Public Servants have a Duty of Care

Most if not all public bodies (eg Parliament, County Councils) have a Code of Conduct. These Codes hold weight in a civil court, and usually include a clause stating that members have a duty to the interests of the public they serve, are expected to act selflessly, or act solely in the public interest. This is essentially a duty of care. For clarity: in child protection law, the interests of the child are paramount. That is first and foremost a duty of care, i.e. a duty to prevent significant harm.

Legal notice of potential harm

If a public servant is about to make a decision that may harm those whose interests they are duty-bound to serve, then it is both possible and appropriate to legally notify them of this. It would be appropriate to take this action before a planning decision involving fracking, for example, but could be used in any context where harm is threatened by a political decision.

In January of 2015 I did this with all 657 MPs in the UK with regard to fracking, while amendments to the Infrastructure Bill (now the Infrastructure Act 2015) were being discussed in Parliament.

What is required is the following:

  • Provision of prior knowledge of the harm that is threatened
    (I sent the summary introduction to the CHPNY Compendium of Scientific, Medical and Media Findings Demonstrating Risks and Harms of Fracking - 2014 edition, the latest at the time);
  • A covering letter (Notice Before Action) indicating the duty of care clause in the Code of Conduct which the addressee is at risk of breaching, and drawing attention to the enclosed information regarding the harm that is threatened, signed and addressed by the sender
    (see mine here).
  • Delivery to the recipient by hand in person, or by registered post (keep the individual tracking numbers). In either case, the recipient is legally deemed to have read the contents of the letter.

    What does this action achieve?

    It means that if
    a) the recipient votes in favour of the potentially harmful activity or policy, and
    b) harm subsequently arises from that activity or policy as predicted in the information you provided,
    then that public servant may be sued for breach of their Code of Conduct.

    This means that any MP (whether or not they are still in office) who voted to pass the Infrastructure Act as it now stands or who failed to amend or attempt to amend it as a Bill in the light of the information I provided can be sued for breach of the Code of Conduct for Members of Parliament if harm arises from fracking in the UK.

    Who can do this?

    Anybody. You don't have to be a constituent of the MP or Councillor you're putting on notice. And even better, once the notice has been delivered, anybody can sue the recipient(s) of the legal notice if a) and b) above are fulfilled. It doesn't have to be you.

    Have any cases been taken on the basis of a public Duty of Care?

    Yes. The recent Urgenda case in the Netherlands established that the Dutch government had a legal obligation to its citizens, in the face of the threat of dangerous climate change, to reduce greenhouse gas emissions. In this case the State itself was challenged rather than individual MPs, but the essential principle was a duty to prevent significant harm.

    Extending the legal Duty of Care

    The logical - and I believe inevitable - next step in legislation is to extend this moral and legal Duty of Care to the earth, so that significant harm to ecosystems becomes a crime in law. We do not allow a child in our care to be harmed, and we expect abusers to be brought to justice under criminal law. The earth is likewise in our care. What are we waiting for?