Friends of the Earth v Secretary of State for Environment, Food and Rural Affairs

Hearing dates: 23 and 24 July 2024

Approved Judgment

This judgment was handed down remotely at 10.00am on 25 October 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The decision challenged

This case concerns the legality of the third National Adaptation Programme (“NAP3”), which was laid before Parliament and published on 17 July 2023. NAP3 sets out the Government's view, at the time when it was published, of what must be done to tackle the risks flowing from actual and predicted changes to the climate.

NAP3 was laid and published pursuant to s. 58 of the Climate Change Act 2008 (“CCA”), which imposes a duty on the Secretary of State to lay programmes before Parliament setting out the Government's objectives in relation to adaptation to climate change, its proposals and policies for meeting those objectives and the time-scales for introducing those proposals and policies.

The parties

The first claimant, Friends of the Earth Ltd, is a not-for-profit organisation. It undertakes campaigning and other work in furtherance of environmental objectives. It includes over 200 community groups and has over 300,000 supporters. It is concerned, among other things, with what it describes as the pressing need for action to be taken on climate change, to ensure a safe and just outcome to the climate emergency for current and future generations.

The second claimant, Kevin Jordan, lives in Hemsby. At the time the claim was filed, his home on the Norfolk coast was at risk due to coastal erosion. He was concerned that the failure to implement protection measures would further cut off access to Hemsby and about the absence of timely and clear data and information on risks. Since filing this claim, and following damage caused by Storm Ciaran on 30 November 2023, Mr Jordan was instructed to leave his home and find alternative accommodation. His home was demolished by the local authority a week later. Mr Jordan has now been accommodated elsewhere by the local authority.

The third claimant, Doug Paulley, is a wheelchair user who lives in a care home. He has long-term health conditions which make him particularly vulnerable to the effects of extreme heat, episodes of which have increased and are likely to continue to increase in frequency and intensity because of climate change. Mr Paulley is concerned about the absence from NAP3 of long-term planning and funding across the health and social sectors in two key respects: first, the lack of systematic temperature monitoring and plans to adapt his care home; second, the absence of proper funding for air conditioning units. Mr Paulley has had to pay for these units for his room. However, the absence of air conditioning units in communal areas at his care home has meant that he has become unable to socialise during periods of high heat, which has had a detrimental effect on his mental health.

The defendant is the Secretary of State for Environmental, Food and Rural Affairs, whose department (“DEFRA”) is the lead department responsible for domestic adaptation to climate change and for discharging the adaptation obligations in the CCA.

The grounds of challenge

On the claimants' case, in preparing NAP3, the defendant:

(a) erred in law by misconstruing the requirement for “objectives” in s. 58(1)(a) CCA, which must be read in accordance with s. 3 of the Human Rights Act 1998 (“ HRA”) and the UK's positive obligations under Articles 2, 8, 14 and Article 1 of Protocol 1 (“A1P1”) ECHR to have in place an effective framework addressing climate change, and specifically adaptation risks (“Ground 1”);

(b) unlawfully failed to consider (let alone publish information relating to) the risks to delivery for the “proposals and policies for meeting those objectives” produced under s. 58(1)(b) (“Ground 2”);

(c) unlawfully failed to discharge the public sector equality duty (“PSED”) under s. 149 Equality Act 2010 (“EA 2010”) (“Ground 3”); and

(d) acted contrary to the claimants' procedural and substantive rights under Articles 2, 8, 14 and A1P1 ECHR, and so contrary to s. 6 HRA. The claimants assert that they are victims of that breach within the meaning of Article 34ECHR (“Ground 4”).

The issues

The parties agreed the following list of issues:

Ground 1: Objectives

Did the defendant misdirect himself in law in respect of what was required of him by way of “objectives” under section 58(1)?

Ground 2: Risk of delivery

Was the defendant required to consider the risk of delivery of the policies and proposals set out in NAP3?

Ground 3: Public Sector Equality Duty

Issue 1: Did the defendant comply with his obligations under the PSED under section 149 EqA 2010 in relation to the publication of NAP3?

Issue 2: Should the Court refuse relief pursuant to section 31(2A) and/or (3C) of the Senior Courts Act 1981 (“SCA 1981”)?

Ground 4: HRA

Issue 1: Is it open to the defendant to contend that the second and third Claimants are not “victims” for the purposes of s. 7 HRA?

Issue 2: Is the second claimant permitted to rely upon the Second Statement of Kevin Jordan dated 10 June 2024 and, if so, should the second claimant's assertion of the fact that “Kevin Jordan's home was recently demolished due to the treat of coastal erosion” be excluded from consideration?

Issue 3: Are the second and third claimants “victims” for the purposes of s. 7 HRA?

Issue 4: Are the rights relied upon by the claimants (Article 2, 8, 14 and A1P1 ECHR) applicable/engaged?

Issue 5: Did the defendant breach any of those Convention rights in adopting NAP3?

Procedure

On 9 February 2024, Sheldon J gave directions which resulted in the case being listed for a rolled-up hearing, which took place over two days on 23 and 24 July 2024.

The law

The Climate Change Act 2008

Section 1 of the CCA imposes on the Secretary of State the duty to ensure that the net UK carbon account for the year 2050 is at least 100% lower than the 1990 baseline. 100% was substituted for the previous figure (80%) by an amending instrument in 2019. Sections 4–10 make detailed provision for the setting of carbon budgets. Sections 13–15 make provision for proposals and policies for meeting carbon budgets. Section 13 provides materially as follows:

“ 13. Duty to prepare proposals and policies for meeting carbon budgets

(1) The Secretary of State must prepare such proposals and policies as the Secretary of State considers will enable the carbon budgets that have been set under this Act to be met.

(2) The proposals and policies must be prepared with a view to meeting—

(a) the target in section 1 (the target for 2050), and

(b) any target set under section 5(1)(c) (power to set targets for later years).”

Section 14 provides materially as follows:

“ 14. Duty to report on proposals and projects for meeting carbon budgets

(1) As soon as is reasonably practicable after making an order setting the carbon budget for a budgetary period, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting the carbon budgets for the current and future budgetary periods up to and including that period.

(2) The report must, in particular, set out—

(a) the Secretary of State's current proposals and policies under section 13, and

(b) the time-scales over which those proposals and policies are expected to take effect.”

Section 32 of and Schedule 1 to the CCA establish the Committee on Climate Change (“CCC”) as an independent, non-departmental public body. Section 36 requires the CCC to make reports on progress. Section 38 requires it to provide advice or other assistance at the request of a national authority.

Sections 56–60 provide for a repeating five-yearly cycle of climate change risk assessment followed by a national adaptation programme (“NAP”).

Section 56(1) requires the Secretary of State to lay climate change risk assessment reports before Parliament containing an assessment of the risks for the United Kingdom of the current and predicted impact of climate change.

Section 57 requires the CCC to advise the Secretary of State on the preparation of each report under s. 56.

The provision at the heart of this litigation is s. 58, which provides materially as follows:

“ 58. Programme for adaptation to climate change

(1) It is the duty of the Secretary of State to lay programmes before Parliament setting out —

(a) the objectives of Her Majesty's Government in the United Kingdom in relation to adaptation to climate change,

(b) the Government's proposals and policies for meeting those objectives, and

(c) the time-scales for introducing those proposals and policies, addressing the risks identified in the most recent report under section 56.

…

(3) Each programme under this section must be laid before Parliament as soon as is reasonably practicable after the laying of the report under section 56 to which it relates.”

Section 59 requires each of the CCC's reports under s. 36 to contain an assessment of the progress made towards implementing the objectives, proposals and policies set out by the Secretary of State under s. 58. The CCC must publish its advice as soon as reasonably...