 Puncture thank you all very much familiar faces. You're all very welcome and this afternoon and as You will be aware. We have a very distinguished guest as afternoon to address us and Lord Carnwood Lord Robert Carnwood or to give him his full title which I will if I may say it may do so once the right Honourable Lord Carnwood of Notting Hill and is our guest this afternoon and Robert Carnwood study law Trinity College Cambridge. He was called to the bar in 1968 took silk in 1985 He served as attorney general to the Prince of Wales, which I wasn't I wasn't aware that Prince of Wales has an attorney general I must tell you about you about that. He did that from 1988 to 1994 became a judge then the chance to be division and in 1994 served there until 2002 was appointed to the Court of Appeal that year became a justice of the Supreme Court in 2012 I think we're all Very familiar as well as practitioners and people interested in environment climate change energy policy with the body or the corpus of Environmental law that is relevant and that we see litigated all the time in the Irish courts much of it If not pretty much all of it coming through Directors from the European Union and transposed into law in Ireland So we're familiar with this territory, but it's also become a much Bigger question in recent years as we debate and struggle with the question and the issues of climate change and how We make laws make international agreements obviously, but how we make laws that are amenable to being tested and being litigated by citizens not just Intergovernmental activity in other words, but citizens and NGOs and other groups can take an interest in this Perhaps drive on the agenda through making new law and I think that's maybe some of the issues that Robert Karnworth might touch on in his talk, which I'll invite him to give in just a moment before I remind you to Adjust your mobile phone. You don't have to turn it off But if you put it to silent that'd be great And it would allow you also if you're minded to do so to tweet And if you're going to tweet the handle is IEA so we've got about an hour and As is the normal practice the address is on the record But when we have a Q&A session afterwards we'll observe Chatham house rules and when you're asking questions at that point You might just say who you are what your background is and interest and so forth So anyway without any further delay, I'm delighted to invite Robert Karnworth to address us. Thank you very much Well, thanks very much Alex for that introduction kind introduction It's a great pleasure to be in Dublin a great honor I mean you couldn't be my role as Attorney-General to the Prince of Wales is Long Unfortunately some time ago, but for your interest it actually is the post one of the oldest post it goes back to the 14th century When the black Prince was fighting wars in Europe and needed an attorney to look after his affairs in at home Happily in my case I was appointed to a Prince who was less litigious than that and But he's also was very interested in the environment I think was one of the reasons I got appointed because it was a time when he was actually Developing his interest in environment and planning law and I specialized in that at the bar, but anyway, here we are I'm conscious that This subject is quite topical here I'm we were talking at lunch about case you were have brought by the Friends of Ireland here Involving the issues of human rights and climate change, which I understand was heard earlier this year in the High Court and You're awaiting judgment now, obviously, I'm not going to say anything about that But I'm going to start from the other end of the other side of the world in Australia because a Month ago, it was announced that eight residents of the Torres Strait Islands in Australia Were bringing human rights challenges against the Australian government Now they are a group of islands north of Queensland Home to a unique First Nation people who've inhabited the region for thousands of years And it's one of the oldest continuous cultures in the world and they are threatened by climate change Which is causing regular flooding of their land and homes and is predicted to get much worse Now the islands are within the jurisdiction of the Australian government And they complain that the government has not done enough to protect their interests Either by adopting sufficiently rigorous greenhouse gas targets or funding adequate coastal defences But they're not bringing their cases under Australian law There appear to be no suitable domestic law frameworks of legal duties and remedies Instead they are taking the case to the United Nations Human Rights Committee Under the International Covenant on Civil and Political Rights Now that dates from 1966 and the original Is it said nothing about the environment it talked about Article 27 the right to culture Article 17 protection of family and home life and article six right to life and those are the articles which are relied on But in fact things have moved on since 1966 because a general comment on article six Which replaced previous commentaries dating from the early 80s was issued by the committee in 2018 and it expanded on the meaning of the right to life under article six It said this environmental degradation climate change and unsustainable development Constitutes some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life Obligations of states parties under international environmental law should thus inform the contents of article six Implementation of the obligation to respect and ensure the right to life and in particular life with dignity depends on measures taken by states to preserve The environment and protect it against harm pollution and climate change caused by public and private actors so there's the original Article six right to life being expanded to buy buy the Commentary produced by the committee and that's been as I understand at the basis of the present case and client earth who are very active and Non-governmental organizations, you know Has put out a frequently answered questions document Which gives a pithy summary of what the case is about it says this how is Australia failing on climate change? Currently the Australian government has no policies to meet its low emissions reduction target of 26 to 28 percent by 2030 Meanwhile, Canberra has continued to push the interest of fossil fuel industries in particular coal and coal seam gas Last year the UN's international panel on climate change Released a report stating humanity as just over a decade to introduce rapid Decarbonization of its economy to avert the worst of catastrophic climate change So there you have in a nutshell the basic dilemma facing Mankind in fact now and it's being put in the form of a complaint against the Australian government under human international human rights conventions But if you ask then well, where's that actually going to lead in practical terms and here? I'm afraid client earth is a little less upbeat It goes on when will the claim be decided? The process is quite involved and it could take up to three years for a decision After the claim is filed on May 13th 2019 the committee is likely to request a response from the Australian government later this year Once Canberra responds the authors could expect to reply from the committee in 2020 and following a potential all herring a decision in 2021 So hardly a very speedy process What would a succession decide? What would a successful decision mean legally? They ask If successful it would be the first decision from an international body finding that nation states have a duty to reduce their emissions under human rights law Unfortunately, even if the committee finds that there has been a violation it cannot force Australia to comply with its decision However, taking a case the committee Results in international pressure on Australia and nation states do frequently comply with rulings of the human rights committee so a fairly Modest claim as to what such action should achieve now, of course I say nothing about the merits of case nor what how the Australian courts might react if there were an adverse finding in the committee But I cited to underline a basic problem about the concept of human rights in national international environmental law It's one thing to assert such rights or even to establish them to the satisfaction of a tribunal It was quite another to convert them into action or into effective and enforceable duties at national or still less at international level Now as judges we are inevitably restricted both by the cases that come before us and by the limits of the legal toolbox at our disposal And that raises the question whether human rights law can make a significant contribution to addressing the immense Invert challenges we face in protecting the environment or is it just chipping away at the edges? I was struck by this dilemma Particularly a few weeks ago when we had the extinction rebellion demonstration I don't know whether you read about that. It was they they talk over Parliament Square and My window in the Supreme Court looked out over Parliament Square and so I was able to watch this process going on and They may they were making a very powerful case of stronger action on environmental issues Notably climate change and they attracted a lot of media attention and I think did succeed in raising the political debate but In fact, they'd even gone as far as to put up a an information tent immediately outside the entrance of the Supreme Court Which we had to negotiate it coming into and out of the building This led to a bit of a debate amongst us whether we had any legal powers to stop them doing it We decided they weren't doing much harm and so there it stayed Which I was quite pleased by it seemed to me a sort of quite a good arrangement and the police had obviously decided To take a reasonably hands-off approach In fact, the only time that anyone sort of intervened was when one of them climbed up a tree which actually From which you can actually look into my room and someone was afraid that there might be secret documents on my desk which I'm sorry to disappoint them there was nothing of any interest at all, but Looking down on them. I wondered whether there was any sort of symbolism in the location of their tent Was it a coded message to us as judges to be more proactive in holding the executive to account? Sadly, I don't think so. I think we just happen to be a convenient location opposite Parliament which was the real focus of their attention and rightly so But I wondered what if one of them had recognized me as a judge with a special interest in environmental law What sort of conversation might I have had with such an activist and with how much common ground? and what would I have been able to say to convince him or her of the Value of what we as judges do in with the tools that are disposal Now I'll come back to that later Towards the end of this talk But first I want to look at some examples of effective use of human rights law around the world Now in some jurisdictions the courts have been able to build on constitutional guarantees to turn such rights into effective action in the famous Opposer case in 1993 the Philippines Supreme Court Described rights to a balanced and healthful ecology as quotes basic rights which predate all governments and constitutions And need not be written in the Constitution for they are assumed to exist from the inception of humankind The court memorably upheld a challenge of the state's policies for granting consents to fell in the country's virgin forests Brought by some 43 children from all over the Philippines On behalf of themselves and quotes generations yet unborn Now that was 1993. It was a very progressive Decision which has been often cited and in some cases followed In the same spirit the courts of India and Pakistan have taken the lead in Interpreting constitutional guarantees of the right to life to include environmental rights In the words of the Pakistan Supreme Court in the leading case of Shelled Zia In 1994 They said the right to life Quotes does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death Life includes all such amenities and facilities Which a person born in a free country is entitled to enjoy with dignity legally and constitutionly And that approach has been adopted in a number of well particularly India, but also a number of other South Asian jurisdictions with with strong effects and A well-known and very powerful example Of the potential of this approach is the case of leg Hari and the Attorney General in the Lahore High Court in 2015 The court was faced with a claim by a farmer whose land was suffering from the effects of climate change and Who charged the government with failure to implement its own climate change policies The court upheld the claim relying again on the constitutional right to life It all of the setting up of a climate change commission to oversee the implementation of those policies under the supervision of the court and the commissioners recently submitted its final report following Successful completion of the main phases of its work and that's an extraordinary activist approach for the court to set up a Commission to do the work of actually bringing government to account in a practical way But of course, it was important the success of that case That the court was not seeking to impose on the government anything to which it was not already in principle committed It was simply seeking to hold the government to its own policies And no doubt for this reason the government did not appeal the decision But cooperated fully in the work of the court appointed commission So That is a powerful example of the way one can use human rights or constitutional guarantees of human rights, but Working with the government Now I think the South Asian courts have gone much further than would be Thought as yet appropriate for common law or civil courts in other parts of the world including our own In Europe part of our legal toolbox is the European Convention on Human Rights Now as you know the convention itself says nothing about the environment We were discussing at lunch actually the wreath lectures given recently by my former colleague Jonathan Sumption and he pointed out the extent to which article eight of the Convention has been expanded to cover all sorts of things probably weren't in the minds of the original Crafters one of them being the protection of the environment Jonathan has sort of emphasized the dangers of the expansion of the law into areas better left in his view to political resolution As he put it quotes human rights are where law and politics meet it can be an unfriendly meeting And he quoted our former Prime Minister's comment that a recent decision of the European Court of Human Rights about votes for prisoners Made him quotes physically sick But that was slightly extreme and happily I'm not aware of any comparable Political reaction to decisions of the Strasbourg court relating to the environment and I think this is because the Court has in practice stared a careful line between the protection of individual rights and the margin of appreciation Allowed to the government on policy issues Two cases illustrate the contrast the first Significant environmental case in Strasbourg was called Lopez, Austria against Spain in 1995 Where the court upheld a complaint about the Spanish government's failure to deal With smells noise and fumes from a waste treatment plant situated a few meters away from the claimant's home She had put up with it for three years before having to move It was held that there was a violation of article 8 as the authorities have not stuck a fair balance between the town's economic Well-being and her private life and there'd been Effective total failure by the government to respond to a serious and unlawful interference with her home life But the other end of the spectrum is the leading grand shamer case relating to night flights at Heathrow Hatton and the United Kingdom in 2002 Now there there was no doubt about the sleep interruptions caused by night flights and The third section of the court had initially upheld the claim by a majority But the grand chamber disagreed The difference turned on the view taken of the margin of appreciation and whether the regulations reflected a fair balance Previous cases such as Lopez Ostra were distinguished on the basis that quote The violation was predicated on a failure by the national authorities to comply with some aspect of the domestic regime Whereas this element of quote's domestic Irregularity is wholly absent in the present case Overall it was said the court does not find that in substance the authorities overstepped their margin of appreciation By failing to strike a fair balance between the right of the individuals affected by those Regulations to respect for their private life at home and the conflicting interests of others and of the community as a whole It's interesting that my colleague Lord Kerr who had been sitting as an ad hoc judge in the Chamber decision and had dissented for reasons very close to those of the grand chamber he observed that Central problem in such cases is to define the boundaries between the respective roles of policy makers and courts He said this if convention stands are not met in an individual case It is the role of the court to say so regardless of how many others are in the same position But when as hair a substantial proportion of the population of South London is a similar in a similar position to the applicants The court must consider whether the proper place for a discussion of the particular policy is in Strasbourg Or whether the issue should not be left the domestic political sphere now similar issues I think are at the heart of the arguments in the Famous agenda case in the Netherlands That was a case brought by the Dutch agenda foundation and And a number of citizens to compel the government to comply with its Kyoto commitments And it was held by the court and wasn't really contested that the government had not limited Emissions to the extent which they had undertaken to do in previous international conferences The district court the Hague district court which heard the case first Rejected arguments that these were purely political issues It held but given the undisputed evidence as a serious threat to man and the environment posed by climate change And even without specific legislation The government had to do to take appropriate mitigation measures in its own territory to address it Now the district court put its decision on a slightly esoteric Feature of Dutch law called unlawful hazardous negligence Which I don't think is repeated in our system or I suspect yours, but the Court of Appeal Last year upheld that decision on grounds of more general interest Because they based their decision on the European Convention and in particular on articles 2 and 8 They held that climate change represents a real threat resulting in the serious risk That the current generations of citizens will be confronted with loss of life and or disruption of family life They've done articles 2 and 8 of the convention the student aid has a duty to protect against this real threat Now that has rightly been treated as a landmark case in its recognition that the threat posed by climate change Can be seen as a human rights issue We are currently awaiting the result of the government's appeal to the Supreme Court and The argument of which was heard recently But One has to accept that articles 8 and of the convention Really are not very well adapted to protection of environmental rights on any of you it is a significant limitation on those visions that Article 8 is about protection of people and their homes and families rather than the environment for its own sake This is a point that came up in a case called Kurt Tatox against Greece in 2005 Where the applicants and challenged the government's failure to demolish buildings In where permits to build on a swamp had been ruled unlawful by the Greek court The first section held that there was no violation of article 8 as the applicants are not sure how damaged the birds and other protected species Directly affected their own private or family rights The court observed Neither article 8 nor any other of the articles of the convention are specifically designed to provide general protection of the environment as such To that effect other international instruments and domestic legislation are more pertinent in dealing with this particular aspect Now as that passage implicitly recognizes environmental rights are not human rights in the ordinary sense There are much more than that they involve rights and duties The rights are those of not just humans, but of all living things The duties are ours as a species which has the unique ability to influence the environment for good or ill It is not at all clear that we yet have in place quotes other international instruments fit for the purpose A more comprehensive view of the scope of environmental rights and duties is found in the important decision in February 2018 of the Inter-American Court of Human Rights in its advisory opinion at the request of the Republic of Columbia Concerning state obligations in relation to the environment Again the original version of the American invention on human rights dating from 1969 said nothing about the environment Article 26 merely imposed a general obligation for the progressive development of quotes economic social and cultural rights It was not until the El Salvador protocol of 1989 there was included a specific reference to the environment Article 11 of the protocol is in relatively simple terms, but it does Deal with both rights and duties It says everyone shall have the right to live in a healthy environment and to have access to basic public services The state's parties shall promote the protection preservation and improvement of the environment and from this the text The judgment develops an elaborate framework of rights and responsibilities national and trance Poundry and it is indeed a remarkable example of an environmental human rights courts Developing the framework in a progressive way which actually come encompasses most of the sort of accepted principles of international environmental law and the court also emphasizes the importance of Protection of the environment as an end in itself quite apart from risk to individual human beings The same approach is adopted in another Recent development that is the proposed global pact for the environment which was produced in France by a group of experts under the leadership of Laurel Fabius who was the chairman of the Paris negotiations in 2015 and This was had the blessing of President Macron and it was presented by him to the UN General Assembly in September 2017 It's been subject to discussions within the United Nations since The ambition according to the accompany of material was for the pact to become quotes the cornerstone of international environmental law and to stand alongside the two international governments of 1966 relating to civil and political rights and economic social and cultural rights So establishing it was said a third generation of fundamental rights the rights related to environmental protection So a very ambitious endeavor I was in fact honored to be a member of the group of international legal specialists invited to advise on the text and I went to the launch event in the Sorbonne back in 2017 What I think is very important about the pact is it actually brings together a number of very familiar Concepts which one finds in other documents, but such as sustainable development intergenerational equity polluter pays and so on But it does so in a very simple and tangible form But I think the most important point is the starting point which emphasize Again, this is not just about rights, but about the balance of rights and duties individual and collective So article one Right to an ecologically sound environment every person has the right to live in an ecologically sound environment adequate for their health well-being dignity culture and fulfillment Article two duty to take care of the environment Every state or international institution every person natural or legal public or private Has the duty to take care of the environment To this end everyone everyone contributes to their own levels to the conservation protection and Restoration of the integrity of the earth's ecosystem Now I like that because it goes beyond the idea. That's just a matter of estates It's something which every person natural or legal has an involvement in and it goes beyond just protection But restoration of the integrity of the earth's ecosystem Now as I say that's Progressing it's there's been a large measure of international support for the pack within and outside the United Nations But there's been opposition from some predictable quarters and so future progress remains uncertain Now let me come back in conclude well In conclusion to the my hypothetical conversation with the environmental activist on the doorstep of the Supreme Court Now she might have asked me to explain what courts like mine were doing in practical terms to enforce Environmental rights and with what results Now I could have offered some examples. I might have pointed to the order we made in the Supreme Court in 2015 against the government in a case brought by client earth Challenging the government's failure to bring pollution levels in certain major urban areas within the Manchelette Limits set by the European Directives We ordered the government to produce a revised plan within a Specific period and gave liberty to apply to the administrative court for consequential orders Revised plan was produced, but that was challenged by client earth and found wanting by the administrative court And the court laid down a tight program for its improvement So far so good my activists might have said but what then and I would have had to admit That we were not enforcing environmental rights as such, but we were enforcing Specific statutory rules laid down by a directive Okay, so And but even in that context There had been a question whether enforcement was a matter of the European Commission rather than the courts Which we had referred to the European Court So the whole process had taken rather a long time the case was started in 2011 And even now eight years later, it's open to question how much it has achieved in terms of strict compliance Pollution in London remains a major issue I might perhaps have turned our conversation to the courts of the USA and the great case of Massachusetts and the Environmental Protection Agency in 2007 There as you know the Supreme Court decided by five to four that the agency's powers under the Clean Air Act extended to greenhouse gas emissions such as CO2 emissions from motor vehicles and they held that the There was unchallenged evidence That global warming threatens a precipitate rise in sea levels by the end of the century and severe and irreversible changes to natural ecosystems And the agency's failure to take any action was held to be arbitrary and capricious and therefore unlawful Now that again was not a case about human rights as such it turned on the construction of the Clean Air Act But it was very important Following the change of administration. It was decided that's under the Bush administration But then when President Obama getting caught in it gave him the necessary legal tools which he was able to work in the face of The unlike to have getting any actual laws through Congress and it paved the way for his strong climate change program And for the USA is crucial leadership in the Paris negotiations in 2015 But again, I would have had to admit that subsequent progress has been patching The judgment still stands. It does not mean questioned in any later cases But it does not prevent to the next president reversing the EPA's policy approach and Deciding to pull out of the Paris Agreement Now you will not find any coherent explanation of this change of view as far as I can see anywhere on In the government or indeed on the EPA website Curiously you will find on the website a page headed quotes climate change in the United States benefits of global action it gives a link to a 2015 report by the climate change impacts and risk analysis Cira Which it is said shows that global action on climate change Will significantly benefit Americans by saving lives and avoiding costly damages across the US economy But how this is compatible with the decision to pull out of the Paris Agreement is not explained Another USA case which has attracted a lot of interest was the judgment of Judge Akin in the case of Juliana with the USA in 2016 in the US District Court of Oregon But again progress has been painfully slow The plaintiffs were a group of young people alleging specific harm due to the effects of climate change and Challenging the federal government's failure to take adequate steps to protect them Judge Akin dismissed the government's attempt to have the case struck out as disclosing no arguable case She rejected arguments that these were political questions She held that the right to a climate system capable of sustaining human life is Fundamental to a free and ordered society and thus protected by the due process clause of the Constitution The case was supposed to go to a full hearing last autumn But it was delayed by interlocutory wrangles which went all the way up to the Supreme Court and a still waiting resolution now I'd have had to confess to my Activist friend that when one is dealing with issues as complex and wide-ranging as climate change Human rights law is an imperfect tool In the long run, there is no real alternative to political consensus Supported by robust legal frameworks. I Could have emphasized it in the United Kingdom We are fortunate the issue was was long ago taken out of the serious area of serious political controversy By legislation in the form of the Climate Change Act of 2008 Which imposes a duty on the Secretary of State to ensure that the net emissions of greenhouse gases for the year 2050 Are at least 80% lower than the 1990 baseline It provides the machinery for the Secretary of State to set statutory carbon budgets for successive five-year periods and And it established an independent climate change committee to give expert advice including on the setting of the carbon budgets and for the moment our performance has been on track Although the committee has made clear that more needs to be done for the future and for the moment that Those issues have not come before the courts in any significant way Now as you probably know last month the committee advised that to satisfy our Paris commitments The target in the act needs to be revised downwards to net zero emissions by 2050 The act provides a mechanism for that to be done by statutory instrument and recently Mrs. May is part of her Legacy announced that the government had accepted this advice and would promote the necessary legislation Now this announcement Attracted criticism on both sides some said it was unachievable others said it did not go far enough The BBC reported the chance of the exchequer had warned that it would cost one trillion pounds by 2050 The acting energy minister on the other hand pointed out that this was no more than one to two percent of the UK's GDP And others said it was a small price to pay for saving the world Now whatever target is proposed you'll undoubtedly attract intense political debate And I know that this week Ireland also announced It's the launch of its own climate change plan aiming for net zero emissions by 2050 Now to me as an environmental lawyer and judge The important point is that in the 2008 act in the United Kingdom We have more than political commitments or generalized human rights protection We have a strong legal framework with clear and enforceable targets based on objective and independent advice expert advice and I Think I would say to my activist friend that whatever else we do by way of Test cases such as the Torres Island case or by way of the sort of protest such as the extinction rebellion protest We need to direct all our efforts to achieving legal regimes across the ball globe which are effective and enforceable and fit for purpose Now in this connection. I was delighted to see the announcement This week that the UK has reached an agreement with Italy in its bid to host the 26th conference of the parties under the UN Framework Convention on Climate Change Now this is a crucial meeting Marking the fifth anniversary of the Paris Agreement and the time for the quotes global stock take To be undertaken by the conference of the parties under article 14 to assess collective progress Towards achieving the purpose of the agreement Now it happens to coincide with the US a Presidential elections which gives added pecansia to that particular objective Now for me, it's impossible to overestimate the importance of that Meeting for the future of the world as we know it As my activist friend would no doubt tell me the Paris Agreement is far from perfect But I would reply that from a legal point of view. It's the best thing we have and we have to make it work