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You are here: BAILII >> Databases >> United Kingdom Judiciary Speeches >> Lord Woolf, Lord Chief Justice of England & Wales : Environmental Risk: The Responsibilities of the Law and Science [2001] UKSpeech 1FZMU (24 May 2001) URL: http://www.bailii.org/uk/other/speeches/2001/1FZMU.html Cite as: [2001] UKSpeech 1FZMU |
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I am proud to have been asked to give this lecture in honour of Professor Hall. As the very moving tribute you have just heard made clear, David Hall was a very special man, a man who has left us a very valuable inheritance in the Environmental Law Foundation (ELF).
Thanks to my friend, Martin Polden, I have been able to keep in touch with the growth of its activities since the creation of ELF almost 10 years ago. The activities are ones of which I enthusiastically approve and without David Hall's help, it may never have happened. Included amongst those activities is the representation of local communities. These are communities who would otherwise find it impossible to be heard as to issues that worry them deeply concerning the environment in which they live. ELF provides them with access to the skilled experts who can ensure they are heard. Indeed, that they are heard on the issues to which the title of my talk refers.
Why choose this title?
Public interest in and unease about environmental risks and health hazards has reached exceptional heights in recent years. There has been the concern about BSE and the recent outbreak of foot-and-mouth disease. There have been worries about genetically modified (GM) crops and the mass production of food we eat. The third report of the Select Committee on Agriculture illustrates the problem when it states:
"Our primary concern is how to ensure that farmers and consumers alike can make informed choices on whether to make use of GM technology. This objective has not been well served to date by the confusion and hysterics which genetic modification has engendered in the United Kingdom. The first modified consumer product to reach the shops was a tomato paste, launched with a proper educational campaign, rewarded with satisfactory sales but withdrawn in the wake of panic, whipped up by a campaign against 'Frankenstein foods'." (Endnote 1)
There are also anxieties about the effort of science and technology on our bodies. Witness the fears and ethical dilemmas associated with genetic cloning or the anger expressed by relatives of deceased hospital patients who secretly had body parts removed for scientific research.
Whether it is the danger of cancer from mobile phones or noise from a new airport terminal the seemingly endless acceleration in the development of science and technology brings with it novel challenges to society.
The effect of science on the environment and the need to take risks, if development is not going to be fettered, poses dilemmas not only for the consumer and the politician but also for the law. How should the law react to these new challenges? An attempt to address that question forms the substance of this lecture.
Defining the concepts
To start, we must be clear what we are talking about. In this lecture the concept 'environment' will be given its broadest meaning. Our environment is the mass of circumstances, objects, and conditions that surround, influence and act upon us. The environment both reflects and determines our evolution and ultimately our survival. In this broad sense environment encapsulates more than the trees and the oceans. It includes both the population and the objects they create. It is the aggregate of all the factors that affect us. It is their constant development by us, due to the advances of science, which can either increase the quality of our lives or threaten our health and the surroundings in which we live.
This is a much broader concept than that which lawyers usually have in mind when they talk of 'environmental law'. They are usually referring to the environment in the narrow sense of Planning. Planning is the most widespread form of regulation by law of the environment and to many lawyers, environmental law means only that.
But if we study the development of the law regulating the environment it becomes evident that the purpose of legal regulation reflects a broader approach. Consider the great Public Health Act of 1875, the grandfather of much of our local government regulatory law. That Act was a response to a failure of the law. Both statute and common law failed to address the problems of science and the environment which (as in the law of nuisance) was too wedded to interests in land to develop a well rounded public response to the challenges of the nineteenth century.
The rapid technological and industrial development of that period, the growth of factories, mass production and large urban conurbations led to increasing threats to the environment and health. Smog, slum housing and sewage running down open streets caused disease and constant threats to human health. The 1875 Act was not only concerned with regulating those threats, it attempted to deal with the whole raft of problems caused by the new industrial age. Penalties were brought in for the selling of diseased meat, and an unlicensed 'tripe boiler' could be fined £50! Never before had the law interfered to this extent in industry. But health risks and social disquiet made such interference necessary - and not only here but throughout the industrialised world.
In the present period of technological change, described by some as a "second industrial revolution" perhaps we need the courage to stand back and question our past assumptions as lawyers. Is the law, in the way in which it has developed in relation to the environment, able to deal satisfactorily with the new risks science poses?
By risk, I mean the threats or dangers that society calculates are or are not worth facing for the sake of the greater good. Any development is dependent on taking risks; new medicines, new forms of energy or communication, new ways of more cost effectively satisfying a growing demand in varied food products all pose risks. Society cannot and should not avoid taking such risks, the question we have is one of risk assessment. What level of risk is acceptable? A balance has to be drawn between conflicting interests, with the arrival of the Human Rights Act 1998, the drawing of balances has become part of the daily diet of judges, but is this the correct role for judges in contemporary society?
Many people instinctively believe that this is a question for scientists. But the concept, 'science', describes a structured and formal process by which the comprehension of demonstrated truths or observed facts is systematically achieved or sought. Science is not about value judgments or policy decisions. Science can only provide the facts on which others can make those judgments.
I suspect that one of the reasons there appears to be growing public distrust of scientists today, particularly official scientists, is because they were treated as almost infallible in the past. If yesterday a scientist said eggs were good for one's health, it was assumed he must be right. If another says today that eggs are too high in cholesterol then the public are left confused and untrustworthy of science and scientists. But both scientists may have been 'right' when they came to their conclusions: science is not an absolute. Scientists cannot know all the answers but they can tell us some of the risks. It is then up to society to determine which risks are worth taking.
Democracy is the best system we know of, for the determination of such important societal choices, and so the question of risk assessment, that is, of policy, is fundamentally one for elected politicians and for government. Unelected quangos of experts are no better qualified to make such decisions than are judges or lawyers. Fundamental questions of risk assessment such as what form of energy we should have, weighing potential consequential economic benefits and environmental hazards are questions of policy that should be left to policy-makers. But it is critically important, if our democratic system is to work properly, that such decisions are made and are seen to be made on sound advice.
The role of law
How does law fit into all this? In three fundamental ways:
Firstly, law should ensure that the standards set down by policy makers are enforced fairly and efficiently;
Secondly, law needs to ensure the policy-maker's decision making process itself is of the highest standard. Policy-makers should not make important decisions concerning the environment and affecting human health without taking the best available scientific advice. Where a policy is supposed to be made to protect the environment, irrelevant considerations, such as narrow economic or political interests, should not distract the decision maker etc. The decision making process should be as open and accountable as possible, particularly where local interests are involved: it should allow relevant representations to be considered;
Finally, the law has a responsibility to protect the fundamental rights of the individual even when they conflict with the policy choices of the democratic majority. Measures aimed at the protection of the environment as well as those that threaten it may impact on people's right to life, property, privacy, conscience (Endnote 2) and their right to a fair hearing. Here the law has the difficult job of balancing rights of the individual against the will of the majority as expressed through Parliament. Since the incorporation of the Human Rights Act this is an increasingly relevant area for the law.
Regulating the Environment in Britain Post the Human Rights Act
Rightly, there has recently been greater debate about new ways in which the environment should be regulated within our jurisdiction. An example is the discussion leading up to the recent decision of the House of Lords in the so-called Alconbury planning appeals (Endnote 3). The issue was whether the present planning regime provides those involved the fair hearing of their case, to which they are entitled under Article 6 of the ECHR. The Secretary of State won the appeal in that case and our planning regime seems to have survived, for the moment at least. But the issues raised in the combined appeals are highly important.
No one could consider our inquiry procedures wholly satisfactory, they are expensive and can be intolerably drawn out. However, the Lords overruling the Court of Appeal, decided that the current planning regime, in which it is possible for the Secretary of State to determine a party's application (a procedure only used in about 2% of applications, the independent planning inspectorate review the other 98% (Endnote 4)), was not incompatible with Article 6(1) ECHR because there was a right to judicially review the Minister's decision. The fact that judicial review is limited to a review of the decision making process, rather than the merits of a case, did not mean there was no right to an impartial tribunal because it was not for the courts to substitute themselves for the decision maker as to matters of policy and as to what is in the public interest.
This was referred to most notably in the speech of Lord Hoffman as the "democratic principle". He argued that whilst property owners had rights over their land (Article 1 of Protocol 1 ECHR), it is right that the State should have the power to interfere in those rights where it is necessary in the public interest. To take the determination of when and whether something is in the public interest away from democratically elected politicians and put it into the hands of impartial tribunals Lord Hoffmann considered would offend against the democratic principle.
This principle is, of course, important not only from a constitutional point of view but from an environmental point of view because it allows for the legitimate interference with land uses that are destructive to the environment or the public interest. It can help to involve the public in these questions, something essential to overcome the type of public anxieties previously described. If a local council or minister allows a nuclear wasting dump to be built in an area of high population, it is important that the public can hold the makers of such a decision accountable. You will recall the times in the 70's and 80's when road inquiries were perceived by members of the public as not giving them an opportunity to be heard and in response to real public anger the rules had to be changed to provide objectors with a greater ability to object. Not that this has satisfied the hardened tree dwellers or 'swampees' with which the road builders are confronted today and who perhaps have been lost to the democratic process.
There is also the perception that politically expedient decisions, often made by ministers unknown to the public or their civil servants, may take priority over what is really in the interests of the public and the environment. Questions are asked as to whether expediency has lead to the best advice not being sought in the first place. In such circumstances the law should be able to intervene, but does it or can it or should it?
For instance, the practice of recycling animal protein in ruminant feed, as part of intensive farming practices was found to have caused BSE to develop into an epidemic. (Endnote 5) The interference of an independent and expert regulatory body at an early stage might have prevented this crises by demanding tough action at the earliest possible opportunity.
The concerns for health and the welfare of the environment are themselves human rights that require protection and evaluation. Article 8 ECHR requires respect for private life. It has been successfully relied on by Italian villagers against their government in relation to the local polluting chemical works, Guerra v. Italy (Endnote 6). The European Court of Human Rights held that the Government's failure to provide local people with essential information, enabling them to assess the risks to themselves and their families which were involved in living next to the works, was a violation of their Article 8 rights.
Similarly in Lopez Ostra v Spain (Endnote 7), a state subsidised tannery waste centre built 12 miles from the Applicant's home created a risk (though no identifiable danger) to health and was therefore a violation of the Applicant's right to peaceful enjoyment of their private life.
In both these cases the Court was able to balance the public interest against the rights of the individual complainants. A tannery was not considered so important to the national economy that the interference in the Applicant's rights was justified. On the other hand, Heathrow airport was seen as so important to the UK economy that the interference in local resident's Article 8 rights by noise was not disproportionate, Powell & Regan v UK (Endnote 8). The same decision was reached in relation to the importance of a nuclear power station to the French energy needs and economy compared with the privacy rights of the owners of a nearby 18th century Chateau on the banks of the River Loire S. v France (Endnote 9).
Applicants have also tried to rely on Article 2 ECHR (right to life) in environmental cases. Though not yet successful, it is possible that there may be potential under this head. In Guerra (above) two of the concurring judgments held that a public authority may have a positive duty to protect life in such a case. In L.C.B. v. UK (Endnote 10), the Applicant's father was involved in atmospheric testing on Christmas Island between 1957-1966. He later contracted leukaemia. The complaint failed because the UK government was not aware of the risks at the time of testing. However, it was held that had the authorities known of the dangers at the time, they would have had a duty to inform the Applicant's father as part of their obligation to protect his right to life.
What these cases demonstrate is that an impartial tribunal, the Human Rights court, is capable of balancing the public interest against the rights of the individual. The greater the significance of the public interest, the more likely administrative bodies will be given discretion and the greater the threat to an individual's Convention rights, the greater the scrutiny of the administrative body. The Human Rights Act may make it both possible and necessary for some level of intervention by independent tribunals into the policy behind and environmental decisions where fundamental rights are involved. Yet a margin of appreciation, or administrative discretion, must be maintained where important public policy issues exist.
The Alconbury decision may also open the door for some further independent scrutiny of the planning process by the courts. Lord Slynn of Hadley said that the time has come to recognise the principle of proportionality as part of English Administrative Law (Endnote 11). Not only may the courts be able to balance the merits of decision in a different way to the weighing done by the decision maker, but in exceptional circumstances they may also be able to re-consider some of the merits. Whilst judicial review avoids a complete re-hearing of the case, the consideration of the merits can be incorporated into the test of whether the decision maker has taken into account irrelevant considerations etc. (Endnote 12) Lord Nolan said he agreed with the speech of Lord Slynn (Endnote 13), and Lord Clyde said that:
"It is sufficient to note the recognition of the idea of proportionality, or perhaps more accurately, disproportionality, and the extent to which the factual areas of a decision may be penetrated by a review of the account taken by a decision-maker of facts which are irrelevant or even mistaken (R v Criminal Injuries Compensation Board, Ex p A [1999] 2 AC 330, 344-345.)" (Endnote 14)
So, if a minister wrongly takes into account the effect on a contract the government has with the developers, or indeed the disproportionate pressure of a local NGO in the determination of the decision, whether to grant planning permission, this very consideration might be challenged. If discredited scientific evidence is preferred to more reliable contradictory evidence by the Minister, this too may be reviewable. So too may be the Minister giving undue weight to economic interests over scientific advice concerning threats to health (proportionality). There are, however, dangers in this process which must not be ignored. The fear of the intervention of the courts and the chaos which their intervention can cause the policy makers can result in undue reticence on the part of the policy decision-makers. 'No action' can be as bad as the 'wrong' action.
A more radical approach is to consider whether it is possible to have a new body of regulatory tribunals for the whole scope of issues that arise in relation to the environment. The fundamental reason for the decision that this was not necessary, in relation to planning law in the Alconbury case, was that the legislature had decided that the planning regime would include the right of a Secretary of State to 'call in' certain applications of public importance, and the role of the Court was to decide whether such a power was compatible with Article 6 rights. But there is no reason why a change in policy could not herald in an Environmental Court or Tribunal to regulate and protect the use of the environment.
This, so far as I am concerned, is not a new question. I fear some of my audience may even be aware of my 1991 Garner Lecture, "Are the Judiciary Environmentally Myopic?" (Reproduced in the Journal of Environmental Law, Vol 4, No 1, p. 1). My proposals are yet to find favour!
Other proposals have fortunately had greater success in being implemented. I have in mind the Human Fertilisation and Embryology Authority website.
However Environmental Courts do now exist in New Zealand and several large Australian states. Countries as ecologically and environmentally different as Ireland and Bangladesh have announced their intention to set up such courts. (Endnote 15) In other jurisdictions different variations have been tried. For instance, the Indian Supreme Court has proclaimed that the right to a pollution-free environment is part of the right to life under the Constitution and has developed its own environmental jurisprudence and that has ordered an end to the pollution of the River Ganges by tanneries and special measures for the protection of the Taj Mahal from air pollution damage. (Endnote 16) Several European states, particularly amongst the 'new democracies' of Eastern Europe actually have specific Articles in the Constitution protecting environmental rights (Endnote 17).
In May 2000, the Environment Court Project published its final report under the distinguished Chairmanship of Professor Malcolm Grant. (Endnote 18)
They found there was limited effective integration of planning and environmental decision-making beyond the Planning Inspectorate, a lack of access to environmental justice, particularly because of cost and delay, a potential need to address the constitutional position of the Planning Inspectorate, a weaknesses in the enforcement mechanism across the board in planning and environmental matters because of the lack of any developed civil enforcement process, a lack of expertise in magistrates courts to handle complex environmental criminal matters or regulatory appeals, and perennial difficulties in the running of major public local inquiries into complex projects involving high technology or extensive new infrastructure. (Endnote 19, 20)
In October 2000 the Government rejected the idea of radical reform and the creation of new Environment Tribunals or a Court. (Endnote 21) In view of the decision in Alconbury, the prospect of a separate Environmental Court looms even less on the horizon than it did before. But whether we go down the road of establishing a separate court now or not, it is clear that the there is great pressure for the law to play a significant role in the environment. One of the most pressing reasons for this is the unprecedented level of public distrust about science and the environment.
The Royal Commission on Environmental Pollution suggested a number of causes of the undermining of public confidence in matters related to the environment:
The Royal Commission's main recommendation to increase public confidence was a clarification of the procedures that should be followed in setting environmental standards. This was to try and properly understand the various complex considerations that have to be taken into account in the risk assessment/environmental policy field and to facilitate the involvement of the public in these decisions. (Endnote 27)
The setting and implementation of such standards should be a job for society as a whole, in which politicians and parliament must take the ultimate responsibility for standard setting. Scientists need to provide the best possible advice on which to base such standards and the law must implement and support those standards and enable the public participate in their evolution.
Whether this takes place through the formation of a special Environment Court, specialist Environmental Tribunals or through the Judicial Review of Ministers decisions, the law should ensure that one set of often anonymous experts, scientists, are not simply replaced by another, lawyers. Rather openness and public participation should be the key.
Again, we return to the importance of setting standards; for standards to be set openly and democratically, in accordance with the rule of law and the best scientific advice, and for those standards to be enforced rigorously.
The reason such standards are so important is because risk assessment is a matter of policy. Scientists are rarely able to advise us of activities or products which are either 100% safe or 100% dangerous, it is a matter of determining what level of risk is worth taking.
The Precautionary Principle: Problems and Analysis
One key development in environmental protection policy making has been the so-called 'precautionary principle'.
Put simply, this principle means that policy makers are entitled to take measures to prevent environmental damage, even when they do not have full scientific evidence of the harm involved in the activity they are banning or restricting. For instance, if it was established that there was a 30% chance that eating beef might cause the human version of BSE then prohibition might be justified. Some have criticised this principle as it can lead to unnecessary state regulation. A farmer whose livestock is slaughtered because of the possibility it might catch foot-and-mouth disease, or who has a ban imposed on the export of his meat because of the possibility it might have BSE and the further possibility that somebody eating it might contract CJD (human version of BSE), is understandably upset that his livelihood may be threatened when there is no proof of danger.
But a modern understanding of science informs us that there are very few absolutes. It is easier to demonstrate a causal link between smoking and lung cancer than it is between using a mobile phone and cancer, but that is different from saying we have full proof of the link. The same is true about carbon dioxide omissions and the damage to the ozone layer. Virtually any realistic environmental policy must rely, to some extent, on this principle. The principle has increasingly gained official recognition. (Endnote 28)
The important issue in relation to the principle is what standard to set, how it is set and who sets it.
Standards may vary. Society is generally more prepared to risk the possibility of death by road accidents that it is of death in rail accidents: if the precautionary principle was applied to transport then a higher standard would be set for rail travel than road travel. Commonly used traditional drugs, such as Paracetamol, have risks associated with their consumption. Society is generally more prepared to live with those risks than it would be for a new super anti-headache drug suddenly introduced on the market with the same level of dangers. But if a drug that cured Aids was discovered we would probably accept its distribution even where the risk of fatal side effects was four or five times the level of other proscribed drugs. Rational choices can be made, on the available scientific evidence and fitting the needs of a society.
But there are at least two problems that can arise with the precautionary principle.
The first is political and economic. If governments ban chemicals or other products because of a fear, however well grounded, of their potential hazards, then in the absence of strong if not yet complete scientific evidence of their danger, the producers of such products will complain of anti-competitive practices. In our era of globalisation and free trade, international associations may well step in to demand countries accept products that they cannot prove are dangerous. The World Trade Organisation (WTO), for instance, does not operate on the precautionary principle. When certain nations and the EC banned the import of American growth hormone injected beef because of health fears, the WTO passed decisions declaring the ban unlawful.
On the other hand, there is always a danger that protectionist governments may hide behind the principle to protect their own producers from foreign imports. This was the allegation many made against those European governments who imposed a ban on the export of British beef. When standards vary between different countries there is a real danger of 'high' standards being selectively applied to protect national producers or standards being driven to the lowest common denominator in the interests of free trade and competition. To strike the correct balance, trans-national institutions must develop common policies based on society's realistic expectations in relation the environment.
The other problem with the principle flows from this first one but relates to the role of law in relation to the principle.
If decision makers decide to ban a chemical, on the basis of scant evidence that there may be some possible danger involved, can the manufacturer of that chemical successfully judicially review the decision maker on the basis that he did not have the relevant facts in front of him, considered irrelevant facts or wrongly weighed the available evidence in reaching the decision to ban the chemical? This again raises the prospect of the courts substituting themselves for the decision maker - the courts themselves may end up setting standards if such reviews are allowed. But the absence of any possibility of review would mean decision makers might be able to arbitrarily ban things without sufficient, or relying on extraneous information. The only long-term solution to this dilemma is to pursue the attempt to reach rational and socially acceptable standards, which would certainly include standards reached on the basis of the precautionary principle, and to then ensure such standards are only departed from in exceptional circumstances. But rigid standard setting has obvious dangers as well. (Endnote 29)
Freedom of information and openess
The other fundamental change necessary to restore public confidence in science and to give society more control over the environment is to break through much of the government secrecy that has surrounded science and the environment in the past.
The Royal Commission on Environmental Pollution found:
"An underlying theme which has run through all the chapters of this report is the need for transparency and openness in all aspects of environmental management, and especially at all stages in the policy process that leads to the setting of environmental standards. The functions and composition of all the bodies involved in setting standards should be public knowledge and all the data, models and assumptions they are using should be readily available to the public. There should be opportunities for the public to exert an influence on what happens at each stage, beginning with the initial recognition of a problem." (Endnote 30)
The immense secrecy that often surrounds areas of environmental controversy, such as the experimentation with GM foods, or the BSE or foot-and-mouth outbreaks often encourages public distrust. There is then a viscous spiral of secrecy, leading to suspicion and sometimes irrational hysteria about the environment which in turn leads to more secrecy.
But to overcome the deep public anxiety and distrust that today surrounds all things scientific and to ensure the environmental health of our world is recognised, openness is a necessity. The setting up of an Environmental Tribunal, preferably international, could represent a colossal leap forward for freedom of information and accountability in the environmental sphere. But in the absence of such a radical development it falls partly on the shoulders of the law, particularly in out new era of human rights, to guarantee a greater openness and participation in environmental policy making.
Conclusion
One of the reasons Professor Hall and others set up this Foundation in 1992, was to redress the imbalance they recognised, of lawyers being seemingly more interested in defending and assisting those responsible for polluting the planet and damaging the ecological balances, than protecting and representing those suffering from the consequences of that environmental damage.
It is hoped, with the increasing interest in environmental issues amongst the public in general, and with the assistance of ELF we are beginning to see the balance redressed.
What would make the difference is:
Others will have different prescriptions which could protect us against future diseases and relieve our present ailments. All that I say with confidence, is that there is a need for a new wonder medicine! (Endnote 31)
Endnotes
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