Alexi Norris – The Queen (on the application of (1) Friends of the Earth Limited (2) ClientEarth (3) Good Law Project and Joanna Wheatley v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin)

The High Court decided that the Secretary of State for Business, Energy and Industrial Strategy’s Net Zero Strategy (“NZS”) breached its obligations under sections 13 and 14 of the Climate Change Act 2008 (“the Act”). The strategy sets out the Government’s policies and proposals for meeting carbon budgets set by Parliament. The case joined three legal challenges (judicial review) brought by ClientEarth, Friends of the Earth, Good Law Project and, environmental campaigner, Jo Wheatley in June. Interestingly, the judgment was published amid the first ever red alert for extreme heat (38 – 40 degree temperatures) last month. 

In 2019, section 1 of the act was amended to a new target to reduce the UK’s greenhouse gas emissions to “net zero” by 2050 – 100% lower than the UK’s 1990 baseline – in response to the Paris Agreement (a legally binding international treaty on climate change, effective from November 2016). For the UK to achieve this target, it requires the Secretary of State (“SoS”) to set various 5 year carbon targets up to the year 2052, and these targets must be approved by Parliament. Once this budget is approved, the Act confers a duty onto the SoS to ensure that the target is met.[1]

S.13 of the Act imposes a “continuing duty” upon the SoS to prepare policies and proposals enabling the necessary carbon budgets to be met. On 17 October 2021 a Minister acting on behalf of the SoS approved the policy package published as the NZS.

S.14 requires the SoS, as soon as reasonably practicable after a carbon budget is set (in this case the sixth carbon budget “CB6”) to bring before Parliament a report setting out their proposals and policies for meeting the carbon budgets up to, and including the new carbon budget. The report must also detail other matters including the time-scales for when the policies are expected to take effect, and how they affect different sectors of the economy. On 19 October 2021 the SoS laid the NZS before Parliament as his report.

The Claimant’s asked the court to, if they succeed on any of the grounds of challenge, grant a declaration as to the legal position, and mandatory orders; they did not ask for the NZS to be quashed. 

Prior to the hearing, the SoS accepted Friends of the Earth’s (“FoE”) challenge to the Government’s Heat and Buildings Strategy (published on the same day as the NZS). FoE’s challenge was that the Government had failed to carry out an Equality Impact Assessment for the purposes of s.149 of the Equality Act (‘Public sector equality duty’ in that a public authority must, or must have regard to, advance equality, eliminate discrimination, harrassment and or vicitimisation, and foster good relations). The court made a declaration to that effect. The court was not asked by the Claimant to squash this strategy. 

The claimants put forward three grounds of challenge in relation to the SoS NZS:

Ground 1 – section 13

a. The claimants say that under section 13 the Secretary of State had to be satisfied that his numerical estimate of emissions reductions from policies with a quantifiable effect will enable 100% of the numerical target in CB6 to be met. Here, the defendant erred in law because he was satisfied that his quantifiable policies would achieve only 95% of the target in CB6, leaving the shortfall to be made up by a qualitative judgment about the future effects of his policies;

b. In addition, the Secretary of State failed to take into account matters which he was legally obliged to consider. In particular, under his numerical analysis, he did not consider the contributions which each quantifiable policy would make to meeting the carbon budgets, and under his qualitative analysis, which policies were proposed to make up the 5% shortfall and in what ways. He was not briefed by his officials on those matters.”

The court rejected the first two main points that the Claimants raised under this ground. The court concluded that the SoS does have to be satisfied that his numerical estimations of emission reductions from quantifiable policies will enable him to meet 100% of the carbon budget. Therefore, there was no legal error that those quantifiable effects were only expected to achieve 95% of the reductions required by the CB6 ([161] – [193] of the judgment). But, the Claimants were successful on the second main point in the first ground ([194]-[222] of the judgment). Under the Act, the SoS has duties that are essential to the operation of the Act, including setting and meeting carbon budgets; the SoS’ duty is to ensure that the targets under s13 are to be met, and the SoS holds responsibility for these obligations, not his officials. 

Overall, the court held that the SoS was to take into account (a) the quantitative effects of individual policies and (b) a qualitative analysis explaining which policies were replied upon to make up the 5% shortfall against the reductions required by the CB6, and in what ways. The court noted that the SoS approved the strategy without being given adequate information to be content that the carbon budgets could be met. Without this information, the SoS had been unable to take into account and decide for himself how much weight to give the quantitative assessment, or his department’s approach to making up the shortfall. Without this information, the SoS was unable to consider, and determine for himself, the risk of the statutory targets not being delivered, thus in breach of his statutory obligations under s13. The SoS did not discharge his duty under s13. 

Ground 2 – section 14

The Secretary of State failed to include in the NZS information which was legally required to discharge his reporting obligations under section 14, in particular an estimate of the contribution which each quantifiable policy would make to meeting the carbon budgets, the existence of the 5% shortfall resulting from the quantitative analysis and how that shortfall was to be made up.”

The claim succeeded in parts [223] and [260] of the judgment. S14 was enacted to enable Parliament to scrutinise the SoS policies and to offer transparency to the public in order to properly understand how the Government intends to meet their statutory targets. The strategy failed to contain this information. The court rejected the SoS submissions that a s14 report needs to only tell Parliament what their policies are, not that they need to provide any explanation or quantification of the effects of those policies in meeting the numerical targets. The court held that these matters must be dealt with and highlighted under s14, which the NZS report did not cover: ‘the defendant did not satisfy the requirements of section 14 because the NZS lacked any quantitative assessment of the contributions expected to be made by individual policies to reductions in GHG emissions, and also because the report did not reveal that the quantitative analysis put before the Minister left a shortfall against the reductions required by CB6, or how that shortfall was expected to be met.’[2]

Ground 3 – Human Rights Act 1998

The court should prefer the claimants’ interpretation of sections 13 and 14 to the defendant’s because that would be more, rather than less, conducive to the protection of rights under the Human Rights Act 1998.”[3]

The claim failed, using s3(1) of the Human Rights Act 1998, on this ground. S3 only enables the court to depart from the ordinary meaning of the language used by the legislature if and only if it would be compatible with a convention right – and still, it may only be modified to the extent necessary to overcome the conflict identified. S3 cannot be used to depart from the ordinary meaning of a statute for the protection of a convention right if it is said to be more effective for it. 

The court ordered for the SoS to produce a new report, and lay it before Parliament under s14 by the end of March 2021. 

The court also refused for the SoS to appeal this decision due to lack of prospect for success and lack of compelling reason for an appeal to be heard by a higher court. 




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