Recently in Law Category
In the late 1950s - after her career as a research chemist, and before being elected to Parliament - Baroness Thatcher was a barrister in private practice specializing in tax and patents.
2012 ended as it started, with a notable announcement by the Energy Secretary.
Back in January 2012, inboxes were choc-a-bloc with announcements, consultation responses and intensive lobbying around feed-in tariffs, and the government's bungled efforts to keep a lid on the feed-in tariff budget in the face of an overheated solar PV sector.
And now, with 2012 at an end, Edward Davey has used the publication on 27 December of the 2012 update to the Renewable Energy Roadmap to proclaim that renewable energy is powering forward in the UK.
Based on the 12 months period July 2011 to July 2012, the latest Roadmap shows that the UK, as expected, is on track to meet its EU target of sourcing 15% of all energy (electricity, heat and transport) from renewables by 2020.
In the main, progress has come from the electricity generation sector, which has seen a 27% increase in overall renewable electricity generated and a 40% increase in renewable generation capacity, with a notable contribution to that capacity from offshore wind (up 60%) and solar PV (a five-fold increase).
We've seen that in my own law firm, with 2012 our busiest year yet for renewable energy deals. These included the sale in October of the 168 turbine Dudgeon offshore wind farm scheme which will see that project built out by Norwegian companies Statoil and Statkraft, and financial close for a £21m organic waste facility in east London, which will generate electricity for 2,000 homes.
Indeed, it's difficult not to (at least tentatively) conclude that the UK's renewable energy sector has turned something of a corner. With a politically turbulent 2012 now behind us, we are left with a more stable feed-in tariff regime, and an Energy Bill heralding significant levels of support for large-scale low carbon energy schemes.
Uncertainties remain, of course, not least a fractured coalition with a Chancellor seemingly intent on blunting the Lib Dem's green ambitions with a dash for gas. Add to that the growing debate about whether the transformational impact of shale gas in the US might ever be replicated on any meaningful scale here in the UK.
For businesses, 2012 has also seen a growing acceptance of sustainability as a key to future growth - albeit in many cases driven by energy efficiency initiatives in response to rising energy prices.
For large listed companies, this will be underpinned in 2013 by mandatory carbon reporting, which for the first time - anywhere in the world, I believe - will see a requirement to include carbon emissions data in annual reports.
And for many more businesses, increased energy efficiency will remain a key compliance issue in the context of the CRC Energy Efficiency Scheme, which will be simplified during the course of 2013 and 2014.
More generally, this sustainability agenda in business sits alongside a growing recognition of the importance of climate risk management.
Here in the UK, it seems to have been raining persistently since the summer, and indeed on December 28 the Met Office announced that 2012 was England's wettest year on record - ironically, a year which began with talk of drought and water shortages.
Further afield, 2012 has ended with extreme cold in Russia, balmy conditions in southwest France, and a deadly tropical storm in the Philippines. And 2012 was, of course, the year of Hurricane Sandy (aka Frankenstorm), which swept through the Caribbean and up the east coast of the US in October with devastating consequences.
Whilst it would be wrong to use every extreme weather event to justify a change in climate, I wonder whether we'll nonetheless look back on 2012 as the year when we first began to see climate change taking place before our eyes.
A recent report by Jarraud's World Meteorological Organisation documented severe floods, droughts and heat waves, with the first 10 months of 2012 the ninth warmest since records began in the mid-19th century.
All the more disappointing, then, that the late-November annual UN climate conference, this time in Doha, once again delivered so little.
So, here are a few modest predictions for 2013.
Firstly, despite the collateral political noise surrounding gas, the government's Renewable Energy Roadmap should be seen as a vote of confidence in low carbon energy for the UK, and we should start to see greater benefits delivered in terms of jobs and investment.
Secondly, 2013 should see even more businesses taking action to identify and reduce their environmental impact (including energy usage), as the compliance agenda gathers pace combined with increasing pressures from end consumers and supply chain partners.
And finally, I believe we are already seeing a growing acceptance of climate change, and more attention on adaptation risks particularly in the context of business continuity planning.
This is my final blog for the Post. A combination of a lack of inspiration (this is only my fourth missive of 2012) and an appointment to be one of the editors of the Legal Notes section of the UK's leading property magazine, Estates Gazette, means that I need to hand the blogging baton onto someone else; in this case, an erudite and talented partner of mine at Mills & Reeve, Martin Brewer. Martin will be brilliant; in the meantime, I hope people have enjoyed reading my various thoughts over the years and that I haven't upset anyone too much.
More importantly, and in what I admit is a pretty unsubtle segue, I also hope you haven't been tortured. I really, really do. Which brings me onto the nub of what I want to say. Because torture - be it in relation to the horrific way in which Sami al-Saadi was treated following his rendition to Libya, or the evidence which might be used should Abu Qatada ever be subject to a fresh trial in Jordan - keeps on rearing it's very ugly head at the moment; and I am concerned that our political leaders (from both sides of the House of Commons) are guilty of turning a blind eye to its true horror.
Because, however vile and evil the crime is of which someone is accused, torture casts an evils shadow over everything it touches; especially the judicial process. I don't think I am saying anything radical or new here; and yet current news stories suggest otherwise. And, if you don't believe me, here's what the late and great Lord Bingham - who as a judge did more than any other judge I can think of to make legal sense of the increasingly complicated world in which we live and to protect our rights as citizens - had to say on the subject in The Rule of Law, the brilliant book published in 2010 just before his untimely death:
"In rejecting the use of torture, whether applied to potential defendants or potential witnesses, the...courts were moved by three considerations: the cruelty of the practice as applied to those unconvicted of any crime; the inherent unreliability of the evidence in confessions so procured, since a person subject to unbearable pain will say anything which will cause the pain to stop; and a belief that the practice degraded all who had anything to do with it, including the courts if they received or relied on the fruits of such treatment."
Lord Bingham's view is that there are some things which are so abhorrent that they must not be tolerated, even where the safety of the nation is said to be at risk. If that means that someone who would otherwise be found guilty of a crime goes free until evidence not tainted by torture can be found to convict them, then that is a price worth paying. I am acutely aware that this may seem naïve in a twenty-first century world still scarred by the horror of September 11th, but two wrongs don't make a right. Is ignoring, condoning or actively supporting torture really any better than ignoring, condoning or actively supporting terrorism?
Having got that off my chest, all the best for a happy Christmas and 2013 and apologies for the fact that I didn't sign off on a cheerier note.
I'm on my travels once more, this time to San Diego in California and into the maelstrom of a US Presidential election campaign.
How to protect your business from cyber attack and understanding how the new Bribery Act works
Two of the comments I hear all too frequently when I'm talking to businesses are: "my IT systems are completely secure" and "there's no point doing business in this or that country unless you're willing to pay a bribe."
Both statements are not only wrong, but in the current business climate, potentially very dangerous.
At the start of summer, we heard that China had replaced Germany in silver medal position as the West Midlands' second biggest export market (behind only the US taking gold). So surely the last thing we need now is an EU-China trade war.
If you are still reading, then I'm assuming that neither the title of the blog nor the deluge of recent comment in the mainstream media and the blogosphere since Mr Assange's speech at the Ecuadorian Embassy on 19 August have put you off reading any further.
And I must admit that it is with some trepidation that I sit at my keyboard and type this blog. Because, amid all of the strongly-held views on the subject, I suspect there is one thing on which everyone can agree - Mr Assange polarises opinion like very few other public figures. He is either a hero protecting our fundamental freedoms or (according to a number of US politicians, including Vice President Joe Biden) a terrorist.
There seems to be little by way of middle ground between the two extremes; and I doubt that I can contribute anything to the debate that will actually change anyone's point of view. So I'm not even going to try.
Instead, I want to try to shed some light on the legal issues; starting with the line of argument that suggests Mr Assange has sought asylum in order to avoid being extradited to the USA where his human rights would be at threat because he may end up being tortured or face the death penalty. But, as is explained in this brilliant blog by leading QC, Francis FitzGibbon, that line of argument doesn't help Mr Assange's case. Not only was it not used by his (very distinguished) legal team in any of the hearings before English courts, but European law would prevent anyone being extradited to a country where they faced the risk of torture or death. Indeed, Mr FitzGibbon casts pretty persuasive doubts as to whether Mr Assange is entitled to asylum at all (notwithstanding the fact that it has been granted).
Even if those arguments are ignored, and you accept that Mr Assange is simply playing the best cards available to him, he is open to criticism as to his choice of potential new home. Although Rafael Correa, Ecuador's President, has issued a robust defence of his country's record on press freedom, it does not appear to be the most obvious home for someone campaigning for freedom of information at all cost. Mr Correa stands accused of appointing biased judges who impose unfair penalties on critical journalists and confiscating press computers. Perhaps even more worrying for Mr Assange given WikiLeaks's raison d'être, a proposed penal code attempts to prohibit Ecuadorians from releasing confidential government documents. Mr Assange appears to have gained political asylum in a country that could well lock him up for doing the day job.
Finally, and with apologies for slightly revisiting a point I made back in 2010 when this story first broke, contrast the position in Ecuador with that in Sweden, which still stands accused by Mr Assange's supporters of having trumped up the charges of rape, sexual molestation and unlawful coercion against Mr Assange for nefarious political ends. And yet this is despite the fact that Sweden remains one of the fairest and most just countries in the world.
And that's not me saying that saying that because I think Sweden's a nice place (although I do); it's the World Justice Project who's rule of law index uses 8 factors to assess the strength of the rule of law in 66 countries around the world (although Ecuador hasn't been reviewed). Sweden's rankings are breathtaking: (i) limited government powers (3rd best in the world), (ii) absence of corruption (2nd best), (iii) order and security (5th best), (iv) fundamental rights (1st), (v) open government (1st again), (vi) regulatory enforcement (number 1 again), (vii) access to civil justice (5th) and (viii) effective criminal justice (7th). By way of comparison, the UK's rankings are 9th, 16th, 14th, 13th, 4th, 6th, 10th and 13th. The USA's are 16th, 17th, 13th, 19th, 12th, 15th, 21st and 20th.
If Mr Assange is innocent, then Sweden seems the sort of place where criminal charges trumped up by the government to help silence someone awkward are most likely to fail. Indeed, if you really did face the sort of persecution that would entitle you to political asylum under the UNHCR's 1951 Refugee Convention, you could do a lot worse than ask the Swedes for help.
I can't help but feel that Mr Assange is on very weak ground legally: his arguments don't appear to stack up. Whether you think that matters or can be ignored revisits the hero/terrorist debate which I dodged at the start of the blog and I am going to avoid once again at the end.
The system of renewables subsidy in this country is a little complicated. In essence, the idea is straightforward, if not uncontroversial - low carbon power generation is good for the planet and what's more introduces a more diverse generation mix, which helps keep the lights on. But renewables are expensive and in a competitive market need a 'leg up' if they are to compete with coal and gas; hence the subsidy.
This is a gross simplification, of course, and assessing the relative economic (and environmental) merits of coal, gas and renewables, never mind nuclear, is fraught with difficulties.
But things get much worse when the areas becomes heavily politicised.
Recent events in Whitehall provide a good illustration.
The backdrop is the ongoing battle, often played out in public, between DECC and the Treasury. With an eye on our low carbon targets, DECC is anxious to drive between £20 billion and £25 billion of private sector investment in renewable energy over the next 5 years. George Osborne, with an eye on the public finances and seemingly not persuaded by the green economy arguments, has his priorities elsewhere.
The trigger was the latest round of renewables subsidy cuts, announced on 25 July. These don't involve the feed in tariffs, which are available to projects under 5MW and most notably were cut for solar PV in a clumsy fashion (and after 3 court hearings) earlier in the year. This time around, the cuts are to the other main subsidy regime, which typically supports the larger renewable projects, the Renewables Obligation (RO).
This announcement came out after some delay, apparently due to a spat over the level of onshore wind subsidies. This would appear to relate to a leaked letter from George Osborne to Ed Davey, the energy and climate change minister, which spelt out the cost of Treasury support for the proposals, notably including a clear signal of support for gas as a central part of the generation mix to at least 2030, indeed support for the idea of the UK as a gas hub.
This has upset the green lobby, not least because the statement of support finds its way, almost verbatim, into the DECC's press notice. It has to be said it's hard to see a place for unabated gas on this scale if we are serious about meeting our decarbonisation targets.
This debate will rumble on, and if nothing else proves that the question of subsidy levels and affordability will never be far from controversy.
Putting aside all the politics and the contrasting longer term visions for our power sector emanating from the coalition government, this latest round of changes to renewable subsidy levels is significant.
The RO is a 'quota system', which requires electricity suppliers to source an increasing percentage of their supplies from renewables sources. They do this by acquiring quantities of Renewable Obligation Certificates (ROCs) - either direct from renewable generators or in a secondary market. The ROCs are issued to the operators of qualifying renewable generating plant by regulator Ofgem, which administers the scheme.
The RO is set to be replaced in 2017 (for new projects) with a new variety of feed in tariff 'contracts for differences'. This new subsidy regime is a central plank in the government's fundamental overhaul of our power sector in what is called the Electricity Market Reform (EMR), which is where the big political battles are likely to be played out in terms of future generation mix and government support over the medium to longer term.
But for now, the RO is the main game in town. It is not technology neutral (although it used to be). Under complex 'banding' rules, different quantities of ROCs are awarded for a plant's output, dependent on technology type and the level of subsidy required (so the theory goes).
This latest announcement from DECC is all about the new bands to apply from next April 2013.
Perhaps most controversially given the Chancellor's intervention, the uncertainty continues for onshore wind. Hot on the heels of a 20% reduction in feed in tariffs for small wind systems (up to 100kW), announced earlier in the month, ROC levels for onshore wind will reduce by 10% to 0.9, but they will be reviewed again early next year with the prospect of removing altogether (for new projects) from April 2014 if costs have reduced significantly.
Furthermore, there was no announcement on new ROC levels for solar PV, on grounds that further consultation is apparently needed on both costs and interaction with the recent FITs review. So uncertainty persists for the solar industry too.
As expected, we will see the ROC level for offshore wind remain initially at 2 ROCs, and then to 1.9 and 1.8 in subsequent years.
However, good news elsewhere, with ROC levels for certain marine technologies more than doubling in an attempt to kick start investment, and there will be new support for existing coal plant converting to sustainable biomass fuels.
Energy from waste projects with combined heat and power will also attract higher ROC levels than expected. ROCs for anaerobic digestion (AD) will remain initially at 2 ROCs, and then to 1.9 and 1.8 in subsequent years. In addition, from April 2013 AD will be closed to new small scale projects and will be subject to the feed-in-tariff regime.
So what does all this mean?
Well, we can perhaps expect a rush of small-scale wind, solar and AD projects over the next few months as developers try and get in before the changes.
Beyond that, the future is uncertain. What is most troubling about this latest announcement is the underlying rift between DECC and the Treasury, and the harm being caused by George Osborne's apparent hostility to low carbon development.
Investors need a stable long-term framework, relatively free of political risk, and that continues to seem some way off.
The sun is shining and the last hosepipe bans have now been lifted, but the deluge of recent months makes July's draft Water Bill somewhat timely.
This potentially far-reaching piece of draft legislation has been introduced by Defra to Parliament for pre-legislative scrutiny. The government has indicated it expects the Bill to receive Royal Assent in 2014, with a likely target date for its main provisions of April 2017. Some way off, but the Bill is ambitious.
The backdrop to the Bill is a regulatory regime which essentially came about with privatization in the late 1980s. However, the industry structure reflects the geographical footprint of the former area water boards, which evolved alongside the smaller statutory water companies established by the Victorians.
Today, the bulk of production, distribution and retail water supply are handled on a regional basis by one of 21 local, privately owned water companies, appointed by regulator Ofwat.
Attempts were made to give water competition a kick start with limited reforms in 2003, designed to encourage new entrants and stimulate customer switching but only for the very largest business customers. However, the result of this has seen just seven new companies hold an Ofwat water supply licence - and of these, only one actually has a customer (from amongst 2,200 qualifying businesses able to switch).
These somewhat unsuccessful reforms have operated alongside an 'inset' regime which has been around for some time, whereby the developers of greenfield sites can choose an alternative to the local water company, but again take up has been very low.
So competition is in a sickly state - although that's not to say of course that the threat of competition hasn't encouraged the incumbents to keep their prices competitive for those largest customers.
The fundamental aim of the Bill is to modernise the water sector, by driving greater innovation, reducing red tape and giving consumers more choice. Headline measures will give businesses and public sector bodies a much bigger say in who supplies their water and sewerage services, with one of the objectives of greater competition being lower prices.
This will come as a welcome move for businesses now familiar with the idea of shopping around for electricity and gas - although the changes will only apply in England (the Welsh government is doing its own thing).
Indeed, the government hopes that opening up the water market and allowing greater 'customer switching' could save the economy £2 billion over 30 years. The Scottish model, which has already undergone similar reforms, looks set to deliver around £20m of savings for the public sector alone over the next three years.
At the moment, with a few exceptions, only business consumers that use very large volumes of water can choose their supplier, and even then the process of switching is tortuous. The qualifying annual consumption threshold was actually reduced from 50 million litres to 5 million litres back in December, but the Bill will abolish the threshold altogether. However, it stops short of extending freedom of choice to domestic consumers, which is perhaps not surprising given the complexity of the task.
Nonetheless, this means around 1.2 million businesses and public sector bodies will have the freedom to shop around for their water and sewerage services for the first time - good news for procurement managers. Indeed, potential costs savings of up to £80,000 per year have been suggested for multi-site companies.
And for such consumers with sites up and down the country, such as retail and hotel chains, the idea of a single nationwide water and sewerage bill will be attractive.
Aside from introducing more freedom of choice for customers, the Bill also seeks to tempt more suppliers to the market. The process for new entrants will be simplified, with more supply chain options for newcomers and a new set of governance rules in the form of market 'codes' (akin to the gas and electricity sectors).
Some of the reductions in red tape, including streamlining the charging structure, will also be a welcome boost to developers. The 'one stop shop' environmental permitting regime will also expand beyond pollution prevention to include water abstraction and impounding licences, flood defence consents and fish pass approvals.
Other beneficiaries of the changes will be those water companies which are most efficient and charge the lowest bills, who will be well placed to respond as market competition takes hold.
We may also see upstream consolidation, with water companies expanding their focus of investment out of their regions. Whilst a national water grid is probably unfeasible, it is sensible to see greater interconnection between regional networks so that water can be moved more easily around the country to manage local supply constraints.
But with the problems of water scarcity in some parts of the country and an underlying scenario of climate change, does the Bill do enough to encourage demand management? Take metering for example. In the gas and electricity sectors, a compulsory roll-out of smart meters across all households is set to be complete by 2019. In contrast, many water consumers remain unmetered, and whilst the Bill contains some measures to manage the demand from businesses more effectively, it stops short of compulsory meter installation.
Whilst it is admittedly very difficult to keep a balanced perspective when the country has just emerged from months of relentless rain and some terrible floods, the headline facts are a current global population of 7 billion, with another 2 billion expected to join us by 2050. That will place an incredible strain on the world's natural resources, including water.
We're not immune to a changing climate here in the UK, and a longer term view is required. A change in behaviour at consumer level must surely be a part of the thinking. The Bill contains many welcome measures, and greater competition in the sector is undoubtedly a good thing, but I worry that, for all its ambition, it may not quite be ambitious enough.
There is huge emphasis these days on energy efficiency as a key component of our low carbon and security of supply ambitions. In fact, in a world of declining natural resources and increasing global population, with a growing focus on sustainability, using less energy - and water - as we go about our daily lives is becoming unquestionably a good thing (for the planet and our pockets).