A few weeks ago there was a meeting on Climate change and the rule of law including a lecture by Professor Philippe Sands, in which he said that “the single most important thing [the Court] could do is to settle the scientific dispute” and that the courts could play a role in “scotching” challenges to the consensus. These remarks seem to have been unchallenged by the echo chamber that he was addressing, but provoked considerable discussion and questions elsewhere. There were two detailed responses by people with relevant legal credentials, first from Robin Guenier (discussion here) and then a paper by Lucas Bergkamp (discussed here); there were blog posts at Bishop Hill and WUWT, and several newspaper articles.

Curiously, Sands himself and Lord Carnwath, who set up the conference and introduced Sands, seemed to have no interest in discussing or debating the issue – Sands gave only a one-line response to Guenier, and comments were disabled on the youtube video of Sands’s talk. As Donna Laframboise noted in an article Supreme Court Justice Carnwath: Climate Activist, “That word debate. It means something rather different to climate activists than to normal people.”

So I was interested to see that last week’s BBC Radio 4 Programme Law in Action interviewed Lord Carnwath, since this appears to be the first actual debate on the issue.  Here’s a transcript:

BBC Radio 4, Law in Action, 3 Nov 2015

Joshua Rozenberg:  First though, a senior judge who found himself accused in the press of trying to close down the argument on whether man-made global warming was responsible for climate change. I should say immediately that Lord Carnwath, who’s a justice of the United Kingdom Supreme Court, said nothing of the sort – one of the newspapers concerned has now published a correction. But this does raise the question of how far judges can get involved in matters of scientific debate.

Earlier this year a district court in the Netherlands ruled that the Dutch Govenment was not doing enough to reduce greenhouse gas emissions. Ministers in The Hague accepted the need to limit temperature rises, but they said they were under no legal obligation to reduce emissions to a particular level. The case is now under appeal with the Dutch Government arguing that this is not a matter for the courts.

But might we see a similar case here, or is climate change policy purely a matter for the politicians? That was the first question I put to Lord Carnwath.

Lord Carnwath: As far as this country is concerned, in a way the issues have to a large extent been taken out of politics because we have a Climate Change Act, 2008, which is based on the premise that climate change is a real challenge and that the Government is committed to playing its part in doing something about it. So although cases are coming before the court I don’t think they’re likely to come in that very direct way that it came in the Dutch case.

JR: The Climate Change Act imposes a duty on the secretary of state to ensure that net emissions of greenhouse gases are 34% lower in 2020 than they were in 1990 and 90% lower by the time we get to 2050. Is that a duty that the courts might enforce?

LC: It’s already come up in a case that I had, which was about the plans of the last Labour Government for a third runway at Heathrow. They had undertaken that policy before they introduced the Climate Change Act 2008, and a complaint that was made by a coalition of authorities and action groups was that they hadn’t really revised their runway policy to accord with the Climate Change Act of 2008 and the court, via me, held that there was an inconsistency and the Government really needed to bring the two together, and they in fact undertook to do a new policy statement which took on board the Climate Change Act. So that shows how climate change issues come in sort of indirectly in litigation without actually raising the central issue of what is the reality of climate change, and what is the threat.

JR: Lord Carnwath recently introduced a lecture which was delivered in the Supreme Court by Professor Philippe Sands QC, the well known international lawyer. He argued that the International Court of Justice, the United Nations court, should “settle the scientific dispute” over whether global warming was man-made. Philippe Sands suggested that the Court could give an advisory opinion, confirming that states were now under an obligation in international law to reduce greenhouse gas emissions, in line with the UN target reduction of 2 degrees celsius.

Philippe Sands: “In our world, amidst the warming of the atmosphere, and the melting of the ice, and the rising of the seas, let us hope that international courts will not be silent. Thank you very much” (applause).

JR: I asked Lord Carnwath to pass judgement on Professor Sands.

LC:  Well I think he was putting that as a point for discussion. But you’ve got to remember that as far as I know in none of the cases that have come before the courts so far has anyone actually challenged the basic consensus, I mean the 2 degree target for emissions has been adopted by our Government, it’s been adopted by the parties to the framework convention as the basis for their negotiations in Paris, and as far as I know no-one has yet in a court made any real attempt to challenge it, so whether anyone would do in the International Court of course one would have to wait and see. And if they did, then the International Court would have to grapple with it.

JR: I can’t see that happening in myself. But I’m much more interested in the question of whether our own judges should be getting involved in issues that some people would regard as highly political. Nearly three years ago Lord Carnwath was appointed by the United Nations Environment Program to its International Advisory Council. He played a prominent part in a conference at Kings College London in September, which led to those media claims that the judges were trying to close down debate on man-made global warming. That was a complete misunderstanding, Lord Carnwath told me.

LC: The task of the judges is to decide the cases that come in front of us, but the point of the conference was to highlight the fact that we are already faced with cases which raise difficult issues in relation to climate change, and it’s going to happen increasingly in the future. And secondly to look at the framework of the Paris convention which is intended to produce an agreement having legal force and try and see what that might mean in practice, so I think that’s entirely within the proper remit of judges and I don’t make any apology for doing it.

JR: I don’t think you’ve expressed your own views on the science, but do you think your association with this subject means that if a case involving environmental law were to come before the Supreme Court, a party might ask you to recuse yourself, to stand down and not sit?

LC:
I find it very difficult to see why that would happen, I mean I’ve been associated with all sorts of things in connection with planning, the environment, judicial review, human rights and so on, and I’ve given lectures on these subjects, and no-one has ever suggested that that recuses me, obviously one has to be careful about how one approaches these subjects but I’ve certainly not had any problem yet and I don’t at the moment anticipate a problem in the future.

JR:  Lord Carnwath of the Supreme Court.

So what have we learnt?

Firstly, it is encouraging that a BBC interviewer does seem to be concerned by the idea of judges meddling with politics related to scientific issues.  I was amused by the bit where Joshua Rozenberg asks Lord Carnwath to ‘pass judgement’ on Sands – I wonder if this was intentionally ironic. Similarly I detect a touch of sarcasm in his voice when he says that Carnwath told him it was a complete misunderstanding to think that Sands was trying to close down the debate.

Secondly, Carnwath ducks the question about Sands, changing the subject after merely saying that it was intended as a point for discussion. This does not appear to be true, since neither Carnwath nor Sands show any interest in discussing it, and Sands’s remarks about settling the scientific dispute were presented in a dogmatic authoritarian way, not floated as a point for discussion.

Thirdly, Carnwath has intervened directly in politics previously, in the case of the Labour Government policy on Heathrow, and thinks that this kind of thing is fine and makes no apology for it.