believe that we strike the best balance between the relevant motivational and epistemic considerations by conferring the authority to specify abstract human rights on a fairly homogeneous judiciary.

Comment

“I have read Dr Gyorfi’s excellent book which as its name suggests is a full on attack on the supremacy of judges advocated by the New Constitutionalism. The attack is primarily theoretical but it is supported by empirical evidence. It is a brilliant vindication of why mature democratic societies should leave the last word on difficult, contested issues to legislatures rather than courts. I wholeheartedly recommend this book to anyone with an interest in how sophisticated democracies should structure their governance.”

Professor Paul Beaumont, School of Law, University of Aberdeen

Further “Critical Acclaim” is available online, as follows:

“Gyorfi’s book has the rare virtue of combining a refreshing theoretical intervention to the old – but ongoing – debate about the legitimacy of judicial review of legislation with a critical examination of different institutional attempts to balance democracy and human rights. It is a must-read for both constitutional theorists and comparative constitutional lawyers.”

Joel Colon-Rios, Victoria University of Wellington, New Zealand

gyorfi

 

Advertisements

The Health and Safety Implications of Offshore Wind Energy Development: More to it than Meets the Eye

This blog post is by Eddy Wifa a third year doctoral researcher at the University of Aberdeen. His research focusses on the health and safety implications of offshore wind energy development and the significant role both private and public regulation could play in ensuring an appropriate balance between offshore wind energy maximisation and the safety of the workers and other users of the marine space.

This post is about a fundamental problem for offshore wind energy. A critical evaluation of offshore wind energy development through its life cycle reveals that there are significant health and safety risks to both workers and other users of the marine space, as shall be explained below. Therefore the offshore wind energy industry can be categorised as a high-risk industry with the potential for a major hazard. It is my intention that this blog post raises the much-needed awareness of some of the health and safety risks and challenges of the offshore wind energy industry so that necessary regulatory interventions may be considered. This is because although wind energy is considered green and good for the environment, it does not necessarily mean it will be good for the health and safety of workers. Therefore we must resist the temptation of denying that these risks exist, else the situation might just go from bad to worse.

Some examples of hazards  encountered  during the development of an offshore wind farm include:

  • falls from heights,
  • mechanical hazards such as contact with moving parts,
  • blade failures,
  • ice throws,
  • ship collision or men overboard which may occur during marine operations and transportation,
  • electrical hazards, and
  • fire or explosion of turbine or vessel.

Others might include issues relating to manual handling, ergonomics, risk from working with dangerous substances, working in confined spaces, and exposure to noise and vibrations.

While these risks are not exactly new, the fact that they occur in a remote and unpredictable offshore environment makes it more challenging, especially during emergency evacuations.

The UK offshore wind energy industry is developing at an enviable pace with more than 1465 installed turbines, but, unfortunately, we have been experiencing significant increase in accidents in the UK and globally. For instance, the Caithness Wind farm Information Forum (CWIF) reports that there were 1951 wind energy accidents with 165 fatalities since 1970. It is important to add that most of these accidents occurred within the last 8 years when the wind energy industry began to expand. To demonstrate the increase in wind energy accidents, the CWIF states that “as more turbines are built, more accidents occur. Numbers of recorded accidents reflect this, with an average of 21 accidents per year from 1996-2000 inclusive; 57 accidents per year from 2001-2005 inclusive; 118 accidents per year from 2006-10 inclusive, and 164 accidents per year from 2011-15 inclusive”. Despite this increase, CWIF states that these figures represents only ten percent of accidents which implies that they are far from comprehensive. For example, CWIF only has a record of 142 UK accidents, meanwhile the RenewableUK in 2011 reported that  “around 1,500 accidents and other incidents had taken place on wind farms between 2007 and 2011” and this included “four deaths and a further 300 injuries to workers”. This in itself demonstrates a fundamental problem with the availaibility and incomprehensibility of safety data that should assist the industry in drawing lessons. Although efforts have been made to resolve this through the industry’s G+ Annual Health and Safety incident data report, this only started in 2013 and is restricted to member data.

During the early years of my research, my biggest challenge was convincing my audience that offshore wind energy operations are hazardous and could be considered a high-risk industry. I realised that there was an erroneous assumption that since wind is a renewable energy source and as such it is seen as environmental friendly and safe, such a level of safety would apply to its development. I would strongly submit that although wind as a renewable energy source is considered a more environmentally sustainable option when compared to fossil fuels, such considerations have little or no connection with the health and safety implications of designing, constructing, operating, maintaining and even decommissioning of such high-risk installations, particularly in an unpredictable, hazardous offshore environment. It is important to emphasise this because this is the foundational cause of the health and safety challenges of the increase in offshore wind-related accidents. The benignity of the industry does mask the problems and people should be made aware of this. The fundamental reason for this benignty is the absence of volatile oil and gas in offshore wind energy. While this may appear as a valid argument, people quite easily forget that there are several offshore energy related accidents that have nothing to do with oil and gas explosions and spill. An example would be the Alexander Kielland accident where 123 men died after an accommodation platform collapsed owing to structural failures. Furthermore, a detailed functional comparative analysis between offshore wind energy and offshore oil and gas clearly reveals they are both nothing short of two offshore energy industries that share  similarities and synergies.

One reason for the increase in offshore wind related accidents is analysed by Peter Finn, the EHS Manager for GE Energy. He suggests that as larger turbines are installed further offshore, more challenges will arise especially regarding onsite accommodation, the need for better emergency response and the logistics of spare parts delivery. He adds that “this will result in more turbines, more technicians, more transfers and thus an increased risk of incidents”. Another salient cause of these accidents is that the industry currently suffers from a significant gap in the availability of skilled workers. It therefore implies that with inexperienced workers being involved in the processes of constructing and operating offshore wind farms, the likelihood of accidents will increase. This issue is identified in the area of vessel transfer and transportation in general. Steven Clinch, the Chief Inspector of Marine Accident, in a detailed report into the twin accident involving offshore wind transportation vessels stated that owing to the skills gap, the crews that man offshore wind farm transportation vessels are recruited from the fishing or leisure industry, without recognising that skills required for both industries differ. He adds (PDF):

the skills gap is likely to grow as the renewable energy industry moves even further offshore in the future. As such, there is a clear potential for rise in the number and severity of accidents unless action is taken to ensure that vessels’ crews have the necessary competencies needed to operate their crafts safely.

Some industry stakeholders have expressed concerns over the increase in offshore wind energy related accidents. The Environmental Health and Safety Manager for Statoil opines that ‘the number of serious incidents and accidents in the offshore wind industry are too high when compared with offshore oil and gas’. For this reason, she adds that there are significant lessons to be drawn from the oil and gas industry. Despite the prevailing challenges in the offshore wind energy industry, the situation appears to be worsened by the safety culture and attitude of some companies regarding safety. In the words of Andrew Linington, a spokesman for Nautilus:

Operators who apply high safety standards are losing out to companies that cut corners… The situation is frighteningly similar to the boom in North Sea oil in the 1970s. Back then people were warning of poorly enforced standards, but it wasn’t until 167 men died in the Piper Alpha disaster that anything was done to clean up the industry.

I have continuously advocated for the development of offshore wind energy, and this blog post should not be taken to mean otherwise. I understand and appreciate the significant benefits of this energy resource both economically, socially and regarding energy security. I also understand its role is combating climate change and meeting set renewable energy targets. Be that as it may, it is important for stakeholders and the general public to be aware of its health and safety implications as this will guide policy makers and regulators in making an informed decision in solving the challenge of increases in accidents that have been worsened by skills gaps and sparse safety data and information. To resolve these challenges, we must start by acknowledging them.  Unfortunately, some industry stakeholders think the problems are exaggerated. Despite this, I am confident that regulation can play a significant role in this regard and although there is existing regulation regarding offshore wind safety, the ultimate question is whether we have the right type of regulation. That is a question that deserves further study and as such it forms the overall focus of my PhD thesis.

 

Reflections on “Land Reform: Legal, Historical and Policy Perspectives”

This blog post is by Malcolm Combe (Lecturer) and Kieran Buxton (Year 4 LLB (Hons) Candidate, University of Aberdeen). A version first appeared in Issue 177 of the Scottish Planning & Environmental Law journal (October 2016) at page 104.

On 26 August 2016, the University of Aberdeen hosted a conference about one of the hottest potatoes in Scottish politics at the moment: land law reform. The conference, and a related lecture on land reform and the environment the previous evening, brought together stakeholders with a variety of perspectives, experiences and interests, including the Scottish Government and representative groups Scottish Land & Estates, NFU Scotland and Community Land Scotland.

As has been explored on this blog previously, there has been an extensive commitment by the Scottish Government to land reform. The conference allowed speakers and delegates the opportunity to reflect on and critique the developments made under recent legislative reform (most notably in the Land Reform (Scotland) Act 2016, but also via other legislation like the Community Empowerment (Scotland) Act 2015). In addition, delegates heard of continuing implementation of the most recent measures and perspectives on the route the continuing land reform process should take. A comparative panel also brought together analysis of Australian, English, North American and Norwegian perspectives on land reform to provide alternative viewpoints on how different jurisdictions deal with the control, distribution and development of land.

A key objective for the day was to catalyse further collaboration, discussion and research to refine the ongoing development of land reform in Scotland. Historical perspectives, most notably delivered by Professor Ewan Cameron of the University of Edinburgh and the advocate Robert Sutherland, considered why it was that the so-called Scottish land question still resonates today, and allowed delegates the opportunity to reflect on why how far legislative reform has taken Scotland since the Leases Act 1449, a statute that seems a strong contender for the crown of the first land reform statute in Scots law. A blogged version of Sutherland’s presentation is available here.

Fast forwarding to the present day, Fiona Taylor of the Scottish Government set out the government’s position on the implementation of Parts 1-5 of the Land Reform (Scotland) Act 2016 over, approximately, the next six to twelve months. Moving through the 2016 Act sequentially, Part 1, when enacted, will introduce the Land Rights and Responsibilities Statement (“LRRS”). According to section 1(2) of the 2016 Act, the LRRS will be a statement of principles for land rights and responsibilities in Scotland, which there will be a consultation process for before being laid before Parliament. This important and symbolic statement is viewed by the Scottish Government as something of a “scene-setter” for the future of land reform. The further Parts of the Act build on the principle of future land reform that is at the centre of the LRRS’s purpose. Under Part 2, the Scottish Land Commission is established, as a non-departmental body, with the intention of being operational by April 2017. There was some debate about where this Commission might be based, with one suggestion being that it should be located in what might be classed as a more peripheral location in Scotland, but Taylor noted in discussions after her presentation that it would be accommodated within existing Scottish Government estate for cost mitigation purposes and it has now been confirmed that it will be based in Inverness.

One recent headline-grabbing issue in Scotland, and the UK as a whole, relates to transparency of landownership and other assets. Part 3 of the 2016 Act takes some steps in this regard, providing the Scottish Government with the power to require and record information of persons with controlling interests in entities that own or rent land in a Register. An analogy can be drawn with the relatively recent introduction of the new “Persons with Significant Control” Register in the context of company law. (Another analogy might be drawn with letting agent regulation.) These developments are reflective of increased public concern – especially following the “Panama Papers” scandal – as to who holds power in important social and economic assets. Certain points of detail are still outstanding as regards Part 3, which were noted by Taylor as including:

  • whether this Register is to constitute a new standalone one under the auspices of the Registers of Scotland (as the relevant Minister, Dr Aileen McLeod, suggested in Parliament it might, at cols 63 and 64 of the Stage 2 Official Report) or whether it will become incorporated into the Land Register;
  • the specifics of the information required by those with controlling interests;
  • an appeal process as to the information held; and
  • any exemptions (perhaps relating to privacy, a point analysed in this post by Anna Berlee and Dr. Jill Robbie).

A consultation was launched on 11 September 2016 in relation to the content of the Part 3 Regulations. It closes on 5 December 2016.

Part 4 of the 2016 Act obliges the Scottish Ministers to issue guidelines on engaging communities in the context of decisions taken in relation to land. It is in the early stages of implementation. The ultimate objective of this Part was noted as improving the collaboration of multiple, cross-spectrum stakeholders in maximising the effective use of land in Scotland. Further external workshops for external stakeholders will be arranged for the coming months as part of wider engagement in the drafting of the guidance. The final topic considered by Taylor was Part 5 of the Act, the community right to buy land to further sustainable development. This is unlikely to be brought into force until late 2017 at the earliest. This is due to the government recognising the introduction of other community rights to buy, such as the right to buy abandoned, neglected or environmentally mismanaged land, by the Community Empowerment (Scotland) Act 2015, will take time to settle in with the communities for whom their use is intended.

Another measure in the 2016 Act is the re-introduction of sporting rates under Part 6, which ends a tax exemption enjoyed by this land use since the mid-1990s. Katy Dickson, of Scottish Land & Estates (SLE), took the opportunity to critique the reintroduction on policy grounds, opining that the policy drivers for reform – tax-raising and fairness – had not been made out. Dickson also noted the practical difficulties in implementing the legislative provisions, particularly in the context of valuation. With the large land area of Scotland afforded to sporting activities, taken together with the provisions of the 2016 Act relating to deer management (in Part 8), the new legislation could have a real impact on Scotland’s environment.

As regards the continuation of the land reform debate, a panel with representatives from Community Land Scotland (CLS), SLE and NFU Scotland (formerly known by the longer moniker The National Farmers’ Union of Scotland)) offered views as to how the ongoing debate should progress. For CLS, it was noted there have been two significant, positive changes to the narrative of the debate during recent years that have changed the debate’s nature. Firstly, following on from the Final Report of the Land Reform Review Group report, the recognition that land is a finite and crucial resource to be used in the public interest for the common good, and a gradual shift from the prior view that land was a private matter where the public interest was of relative unimportance. The other change has been the progressive acknowledgment of wider human rights considerations (such as those found in the International Covenant on Economic, Social and Cultural Rights) beyond the landowner’s right to peaceful enjoyment of property under Article 1, Protocol 1 of the European Convention on Human Rights, in light of the broad social, economic and indeed environmental importance of efficient and fair land use. In this connection, looking ahead, CLS has unanswered questions on how to actively discourage concentration of landownership into the hands of few, with direct methods such as Compulsory Sale Orders or indirect measures such as tax reform being possible ways of addressing these.

Comparatively, the perspectives shared by SLE offered the view that there is nothing inherently wrong with large landowners if they are responsible. A concern was raised about the potential for the LRRS to be framed so as to focus mostly on the Landowners whilst neglecting the responsibilities of other stakeholders (e.g. access takers). While some might note such a framing of responsibilities would properly reflect the rights a landowner enjoys (and it can also be noted that access takers are already beholden to rules about responsible access, fortified by the Scottish Outdoor Access Code), SLE’s concern about a potential responsibilities imbalance was echoed by NFUS, who highlighted the existing, extensive legislative frameworks that already constrain landowners. Second was the divisive nature of the debate (the term “land reform” itself was noted as being something that immediately divides parties by reference to their respective interests) and method of achieving existing objectives. Looking at one flagship, existing objective, a flaw identified with the one million acres in community ownership objective is that the attainment of this might require some kind of compulsion, which could jeopardise collaboration between different stakeholders (such as the protocol for voluntary transfer agreed by SLE and CLS) and continues the polarising landowner/community narrative. In this regard, NFU Scotland expressed concern that the redistributive aspects of land reform could pose a threat to activities that already contribute to the rural economy. Separately, NFU Scotland welcomed the creation of the Scottish Land Commission, and particularly satisfaction with the creation of the Tenant Farming Commissioner office, viewing this role as one that can improve relations and collaboration between landowners and tenants.

Further panels at the conference focused on the landlord and tenant relationship and the law of succession. Whilst these may not be directly related to planning and environment law (the focus of the original article in SPEL), the tangential impact of reform in these areas (particularly in terms of how they impact on the crofting or agricultural holdings sector) could, in fact, have a real impact on the way land is distributed and/or used in Scotland.

Of interest to planners was a presentation by Bob Reid, which looked at the multifarious factors that have contributed to the housing issues the UK is facing at the moment. These are too multifarious to consider in any detail in this short note, but the rise in reliance on private sector development was highlighted as a crucial factor.

For those interested in the environment, the lecture on 25 August by Calum Macleod, Jayne Glass and Malcolm Combe sought to consider how much of a driver environmental considerations were for land reform, and the impact the various community and tenant rights of acquisition could have on sustainable land use in Scotland, in part building on a recent Environmental Law Review article by one of the authors of this post (open access version here). To oversimplify that, if current landowners are not looking after the environment, someone having a right to acquire from them might play a role in either: encouraging a landowner to look after the environment to try to stave off a land reform event; ultimately improving the environment after a forced sale, as the environment is something that features in the equation for any reallocation of ownership to someone else. Wider policy issues were also considered by Rob McMorran, of Scotland’s Rural College, to provide the context for some important Scottish Government commissioned research into matters like the scale of landownership and the drivers for land use decisions made by private, NGO and community landowners.

These proceedings at Aberdeen provided an opportunity to bring together individuals and organisations that will play a role in the next stage of Scotland’s land reform journey. Whilst land reform will invariably involve a degree of unsettlement of existing positions, it is hoped that the collaborative spirit of this event and this short write-up of it can be channelled into any future developments, with the objective of achieving better solutions for as many stakeholders as possible in relation to the implementation of existing reform and contributing to reform that is yet to occur.

A collection of tweets from the event is available here. Some personal reflections of Malcolm Combe on the event are available here. The authors would like to thank all involved with SPEL and The Knowledge Exchange for agreeing to the publication on this blog of this amended version of the article first hosted by them.

img_2193
Proceedings at the University of Aberdeen on 26 August 2016

Averting an Australian ‘Deepwater Horizon’: the power of the people

 

This post is by Professor Tina Hunter, the co-Director of our Centre for Energy Law

Today some of us will go to the movies. A few of us will see the new action thriller called Deepwater Horizon. The movie is the ultimate action thriller, starring Mark Wahlberg as the action hero. However it is no Hollywood tale; rather it is a real-life story, and one that is not a thriller but a horror for those who were involved. Let me explain.

On the evening of 20 April 2010, only hours after executives from BP had visited the drilling rig Deepwater Horizon in the Macondo field of the Gulf of Mexico to celebrate seven years of work injury free, the rig was ripped apart by an explosion. The causes of the explosion and consequential oil spill are complex, but were essentially caused by a loss of control of the oil well below the rig. As the Presidential report noted, ‘the immediate causes of the Macondo well blowout can be traced to a series of identifiable mistakes made by BP, Halliburton and Transocean that reveal such systematic failures in risk management that they place in doubt the safety culture of the entire industry”. The impact of this accident is well known, with 11 men losing their lives, and the resulting oil spill the worst oil spill ever recorded in a single event.

The reason for the severity of the oil spill is the loss of control of the well. Unlike an oil spill from a ship, such as the Torrey Canyon disaster in 1967, where the volume of oil spilled is confined to the cargo, the spill from an out of control well just keeps going. And going. Until a well is stopped from leaking (capped), it will continue to leak. This is what happened in the case of Deepwater Horizon, where it took 87 days to cap the well and stop the flow of oil. In that time, approximately 4.9 million barrels of oil leaked into the rich fishing grounds of the Gulf. Such a spill caused a massive impact on fishing, severely impacting on the livelihood of those in the Gulf Region.

By now some readers will be thinking ‘so what – this was a long time ago?’ The reason for reopening the Deepwater Horizon wound is not because of the current film, but rather something much more important – the possibility that it could happen again in Australian waters.

In late 2010, as part of the annual petroleum licensing round, the Australian Government granted BP (yes, the same BP) a licence to explore for petroleum in the Great Australian Bight (GAB), over an area of almost 25,000km2, located approximately 500km off the coast of South Australia. The water depth in the license area ranges from 140m to approximately 4,600m. In comparison, the well in Deepwater Horizon was drilled at a depth of 1,500m.

So, to clarify – the Australian Government granted BP, who lost control of a well in 1,500m of water and caused the largest ever oil spill, the right to drill in waters up to 4,600m deep.

Furthermore, the physical environment in the GAB is not at all like the Mexican Gulf. Rather, it is part of the Southern Ocean, known for some of the most brutal weather on earth, causing the death of many sailors.

Normally the granting of an offshore petroleum license raises barely a response from the Australian public. At the time of the grant of license, there were some concerns. These were in fact attributable not to Deepwater Horizon, but to an earlier offshore oil spill in Australian Waters: the Montara Oil Spill. The spill was a result of the failure of the cementing of the well by Haliburton (yes, the same Haliburton that did the cementing for the Deepwater Horizon well), and the company with the license, PTTEP Australia. The following inquiry and report identified a number of causal factors, as well as major problems with the way that offshore petroleum activities are regulated.

At the time of the Montara Inquiry I expressed my concerns regarding the regulatory framework for Australian offshore petroleum activities. As a result of the Inquiry, the Australian Government undertook to reform the offshore regulation framework. However, the federalist structure created many difficulties, something I commented on in 2011. The Australian government pressed on with the reform, with a new system of regulation shifting regulation of offshore petroleum from the states to the Commonwealth, for the first time in the forty-year history of offshore petroleum extraction. In 2014 I analysed the legal changes that had occurred, concluding that the legislative changes, whilst going some way to addressing the problems, were not addressing the root cause of the well control accident of Montara.

In 2013, BP made an application for Commonwealth approval under the Environmental Protection and Biodiversity Conservation Act 1999 (EPBCA) the general-purpose act for environmental protection. This approval would allow drilling in an area that was a protected marine reserve, and the home of migratory whales and dolphins. BP was proud that even if an oil spill did occur, it would take 33 days to reach the shores of South Australia, so everything would be ok. Besides, BP stated, they had learned their lesson from Deepwater Horizon, and would not spill again. This is at a time when the Norwegian Petroleum Regulator (PTIL) requested BP to demonstrate why they should be allowed to continue on the Norwegian Continental Shelf after an oil leak in 2012. Although the EPBCA application was approved, many people (including me) made submissions to the government, stating that the BP Submission for approval was poor, and there were many flaws in the study. Unfortunately the public submissions in this instance were not released. The reasoning for the approval under the EPBCA was the government felt that the Regulator, the National Offshore Petroleum and Environmental Management Authority (NOPSEMA) would require greater controls under specific petroleum legislation.

Like many others, I did not have much hope in NOPSEMA. Although they had managed safety for over 10 years, they were effectively a newly formed agency for environmental management, regulating wells under the same criteria (Good Oilfield Practice- GOP) that had been in place when the Montara spill had occurred, and of which I have been quite scathing. Indeed, public momentum against BP drilling in the GAB was rising, with grassroots organisations such as the Great Australian Bight Alliance and others fighting to stop the drilling. This response was unprecedented in Australia. Never before had we seen such response to an activity that occurs far out to sea. Not even after Montara was such a response seen. Clearly, the public was concerned about BP’s track record, and its role in Deepwater Horizon.

Such public scrutiny on BP’s plan in the GAB placed the regulator NOPSEMA, under the spotlight. BP’s initial application to NOPSEMA in 2015 for approval to drill a well was rejected, with NOPSMEA requiring further information. The plan for approval was resubmitted in March 2016, and NOPSEMA again requested BP to modify the plan, to which BP submitted a second plan in August 2016. The result of the reassessment was due mid October October.

During this period, the Australian Senate’s Environment and Communications References Committee took the unprecedented step of launching an Inquiry into the potential environmental, social and economic impacts of BP’s planned exploratory oil drilling project, and any future oil or gas production in the Great Australian Bight, which I was privileged to be a part of. I have long written of deficiencies in the Australian offshore petroleum regulatory regime, and the capacity of the regulator, NOPSEMA. These concerns have now been expressed publicly, with Emeritus Professor Bob Bea, the founder of the Centre for Catastrophic Risk Management at Berkley University expressing major concern over the regulator’s role, with Professor Bea noting that ‘the current Australian regulatory approach to the BP drilling operations as “hope for the best”’. The secrecy within which NOPSEMA had undertaken the assessment, and failing to make public any of the conditions, meant the process lacked transparency, with the Australian Senate calling the regulator ‘weak and secretive’.

Before the approval to drill could be granted or rejected by NOPSEMA, BP announced, on 11 October 2016, its withdrawal from drilling in the GAB. This withdrawal was met with mixed reactions. Predictably, many from the community exhibited sheer elation. Quite possibly, the assessors in NOPSEMA are secretly wiping their brow and thinking ‘thank goodness – now we don’t have to make a decision’. But for a small minority of the population, there is disappointment. The Federal Resources Minister, Matt Canavan, expressed bitter disappointment about the BP decision not to proceed, and observed that the celebratory response to the announcement showed ‘the ugly side of green activism’. (But if the ugly side of green activism saves the lives of people and animals by preventing a result of a Deepwater Horizon-type incident, maybe it is not so ugly after all).

I applaud the decision of BP in withdrawing from the GAB. As far as I can see it is one of the more sensible decisions they have made in the last ten years. However, I applaud much more the tenacity of ordinary Australians that have worked tirelessly to stop this unnecessary drilling in a Marine Reserve where the only likely benefit will be 100 new jobs and some taxation. Tangentially, it can be noted that that tax system has been labelled, like the offshore petroleum regulator, as weak and lacking transparency.

Some nights, when I am up late working on an article related to offshore petroleum, the faces of the men who died on Deepwater Horizon still haunt me. We will never know what it was that caused the ignition of the gas that rushed up the well. What we do know is that whatever it was, it killed 11 people and caused environmental devastation on an unprecedented scale. Had the Australian petroleum regulator NOPSEMA and BP had their way, it could have been the faces of Australian men and women that might have tortured me, along with the vision of whales, dolphins, tuna, and other marine life gasping for life and struggling for warmth and buoyancy in the cold, dark Southern Ocean. For now, that will not happen. Such is the power of the Australian people in averting an Australian Deepwater Horizon.

Exploring and combining the Human Rights Act 1998, intellectual property and EU competition law – while we still can

This blog post is by Dr Abbe Brown, Reader.

The prospect of the UK leaving the EU has, as already explored elsewhere on this blog, significant legal implications. So too would the possible repeal of the Human Rights Act 1998, perhaps to be replaced by a Bill of Rights.  One implication relates to proposals I put forward in my 2012 monograph Access to Essential Innovation and Technology: Intellectual Property, Human Rights and Competition.

These three legal fields of intellectual property (“IP”), human rights and competition were combined in the book as they can be relevant to questions of access to technologies from different perspectives.

Taking access to medicines as an example:

  • IP encourages the developing of new medicines by conferring exclusive rights and the ability to charge licensing fees;
  • the right to life indicates that there should be access to medicines, without money being an obstacle; and
  • competition law, in its prohibition on abuse of a dominant position, objects to an IP owner having too much power.

It is of course possible for these three fields to co-exist and complement each other: IP develops medicines to further the right to life and rewards the activities of innovators, and the ultimate goal of both IP and competition has been argued to be to encourage innovation. Yet conflict is possible; and this can be entrenched by the fact that within the UK jurisdictions there are significant differences in the extent to which each field can be the base of an action.

The book developed a means of enabling these three legal fields to be combined in judicial decision making in the UK, to deliver greater access to technology while still respecting the contribution which IP can make to developing innovation. At the heart of the book’s proposals are firstly a Human Rights Emphasis, which is a framework for enabling courts to consider the wide range of human rights relevant to a dispute to establish what is meant by delivering decisions (in light of the Human Rights Act 1998 and also EU fundamental rights) which are “consistent with human rights”; and secondly there is a new, human rights influenced, approach to the “Euro-defence” (a term explored in this resource from the law firm Slaughter and may (PDF)) and the case law on when refusal to license IP could be an abuse of a dominant position.  These two approaches could lead to courts, in some cases, finding that what seemed to be IP infringement from a pure IP law perspective was not in fact so.  The book then went on to argue that this approach was consistent with UK’s responsibilities to IP owners under the European Convention on Human Rights, and also obligations to protect IP under TRIPS, the IP element of the World Trade Organization  (“WTO”) Agreement. As a result, the approach and the UK would not be vulnerable to challenge at the European Court of Human Rights and through WTO dispute settlement.

The book develops its arguments through several scenarios, across health, communications, and the environment, with a range of outcomes depending on the facts. The proposals have been well reviewed (and also termed “possibly heretical” (Stothers 2013)) and stimulated wide interest among lawyers and IP owners, notably at the Licensing Executive Society International Conference in 2011.

Looking forward it does seem possible that there will be some sort of a Bill of Rights and also be some sort of competition law framework in post-Brexit UK, yet  in these new regimes human rights and competition may not have their present special legal status that has enabled the societal objectives (other than short term reward of innovation) to prevail.

My ongoing work (including blog posts of 26 November 2015, 2 May 2016, and 26 July 2016) explores how the interaction between legal fields can be further developed, including by looking beyond the Human Rights Act 1998 and EU competition law. (This could be serendipitous, given the current political situation.)  For now, the arguments developed remain a valuable tool for experimentation by lawyers and activists who are faced with IP obstacles to using technologies to pursue important goals.

ip-human-rights-and-competition