The King (on the application of Global Feedback Ltd) v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Sir Keith Lindblom,Lord Justice Singh,Lady Justice Andrews |
| Judgment Date | 21 December 2023 |
| Neutral Citation | [2023] EWCA Civ 1549 |
| Year | 2023 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-002370 |
[2023] EWCA Civ 1549
Sir Keith Lindblom,
(Senior President of Tribunals)
Lord Justice Singh
and
Lady Justice Andrews
Case No: CA-2022-002370
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION (ADMINISTRATIVE COURT)
Mrs Justice Lang
[2022] EWHC 3269 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wolfe K.C., Peter Lockley and Stephanie David (instructed by Leigh Day) for the Appellant
Galina Ward K.C., Mark Westmoreland Smith and Rose Grogan (instructed by Government Legal Department) for the Respondents
Hearing date: 6 November 2023
Approved Judgment
This judgment was handed down remotely at 2.35pm on 21 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Sir Keith Lindblom (Senior President of Tribunals), Lord Justice Singh and
Introduction
Did the duty of the “Secretary of State” in section 13(1) of the Climate Change Act 2008 (“the Climate Change Act”) to “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” apply to the preparation by the Secretary of State for Environment, Food and Rural Affairs (“SSEFRA”) of the Government's food strategy, (“the Food Strategy”) which was published by his department (“DEFRA”), on 13 June 2022? That is the central question in this case, which is before us as a claim for judicial review retained in the Court of Appeal under CPR r.52.8(6).
The Food Strategy is linked to the Net Zero Strategy: Build Back Greener (“the Net Zero Strategy”) which was published on 19 October 2021 by what was then the Department for Business, Energy and Industrial Strategy (“BEIS”), as the Government's plan for reducing the UK's carbon emissions in line with the sixth “carbon budget” (“ CB6”) published in accordance with the statutory obligations under section 4 of the Climate Change Act.
SSEFRA had the responsibility for creating the Food Strategy, whereas the Secretary of State for Energy, Security and Net Zero (“SSESNZ”) (in succession to the Secretary of State for Business, Energy and Industrial Strategy (“SSBEIS”)) fulfils the functions and discharges the duties under Part 1 of the Climate Change Act for setting and ensuring compliance with the UK's carbon budgets.
On 23 August 2022 the appellant, Global Feedback Ltd (“Global Feedback”) issued proceedings for judicial review of the decision by SSEFRA to adopt the Food Strategy. It sought both a declaration that that decision was unlawful, and a mandatory order requiring him to publish in its place a lawful food strategy. There were originally three grounds of challenge. Permission to apply for judicial review was refused in the court below on all grounds, by Sir Ross Cranston on the papers on 13 October 2022, and by Lang J. at the hearing of the renewed application on 6 December 2022.
Global Feedback sought permission to appeal against Lang J.'s order on five grounds. On 24 April 2023 Elisabeth Laing L.J. directed that the application for permission on two grounds be listed for an oral hearing, but refused permission on the remainder.
The permission hearing took place before a three-judge constitution of this court (the Senior President of Tribunals, Singh L.J. and Simler L.J., as she then was) on 16 June 2023. Permission to apply for judicial review was granted under CPR r.52.8 on both grounds, one of which Global Feedback was permitted to reformulate:
1. that the Food Strategy published by SSEFRA on 13 June 2022 was a “proposal” or “policy” for the purposes of section 13 of the Climate Change Act, and that SSEFRA failed unlawfully to comply with the duty imposed on “the Secretary of State” by that section (part of ground 2 of the claim as originally pleaded); and
2. that, in adopting the Food Strategy, SSEFRA failed unlawfully to give significant weight to the advice of the Climate Change Committee (“the CCC”), or to give cogent reasons for departing from that advice (ground 3 of the claim as now reformulated).
Following the grant of permission to proceed, the claim for judicial review was reserved to the Court of Appeal under CPR r.52.8(6). The court also directed that SSESNZ be joined as a party to the proceedings (as second respondent). This has now happened, but it should be noted that Global Feedback has not sought any relief against SSESNZ.
Although the claim has evolved since it was lodged, the parties have been able to agree that two questions arise for our determination:
1. Was the duty under section 13 of the 2008 Act engaged in the development and adoption of the Food Strategy?
2. If the answer to that question is yes, when adopting the Food Strategy, did SSEFRA, or SSBEIS, need to be aware of, give significant weight to, and give cogent reasons for departing from, the advice of the CCC on diet and climate change?
It was also common ground that the second issue only arises if Global Feedback succeeds on the first. If Global Feedback were to succeed on the first of those issues, or both, the further question would arise of what relief should follow.
For the reasons set out below, we would answer question 1 in the negative, and therefore, strictly speaking, question 2 does not arise. However, in deference to the arguments advanced by Mr David Wolfe K.C. on behalf of Global Feedback, we have also considered that issue, and have concluded that even if the question had arisen for determination in this case, it should also be answered in the negative.
The Climate Change Act
The Climate Change Act embodies, in primary legislation with effect throughout the UK, the national response to the global threat of climate change. Part 1, “Carbon target and budgeting”, contains a range of statutory duties and mechanisms whose intended effect is to bring about a reduction in greenhouse gas emissions. The statutory scheme is predicated on the setting of five-year carbon budgets, with the purpose of enabling the UK to meet the target for 2050, which is widely referred to as “net zero”.
Section 1(1) of the Climate Change Act, as amended in 2019 (to reflect the terms of the Paris Agreement on Climate Change) provides that:
“(1) it is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 100% lower than the 1990 baseline.”
Sections 2 and 3 set out the mechanics by which the percentage target specified in section 1(1), or the “baseline year”, can be amended. Section 3(1)(a) specifically obliges the Secretary of State to obtain and take into account the advice of the CCC before laying before Parliament a draft of a statutory instrument containing an order under section 2 amending the 2050 target or the baseline year.
Sections 4 and 5 relate to the setting of carbon budgets, which are milestones along the way towards achieving the 2050 target. They are set in advance of each budget period, and restrict the amount of greenhouse gases that the UK can legally emit in a five-year period to ensure that progress is made towards the overall target. Section 4 (1) provides:
“It is the duty of the Secretary of State –
(a) to set for each succeeding period of five years beginning with the period 2008 – 2012 (“budgetary periods”) an amount for the net UK carbon account (the “carbon budget”), and
(b) to ensure that the net UK carbon account for a budgetary period does not exceed the carbon budget.”
Section 5 makes provision for the level of the carbon budgets. It provides, in subsection (1)(b), that the carbon budget for the budgetary period including the year 2050, “must be such that the annual equivalent of the carbon budget for the period is lower than the 1990 baseline by at least the percentage specified in section 1 (the target for 2050)”.
Section 8, entitled “Setting of carbon budgets for budgetary periods”, provides:
“(1) The Secretary of State must set the carbon budget for a budgetary period by order.
(2) The carbon budget for a period must be set with a view to meeting –
(a) the target in section 1 (the target for 2050), and
(b) the requirements of section 5 (requirements as to level of carbon budgets),
and complying with the European and international obligations of the United Kingdom.
(3) An order setting a carbon budget is subject to affirmative resolution procedure.”
Section 9, “Consultation on carbon budgets”, provides in subsection (1)(a) that “[before] laying before Parliament a draft of a statutory instrument containing an order under section 8 …, the Secretary of State must … take into account the advice of the [CCC] under section 34 …”, and in subsection (4) that “[if] the order sets the carbon budget at a different level from that recommended by the Committee, the Secretary of State must also publish a statement setting out the reasons for that decision”.
Section 10 specifies a number of technical, economic, fiscal and other matters which must be taken into account by the Secretary of State in coming to any decision under Part 1 of the 2008 Act relating to carbon budgets, and by the CCC in considering its advice in relation to any such decision. Subsection (2) provides:
“(2) The matters to be taken into account are –
(a) scientific knowledge about climate change;
(b) technology relevant to climate change;
(c) economic circumstances, and in particular the likely impact of the decision on the economy and the competitiveness of particular sectors of the economy;
(d) fiscal circumstances, and in particular the likely impact of the decision on taxation,...
To continue reading
Request your trial