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Neutral Citation
Number: [2007] EWHC 2288 (Admin)
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Case No: CO/3615/2007
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IN THE HIGH COURT OF
JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
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Royal Courts of Justice
Strand, London, WC2A 2LL
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10/10/2007
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B e f o r e :
MR JUSTICE BURTON
____________________
Between:
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Stuart Dimmock
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Claimant
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- and -
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Secretary of State for Education and Skills
(now Secretary of State for Children, Schools and Families)
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Defendant
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____________________
Mr Paul Downes and Miss Emily Saunderson (instructed by
Malletts) for the Claimant
Mr Martin Chamberlain (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 27, 28 September, 1, 2 October 2007
____________________
HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©
Mr
Justice Burton:
- Stuart Dimmock is a father of
two sons at state school and a school governor. He has brought an
application to declare unlawful a decision by the then Secretary of State
for Education and Skills to distribute to every state secondary school in
the United Kingdom a copy of former US Vice-President Al Gore's film, An
Inconvenient Truth ("AIT"), as part of a pack containing four
other short films and a cross-reference to an educational website
("Teachernet") containing a dedicated Guidance Note. In the event
the film has already been distributed – no point is taken by the
Defendant on any delay by the Claimant in bringing his claim – so
that no injunction to restrain such distribution is possible. Plainly if
the decision and/or the distribution is declared unlawful, the films could
be recalled. Permission was refused on paper by Beatson J, but he ordered
that the renewed application for permission be adjourned so as to come on
as a "rolled-up" hearing at the same time as, and immediately
prior to, the listing of the hearing of the application itself if
permission were granted. In the event, after hearing argument, I granted
permission, and this is the judgment on the application. I have had very
considerable assistance from both the very able Counsel, Paul Downes for
the Claimant and Martin Chamberlain for the Defendant, and their
respective teams.
- The context and nub of the
dispute are the statutory provisions described in their side headings as
respectively relating to "political indoctrination"
and to the "duty to secure balanced treatment of political issues"
in schools, now contained in ss406 and 407 of the Education Act 1996,
which derive from the identical provisions in ss44 and 45 of the Education
(No 2) Act 1986. The provisions read as follows:
"406.
The local education authority, governing body and head teachers shall forbid É
the
promotion of partisan political views in the teaching of any subject in the
school.
407. The
local education authority, governing body and head teacher shall take such
steps as are reasonably practicable to secure that where political issues are
brought to the attention of pupils while they are
(a) in
attendance at a maintained school, or
(b)
taking part in extra-curricular activities which are provided or organised for
registered pupils at the school by or on behalf of the school
they are
offered a balanced presentation of opposing views."
- I viewed the film at the
parties' request. Although I can only express an opinion as a viewer
rather than as a judge, it is plainly, as witnessed by the fact that it
received an Oscar this year for best documentary film, a powerful,
dramatically presented and highly professionally produced film. It is
built round the charismatic presence of the ex-Vice-President, Al Gore,
whose crusade it now is to persuade the world of the dangers of climate
change caused by global warming. It is now common ground that it is not
simply a science film – although it is clear that it is based
substantially on scientific research and opinion – but that it is a
political film, albeit of course not party political. Its theme is not
merely the fact that there is global warming, and that there is a powerful
case that such global warming is caused by man, but that urgent, and if
necessary expensive and inconvenient, steps must be taken to counter it,
many of which are spelt out. Paul Downes, using persuasive force almost
equivalent to that of Mr Gore, has established his case that the views in
the film are political by submitting that Mr Gore promotes an apocalyptic
vision, which would be used to influence a vast array of political
policies, which he illustrates in paragraph 30 of his skeleton argument:
"(i)
Fiscal policy and the way that a whole variety of activities are taxed,
including fuel consumption, travel and manufacturing É
(ii) Investment
policy and the way that governments encourage directly and indirectly various
forms of activity.
(iii)
Energy policy and the fuels (in particular nuclear) employed for the future.
(iv)
Foreign policy and the relationship held with nations that consume and/or
produce carbon-based fuels."
- Martin Chamberlain, who, with
equal skill, has adopted a very realistic position on the part of the
Defendant, does not challenge that the film promotes political views.
There is thus no need to consider any analysis or definition of the word 'political'
(which is plainly not limited to party political) such as that in McGovern
v AG [1982] Ch 321 at 340.
- Channel 4 has produced a film
which was referred to during the hearing, although I have not seen it,
which presents a counter-view, a sceptical approach to the climate change
debate called "The Great Global Warming Swindle". This has not
been sent to schools, although there is reference to it in the Guidance
Note on the website, to which I have referred.
- It is clear that the Defendant
understandably formed the view that AIT was an outstanding film, and that
schools should be enabled to show it to pupils. News releases were issued
on 2 February 2007 by the Department for Education and Skills (I shall
ignore its subsequent change of name) ("DES") and by DEFRA, the
Department for Environment, Food and Rural Affairs. The DES news release
read in material part:
"Climate
change film distributed to all secondary schools.
The
powerful Al Gore film "An Inconvenient Truth" will form part of a
pack on climate change sent to every secondary school in England, Environment
Secretary David Milliband and Education Secretary Alan Johnson announced today.
The film documents former US Vice President Al Gore's personal mission to highlight
the issues surrounding global warming and inspire actions to prevent it.
Mr
Milliband said:
'The
debate over the science of climate change is well and truly over, as
demonstrated by the publication of today's report by the IPCC' [Intergovernmental Panel on Climate
Change]. 'Our energies should now be channelled into how we respond in an
innovative and positive way in moving to a low carbon future. I was struck by
the visual evidence the film provides, making clear that the changing climate
is already having an impact on our world today, from Mount Kilimanjaro to the
Himalayan mountains. As the film shows, there is no reason to feel helpless in
the face of this challenge. Everyone can play a part along with government and
business in making a positive contribution and helping to prevent climate
change.'
Mr
Johnson added:
'With
rising sea temperatures, melting icecaps and frequent reminders about our own
'carbon footprints', we should all be thinking about what we can do to preserve
the planet for future generations. Children are the key to changing society's
long term attitude to the environment. Not only are they passionate about
saving the planet but children also have a big influence over their own
family's lifestyles and behaviour. Al Gore's film is a powerful message about
the fragility of our planet and I am delighted that we are able to make sure
that every secondary school in the country has a copy to stimulate children
into discussing climate change and global warming in school classes.'"
- In the DEFRA leaflet there was
the same quotation from Mr Milliband, but, instead of the quotation from
Mr Johnson, there was this one sentence summary:
"Mr
Johnson said that influencing the opinions of children was crucial to
developing a long term view on the environment among the public."
- After the pre-action
correspondence from the Claimant, and on the very day the Judicial Review
Claim Form was issued, a somewhat differently worded news release was
issued by the Defendant dated 2 May 2007:
"English
Secondary Schools Climate Change Pack.
A
resource pack to help teachers and pupils explore and understand the issues
surrounding climate change was sent to every secondary school in England today.
The pack, which includes the Al Gore film An Inconvenient Truth and a number of
other resources, was developed by DEFRA and the Department for Education and
Skills. It is accompanied by online teaching guides showing how to use the
resources in the pack in science, geography and citizenship lessons.
Schools
Minister Jim Knight said:
'Climate
change is one of the most important challenges facing our planet today. This
pack will help to give young people information and inspiration to understand
and debate the issues around climate change, and how they as individuals and members
of the community should respond to it.'"
- The explanation for the
distribution to all schools is now given in these proceedings in the
witness statement of Ms Julie Bramman of the DES:
"8.
ÉI should say at once that it was recognised from the start that parts of the
Film contained views about public policy and how we should respond to climate
change. The aim of distributing the film was not to promote those views, but
rather to present the science of climate change in an engaging way and to
promote and encourage debate on the political issues raised by that science."
- I turn to deal with the
outstanding issues of law relating to the construction of the two relevant
statutory provisions. These are, in s406, the meaning of partisan, as in partisan political views: and the meaning and ambit of the duty of the local education
authority etc to "forbid the promotion of partisan political views
in the teaching of any subject in the school". In s407 the dispute has been as to the meaning of the duty
to "offer a balanced presentation of opposing views" when "political issues are brought to the attention
of pupils".
Partisan
- Again there was not in the
event much difference between the parties in this regard. Although there
was some earlier suggestion on behalf of the Defendant that partisan might relate to 'party political', it soon became clear that it
could not be and is not so limited. Mr Downes pointed to dictionary
definitions suggesting the relevance of commitment, or adherence to a
cause. In my judgment, the best simile for it might be "one sided". Mr Downes, in paragraph 27 of his skeleton argument,
helpfully suggested that there were factors that could be considered by a
court in determining whether the expression or promotion of a particular
view could evidence or indicate partisan promotion of those views:
"(i)
A superficial treatment of the subject matter typified by portraying factual or
philosophical premises as being self-evident or trite with insufficient
explanation or justification and without any indication that they may be the
subject of legitimate controversy; the misleading use of scientific data;
misrepresentations and half-truths; and one-sidedness.
(ii) The
deployment of material in such a way as to prevent pupils meaningfully testing
the veracity of the material and forming an independent understanding as to how
reliable it is.
(iii) The
exaltation of protagonists and their motives coupled with the demonisation of
opponents and their motives.
(iv) The
derivation of a moral expedient from assumed consequences requiring the viewer
to adopt a particular view and course of action in order to do
"right" as opposed to "wrong."
This
is clearly a useful analysis.
Local
educational authority to forbid the promotion of partisan views in the teaching
of any subject in the school
- Mr Downes submits that, if the
film, which is sent to schools in order to facilitate its showing, is
itself a partisan political film, one that promotes partisan political
views, and if schools then make
available such film to its teachers, and if teachers then show such film
to their pupils, then inevitably there is the promotion of partisan
political views in the teaching of any subject
in the school, which is thus not only not being forbidden by the local education authority (and the DES), but being
positively facilitated by them. Thus he submits, irrespective of any
publication of guidance, the breach of the statute is, as he puts it,
irremediable. I do not agree, and prefer the submissions of Mr
Chamberlain. The statute cannot possibly mean that s406 is breached
whenever a partisan political film is shown to pupils in school time. Mr
Downes has to assert that there is, depending on the context, an exception
that can be made in respect of the teaching of history, but I cannot see
how, on his interpretation of the statute, any such exception can be
carved out. It must be as much of a breach of the statute, on his
construction, for the school or a teacher to show in a history class a
film for example of Nazi or Leninist/Stalinist propaganda, or for that
matter to make available such literature in documentary form, or to show a
racist or an anti-racialist film in a history or a citizenship class, as
it is to show or distribute any other film or document which promotes
partisan political views. Such an approach however construes the word
"promotion" as if it meant nothing
more than 'presentation'. What is forbidden by the statute is, as the side
heading makes clear, "political indoctrination". If a teacher uses the platform of a classroom to promote partisan political views in the teaching of any subject, then that would offend against the statute. If on the
other hand a teacher, in the course of a school day and as part of the
syllabus, presents to his pupils, no doubt with the appropriate setting
and with proper tuition and debate, a film or document which itself
promotes in a partisan way some political view, that cannot possibly in my
judgment be the mischief against which the statute was intended to protect
pupils. It would not only lead to bland education, but to education which
did not give the opportunity to pupils to learn about views with which
they might, vehemently or otherwise, either agree or disagree. I conclude
that the mere distribution by the Defendant to schools to facilitate their
showing the film, and accompanied by guidance, to which I shall refer, is
not per se, or irremediably, a promotion of those partisan political
views.
Balanced
Presentation
- On the case for the Defendant,
with which, as can be seen, I agree, the issue of whether there is
facilitated by the DES what is forbidden, namely the promotion by the school of partisan political views, depends in substantial part on the context, and in this case on
its Guidance Note. Such Guidance Note is also obviously relevant in
relation to s407. On occasions during the hearing, Mr Chamberlain
indicated that there were matters that could be left to the good sense and
the knowledge of teachers, whether of science, geography or of
citizenship. Trust in such teachers is of course, one hopes, always a
given. However:
i) in this
case it is the DES itself which is putting teachers all over the country into
this position by, unusually, supplying a film to every state secondary school
and, as indeed the Defendant itself has recognised by supplying the very
Guidance Note, it becomes the more important to give assistance to those
teachers.
ii)
all the more so where even the science and geography teachers are unlikely to
be wholly familiar with the detailed questions which underlie the film, or
indeed with the full analysis of the present scientific approach to climate
change which is in detail set out in the IPCC reports; not to speak of the
teachers of citizenship, who are bound to take the scientific and geographical
aspects of the film on trust.
- Hence, consideration of whether
there is a breach of s407 must also be given in the light of the Guidance
Note. It became quickly clear in the course of the hearing that my
judgment was, and indeed remains, that it is, not least in the circumstances
above described, insufficient simply to supply in the pack a reference to
the website, given that all teachers must be enabled to realise how
important the Guidance Note is, but rather that it should be essential
that the Guidance Note itself should be a constituent part of the pack.
The Defendant, though contending that it had been sufficient to put the
guidance on "Teachernet" (from which there had been substantial
downloads of it since its publication), readily accepted that it could and
would easily be distributed in hard copy if I considered this necessary,
which I do. But there remains another respect in which Mr Downes relies on
what he submits to be an insurmountable hurdle for the Defendant. He
submits that, in order to comply with its duty under s407 to "offer
a balanced presentation of opposing views", a school must give what he calls, by reference to the
position in the media, "equal air time".
- He submits that, if the
political issues, as per the content of AIT, are to be brought to the
attention of pupils, then there must be an
equivalent and equal presentation of counter-balancing views. Mr
Chamberlain submits that that is misconceived, that the statute cannot
possibly prescribe in relation to every political issue or political view,
howsoever well founded or well reasoned, that there must be an identical
presentation of the converse. He suggests that the nearest analogy would
be the duty of a trial judge in setting out the prosecution and defence
case before a jury. There is a helpful discussion in this regard in R v
Nelson [1997] Crim LR 234 in the
judgment of the Court given by Simon Brown LJ, as he then was. The
suggestion was that there had been a 'lack of balance' in the judge's
summing up. After making it clear that a trial judge was entitled, if not
obliged, not to rehearse the defence case blandly and uncritically in the
summing up, Simon Brown LJ indicated that "the truth usually is
that the lack of balance is to be found in the weight and worth of the
rival cases, an imbalance which the summing up, with perfect propriety,
then fairly exposes".
- There is nothing to prevent (to
take an extreme case) there being a strong preference for a theory –
if it were a political one – that the moon is not made out of
green cheese, and hence a minimal, but dispassionate, reference to the
alternative theory. The balanced approach does not involve equality. In my
judgment, the word "balanced" in s407
means nothing more than fair and dispassionate.
The
Film
- I turn to AIT, the film. The
following is clear:
i) It is
substantially founded upon scientific research and fact, albeit that the
science is used, in the hands of a talented politician and communicator, to
make a political statement and to support a political programme.
ii)
As Mr Chamberlain persuasively sets out at paragraph 11 of his skeleton:
"The
Film advances four main scientific hypotheses, each of which is very well
supported by research published in respected, peer-reviewed journals and
accords with the latest conclusions of the IPCC:
(1) global
average temperatures have been rising significantly over the past half century
and are likely to continue to rise ("climate change");
(2) climate
change is mainly attributable to man-made emissions of carbon dioxide, methane
and nitrous oxide ("greenhouse gases");
(3) climate
change will, if unchecked, have significant adverse effects on the world and
its populations; and
(4) there
are measures which individuals and governments can take which will help to
reduce climate change or mitigate its effects."
These
propositions, Mr Chamberlain submits (and I accept), are supported by a vast
quantity of research published in peer-reviewed journals worldwide and by the
great majority of the world's climate scientists. Ms Bramman explains, at
paragraph 14 of her witness statement, that:
"The
position is that the central scientific theme of Al Gore's Film is now accepted
by the overwhelming majority of the world's scientific community. That
consensus is reflected in the recent report of the IPCC. The role of the IPCC
is to assess on a comprehensive, objective, open and transparent basis the
scientific, technical and socio-economic information relevant to understanding
the scientific basis of risk of human-induced climate change, its potential
impacts and options and adaptation and mitigation. Hundreds of experts from all
over the world contribute to the preparation of IPCC reports, including the
Working Group I report on Climate Change 2007: The physical Science basis of
climate change, published on 2 February 2007 and the most recent Mitigation of
Climate Change, the Summary for Policy-makers published by Working Group III on
4 May 2007. A copy of both documents are annexed to the Witness Statement of Dr
Peter Stott. The weight of scientific evidence set out by the IPCC confirms
that most of the global average warming over the last 50 years is now regarded
as "very likely" to be attributable to man-made greenhouse gas
emissions."
For
the purposes of this hearing Mr Downes was prepared to accept that the IPCC
Fourth Assessment Report represented the present scientific consensus.
iii)
There are errors and omissions in the film, to which I shall refer, and
respects in which the film, while purporting to set out the mainstream view
(and to belittle opposing views), does in fact itself depart from that
mainstream, in the sense of the "consensus" expressed in the IPCC
reports.
- Mr Chamberlain persuasively
pointed out in his skeleton (at paragraph 7(c)):
"Scientific
hypotheses (such as the hypothesis that climate change is mainly attributable
to man-made emissions of greenhouse gases) do not themselves constitute
"political views" within the meaning of s407, even if they are
doubted by particular political groups. But, in any event, nothing in the 1996 Act
(or elsewhere) obliged teachers to adopt a position of studied neutrality
between, on the one hand, scientific views which reflect the great majority of
world scientific opinion and, on the other, a minority view held by a few
dissentient scientists."
- Of course that is right, and
ss406 and 407 are not concerned with scientific disputes or with the
approach of teachers to them. However, as will be seen, some of the
errors, or departures from the mainstream, by Mr Gore in AIT in the course
of his dynamic exposition, do arise in the context of alarmism and
exaggeration in support of his political thesis. It is in that context
that the Defendant, in actively distributing the film to all schools, may
need to make clear that:
i) some or
all of those matters are not supported/promoted by the Defendant [s406].
ii)
there is a view to the contrary, i.e. (at least) the mainstream view [s407].
- Mr Chamberlain also rightly
points out, at paragraph 7(a) of his skeleton that:
"The
Film is intended to be used by qualified teachers, not as a substitute for, but
as a supplement to, other teaching methods and materials. The original
Guidance, prepared by a panel of experienced educationalists, identified those
parts of the Film's scientific presentation where further context or qualification
was required and provided it, with suitable references and links to other
reputable sources of information. It encouraged teachers to use the Film as a
vehicle for the development of analytic and critical skills. It did not attempt
to hide the fact that some scientists do not agree with the mainstream view of
climate change and even made reference to The Great Global Warming Swindle
(together with a website containing a critique of it)."
- However, for those same two
reasons set out in paragraph 19 above , the teachers must at least be put
into a position to appreciate when there are or may be material errors of
fact, which they may well not, save for the most informed science
teachers.
- I have no doubt that Dr Stott,
the Defendant's expert, is right when he says that:
"Al
Gore's presentation of the causes and likely effects of climate change in the
film was broadly accurate."
Mr
Downes does not agree with this, but to some extent this is because the views
of the Claimant's expert, Professor Carter, do not accord with those of Dr
Stott, and indeed are said by Dr Stott in certain respects not to accord with
the IPCC report. But Mr Downes sensibly limited his submissions to concentrate
on those areas where, as he submitted, even on Dr Stott's case there are errors
or deviations from the mainstream by Mr Gore. Mr Downes produced a long
schedule of such alleged errors or exaggerations and waxed lyrical in that
regard. It was obviously helpful for me to look at the film with his critique
in hand.
- In the event I was persuaded
that only some of them were sufficiently persuasive to be relevant for the
purposes of his argument, and it was those matters – 9 in all
– upon which I invited Mr Chamberlain to concentrate. It was
essential to appreciate that the hearing before me did not relate to an
analysis of the scientific questions, but to an assessment of whether the
'errors' in question, set out in the context of a political film, informed
the argument on ss406 and 407. All these 9 'errors' that I now address are
not put in the context of the evidence of Professor Carter and the
Claimant's case, but by reference to the IPCC report and the evidence of
Dr Stott.
The
'Errors'
1.
'Error' 11: Sea level rise of up to 20 feet (7 metres) will be caused by
melting of either West Antarctica or Greenland in the near future.
- In scene 21 (the film is carved
up for teaching purposes into 32 scenes), in one of the most graphic parts
of the film Mr Gore says as follows:
"If
Greenland broke up and melted, or if half of Greenland and half of West
Antarctica broke up and melted, this is what would happen to the sea level in
Florida. This is what would happen in the San Francisco Bay. A lot of people
live in these areas. The Netherlands, the Low Countries: absolutely
devastation. The area around Beijing is home to tens of millions of people.
Even worse, in the area around Shanghai, there are 40 million people. Worse
still, Calcutta, and to the east Bangladesh, the area covered includes 50
million people. Think of the impact of a couple of hundred thousand refugees
when they are displaced by an environmental event and then imagine the impact
of a 100 million or more. Here is Manhattan. This is the World Trade Center
memorial site. After the horrible events of 9/11 we said never again. This is
what would happen to Manhattan. They can measure this precisely, just as
scientists could predict precisely how much water would breach the levee in New
Orleans."
- This is distinctly alarmist,
and part of Mr Gore's 'wake-up call'. It is common ground that if indeed
Greenland melted, it would release this amount of water, but only
after, and over, millennia, so that the Armageddon scenario he predicts,
insofar as it suggests that sea level rises of 7 metres might occur in the
immediate future, is not in line with the scientific consensus.
2.
'Error' 12: Low lying inhabited Pacific atolls are being inundated because of
anthropogenic global warming.
- In scene 20, Mr Gore states
"that's why the citizens of these Pacific nations have all had to
evacuate to New Zealand". There is no evidence of
any such evacuation having yet happened.
3.
'Error' 18: Shutting down of the "Ocean Conveyor".
- In scene 17 he says, "One
of the ones they are most worried about where they have spent a lot of
time studying the problem is the North Atlantic, where the Gulf Stream
comes up and meets the cold wind coming off the Arctic over Greenland and
evaporates the heat out of the Gulf Stream and the stream is carried over
to western Europe by the prevailing winds and the earth's rotation ...
they call it the Ocean Conveyor É At the end of the last ice age É that
pump shut off and the heat transfer stopped and Europe went back into an
ice age for another 900 or 1000 years. Of course that's not going to
happen again, because glaciers of North America are not there. Is there
any big chunk of ice anywhere near there? Oh yeah [pointing at Greenland]". According to the IPCC, it is very
unlikely that the Ocean Conveyor (known technically as the Meridional
Overturning Circulation or thermohaline circulation) will shut down in the
future, though it is considered likely that thermohaline circulation may
slow down.
4.
'Error' 3: Direct coincidence between rise in CO2 in the atmosphere
and in temperature, by reference to two graphs.
- In scenes 8 and 9, Mr Gore
shows two graphs relating to a period of 650,000 years, one showing rise
in CO2 and one showing rise in temperature, and asserts (by
ridiculing the opposite view) that they show an exact fit. Although there
is general scientific agreement that there is a connection, the two graphs
do not establish what Mr Gore asserts.
5.
'Error' 14: The snows of Kilimanjaro.
- Mr Gore asserts in scene 7 that
the disappearance of snow on Mt Kilimanjaro is expressly attributable to
global warming. It is noteworthy that this is a point that specifically
impressed Mr Milliband (see the press release quoted at paragraph 6
above). However, it is common ground that, the scientific consensus is
that it cannot be established that the recession of snows on Mt
Kilimanjaro is mainly attributable to human-induced climate change.
6.
'Error' 16: Lake Chad etc
- The drying up of Lake Chad is
used as a prime example of a catastrophic result of global warming.
However, it is generally accepted that the evidence remains insufficient to
establish such an attribution. It is apparently considered to be far more
likely to result from other factors, such as population increase and
over-grazing, and regional climate variability.
7.
'Error' 8: Hurricane Katrina.
- In scene 12 Hurricane Katrina
and the consequent devastation in New Orleans is ascribed to global
warming. It is common ground that there is insufficient evidence to show
that.
8.
'Error' 15: Death of polar bears.
- In scene 16, by reference to a
dramatic graphic of a polar bear desperately swimming through the water
looking for ice, Mr Gore says: "A new scientific study shows that
for the first time they are finding polar bears that have actually drowned
swimming long distances up to 60 miles to find the ice. They did not find
that before." The only scientific
study that either side before me can find is one which indicates that four
polar bears have recently been found drowned because of a storm. That is
not to say that there may not in the future be drowning-related deaths of
polar bears if the trend of regression of pack-ice and/or longer open
water continues, but it plainly does not support Mr Gore's description.
9.
'Error' 13: Coral reefs.
- In scene 19, Mr Gore says:
"Coral reefs all over the world because of global warming and other
factors are bleaching and they end up like this. All the fish species that
depend on the coral reef are also in jeopardy as a result. Overall specie
loss is now occurring at a rate 1000 times greater than the natural
background rate." The actual scientific
view, as recorded in the IPCC report, is that, if the temperature were to
rise by 1-3 degrees Centigrade, there would be increased coral bleaching
and widespread coral mortality, unless corals could adopt or acclimatise,
but that separating the impacts of climate change-related stresses from
other stresses, such as over-fishing and polluting, is difficult.
The
Guidance
- As set out in paragraph 14
above, I am satisfied that, in order to establish and confirm that the
purpose of sending the films to schools is not so as to "influence
the opinions of children" (paragraph 7 above) but
so as to "stimulate children into discussing climate change and
global warming in school classes" (paragraph
6 above) a Guidance Note must be incorporated into the pack, and that it
is not sufficient simply to have the facility to cross-refer to it on an
educational website. The format of the Guidance Note put on the website is
helpful, in splitting up consideration by reference to the three different
categories of teachers who may make use of the film, those teaching
science, geography and citizenship, and to include a chart, by reference
to the various scenes of the film, which both includes descriptive
passages and raises questions for potential discussion. I have no doubt that
some teachers of science or geography will have a much broader knowledge
of the subject than is simply contained in the film and in the existing
Guidance Note, and will be in a position to assist in the stimulation of
such discussion. However, as set out in paragraph 13 above, that is
plainly not so for the majority of teachers. In any event it is important
that, in such guidance, any serious apparent errors should be identified,
not only so as to encourage informed discussion, but also so that it should
not appear that the Defendant, and, as a result of the Defendant sending
the film to schools, schools, are promoting partisan views by giving their imprimatur to
it. That is not to say of course that there needs to be comment on every
single aspect in the film in the Guidance Note nor discussion of every
scientific dispute. However, it is noteworthy that in the (unamended)
Guidance Note there is no or no adequate discussion at all, either by way
of description or by way of raising relevant questions for discussion, in
relation to any of the above 9 'errors', the first two of which are at any
rate apparently based on non-existent or misunderstood evidence, and the
balance of which are or may be based upon lack of knowledge or
appreciation of the scientific position, and all of which are significant
planks in Mr Gores's 'political' argumentation.
- The introduction to the
Guidance Note, as it stands, indicated that "the pack seeks to
help teachers to engage pupils with É questions, discuss the facts and
test the science". But the absence of
comment about and correction of the 'errors' detracts from that prospect.
Attention was drawn to ss406 and 407, but that simple reference to the
statutory provisions would not, without identifying the problematic areas,
enable the teachers to identify, as they were encouraged to do:
"Areas
where there is undisputed scientific consensus É
Areas
where there is a strong scientific consensus but where a small minority of
scientists do not agree É
Areas
where there is political debate."
- The lack of addressing of the
'errors' in the existing Guidance Note was exacerbated, as Mr Downes
submitted, by other passages in it:
i) In a
discussion of the relationship between carbon dioxide and rising temperature, a
question was raised for "possible teaching activities" namely: "Is CO2
the cause of rising temperatures or is rising CO2 caused by rising
temperatures? Sceptics say we don't know – what is the explanation in
AIT?" Plainly
this is unsatisfactory, since it is common ground that the explanation in AIT
is at best materially incomplete (see the fourth 'error' above).
ii)
In the part of the Guidance Note which relates to discussion in citizenship
classes, teachers are encouraged to raise the questions:
"Consider
the reason why politicians may have wanted to ignore climate change? É
What
pressures can be put on politicians to respond to climate change?"
iii)
In the suggested planning of a whole day event on climate change for
citizenship classes, there is no suggestion at all of the discussion of
opposing views to that of Mr Gore, and the list of "Suggested
Organisations for the Climate Change Fair and as Guest Speakers" is limited to organisations
which support his views.
- As a result of considerable
discussion in Court, which I, and both Counsel, strained to avoid becoming
a drafting session, a new Guidance Note has now been produced which the
Defendant proposes to include in the pack, and which, to my satisfaction,
addresses all of the above 9 'errors', both by drawing specific attention to
where Mr Gore may be in error and/or in any event where he deviates from
the consensus view as set out in the IPCC report, and by, where
appropriate, raising specific questions for discussions. I need only
refer, by way of example, to the insertion in respect of scene 21, of the
following passage relating to the first 'error', with regard to sea level
rise:
"Note:
Pupils might get the impression that sea-level rises of up to 7m (caused by the
complete melting of Greenland or half of Greenland and half of the West
Antarctic shelf) could happen in the next decades. The IPCC predicts that it
would take millennia for rises of that magnitude to occur. However, pupils
should be aware that even small rises in sea level are predicted to have very
serious effects. The IPCC says that "many millions more people are
projected to be flooded every year due to sea-level rise by the 2080s"
(i.e. within pupils' own lifetimes)."
References
are helpfully now given to the IPCC report.
- It may also be interesting to
note what the Defendant has inserted in relation to the second of the
above 'errors', with regard to the evacuation to New Zealand:
"Note:
It is not clear what "Pacific nations" Gore is referring to in the
section dealing with evacuations to New Zealand. It is not clear that there is
any evidence of evacuations in the Pacific due to human-induced climate change.
Teaching staff may wish to use this as an example of the need in scientific
presentation to give proper references for evidence used. However, the IPCC does
predict that for small islands sea level rises will exacerbate storm surges and
other coastal hazards and that, by the middle of this century, climate change
will reduce water resources to the point where they become insufficient to meet
demands in low-rainfall periods."
- As for the particular matters
in the original Guidance Note set out in paragraph 36 above:
i) With
regard to the first example, the last question "What is the explanation
in AIT?" is
now to be replaced by "What does the IPCC say?"
ii)
The discussion topics so far as concerns citizenship are altered. The first
question has now become:
"Consider
the reasons why politicians may have chosen not to act on climate change?"
Significantly
the reference to 'putting pressures on politicians' is removed.
iii)
The reference to the suggested organisations is to be changed and balanced.
One
particular change in the section on "Citizenship: Planning a whole day
event on climate change" is of some significance:
"Invite
in a guest speaker to go over the issues raised across the day and discuss
solutions É But please remember that teaching staff must not promote any particular political
response to climate change and, when such potential responses are brought to
the attention of pupils, must try to ensure that pupils are offered a balanced
presentation of opposing views."
- The amended Guidance Note
contains in its introduction a new and significant passage:
"[Schools]
must bear in mind the following points
o
AIT
promotes partisan political views (that is to say, one sided views about
political issues)
o
teaching
staff must be careful to ensure that they do not themselves promote those
views;
o
in
order to make sure of that, they should take care to help pupils examine the
scientific evidence critically (rather than simply accepting what is said at
face value) and to point out where Gore's view may be inaccurate or departs
from that of mainstream scientific opinion;
o
where
the film suggests that views should take particular action at the political
level (e.g. to lobby their democratic representatives to vote for measures to
cut carbon emissions), teaching staff must be careful to offer pupils a
balanced presentation of opposing views and not to promote either the view
expressed in the film or any other particular view.
The
sceptical view
Teaching
staff will be aware that a minority of scientists disagree with the central
thesis that climate change over the past half-century is mainly attributable to
man-made greenhouse gases. However, the High Court has made clear the law does
not require teaching staff to adopt a position of neutrality between views
which accord with the great majority of scientific opinion and those which do
not [this was
anticipatory of my decision].
The notes
set out in this guidance have been drafted in accordance with the Fourth
Assessment Reports of the [IPCC], published in 2007 under the auspices of the United Nations
and the World Meteorological Organisation. AIT was made before these latest
reports had been published, but it is important that pupils should have access
to the latest and most authoritative scientific information. The IPCC derives
its credibility from the fact that its conclusions are drawn from a
"meta-review" of a massive number of independently peer-reviewed
journal articles, and from the expertise and diversity of those on the
reviewing panels."
This
is in my judgment necessary and judicious guidance.
- There were four other 2-minute
"Climate Change" films in the pack, about two of which Mr Downes
made complaint, but I am satisfied that they gave rise to no separate
complaint of breach of s406 or s407 and that their continued inclusion in
the pack is of no materiality.
- There are two fundamental
questions for me to answer:
i) Whether,
by dispatching the film, with the cross-reference in the pack to the Guidance
Note, as it then stood on the website, the Defendant was not taking steps to forbid but rather itself promoting
partisan political views.
ii)
Whether, by distributing/not withdrawing the film but accompanying it by a hard
copy of the Guidance Note, amended in accordance with what has been fully
discussed during the hearing and referred to in my judgment, the Defendant is
now complying with ss406 and 407.
- The Defendant does not intend
now to continue with the old position, but has already amended the
Guidance Note on the website, and stands ready to distribute it in hard
copy if my judgment permits. There is no longer therefore any need for
relief in respect of the film otherwise than as accompanied by the present
Guidance Note. Mr Chamberlain submits that, even without the changes, the
Defendant was not in breach of ss406 or 407. Mr Downes submits, as set out
in paragraph 12 above, that the breach of s406 is irremediable, by virtue
of the simple sending to schools of the film, irrespective of any
accompanying Guidance Note, and in any event does not accept that the
amendments to the Guidance Note are sufficient to comply with any
palliative under s406 or duty under s407.
- I am satisfied that, with the
Guidance Note, as amended, the Defendant is setting the film into a
context in which it can be shown by teachers, and not so that the
Defendant itself or the schools are promoting partisan views contained in the film, and is putting it into a context in which a
balanced presentation of opposing views can and will be offered. There is
no call for the Defendant to support the more extreme views of Mr Gore
– indeed the Government's adherence is to the IPCC views - but the
present package in my judgment does enough to make it clear both what the
mainstream view is, insofar as Mr Gore departs from it, and that there are
views of "sceptics" who do not accept even the consensus views
of the IPCC. The Defendant will not be promoting partisan political
views by enabling the showing of AIT
in the context of the discussions facilitated by the Guidance Note, and is
not under a duty to forbid the presentation
of it in that context.
- As for the position prior to
the hearing and the changes in the Guidance Note, as I have indicated, it
is not necessary for me to grant any relief in relation to it, but I must
express a conclusion about it. It is plain that the original press
releases of February were enthusiastically supportive of the film, and did
initially indicate an intent to "influence". However there is no mention at that stage of any
accompanying Guidance Note. When the film was actually sent out, it was
accompanied by the reference to the website where the Guidance could be
found, and to that extent some discussion was facilitated. However the
Guidance had the flaws to which I have referred in paragraphs 34 to 36
above. As Mr Downes has pointed out, if it has taken this hearing to
identify and correct the flaws, it is impossible to think that teachers
could have done so untutored. I am satisfied that, because insufficient
attempt was made to counter the more one-sided views of Mr Gore, and, to
some extent, by silence in the Guidance Note, those views were adopted, or
at any rate discussion of them was not facilitated (and no adequate warning
was given), there would have been a breach of ss406 and 407 of the Act but
for the bringing of these proceedings and the conclusion that has now
eventuated. Indeed the spirit of co-operation in which this hearing has
been carried through is a tribute to constructive litigation.
- In the circumstances, and for
those reasons, in the light of the changes to the Guidance Note which the
Defendant has agreed to make, and has indeed already made, and upon the
Defendant's agreeing to send such amended Guidance Note out in hard copy,
no order is made on this application, save in relation to costs, on which
I shall hear Counsel.
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