Tim Crosland has been a barrister for more than 25 years, but he may not be one for much longer.
For the last five years he has also been a trustee of Plan B, a registered charity which he helped to found, whose objectives are given at length in its governing document, but are more pithily summarised in its twitter profile as:
“Taking legal action against the British Government to secure a safe climate future for people and planet.”
He is a strong supporter of Extinction Rebellion, which he considers has achieved more in 18 months than other environmental groups achieved in three decades.
He is the very model of a “left wing activist lawyer,” and if you are interested in his politics and you can face over 40 minutes of his preening self-righteousness then you can watch him talking to Extinction Rebellion’s Roger Hallam – not to be confused with the equally but very differently deluded Roger Helmer – here.
One of Plan B’s legal actions was against the government. Indeed it was originally against the previous administration’s principal unsafe pair of hands Chris Grayling, the former Secretary of State for Transport. Along with Friends of the Earth, Plan B argued that Mr Grayling had unlawfully ignored the Paris Climate Agreement when it designated the “Airports National Policy Statement” as government policy. The ANPS does not of itself grant planning consent for the proposed third runway at Heathrow, but it does set the “policy framework” in which the decision on that consent will be made. It is a framework that makes it more likely that the third runway will ultimately be built.
Plan B lost in the Divisional Court, but last February it won in the Court of Appeal, which ruled that the Mr Grayling had not taken into account the government’s policy commitments on climate change as agreed to in the Paris Agreement.
The Government – by now Mr Johnson was Prime Minister – decided not to appeal. In truth, their defeat in the Court of Appeal may have been rather convenient. It allowed the Prime Minister, who once made what now seems a possibly disingenuous pledge to lie down in front of the bulldozers to prevent the airport’s expansion, to avoid, or at least put off, making any decision about a contentious issue.
By this stage, however, Heathrow Airport itself – Heathrow Airport Ltd – a company who very much did want the third runway to go ahead, had intervened in the case, and they did appeal, hence the case ended up in the Supreme Court.
The judgment itself makes for rather heavy reading: those who want to follow the various arguments without getting completely lost will, like me, find the Supreme Court’s Press Summary a good place to start. There will be some who would find the Supreme Court’s video recording of the hearings interesting; but I doubt there will be very many. Mr Crosland represented Plan B, and did so, no doubt in a revolutionary gesture, wearing a suit but no tie. I would illustrate this with a screenshot were it not for the rather fierce legend at the bottom of the Supreme Court screen:
“… re-use, capture, re-editing or redistribution of this footage in any form is not permitted. You should be aware that any such use could attract liability for breach of copyright or defamation and, in some circumstances, could constitute a contempt of court.”
Anyway, he lost. I say nothing of the merits of the decision. It turned to a large extent on an arcane point of statutory construction, namely the proper meaning of the phrase “government policy” in S.5 (8) of the Planning Act 2008. There is nothing in the judgment about the merits or otherwise of a third runway, and it makes no more sense to say that the Supreme Court supported its construction than to say that the Court of Appeal opposed it.
As is normal with Court of Appeal or Supreme Court judgments, the parties were supplied with copies of the draft judgment a day or two beforehand. There are lots of reasons for this. It gives them a chance to check the judgment for mistakes or obvious factual errors. Correction of these might occasionally make a significant difference to the outcome; a draft, after all is just a draft. There may be consequential arguments, perhaps about the wording of an order or about costs. It is hardly fair to ask the counsel involved to address these without at least a little time to prepare. But the drafts are supplied on the very clear understanding that their contents are not to be made public until “handed down,” either in open court, or by being formally made public by the Court itself. It is a system that usually works well and does so, like so much in the legal system, on the basis of trust. Solicitors and barristers – whether they have won or lost – can generally be trusted not to abuse it for personal or political advantage. Lawyers who believe that they have a monopoly of virtue are both tiresome and dangerous. Lawyers who cannot be trusted are a menace.
Unfortunately Mr Crosland could not be trusted. The day before the Court was due to hand down its judgment, using the twitter account of Plan B, he denounced the Supreme Court’s decision. He described his outrageous breach of trust as an “act of civil disobedience.” He had, he said “deep respect for the rule of law and the vital role of the judiciary in holding power to account,” although only, it seems, when he wins. The Supreme Court, in upholding what he called Mr Grayling’s “treasonous betrayal of the young people of this country” had, he said, “betrayed us all.”
Talk of treacherous judges in the Supreme Court is reminiscent of President Trump, and it certainly does not sound very respectful. It is the mirror-image of the “enemies of the people” language that some of the British press engaged in during the Article 50 or Prorogation litigation.
Mr Crosland knows that he – and possibly the charity whose twitter account he was using – will face proceedings for contempt of court. The Court has already referred him to the Attorney General who we must hope will deal with the matter appropriately. Unfortunately he is a fanatic who will – Tommy Robinson-like – try to use a perfectly proper prosecution for contempt of court to turn himself into a political martyr.
The Court has also, entirely properly, referred him to the Bar Standards Board. It is almost inconceivable that they will not seek to discipline him. If Mr Crosland backs down, apologises and admits he was wrong then it will no doubt be possible for the tribunal before which he will eventually appear to take a lenient view. If – as seems far more likely – he continues to grandstand and behave as though the ordinary rules of professional conduct do not apply to him because of the purity of his ideals I very much hope it will ensure that he is never able to work as, or call himself, a barrister again.
The post Unless he apologises Tim Crosland should never work as a barrister again. appeared first on BarristerBlogger.