Court finds unlawfulness in relation to Government's Net Zero Strategy

In R (Friends of the Earth Ltd and ors) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin), the High Court partially upheld a challenge to the Government's Net Zero Strategy (the "NZS") under the Climate Change Act 2008 (the "2008 Act").

Key Points

• It is not incumbent on the Secretary of State to rely on quantitative analysis alone on climate change issues where this is not mandated by the legislation.
• It is, however, necessary that sufficient information is provided to the relevant minister and to Parliament in order to fulfil obligations under the 2008 Act.
• Section 3(1) of the Human Rights Act 1998 (the "HRA") does not permit the court to interpret legislation in a way that confers greater rights protection where there is no question regarding the incompatibility of the legislation with a Convention right on an ordinary interpretation of the provision.

Background

The 2008 Act was amended in response to the UK's obligations under the Paris Agreement, which required member states to hold the increase in the global average temperatures. Section 1 of the 2008 Act requires the Secretary of State to ensure that the net UK carbon account for 2050 meets certain benchmarks. The Secretary of Secretary is also required by statute to create carbon budgets for future periods to meet these benchmarks.

Section 13 requires the Secretary of State to prepare "such proposals and policies" as he considers will enable the carbon budgets which have been set to be met. Section 14 requires that "as soon as is reasonably practicable" after setting a carbon budget, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting the budgetary periods.

Following the setting of Carbon Budget 6, the defendant Secretary of State laid the NZS before Parliament pursuant to sections 13 and 14. The Good Law Project, Friends of the Earth Ltd, and ClientEarth (the "Claimants") sought to challenge this by judicial review on several grounds:

• Ground 1(1): The Defendant erred in law on the basis that he was not entitled to conclude that the proposals and policies in the NZS (prepared under section 13) would enable the carbon budgets to be met.
• Ground 1(2): The briefing material supplied to the Defendant was insufficient, meaning that he had failed to take into account relevant considerations.
• Ground 2: The Defendant failed to include information legally required to discharge his section 14 obligations, namely an explanation for how the NZS will enable the carbon budgets to be met, an estimate of the contribution of each proposal and policy for reducing emissions, and the time scales over which the proposals will have effect.
• Ground 3: Section 3(1) of the HRA has the effect that sections 13 and 14 should be interpreted as the Claimants contend, and not as the Defendant contends which would risk contravention of Convention rights.

Despite these issues, the Claimants acknowledged the positive value of much of the NZS. Consequently, the Claimants sought declaratory relief rather than quashing of the NZS.

Judgment

Ground 1(1)

The Claimants contended that the Defendant's duty under section 13 required that he make an assessment of the time scales within which the measures would take effect and their impact on reducing emissions. Such an assessment required numerical predictions of the contribution which the proposals and policies would make to meeting the carbon budgets. The Claimants contended that although the Defendant was allowed to make a qualitative judgment as to whether the measures would be sufficient to meet the carbon budget, the Defendant was not allowed to use a qualitative judgment to overcome a shortfall presented by quantitative analysis.

The court disagreed with this analysis. There was nothing in the statutory scheme requiring this quantitative approach, which would have been a significant constraint on the Defendant's ability to judge how to discharge his duty. Section 13 necessarily involves making predictive assessments into the future, which inevitably introduces uncertainty and subjective judgment. The Defendant is accountable to Parliament for his proposals and policies under section 13: he will have to answer Parliamentary questions and appear before Parliamentary Committees. This is the mechanism by which the merits, realism and efficacy of the Defendant's policies should be challenged. Although the fact that the Defendant is subject to parliamentary scrutiny does not preclude the court's involvement (there is no indication that the functions under section 13 are not justiciable), the obligation in section 13 does not have to be satisfied by quantitative analysis alone – it is simply a relevant consideration that should inform his decision.

On that basis this ground was dismissed.

Ground 1(2)

The question here was whether the legal information provided was sufficient to make a proper decision. The Claimants contended that the relevant omissions were:

• (a) Lack of an assessment of the time scales over which the proposals and policies were expected to take effect;
• (b) Failure to identify under the quantitative analysis the contribution that each proposal or policy would make to meeting the carbon budgets; and
• (c) Failure to identify under the qualitative analysis which proposals and policies would meet the carbon budget.

The court held that only if the briefing omitted something which the Defendant (or a relevant minister) was legally obliged to take into account, and which was not insignificant, will he have failed to take into account a material consideration. The test is whether the legislation mandated, expressly or by implication, that the consideration be taken into account or whether it was so "obviously material" that a failure to take it into account was irrational.

With regards to omissions (b) and (c), it was clear that the quantification of the effect of individual policies was obviously a material consideration on which information had to be provided to the minister in order that he could discharge his section 13 functions and make a rational decision. There was no dispute that these matters were not addressed in the briefing. Regarding omission (a), the court accepted that it was a matter of judgment as to how much detail should be included in the ministerial submission regarding the assessment of time scales.

Therefore, the court upheld the challenge in relation to omissions (b) and (c) only.

Ground 2

The court held that the Defendant was required to provide greater detail in its report to Parliament than merely publishing "the proposals and policies" suggested without any further information. This turned on the meaning of section 14 and what the phrase a "report setting out proposal and policies" meant. It was clear from the statutory context and the explanatory notes to the 2008 Act that this included explanation about how the government intended to meet its obligations under the Act. Moreover, although the legislation did not require detailed workings or modelling to be provided to Parliament, a quantitative analysis would be necessary for these purposes.

The court was conscious of the need to respect the constitutional separation of functions in a situation where the Executive provides a report to Parliament. Parliament is well able to call for more information to be provided where it wishes to do so. Therefore, the court should tread carefully in this area. However, it remains the role of the court to interpret the legislation and resolve legitimate disputes on the scope of the obligations that legislation imposes.

The NZS did not go below national and sector levels to look at the contributions to emissions reductions made by individual policies (or by interacting policies) where assessed as being quantifiable, which it ought to have done in order to comply with the language and statutory purposes of s.14. However, on the facts, the NZS did address the issue of time scales.

Consequently, the court again upheld the challenge in part.

Ground 3

The Claimants argument proceeded along the lines that the UK has obligations under Articles 2, 8, and A1P1 of the European Convention on Human Rights to take effective action against climate change because this represents a real and “imminent threat” to “life, quality of life and to property". Therefore, the effect of section 3(1) of the HRA is to require sections 13 and 14 to be interpreted as the Claimants contend: Parliament should be assumed to have intended those provisions to be conducive to more, rather than less, rights protection. The Claimants made this argument despite not being aware of any authority in which a court has stated that this is a permissible application of section 3(1) of the HRA.

The court rejected this argument as not according with established principle. Section 3(1) only applies if the ordinary interpretation of a provision is incompatible with a Convention Right. This is not the same as saying that section 3 allowed courts to adopt interpretations that would ensure greater rights protection when an issue of incompatibility does not arise. In any case, the Claimants' submission would go beyond the permissible incremental development of clear and constant Strasbourg case law.

Comment

This judgment is notable as it demonstrates that courts are not afraid to conduct a detailed review of the actions of the Government in fulfilling their obligations under climate change legislation. Interestingly, Mr Justice Holgate started his judgment by emphasising that climate change is a global problem. The Claimants succeeded in two significant respects: the court held that the information provided to the relevant minister and the report laid before Parliament were both legally inadequate.

It is important to note, however, that the court was at pains to emphasise that the challenge was still directed at the legal sufficiency of the Secretary of State's actions and a rationality challenge must not be used as a cloak for a challenge the merits or demerits of policies. The primary mechanism of accountability of the Executive is Parliament, but this does not prevent the courts from intervening in circumstances where the Government acts unlawfully, even on issues of policy.

The judgment can be contrasted with that of R (on the application of Friends of the Earth Limited) v Secretary of State for International Trade/Export Credits Guarantee Department [2022] EWHC 568 (Admin), where the court refused to quash a decision to provide export finance in support of a natural gas project (see our blog post on this case here). There the Claimants unsuccessfully sought to use international legal instruments to challenge the decision on climate change grounds. Read alongside each other, these two cases confirm that while "high-level" and "aspirational" international instruments may not create specific duties in national law, domestic legislation read in its proper context may well do so and is a much stronger basis for holding the Government to account in terms of its actions on climate change.