Sustainable Development Law in the UK

From Rhetoric to Reality?

Andrea Ross

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136515842
• Edition: 1
• Topic: Volkswirtschaftslehre
• Subtopic: Nachhaltige Entwicklung

Sustainable development is now widely accepted as a political objective in the UK and elsewhere but to what extent has the UK's rhetoric on sustainable development become a reality? The aim of this book is to critically examine the UK's approach to promoting and delivering sustainable development. It begins by providing a detailed account of UK law on sustainable development by reviewing the various policy, institutional and legal mechanisms used by the UK since the 1980s and by devolved administrations since devolution took effect in 1999. Progress has been slow, too slow and, according to the scientists, time is running out. To deal with this lack of progress, the book advocates increasing the status of ecological sustainability and sustainable development through the introduction of a wide range of legal mechanisms which would compel the change needed.

The book calls for ecological sustainability, or respecting the Earth's environmental limits, to be afforded the status of legal principle and argues that with ecological sustainability at its normative core, sustainable development could provide an effective framework for decision making and governance. It argues that to support this approach and ensure consistency, the time has come for sustainable development to receive explicit legal backing. Over and above its symbolic and educational value, legislation can impose mandatory rules on policymakers and decision makers, often with meaningful consequences both inside and outside the courtroom. To this end, the book contributes to the theory on sustainable development governance by suggesting three possible legislative approaches for such intervention. The volume concludes that while a lack of leadership on sustainable development may hinder the introduction of these innovations, once introduced, these innovations would equally provide much needed support for effective leadership towards a sustainable future.

Andrea Ross is a Reader in the School of Law at the University of Dundee and has taught and researched in the areas of public and environmental law for over 18 years. Before becoming an academic she qualified as a Barrister and Solicitor in Ontario, Canada.
An Earthscan from Routledge book.

Part I

Turning rhetoric into reality

1 Introduction

One of the biggest challenges facing any author writing on sustainable development is its opaque meaning. This author is no exception. The concept of sustainable development originates from attempts to reconcile the environmental protection and human development agendas. More specifically, sustainable development was devised to be a means of addressing mounting concerns about the incompatibility of maintaining a healthy environment with promoting economic growth as the main driver for development, while at the same time addressing the widening gap between the quality of life in developed countries and developing countries (Grainger, 2004: 3). As such, the solution proposed, sustainable development, is an explicit recognition that human society is intrinsically linked to wider ecological processes and the Earth’s natural resources (French, 2005: 10). To be truly sustainable, decisions need to consider long-term consequences of human activity on the planet as a whole and on its inhabitants. In many cases, this is very difficult when short-term pressures (such as poverty, unemployment, the prospect of re-election, etc.) are so powerful. Moreover, tensions and differences surround the relative importance of various factors to sustainable development and the priority which ought to be afforded to each. These factors include the pursuit of economic growth, the role of technology, the limits of the Earth’s ecosystems, and levels of distributional justice within the current generation and between generations.

By design then, sustainable development evolved into a multifaceted concept to permit and encourage concurrent dialogues on environmental protection, social and economic development, human rights, governance, justice and other issues amongst states, individuals and organizations with very different views, priorities and agendas. The result is a concept that is very hard to pin down. Some commentators argue that sustainable development legitimizes ‘business as usual’ patterns of economic growth or, at the other extreme, requires a fundamental reworking of the global socioeconomic order. Still others in the deep ecology movement have argued that sustainable development is a contradiction in terms, in that growth and environmental protection are enemies (Alder and Wilkinson, 1999: 141).

This book critically examines the UK’s approach to implementing sustainable development. Specifically it has four main aims. First, it provides, for the first time, a detailed account of UK law on sustainable development. Next, it provides a critical review of the various policy, institutional and legal mechanisms used by the UK since the 1980s and by the devolved administrations post-devolution, to implement sustainable development. Third, it shows that a new legal status for ecological sustainability and sustainable development is needed to ensure the effective implementation of sustainable development in the UK, and explains how this new legal status is consistent with the UK’s institutional and legal culture. Finally, it shows how this could be made operational through the introduction of a wide range of legal actions for compelling the change needed.

The analysis reveals that while much of the institutional and policy architecture for delivering sustainable development is in place in the UK, sustainable development continues to be only incorporated into policy and decision making when governments see obvious short-term gains; important principles, priorities and good practice are often ignored altogether. Indeed, the policy and institutional mechanisms developed to implement sustainable development objectives are developed, used and repealed on an ad hoc basis. It is argued that this is due to three key factors. First, there is a lack of leadership for sustainable development in the UK. Second, the UK’s approach to sustainable development has varied over time and between jurisdictions and sectors so that no consistent understanding of sustainable development with clear priorities and a framework for decision making exists in the UK. Finally, there are misunderstandings as to the role and importance of sustainable development in decision making, especially in relation to related objectives such as economic growth and tackling climate change.

Following on from these conclusions, the book argues that ecological sustainability or respecting the Earth’s environmental limits should be afforded the status of legal principle and that, with ecological sustainability at its normative core, sustainable development could provide an effective framework for decision making and governance. It then argues that to support this approach and ensure consistency, the time has come for sustainable development to receive legal backing. Over and above its symbolic and educational value, legislation will impose mandatory rules on policy and decision makers, often with meaningful consequences both inside and outside the courtroom. Three possible legislative approaches for such intervention are then offered. The volume concludes that a lack of sustainable development leadership may hinder these innovations, but conversely if they are introduced, they will promote and support effective leadership.

While the international law on sustainable development is well covered (French, 2005; Rieu-Clarke, 2005) and while some analysis has been made of the contribution of law in implementing sustainable development in the USA and New Zealand (Dernbach, 2009; Miller, 2011), research on a national level is rare and it has not previously been done for the UK. Also, while some of the policy and institutional mechanisms have been covered by other disciplines such as geography and political science, no book has been published from a legal perspective (Purvis and Grainger, 2004; Jordan and Lenschow, 2008). Excellent information does exist in non-governmental organization, government agency and special reports, but these have not been tied together to demonstrate the evolution of the implementation process.

This book addresses this gap in the market. It aims to provide an authoritative account of the UK and devolved governments’ approaches to the implementation of sustainable development from a legal perspective. Following a detailed analysis of the legal, institutional and policy mechanisms used in the UK since the late 1980s and those of the devolved administrations since 1999, it aims to critically assess how each of the mechanisms – and consequently the administrations – has performed. In doing so, it shows how the UK’s institutions and legal culture have influenced the choices made, the effectiveness of those choices and how these need to be kept in mind when suggesting new approaches. The book uses its analysis of the UK approach from a legal perspective to propose several possible ways that the law can be used to move the UK closer to the reality of sustainable development.

Some important explanations as to the coverage and structure of the book are worth noting at the outset. First, this book refers to sustainable development law in its broadest sense, with one important exception. As used here, the term encompasses the legal and moral norms that underpin sustainable development, such as ecological sustainability, justice including environmental justice and the other ‘environmental principles’. It also covers the institutional and administrative framework used to support sustainable development as a framework for governance. This includes overarching statutory or policy duties and objectives, leadership, cabinet committees and parliamentary committees, as well as strategy, budgeting and review processes. Finally, sustainable development law also covers the operational toolkit of measures designed to implement sustainable development, on the ground and day to day, through various forms of spending reviews, targets, assessments, consultation requirements and indicators. The extent to which these processes are, or ought to be, mandatory is also explored. The key omission from the definition of sustainable development law used in this book is any specific examination of the role of the private law in promoting or hindering sustainable development, as this would be the subject of a whole other book. As such, the book does not cover the contributions of contract and commercial law, property law, tort or delict in the promotion of sustainable development. That said, in places reference is made to some of the norms behind private law rules to explain why public law mechanisms may be needed to actually promote change (Chapter 12).

Second, the focus of this book is on the law and governance of the UK. This includes the laws, policies, institutions and decisions made at the devolved levels in Scotland, Wales and Northern Ireland in the context of implementing sustainable development. To provide a full, accurate and up-to-date account of the full range of institutional, policy and legal measures and decisions used in each of the administrations would be impossible. Instead, the volume tracks the development, evolution and success of key institutional, policy and legal measures to implement sustainable development over the years. It also identifies specific examples of particularly innovative good practices, as well as examples of movement backwards.

Third, while the UK approach has undoubtedly been influenced by both bottom-up and top-down drivers, the focus of the book is on the law and policy that applies to the UK and the devolved administrations in the UK. It does not expressly deal with local government however innovations at local and private level will be referred to sporadically, especially in relation to good practice and coordination. Furthermore, as much of the law and policy in the UK has its origins in international conventions (such as the United Framework Convention on Climate Change) or EU directives (such as the Water Framework Directive), where the particular development at international or EU level has had an impact on the UK’s approach to sustainable development or is a potential source of how to do things a bit differently, reference will be made to this development. The book does not set out to detail the implementation of sustainable development in the EU. However, EU law is a huge influence on UK law, especially in areas such as environmental protection, agriculture, fisheries, food and trade. All of this will significantly impact on the UK’s capacity to implement sustainable development, and the EU’s vision of sustainable development will therefore, by necessity, influence that of the UK. The reverse is also true and the UK has often influenced the approach used in the EU. For example, given the impact of EU strategies and action plans on what occurs in the UK, Chapter 4, which examines the understanding of sustainable development, includes an analysis of the EU sustainable development strategies. In the context of operational tools such as strategic environmental assessment, the EU origins are also documented. Where the book explores the value of ‘legislating’ more generally on sustainable development, the various references to sustainable development and the other environmental principles in the Lisbon Treaty are examined, both in relation to their direct impact on UK sustainable development law and as an alternative way of doing things. In relation to the enforcement and accountability of sustainable development measures, the decisions and potential of the EU and UK courts are also examined.

The fourth point relates to terminology. It is essential that sustainable development is distinguished from climate change, environmental protection, economic development and environmental justice and social justice. The objectives of each quite often overlap, but not always. The best decision in relation to reducing greenhouse gas emissions may or may not be the best for the environment overall, it may or may not be distributed fairly among all people and generations, and it may or may not be economically sustainable (Eriksen and Brown, 2011: ch. 2). This author firmly believes that each of these areas needs their own separate ‘champions’ and the task of sustainable development as used in this volume is to bring all these objectives to the table, to come up with the most ‘sustainable’ outcome (Ross, 2009).

For this reason, despite its undisputed importance in relation to delivering sustainable development and its significant influence on more recent interpretations of sustainable development, there is no separate chapter on addressing climate change (Eriksen and Brown, 2011). For similar reasons, the book does not specifically cover particular sectors such as trade, agriculture or transport – there are several very good books that deal with the sustainability of these individual activities (Pretty, 2007; Schiller et al., 2010; Eriksen and Brown, 2011). Importantly, then, the law, policy and institutions aimed at addressing climate change, just like those used for education, employment, trade and environmental protection, all figure as part of this author’s broad definition of ‘sustainable development law’. The key is that like justice, equality or transparency and openness, sustainable development law permeates all other forms of law to alter the way each is interpreted and delivered.

The book is divided into three parts: Part I Turning rhetoric into reality; Part II The reality of sustainable development in the UK; and Part III A new reality – the way forward. Part I begins by tracing the emergence of sustainable development as a policy objective throughout the world and in the UK. It then examines the research to date on implementing sustainable development and the necessary criteria needed to make this occur. It notes wide agreement in the factors needed for success and, building on the work of the Organisation for Economic Co-operation and Development (OECD) and others, uses four criteria to critically review progress made by the UK and devolved administrations in implementing sustainable development.

These four criteria (common understanding; leadership; stakeholder involvement and knowledge management; and integrative mechanisms) form t...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• Acknowledgements
• Table of Cases
• Table of Legislation
• Table of Abbreviations
• Part I: Turning rhetoric into reality
• Part II: The reality of sustainable development in the UK
• Part III: A new reality – the way forward
• Index