placing sustainable development at the heart of government in the uk: the role of law in the...

Placing sustainable development at the heart of government in the UK: the role of law in the evolution of sustainable development as the central organising principle of government

Victoria Jenkins* Lecturer in Law, University of Wales, Swansea

The government has made a commitment to ensure that sustainable development is placed at the heart of decision-making. ' The UK's strategy has primarily involved the development of voluntary measures to achieve sustainable development in policy-making. These measures are monitored by a Sustainable Development Commission and, most importantly, a parliamentary Environmental Audit Committee. However, a number of public bodies also have a statutory duty in respect of sustainable development. These duties do not create enforceable legal obligations, but may have significant value as a clear statement of policy on the achievement of sustainable development -providing political leadership at the highest level. It is essential to this aim that the government provides a clear message regarding the objective of sustainable development. However, close investigation of these duties reveals not only a partial legal framework, but a number of inconsistencies in the government's approach to the achievement of sustainable development.

INTRODUCTION

The government has made a commitment to ensure that sustainable development emerges as the central organising principle of government. In pursuit of this aim it has developed a number of initiatives originally introduced in response to international commitments, in the early 1990s, by the Conservative government. This involves a series of policy mechanisms regulated by a process of annual reporting and monitored by a Sustainable Development Commission (SDC). The process is also subject to scrutiny by a parliamentary Environmental Audit Committee (EAC). Meanwhile, however, successive governments have begun to introduce a framework of legal duties for public bodies in respect of sustainable development. The vague nature of the concept of sustainable development does not lend itself easily to the creation of an

* I would like to thank Professor Tim Jones, Michael Harker and the anonymous referees for their comments on earlier drafts of this paper. However, I take full responsibility for the opinions expressed in this paper and any errors made. 1. A Better Quality of Life: A Strategy for Sustainable Development in the United Kingdom (Cm 4345,1999) para 5.1.

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enforceable legal principle, but a statutory duty is nevertheless valuable in providing a clear statement of political commitment to the concept.

The government has adopted the following popular definition of sustainable development:

‘Development which meets the needs of the present generation without jeopardising the ability of future generations to meet their own needs.’2

In theory, sustainable development is a simple concept, but, in practice, operationalising sustainable development presents a complex and difficult challenge and has been the subject of fierce academic debate. The government, therefore, needs to provide a clear message regarding the objective of sustainable development within the legal framework in order to maintain its value as a statement of political intent.

This paper outlines and evaluates the current framework of legal duties in respect of sustainable development. The first section provides a detailed discussion of the difficulties in defining the concept of sustainable development. The second section outlines the measures taken by successive governments in order to meet this objective and the mechanisms for ensuring accountability within th~s process. The third section explores the prospects for the enforcement of a legal obligation in respect of sustainable development and, notwithstanding this possibility, its value as a statement of policy. The fourth section provides an in-depth analysis of the current framework of statutory duties in respect of sustainable development. This highlights several key omissions within this framework and a number of inconsistencies in the wording of these duties. It concludes that the current framework fails to provide a clear message with regard to the government’s objectives in respect of sustainable development, and considers the possibilities for its future development.

DEFINING SUSTAINABLE DEVELOPMENT

The definition of sustainable development has long been the subject of fierce academic debate.3 Nevertheless, the academic community has reached general agreement on a number of core elements of the concept of sustainable development. The overriding aim of sustainable development is to attain ‘environmental sustainability’ . This describes a mode of development that respects the limits of the environmental resources on which it depends? Most commentators adopt an anthropocentric perspective with respect to the

2. This definition is referred to as the Brundtland definition of sustainable development and arises from a report by the World Commission on Environment and Development, published in 1987: World Commission on Environment and Economic Development Our Common Future (Oxford: Oxford University Press, 1987). 3. For a comprehensive review of the literature, see further V Jenkins Developing Dialogues on Sustainable Developmenr (Cardiff PhD thesis, 2000) ch 2. 4. Many of those who reject the concept of sustainable development base their objections on the need to achieve ‘environmental sustainability ’ . The technocentrics, for example, believe that a technical solution can be found to any problems of scarcity that may result from the production and consumption of natural resources for human development: for example, A Scott and P Pearse ‘Natural Resources in a High-Tech Economy - Scarcity versus Resourcefulness’ (1992) 18(3) Resources Policy 154.

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achievement of ‘environmental sustainability’ focusing on the need to ensure future human development.’ The desire to achieve sustainable development is, therefore, motivated by inter-generational ethical considerations regarding natural resource use.

Most commentators are agreed that ‘environmental sustainability’ can only be achieved alongside social and economic sustainability. A ‘sustainable economy’ is one in which economic growth continues to increase, but is not achieved at the expense of environmental quality.6 Meanwhile, ‘social sustainability’ will require ‘systematic community participation and strong civil society’, and the achievement of social e q ~ i t y . ~ The focus of sustainable development is, therefore, on the integration of environmental protection aims with socio-economic objectives. There is general agreement that this will require reform of current modes of economic and social development, based on the integration of these aims. There is little consensus, however, as to the nature and extent of the economic and political reform required to achieve this aim.8

The challenge of sustainable development is a global one and many commentators stress the need to address the disparity of resource use between the developing countries and the developed world, population growth and the

5. With the. exception, for example, of those who support the deep range ecology movement and adopt an ecocentric perspective: A Naess ‘The Shallow and the Deep Long-Range Ecology Movement: A Summary’ in J Dryzek and D Schlosberg Debating the Earth: The Environmental Politics Reader (Oxford: Oxford University Press, 1998) pp 349-355. 6. During the 1970s. the so-called ‘Prophets of Doom’, a group of visionary academics argued that human survival was in severe jeopardy at the hands of unprecedented industrial development and population growth. The most influential report, The Limits to Growth, argued that we would reach the limits of our environmental resource base in within the next 100 years and recommended that radical action be taken: D Meadows 7%e Limits to Growth (London: Pan Books, 1972). At the extreme end of the spectrum this would involve a steady-state or no-growth economy. Some supporters of such an economic model acknowledge that, although the notion of a steady-state economy is a compelling one, in answer to the problems raised by ‘environmental sustainability’ it is politically unrealistic: H Daly Towards a Steady State Economy (London: Freeman, 1973) p 342. 7. R Goodland ‘The Concept of Environmental Sustainability’ (1995) 26 Environment Development World Bank Annual Review of Ecological Systems 1 at 3. The achievement of social equity is morally compelling, given the fact that inter-generational equity is an important motivation for sustainable development, but it is also of practical importance because people living in poverty may be forced into unsustainable modes of behaviour. Furthermore, those people who feel that they have been neglected in society are less likely to involve themselves in civil society. See, for example, M Redclift ‘The key to redirecting the “development” and environmental discourses lies in the political and economic support given to the powerless and the poor’ in M Redclift Development and Environmental Crisis: Red or Green Alternatives (London: Methuen, 1984) pp 129-130. 8. See, for example, Dobson, who believes that a radical approach to green politics is necessary to achieve sustainable development and will require us to adopt an approach based on communitarism, rather than focus on individual lifestyle changes: A Dobson ‘Strategies for Green Change’ in Dryzek and Schlosberg, n 5 above, pp 539-557. The Real World Coalition, supported by a number of pressure groups and academics, also promotes radiral reform of the economic and political situation both at home and at a global level: I Christie and D Wartnuton From Here to Susraimbility: Politics in the Real World(L0ndon: Eaahscan, 2001). On the economic changes necessary to achieve sustainable development, see D Pearce, A Mmkandya and E Barbier Blueprint for a Green Economy (London: Earthscan, 1989).


economic dominance of multi-national corporation^.^ National governments will, however, play a key role in managing the transition to sustainable development. Decisions about the path toward ‘environmental sustainability’ should be based on sound scientific information. However, scientific information alone will not be sufficient to dictate the approach to sustainable development because of the necessity of balancing the economic, social and environmental concerns involved. Furthermore, in many circumstances there will be a lack of scientific knowledge. In the most difficult situations, in which the potential damage to the environment is serious, the response has been to adopt the ‘precautionary principle’:

‘Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”’

Ultimately, decisions about the way forward for the achievement of sustainable development involve complex value judgments in which all actors in society should participate. Participation is also vital in raising awareness of the issues surrounding the concept of sustainable development - gathering support for political action and mobilising action by all groups in society.

ACHIEVING SUSTAINABLE DEVELOPMENT IN THE UK

The achievement of sustainable development is a global problem and the subject of unprecedented agreement by the majority of the world’s nations at the United Nations Conference on the Environment and Development (UNCED), in 1992.” Two key documents emerged from this conference - the KO Declaration on Environment and Development, comprising 27 principles to be followed in the achievement of sustainable development, and Agenda 2 1, a global action plan for sustainable development.I2 Together they identify the following organising principles for sustainable development: 1. the right to development; 2. inter-generational equity; 3. integration of environmental protection and economic development;

9. The Real World Coalition, n 8 above. 10. UnitedNations Rio Declaration on Environment and Development (NCONF151l26). This form of the precautionary principle is supported by the present government in its national strategy for sustainable development: n 1 above, para 4.1. 11. This was the largest international conference ever held by the UN, and achieved unprecedented success in gaining political co-operation of the majority of nation states, from both the developed and the developing nations. 12. Three other treaties were created at the Rio Conference, concentrating on specific issues of environmental protection that are considered to be particularly important to the achievement of sustainable development -5 the Biodiversity Convention; the Framework Convention on Climate Change; and the Agreement on Forest Principles. The conventions on Biodiversity and Climate Change create legally binding obligations under international law and separate measures have been taken to ensure their implementation. The implementation of the Rio Declaration and Agenda 21 was the subject of the World Summit on Sustainable Development in Johannesburg in September 2002, following an interim summit in New York, in 1997.

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4. 5 . intra-generational equity; 6. sustainable utilisation of resources; 7. precautionary principle, sound scientific knowledge and the polluter pays

principle; and 8. procedural principles: transparency, information, participation and access

to justice.’) At regional level, action within the UK has also been influenced by the response within the EU,I4 which has focused heavily on the integration of only economic and environmental 0bje~tives.l~

The Conservative government in the UK was the first to produce a national strategy for sustainable development, as a result of the mandate provided by Agenda 21.16 In line with the approach in the EC, this strategy focused on the reconciliation of economic and environmental issues and paid little attention to the need to achieve ‘social equity’.” The aims and objectives of the national strategy for sustainable development were to be taken forward by a continuing commitment to a number of policy mechanisms introduced, in 1990, in the Conservative government’s first environmental strategy, This Common Inheritance. This involved the creation of a network of ‘green ministers’ to provide a point of contact on environmental issues in all departments; a standing committee of Cabinet ministers to consider how the issues raised in the White Paper should be taken forward; and, the introduction of environmental appraisal for many new policies. This was referred to as the ‘greening government initiative’.I8 Both the White Paper and national sustainable development strategy were subject to a process of annual review.I9 This created an important opportunity to provide openness and accountability in the transition to sustainable development. In practice, the original documents had few targets or timetables on which to report, and the government was accused of ‘fudging’

creating an open and supportive economic system;

13. This list is developed from the work of Boyle and Freestone: A Boyle and D Freestone ‘Introduction’ in A Boyle and D Freestone (eds) International Law for Sustainable Development (Oxford: Oxford University Press, 1999) pp 1-18. 14. The EC responded positively to Agenda 21, developing an initial strategy within its Fifth Environmental Action Programme. The Fifth Environmental Action Programme came to an end in 2000, at which time preparations began on a separate EU strategy for sustainable development to be presented to the World Summit on Sustainable Development. ’Ihe Commission published the following proposal which was presented to the European Council at Gothenburg in June 200 1 - Communicationfrom the Commission: A Sustainable Europe fora Better World: A European Union Strategy for Sustainable Development COM (2001) 264 final. Most of the proposals key recommendations were accepted to form the basis of the EU’s new strategy for sustainable development: Gothenburg European Council, Presidency Conclusions, available at www.europa.eu.int. See further review by V Jenkins (2002) 14(2) J Environ L 261. 15. See further Jenkins, n 14 above. 16. Sustainable Development: The UK Strategy (Cm 2426, 1994). 17. See Jenkins, n 3 above, p 168. 18. This Common Inheritance: Britain’s Environmental Strategy (Cm 1200,1990). This initiative thus pre-dates UNCED. 19. This Common Inheritance: the First Year Report (Cm 1655, 1991); This Common Inheritance: the Second Year Report (Cm 2068,1992); This Common Inheritance: the Third Year Report (Cm 2549,1994); This Common Inheritance: Annual Report (Cm 2822,1995); This Common Inheritance: Annual Report (Cm 3 188,1996).


the few targets actually set.20 Osborn believes, however, that the annual Whte Papers played ‘an important part . . . in maintaining a sense of direction and commitment for Government’ .21

Following the creation of the national strategy for sustainable development a House of Lords Select Committee (HLSCSD) met to review progress towards this objective. Its main criticisms were the lack of targets in the strategy and varying performance of departments with respect to its objectives.” The HLSCSD did not provide a mechanism for continuous monitoring in this respect. Within the national strategy, the government pledged to set up both a Government Panel (GPSD)23 and Roundtable on Sustainable Development (RTSD)24 to have a role in monitoring progress with regard to its aims. Both institutions, however, were primarily advisory bodies. The key difference between them was that the GPSD focused only on the work of government, whilst the remit of the RTSD included the activities of other actors in society. The membership of the RTSD was, therefore, intended to reflect all aspects of society and included members not just from environmental groups but, for example, business, the Church, local government, trade unions and consumers.

Both institutions provided an annual report to the government to which the government made a detailed response. The RTSD also set up a number of sub-groups to consider and report on specific issues in more detail. The government’s response to the GPSD was ‘cautious and non-committal’, but it gained ‘respect for its consistent critical but constructive approach to the Government’s policies on sustainable de~elopment’ .~~ The influence of the individual reports by the RTSD was also often questionable. For example, a key recommendation in its first topical report - The Domestic Energy Market: 1998 and Beyond - was to introduce a statutory duty in respect of sustainable development for the Gas Regulator. However, as will be discussed in detail below,

20. I Christie ‘Britains Sustainable Development Strategy: Environmental Quality and Policy Change’ (1994) 15(3) Policy Studies 4. For an in-depth study of the failings of the annual review process in respect of the White Paper, see Green Alliance Greening Government: The Failure of the Depamental Annual Reports to Reject Integrated Policy Making (London: Green Alliance, 1991). 21. D Osborn ‘Some Reflections on UK Environment Policy 1970-1995’ (1997) 9( 1) J Environ L 3. 22. Report from the Select Committee on Sustainable Development Session 1994-95, HL 72. For conclusions, see H Voisey and T O’Riordan ‘Governing Institutions for Sustainable Development: The United Kingdoms National Level Approach’ (1997) 6( 1) Environ Politics 24 at 38. 23. The objectives of the GPSD were to keep in view general sustainability issues at home and abroad; identify major problems or opportunities likely to arise; monitor progress; and consider questions of priority. 24. The objectives of the RTSD as set by the government were to:

help identify the agenda and priorities for sustainable development; develop new areas of consensus on difficult issues of sustainable development and where

provide advice and recommendations on actions to achieve sustainable development and

help evaluate progress towards objectives; and inform and involve others, building wider support for emerging consensus.

25. See Voisey and O’Riordan, n 22 above, p 35.

this is not possible, to clarify and reduce difference;

to inform and involve others, building wider support for emerging consensus;

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this proposal was rejected by the government.26 Nevertheless, the Roundtable also gained respect for its work, and both institutions helped to ensure continuing political commitment to sustainable de~elopment.~’

The Labour government produced a revised strategy for sustainable development, in 1999,28 which places much greater emphasis on the importance of soc ia l j~s t ice .~~ The current strategy identifies the following principles for sustainable development which are clearly in line with the principles outlined in Agenda 21:

1. putting people at the centre; 2 . taking a long term perspective; 3. taking account of costs and benefits; 4. creating an open and supportive economic system; 5. combating poverty and social exclusion; 6. respecting environmental limits; 7. the precautionary principle; 8. using scientific knowledge; 9. transparency, information, participation and access to justice; and

10. making the polluter pay.

In order to ensure that these principles were adopted in both policy-making and internal affairs, the Labour government continued to support the ‘greening government’ initiative, although seeking to build upon and strengthen the i n i t i a t i ~ e . ~ ~ It also introduced some institutional changes to support the development of an integrated approach to policy-making.3’ The effectiveness of all theses measures is, however, subject to significant criticism.32 Recently, in recognition that the concept of sustainable development is wider than

26. Round Table on Sustainable Development The Domestic Energy Market: 1998 and Beyond (London: RTSD, 1996). See further n 82 below. 27. See Voisey and O’Riordan, n 22 above, p 37. 28. See n 1 above. 29. The strategy hence includes ‘social progress which recognises the needs of everyone’ as a key objective alongside effective protection of the environment; prudent use of natural resources; and maintenance of high stable levels of economic growth and employment. See further n 1 above. 30. See further DETR The Work of Green Ministers (London: DETR, 2000). 31. This originally involved the amalgamation of the Departments of Environment and Transport to create a Department of Transport, Environment and the Regions. However, following the general election in June 2001, the departmental structures of government were changed once more to create the Department of Transport, Local Government and the Regions and the Department of the Environment, Food and Rural Affairs. 32. These measures have been criticised most heavily by the government’s own EAC. Although largely supportive of the work of the Green Ministers Committee, SDC and the SDU, the EAC has expressed concern that the latter is not situated within the Cabinet Office. It also believes that the Cabinet committee has not provided sufficient leadership. Moreover, it does not agree with the ‘new logic’ in respect of the departmental structures for sustainable development fearing that DEFRA is now a department that is principally concerned with rural affairs. See further Select Committee on Environmental Audit Second Report: The Greening Government Initiative Session 1997-98, HC 5 17; Select Committee on Environmental Audit Sixth Report: The Greening Government Initiative 1999 Session 1998-99, HC 426; and Select Committee on Environmental Audit First Report: Departmental Responsibilities of Sustainable Development Session 2001LO2, HC 326.


environmental protection, the government has changed the reference to the ‘greening government’ initiative to the ‘sustainable development in government’ initiative.

On the publication of its revised strategy for sustainable development, the Labour government pledged to continue the process of annual review.33 It set up a Sustainable Development Unit (SDU) within the Department of Environment, Transport and the Regions (DETR) to be responsible for this task. To ensure greater focus within this process the review is carried out with reference to 15 ‘sustainability indicators’, developed from a much larger set created by the government, in 1999.M Such indicators are criticised on the basis that they attempt to ‘encapsulate complex and diverse processes in relatively few simple measures’. Their selection and measurement is, therefore, ‘subject to many pressures, agendas and biases’, and hence, ‘governments often wish to portray themselves in the best possible light and it is certainly not hard to imagine that reference conditions may be set with a political agenda in mind’.35 Nevertheless, this approach does provide a more effective reporting mechanism than the previous system of annual reporting.

In terms of institutional mechanisms to monitor progress towards sustainable development, the Labour government replaced the GPSD and RTSD with a Sustainable Development Commission (SDC). The amalgamation of these two bodies was sensible given the similarity of their remits. Contrary to the recommendation of the former RTSD,36 the primary objective of the SDC is to act as an advisory body and it will have only a secondary role in monitoring progress on sustainable de~elopment.~’ It adopts the approach of the RTSD in

33. For the most recent annual report, see further DEFRA Achieving a Better Quality of Life: Review of Progress Towards Sustainable Development (London: DEFRA, 2002) available from www.defra.gov.uk. 34. DETR Quality of Life Counts (London: HMSO, 1999). The Conservative government produced an initial set of such indicators in 1996, but had little time to develop their use before losing office: DOE Indicators for Sustainable Development for the United Kingdom (London: HMSO, 1996). 35. S Bell and S Morse Sustainability Indicators: Measuring the Immeasurable (London: Earthscan, 1999) p 30. On the merits of the government’s headline indicators specifically, see a recent report by the EAC - Select Committee on Environmental Audit Measuring The Quality Of Life: the 2001 sustainable development headline indicators Session 200 1-02, HC 824. 36. ‘The task of monitoring progress, on the basis of indicators and other evidence, and focusing public and political attention on areas where things are not moving in the right direction’: Roundtable on Sustainable Development Response to Consultation on the Sustainable Development Commission (London: RTSD, 1999) para 8. 37. Its specific objectives are:

to review how far sustainable development is being achieved in the UK in all relevant fields and identify any relevant processes or policies which may be undermining this; to identify important unsustainable trends which will not be reversed on the basis of current or planned action, and recommend action to reverse the trends; and to deepen understanding of the concept of sustainable development, increase awareness of the issues it raises and build agreement on them and to encourage and to stimulate good practice.

For further information with regard to the work of the Sustainable Development Commission, see wwwsd-commission.gov.uk.

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considering activity among all actors in society as well as the government, and its membership will reflect this. It is sponsored by the Cabinet Office, which is responsible for providing contact with the Prime Minister and government departments. This is important in ensuring the centrality of its work to g~vernment .~~

Monitoring of the ‘sustainable development in government initiative’ is included in the remit of the SDU, but, in line with its manifesto commitments, the Labour government also introduced a parliamentary Environmental Audit Committee (EAC) to scrutinise the policies and programmes of all departments of government to ensure that they contribute to environmental protection and sustainable development and audit their performance against ministerial targets.39 This now provides the central mechanism for maintaining accountability in the transition to sustainable development. The EAC has, however, been critical of its own position. It believes that it has met the first half of its remit effectively, ie scrutinising government policies for their effect on environmental protection and sustainable development, but has been unable to meet its objectives in holding the government to account for its environmental performance. This failure is considered to be the result of two factors. First, a lack of clear performance targets set by the government, and, secondly, the government’s failure to equip the EAC with the necessary powers to fulfil this task. The EAC concludes, therefore, that the government should submit an explanatory memorandum for each sustainable development target and that an Environmental Auditor General should be established within the National Audit Office to mirror the arrangements for performance audit of public spending.40 This view is supported by academic opinion, but the government has provided only a lukewarm response to these recommendation^.^'

Notwithstanding the criticisms of the role of the EAC, the present government has chosen to provide accountability in the process of achieving sustainable development according to an ‘audit model’. It has, however, continued to develop a framework of statutory duties for public bodies in respect of sustainable development. This creates the possibility that the courts could play a central role in holding the government to account for its actions in pursuit of sustainable development. It is generally agreed among the academic community, however, that, as a result of the vague nature of the term, it is impossible to create an enforceable legal obligation in respect of

38. This approach was also supported by the former Roundtable. Seen 36 above, para 6. 39. Labour first made a commitment to introduce a parliamentary Environmental Audit Committee in its environmental policy statement in 1994: Labour Party In Trust for Tomorrow (London: Labour Party, 1994). 40. Select Committee on Environmental Audit Environmental Audit: The First Parliament Session 2000-01, HC 67-1. For further analysis of the work of the EAC, see A Ross ‘Greening Government - Tales From the New sustainability Watchdog’ (2000) 12(2) J Environ L 175. With regard to the establishment of an environmental auditor general, see further K Hollingsworth ‘Environmental Monitoring of Government - the Case for an Environmental Auditor’ (2000) 20(2) LS 241. 41. DETR Government’s response to the Environmental Audit Committee’s Report on Environmental Audit: The First Parliament (London: DETR, 2001). See also ‘Government Gives Cool Response to MPs’ Call for Green Auditor’ (2001) ENDS 50, April.


sustainable development - albeit at international level or within the legal regimes of the EC and UK.42 In the UK, both the High Court and Court of Appeal have had occasion to consider whether sustainable development may form the basis of a review of government decision-making in the related cases of Chant and F~ir l ie .~’ In the High Court, Mcleod J stated that ‘the concept of sustainability is comparatively new to the environmental field, is proteon in meaning and extremely difficult to define in any precise sense’ and declined to use the principles of sustainable development as an aid to interpretation. In the Court of Appeal, Glidewell LJ had the benefit of a definition of sustainable development contained in recent planning policy guidance.“ This definition is based on the ‘Brundtland’ definition of sustainable development outlined above.45 Glidewell LJ was willing to apply the Brundtland definition to consider whether a particular development project would contribute to sustainable development in the UK, but was nevertheless quick to reject the arguments presented on this basis. Furthermore, his comment that it was ’unlikely that the Secretary of State would misunderstand his own concept’ is evidence of his view that this was a matter of policy for the government.& Furthermore, the close attention paid to the arguments based on sustainable development is likely to have been influenced by the very

42. See, for example, Boyle and Freestone, n 13 above, pp 1-1 8; R Macrory ‘The Amsterdam Treaty: An Environmental Perspective’ in D O’Keefe and P Twomey Legal Issues of the Amsterdam Treaty (Oxford: Hart, 1999) pp 171-83; L Kramer EC Environmental Law (London: Sweet & Maxwell, 1999); and D McGillivray and S Bell Environmental Law (London: Blackstones, 2000) pp 4 1 4 2 . Some commentators believe, however, that it might be possible to enforce such an obligation with reference to the ‘principles of sustainable development’. See, for example, Sands who believes that certain provisions of the Rio Declaration have gained the status of customary international law: P Sands ‘International Law in the Field of Sustainable Development: Emerging Legal Principles’ in W Lang Sustainable Development andlnternational Law (Netherlands: Graham & Trotman, 1995) p 53. This view was supported by a minority judgment in Case concerning the Gabcikovo- Nagymaros Project (Hungary/Slovakia) (1998) 37 ILM 162. It has also been suggested that, in future, the law relating to sustainable development in the EU may be developed by the introduction of a ‘code’ of substantive general principles: M Decleris The Law of Sustainable Development: General Principles (Luxembourg: OPEC, 2000). Finally, in relation to the UK, it has been argued that such a duty may be enforceable by reference the principles within Agenda 2 1 or the national strategy for sustainable development: W Upton ‘The Need for Legal Limits to Sustainable Development’ in W Upton (ed) The Changing Role of Environmental Law: Proceedings of the U K E U Conference (London: United Kingdom Environmental Law Association, 2000) pp 153-68. 43. Chant v ors v Secretary of State for the Environment and anor (1996) QBD LEXIS 16.05.96, Mcleod N; Fairlie and ors v Secretary of State for the Environment and anor (1997) CA LEXIS 12.05.97. 44. DETR Planning Policy Guidance Note No I (London: DETR, 1997). 45. See n 2 above. 46. In fact, the concept of sustainable development was not created by the Secretary of State, but introduced as a policy aim in response to the government’s international commitments. Therefore, arguably, it should be possible to challenge the definition of sustainable development within government guidance if it does not conform to the principles of sustainable development outlined in Agenda 21. If so, for instance, the national strategy of the Conservative government relevant at the time of this case might have been challenged on the basis that it virtually ignored issues of social equity. See n 15 above.

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specific facts in this case - focusing on a project designed to provide a model of sustainable living.

Given the rejection of an enforceable obligation in respect of sustainable development the true value of such a statutory duty lies in the fact that it provides a clear statement of policy. Many commentators oppose this form of ‘directory duty’ on the grounds that such duties undermine the role of law in protecting individual rights.47 Such a duty however, may influence the legal interpretation of other provisions. Furthermore, it has been noted in respect of race relations that the law can act as a powerful educator in providing an unequivocal declaration of public policy.48 Similarly, a statutory duty in respect of sustainable development provides important evidence of the government’s leadership on this issue at the highest level - sending a clear message not just to those working within government itself, but also to wider sectors of society.

The EAC supported the view that, in order to show leadership in respect of sustainable development, and truly place sustainable development at the heart of decision-making, the government should ensure that the concept was set out in clear and consistent language in the aims and objectives of all public bodies. In response, the government pledged that ministers would consider whether to incorporate sustainable development into the aims and objectives of all new public bodies. Furthermore, Green Ministers would consider and report to the Cabinet Committee on the Environment the extent to which they considered that sustainable development should be incorporated into the remit of existing departments and N D P B s . ~ ~ Neither the government nor the EAC, however, supported the introduction of a legal duty for all public bodies. Indeed, in the annual progress report on the national sustainable development strategy, the government made it clear that it considered that sustainable development could be placed at the heart of an organisation by policy directions of the Secretary of State or inclusion in non-statutory aims and objective^.^^

Nevertheless, the government has introduced a framework of legal duties in respect of certain public bodies in the UK. Careful consideration of these duties reveals a partial legal framework and a number of inconsistencies in their wording. A very confused picture of the concept of sustainable development emerges. This undermines the central aim of these duties in providing a clear

47. See further E Brandl and H Bungert ‘Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad’ ( 1992) 16( 1) Harv Environ LR 1 at 92. 48. A Lester and G Bindman Race and Law (London: Penguin, 1972). 49. DETR The Government’s Response to the Environmental Audit Committee’s Second Report: The Greening Government Initiative (London: DETR, 1998). 50. In the annual report on the sustainable development strategy in 2000, the government reported that central government departments had set up 13 public bodies since the national strategy was published in May 1999, and that sustainable development had been included in policy directions or non-statutory objectives in most of these with a statutory duty for the SRA, GLA and local government. See further DETR Achieving a Better Quality of Life: Review of Progress towards Sustainable Development: Government Annual Report 2000 (London: DETR, 2000) ch 1. The second annual report, however, did not include any mention of progress in this respect: see n 33 above.


message on the need to achieve to sustainable development to those working both inside and outside of government.

PLACING SUSTAINABLE DEVELOPMENT AT THE HEART OF GOVERNMENT IN THE UK: THE LEGAL FRAMEWORK

The first statutory duties with regard to sustainable development were introduced by the Conservative government in relation to the non-departmental bodies responsible for environmental protection. The Conservative government subsequently fiercely resisted the introduction of such a duty for the regulators of the privatised utilities. The Labour government, subsequently, developed this legal framework further as part of its programme of devolution and modernisation in government. The following analysis of the legal duties that currently exist in respect of sustainable development highlights a number of differences in the way in which they are phrased and the requirements to consider government guidance.

The Conservative government: environmental protection agencies and the privatised utilities

A reference to ‘sustainability’ first appeared in legislation in the UK in the early 1990s, in relation to Scottish Natural Heritage (SNH) - the body responsible for nature conservation in Scotland. The Natural Heritage (Scotland) Act 1991 created a duty for SNH to ‘have regard to the desirability of securing that anything done, whether by [SNH] or any other person, in relation to the natural heritage of Scotland is undertaken in a manner which is sustainable’.5’ The words ‘sustainable’ and ‘development’ did not appear together in legislation, however, until the creation of the Environment Agency.‘2 According to the Environment Act 1995, the principle aim of the Environment Agency in discharging its functions is to ‘protect or enhance the environment, taken as a whole, so as to make a contribution towards attaining the objective of sustainable de~elopment’.~~ The Environment Agency operates only in England and Wales, whilst a separate agency was created for Scotland-The Scottish Environmental Protection Agency (SEPA).% The S P A does not have a statutory duty in respect of sustainable development, but must comply with guidance in this respect.55 Indeed, this approach was also adopted in the original bill in respect of the Environment Agency, but was successfully challenged by the environmental lobby.56

51. Natural Heritage (Scotland) Act 1991, s 1. 52. The Environment Agency was formed from the amalgamation of the functions of the National Rivers Authority and Her Majesty’s Inspectorate for Pollution. It also took over the waste regulation functions of the local authorities to become responsible for the control of pollution of all media in the environment. 53. Environment Act 1995, s 4( 1). 54. Environment Act 1995, s 20. 55. S 3 l(2) requires the SEPA to follow guidance with respect to the contribution towards attaining sustainable development that it is felt appropriate for the Agency to make. 56. Environment Bill 1995, cl4.

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The primary objective of the Environment Agency in respect of sustainable development is subject to a requirement to carry out a cost- benefit ana ly~ i s .~ ’ It has been suggested that this ‘contributes to the increasing dominance of an economics-based discourse that has previously been lacking explicit recognition in UK environmental law’, and criticised on the grounds that it ‘assumes that growth orientated intentions are beneficial’.s8 The Environment Agency must also have regard to guidance from the Secretary of State on the appropriate contribution of the Agency to attaining sustainable d e v e l ~ p m e n t . ~ ~ The guidance provides a mechanism for ensuring that non-departmental public bodies, such as the Environment Agency, carry out their duties in line with government policy. This approach is particularly important because of the vague nature of the concept of sustainable development.60

In the early 1990s, given the international climate, it is perhaps not surprising that sustainable development was introduced as the primary aim of NDPBs with responsibilities for environmental protection. However, a clear understanding of sustainable development as a process requiring the integration of economic, social and environmental objectives leads to the logical conclusion that the concept should be an important objective of all government organisations. An important opportunity to debate this issue arose, during the early 1990s, as a result of changes to the regulation of the privatised utilities by the Conservative government. In 1995, the Conservative government introduced legislation to amend the Gas Act 1986 in order to open up competition in the gas market. During the passage of this legislation an amendment was put forward to provide a duty for the regulator and the minister to have in mind the objective of achieving sustainable development.6’ The government argued, however, that a statutory duty was not appropriate in this context because it ‘would cut across the principle of an independent regulator and, having regard to the breadth of the regulator’s pursuits, that could cause unacceptable uncertainty’.62

57. The Environment Act 1995, s 4( 1) states that the duty is subject to the requirement to take into account likely costs. S 39 provides a general duty for the Environment Agency in this respect, ie: ‘in deciding the manner in which to exercise any power, [the Agency] shall, unless and to the extent that it is unreasonable for it to do so in view of the nature or purpose of the power or in the circumstances of the particular case, take into account the likely costs and benefits of the exercise or non-exercise of the power or its exercise in the manner in question. ’ 58. T Jewel1 and J Steele ‘UK Regulatory Reform and the Pursuit of Sustainable Development: The Environment Act 1995’ (1996) 8(2) J Environ L 283 at 296. 59. Environment Act 1995, s 4(2). The guidance is subject to the negative resolution procedure: s 4(7). 60. The government first published guidance to the Environment Agency in November 1996. DOEJMAFF Z h Environment Agency andSustainable Development (London: DOEJMAFF, 1996). This is currently being reviewed, and the draft guidance is available from www.defra.gov.uk/consult/ea-guidance/index.htm. Both documents simply outline the organising principles for sustainable development in the national strategy discussed above to ensure that these are adopted by the Agency in its work. 61. Hansard HL Official Report (5th series) col44,22 June 1995, amendment 17. 62. Hansard HL Official Report (5th series) col441,22 June 1995.


The Labour government: the devolution of power and the privatised utilities

The Welsh Assembly The Labour government came to power promising far-reaching changes to the organisation of government in the UK. Central to their manifesto was a programme of devolution that began with the creation of the Welsh Assembly. There was no mention in the White Paper on the Government of Wales of a duty to achieve sustainable development. However, this issue was raised by Members of both Houses of Parliament during the passage of the Bill.63 This prompted the government to table an amendment to place a duty on the Welsh Assembly to have regard to the principle of sustainable development.64 A different approach was subsequently taken within the final legislation. Section 121 of the Government of Wales Act 1998 states that the Welsh Assembly has a duty to ‘make a scheme setting out how it proposes, in the exercise of its functions, to promote sustainable de~e lopmen t ’ .~~ There is no requirement for the Welsh Assembly to have regard to government guidance in producing this strategy. This would appear to be the correct approach for the Assembly as a democratically elected and devolved body which, it may be argued, should respond directly to the international mandate in developing its strategy for sustainable development.

In contrast to the position in Wales, neither the Northem Ireland Act 1998 nor the Scotland Act 1998 contain a duty for the respective assemblies to produce a strategy to achieve sustainable development. This may be explained by the fact that these bodies have primary as opposed to secondary legislative powers, and are, hence, expected to provide their own arrangements for the implementation of the international mandate for sustainable development. Indeed, despite the omission of a duty within the relevant legislation, both the Scottish and Northern Irish assemblies have taken measures to ensure the achievement of sustainable

63. Hansard HC Official Report (6th series) cols 736 and 752.8 December 1997. 64. Hansard HC Official Report (6th series) ~ 0 1 7 5 2 , s December 1997. 65. The scheme is to be kept under review and the Assembly must enter a process of consultation with such bodies as it considers to be appropriate before making, remaking or revising the scheme. The Assembly also has a duty to produce a report outlining progress on the implementation of the proposals within the scheme at the end of each financial year. Finally, in the year following each ordinary election (after the first) the Assembly must publish a report containing an assessment of how effective its proposals have been in promoting sustainable development. The first scheme Learning to Live DifSerently was adopted in November 2000: Welsh Assembly Learning to Live DijJerently (Cardiff Welsh Assembly, 2000). This was followed by the publication of an Action Plan in March 2001 and the creation of a sub-committee of the Assembly’s Cabinet to monitor, evaluate and ensure progress in respect of these initiatives. See further n 33 above, p 19. 66. See further n 33 above, pp 16-18 and 23-24; and a more recent publication by the Scottish Executive Meeting the Needs: Priorities: Actions and Targets for Sustainable Development in Scotland, available from www.scot1and.gov.uk. A report by WWF is, however, highly critical of the approach of the Scottish Executive to the challenge of sustainable development: T Birley Reality Check: A Review of Scottish Activity on Sustainable Development (London: WWF, 2001).

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The Regional Development Agencies The Labour government’s long-term plans also include the devolution of power to regional assemblies in England, but in the meantime it has created a number of regional economic development agencies (RDAs). These agencies mirror the work of similar agencies in Scotland and Wales that have existed since the mid-1970~.~~ The White Paper on the formation of the new RDAs devoted a full chapter to the environment and sustainable development.68 However, in the legislation that followed, a duty to ‘contribute to the achievement of sustainable development in the United Kingdom’ was only one of a number duties to be taken into account by the RDAs in carrying out their functions. The other four primary duties address the need to promote economic development in the strictest sense, ie to further economic development and regeneration in the regions; to promote business efficiency, investment and competitiveness; to promote employment and the application of relevant skills. This was explained by the Labour government on the grounds that it was not appropriate to include sustainable development as the primary purpose of an economic development agency.69 This demonstrates a fundamental misunderstanding of the concept of sustainable development. The government appears to confuse the objective of sustainable development with that of ‘environmental sustainability’ . As outlined above, ‘environmental sustainability’ is the ultimate goal of ‘sustainable development’, but can only be achieved by adopting a new mode of development based on the organising principles for sustainable development. According to the principles set out in the government’s own national strategy for sustainable development, furthering economic development is a key objective of sustainable development - so long as it is achieved without destroying the natural resources on which it depends. The government’s approach demonstrates that it does not maintain a strong political commitment to the creation of a new mode of economic development to contribute to the achievement of ‘environmental sustainability’ .

It is also significant that, for the first time, the sustainable development duty was phrased with reference to the UK. The government stated that the duty ‘to contribute to sustainable development in the UK’ was preferable to a duty ‘to further the achievement of sustainable development’, because of the need to make it explicit that the RDAs should work within the national policy framework set by the g~vernment.’~ However, the duty as it currently exists does not recognise the significance of action in the UK to the achievement of sustainable development at a global level. It is indeed important that the agency works within the national policy framework, but it is submitted that this will be achieved by the requirement that the RDAs have to regard to guidance from the government. This guidance follows the approach of the guidance to the Environment Agency in outlining the organising principles for sustainable de~elopment.~’

67. See further Welsh Development Agency Act 1975 and Scottish Development Agency Act 1975. 68. Building Partnershipsfor Prosperify (Cm 3814, 1997) p 39. 69. HC Official Report, Standing Committee E (Regional Development Agency Bill) pt 8, 3 February 1998. 70. Above, n 69. 71. DETR Guidance to the Regional Development Agencies on Sustainable Development, (London: DETR, 1998). See further n 60 above.


Local government and the Greater London Authority The Labour government’s plans for reform also extended to local government and, in particular, the government of London. The White Papers on both the modernisation of local government and creation of the Greater London Authority (GLA) included a reference to the need to ensure that their powers would be exercised in a manner designed to meet the objectives of sustainable development.’* However, in the legislation that followed, the new overriding purpose of these forms of government is to promote the economic, social and environmental well-being of the community, and each has been given a general power in this re~pect.’~ This provides the central plank of the government’s plans to refocus the role of local government and the GLA as ‘community leaders’ within a model of ‘community g ~ v e r n a n c e ’ . ~ ~ The overall aim of these reforms is increasing quality of life, which is specifically recognised as the primary objective of sustainable development in the national strategy. Furthermore, the key to the achievement of this aim is considered to be the integration of objectives in respect of the economy, society and the environment, which is also crucial to sustainable development. In fact, both local government and the GLA do have a statutory responsibility in relation to sustainable development which is linked to their primary purpose. The framework of legislation in respect of the two organisations is, however, quite different.

In exercising its new ‘well-being power’ the GLA has a duty to have regard to the effect which the proposed exercise of the power would have on the health of persons in Greater London and the achievement of sustainable development in the UK.75 Furthermore, in preparing and revising his key strategies in terms

72. DETR A Mayor and Assembly for London: The Government’s Proposals for Modernising the Governance of London (London: DETR, 1998) ch 5. This White Paper included a chapter on ‘An Integrated and Sustainable Approach’. The government stated that it would act within the practical framework to be provided by its new sustainable development strategy, to develop its own strategy and priorities, and that the new mayor would be placed under a statutory duty to promote sustainable development in London. The government’s plans for local government were set out in its White Paper, Modern Local Government: In Touch with the People (Cm 4014, 1998). Here it stated that a new statutory duty would be introduced which would ‘enshrine in law the role of the council as the elected leader of their local community with a responsibility for the well-being and sustainable development of its area [and] put sustainable development at the heart of council decision-making’ . 73. Greater London Authority Act 1999, s 30 and Local Government Act 2000, s 2. 74. See declaration of Hilary Armstrong in M Clarke and J Stewart Community Governance, Community kadership and the New Local Government (York: YPS, 1998) p v. The difference between the model of ‘government’ and ‘governance’ is explained by Rydin as follows, ‘Whereas “government” implied hierarchical relationships between tiers of the state, a strong element of top-down control, and a firm boundary between the state and outside organisations, “governance” points to the proliferation of quasi-governmental agencies and the growing formal role of organisations outside the state within the policy process’ : Y Rydin ‘Environmental Governance for Sustainable Urban Development: a European Model’ ( 1999) 4( 1 ) Local Environment 6 1. 75. Greater London Authority Act 1999, s 30(4). However, in determining whether or how to exercise this power the authority will, primarily, ‘have regard to the desirability of exercising the power so as to further the remaining principal purpose(s) and secure, over a period of time, a reasonable balance in furthering each of them’: s 30(3).

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of transport, spatial development, biodiversity, municipal waste management, air quality, ambient noise and culture, the Mayor must also have regard to the health of persons in Greater London and the achievement of sustainable development in the UK.76 In contrast to the GLA, the responsibilities in relation to sustainable development in local government are linked to a duty to create a ‘community strategy’. Local authorities have a duty to prepare a ‘community strategy’ with the aim of promoting or improving the economic, social and environmental well-being of their area and contributing to the achievement of sustainable development in the UK.77 The government explained that it had not referred to this strategy as a strategy for sustainable development because it was not confident that the public understood the overarching nature of the objective of sustainable deve l~pment .~~

Both local government and the GLA must have regard to government guidance in the exercise of their powers in respect of sustainable de~elopment .~~ At first sight, it seems surprising that despite their democratic mandate these organisations do not, therefore, enjoy the same free rein as the Welsh Assembly. However, unlike the Welsh Assembly, these organisations operate within a statutory framework. Furthermore, the guidance that has been issued to these organisations, in line with the guidance to the environment and development agencies, merely emphasises the importance of integrating economic, social and environmental well-being concerns to the achievement of sustainable development and the need to refer to the national strategy and sustainable development frameworks of the RDAs.*O

Regulation of the privatised utilities The issue of the achievement of sustainable development in government arose for the second time in relation to the regulation of the privatised utilities during a review of this sector.81 The Utilities Act 2000 subsequently created a new public body - the Authority for the Gas and Electricity Markets - to regulate these utilities. In line with the previous Conservative government, the Labour government refused to provide the regulator with a statutory duty in respect of sustainable development on the grounds that it was not appropriate for an

76. Greater London Authority Act 1999, s 41(4). 77. Local Government Act 2000, s 4( 1). 78. In response to a question raised during the Committee stage in the House of Lords: Hunsurd HL Official Report (5th series) cols 1480-82.25 January 2000. 79. Local Government Act 2000, ss 3(5) and4(3) and Greater London Authority Act 1999, s 30(7). The Mayor of London also has a statutory duty to have regard to the need to ensure that all his strategies are consistent with national policies and international obligations: Greater London Authority Act 1999, s 41(5). 80. This is entirely consistent with the need to adopt acommon approach to the achievement of sustainable development at all levels of government in the interests of global sustainable development. See further n 3 above. 81. Hunsurd HC Official Report (6th series) cols 20-24, 30 June 1997. The terms of reference of the review were: ‘to consider whether changes are required to the system of regulation of the utility industries in order to ensure open and predictable regulation, fair to all consumers and to shareholders, and which promotes the Government’s objectives for the environment and sustainable development, whilst providing sufficient incentives to managers to innovate, raise standards and improve efficiency.’


independent economic regulator.82 The principal objective of the Authority is to protect the interests of consumers by promoting effective ~ompeti t ion.~~ The Authority has a secondary duty to have regard to the effect on the environment of activities connected with the supply of electricity and gas, and must comply with guidance regarding its social and environmental objectives.M These duties are included alongside a requirement to ensure the protection of ‘vulnerable consumers’;8S to promote efficiency and economy among licence holders; and to secure a diverse and viable long-term energy supply. It is difficult to justify the rejection of a primary duty in relation to sustainable development for the regulator as none of these duties are inconsistent with the achievement of sustainable development, so long as they are not achieved at the expense of ‘environmental sustainability’. In particular, as outlined above in relation to the RDAs, furthering economic development is important to the achievement of continued quality of life. The legislation may therefore, in the context of a primary duty to contribute to sustainable development, make it clear that best means of the continued development of the gas and electricity services is by protecting the interests of consumers via competition.

Separate legislation will be intrcduced in future regarding the regulation of water. In line with the arrangements for the regulation of gas and electricity, the original draft water bill did not include a statutory duty in respect of sustainable development. The duties of the water regulator will, in fact, be very similar to that of the gas and electricity Authority -with the exception that the existing extensive environmental duties of the regulator will be retained. 86 However, in response to criticism from both the EAC and Select Committee on Environment, Transport and Regional Affairs (SCETRA), the government proposes to amend the bill to include a duty for the Director General in respect of sustainable development.” It is difficult to jushfy

82. Department of Trade and Industry A Fair Deal For Consumers: Modernising the Framework for Utility Regulation (London: DTI, 1998) ch 2. 83. Utilities Act 2000, ss 9 and 13. 84. Utilities Act 2000, ss 10 and 14. The latest draft of this guidance was published in May 2001: DTI Draji Social and Environmental Guidance to the Gas and Electricity Markets Authority (London: DTI, 2001). 85. Ie the disabled or chronically sick, pensioners, those on low incomes and people living in rural areas. 86. DETR Water Bill - Consultation on Draji Legislation (London: DETR, 2000). Cls 27-30 of the bill outline the duties of the regulator. The primary environmental duties - currently found in the Water Industry Act 1991 - are to further the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest; to have regard to the desirability of protecting and conserving buildings, sites and objects of archaeological architectural or historic interest; and to take into account any effect which the proposals would have on the beauty or amenity of any rural or urban area or any such flora fauna features buildings sites or objects. The regulator also has a number of secondary duties relating to public access to the environment. C128 of the draft water bill provides a statutory duty for the regulator to have regard to guidance from the Secretary of State on social and environmental matters in discharging its functions and, hence, interpreting its environmental duties. 87. See further DEFRA The Government’s Response to the Select Committee on Environment, Transport and Regional Affairs Ninth Report: Draft Water Bill (London: DEFRA, 2002) and ‘Government plods on with water bill’ (2002) ENDS 328 at 4 1 4 3 . This duty will be modelled on that of the Strategic Rail Authority. See further n 91 below.

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the difference in approach to water regulation other than on the grounds that this regulator has traditionally operated within an extensive framework of environmental duties.88 Even if a sustainable development duty is included in this instance, if it is made secondary to the primary purpose of protecting the interests of consumers by promoting competition it will suffer from the same criticisms as the current framework for the gas and electricity regulators.

More recently, the issue of the achievement of sustainable development has arisen in relation to the regulation of transport. The Transport Act 2000 provides a framework for the licensing of air traffic services to private companies under the authority of the Civil Aviation Authority (CAA), and creates a Strategic Railway Authority (SRA) to act as a strategic planning and co-ordinating body for the rail industry and the guardian of the interests of rail passenger^.^^ In line with the regulators of gas and electricity, the CAA does not have a statutory duty to achieve sustainable development. Its primary duty is to maintain a high standard of safety but it has a secondary duty, inter alia, to take account of guidance on its social and environmental objective^.^^ In contrast, the SRA has a statutory duty to exercise its functions in the way best calculated to contribute to the achievement of sustainable development, as well as a secondary duty have regard to the effect on the environment of activities connected with the provision of railway service^.^' Although the sustainable development duty of the SRA is a primary duty, as in the case of the RDAs, this is one of six such duties. The other duties are designed to ensure the protection of ‘consumers’ of railway services and efficiency and integration in the service provided to railway passenger^.^^ In addition, a similar duty has been provided for the railway regulator by amendment to the Railways Act 1993.93

Once again, the wording of this legislation demonstrates a lack of understanding and real commitment to the concept of sustainable development. The current sustainable duty for the rail regulator and SRA should be the only primary duty of these regulators. The organising principles of sustainable development would then dictate that, in line with the other statutory duties, the regulator ensure an efficient service and equality in the treatment of passengers. These objectives would not, however, be obtained at the expense of the need to develop railway services in a manner that is ‘environmentally sustainable’. Once

88. See further n 86 above. 89. Transport Act 2000, s 205. 90. Transport Act 2000, s 2. Guidance on the environmental objectives of the CAA was issued by the government in March 2002. See further press release 24 March 2002, available at www.caa.co.uk/caanews. The other secondary duties of the CAA are to further the interests of all involved in operating and air services and travelling by air, to ensure economy and efficiency on the part of licence holders; and to take account of the interests of operators of air services. 91. Transport Act 2000, s 207(2). 92. Ie to protect the interests of users of railway services; to promote efficiency and economy on the part of persons providing railway services; to promote measures designed to facilitate the making by passengers of journeys which involve the use of the services of more than one passenger service operator; to impose on the operators of railway services the minimum restrictions; to enable persons providing railway services to plan the future of their businesses with a reasonable degree of assurance: Transport Act 2000. s 207(2). 93. Transport Act 2000, s 224.


again, it is difficult to justify the differences in the approach to the regulation of the railways with that of air transport. It is even more difficult to justify the distinction in approach between the SRA and rail regulators and those of gas and electricity. Transport has many polluting effects on the environment, but the management of all natural resources is crucial to the achievement of sustainable development.

Recent developments: legislation governing key aspects of international relations Finally, recent legislative proposals in respect of export control and, in particular, international development aid have once more highlighted the level of the government’s commitment to the concept sustainable development and the significance of a statutory duty in this respect. The International Development Act 2002 (IDA 2002) was introduced to support the government’s policy in this field, the primary aim of which is to eliminate global poverty.” IDA 2002 does not provide an overriding duty in respect of sustainable development for the Department of International Development and related public bodies, but for the first time provides such a duty in relation to a specific aspect of their work. It will, nevertheless, have an important impact in widening the scope of public bodies that have a statutory duty to consider their role in contributing to the achievement of sustainable development.

Section 1 gives the Secretary of State the power to provide development assistance to other countries, with the overall aim of contributing to the reduction of poverty. ‘Development assistance’ is subsequently defined as assistance provided for the purpose of furthering sustainable development or improving the welfare of the population of one or more countries outside the UK.95 Therefore, as in the case of the statutory duty for local government, despite the fact that the primary purpose of sustainable development is increasing quality of life, the aim of sustainable development is considered to be distinct from that of improving welfare. However, recognition by the government of the importance of the links between sustainable development and the primary purpose of international aid in reducing poverty is clearly to be welcomed - highlighting the government’s commitment to social equity in contributing to the overall aim of global sustainable development.

IDA 2002 is also explicit that the reference to sustainable development in s 1 includes ‘any development that is, in the opinion of the Secretary of State, prudent having regard to the likelihood of its generating lasting benefits for the population of the country or countries in relation to which it is provided’.96 This is the fiist time that an attempt has been made to clarify the nature of a statutory duty in respect of sustainable development - despite assurances from

94. This policy was included in a White Paper issued shortly after the election of the Labour government in 1997: Eliminating World Poverty - A Challenge for the 21st Century (Cm 3789, 1997). IDA 2002 will replace existing legislation in this area in the form of the Overseas Development and Co-operation Act 1980. 95. IDA 2002, s l(2). 96. IDA 2002, s l(3).

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the minister during the passage of the bill that the term sustainable development was an all-encompassing ~oncept.~’ It is submitted, however, that this clause does not provide a definition of sustainable development, but simply highlights the importance of considering the long-term benefits of development projects in the light of the inter-generational ethical considerations underlying the concept of sustainable development. This clause may seriously undermine the inclusion of a statutory duty in respect of sustainable development by providing the Secretary of State with a power to act simply where he or she considers it ‘prudent’. 98

Finally, IDA 2002 provides a number of public bodies with responsibilities for health and tourism with the power to enter into agreements, other than the provision of financial assistance, for the purposes, once again, of, inter alia, furthering sustainable development of one or more countries outside the UK.w Recognition of the importance of the concept of sustainable development to tourism is not particularly surprising given the importance of measures in respect of environmental protection in this field. However, the duty in relation to bodies responsible for health is important recognition of the overarching nature of the concept of sustainable development and inclusion of social development concerns.

The primary aim of the Export Control Act 2002 is to control the export of arms and related technology. The Act provides that the Secretary of State will give guidance to licensors regarding the consideration (if any) to be given to issues relating to sustainable development in granting such licences.’@’ The inclusion of a statutory duty in relation to sustainable development within this Act proved extremely controversial. A duty in the original bill was removed in the House of Commons on the grounds that the EU code of conduct on arms exports - which would be treated as published guidance under the bill - included a reference to the need to ensure that a proposed export would not seriously

97. During the debate in Standing Committee, the minister stated that the concept of sustainable development would allow the Secretary of State to support activities that ‘strengthen governance, reduce corruption, tackle causes and consequences of conflict and promote private sector growth from foreign investments in development countries, as well as promoting health and education’. Interestingly, the government also fought hard against the inclusion of a specific mandate to provide assistance for the purposes of promoting good governance within the relevant countries because this term did not have an ‘easy or natural meaning’. See further HC Official Report, Standing Committee D (International Development Bill) pts 6-7,22 November 2001. 98. Alternative views regarding the nature of this clause were expressed during the passage

of the bill. The clause was welcomed in the House of Lords as a broad definition of sustainable development that, in particular, was not focused heavily upon the environment as suggested within the Brundtland definition favoured by the government: Hunsurd HL Official Report (5th series) col729,2 July 2001. Meanwhile, in the House of Commons it was suggested that it was not so much a definition of sustainable development but a necessary safeguard against those with either an entirely economic or an entirely environmental view of sustainable development: Hunsurd HC Official Report (6th series) col335,7 November 2001. 99. Or improving the welfare of the population, or alleviating the effects of a natural or

man-made disaster or other emergency on the population of one or more countries outside the U K IDA 2002, s 9. 100. Export Control Act 2002, s 9. The guidance will also refer to the consideration (if any) to be given to a number of other issues included in Sch 3 to the Act.


hamper the sustainable development of the recipient country.'o' The duty was reintroduced by the House of Lords,lo2 but the impact of this duty has once again been undermined by the introduction of the phrase 'if any'. This was included by the government in the late stages of the passage of the bi11.'03

As highlighted in the debate on this bill, there is an important inconsistency in the weight attached to the concept of sustainable development by the government in respect of export control and international development. As suggested at this time, the real reason for this inconsistency is likely to be the negative attitude of the Department of Trade and Industry toward the concept of sustainable development in contrast to that of the Department of International Development.'" This suggests that the government has failed to ensure a consistent commitment to the principle of sustainable development throughout government.

CONCLUSIONS

In future, the achievement of 'sustainable development' in government will depend on the success of the kind of the policy mechanisms first introduced as part of the 'greening government initiative'. The SDC and EAC have been given the task of monitoring progress towards this aim, and the EAC ensures accountability within the process in government. This process is supported by the introduction of a legal duty in respect of sustainable development for several public bodies. The current legal framework in respect of sustainable development emerged very rapidly, indeed within less than a decade, during the 1990s, and has developed in an ad hoc fashion - often in direct response to the environmental 10bby.I~~ Therefore, it is doubtful whether either the present Labour government or its predecessor had a clear strategy in its creation. It is unlikely, given the difficulties of defining the concept, that these duties will create enforceable legal obligations, and hence that the courts will play any role in holding government to account for its actions in pursuit of sustainable development. However, as was noted by the HLSCSD, the government has a vital role to play in providing leadership in the promotion of the concept of sustainable development,'" and it is arguable that a framework of statutory duties in the public sector may have an important role in this respect.

The current legal framework is, however, very fragmented. First, in respect of the devolved governments, only the Welsh Assembly has a duty to produce

101. See n 97 above, pt 3. 102. J Mackintosh 'Peers deliver double defeat to the Government' Financial Times, 19 April 2002, p 6. 103. P Wintour 'Government backtracking on arms export safeguards' Guardian, 24 June 2002, p 4. 104. See n 97 above, pt 2. This issue was also raised in the debate on the International Development Bill: see HC debate, n 98 above, col307. 105. In the first instance, neither the Conservative government in its plans for the Environment Agency nor Labour government in developing the legislation for the government of Wales paid any attention to the need for a legal duty in relation to sustainable development. In both instances an amendment was made to the legislation following successful lobbying by environmental protection groups. 106. See n 22 above.

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a strategy for sustainable development. Secondly, of the regional development agencies in the UK, only those in England have a duty to make a contribution to the achievement of sustainable development in the UK. Thirdly, the duty for the Environment Agency in England and Wales is contained in the legislation, but the duty for the Scottish Environmental Protection Agency is contained only in guidance. Fourthly, only one of the four nature conservation and countryside agencies in the UK has such a duty. Finally, with regard to the regulation of the privatised utilities, only the strategic rail authority and water regulator have a duty within primary legislation in relation to sustainable development.

Moreover, there are a number of important inconsistencies in the structure of the statutory duties that currently exist in relation to sustainable development. The Welsh Assembly has a statutory duty to create a strategy in this respect, but in relation to local authorities and the GLA, the government has abandoned the concept of sustainable development altogether - focusing instead on the need to take an integrated approach to the achievement of economic, social and environmental well-being on the basis of a community strategy. Meanwhile, the NDPB’s responsible for the environment and economy have a general sustainable development duty alongside some of the regulators of the privatised utilities. Only the Environment Agency, however, has an overriding primary duty in this respect. More recently, the government has shown reluctance to include the need to contribute to sustainable development as a primary objective in legislation governing development assistance overseas and export control. Another important issue is that several of the sustainable development duties refer specifically to the UK - failing to recognise the importance of the contribution of measures taken in the UK to sustainable development at a global level.

In considering the government’s approach to the achievement of sustainable development, the EAC has stated that it has shown ‘some failure to grasp the overarching nature of sustainable development and apply it’.Io7 This view is supported by the observations made in this paper. The government rejected the inclusion of a sustainable development duty in relation to local authorities and the GLA on the basis that the public did not fully understand the concept, but it seems that they too have failed to do so. For example, the refusal to provide an overriding primary duty for the RDAs and private regulators, on the grounds that their role was primarily an economic one, is evidence that the government has confused the concept of sustainable development with that of ‘environmental sustainability’ . log ‘Environmental sustainability’ is the primary aim of sustainable development, but can only be achieved by a model of development in line with the operational principles for sustainable development. According to the government’s own sustainable development strategy, this

107. Select Committee on Environmental Audit SecondReport: The Greening Government Initiative: see n 32 above, para 52. Another more recent concern of the EAC was the Treasury’s decision not to incorporate social and environmental objectives for the Financial Services Authority on the grounds that this would distract from its primary purpose as financial regulator: see further Select Committee on Environmental Audit, n 40 above, para 52. 108. This approach to the notion of sustainable development is also illustrated in the EU strategy for sustainable development: see n 14 above.


should include the promotion of economic development to ensure increasing quality of life for its citizens.Iw If the government is truly committed to the achievement of sustainable development, it must recognise that it can only be achieved if it is accepted as its primary aim. In order to illustrate this commitment, the logical conclusion is that the current framework of sustainable development duties should be replaced by an overriding primary statutory duty for all public bodies to ‘contribute to the achievement of sustainable development’.

109. See n 1 above.

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