Why it’s time to revisit the idea of the Transition Enabling Act

Sometimes the very best ideas need to bide their time before they get picked up and adopted. I want to share one such idea which I was reminded about the other day and which I really think deserves renewed attention and focus. I think it could be one of the seminal and transformative ideas of our time. I’m posting it here to see what you think, for your reflections.

First, a short bit of history. In December 2010, Transition Finsbury Park and Transition Highbury organised a great event called Confronting Change, at the South Bank Centre in London. The speakers were Michael Meacher MP, the lawyer and originator of the concept of Ecocide Polly Higgins (both since sadly lost to us), and myself. In the conversation that followed our talks, Polly suggested the idea of what she called a ‘Transition Enabling Act’, a kind of yin to Ecocide’s yang, if you like, focusing on accelerating the good stuff rather than just stopping the bad stuff.

You can see the moment that the idea first came to her at 3:30 in the video below:

She then goes on to elucidate the idea further at 5:45 in this video and from 8:02 in this one.
I love it when she describes it as “the biggest job creation scheme in world history”, because that’s exactly what it would be. The Transition Enabling Act (TEA) is a brilliant idea whose time, I think, has come. Here’s what I wrote at the time:

“Polly suggested that, in the same way that certain key pieces of enabling legislation have led to great advances in the past, perhaps the time is right for a Transition Enabling Act, designed not to ban lots of things, but positive legislation that enables all that needs to happen in order for Transition to scale up rapidly over the next 5 years”.

The idea was, as Polly explained, inspired by the Canal Enabling Acts of the Victorian times, which set out everything that needed to be changed in order to remove all of the obstacles to the rapid creation of the canals.

It is clearly possible to use legislation to unlock different approaches to development and economic change. The UK government’s current legislation on how to rapidly accelerate the creation of Freeports is one example of identifying the obstacles to something and creating legislation that removes all of those obstacles (enabling, in the case of the Freeports, a really dreadful thing to happen).

The morning after the Confronting Change event, Polly wrote to me. “My head has been spinning all night on this! How an umbrella ET Act could open the door to food/community land trusts, guerilla gardening/incredible edible, education/ transition universities, training, jobs – oh just oodles of things”.

I was reminded of these conversations with Polly about the TEA (as I will now call it) when last I week, in France, I was sat in a meeting in Muzillac in France with local officials and the local MP discussing Transition and how to accelerate it in their area. The local MP said something to the effect that “these are great ideas, and we’d love to do them, but there is so much regulation in place that stops these things from happening, so I’m not sure how possible it is”.

I replied that it would be so so tragic if our civilisation were to destroy itself simply because it didn’t have the regulations in place that would enable it to save itself. It was then that the idea of the TEA came back to me, and as I talked about it, I could see the MP scribbling furiously, inspired by the idea of being the one who brought such an idea before parliament.

Polly’s idea was that this law should be Open Sourced. She felt that all of the movements already trying to change things, community energy groups, sustainable food campaigns, land rights activists, community-led development groups, new economists, etc etc, should be asked two key questions:

1. What have you been unable/hindered in doing to create successful transitioning in your community?

2. If you are able to say, what would enable your proposal to happen?

(You can see how readers of my blog at the time answered those questions here).

The core question with a TEA, she wrote, is “whose rights take supremacy? Big business or the wider earth community (which includes humanity) … . our existing laws, which are predicated primarily in property not trusteeship laws, protect the rights of those who have the money to buy land and property over and above community use and stewardship”.

She added, “What I am doing here with the TEA is shifting the balance of rights in favour of the community so that the community can then determine what they want over and above the might of corporate and council decisions. At the moment, the onus is still on the community to prove their case each time. With a TEA … the shoe is placed firmly on the other foot – instead a council would have to justify why a supermarket should open if it could not satisfy the overarching principle of guaranteeing the good health and well-being of the community, i.e. why it is not sourcing all its food locally etc; a building development that was not using locally sourced energy and locally sourced materials etc would have to justify why it was failing to use local and sustainable materials that are low carbon etc. In other words, the unsustainable businesses/developments would suddenly become the exception, not the rule”.

A month later, she came back to me having given it more thought, with a more fleshed-out idea

Transition Enabling Act Overview

1. Ecological well-being for current and future generations is primary obligation
Welfare of the community:
Transition by communities to a cleaner, non-polluting lifestyle requires more than the proposed rights set out in the forthcoming Localism Bill (Rob’s note: the Localism Act was passed in 2011) the LB sets out, amongst other things, the community right to express an interest in decision-making (which can be rejected), the right to bid and the right to engage in referenda. To transition a community to a non-fossil fuel dependent, resilient and flourishing economy will require certain enabling provisions to be put in place, thereby embedding certain presumptions and prioritizing certain determinants that favour the transitioning community. For true resilience to be achieved, the intrinsic values of ecological and community well-being are the bedrock of a Transition Enabling Act.

By setting the highest standards for energy requirements, transport infrastructure, food and building materials etc. transitioning communities can be enabled to take action in a resilient direction when faced with times of crisis.

We do not yet have embedded in international law the freedom of a clean and healthy environment, which is a freedom that arises out of two rights: 1. the right not to be polluted, 2. the right to restorative justice. When both rights are applied, the result is the freedom of a healthy and clean environment. Many lawyers now increasingly believe that such rights should apply not only to people; they also apply equally to the natural environment as a whole. Some countries, such as the Philippines, have specified as a duty of the State to uphold the citizen’s rights to well-being, to health and a balanced and healthful ecology.

Philippines Constitution
Section 15, Article II:
The State shall protect and promote the right to health of the people and instill health consciousness among them.

Section 16, Article III:
The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

Governance:
Statements of rights are not in themselves sufficient to protect and ensure adherence. Leverage is required to ensure governance over those who fail to uphold the rights of another. For instance, high costs and the threat of vexatious litigation mounted by corporations can easily silence many eco-whistle blowers and citizens who would otherwise speak out when there is a failure to uphold standards. In April 2010 the Philippines implemented their Environmental Rules of Procedure. In so doing, they put in place various provisions to protect their citizen’s rights to ecological and community well-being. These include Environmental Protection Orders (EPO’s), waiving of court fees for those who act as Environmental Guardians ad litems and protection of the citizen against Strategic Lawsuits Against Public Participation (anti-SLAPP provisions). All of these provisions and more could be enacted under a Transition Enabling Act to enable transitioning communities in the UK to embed and provide protection of both their rights as well as local council and local business responsibilities to ecological and community well-being.

The UK Environment Agency will not take cases to court to prevent and/or halt and/or seek damages for environmental damage and destruction where it amounts to less than £0.5 million. Thus, without the ability for the community to self-police, this opens the door to accelerated damage, destruction and pollution. By enabling the community to police the situation on their territory, the government can effectively decentralize governance to the people (and save money). The above provisions and others listed below will open that door.

2. Local production of food is a necessity.

Current laws (e.g. international world trade rules, anti-competition laws) have created a legal presumption in favour of large-scale corporate production and supply. This has to be challenged if local communities are to be empowered to create their own supply networks and infrastructure to build resilience for the future. Local communities must have the right to self-determine how their food should be supplied in accordance with the primary obligation to ensure ecological and community well-being.

3. Transport and energy for community use and public well-being.

Transport and energy policy currently favours private ownership; e.g. single ownership of car and centralized supply of energy into homes. The shift of presumption from being in favour of private ownership to community stewardship enables shared use of resources especially important at times of scarcity. It also encourages the creation of community assets, such as community energy initiatives whereby the community can collectively bid for renewables to be bought in for the community as a whole.

Infrastructure for heating, lighting and movement within communities who are at risk of being adversely affected by fossil-fuel shortages has to be prioritized. Current legal presumptions favour centralized and private ownership, to the detriment of community ability to self-determine projects to protect their well-being. Nordic countries have laws that provide for decentralized energy systems to be put in place for communities; such mechanisms can be adopted here.

4. Land and buildings for community use and public well-being.

Provisions to enable communities to use land and buildings for the greater good of their community e.g. land for food growth, buildings for skill workshops etc. Land and buildings that are unused or infrequently used (e.g. empty office space, empty warehouses, churches) to be requisitioned/used part-time for community use. Community and ecological use and protection take precedence over and above commercial considerations.

Rental value of land (Land Value Taxation) can be implemented for community use buildings and land, thereby providing stable rent whilst creating an incentive for the community to create added value from the land and/or buildings. This would mitigate and may even eliminate chronic local economic problems by regenerating local economies and incentivizing relevant job creation schemes.

5. Enabling provisions checklist:

The Rights & Freedom
1. the right not to be polluted
2. the right to restorative justice
3. the freedom of a healthy and clean environment

The Responsibilities
4. duty of care by local councils for their communities’ health and ecological well-being
5. obligations to ensure ecological justice and provision for future generations.

Other
6. Communities to self-determine collectively by referendum (under new powers set out in the Localism Bill) whether to apply the Transition Enabling Act.

Enabling legislation required
7. Land Value Taxation for rental of land used for community purpose;
8. provision of services by local councils for transitioning communities, such as priority access to suppliers of low carbon sourced building materials and priority access to suppliers of local renewable energy schemes;
9. low carbon food incentives, such as priority procurement and subsidies for local low carbon food growing initiatives;
10. community first refusal over land and property use for food and energy purposes;
11. 10% tithe tax on local business for transition community purposes and for creating food and transport infrastructure;
12. Environmental Rules of Procedure to include Environmental Protection Orders, waiving of court fees, anti-SLAPP provisions and application of the Precautionary Principle;
13. simplification of setting up Community Land Trusts (see recent Scottish reform provisions for land use), Community Interest Companies and Charitable Incorporated Organisations (due late Spring 2011);
14. Community Training and Assistance Orders.