Sunak's careless gauntlet: will the lawyers pick it up?
Rishi Sunak thought he was laying a trap for Labour with his announcement of 100 new licences to drill for North Sea oil and gas. The impacts ripple far wider, including challenging every law firm which claims to being a sustainable and responsible business. Can they credibly uphold such claims and advise clients bidding for these licences and those that finance them?
Such firms may argue that as the government are offering these licences their clients are entitled to bid for them and that they have a right to legal representation. They may add that the firms themselves should not be criticised for acting for them due to the right of a lawyer not to be associated with their clients’ actions.
At the same time, they know the International Energy Agency made clear that, consistent with the Paris Agreement aspiration to limit global temperature increases to 1.5°C, there is no capacity in the global carbon budget for any new oil and gas development. They also know that both the conservative, scientific consensus of the IPCC and the evidence of everyday experience across the globe reinforce the need for collective endeavour to meet that aspiration.
Solicitors have a professional duty to act with integrity. I have never heard a law firm challenge the statements of either the IEA or the IPCC publicly. Nor have I heard any explain how they square their claims of being sustainable, responsible, purposeful and the like with knowingly assisting clients in endeavours which are not only inconsistent with the Paris goal, but which will contribute to foreseeable devastating harm for vast numbers of innocent people.
The Law Society recently published guidance for solicitors on climate change. This included references to advised emissions, which are the emissions associated with the advice you provide to clients. The guidance does not require law firms to take this into account, but it does acknowledge that this is an issue which is likely to become more relevant for clients and their legal advisors so firms may be wise to start thinking about how to approach this.
I recognise that transitioning your business to a fundamentally different approach does not happen overnight and I know there are individuals within many law firms who genuinely want to see and be a part of that transition. I believe the firms engaging with initiatives like Legal Charter 1.5 do so with genuine intent on the part of those actively involved. For the most part though, those who wish to engage seem to be outgunned by those determined to disregard the future impacts that will flow from their advice when there is money to be made now. Far worse, there are others who evidently cannot be bothered to engage at all.
There is some degree of subjectivity to the concept of integrity and, for now, I am not aware of the Solicitors Regulatory Authority widening the interpretation to take account specifically of contribution to planetary destruction and harm to fellow humans, but I do wonder for how long that will be so and, at the same time, individual solicitors and the firms they are a part of will be able to look themselves, each other, and their loved ones in the eyes and say, “I know my work will contribute to that destruction and harm but I will do it anyway”.
I would also be surprised if many feel able, with integrity, to cite the arguments about right to representation and not being associated with their clients’ actions knowing these legal principles exist to underpin the administration of justice where it is threatened in extreme cases, not to protect the rich and powerful from exploiting that wealth and power to the further detriment of those less fortunate.
I cannot think of other circumstances where a typical group of lawyers faced with a risk analysis identifying the highest probability of occurrence with the highest seriousness of impact (albeit not, for them, immediately) would be willing to act as if confronted by something with low likelihood of occurring and low impact without regarding it as an example of professional negligence. What justifies such misplaced insouciance here?
Maybe law firms could adopt a (voluntary, unless adoption was less than widespread) comply and explain approach: do not advise on clearly harmful matters until the risks of climate heating and biodiversity loss are recognised to be in hand, or explain why you think it is appropriate to do so. Then clients, prospective employees and the wider public have something upon which to form their own opinions of each firm’s integrity.
Simon Sharpe recently blogged about the importance of recognising and exercising our leverage. Now is the time for any lawyer – or other professional services provider – and their clients all to exercise theirs. They can start by not taking part in what is, after all, a cheap political stunt, devoid of integrity, with the potential to incur a horrific cost if no-one is bold enough to draw a line.