BioRights

Work by a Glocalist [sic] and Futurist for the England and Wales Law Society has resulted in Law In The Emerging Bio Age, which among other things offers a simplistic reference to overseas 'rights for domains' (conflating supposed formal rights with law on the ground). 

The report states 

This deep dive into what we might call the ‘emerging Bio Age’ – to distinguish it from the current digital Information Age – explores the evolving relationship between humans and living systems. That relationship will provoke new opportunities and risks that will demand oversight and new regulations, different contractual obligations, and create new alliances and conflicts as the rights of different human communities and natural systems themselves are challenged. 

Via an extensive scanning and systems mapping process, Jigsaw Foresight with the Law Society have in this project identified implications of emerging changes in this area that we have grouped as follows:

• New understandings of biotechnology and innovation 

• Second chances in addressing planetary limits and compensating for past damage to the global ecosystem 

• The rights of nonhumans and the greater role of nature in decision-making

The legal profession is already being affected by these emerging changes. Our purpose in this report is to explore those impacts and raise the overarching question of how humans can be better ancestors to future generations of all species and what that would mean for legal ethics. We raise many questions, some more uncomfortable than others, which is why we invite you to actively engage with the findings in this report. To help guide you, we offer conversation prompts at the end of the report to kickstart conversations at a formal or informal level. We also offer a deck of ‘postcards’ – concise creative artefacts to spark thoughtful ideas, connections, and conversations ... 

Scanning process and systems map 

As part of understanding a complicated topic, we identified categories of changes emerging that related to humans and living systems and mapped their interconnections. This creates an initial interconnected landscape of the issue, depicted visually as a summary systems map (see page 7). Each of the elements represents a category of trends and emerging changes identified during a four-month horizon scanning effort. ... 

The questions for the Law Society and the legal profession arise from the philosophical and ethical critiques of these shifts in humanity’s relationship to the planet and its living systems, and what that means in terms of ethics and rights. This in turn rebounds into the policy arena and decision- makers’ responsibilities in negotiating all of that by creating new laws and regulations – and working out how to enforce them. Three impact themes emerged from the general scanning data on this issue: New understandings, Second chances, and Rights for nonhumans. 

New understandings 

We begin with an exploration of the profound and surprising capabilities that are the direct result of advances in biotechnology research and innovation. Such discoveries have massive potential power for progress and may equally be weaponised or abused for exploitative ends. The efficacy of biotechnology regulation and risk mitigation for a range of areas must be examined. 

Second chances 

In this section we discuss how law and ethics can support us to mitigate future damage by operating within planetary limits and compensate for past damage to the global ecosystem. 

The practice of policy and law would need to tackle unintended consequences and perverse incentives, as well as a lack of transparency and accountability in financial disclosure and accounting practices. 

Rights for nonhumans 

We draw out here the emerging topic of rights for nonhumans. Rights have already been granted (and more are being sought in different jurisdictions globally) for elephants, trees, rivers, ecosystems, and landscapes. Rights for nonhumans communicates our dependence on and a greater role for nature in decision-making. The process and execution of a nonhuman rights-based framework in international and local law may differ radically from a human rights-based approach. For example, if rights were granted to nonhumans or living systems, then questions of liability for damage to the environment, such as climate change or biodiversity loss, arise. 

Roundtable discussions 

The Law Society hosted two roundtable discussions on this topic with lawyers, legal professionals, and topic experts. These discussions reviewed the existing topic system map and suggested additional implications for the legal profession, regulations, contracting, and policy. The roundtables aimed to elicit additional thoughts and insights on the scan results from a wider range of perspectives. The discussions were lively, critical, and creative; participants concluded this issue was urgent, under-discussed, and a topic the legal profession should engage. Highlights included:

• Commodification and the emphasis on economic growth reinforce the notion of humanity’s dominion over nature rather than our embeddedness in nature and living systems – the legal profession must consider how to best support the transition to a circular economy. 

• The legal profession should consider how to use the circular, interlinked frame of the issue system maps to cut through assumed hierarchies and look at interdependencies and connections. 

• Consider what the issue might look like from the nonhuman, or the ecosystem, point of view. • Explore the concepts of rights, identity, and personhood as critical to humans’ relationship to living systems, and our stewardship of environmental quality. 

• Emphasise the moral and ethical framing of this issue, and what it might mean for the legal profession to embrace humanist, artistic, spiritual, and sacred perspectives that reframe our relationships with living systems and create a form of environmental guardianship that stems from the sacred. 

• Risk, regulation, enforcement, and liability regarding all the facets of this complex system of innovations and issues demand uncomfortable conversations that we must face head-on with multiple stakeholders to assess where responsibility and accountability will lie regarding living systems and humanity’s biosciences capabilities. 

• Grappling with this issue demands long-term time frames and multiple timelines; we must avoid the constraints of political and business cycles. 

• The legal profession needs to consider what all these points mean for training the next generation of lawyers and how best to equip them to support long-term solutions with the necessary innovations in legal frameworks. 

A legal profession for the Bio Age 

Whether you are based in a large or small law firm, an in-house legal department, a member of the Law Society staff, a policymaker or part of another expertise community, three patterns that need shifting, collectively, and at multiple levels, emerge from this deep dive:

• Capacity building, leadership, and nurturing well-rounded next generation lawyers who are mission led as well as legally minded – lawyers for a blue planet;

• Developing a professional well-roundedness as well as a sense of shared purpose, collective responsibility and commitment to be agents of change across the legal profession. 

• Reframing, repositioning, and connecting the legal profession to longer as well as shorter term horizons of uncertainty, disruption, and uncertainty, protecting time to explore longer horizons of change; and 

• Reassessing impact and impact evaluation.

If we are to take account of living systems, then legal frameworks need to be fit for the more-than-human future.

In discussing rights for non-human life forms the authors state 

 Rights for nonhumans 

We draw out here the emerging topic of rights for nonhumans because rights have already been granted and more are being sought in different jurisdictions globally for elephants, trees, rivers, ecosystems, and landscapes. Rights for nonhumans communicates our dependence on and a greater role for nature in decision-making. The process and execution of a nonhuman rights-based framework in international and local law would likely differ from the human rights-based approach. For example, evolutionary development (including cognitive and emotional development) might be a right for nonhumans. 

When thinking about rights for nonhumans we acknowledge that human-constructed species hierarchies, i.e. cultural framings of nonhumans in binary groupings, determine who gets to live and who dies.  Current binaries include native and invasive, healthy and unhealthy, young and old, rare and common, cute and repulsive, pet and pest, sacred or profane. Such framings are sometimes applied to humans too. Using the example of ‘invasive’ species, we might consider how species become displaced as conditions in one location become inhospitable, e.g. due to heat, drought, pressure of other species. This is increasingly the case with climate change and the Argentinian town of Santa Isabel was overrun with unpleasant beetles when their habitat overheated. Humans also move because of rising sea levels, crop failure, conflict, and poverty. Positive human feelings for ‘charismatic’ nonhumans influence innovation and policy too, e.g. investment in new technology to talk to whales, people sending emails to trees, campaigns to ‘Save our English Oaks’. 

Some argue that in the current system human rights are not properly protected or balanced. If taxonomies like the species hierarchy are important in allocating rights, then we need to think about how bio body hackers who make extreme physical changes, biorobots, human-animal chimerae, and autonomous robots will be treated. We already see that transgender people and people with different characteristics are ‘othered’ and the effect of negative societal responses to body changes clearly links to the ‘cute or repulsive’ binary of the species hierarchy.

Regulation

'Testing the Regulator's Priorities: To Sanction Wrongdoers or Compensate Victims?' by Lachlan Peake in (2020) 39(2) University of Queensland Law Journal comments

As Australian corporate conduct came under intense and highly publicised scrutiny during the banking Royal Commission, so too did the conduct of the conduct regulator: the Australian Securities and Investments Commission (‘ASIC’). Following the Royal Commission, the regulator has adopted what it describes as ‘“Why not litigate?” operational discipline’ — a concept elaborated and recommended by Commissioner Hayne which is now the central tenet of ASIC’s updated enforcement model. This article discusses the hierarchy of strategic priorities evident in that enforcement model and asks: should the regulator focus its resources on compensating those harmed by regulatory contraventions rather than sanctioning those who have broken the law? 

Peake states

In the Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (‘Final Report’ and ‘Royal Commission’, respectively), Commissioner Kenneth Hayne said:

The Australian community expects, and is entitled to expect, that if an entity breaks the law and causes damage to customers, it will compensate those affected customers. But the community also expects that financial services entities that break the law will be held to account. The community recognises, and the community expects its regulators to recognise, that these are two different steps: having a wrongdoer compensate those harmed is one thing; holding wrongdoers to account is another.

In response to the Royal Commission, and specifically the ‘Why not litigate?’ mantra elaborated and recommended by Commissioner Hayne, the Australian Securities and Investments Commission (‘ASIC’) has significantly reshaped its enforcement model. It is quite clear that this model prioritises the sanctioning of wrongdoers over the delivery of redress to victims. The aim of this article is to test the theoretical and practical justification for such a preference. The central question — should the regulator focus its resources on compensating those harmed by regulatory contraventions rather than sanctioning those who have broken the law? — arises because, while it will sometimes be possible to achieve both goals simultaneously, the prudent allocation of finite resources usually dictates that the enforcement strategy be tailored to the regulator’s priority. As Commissioner Hayne put it, the ‘regulator must approach [its] work ... with a clear view of what kinds of outcome’ it wants to achieve; those desired outcomes — especially the most desired outcome — will guide the regulator’s choice of enforcement tools.

Part II of this article demonstrates, as a preliminary factual matter, that ASIC’s current enforcement model does not prioritise the delivery of redress to victims of misconduct. Part III examines whether, if such a priority were adopted, it would be theoretically justified, evaluating insights from regulatory scholarship, social psychology and sociology. The discussion commences with an analysis of the breadth of the regime that ASIC is required to enforce and the considerable discretion it is given to calibrate its enforcement style and determine its priorities when regulatory objectives conflict. The Part concludes that regulatory and interdisciplinary theory does not provide a secure foundation for either a punitive or a compensatory priority where those aims are in tension. As such, the article turns to resolve the question by reference to two key practical issues: whether regulatory mechanisms are more effective than others at achieving compensation, considered in Part IV; and whether, assuming a compensatory priority were adopted, this would unduly hinder the fulfilment of other regulatory objectives, considered in Part V. 

Part IV commences with the recognition that the regulator ought properly to be mindful of both the availability and efficacy of alternative avenues for victims to obtain redress before determining its strategic priorities and resource allocation in response to a particular contravention or class of contravention. Interestingly, however, the analysis finds that regulatory mechanisms are among the most available and effective in delivering compensation when compared with private litigation, alternative dispute resolution (‘ADR’) and external dispute resolution (‘EDR’). Despite this, Part V argues that a compensatory priority would unduly impede both the regulator’s ability to achieve deterrence through enforcement and to improve compliance through its softer activities of persuasion, education and policy advice. The article therefore endorses ASIC’s updated enforcement model to the extent that it conceives the agency’s statutory role as best fulfilled where it prioritises the punishment or censure of regulated entities who contravene the law.

Peake concludes 

As Australian corporate conduct came under intense and highly publicised scrutiny during the Royal Commission, so too did the conduct of the conduct regulator. ASIC has fully embraced the recommendations made by Commissioner Hayne that deal with its own approach to enforcement. In updating its enforcement model, ASIC has been and will continue to be supported by legislative reform, both to its own powers and to the scheme of duties and penalties that apply to regulated entities. The central change to ASIC’s enforcement approach is its adoption of the ‘Why not litigate?’ operational discipline. That mantra effects a renewed strategic prioritisation of the need to ensure appropriate punishment or censure of those who break the law, above and beyond other goals that the regulator may be interested in achieving, such as the delivery of adequate redress to victims of misconduct. The purpose of this article has been to interrogate that prioritisation and consider whether it would be preferable for the regulator to adopt the opposite position, and more readily focus its resources on the delivery of compensation to victims of misconduct. 

The central argument advanced in this article — that a regulator compensatory priority would be an effective way to deliver redress to victims but would unduly impede other desirable regulatory objectives — used the assumptions and logic of responsive regulation as its yardstick. It was beyond the scope of the article to engage in a substantive critique of that theory or its symbolic manifestation in the enforcement pyramid. However, given the extensive adoption of responsible regulation, including by ASIC, it is logical to discuss the merits of a compensatory priority, or indeed any shift in regulator focus, from that perspective. The article began by considering the underlying theoretical question: whom or what does the regulator serve? This discussion was approached broadly, evaluating insights from diverse sources: conventional regulatory scholarship, social psychology, and sociology. The answer was the amorphous ‘public interest’, which leaves little secure theoretical footing for a compensatory priority. As such, the practical implications of such a shift were taken to be the most important considerations. There is sufficient evidence, in my view, for concluding that regulatory mechanisms are among the most effective at delivering compensation. However, a regulator’s choices are complex and its resources must be deployed to ends other than compensation alone, particularly deterrence and compliance. My analysis suggests there is a credible risk that substantial violence would be done to the fulfilment of those goals if the interests of victims were to be preferred in a case of conflicting regulatory objectives. Such a priority should not be adopted.