Written Evidence submitted by Andrea Ross,
University of Dundee
1. EXECUTIVE
SUMMARY
- Not only do we now know what is required to actually
deliver sustainable development but in the UK much of the architecture
is in place.
- The decision to cease funding the SDC is a significant
blow to embedding sustainable development across Government and
ought to be reconsidered.
- Unfortunately, the tools are not delivering real
sustainable development fast enough.
- The slow progress can be attributed to an inconsistent
application of sustainable development. Its imprecise meaning
allows variable prioritization and there is nothing to compel
decision makers to take a sustainable approach.
- Sustainable development is a poor champion for
any one concern - environment, justice, human rights, economic
development - instead it sets out an appropriate decision making
process. To do so it needs to be based on clear theoretically
robust, norms and values.
- Sustainable development needs to be redefined
with ecological sustainability or living within the Earth's limits
at its core.
- Ecological sustainability should be considered
a fundamental legal principle. Our ability to deliver the other
fundamental legal principles (freedom, equality, justice) reduces
as the Earth's resources and resilience reduce. To protect these
other fundamental legal principles we must learn to operate within
a system based on ecological sustainability.
- It is imperative that tools such as environmental
assessment and eco-footprinting remain focused on environmental
impacts and limits and do not become blurred by other concerns
such as social and economic impacts to ensure scientifically sound
decisions are made about the Earth's limits and the impact of
activity.
- Once a determination has been made about the
baseline natural limits, further decisions need to balance local
needs and cumulative effects in relation to the other less critical
aspects of the environment in addition to the social and economic
concerns. This is the role of sustainable development.
- If the coalition genuinely wants to mainstream
sustainable development into all government activity, they need
to introduce legislation to compel compliance and adherence to
best practice and promote consistency in its interpretation and
use.
- Three possible legislative models are suitable
in the UK.
- The first model focuses on creating binding legal
procedures considered vital to implement sustainable development
fully.
- The second model builds on the above procedural
approach and also includes a substantive duty across government
to ensure that its activities in implementing sustainable development
are consistent with the objectives and principles set out in the
sustainable development strategy.
- The third model goes further and establishes
sustainable development as the central organising principle of
governance in the UK.
- The approach could be staged whereby a statute
introducing procedural changes is later augmented by more substantive
provisions on the role of the strategy and /or sustainable development
more generally in government decision making.
2. INTRODUCTION
TO THE
SUBMITTER
2.1 Andrea Ross is currently a Senior Lecturer
in Law at the University of Dundee who has taught and researched
in the areas of public and environmental law in the UK for over
seventeen years. She is most well-known for her extensive research
into the concept of sustainable development in the UK and has
published widely on the topic in leading law and sustainability
journals. Ms Ross is currently writing a book on Sustainable Development
Law in the UK for Earthscan Publications.
2.2 Ms Ross is a pioneer in the development of
specific university law courses in Sustainable Development and
Environmental Justice as well as in embedding sustainable development
into core law undergraduate courses including Legal Methods and
Systems.
2.3 Ms Ross has contributed to inquiries both
in the UK and Scottish Parliaments. She is the academic member
of the Law Society for Scotland's planning law sub-committee and
a member of the Society of Legal Scholars, Socio-Legal Studies
Association, International Sustainable Development Research Society.
She regularly contributes to workshops and conferences on both
her research and teaching experiences and to a wide audience.
2.4 Andrea Ross Biographic Details - LLM 1992
(Aberdeen Univ), LL.B 1989 (Osgoode Hall, York Univ), BA programme
1984-86 (Univ of Western Ontario) - qualified Barrister and Solicitor
in Ontario Canada. Senior Lecturer in Law, University of Dundee
2000- present; Lecturer, 1996-2000; Lecturer in Land Economy,
University of Aberdeen 1992-1996; Corporate Counsel, Midland Walwyn
Inc Toronto, 1990-1991.
3. FACTUAL INFORMATION
3.1 Excellent work across disciplines has been
done worldwide on the implementation of sustainable development,
"eco systems management" and an eco-systems approach.
Not only do we now know what is required to actually deliver sustainable
development but, certainly in the UK, much of the architecture
is in place. Sustainable development has proven itself to be a
resilient and valuable policy tool in the UK. We have strong strategies,
with targets and action plans, good indicator sets, and, up until
recently at least, enviable reporting, monitoring and review processes.
3.2 That said, the loss of the Sustainable Development
Commission is significant and warrants additional comment. The
UK is often held up as an example in its approach to sustainable
development and the area where it consistently out performs other
countries is in relation to its review and accountability mechanisms.
(see IISD, OECD, CSD reports) The role of the SDC in providing
both advice as well as critical and pragmatic annual reviews for
each of the administrations in the UK is invaluable. Some of the
best reporting I have seen are in the annual reports produced
by the SDC particularly those produced for Scotland. The relationship
which has developed between the SDC, the National Audit Office
and the House of Commons Environmental Audit Committee is the
envy of other countries. Before the expanding of the SDC's remit
to do annual reviews, the EAC did not have the information it
needed to properly meet its remit. The same would now also be
true in the devolved administrations. I was delighted when the
links between the EAC and the SDC were strengthened and impressed
with the rigour of the scrutiny produced since then.
3.3 The advice and assistance the SDC provided
UK departments in producing sustainable development action plans
and the annual review of these plans has promoted more ambitious
targets in the reduction of emissions, water use and waste. This
all leads to savings financially and environmentally. At £3 million
a year, the SDC was a bargain. The savings made possible through
its reports, research and advice are significantly more than this
sum. Consequently, SDC has used the success of the Sustainable
Development in Government programme at UK level to encourage the
devolved administrations to do the same.
3.4 The introduction of the new Office for Budget
Responsibility, shows the importance the new government attaches
to independent arm's length scrutiny. The decision about the SDC
appears to me to be inconsistent with this message.
3.5 Unfortunately, even when the SDC was in place
the reality is that while the tools exist they are not delivering
real sustainable development fast enough. Progress on climate
change targets remains far too slow, health problems due to poor
lifestyle persist, change in transport choices remains negligible
and the list goes on. Clearly the policy approach preferred by
past and present UK and devolved governments is not delivering
the cultural change required to meet their aspirations for sustainable
development. The reason for the lack of progress is the inconsistent
application of sustainable development. Two factors contribute
to this inconsistency. First, sustainable development still lacks
meaning and a clear sense of priority. The 2005 Framework for
Sustainable Development does an admirable job. However, it still
allows decision makers to shift priorities. Secondly, there is
nothing compelling action. While some exceptions exist, too often
individual government decisions at all levels are made for short-term
financial or political benefit, without sufficient stakeholder
or public involvement and often premised on the promised benefits
of ever increasing levels of production, consumption and unbridled
economic growth.
4 RECOMMENDATIONS
FOR ACTION
4.1 Ecological sustainability needs to be
at the core of sustainable development
4.10 The meaning, limits and role of sustainable
development need to be clarified. In my opinion, sustainable development
is best viewed as a framework or forum for decision making. It
resembles a table to which different concerns are brought. Sustainable
development is a poor champion for any one concern - environment,
justice, human rights, economic development - instead it sets
out an appropriate decision making process. To do so it needs
to be based on clear theoretically robust, norms and values. At
present those values are muddled and there is no clear prioritization
between them.
4.11 Sound environmental management practices already
advocate an ecosystem approach which recognises the relationships
between healthy and resilient ecosystems, biodiversity conservation
and human wellbeing. This approach promotes "ecological sustainability"
which imposes a duty on everyone to protect and restore the integrity
of the Earth's ecological systems.
4.12 To make a significant impact on the way
we live, ecological sustainability needs to be more than a policy
objective. Clearly, the law has a crucial role here. Ecosystems
don't obey the rules of private property. The actions of one landowner
in the land, blocking animal migrations, spraying crops, introducing
new crop varieties, hunting and fishing, logging, - has implications
far beyond his or her land. Current legal systems, preoccupied
with private property and individual rights do not respond to
modern needs. This approach, based on weak sustainability, whereby
environmental factors are traded off against social and economic
ones, has meant that today's income has come from liquidating
our social and natural assets capital.
4.13 To really make a difference, the ecological
systems approach needs to be supported by a strong moral and legal
normative framework. A new ethic is needed which advocates the
need to operate within the ecological carrying capacity of the
Earth. One way of obtaining the necessary status would be to treat
ecological sustainability as a legal principle.
4.14 Decision-making based around ecological
sustainability places the discussion of tradeoffs within the ecological
limits of the Earth. Like justice and equality, ecological sustainability
is an approach and should be considered a fundamental legal principle.
This status is deserved since our ability to deliver the other
fundamental legal principles (freedom, equality, justice) reduces
as the Earth's resources and resilience reduces and the best way
to protect these other fundamental legal principles is to operate
within a system based on ecological sustainability. Moreover,
the leap to accepting ecological sustainability as a legal principle
is a natural progression from what is already happening in UK
law, especially given the ever growing pressure on the Earth's
environment. Sustainable development regularly appears in statutes.
The English courts have accepted "sustainability" as
a material consideration in planning decisions; that it is capable
of being a main issue in planning law decisions and that it may
be afforded significant weight.
4.15 For this approach to work priority must
be given to the development and support of the tools needed to
establish the Earth's limits and the impact of activity on those
limits. Tools such as Strategic Environmental Assessment, sustainability
wedges and eco-footprinting etc are capable of comparing local
and global impacts. It is imperative that these tools remain focused
on environmental impacts and limits and do not become blurred
by other concerns such as social and economic impacts.
4.16 Once a determination has been made about
the baseline critical natural capital, further decisions will
need to balance local needs and cumulative effects in relation
to the other less critical aspects of the environment in addition
to the social and economic concerns. This is the role of sustainable
development.
4. 17 With ecological sustainability at its core,
sustainable development has the capacity to set meaningful objectives,
duties, rules and provide boundaries for decision making as these
roles are already present in recent UK and devolved legislation.
4.2 Legislation is needed to support sustainable
development and ecological sustainability
4.21 However, this is not enough, we know the
way forward and we know what is required. The difficulty is that
without a consistent message and binding legal support for best
practice short term gains will continue to trump long term objectives.
This is simply not sustainable.
4.22 If we are serious about sustainable development
then it is time for the UK administrations to give it legislative
backing. If the coalition genuinely wants to mainstream sustainable
development into all government activity, they need to introduce
legislation is to compel compliance and adherence to best practice
and promote consistency in its interpretation and use.
4.23 Over and above its symbolic and educational
value, specific legislation (in relation to sustainable development
generally, and in relation to the production, use and review of
the national or sub national sustainable development strategy,
more specifically), would impose mandatory obligations on policy
and decision makers often with meaningful consequences both inside
and outside the courtroom. Legislation cannot bring about change
discussed above. It cannot explain to leaders the importance of
operating within the Earth's limits. Ideally this norm would underpin
any general legislative action. However, there are ways of imposing
legislative obligations that would make a significant difference
without being at the stage, politically, to explicitly prioritise
ecological sustainability.
4.24 A UK wide statute on sustainable development
that binds both central and devolved administrations alike is
unfeasible following devolution. Nonetheless, specific legislation
on sustainable development for each of the UK administrations
would be valuable and not out of step with modern UK legal culture.
In 1998, the UK Government imposed procedural obligations on the
Welsh Assembly and the fact the Welsh Assembly Government has
the most progressive strategy of the UK administrations on sustainable
development is testimony that even the vaguest of statutory provisions
can promote increased action on sustainability.
4.25 Essentially, I have explored three alternative
models exist which would be suitable in all the jurisdictions
of the UK, although, at present, while Scotland and Northern Ireland
could enact their own statutes, the UK Parliament would need to
enact any new legislation for Wales. All three models have the
capacity to deliver increased consistency in decision making by
turning what may currently be established good practice or policy
into legally binding obligations that can compel compliance.
4.26 The first model focuses on creating binding
legal procedures considered vital to implement sustainable development
fully. The imposition of obligations to produce a strategy subject
to consultation and time constraints and to pursue other measures
such as action plans, spending reviews, indicators, and targets
as well as report and monitor progress would be a major step forward
in making the "sustainable development toolkit" operational.
It may have also protected the role of the Sustainable Development
Commission from the UK Government's decision to cease its funding.
That said, procedures are limited as alone they cannot not necessarily
deliver a cultural change within governments.
4.27 The second model builds on the above procedural
approach and also includes a substantive duty across government
to ensure that its activities in implementing sustainable development
are consistent with the objectives and principles set out in the
sustainable development strategy. This approach gives the strategy
legal status, provides a clear point of reference for those bodies
with substantive obligations relating to sustainable development
and generally improves the understanding of the term. It does
not explicitly set out the role of sustainable development in
the workings of government. This omission misses out on important
benefits such as raising awareness and education, and it fails
to address directly any inconsistencies in the interpretation
and application of sustainable development.
4.28 The third model goes further and establishes
sustainable development as the central organising principle of
governance in the UK. Arguably, this is the only way to truly
secure the cultural change required for genuine sustainability.
The new UK Coalition's emphasis on changing the culture of consumption
to one of investment is clearly in line with sustainable development
thinking. Indeed our ability to act fairly and justly will continue
to reduce as the Earth's resources and resilience reduces. The
best way to protect these other fundamental values is to operate
within a system which respects the Earth's limits. For this third
model to be operational two additional legislative provisions
are needed. First, there must be a clear declaration of purpose
by government about the role of sustainable development in all
its activities. A provision based on the commitment in new Welsh
strategy, One Wales: One Planet, a New Sustainable Development
Scheme for Wales, 2009 would work very well as a legal declaration:
"sustainable development will be the central organising principle
of Government, and we will encourage and enable others to embrace
sustainable development as their central organising principle
and a general duty imposed on all public bodies". Secondly,
the legislation must impose meaningful substantive duties on all
government bodies. These duties should do more than simply "have
regard to" or "take account of" sustainable development.
There is precedent for a better approach in previous UK and Scottish
statutes—for example, "contribute to the achievement
of sustainable development". This phrasing is strong enough
to provide a framework for all decision-making across government.
4.29 This third model is a big political commitment.
The implementation of sustainable development to date has been
a staged process in the UK and elsewhere. There is no reason to
believe it will not continue to be so and as a result any legislative
programme for sustainable development can staged. Introducing
even the most basic procedures could significantly improve the
UK's implementation of sustainable development. Moreover, the
value of legislating to define sustainable development or of referring
to certain underlying principles such as good governance or sound
science is debatable. Some flexibility is needed to allow sustainable
development to be contextualized and to evolve over time.
5. CONCLUSION
5.1 With ecological sustainability at its core,
sustainable development has the capacity to set meaningful objectives,
duties, rules and provide boundaries for decision making as these
roles are already present in recent UK and devolved legislation.
The re- instatement of the Sustainable Development Commission
would assist this process. Moreover, a new Sustainable Development
Act in each of the UK administrations would raise the status of
each sustainable development strategy and of sustainable development
itself. It would also upgrade the current policy approach to delivering
sustainable development from a nice idea to a legal obligation.
For more information see:
Andrea Ross "It's Time to Get Serious—Why
Legislation Is Needed to Make Sustainable Development a Reality
in the UK" Sustainability 2010, 2(4), 1101-1127; doi:10.3390/su20411012009.
Available online at http://www.mdpi.com/2071-1050/2/4/1101/.
Andrea Ross "Modern Interpretations of Sustainable
Development" Journal of Law and Society 2009, 36 (1)
32-54.
24 October 2010
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