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The Changing Winds of Planning Law

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8 June, 2013
Catherine Caine, Environmental Law, Planning Law
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I(mage Source: http://www.flickr.com/photos/65193799@N00/34030128/)

– Catherine Caine (LLM Environmental Law and Policy, Newcastle University) c.a.caine@newcastle.ac.uk

Wind farms have often managed to divide the nation. Whilst some view wind turbines as a clean solution to our energy sourcing problems, others regard them as a blight on our countryside. Both sides have fought their arguments with passion and rigorous debate. However, one undeniable fact running alongside the wind farm debate is that our need to mitigate climate change cannot be ignored. By agreeing to increase the proportion of renewable energy in the UK’s total energy consumption figures to fifteen percent by 2020, the UK has already made a commitment within the European Commission to change for the future. However, recent news indicates that a change in planning guidance could compromise the UK’s ability to meet such targets.

Following on from the Coalition Government’s Localism Act 2011, the focus on planning law has shifted towards a decentralised system whereby local communities are afforded the opportunity to have their say in local planning decisions. Within this, a general power of competence was afforded to local authorities to allow them to take reasonable action needed for the benefit of the authority, relevant area and residents. It is anticipated that upcoming planning guidance will allow local authorities and residents to have a greater say on whether or not wind turbines should be erected within their area. The announcement has created somewhat of a double-edged sword whereby local communities are capable of overriding national energy requirements by refusing plans to construct wind farms; however, increased financial incentives will be imposed to encourage local communities to consider wind energy. The Energy Secretary, Edward Davey, has stated that the announcement “will ensure that communities see the windfall from hosting developments near to them, not just the wind farm”.

The expected planning guidance will “see a five-fold rise in the benefits paid by developers to communities hosting wind farms”, with subsidies provided to the local communities that decide to include wind farms in their planning decisions. The wind farm company RES in Meikle Carewe near Aberdeen has demonstrated how a similar scheme can be of benefit to the local community with local residents receiving £122 off of their annual electricity bills. Interest in the scheme has been expressed in Bryn Llywelyn, Wales, with three-quarters of residents showing an interest in taking part in the scheme offered by RES. By providing a financial incentive to local residents for the construction of wind farms, it is arguable that wind farm development will begin to see a shift in popularity.

However, as well as providing a financial incentive to the communities that do wish to utilise wind energy, the planning guidance will also allow communities that do not wish to reap the benefits of wind energy to refuse wind farm development in their area. Many views on this aspect of the proposed guidance suggest that the reforms could in fact allow a nation of ‘NIMBYs’ (“not in my back yard”) to kill our future of onshore wind farms. The argument presented by Mark Prisk, Housing Minister, clearly states that the need to meet the UK’s energy targets does not justify “the wrong development in the wrong location.” However, the extent to which a community should have the right to determine the energy infrastructure of the UK can be called into question. Indeed, if the local communities surrounding some of our largest power stations had the opportunity to refuse their development on the basis of a NIMBY attitude, the energy infrastructure that the UK enjoys today would look dramatically different. It is well understood that nobody wants to suffer an eyesore in their area. However, without the eyesore, there can be no energy generation.

The anticipated planning guidance will not only have an impact on a local scale. With the potential refusal from local communities to tolerate onshore wind farms, the UK’s targets within the European Commission could also be affected. However, with the Coalition Government opposing attempts to set new renewable energy targets, opting instead to focus on a new decarbonisation target for 2030, it has been argued that the Government is refusing to commit to renewable energy through its preference for the use of shale gas. The anticipated planning guidelines reflect this non-committed approach from the Government towards the use of renewable energy as a main source of the UK’s energy.

Whilst the effect that the upcoming planning guidance will have on future wind farm developments in the UK remains uncertain – the fact that wind farms divide the nation, and are likely to continue to do so, remains undisputable.

All Liars: Thatcher and the Troubles

By
25 May, 2013
Colin Murray, Constitutional Law
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MARGARET-THATCHER---1983-007

– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

‘I’ve got one thing to say to you, my boy … you can’t trust the Irish, they are all liars … and that’s what you have to remember, so just don’t forget it’. Death cannot constrain the effervescent charm of Margaret Thatcher. Or maybe Peter Mandelson, who revealed this gobbet of bile to the world in the aftermath of her death, still knows how to skewer his political opponent with an anecdote to which she can’t very well respond.

Fabrication or not, the story had enough of a ring of truth to it to eat up column inches in the aftermath of Thatcher’s funeral. Kevin Meagher’s New Statesman blog post sums up the reflexive response the story; the quote was the product of ‘Thatcher’s own strident unionism’. Conversely, claims by her official biographer, Charles Moore, that her hatred was directed only towards terrorists and not to the Irish as a people, and that her comments to Mandelson reflect the early stages of her dementia, seem all-too-convenient.  I’m not sure that the story can be dismissed as either simple paddy-wackery, or that her comments can so easily be brushed under the table.

Thatcher was UK Prime Minister throughout the bloody slog of the 1980s (and a cabinet minister and leader of the opposition for the 1970s). She had therefore been party to most of the false starts and peace initiatives of these decades. Moreover, Mandelson revealed that their conversation took place at the time of his appointment as Northern Ireland Secretary, in the crucial phase after the introduction of power sharing following the Good Friday Agreement, when negotiations were still needed to bed-in policing reforms, secure paramilitary decommissioning and bring the DUP fully round the table. The “all” in her statement is telling. Loyalist, unionist, nationalist and republican were, for Thatcher, allIrish, and were arguably the collective subject of her ire.

The loss of her Shadow Northern Ireland Secretary (and the man who had masterminded her Conservative Party leadership campaign), Airey Neave, to an INLA car bomb just over a month before her 1979 general election triumph is often regarded as having a dramatic impact on her approach to the Troubles. It certainly affected the early years of her administration. In many respects Enoch Powell, Ulster Unionist MP for South Down since 1974 (having been exiled from the Tory party in the wake of his “Rivers of Blood” speech), is the Svengali of the piece, trying to control Thatcher’s administration from off-stage.

Powell was convinced that only full integration of Northern Ireland within the centralised government structures of the UK could avert a united Ireland. He met with Thatcher privately, goaded her publically and at one point even claimed to have struck a secret deal with Airey Neave over the direction of Northern Ireland policy. Under this influence, the Thatcher administration seemed to hold firm to a policy of greater integration of Northern Ireland with the remainder of the UK. Her government did not see any return to special measures such as internment. The use of targeted extra-judicial killings, such a prominent part of Labour’s policy in the late-1970s, was scaled back. Instead, Thatcher was determined to deal with terrorism in Northern Ireland through the “ordinary” criminal justice process (at least, as ordinary as any system using Diplock Courts and a raft of special terrorism offences can be): ‘Crime is crime is crime, it is not political’. Her attachment to this position, which saw the removal of Special Category Status for all paramilitary prisoners in March 1980, precipitated the Hunger Strikes of 1980-1981.

The Thatcher Government’s integration policy, however, was never as dogmatic as her critics have made out. “Criminalisation” was less a gut reaction to groups Thatcher would gladly have dealt with by entirely military means, than a way of buying off Powell and his acolytes. For as Thatcher conveyed the public image that violence in Northern Ireland would be treated by her Government in the same way as violence anywhere else in the UK, her ministers were laying the foundations for a major effort to address nationalist grievances over the mis-government and abuse of power in the Stormont Parliament era. From 1980 onwards, White Papers began to hint towards an “Irish dimension” in Northern Ireland’s governance.

A culmination of factors brought the new policy to fruition. First, the Hunger Strikes broke the integrationist spell. “Treat Northern Ireland like any other part of the UK” was clearly an inadequate prescription. Powell’s grip on Thatcher weakened as her own star rose following the Falklands War. When Argentina invaded the Falkland’s Powell had thrown the Iron Lady epithet in Thatcher’s face, telling Parliament that the weeks ahead would show “of what metal she is made”. Two years later, the Brighton bombing might well have increased Thatcher’s hatred for Republican groups, but it also gave her useful leverage to deal with them. The final, and most important, piece of the puzzle came about with the election of theFine Gael-Labour Coalition Government in Ireland in December 1982. It is easily forgotten at 30-years remove how powerfully Charles Haughey feared that doing a deal with Thatcher would alienate his republican base. Indeed, the archives of the Thatcher Foundation reveal how Haughey-Thatcher negotiations would often send UK policy “back to the drawing board”. The Coalition Government avoided these preoccupations.

Despite this confluence of favorable circumstances in the early 1980s, it soon became clear to Garret FitzGerald that Thatcher herself was an impediment to inter-governmental negotiations, not necessarily for the UK Government view she put across, but for her own relentlessly patronising manner. The Anglo-Irish Agreement which emerged from these tortured sessions (and more substantively, from civil service an ministerial meetings at which Thatcher was absent) stands as a legal landmark, introducing permanent as opposed to ad hoc inter-governmental co-operation in the governance of Northern Ireland and a permanent secretariat, part-stocked by civil servants from the Republic, based in the Belfast suburb of Maryfield. Thatcher held her nose, held her nerve, and signed.

At a swoop, the Agreement sundered Enoch Powell’s efforts to have Northern Ireland fully integrated into the remainder of the UK. He seethed, and amid the “Ulster Says No” protests he once again harried Thatcher in Parliament, warning her that ‘the penalty for treachery is to fall into public contempt‘. The Unionist MPs launched a mass series of by-elections to highlight their fury, with Powell narrowly retaining his seat.

The Agreement’s short term impact was to deepen divisions. It would take over a decade for ardent anti-Agreement Unionists like Michael McGimpsey (who famously challenged the constitutionality of the Agreement before the Irish Supreme Court) to advance to the front rank of pro-Good Friday Agreement Unionism. But members of Thatcher’s Government laboured to make the Anglo-Irish arrangements work and to spur other peace initiatives. Only the declassification of documents under the thirty-year rule will disclose the full extent of Thatcher’s knowledge of the first, tentative, Hume-Adams talks in 1988. Nonetheless, the message put across in Northern Ireland by her last Northern Ireland Secretary, Peter Brooke, built on this dialogue. Brooke would be the first Northern Ireland Secretary to float the idea that future talks could involve Sinn Fein, opening the channels for dialogue into the 1990s.

Looking back at the Anglo-Irish Agreement now, its position as a “game-changing” event in Northern Ireland’s history seems self evident. But, in publishing her memoirs The Downing Street Years in 1993, Thatcher was still patently queasy about her administration’s approach to Ireland, and about the Agreement in particular:

I started from the need for greater security, which was imperative. If this meant making limited political concessions to the South, much as I disliked this kind of bargaining I had to contemplate it.

Even in 1998, when the co-operation between the UK and Irish Governments had borne fruit in the Good Friday Agreement, Thatcher could not resist scratching at old wounds. Reviewing a biography of Enoch Powell, she came close to dismantling her own legacy, revealing how Powell’s barbs in the aftermath of the Agreement had wounded her: ‘hisassessment was right, though I wish that on this as on other occasions he had been less inclined to impugn the motives of those who disagreed with him’.

I often seem to reach for the adage that if some policy or actor in Northern Ireland politics seems to be annoying all sides then they must be doing something right. Perhaps Thatcher is the exception to the rule.Throughout her tenure as PM she found herself neck deep in the skullduggery and machinations of Troubles-era politics. Republicans tried to murder her andmurdered her colleagues and friends. Unionists repudiated her with all the vitriol they could muster. If she did hate the Irish, collectively, then to all intents and purposes it must have seemed to her that the feeling was mutual.

And yet the Anglo-Irish Agreement and Hume-Adams talks were the foundations on which the peace process was built. Thatcher must at once be seen as a figure who deepened the divides of the Troubles and who ultimately helped to pave the road out. Ironically, for the woman who brought Saatchi & Saatchi into UK politics, an image problem will forever hang over her achievements in Northern Ireland. The impression lingers that what good she did, she often did in spite of herself.