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15 May 2023

How can solicitors confront the climate crisis?

5 mins
The Climate Change Act 2008 commits the UK Government to net zero greenhouse gas (GHG) emissions by 2050. However, in delivering the Climate Change Committee’s ‘Progress in Adapting to Climate Change’ report to Parliament in March 2023, Baroness Brown, chair of the Adaptation Committee said:

[t]his has been a lost decade in preparing for and adapting to the known risks that we face from climate change. Each month that passes without action locks in more damaging impacts and threatens the delivery of other key Government objectives, including Net Zero.

It is trite to say that no one can afford to be complacent or passive in such circumstances. But what specifically should the response of solicitors be?

Guidance from The Law Society

Interestingly, this question has been confronted head-on by the solicitors’ professional body, The Law Society. On 19 April 2023, it published guidance for solicitors (Guidance) on, amongst other things, the interplay of legal advice, the climate emergency and solicitors’ professional duties.

The Law Society recommends that all solicitors develop competence in climate-related legal issues because the crisis is such a pervasive consideration when providing advice and acting in disputes. It points out:

Parallels may be drawn with tax or competition law, which may not be central to a specific retainer but are still of relevance and should be in a practitioner’s mind when considering the scope of instructions.

This makes good sense. For example, any solicitor handling company and commercial matters will need to have more than a working knowledge of the interface between company duties and climate issues, as predicted by Lord Sales back in 2019.

The Guidance takes this a step or two further, however. Law firms and other legal organisations can consult the Guidance for assistance to frame their organisational position and response to the climate emergency. The expectation is that this should not be limited to the firm’s own environmental practices.

In particular, the Guidance identifies the most significant GHG emissions likely to be associated with solicitors is associated with matters on which they advise, sometimes called ‘scope 4’ or ‘advised emissions’. Firms should therefore consider ‘whether it is consistent to accept instruction and advise on certain matters that the firm decides are incompatible with its climate change commitments’. Solicitors are not obliged to act for all prospective clients and the Guidance confirms that concerns about contributing to advised emissions ‘may be valid considerations in determining whether to act’. If declining to act, reasons should be provided in writing to the prospective client. Such reasons should always be accurate, of course, which may be sobering for some would-be clients. 

Protected environmental beliefs

Ethical considerations may also arise for individual solicitors whose firms are acting, or may want to act, in cases which generate advised emissions. Individual solicitors’ positions may not always align with those of their employing firms. This issue has been brought sharply into focus by some being explicit and vocal about their intention to ‘withhold their services’ in respect of supporting new fossil fuel projects and action against climate protesters exercising their democratic right of peaceful protest.

On this, the Guidance has rather less to say, but the issues have already been confronted by the Courts, albeit not in the context of law firms.

Under the Equality Act 2010 employers cannot unlawfully discriminate against a worker because of the worker’s philosophical belief, if that belief is protected. The key case which set out the guidance on whether a belief is protected was Grainger Plc v Nicholson, in which Bindmans LLP represented the worker, Mr Nicholson. He had asserted the philosophical belief that ‘mankind is heading towards climate catastrophe and that we are all under a moral obligation to live our lives in a manner that mitigates or avoids this catastrophe for the benefit of future generations’. This philosophical belief also required Mr Nicholson to persuade others that they also had this moral obligation.

The Employment Appeal Tribunal held that this belief was protected, therefore finding it was prohibited for an employer to unlawfully discriminate against a worker for holding it.

Workers who raise concerns about the impact of their employer’s practices on the environment may also benefit from whistleblowing protection.

For more information on discrimination in the workplace and protected disclosure detriment, see our blog on The Climate Crisis and Voicing Concerns in the Workplace.

What next?

Whilst it cannot address every issue solicitors face as a result of the climate crisis, the Guidance is a focused and timely reminder that we all have a role to play in confronting it and that will be an important element of many solicitors’ jobs in the months and years ahead. It remains to be seen how many solicitors and firms will take the difficult decision to withhold services which, if provided, could contribute to the climate crisis.

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