Carnwath disappointed ‘legal enforcement’ was not discussed at Cop 26

Former Supreme Court justice Lord Carnwath has said he was disappointed that ‘the question of legal enforcement and the role of legislation did not form part of the discussions’ at the recent Cop 26 conference in Glasgow.

Carnwath said he thought Cop 26 led to a ‘positive agreement’ on tackling climate change. He conceded it did not include ‘everything that everyone would want’, but added: ‘It is a big step in the right direction and I think it has provided genuine momentum to carry forward that work.’

However, he said it was ‘a pity’ the government had not used the UK’s ‘good story to tell’, which he said included the Climate Change Act 2008 and the independent Climate Change Committee.

‘I was disappointed, I must say, that the question of legal enforcement and the means and role of legislation did not form part of the discussions in Cop 26,’ Carnwath said at the Bar Council’s annual law reform lecture on Tuesday evening.

‘It seemed to me that this country, which has a great history of leading the rule of law and has a good story to tell in this particular area, might have taken the opportunity to provide guidance and discuss the ways in which legislation can achieve the objectives of tackling climate change.’

He added: ‘It did not form centre stage and perhaps … this might be something we should be looking at in the way ahead over the next year or so, so that we do put the law at the centre stage of the international debate.’

Carnwath also predicted that climate litigation may now focus on ‘climate-related financial risk’. ‘I think it is likely that climate litigation in the future will be led more by investors and shareholders directed at the responsibilities of companies and their directors,’ he said.

‘There is increased recognition by the global legal community that climate-related risk would be viewed by courts as reasonably foreseeable and that directors who fail to respond appropriately could be found to have breached their duty of care and diligence.’

He also suggested the provisions of section 172 of the Companies Act 2006, which requires directors to have regard to ‘the impact of the company’s operations on the community and the environment’, could be ‘tightened up’ as they are ‘a bit woolly’.

‘I think one is going to see the law develop naturally and corporations are going to realise and directors in particular are going to realise [that] if they don’t take these issues seriously then they are going to be liable to shareholder action and I think that is a very good thing,’ Carnwath added.