What does it mean for a law to be really “binding”?
The answer is not as clear as you might think. It will depend on a number of things:
- Is there a clear obligation on somebody to do something? In other words, is the law ‘norm-bearing’?
- Can someone go to court if the obligation is breached? And will anyone actually bring a case?
- Can the courts provide meaningful redress? What would this redress look like? Would the courts do so?
In any example, some or all of these questions may be unclear. People can (and do!) debate whether a law is truly enforceable, and what the consequences of breaching it will be. These arguments are sometimes framed in terms of whether a law is ‘hard’ or ‘soft’.
Of course, breaking the law comes with its own social and reputational penalty. But ultimately we don’t know for sure the extent of a legal penalty unless and until someone breaches a law and the guilty party is taken to court.
The UK’s Climate Change Act imposes clear obligations on government to cut greenhouse gas (GHG) emissions by certain dates. The Act is routinely described – including by the government – as “legally binding”. Even so, there has been debate in academic circles about its ‘enforceability’. What exactly can and should the courts do if the government misses a target and then someone takes them to court?
My new paper in the UCL Journal of Law and Jurisprudence argues that the Climate Change Act’s primary obligations are genuinely enforceable. The courts should feel entitled to take the government to task for breaching a clear legal obligation. And there are concrete things the courts can order to get progress back on track.
Meeting our legal obligations to decrease the UK’s GHG emissions is in everyone’s interest: economic, environmental – and, of course, legal. If the Climate Change Act works as it should, we will never discover how the courts really would enforce a breach.
There are reasons to be optimistic that we’ll never find out: The paper also emphases the legal constraints placed by the Act on the Secretary of State when he or she sets course to the 2050 targets. The over-riding purpose of the Act – to reduce GHG emissions in the face of climate change – cannot be sidelined. This should help keep our legally mandated pathway to 2050 ambitious but feasible.
On the other hand, and in the meantime, the UK still has to make the hard yards. The targets it already has – for 2017, 2022, and 2027 – have to be met. If this is going to happen, the Climate Change Act may need to work better now at holding Government policy and planning to account. Otherwise we risk finding out, all too soon, in what sense our Climate Change Act really is “legally binding”.
Read the paper: Enforcing the Climate Change Act (2015) 4(1) UCLJLJ 109-1