A New Constitution for the UK Needs ‘Rights of Nature’ at Its Heart

Lambert: First, Lake Erie. Tomorrow, the world!

By Gavin Barker, who is based in Truro. He campaigns on constitutional issues and also locally for constitutional reform and stronger public services, and is a participant in Assemblies for Democracy. Originally published at Open Democracy.

Human rights are well established in constitutional and international law. But in the face of dangerous climate change and ecosystem collapse, do we need ‘rights of nature’?

Brexit has triggered a near complete breakdown in parliamentary government as discord and chaos reign within and between parties, as well as between executive (government) and legislature (House of Commons). It has brought the legislative work of Parliament to a halt and exposed the abject failure of our uncodified constitution to protect our rights, challenge an over powerful executive, and give clear guidance in the face of political deadlock. The celebrated flexibility of our ‘unwritten constitution’ where we “make up the rules as we go along” has led us up a blind alley, with seemingly no way back.

Brexit is a full blown constitutional crisis. But there is a convergence with another seemingly unrelated but greater crisis bearing down on us: dangerous climate breakdown. Climate change has moved from an abstraction presented in graphs and bar charts to the visible, anxious face of schoolchildren demanding why their parents’ generation and politicians have done nothing to protect their future and that of the planet. The School Strike for Climate and Extinction Rebellion movement have joined a well-established movement of climate change activism; and their message has been given added force by the most recent U.N. report which has warned us that we have only 12 years to avert climate catastrophe.

It is the intersection between these two crises which demands whole scale system change, not merely a change of government or incremental democratic reform. In short, a rapid transfer to a zero carbon economy must be accompanied by a constitutional revolution that entrenches ‘rights of nature’ at its heart. Is this possible?

Yes. Take Ecuador, for example. Its constitution states the following:

These are three of several clauses in Ecuador’s constitution which throws a robust, protective legal framework over the natural world. In theory, no legislation can be passed by any elected government that breaches these clauses. This does not mean to say that laws are not broken, or that corporations don’t seek to circumvent such legal statutes – the same is true for any country including the UK. But at least such laws and rights give campaigners and communities a clear legal framework and foothold by which to challenge corrupt public officials and predatory corporations.

For example last year, Ecuador’s Supreme Court awarded $9.5 Billion pollution judgement to indigenous communities by against oil company Chevron. This was a landmark judgement but it also exposed the limits of national sovereignty in the face of transnational corporate power. Chevron abandoned its assets in Ecuador and took its case to a secret trade court at the Hague. The trade court barred the complainants – Indigenous groups and farmers – from presenting evidence, overturned the Ecuador Supreme Court ruling and awarded hundreds of millions of dollars in compensation to Chevron.

While there has been no final outcome, the legal wrangle has – as one commentator put it -“done the world a favour by vividly illustrating …the need to rid these anti-democratic, pro-corporate trade courts once and for all”. It has also spurred the global movement for Rights of Nature – of which Ecuador is a founding member – to be entrenched in international law.

In the UK, we have no such protective legal framework over either human rights or rights of nature because we have no proper codified constitution. What we have instead is an uncodified constitution composed of piecemeal legislation along with unwritten rules and conventions that have questionable legal force. Britain’s lack of a codified constitution and its attachment to the doctrine of parliamentary sovereignty means that parliament can make or unmake any law by a simple majority of one – the same legislative means to amend VAT or the speed limit.

We don’t have to look far to find examples of just how damaging this almost casual exercise of arbitrary power has become. The Charter of Fundamental Rights was removed from transposed EU law in June last year with a majority of only 19 MPs. Legislation to remove the 1998 Human Rights Act (not yet implemented) the mainstay of our civil and political rights, was voted through by less than half of our MPs – as was the devastating impact of LASPO (Legal Aid, Sentencing and Punishment of Offenders Act) which effectively removed access to justice for large numbers of people by cutting legal aid.

In countries with a codified constitution that set out clearly defined rights, such as the Nordic countries, Germany, France and others, these examples could not have happened so easily. In Germany and Ecuador amendment of its constitution (including the removal of rights) requires a 66 percent majority in their respective legislative assemblies; France requires a majority in both the National Assembly and Senate plus a referendum. In Australia, Denmark, Ireland and Japan, any amendment to the constitution must be by referendum. In Italy, Estonia, Greece and the Netherlands, there are ‘double decision’ rules which means that any constitutional amendment proposed by the legislature can only be finally passed following the election of a new legislature (where the party in power may not be the same). In Canada, India, South Africa, consent has to be given by each provincial legislature.

We need to follow their example and institute a modern, codified constitution whose amendment requires a higher order of deliberative approval – a two thirds majority of all sitting MPs, not less than half as at present.

However critically, it must be a ‘green constitution’ that breaks with the liberal model of constitutional design with its binary vision of the relationship between individual and state as set out in human rights law. This is a hangover from the historic struggle between despotic kingship and the conception of the individual as having inherent rights to life, liberty and the pursuit of happiness. Today's challenges are of a wholly different order and include non-state actors such as corporate power, Artificial Intelligence, dangerous climate breakdown and ecosystem collapse. A modern codified constitution must adjust its vision accordingly.

The neo-liberal world view is itself a poisonous outgrowth of a restricted vision of the inherent rights of the individual, including the right to property, as the centrepiece of the liberal institutional order. It has positioned ourselves and our economic models as free to exploit and develop earth’s resources, while blinding us to our vital role as guardians and protectors of the very life support systems on which we depend.

Constitutional considerations must therefore be fundamentally re-configured and enlarged to embrace these fundamental questions and come up with a new language and set of values based on ‘networks’, ‘connections’, ‘relationships’, ‘empathy’, ‘sharing, ‘interdependence’, ‘responsibility to nature’, 'balance', 'harmony' as a complement to the lexicon of individual rights.

Twenty years ago, such a proposal might have been dismissed as pie-in-the-sky thinking. Not any more. The exigency of climate change and ecosystem collapse demand a revolution in our thinking. The atomised vision of the individual with inalienable rights, standing alone and apart from the social and natural world has proved to be a dangerous myth that we cling to at our peril. What was once a liberating ideal in the face of feudal oppression and aristocratic privilege has itself become a tyrannising ideology that we must break from once and for all.

It is Brexit that is both a window of opportunity and a moment of danger given opposing forces that see the same opportunity to advance their cause. We face a stark choice between endless austerity, the removal of rights, accelerating inequality, deepening environmental chaos and ever greater power to the few. Or ‘we the people’ seize the opportunity to re-write the rules by which we are governed and ensure that these place the ‘rights of nature’ at its very heart.

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.

14 comments

    1. Susan the other`

      I don’t understand the first thing about the legacy of monarchy on modern government, but the current Prince of Wales is a very environmentally enlightened character. Does he have any “codified” power he can use in favor of Natural Rights? Besides private property rights?

      Reply
      1. Colonel Smithers

        Thank you, Susan.

        As monarch or heir, the royal has no codified powers. There is a royal prerogative, but that is exercised by the government in practice.

        Reply
      2. john

        Is that the Prince of Wales. Who owns multiple mansions, flies the world in a private jet and drives an Aston Martin db7.
        Sounds to me, like a very Al. Gore type enviromentalist

        Reply
  1. David

    Brexit has “exposed the abject failure of our uncodified constitution to protect our rights, (and) challenge an over powerful executive.” Pardon? How? It’s not clear how Brexit has put rights in danger, unless it’s the right to stay in the EU in spite of the referendum. And does anyone actually believe that the Executive is “powerful” at the moment, when the Cabinet has basically ceased to function?
    A written Constitution is a good idea, but living in, or dealing with, states with written Constitutions will soon disabuse you of the idea that it’s a panacea. The problem with Brexit is not the lack of a Constitution but the lack of an underlying political consensus. You can’t use words or laws to paper over that.
    Moire generally, this is an example of the Rights discourse, which has its uses, being bent and twisted to try to make it apply to obviously unsuitable areas.

    Reply
    1. Joe Well

      I agree. The most amazing, state of the art constitution I ever saw was the one Venezeula developed at the dawn of the millenium. It had thought through separation of powers, even including a “public power” usually translated as an “ombudsman” and dedicated representation for minority groups.

      But we all know how that ended, or we should. The opposition, with an assist from the US and its friends, tried constantly to undermine the government and society, even through sabotage, while those in political power grew ever more corrupt, abusive, and dysfunctional. It was all held together by the person of Hugo Chavez and high oil prices, and when they died, the constitutional order died with them.

      There’s no process way of getting around the realities of power. Either you really do crush your enemies, like Machiavelli said, or you win them over, and you have to do that without becoming corrupted in the process. I hope our Sandersistas understand that when they finally start taking serious power.

      Reply
  2. rob

    The UK always seems like it has some very backwards tendencies…

    The fact it doesn’t have a written constitution, means it is whatever the latest “rules” are…. until they change….
    Their secrecy laws.. protecting the rich….
    the monarchy,the nobility,
    What is with the 99 year leases ? that revert back to royal ownership…. of….?
    there is a certain opaqueness, that seems to have the support of the monied class, keeping the aristocracy and the nobility at the head of the table… being most of the MP’s and other levers of power… keeping the class system alive…
    Nevermind the “spider’s web” of the “city of london”….
    Why do the british people seem ok with this?… are they as powerless as we here in the US, to do anything about the money power of our ruling class.
    I suppose that is a rhetorical question…Unless someone has an answer…

    The” hellfire club” from back in the day of the earl of sandwich… seems like it could return if they wanted it to…. with protections for the rakes who rape your daughter, and charges against an angry dad who has a problem with it…

    Reply
    1. Colonel Smithers

      Thank you, Rob.

      Please see my comment above.

      The Scottish Land Commission has just published a report about the inequality of land ownership. It chronicles the intimidation by well connected landowners.

      Reply
  3. juliania

    kudos to Lambert and also Yves for addressing in several excellent postings such as this the fundamental challenge of our era. When my native land, New Zealand, granted personhood to a river a few years back, I was somewhat skeptical of such a ‘feely-goodie’ move.

    But no longer.

    I thank you and nakedcapitalism most fervently for your recognition of the earth-oriented roots of the very word ‘economy.’

    This site is doing what needs to be done. ( And also thanks to whomever posted the link to Doug Preston’s New Yorker article over the weekend. The gist of that article brought home to me what a climate catastrophe is all about.)

    I thank you all here.

    Reply
  4. Another Anon

    Juliana,
    Please elaborate on why you now believe
    that giving “person hood” to a river is more than just a “feel good” gesture.
    Thank you,
    AA

    Reply
    1. ckimball

      How about governments,corporations andon are not organic but created systems of organizations unlike rivers and life in all its forms which includes
      us.

      Reply
  5. Richard

    I agree with the author that nature needs us to consider her as having rights. However, I am concerned that rights for nature will not be enough to protect her from us. Rights are abstract ideas that are imperfectly interpreted and implemented by different groups of people and governments. One of the most important things we can do for nature is to develop an understanding of the importance of limits, the limits on what a finite nature can provide for human beings and the importance of limits on us, including our endless appetites and the impact of every single thing we do on nature, and the importance of numbers, our own numbers and the numbers involved in the quantities of, again, everything we do. I am starting to explore some of these issues in my own blog at https://www.arepublicfortheearth.org. I would be pleased if anyone decided to drop by to check it out.

    Reply

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