All bark and no bite

The draft Climate Change Bill, published by the government in March 2007 for consultation, proposes to set a target of a 60 per cent reduction in UK carbon dioxide emissions by the year 2050, measured against 1990 emission figures. If the Bill were to become law, it would be the duty of the Secretary of State [for Environment, Food and Rural Affairs] to ensure that this 60 per cent target is met.

In order to discharge this duty the Secretary of State would be under a further duty to establish a system of carbon reduction budgets over a series of five year budgetary periods, including specified minimum average annual equivalents for the first three of those periods. He or she would also have to ensure that the net UK carbon account (carbon emissions minus carbon removals) for a budgetary period did not exceed the carbon budget.

In addition, there would be substantial annual and five yearly reporting requirements imposed on the Secretary of State, to report to parliament on the progress achieved in meeting the budgetary targets, together with a final duty to report no later than 2052, on progress achieved as at 2050.

Many of the duties imposed on the Secretary of State must be fulfilled by way of order subject to the affirmative resolution procedure, i.e. any order must be approved by affirmative resolution of both Houses of Parliament. In setting carbon budgets the Secretary of State must take into account the advice of the Committee on Climate Change which would be established under Part 2 of the Bill. Both the Secretary of State and the Committee, in setting or advising on carbon budgets, must take into account a number of specified economic, fiscal, technological, social, energy policy and international criteria.

All this seems very impressive in apparently establishing a legally enforceable system for the reduction of carbon emissions by the imposition of statutory duties on the Secretary of State.

The government itself, in the consultation paper published with the draft Bill, claims that the proposed legislation ‘puts a legal duty on the government to ensure that the UK meets its targets and stays within the limits of its carbon budgets […] This legal duty would mean that a government which fails to meet its targets or stay within budget would be open to Judicial Review.’

The term ‘legal duty’ is used repeatedly in the consultation document. Similarly, the consultation document claims that by setting the carbon reduction target in statute, by imposing statutory decision-making and reporting duties in respect of the carbon reduction targets for the budgetary periods, the legislation will create a legal framework and legally enforceable carbon emission limits, thereby providing credibility and certainty to the government’s contribution to tackling climate change.

The purpose of this article is to determine how legally enforceable, if at all, the proposed legislation would be.

Judicial Review and Justiciability

The consultation paper explicitly claims that the Secretary of State’s decisions on carbon budgets and the government’s compliance with those targets will be legally enforceable through being amenable to judicial review.

This is a highly debatable claim. The courts will not judicially review decisions on non-justiciable issues. The GCHQ decision established that although the exercise by ministers of the royal prerogative power is in principle reviewable, some subject areas, such as defence, international relations, national security, the prerogative of mercy and the issue of passports, were non-justiciable.

Their subject matter was such that the government was better equipped to make the final decision, the courts’ forensic process being particularly unsuitable to decide such multi-faceted, polycentric issues.

Government ministers not only had their department’s resources of information and expert civil service advice to enable them to reach appropriate decisions on these complex subjects, but were also accountable to parliament for the exercise of their powers. Accordingly, the courts would defer to the minister’s decision that trade union disruption at GCHQ endangered national security.

Subsequently the GCHQ list of non-justiciable subjects has been reduced by judicial decisions permitting examination of ministerial decisions on both passports (Everett) and the prerogative of mercy (Bentley).

But there are other subjects which the courts, because of their lack of institutional competence and constitutional legitimacy, feel constrained from examining, such as broad economic and social policy.

Occasionally, there have been exceptions to this restraint, as in the Fares Fair and Pergau Dam decisions, but in both of these cases, the statutory power being exercised was explicitly limited by requirements respectively to operate an economic public transport system and to grant aid for economically viable development projects.

Furthermore, in the Hatton case involving night flights at Heathrow, the European Court of Human Rights eventually held that the UK government had a wide margin of appreciation, or in English legal terms, a broad area of discretionary judgment, in determining whether the economic interests of the nation should prevail over the convention rights of the residents near Heathrow airport. Such a decision would accordingly not be justiciable in the UK courts.

More recently, in the House of Lords decision in the Belmarsh case concerning the indefinite detention of foreign terrorist suspects ( R(A) v Home Secretary) all but one of the law lords refused to review the decision of the Home Secretary that there existed a state of emergency threatening the life of the nation, the pre-condition to derogation from the rights guaranteed by the European Convention on Human Rights and incorporated into domestic law by the Human Rights Act 1998.

Such a decision was ‘pre-eminently political’. Lord Bingham, the senior law lord, stated that the more political a decision was, the less justiciable it was, whereas the more legal a decision was, the more likely it was to be justiciable.

 Similarly, in relation to stop and search powers, the House of Lords held, in the Arena Arms Fair case ( R(Gillan) v Metropolitan Police Commissioner) that the courts could not review the decision of the Metropolitan Police under the Terrorism Act 2000, Sections 44-45, to designate the London area as one where people may be stopped and searched without reasonable cause for suspicion.

Such a decision was within the expertise of the police and the security service, for whom the Home Secretary was politically accountable. Such decisions involved analysis of security intelligence, some from reliable, some from less reliable sources. Only the police and security service had the experience and expertise to make such judgments.

In the draft Climate Change Bill, the Secretary of State is required, when setting carbon budgets, to take into account a wide range of criteria, including: scientific knowledge about and technology relevant to climate change; economic circumstances, in particular the likely impact of his decision on the economy, including its competitiveness; fiscal circumstances, including the impact of his decision on taxation, public spending and public borrowing; social circumstances, in particular the impact of his decision on fuel poverty; energy policy, in particular the likely impact of his decision on energy supplies and the carbon and energy intensity of the economy; and finally, international circumstances.

Quite clearly, this is a list of complex issues involving scientific and economic expertise as well as political judgment on sensitive questions such as international relations. The Secretary of State will have the advice of the expert Committee on Climate Change  to assist him in making his decision, and is required, immediately after setting a carbon budget for any budgetary period, to report to parliament on the government’s proposals and policies for meeting the carbon budgets for current and future budgetary periods.

Given these factors, the courts are highly unlikely to regard the Secretary of State’s carbon budget decisions as justiciable. They will almost certainly defer to the relative institutional competence and political accountability of the Secretary of State. The claim in the Consultation Document that the duties to be imposed upon the Secretary of State by the proposed legislation will be enforceable by judicial review is therefore without foundation.

Standing in Judicial Review

Another feature of judicial review is that the person making the application must have standing or locus standi, defined as having a sufficient interest in the matter to which the application relates. In the absence of such an interest, the applicant will be refused, at a preliminary stage, permission to proceed with his application.

It is highly unlikely that any individual citizen would be held to have the necessary standing. Until relatively recently, interest groups promoting particular social, environmental or economic causes were denied standing, on the basis that as no individual member of such groups had standing, the group could not acquire standing merely by aggregating their members’ lack of standing.

In recent years, however, the test of standing has been significantly liberalised, so that environmental groups and an NGO involved in promoting economically viable development aid have been granted locus standi. Given the significance of global warming, it is likely that an environmental group such as Greenpeace or Friends of the Earth would have the necessary standing to bring an application for judicial review, if the issue under challenge is justiciable.

Breach of Statutory Duty

An alternative to judicial review as a means of enforcing a statutory duty is to sue for an injunction and damages for the tort of breach of statutory duty. But this tort requires that the statute in question must have intended that the breach of duty be actionable at the behest of a specific victim. The duty must be owed to a particular class of persons, and particular individuals, as distinct from the world at large, must have suffered damage from the breach of duty.

The duty must also be sufficiently specific for the court to imply that it was intended by parliament to give rise to an actionable duty. It is clear that the draft Climate Change Bill, if enacted, would not give rise to any such duty.

A Legally Unenforceable Hoax?

It is clear from the foregoing that the draft Climate Change Bill, if enacted, would be largely, if not wholly, symbolic. It would give rise to no legally enforceable duties imposed upon government. It is therefore a purely political gesture.

Should future Secretaries of State fail to meet carbon emission reduction targets, there will be no legal sanctions for such failure. The only recourse will be through parliament and public opinion. It may be right and proper that this should be the case, given that climate change raises such a range of complex and difficult issues for the resolution of which the courts are a manifestly unsuitable forum. But governments should not pretend that they are establishing a legally enforceable regime of carbon emission reduction, thereby falsely laying claim to the credibility and legitimacy which the principle of legality, the cornerstone of the rule of law, confers.

Rodney Austin, Senior Lecturer, Faculty of Laws, UCL.