The challenge in this case was to the legality of third national adaptation programme (NAP).  The NAP was produced under s58 of the Climate Change Act 2008, which provides:

"58. Programme for adaptation to climate change
(1) It is the duty of the Secretary of State to lay programmes before Parliament setting out —
(a) the objectives of Her Majesty's Government in the United Kingdom in relation to adaptation to climate change,
(b) the Government's proposals and policies for meeting those objectives, and
(c) the time-scales for introducing those proposals and policies, addressing the risks identified in the most recent report under section 56."

The primary argument run by the claimants was that the SSEFRA had misdirected himself in respect of what was required by way of ‘objectives’ in s58(1)(a).  Human rights issues fed into this main ground by way of the interpretative obligation in s3 of the Human Rights Act 1998 (HRA 1998).  They also featured in a separate allegation that the SSEFRA had acted contrary to the claimants’ human rights and so acted contrary to the obligation in s6 of the HRA 1998.

There were secondary issues relating to whether the SSEFRA was required to consider the risk of delivery of the policies and proposals set out in the NAP and whether there was a breach of the public sector equality duty (PSED) in s149 of the Equality Act 2010.  

The Court first considered the meaning of ‘objectives’ under domestic principles of construction.  The Judge concluded at [93] that s58 is not aimed at achieving any single or defined objective and does not prescribe how ambitious the objectives must be.  He considered at [94] that the word ‘objective’ can encompass a wide range of specificities.  

At [96], Chamberlain J noted that Parliament chose not to impose any constraints on how ambitious or specific the objectives must be and that, if an objective was thought not to be sufficiently ambitious, then the remedy is through the Climate Change Committee (CCC) reporting and then the SSEFRA answering in Parliament.  Such matters fall within the political process rather than being subject to adjudication by the courts.

The Judge then asked whether considerations of compatibility with the European Convention on Human Rights (ECHR) required a different result under s3 of the HRA 1998.  As to the s3 interpretative obligation in the HRA 1998, Mr Justice Chamberlain noted that it did not require the court to favour a construction which better promoted the ECHR interest and that s3 was of relevance only when one of the competing constructions was incompatible with ECHR rights.

The background to the relevance of the ECHR was that, in R (Plan B Earth) v Prime Minister [2021] EWHC 3469 (Admin), the only previous domestic case to consider human rights and climate adaptation, Bourne J had been clear that disagreement with the merits of a NAP does not give rise to any arguable case that there had been a breach of the statutory duty in s58.  In relation to human rights, Bourne J essentially held that the system established by the CCA 2008 was working as Parliament intended.  

Chamberlain J considered the subsequent European Court of Human Rights judgment in Verein KlimaSeniorinnen Schweiz v Switzerland, and concluded that it had not given rise to the need to consider climate adaptation (as opposed to mitigation).  

Whilst the KlimaSeniorinnen decision involved a significant extension of the scope of positive obligations owed under Articles 2 and 8, it was still subject to considerable limitations.  For Article 2 to apply to complaints of state action or inaction in the context of climate change, there had to be a real and imminent risk to life.  For Article 8 to apply, it was necessary to show an actual interference with a claimant’s enjoyment of his or her private or family life or home going beyond a general deterioration of the environment, and that the interference was serious in the sense that its effects on the claimant’s well-being attained a certain minimum level of seriousness.  

Beyond that, in KlimaSeniorinnen the European Court of Human Rights had held that the duty on the state was simply to adopt and effectively apply in practice regulations and measures capable of mitigating the effects of climate change, where the state had a wide margin of appreciation in the choice of means adopted, including policy and operational choices.  

Chamberlain J pointed out at [98] that the reason why Switzerland was in breach of its positive obligations was that there was a series of lacunae in its domestic regulatory framework, including, in particular, an inadequate target for the period up to 2020, which had not been met, and that the period between 2025 and 2030 had been left wholly unregulated.  Later legislative initiatives were insufficiently specific to cure these deficiencies.  

As KlimaSeniorinnen had not concerned adaptation, the Judge considered that caution should be exercised in interpreting general statements in the KlimaSeniorinnen judgment which did not arise on the facts of that case.  He noted that, unlike climate mitigation, there was no common framework by which to judge what is required for adaptation.  He concluded at [105] that, for adaptation, states are to be accorded a wide margin of appreciation in setting the relevant objectives and a wider margin still in setting out the proposals and policies for meeting them.  He ultimately concluded that the interpretation of s58 arising on normal domestic interpretative principles fell comfortably within the margin of appreciation under Articles 2 and 8 of the ECHR.  

There was an issue under Ground 4 as to whether the two individual claimants had victim status.  It was not argued that Friends of the Earth had standing to argue a breach of s6 of the HRA 1998, so their standing for these purposes did not need to be considered (see [152]).  

Chamberlain J referred to the conclusions on victim status in KlimaSeniorinnen, namely that, to be victims in the context of complaints concerning harm or risk of harm resulting from alleged failures by the State to combat climate change, individual claimants had to show they were personally and directly affected by the impugned failures.  This required that the claimant was subject to a high intensity of exposure to the adverse effects of climate change and that there was a pressing need to ensure their individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm. 

The Judge said at [154] that his provisional view was that it would be wrong to shut the individual claimants out if they had a well-founded claim that specific adaptation measures relevant to their particular circumstances fell outside the state’s margin of appreciation.  Ultimately, that question did not arise, so the Judge did not need to decide the victim / standing point.  This was because their human rights claim was not well-founded.  In climate adaptation, the state has a wide margin of appreciation and the UK has in place a specific statutory scheme for climate adaptation, including scrutiny by the CCC and reporting to Parliament, backed with the ability to obtain information through Environmental Information Regulations 2004 requests (see [157]-[158]).  

On Ground 2 the argument was that there were risks to delivery of adaptation measures which had unlawfully been left out of account.  Chamberlain J concluded that, as objectives could be set with greater or lesser specificity, so in turn the need to consider delivery risk would vary.  If the SSEFRA was to choose to set objectives which are specific and quantifiable, then rationality would dictate more consideration of delivery risk was needed.  In this case, the evidence showed risk and uncertainty were considered within the bounds of rationality.  

On Ground 3 it was argued that there had been a breach of the PSED, which the Judge found because the Minister did not consider the PSED with the degree of rigour required.  However, after the decision but prior to the hearing, a proper equalities impact assessment had been considered by the Minister.  The Judge concluded that he did not doubt that that was a good faith reconsideration exercise, so there was no point in quashing the NAP to require a re-run of a process which had now been done.

The Judge therefore dismissed the claim for judicial review.  

Richard Honey KC is a barrister practising at Francis Taylor Building in public and environmental law.  He appeared for the respondents in the Plan B and FoE No 1 cases.  

In R (FoE, Jordan & Paulley) v SSEFRA [2024] EWHC 2707 (Admin), Mark Westmoreland Smith KC, Charles Streeten and Stephanie Bruce-Smith appeared for SSEFRA. None have had any involvement in the drafting of this blog post.