Environmental Law for the Future: Wellbeing for Future Generations Bill

This article was originally published in “UKELA’s e-law journal” and is reproduced with permission from the publisher.

At a Glance

• Intergenerational justice is no longer a theoretical issue confined to philosophy textbooks but a question that is becoming increasingly important in the discourse around environmental issues.
• This article focuses on the Wellbeing of Future Generations Bill (the latest attempt to pass it) and examines the ways in which it is crucially different to the Wellbeing of Future Generations (Wales) Act 2015.

The topic of this short article was inspired by a lecture I recently attended by Professor Elen Stokes of Cardiff University who spoke about the relationship between the future and the law in an environmental governance context.

Introduction

While 2020 will no doubt be remembered as the year of the pandemic, 2021 is shaping up to be the year of extreme weather. The beginning of the year saw record low temperatures, for example in Beijing where it reached −19.6 °C on 7 January, its lowest temperature since 1966.¹  Summer was defined by extreme heatwaves and wildfires. California’s Dixie fire burned about 390,000 hectares by 7 October, the largest single fire on record in California.²  In Europe, Greece’s wildfire burned through 120,000 acres of forest land.³ Even Moscow experienced their hottest June day on record (34.8°C).⁴ The UK’s nation-wide rain and flooding during the summer months will also be a not so distant memory for many readers.⁵

The IPCC has warned that “Global warming is likely to reach 1.5°C between 2030 and 2052 if it continues to increase at the current rate”⁶ and that models project robust differences of regional climate characteristics between present day and global warming of 1.5°C, and between 1.5°C and 2°C, including increases in “mean temperature in most land and ocean regions (high confidence), hot extremes in most inhabited regions (high confidence), heavy precipitation in several regions (medium confidence), and the probability of drought and precipitation deficits in some regions (medium confidence).”⁷  Furthermore, the IPCC found that “warming from anthropogenic emissions from the pre-industrial period to the present will persist for centuries to millennia and will continue to cause further long-term changes in the climate system, such as sea level rise, with associated impacts (high confidence)”.⁸ These findings suggest that even if we were to stop greenhouse gas emissions today, it would take decades⁹ for atmospheric CO₂ to return to pre-industrial levels and for global surface temperatures to stop increasing.

As a relatively young person, the fact that the environmental predicament we find ourselves in today has to a large extent already been determined is a bitter pill to swallow.¹⁰

I say this not with the intention to place blame on older generations, but rather with the intention to highlight the invisible temporal thread that connects our ancestors to us and us to the future generations. In much the same way as our past has shaped our present, we, by our actions today, will shape the future for many generations to come.

To say then that younger and future generations are invested in the decisions we make about climate change today is an understatement; the quality of their lives literally depends upon them.

Intergenerational Justice

There is a whole body of mind-boggling philosophical writing on the issue of intergenerational justice, including much debate on the apparent gap between our moral intuition (that we owe duties towards future generations) and person-affecting moral theory (that for something to be bad it must be bad for someone) i.e. Parfit’s non-identity problem. The philosophical debate is (to my great relief) beyond the scope of this short article.¹¹ In any case, whatever the moral underpinnings, there is no escaping our intuition that we owe a duty to future generations to limit the effects of climate change and environmental degradation.

One need not look far for examples. Most recently, in Prime Minister Boris Johnson’s COP26 speech he warned global leaders that “the people who will judge us are children not yet born and their children and we are now coming centre stage before a vast and uncountable audience of posterity”.¹²

Even earlier than this, the Select Committee on Intergenerational Fairness and Provision was established specifically to look into this issue in 2018 (though not in an environmental context). The Committee published its report in 2019 entitled Tackling Intergenerational Unfairness in which the Committee boldly stated that:

“successive governments have failed to consider the needs of different generations and failed to plan for the long-term. This lack of foresight lies behind many of the problems we see in housing, education and the workforce. We believe this is a fundamental and continuing failure in public policy-making and the process of government. It must be urgently addressed.”¹³

The concept that we should include future generations in environmental decision-making is perhaps expressed most explicitly in the Wellbeing of Future Generations Bill (the “Bill’) currently making its passage through Parliament.

The Wellbeing of Future Generations Bill

The Bill, introduced as a private members bill by Lord Bird, was inspired by the Wellbeing of Future Generations (Wales) Act 2015 (the Wales Act).¹⁴ For the most part, the Bill is identical to the Wales Act. Both the Bill and the Wales Act require public bodies to “carry out sustainable development”, meaning “the process of improving the economic, social, environmental and cultural wellbeing of [Wales/United Kingdom] by taking action, in accordance with the [sustainable development/future generations] principle, aimed at achieving the wellbeing goals.”

The “sustainable development principle” and the “future generations principle” are different in name only. Both are defined by reference to a public body “acting in a manner which seeks to ensure that the needs of the present are met without compromising the ability of future generations to meet their own needs”. Another key similarity is that both the Wales Act and the Bill establish a Future Generations Commissioner with a general duty to promote the sustainable development/future generations principle.

Both the Bill and the Wales Act aim to place future generations and their wellbeing at the forefront of policy-making. The underlying intention is to use the permanence of the law to ensure public bodies make long-term, rather than short-term, environmental policy decisions.¹⁵

The Wales Act, progressive as it is, has faced challenges over its implementation and the law has been criticised for being toothless.¹⁶ In an interesting case brought by a claimant seeking permission for a judicial review challenge over a Welsh council’s decision to close a school, the claimant argued that the council’s decision was taken in breach of its obligations under the Wales Act. In refusing permission, Lambert J held: “I do not find it arguable that the 2015 Act does more than prescribe a high-level target duty which is deliberately vague, general and aspirational and which applies to a class rather than individuals”.¹⁷  Indeed, Lord Thomas of Cwmgiedd considered the Wales Act to be no more than “aspirational legislation”.¹⁸

It appears that the draftsperson of the Bill was aware of this line of criticism against the Wales Act, as the Bill is different to the Act in two crucial respects regarding (i) the Commissioner’s powers and (ii) the method of enforcement.

As to (i), under both the Wales Act and the Bill, the Commissioner may carry out an investigation over a public body’s compliance with its duties under the legislation. That is, broadly speaking, the duty to carry out sustainable development and the duty to follow the Commissioner’s recommendations. However, in the case of the Bill, where the Commissioner has carried out such an investigation and found that a public body has failed to fulfil its duties, the Commissioner is empowered by statute to make an application to the High Court in England and Wales (or the Court of Session in Scotland, or the High Court in Northern Ireland) for an order requiring the public body to comply with its recommendations and to take such other action as the court may specify. This judicial reinforcement adds teeth to the Commissioner’s role, giving its findings and recommendations prescriptive force. The express provision permitting the Commissioner to seek an order for specific performance also resolves any ambiguity in the mind of the judiciary over the legislative intent of the Bill.

As to (ii), while the Wales Act has no provision setting out how a member of the public might enforce it, the Bill has plugged this gap. The proposed Bill expressly provides that a person is entitled to bring proceedings against a public body on the grounds that the public body “has acted (or proposes to act) in a way which breaches its obligations”. This draft clause is especially broad for three reasons:

1. The claimant has a choice to either refer the case to the Commissioner for investigation or to directly bring an action against a public body, irrespective of whether the Commissioner has conducted an investigation or not;
2. It allows a claimant to bring a prospective claim as the entitlement to bring proceedings (or alternatively, refer the case to the Commissioner) arises as soon as a public body proposes to act in a way that breaches its obligations; and
3. There appears to be no requirement for harm to have been suffered or any locus standi requirement for that matter. If passed, it is easy to see how this provision in the Bill could be a catalyst for more public interest litigation in the UK.

The Bill is strengthened even further by an explicit clause granting the Courts broad judicial discretion in their choice of remedies (it may grant such relief or remedy, or make such order within its powers, as it considers just and appropriate).

If the Bill sounds too good to be true, then you might be right. This is not the first time this Bill has been introduced for passage. Lord Bird had introduced a private member’s bill on the same subject in the 2019–21 session. During the Second Reading of that bill, the Minister of State at the Cabinet Office, Lord True (who was also chair of the Select Committee on Intergenerational Fairness and Provision) stated in no uncertain terms that the Government would not be able to support the bill as it stood. That bill did not progress further than its second reading.

During the second reading in the House of Lords of this Bill, Lord True again confirmed that the Government would be unable to support the Bill. He remarked:

“The question is over the mechanisms in the Bill proposed by the noble Lord, Lord Bird, which are quite far-reaching and specific […] there is a balance to be found on the question of legislation and on the question of ensuring how we think about future generations[…] There is no single view, and one of the problems of creating a commission with the statutory enforcement powers that are proposed and which is made up of people who would serve for seven years is that it may embed a particular view of the future. Is not the purpose of politics, of Parliament and of this House for distinct views to come together here to debate and consider the future? We and the public bodies that are responsible to Parliament must have that place in reconciling differences of opinion […] The Bill is very broad in its scope and nature, and we do not see that as the best way forward. The Government are committed to, and are already, delivering sustainable long-term action in the environmental, economic and social well-being spheres both now and for generations to come”.¹⁹

The Government’s position appears not to have shifted. It seems that a statute, particularly one with actual enforcement provisions, is not the Government’s preferred mechanism for addressing the question of intergenerational justice. The Government’s position treats statute and policy as mutually exclusive, preferring policy over statute. However, policy in democratic countries tends to be short-term, driven by the electoral cycles. That is not a criticism of policy as a mechanism for tackling problems; policy responds well to urgent concerns where law alone would be inefficient and ineffective (the pandemic is a great example where policy led and law followed). Yet, going back to the beginning of this article, we have seen that the effects of climate change and environmental degradation are not just immediate. In fact, they take decades, centuries, millennia to realise. Where the issue is by its very nature long-term (limiting the damaging effects of climate change), political will is liable to shift and change. Statute, on the other hand has the ability and tendency to endure political ebbs and flows (look, for example, at the Law of Property Act 1925 commonly used even today almost a century after its coming into force).

It is still to be seen what will come of the Wellbeing for Future Generations Bill, perhaps it will relive the fate of its predecessor, but in any event, it seems that the question of intergenerational justice will continue to play a significant role in tackling climate change.

Conclusion

In this article, I have restricted myself to examining the crucial differences between the Wales Act and the Bill. It is my view, that fleeting policy will be ineffective for tackling the long-term issue of intergenerational justice in climate change. That is not to say that the Bill is the only possible (or best) mechanism. In some countries, including Finland and Israel, Parliamentary Committees are the mechanisms through which the position of future generations can be examined.²⁰  Equally, there are interesting arguments for recognising a fundamental right to a healthy environment, which would persist through the ages.²¹  However, to merely rely upon the political will from time to time is, in my view, to resign the wellbeing of future generations to that of something that is good to have rather than needed.

Caroline Yuen is a property litigation lawyer at DLA Piper UK LLP with a keen interest in environmental law.

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¹ State of the Global Climate 2021: WMO Provisional report, World Meteorological Organization accessed 13 November 202.
² ibid., see also Maanvi Singh and John Upton, ‘We dread summers’: dangerous ‘fire weather’ days are on the rise in northern California’ (the Guardian, 9 November 2021) accessed 13 November 2021. 

³ The Fires in Greece Are a Terrifying Warning accessed 12 November 2021.
⁴ See note 1.
⁵ Weather report, (ITV News, 7 August 2021) accessed 13 November 2021
⁶ IPCC, 2018: Summary for Policymakers. In: Global Warming of 1.5°C, A.1.
⁷ Ibid., section B.1.
⁸ Ibid., section A.2.
⁹  Climate change widespread, rapid, and intensifying – IPCC accessed 13 November 2021, see also Can we slow or even reverse global warming? (few decades), Is it too late to prevent climate change? accessed 13 November 2021. NASA appear to be of the view that the temperature would flatten within years rather than decades but that the temperature would not drop until centuries later).
¹⁰20. If emissions of greenhouse gases were stopped, would the climate return to the conditions of 200 years ago? accessed 13 November 2021.
¹¹ For anyone interested on the topic of intergenerational justice in climate change I would recommend reading as a starting point: Wrongful Harm to Future Generations: The Case of Climate Change, Marc D. Davidson, Environmental Values 17 (2008): 471-488, another interesting piece is: Beard, S. What Is Unfair about Unequal Brute Luck? An Intergenerational Puzzle. Philosophia 47, 1043–1051 (2019).
¹²  PM address at COP26 World Leaders Summit Opening Ceremony 
¹³ Select Committee on Intergenerational Fairness and Provision, ‘Tackling intergenerational unfairness’ Report of Session 2017-19,
¹⁴ Chris Smith, ‘Wellbeing of Future Generations Bill [HL]’ accessed 13 November 2021.
¹⁵ On short-termism in policy making see for example: Short-termism and the threat from climate change accessed 13 November 2021.
¹⁶ HL Deb 20 June 2019, vol 798, col 909-910.
¹⁷ R (B) v Neath Port Talbot County Borough Council CO/4740/2018.
¹⁸ Lord Thomas of Cwmgiedd, ‘Thinking policy through before legislating – aspirational legislation’, The Lord Renton Lecture Institute of Advanced Legal Studies, 21 November 2019, accessed on 13 November 2021.
¹⁹ HL Deb, 25 June 2021, vol 813, col 507-508.
²⁰ See note 18.
²¹  see for example Deborah A. Sivas, An Environmental Call to Action, 13 Stanford Journal of Civil Rights and Civil Liberties 14 (2017).