Embedding sustainable development across Government, after the Secretary of State's announcement on the future of the Sustainable Development Commission - Environmental Audit Committee Contents

Supplementary written evidence submitted by WWF-UK and the Foundation for Democracy and Sustainable Development

This Addendum contains summaries of legislation in Canada, Hungary, Israel and New Zealand providing for Commissioners who are independent of the executive and who have varying powers relevant to protecting the environment and future generations; and an impressionistic summary of the Committee for the Future established by and within the Finnish Parliament. Very brief indications of some of their experience, and an evaluation, are outlined at the end of each summary, but these are not intended to be comprehensive or exhaustive.

The following aspects of these different institutions might be worth noting in overview:

1. the longest-established institution, New Zealand's Parliamentary Commissioner for the Environment, probably has the scrutiny role that is nearest to that of the Environmental Audit Committee in the UK, with a similar role also undertaken by the civil servant appointed by the Auditor General of Canada to be the Commissioner of the Environment and Sustainable Development;
2. only the elected Hungarian Parliamentary Commissioner for Future Generations is obliged to investigate petitions from members of the public, though the Canadian Commissioner examines and monitors responses from ministers to petitions received by them, and the New Zealand Commissioner invites the public to suggest investigations;
3. a unique legislative foundation for advocacy in favour of the environment, sustainability and future generations has been given to the Hungarian Commissioner, combining in particular: investigation of complaints from members of the public; participation in the law-making process and in Hungary's position in EU negotiations; intervention to prevent activities which are violating or which could violate the right to a healthy environment guaranteed in the constitution; and strategic research;
4. the closest structural involvement with the law-making process has been provided for in the law establishing the Speaker-appointed Knesset Commissioner for Future Generations within the Israeli Parliament, though the Hungarian and New Zealand Commissioners have important functions here as well;
5. visionary and forum roles appear to be the hallmarks of Finland's Committee for the Future, which appears not to have a scrutiny role, not to receive or to investigate petitions, and not to intervene to prevent environmentally-damaging activities;
6. the right to a healthy environment guaranteed in the Hungarian constitution is central to the Commissioner's functions in that country. In Canada, Israel and New Zealand, the absence of any such constitutional right (or associated State duty), evidently did not prevent the establishment of the institution. In Finland, the right to a healthy environment is referred to as one of two foci of a weak constitutional duty on public authorities, but appears to be unconnected to the work of the Committee for the Future. It can be reasonably concluded therefore that the existence, or otherwise, of a right to a healthy environment, or of a duty on the State to achieve the right, is not a prerequisite to the establishment of an institution independent of the executive to protect the environment and future generations. Equally, and bearing in mind as well the general supremacy of Parliament in our own constitution, their existence or otherwise in the UK would not be a bar to the creation of a similar institution here.

1. CANADA

Summary: A Commissioner, appointed by and reporting to the Auditor General (AG) since 1995, for the purpose of reporting, monitoring, examining and inquiring into progress by federal government bodies towards sustainable development; to help process petitions "about an environmental matter in the context of sustainable development" from Canadian citizens to which Ministers must respond within an extendable period of 120 days; to examine and monitor those responses; and, since 2007, to report at least biannually on Canada's progress in meeting its Kyoto reduction obligations. The "needs of future generations", as a component of sustainable development, are expressly included within the Commissioner's remit. 301 petitions have been filed since 1995, and an independent report in 2008 found that the Commissioner and AG had had "a positive impact on the federal government's management of environmental and sustainable development issues"; had "served an important educational role"; and had "developed a strong domestic and international reputation as a centre of excellence in environmental auditing." There is no substantive right to a healthy environment contained in the Canadian Charter of Rights and Freedoms.

Legal basis and appointment

The Canadian Parliament legislated in 1995 "to help strengthen parliamentary oversight of the federal government's efforts to protect the environment and to foster sustainable development"[5]. It did so by amending the Auditor General Act[6], to create the office of the Commissioner of the Environment and Sustainable Development, in the office of, and appointed by, the Auditor General (who herself is a Parliamentary appointee[7]).

Under section 15.1 of the Act, the Commissioner is to be "a senior officer" who "shall assist the Auditor General in performing the duties of the Auditor General set out in this Act that relate to the environment and sustainable development." The appointment of the Commissioner is to be made in accordance with the Public Service Employment Act, and no term is provided for. (The Auditor General is appointed for ten years, and cannot be re-appointed.)

Constitutional rights

The Canadian Charter of Rights and Freedoms contains the usual kind of civil and political rights, and does not contain a substantive right to live in a clean or healthy environment (or similar formulation)[8].

Powers

The Commissioner has statutory powers to:

1. report, monitor, examine and inquire into progress by federal government bodies towards sustainable development;
2. help process petitions "about an environmental matter in the context of sustainable development" from Canadian citizens to which Ministers must respond within an extendable period of 120 days;
3. examine and monitor those responses; and,
4. since 2007, report at least biannually on Canada's progress in meeting its Kyoto reduction obligations.

The "needs of future generations", as a component of sustainable development, are expressly included within the Commissioner's remit (section.21.1(h)).

Experience and evaluation

301 petitions are listed on the Commissioner's website as having been filed between October 1996 and June 2010[9]. 28 petitions were filed between 1 July 2008 - 30 June 2009, about half the number in the previous year, relating mainly to health, biodiversity, fish habitat, and environmental assessment. 77% of responses were provided within the required 120 days (compared with 86% the previous year, and 95% the year before).[10]

In 2008, an independent review of the Commissioner's practice reported as follows:

"Despite a diversity of perspectives on future directions, on one issue there was almost total unanimity: Over the past 12 years, the Office of the Auditor General and the Commissioner have had a positive impact on the federal government's management of environmental and sustainable development issues. They have also served an important educational role. No one said otherwise. We agree. Within the mandate established by Parliament, we believe the Commissioner and the Office of the Auditor General have done a good job. They have developed a strong domestic and international reputation as a centre of excellence in environmental auditing."[11]

1. HUNGARY

Summary: Since 2008, the Parliamentary Commissioner for Future Generations has been one of four ombudsmen elected by the unicameral Hungarian Parliament. He is charged with protecting the constitutionally-guaranteed fundamental right to a healthy environment, and receives petitions from those concerned that that right has been, or is in danger of being, violated. He must investigate proper petitions and make recommendations to the relevant public body, and he can investigate violations on his own initiative. He has duties aimed at improving law enforcement, legislation, and implementation of international treaties, and can ask the Constitutional Court to intervene, as well the duty to participate in formulating Hungary's position at the EU level. He has powers aimed at controlling the activities of individuals and companies that actually and potentially harm the environment; at moving the competent regulatory authorities to use their own powers to restrain environmentally-damaging activities; and at suspending the decisions of administrative bodies which permit activities that harm the environment. In performing his functions, he has significant powers to obtain information, to enter property and to publicise his proceedings. The Commissioner has said that he also carries out strategic development and research, covering the duty of representing the interests of future generations. By the end of last year, he had completed 97 investigations as a result of over 400 petitions received, which mostly relate to local spatial plans, noise and air pollution; and had participated in scores of legislative consultations and proposals.

Legal basis and election

The Hungarian Ombudsman Act[12] provides for the election of a Parliamentary Commissioner for Civil Rights in order to ensure the protection of fundamental rights. It also provides for additional "special ombudsmen" to be elected by a two-thirds majority of its unicameral parliament for the protection of certain fundamental rights.[13] The right to a healthy environment is contained in the Hungarian Constitution (see below).

In May 2008, the Hungarian Parliament elected Dr. Sándor Fül½p as the Parliamentary Commissioner for Future Generations as a special ombudsman "[i]n order to ensure the protection of the fundamental right to healthy environment [sic]".[14]

He has been elected for a term of six years, which can be renewed once.[15]

Constitutional rights

Article 18 of the Hungarian Constitution provides (translated into English[16]) as follows:

"The Republic of Hungary recognizes and shall implement the individual's right to a healthy environment."

In the English translation of Section 27/A. § (1) of the Ombudsman Act on the website of the Commissioner for Future Generations, this right is described as a "fundamental right":

"In order to ensure the protection of the fundamental right to healthy environment [sic] Parliament shall elect the Parliamentary Commissioner for Future Generations as special ombudsman."

The Hungarian Constitutional Court has also stated that:

"the State does not enjoy the liberty of letting the condition of the environment deteriorate or allowing the risk of deterioration"[17]

Petitions

Any person may petition any of the ombudsmen, including the Commissioner, if that person considers that a public authority or body performing a public service has caused a violation of a fundamental right or the direct danger thereof, subject to the exhaustion of available administrative legal remedies (excluding judicial review)[18]. The Commissioner may also act ex officio in order to terminate the violation (i.e., of his own motion, without waiting to receive a petition).

The Commissioner is obliged to "examine" petitions, and to "select himself the measure deemed to be purposeful within the framework of this Act" unless the matter is before, or has been heard by, a court, or if he deems it to be "of small importance" (section 17. § (1)).

The Commissioner must "reject evidently unfounded petitions, as well as petitions submitted repeatedly and containing no new fact or data on the merits, and he may reject petitions not submitted by the party entitled to do so, or anonymously submitted ones" (section 19. § (2)).

If he investigates and finds a violation of the fundamental right to a healthy environment, the Commissioner may make a draft "recommendation for remedy" to the relevant authority, who must respond within 30 days with its "standpoint on the merits". Thereafter, the Commissioner has 15 days within which to confirm, amend or withdraw his recommendation (section 20. § (1)). His recommendations can, in certain circumstances, extend to proposing the amendment, repeal or passing of legislation (section 25).

If the authority fails to form its "standpoint on the merits and to take the measures corresponding to it", or if the Commissioner disagrees with the standpoint or the measures taken, he must inform Parliament in his annual report, and may request that the case be investigated by Parliament. Where he considers the violation to be "extraordinar[il]y grave or if it affects a larger group of natural persons, he may initiate that Parliament put the debate of the given issue on its agenda already before the annual report" (s.26. § (1)).

Other duties and powers

As well as his duties in relation to petitions, the Commissioner for Future Generations has the widest functions of comparable institutions considered in this report, at the national, EU and international law levels, and in respect of both public and private actors. [19]

Under section 27/B he has duties relating to law enforcement, legislation, international treaties and the EU, in particular to:

1. monitor, evaluate and control the enforcement of laws ensuring sustainability and environmental improvement;[20]
2. investigate "improprieties" relating to such developments, and "initiate" measures for redress;[21]
3. express an opinion on draft legislation and propose legislation;[22]
4. express an opinion on motions about the mandatory effect of international environmental treaties, contribute to reports under international agreements and track the development of these agreements;[23] and
5. participate in formulating Hungary's position at the EU level on relevant issues;[24]

If he has concerns about whether a law conflicts with the constitution or with an international agreement, or wishes an unconstitutional omission to be brought to an end, he may take the matter to the Constitutional Court.[25]

The Commissioner also has discretions (powers) aimed at controlling the activities of individuals and companies that actually and potentially harm the environment; at moving the competent regulatory authorities to use their own powers to restrain environmentally-damaging activities; and at suspending the authorizations of administrative bodies which permit activities that harm the environment. More specifically, the Commissioner may[26]:

1. request a person or organization (not a public authority) to terminate an illegally endangering, polluting or damaging activity;[27]

If the activity, be it an act or omission, is damaging the environment (as opposed, presumably, to simply endangering or polluting it), the person or organization damaging it can be requested to restore the environment as well. If the addressee does not respond, adequately or at all, the Commissioner can ask a court to issue injunctions to restrain the damaging conduct, to effect damage-prevention measures and to restore the environment.[28]

1. request competent regulatory authorities to take environmental improvement measures;[29]

This seemingly unrestricted power is supplemented by a power in section 27/D under which the Commissioner "may initiate the competent authority to take measures to impede and forbid the activity damaging the environment, to prevent damages and to restore the environmental status preceding the environmental damaging conduct", and the authority "shall immediately notify [him] on the measures taken". The Commissioner's request initiates a compulsory procedure, and the authority must respond.

1. request administrative bodies to suspend decisions they have made permitting environmentally harmful activities. The Commissioner's request initiates a compulsory procedure, the bodies must respond and, depending on the nature of the administrative body, the Commissioner can seek a judicial review of the decision;[30]
2. make general and case-specific recommendations, to which addressees must respond within 30 days;[31]
3. track and express his opinion on long-term local development plans and concepts, resettlement (cf. compulsory purchase?) and other plans directly affecting the quality of life of future generations;[32] and
4. participate in public hearings[33].

In performing his functions, the Commissioner also has important further powers, to:

1. request information "from anyone" in cases which may affect the condition and use of the environment, and he may inspect documents, including personal and other data (such as commercial data), subject to him being bound by secrecy laws and excluding specified information listed in an Annex to the Act which relates to the army, national security, customs and the public prosecutor's office;[34]
2. enter land and property where activities threatening irreversible environmental damage are going on, or if access to data, circumstances or facts necessary for conducting his proceedings cannot not be otherwise ensured;[35]
3. publicise the launch of his proceedings, and his recommendations, even if this involves disclosing commercial secrets or personal data[36] - i.e., the wider public interest to be informed of environmentally damaging activities is given precedence over private or personal interests.

Experience and evaluation

According to the 2010 Summary Report, up the end of 2009 the Commissioner:

1. had received 119 "government initiatives";
2. participated in 81 consultation procedures concerning legislative proposals;
3. initiated one constitutional review;
4. initiated the adoption or amendment of 17 legislative proposals;
5. dealt with 422 complaints, mostly related to local spatial plans, noise and air pollution. Investigations were launched into 271 cases, 97 of which were completed. In 37 cases the "bureau issued a statement and encountered improprieties on 26 occasions".

The Commissioner has said that he performs three duties: "complaints investigation; parliamentary advocacy; and strategic development and research… The function of strategic development and research covers the duty of representing future generations' interests. Within this field, the Commissioner has launched comprehensive six year strategic research projects on the issues of the availability of environmental information, the climate and energy policy, and the study and support of sustainable local communities."[37]

It is too early to find any evaluation of the Commissioner's work, and the 2010 Summary Report does not contain a systematic analysis of its outcome.

1. ISRAEL

Summary: A Parliamentary Commissioner for Future Generations, established by law in 2001 within the unicameral Knesset and appointed by the Speaker for a renewable five year term. No Commissioner has been in place since 2006, though the law remains in effect. The Commissioner's powers are focused on supporting the Knesset in its consideration of proposed laws of particular relevance for future generations. Working across education, health and environment from 2001-2006, the Commissioner appears to have gained real influence across a wide policy spectrum.

Legal basis and appointment

In 2001, the Israeli Parliament passed a law establishing the Knesset Commissioner for Future Generations "which will present it with data and assessments of issues which have particular relevance for future generations"[38]

The Commissioner is appointed by the Knesset Speaker, with the authorization of the Knesset House Committee, from at least two candidates recommended by a committee which is appointed by the Speaker and consists of three Knesset Committee chairpersons and three faculty members from institutions of higher education with relevant expertise.[39]

The Commissioner's term of office is for five years, and the Speaker has a right to appoint him or her for a further term. The former judge, Shlomo Shoham, was appointed as the first Commissioner, and his appointment ended in 2006 without renewal. There has been no Commissioner since, although the law remains in effect.[40]

Constitutional rights

Israel does not have a written constitution, contained within a single document of particular sanctity or with specially protected legal status. According to the Knesset's English language website, the Knesset has passed fourteen "Basic Laws", as opposed to "ordinary laws", and these Basic Laws are a part of the Israeli constitution, though there are differences of opinion over whether they take precedence over ordinary laws[41]. It does not appear that the fourteen listed Basic Laws contain a right to a healthy environment, and there is no reference to any such right, or indirectly associated right, in the law establishing the Commissioner.

After the World Summit on Sustainable Development in Johannesburg in 2002, the Commissioner drew up a proposed government bill, as a basic law, to ensure that all economic, social and environmental development be conducted in a sustainable manner. This proposal was watered down for presentation to the Knesset, but even this weakened proposal did not become law. However, following this initiative Shoham reports that "the right to sustainability found its way into the map of rights contained in the proposed bill for the Israeli constitution".

Powers

The Commissioner operates within the Knesset and its law-making processes, with four functions, namely to:[42]

1. assess proposed primary and secondary legislation of particular relevance for future generations;
2. present reports to the Knesset from time to time, at his or her discretion, with recommendations on issues of particular relevance for future generations;
3. advise Knesset Members on such issues; and
4. present an annual report to the Knesset.

In performing his or her duties, the Commissioner "will be guided purely by professional considerations".[43]

All bills and proposed secondary legislation before the Knesset are to be sent to the Commissioner by the relevant Knesset authorities. The Commissioner will inform the Speaker periodically of those laws and bills that he or she considers have particular relevance for future generations, and the Speaker is to inform the chairpersons of the Knesset committees responsible for the areas covered by the laws or bills. The Commissioner is to be invited to debates on proposed primary and secondary legislation which he or she has declared are of particular relevance to future generations, and the timing of such debates are to be coordinated by the committee chairpersons and the Commissioner, allowing reasonable time for the Commissioner's collection of data and preparation of an evaluation. A summary of the evaluation is to be included in the explanatory notes to the bill (if given before first reading) or in the appendix of the committee's proposal to the full Knesset for the second and third readings (if given after the first reading). The Commissioner is permitted to participate in committee debates, at the Commissioner's discretion (or with the committee chairperson's authorization if the debate is "secret by law").[44]

If an organization or body listed in relevant provisions of the State Comptroller Act is "being investigated", the Commissioner may request any information, document or report from that organization or body if required for the implementation of his or her tasks, and the request must be complied with (with certain exceptions for national security, foreign relations and public safety.[45]

Experience and evaluation

From 2001-2006, the Commissioner's work focused on education, involving sustainable education, future education, child welfare and promotion of youth involvement in the democratic process; health, involving raising awareness of the relationship between public health and the environment, and strengthening preventive services, including membership of the national task force on obesity; and environment, involving the introduction of a law on air quality to replace an ineffective voluntary agreement between polluters and government, and new coastal protection legislation.

There appears to be no independent evaluation of the Commissioner's work. Here, though, are some statements from the Commissioner himself in his book, preceded by a statement from the author of the book's preface:

"Like any experiment, the success of this venture was mixed. Over time, Shoham and his coterie of expert staffers developed real influence across a wide policy spectrum, though they in some cases saw their proposals rejected. They brought an unusual and often controversial perspective - the claims of intergenerational justice - to debates ordinarily shaped by rival ideologies, conflicting data sets or competing political interest groups."

"As an interdisciplinary body, we were able to rise above immediate political pressures and the survival mentality of practical politics. In doing so we were able to be a significant catalyst in triggering interest in a subject with long-term impact, in creating public awareness and in bringing about a change in legislation"( p162)

"by treating the obesity epidemic as an issue of sustainable health, we helped people understand the broader social significance of sustainability."

"our experience in the Israeli Commission for Future Generations taught us that a large part of our influence in fact lay behind the scenes, in personal meetings and in laying the groundwork for change, work that was for the most part hid from the public eye." (p85)

"Frequently, when the Commission turned to the public and explained the future consequences of decisions and legislation, it turned out that the public was not really asking for instant solutions. The public turned out to be willing to pay a present-day price in order to safeguard the future of its children. When decision-makers came to appreciate the public's deeper desires, they often accepted our opinion and changed their stands…..[The Commission] could help bridge this gap between policymakers' beliefs and the public's deeper, often unvoiced expectations" (p100)

"parliamentarians started to appreciate the Commission as an institution with the power to cultivate public interest. p106 and the public started to show an interest in sustainable thinking." (p105)

"the terms sustainability, sustainable development, futures thinking and concern for future generations are now found in almost every public debate over decisions with long-term significance."

1. NEW ZEALAND

Summary: A Parliamentary Commissioner for the Environment with wide-ranging powers, established by statute in 1986, and appointed by and reporting to Parliament (not Ministers). She has wide powers of review, investigation and advice across public bodies, and also to obtain information and to be heard in legal proceedings, and can report on draft legislation if requested. In carrying out her functions, the list of matters to which she is to have regard does not include economic issues or the needs of future generations. Citizens do not have the right to petition her, but they can and do ask her to investigate matters, though these requests are declining. A high satisfaction rate amongst MPs is reported.

Legal basis and appointment

In 1986, the unicameral New Zealand Parliament enacted the Environment Act[46], to establish the Parliamentary Commissioner for the Environment[47] (and the Ministry for the Environment). Under section 4 of the Act, the Commissioner is appointed by the Governor-General on the recommendation of the House of Representatives. The Commissioner is one of three officers of Parliament, the others being the Office of the Ombudsmen and the Office of the Controller and the Auditor-General[48].

The Commissioner is appointed for five years, and may be re-appointed.

Constitutional rights

The New Zealand Bill of Rights Act 1990 contains the usual kind of civil and political rights, and does not contain a substantive right to live in a clean or healthy environment (or similar formulation)[49].

Powers

The Commissioner has wide-ranging functions, grouped into seven categories in section 16 of the Act:

1. review the system of agencies and processes set up by the Government to manage the country's resources, and report to Parliament, with the objective of maintaining and improving the quality of the environment
2. investigate the effectiveness of environmental planning and management by public authorities, and advise them on remedial action
3. investigate any matter where, in the Commissioner's opinion, the environment may be or has been adversely affected, advise on preventative measures or remedial action, and report to Parliament
4. if requested by Parliament or a select committee, report on any petition, Bill, or any other matter which may have a significant effect on the environment
5. on the direction of Parliament, to inquire into any matter that has had or may have a substantial and damaging effect on the environment, and to report the results of the inquiry to Parliament
6. undertake and encourage the collection and dissemination of information about the environment
7. encourage preventive measures and remedial actions to protect the environment.

In the performance of her functions, under section 17 of the Act the Commissioner is to have regard to a wide range of environmental issues and effects on communities. Neither economic issues nor the needs of future generations appear in section 17.

The Commissioner also:

1. has power under section 19 of the Act to require information, documents or things to be provided to her by any person in relation to any matter which she is investigating or inquiring into (subject to secrecy obligations imposed upon her). Failure to comply with the Commissioner's requirement, or otherwise to hinder her, is a criminal (summary) offence;
2. is entitled to be heard under section 21 in any proceedings before courts, tribunals and other bodies in relation to any consent;
3. must report annually to Parliament,

and her proceedings are privileged in a similar way to which the proceedings of Parliament are privileged.

Although the Environment Act does not provide for petitions from members of the public, the Commissioner's website includes a "Suggest an Investigation" page, which can act as a spur to exercise her function to investigate any matter where in her opinion the environment may be or has been adversely affected[50].

Experience and evaluation

Three major investigations were conducted in 2008-09, into the clean-up of a contaminated land site, the impact of land use changes in the high country of the South Island, and smart electricity meters, as well as into mining, water quality and transport fuels, and advising on the Emissions Trading Scheme.[51]

According to her recent annual reports, the biannual survey of "all MPs indicated high satisfaction with the clarity, timeliness and usefulness of the Commissioner's advice";[52] and 65% of recommendations were adopted.[53]

In her latest annual report, the Commissioner states that her:

"'Environmental Ombudsman' role has decreased over the years, as other avenues for addressing environmental concerns have become available. However, it remains an important part of the office's work and can often alert the Commissioner to new or persistent environmental issues. In 2008-09, the office received a total of 118 concerns and inquiries (Table 1). The majority (90) of these related to a variety of environmental issues. The remaining 28 inquiries were in relation to topics such as office functions, expenses and reports."[54]

1. FINLAND

Summary: A standing Parliamentary Committee ("the TVK") set up in 1993 with a visionary, rather than a legislative or budgetary, role. Its main task is, apparently, to provide a report (during the second year of each government) to the Finnish Parliament in response to "future statements" from the Prime Minister's office on its legislative programme. Once adopted, the report becomes the Parliament's basis for appraising forthcoming decision and legislation (perhaps in conjunction with reports from other committees).In addition, it reports on wide-ranging issues, and undertakes specific technology assessments. The Committee's work is carried out in the context of a relatively weak and seemingly unassociated constitutional State duty in relation to the right to a healthy environment.

Legal basis

In 1993 the Finnish Parliament (Eduskunta) established a Committee for the Future[55] (Tulevaisuusvaliokunta - TVK), as one of its standing committees under section 35 of the Finnish Constitution[56].

Constitutional rights

Although there appears to be no express linking between the establishment or operation of the Committee and constitutional rights, section 20 of the Finnish Constitution provides as follows:

"Section 20 - Responsibility for the environment

Nature and its biodiversity, the environment and the national heritage are the responsibility of everyone. The public authorities shall endeavour to guarantee for everyone the right to a healthy environment and for everyone the possibility to influence the decisions that concern their own living environment."

This formulation of the right to a healthy environment is clearly weaker than for other rights in the constitution[57].

From reading some of those of the Committee's reports that have been translated into English, its work is not in any way expressed as being linked to this, or to any other, constitutional right. The subject-matter of its reports is very diverse, and rarely environmental in a traditional sense.

Powers

Presumably, the Committee has the powers of a standing committee under the Finnish constitution (whatever those may be). It does not seem to have any powers which are comparable to the functions of the Parliamentary Commissioners in Hungary, Israel or New Zealand, or the Canadian Commissioner.

My understanding of the Committee's work is contained in the following two extracts.

First, the Counsel to the Committee, Paula Tiihonen, wrote the following in (about) 2008 (sent by the author to me):

"In Finland 15 years ago, some of our Representatives had the insight that establishing a committee to deal with the future would be one means of revitalising the Eduskunta from within. Like the other special committees, it has 17 members, all Representatives, and it deliberates parliamentary documents that are referred to itä. The Committee studies development factors and development models relating to the future. It examines futures research, including its procedural questions. It assesses the societal impacts of technology and acts on the international level as a parliamentary body that evaluates the significance of technology. It is a kind of parliamentary "think tank".

"It has become established practice for the Government to make 1-2 reports on the future in the course of a four-year parliamentary term. The theme during the last term was demographic development. The new Government has announced that the next report on the future will deal with climate change. The Committee is free to choose other tasks and functions - beginning with definition of themes - itself. Working methods vary depending on the theme and project. Some themes demands a thorough, scientifically based study, others are best teased out on the political level by arranging a seminar. Sometimes the problem in question is so difficult, the theme so new that it demands the commissioning of a preliminary study from a university and only in the second stage the Committee's report and statements of position. The Committee has drawn on the assistance of two background groups, one of which has represented the 'experienced wise' and the other the 'challenging young'."

Second, (Emeritus Professor) Brian Groombridge described its main task in an interesting though undated (probably around 2006-07) article on the Scottish Futures Forum website:

"The Committee for the Future's main task is to conduct dialogues with the Prime Minister's office and government on all the foreseeable long term issues affecting the policies and work of whatever government is in power (always a coalition). The agreed procedure is that after a general election, in its second year of office, the government has to produce at least one policy statement on the future. These second-year papers are not manifestos; they do not reiterate election pledges; nor do they pre-empt decisions by subsequent governments. They provide a view of the future as seen by the new government, proposing a long-range framework in which to judge its four-year programme, so that its specific legislative decisions may be assessed and debated in the light of how they affect and could be affected by longer term, inter-related issues; issues such as climate change, energy policy, demography and technological development. This Future report is examined by the Future Committee and the other select committees; the Future Committee then drafts a response which it submits to the Eduskunta itself. When approved and confirmed, the revised response provides the basis for the Eduskunta's appraisal of forthcoming decisions and legislation."[58]

Groombridge also states that technology assessment is a major responsibility of the Committee, in which role it takes up specific topical themes as well as the most wide-ranging ones—plant gene technology in food production, for example, quite different in scale from, say, the relevance of "the knowledge society" to "a caring, encouraging and creative Finland". He says that "to some extent" the Committee resembles the UK Parliamentary Office of Science and Technology, with whom it is in contact.

Experience and evaluation

It is very difficult to obtain an overview of the Committee's work that goes beyond, simply, an impression.

Fifteen publications from 2002-2010, and seven reports and statements from 2000-2004, are available in English on the Committee's website. Their subject-matter is very diverse, and appears both generic (e.g., future democracy, information technology, Asia, health care) and of particular interest to Finland (two publications on Russia).

More widely, in his article - in which he recommends a UK Select Committee for the Future - Groombridge writes:

"Those directly involved with the TVK are cautious about its work so far. Dr Tiihonen says 'it is too soon' to know how valuable it is. Likewise, Seppo Tiitinen, in that 2004 Inter-Parliamentary Union address, was equally cautious: 'The Committee has been working for only 10 years, so it is too early to say if it has been a success'. He added, however:

The Committee has taken its place in the Finnish parliamentary system as an innovative political body and . . . created a new forum that works at the core of the parliamentary system and—still more important—it has demonstrated that parliamentary measures can still be used to take the initiative within democracy."

The Committee Counsel, Paula Tiihonen, has written that the Committee was created to strengthen the visionary, rather than the legislative or budgetary powers of the Parliament:

"Over the years [the Committee] has created a new forum that works at the core of the parliamentary system and - even more important - has demonstrated that parliamentary measures can still be used to take the initiative within democracy….Politics in this context is about values, attitudes, atmosphere and opinion building, and, most important, opinion leading."[59]

29 November 2010

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5   Foreword to the Report of the Independent Green Ribbon Panel, January 2008, entitled "Fulfilling the Potential: A Review of the Environment and Sustainable Development Practice of the Office of the Auditor General of Canada" , available here (accessed on 4/11/10): http://www.oag-bvg.gc.ca/internet/English/acc_rpt_e_29778.html#p1  Back

6   The Act, as amended, can be read here (accessed 04/11/10): http://laws.justice.gc.ca/en/A-17/FullText.html Back

7   Under s.3 of the Auditor General Act, the AG is appointed by the Governor in Council "by commission under the Great Seal…after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons."  Back

8   The Charter is set out in Part 1 of the Constitution Act 1982 enacted by the Canadian Parliament (available here (accessed on 4/11/10):
http://laws.justice.gc.ca/eng/Const/9.html#anchorsc:7); and in Schedule B of the Canada Act 1982, simultaneously enacted by the UK Parliament (available here (accessed on 29/11/10):
http://www.legislation.gov.uk/ukpga/1982/11/pdfs/ukpga_19820011_en.pdf
http://www.statutelaw.gov.uk/legResults.aspx?LegType=All+Legislation&title=Canada+Act&Year=1982&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&activeTextDocId=1268538 Back

9   http://www.oag-bvg.gc.ca/internet/English/pet_lp_e_938.html  Back

10   See Chapter 4 of the 2009 Fall Report of the Commissioner of the Environment and Sustainable Development, available here (accessed on 4/11/10): http://www.oag-bvg.gc.ca/internet/English/parl_cesd_200911_04_e_33199.html  Back

11   See the Executive Summary (Key conclusions) of the report referred to above in footnote 1, available here (accessed on 4/11/10): http://www.oag-bvg.gc.ca/internet/English/acc_rpt_e_29778.html#p1  Back

12   Act LIX of 1993 on the Parliamentary Commissioner for Civil Rights. An English translation of the Act is available here (accessed on 4/10/10): http://jno.hu/en/?menu=legisl_t&doc=LIX_of_1993  Back

13   Act LIX of 1993, section 2. § (1) and (2). Back

14   Act LIX of 1993, section 27/A. § (1).  Back

15   Act LIX of 1993, section 4. § (5).  Back

16   See here (accessed on 8/11/10): http://net.jogtar.hu/jr/gen/getdoc.cgi?docid=94900020.tv&dbnum=62.The translation on e-page 10 of the English language Comprehensive Summary of the Report of the Parliamentary Commissioner for Future Generations, published in July 2010 ("the 2010 Summary Report") is slightly different: "The Republic of Hungary acknowledges and enforces everyone's right to a healthy environment." The 2010 Summary Report is available here (accessed on 08/11/10):
http://jno.hu/en/pdf/Comprehensive_Summary_2009.pdf

 Back

17   Resolution 28/1994. (V.20.) of the Constitutional Court, quoted on e-page 5 of the 2010 Summary Report.

 Back

18   Section 16. § (1) provides that "Anybody may apply to the ombudsman if in his judgement the proceedings of any authority (paragraph (1) of Section 29) or organ performing a public service (hereinafter together 'authority') caused impropriety relating to the fundamental rights of the petitioner, provided that he has exhausted the available possibilities of administrative legal remedies - except for the judicial review of administrative decisions - or that no legal remedy is ensured for him". Section 29. §(4) provides that: "For the purposes of this Act an impropriety relating to fundamental rights is: the violation of a fundamental right or the direct danger thereof, irrespective of the fact that it is the result of an action or an omission".  Back

19   Although this characterisation and division of his main functions into duties and powers might be inappropriate under Hungarian law, or might be an incorrect understanding of the Act, it is adopted here as it is a familiar characterisation for UK lawyers and fits with the English translation of the Act posted on the Commissioner's website. Unfortunately, that translation is not very elegant, sometimes not easy to understand and, in several instances, is different from other translations of the same provision by the Commissioner in the 2010 Summary Report. With one exception (in the case of the first bulleted duty, where the translations are significantly different and the latter translation seems to make more sense), the summaries of the duties are based on the translation on the website; the verbatim translated text from the website is footnoted after each summary of (what the website text suggests would in our law be) a duty or power, and, where the 2010 Summary Report has provided a different translation, that version is also included in the corresponding footnote.  Back

20   This summary (exceptionally) is based on the English translation of what appears to be the relevant provision (s.27/B. § (1), first sentence), set out on e-page 10 of the 2010 Summary Report: "Based on the Ombudsman Act, the Commissioner 'monitors, evaluates and controls the enforcement of legal provisions ensuring the sustainability and improvement of the state of the environment and nature…' ". Although this translation is expressed in descriptive rather than mandatory language (and so perhaps it might not be accurate to understand it as a duty), the translation of the provision posted on the Commissioner's website is clearly expressed as a duty but seems to make less sense (especially when considered in the light of the associated duty in the next bullet): the Commissioner "shall follow with attention, estimate and control the emergence of the provisions of the law ensuring the sustainability and improvement of the situation of environment and nature". (It is not clear, however, whether this provision applies only to legal provisions which are intended to ensure sustainability and environmental and natural improvement, or to any legal provisions in order, thereby, to ensure sustainability and such improvement.).  Back

21   The Commissioner "shall investigate or to have investigated any improprieties he has become aware of relating to these, and to initiate general or particular measures for the redress thereof", s.27/B. § (1), second sentence. Cf. the Commissioner's translation on e-page 10 of the 2010 Summary Report: his "task is to investigate or have investigated the abuses brought to [his] attention related to all this, and to initiate general or individual measures in order to redress them". From the web translation, it seems that this duty is related to legislative developments ("relating to these"), though it might perhaps be a wider investigative duty in relation to any environmental or sustainability "impropriety". In any event, it appears to be cast more widely than the test for submitting a petition, as it does not seem to be restricted to an actual or potential violation of the right to a healthy environment. Back

22   The Commissioner "shall express an opinion on the drafts of statutory instruments and other governmental motions connected with his tasks, and may make a proposal for legislation in his sphere of tasks", s.27/B. § (3)(e). Back

23   The Commissioner "shall express an opinion on motions relating to the recognition of obligatory effect of international agreements with environmental protection or nature conservation subjects or affecting the common heritage and concerns of the mankind, shall contribute to the preparation of national reports drafted on the basis of these international agreements, furthermore, he shall follow with attention and estimate the emergence of these agreements under Hungarian jurisdiction", s.27/B. § (3)(g). Cf. the translation on e-page 11 of the 2010 Summary Report: "the commissioner 'expresses its opinion on propositions about the subjects of the environment and nature conservation, as well as ones concerning the acknowledgement of the binding effect of international conventions affecting the common heritage and common concerns of mankind; it is involved in the preparation of national reports based on these international contracts; furthermore it monitors and evaluates the enforcement of these conventions within the Hungarian jurisdiction". The meaning of the first part of this provision is obscure on the basis of either translation.  Back

24   "shall participate in cases relating to his tasks in the elaboration of Hungarian standpoint represented in the institutions of the European Union operating with governmental participation", s.27/B. § (3)(h). Cf. the translation on e-page 11 of the 2010 Summary Report: "in the cases related to [his] sphere of tasks, [he] takes part in the formulation of the Hungarian position represented in the institutions of the European Union operating with governmental participation." Back

25   "22. § The ombudsman may make a motion to the Constitutional Court for: (a) the ex post facts examination of the unconstitutionality of a statutory instrument or any other legal means of government control; (b) the examination of whether a statutory instrument or any other legal means of government control conflicts with an international agreement; (c) [text omitted from the translation on the Commissioner's website, presumably repealed?][;] d) the termination of unconstitutionality manifesting itself in an omission; (e) the interpretation of the provisions of the Constitution." Back

26   Section 27/B. § (3)(d) provides that the Commissioner "may initiate the conduct of supervisory proceedings against administrative resolutions relating to the conditions of the environment, and the suspension of execution thereof, and may participate in the suit as intervening party during its judicial review". This power is not included in this bullet list, because I do not understand it, and because I do not know how it relates to the seemingly connected powers in sections 27/E and 27/F.  Back

27  The Commissioner "may call on the person or organization illegally endangering, polluting or damaging the environment…to terminate this activity" s. 27/B. § (3)(a). Of these three categories of activity, it is not clear whether only the first, where the threatened impact has not yet occurred, needs also to be illegal. It is also not clear to me whether the illegality can be on the basis of a violation of the right to a healthy environment, or whether another illegal basis has to be established, and, if so, whether that other basis would need to be additional, or alternative. The power in relation to the third category is elaborated on further in section 27/C, and is discussed further below. Back

28   These provisions are contained in section 27/C. Within thirty days (or immediately if requested by the Commissioner, and in any event within five days), the addressee of the request to terminate or restore must notify the Commissioner of the measures taken. If the Commissioner considers the notification unsatisfactory, he may ask a court for injunctions to restrain the damaging conduct, to effect damage-prevention measures and to restore the environment.  Back

29   The Commissioner "may call on the competent authority to take measures relating to the protection of environment" s. 27/B. § (3)(b). This seems to be an unrestricted power. Back

30   This would seem to be the best understanding, in summary, based on sections 27/B. § 3(d), 27/E and 27/F, correspondence with the Commissioner and, of course, no knowledge of Hungarian administrative law.  Back

31   The Commissioner "may issue general recommendations in his sphere of tasks or recommendations for certain organs, institutions, authorities or persons in individual cases" s. 27/B. § (3)(c). "The addressee of the recommendation described in point c) paragraph (3) shall be obliged to respond in the merits within thirty days the recommendation issued for him (sic)" s. 27/B. § (4). This seems to be an additional, catch-all power. Back

32   The Commissioner "may familiarize himself with and express an opinion on the long-term plans and concepts of local governments for development, area settlement or those otherwise directly affecting the life quality of future generations" s. 27/B. § (3)(f). Back

33   The Commissioner "may participate on obligatory public hearings held on the basis of the provisions of the law which are connected to his sphere of tasks" " s. 27/B. § (3)(i). It does not seem that the Commissioner has the power to hold a public hearing (?), but he may request specified public authorities and administrative organs to hold one under s.27/G. § (2). Back

34   Section 27/H. § (1) and (2). Back

35   Section 27/H. § (3). Section 27/H. § (4) provides that "Private secrets, business secrets, state secrets, service secrets or other secrets defined by a separate Act may not impede the Parliamentary Commissioner for Future Generations in exercising his powers regulated in paragraphs (1)-(3), but the provisions relating to secrecy shall be binding for him as well unless otherwise prescribed by a separate Act", and, where "state secrets or service secrets" are concerned, the Commissioner must exercise his powers personally or through colleagues who have undergone "national security control" (s. 27/H. § (5)). Back

36   The Commissioner "may inform the public - by indicating the character and measure of the activity damaging the environment and the place of activity damaging the environment and its effect area, also including business secret - on the launching of his proceedings and the issue and contents of his recommendation also including personal data" s. 27/B. § (6). Back

37   2010 Summary Report, e-page 9.  Back

38   Knesset law (Amendment no.14), 5761-2001, Addition to Section 8 of Knesset Law 1994, clauses 30-48. The extract cited is from clause 31 (unofficial translation). Clause 30 defines the term "particular relevance for future generations" as referring "to an issue which may have significant consequences for future generations in the realms of the environment, natural resources, science, development, education, health, the economy, demography, planning and construction, quality of life, technology, justice and any matter that has been determined by the Knesset Constitution, Law and Justice Committee to have significant consequences for future generations".  Back

39   The Bill which led to the enacted law proposed that the Commissioner would be elected by the majority of MPs in a secret vote (see the table on page 207 of Shoham, Future Intelligence and Sustainability (Bertelsmann, 2010)). This book, written by Shlomo Shoham, provides the source of information for almost all the information contained in this summary. Back

40   It appears that if the Speaker does not exercise his right to re-appoint the Commissioner, he or she is obliged to appoint the six-person committee to come forward with its recommendations for candidates. This has not been done.  Back

41   Accessed on 10/11/10: http://www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm  Back

42   These functions are set out in Clause 32, which is entitled 'The role of the Knesset Commissioner for Future Generations'.  Back

43   Clause 33, entitled 'Independence'. Back

44   This paragraph is a summary of the provisons contained in Clause 34, entitled 'The status of the Knesset Commissioner for Future Generations'.  Back

45   Clause 35, entitled 'Acquisition of information'.  Back

46   The Act is available here (accessed on 4/11/10):
http://www.legislation.govt.nz/act/public/1986/0127/latest/DLM98975.html?search=ts_act_environment_resel&sr=1  Back

47   In Maori, 'Te Kaitiaki Taiao a Te Whare Pâremata'.  Back

48   According to the Commissioner's website, available here (accessed on 4/11/10): http://www.pce.parliament.nz/about-us/  Back

49   The Act is available here (accessed on 4/11/10): http://legislation.govt.nz/act/public/1990/0109/latest/whole.html  Back

50   The web page is here (accessed on 4/11/10):
http://www.pce.parliament.nz/current-work/suggest-an-investigation/  Back

51   See the Commissioner's annual report to Parliament for 2009, available here (accessed on 5/11/10):
http://www.pce.parliament.nz/publications/all-publications/annual-report-for-the-year-ended-30-june-2009  Back

52   This evaluation appears to be based on 15 MPs of the 25 MPs (of about 120 MPs) who returned survey forms stating 100% satisfaction on these three criteria (see the annual report for 2008, page 26, available here (accessed on 5/11/10):
http://www.pce.parliament.nz/publications/all-publications/annual-report-for-the-year-ended-30-june-2008  Back

53   See the annual report for 2009, Table 5 on page 23, available here (accessed on 5/11/10):
http://www.pce.parliament.nz/publications/all-publications/annual-report-for-the-year-ended-30-june-2009  Back

54   As above, page 12. Although declining, this compares (for example) with 169 requests for investigation, information or another service in 2003/4, 83% of which were from citizens, according to the annual report for 2004, page 28, available here (accessed on 5/11/10):
http://www.pce.parliament.nz/publications/all-publications/annual-report-for-the-year-ended-30-june-2004  Back

55   The Committee's website is here (accessed 29/9/10):
http://web.eduskunta.fi/Resource.phx/parliament/committees/future.htx  Back

56   An English translation of the Constitution is available from the Finnish Ministry of Justice's website, here (accessed 29/9/10):
http://www.om.fi/21910.htm  Back

57   For example: "Everyone has the right to life, personal liberty, integrity and security" (section 7);

"Everyone's private life, honour and the sanctity of the home are guaranteed" (section 10); "Everyone has the right to basic education free of charge" (section 16).  Back

58   A report by Professor Brain Groombridge, entitled Parliament and the Future: Learning from Finland (undated), available here (accessed on 16/11/10):
http://www.scotlandfutureforum.org/assets/library/files/application/1214405098.doc  Back

59   Ethical Prospects 2009, Part 3, 239-241, DOI: 10.1007/978-1-4020-9821-5_13. The Right of Future Generations, available here (accessed on 29/11/10):
http://www.springerlink.com/content/wl472161365u0469/  Back

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Prepared 10 January 2011