Chris Hilson

New social movements: the role of legal opportunity

The article seeks to introduce the idea of legal opportunity into social movement theory. It suggests that while lobbying, litigation and protest have all been studied by political scientists as strategies for policy change, they have tended to consider the three in varying degrees of isolation. The article aims to remedy this by providing an integrated analysis of all three types of strategy, in a domestic and EU context. Four social movements - the womens movement, the environmental movement, the lesbian and gay movement, and the animal welfare movement - are used as examples in this respect.

Legitimacy and rights in the EU: questions of identity

ABSTRACT Rights as well as democracy play a crucial role in the legitimacy of the EU and constitutional patriotism has been influential in attempting to link them together. The article seeks to engage in a critique of constitutional patriotism on two fronts. First, it distinguishes between the various types of right that exist within EU law – Community, citizenship and fundamental – and then analyses the place of these rights within various political models of the EU ranging from nationalism to republicanism. It argues that constitutional patriotism does not enjoy a monopoly on rights discourse in the EU: most models of the EU see a place for rights; it is just that the type of right supported varies. Secondly, advocates of constitutional patriotism argue that EU rights generate European identity. The article questions the extent to which this is the case, arguing that identity potential varies considerably according to the type of EU right concerned.

Risk and the European convention on human rights: Towards a new approach

The aim of this chapter is to provide an initial attempt at analysis of the place of risk within the case law of the European Court of Human Rights (ECtHR) and, where appropriate, the Commission, focusing on the related issues of public concern and perception of risk and how the ECHR dispute bodies have addressed these. It will argue that, for quite some time, the Court has tended to adopt a particular, liberal conception of risk in which it stresses the right of applicants to be provided with information on risk to enable them to make effective choices. Historically, where public concerns in relation to particular risks are greater than those of scientific experts—nuclear radiation being the prime example in the case law—the Court has adopted a particularly restrictive approach, stressing the need for risk to be ‘imminent’ in order to engage the relevant Convention protections. However, more recently, there have been emerging but as yet still rather undeveloped signs of the Court adopting a more sensitive approach to risk. One possible explanation for this lies in the Court’s growing awareness of and reference to the Aarhus Convention. What we have yet to see—because there has not yet been a recent, post-Aarhus example involving such facts—is a case where no imminent risk is evident. Nevertheless, the chapter concludes that the Court’s old-style approach to public concern in such cases, in which it rode roughshod over rights to judicial review, is out of line with the third, access to justice limb of Aarhus.

EU citizenship and the principle of affectedness

The principle of affectedness, also known as the ‘all-affected’ principle, is one of the key tenets of democratic theory. At its heart, the principle is a straightforward one, encompassing as it does the idea that all those who are affected by a political decision should have a say in its making. The question raised by this chapter is what role, if any, the principle does and should play within EU citizenship. Given the close link between citizenship and democracy, the chapter will inevitably need to consider the debates about the affectedness principle that are found in the literature on democracy (Dahl 1970; Whelan 1983; Saward 2000). However, the principle is also used in areas which — while not directly connected with democracy — are of key importance from a citizenship perspective. As we shall see, it is, for example, employed as a means of limiting the personal scope of accountability-related citizenship rights such as access to the European Court of Justice (ECJ). The chapter thus seeks to add to the existing literature by considering the part played by the principle in this, more obviously ‘legal’, area of citizenship.

The margin of appreciation, domestic irregularity and domestic court rulings in ECHR environmental jurisprudence: Global legal pluralism in action

Global legal pluralism is concerned, inter alia , with the growing multiplicity of normative legal orders and the ways in which these different orders intersect and are accommodated with one another. The different means used for accommodation will have a critical bearing on how individuals fare within them. This article examines the recent environmental jurisprudence of the European Court of Human Rights to explore some of the means of reaching an accommodation between national legal orders and the European Convention. Certain types of accommodation – such as the margin of appreciation given to states by the Court – are well known. In essence, such mechanisms of legal pluralism raise a presumptive barrier which generally works for the state and against the individual rights-bearer. However, the principal focus of the current article is on a less well-known, recent set of pluralistic devices employed by the Court, which typically operate presumptively in the other direction, in favour of the individual. First, the Court looks to instances of breaches of domestic environmental law (albeit not in isolation); and second, it places an emphasis on whether domestic courts have ruled against the relevant activity. Where domestic standards have been breached or national courts have ruled against the state, then, presumptive weight is typically shifted towards the individual.

Rights and principles in EU law: a distinction without foundation?

Both rights and principles have long existed in EU law. The Charter of Fundamental Rights - made newly binding by the Lisbon Treaty – attempts to draw a distinction between the two types of norm. This article explores in depth the question of whether such a differentiation can easily be made, drawing from both the literature on rights and the Charter, and that on principles (particularly environmental principles). It examines a range of ways in which rights and principles might be thought to differ – including in terms of autonomy, whether they are single- or double-sided in scope, their legal impacts (binding or non-binding), forms of accountability (legal or political), and their jurisprudential nature. Having found that similarities abound rather more than differences, the article concludes by arguing that the weight placed on the distinction by the Charter is untenable.

Liability of Member States in Damages: The Place of Discretion

In Francovich the European Court of Justice set out the conditions of liability of member States in the case of non-transposition of directives: first, the directive must confer rights on individuals; second, it must be possible to determine the content of those rights from the provisions of the directive; and third, there must be a causal link between the breach of the States obligation and the damage suffered.

The impact of Brexit on the environment: exploring the dynamics of a complex relationship

The departure of the United Kingdom (UK) from the European Union (EU) (often referred to as ‘Brexit’) is likely to have a significant impact on the environment. In this article I argue against seeing the traffic as all one way. While there was a temptation for the advocates of staying in the EU, in the context of referendum campaigning, to portray the UK as a laggard pressured into positive environmental performance by the EU as leader, the reality is that the UK has also strengthened the EU’s environmental policy in some areas and seen its own weakened in others. Influence in both directions has also varied over time. The article goes on to consider core ‘Leave’ arguments around sovereignty and ‘taking back control’, exploring the implications of these in the specific context of environmental governance. In discussing subsidiarity, it concludes that leaving the EU will not remove the need for pooling some sovereignty over environmental matters at the international level and, in the context of devolution, at the UK level.

Environmental SLAPPs in the UK: threat or opportunity?

abstract Strategic lawsuits against public participation (SLAPPs) brought against the environmental movement in the UK since the 1990s are examined. SLAPPs, a form of Green backlash, have been mobilised across a wide range of policy areas that have seen vigorous campaigning and protest by the movement, including roads, GMOs and, more recently, climate change. SLAPPs are typically regarded as a threat, designed to close down democratic free speech and protest. However, in the UK, there are some notable cases where the environmental movement has been able to use agency to convert what may appear as a legal threat into a positive legal or media opportunity.

Climate Change Litigation: A Social Movement Perspective

Climate change litigation has been the subject of intense academic debate in recent years, but there has been little research carried out on it in the UK or from a social movement perspective. The aim of this article is to use developing UK litigation associated, in particular, with coal fired power stations and airport expansion as case studies for examining the way in which the climate change movement and the state authorities and media have engaged in a subtle ‘framing’ war. The article sets out the idea of soft versus hard frames and argues that the movement’s attempt to employ soft frames in relation to coal and airports has often faced hard counter-framing from its adversaries.