The barrister who broke the embargo on the Supreme Court’s Heathrow ruling this week has revealed that he warned the court of his intention to speak out if it failed to correct what he saw as a fatal flaw in its draft judgment.
It refused his request to show the draft to another lawyer.
Tim Crosland, director of Plan B – a charity that supports strategic legal action against climate change and was one of the claimants in the case – said he expected to be disbarred as a result.
He tweeted the outcome on Tuesday evening ahead of the formal hand-down on Wednesday morning, describing it as an “act of civil disobedience”.
The Supreme Court has referred the non-practising barrister to the Attorney General for possible contempt proceedings as well as the Bar Standards Board.
Writing for the Independent, he said he was “resigned” to being disbarred, but said he did not act as he did because he disagreed with the Supreme Court’s judgment, which opens the way to Heathrow’s third runway.
“It is that, in my opinion, the court’s ruling is a cover-up, which conceals that Chris Grayling, the former transport minister, relied on a dangerous and discredited climate target in order to give Heathrow expansion the green light.”
The dispute centres on the Paris climate change agreement, which lowered the historic limit of 2C warming to 1.5C.
But he explained that Mr Grayling, then the transport secretary, assessed Heathrow’s expansion against 2C Paris limit, while saying publicly that a third runway would be consistent with the UK’s international obligations on climate change.
“People assumed he meant current obligations. It was only through the disclosure process in court that it came to light he had used the historic, dangerous 2C limit,” Mr Crosland said.
“Plan B’s case was simple. Grayling was wrong to use the dangerous 2C limit as his benchmark. He should have used the Paris limit instead. The Court of Appeal agreed with us. The government accepted the verdict and chose not to appeal.”
But Heathrow Airport Limited did and Mr Crosland said he received the draft judgment last Thursday.
“I read it in disbelief. The court had wiped from the record Grayling’s reliance on the 2C target (as if it hadn’t happened). It ruled Grayling had taken the Paris agreement into account, even though Grayling had admitted that he had not done so, and that he had used the 2C target.
“I wrote to the court to say the draft judgment, if uncorrected, would conceal from the public that vital fact that the third runway had been approved on the basis of a dangerous target. I would make a public statement if they failed to put that right. Otherwise I felt I would be complicit in the cover-up.”
Mr Crosland said he asked the Supreme Court for leave to talk to a lawyer to discuss the implications of the ruling during the embargo period.
“It refused. But it could not put it right. If it acknowledged that Grayling had relied on the wrong temperature limit, it would have to reverse the decision. It added two short references to 2C, ruling the issue was ‘irrelevant’.”
The barrister said the ruling was “not just devoid of merit; it is deadly. That is why I have risked prison by committing contempt of court”.
His actions have generally received opprobrium from practitioners commenting on social media.
Professor Richard Moorhead, a leading academic on professional ethics, suggested that an argument that his action had the larger purpose of protecting the planet would “count for nought” before the Bar Disciplinary Tribunal.
“This is so for a bunch of reasons, not least that an extra 15 minutes of fame for the cause are not going to save the planet either; but, more seriously, because the substance of legal disputes is not uncommonly more important than many professional conduct breaches. That does not stop their prosecution or punishment…
“His statement is an attempt to play for martyrdom by breaching sensible rules and for rather modest gain to his cause; the outcome for him will be similarly prosaic. A fine, or suspension perhaps, and he will change his Plan B webpage [which refers to him as a barrister] too, at a guess.”
Writing again after Mr Crosland’s article, he said threatening to go public as a way of persuading the Supreme Court to change its mind, “if that is what he did”, might be seen by a tribunal as an aggravating factor.
He added: “It makes no difference to his professional difficulties, I think, but in terms of the politics and publicity of it, it would have been a more powerful protest if he had said the Supreme Court’s judgment suggested they did not take the 2C point seriously.”
Well-known barrister blogger Matthew Scott wrote (before yesterday’s article): “If Mr Crosland… backs down, apologises and admits he was wrong then it may be possible for the tribunal before which he will eventually appear to take a lenient view.
“If he continues to grandstand and behave as though the ordinary rules of professional conduct do not apply to him because of the purity of his ideals, I very much hope it will ensure that he is never able to work as, or call himself, a barrister again.”
In response, Edward Levey QC tweeted: “This was a deliberate and pre-meditated act of contempt. I don’t see why an apology from him should make a difference.
“There are more important things at stake than his right to work as a barrister, such as the reputation of the profession and deterring others from similar acts.”