Defending the Social Licence of Farming

Issues, Challenges and New Directions for Agriculture

Jacqueline Williams, Paul Martin, Jacqueline Williams, Paul Martin

• Publisher: CSIRO PUBLISHING
• Year: 2011
• Print ISBN: 9780643101593
• eBook ISBN: 9780643104556
• Topic: Technology & Engineering
• Subtopic: Agribusiness
• Index: Technology & Engineering

Issues including climate variability, water scarcity, animal welfare and declining biodiversity have led to increasing demands on farmers to conduct and communicate their farming practices so as to protect their 'social licence to farm'. Farmers are increasingly expected to demonstrate their social and environmental responsibility as a pre-condition to being allowed to carry out their preferred farming and commercial practices. Current examples include the live animal export trade, battles over protection of aquifers from mining, and contests over rural carbon emissions.

In Defending the Social Licence of Farming, authors from Australia, the USA, Europe and Iceland document the diverse issues associated with the 'social licence to farm'. They provide examples of different sectors' strategies and experiences, and give specific indications of what is involved in coping successfully with this political and legal dimension of farming.

As resources become scarce and society's expectations more diverse and demanding, farming can expect that social licence issues will become both more difficult and more important. The book suggests that the old models of response, largely focused on defensive positions, will often be insufficient to protect the interests of both farmers and the community. This book will provide a useful stimulus for innovation and proactive policies to defend the social licence of the farm sector.

LEGAL AND INSTITUTIONAL ASPECTS

11

Social licence and international law: the case of the European Union

Jürgen Bröhmer

The A to Z of Corporate Social Responsibility (Visser et al. 2007) defines the concept of social licence in the context as:

‘... the acceptance, express or implied, of a corporation’s impact on people, society and the environment by their stakeholders or the public at large.’

That, of course, is to distinguish the term social licence from the narrower legal meaning of licence, which refers to an authority to act or operate, or to use a good or right granted by the government or a rights holder. The definition proposed by Visser et al. (2007) is not very precise because the social licence concept cannot be restricted to the behaviour of a corporation because the form of ownership (privately held, incorporated or publicly held) has nothing to do with the social licence concept. Social licence applies equally to non-corporate users of resources as it does to companies. The important point in the present context appears to be the distinction of the social licence to operate from the sphere of legally defined rights and responsibilities.

The social licence concept (Visser et al. 2007) appears to be rooted in concepts of corporate governance and corporate social or environmental responsibility (CSR). CSR has become a blanket term for a range of issues to do with how visible institutions whose behaviour has an effect on the world around them should behave. Things discussed under this heading range across corporate governance and transparency to executive compensation, from industrial relations to forms of investment, and from consumer protection to environmental issues, to name just some of the areas relevant in this context.¹ A marketing or public relations element is evident, because many CSR issues have to do with improving the interaction between the institution in question and its social environment. That process of interaction does not appear to be entirely driven by exclusively altruistic motives. Similarities to, or overlap with, concepts such as branding or cause-related marketing are difficult to deny when engaging with the concept of social licence.

If one were to confine an analysis of the social licence concept strictly as a non-legal matter, it would make little sense to continue with this book. Although social licence is a socio-political matter, it is one that has substantial legal implications, and often it is given effect through the operation of laws. This chapter will attempt to argue that the two spheres cannot, and should not, be regarded as mutually exclusive zones and that the connection between the legal and political can be very close depending on the social, political, legal and institutional environment.

This chapter aims to use the European Union legal system to demonstrate the way in which legal and social interventions are linked, highlighting the ways in which politics marries these two elements. This is not to suggest that this link is in any way unique to Europe, because most chapters in this book suggest that the concept of social licence does, if nothing else, speak of this link.

This chapter shows a complex interaction between European laws that defend the social licence of the individual or the enterprise, and national laws intended to restrict this licence to meet particular needs of the state. It highlights an additional international law dimension to the social licence issue, which is generally discussed as being a dialogue between the nation state and its citizens. The role of supra-national organisations in defending the social licence of the enterprise and the citizen is an interesting modern development. The European instance highlights the potential for this supra-national dimension to come into being, and how this in turn can act as a brake on the ability of the nation state to restrict the commercial freedoms of its citizens. With the growth in international trade laws and other forms of convention that have supra-national effect, this dynamic is likely to be increasingly evident.

Social licence and legal frameworks

Tom Price commenced his observations on CSR with an example of a meeting of Chief Executive Officers’ (CEOs) of major US firms in Washington to demand from the federal government regulation to restrict the emission of greenhouse gases.² The CEOs were asking for regulation of emissions that would be in the form of legislation, not on the basis of some other approach such as taxation penalties, or disentitlement to access to government programs. The preferred mechanism for imposing demands for change in corporate behaviour in a modern society is likely to be through the law. In a democratic society, it is hard to imagine that any form of social behaviour, corporate or otherwise, positive or negative, could not at least potentially attract the attention of lawmakers in the various parliaments, or the involvement of those who apply or develop the law in other capacities (such as citizen legal activists). That will at least be true if that behaviour is of public significance.

The concept of social licence appears to describe a process of communication between an institution and its social environment. The communication that takes place is by definition public and not secret. It is by its nature not limited either in its scope nor by the range of actions that are contemplated hence it can have legal implications as well as political significance. The social and legal spheres are in constant interaction mediated by the many communication processes that take place in an open, responsive and democratic society. Hence, when talking about the concept of social licence, the fact that one might primarily look for non-legal communication processes must not lead to a premature conclusion that this is not also a debate about the actual or potential role of the law.

The legal-institutional framework of the European Union from a social licence perspective

The European Union (EU) is perhaps better placed than most traditional state systems in providing opportunities to observe the relationship between legal regulation and the social licence concept. The EU is a state-like international organisation with far-reaching legislative powers. Its law is supreme to that of its 27 member states. Any legal norm of the EU overrides any norm of the domestic law of a member state, even constitutional norms.³

EU legislation is created through complex legislative processes involving the European Commission as sole initiator of legislation and the Council of Ministers as the representative body of the member states and the directly elected European Parliament as legislative bodies.⁴ The law thus enacted is not implemented by the EU’s own administrative bureaucracy but by the bureaucracies of the member states and (not to be underestimated) by the sheer force of the rule of law. This is particularly by EU citizens taking up their cause in national courts on the basis of EU law empowering them and by the European Commission invoking the European Court of Justice in treaty infringement proceedings.

The fact that the EU does not have a bureaucracy to implement and enforce its own law is significant. The interests of the EU as expressed in its law are not always identical with the political interests of the day in the member states. Such disjunction does not only occur when a member state unsuccessfully opposes a certain legislative act. Disjunction is also possible when a member state supports a legislative measure at the EU level but finds it advantageous to behave differently at home. One reason for this can be sheer political opportunism. Another reason is that some member states are federations where the implementation and enforcement of EU law might be outside the scope of the jurisdiction of the federal government and lie with the constituent entities (for example the Länder in Germany and Austria or the autonomous regions in Spain) where a different political constellation might be in power.

In contrast to this political reality of the EU, the traditional nation state operates on the basis of largely congruent interests of government, the administration and the bureaucracy whose task it is to implement and enforce laws and regulations passed by the government of the day. As governments change, generally the focus of the congruent goals shifts with the change in political authority.

A second significant difference between the EU and a traditional nation state lies in the fact that the EU legal order is not only prescriptive order (it legislates and regulates matters) it is also a limiting, restrictive order. It places considerable limitations on what its member states can do ‘at home’. It goes without saying that this will at times create political conflict. The common market is an illustrative example of this restrictive effect of the EU.

The result of these characteristics of EU law is two fold. Social licence considerations have an impact in the post-legislative political struggle over the enforcement of EU laws. Thus a state government in making decisions about the vigour with which it implements EU law will take into account considerations of the perceived social responsibility of the potentially affected corporations or citizens, given community norms within that state. Over and above this, social licence considerations are relevant for the EU itself in determining what rules it creates and how it goes about seeking their application within national states.

The common market of the European Union

The EU is described by the term supra-national organisation. The term was created to describe the phenomenon of a highly integrated international organisation that cannot be described as a state in the traditional sense, but is much more than a regular international organisation.⁵

The EU covers a wide array of policy fields, ranging from environmental policy to foreign trade, from coordination of social policy to justice, home affairs, foreign and security policy. The broadening of the scope of the EU was the reason for amending the name of one of the previous constituting treaties from European Economic Community to European Community.⁶ However, the EU’s common market has remained one of the cornerstones of European integration. The common market embeds four fundamental market freedoms:

• the free movement of goods (Articles 34–37 Treaty on the Functioning of the European Union (TFEU)⁷)

• the free movement of services (Articles 56–62 TFEU)

• the free movement of people, consisting of

– the free movement of workers (Article 45–48 TFEU)

– the freedom of establishment (Article 49–55 TFEU)

• The free movement of capital and payments (Articles 63–66 TFEU).

The principal structure of the EU’s common market regime

What these market freedoms do in effect is to provide a legal guarantee of the social licence of citizens to exercise these freedoms. They place this supra-national guarantee above national law, and provide a legal framework to enforce these freedoms against individual states. The legal approach governing the application of the fundamental market freedoms is similar for all market freedoms. For the purposes of this chapter, it will suffice to illustrate this using the exa...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface
• Acknowledgements
• About the contributors
• Scene setting
• Experience of farmers
• Legal and institutional aspects
• Future directions
• Index