High Court rejects human rights challenge to Government plans for tackling climate change risks

In R (Friends of the Earth and others) v Secretary of State for Environment, Food and Rural Affairs [2024] EWHC 2707 (Admin), the High Court rejected a challenge to the third National Adaptation Programme ("NAP3") setting out the Government's plans to tackle the risks flowing from actual and predicted changes to the climate. This case involves one of the first considerations by a domestic court of the European Court of Human Rights' ("ECtHR") historic judgment against Switzerland which found a violation of the European Convention on Human Rights (the "Convention") in the climate change context for the first time (the "VKS judgment") (our previous blog on the VKS judgment can be found here).

Key points

• The High Court distinguished the VKS judgment on the basis that the current case was concerned with measures aimed at adaptation to the risks of climate change, rather than measures aimed at mitigating the impact of climate change (which had been the focus of the VKS judgment).
• While a state's approach to mitigation could be judged by reference to the internationally agreed objective of reaching carbon neutrality by 2050 under the Paris Agreement, there was no such internationally binding quantified standard governing how states must adapt to climate change, as the risks of climate change differ widely from state to state.
• As such, the High Court considered that a wide margin of appreciation should be accorded to states when considering whether a state had met any positive obligation imposed by Articles 2 and 8 of the Convention to adopt and implement adaptation measures aimed at alleviating the most severe or imminent consequences of climate change.
• In this case, the High Court concluded that the Secretary of State remained comfortably within that margin of appreciation in the approach to preparing NAP3 and dismissed the challenge on all grounds.

Background

Section 58 of the Climate Change Act 2008 (the "CCA") imposes a duty on the Secretary of State to lay programmes before Parliament setting out (a) the Government's objectives in relation to adaptation to climate change, (b) its proposals and policies for meeting those objectives and (c) the timescales for introducing those proposals and policies. NAP3 was prepared pursuant to that duty.

The Committee on Climate Change (the "CCC") is an independent, non-departmental body established by the CCA. The CCC published its independent assessment of NAP3 in March 2024, and considered that:

"NAP3 falls far short of what is needed... It fails to set out a compelling vision for what the government’s ‘well adapted UK’ entails, and only around 40% of the short-term actions to address urgent risks… are progressed. The lack of a measurable vision will prevent effective delivery of adaptation”.

The judicial review was brought by three claimants: Friends of the Earth Ltd; an individual whose home on the Norfolk coast was at risk due to coastal erosion and was later demolished by the local authority; and an individual with long-term health conditions which made him particularly vulnerable to the effects of extreme heat.

The claimants relied on various grounds including:

1. That the Secretary of State erred in law by misconstruing the requirement for "objectives" under section 58 CCA, which must be read and given effect in a way compatible with Convention rights under section 3 of the Human Rights Act 1998 (the "HRA");
2. That the Secretary of State acted contrary to the claimants' rights under Articles 2, 8, 14 and Article 1 of the First Protocol ("A1P1") of the Convention; and
3. That the Secretary of State failed to consider the risks to delivery for the proposals and policies for meeting the objectives produced under section 58 CCA.

Judgment

Statutory interpretation

In giving judgment, Chamberlain J set out a two-stage approach to the construction of section 58 CCA: first, the ordinary meaning of the provision must be ascertained by applying domestic principles of statutory construction; and second, the court must consider whether the claimants' construction was required to achieve compatibility with Convention rights under section 3 HRA. He emphasised that there is no principle which requires the court to favour a construction which better promotes Convention rights over one which promotes those rights less effectively. The obligation imposed by s. 3 HRA is of relevance only when one of the competing constructions is incompatible with Convention rights.

In considering the statutory context, the court drew a distinction between legal frameworks aimed at mitigation of climate change and those aimed at adaptation to the risks of climate change. Part 1 of the CCA contains the UK's legal framework for measures aimed at mitigation, and includes a duty to ensure that the net UK carbon account for the year 2050 is at least 100% lower than the 1990 baseline, in line with the UK's international commitments under the Paris Agreement. By contrast, there is no internationally binding quantified standard governing how states must adapt to climate change, as the risks of climate change differ widely from state to state.

Section 58 is in Part 4 of the CCA, which deals with adaptation to climate change. The High Court considered that, contrary to the claimants' submissions that section 58 imposed a duty to set out objectives in the form of substantive, specific and measurable outcomes, there was no express or implied constraint in section 58 on how ambitious or specific an objective must be (provided it could still properly be described as an "objective").

In considering whether compatibility with Convention rights required a different result, Chamberlain J noted that the focus of the VKS judgment had been on the state's obligation to adopt mitigation measures, and Switzerland's breach of that obligation arose from a series of lacunae in its domestic regulatory framework. Although the VKS judgment indicated that the positive obligation imposed by Articles 2 and 8 of the Convention extends to adopting and implementing adaptation measures aimed at alleviating the most severe or imminent consequences of climate change, the High Court considered that a wide margin of appreciation had to be accorded to states when considering adaptation measures, in contrast to the narrow margin of appreciation accorded by the ECtHR in respect of mitigation measures. The court reasoned that, in respect of mitigation measures, a narrow margin of appreciation was justified by reference to the internationally agreed objective of carbon neutrality by 2050 and the impact of one state's default on other states, whereas neither of these features applied to adaptation measures. The court considered that the ordinary interpretation of section 58 fell comfortably within the UK's margin of appreciation under Articles 2 and 8 of the Convention.

The High Court concluded that the risk reduction goals outlined in NAP3 could properly be described as objectives under section 58 CCA, and that interpretation was not incompatible with Convention rights. This ground therefore failed.

Convention rights

On the question of whether there was a violation of the claimants' Convention rights, the High Court dismissed this ground for essentially the same reasons that the interpretation argument failed: that a wide margin of appreciation should be accorded to states when identifying adaptation measures, in contrast to the approach taken to mitigation measures in the VKS judgment. Chamberlain J considered that "the CCC’s criticisms, trenchant though they were, were the outcome of one part of the system of domestic scrutiny provided for by Parliament in the CCA. That system of scrutiny did not suffer from the regulatory lacunae identified in relation to Switzerland."

As to standing, Chamberlain J made no determination as to whether the claimants had victim status in light of the failure of the claim on its substance, however his provisional view was that it would be wrong to prevent either of the individual claimants from bringing a well-founded human rights challenge if it could be established that the Government's failure to implement specific adaptation measures relevant to their circumstances fell outside the state's margin of appreciation. The High Court drew a distinction between this case and the restrictive approach taken to whether individuals had victim status in the VKS judgment, noting that while it may be very difficult to establish that a failure to take particular mitigation measures had a direct impact on the applicant, it may be easier to establish a causal link between a lack of particular adaptation measures and the effect on an applicant.

Failure to consider risks to delivery

The High Court also rejected the claimants' other grounds. The approach to delivery risk taken by the court in finding the Government's carbon budget delivery plan to be unlawful was again distinguished because of the difference between the types of obligations in Part 1 CCA compared to Part 4. In respect of section 58, the approach to delivery risk is subject to review on the grounds of rationality only, and on the evidence, delivery risk (i.e. whether particular proposals and policies would achieve what they set out to achieve) had been considered at various stages.

Comment

The High Court was keen to distinguish the novel approach taken by the majority in the VKS judgment in respect of both standing and the extent of the state's positive obligations under the Convention in the climate change context, and notably praised the "impressively reasoned" partly concurring and partly dissenting opinion of Judge Eicke in VKS in a number of instances. The High Court justified taking a more orthodox approach in this case by reference to the distinction between mitigation measures and adaptation measures, noting the lack of an internationally binding quantified standard governing how states must adapt to climate change. The court was also keen to impress that the VKS judgment took issue with gaps in the Swiss regulatory framework for the mitigation of the impact of climate change, and the court did not consider that the UK's framework in Part 1 of the CCA suffered from the same gaps.

Interestingly however the court did suggest that this distinction between adaptation and mitigation could justify a less strict approach to victim status than that shown in VKS.

The claimants have indicated that they are considering an appeal, and in parallel are calling on the new government to amend the NAP3 in line with the CCC's recommendations.