Lawyers are Responsible for the climate crisis! Declan Owens

The following article was published in the November 2024 issue of the International Review of Contemporary Law, the journal of the IADL, focusing on climate and social justice.

 

Lawyers are Responsible for the climate crisis!
by Declan Owens

In late 2022 a group of lawyers in the UK met to discuss the need to consider the manner in which the climate crisis impacts their role as lawyers and to plan to undertake a significant intervention, especially in relation to how peaceful climate protesters are being treated in the UK courts. Following these discussions two organisations were formed to help to address these issues: Lawyers Are Responsible (LAR) and Defend Our Juries (DOJ). The Haldane Society of Socialist Lawyers supports these initiatives, and I take this opportunity as one of its IADL Bureau representatives to raise awareness with IADL comrades of the ongoing impact these organisations have had within the legal profession and court system within the UK. There are potential lessons for lawyers in other countries, especially common law jurisdictions and those which use the jury system as a key component in their justice systems.

About LAR

LAR aims to align the UK legal system with planetary conditions that are livable for current and future generations by:

• delegitimizing (whether through cultural, legal or regulatory means) legal and judicial support for acts which, according to the best available science, jeopardize the conditions which make the planet livable; and
• legitimizing the acts of those who peacefully resist such conduct.

LAR has a shared vision of change, in order to create a world which is livable for generations to come. Our vision is grounded in principles of decolonization, which aim to dismantle systems of domination and oppression at all levels. We do not support any conception that one person or sub-group holds a monopoly of wisdom, and support people in speaking truthfully in their own voice. We have a vision of authentic democracy in which we respect and uphold processes designed to ensure that all voices are heard and influence collective courses of action. We recognize the need for a regenerative culture, as part of which we take care of each other, in particular during and after high intensity actions.

Our vision is the climate crisis is the single biggest threat to human health in history, which is already impacting on millions of people around the world and especially within the Global South; that ecosystems and forms of life are disappearing faster than ever in human history; and the urgency of the need for transformation across all sectors of society. While recognizing that we do not hold a monopoly on that truth we pursue actions in accordance with our purpose, using our professional standing and expertise, to enable discussion and debate that lead to changes in policy and law.

The LAR Declaration

LAR entered into the controversy within the UK legal profession and the public discourse with the following Declaration of Conscience in March 2023:

“WE, the undersigned members of the legal profession:

BELIEVE IN UPHOLDING THE RULE OF LAW, AS A CORNERSTONE OF SOCIAL STABILITY, PROSPERITY AND DEMOCRATIC VALUES.

NOTE  THE  UK  PARLIAMENT’S  DECLARATION  OF  A  CLIMATE EMERGENCY IN 2019 and similar declarations by over 2,000 national and local governments. We also note that in 2021 the International Energy Agency concluded that there could be no new oil or gas fields or coal mines if the world was to reach net zero by 2050, and the UN Secretary General’s statement in April 2022 that “investing in new fossil fuel infrastructure is moral and economic madness”. Despite global carbon emissions from fossil fuels hitting record levels in 2022, the UK Government approved a new coal mine in Cumbria and currently plans to issue more than 100 new licenses for oil and gas production in the North Sea.

RECOGNISE THAT WE ARE SET TO BREACH THE 1.5C GLOBAL WARMING LIMIT ESTABLISHED BY THE PARIS AGREEMENT ON CLIMATE CHANGE.

PROFOUNDLY REGRET THE DIRE CONSEQUENCES. HM Treasury stated in its Net Zero Review: Interim Report (July 2021) that we face an “existential threat”. Accumulating scientific irreversible  impacts  of  climate  change one ecosystems, biodiversity and human systems. The likely consequences of “overshooting” 1.5C include widespread loss of life and livelihoods, catastrophic harm to health, large scale population displacements and the destruction of critical infrastructure. In the UK alone, we are already seeing unprecedented heat waves, wildfires, flooding and coastal erosion. In other parts of the globe the effects are already far worse. To take but two examples, in East Africa at least 30 million people are facing famine and 2022’s record-breaking floods in Pakistan impacted around 33 million people. Climate change results in climate injustice: lower-income groups and countries and the younger generation have contributed least to climate change but are the most severely affected by it.

EXPRESS OUR GRAVE CONCERN THAT THE ABOVE DEVELOPMENTS POSE A SERIOUS RISK TO THE RULE OF LAW. And note that lawyers who support transactions the effects of which are inconsistent with the 1.5C limit contribute towards the above consequences.

ACCORDINGLY:

• WE CALL UPON OUR GOVERNMENT AND OUR COLLEAGUES TO ACT URGENTLY TO DO WHATEVER THEY CAN TO ADDRESS THE CAUSES AND CONSEQUENCES OF THE CLIMATE AND ECOLOGICAL CRISES AND TO ADVANCE A JUST TRANSITION TO SUSTAINABILITY.
• WE SUPPORT LAW REFORM AND LITIGATION AIMED AT MITIGATING AND  ADAPTING  TO  THE  EFFECTS  OF  GLOBAL WARMING. In particular,we support the implementation of the polluter pays principle to correct the market failure that externalises to society the costs of greenhouse emissions created by burning fossil fuels.

• WE SUPPORT INDIVIDUALS’ DEMOCRATIC RIGHT OF PEACEFUL PROTEST, IN PARTICULAR PEACEFUL PROTEST AIMED AT DRAWING PUBLIC ATTENTION TO THE CLIMATE CRISIS. And we note with concern the provisions of Part 3 of the Police, Crime, Sentencing and Courts Act 2022 and the Public Order Act 2023 that seriously restrict this right.

• WE HAVE DONATED, AND WILL CONTINUE TO DONATE, OUR TIME OR MONEY TO THE ABOVE CAUSES AND ENCOURAGE OUR COLLEAGUES TO DO LIKEWISE.
• WE DECLARE, IN ACCORDANCE WITH OUR CONSCIENCES, THAT WE WILL WITHHOLD OUR SERVICES IN RESPECT OF:
  • supporting new fossil fuel projects; and
  • action against climate protesters exercising their democratic right of peaceful protest.”

The controversy

As a result of the Declaration to withhold services, there was concern that the barristers who signed were in breach of their professional obligations. LAR was targeted by the right-wing newspaper, the Daily Mail, with the following front-page headline: “Fury at woke barristers refusing to prosecute eco warriors: 120 top legal professionals to sign ‘Declaration of Conscience’ to try and keep climate activists out of the courts.”

The Conservative MP, Sir Geoffrey Cox KC, a former Attorney General, stated: “It’s difficult to see, given the very clear rules that the profession requires, how you could justify refusing instructions for political reasons … It’s equally deplorable to attack any barrister for the nature of their client … [a lawyer] is as much beholden to or as much interested in or connected with the political views of his client as a plumber is to his client, or a doctor to his basement.”

Rules C28 – C30 of the Bar Standards Board Handbook (Handbook) provide materially as follows:

“rC28

You must not withhold your services or permit your services to be withheld:

1. on the ground that the nature of the case is objectionable to you or to any section of the public;

2. on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to you or to any section of the public; …

“rC29

If you receive instructions from a professional client, and you are:

1. 1. a self-employed barrister instructed by a professional client; or
   2. an authorised individual working within a BSB entity; or
   3. a BSB entity and the instructions seek the services of a named authorised individual working for you,

and the instructions are appropriate taking into account the experience, seniority and/or field of practice of yourself or (as appropriate) of the named authorised individual you must, subject to Rule rC30 below, accept the instructions addressed specifically to you, irrespective of:

1. 1. the identity of the client;
   2. the nature of the case to which the instructions relate;
   3. whether the client is paying privately or is publicly funded; and
   4. any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.

“rC30

The cab rank Rule rC29 does not apply if:

1. you are required to refuse to accept the instructions pursuant to Rule rC21…”

The following provisions of rC21 are most relevant:

“You must not accept instructions to act in a particular matter if: … there is a real prospect that you are not going to be able to maintain your independence.”

In deciding whether the cab rank rule applies to new instructions or whether one of the exceptions is engaged and compels them to refuse them, barristers must consider these provisions and use their professional judgement, notwithstanding the views of their client, professional client, employer or any other person. Additionally, they must be able to justify their decisions and actions (rC20).

A relatively few number of barristers have signed the Declaration. They represent approximately 0.1% of the profession. The Bar Standards Board (BSB) is the statutory regulator for barristers pursuant to the Legal Services Act 2007. Some barrister signatories to the Declaration referred themselves to the BSB in relation to what was perceived in some quarters to be a breach of the Handbook.

The broad issue for the BSB in respect of those self-referrals is as follows: what is the appropriate regulatory response to the Declaration? In addressing the above overarching issue, LAR raised the wise summation of Lord Hoffmann at para 89 of R v Jones [2007] 1 AC 136, as follows:

“My Lords, civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account. The conditional discharges ordered by the magistrates in the cases which came before them exemplifies their sensitivity to these conventions.”

The Bar Council’s public position on the climate crisis is as follows:

“The Bar Council recognises the scientific consensus that limiting global heating to 1.5 degrees Celsius is fundamental to preventing the very worst effects of climate change. We also recognise the likelihood that the developing crisis will bring increased global inequality and in turn an increased risk of conflict and global disruption, affecting access to justice and the rule of law.

The Bar Council profession has a duty to join the global effort to mitigate and adapt to the effects of climate change and recognises its central role in supporting its members in doing so.”

As is recorded in the Declaration, in 2021 the International Energy Agency concluded that there could be no new oil or gas fields or coal mines if the world was to reach net zero by 2050, and in April 2022 the UN Secretary General stated that “investing in new fossil fuel infrastructure is moral and economic madness”.

Further relevant context for the Declaration is as follows:

(i) the UK Government is continuing to grant licenses for new coal mines and new oil and gas fields within the UK and

(ii) the City of London supports approximately 15% of global carbon emissions (a figure equivalent to more than double the territorial emissions of India). It will be noted that the pledge at para 5(i) of the Declaration is not limited to UK territorial emissions.

The IPCC AR6 synthesis report, summary for policymakers, was published on 20 March 2023 (SPM). Such summaries are approved by the governments of states who are members, including the UK Government. The IPCC predicted that it is likely that warming will exceed 1.5°C this century and it is now harder to limit warming below 2°C, with a best estimate of reaching 1.5°C by 2040. Continuing with implemented emissions policies will lead to projected global warming of 3.2°C this century. This is against the background that over 3 billion people live in contexts that are highly vulnerable to climate change. They stated that there is a rapidly closing window of opportunity to secure a liveable and sustainable future for all and the decisions implemented this decade will have impacts for thousands of years.

Limiting warming to 1.5°C or to 2°C requires deep global GHG emissions reductions this decade (they are still increasing year on year). In sum, the IPCC advised that rapid and far- reaching transitions across all sectors and systems are necessary to achieve deep and sustained emissions reductions and secure a liveable and sustainable future for all.

Whilst the above is all relevant context, key from the perspective of the Declaration is section B.5 of SPM. This provides authoritative confirmation that, prima facie, there can be no expansion of fossil fuel infrastructure, if global heating is to be limited to 1.5°C:

“B.5 Limiting human- the time of reaching net-zero CO2 emissions and the level of greenhouse gas emission reductions this decade largely determine whether warming can be limited to 1.5°C or 2°C (high confidence). Projected CO2 emissions from existing fossil fuel infrastructure without additional abatement would exceed the remaining carbon budget for 1.5°C (50%) (high confidence).”

LAR believes that it follows as a matter of logic from the above that the profession has a duty not to support new fossil fuel infrastructure projects, within the UK or abroad. There is thus a potential conflict between the cab rank rule and the profession’s wider duty as a matter of fundamental social responsibility. Although the barrister signatories referred themselves to the BSB, to date there has been no regulatory action taken by the BSB. I signed the Declaration and I maintain it is a matter of conscience from which I cannot shirk and that it is in any event quite limited in its scope given the consequences we face as a society.

Defend Our Juries

The DOJ campaign originated with the action of Trudi Warner, a 68-year-old retired social worker and legal observer. The campaign was seeded and is supported, by LAR. Trudi was moved by the silencing and repression of climate protesters which she had witnessed in court, so she held up a sign outside Inner London Crown Court. A judge there had been banning defendants from explaining their motivations to the jury and sending people to prison just for using the words ‘climate change’ and ‘fuel poverty’ in court. Trudi’s sign set out the principle that juries have a right to acquit a defendant as a matter of conscience, even if a judge directs them that the defendant has no legal defence.

The sign was a correct and neutral statement of the law based on legal advice. Jurors do have the right to acquit a defendant, irrespective of any directions the judge gives. The right to a jury trial has been lauded as an effective guarantor of justice, a vital safeguard in a democracy and an essential element of the justice system in the UK. Yet many people engaged in campaigns of political resistance who find themselves in a Crown Court will have experienced that the right to a jury trial has been severely curtailed in recent years. Defendants find that they are unable to, for example, explain their motivations and beliefs to the jury, and call relevant expert evidence and witnesses. This has meant that people who have taken action to draw attention to the climate and ecological emergency, have been prevented from calling on expert scientific evidence, and the UK Government’s failure to act on expert scientific advice. In cases where a defendant has been permitted to give some account of their beliefs and motivations, judges routinely tell juries to ignore the defendant’s evidence because it is irrelevant. In addition, courts are:

• sending people to prison for saying “climate change” or “fuel poverty” in court.
• banning references to a jury’s right to acquit a defendant as a matter of conscience.
• arresting and referring for prosecution those who highlight the right of jurors to make decisions on their conscience.
• directing the jury that defences such as necessity, proportionality or reasonable excuse are not available.
• threatening to move to judge only trials.

Taken together, these measures are effectively removing the right to trial by jury, except in name. Most members of the public, who support juries and the independence of juries, have no idea that this is happening, and would no doubt be appalled if they did.

The aims of the Defend our Juries campaign are:

• to bring to public attention the programme to undermine trial by jury in the context of those taking action to expose government dishonesty and corporate greed.
• to raise awareness of the vital constitutional safeguard that juries can acquit a defendant as a matter of conscience, irrespective of a judge’s direction that there is no available defence (a principle also known as ‘jury equity’ or ‘jury nullification‘).
• to ensure that all defendants have the opportunity to explain their actions when their liberty is at stake, including by explaining their motivations and beliefs.

DOJ is drawing attention to the fact that jurors have an absolute right to acquit a defendant according to their conscience. This principle was established by Bushel’s case of 1670. In that case, the jury refused to convict two Quakers of unlawful assembly for holding a religious meeting in breach of the Conventicle Act. Their refusal to convict infuriated the judge who had the jury imprisoned for two days without food. Thereafter, the jury still returned a not guilty verdict and were fined by the judge and imprisoned for contempt.

Subsequent proceedings initiated by Edward Bushel, one of the jurors, established the principle of independence of juries.

A jury cannot apply its conscience (what was referred to as ‘convictions’ in Bushel’s case) to a case if defendants are not permitted to give evidence about their motivations and beliefs, and other evidence to support their beliefs. Therefore, the hollowing out of jury trial is undermining the right to a fair trial. The right of jurors to determine a case according to their conscience is an important safeguard against tyrannical power, abusive laws, or oppressive charges. It has been enshrined in the UK’s legal system that there should be ‘judgment by our peers’. Therefore, juries are fundamental to the UK’s ‘unwritten’ constitution.

There are many arguments in favour of the jury system, including that it enables citizens to participate in an important democratic process with significant tangible implications. Juries are trusted to make sound decisions, as a group of 12 ordinary people selected randomly, they are more in touch with the moral sense of the general public than judges. They are also more diverse than judges, who are much more likely to be older, white, male, Oxbridge educated (this is especially true of Court of Appeal judges) ,and- of the same demographic as the people running the country and heading up the companies doing the damage. The spectacle of a bewigged judge subverting the power of 12 ordinary citizens, by implying to them they have no option to convict, and concealing their right to acquit, is in microcosm the story of corporate power subverting our democracies. Empowering our juries is to breathe life into democracy. Research shows that juries make good decisions.

Juries have acquitted many people engaged in political resistance recently. Some examples include defendants who have:

• toppled the statue of the slave-trader, Edward Colston, into Bristol Harbour (2022).
• defaced Shell’s HQ in response to Shell’s lies and crimes (2022).
• blocked the M4 motorway to demand the government insulate social housing during an energy crisis (2023).
• targeted Elbit, which manufactures the drones used to kill Palestinians (2023).
• intervened to prevent violent deportations to Jamaica (2023).

Juries are more likely to return not guilty verdicts than judges because they hear the evidence and are more likely to respond to the justice of the situation, unlike a lawyer or judge who may be institutionalised and/or may be concerned about the implications for their career if they fail to deliver the result expected of them. Judges are paid by the State, which is all the more relevant in political trials concerning the conduct of the State. Juries do not give reasons for their verdicts, unlike a judge. It is strategic that DOJ are drawing attention to the hollowing out of jury trial, particularly as the UK Government has introduced a wave of repressive legislation against people who exercise their democratic right of protest. It is clear that a government demonstrating an increasing authoritarian tendency would also be interested in limiting the role of juries.

As noted above, the DOJ campaign was inspired by retired social worker Trudi Warner, who held a sign outside the Inner London Crown Court in March 2023 during the trial of Insulate Britain campaigners. The sign read: “Jurors: You have an absolute right to acquit a defendant according to your conscience.” The same message is to be found on a plaque in the Old Bailey celebrating the ‘courage and endurance’ of the jury in Bushel’s case. Judge Silas Reid had imposed an order that the Insulate Britain defendants in that trial must not mention climate change in their defence to the jury. Judge Reid ordered Warner to appear at the Old Bailey before a high court judge for “contempt in the face of the court attempting to influence the jury”.

Since Warner’s action, 24 people replicated Trudi’s action in May 2023 outside Inner London Crown Court. All held the signs silently with lowered eyes, all were referred to the Attorney General for contempt of court, and are awaiting charges as at time of writing. Those taking part included Quakers, health professionals, a priest, a gold medal Olympian, legal professionals, and a retired police officer. In addition, three people who put up posters displaying the same message along the road by Inner London Crown Court have been arrested for “perverting the course of justice”. Forty people then wrote to the Attorney General in solidarity with Warner, requesting that if Warner is to be prosecuted, they be prosecuted as well, because they had done the same. Those who held signs on 17 July wrote to the Attorney General identifying themselves – in the style of Martin Luther King’s ‘Letter from Birmingham Jail’:

“One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law.”

DOJ maintain that it would be politically impossible for the UK government to openly remove trial by jury, so the courts have surreptitiously sought to undermine trial by jury, while preserving its appearance. DOJ staged a national day of action on 25 September 2023 when hundreds of people quietly stood or sat holding signs outside some 25 courts where defendants were on trial for political actions. As a result of these ‘open, loving actions’ the public are increasingly becoming aware about what is happening to juries, and more people are mobilising to defend juries.

In April 2024, Mr. Justice Saini ruled at the UK High Court that there was no basis to take action against Trudi Warner for holding up the sign informing jurors of their right to acquit a defendant based on their conscience. He said the government’s claim that her behaviour fell into the category of criminal contempt was “fanciful”. Saini in his ruling accused the UK Government’s Solicitor General of “significantly mischaracterising” the evidence, when his lawyers alleged Trudi Warner behaved in an intimidating manner, confronting potential jurors outside the court. His ruling also reiterated that there was a well-established principle in law of jury equity; a de facto power to acquit a defendant regardless of directions from the judge.

Unfortunately, on 15 May 2024, the UK Government announced that it will appeal against a decision not to allow the contempt of court action against Trudi Warner to proceed. A spokesperson for the Solicitor General said: “The High Court’s judgment in this case has raised important questions about protecting jurors from interference, which is why the Solicitor General is seeking permission to appeal. Contempt of court is a serious matter and the power to issue proceedings is used sparingly.” The DOJ campaign continues.

Conclusion

The mandate of the Special Rapporteur on Access to Justice in Environmental Matters, is a legally binding international treaty. The United Kingdom has been a Party to the Aarhus Convention since 2005, and as such, it has binding obligations: one of these obligations is to protect environmental defenders.

This obligation lies in Article 3 (8) that states, “Each Party shall ensure that persons exercising their rights in conformity with the provisions of (the Aarhus) Convention shall not be penalized, persecuted or harassed in any way for their involvement.” The mandate of Special Rapporteur was established to urgently deal with violations of Article 3(8). This means that the role is to provide a rapid response to cases of penalisation, persecution, or harassment of environmental defenders.

In January 2024, the Special Rapporteur was in London for a couple of days to meet with environmental defenders and UK Government representatives. He had been travelling to many different countries before that and had received many concerning reports of the crackdown on environmental defenders in these countries. However, he has recently stated that, “I must say, I had not seen a situation as concerning as the one in the UK. The gravity of what I heard prompted me to immediately release an End of Mission Statement, at the end of this visit to London … I said very clearly and publicly that the increasingly severe crackdown on environmental defenders in the UK and especially of their right to protest – was a major matter of concern for me and posed a serious threat to the healthy functioning of democratic life in the UK.”

The impacts of the LAR and DOJ campaigns on the UK legal profession and the criminal justice system have been incredibly significant. Lawyers are responsible for facilitating the evils of global capitalism and participating in the criminal justice processes of punishing those who peacefully resist this inherent injustice within our societies. Some of the highest paid members in our profession sign off on the most damaging commercial transactions of global corporations and governments who are perpetuating a corrupt colonial system of control and oppression of the Global Majority, which is destroying the earth’s ability to support human life.

Accordingly, we lawyers are responsible for helping to change our profession that which is considered acceptable in our role as agents of the administration of justice in an era of climate breakdown. In this respect, it is imperative that we support the actions of climate

protesters and earth defenders who are putting their life and liberty on the line and facing the savagery of capitalist legal systems in the UK and further afield. Protests are not a threat to democracy. They are a sign of its healthy functioning.

Declan Owens

Co-Chair of the Haldane Society of Socialist Lawyers and International Secretary of Socialist Association of Ireland

All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.