By Paul Davies and Michael Green
The public trust doctrine is the principle that certain natural and cultural assets are preserved for public use and that it is the government’s obligation to protect and regulate these, both now and for future generations. Although the doctrine is established in English common law, it is not regularly deployed by the English courts. However, a new piece of legislation, the Well-being of Future Generations (Wales) Act 2015 (WFA), geared towards improving the social, economic, environmental and cultural wellbeing of Wales, captures many of the values of the public trust doctrine. In particular, it focuses on the long term impact of public body decisions and how they should promote a good quality of life for both current and future generations.
The public trust doctrine was established in English common law when a form of it reappeared in the 12th century, along with the onset of a more centralised legal system. One of the earliest cases is that of Juliana the Washerwoman (1299), in relation to a washerwoman who successfully challenged her powerful neighbour from cutting off her use of the watercourse. It was held that water had always been available for use by all, and that it was unlawful to pollute it. However, over time, the UK courts restricted the application of the public trust doctrine and it is now considered to do no more than give rise to a rebuttable presumption that the public has a right to fish, navigate and access the sea and tidal waterways. To date, these presumptions have not caused the state to actively take steps to protect public rights. However, many of the provisions of the WFA in fact impose positive obligations on public bodies so this arguably an effective implementation of the doctrine.
The key points to note from the WFA are:
- Each public body listed (ranging from Welsh ministers and local health boards to national park authorities) in the WFA will be required to publish well-being objectives to promote the economic, social, environmental and cultural wellbeing of Wales. They must also publish (i) a statement explaining why they feel such an objective will enable them to achieve their goals and (ii) an annual report showing the progress made in meeting such objectives.
- Establishing a statutory Future Generations Commissioner for Wales (FGCW), whose role is to act as a guardian for the interests of future generations in Wales and to support the public bodies listed in the WFA to work towards achieving their well-being goals. The FGCW may make recommendations to a public body, they must publish a response and if the public body does not follow a recommendation, they must say why and what alternative action they would take.
- The creation of Public Service Boards (PSB) for each local authority area in Wales. Each PSB must improve the economic, social, environmental and cultural wellbeing of its area by working to achieve the well-being goals. When producing local well-being assessments and plans, PSBs must consult widely. Each PSB will then be required to carry out an annual review of the plan to show its progress.
- Interestingly, the WFA is the first law of its kind in the world to place a positive obligation on public bodies to consider sustainable development in all of their decisions. With some commentators suggesting that the public trust doctrine will play an increasing role in post Brexit Britain, we can expect the WFA to get a lot more attention…
This post was prepared with the assistance of Ei Nge Htut in the London office of Latham & Watkins.
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