They’re all at it. Last month I inveighed against my local building society’s campaign for its customers to supply their account details to a third party so that they can view and reduce the carbon footprint of their spending. This month, it’s the Law Society telling me how in-house lawyers “can fight the climate crisis”.
There was a time when the Law Society saw its role as promoting and regulating the interests of solicitors. The regulatory role was taken away from them some time ago and given to the Solicitors’ Regulation Authority, so solicitors might have hoped that the Law Society would make a bit more of an effort to look after its members. But no, it seems its role these days is to hector and promote the cause du jour. We are told:
In-house lawyers are key to shaping green initiatives within their organisations. To mark the approach of Pro Bono Week 2022 and COP27, Lawyers for Net Zero and the Chancery Lane Project share practical ways in-house legal teams can effect positive change against the climate crisis.
I spent most of my career as an in-house solicitor, and I (and, I’m sure, my employers) would have regarded it as profoundly wrong for me and my colleagues to agitate for our companies to adopt any political objective. Our job (and our professional obligation) was to act in the best interests of our client/employer (and its shareholders), whilst upholding professional standards, and complying with the rules and regulations set down by our professional body.
Now in-house lawyers and their teams are urged “…to help ensure their organisation’s good intentions are turned into meaningful and rapid climate change action.” In-house lawyers, we are told, “…have a rare, holistic view of the company and access to a wide network of senior leaders. This gives them the ideal platform to have real influence within their organisation.” Furthermore:
Assessing risk is an essential part of an in-house lawyers’ role. The climate crisis is the biggest risk that businesses – and society – have ever faced, and in-house lawyers are perfectly placed to highlight the risks and opportunities that net zero presents.
At this stage, I have read only the opening four paragraphs of an article titled “Practical ways in-house lawyers can fight the climate crisis”, and I have already spotted my professional body asserting as fact a number of political opinions. First is the assumption that we are suffering from a “climate crisis”. Second is the assumption that in-house lawyers (inevitably just those in England and Wales, at that, since they are the ones “represented” by the Law Society of England & Wales) can effect positive change against the alleged crisis. Thirdly, we are told that the “climate crisis” is the biggest risk that society and businesses have ever faced. I assume that two world wars, the Black Death and much else were just minor inconveniences. It is assumed that “green initiatives” and addressing the “climate crisis” are one and the same thing (some of us are deeply concerned that policies driven by advocates of climate change action are the antithesis of “green”). Finally, we are told – and it is implicit that this is a good and necessary thing – that in-house lawyers can help ensure that their employers take “meaningful and rapid climate change action”.
Lawyers for Net Zero
Next we are introduced, with great enthusiasm, to Lawyers for Net Zero. A cynic might think that they drafted the Law Society article, given that their website says things like:
The inspiration behind Lawyers for Net Zero was the recognition that there is a massive, but largely unrecognised, opportunity for in-house lawyers to be a critical interface, who can support their organisation to deliver significant and rapid climate action.
Their website introduces us to the Campaign for Greener Arbitrations (“Driving sustainable change in arbitration”); Legal Sustainability Alliance (“Time is running out to solve the Climate Crisis”); the Global Alliance of Impact Lawyers (“Connect, Learn, Lead”); ClientEarth (“We use the power of the law to protect all life on Earth, combining thousands of individual voices into one powerful force for change”); and Net Zero Lawyers Alliance (“Mobilising commercial law firms and lawyers to accelerate the transition to net zero”).
They also link with another organisation who are pushed at us by the Law Society article:
The Chancery Lane Project
Its website offers up for use 120 model clauses, 54 glossary entries and 8 tools. They are sponsored and supported by Climateworks Foundation; Laudes Foundation; Quadrature Climate Foundation; Generation Foundation; and the Centre For Innovation In Voluntary Action.
I can’t be bothered to analyse all their websites, and will leave it to you to if you are so motivated. For now, it’s enough that we begin to gain an insight into just how many of these organisations exist and how deeply interlinked (and influential) they all are.
Returning to the Chancery Lane Project, the Law Society is keen to push its “green” lease clauses at us. In principle I could fairly readily be on board with this:
To achieve a property’s green potential – and to enjoy the associated benefits of lower running costs, a more comfortable working or living environment and a more marketable asset – parties to a lease should include green obligations, to ensure that their building is used sustainably.
However, as so often, the devil is in the detail. After a quick look at some of the clauses I am not so enthusiastic after all. First, there is Aatmay’s Clause (“Sustainable and Circular Economy Principles in Leasing Arrangements for Repairs and Alterations”). It sounds reasonable enough, put like that, but a reading of the clause gives pause for thought. Before you even get into the meat of it, its recitals require both landlord and tenant to have signed up to the Race To Zero ; to have a common intention to “achieve their respective organisational net zero targets”; to “align with the objectives of the Paris Agreement (in particular pursuing efforts to limit global temperature increase to 1.5 degrees Celsius above pre-industrial levels and achieving net zero or net negative emissions by 2050 or sooner)”; and to do so in a manner that promotes “a just transition to a low carbon economy and results in at least a 7% reduction of greenhouse gas emissions year on year.”
Having been retired for some time, perhaps I am hopelessly out of touch. However, I regard a clause like that (and that’s before even looking at the operative parts of the clause) as massively onerous on both parties, and could render both the freehold and leasehold interests less valuable and less marketable. (But note the spin encouraging use of the clause, claiming that it will help to create a “more marketable asset”!). I won’t delve into the details of the clause as it’s lengthy and technical, but if you’re interested, the embedded link above will allow you to take a look. Suffice it to say that the defined terms include “Adverse Climate Effect”; “Efficiency Objective”; “Efficiency Standard”; “Embedded Carbon”; “GHG Emissions”; “Greenhouse Gases”; “Net Zero Target”; “Offset” and much more. You get the idea.
Next there’s Hannah’s Clause. This “allows owners to include the costs of improving the environmental performance of leased buildings in the service charge costs (where such works are not otherwise required by statute)”. Service charges are often a major bone of contention between landlords and tenants, with tenants regularly complaining that they are too open-ended and allow landlords to impose costs on them in an uncontrolled way. Quite why anyone, least of all the Law Society or solicitors acting for a tenant, would think it’s a good idea to add to the costs the landlord can load on to a tenant via the service charge is beyond me. In answer to the question “why use this?”, the answer offered up is:
Hannah’s Clause helps landlords to: (i) address investor concerns about climate risk and compliance with environmental legislation (e.g. Energy Efficiency Regulations); (ii) respond to tenant demand for efficient, healthy and green buildings; (iii) enjoy increased profitability through higher property values and return on investment; (iv) pass cost savings to tenants; and (v) incentivise tenants to use the property efficiently.
However, you need look no further than some of the terms contained in the additional definitions accompanying the clause to see how this could come back to bite an unwary tenant – “Adverse Climate Effect”; “Carbon Dioxide Equivalent”; “Embedded Carbon”; “Environmental Performance”; “Finite Power Source” (“means a power source which is reliant on Hydrocarbons”); “Green Infrastructure”; “Greenhouse Gases (GHGs)”; “GHG Emissions”; “Hydrocarbons” (“means a class of organic chemical compounds predominantly consisting of hydrogen and carbon and which includes fossil fuels such as coal, crude oil and natural gas”); “Renewable Energy Sources” (“means naturally replenishing non-fossil sources of energy, including but not limited to hydropower and tidal power, hydrothermal power, aerothermal power and geothermal power, wind and solar”). [Drafting note: Consider specifically excluding nuclear and regenerative biomasses (wood, municipal waste, biomass and landfill gas, ethanol, biodiesel) so as to limit to truly naturally replenishing sources and avoid sources generated by incineration which has significant GHG output and contributes to other forms of small particulate air pollution.]; “Sustainable Procurement”; and “Waste Management Plan”.
I’m sure you get the picture. Again, that’s just the definitions – the clause itself is too long and technical for the scope of this article. A single clause that is almost as long as some old leases, and which imposes considerable costs on the tenant at the say so of the landlord, isn’t necessarily a good thing to encourage your tenant client to sign up to. Yet the spin put on it (above) talks about responding to tenant demand, passing cost savings to tenants, and “incentivising” tenants to use the property efficiently. Yeah, right. It sounds like the sort of “incentive” – hitting them in the pocket – that will see people in their millions turning the central heating down – or off altogether – this winter.
Next is Lotta’s Clause. We are told:
The clause raises renewable energy at the outset of commercial relations and in lease negotiations between landlord and tenant. As an operative provision of a lease, Lotta’s Clause delivers real impact by reducing the carbon footprint of the parties and the adverse environmental impact of leased buildings in landlord portfolios.
Well, a lot depends on whether it really is possible for a building, at this moment in time to be serviced entirely by “renewable” energy. Of course, it can’t. The electricity coming out of a plug in one of these buildings is the same as the electricity coming out of the plugs in my house And so one of the new definitions we see as part of this clause is one for a “REGO Certificate”, being a certificate of “Renewable Energy Guarantees of Origin”.
There’s more, but I’ll stop there, to prevent eyes glazing over any more than necessary.
I’m sure that the lawyers involved in these organisations, and the people at the Law Society, are acting with the best of intentions. They presumably sincerely believe all this stuff. However, it seems to me that some of the justifications for urging this behaviour on in-house lawyers involves massive spin and in some cases turning reality on its head. I am absolutely convinced that leases containing these clauses will be less valuable and less marketable than those without them. Of course, it could be that the point will arrive when legislation ramming net zero down our throats means that the opposite will be the case. However, that will be down to politics, and I firmly believe that it is not the Law Society’s place to be urging this behaviour on its members.
The other point to note is how it is now taken as read, without even so much as a modicum of intellectual curiosity regarding the allegation, that the “climate crisis is the biggest risk that businesses – and society – have ever faced”. The Law Society states it as fact. Its members are supposed to accept it without question. This view is deeply embedded in the establishment. It is going to take some shifting. Possibly only a Brexit-style revolt by the long-suffering public fed up of the negative impact on their lives of net zero will achieve a reappraisal. And even then, as with Brexit, the establishment won’t readily accept defeat. As I have mentioned before, in the western world generally, and in the UK in particular, we are subject to net zero democracy.
5,000 on a sunken cruise ship would be a start.
Mark, reading your post causes me to experience the ground moving beneath my feet. Even though this advice does not apparently affect me directly, I wonder just how much of my world is changing as a result of Net Zero machinations and probably not to my benefit.
Thanks for the observation. I worried (possibly rightly!) that the article was overly technical, banging on as I did about “green” lease clauses. However, the crucial point is really that climate alarmism is now not just deeply embedded in all areas of the establishment (though it is) but rather that it goes beyond that. The establishment is determined to campaign to embed its “green” values in society, and is doing so both directly and indirectly, basically in any and every way that it can. The fact that the Law Society can quite openly state as a fact that “the climate crisis” is the greatest crisis ever, can assume that all its members and readers of its magazine will be 100% on board with that, and can urge membership of campaigning organisations, and use of documentation that embeds its quasi-religious beliefs in the legal documents innocently used by solicitors’ clients, is to my mind extremely worrying. And if it’s going on in the Law Society, I think we can safely assume that there will be similar movements and beliefs in all other professions and occupations – medical, architects, teachers, university lecturers, etc, etc. There are zealots within these occupations and professions, but the key issue now is that the zealots are embedded in the professional bodies, who can (and do) use their position to influence the behaviour of others.
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wonder how this madness started _https://www.legislation.gov.uk/ukpga/2008/27/part/1
“Changes to legislation:Climate Change Act 2008, Section 1 is up to date with all changes known to be in force on or before 24 October 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation
View outstanding changesstatus warnings
1The target for 2050
(1)It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least [F1100%] lower than the 1990 baseline.
(2)“The 1990 baseline” means the aggregate amount of—
(a)net UK emissions of carbon dioxide for that year, and
(b)net UK emissions of each of the other targeted greenhouse gases for the year that is the base year for that gas.”
can’t be bothered to read further – what a “gas”
I did mention that if the Law Society is doing this sort of thing, then RIBA (for architects) was likely to be doing it too…
“Take your practice to net zero with the RIBA 2030 Climate Challenge
The RIBA has published an updated version of its 2030 Climate Challenge, alongside a ‘Client Guide’ and tips on ‘How to talk to Clients’”
I’m sure you’re right. But I’m sure those who burned witches in the 17th century acted with the best of intentions too. They didn’t just do it on a whim. There was a complex theory, backed up by peer reviewed theological texts, to support them. And the King was a big supporter too, and had even written an influential text on the subject.
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The Law Society is at it again. Today’s email, with its “professional update”, includes this:
“Creating a climate-conscious approach to legal practice”
There’s more (much more):
Greatest perceivable threat? With the situation in Korea kicking off; the Russia-Ukraine conflict threatening to degenerate, including Putin’s muttering about nuclear weapons; a worldwide energy crisis; a cost of living crisis; a two-year recession predicted by the Bank of England, to name just a few ongoing issues. In my day lawyers were taught to weight up the evidence and to think for themselves. No more, it seems.
What about that “climate change resolution”? Here it is:
Wow. I’m ever more glad that I’m retired.
It seems that it’s not just lawyers:
“Why is the Architects Registration Board Insisting on Fealty to Climate Change Orthodoxy as a Condition of Qualifying as an Architect?”
Some more lawyerly planet-saving in my email inbox today.
First, in the form of a “professional update” from the Solicitors’ Regulation Authority:
“What are the benefits of smart meters for solicitors?”
I find it more than a little worrying that my professional regulator doesn’t have a problem in writing this sort of stuff.
Secondly, from the Oxford Law Faculty:
“Rising to sustainability challenges: building the Oxford Sustainable Law Programme”
And quite a lot more in similar vein, including this:
The Law Society is still at it. This week’s edition of the Law Society Gazette features on its front page a mock-up of a polar bear on what looks like an ice cube, with the headline “Melting Point”, and beneath it the words “What can lawyers do to help prevent climate catastrophe?”.
Their timing is a little unfortunate – a “melting point” headline while Britain freezes. From page 20 onwards there is a 4 page article which concludes with the words “The Law Society will publish professional conduct guidance on matters related to climate change in early 2023”.
Think of that for a moment. I wait with a mixture of trepidation and disbelief to discover whether the Law Society will seek to impose a professional obligation on solicitors to “deal with” climate change!
It’s relentless. This week’s email from the Law Society includes a section called “Take action against climate change”. Click the link and it takes you here:
Thanks to another email today from the Law Society, I have just realised that an entire section of the Law Society website is devoted to climate change:
You can tell that I haven’t been paying sufficient attention, due to the fact that I am (thankfully) retired from legal practice.
It is sub-headed “Guidance and resources on sustainability, legal risks, legal updates and political developments, as you prepare for the impact of climate change on your daily practice” and includes things like a film complete with dramatic music, because “In 2021, we asked experts to predict what life will be like in 2050. The remarkable findings were published in a report called Future Worlds 2050. This film, the first in a series, focuses on the climate crisis.”
It wouldn’t look out of place at the Guardian. However, the link in today’s email was to this:
“Green leases and Minimum Energy Efficiency Standards”
In fairness to the Law Society, solicitors do need to know about ongoing developments so as to be able to advise their clients. The ongoing (and eve-increasing) requirements scare me, as does the Law Society’s quasi-religious zeal for pushing the climate change narrative way beyond what is necessary to enable solicitors to keep up with the red tape spewing out of Parliament:
I don’t doubt that last point for one moment. There’s more:
Last week I received emails from both the Law Society and the Law Society Gazette about yet more climate change advice for solicitors. However, as I was hill-walking in Scotland at the time, I deferred looking at them until now.
The Law Society Gazette first:
The link, if it works, takes you to pp 6-7. The relevant article is on page 7. It’s not in a format that allows me to cut and paste, but I urge you to read it, as it’s short and – I think – shocking. Here’s the link to the Law Society’s guidance:
Interestingly (to me at least) this doesn’t seem to be actively endorsed by the regulator:
It is far too long (though non-technical and very readable) to cut & paste at length, so again I simply urge you to read it – and then despair.
see “Guterres” gets his usual quotes included.
Another week, another article in the Law Society Gazette. The following link should work, I hop – check out page 30:
I discover that the Law Society has a Climate Change Working Group. Why?