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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> HM Treasury & Anor v Global Feedback Ltd [2025] EWCA Civ 624 (13 May 2025) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/624.html Cite as: [2025] EWCA Civ 624 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mrs Justice Lang DBE
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE STUART-SMITH
and
LORD JUSTICE HOLGATE
____________________
(1) HM TREASURY (2) SECRETARY OF STATE FOR BUSINESS AND TRADE |
Appellants |
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- and - |
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GLOBAL FEEDBACK LIMITED |
Respondent |
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- and – |
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WWF UK |
Intervener |
____________________
Adam Riley (instructed by Government Legal Department) for the Appellants
Victoria Wakefield KC, Sarah Love and Conor McCarthy (instructed by Leigh Day) for the Respondent
Brendan Plant (instructed by WWF UK) made written submissions for the Intervener
Hearing date : 7 March 2025
____________________
Crown Copyright ©
LORD JUSTICE HOLGATE :
Introduction
Taxation (Cross-Border Trade) Act 2018
"An Act to impose and regulate a duty of customs by reference to the importation of goods into the United Kingdom"
Self-evidently the general purposes of the Act are not concerned with the environment, or with the protection or regulation of the environment.
"(5) In considering the rate of import duty that ought to apply to any goods in a standard case, the Treasury must have regard to—
(a) the interests of consumers in the United Kingdom,
(b) the interests of producers in the United Kingdom of the goods concerned,
(c) the desirability of maintaining and promoting the external trade of the United Kingdom,
(d) the desirability of maintaining and promoting productivity in the United Kingdom, and
(e) the extent to which the goods concerned are subject to competition."
The customs tariff is set out in the Customs Tariff (Establishment) (EU Exit) Regulations 2020 (SI 2020 No. 1430). It is subject to amendment and adjustment by regulations made under Part 1 of the 2018 Act.
"Requirement to have regard to international obligations
(1) In exercising any function under any provision made by or under this Part—
(a) the Treasury,
(b) the Secretary of State,
(c) HMRC,
(d) the TRA, and
(e) any other public body,
must have regard to international arrangements to which Her Majesty's government in the United Kingdom is a party that are relevant to the exercise of the function.
(2) This section is not to be read as affecting the circumstances in which any obligation to have regard to such matters would otherwise have arisen."
There is no overall definition of "international arrangements". Section 37(1) provides that "'arrangements' includes an understanding of any kind". Otherwise the 2018 Act contains instances where "arrangements" are defined as part of a specific term of art, e.g. "international excise arrangements" (s.46(9)).
"130 Clause 28 places a requirement upon specified persons, departments, and bodies exercising functions specified in Part 1 of this Bill to have regard to international arrangements that the UK is a party to and that are relevant to the exercise of that function. This would, for example, include agreements with the WTO."
The grounds of challenge in the judicial review
Ground 1
The appellants erred in law in adopting the conclusion in the Impact Assessment that the available data was too inconsistent to allow for a meaningful assessment of the risk of carbon leakage from the FTA, in particular the shift in the production of cattle meat from the UK to Australia because:
(a) The Impact Assessment referred to two datasets, first the United Nations Food and Agricultural Organisation's "Global Livestock Environmental Assessment Model" ("GLEAM") which indicates that Australian beef production is materially more emissions intensive than that in the UK and second a paper by Poore and Nemecek ("P & N") showing that it is less. The treatment by the Impact Assessment of the P & N data as a valid alternative source to GLEAM was obviously wrong. GLEAM data relates to all beef produced from beef herds and dairy herds, whereas P & N data relates to dairy herds only;
(b) The appellants failed to consider and to obtain information to answer an obvious question: which types of herd in the UK would be affected by the FTA - dairy herd, beef herd or both? The majority of the UK's production is from dairy herds which are less emissions- intensive than beef herds. This was a failure of the Tameside duty of reasonable inquiry ([1977] AC 1014);
(c) The appellants could not rationally have taken the decision to make the 2023 regulations without knowledge of the matters set out in ground 1(a) and (b);
(d) The conclusions in the Impact Assessment were influenced by the understanding of officials as to what would be acceptable to Ministers, or in other words predetermination.
Ground 2
The appellants erred in adopting the conclusion in the Impact Assessment that GLEAM alone could not provide a reliable basis for assessing the risk of carbon leakage arising from the FTA. The concerns raised in the Assessment about the uncertainty of future policy changes and technological advances were not a proper basis for declining to assess the impact of carbon leakage.
Ground 3
The appellants failed to comply with s.28 of the 2018 Act by failing to take into account Art.4(1)(f) of the UNFCCC and/or by misinterpreting that provision and the Paris Agreement. The appellants wrongly considered that any increased generation of GHG emissions through increased production of beef in Australia was a matter for assessment by the Australian Government not the UK Government.
"1. All parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall:
…
(f) Take climate change considerations into account, to the extent feasible, in their relevant social, economic and environmental policies and actions, and employ appropriate methods, for example impact assessments, formulated and determined nationally, with a view to minimizing adverse effects on the economy, on public health and on the quality of the environment, of projects or measures undertaken by them to mitigate or adapt to climate change;
…"
(i) The purpose of the 2018 Act is to regulate the importation of goods and customs duties, not the environment;
(ii) However, arguably the appellants were required by s.28 to have regard to relevant international obligations which included UNFCCC and the Paris Agreement, which are directly concerned with environmental issues;
(iii) Even absent s.28, the UNFCCC and the Paris Agreement were arguably relevant considerations when making the 2023 Regulations, which they were obliged to take into account.
Ms. Victoria Wakefield KC on behalf of GFL stated in her skeleton argument and oral submissions that her client does not rely on point (iii) in this appeal. It is not suggested that either the UNFCCC or the Paris Agreement has been incorporated into domestic law.
The Aarhus Convention
"Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights,
Recognizing that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns,
…
Desiring to promote environmental education to further the understanding of the environment and sustainable development and to encourage widespread public awareness of, and participation in, decisions affecting the environment and sustainable development,
…
Concerned that effective judicial mechanisms should be accessible to the public, including organizations, so that its legitimate interests are protected and the law is enforced,
…"
"In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention."
Thus, the rights guaranteed by Art.1, including that of access to environmental justice, are delineated by the Convention.
"3. "Environmental information" means any information in written, visual, aural, electronic or any other material form on:
(a) The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
(b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making;
(c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above;"
"In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment."
The phrase "acts or omissions" is sufficiently broad to encompass "decisions" (Venn v Secretary of State for Communities and Local Government [2015] 1 WLR 2328 at [13]).
"In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible."
"The Meeting of the Parties shall establish, on a consensus basis, optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of the Convention. These arrangements shall allow for appropriate public involvement and may include the option of considering communications from members of the public on matters related to this Convention". (emphasis added)
The Vienna Convention on the Law of Treaties
"ARTICLE 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
…
ARTICLE 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
ARTICLE 33
Interpretation of treaties authenticated in two or more languages
1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.
…"
For the Aarhus Convention the English, French and Russian texts are equally authentic (Art.22).
Civil Procedure Rules
The judgment of Lang J
A summary of the parties' submissions
(i) It is sufficient for a law to fall within Art.9(3) that it has an environmental purpose, even if it forms part of a statute or wider set of legal provisions which have no environmental purpose;
(ii) A qualifying legal provision does not have to be binding law. It may be a policy which legislation requires the public body to take into account (Venn), or an "obviously material consideration" to which that body must have regard;
(iii) Friends of the Earth [2021] EWHC 2369 (Admin) was correctly decided. Articles 9(3) and (4) apply even where a policy, not legislation, relates to the environment even if there is no legal obligation to have regard to that policy.
(iv) It would be odd if an irrational judgment regarding the effect of a decision on the environment fell outside a Party's obligation in Art.9(3) to provide access for members of the public to a procedure and remedy;
(v) All public law errors relating to the environment fall within Art.9(3) and (4).
Discussion
"Relating to"
The purpose of Article 9(3)
Travaux préparatoires and the French text of the Aarhus Convention
"which contravene provisions of its national environmental law"
The French text for that first option had exactly the same meaning:
"allant à l'encontre des dispositions du droit national de l'environnement."
Key provisions of the Aarhus Convention
Case Law
Venn v Seretary of Sate for Communities and Local Government
Austin v Miller Argent (South Wales) Limited
R (Friends of the Earth Limited) v Secretary of State for International Trade
R (ClientEarth) v Financial Conduct Authority
ClientEarth v European Investment Bank
"Lastly, it is clear from the wording and scheme of Arts. 9(3) and (4) of the Aarhus Convention, in the light of which the Aarhus Regulation must, so far as possible, be interpreted (see [107] above), that all acts of public authorities which run counter to the provisions of environmental law should be open to challenge. Thus, access to justice in environmental matters should not be limited solely to acts of public authorities that have as their formal legal basis a provision of environmental law."
Public law principles and environmental law
The judge's decision in the present case
Conclusion
LORD JUSTICE STUART-SMITH
LORD JUSTICE COULSON
Note 1 s.90 of the Criminal Justice and Courts Act 2015 and the Criminal Justice and Courts Act 2015 (Disapplication of Sections 88 and 89) Regulations 2017 (SI 2017 No. 100). [Back] Note 2 Defined there as displacement of GHG production emissions attributable to differing climate rules and policies across jurisdictions. [Back] Note 3 I note in passing that it is common ground between the parties that (a) the 2006 Regulation is “assimilated law” by virtue of s3(1) of the European Union (Withdrawal) Act 2018 and (b) the CJEU’s decision in the EIB case is not “assimilated case law”. [Back]