Barrister who breached Supreme Court embargo: “I felt I had no choice.”

I am grateful to Matthew for allowing me to reply to his blog-post regarding my contempt of court in breaking the embargo on the Heathrow judgment.

Imagine it is 2016 and you are in possession of a confidential report implying the cladding on Grenfell Tower meets appropriate fire-safety standards. You know that to be untrue. You might feel an obligation a) to sound the alarm; and b) to do so as loudly as you could (regardless of the breach of confidence).

What has that got to do with breaking the Supreme Court embargo on the Heathrow judgment? These were the key facts of our claim:

In giving the green light to Heathrow Airport expansion in 2018, Chris Grayling used the 2˚C temperature limit as his benchmark for assessing the climate change impacts of the project (see para 56 of Grayling’s skeleton argument at Court of Appeal):

Nevertheless, the SST [Secretary of State for Transport] does not dispute that the 2 degrees temperature limit was taken into account as a material consideration in the ANPS [Airports National Policy Statement] process”.

He did not, however, take into account the Paris Agreement temperature limit of 1.5˚C and “well below” 2˚C (see para 186 of the Court of Appeal judgment):

It is common ground that the Secretary of State did not take the Paris Agreement into account in the course of making his decision to designate the ANPS.”

Why does that matter? Because in December 2015 the UK Government together with 194 other governments (including China, Iran, Russia and Saudi Arabia) had rejected the 2˚C limit as giving rise to intolerable risks of disaster and had committed to holding warming to the Paris temperature limit.

Grayling didn’t tell anyone he’d relied on the dangerous 2˚C limit. That fact only came to light in the course of this litigation. The Court of Appeal ruled he should instead have taken account of the Paris Temperature Limit. The Government chose not to appeal. The appeal to the Supreme Court was brought only by Heathrow Airport Limited, the company which stands to profit from expansion.

The Supreme Court’s ruling, to the effect that Grayling’s approach was lawful, does not make these facts clear. It does not explain that Grayling approved Heathrow expansion on the basis of the dangerous 2˚C limit as opposed to the Paris Temperature limit. Since it does not address that issue, nor does it provide any explanation or justification for that approach. To this date, Grayling has offered no explanation for why he relied on the dangerous 2˚C target in assessing Heathrow expansion.

Parliament declared a climate and environmental emergency on 1 May 2019. Last week the Treasury published a document which begins:

Climate change is an existential threat to humanity. Without global action to limit greenhouse gas emissions, the climate will change catastrophically with almost unimaginable consequences for societies across the world.” 

The public should know that Heathrow expansion, a £14billion project, has been given the green light only on the basis of a dangerous climate target. Since that information is not properly in the public domain, there has yet to be a fully informed, democractic debate about the implications of a third runway.

Why could I not wait for the judgement to be published to make that same point? Plan B is a tiny volunteer-based charity, whereas Heathrow Airport Limited is a company with annual revenues (pre-COVID) of around £3billion and an impressive PR Department. We have been trying to get this message into the public domain for some time and it hasn’t landed. With no easy way to challenge a Supreme Court ruling, this felt like the best and last chance.

Crosland: fears for children’s future

I am a not very interesting and not very successful 50 year-old lawyer and ex-civil servant, who fears for my children’s future. I don’t want or deserve to be the subject of public attention. It is the information that Grayling assessed Heathrow expansion against the dangerous 2˚C limit that deserves people’s attention.

I broke the court’s confidentiality and make no complaint about the consequences or reaction. People don’t like whistle-blowers – they breach one trust, even if they serve another. I felt I had no choice. Imagine having known the Grenfell Tower cladding was tested against the wrong standards, and not having raised the alarm as loudly as you could. 

For my correspondence on the matter with the Supreme Court, which indicates my concerns prior to making my statement, see here.

The post Barrister who breached Supreme Court embargo: “I felt I had no choice.” appeared first on BarristerBlogger.


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