The Law Society recently updated its guidance on climate change for solicitors, introducing references to the impact of risks related to biodiversity and nature loss, alongside climate risks. This is because biodiversity and nature loss and climate heating are interconnected, each potentially compounding the other, and their root causes are often the same. While this is understood in many quarters, the updated guidance has made this explicit.
Many in the profession may be relieved to learn that, in terms of the volume of amendments made to the guidance and also the detail provided, these are relatively light-touch. They have been restricted to the annexes of the guidance, which contain practical examples of risks which may be relevant for solicitors to consider in their work. They are also generally additive to what is already there in relation to climate: extending the range of risks to be considered in various cases, but not introducing a whole new set of causes.
The modest level of amendments should not be taken as a reflection of the relevance of the subject matter. This has been reinforced by recent events. First, the government published a national security assessment of the risks to the UK posed by global biodiversity loss and ecosystem collapse. Written by the Joint Intelligence Services (and first delayed, then moderated by Downing Street), this is a sobering assessment of how vulnerable we are, not only to the negative impact on the natural environment immediately around us, but also to collapse of critical features of our global ecosystem such as the great forests, glaciers and ice caps, and the oceans and life within them. The knock-on effects may affect all our clients to varying degrees. Some may need to consider it sooner than others, particularly where they can mitigate those impacts.
Second, the conflict in the Gulf is demonstrating how reliance on certain items such as fertilisers and fuel can quickly create national security issues, leading to the need to reconsider our approach to land use.
It is worth reiterating that the purpose of the guidance is not to increase the burden on solicitors by giving them something else to become experts in. Rather, in response to the reality that climate and nature-related risks increasingly have the potential to affect greater numbers of clients, the guidance offers a means of engaging with the topic, enabling readers to get a sense of the relevance of the issue in different contexts. It provides examples of where they may look for perspectives which are either definitive now (for example, the cases of Finch and Verein KlimaSeniorinnen Schweiz) or indicative of potential directions of travel (for example, the KC opinions on company directors needing to be mindful of relevant nature-related risks; and that compliance with the statutory duty placed on directors in section 393(1) of the Companies Act 2006 for company accounts to present a true and fair view of a company’s financial position should reflect such risks affecting the company).
It is not necessarily the case that the latter category will require immediate action, but it is clear that the situation is changing swiftly. It is therefore worth solicitors having a sense of what may be coming down the track to avoid finding themselves playing catch-up. As interpretations for fiduciary duties of clients adapt to reflect changes of context, so it seems equally appropriate that solicitors remain alive to equivalent shifts in interpretation of their own fiduciary duties.
Given that the two real-world examples mentioned (the national security assessment and the war) have arisen since the guidance update was drafted, it is fair to say the Law Society will need to be proactive in keeping abreast of future developments and update the guidance again before too long to keep it pertinent and valuable for the profession. More focused guidance will also be helpful, with plans in train for some aimed at in-house counsel.
David Hunter is senior counsel at Bates Wells and a member of the Law Society Climate Change Committee. He writes in a personal capacity
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