Refusing work that causes climate breakdown
Refusing legal work that causes climate breakdown
by Eduard Zelinschi and Monika Sobiecki
The legal profession is increasingly grappling with the ethical predicaments posed by the climate and ecological crisis. Many lawyers are questioning whether they can, in good conscience, take on work that directly contributes to environmental harm.
Lawyers Are Responsible (LAR) is a group of lawyers working to tackle the climate & ecological crises by seeking to challenge the legal profession’s role in enabling the actions of the fossil fuel industry. LAR’s mission is encapsulated in a Declaration of Conscience, where lawyers pledge to withhold their services from (i) supporting new fossil fuel projects; and (ii) action against climate protesters exercising their democratic right of peaceful protest.
Recently, LAR commissioned a Counsel’s Opinion, which provides a crucial analysis of the rights and protections available to legal professionals in the United Kingdom who engage in ‘conscientious objection activities.’
A belief in the climate crisis and the moral imperative to combat it is protected under the Equality Act 2010. Such belief can qualify as a ‘philosophical belief’ affording legal protection against discrimination.
The landmark case of Grainger plc v Nicholson [2010] established the key criteria that climate-related beliefs must achieve to gain protection. These are that the belief (i) is genuinely held; (ii) is not simply an opinion or viewpoint based on the present state of information available; (iii) concerns a weighty and substantial aspect of human life and behaviour; (iv) attains a certain level of cogency, seriousness, cohesion and importance; and (v) is worthy of respect in a democratic society, is not incompatible with human dignity, and is not in conflict with the fundamental rights of others.
Legal professionals who refuse work on climate grounds could therefore be protected under provisions of the Equality Act 2010 prohibiting direct and indirect discrimination, harassment, and victimisation.
Direct discrimination occurs if a lawyer is treated less favourably due to their climate beliefs whereas indirect discrimination might arise if a law firm enforces a policy requiring all lawyers to work with fossil fuel clients, disproportionately disadvantaging those with climate-related objections. Harassment and victimisation protections apply if individuals suffer adverse treatment or a hostile work environment due to their stance, or for raising a complaint of discrimination, respectively.
While conscientious objection is legally protected at work, the existence of regulatory bodies like the Solicitors Regulation Authority and the Bar Standards Board add a layer of complexity. The ‘cab rank rule’ for barristers, for instance, generally obliges them to accept any case within their expertise. However, the cab rank rule is qualified by some exceptions, in particular Rule 21.10 which states that a barrister must refuse instructions where there is ‘a real prospect that [they] are not going to be able to maintain [their] independence’. There is an argument that strong climate convictions may compromise a lawyer’s independence in certain cases, potentially allowing them to refuse such work. For solicitors, the SRA has indicated that client selection can legitimately take climate concerns into account.
However, certain manifestations of climate-related beliefs could still lead to action taken against lawyers. For example, staff involved in posting public criticisms of firms or clients on social media could still face disciplinary action or action taken by their regulator if this behaviour is seen to be damaging to the firm or public trust in the profession.
A recent Court of Appeal decision in Higgs v Farmor’s School provides further insight into the protection of philosophical beliefs at work. The case concerned a school employee who was dismissed for social media posts expressing her views on gender and sexuality that she said were part of her Christian beliefs. The court found that while her beliefs were protected under the Equality Act 2010, the way they were manifested (as the posts were deemed to be offensive) could justify disciplinary action by her employer.
This ruling has further implications for conscientious objection in the legal profession. It reinforces that while beliefs about climate change are protected, the way in which those beliefs are acted upon or expressed in the workplace must be proportionate and lawful. If a lawyer refuses work on climate grounds in a respectful and professional manner in accordance with their conscience, they are likely to be protected. However, if they publicly criticise their employer or clients in a way that undermines their professional obligations, they could still face consequences for their actions.
Climate-related beliefs can qualify for protection under equality law, and refusing work on ethical grounds may be legally justifiable. However, employers and regulatory bodies can challenge the manifestation of beliefs if they interfere with legitimate business interests or professional standards. Any direct action on the grounds of conscience must therefore be proportionate and objectively justifiable, with its appropriateness determined by the specific context.