R. (on the application of Friends of the Earth) v Secretary of State for Business, Energy and Industrial Strategy

The claimants sought judicial review of the Secretary of State's approval and publication of the Net Zero Strategy (NZS) as the report under section 14 of the Climate Change Act 2008, asserting failures under sections 13 and 14 of that Act and, in the alternative, incompatibility with Convention rights under the Human Rights Act 1998. The court held that sections 13 and 14 do not require the Secretary of State to be satisfied solely by quantified policies proving 100% of the reductions required by a carbon budget, but they do require adequate quantitative analysis and explanation to support the Secretary of State's judgment.

Concretely, the court found the briefing to the Minister legally insufficient because it omitted obviously material information: the department's quantitative breakdown of the contribution of individual (or grouped) policies to the projected emissions reductions and a clear explanation of how the admitted shortfall in quantifiable measures (about 5% for CB6) was to be met. The NZS likewise failed to set out the necessary quantitative explanation and transparency required by s.14. The claim founded on Convention rights was rejected. The court also accepted the parties' agreement that the Heat and Buildings Strategy failed to comply with the public sector equality duty (section 149 Equality Act 2010) and declared that failure.

This is a first instance judicial review concerning the Secretary of State's decision to approve and lay before Parliament the Net Zero Strategy (NZS) under section 14 of the Climate Change Act 2008 following the setting of the Sixth Carbon Budget (CB6). The claimants (Friends of the Earth, ClientEarth, Good Law Project and Joanna Wheatley) challenged that decision on three main grounds: (1) error in law under s.13 CCA 2008 (that the Secretary of State was not entitled to approve proposals where the quantified measures were predicted to deliver only c.95% of CB6 reductions and where briefing omitted obviously material matters); (2) failure of the s.14 report to include legally required information (in particular quantitative allocations and timescales for each policy); and (3) an alternative Human Rights Act argument that ss.13 and 14 must be read under s.3 HRA 1998 so as to secure Convention rights.

Background and procedure: CB6 was set at 965 Mt CO2e (2033–2037). The UK Government published the NZS on 19 October 2021 as its s.14 report. BEIS officials prepared modelling, an "indicative delivery pathway" and a dataset containing quantified estimates of emissions reductions by policy. That dataset was used internally to estimate that quantified policies would deliver about 95% of the reductions required for CB6, with the remainder said to be deliverable by further developed or unquantified measures. The ministerial submission to the responsible Minister did not disclose the departmental breakdown of individual policy contributions nor identify which unquantified or further-developed measures were relied upon to fill the shortfall. The claimants sought declarations (they did not seek quashing of the NZS) and relied on published authority and statutory interpretation.

Issues framed by the court: (i) whether s.13(1) requires the Secretary of State to be satisfied by quantitative analysis that the quantifiable measures alone deliver 100% of a carbon budget; (ii) whether the Minister's briefing and the NZS complied with the implied and express information requirements of ss.13 and 14, including the need to address timescales and the contributions of individual policies; (iii) whether ss.13 and 14 must be read compatibly with Convention rights under s.3 HRA 1998 to impose the more demanding interpretation urged by claimants.

Reasoning and conclusions:

• The court held that s.13(1) imposes a continuing duty to prepare proposals and policies that the Secretary of State considers will enable carbon budgets to be met, but it does not legally require that only quantified policies shown to deliver 100% of reductions satisfy that duty. Predictive assessments involve judgment and uncertainty; quantitative analysis informs but does not wholly circumscribe the Secretary of State's judgment.
• However, the statutory scheme requires Ministers to have adequate and legally sufficient briefing. The court concluded that, as a matter of law, the contribution of individual (or plainly grouped) quantifiable policies to the cumulative reductions is an "obviously material" consideration and that the Minister was obliged to be provided with the department's quantification (or an intelligible summary thereof) so that he could assess delivery risks and the adequacy of any qualitative judgment used to address a quantified shortfall.
• Similarly, s.14(1)-(4) requires the Secretary of State's report to "set out" proposals and policies in a manner that explains how they are intended to meet the carbon budgets; that requires sufficient quantitative explanation (including the effects and timescales of proposals so far as they are quantifiable) for Parliamentary and public scrutiny. The NZS failed to disclose the department's quantification showing c.95% coverage of CB6 or to explain how the shortfall would be met and thus did not satisfy s.14.
• The Human Rights Act argument failed. The court rejected the submission that s.3 HRA 1998 permits (or requires) courts to adopt an interpretation that is simply "more conducive" to the protection of Convention rights or to reframe ss.13 and 14 so as to impose the more stringent obligations urged by claimants.

Remedy and practical outcome: the court upheld grounds 1 and 2 in part (procedure and information failures) and rejected the human rights claim. The court accepted the agreed declaration that the Heat and Buildings Strategy breached s.149 Equality Act 2010. The judgment emphasises the need for clear, adequate briefing and transparent reporting so as to permit ministerial judgment and Parliamentary scrutiny consistent with the statutory carbon budgeting regime.

First instance: the court granted a partial success for the claimants. It held that (i) s.13(1) of the Climate Change Act 2008 does not require that only quantified policies which alone demonstrate 100% of the reductions be relied upon, but the Secretary of State must be provided with legally sufficient quantitative analysis and explanation, including the contributions of individual quantifiable policies and the basis for any qualitative judgment used to address a quantified shortfall; (ii) s.14 requires the report laid before Parliament to set out sufficient quantitative explanation and expected timescales so Parliament (and the public) can scrutinise how budgets are to be met; (iii) the NZS and the ministerial briefing were legally deficient in the respects identified; (iv) the Human Rights Act argument failed. The court also declared that the Heat and Buildings Strategy failed to comply with section 149 of the Equality Act 2010. Rationale: insufficiency of briefing and reporting on quantification and delivery risk undermined rational ministerial decision-making and Parliamentary transparency.