The decision of Mr Justice Holgate (available here) was handed down earlier this week on Monday 18 July 2022 and considers three claims for judicial review brought separately by Friends of the Earth, ClientEarth and the Good Law Project (the proceedings were heard together on 8 and 9 June 2022).  Each challenged the Secretary of State’s decision on 17 October 2021 (i) to approve the proposals and policies set out in the NZS, under his duty in section 13, and (ii) to publish the NZS as a report under section 14.

The court has granted declarations summarising the key decisions in the judgment and has ordered the Secretary of State to lay before Parliament a fresh report under section 14 before the end of March 2023.  The court did not quash the NZS, which still stands. 

Whilst this blog cannot comprehensively cover the whole judgment (that runs to some 59 pages) it looks at some of the key findings (with paragraph references to the judgment). It is worth noting that the early parts of the judgment will be useful for anybody wishing to (re-)familiarise themselves on the CCA 2008 and the structure of its provisions, as the court helpfully goes through this in some detail (#28-55).

Ground 1: section 13 of the CCA 2008

Section 13(1) establishes a statutory duty on the Secretary of State to “prepare such proposals and policies as the Secretary of State considers will enable the carbon budgets that have been set under this Act to be met.” (see here for the full text).

The claimants argued that the Secretary of State breached his section 13(1) duty in approving the NZS because (#16):

(1)    The Secretary of State’s numerical projections underlying the NZS failed to show that the policies with quantifiable effects would enable at least 100% of the reductions required to meet the relevant carbon budgets to be achieved; and

(2)    The Secretary of State had failed to take into account a number of matters that he was legally required to consider, namely:
(a)    the time-scales over which the proposals and policies were expected to take effect;
(b)    the contribution which each quantifiable proposal or policy would make to meeting the carbon budgets; and,
(c)    in relation to his qualitative judgment, which proposals and policies would enable the 5% shortfall for CB6 to be met.

This needs to be seen in a context where it became clear through the proceedings that for the NZS, the quantitative estimates of the emissions reductions from policies with quantifiable effects would deliver 95% of the reduction required by the 6th Carbon Budget. It was argued by the Secretary of State that the shortfall of 5% would – as a matter of qualitative judgment – be met by the unquantified effects of the NZS’s policies and proposals.  However, the Government had not included the 95% figure in the NZS itself (#139). 

Overall, the claimants succeeded on points (2)(b) and (c). They were unsuccessful on their other arguments.

On point (1), the court found that the obligation in section 13(1) did not have to be satisfied by “quantitative analysis alone” (#193). The Secretary of State had accepted (and the court agreed) that there needed to be some quantitative analysis in order to properly and rationally comply with the sections 13 and 14 duties (#176, 202(vii)); but the statutory language did not give rise to an implication that a fully quantified analysis was required (#179);

On point (2), Holgate J first listed eleven aspects of the “statutory context” (#202) – a context which was of “paramount importance”. 

Relying on this context, Holgate J concluded that one obviously material consideration that the Secretary of State needed to (but did not) consider was the “risk to the delivery of individual proposals and policies and to the achievement of the carbon budgets and the 2050 net zero target”; this was implicit in the statutory scheme and, in turn, “must depend upon the relative contributions made by individual measures to achieving those targets” (#204) (i.e. the claimants’ point (2)(b) above).

In other words, the Secretary of State needed to be provided with the broken down contribution figures for individual policies (or groups of policies) so that he could scrutinise the assessment provided to him (“In my judgment, without information on the contributions by individual policies to the 95% assessment, the Minister could not rationally decide for himself how much weight to give to those matters and to the quantitative assessment in order to discharge his obligation under s.13(1).” (#213)). As the court put it at #214:

“… The information which ought to have been provided to the defendant would have influenced his assessment of the merits of particular measures. It was crucial so that he could question whether, for example, the Strategy he was being advised to adopt was overly dependent on particular policies, or whether further work needed to be carried out to address uncertainty, or whether the overall figure of 95% was robust or too high. If it was too high, then that would affect the size of the shortfall and his qualitative judgment as to whether unquantified policies could be relied upon to make up that gap with what he would judge to be an appropriate level of confidence. Information on the numerical contribution made by individual policies was therefore legally essential to enable the defendant to discharge his obligation under s.13(1) by considering the all-important issue of risk to delivery. These were matters for the Secretary of State and not simply his officials.”

In relation to the 5% shortfall (the claimants’ point (2)(c) above), Holgate J reached the “firm conclusion” that obviously material considerations were left out of account (#217). The Secretary of State was not (but needed to be) informed about the following points (#216):

(i)    Which unquantified policies were being relied upon as part of the judgment that was made; 
(ii)    Which already quantified policies were assumed to be capable of further development; 
(iii)    Alternatively, whether the advice and comparison with the delivery pathway did not involve relying upon or identifying any specific policies; 
(iv)    Whether any further calculations had been performed, or whether this exercise was solely a matter of judgment.

Without access to that information, the Secretary of State was “unable to decide for himself whether to attach any, and if so how much, weight to the manner in which officials advised that the 5% shortfall could be overcome.” (#217)  So again, here, the court’s focus was on the Secretary of State (acting alone as the decision-maker) and what exactly he knew.

The court, however, found that in relation to the claimants’ point (2)(a), the relevant timescales had sufficiently factored into the assessments undertaken, albeit these would need to be addressed again in any revised briefing (#218-220). A similar approach was taken in relation to this point under ground 2 (#258-259).

Ground 2: section 14 of the CCA 2008

Section 14(1) provides that:

“As soon as is reasonably practicable after making an order setting the carbon budget for a budgetary period, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting the carbon budgets for the current and future budgetary periods up to and including that period.”

(The full text for section 14 can be found here.)

There was a clear dispute between the parties as to what section 14 required. The claimants argued that the NZS failed to include information that was legally necessary, namely (#16):

(i)    an explanation for his conclusion that the proposals and policies within the NZS will enable the carbon budgets to be met; 
(ii)    an estimate of the contribution each of those proposals and policies is expected to make to required emissions reductions in so far as they are judged to be quantifiable; and 
(iii)    the time-scales over which those proposals and policies are expected to have that effect.

By contrast, the defendant argued that section 14 merely required the Secretary of State to tell Parliament what the selected proposals and policies were; it did not require any explanation as to why the Secretary of State considered those proposals and policies would meet the relevant carbon budgets, nor was there any requirement to provide quantified information to show that the proposals and policies would enable the carbon budgets to be met (#227).

Holgate J rejected the defendant’s interpretation, noting that it treated section 14 as “little more than a requirement to publish” the proposals and policies.  The court interpreted the words “set out”, within the context and purpose of section 14, as requiring an explanation to be provided to Parliament as to how the Secretary of State’s policies are intended to meet the statutory targets (and that there needed to be a quantitative explanation provided) (#232-235). This interpretation was reinforced by the other provisions of section 14(2)-(4) and the information they require (see further at #236-238).

The court also emphasised the statutory objective of transparency. The report had to be laid before Parliament, so it would also be published and made available to the general public. That transparency requires the report to contain explanation and quantification (#241, 247).  The fact that there was no statutory requirement for prior public consultation on the report did alter the court’s view (#243-247).

For similar reasons to ground 1, Holgate J held that a number of obviously material factors had been unlawfully left out of the report.  Not only did the NZS not look at the contributions to emissions reductions made by individual policies (or by interacting policies) where assessed as being quantifiable, but it also failed to explain (#252-3):

(i)    “that the quantitative analysis carried out by BEIS (which related solely to quantifiable policies with a direct effect on emissions) predicted that those policies would achieve 95%, not 100%, of the reductions required for CB6, and had assumed “delivery in full” of those policies; 

(ii)    how it was judged that that 5% shortfall would be made up (see also [216] above), including the judgment based upon comparing the 95% result with the projections of the implied performance of the delivery pathway; 

(iii)    that tables 6-8 did not present the outcome of the Department’s quantitative analysis of emissions reductions predicted to result from NZS polices; 

(iv)    how that quantitative analysis differed from the modelling of the delivery pathway”

Those matters were all obviously material to the critical issue of risk to the delivery of the statutory targets and so they were matters which the defendant was obliged to inform Parliament and the public about under section 14 (#254).

Ground 3: Human Rights

The Good Law Project advanced a further ground, arguing in the alternative that under section 3(1) of the Human Rights Act 1998, sections 13 and 14 have the effect which the claimants contended because to construe them in the way advanced by the defendant would contravene, or risk contravention, of human rights under the European Convention on Human Rights. The rights in question were articles 2, 8 and article 1 of the First Protocol. 

However, the court dismissed this for three reasons:

(1)    It was accepted that the claimant’s argument on this ground depended on the proposition that section 3(1) requires the court to adopt an interpretation which would be more, rather than less, conducive to the protection of Convention rights, so as to minimise future climate change impacts (#264).  But, section 3(1) only applies if the ordinary interpretation of a provision would otherwise be incompatible with a Convention right; and, even then it only requires the ordinary interpretation to be modified to the extent necessary to achieve compatibility.  It does not allow a court to adopt a different interpretation for a provision in order to be “more conducive” to or “more effective” for the protection of a Convention right (#265).  

(2)    The claimant’s proposition would not provide a proper test for interpreting legislation and would risk the court crossing the demarcation between interpreting and amending legislation (#266).

(3)    The arguments went beyond a permissible incremental development of clear and constant Strasbourg case law (#267-275). Previous Strasbourg decisions were not comparable, and the Dutch case of The State of the Netherlands v Urgenda (20 December 2019) was concerned with a “very specific challenge” such that it provided “no assistance” on the interpretation of the statutory duty in this case (#270). (Interestingly, this is in a wider context where there are multiple cases pending before the Grand Chamber of the European Court of Human Rights concerning the relationship between climate change and human rights (#269).)

Comment:

This is clearly an very important decision in climate change litigation and the symbolic effect of its being handed down in the midst of a record-breaking heatwave and the Met Office’s first ever red alert for extreme heat was certainly noticed by a number of news reporters, see here and here.

The headline is that the devil was in the detail.  Ultimately, neither the Secretary of State (section 13), nor Parliament and the public (section 14) had enough information properly to determine and scrutinise whether the policies and proposals would enable the relevant budgets to be met.  Assessing the risk to delivery was key; and various pieces of information needed to be provided to enable such an assessment. That information was accessible to officials (see eg. #203, 206-207), so it would not be an impossible task.

One interesting takeaway is the court’s references to the Committee on Climate Change (CCC) and their views. The CCC was in many ways supportive of the NZS, but it had noted the fact that the Government had not quantified the effect of each policy and proposal on emissions, which made it hard to assess the risks attached to the plans and how best to manage them (#152); it had subsequently recommended that the Government’s net zero plans include a “quantified set of policy proposals” (#65-67). Whilst the court recognised the CCC’s role was to give advice as an expert body and not opine on questions of law, it nonetheless gave “considerable weight” to this advice (#215).

The consideration of Ground 3, and the scope of section 3(1) in a challenge such as this, is also interesting in a context of increasing litigation on climate change and human rights: see for example, my previous blog on “Climate Change and Human Rights” (Oct 2021) and, more recently, the High Court’s decision in R (oao Plan B Earth and others) v The Prime Minister and others [2021] EWHC 3469 (Admin) (Dec 2021).  Mark O’Brien O’Reilly’s post on “The Case for the Recognition of the Right to a Healthy Environment at the International Level” is also well worth a read for anybody interested in this area.

Merrow Golden is a barrister at Francis Taylor Building specialising in environmental, public and planning law.