HM Treasury & Anor v Global Feedback Limited

Article 9(3) of the Aarhus Convention applies only where the challenged act or omission contravenes a national legal provision whose purpose is to protect or regulate the environment. An environmental effect, context or subject matter does not suffice.

A general statutory duty to consider relevant international arrangements, or a general principle of administrative law, does not become environmental law merely because an environmental matter is relevant to the decision. A policy for environmental protection may qualify where national law requires it to be prepared, considered or applied as part of a statutory environmental-protection framework.

A charity sought judicial review of regulations implementing tariff preferences under a UK–Australia free trade agreement. It alleged that the decision-makers had irrationally assessed carbon leakage and had failed properly to consider climate obligations under section 28 of the Taxation (Cross-Border Trade) Act 2018.

Lang J held that the judicial review was an Aarhus Convention claim and therefore attracted the costs limits in Part 46 of the Civil Procedure Rules 1998: [2024] EWHC 1943 (Admin). HM Treasury and the Secretary of State appealed that determination. The substantive judicial review remained stayed.

The central issue was whether article 9(3) of the Aarhus Convention extends to a challenge under non-environmental legislation because the alleged public law error concerns environmental effects.

1. Appeal allowed. A claim falls within article 9(3) of the Aarhus Convention only if the challenged act or omission is alleged to contravene a national legal provision which concerns, or is directed to, environmental protection or regulation. It is insufficient that the claim, the challenged decision or its effects have an environmental connection. The text, context and purpose of the Convention, together with its French text and preparatory materials, support a strong meaning of “relating to”: paras 74–96, 151–152.

2. A provision within an otherwise non-environmental enactment may qualify if its own purpose is environmental protection or regulation. National law may also combine with an environmental policy so as to form environmental law where the statutory scheme requires that policy to be prepared, considered or applied as a means of environmental protection. Venn was explained on that basis and was not authority for treating every public law challenge concerning environmental effects as an Aarhus claim: paras 97–108, 138–141.

3. General principles of administrative law regulate the legality of public administration across all fields. They do not themselves form part of national law relating to the environment. A duty to consider an obviously material environmental matter, or an irrational treatment of such a matter under non-environmental legislation, therefore does not engage article 9(3). The position differs where a public law error causes the contravention of a substantive legal provision whose purpose is environmental protection: paras 132–143.

4. Section 28 of the Taxation (Cross-Border Trade) Act 2018 is a general duty to have regard to relevant international arrangements. Parliament did not indicate that its purpose was environmental protection or regulation. Its possible application to the UN climate conventions did not change its character. The challenge alleged only public law errors, including irrationality and breach of the duty of reasonable inquiry: paras 144–148.

5. R (Friends of the Earth Ltd) v Secretary of State for International Trade [2021] EWHC 2369 (Admin) was wrongly decided on this issue. It impermissibly treated a challenge under a non-environmental funding regime as analogous to Venn: paras 149–151.

1. Court of Appeal (Civil Division): The appeal was allowed. The judicial review was held not to be an Aarhus Convention claim within Part 46 of the Civil Procedure Rules 1998: [2025] EWCA Civ 624.
2. High Court, Administrative Court: Lang J held that the judicial review was an Aarhus Convention claim and ordered that the standard Aarhus costs limits should apply: [2024] EWHC 1943 (Admin). Permission for the substantive judicial review had previously been granted in [2024] EWHC 1810 (Admin).