Friends of the Earth & Ors, R (on the application of) v Secretary of State for Energy & Climate Change

The Court of Appeal dismissed the appeal and upheld the Administrative Court's approach to the Warm Homes and Energy Conservation Act 2000. The court held that the duty in section 2(1)–(2) to prepare a strategy and to specify interim objectives and a target date is a justiciable duty to make reasonable endeavours rather than an absolute obligation to achieve the targets by the dates. The qualification "as far as reasonably practicable" is to be construed in the public law context, not by importing the tort/health and safety "gross disproportion" test from Edwards v National Coal Board. Departmental budgetary constraints are a relevant consideration for the Secretary of State when assessing what is reasonably practicable and the Secretary need not spend sums beyond those made available by Parliamentary appropriation. The court accepted that the statutory minimum is implementation of the express provisions of the published Strategy and that a judicial review challenge can succeed only if there is a demonstrated failure to implement identifiable parts of the Strategy or irrationality in particular decisions.

Background and parties

• The claimants (Friends of the Earth and others) brought judicial review proceedings challenging the Secretary of State's implementation of the UK Fuel Poverty Strategy prepared under the Warm Homes and Energy Conservation Act 2000. The proceedings were brought in the Administrative Court (McCombe J) and then appealed to the Court of Appeal.

Nature of the claim and relief sought

• The claimants sought a declaration that the Secretary of State was unlawfully failing to perform duties imposed by section 2(5) and (6) of the Act (duties to take steps to implement the Strategy and to assess and report progress).

Issues framed by the court

• Whether the statutory obligation to specify target dates and to take steps to implement the Strategy required the Secretary of State to achieve the targets by the dates except where physically impossible, or whether it required reasonable endeavours or efforts to achieve them (the construction of "as far as reasonably practicable").
• Whether the test of "reasonable practicability" in this public law context imported the health and safety tort test (the "gross disproportion" approach from Edwards v National Coal Board).
• Whether consideration of departmental budgets and Parliamentary appropriation unlawfully limited the Secretary of State's statutory duty.
• Whether particular implementation decisions (for example changes to Warm Front funding, targeting of Winter Fuel Payments, and absence of a costed plan) lacked reasonable justification such that implementation duty was breached.

Court's reasoning and subsidiary findings

• The court agreed with McCombe J that the statutory duty is framed as an obligation to use best endeavours rather than to guarantee that targets will be met. The language of section 2(1)–(2) and the requirement that the Secretary of State take such steps "as are in his opinion necessary to implement the Strategy" supports a duty of effort.
• The court rejected the importation of the Edwards-style "grossly disproportionate" test into this public law context and held that the meaning of "reasonably practicable" can vary with statutory context; conventional public law principles apply.
• The Secretary of State could legitimately take into account departmental budgets and the constraints of Parliamentary appropriation when assessing what steps were reasonably practicable; section 2 does not permit spending in a year vastly more than that provided for by the Appropriation Act.
• The statutory minimum standard was identified as implementation of the Strategy's express provisions. Absent a demonstrated failure to implement identifiable provisions or a Wednesbury irrationality challenge to specific decisions, the court would not substitute its judgment for policy choices as to allocation of resources.
• McCombe J had not erred in rejecting the appellants' contention that lack of reasonable justification established a breach; without a proportionality framework or a conventional irrationality challenge, that form of challenge was unsustainable.

Procedural posture

• Appeal from the Administrative Court, Queen's Bench Division (McCombe J), reported as [2008] EWHC 2518 (Admin).

Wider context

• The court noted the growing incidence of target‑setting statutes imposing duties on Ministers and observed the potential for public law litigation in this developing area, urging caution in construction to avoid judicialisation of public spending priorities.

Appeal dismissed. The Court of Appeal agreed with McCombe J that the duty in section 2 of the Warm Homes and Energy Conservation Act 2000 is an obligation of effort or endeavour to achieve the targets "as far as reasonably practicable", not an absolute guarantee to reach the targets; the "grossly disproportionate" health and safety test does not apply in this public law context; departmental budgetary constraints and Parliamentary appropriation are relevant to reasonable practicability; and there was no demonstrated failure to implement identifiable provisions of the Strategy or other lawful basis to grant relief.

Appeal from the Administrative Court, Queen's Bench Division (McCombe J) where the judge had dismissed the claim; reported as [2008] EWHC 2518 (Admin). This Court delivered judgment in the appeal as [2009] EWCA Civ 810.