In Belfast today with Friends of the Earth NI and Environmentalists for Europe, speaking along with Stanley Johnson (Boris’s dad) on the reasons why environmentalists might want to vote to Remain. Here’s my opening statement:
Tree-huggers, polar-bear pesterers, dolphin-worshippers. That’s us, isn’t it?
But the environment isn’t just the place where other species live; it’s where we ourselves live too. As environmentalists, we’re fundamentally concerned with making this place; this land, this air, this water safe for our fellow humans as well as for other living beings.
So, what does European membership mean for that task, and, first of all, where would we be without it?
The English common law, as operational across most of these islands, is individualistic, property-based and economically libertarian. “An Englishman’s home is his castle,” especially if it happens to be a castle. He (or she, and increasingly often it, with the growth of corporate power) is free to do anything that isn’t specifically prohibited.
Which sounds great. Only to do many of those things that people want to, the things that make money, you need physical power – your own or someone else’s – officially-sanctioned property rights and economic resources. And undoing those things is quite a different matter. You can pollute a river with no difficulty at all, but you can’t unpollute it.
When one landowner’s freedom to do exactly as he pleases interferes with another landowner’s freedom to do as exactly as he pleases, the common law will adjudicate, but it generally won’t help the poor peasant who suffers as a result of either. Or both.
The development of the law of negligence, which has filled in so many gaps in the old common law, isn’t much help in environmental cases either. It requires demonstrable fault, and foreseeability of the harm that’s caused. Any activist will know the stultifying power of those two deadly words ‘best practice’.
So, if the common law doesn’t stand up for us, for the health and well-being of ordinary people, what about statutes? The nineteenth and early twentieth centuries saw a paternalistic concern for public health which led to laws such as the Alkali Acts of the 1860s, to inspectorates and regulatory bodies. They were a lot better than nothing but they can’t help us today. Apart from the fact that, of course, most are now entirely anachronistic, they don’t change anything about the basic power relationships of predatory capitalism. All they do is hedge it around with a little decorative border. They say ‘You can continue to exploit people and resources, to inflict permanent damage on our health and our environment, just not in these specific ways’. And that very specific nature means that they’re instantly outdated, as corporations find different ways to achieve the same ends, they don’t set precedents, and they can’t be used to establish any wider rights. And they’re optional. It’s entirely up to the individual government of the day whether it chooses to grant Parliamentary time for new legislation. Do we really think, looking at the Westminster or Stormont benches….?
No. Which leaves us with what – the planning system? Once that had aims that were to do with positive social outcomes, with the common good. But its main purpose, in the twenty-first century, is increasingly the facilitation of the market. And remember, a Brexit planning system would be one without environmental impact assessments.
International law? We’re scraping the barrel now. ‘Aspirational’ is the polite word for most of it. World leaders gather to tell one another bedtime stories about Never-Never Land, while most of them would fight tooth and nail against its ever coming into existence. In so far as international law works at all, it works to protect the commercial interests of the rich against the environmental rights of the poor.
That, sadly, is the dark truth behind the jolly slogans of the Brexiteers. ‘Freedom’ means licence for corporations to enrich themselves, regardless of the externalities of pollution, climate change, sickness and death. And it means the removal from our hands of the few tools we have to build a better future.
What are those tools that European membership shares with us? There’s the substantive law, of course, half a century’s worth. Nine years ago it was calculated that 80% of member states’ environmental legislation stemmed from EU policy. That includes countries whose protections go beyond the European minimum (I know, unthinkable isn’t it?) so for the UK it’s probably higher. Without those laws and regulations, so cynically dismissed as red, or sometimes green, tape by those whose friends are inconvenienced by them, our health and wellbeing would dramatically plummet. If it’s tape, it’s the kind you keep in your first aid kit to stop yourself bleeding to death.
But even more important than the specific legislation are, I think, the ideas that inform and shape it. Rather than simply that hedging around of the licence to destroy, we’re seeing the emergence of environmental human rights, the rights, we might say, of the commons as well as the castle.
We see that in the nature of European directives and action programmes, which don’t, like the old UK statutes, limit their operation to particular sectors and industries but integrate them, looking at the total and cumulative effect.
We see it in the principles that the European Union has laid down: that the polluter pays, that development must be sustainable, that the precautionary principle should guide our response to incomplete or ambiguous evidence.
We see it in the decisions of the European Court of Human Rights. The European Convention on Human Rights has no specific mention of environmental rights, but we’ve seen a willingness to interpret Article 8 about respect for private and family life to include the right not to be subject to severe air and noise pollution. We’ve seen that Article 2, the right to life and Article 10, freedom of expression, can include environmental rights, and critically that Article 6, the right to a fair hearing and Article 13, the right to an effective remedy, are relevant to the conduct of regulators and planning authorities as well as that of the courts.
And we see it most clearly in the European implementation of the Aarhus Convention. Without the EU, Aarhus, for us, would be just another well-meaning story, a nice woolly UN convention following the feel-good Rio Declaration. Its assertion of the environment as a basic human right, linked to the right to life, would be a pious fiction and its three pillars: environmental justice, environmental information and the right to participation would be about as much use as a cotton-wool screwdriver.
Now I, along with many others here, would be the first to say that the implementation of Aarhus, especially here, is very far from being as it should be. And I have no illusions that our enactment and enforcement of European law generally is something to be proud of. If the UK as a whole is something of a malinger when it comes to the environment, then Northern Ireland hasn’t got out of its pajamas yet.
But we have the tools, and we have the rights. And we have real and effective ways of using them. The European doctrine of direct effect says that if our government doesn’t transpose European directives properly, we as individuals can still rely on them. And European fines for non-compliance hit the powers-that-be, especially at Stormont, where it hurts – in the wallet.
I’d like to see us treat this referendum as a wake-up call, not just a dreary rehearsal of the economic pros and cons of Brexit, but a reminder to ourselves and others of the more important, long-lasting and critical aspects of being in Europe. And perhaps that reminder will inspire in us a determination to use the rights and those remedies which are under threat, to use them for ourselves, for our neighbours, our children and the generations to come.