The Claimants sought to challenge the lawfulness of the government’s action on climate change as breaching sections 13 and 58 of the Climate Change Act 2008 (“the Act”) and section 6 of the Human Rights Act 1998 by way of the ECHR (Articles 2, 8, and 14). 

Insofar as the Claimants relied upon breaches of the Paris Agreement, Bourne J held, in line with the Supreme Court decision in R (SC) v SSWP [2021] UKSC 26, that such unincorporated international treaties do not form part of domestic law and thus a domestic court cannot determine whether the UK has breached its obligations under the Paris Agreement. 

In relation to the alleged breaches of the Act, Bourne J held that the statutory duties imposed are to prepare proposals and policies and to lay programmes before Parliament. They are not duties to achieve specific outcomes. Bourne J held that the first grounds of challenge could not succeed as the Secretary of State had prepared ‘proposals and policies that he considers will enable the carbon budgets that have been set under the Act to be met’ (section 13) and had laid programmes before Parliament setting out objectives, proposals, policies and timescales regarding adaptation to climate change (section 58). Bourne J further held that disagreement with the merits of those proposals and policies did not give rise to an arguable case that there had been a breach of the statutory duties. 

Bourne J noted the role of the Climate Change Committee, which was created by the Act for the purpose of providing independent advice and oversight to Government, and their statutory obligation to consider whether budgets and targets are likely to be met. Their views are not, however, binding on the Government. He held that the wording of the Act presupposed that the Committee may find on occasion that they are not met. Their views do not give rise to a foundation for a Court to declare that action or policies on climate change are unlawful. Further, any criticism by the Committee, or others, of the measures or lack of measures adopted does not establish an arguable case for judicial review and does not establish that a legal and administrative framework has not been established in response to climate change.

He further held that critical reports by the Committee do not support the proposition that the Act is not being complied with, as the Claimants contended, but in fact demonstrated that the Act was working as Parliament intended because the Committee’s reports and responses would feed into an evolution of policy over time. 

Bourne J held that the Claimants’ claim based on Article 2 ECHR (and any Article 8 ECHR claim based on the physical/psychological effects of climate change) was fatally undermined by the fact that there was an administrative framework to deal with the threats of climate change, i.e. the Act and the policies and measures adopted pursuant to the Act. The Climate Change Committee had a role to play in that framework, which is constantly evolving and developing. The Government, for example, had recently published the ‘Net Zero Strategy: Build Back Greener’ which put the UK on track to meet the fourth, fifth and sixth carbon budgets whilst the reports and responses required by the Act continued to be issued. Measures relating to finance were also moving targets. Further, the lack of a provision to compensate people outside the UK for climate change loss did not give rise to any arguable breach of a positive obligation under Articles 2 or 8 ECHR. 

That administrative framework consists of high level economic and social measures involving complex and difficult judgements and thus the State enjoys a wide margin of appreciation. Although all the circumstances must be considered, generally its judgment will be respected unless it is manifestly without reasonable foundation. This reflects both the constitutional separation between the Courts, Parliament and the executive and the fact that the Court is not well equipped to form its own views on the complex matters in question. This latter point was reflected also in Bourne J’s finding that the Claimants were seeking to invite the Court to venture beyond its sphere of competence and that the framework established by the Act, which provided for debate in a political rather than a litigation context, should be allowed to operate. 

In respect of the claim based on family life pursuant to Article 8 (and/or Article 14) ECHR, Bourne J held that the evidence available was not sufficient to make findings of fact which would support the Claimants’ case that ties with non-immediate adult relations who live overseas can constitute relevant family life. There was a lack of evidence of a family life which consisted of or was comparable to the immediate nuclear family which was the subject of protection by Article 8. Further, there was no evidence of that family life being carried on in the UK, or of circumstances so exceptional that the Courts would extend their jurisdiction to such family life when carried on overseas. The claim therefore failed the evidential threshold. Even if that was not the case, they would still have faced the insuperable difficulty that an administrative framework had been established to address climate change. 

Bourne J also held, in respect of all the alleged breaches of ECHR rights, that none of the Claimants could arguably establish the necessary status required by section 7(1) of the Human Rights Act 1998, i.e. that they were a ‘victim’ of a breach. In particular, it was impossible for Plan B Earth, an organisation, to be a victim. 

A copy of the judgment is available here. 

Richard Honey QC and Ned Westaway acted for the Defendants instructed by the Government Legal Department. Flora Curtis assisted at an earlier stage of the litigation