Ben Christman ‘Making a Case for Legal Research on Fuel Poverty in the UK’ Sheffield Postgraduate Fuel Poverty Symposium 16/11/12

Introduction - Aims of the Talk 1. Mapping Fuel Poverty Law 2. Can the legal response to fuel poverty be improved? The Warm Homes and Energy Conservation Act 2000 (WHECA). 3. Legal Research on fuel poverty

1. Mapping Fuel Poverty Law Fuel Poverty Strategy Warm Homes and Energy Conservation Act 2000 (fuel poverty strategy and definition). Schemes/Duties to Help Implement the Fuel Poverty Strategy Sustainable Energy Act 2003 – duty to publish a ‘sustainable energy report’ on the progress made towards ‘reducing the number of people living in fuel poverty in the United Kingdom’ Climate Change and Sustainable Energy Act duty to have regard to ‘the desirability of alleviating fuel poverty’ and for local authorities to publish ‘energy measures’ reports which consider fuel poverty. Green Energy (Definition and Promotion) Act 2009 – general duty to have regard to ‘the desirability of alleviating fuel poverty’ in relation to duties on microgeneration. Climate Change Act 2010, S10(2)(e) – CCC/SOS to consider fuel poverty impacts when making ‘carbon budgets’. Energy Act 2010 – SOS given powers to ‘create schemes for reducing fuel poverty’. Warm homes Discount Regulations 2011 – powers to carry out the ‘Warm Homes Discount Scheme’. Forthcoming Energy Act (2013?) – electricity market reform likely to have fuel poverty impacts.

Case Law The Queen on the Application of Friends of the Earth and Others v Secretary of State for Energy and Climate Change [2009] EWCA Civ Mapping Fuel Poverty Law

2. WHECA 2000 A.WHECA 2000 – fuel poverty strategy requirements: (i) Aim. (ii) Content. (iii) Provisions for review. B. Alternative legal responses to fuel poverty?

2. WHECA 2000 A. (i) Aim of the Fuel Poverty Strategy S2(1) - It shall be the duty of the appropriate authority to prepare and to publish... a strategy setting out the authority’s policies for ensuring... that as far as reasonably practicable persons do not live in fuel poverty. Analysis Known as a ‘target’ or an ‘outcome’ duty – ‘as far as reasonably practicable’ - weak, non-mandatory ‘legalese’ – provokes an unfavourable comparison with the Climate Change Act Judicial interpretation of ‘as far as reasonably practicable’ (FOTE/Age Concern case) - “this is the language of ‘effort’ to achieve targets, rather than of a guarantee that targets will be reached”. Polycentricity issues (King). Dangers of legal symbolism/hollowness (Smith).

A. (ii) Content of the fuel poverty strategy S2(2) – The strategy must – (c) Specify interim objectives to be achieved and target dates for achieving them. (d) Specify a target date for achieving the objective of ensuring that as far as reasonably practicable persons in England or Wales do not live in fuel poverty. S2(3) – target date no more than 15 years after the date on which the strategy is published (2016). Analysis No mandatory interim objectives – offers flexibility, perhaps too much? Climate Change Act 2008 – government must set 5 year carbon budgets. Clear final goal of ending fuel poverty by 2016 – weak commitment. 2. WHECA 2000

A. (iii) Review of the Strategy S2(6) – The Secretary of State shall... from time to time assess the impacts of steps taken (to implement the strategy)... from time to time publish reports on such assessments. Analysis Weak review obligations – a result of which little review and learning has taken place – although see duties under Climate Change and Sustainable Energy Act 2006 to produce ‘energy measures’ reports. Need for government to reflect on the steps taken and consider improvements – known as ‘reflexive’ law (Teubner and Orts). No provision for strategy review? No duty to amend the strategy if interim targets are not met. 2. WHECA 2000

B. Alternative Legal Responses (i)Fuel poverty commission? e.g. UK Equality and Human rights commission. Issues – Extent of powers, costs, political aversion to ‘quangos’, accountability issues, relationship with FPAG. (ii)Rights-based approaches – Create a new human right: a ‘right to a warm home’? Improve existing rights such as housing rights? Use existing rights creatively – e.g. ECHR article 2, the ‘Right to Life’ – could this be used to tackle winter deaths? Issues with rights approaches – enforceability, individualism, vagueness, invites legal battles over social policy.

3. Legal Research on FP What is the state of knowledge? Danger of ‘legalism’ – can the law help to solve fuel poverty? My research – analysis of the legal response to fuel poverty from a ‘climate justice’ perspective.

Conclusion WHECA 2000 is well-intentioned – but the obligations within it are weak and have been ineffective. Fuel poverty needs a more sophisticated legal response. More broadly, fuel poverty seems ripe for legal research, reform and innovation. Please get involved – other suggestions and research collaboration are welcome!