English Court rejects (again) a request to judicially review the UK Government’s climate change policies

The High Court has refused a renewed application from Plan B and three UK students for permission to apply for judicial review of the UK Government’s alleged failures to meet its climate change commitments, noting the “insuperable problem” of trying to establish that such failures also violated the Claimants’ human rights.

Nature of the complaint

In this latest challenge, the Claimants called for a declaration that the Government’s alleged failures to take effective measures to meet their climate change commitments under the Paris Agreement and the Climate Change Act 2008 were in breach of the Human Rights Act 1998. They also sought a mandatory order that the Government urgently implements a framework to meet its commitments going forward.

In seeking these two remedies, the Claimants relied on a variety of evidence to allege the following four failures by the UK Government:

1. failure to take practical and effective measures to align UK GHG emissions to the temperature limit in the Paris Agreement;
2. failure to take practical and effective measures to adapt and prepare for the impacts of climate change;
3. failure to take practical and effective measures to align UK financial flows to the temperature limit in the Paris Agreement; and
4. failure to implement the “polluter pays” principle and a framework to provide fair compensation for those suffering climate change loss and damage whether in the UK or beyond.

Notwithstanding that the evidence relied upon (some of an expert or official nature) displayed explicit criticism of the Government’s climate change proposals, policies and programmes, the High Court declined to intervene on all grounds.

Findings of the High Court

In his judgment, the Hon. Mr Justice Bourne held that because certain climate change proposals, policies, and programmes had been made, it was sufficient to meet the Government’s statutory duties under the Climate Change Act. Disagreement with the merits of those proposals did not give rise to an arguable case. Furthermore, he said such a claim “does not get off the ground” and noted that even Mr Crosland of Plan B described his reliance on the Climate Change Act as “half-hearted”.

As for the human rights-related complaints, the Claimants alleged a direct threat to life; respect for private and family life; and discrimination (ECHR Arts 2, 8 and 14) based on the Government’s alleged four climate change failures mentioned above.  The Hon. Mr Justice Bourne stressed the “insuperable problem” with such complaints where there was already a framework to combat climate change threats (i.e. the Climate Change Act). He went on (quoting Lord Reed in R (SC) v Work and Pensions Secretary [2021] UKSC 26, [2021] 3 WLR) to say that in circumstances where that framework consists of high level economic and social measures involving complex and difficult judgments, “the constitutional separation between the Courts, Parliament and the executive should be respected”. This approach, he felt, also “reflects the fact that the Court is not well equipped to form its own views on the matters in question”.

Ultimately, the difficulty with these types of claims, he found, is that they “invite the Court to venture beyond its sphere of competence.” In his view, “the framework established by the 2008 Act should be allowed to operate. It contains provision for debate, and that debate occurs in a political context with democratic, rather than litigious, consequences.”

Additionally, the Article 8 and/or Article 14 claims failed at the evidential threshold because the “family life” that the Claimants sought to protect concerned ties with cousins and other similar relatives living overseas.  Accordingly, the Judge found the claims combined two difficulties:

1. it is only in exceptional circumstances that the Courts of the UK will hold a UK public authority liable for a breach of ECHR rights outside the UK; and
2. relations between non-immediate adults do not ordinarily amount to family life.

In the alternative, the High Court was also not convinced that any of the Claimants could establish the necessary status as a “victim” of a breach of ECHR rights to qualify bringing a claim under section 7(1) of the Human Rights Act.

Plan for appeal and links to cases elsewhere

On 27 December 2021, Plan B filed their application for permission to appeal against the High Court decision. They have stated that they intend to appeal to the European Court of Human Rights if permission is refused by the Court of Appeal.

It remains to be seen whether such a claim will ultimately find footing in the UK, but it is interesting to look at other climate change cases where parallels can be drawn with the Judge’s reasoning and where there are differences in the treatment of such complaints.

In this judgment, the Netherlands’ decision in Urgenda was distinguished (in passing) on the basis that this challenge was not to a framework of laws, but rather to a change in the Dutch state’s emissions reduction target.

On the contrary, the High Court’s decision resonates with the approach taken last year by Courts in Belgium, in a case brought by an NGO against the Belgian state and other Belgian public authorities for failing to reduce GHG emissions. The decision there placed great importance on “the principle of separation of powers” in deciding that it was not for the judiciary, but for the Belgian legislature and executive to decide how Belgium should go about reducing its GHG emissions (although in that case the court did find the Belgian state had breached civil legislation and the ECHR and the NGO has since filed an appeal seeking to impose binding emissions reduction targets on the government).

The decision also echoes some of the policy reasoning given by New Zealand’s Court of Appeal in Smith v Fonterra [2021] NZCA 552 in rejecting a novel climate-change related claim against several defendants that operate facilities that are responsible for GHG emissions. The Court was clear that “a sophisticated regulatory response at a national level, supported by international co-ordination" was needed to address climate change, rather than common law being the correct mechanism. Additionally, the Court noted that although it plays an “important role in supporting and enforcing the statutory scheme for climate change responses and in holding the Government to account”, its role is not “to develop a parallel common law regulatory regime that is ineffective and inefficient, and likely to be socially unjust”.