The energy bill of rights – too little, too much or just about right?
Our latest guest contribution is from Ben Christman 1, who in a two-part series critically assesses the proposed Energy Bill of Rights, and explores the relationship between fuel poverty and human rights.
We all have the right to affordable energy to meet our basic needs.2
Amidst the ongoing tragedy of fuel poverty in the UK this winter, an energy rights revolution is stirring. Echoing the great English constitutional document, The Bill of Rights 1689, Fuel Poverty Action have proposed an ‘Energy Bill of Rights’ (EBR). Launched in Parliament this October, their eight-part declaration aims to ‘re-assert what should be basic and standard rights to clean, affordable, democratically controlled energy for everyone’.3
The EBR is a provocative text. It asks us to reflect on the nature of energy in society today – is energy now so fundamental that it has reached the status of a ‘human right’? If so, is an approach of creating novel rights to tackle fuel poverty desirable, or even feasible given the current rights-hostile political context in the UK – where condemning the judgements of the European Court of Human Rights is de rigueur and the Conservative party has recently committed to repeal the Human Rights Act 1998?4 Can existing rights be used to challenge fuel poverty instead?
These questions will be discussed over two posts which explore the relationship between human rights and fuel poverty. This post considers the notion of a human right to energy, and the utility of novel rights approaches – such as the EBR – in tackling fuel poverty in the UK. Part two will discuss the relationship between fuel poverty and the existing human rights protections in the UK – arguing that fuel poverty raises a variety of human rights concerns.
A. A Human Right to Energy?
As anyone who has licked a plug socket will confirm – energy has no human value in and of itself. Instead it is access to the products and lifestyle that modern ‘energy services’ provide which are essential to support basic human needs – such as providing healthcare and sanitation. Or to put it another way, it is the ability to access energy services rather than energy itself which is critical in meeting human needs. When discussing fuel poverty – the inability to afford access to adequate energy services in the home (mainly warmth) – the relevant critical energy services include heating, lighting, cooking and refrigeration.
Despite its fundamental nature, international human rights law contains no general, free-standing human right of access to energy services. The only provision which comes close can be found in the Convention on the Elimination of All Forms of Discrimination against Women 1979; which, in relation to discrimination against women in rural areas, obliges States to ensure that women, “enjoy adequate living conditions, particularly in relation to… electricity”.5 Beyond this slightly obscure requirement, access to energy services receives no mention.6
This absence causes two main concerns. It limits the ability of the fuel poor to use the law to seek justice by challenging miserable and potentially life-threatening living conditions, and also because securing access to energy services is crucial to enjoy a variety of existing human rights. Socioeconomic rights such as the right to work, the right to the highest attainable standard of health and civil/political rights such as the right of access to information imply some level of access to energy services. When boiled down, the claim of a human right of access to energy services comes from the understanding that:
(a) Access to energy services is fundamental to meet basic human needs, and
(b) Existing human rights necessitate access to energy services.
Adrian Bradbrook and Judith Gardam have argued for the creation of a human right of access to energy services on these bases7 – and the growing movement for ‘energy justice’ (into which the EBR broadly falls) is built on the understanding that social justice demands universal access to basic energy services.8
B. The Energy Bill of Rights
There is little evidence to suggest that access to energy services is currently viewed as a human right in the UK. At present, energy is unaffordable for a significant proportion of the population, generated in environmentally unsustainable ways and supplied by a market dominated by the ‘Big Six’ energy company ‘oligopoly’.9 The way energy is sold poses further problems for citizens – for example ‘standing charges’ penalise customers who use less energy, households can be cut-off for the non-payment of energy bills (even during winter)10 or forced to use a pre-payment meter11 (creating further problems where households ‘self-disconnect’ when funds are low).12 Compounding these features, the UK’s housing stock is one of the most thermally inefficient in Europe,13 meaning that energy and money are wasted by those who can least afford to do so.
Fuel Poverty Action’s EBR sets out to challenge these problems, declaring rights to:
1) … affordable energy to meet our basic needs…
2) … energy that does not harm us, the environment or the climate…
3) … energy that does not threaten health, safety, water, air or the local environment of a community…
4) … a fair pricing system that does not penalise those who use less…
5) … not to be cut off from our energy supply…
6) … not to be forced onto a prepayment meter…
7) … energy that is owned by us and run in our interests…
8) … properly insulated, well repaired housing that does not waste energy…
Fuel Poverty Action claim to be ‘re-asserting’ existing rights, but much of the EBR is novel. Additionally, conflicts may arise within the EBR, and there are some general difficulties which those proposing new energy rights would have to overcome. A few preliminary points may be useful to highlight some of the EBR’s challenging features.
Affordability and sustainability of energy (EBR rights 1 and 2) are currently coming into conflict in the UK as decarbonisation is increasing energy prices (although this relates to the policy of funding climate measures through energy bills rather than general taxation).14 Declaring a right to ‘affordable energy’ could create problems. How should affordability be defined – an absolute figure which shifts annually in line with inflation (£/kWh or £000’s/household), a relative approach (% household income) or otherwise? Energy generation is rarely harmless – the social and environmental costs of using fossil fuels are often more obvious and severe (think open-cast coal mining or fracking), but renewables can have negative impacts too – creating problems for 3). Would 5) and 6) provide carte blanche to households which fail to pay their energy bills – how would the EBR deal with non-payment? Might this risk energy companies passing the costs of meeting these debts onto other customers to recover their losses, potentially leading to a conflict with 1)? A right to ‘energy that is owned by us and run in our interests’ (EBR right 7) may be desirable to those occupying certain parts of the political spectrum, but it is likely that it would be resisted by the Big Six and may not attract much support amongst the main parties (neither of which are necessarily fatal counter-arguments). More generally, should a policy preference of democratised, decentralised energy ownership be framed as a ‘right’? What was the process by which the EBR was made – was it open and participative? Finally, the wisdom of seeking to extend rights into uncharted policy areas when existing human rights protections are on a shoogly political peg is open to question.
C. Righting Energy Wrongs with Energy Rights?
Despite the scepticism, novel energy rights could invigorate fuel poverty politics. Using ‘rights talk’ in other topics can help to inspire, mobilise and restore dignity to those who have otherwise been silenced or disenfranchised.15 The strongest argument for giving energy a rights basis is the potential for shifting the debate on fuel poverty, from benevolence to entitlement. If we accept – and legislate for – human rights to a properly insulated home and affordable energy to meet our basic needs, then swift eradication of fuel poverty becomes the only justifiable course of action. This would bring into question the trend of phrasing commitments to tackle fuel poverty in the defensive legalese of only as far as is ‘reasonably practicable’.16 Energy rights could also empower the fuel poor to use the law to take action against their predicament.
There are problems with some of the individual EBR rights in its present form, and it may be as a campaigning tool that the EBR will prove most useful. It offers a useful point for critique of the UK energy system, and a set of principles to guide future energy policy, rather than a binding legal treaty (as it has perhaps been unfairly treated here).
Novel rights may appeal to the radical Russell Brands of this world, but what about less sexy, old-fashioned human rights? Part two will dust off the treaty texts, looking into the relationship between fuel poverty and existing human rights.
PhD Candidate, Queen’s University Belfast – firstname.lastname@example.org. Academia.edu page here. I am grateful to Hannah Russell and Adam Reilly for their thoughtful comments on an earlier draft of this post.
Fuel Poverty Action, ‘Energy Bill of Rights’ (Fuel Poverty Action, 2014), available at http://www.fuelpovertyaction.org.uk/energy-bill-of-rights-2/(accessed 27/11/2014).
Fuel Poverty Action, ‘Fuel Poverty Action’s launch of the Energy Bill of Rights: A Grassroots Movement for Energy Justice Comes In From the Cold’ 03/11/2014, available at http://www.fuelpovertyaction.org.uk/uncategorized/fuel-poverty-actions-launch-of-the-energy-bill-of-rights-a-grassroots-movement-for-energy-justice-comes-in-from-the-cold/ (accessed 27/11/2014).
Conservative Party, ‘Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws’ (Conservative Party, 2014), p5. For a critical perspective, see Angela Patrick, ‘Incoherent, incomplete and disrespectful: The Conservative plans for human rights’ UK Human Rights Blog 03/10/2014, available at http://ukhumanrightsblog.com/2014/10/03/incoherent-incomplete-and-disrespectful-the-conservative-plans-for-human-rights-angela-patrick/(accessed 27/11/2014).
Convention on the Elimination of All Forms of Discrimination against Women 1979, 1249 UNTS 13, Article 14(2)(h).
However, some human rights – such as the right to adequate housing – have been interpreted to include rights of access to certain energy services. This is discussed in part 2.
Adrian Bradbrook and Judith Gardam, ‘Placing Access to Energy Services Within a Human Rights Framework’ (2006) 28(2) Human Rights Quarterly 389. See also, Adrian Bradbrook, Judith Gardam and Monique Cormier, ‘A Human Dimension to the Energy Debate: Access to Modern Energy Services’ (2008) 26(4) Journal of Energy and Natural Resources Law 526, and Stephen Tully, ‘The Contribution of Human Rights to Universal Energy Access’ (2006) 4 Northwestern Journal of International Human Rights 518.
Benjamin Sovacool, Roman Sidortsov and Benjamin Jones, Energy Security, Equality and Justice (Earthscan, 2014), Chapter 2: ‘Deciphering Energy Justice and Injustice’.
Which, ‘The Imbalance of Power: The Retail Market’ (Which, 2012).
However, there exceptions to this for ‘vulnerable customers’, and disconnections are infrequently used by UK energy suppliers. See Child Poverty Action Group, Fuel Rights Handbook (CPAG, 2014), Chapter 8: ‘Disconnection for arrears’ – available at http://www.cpag.org.uk/sites/default/files/Fuel_Rights.pdf (accessed 27/11/2014).
Gas Act 1986, Schedule 2B(7). Electricity Act 1989, Schedule 6(2).
Dhara Vyas, ‘Topping-up or dropping-out: self-disconnection among prepayment meter users’ (Citizens Advice Scotland and Citizens Advice Bureau, 2014).
Pedro Guertler and Sarah Royston, ‘The Cold Man of Europe’ (Association for the Conservation of Energy, 2013).
Ian Gough, Climate Change, Double Injustice and Social Policy: A Case Study of the United Kingdom (UN Research Institute for Social Development, 2011). UK Climate Change Committee, ‘Meeting Carbon Budgets – 2014 Progress Report to Parliament’ (UKCCC, 2014), p20.
Paul Gready, ‘Rights-based approaches to development: what is the value-added?’ (2008) 18(6) Development in Practice 735, p742. Andrea Cornwall & Celestine Nyamu-Musembi, ‘Putting the ‘rights-based approach’ to development into perspective’ (2004) 25(8) Third World Quarterly 1415, p1433.
See Department of Energy and Climate Change, ‘Cutting the cost of keeping warm: A new fuel poverty strategy for England’ (DECC, 2014), p20.