Friends of the Earth & Ors, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs

Section 58 of the Climate Change Act 2008 does not require adaptation objectives to be quantified, measurable or framed as substantive outcomes. Objectives may have differing levels of ambition and specificity, provided they can properly be described as objectives addressing the risks identified under section 56. Delivery risk is relevant to policies and proposals under section 58(1)(b), but the extent of analysis required depends on the specificity of the objectives and is governed by rationality. The public sector equality duty remains personal, non-delegable and timely, although later good-faith compliance may make refusal of relief mandatory under section 31 of the Senior Courts Act 1981. The human-rights claims failed because the statutory framework and wide margin of appreciation were sufficient.

The claimants challenged the third National Adaptation Programme, laid before Parliament under section 58 of the Climate Change Act 2008. They alleged that the Secretary of State had adopted unlawful and insufficiently specific adaptation objectives, failed to consider delivery risks, breached the public sector equality duty, and acted incompatibly with Convention rights.

The claim was heard as a rolled-up judicial review hearing. The court considered the effect of Verein KlimaSeniorinnen Schweis v Switzerland and the relationship between the mitigation and adaptation provisions of the 2008 Act. The central issues were whether section 58 imposed greater requirements as to specificity and delivery analysis, whether the equality duty had been discharged, and whether the programme breached Articles 2, 8, 14 or A1P1 ECHR.

1. Ground 1 dismissed. Section 58 had to be construed first by ordinary domestic principles of statutory interpretation and only then, if necessary, under section 3 of the Human Rights Act 1998. Section 3 is engaged only where one construction is incompatible with Convention rights, not merely because another construction would promote those rights more effectively.
2. Part 4 of the Climate Change Act 2008 differs materially from Part 1. Part 1 contains quantified and legally binding mitigation targets. Part 4 contains no equivalent standard. The word “objectives” is capable of covering a wide range of specificity. “Addressing” climate risks does not mean eliminating or minimising them. No requirement for quantified or measurable outcomes could properly be implied.
3. Ground 2 dismissed. Delivery risk is relevant to proposals and policies under section 58(1)(b), but the extent of consideration required varies with the specificity of the objectives. Rationality governs both whether delivery risk is a material consideration and the level of analysis required. The evidence showed that delivery risk had been considered sufficiently to meet that standard.
4. Ground 3 established, but relief refused. The Secretary of State had not discharged the duty under section 149 of the Equality Act 2010 when NAP3 was published. The duty was personal, non-delegable, and had to be exercised with rigour, substance and an open mind. A departmental “nil return” was inadequate. However, a later equality assessment was undertaken in good faith, was materially adequate, and was personally considered by the Secretary of State. Under section 31(3C) and (3D) of the Senior Courts Act 1981, it was highly likely that the outcome would have been the same, so permission had to be refused.
5. Ground 4 dismissed. The court did not finally determine the individual claimants’ victim status or the admissibility of the second witness statement. The substantive human-rights claims failed because the adaptation obligations identified in Verein KlimaSeniorinnen Schweis v Switzerland were insufficiently clear to require the claimants’ construction of section 58. The United Kingdom’s statutory framework, parliamentary scrutiny and environmental-information procedures fell within the State’s wide margin of appreciation.
6. Permission was granted on grounds 1, 2 and 4, but the claim was dismissed. Permission was refused on ground 3.