A failed application for judicial review reveals fatal flaws in the Climate Change Act

On 21 December 2023, the tribunal of the Court of Appeal, presided over by Sir Keith Lindblom, recent resignee of the Garrick Club, dismissed Feedback’s claim for judicial review of the government’s Food Strategy. Aside from putting a significant damper on my year end festivities, the tribunal’s judgment has far reaching and alarming implications for the UK’s plans to cut carbon to net zero.

When the Climate Change Act 2008 was passed, it seemed the government finally had a response to the threat of climate deregulation. Reassuringly, Section 13 of the act states that “The Secretary of State must prepare such proposals and policies as (they) consider will enable the carbon budgets (…) to be met”. Of further comfort was the establishment of the government’s climate change advisory body, the Climate Change Committee (CCC). Fast forward to the 2020s, however, and hope that this once pioneering framework legislation could lead to meaningful emissions reduction has all but been dashed.

In the food, land use and farming sector, Feedback’s areas of interest, government initiatives to tackle climate change have been scant. This is despite agriculture generating some 12 per cent of national greenhouse gas emissions, and repeated calls from the CCC to curb them, most notably through lower production and consumption of meat and dairy. This is a political hot potato neither the current government, nor seemingly the next, wish to countenance.

The Food Strategy was supposed to support net zero

In October 2021, the government duly published its periodic Net Zero Strategy, as required under the Climate Change Act. Predictably, there was no mention of meat and dairy reduction – or food and agriculture more generally – but the government instead pointed to the upcoming Food Strategy, which was to “support the delivery of net zero, nature recovery and biodiversity commitments”. This statement suggested to us that the Food Strategy would ‘cover’ emissions reduction in the food and farming sector, that it would be the place where the government would finally unveil a suite of measures to, as it said, “incentivise farmers to produce (…) food in the most sustainable way”.

When it was eventually published, in June 2022, after much delay, Lord Deben, then the CCC’s chair, said that the Food Strategy did “precious little to tackle emissions from agriculture which is now one of the most serious contributors to climate change”. The rest of us, not bound by position, just said it was “total rubbish”. Dismayed that a crucial opportunity to tackle climate change had been squandered, we decided to apply for a judicial review of the Food Strategy, enlisting the services of solicitors Leigh Day.

Several refusals, appeals and permissions later, and after several changes to our grounds, the questions put before the Court of Appeal were, as follows:

• Was the duty under Section 13 of the Climate Change Act engaged in the development and adoption of the Food Strategy? That is to say, should the secretary of state have put in place the proposals and policies to meet carbon budgets in the strategy?
• And, if so, when adopting the strategy, did the secretary of state need to give significant weight to, and give cogent reasons from the advice of the CCC on emission reducing measures in food and farming, especially on meat and dairy?

It turns out, the answer to both these questions is a unanimous ‘no’. And now for those alarming implications for the UK’s ability to meet its climate goals.

In answering the first question, the court ruled that the secretary of state referred to in Section 13 of the Climate Change Act was the secretary of state for the Department for Business, Energy and Industrial Strategy (BEIS), now the Department for Energy Security and Net Zero (DESNZ).  It ruled that only the secretary of state for DESNZ has responsibility under the act to put in place proposals and policies to meet carbon budgets, under Section 13.

The secretary of state for the Department for Environment, Food and Rural Affairs (Defra), who signed off the Food Strategy, has no such legal obligation, neither does the secretary of state for transport, or any other department for that matter. The secretary of state for DESNZ, however, has the task of ensuring that proposals and policies “taken as a whole”, across ministries, enable carbon budgets to be met. In doing so, they, as the ruling put it, “may take into account the proposals and policies that other Secretaries of State may prepare”, but the preparation of such policies is tentative and discretionary.

The DESNZ secretary of state’s job to ensure carbon budgets are met is made difficult – perhaps even impossible – by the fact that their counterparts in other ministries do not need to lift a finger to reduce carbon emissions, if they don’t want to. They can instead continue to churn out strategies that ignore this imperative.

And so, the ruling established that secretaries of states – other than DESNZ – are not compelled under the Climate Change Act to develop proposals and policies to reduce emissions. They are not bound by the Section 13 obligation. The act fails to make emissions reduction a core project of all ministries. And, since we know emissions must be reduced across the board, in food, farming, aviation, everywhere, it’s hard to see how the government can plan and make this happen. It seems it can’t.

CCC advice can be ignored

In answering the first question, the second became purely academic and did not need to be addressed. Alas, it was, and the ruling on the second question was startling to my legally untrained eyes and ears: “…we do not doubt that the CCC have the power to give such advice (…) [ie on measures to meet carbon budgets]. It does not follow, however, that the Secretary of State is under a duty to take it into account.”

In other words, the CCC can advise away all it pleases, but the government need not engage with its advice at all. Despite the ruling, it seems unlikely to me that parliamentarians who voted for the act in 2008 envisaged the CCC as a provider of ignorable expert advice, wasting both its time and our money. Not only that, from whom is the government supposed to get advice on proposals to meet its carbon budgets, if not from its own climate advisers, the body with a statutory mandate to provide it? The government’s track record, in food and farming at least, suggest the answer is from no one.

At the time of writing, we have filed for permission to appeal in the Supreme Court. If that is not granted, it will be the end of the road for this case. If it is granted, Feedback will face an uphill battle to raise the legal fees to proceed. Should we succeed in this, our legal team will make the case to the Supreme Court that the Court of Appeal’s ruling was a terrible mistake. Let’s hope it can be corrected because, as things stand, while the targets set out in the Climate Change Act have the right level of ambition, the implementation framework is such that net zero can’t and won’t be met.

Addendum: Unfortunately, the permission to appeal in the Supreme Court was refused on 8^th May, because ‘the application does not raise an arguable point of law’. Naturally, our lawyers would dispute this reason, but it is nonetheless the end of this legal challenge. The implications for the scope and effectiveness of the Climate Change Act as described in this blog stand and the need for climate legislation that is both ambitious and implementable is more pressing than ever.

This blog was originally published by Green Alliance.