Judge rules Gore's film an inconvenient catalogue of errors
Hack
Judge rules Gore's film an inconvenient catalogue of errors
By Lucy Sherriff
Published Thursday 11th October 2007 14:43 GMT
A UK judge has ruled that schools are allowed to show Al Gore's An
Inconvenient Truth, but only if the film is accompanied by guidance
highlighting the areas where the ex-vice president of America strays off the
scientific terra firma, the BBC reports.
Mr Justice Burton said teachers could show the film, but must highlight nine
assertions in the film that are not supported by mainstream scientific
consensus, including a claim that polar bears are drowning on long swims
between icebergs.
Despite these rogue Arctic ursines, the judge seems to be happy that the
main thrust of the film is not political, nor likely to indoctrinate anyone.
Other problem areas included an assertion that the sea would rise up to 20
feet "in the near future" as ice in Greenland or Western Antarctica melts.
The judge said this was an alarmist statement. He added that scientific
consensus held that that kind of sea level rise would be possible if
Greenland's ice melted, but that that melt would happen "after, and over,
millennia".
The judge also dismissed Gore's claim that the retreating snowline on Mount
Kilimanjaro could be directly attributed to human-induced climate change,
saying that the science to establish such a link does not exist.
The government sent copies of the film to all secondary schools in England,
while the ruling administrations in Wales and Scotland did the same. But
school governor Stewart Dimmock of Dover, a member of the New Party, took
the government to court, saying the distribution breached rules governing
what may be shown in schools.
The judge said Mr Dimmock has "substantially won" the case. He found that
"but for the new guidance note, the film would have been distributed in
breach of sections 406 and 407 of the 1996 Education Act". These sections
cover political indoctrination
(http://www.opsi.gov.uk/acts/acts1996/ukpga_19960056_en_24#pt5-ch4-pb4) and
the treatment of political issues in schools.
Dimmock said he was "delighted" with the outcome, which also saw him awarded
two-thirds of his Ł200,000 of legal fees.
The government also professed itself happy with the ruling, noting that the
judge had not taken issue with the mainstream arguments in the film.
Hack
kT
> Judge rules Gore's film an inconvenient catalogue of errors
Look, it's science by judiciary.
Next, they're bringing back the inquisition.
kT
> Judge rules Gore's film an inconvenient catalogue of errors
Look it's a spammer, advocating science by judiciary!
john fernbach
NG by somebody named Tom.
kt - It probably makes sense for us to read the whole thing - and a
wearisome long document it is, too - before we decide what we think
about it, don't you think?
=============================================================
England and Wales High Court (Administrative Court) Decisions
--------------------------------------------------------------------------------
You are here: BAILII >> Databases >> England and Wales High Court
(Administrative Court) Decisions >> Dimmock v Secretary of State for
Education & Skills [2007] EWHC 2288 (Admin) (10 October 2007)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/2288.html
Cite as: [2007] EWHC 2288 (Admin)
--------------------------------------------------------------------------------
[New search] [Printable RTF version] [Help]
--------------------------------------------------------------------------------
Neutral Citation Number: [2007] EWHC 2288 (Admin)
Case No: CO/3615/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
10/10/2007
B e f o r e :
MR JUSTICE BURTON
____________________
Between:
Stuart Dimmock
Claimant
- and -
Secretary of State for Education and Skills
(now Secretary of State for Children, Schools and Families)
Defendant
____________________
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 ...
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 ...
(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. ...I 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 ... At the end of the last ice age ... 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 ... 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 ...
\Areas where there is a strong scientific consensus but where a small
minority of scientists do not agree ...
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? ...
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 ... 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
AIT promotes partisan political views (that is to say, one sided views
about political issues)
teaching staff must be careful to ensure that they do not themselves
promote those views;
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;
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.
--------------------------------------------------------------------------------
Hack
Judge rules Gore's film an inconvenient catalogue of errors
By Lucy Sherriff
Tunderbar
Judge rules Gore's film an inconvenient catalogue of errors
No drowning polar bears on this planet, Al
By Lucy Sherriff → More by this author
Published Thursday 11th October 2007 14:43 GMT
Jobsite - find your next IT job quickly & easily
Act". These sections cover political indoctrination and the treatment