18 January 2008
Even the most well-meaning and innocent of decisions can fall foul of the law, as the government found when it sent schools copies of An inconvenient truth, Al Gore's film about global warming
Climate change is becoming an increasingly important issue for the public sector. Just before Christmas, Prime Minister Gordon Brown instructed ministers to assess the climate cost of any new policies and allocate a notional 'carbon price' to decisions.
Local government, however, is subject to a tight legal regime. Each council needs to consider its legal powers and obligations when seeking to implement eco-friendly policies. This even applies to making citizens aware of the issues. There are two sides to every argument and not everyone is convinced that the science is as compelling as some would have you believe, in this case former US vice-president Al Gore.
We are, of course, referring to the film An inconvenient truth, which is based on Gore's well-known lecture tour and slide show on global warming and climate change. There can be no doubt that he has been a faithful ambassador on this subject and the publicity that he has gained (including being awarded the Nobel Peace Prize recently) has given him a platform slightly higher than others might achieve.
Accordingly, in February last year, the then secretary of state for education and skills, Alan Johnson, decided to include a copy of the film in a pack being distributed to every secondary school in the country, to be used as part of their teaching on this subject. The pack also contained other short films and a link to a web-based guidance note on the subject.
This decision was challenged by Stuart Dimmock, a school governor and parent, with two sons at a state school. He objected that the film was of a political nature and promoted partisan political views and claimed that this was in breach of the Education Act 1996. Under sections 406 and 407 of that Act, each local authority is under a duty to forbid the promotion of partisan political views and to ensure that where political views are considered, they are part of a balanced presentation offering different views.
The first element to consider is the issue of An inconvenient truth being a political film. It is not party political, of course, but nevertheless states that global warming is created by mankind, requiring expensive and difficult steps to be taken to counter it. It seeks to influence fiscal, investment, energy and foreign policies and so is undoubtedly political in its substance.
The next issue is the prohibition of material of a partisan — or one-sided — nature. It is commonly agreed that Gore is passionate about this subject but portrays it in a way that seeks to influence a particular view. The film does not seek to present all the evidence in a balanced way, and instead goes for the dramatic effect. This obviously works, as the film has achieved both commercial and critical success.
The secretary of state argued that the purpose of distributing the film was not to promote the views contained in it but to present the science of climate change in an engaging way and promote and encourage debate on the subject.
However, the legal duty requires a balance to be presented in the consideration of political material. Here the secretary of state pointed to the guidance note that accompanied the film packs and contained a lot of other material. However, the note was on the website Teachernet and had to be downloaded (rather than being with the films in hard copy). It was suggested that this reduced its impact.
As far as the views pronounced are concerned, there was acceptance that Gore's comments are largely supported by scientific evidence that is not in dispute. However, there are areas where Gore departs from the mainstream, involving exaggerations or what is described as his 'waxing lyrical', and the film also contains at least 20 factual inaccuracies, of differing levels of importance. This supports the view that it is not balanced.
In court, the judge held that there would have been a breach of sections 406 and 407 on the facts that were presented. However, in a constructive dialogue under the proceedings, the secretary of state agreed to redraft the guidance note to indicate that other views exist and to point out some of the errors in the primary film. It was also conceded that the note would be included in hard copy form.
The judge also found that while the minister's original press release, which had enthusiastically supported the film, would be considered an attempt to influence, this was in the past. Now that the more
one-sided views had been countered by balanced guidance, no order was necessary from the court.
What this case shows is that climate change is a highly emotive subject and that there are those who are willing to litigate to ensure that the public sector does not abuse its public duties. Local authorities need to remember that no matter how well meaning they are, they are still subject to a tightly drawn legal regime.
Stephen Cirell is head of local government and Professor John Bennett is a consultant solicitor with Eversheds. They are authors of Best Value law and practice published by Sweet and Maxwell
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