Plan B Earth & Ors, R. (on the application of) v Secretary of State for Business, Energy And Industrial Strategy

The claimants sought judicial review of the Secretary of State’s decision not to amend the 2050 carbon target under the Climate Change Act 2008. The court assessed the statutory scheme (in particular ss.1, 2 and 3 of the 2008 Act and the role of the Committee on Climate Change), the Committee’s October 2016 advice, and the effect of the Paris Agreement. The principal legal questions were whether the Secretary of State had misunderstood the Committee’s advice, misinterpreted his statutory powers, acted irrationally or unlawfully in frustrating the statutory purpose, or failed to have regard to human rights or the public sector equality duty.

The judge concluded that the Committee’s advice was clear and that the Secretary of State did not misunderstand it. The Secretary of State was entitled, having taken the Committee’s advice into account, to refuse to amend the 2050 target at that time. The claimed misunderstandings and alternative grounds (including reliance on ss.26–28 accounting, alleged incompatibility with the Paris Agreement, ECHR Articles 2/8/Article 1 of Protocol 1 under the Human Rights Act 1998, and s.149 Equality Act 2010) were not arguable. Permission to apply for judicial review was refused.

This is a renewed application for permission to apply for judicial review by Plan B Earth and other claimants challenging the Secretary of State for Business, Energy and Industrial Strategy’s refusal to amend the statutory 2050 carbon target under the Climate Change Act 2008.

Background and parties:

• The statutory framework requires the Secretary of State to ensure the net UK carbon account for 2050 is at least 80% lower than 1990 levels (s.1(1)); s.2(1)(a) permits amendment of the 2050 target but s.2(2) limits that power to cases where there have been significant developments in scientific knowledge or international or European law or policy. The Secretary of State must obtain and take into account advice from the statutory Committee on Climate Change (s.3(1)(a); ss.32–36; Schedule 1).
• The Committee provided advice in October 2016 that the 2050 target should not be altered at that time but that the Government should keep the long-term ambition under review in light of further evidence (including IPCC work and the Paris Agreement ratification consequences).

Relief sought and issues:

• The claimants sought permission to challenge the Secretary of State’s decision as unlawful on multiple grounds: (1) that refusal to amend frustrated the legislative purpose of the 2008 Act; (2) that the Committee’s advice was flawed because it misunderstood the Paris Agreement, so the Secretary of State’s reliance on it was unlawful; (3) irrationality and failure to take relevant considerations into account (including accounting for international carbon units under ss.26–28); (4) breach of positive human rights obligations under Articles 2 and 8 ECHR and Article 1 of Protocol 1 (via the Human Rights Act 1998); and (5) failure to comply with the public sector equality duty (s.149 Equality Act 2010).

Court’s reasoning and disposition:

• The court reviewed the Committee’s 2016 report in full, including its Executive Summary and chapters analysing the relationship between the UK 2050 target and the Paris Agreement. The judge found the Committee’s advice to be coherent: it recognised the Paris Agreement’s greater ambition, acknowledged that net-zero would be the ultimate aim, and advised that it was too early to set a new statutory 2050 target without feasible, evidence-based pathways and policies to deliver it.
• The court rejected the contention that the Secretary of State misunderstood the Committee’s advice or misconstrued the 2008 Act. The Secretary of State was entitled to accept the Committee’s view that the existing target was not required to be changed immediately and that the net-zero goal required further evidence and a feasible pathway.
• The court held that none of the grounds advanced were arguable: the statutory discretions were lawfully exercised, the advice was not flawed, the human-rights challenge did not identify an interference or an arguable breach, and the equality-duty claim did not establish a failure to consider protected groups in a way that made the decision arguable unlawful.

Outcome: the renewed application for permission to apply for judicial review was refused as the claim was not arguable.

This was a first-instance judicial review application which the court refused. The application for permission to apply for judicial review is refused because the Secretary of State lawfully exercised his statutory discretion not to amend the 2050 target at the time in question. The Committee’s 2016 advice was read as a whole and was not misunderstood; the statutory scheme (including ss.1, 2 and 3 of the Climate Change Act 2008 and the Committee’s role) supported the Secretary of State’s approach. The asserted grounds (frustration of legislative purpose, flawed advice, irrationality, human rights breach and breach of the public sector equality duty) were not arguable.

Permission on the papers was previously refused by Lang J. The present judgment records a renewed application heard by Supperstone J, who refused permission and dismissed the application. No further appellate history is stated in the judgment.