Environment Bill

Baroness Whitaker Excerpts

Committee stage
Wednesday 14th July 2021 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I was actually disappointed—but perhaps not surprised—to see this amendment tabled by the noble Baroness, Lady Bennett of Manor Castle. For some time, I have been following the way in which “ecocide” has become a fashionable term to hype up human engagement with nature in a wholly negative way. I am not as familiar as the noble Baroness is with the legal definitions that she explained, but I feel that “ecocide” is an especially emotive word cynically designed to invoke thoughts of evil genocide. It implies that our relationship with nature and the different ways in which we interact with the environment are as heinous, deliberate and destructive as the Holocaust—which, to be frank, I find distasteful.

The term I am more familiar with is on the level of cultural discussion and the way in which the term “ecocide” has been used to criminalise, even if metaphorically, a whole range of human activities that have an impact on the environment. There is an unpleasant misanthropic aspect, as well, in associating human impact with wanton ecological destruction—something that I raised in my remarks at Second Reading.

Reading the literature on ecocide over the years, I have seen humans described as “a cancer on the environment”, “a parasite species on the planet” and “a virus infecting the earth’s body”. This emphasises the negative aspects of human culpability and destruction, rather than seeing humanity and civilisation as a source of creative solutions, which is more helpful. Civilisation and development have allowed our species to use knowledge, reason, ingenuity and innovation to aspire to improve the conditions of life. I would rather we celebrated the huge gains of the progress, political change and technological innovation that have driven humanity from the Stone Age through to the 21st century, yet “ecocide” and the discussion around it focuses wholly on humanity as an agent of destruction.

I worry that the whole discourse on “ecocide” expresses a disillusion with those gains—the fruits of modernity and the economic growth that we have benefited from and witnessed, particularly in the West. It views the rapid development of the rest of the world in a wholly negative way, as though somehow the use of fossil fuels in order to grow is potentially akin to mass murder, as the comparison with genocide suggests. It flirts dangerously closely with romanticising Stone Age lack of development elsewhere. In debates on earlier groups of amendments, I heard a number of noble Lords criticise GDP and say that it does not represent very much. Well, in my view, we do not have enough GDP. I want more of it for the masses of the world. Certainly, without it, well-being is nigh on impossible, and I have worried throughout this discussion on the environment that a clash is being set up between GDP—that is, economic development and growth—and matters around the environment.

It certainly seems to me that charges of activities typically dubbed ecocide are too easily levelled at countries and people trying to develop to escape immiseration, poverty and hunger. China, India and Brazil are often discussed in these terms, and I wonder who will be charged with ecocide. The noble Baroness, Lady Boycott, listed a number of big bad companies—in her view. That anti-corporate “They should be held responsible and blamed for the people killed” is something we are familiar with.

But I worry that ordinary people in Brazil and other parts of the developing world are implicated and criminalised for felling forests and clearing land for agriculture, as we in the West have done before and benefited from, in industrial revolutions and modernisation. I get nervous, in this discussion of ecocide, of a rather arrogant neocolonial instinct about who will be accused of ecocide, who will police those accused of it and even whether it will become a justification for western intervention, with all these green-helmet lawyers going around the world saving nature from the destructive activity of ordinary people. I totally reject this amendment.

[Baroness Whitaker (Lab)]

My Lords, it is interesting to hear the views of the noble Baroness, Lady Fox, but I take a different line. As a member of Peers for the Planet, I congratulate the noble Baroness, Lady Bennett of Manor Castle, on introducing the concept behind these amendments to your Lordships’ House and I am pleased to add my name to them.

I confess I was disappointed when my questions to the noble Lord, Lord Goldsmith, about adding the crime of ecocide to the Rome statute received, first, the answer that there were no such plans. His next answer, which I have just received in time—for which I am grateful—adduced various traditional diplomatic reasons, but I still hope we can make a start. I think we should.

Of course, ecocide is an innovatory idea, and innovations are disturbing and disruptive. This one requires different thinking about human rights. The Rome statute and, for that matter, the United Nations human rights instruments have a specific human focus on what is needed to establish and maintain well-being. We in the UK have taken an even narrower view, in that we have not implemented the economic and social rights set out in the convention, only the civil and political ones. But the concept of ecocide is hardly dangerously revolutionary; it was mooted by Olof Palme in 1972 and, as the noble Baronesses, Lady Bennett and Lady Boycott, say, France and others are in the process of incorporating it into their laws.

Our environment is so critical to our well-being that we need to think in new ways about how to protect it from the damage being done to it. I think all your Lordships value our natural environment. That clearly emerges from the debates on this Bill and the answers of the noble Lord, Lord Goldsmith. We should put that into practice by cherishing its biological and botanical elements and, therefore, ought to support efforts to get this into international law.

Already one of our most distinguished human rights lawyers, Philippe Sands QC, is working on how this value can be made justiciable at the International Criminal Court. The definition has now been agreed by all 12 of the eminent international lawyers in the group he chairs. For once, I hope our Government can be a bit ahead of the curve and support these amendments.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I congratulate the noble Baroness, Lady Bennett of Manor Castle, on tabling these two amendments, which give us the opportunity to consider these important issues. I broadly welcome the principles underlying them both and will take each in turn, first, that relating to international law. Before doing so, I briefly mention, as disclosed in the Members’ register, that I am a vice-president of the European Law Institute. Although I am not directly involved in its work, to which I will refer, I take a close interest in it.

It is important to appreciate that the development of international crimes has, over the centuries, reflected the desire of nations to ensure that international criminal law keeps pace with evolving standards. At present, the only international environment crime under the Rome Statute of the International Criminal Court is environmental damage as a war crime, under Article 8(2)(b)(iv). It has a high threshold, as it requires:

“Intentionally launching an attack in the knowledge that such attack will cause … widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.


That is a high standard and is set out in the context of war, but we have moved on. It is now necessary for us to examine what should be an international crime in the context of the environment outside war.

Progress has been made in a number of individual conventions directed at certain trades but, as was set out in the 2018 report of the UN Secretary-General, Gaps in International Environmental Law and Environment- related Instruments: Towards a Global Pact for the Environment, there is no single overarching framework. The law is piecemeal and reactive and, for the most part, conventions depend on national law for their enforcement.

In this context, the important steps of the last few years have seen developing impetus for the designation of a more general crime of ecocide triable before the international court. As the noble Baroness, Lady Bennett, mentioned, the late Polly Higgins spent much of the latter part of her life moving this forward. Again, as has been mentioned, last month, a panel of international experts put forward a definition of ecocide. While this requires detailed consideration and, in my view, further work, it is a further important step in getting to grips with establishing an international crime.

It seems plain to me that transnational concern for the environment and evolving standards have now reached the stage where the international community can begin to move towards designating ecocide as an international crime. I therefore ask the Minister, given Britain’s new global role, where it is important that we show leadership, what steps are we taking as a nation to keep up with this evolving international standard, in accordance with the long traditions of the development of international criminal law?

In parallel to this work, as it may take some years to move international criminal law forward—one has to be realistic about this—the UK ought to consider moving forward its own criminal law to establish the crime of ecocide, or other similar crimes, as set out in Amendment 293D. As has been mentioned, the European Law Institute is looking at a number of matters: first, the definition put forward by the panel of experts; but, more importantly in the domestic context, devising a model law. This would primarily be for the use of the European Union but, as the institute is Europe-wide, for other nations as well. It will provide a definition and workable set of principles to criminalise this activity and, importantly, civil remedies in tort or delict. I therefore welcome Amendment 293D in principle, although it is clear that more work needs to be done in this area.

Therefore, my second question to the Minister is: what are Her Majesty’s Government intending to do in this respect? Have the Law Commission and the Scottish Law Commission, which are the prime movers of legal thought in England, Wales and Scotland, been asked to consider this work and provide a crime of ecocide?