An article by Marc Willers QC of Garden Court Chambers and Emily Shirley of Our Children's Trust for the UK Environmental Law Association (UKELA).
At a glance
- With Brexit, environmental law will likely weaken with the loss of supervision from the CJEU and the cessation of the application of developing European environmental jurisprudence.
- This is an opportunity for UK Judges and lawyers to seal the gap by the re-application of an old but not extinct Common Law legal doctrine known as the Pubic Trust Doctrine (PTD).
- The PTD, like Magna Carta, is arguably part of the UK Constitution and will permit judges to scrutinise the Government's failure to properly safeguard the environment for current and future generations.
Leaving the European Union and the supervision of the Court of the European Union (CJEU) is likely to lead to a weakening of environmental protection in the UK. However, it is possible that the ancient Common Law principle known as the Public Trust Doctrine (PTD) could be revived by our domestic Courts and used to hold the UK Government to account. This article argues that now is the time for lawyers and judges to revitalise the PTD so that there is proper oversight and supervision of decisions taken by the UK Government which affect the environment as well as its environmental policy and legislation.
The PTD originates from Justinian law. Air, running water, the sea and seashore were incapable of ownership but open to public use. The State was understood as holding these vital resources on trust for its citizens. Certain natural and cultural resources were considered to be preserved for public use, and the government was charged with protecting and maintaining these resources for that purpose.
It seems that variants of the PTD resurfaced in the 12th Century when a more centralised legal system was developed. However, it the PTD was not then referred to as Roman law per se but as part of Common Law. One of the earliest PTD cases of note is that of Juliana the Washerwoman 1299 concerning a humble Wintonian washerwoman who successfully challenged her powerful neighbour, John de Tytyng, the mayor of Winchester, from cutting off her use of the watercourse. When giving judgment for Juliana, King Edward 1, a great believer in the Common Law, held that water had always been available for use by all; and significantly also he decreed that it was unlawful to pollute it with a number of pollutants, including animal blood and human excrement.
However, over time the UK Courts restricted the scope of the PTD and it is now considered by many to do no more than give rise to a rebuttable presumption that the public has the right to fish, navigate and access the sea and tidal waterways. To date, these presumptions have not been found to impose a positive obligation on the state to actively take steps to protect the public rights. However, the UK Courts have not expressly overruled the Juliana the Washerwoman case and there may be good reason to resurrect the PTD.
As result of Brexit, one question arises forcefully and that is, who now will be responsible for protecting our air, water and other resources for current and future generations in place of the CJEU? Our long term survival will require compliance with stricter, more effective and enforceable environmental laws but who ultimately will oversee and enforce the protection of our air, water and other resources for current and future generations, when our Government fails to do so? Judges must step in and provide this vital constitutional role as they once did by invoking the PTD.
In the USA, the PTD is recognised as emanating from English Common law with roots in Magna Carta, and it has retained much of its original raison d’etre. By a strange quirk of fate, the PTD has recently been deployed in a significant climate change case brought against the President of the USA by another claimant named Juliana. On 10th November 2016, a US District Judge gave a preliminary judgment in the case and ruled; ‘Exercising my reasoned judgment, I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society’. The Juliana case will now proceed to trial and the Court will consider, amongst other points, whether the US Government has breached the PTD.
What scope therefore has the PTD in framing what comprises our messy and often misunderstood British Constitution? Can Parliamentary Supremacy be restrained by the PTD when the protections afforded to Crested Newts for example, are removed and/or weakened? Can the UK Government be held to account for failing to implement measures to avoid dangerous climate change in line with the Paris Agreement Whatever form Brexit takes it seems clear that the UK will still be subject to the European Convention on Human Rights (ECHR).
In the absence of any supervision by the CJEU our Courts will need to use what tools it has at their disposal to scrutinise and enforce environmental law and to right environmental wrongs. No doubt there will be cases where the Courts will be able to utilise the ECHR but their ability to carry out this function will be greatly enhanced if the PTD is resurrected.
About the authors
Emily Shirley is the UK representative of Our Children's Trust. Our Children's Trust is a US based NGO responsible for the ongoing climate litigation in the US based on US Constitutional law and the PTD. Emily is working on bringing climate change related and other environmental cases in the UK in order to better protect the environment.
Marc Willers QC is the Joint Head of Chambers at Garden Court Chambers. He specialises in environmental law, planning law and human rights, with a particular emphasis on the representation of Gypsies and Travellers. Marc was named Legal Aid Lawyer of the Year in 2011 and he is the co-editor of Gypsy and Traveller Law, (Legal Action Group) and the editor of the Council of Europe’s handbook Ensuring access to rights for Roma and Travellers: The role of the European Court of Human Rights. Marc regularly writes for Legal Action and other legal publications and presents seminars on human rights and other issues both in the UK and abroad.
This article was originally published in the March/April edition of the UKELA e-law newsletter - Willers, M. & Shirley, E. 'The Public Trust Doctrine's Role in Post Brexit Britain', March/April 2017, Issue 99.