Worth the Paper that it's Written On? An Analysis of Statutory Duty in Modern Environmental Law

摘要

Whilst reform of standing would primarily benefit public law actions, wider powers and expedited procedures could also address weaknesses of private law. Where statutory duties are specified and enforceable and owed to individual members of the public, this should be clearly specified; and then the law should ensure consistency and efficacy in their enforcement. A more systematic approach is required both in the development of the relevant legislation and its enforcement. In 1949, in a much-quoted passage, Lord LeParcq commented, in essence, that it would be preferable for Parliament to specify as a matter of course, when creating statutory duties, whether or not they were to be enforceable by individuals adversely affected. With the proliferation of such duties, such routine consideration by the legislature is acutely lacking and would avoid the complex, sometimes impenetrable and rarely principled, case-by-case analysis of the modern law. Where there are new categories of political duties, such as the SD duties, it will take an imaginative as well as systematic review if these are to be worth more than the paper they are written on. Of course it is arguable that Parliaments intend these to be no more than statements of political intent, informing policy development and nothing more. In the new SD strategy the Government discusses these duties and whether they should be more widely enacted, in the context of the bodies concerned taking forward the strategy. There is no suggestion of a radical approach to their enforcement, and considering the judgment in Gorringe, where the HL made much of the burden on public authorities of defending these types of actions, there are arguments against allowing these to be raised as questions of private law. However, reading the debates in committee, both in London and in Edinburgh, it is hard to imagine that the enthusiasm for the inclusion of these duties would have been as strong if the members had realised that the duty was simply unenforceable, because there was no way of specifying its content, no-one who could pursue it in the courts and no available remedy for its breach. It is desirable now to devise mechanisms that would enable these duties, and progress towards them, to be properly assessed; such a forum could then also be used to expedite the efficient consideration of relevant duties giving rise to private rights and remedies.