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Socialist Lawyer issue 54

Courting disaster unless we act now

The international failure to reach any meaningful agreement at Copenhagen 2010 was a crime against the planet, its current occupants and future generations. Oil companies will have been celebrating, whilst the rest of us bemoan the failures of our leaders to tackle the most serious crisis humanity has ever faced. Nothing will be achieved from a non-binding document to which no country has signed up.

At times of crisis, most lawyers’ thoughts turn to legislation and litigation. Can the tools of our trade help to save the planet? Legislation most certainly would. Since climate change is a global threat, our response also has to be global. A Universal Declaration of Planetary Rights, as called for by Polly Higgins, could enshrine the right not to be polluted. Companies will howl, and rely on greenwashed adverts to convince the rest of us that they care about the environment. But the comparison with the slave trade is instructive. Slave-traders resisted abolition. They argued that Britain’s economic prosperity depended on it, and proposed voluntary capping of the numbers of slaves to be imported. But the world did not stop turning when the slave trade was abolished.

The slavery example is a good one, but it also shows the limits of legislation. It took decades for the institution of slavery to be declared illegal by European and North American governments. Freed slaves continued to suffer the institutional effect of slavery: racism, economic exploitation and assaults on their civil rights. Two hundred years after the abolition of the slave trade, there is still some effective slavery in the rich North: trafficked sex-workers, domestic workers, etc.

The crisis of climate change is so immediate that we cannot wait two hundred years for attitudes to change.

Can litigation help to prevent climate change? We’re pleased to report on some successful litigation – indigenous groups in Brazil fought as far as the Supreme Court for the rights to their ancestral land against large-scale rice growers and won. But their victory is clouded by reservations allowing for government and defence industry needs to take precedence. Richard Harvey surveys some of the success stories and tragedies of environmental law cases: from class actions against tobacco companies to record their role in promoting lung cancer, removing the tetraethyl component of petrol, to recent litigation brought by indigenous people against multi-nationals’ incursions onto their lands, and against the governments who are frequently hand-in-glove with those multi-nationals. As Richard notes, the record is a mixed one. The example of Shell in Nigeria is instructive: despite a robust judgement against them, Shell has avoided drawing any real schemes to avoid environmental damage.

A real problem in environmental litigation is its expense. Conditional fee agreements may have enabled solicitors to represent claimants, but provide no protection against the risk of paying the other side’s costs. If you’re litigating against Shell, these will be huge. The traditional rule that the loser pays may be fine in disputes where there is equality between the parties, but environmental cases pit David against Goliath. Goliath has the resources to spin out litigation, to take spurious points, to overwhelm the Court with expensive expert evidence, and generally to throw money at the litigation. The Jackson report fails to grapple with this problem, as James Thornton sets out.

Finally there are criminal cases, initiated by the state against environmental activists. In Britain, we remain cheered by the Kingsnorth Six result, when the Court heard expert evidence that led it to its conclusion that the Defendants’ actions (trying to paint ‘Gordon’ down the side of a power plant chimney) were motivated by selfdefence and the urgency of preventing climate change. We wish our comrades from Greenpeace Japan the best of luck: in a travesty, their attempts to expose the illegal sale of whale meat have resulted in the activists themselves being charged with its theft.

The Haldane Society is well aware that lawyers elsewhere in the world face far worse threats than the attacks of legal aid – important though the campaign to Save Legal Aid is (for more details see Laura Janes’s Young Legal Aid Lawyers column). We hosted a talk byYessika Hoyos Morales, a Colombian human rights lawyer, and Edre Olalai, from the National Union of Peoples’ Lawyers in the Philippines. Both of them have had colleagues, friends or family members murdered by the state and lawyers can be considered legitimate targets, along with trade union activists, political activists and anyone else fighting for their own rights, and those of others. We will maintain these links by sending an international delegation to Colombia to report further on human rights’ abuses, and by participating in election monitoring in the Philippines in May.

Finally, the British Government’s assaults on civil liberties, in the name of the war of terror, have taken a beating in the Courts recently. Control orders can no longer be based entirely on secret evidence, damages claims brought by those subject to control orders have not been ruled out and secondary legislation freezing the assets of socalled suspected terrorists (who are not given any opportunity to challenge that ruling) has been declared contrary to the Human Rights Act. In addition, the Court of Appeal has released the earlier finding by the High Court that British security services knew about the torture of Binyam Mohamed and colluded in it.

Liz Davies, chair, HaldaneSociety lizdavies@riseup.net