Guest essay by Christopher Monckton of Brenchley. The Denning Lecture in the Church of St Dunstan, “the Cathedral of the Weald”, Cranbrook, Kent 23 October 2015
LORD DENNING, now merry in heaven, is celebrated for many qualities, not least his readiness to take on the legal establishment in what he rightly saw as the overriding interest of reaching a just judgment. In that gentle Hampshire accent from the ancient village of Whitchurch, where he lived in a fine, stone-built house overlooking the church, he would raise a finger and a smile and reply to those who asked him how it felt to be overturned so frequently on points of law by the House of Lords:
“Oi took no oath to do law. Oi took it to do justice. They did law. Oi did justice.”
In honouring that great Custos Rotulorum today, we need only look towards the Supreme Court of the United Kingdom to realize how sorely we need good judges and true – men of Lord Denning’s singular stamp. For he was the redoubtable champion of the little guy against big business, big unions, big bureaucracy, big government. For this reason, though he was regarded with stuffy exasperation in the stuffier chambers of the stuffiest of professions, he was arguably the most popular, influential and well-loved justice of our time among the general public.
His Lordship’s judgments richly deserve to be regarded as works of literature no less than of law. His principle in drafting his opinions was simple: “Accuracy, brevity, clarity, aboideth these three, and the greatest of these is clarity.” His sentences were famously short and simple. His lines of argument were forceful, straightforward, comprehensible and clear. He flattered all the non-legal minds into whose purview his judgments came, for he gave us the impression that we, too, could almost understand the law, and perhaps even love it a little, as so many of us loved him. Above all, he was by instinct always ready to defend the ordinary citizen against the over-mighty forces of intrusive government, citing Pitt the Elder but adding his own characteristic rider (italicized):
“‘The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail. Its roof may shake. The wind may blow through it. The storm may enter. The rain may enter. But the King of England cannot enter. All his force dares not cross the threshold of the ruined tenement.’ So be it – unless he has justification by law.”[1]
A dismal contrast to the splendid readiness of the late Master of the Rolls to keep the panjandrum of totalitarianism from bursting in upon us and rolling over us was visible at the recently self-aggrandized Supreme Court of the United Kingdom in mid-September 2015, where a strange theatrical event took place: a conference of national and international judges and law professors under the troubling title Climate change and the rule of law.
Lord Carnwath, a Justice of the Court and a tendentious campaigner on environmental and climate issues, introduced the conference with these shamelessly partisan sentiments:
“President Obama has said we are the first generation to feel the impact of climate change and the last generation that can do something about it. On that basis, the forthcoming Paris negotiations under the UN Climate Change Convention are a crucial test of our ability as a global community to address those challenges.
“The intention is that the commitments which emerge from those negotiations should have legal force. But what does that mean in practice? Much has been written about the science and the politics, but much less about the legal machinery available to give effect to those commitments, which will need to be developed in the future – or, indeed, the role of the courts, national or international, in administering it.
“Ultimately it will be for us as judges, national or international, to work it out with the help of legal practitioners and academics. We need to prepare ourselves for that task and to help our judicial colleagues round the world to do the same. The purpose of this conference is to stimulate such a debate, which I hope will continue up to Paris and beyond.”
In short, His Lordship is more than eager for the courts to be empowered to inflict totalitarian regulations and restrictions on the people worldwide, in the name of “addressing … challenges” whose genuineness he injudiciously and unjudicially assumes without verification and without first having taken the trouble to hear both sides in evidence.
Carnwath should urgently reread Lord Denning’s words in a celebrated judgment, explaining why the judiciary must be, and be seen to be, impartial:
“The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.’ … The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.”[2]
Carnwath introduced a lecture by Philippe Sands QC, professor of international law at University College, London, on Adjudicating the future in international law. Sands, like Carnwath, accepted without question the establishment position on the climate. The very title of his talk betrayed the relentless and often pusillanimous prejudice that was evident throughout. “Adjudicating the future”, forsooth!
The aprioristic premise of Carnwath, Sands and just about all of their no doubt carefully-chosen audience was that everything in the sacred texts of the Intergovernmental Panel on Climate Change was unquestionably gospel truth.
Sands and other speakers at the conference took the view that it was the duty of the international courts to reach findings of fact in support of the IPCC, and, in Sands’ profoundly prejudice-laden word, to “scotch” the research results of researchers who challenge the “factual matters” on which those attending the conference seemed unanimously to agree without the slightest evidence or question, even where those researchers were “scientifically qualified, knowledgeable and influential persons”.
That conference of very senior national and international judges was in reality a nest of activists ruthlessly determined not merely to disregard but openly to flout the two principles of natural justice recognized in the laws of England and Wales: that none should be the judge in his own cause (nemo sit iudex in causa sua), and that both sides should be fairly heard (audiatur et altera pars).
Here is a characteristically unsatisfactory passage from Sands’ talk:
“The International Court of Justice or International Tribunal on the Law of the Sea could be asked, for example, to confirm (as a scientific matter) that emissions reductions are needed – nationally and globally – to stay below the globally agreed temperature threshold of 2 degrees Celsius.
“As I noted at the outset, there is a broad emerging consensus on many of these factual matters, but they remain subject to challenge in some quarters, including by scientifically qualified, knowledgeable and influential individuals, and the courts could play a role here in finally scotching those claims.”
The words in bold type were not in Sands’ script. He added them on the fly. It is often in ad-libs of this kind that the true (and, in the present instance, frankly malevolent) intent of the speaker is revealed. The conference of judges, in defiance of the English tradition of hearing both sides before making any pronouncement, had made up their minds ab initio and a priori.
They are indeed judges in their own cause – the cause of mawkish, half-baked, anti-science, to-hell-with-the-evidence, hard-Left environmentalism that is so dear to our future King, who sent these pecksniff propagandists a dim-witted letter of support and has likewise refused either to appreciate or to respect the iron constitutional obligation upon him, akin to that which rests upon the Justices and the courts, to keep what the Greeks called “holy silence” on all matters of current political contention.
Worse, the disgraceful but revealing ad-lib perpetrated by the unfortunate Sands evinces a determination not to give any hearing to those who have published in the learned journals their scientific results casting doubt on the apocalyptic claims of the profiteers of doom before “finally scotching” what he calls the scientific sceptics’ “claims”.
Lord Denning’s opinion on the obligation of visible impartiality in the judiciary has already been cited. Let us cite him now on the audiatur et altera pars principle:
“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him and then he must be given a fair opportunity to correct or contradict them.”[3]
And what steps did Carnwath or Sands take to suggest that the courts should hear both sides before reaching any scientific findings? Precisely none. Those of us who have researched these questions deeply, and who have published our findings in the learned journals, are not to be invited to present any evidence, any more than they were fairly represented (if at all) at the justices’ unbecoming political rally. To make the point clear that only one side of the scientific case will be permitted, Sands said this of the International Court of Justice:
“… the court has a potentially significant role to play in helping the world understand and decide on the science of climate change and to recognize that the room for real doubt has disappeared.”
This time the emboldened words of incurable but no doubt profitable prejudice are in the printed text of Sands’ insubstantial lecture.
The prejudice expressed both by Carnwath in citing Mr Obama with approval and by Mr Sands in his menaces to independent scientific researchers, combined with the unquestioning enthusiasm with which the audience of personages whom Lenin would have characterized as “useful” received those remarks, raises a question without precedent in the annals of British justice. Not merely one judge but an entire court, at a partisan political event bought and paid for by Her Majesty’s Government, by a rent-seeking university law department also profiting by the taxpayer’s involuntary generosity, by a foreign agency to which Lord Carnwath acknowledges allegiance and by an alien bank that profits from substantial investments in coal-fired power stations, an event held not merely within the precincts of the court but in two of its courtrooms, not behind closed doors but across the internet, have publicly disseminated an unreasoning collective prejudice on a matter of current political controversy that may yet well end up in court, if only to bring to book the profiteering pseudo-scientific scamsters who have stretched the evidence for supposed concern about our largely imaginary influence on the climate beyond all reason, and have even tampered with that evidence.
UKIP, which received one vote in eight at the last general election, opposes the climate scam root and branch for what it is – an international racket got up by the governing class as a Trojan horse for the introduction of global, unelected, totalitarian government. UKIP’s climate spokesman, Roger Helmer MEP, is far more knowledgeable about climate science and economics than Carnwath or Sands will ever be. They cannot fairly claim, then, that the climate question is settled politically, any more than they can legitimately claim that it is settled scientifically. Even if the classe politique were united on the climate question, which it is not, the judges have no locus to join forces with them politically.
The entire Supreme Court, now that it has taken money from the Government and other inappropriate sources, and has unlawfully misapplied those funds for the purpose of proclaiming very publicly an irremediable prejudice on a political question on which opinion as well within as among the parties is divided, must henceforth recuse itself from hearing any cases concerning the environment and climate. At once an obvious difficulty arises. For the Supreme Court is the ultimate court to which the appeal courts refer contentious cases of all kinds, including climate and environment cases. It construes its own role as follows:
“The Supreme Court is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland; hears appeals on arguable points of law of general public importance; concentrates on cases of the greatest public and constitutional importance; [and] maintains and develops the role of the highest court in the United Kingdom as a leader in the common-law world.”[4]
Lord Carnwath and the president of the Court, Lord Neuberger, now face two choices. They must either hold another public event at which they hear – and are seen to hear – the sceptical case, or give written undertakings that the Court will forthwith recuse itself from hearing any future environment or climate cases. If the Court, bending to the fitful wind of transient political fashion, insists on continuing to close its ears to the sceptical case, it must without further ado invite the grim Ministry of Justice (O for the kindlier days of the Lord Chancellor’s Department!) to bring forward urgently whatever legislation may be necessary to make alternative arrangements for hearing final appeals in environment and climate cases.
Either way, the Court must disclose, under the Freedom of Information Act, the sums it received from each sponsor of its unlawful political event, and declare which department or departments of government paid for the conference. It will no doubt seek to maintain that its workings are exempt from FOIA requests. However, its workings are not in issue. What is in issue is the funding for a partisan and public political event held by it on its premises.
The relevant Ministers should repay to the Treasury the sums unlawfully squandered on promoting a partisan political prejudice in what was supposed to be the nation’s highest and most impartial court of appeal. In the event that Ministers fail to repay the taxpayer, judicial review of Ministers’ administrative decisions both to subsidize the event and to refuse to pay for it out of their own pockets should be sought.
Sands lists the usual wearisome catalogue of extreme, pusillanimous, scientifically-baseless and easily-discredited assertions lifted incuriously from the prejudiced documents of the IPCC. He talks of dangerous warming when, notwithstanding that almost half of Man’s influence on the climate since 1750 has arisen since 1990, there has been no statistically-significant warming in the quarter-century since the IPCC’s First Assessment Report in that year, and none at all for almost 19 years. He talks of dangerous sea-level rise when the Envisat satellite, during its entire eight years of operation, showed sea level rising at a rate equivalent to no more than 1.3 inches per century, and such little sea-level rise as other, more suspect datasets evince arises chiefly from an artificial “glacial isostatic adjustment” that does not reflect any real, physical rise in sea level. He talks of dangerous ocean “acidification” when the oceans are and must under modern conditions remain pronouncedly alkaline. He talks of dangerous extreme-weather events, when the Intergovernmental Panel on Climate Change, while making lurid predictions, has had to confess both in its Fifth Assessment Report and in its Special Report on Extreme Weather that there is remarkably little evidence for any link between global warming and extreme weather to date. He talks of an “emerging consensus” that peer-reviewed results[5] show to be represented in just 0.3% of published climate papers.
After Sands’ catalogue of catastrophisms drawn from the documents of the IPCC, he adds the following remarkable paragraph:
“These are not the words of doubt. They indicate that we have gone well beyond the classical standards on the burden of legal proof, whether it be balance of probabilities, or beyond reasonable doubt, or the standard of conviction intime that I am directed to apply by Swiss law acting as an arbiter at the Court of Arbitration for Sport at Lausanne. Just this week the UK Met Office issued a new report, entitled Big Changes Underway in the Climate System? We are told that in 2015 the Earth’s average surface temperature is running at or near record levels. Scientific evidence tells us that climate change is happening, the textbooks tell us that it’s a subject for international law, one addressed by treaties and other international instruments.”
Sands has not for an instant given serious consideration to the possibility that the IPCC, whose accident-prone and often downright dishonest documents he quotes without the slightest question, may have a very large political as well as financial self-interest to promote. That is why he has not bothered to check whether any of the pseudo-scientific points he plucked from its latest Synthesis Report has any real justification in fact.
Sands’ failure to consider even the possibility that there might be another side to this question, still less to consider that the other side might actually right and true, is reprehensible, and his demand that the courts should “scotch” the legitimate scientific research results of those of us with whom he presumes on no evidence to disagree, and the acquiescent silence of those present and of the Court’s justices and administrators, are gravely at odds with the democratic legal tradition of these islands, and still more gravely at odds with the obligations of justices and officers of the Court.
Later in his propaganda presentation, Sands says that the International Court of Justice or the International Tribunal on the Law of the Sea
“could be asked, for example, to confirm (as a scientific matter) that emissions reductions are needed – nationally and globally – to stay below the globally agreed temperature threshold of 2 C°” [above pre-industrial temperature, or 1 C° above today’s temperature].
But nowhere does Sands provide any scientific justification for the assertion, absurd on its face, that a global temperature just 1 C° warmer than today’s temperature will be in the least damaging, still less that it will be so damaging as to require the concerted action of governments to establish a global government to make the harm go away. It is far more likely that 1 C° will be beneficial. Nor does Sands provide any evidence that the target adopted at the Copenhagen climate conference in 2009 has any scientific basis. He seems unaware that this target was dreamed up as a political device by a member of the Potsdam Institute for Climate Change, who has subsequently admitted that the figure was purely political and had no scientific rationale at all. Imagine an international court, such as the new “Climate Change Tribunal” that is proposed in the current drafts of the impending Treaty of Paris, requiring nations to set a limit to their emissions on the basis not of any scientifically-derived result but of what is known to be a purely totalitarian political assertion without scientific justification. Imagine the dismal, intellectually-bankrupt world the Supreme Court has in mind for us.
What is worse, there is no clear statement, anywhere in international law, that requires the 2 C°-above-pre-industrial target to be adhered to. It is a mere aspiration. It is not the law. Therefore, it is not a sound basis upon which to found any judgment in an international court. It is not the role of the courts to make the law, however much the likes of Carnwath and Sands may nurse the frankly totalitarian ambition to do so.
On one point, it is not unreasonable to concur with Sands. He says,
“One of the most important things an international court could do – in my view it is the single most important thing it could do – is to settle the scientific dispute. A finding of fact … would be significant and authoritative and could well be dispositive on [a] range of future actions, including negotiations.”
The courts are indeed a good forum to settle scientific disputes, because in that forum – as in no other – both sides are fairly heard, as long as the action is genuinely adversarial and not an artificial or “sweetheart” action such as Massachusetts v. EPA or the recent Urgenda case on the Continent, where both sides hanker after the same totalitarian outcome and seek to inveigle the court into rubber-stamping a decision really intended to bind third parties who are not parties to the action and have not had their objections heard.
In genuinely adversarial cases, the courts, by their very rules of procedure, allow proper cross-examination of each party by the other. In the climate debate, cross-examination of the believers has rarely proven possible in any other forum because they duck out of debate almost every time, using a variety of lame excuses. For they know they will nearly always lose. Whatever they may say in public in that manically messianic tone that is de rigueur, they know that the facts and the science are not on their side.
Yet the forensic process of examination and cross-examination is precisely valuable only when the courts are, and are determined to be, and are seen to be, impartial. Would a coal company, shall we say, faced with an action by some lavishly-funded “green” lobby group or other, feel in the least bit confident appearing before the Supreme Court of the United Kingdom in its present over-politicized and under-informed state, now that its pantomime of hate is in the public domain and consciousness?
How many of the Justices have contributed anything to the peer-reviewed journals of climate science or economics? How many of them have ever heard any case examining whether the New Superstition to which they have now publicly declared their undying devotion is founded in the truth? What, then, are they doing proselytizing for their socially convenient, politically expedient, financially profitable but scientifically questionable and constitutionally totalitarian opinion, without first having heard the evidence on both sides?
The Court, having collectively issued its premature opinion on the climate question, and having not demurred at Carnwath’s citation of Mr Obama, of all people, as though he were some sort of expert on the climate, and having not demurred at Sands’ statement that expert scientific researchers who do not share his inexpert view should have their results “scotched”, is in no position to render any assistance whatsoever either to the citizens within its jurisdiction or to other national or international courts. By its extraordinary and unprecedented decision to broadcast its rank, frank prejudice for all to see, it has forfeited any right to hear any climate or environment case whatever.
The Supreme Court has sunk very low. It has reduced itself to just another rent-seeking campaign group that knows just one thing: governments will subsidize the climate-extremist viewpoint. After all, the UK Government subsidized its wretched conference. But governments will not subsidize the sceptical viewpoint, even though, on the evidence to date, sceptical results have proven far closer to the truth than the bizarre, exaggerated and serially, materially failed predictions on the basis of which Carnwath and Sands presume to lecture us about the need to empower them to bully scientific researchers who disagree with the government-funded side of the case from which they themselves profit or hope to profit.
It is appropriate to put the Supreme Court’s demand that the legitimate scientific researches of those of us who have dared to question the magnitude of the warming our enrichment of the atmosphere with CO2 may cause should be “scotched” into its current political context. Here is a note of just a few similar attempts to stifle scientific debate and research on the climate question in the past decade or so. It will be seen from this list that Sands and Carnwath have placed themselves and the Supreme Court in less than savoury company.
2005: Margo Kingston, in Australia’s Daily Briefing, said: “Perhaps there is a case for making climate change denial an offence. It is a crime against humanity, after all.”
2006: Bill McGuire, professor of “climate change impacts” at University College, London, said: “We have Holocaust deniers; we have climate change deniers. And, to be honest, I don’t think there’s a great deal of difference.”
2006: The Grist.com website called for Nuremberg-style trials for climate skeptics. The article was later retracted.
2006: Heidi Cullen featured Dave Roberts, who said online, “When we’ve finally gotten serious about global warming, when the impacts are really hitting us and we’re in a full worldwide scramble to minimize the damage, we should have war crimes trials for these bastards – some sort of climate Nuremberg.” The remark was not later retracted.
2006: Mark Lynas, a “green” campaigner, wrote: “I wonder what sentences judges might hand down at future international criminal tribunals on those who will be partially but directly responsible for millions of deaths from starvation, famine and disease in decades ahead. I put [their climate change denial] in a similar moral category to Holocaust denial – except that this time the Holocaust is yet to come, and we still have time to avoid it. Those who try to ensure we don’t will one day have to answer for their crimes.”
2006: Spiked Online reported that when a correspondent for the American current affairs show 60 Minutes was asked why his various feature programmes on global warming did not include the views of global warming sceptics, he replied: “If I do an interview with Elie Wiesel, am I required as a journalist to find a Holocaust denier?”
2007: Ellen Goodman, in the Boston Globe, said: “Let’s just say that global warming deniers are now on a par with Holocaust deniers.”
2007: Robert F. Kennedy Jr. lashed out at global warming skeptics, saying: “This is treason. And we need to start treating them as traitors.” The penalty for treason is death.
2007: Yvo de Boer, secretary general of the UN Framework Convention on Climate Change, said ignoring the urgency of global warming would be “criminally irresponsible”.
2007: Dr. Gro Harlem Brundtland, a UN special climate envoy, said: “It’s completely immoral even to question” the UN’s scientific opinion on climate.
2008: Dr James Hansen of NASA demanded that skeptics be “put on trial for high crimes against humanity and nature”. The penalty for crimes against humanity is death.
2008: David Suzuki, a Canadian environmentalist, said government leaders skeptical of global warming should be “thrown into jail”.
2008: Alex Lockwood, a British journalism professor, said that writers questioning global warming should be banned.
2009: A writer at Talking Points Memo said global warming “deniers” should be executed or jailed. He later retracted this remark.
2010: James Lovelock, inventor of the “Gaia hypothesis”, told The Guardian: “I have a feeling that climate change may be an issue as severe as a war. It may be necessary to put democracy on hold for a while.”
2010: Dr. Donald Brown, Professor of “Climate Ethics” at Penn State University, declared that skeptics, who had caused “a 25-year delay in acting to stop climate change”, may be guilty of a “new crime against humanity”. The penalty for crimes against humanity is death.
2010: A video from the “10:10 campaign” showed climate skeptic children being blown up by their teacher in class, and their classmates were spattered with their blood and guts.
2011: An Australian journalist said climate skeptics should be “branded” with cattle-irons to mark them out from the rest of the population.
2011: Another Australian journalist said skeptics should be “gassed”.
2012: Professor Richard Parncutt of the University of Graz, Austria, recommended the death penalty for skeptics. He later withdrew and apologized for his demand.
2012: Dr. Donald Brown, Professor of “Climate Ethics” at Widener University School of Law, again declared that skeptics may be guilty of a “new crime against humanity”. The penalty for crimes against humanity is death.
2014: Dr Lawrence Torcello, assistant philosophy professor at Rochester Institute of Technology, wrote that people who disagreed with him on climate should be sent to jail.
2014: During a February cold snap, the New York Times ran a cartoon headed “Self-Destructing Sabers for Dispatching Climate-Change Deniers” and showing (top right panel) a climate skeptic being stabbed with an icicle.
2014: The gawker.com website said: “Those denialists should face jail. They should face fines. They should face lawsuits from the classes of people whose lives and livelihoods are most threatened by denialist tactics.”
2014: The host of MSNBC’s The Ed Show promoted Soviet-style re-education for climate skeptic politicians by conducting an on-air poll on the question “Should climate-denying Republicans be forced to take a basic earth science course?”
2015: Katie Herzog at Grist.com on 16 January wrote: “If this planet is to survive the scourge that is humanity, we all have to stop reproducing. Yes, all of us. In that spirit, I propose we … sterilize every human male on his 10th birthday.”
2015: A comment on the webpage of the Brisbane Times about a category 5 cyclone along the Queensland coast on 19/20 February said: “These type of weather events could happen further south in future and be more intense with global warming … if anyone has to suffer out of this one I hope it is a climate change denier, if anyone.”[6]
2015: The Australian Capital Territory’s Arts Fund gave $18,793 “to assist with costs of the creative development of a new theatre work, Kill Climate Deniers”.
2015: At a propaganda rally hosted by the Supreme Court of the United Kingdom in London, Philippe Sands QC said that international courts should be deployed to “scotch” the “claims” of “scientifically qualified, knowledgeable and influential individuals” who disagreed with what he called the “consensus” as to his viewpoint on climate change.
The context of Sands’ repellent remarks, then, is the increasingly hysterical and desperate politically partisan campaign to try to silence those of us whose researches have led us to conclusions at odds with the imagined (and imaginary) “consensus” that the Supreme Court, on no evidence, actively endorses.
The desperation of the totalitarian faction arises not from any genuine concern about the climate, but from fear that unfolding events will ever more clearly demonstrate that that faction was at all material points scientifically incorrect in its overblown exaggerations.
Not only is the Supreme Court’s self-serving misconduct grave: it is contemptible. It is a denial and a repudiation of everything that British justice once stood for. Above all, its misfeasance is a rejection of the ancient principles of which Lord Denning was the champion, that none should be the judge in a cause he has declared to be his own, and that both sides of every case should be fairly heard by justices who are impeccably, determinedly, visibly impartial, and who take care to make no public pronouncement on any currently-contentious question of fact unless and until they have heard both sides. Carnwath, by running his little Christmas pantomime of hate in the very courtrooms of what was once regarded as Britain’s highest court but is now yet another mere totalitarian poodle feeding off the taxpayer-funded largesse wantonly scattered about by the governing elite, has in effect recused not only himself but also the entire Supreme Court from exercising any legitimate judicial function with respect to the environment or climate – or, for that matter, with respect to anything else.
For if a justice or a court has acted in a visibly prejudiced fashion, declaring an individual or collective opinion, or keeping silent when such a declaration has been made and should have been swiftly and trenchantly repudiated as fundamentally contrary to the principles of natural justice, then that justice and that court are forever tainted. They can no longer be trusted to exercise any judicial function or to act in any judicial capacity.
With the eager assistance of Sands, then, Carnwath has precipitated what bids fair to be a constitutional crisis of no small magnitude. It is now open to anyone whose case would otherwise be considered by the Supreme Court to demand that the case be transferred to another legal jurisdiction – perhaps the Court of Session in Scotland, which is generally less politicized and more circumspect (as well as more competent) than its pompously self-opinionated British counterpart has proven to be.
That fatal remark by Sands to the effect that the legitimate research results of scientists and investigators who, like me, have published their findings in the leading reviewed journals of climate science and economics should be “scotched” by the courts for what are transparently political rather than legitimately scientific reasons; that fatal failure either by Carnwath, who congratulated Sands when he should have reproved him and should have distanced the Court from his unacceptably prejudiced and hate-filled remarks; and that fatal silence of his fellow justices in the face of Sands’ pusillanimous and ignorant extremism, leave no doubt as to the now-ingrained and publicly-displayed prejudice not only of Carnwath but also of the entire Supreme Court on the climate question.
Not one Justice has come out, as all should in duty and conscience have done, to repudiate Carnwath’s political rally and to set themselves and the Court aside from his explicit endorsement of Sands’ talk, with its vile proposal to “scotch” scientific research results with which he profits by disagreeing, and which he has insufficient native wit or scientific knowledge to comprehend, let alone to judge, still less to dismiss.
Not one Justice has recalled the wise words of Lord Chief Justice Phillips in 2007:
“A judge should value independence above gold, not for his or her own benefit, but because it is of the essence of the rule of law.”
The Justices, and particularly Carnwath, are also in direct breach of the chapter on Impartiality of the official guidelines for the judiciary:
Chapter three: Impartiality
3.1 A judge should strive to ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants, in the impartiality of the judge and of the judiciary.
3.2 Because the judge’s primary task and responsibility is to discharge the duties of office, it follows that a judge should, so far as is reasonable, avoid extra-judicial activities that are likely to cause the judge to have to refrain from sitting on a case because of a reasonable apprehension of bias or because of a conflict of interest that would arise from the activity.
3.3 A specific application of that principle is that a judge must forego any kind of political activity and on appointment sever all ties with political parties. An appearance of continuing ties such as might occur by attendance at political gatherings, political fundraising events or through contribution to a political party, should be avoided. The need for abstinence also involves not participating in public demonstrations which, by associating the judge with a political viewpoint or cause, may diminish his authority as a judge and create in subsequent cases a perception of bias. Where a close member of a judge’s family is politically active, the judge needs to bear in mind the possibility that, in some proceedings, that political activity might raise concerns about the judge’s own impartiality and detachment from the political process.
3.4 Another application of the principle, though one difficult to define and apply in specific situations, is the expression of views out of court that would give rise to issues of perceived bias or pre-judgment in cases that later come before the judge. This question is considered in more detail in Section 8.2.[7]
Chapter 8.2 says –
“… many aspects of the administration of justice and of the functioning of the judiciary are the subject of necessary and legitimate public consideration and debate in the media, legal literature and at public meetings, seminars and lectures, and appropriate judicial contribution to this consideration and debate can be desirable. It may contribute to the public understanding of the administration of justice and to public confidence in the judiciary. At the least, it may help to dispel misunderstandings and correct false impressions. There is no objection to such participation provided the issue directly affects the operation of the courts, the independence of the judiciary or aspects of the administration of justice.
“Care should, however, be taken about the place at which, and the occasion on which, a judge speaks so as not to cause the public to associate the judge with a particular organization, group or cause. The participation should not be in circumstances which may give rise to a perception of partiality towards the organization (including a set of chambers or firm of solicitors, group or cause involved or to a lack of even-handedness.
“There are plainly risks in a judge, whether exercising a criminal or a civil jurisdiction, who may have to deal with a wide range of people in his or her jurisdiction, being exposed to public debate in such a way that the authority and status of the judicial office may be undermined. Consultation with Heads of Division, the presiding, resident or designated judge, as the case may be (the “head of the appropriate jurisdiction”), will almost always be desirable. The risk of expressing views that will give rise to issues of bias or pre-judgment in cases that later come before the judge must also be considered.”[8]
The Justices of the Supreme Court, and the Court itself, have fallen foul of these provisions of the guidelines for the judiciary. It was legitimate that they should discuss the judicial aspects of considering climate-change cases. It was, however, far from legitimate that they should declare, or by their silence acquiesce in, what amounted to a public, corporate declaration of prejudice by the Court and at the Court in favour of a single, narrow politico-scientific opinion on a matter of active and current political and scientific debate.
Worse, Carnwath and his cronies are in breach of statute law, and recent statute law at that. Section 3(1) of the Constitutional Reform Act 2005 says –
“… all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.”
It is self-evident that when judges indulge in political campaigns paid for by HM Government and broadcast from their own coutrooms they do not, in any sense, “uphold the continued independence of the judiciary”. Rather, they forfeit it and cast it to the winds.
The Supreme Court, by broadcasting its untutored prejudice for all to see, has abdicated. Let us sweep it away and start again. “Tom” Denning would have been delighted with that thought. Just as the Judicial Committee of their Lordships’ House so often and yet so inappropriately overturned that learned, gentle tribune of the downtrodden, let us now, appropriately, not merely overturn its shoddy, smarmy, self-satisfied successor, the Supreme Court, but overthrow it outright. The nation, and the wider jurisprudential world, would be a better place without them and without their small-minded, ill-informed, self-interested, totalitarian prejudices.
“Be you never so high”, said Lord Denning in one of his many famous cases, “the law is above you.”[9] The Supreme Court is as high as a career in the law will take you, but its justices are about to find out, to their cost not only in reputation but perhaps also in place, on this as on so much else “Tom” Denning was right. He was right because he was just. He did right because he did justice. The Supreme Court doesn’t do justice. It doesn’t do facts. It doesn’t even do law. Away with it!
[1] Southam v. Smout [1964] 1 Ch 223
[2] Metropolitan Properties Co. (F.G.C.) Ltd. V. Lannon [1968] EWCA Civ 5 [1969] 1QB 577
[3] Kanda v. The Federation of Malaya [1962] AC 322 at 327.
[4] https://www.supremecourt.uk/about/role-of-the-supreme-court.html
[5] Legates, D.R., W.W.-H. Soon, Briggs, & C.W. Monckton of Brenchley, (2013) Climate consensus and misinformation: a rejoinder to “Agnotology Scientific Consensus, and the Teaching and Learning of Climate Change”, Sci. Educ., doi:10.1007/s11191-013-9647-9.
[6] http://www.brisbanetimes.com.au/queensland/cyclone-marcia-live-coverage-20150219-13iuaw.html.
[7] https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/judicial_conduct_2013.pdf
[8] Ibid.
[9] Paraphrasing Thomas Fuller (1733), in Gouriet v. Union of Post Office Workers, [1978] AC 435.
Just as an aside but I believe pertinent ( Great article by Christopher Moncton, thank you).
My parents when I was growing up would always tell me and my brothers, “if you are in trouble find a policeman or go into a store and ask for help”. I remember very clearly one incident when I was about 8 years old. I did get help from the police man. He escorted me home and I clearly remember the fact he was even polite to me telling me and my mother I had done the correct thing, I remember his uniform to this day very plain not intimidating and pretty much the only thing that stood out was the cap he was wearing.
Today if you asked for help (if you can get it)? The uniform is very intimidating.
Flack jackets, radio gear with antennas hanging out, weapons on their belts,
Jack boots
Reminds you of anything? And to me it is from both sides no matter if it is the Left or the Right, we are living in a deteriorating society. (Who would have believed this 50 years ago I wonder).
Good observation. I remember when the police wore a navy blue serge uniform. Today they look like Darth Vader’s goons. Very intimidating.
I have no respect for the Police. They are, IMO, just a state sanctioned bullyboy gang. None I have met would stand a chance in a real fight. They don’t even need a warrant to strip search you in Australia. You won’t find them stopping real criminals/crime…most known to them anyway…nah! Like the person in the Lindt coffee shop shootings in Sydney. Just pulling people up for driving 5kph over the speed limit or for stepping on the cracks in the pavement.
The days of the “Bobby on the beat” are long gone.
Certainly a moving account and an admirable position. Perhaps a member of the British House of Lords can actually shame the Supreme Court, I don’t know. I believe here in the US, any such attempt by a citizen would be doomed.
If for some reason they insist on settling the issue in court and in the absence of dissenting scientific evidence, would you mind asking them to change the value of Pi to 3 while they’re at it?
Well…. the always “wise” legislative branch of a US State did decide to “fix” the value of PI to a convenient value of 3.2 (close enough for hand grenades and horseshoes);
https://en.wikipedia.org/wiki/Indiana_Pi_Bill
But PI resisted these “legal” attempts to “Declare The Truth” and still after more than a century refuses to be equal to “3.2”.
Maybe these IDJITIS over there in the formally “Great Britain” could buy a clue with some “climate reparations” money…???
Cheers, KevinK
If one were going to legislate for a suitable value of pi, the fraction 355/113 = 3.1415929 is remarkably close to 3.1415927. When I was a lad at Harrow, I learned that if pi were applied to 40 places of decimals one could measure the diameter of the known universe to the precision of the diameter of a proton. So I learned pi to 40 places, and can recite it accurately to this day.
This was a very difficult article for me to read. Has the world gone truly mad? Do these tactics not alarm even the believers? Are there not jurists who decry the tactics alone? What hope is there for us if even the courts are now corrupted?
How will we ever prevail?
So true for those who have not had any law courses. Just read the article slowly. Law has its own vocabulary just like science has.
No, I don’t mean that it was difficult to understand. It was difficult to believe. Difficult to believe that the country that gave us such auspicious beginnings in the rights of men could be involved in such a trampling of our basic rights. Frankly, this entire story has horrified me. I am beginning to despair that we will avoid untold damage to our democratic societies.
Do not dispair. Via posts like this rebroadcast far and wide (via email, social media,…) to those that vote, and also to those who deign to advocate such methods (Sen. Whitehouse comes to mind.) you raise tactical awareness. Then comes substantive awareness. Then comes the ‘revolution’.
Momentum and politics (e.g. OBummer, the Pope) have been on their side, but the high water mark was AR4, that years Peaxe Nobel. Tide started going out with Climategate and Copenhagen. Facts and logic are on our side. Key to guerrila warfare is to pick your battles and outlast the enemy. Sniper stuff. Like this Monckton essay.
Proverb: If all you have is a hammer, everything looks like a nail.
With limited tools, single-minded people apply them inappropriately or indiscriminately.
Ah! Dickens.
Martin Chuzzelwit
One solution for all.
Let them have what they want, but only people that believe in it pay for it. Everybody that disagrees with it because based on political agenda not science, don’t pay a penny towards it.
They can send forms out to everyone and people tick the box on their beliefs whether they pay towards it or not. Just don’t bring in people that think you CAGW cause is a load of pseudoscience money grabbing for the rich nonsense.
Could even have a extra box for people that want to contribute a lot more because they think it’s a serious problem.
I had a VERY liberal girlfriend in 2012, she was also very intolerant, and wound up tight.
What ever happened to brevity, forsooth.
Comprehensively overwhelmed by truth and not by some new definition of “forsooth”.
In answer to jack1947, it is a rule of life that an hour- long lecture tends to last an hour.
Your speech was not a minute too long. I love the English language – I love an impassioned, intelligent speech. The Supreme Court of the United Kingdom has strayed from where it belongs – to my mind you have proved it. Thank you.
Brilliant. Lovely. And legally spot on. Best of the best, to be treasured.
These guys would have fitted in very well in the old Soviet court system.
“Carnwath, by running his little Christmas pantomime of hate in the very courtrooms of what was once regarded as Britain’s highest court but is now yet another mere totalitarian poodle feeding off the taxpayer-funded largesse wantonly scattered about by the governing elite, has in effect recused not only himself but also the entire Supreme Court from exercising any legitimate judicial function with respect to the environment or climate – or, for that matter, with respect to anything else.”
It is a scary thought to realize the Supreme Court is not unbiased, and are “True Believers” when it comes to climate chnage.
I don’t guess the corruption can go much higher. No, I wouldn’t want the people on this court hearing any legal case of mine, on any subject. They have already proven themselves untrustworthy and very confused.
I presume Supreme Court members can be removed from Office under British law for malfeasance.
A very informative article, Lord Monckton.
TA
TA raises the appropriate question: how, without resorting to violence and terror, can we remove the “Justices” of the “Supreme” “Court” from “office”. The answer, constitutionally speaking, is a petition to the Monarch addressed by both Houses of Parliament. Unfortunately, the overwhelming majority in both Houses are among the naivest of the True-Believers in the New Superstition, so they will no more dream of doing the right thing on this than on anything else to do with their passionate but misguided credo.
“The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.’ …”
Even more damaging is when enough people that are not “right-minded” leave knowing that the judge (or whoever did ’em wrong) was biased.
I’m somewhat of a pessimist, I think there are more “not-right-minded” folks than otherwise.
“It is now open to anyone whose case would otherwise be considered by the Supreme Court to demand that the case be transferred to another legal jurisdiction – perhaps the Court of Session in Scotland…”
As an American not familiar with the use of ‘Scotch’ as a verb, I have to assume that transferring cases to Scotland is not what Philippe Sands meant by “Scotching” a claim.
OK. I finally found an online dictionary with definitions for ‘Scotch’ in addition to alcoholic drink, cutting or scoring, or being thrifty. It gave the following list of synonyms:
baffle, bilk, cross, foil, frustrate, queer, spoil, thwart.
I had no idea that a word like ‘Scotch’ could have so many meanings. I also learned from my search that “Scotched in Scotland” is the title of the 158th short made by the Three Stooges for Columbia Pictures. They made 190 shorts in 25 years. That’s about 7 and 1/2 features per year. No wonder Curly died so young.
Thank you Monckton of Brenchley. Your earlier post seeking information alerted me to this circus. I know Denning M.R. and his outstanding judgements but this crew I do not recognise as jurists. It was a political event and I, an outsider, had a strong feeling that Carnwath and others speechifying were seeking higher office within the E.U. If that was the Supreme Court of England they have abandoned their independence for tyranny.
NZ some time ago gave up the English courts and set up their own Supreme Court. It seems that we have been well proven right.
There is no proof of global warming likewise there is no proof that we are not about to enter a serious cooling phase. These present matters may yet be self righting.
The Privy Council, totally independent of the “legal” system in NZ? A legal system that allows application to re-apply after failure? Thanks Helen Clark.
In response to Kevin, no mere evidence will now persuade the True-Believers to recant. Since a Spanish-style Inquisition is no longer practicable (though many would like such an entity to be directed against blameless skeptics), the only thing that will work is prosecution of one or two of the more notorious outright freudsters: Mann, Karl, Cook and suchlike monosyllabically-yclept climate cr**ks. Once one or two of the fiddlers are behind bars, the remaining profiteers of doom will run for cover.
In the meantime, their best escape route is actually to bully the world into cutting its CO2 emissions, for only then will their foolishness be concealed forever. If CO2 continues to increase at or above the rate predicted by the IPCC in 1990 (at present, emissions are somewhat above the then business-as-usual scenario), when temperatures continue to fail to rise at anything like the predicted rate their folly will be exposed for all to see – if, that is, the Marxstream media can be persuaded to mention that there has been no global warming for 18 years 8 months and counting …
Thank you Monckton of Brenchley. I know the fine judgments of Denning M.R. but do not recognise this circus. Your previous post seeking information caused me to watch the proceedings. I am a stranger to these courts but had a strong feeling that some speeches were political promotionals designed to get attention for higher EU appointments. Law was not an issue but the attitudes of an expression of tyranny was.
There is no proof of global warming or of global cooling but if we are on the cusp or have entered a stage of serious cooling these matters will be resolved outside the legal system.
This one comment really struck a chord with me;
“2006: Mark Lynas, a “green” campaigner, wrote: “I wonder what sentences judges might hand down at future international criminal tribunals on those who will be partially but directly responsible for millions of deaths from starvation, famine and disease in decades ahead. I put [their climate change denial] in a similar moral category to Holocaust denial – except that this time the Holocaust is yet to come, and we still have time to avoid it. Those who try to ensure we don’t will one day have to answer for their crimes.””
Millions have already died at the hands of environmental activists (DDT etc). Millions have died at the hands of dictators (Mao, Stalin etc). Why are these types not considered criminals? Not one person, to my knowledge, has died from an opinion about climate change that does not follow the consensus or alarmist view.
Like vultures, these jurists stand waiting for Parliament to make it an offense to use coal, or oil or gas for heating and lighting, then to pounce upon their prey.
And what will the public have to replace of fossil fuels when the wind does not blow and the Sun does not shine?
Time to pack our bags and find some place in the world where doddering old fools will not be allowed to turn off the lights and the central heating.
I suspect this is a reference to Richard Glover one of the many overpaid ABC staff/propagandists we tax payers are forced to maintain. Like it or not, and about half the population doesn’t, this bloated Green/left organisation consumes more than a billion of our tax dollars every year to present its one dimensional view of the world.
I counted 15 instances above where influential people called for climate change skeptics to be either jailed or executed. The funny thing is, I don’t think anyone of importance is calling for Holocaust deniers to be similarly punished. If there isn’t a “great deal of difference,” why are skeptics being singled out? If anything, these people believe that skeptics are much worse than Holocaust deniers. Otherwise, they would not be calling for such harsh punishment for one group while simply winking at the other.
In response to Louis, Richards devotes the chilling first volume of his excellent trilogy on the Third Reich to the question how one of the most civilized nations on the planet could have been captured by the National Socialist brand of hard-Left totalitarianism. The answer, in a nutshell, is that long before the Nazis took power they directed organized campaigns of hate-speech against any who, daring to speak up against them, had become effective in capturing public opinion.
In the end, all who wanted a quiet life learned to be silent, just as the vast majority of the opponents of environmental-Socialist totalitarianism are terrified into silence by the same tactic today, this time inflicted on us globally by a number of well-funded advocacy groups dedicated solely to discrediting and trashing the reputation of anyone who dares to speak out in opposition to the New Superstition.
Reblogged this on gottadobetterthanthis and commented:
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The good lord Monckton, in his grand and verbose style, makes the point quite well.
Speak up!
They will come for you, and there just may be no one left to speak for you.
When I clicked on “Post Comment,” my latest comment disappeared into the ether. Was it because I quoted someone above who used the “D” word?
Mark Lynas, a “green” campaigner, wrote: “I wonder what sentences judges might hand down at future international criminal tribunals on those who will be partially but directly responsible for millions of deaths from starvation, famine and disease in decades ahead. I put [their climate change denial] in a similar moral category to Holocaust denial – except that this time the Holocaust is yet to come, and we still have time to avoid it. Those who try to ensure we don’t will one day have to answer for their crimes.”
That depends, Mark, on whether or not we can put you and like minded deniers of the reality of (not nearly enough) climate change, on trial…
Be careful what you wish for.
Quote:
His principle in drafting his opinions was simple: “Accuracy, brevity, clarity, aboideth these three, and the greatest of these is brevity.”
_________________________________
Someone has not taken Denning’s advice about brevity. The jury is still out on the clarity aspect, too.
Ralph
ralfellis:
I beg to differ.
You do OK on brevity and clarity: it is accuracy which your writings lack.
Richard
In response to Mr Ellis, Denning said, “The greatest of these is clarity,” echoing the Lord of Life, Who said, “Faith, hope and charity, abideth these three, and the greatest of these is charity.”
An hour-long lecture is perforce an hour long. Mr Ellis is not obliged to read it. Has he ever complained before that any hour-long lecture is – er – an hour long? If not, why whine now?
My notes on Professor Sands’ lecture (https://ipccreport.files.wordpress.com/2015/10/notes-on-sands-lecture_ty.pdf) have been discussed elsewhere. For example by Judith Curry: http://judithcurry.com/2015/10/11/adjudicating-the-future-silencing-climate-dissent-via-the-courts/#more-20199.
I sent them to Professor Sands with a copy to Professor Liz Fisher (Professor of Environmental Law at Oxford and one of the organisers of the symposium). Here are their replies:
His: “Thank you very much indeed for getting in touch. I am a strong believer in competition amongst ideas, and welcome yours in that spirit. Best PS”
Hers: “Dear Robin Thank you for these. I am glad you found the lecture stimulating. Yours Liz”
But don’t give up on English lawyers. A good friend – a QC and retired judge – commented:
“I looked at the lecture and was very impressed by your reasoned and authoritative response … I think it is a very poor reflection on Professors Sands and Fisher that neither gave you the courtesy of a proper response to the points you made.”
Silence is the ultimate weapon of power.
– Charles de Gaulle
In reply to Robin Guenier, I too sent a copy of the Denning Lecture to Sands to offer him the chance to correct anything he thought unfair, and received a brief reply saying he didn’t mind it being circulated because he was in favor of free speech.
I wrote again asking whether he was also in favor of academic freedom of research and publication, but of course I got no answer to that, for the unanswerable is not often answered.
The IPCC is a foreign entity. Letting a foreign entity interfere with the law of the land is treason. Or should be.
The European Court of Justice already interferes with – indeed trumps -the law of the land in England
We know from transcripts that speakers at this event have ruled themselves out of ever working in an English court again. What we do not know is what the audience of this meeting thought and if they agreed with all of the speakers.
It is one thing to call for the removal of people from the legal profession how have declared themselves biased in advance, but we need to be careful that sensible people do not suffer.