Thu 10/12/2020 11:37

Dear [name redacted]
Thank you. The draft judgement has inherited a factual error from HAL’s case, which is that the SST assessed the ANPS against:
(i) the Climate Change Act 2008 and
(ii) the Planning Assumption.
That is not correct. The correct position (as agreed by all parties) is that the SST assessed the ANPS against:
(i) the Planning Assumption, and
(ii) the historic global temperature limit of 2˚C.
Since the error is fundamental to the case and infects the judgement as a whole, I am copying in all parties. The attached Word document [see also bottom of the page for the content of this document] explains the position in more detail.
Best wishes,
Tim

Thu 10/12/2020 12:20

Dear Mr Crosland

Thank you for your email of 10 December 2020 @ 11:37, the contents of which have been noted and forwarded to the Justices for consideration.

Best wishes

 

Fri 11/12/2020 11:15

Dear [name redacted]
I’m writing to request permission from the Court to discuss the draft judgement with external lawyers.
We need legal advice on what we can and cannot say following the judgement (depending on its final form).
There are some undisputed issues:
  1. In June 2018, the SST assessed the ANPS against the historic global temperature limit of 2˚C
  2. By June 2018 that temperature limited was known to pose intolerable risks to humanity and had been rejected by the UK Government and the wider international community (including the governments of China, Saudi Arabia, Iran etc, etc ).
  3. The Government’s consultation documents did not reveal that the ANPS had been assessed against this dangerous limit (they referred only to the UK “international obligations”).
  4. This fact that Chris Grayling had assessed the ANPS against the discredited limit only came to light through the disclosure process in this litigation.
  5. It is a matter of public concern and interest that the ANPS was assessed against a benchmark by then known to be dangerous.

The current draft judgement omits any reference to this critical matter. We are confident that this will be corrected in the final judgement but need to prepare for all eventualities, including the possibility that the final judgement excludes from the history the fact that the ANPS was assessed against a threshold known to be dangerous.

Please let me know as soon as possible whether I have permission to discuss the potential implications with external lawyers.
Best wishes,
Tim

Fri 11/12/2020 11:22

Dear Mr Crosland

Thank you for your email of 11 December 2020 @ 11:15, the contents of which have been referred to Lord Hodge.

Please await Lord Hodge’s response prior to circulating the draft judgment to the external lawyers.

Meanwhile can you provide me with names of the external lawyers, including the position they hold within the organisation, that you intend to release the final draft judgment to.

I will email you as soon as I have heard from Lord Hodge.

Kind regards

 

Fri 11/12/2020 11:28

Dear [name redacted]
Of course.
My first port of call, subject to his availability, would be [name redacted]. I have not yet contacted him about the matter to avoid “tipping him off”. If he turned out not to be available I would think of someone else (and would check the name with you first).
Best,
Tim

Fri 11/12/2020 12:24

Dear Mr Crosland

Please note that the Court does not give permission for the embargo to be extended to include external lawyers and therefore in this instance the draft judgment cannot be released to the external lawyers.

Kind regards

 

Fri 11/12/2020 13:29

Thank you, [name redacted].
In the unlikely event that the final judgement excludes reference to the fact the Secretary of State assessed the ANPS against a global target that was known to be inadequate and dangerous, we will need to make a public statement to highlight that matter, and will have to trust that speaking openly in the public interest does not also constitute contempt of court.
Best wishes,
Tim

Sun 13/12/2020 15:02

Dear [name redacted]
We note HAL’s position that no correction to the judgment is required.
We are preparing for the possibility that the court’s final judgement excludes reference to Mr Grayling’s reliance on the discredited and dangerous 2˚C global limit in designating the ANPS.
I have prepared a statement to be issued publicly (currently in draft). I mean no disrespect to the court. I have simply set out the facts of the matter as I believe them to be. Given the gravity of the matters in issue, and the fact that I have not been permitted to consult with a lawyer (or anyone else), I am keen to ensure the statement does not inadvertently contain any inaccuracies.
If the court (or any other party) considers there to be material inaccuracies in the statement, please let me know what they are.
Best wishes,
Tim

Mon 14/12/2020 06:52

Dear Mr Crosland

Thank you for your email of 13 December 2020 @ 15:02.

The Court cannot advise you on the terms of your statement but I am asked to advise you to seek independent legal advice (when it is permissible to do so) after the hand down of the judgment and to delay making any substantive comment until you have received that advice.

Kind regards

 

Mon 14/12/2020 08:20

Dear Mr Crosland,

The Justices on the panel have considered your note and wish me to tell you that they do not accept your assertion of an unfair hearing.  They have amended the draft judgment expressly to acknowledge the argument which you presented but continue to think that it is irrelevant to the section 5(8) question.  I attach the revised draft judgment in which the amendments are made in paras 3 and 112.

The Justices have noted your intention to make comments on the judgment when it is handed down and know that you will have regard to your professional obligations as a barrister when you do so.

I am copying this message and the attachment to the parties to whom you sent your note.

Yours sincerely

 

Mon 14/12/2020 09:02

Many thanks, [name redacted].
Best wishes,
Tim

Tue 15/12/2020 13:54

Dear [name redacted]
I have taken the decision to breach the court embargo today as a deliberate act of civil disobedience against the injustice of the court’s decision.
This is the personal statement I have published via Twitter:
I apologise for any inconvenience this may cause and understand I will face personal consequences.
Best wishes,
Tim

Tue 15/12/2020 16:35

Dear Sir

The statement you have issued about the draft judgment in this appeal has been drawn to the attention of the President and Deputy President of the Supreme Court.

As you are aware, the contents of the draft judgment are strictly confidential until handed down by the Court. Those to whom the contents are disclosed must take all reasonable steps to preserve confidentiality, and no action is to be taken before judgment is formally pronounced unless this has been authorised by the Court.

I am writing to request that you remove the statement you have shared on Twitter, as it breaches these obligations, until the embargo lifts tomorrow morning (after the hand down at 0945).

I am copying this email to the parties

Yours faithfully

 

Content of Word Document:

R (on the application of Friends of the Earth Ltd and others) (Respondents) v Heathrow Airport Ltd (Appellant)

Amendment / correction to draft judgment on behalf of Plan B

Misrepresentation of the basis of assessment of the ANPS

The draft judgment of the Supreme Court omits to mention that the Secretary of State assessed the ANPS against the historic and discredited global temperature limit of 2˚C.

To the contrary, the draft judgment implies that the Secretary of State for Transport (SST) assessed the ANPS only against the UK’s domestic targets (see, for example, para 111: “There was no established policy beyond that encapsulated in the CCA 2008”). That implication is unequivocally false.

It is a matter of record, agreed between the parties, that for the purposes of the carbon traded scenario against which the SST assessed the ANPS, the SST used as his benchmark not the UK’s domestic targets, but the historic, discredited global temperature limit of 2˚C.

See Statement of Facts and Issues paragraph 7b.

See statement of Caroline Low, para.469:

Under [the carbon-traded] scenario overall C02 emissions are set at a cap consistent with a future global goal to limit global warming to 2°C”.

As the Court of Appeal made plain (see para. 13(5) of its judgment), a central issue was:

“whether the Divisional Court erred in holding that the 2˚C temperature limit was a relevant consideration”.

Plan B’s written case likewise emphasized the centrality of the issue (para. 8):

“In essence the Appellant now contends that, as a matter of law, the Government cannot have a policy commitment to the Paris Temperature Limit but may have a policy commitment to the discredited 2˚C temperature limit, even when, as a matter of fact, the Government has adopted the former limit and rejected the latter.”

HAL’s case misrepresented the basis of the SST’s assessment, stating at paragraph 16, that for the purposes of CCA s.5(8):

“The Secretary of State followed the CCC’s advice in assessing the carbon impact of the scheme in the context of the (then) carbon target in s1(1) and the then existing carbon budgets, which had been set having regard to the 37.5Mt CO2 planning assumption.”

Plan B alerted the Court to the fact that that statement was false, and that Lord Anderson’s persuasive submissions flowed from a fundamentally false factual premise. The SST had not assessed the ANPS against the carbon target in CCA s.1(1). He had assessed it against the planning assumption and, because aviation is an international sector, the discredited global temperature limit of 2˚C.

Plan B suggested that Lord Anderson was attempting to “draw a veil” over the SST’s reliance on the 2˚C target because he could not explain it:

“What Lord Anderson does not and cannot explain, is why it was only possible to assess the ANPS against the wrong global temperature limit; the dangerous and discredited 2˚C, rejected by 197 Government in 2015; but was not possible to assess it against the correct global temperature limit, established by the Paris Agreement.”

Lord Anderson, for HAL, did not dispute Plan B’s correction in his reply.

The Supreme Court, in its draft judgment, appears inadvertently to have adopted Lord Anderson’s false factual premise regarding the basis of the assessment of the carbon impacts of the ANPS, omitting any reference to the SST’s reliance on 2˚C target. This error is fundamental and infects the integrity of the judgment as a whole.

Presumably, the Court will not persist in issuing a judgment on a false premise now that the error has been drawn to its attention. It will need to confront the issue raised by what the SST actually did (not by HAL’s incorrect submissions about what he did), ie:

Whether for the purposes of the carbon-traded scenario, the SST was correct to rely on the discredited 2˚C global temperature limit, which the Government had rejected as inadequate in 2015, or whether he should have instead relied on the Paris Temperature Limit.

Plan B is entitled to a fair hearing. That includes a judgment based on the agreed facts of the case (as opposed to a judgment based on an alternative set of facts).

TIM CROSLAND

Director, Plan B

10 December 2020