Around a year ago, I became involved with a group of lawyers who were determined to do something about the climate and ecological crises. I helped to draft a “declaration of conscience” for the group, which has been signed by some 200 lawyers, law students and legal academics. The Lawyers Are Responsible (“LAR”) declaration, which was made public in March last year, ends with a pledge to withhold our legal services in respect of: (i) supporting new fossil fuel projects and (ii) action against climate protesters exercising their democratic right of peaceful protest.[1]
It was this last aspect of the declaration that attracted a significant amount of attention from the media and the profession. Equally important, but less controversial and therefore less newsworthy, is the signatories’ commitment to donate their time or money to the cause of advocating mitigation of and adaption to the effects of global warming. LAR members have been very active in this respect, appearing on TV and radio, writing articles published in the media, participating in peaceful climate protests, corresponding with Magic Circle firms, the Government and Opposition, and universities, speaking with staff and meeting senior partners at the Magic Circle firms, attending university law fairs and other events with law students and contributing to academic seminars, as well as engaging with and providing support for the wider climate movement. There are important differences between legal and political advocacy; for me at least the past year has been a steep learning curve.
I am a KC practising in the fields of public law, property and commercial litigation. My lay clients comprise mainly, although not exclusively, government, commercial organisations and high net worth individuals. I had never become publicly involved in any activist cause before last year. Why did I do it?
For years, scientists have been warning that global warming, caused by greenhouse gas emissions primarily from burning fossil fuels, poses an existential threat to human societies. The recent Global Tipping Points report produced by the University of Exeter Global System Institute concludes that: “Harmful tipping points in the natural world pose some of the gravest threats faced by humanity. Their triggering will severely damage our planet’s life-support systems and threaten the stability of our societies.”[2] Within the last few years, the destruction and suffering caused by extreme weather events made more frequent and intense by global warming have been plain to see on our TV screens. And this is just the start. From a personal perspective, it means that my children inherit an earth that is in far worse shape to support human societies than I did.
One might think that a natural reaction to these circumstances would be intensified political action to counter the threat. A study published in February this year indicated that 89% of the global population wish governments would do more to tackle global warming.[3] Indeed, for a brief period, it seemed as if the UK might position itself at the vanguard of concerted international action to reduce greenhouse gas emissions.
One should view claims that the UK is a “global climate leader” in the context that, once emissions from former colonies are taken into account, the UK is responsible for around 5% of historical emissions, placing it fourth on the list of the biggest polluters, behind the US, China and Russia.[4]
Nevertheless, since the Thatcher era, the UK has benefitted from a cross-party consensus on the need to tackle climate change. After Extinction Rebellion burst onto the scene in October 2018 with its campaign of non-violent civil disobedience, in May 2019 Parliament declared a climate and nature emergency and by June 2019 the Climate Change Act 2008 had been amended to raise the target for reducing emissions to “net zero” by 2050. In November 2021, COP 26 concluded with the Glasgow Climate Pact calling for “accelerating efforts towards the phasedown of unabated coal power and phase-out of inefficient fossil fuel subsidies”.
Yet, by December 2022, the UK Government had doubled the rate of tax relief for oil and gas projects, granted approval for a new coal mine in Cumbria and announced plans to issue more than 100 new licences for oil and gas production in the North Sea. If these were not breaches of the letter of the Glasgow Climate Pact, they certainly trampled all over its spirit. Meanwhile, the Public Order Act 2023 clamped down on protest rights. This was the context in which I signed the LAR declaration.
In retrospect, it seems clear that the actions by the UK Government described above were part of a concerted policy of rowing back on its own climate commitments. In September 2023, production consent was granted for the Rosebank field with an estimated recoverable 300 million barrels of oil. In November 2023, the Offshore Petroleum Licensing Bill was introduced, to enshrine in law a new policy to “max out” North Sea oil and gas production. These measures were marketed under the banners of pragmatism and realism, but went against expert advice from the International Energy Agency, Intergovernmental Panel on Climate Change and Climate Change Committee. As Pilita Clark wrote recently in the Financial Times, despite the superficial attraction of more gradual climate solutions, “Alas, the science shows governments have dithered for too long already.”[5]
Public debate about the LAR declaration focused on the cab rank rule under Rules C29 – 30 of the Bar Standards Board (“BSB”) Handbook. There is no equivalent rule for solicitors. One of LAR’s most persistent critics is the former Chair of the Bar, Nick Vineall KC, who wrote an article in The Barrister, Trinity Term 2023 issue, entitled The cab rank rule is a bedrock obligation. In the article, Mr Vineall KC compares the cab rank rule to the Hippocratic Oath. With respect, the analogy is inapt, but illuminating. The modern Hippocratic Oath is a pledge to help the sick and do no harm. It is an intrinsically ethical rule. The essence of the cab rank rule is the duty to accept instructions from any solicitor in any case within one’s field of practice, for a “proper fee”. In itself, it is an amoral rule, which is justified insofar as it contributes towards the ethical aim of access to justice for all.
Even Mr Vineall KC admits that the cab rank rule contains a relevant exception where, because the barrister “felt so strongly”, there was a real prospect that they could not act with independence in a particular case (see Rules C30.1 and C21.10). However, it has been held that a conscientious belief that we are heading towards catastrophic climate change, and are under a moral duty to mitigate or avoid that catastrophe for the benefit of future generations, is capable of constituting a philosophical belief for the purposes of equality and Human Rights legislation: see Grainger plc v Nicholson [2010] ICR 360, EAT (Burton J). This legal framework provides a more principled basis for distinguishing the small minority of barristers who would refuse instructions for genuine reasons of conscience from the many who would rather not take on a case which is unpalatable or unpopular. At the end of the day, the barristers who signed self-referred to the BSB, which in May 2023 decided not to take any regulatory action.
Naturally, none of the above subtleties found their way into the popular press. In March 2023, the Daily Mail ran a front-page article denouncing the barrister signatories as “woke” and so LAR entered the “culture wars”. To that, I say that the signatories are not woke, but awake to what is happening in the world. But I have been struck by how pervasive the Daily Mail’s framing has been. My colleague in chambers, Dr Sam Fowles, writing in the same issue of The Barrister as Mr Vineall KC, says that: “if barristers approach our job as activists then something fundamental is lost”. There is a lot in Sam’s article that I wholeheartedly agree with. However, he has fallen for the line that LAR have “gone woke” and are thereby incapable of performing as proper lawyers.
The declaration was never about the practising lawyers who signed it ceasing to act as lawyers in the cases they took on. No one was about to stop maintaining their professional independence or making evidence-based arguments. The only change the declaration committed the signatories to make to our practices was to draw a red line around limited, well-defined categories of case, in relation to which we said we would refuse instructions.
Sam’s article is entitled Barristers can change the world – but as lawyers not “activists”. This invites the obvious response that it may be possible to change the world acting either as a practising lawyer or as an activist, albeit not both at the same moment in time. We need to hope that we do.
Matt Hutchings KC, Barrister at Cornerstone Barristers
[1] https://www.lar.earth/sign/
[2] https://global-tipping-points.org
[3] https://www.nature.com/articles/s41558-024-01925-3
[4] https://www.carbonbrief.org/revealed-colonial-rule-nearly-doubles-uks-historical-contribution-to-climate-change/
[5] https://www.ft.com/content/2819b9f3-bec0-4537-b3e5-d28fcfb080f5
