FRIENDS OF THE EARTH LIMITED (R on the application of) & Ors v SECRETARY OF STATE FOR BUSINESS, ENERGY AND INDUSTRIAL STRATEGY

Under section 13 of the Climate Change Act 2008, the Secretary of State may combine quantitative and qualitative assessments when deciding whether proposed policies will enable carbon budgets to be met. Quantifiable policies need not account numerically for every required emissions reduction.

The Minister must, however, receive legally adequate information about individual policies’ contributions, delivery risks and any reliance on unquantified measures to meet a projected shortfall. A report under section 14 must explain and quantify how the policies are expected to meet the budgets. It must address individual or interacting policies where their effects can properly be quantified. These duties support effective ministerial decision-making, parliamentary accountability and public transparency.

Following the setting of the sixth carbon budget, the Secretary of State approved proposals and policies under section 13 of the Climate Change Act 2008 and laid the Net Zero Strategy before Parliament as a report under section 14.

Three joined judicial review claims challenged those decisions. The claimants alleged that quantified policies were projected to deliver only about 95% of the reductions required for the sixth carbon budget; that the Minister lacked essential information about individual policy contributions and the remaining shortfall; and that the published Strategy omitted information required by section 14. They also advanced an alternative argument under section 3 of the Human Rights Act 1998. A related challenge concerning the Heat and Buildings Strategy was resolved by agreement.

The central issues were the nature of the predictive judgment required by section 13, the information legally required for that judgment, and the explanatory and quantitative content required of a section 14 report.

1. The claims succeeded in part. Grounds 1 and 2 were upheld to the limited extent identified by the court. Ground 3 was rejected. The court also accepted the parties’ agreement that the Secretary of State had failed to comply with section 149 of the Equality Act 2010 when adopting the Heat and Buildings Strategy.

2. Section 13(1) of the Climate Change Act 2008 requires proposals and policies which, taken overall, the Secretary of State judges will make it possible or effective to meet the carbon budgets. It requires a predictive assessment, not certainty. The assessment must include quantitative analysis, but quantifiable policies need not numerically deliver 100% of the required reductions. Quantitative modelling itself involves expert judgment and uncertainty. The Secretary of State may therefore rely additionally on a sufficiently cogent qualitative assessment of unquantified policies.

3. The Minister’s briefing was legally inadequate. Risk to the delivery of individual measures and the statutory targets was an obviously material consideration. The Minister needed information about the estimated contributions of individual or interacting quantified policies, including their relationship to the cumulative 95% estimate. He also needed to know which unquantified or further-developed policies were relied upon to meet the remaining shortfall and the basis of that judgment. Without this information, he could not rationally assess the robustness of the package or discharge section 13(1).

4. Section 14 requires more than publication of a list of policies. Read in its statutory context, the duty to set out proposals and policies for meeting carbon budgets requires an explanation of how they are expected to do so and legally adequate quantification of their effects. The Net Zero Strategy unlawfully omitted the contributions of quantifiable individual or interacting policies, the fact that quantified measures were projected to deliver only 95% of the reductions needed for the sixth carbon budget, and the basis on which the shortfall was expected to be met.

5. Section 3(1) of the Human Rights Act 1998 applies only where the ordinary interpretation of legislation is incompatible with a Convention right. It permits no different construction merely because that construction would be more conducive to protecting Convention rights or minimising climate-change effects.

6. The court could not refuse relief under section 31(2A) of the Senior Courts Act 1981. It was impossible to conclude that the outcome was highly likely to have been substantially the same had the Minister received the legally required information and Parliament and the public received a compliant report.

This was a first-instance judicial review. Cotter J granted permission on 1 March 2022 in each of the three claims and directed that they be heard together because of their substantial overlap.