Global Feedback Limited, R (on the application of) v His Majesty’s Treasury & Anor

Permission for judicial review should be granted where pleaded errors in the assessment of environmental consequences are properly arguable. This includes alleged irrationality, failure to make adequate inquiries, failure to take material facts into account and predetermination.

The statutory test for refusing permission because the outcome would probably have been unchanged imposes a high hurdle on the defendant. The court should avoid deciding the merits or taking over the decision-maker’s evaluative role at the permission stage.

Expert evidence is admissible in judicial review where it is reasonably required to determine whether the challenged decision involved a serious technical error, rather than merely expressing an opinion on which experts could reasonably disagree.

The claimant sought permission to challenge regulations implementing the United Kingdom’s free trade agreement with Australia. It alleged that the defendants had failed rationally and lawfully to assess possible carbon leakage and greenhouse gas emissions arising from increased Australian agricultural imports.

The claim relied on alleged errors in the impact assessment, inadequate inquiry, failure to consider material facts, predetermination and failure to have regard to international climate obligations under section 28 of the Taxation (Cross-border Trade) Act 2018.

The court also had to determine applications concerning amendments, expert evidence, witness evidence, cost protection and whether permission should be determined at a rolled-up hearing.

1. Permission granted. Permission was granted on all amended grounds. The allegations that the defendants had irrationally assessed, or failed to assess, the risk and scale of carbon leakage from cattle and dairy production were arguable. The claimant’s complaints concerning scientific errors, inadequate inquiry, material facts and predetermination met the relatively low threshold for permission.

2. The court was not confined to the claimant’s narrower description of carbon leakage. On the material before it, it was arguable that the concept included consequences arising from increased, more greenhouse-gas-intensive imports and shifts in production.

3. The expert reports of Professor Behrens were admitted. Applying the criteria identified by the Divisional Court in R (Law Society) v Lord Chancellor [2019] EWHC 2094 (Admin), expert evidence was reasonably required to determine whether the decision-making process arguably involved a serious technical error. The issue was not merely one on which two experts might reasonably disagree. The evidence remained subject to criticism at a later stage.

4. It was at least arguable that section 28 of the Taxation (Cross-border Trade) Act 2018 required the defendants to have regard to the United Kingdom’s obligations under the UNFCCC. The court could not conclude that the statutory outcome test was satisfied.

5. Under section 31(3D) of the Senior Courts Act 1981, the defendant had to establish that it was highly likely that the outcome would not have been substantially different. That was a high hurdle, and the evidence was insufficient to discharge it. Following R (Plan B) v Secretary of State for Transport [2020] EWCA Civ 214, the court had to avoid entering the forbidden territory of acting as the decision-maker, particularly where the decision required evaluative judgment.

The proposed amendments and additional witness evidence were permitted. The claim proceeded beyond the permission stage.

The judgment describes earlier case-management orders by Mr Justice Choudhury and Sir Duncan Ouseley concerning a rolled-up hearing, evidence and cost protection. The present court determined that permission should be decided separately and granted permission on all amended grounds. No appeal is stated.