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

Where legislation requires government to act as far as reasonably practicable, the phrase must be construed in its statutory and public-law context. It does not automatically import the health-and-safety test under which only grossly disproportionate sacrifices are excluded. The duty under the Warm Homes and Energy Conservation Act 2000 was one of effort or endeavour to implement a strategy, not an absolute guarantee that targets would be achieved. The Secretary of State could consider current departmental and wider government resources and competing spending priorities. Judicial review remained available for irrationality or failure to implement an identifiable express strategy provision, but not to reassess the merits of policy choices.

Friends of the Earth and other claimants sought judicial review of the Secretary of State’s implementation of the UK Fuel Poverty Strategy. The claim alleged breaches of sections 2(5) and 2(6) of the Warm Homes and Energy Conservation Act 2000, whose strategy contained targets for reducing fuel poverty by 2010 and 2016.

McCombe J rejected the principal construction arguments and the alternative complaint that the Secretary of State’s decisions lacked reasonable justification: [2008] EWHC 2518 (Admin). The appeal concerned whether the statutory duty required achievement rather than effort, how reasonable practicability should be assessed, whether budgetary constraints could be considered, and whether the court could intervene without a conventional rationality challenge.

1. Appeal dismissed. Maurice Kay LJ gave the judgment, with Lloyd LJ and the President of the Family Division agreeing.
2. The Warm Homes and Energy Conservation Act 2000 imposes legal obligations, but its language and structure show that the operative duty is one of effort or endeavour. The Secretary of State must take steps considered necessary to implement the strategy and pursue its interim and final objectives as far as reasonably practicable. The Act does not guarantee that the targets will be achieved.
3. The meaning of reasonable practicability depends on statutory and legal context. The health-and-safety approach in which risk is balanced against sacrifice, subject to gross disproportion, does not apply. Edwards v National Coal Board [1949] 1 KB 704, the approach in R v London Borough of Brent, ex parte S [1994] 1 FLR 203, and the reasoning in R(Calgin) v Enfield LBC [2006] 1 All ER 112 and R(Q) v Secretary of State for the Home Department [2003] EWCA Civ 364 confirmed the importance of context and conventional public-law principles.
4. In deciding what is reasonably practicable, the Secretary of State could consider current resources, departmental budgets, the overall government budget and competing calls on public funds. Section 2 did not require or permit expenditure vastly exceeding the amount made available through the constitutional appropriation process. This avoided an undesirable judicialisation of public spending priorities.
5. The minimum statutory standard was implementation of the strategy’s express provisions, including a suitable and appropriate package of measures directed to its objectives. The court could intervene for irrationality or a demonstrated failure to implement an identifiable strategy provision, but could not adjudicate on the merits of policy choices. The complaint of lack of reasonable justification was an unsustainable attempt to recast a proportionality or rationality challenge.

1. Court of Appeal (Civil Division): dismissed the appeal.
2. Administrative Court, Queen’s Bench Division: McCombe J rejected the application for judicial review: [2008] EWHC 2518 (Admin).