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High Court rules government’s Net Zero Strategy unlawful

The High Court has ruled that the government’s Net Zero Strategy is unlawful because the minister delegated to approve it by the Secretary of State did so without all the necessary information to legally make that decision.

Posted on 19 July 2022

The strategy faced a legal challenge from Friends of the Earth, represented by Leigh Day, who argued that the Net Zero Strategy (NZS) did not meet its obligations under Sections 13 and 14 of the Climate Change Act 2008 to enable Parliament to clearly evaluate how the Government intends to achieve its carbon budgets.

The Climate Change Act requires the Secretary of State for business, energy and industrial strategy to ensure that emissions of UK Greenhouse Gases are at least 100 per cent lower in 2050 than they were in 1990. Under Section 4 of that Act, his department must set five-yearly carbon budgets. The NZS was presented in October 2021, but in the legal case it was argued that it did not show the carbon emissions cut that each of the Business Secretary’s proposals or policies will achieve and when each is expected to take effect.
 
During the legal proceedings it was revealed that the minister was advised by officials that if its quantifiable policies were “delivered in full”, then the NZS would only achieve 95% of the emissions reductions required for the sixth Carbon Budget (CB6). The minister was not told what contributions individual policies would make to the 95% assessment nor the identity of either those unquantified measures or quantified measures that would need to be “developed further” in order to make up the 5% shortfall.
 
As a result, the court ruled that the Secretary of State was unable to satisfy his legal duty, because he did not have the necessary information to reach a lawful view.
 
In his ruling Mr Justice Holgate held that the quantification of the effect of individual policies on carbon emissions was an “obviously material” consideration and therefore, as a matter of law, information had to be provided to the minister on that quantification. The judge held that it was not, and therefore the Secretary of State failed to take this into account and as a result, did not lawfully discharge his duty under section 13 of the Climate Change Act 2008.
 
The judgment also stated that given the importance of tackling climate change, the Secretary of State was under an elevated duty to tell Parliament how he proposed to meet the carbon budgets, which required him to explain the thinking behind his proposals and how they will enable the carbon budgets to be met. Parliament was not told about the shortfall and how it would be made up and therefore Parliament, and by extension the public, were unable to perform the critical task of assessing the risk and consequences of the policies not being delivered and the statutory targets not being met, and so the report to Parliament was legally deficient.
 
Observing that “the climate change problem is urgent and demands high priority” the judge further granted Friends of the Earth and the other claimants a mandatory order requiring the Secretary of State to present to Parliament a report, which complies with section 14 of the Climate Change Act, by no later than 31 March 2023
 
FoE’s claim was heard together with two other cases brought by NGOs, including ClientEarth. FoE is represented by Leigh Day, as well as David Wolfe QC (Matrix), Catherine Dobson (39 Essex) and Nina Pindham (No5 chambers).
 
 
Friends of the Earth lawyer, Katie de Kauwe, said:
 
“We’re proud to have worked on this historic case. Taking strong action to cut carbon emissions is a win-win. Not only is it essential to preventing climate breakdown, but we can also tackle the cost of living crisis with cheap, renewable energy.
 
“This landmark ruling is a huge victory for climate justice and government transparency. It shows that the Climate Change Act is a piece of legislation which has teeth, and can, if necessary, be enforced through our court system if the government does not comply with its legal duties.
 
“More than a decade ago, Friends of the Earth spearheaded the grassroots campaign that led to this vital piece of legislation. Today, we have strengthened its enforcement, which is so crucial to our country’s ability to tackle the climate crisis.”
 
Rowan Smith, solicitor at law firm Leigh Day, added:
 
“The significance of this legal victory cannot be overstated. Through our client’s determined efforts, the Court has ruled that crucial legal provisions in the Climate Change Act have been breached. The Secretary of State must now fully comply with his legal duties, by properly assessing how likely it is that each of his policies will meet carbon targets, and reporting this to Parliament and the public in order to facilitate proper debate and scrutiny. This is a momentous achievement; both in upholding the rule of law, and also in terms of safeguarding the future of the planet.”   

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Rowan Smith
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Rowan Smith

Rowan Smith is an associate solicitor in the human rights department.

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