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In Support of Two-State Solution

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The recent monthly Peace Index of the Israel Democracy Institute and Tel Aviv University, published in September 2018, finds that half of the Jewish Israeli public thinks that Palestinians deserve an independent state, while (43%) think they do not. Analysis of the Jewish sample by age shows that support for a Palestinian state increases with age: among those aged 18-34 only a minority (35%) supports the Palestinians’ right to a state, 54% of those aged 35-54 support it, and in the oldest age group a 61% majority supports it. Arab-Israelis believe unanimously (94%) that Palestinians are entitled in principle to an independent state of their own.[1]

47% of Jewish-Israelis support signing an agreement based on the formula of two-state solution while 46% answered that they do not. Among Arab-Israelis, 73% support such an agreement. 83% of Jewish-Israelis thinks that “the Palestinians must recognize Israel as the nation-state of the Jewish people before peace talks with them can be revived.”[2]66% of Jewish-Israelis agree that “most of the Palestinians have not come to terms with Israel’s existence and would destroy it if they could.”[3]This rate has remained more or less constant, with slight fluctuations, since the first Peace Index survey was conducted in June 1994.

The Palestinians aspire to have an independent state in the 1967 borders, with Arab Jerusalem as its capital and a substantial return of refugees to Israel. The Israelis wish to retain the Jewish character of Israel, being the only Jewish state in the world. Both sides wish to enjoy life of tranquillity and in security, free of violence and terror. Both parties should explicitly accept UN Security Council Resolutions 242,[4]338,[5]and 1397[6] and then begin their full implementation. The endgame will be based on the following parameters:

Palestinian sovereignty – will be declared and respected.

Mutual recognition – Israel shall recognize the State of Palestine. Palestine shall recognize the State of Israel.

Mutual diplomatic relations – Israel and Palestine shall immediately establish full diplomatic relationships with each other, installing ambassadors in the capital of the respective partner.

Capital – each state is free to choose its own capital.

Borders– These should be reasonable and logical for both sides. Settling the conflict would give Israel greater international legitimacy to fight terrorism and enable it to deal with the more serious emerging threat from Iran.

Israel will withdraw to the Green Line, evacuating settlements and resettling the settlers in other parts of the country. The major settlement blocs — Ma’ale Adumim, Givat Ze’ev, Gush Etzion, Modi’in Illit and Ariel –- which account for approximately 70% of the Jewish population in the West Bank and for less than 2% of its size, may be annexed to Israel upon reaching an agreement with the PA of territory exchange that will be equal in size.[7]Border adjustment must be kept to the necessary minimum and must be reciprocal.

Territorial contiguity– a corridor would connect the West Bank and the Gaza Strip to allow safe and free passage. As long as peace is kept, the road will be permanently openand solely Palestinian. No Israeli checkpoints will be there. Palestinians will not be able to enter Israel from this corridor, nor shall Israelis enter Palestine from the corridor. Palestine will ensure that this safe passage won’t be abused for violent purposes. Such abuse would undermine peace and trust between the two parties.[8]

The Separation Barrier creates a political reality. It should run roughly along the 1967 mutually agreed borders.

Security– Both Israel and Palestine will take all necessary measures to ascertain that their citizens could live free of fear for their lives. Security is equally important for both Israelis and Palestinians as this is the key for peace. Palestine and Israel shall base their security relations on cooperation, mutual trust, good neighborly relations, and the protection of their joint interests.

The Palestinian state will be non-militarized. This issue was agreed upon in 1995. Also agreed upon were joint Israeli-Palestinian patrols along the Jordan River, the installation of early warning posts, and the establishment of a permanent international observer force to ensure the implementation of the agreed security arrangements. The early warning posts will be periodically visited by Israeli security officers but they won’t be permanently present on Palestinian soil. If there is a need for a permanent presence, this would be trusted to an agreed-upon third party.

Terrorism and violence– Zero tolerance in this sphere. Both sides will work together to curb violence. Both sides will see that their citizens on both sides of the border reside in peace and tranquility. Zealots and terrorists, Palestinians and Jews, will receive grave penalties for any violation of peace and tranquility.

Jerusalem– What is Palestinian will come under the territory of the new capital Al Kuds. Al Kuds would include East Jerusalem and the adjacent Palestinian land and villages. Abu Dis, Al-Izarieh and Al-Sawahreh will be included in the Palestinian capital. The Israeli capital would include West Jerusalem and the adjacent Israeli settlements. To maintain Palestinian contiguity, Israel may be required to give up some of the settlements around Arab Jerusalem. The Old City will be granted a special status. Special arrangements and recognition will be made to honour the importance of the Western Wall and the Jewish Quarter for Jews, and similarly special arrangements and recognition will be made to honour the importance of the Islamic and Christian holy places. The Old City will be opened to all faiths under international custodianship. There will be Israeli-Palestinian cooperation in providing municipality services to both populations.

Haram al-Sharif– On March 31, 2013, aJordan-Palestinian agreement was signed between the PA and Jordan, entrusting King Abdullah II with the defense of Muslim and Christian holy sites in Jerusalem.[9]While Jordan may be a party to any agreement concerning the site, a broader arrangement is welcomed. As agreed by Abbas and Olmert, it will be under the control of a five-nation consortium: Palestine, Israel, Jordan, Saudi Arabia and the United States. The Waqf will continue its administration. Jews will enjoy right of access. Excavation for antiquities may be undertaken only with the full agreement of both sides. Similarly, alterations to the historical structures and foundations can be made only upon the consent of both sides.

Education – Israel and Palestine will institute a shared curriculum on good neighborhood, understanding cultures and religions, respect for others and not harming others. This education program will commence at the kindergarten and continue at primary and high schools. In every age group vital concepts for understanding the other will be studied. This program is critical for establishing peaceful relationships and trust between the two parties.

 Languages – Starting in primary schools, Arabic will be a mandatory language for pupils to study in Jewish schools. Similarly, Hebrew will be a mandatory language for pupils to study in Palestinian schools. Language is the most important bridge between different cultures and nations. Israelis will master Arabic to the same extent that they presently master English. Palestinians will master Hebrew as their second language.

Incitement– Both sides need to clean up the atmosphere, fight bigotry, racism, incitement and hate on both sides of the fence/wall. This includes a close study of the education curricula in both the PA and Israel. Both sides need to overhaul their school books, excluding incitement, racism, bigotry and hate against one another.[10]The curricula should reflect a language of peace, tolerance and liberty. Both sides should utilize the media to promote peaceful messages of reconciliation and mutual recognition.

Prisoners– As an act of good will, part of the trust-building process, Israel will release a number of agreed upon prisoners. With time, as trust will grow between the two sides, all security prisoners will return home.

Refugees and their right of return– This is a major concern for both Palestine and Israel. For Palestinians, this issue is about their history, justice and fairness. For Israelis, this is a debated issue, where many Israelis are unwilling to claim responsibility for the Palestinian tragedy and most Israelis object to the right of return as this would mean the end of Zionism. The issue is most difficult to resolve as the original refugee population of an estimated 700,000-750,000 has grown to 4,966,664 refugees registered with UNRWA at the end of November 2010. About 40% of the refugees live in Jordan, where they comprise about a third of the population; another 41% are in the West Bank and Gaza, 10% are in Syria, and 9% are in Lebanon. In the West Bank, refugees constitute about one-third of the population while in Gaza they comprise over 80% of the population.[11]

Israel and the PA have been arguing endlessly about this issue as a matter of principle without examining by surveys how many of the refugees and their families actually are intended to return to Israel if this option were to be available to them. What needs to be done is twofold: first, Israel needs to recognize that it has a shared responsibility with the Palestinians to solve the problem. Israel needs to honestly confront history, refute myths and acknowledge the role it played in the creation of the refugee problem. Second, there is a need to identify the population, establish the numbers, and after mapping the refugee population conduct a survey among them that would include the following options:

  • Return to Israel;
  • Return to the West Bank;
  • Return to the Gaza Strip;
  • Emigrate to third countries that would commit to absorbing a certain quota (appeal will be made to countries that receive immigration on a regular basis to participate in this settlement effort);
  • Remain where they are. President Donald Trump has started to put pressure on several Arab countries to grant Palestinian refugees living in those countries citizenship.[12]

The 1948 Palestinian refugees will be able to settle in Palestine. The rest of the world is legitimate to set immigration quotas for absorbing Palestinians who apply for settlement in their designated choice of country. Unification of families should be allowed in Israel on a limited quota annual scale. But massive refugee return to Israel will not be allowed. This dream should be abandoned. An international tribunal of reputable historians and international lawyers, including equal representatives of Israel and Palestine, will determine the level of compensation. If needed, Israel and Palestine may establish an international relief fund to which humanitarian countries that wish to see the end of the conflict contribute.

Termination of the conflict– following the signing of a comprehensive agreement covering all issues and concerns, an official statement will be issued declaring the end of the Israeli-Palestinian conflict.

Four Party Permanent Team – Egypt, Israel, Jordan and Jordan will maintain a permanent organization that will meet periodically to discuss concerns and resolve problems amicably. This forum will discuss issues such as the Gaza ports, economic development, water, tourism, security controls along the Jordan River, security concerns in Sinai, counter-terrorism and counter-radicalism.

International Arbitration– Difficult issues that won’t be resolved by direct negotiations will be delegated to a special arbitration committee. This special committee will have an equal number of Israeli and Palestinian delegates plus an uneven number of international experts. Only experts approved by both parties will be invited to serve on the arbitration committee. The committee will include lawyers, economists, human rights experts and experts on the Middle East. Their resolutions would be final, without having the right of appeal. Both Israel and Palestine will commit to accept every decision of the arbitration committee. One model to follow might be the arbitration committee comprised to resolve the Taba dispute between Israel and Egypt.

Conclusion

To resolve the Israeli-Palestinian conflict there is a need for courageous leaders on both sides who seize the opportunities presented to them and make the most for their peoples.

To erect peace, it is essential to have trust, good will and security. It would be far-fetched at present to hope for peace in the short term. We should have little illusions about peace, at least so long as Hamas is determined to wipe Israel off the map. Israel does not even appear on Hamas maps. Israel should aspire to enter a long-term interim agreement; to build trust; evacuate isolated settlements; consolidate economic conditions for Palestinians; bolster security on both sides; stop enlarging existing settlements; dismantle checkpoints to make the lives of Palestinian civilians easier; develop the nautilus Iron Dom against rockets and other anti-rocket mechanisms. Finally, international cooperation is required to lift the existential Iranian threat.

[1] Tamar Hermann and Ephraim Yaar, “Is the Two-State Solution Still Relevant?”, The Israel Democracy Institute(September 5, 2018),https://en.idi.org.il/articles/24478?ct=t(EMAIL_CAMPAIGN_9_6_2018_16_39)

[2]Ibid.

[3]Ibid.

[4] Resolution 242 of November 22, 1967, http://unispal.un.org/unispal.nsf/0/7D35E1F729DF491C85256EE700686136

[5]U.N. Security Council Resolution 338 of October 22, 1973,

http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/UN+Security+Council+Resolution+338.htm

[6]UN Security Council Resolution1397 (March 12, 2002), http://www.rewordify.com/index.php?wpage=2001-2009.state.gov/p/nea/rt/11134.htm

[7]For pertinent maps, see http://www.geneva-accord.org/mainmenu/static-maps/. See also West Bank “Settlement Blocs”, Peace Now, http://peacenow.org.il/eng/content/west-bank-%E2%80%9Csettlement-blocs%E2%80%9D

[8]See Protocol Concerning Safe Passage between the West Bank and the Gaza Strip Signed in Jerusalem on October 5, 1999, http://www.israel.org/mfa/foreignpolicy/peace/guide/pages/protocol%20concerning%20safe%20passage%20between%20the%20west.aspx

[9] Analysts: Jerusalem deal boosts Jordan in Holy City, Ma’an News Agency(April 3, 2013), http://www.maannews.net/eng/ViewDetails.aspx?ID=581765

[10]See Daniel Bar-Tal, “Challenges for Constructing Peace Culture and Peace Education”, and Salem Aweiss, “Culture of Peace and Education”, both in Elizabeth G. Matthews (ed.), The Israel-Palestine Conflict (London: Routledge, 2011): 209-223, 224-246.

[11]Alan Dowty, Israel/Palestine(Cambridge: Polity, 2012): 243.

[12]Yasser Okbi, “Report: Trump furthers program for Palestinian refugees in Arab countries”, Jerusalem Post(September 15,2018), https://www.jpost.com/Arab-Israeli-Conflict/Report-Trump-furthers-program-for-Palestinian-refugees-in-Arab-countries-566966

As a political theorist and professor, Cohen-Almagor is the incumbent Chair in Politics at the University of Hull, who has published extensively on political science, law, ethics and philosophy.

Legal

Look at Afghanistan; why human rights are inextricably linked with the rule of law

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Behind the guise of legality, numerous injustices have disregarded human dignity. Yet, in modern society, we often dangerously misinterpret justice and legality as synonymous. One such atrocity is ‘slavery’. However, Raz claims that ‘slavery’, does not infringe on a state’s capacity to govern within the boundaries of the rule of law. 

This is because Raz views the law through the lens of the present, ie what it is, as opposed to future aims, ie what it should be. In doing so, Raz separates the ‘law’ from any ideological, moral or philosophical ideas. Raz outlines that the law can do good and bad and has no inherent moral philosophy attributed to it. Raz’s definition makes no distinguishment between mere legality and a law that embodies justice.

However, I find this theory disagreeable, as it neglects the relationship between human rights and the rule of law.  

It is generally agreed that the primary function of the rule of law is to protect citizens from unpredictable and/or arbitrary powers (of the government or other citizens). This is impossible to do without recognising and encouraging human rights. If human rights are not upheld, the position of a group or individual within a society is not guaranteed to be secure and thus can be changed unpredictably and/or arbitrarily. One cannot protect or ensure stable prospects if their status in society is akin to a torturous limbo. 

Now, direct your attention to the current situation in Afghanistan, where citizens fear day-to-day activities in case of arbitrary power used against them. Particularly affecting women and girls. One may draw attention to female education. Whilst currently girls are allowed to attend school, the situation is growing uncertain and fearful. Without any formal recognition of the right to female education, many families may choose to not send their daughters to school, or institutions may not enrol girls just in case of a change or growing extremist pressures. Likely, pubescent girls will not be able to gain an education. Living in fear, unsure of one’s status and rights day-to-day, is not recognising the rule of law.  

Raz may argue; if there is an intelligible and accessible law banning female education, that this would constitute the rule of law. However, this is incorrect as it discriminately disregards human dignity, whereas, within the rule of law, the law must view everyone equally. This is not an ideological statement, but a practical one. If the law can arbitrarily persecute one group, there is no logical boundary preventing the persecution of another group, as all humans are made equally. The law cannot discriminate. 

But what if nobody was allowed an education? 

If we are to take Raz’s argument to its extreme it is still flawed. This is because no country that respects human dignity would ban or pervert education, as this can be linked to other fundamental rights. Any country that threatens to ban education essentially imprisons and enslaves its citizens, tyrannically stripping rights and causing a power imbalance between government and citizens. 

I echo Bingham’s opinion, that the rule of law and human rights are inextricable. Any law that offends human rights does not align with the rule of law or good governance, as there is a distinction between mere legality and observing the rule of law. 

Hosseini, an extract from A Thousand Splendid Suns;

‘“It is my responsibility to maintain order”…She was stunned that he’d used that word in the face of all that the Mujahideen factions had done- the murders, the lootings, the rapes, the tortures, the executions, the bombings, the tens of thousands of rockets they had fired, heedless of all the innocent people who die in the crossfire. Order. ‘

The law, as a tool, should be used positively, carving parameters of a present and ideal future society, ie what it should be. This ensures that human rights are predictable not only today but should be upheld in future generations too. By implementing such irremovable rights, a citizen’s position within society is secure and predictable for the future, decreasing the potential for the future tyrannical rule, encouraging good governance. 

In the current global political climate, we must not be blind. Order is not a good order. Without distinguishment, we cannot hold ourselves or others accountable for actions that disregard human rights and dignity. The notion that we should not aim for a world where human rights are respected, or at least regarded as inextricable to the rule of law, is a world that does not value human dignity. No good order, no peace can be birthed from a land tense with fear and arbitrary actions. Ironically, Biden’s recreant retreat from the ‘forever war’ has reinflicted suffering, in the name of order. When will we learn?

The rule of law is inextricable from human rights.

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Legal

The UK Constitutional Framework: Twists and Turns

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The United Kingdom is unusual in having no constitution set out in a single document. But the history of the last hundred years of near universal suffrage has not suggested that this has been an impediment to the operation of a successful parliamentary democracy and calls for change in this area, although frequent, have given rise to little visible public support. Yet our constitution has certainly not been static in this period. Both devolution to Scotland, Wales and Northern Ireland and our membership of the EU – as well as our departure from it – have all given rise to significant constitutional change.

Underpinning our system are largely unwritten rules of conduct for the executive and Parliament that create the trust which is essential for a political community to function and for minorities to accept majority decisions. This is a process of debate and legislation conducted within ground rules that ensure that all sides will feel that a matter of importance has been properly considered, with divergent views taken into account. It also provides a framework that conditions the use of executive power when the government enjoys a parliamentary majority, preventing abuse and supporting the right to opposition. When it is working, it has been one of our country’s defining strengths; both in the flexibility it gives government and in identifying us as a political community united by the way we govern ourselves.

But there are, to my mind, worrying signs that this framework is in danger of being abandoned. Recent events have created a number of instances where the government has departed dramatically from these standards.

The first example is the attempt at proroguing Parliament by the PM in September 2019. As a royal prerogative power to be exercised on the advice of the PM, it should have been obvious that it should not be used to silence Parliament at a time of national crisis, however convenient it might have been to the government to avoid parliamentary scrutiny when it was mired in a crisis with the EU on the terms of our departure. Yet not only did the government proceed with prorogation, but it also did not tell the truth about its plans to do so and was unable, when challenged in court, to provide a valid constitutional basis for it, relying in reality on an argument that the power to prorogue was a naked political power that was non-justiciable.

A similar slide from acceptable constitutional practice can be seen in the November decision to amend the Internal Market Bill in a way that was in clear breach of our inter- national legal obligations under the Northern Ireland Protocol of the Withdrawal Agreement. There was of course nothing legally to prevent the government acting in this way. Under our dualist system, an international legal obligation is unenforceable in our courts without domestic legislation and the government was going to repeal that legislation. But to deliberately break international law in this way was unprecedented by a UK government. It also required the PM to ignore his own Ministerial Code that included a requirement for ministers to respect the rule of law – which previous UK governments had argued in court included international law as well. Notably, participation in drafting the legislation was in breach of the Code of Conduct for Civil Servants for the same reason. But the Cabinet Secretary instructed them to ignore its terms to conform to the PM’s instructions.

When I was Attorney General, it was a part of the Attorney’s role not just to advise on the law but also to seek to ensure that a government behaved with propriety. It was part of the Attorney’s remit to do this because it was the policy of successive governments that they should be seen at all times to be doing so. In the case of the Internal Markets Bill, the present Attorney not only provided a “legal” justification for breaching international law that fell well outside the range of what was reasonably arguable, but also reinterpreted the Ministerial Code in contradiction of the government’s previous position, thus avoiding the embarrassment of the PM having to rewrite the Code first.

It may be hoped that these examples are a reflection of the extraordinary pressures that the government was under during the Brexit process. But such cavalier disregard for both the rule of law and constitutional convention has the potential for long-term effects. The handling of the Covid-19 crisis has seen an astonishing abandonment of ordinary rules of legislative propriety. Helped by a largely complaisant House of Commons, the Government has been enabled to enact and exploit loosely worded legislation giving it the power to regulate and penalise individuals by creating serious criminal offences by decree, without even the need for advance parliamentary approval. Not surprisingly, some of the rules have been so broad as to give rise to arbitrary enforcement and injustice. Of course, some of this may have been excusable by the nature of the current emergency, but none of it was an inevitable necessity. Rather, the measures were simply short-cuts taken for the sake of convenience. Again it was noticeable that when the Secretary of State for Health came out with dire and frankly ridiculous threats of ten year sentences for forgery for providing misleading information on a health information form, it did not look as if the Law Officers had been consulted about this policy statement at all.

Fortunately for us, these failings in our democratic processes are not at present fatal to its continuance. The Supreme Court stepped in to check the capricious abuse of the power of prorogation by the PM by interpreting the law, and the House of Lords fulfilled its remit as a revising chamber by removing the offending clauses of the Internal Markets Bill which had domestic and international opinion mobilised against them. But that is not the same as good and quiet governance to which wise governments should seek to aspire. As we head towards the next big crisis (probably with Scotland) and see the headlines filled with stories of internecine feuds within a Downing Street “Court”, we should not be complacent and assume that politics is all about the chaotic exercise of power moderated only by General Elections. We have in the past enjoyed, and are entitled to, better.

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Legal

A Runaway Decision? Discussing and Defending R (Plan B Earth) v Secretary of State for Transport

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Few events have generated quite the volume and complexity of litigation as the Heathrow expansion. In Plan B, the Court of Appeal decided that the Secretary of State’s (SoS) decision to designate a National Policy Statement (NPS) under s.5 of the Planning Act 2008—supporting plans to build a third ‘north-west’ runway at Heathrow—was unlawful. While environmental campaigners may hail the decision as a triumph against globally polluting mega-corporations, its real intrigue lies in its robust use of unincorporated treaties to determine the scope of domestic law obligations, and the Court’s determination to provide a remedy in circumstances where the unlawful decision may have been retrospectively corrected.

 

The Facts

When the SoS designates an NPS (under the Planning Act 2008, s.5), planning applications must be decided in accordance with it. The SoS supported the Heathrow expansion in the UK’s ‘Airports National Policy Statement’ (ANPS). Three grounds of appeal were made. Two concerned EU law, which failed. The third, which succeeded, challenged the SoS for failing to take into account a relevant consideration: the Paris Agreement 2016.

In making an NPS, the SoS must, under the Planning Act 2008 s.10(3), ‘have regard to the desirability of… mitigating, and adapting to, climate change’ and, under s.5(8), give reasons as to how the NPS takes government policy on climate change into account. It was common ground, however, that he did not consider the Paris Agreement 2016, an unincorporated international treaty. Indeed, he had received legal advice that he was ‘not permitted as a matter of law to take [the Agreement] into account’ ([237]).

 

Treaty Incorporation

The issue that arose was whether the SoS was required to take the Paris Agreement into account as ‘government policy’. In deciding that it was a relevant consideration, the Court has been accused of incorporating international law ‘through the back door’: that is, without the consent of Parliament. Mills (2020) sees a tension with this outcome and the principle of ‘dualism’ in the British Constitution, by which treaties do not form part of domestic law ‘until incorporated by legislation’. Campbell (2020) also questions the desirability of requiring the Agreement to be taken into account, because the ‘political substance’ of the decision is left open to challenge, transgressing the Court’s judicial function. I will test both criticisms in turn.

To Mills, we first must assert that the Court is not acting on its own terms, giving the Paris Agreement a life of its own. It is given a clear warrant to do so by s.5(8) of the Planning Act 2008, which requires ‘government policy’ on climate change to be taken into account. If it is correct to consider the treaty ‘government policy’ (our second criticism, considered later) then the conclusion is surely that the Court is requiring something ‘conventional’ ([230]): that the ‘executive must comply with the will of Parliament’ ([229]).

Furthermore, using unincorporated treaties to define the scope of statutory obligations is not a radical, controversial prospect; indeed, it is entirely conventional. For example, in R (Al-Jedda) v Defence Secretary, the House of Lords used several unincorporated treaties (UNSC Res 1545 and Article 103 of the UN Charter) to define the scope of rights under the Human Rights Act 1998. Several other cases follow the same example, such as Occidental Exploration v Ecuador.

To Campbell, we start with the Cambridge English Dictionary’s definition of ‘policy’: ‘a plan of what to do [that] has been agreed to [by] a government’. With this definition in mind, several factors are pointing towards the Court’s decision being correct. Not only did the Government ratify the treaty in 2016 (making it a ‘plan’ that has been ‘agreed to’), they actively agreed to adhere to it in several Ministerial statements ([237]). As the Court correctly states, ‘policy is necessarily broader than legislation’ ([224])

Moreover, a narrow definition of policy would be undesirable from the perspective of good administration. This case sets a precedent that the Government must adhere to its promises, preventing Ministers from breaking political commitments with impunity. This is not a challenge to the ‘political substance’ of the decision, as Campbell suggests, but the legitimate use of an unincorporated treaty, through the warrant of statute, to ensure the Government does not regress from its promises.

 

The Question of Relief

The Government then argued that the court should refuse to grant a remedy. This was because, even though the SoS had not taken the Paris Agreement into account when developing the ANPS, he would still have considered it when individuals apply for specific projects related to the policy. Thus, it would be ‘highly likely’ that the outcome would not have been ‘substantially different’ if the Paris Agreement had been taken into account, per s.31 of the Senior Courts Act (SCA) 1981 ([274]).

Nevertheless, the Court granted a declaration of unlawfulness. It did not matter that the unlawfulness in the policy designation could have been rectified later: it was ‘incumbent on the Government to approach the decision-making process in accordance with the law at each stage’ ([275]). Furthermore, the public interest in climate change issues would have warranted the provision of a remedy in any case ([277]), per SCA 1981 s.31(2B).

It is easy to see why Campbell (2020) has criticised the case as ‘insufficiently cautious’ with the provision of remedies. The modification of the SCA 1981 was intended to expand the number of cases in which courts would refuse to provide a remedy from the stringent Simplex test. Under this old test, it was necessary to show that the decision-maker ‘necessarily’ would still have made the same decision. This threshold was lowered because the Government was concerned with ‘busybodies’ challenging, for example, planning decisions—abusing judicial review and disrupting infrastructure.

Despite this, the Court stated that ‘Parliament has not altered the fundamental relationship between the courts and the executive’ ([273]). This means that, even under the Act, courts should not assess the ‘merits’ of the decision. For this reason, it will be ‘difficult’ or even ‘impossible’ to refuse a remedy where there has been an error of law ([273]).

There is a paradox at the heart of this dictum. The Court seems cautious by refusing to contemplate the merits of the decision; but, in so doing, the judges are expanding, not restricting, their powers. Under the pretence of keeping to their proper role, they are ensuring that the rule of law is upheld to a standard not far from the original Simplex test. I would suggest that this is because the Court is overusing the term ‘merits’. Assessing the ‘merits’ is asking the question: is the decision correct? This is not what the Court is asking by refusing to grant a remedy. It is asking: what are the likely implications of the decision? These questions are related, but they are not the same. Indeed, if the Court is cautious to consider the implications of a decision it is hard to see when a remedy would ever be, in reality, refused.

Nevertheless, the decision is correct on the facts. Two points should be remembered. First, the Court was especially firm because the SoS had received legal advice to the effect that the Government was not permitted to take the Paris Agreement into account. This was a clear ‘misdirection’ in law ([275]), and it is possible to see why this is—at least slightly—more significant than neglecting to consider the Agreement. Second, the Court did not quash the decision, instead merely granting a declaration of unlawfulness. I would suggest this, in fact, takes careful consideration of the seriousness of the error and the consequences of the breach.

 

Conclusion

Although, at first glance, this case might look like judicial overreach, I have argued that Plan B enforces reasonable, robust limits on administrative discretion. The Government has decided not to appeal this decision—little wonder, given Boris Johnson’s pledge to ‘lie down in front of those bulldozers and stop the construction’ (Carrington (2020), The Guardian)—but Heathrow will do. The fasten-seatbelt sign has come on: there is more turbulent legal thinking to come.

 

Many thanks to Frederick Cheng for his valuable comments on the first draft of this article and to Professor Alison Young for her initial guidance. All remaining errors are my own.

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