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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Plan B Earth & Ors, R (On the Application Of) v The Prime Minister & Ors [2021] EWHC 3469 (Admin) (21 December 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/3469.html Cite as: [2021] EWHC 3469 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN On the application of (1) PLAN B. EARTH (2) ADETOLA STEPHANIE KEZIA ONAMADE (3) JERRY NOEL AMOKWANDOH (4) MARINA XOCHITL TRICKS (5) TIMOTHY JOHN EDWARD CROSLAND |
Claimants |
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- and - |
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(1) THE PRIME MINISTER (2) THE CHANCELLOR OF THE EXCHEQUER (3) THE SECRETARY OF STATE FOR BUSINESS, ENERGY AND INDUSTRIAL STRATEGY |
Defendants |
____________________
Richard Honey QC and Ned Westaway (instructed by Government Legal Department) for the Defendants
Hearing date: Thursday 25 November 2021
____________________
Crown Copyright ©
The Hon. Mr Justice Bourne:
Introduction
The claim
(1) The Defendants have failed to take practical and effective measures to align UK greenhouse gas emissions to the Paris Temperature Limit (see [24] below).
(2) The Defendants have failed to take practical and effective measures to adapt and prepare for the current and projected impacts of climate change and to support others to do so, including through education and awareness raising.
(3) The Defendants have failed to take practical and effective measures to align UK financial flows to the Paris Temperature Limit.
(4) The Defendants have failed to implement the "polluter pays" principle, which is a fundamental principle of both economics and law, and have failed to implement a legal and administrative framework to provide consistent and principled compensation for those suffering climate change loss and damage whether in the UK or beyond.
(1) a declaration that the Defendants' failure to take practical and effective measures to meet their climate change commitments arising under the Paris Agreement and the Climate Change Act 2008 breaches the Claimants' rights under the Human Rights Act
1998 (ECHR Articles 2, 8 and 14); and
(2) a mandatory order that the Defendants implement, with appropriate urgency, a legal and regulatory framework sufficient to meet those commitments.
The decision of Cavanagh J
(1) The Claimants did not appear to be represented by solicitors or counsel authorised to conduct litigation, the Prime Minister was not an appropriate Defendant and HM Treasury should be a Defendant only to ground 3, the Statement of Facts and Grounds ("SFG") was unduly long and some material in the pleadings resembled lobbying rather than legal argument.
(2) Given the terms of sections 13 and 58 of the 2008 Act and the discretion conferred by them, there was no realistic prospect of success for the contention that the Defendants had not complied with them.
(3) The claims based on breaches of the Paris Agreement were hopeless because the Courts have no jurisdiction to determine whether the Government has acted in breach of its obligations under an unincorporated international treaty.
(4) Even if any of the Claimants were "victims" for the purpose of the 1998 Act, it was not arguable that the Defendants' policies breached Article 2 or 8 or 14 in view of the wide margin of discretion given to Government in areas such as fiscal and tax policy. The First Claimant could not be a victim because it is not a natural person. The evidence did not show that any of the Claimants were in immediate risk to their lives or to their family life in the UK.
The parties
The legal framework
"(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).
(3) The proposals and policies, taken as a whole, must be such as to contribute to sustainable development.
(4) In preparing the proposals and policies, the Secretary of State may take into account the proposals and policies the Secretary of State considers may be prepared by other national authorities."
"(1) It is the duty of the Secretary of State to lay reports before Parliament containing an assessment of the risks for the United Kingdom of the current and predicted impact of climate change.
(2) The first report under this section must be laid before Parliament no later than three years after this section comes into force.
(3) Subsequent reports must be laid before Parliament no later than five years after the previous report was so laid.
…
(5) Before laying a report under this section before Parliament, the Secretary of State must take into account the advice of the Committee on Climate Change under section 57."
"Article 2: right to life
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
…
Article 8: right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 14: prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
…
(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.
…
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act."
"The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. …"
The claims under the Climate Change Act
(1) The CCC's 2020 progress report to Parliament which stated that progress was "generally off-track in most sectors", representing "no change from the previous year".
(2) A report published by the Institute for Government in September 2020, alleging that the Government had not confronted the scale of the task and complaining of a lack of sufficient strategies.
(3) A report published by the Institute for Public Policy Research in November 2020, alleging a lack of sufficient spending commitments to achieve net zero emissions by 2050.
(4) A report published by the National Audit Office on 4 December 2020, alleging that Government had not yet put in place the essential components for cross-government working to achieve the net xero target.
(5) A report published by the Public Accounts Committee on 5 March 2021, stating that Government had not set out how it planned to achieve net zero despite having set the target in 2019.
(6) The CCC's 2019 report to Parliament on "Progress in preparing for climate change" which found "a substantial gap between current plans and future requirements and an even greater shortfall in action" and the lack, at that time, of "a coherent and coordinated plan, nor the resources to enable the required actions to be carried out".
(7) The CCC's Progress Report to Parliament published in June 2020 which stated that "UK plans have failed to prepare for even the minimum climate risks faced …".
(8) The CCC's report, "The Road to Net-zero Finance", which stated that "a more systematic approach to financing is now needed", read in conjunction with comments by the Bank of England and others suggesting that without changes to global finance, the world may be on track for a temperature increase in the region of 3.5°C above pre-industrial levels by 2100.
(1) Support for opening a new coal mine in Cumbria.
(2) Support for aviation expansion.
(3) Emergency loans to carbon-intensive corporations without climate conditions.
(4) A commitment to invest £27.5 billion in the road network.
The claims under the Human Rights Act 1998
The Claimants' submissions
(1) A duty to put in place an administrative framework designed to provide effective deterrence against threats to the right to life. In the context of road traffic in Tanase, that meant an obligation "to have in place an appropriate set of preventive measures geared to ensuring public safety and minimising the number of road accidents".
(2) An obligation to take preventive operational measures to protect an identified individual from a "real and immediate risk" to life posed by another individual.
(3) An obligation to have in place an effective judicial system to investigate deaths and provide appropriate redress for victims.
"7. Fully integrate climate risk and net-zero into financial regulation and monetary policy (including assessing legacy rules for alignment).
8. Make net-zero targets and plans mandatory for financial institutions.
…
10. Set clear metrics for the net-zero transition at the institutional and product levels."
Discussion
"The State has not explained, however, that – and why – a reduction of just 20% in 2020 is conserved responsible in an EU context, in contrast to the 25-40% reduction in 2020, which is internationally broadly supported and is considered necessary."
I need not and do not decide whether a similar challenge could have been viable in this jurisdiction.
"… neither blood ties nor the concern and affection that ordinarily go with them are, by themselves or together, in my judgment enough to constitute family life. Most of us have close relations of whom we are extremely fond and whom we visit, or who visit us, from time to time; but none of us would say on those grounds alone that we share a family life with them in any sense capable of coming within the meaning and purpose of Article 8."
Conclusion