R (Friends of the Earth) v SSEFRA

This judicial review challenged the lawfulness of the third National Adaptation Programme (NAP3), published under section 58 of the Climate Change Act 2008 (CCA). The claimants argued that the Secretary of State (DEFRA) misconstrued the statutory requirement to set "objectives" under s.58(1)(a), failed to consider delivery risks for the proposals and policies in s.58(1)(b), breached the public sector equality duty (PSED) under s.149 Equality Act 2010, and acted incompatibly with Convention rights under the Human Rights Act 1998 (HRA) (Articles 2, 8, 14 and Article 1 Protocol 1).

The court found that, applying ordinary principles of statutory construction, s.58 permits a range of specificity for "objectives" and does not require every objective to be expressed as a substantive, quantified target. The court held that the Secretary of State had not erred in law in the formulation of the NAP3 risk reduction goals (ground 1), and that consideration of delivery risk was required only to the extent rationality demanded; the preparation process and materials showed delivery risk had been considered sufficiently (ground 2). The court concluded that the PSED had not been complied with at the time of publication, but a comprehensive post-publication equality assessment (EQIA2) was subsequently considered by the Minister and removed any practical prejudice; for that reason permission to pursue the PSED ground was refused under the Senior Courts Act 1981. Human rights claims failed because the court judged that the CCA framework, the role of the Committee on Climate Change and the margin of appreciation applicable to adaptation measures meant no breach of Convention rights was established (ground 4).

Background and parties:

• NAP3 was laid before Parliament and published on 17 July 2023 pursuant to s.58 CCA. It sets out government objectives, proposals and time-scales addressing climate change adaptation risks assessed under s.56 CCA.
• Claimants: Friends of the Earth (environmental organisation), Kevin Jordan (coastal homeowner affected by erosion), and Doug Paulley (vulnerable care-home resident sensitive to extreme heat). Defendant: Secretary of State for Environment, Food and Rural Affairs.

Nature of the claim: A rolled-up judicial review seeking declarations and relief on four grounds: (1) legal error in construction of "objectives" under s.58(1)(a) (Ground 1); (2) failure to consider delivery risk of policies and proposals under s.58(1)(b) (Ground 2); (3) breach of the PSED under s.149 EA 2010 and, if breached, relief to be refused under s.31 SCA 1981 (Ground 3); and (4) breach of Convention rights and victim status under the HRA (Ground 4).

Issues framed:

• Whether s.58 requires objectives to be substantive, specific and measurable.
• Whether the Secretary of State was required to consider delivery risk for the policies and proposals in NAP3.
• Whether the PSED was complied with at publication and whether relief should be refused under s.31 SCA 1981 because a later EQIA cured any defect.
• Whether the claimants are "victims" for the purposes of the HRA and whether NAP3 breached Articles 2, 8, 14 or A1P1 ECHR, taking into account the Strasbourg judgment in Verein KlimaSeniorinnen Schweiz v Switzerland (VKS).

Court's reasoning and conclusions:

• Construction of s.58: The court applied ordinary principles of statutory construction. Part 4 of the CCA (adaptation) does not contain a single quantified benchmark comparable to mitigation obligations in Part 1; Parliament did not prescribe the degree of ambition or specificity for "objectives". "Objectives" in s.58 can validly have a range of specificity; a failure to select quantified targets does not of itself establish an error of law. The court therefore rejected the claimants' requirement that objectives be substantive, specific and measurable as a matter of law (Ground 1 failed).
• Risk of delivery: While delivery risk may be centrally important where objectives are specific and quantified (as under Part 1), the court held that the extent of consideration of delivery risk under s.58 depends on rationality. On the facts, the pathways, annexes and coordination work (including the Climate Adaptation Team's role) demonstrated that delivery risk had been considered sufficiently; no legal error was shown (Ground 2 failed).
• PSED: The court accepted that the Secretary of State had not discharged the PSED in substance at the precise time of publication (EQIA1 was inadequate). However, a comprehensive EQIA produced and considered after publication (EQIA2) was placed before the Minister, who reviewed and confirmed NAP3 unchanged. Applying the post-2019 SCA 1981 amendments, the court concluded it was highly likely the outcome would not have been substantially different and therefore refused permission to proceed on Ground 3 under s.31(3C)/(2A).
• HRA claims: The court analysed VKS and concluded that VKS chiefly addressed mitigation and exposed legislative lacunae in Switzerland that did not exist in the UK framework. The margin of appreciation for adaptation is wider; the UK CCA regime and the Committee on Climate Change provide statutory scrutiny. The claimants did not show that NAP3 breached Convention rights (Ground 4 failed).

Procedural posture and remedy: Permission to apply was granted in relation to Grounds 1, 2 and 4 but those grounds were dismissed on the merits. Permission to proceed on Ground 3 (PSED) was refused under the Senior Courts Act 1981 because a subsequent assessment had cured the defect in substance.

This was a first-instance judicial review. The court dismissed the claim overall: it held that the Secretary of State did not err in law in construing s.58 CCA or in relation to consideration of delivery risk (grounds 1 and 2), and the Convention rights challenge failed (ground 4). Although the PSED was not complied with at the precise time of publication, a comprehensive post-publication equalities assessment (EQIA2) was considered by the Secretary of State; on that basis the court refused permission to proceed on the PSED ground pursuant to the Senior Courts Act 1981. The claim is therefore dismissed: permission granted on grounds 1, 2 and 4 but those grounds dismissed; permission refused on ground 3 under s.31 SCA 1981.