HM Treasury & Anor v Global Feedback Limited

The Court of Appeal considered the meaning of the phrase in Article 9(3) of the Aarhus Convention: "which contravene provisions of its national law relating to the environment" and the effect of that definition on the scope of "Aarhus Convention claims" under CPR 46 Part IX. The court held that Article 9(3) applies only where the alleged contravention is of a national legal provision the purpose of which is to protect or regulate the environment. A mere connection between a decision and environmental effects, or an allegation of a public law error in decision-making under a statute enacted for non-environmental purposes, does not bring the claim within Article 9(3). Section 28 of the Taxation (Cross-Border Trade) Act 2018, which requires decision-makers to have regard to relevant international arrangements, was not a provision whose purpose was to protect or regulate the environment and therefore did not turn the present judicial review into an Aarhus Convention claim. On that basis the appeal was allowed.

Background and parties. Global Feedback Limited (GFL), an environmental charity, sought judicial review of the decision of HM Treasury and the Secretary of State for Business and Trade to make regulations (the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023) implementing tariff preferences under the UK–Australia free trade agreement. GFL alleged the regulations would cause "carbon leakage" and increased greenhouse gas emissions and that the decision-making in the impact assessment was irrational, tainted by predetermination and misread the UNFCCC. GFL relied, in part, on Article 9(3) and (4) of the Aarhus Convention to obtain the costs protections in CPR 46 Part IX.

Procedural posture. Permission for judicial review was granted by Lang J. Lang J later held the claim was an Aarhus Convention claim within CPR 46 Part IX and ordered the standard costs limits to apply; the appellants obtained leave to appeal that ruling to the Court of Appeal. The judicial review substantive proceedings were stayed pending the appeal.

Issues before the Court of Appeal.

• How should the phrase "which contravene provisions of its national law relating to the environment" in Article 9(3) be interpreted?
• Does a public law challenge to a decision taken under non-environmental enactments (here the 2018 Act and s.28) fall within Article 9(3) simply because the decision may affect the environment?
• Did s.28 of the Taxation (Cross-Border Trade) Act 2018 import an environmental purpose into the tariff-making power so as to make this an Aarhus Convention claim?

Court's reasoning. The court applied treaty interpretation principles (Vienna Convention) and examined the travaux préparatoires and the French text. It concluded that "relating to" in Article 9(3) is a relatively strong connector: the national provision alleged to have been contravened must itself be concerned with, or have the purpose of, protecting or regulating the environment. The court accepted and applied authorities such as Venn and Austin which show that environmental policies required by statute can form part of national law relating to the environment, but stressed that this reasoning is linked to the particular statutory scheme (for example, the planning regime) and cannot be generalised. By contrast, general duties to have regard to relevant considerations (or to international arrangements) in statutes enacted for non-environmental purposes do not, without more, constitute national environmental law. The court observed that public law principles regulating legality are not, in themselves, environmental law. Applying that approach, s.28 of the 2018 Act was a general requirement to have regard to international arrangements relevant to the function exercised and was not enacted for the purpose of protecting or regulating the environment; the UNFCCC Article 4(1)(f) is a high-level obligation to take climate considerations into account and the asserted public law errors in how it was dealt with amounted to conventional judicial review grounds, not a contravention of domestic environmental law. Consequently Lang J's determination that the claim was an Aarhus Convention claim was overturned.

Relief sought: a declaration and/or quashing of the decision to make the 2023 Regulations and ancillary relief via judicial review; on this appeal the relief sought was to overturn Lang J's costs-protection ruling.

Appeal allowed. The court held that Article 9(3) of the Aarhus Convention applies only where the contravention alleged is of a national legal provision the purpose of which is to protect or regulate the environment; general statutory duties to have regard to international arrangements (s.28 of the 2018 Act) and public law errors in decision-making under non-environmental legislation do not, of themselves, engage Article 9(3). Lang J was therefore wrong to conclude this claim was an Aarhus Convention claim for the purposes of CPR 46 Part IX.

On appeal from the High Court of Justice, King's Bench Division, Administrative Court (Lang J). Permission for judicial review originally granted by Lang J ([2024] EWHC 1810 (Admin)). Lang J subsequently held the claim to be an Aarhus Convention claim ([2024] EWHC 1943 (Admin)); the appellants obtained leave to appeal that determination to the Court of Appeal (this appeal [2025] EWCA Civ 624). The substantive judicial review proceedings are stayed pending this appeal.