Friends of the Earth & Anor v Secretary of State for Business Enterprise and Regulatory Reform & Anor

The statutory duty was to take such steps as the Secretary of State considered necessary to implement the whole strategy, including efforts to meet its fuel-poverty objectives so far as reasonably practicable. It was a duty of effort, not a guarantee that the targets would be achieved.

In assessing reasonable practicability, government could consider its overall resources and competing demands. The court could intervene for legal error, irrationality, or failure to implement an identifiable strategy provision, but could not review the merits of policy choices concerning resource allocation in the absence of such a challenge.

The claimants sought judicial review of the alleged failure by the Secretaries of State to perform duties under sections 2(5) and 2(6) of the Warm Homes and Energy Conservation Act 2000. They accepted that the published fuel-poverty strategy complied with section 2, but contended that the defendants had failed to implement it because the relevant targets were unlikely to be met.

The central issues were whether the Act imposed a duty to achieve the targets, whether government resources could be considered in determining what was reasonably practicable, and whether particular aspects of the strategy had not been implemented.

1. Construction of the duty. Section 2(5) required the defendants to take the steps they considered necessary to implement the whole strategy. That included considering what steps were reasonably practicable to pursue the 2010 and 2016 objectives. The duty concerned effort to seek or tackle fuel poverty, rather than an absolute obligation to achieve the stated results.
2. Resources. The expression “reasonably practicable” had to be construed in the statutory and governmental context. Overall government resources and competing demands on public funds were relevant. Parliament could not be taken to have required expenditure of whatever sum was necessary to eliminate fuel poverty in priority to all other commitments. The duty’s minimum standard was implementation of the strategy’s express provisions.
3. Judicial review. The court could intervene where the defendants misunderstood their legal duty, acted irrationally, or failed to implement an identifiable provision of the strategy. Without such a ground, the court could not adjudicate on the merits of policy choices or the allocation of funds. The statutory payment provision in section 3 did not alter that construction.
4. Application. The evidence did not establish that the defendants had assessed practicability by reference only to departmental budgets, nor that they had failed to implement the strategy’s provisions concerning households without a gas supply. The criticism of progress and of the Warm Front and Winter Fuel Payment policies was, in substance, a merits challenge.
5. Order. The claim for judicial review was dismissed.