Provocation

How can the Interests of Future Generations be Protected in the UK Political System?

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In response to the provocations by Peter Davies and Sándor Fülöp at the FDSD event A Future Generations Commissioner for the UK‘, Victor Anderson reminds us that there are a variety of approaches to safeguarding the interests of future generations. Our focus can be on any of the three different traditional branches of government in the UK: the executive, legislature, and judiciary.

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There has understandably been a focus on the idea of an ombudsman for future generations, because of examples working in Hungary and elsewhere. But there are several other ways in which the interests of future generations might be safeguarded within the UK political system.

The primary choice is between the three different traditional ‘branches of government’: the executive, legislature, and judiciary.

1. Executive

Here we are probably looking at an advisory body of some sort. A Commissioner for Future Generations (on the Welsh model) could be combined with the Committee on Climate Change and the Natural Capital Committee to provide a joint safeguarding system within government. There are issues about where it would feed in – directly to the prime minister might be best, or to a cabinet ‘Minister for the Future’. It could take up individual cases (as an ombudsman traditionally does) or focus on policy issues (as the Sustainable Development Commission used to).

There is also a need to get longer time horizons into key government processes and methods for decision making, most importantly the Treasury Green Book, which sets out the method for evaluating expenditure options; as well as economic forecasting by the Treasury and Office for Budget Responsibility.

It is also worth bearing in mind that there is already a government advisory body with a remit to think about energy, transport, waste, and water up to 2050: the National Infrastructure Commission (NIC). The NIC is not currently looking at these issues through a sustainability lens, and in fact has not even really come to terms with the question of ‘land take’ (competing uses for the same areas of land). Perhaps the priority in the short run is not to set up a new advisory body, but put pressure on the existing NIC. Part of the Natural Capital Committee’s remit is that it should feed into the NIC, but this does not appear to have happened yet.

2. Legislature

Parliament could establish an advisory group, or set up a committee of its own members, to consider the implications for future generations of proposed legislation, and perhaps also to come up with its own proposals for new legislation.

A complication here is created by the House of Commons Environmental Audit Committee (EAC), which to some extent already fulfils this function. But it is more concerned with scrutinising government policy rather than specific pieces of legislation. A new commons committee might be too similar to the EAC to be worthwhile; the EAC’s remit could be widened.

It would possibly be more fruitful to establish a Committee for the Future in the House of Lords. Discussion about reform of the Upper House has always centred on its composition and whether or not it should be elected. But the debate could shift to the wider question of the role and function of the Lords. It could be given particular responsibility for future generations, developing the aspect of its ethos which is about long-term continuity. The international Oxford Martin Commission, which produced a report recommending various ways of countering short termism in business and politics, included three members of the British House of Lords (Patten, Rees, Stern). They might provide the nucleus for a Lords Committee for the Future, even if initially only on an unofficial experimental basis.

3. Judiciary

Another approach is to make the safeguarding of future generations a clear principle in the legal system, establishing either a body to advise the Supreme Court or making this one of the main functions of the Supreme Court and other courts.

One option is to enable the court – as in the United States – to strike down legislation, in this case laws which it believes to be contrary to the interests of future generations. A more ‘moderate’ and more British option, retaining parliamentary sovereignty, would be to require the court to interpret laws to the maximum extent possible in a way which they believe is conducive to or compatible with the interests of future generations; and to recommend to Parliament changes in the law where they believe it not to be compatible. A model for this could be the operation of the Human Rights Act, which gives the courts an advisory role in relation to Parliament, and also requires the possibility of incompatibility with the act to be considered when new legislation is being formulated by the government.

4. Priorities

What are the priorities in the short run? I suggest three.

  1. There should be an effort to follow up the Oxford Martin report by persuading the UK members of the Oxford Martin Commission to form the nucleus of an unofficial ‘Committee for the Future’ in the House of Lords, with a view to developing proposals for putting it on an official basis.
  2. Dialogue with the NIC is urgent, to persuade it to take much more seriously issues such as climate change, land use, and the distributional impact (such as between rich and poor, inter-generational, or gender) of different infrastructure options. They currently appear to hold to the false belief that there is a ‘national consensus’ in favour of maximising the building of new infrastructure.
  3. It is important to get the interests of future generations, currently missing, onto the agenda of mainstream constitutional reform organisations (e.g. Electoral Reform Society) and academic bodies such as the Constitution Unit at University College London.

 


Photo: CC.0 Hugo Sousa / Unsplash.com

One Comment

Steven R Smith

Another option which I brought up at the meeting was to replicate the efforts of the US lawsuit (ourchildrenstrust.org) against the American govt – i.e. To bring a duty of care case against the U.K. govt so as to force the UK to consider future generations. One view was that in the absence of a constitution it would not be possible here, but not being a legal scholar I cannot comment.

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