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.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

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

  1. Oh Purleeeze!

    Regardless of whether CO2 is a pollutant, causes harm, will cause Global Warming, Man-Made or not, needs to be, or even can be, reduced (how many irreversible climate tipping points, never mind threatened coastal inundations, have we passed since this nonsense started?!), and if it can be: should it be, or is there a better way (see that other environmentalist and, yes, Man-Made Global-Warming BELIEVER Bjorn Lomborg) to address the “problem”:

    Comparable airports to Gatwick have three or four runways, not one.

    Equivalent airports to Heathrow have five or SIX runways, not TWO!

    We shouldn’t be arguing about whether Heathrow should have a third or Gatwick should have a second runway or none.

    We should be arguing why isn’t Gatwick getting its fourth AND Heathrow its SIXTH!

    Currently planes have to arrive early and stack over London burning fuel to ensure they don’t miss a very narrow landing slot, then if they do, or their slot is put back, or they run low on fuel, they have to divert to another airport.

    Which means they have to carry lots of spare fuel.

    Which means they are much heavier.

    Which means they have to carry even more spare fuel.

    Which means they are heavier still.

    Which means they have to carry and burn even more Carbon fuel and release even more CO2!

    But if they are able to land on time or even early they have to dump all that spare fuel for a safe landing.

    Into the atmosphere.

    Over the Earth.

    That’s the thing with arty-farty “liberal” idealists:

    No idea how the real world works in practice never mind unintended consequences.

    Which is why EXACTLY the same heads of EXACTLY the same woolly-minded bleedin-heart do-gooder “liberal” NGOs sign letters calling for eg switching to Diesel or bio-fuels:

    Then sign ones condemning them because they are killing ickle baybees.

    It’s high time they finally realised how extracting, refining, processing, and manufacturing the raw materials needed to make their windmills and solar panels never mind their mobiles and tablets appear efficient is destroying the environment in Africa and Asia and killing millions of ickle baybees!

    That’s the kind of thing they should be protesting if they really cared.

    But they don’t even care enough to stop and think.

    Because it’s all a me, me, me Virtue-Signalling exercise in dogmatic one-upmanship.

    And any heretic who questions their faith is a FascistNaziLiterallyHITLER spawn of the Devil!

  2. This was not a Grenfell Tower type case by any stretch of the imagination. The full judgment was about to be released subject to corrections etc by Counsel. Also, this chap should know that a judicial review is not a review of the merits, but whether the reasoning of the SoS was ‘reasonable’ in the Wednesbury sense. Yet, he launches into the merits !

  3. With greater respect to Mr Crosland than he showed to the SC, his self-serving argument is entirely premised on the obviously false notion that releasing the judgment early would have any helpful impact on the climate crisis or save lives (contrary to the offensive Grenfell comparison). The utilitarian trump card of invoking a deadly crisis to excuse all otherwise unethical behaviour only operates if one could reasonably believe that one’s otherwise unethical actions would contribute to ameliorating said deadly crisis. In Mr Crosland’s case, anyone who wasn’t a self-absorbed publicity seeker could clearly see that the only effect leaking the judgment would have would be to transform the story about the Heathrow judgment’s substance into one about the flagrant contempt for the Court shown by Mr Crosland. His actions, as even the most rudimentary observer of British media could have predicted, served only to make the story about Mr Crosland.

    Even more disturbingly, Mr Crosland’s actions show contempt for the most fundamental aspects of the Bar’s place in a democratic society. The purpose of a barrister is to advocate for the interest of her lay client *within the framework of the court system and the rule of law*. This necessarily requires a degree of detachment and fidelity to the institution of the courts. Conversely, it precludes throwing a tantrum because one ‘side’ lost; a barrister must be able to accept with equanimity ‘her’ side loses, because (and this is why the cab rank rule is the great core of professional ethics), the barrister is attached as much to the court as to a client. If Mr Crosland felt that he was too personally attached to this issue to maintain the dignity, integrity and independence of the Bar (the three qualities which Thomas Erskine claimed were essential to the Constitution), then he ought not to have had any involvement with the legal side of this case.

    While it is ultimately for the independent process in the courts to make a determination, it seems from Mr Crosland’s own words and admissions that he has deliberately shown quite literal contempt for both the courts and the rule of law.

  4. He doesn’t tell us how this democratic debate is going to be conducted; but I fear that he will not accept a decision in favour of the third runway.

  5. I’m just going to correct your analogy, from:

    “Imagine it is 2016 and you are in possession of a confidential report implying the cladding on Grenfell Tower meets appropriate fire-safety standards.”

    to:

    “Imagine it is 2016 and you are in possession of a confidential report implying the cladding on Grenfell Tower meets appropriate fire-safety standards, THAT WILL BE PUBLISHED TOMORROW.”

    Suddenly it doesn’t seem like the actions of an honourable whistleblower.

    You were entrusted with that information in your professional capacity for a specific purpose. You breached that trust for no real benefit other than your own attempt at a PR coup. Don’t try to dress it up as something it isn’t.

    Credit to Matthew for giving you the space to reply…

  6. Well, give marks for honesty.

    The reason “Why could I not wait for the judgement to be published….” is cheap publicity for the cause.

  7. Hi all. I’ve got the point you think I’m an arse for breaking the embargo. As you say, the judgment was coming out the next day anyway. May I be so bold as to ask a different question. Is anyone concerned that Grayling and the Supreme Court have given the green light to the £14billion Heathrow expansion project on the basis of a discredited, dangerous climate target? Or is that not an issue?

    1. Mr Crosland: don’t you see this is precisely my point? Your actions have hijacked (wordplay intended) this discussion and steered it away from environmental issues. You have, by your deliberate actions, reduced the number of people in the UK discussing the environmental effects of Heathrow expansion , and increased the number of people in the UK discussing you.

      1. I see your point, Mr Granet, but it seems you don’t see mine. The issue here is not “environmental issues” generally. Plan B’s case was based on the following specific propositions, which were supported by the documentary record: i) Grayling used the wrong climate target (2˚C) to green-light Heathrow expansion; ii) he concealed that from the public; iii) had he used the right climate target (the Paris temperature limit) he could not have given it the green-light. Our complaint against the Supreme Court is not that they disagreed with us. Our complaint is that the Supreme Court makes no mention of our case in its judgement. They have simply drawn a veil over Grayling’s error so that it remains invisible to the public. The morality / immorality of my action depends on the truth of these assertions. If what I say is untrue, then as well as committing a contempt of court, I am a liar and have defamed the court. Not only should I be struck off, I should go to prison for a substantial time. If, however, what I say is correct: ie that Grayling assessed Heathrow expansion against a dangerous climate target and concealed that from the public, an error perpetuated by the Supreme Court’s judgment, then it was necessary for me to speak out, because the consequences of exceeding the Paris Temperature Limit are, according to the best available science, exceptionally grave and the public has a right to know the true risks of Heathrow expansion. If the situation is properly understood there little middle ground here. It’s either “not-guilty” or prison. The disciplinary and criminal processes that await me will provide opportunities to determine whether or not my assertions are supported by the evidence. I’m not an interesting subject for people’s attention. I’m confident the attention will shift to far more important matters.

    2. Hi Tim Crosland.

      May I be so bold as to ask a different question.

      Is anyone concerned at your organisation that you have given the green light to the pollution of our planet (as discussed in my original comment) on the basis of a discredited, dangerous climate argument?

      Or is that not an issue?

  8. The comparison with a court dealing with an issue of fire safety is ill-chosen. No one is arguing against fire safety, whereas there are arguments that another runway at LHR would reduce pollution. Anyone who has regularly used LHR would know of the time that an aircraft can spend waiting for the runway and so wasting tonnes of fuel, whether on the ground or in a stacking pattern in the air.

    One way to reduce pollution from aircraft is to reduce domestic flights – but that requires a high-speed electric rail network. But my local Green Party councillor can often be found up a tree in Buckinghamshire trying to stop HS2!

    A whistle-blower may seek publicity; but not all publicity-seekers are whistle-blowers, by any stretch of the imagination.

    Jolly decent of Matthew to allow him a reply and Happy Xmas all.

  9. Breaking confidentiality is a serious matter. However it has achieved the objective of raising a vital issue to those like me who would not otherwise have delved into it. I am a district councillor in Uttlesford and we are about to contest an appeal against refusal of expansion at Stansted.

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