Court of Appeal reiterates limits of judicial review in the climate change context

January 17, 2023

In R. (on the application of Friends of the Earth Ltd) v Secretary of State for International Trade/UK Export Finance (UKEF) [2023] EWCA Civ 14 the Court of Appeal dismissed an appeal brought by Friends of the Earth relating to the Government’s decision to provide export finance in support of a natural gas project in Mozambique. In doing so, the court gave importance guidance on the role of the Paris Agreement on climate change in domestic judicial review cases.

Key points

  • The court cannot and should not second guess the executive’s decision-making in the international law arena where there is no domestic legal precedent or guidance.
  • When considering the lawfulness of a public law decision in the context of an unincorporated treaty such as the Paris Agreement, the standard of review in judicial review proceedings may be based on tenability and not correctness.

Background

Friends of the Earth (“FoE“) sought to appeal the dismissal of its application for judicial review of the Secretary of State’s decision to provide export finance in support of a natural gas project (the “Project“) in Mozambique. The decision was initiated by United Kingdom Export Finance (“UKEF“) in exercise of delegated powers. At first instance, the Divisional Court was split and the judicial review did not succeed (see our commentary on the judgment).

FoE appealed to the Court of Appeal. It raised the following issues:

  1. Whether it was an error of law for UKEF to have concluded that the decision was aligned with the UK’s obligations under the Paris Agreement;
  2. Whether, given UKEF had decided to finance the Project on the basis that funding was in accordance with the UK’s obligations under the Paris Agreement, the court should assess the lawfulness of that decision on the basis only of whether UKEF’s view was tenable, rather than correct;
  3. Whether the Court of Appeal should determine the proper construction of Article 2 (1) (c) of the Paris Agreement (which relates to making finance flows consistent with a pathway towards low greenhouse gas emissions and climate resilient development); and
  4. Whether the respondents failed in their duty of enquiry under Secretary of State for Education and Science v. Metropolitan Borough of Tameside [1977] AC 1014 (“Tameside“) by not obtaining an accurate quantification of the Project’s Scope 3 emissions.

Judgment

In a single unanimous judgment, Sir Geoffrey Vos dismissed the appeal and addressed the issues raised by FoE fully in his judgment.

The Paris Agreement

Sir Geoffrey Vos held that the Paris Agreement did not give rise to domestic legal obligations as it is an unincorporated international treaty. The court did not agree with the comments made in the Divisional Court that the Paris Agreement consisted of “a composite package of aims and aspirations“, noting that it does contain specific obligations on states, but it is not helpful to seek to derive from the text hard-edged obligations of the kind found in commercial agreements.

For the purposes of this judgment the court did not consider it necessary to take any firm view as to the precise nature of the UK’s obligations under the Paris Agreement, but focused on what the UK was not obliged to do. Sir Geoffrey Vos concluded that Article 2 (1) (c) did not create an obligation on the UK to demonstrate that its overseas funding was consistent towards limiting global warming, but instead contained the aims and purposes of the Paris Agreement.

The question of whether funding the Project was aligned with the UK’s international obligations under the Paris Agreement was however accepted to be justiciable.

Tenability

The court held that the question of whether it was an error of law for the respondents to have concluded that funding the Project was aligned with the UK’s obligations under the Paris Agreement, was to be judged by the tenability standard rather than the correctness test, and provided an explanation of their approach.

The respondents here chose to take into account the UK’s obligations under the Paris Agreement but were not compelled by domestic law to do so. The court noted the lack of clear guidance as to how unincorporated treaties such as the Paris Agreement should be interpreted under domestic law. Sir Geoffrey Vos referred to the Paris Agreement as one of many factors that UKEF decided to consider when making their decision and emphasised that it was not for the courts to allocate “weight as between competing factors“. As an example, he outlined that if domestic courts had to definitively construe unincorporated treaties every time the executive decided to have regard to them in making decisions, it would be “problematic” and “unworkable”.

The court therefore found that the fact that UKEF had reached a definitive view that its decision was compliant with the UK’s obligations under the Paris Agreement (rather than saying it was simply tenable) had no effect on the outcome. The court explained that the executive can state that it wishes to comply with an unincorporated treaty even though there may be different views as to what precisely it means. The court went further and accepted that the executive “must also be able to say, without successful challenge, that it thinks on balance and in good faith that a particular decision is compliant, even if it later changes its policy or is shown to have been wrong in the view that it took“.

Rationality

FoE’s rationality challenge focused on the argument that the Government later acknowledged that financing the Project did not align with the UK’s obligations under the Paris Agreement.

Sir Geoffrey Vos explained that the uncertainty and complexity surrounding the Project made it clear that UKEF could not predict a precise outcome. In particular it was not clear to what extent the Project would contribute to fossil fuel transition. He observed that UKEF had to consider all relevant and material factors when making their decision which included the UK’s obligations under the Paris Agreement.

The court held that the correct standard to apply was whether UKEF’s view that the decision aligned with the UK’s obligations was tenable when it was taken (not with the benefit of hindsight). There was no requirement to be certain that the decision complied with those obligations. It would be unworkable and impracticable if the Government could only make such a decision if it were able to demonstrate that its view of the factual and legal position was correct.

In light of the complexity of the case, the court found that UKEF’s view was indeed tenable and therefore it was not irrational for UKEF to decide to provide finance for the Project.

Tameside challenge

The court referred to Thornton J’s approach in the Divisional Court, where she considered that the failure to quantify the Scope 3 emissions meant “that there was no rational basis by which to demonstrate that funding for the project was consistent with Article 2 (1) (c)”, and described it as flawed on the basis that Article 2 (1) (c) does not impose an obligation on the UK Government with which compliance must be demonstrated.

Noting that it was for the decision maker to decide upon the manner and intensity of the inquiry to be undertaken, Sir Geoffrey Vos stated that the ultimate question for the court was whether it was irrational for UKEF to have taken the funding decision without accurately quantifying the Scope 3 emissions, in a context where it was always fully understood that the Scope 3 emissions were significantly larger than the other categories of emissions. Sir Geoffrey Vos noted that the precise quantification of the Scope 3 emissions did not answer the important questions of whether and to what extent gas from the Project would replace more polluting fossil fuels or whether financing would or would not align with the UK’s obligations under the Paris Agreement.

The court held that UKEF’s decisions as to the quantification of the Scope 3 emissions were within the substantial margin of appreciation given to decision-makers. The court concluded that despite failing to estimate the scope 3 emissions accurately, the decision was not irrational.

Comment

This is an important judgment on the standard of review the courts will apply when asked to consider unincorporated international law and the broad margin of discretion afforded to public bodies when deciding complex and uncertain issues.

The judgment also serves as a strong reminder of the high bar of success for judicial review applications despite the growing relevance and appreciation of climate change-related issues. Indeed the judgment started with a reminder that it should not be construed as supporting or opposing any political view, but was focused only on establishing whether the decision was vitiated by an error of law. Regardless of the context, judges are expected to restrict themselves to applying accepted and familiar principles of public law.

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Administrative Court indicates that a privately owned airport operator may be amenable to judicial review

January 16, 2023

In R. (on the application of Doncaster MBC) v Doncaster Sheffield Airport Ltd [2022] EWHC 3060 (Admin), the Administrative Court has indicated that it is “arguable with a realistic prospect of success” that a decision made by a privately owned airport operator, Doncaster Sheffield Airport Limited (the “Operator“), to close Doncaster Sheffield Airport, is amenable to judicial review.

Key Points

  • Case law supports the proposition that a privately owned airport operator can in principle be found to be discharging public functions.
  • The discharge of public functions attracts public law’s basic standards of lawfulness, reasonableness and fairness and renders a decision amenable to judicial review.
  • A privately owned airport operator arguably discharges a public function amenable to judicial review when making a decision to close an airport.

Background

The judicial review concerned the Operator’s announcement on 26 September 2022 to close Doncaster Sheffield Airport, on the basis that the aviation services were no longer commercially viable (the “Decision”).

Prior to the September announcement, the Operator conducted a Strategic Review of options for the airport, including a consultation and engagement programme with stakeholders. The claimant, Doncaster Metropolitan Borough Council (the “Council“), was actively involved in the consultation and strongly opposed the airport’s closure.

The Operator sought to raise a number of “knock-out” points at the oral permission hearing, in particular arguing that the decision was not amenable to judicial review, the claimant lacked standing and there had been delay.

Judgment

Amenability

The Operator submitted that the Decision was not amenable to judicial review because the Operator was a private company acting at all times as a private entity and not discharging a public function. Drawing an analogy with R (Liberal Democrats) v ITV Broadcasting Ltd [2019] EWHC 3282 (Admin), the Operator pointed out that the private body’s activities were purely commercial notwithstanding that they were provided to the public at large; the source of the powers and duties derived from a memorandum and articles of association not from statute; the activities were not monopolistic and the function was not intrinsically governmental or quasi-governmental.

Although that was said to be a powerful line of argument, the court found that it was arguable, with a realistic prospect of success, that the Operator was, in its decision making regarding closure of the airport, discharging a public function amenable to judicial review and attracting public law’s basic standards of lawfulness, reasonableness, and fairness. Arguability was the appropriate threshold at this stage as the court was only considering the issue of whether or not to grant permission for judicial review.

Fordham J noted case law which supports the proposition that a privately owned airport operator can discharge public functions. He also relied on the regulatory power conferred by Parliament under the Airports Act 1986 which empowers the Operator to make byelaws for regulating the use and operation of the airport. Fordham J considered that making or enforcing byelaws restricting access to the airport would be a sufficient public function for the purposes of amenability to judicial review. Against that background the court found it illogical to conclude that closing the airport down altogether would be a decision bereft of any sufficient public element.

Regard may be had to the “nature, context and consequences” of the decision. The airport was land used for a public purpose, the Operator was permitted to use the land as an airport in the public interest, and the Operator’s function was carried out in the national interest. Further, the decision affected substantial members of the public. The combination of these features persuaded the court that the decision was arguably amenable to judicial review.

Standing

The court found that the Council did not lack the sufficient interest required to challenge the Operator’s decision, as the airport fell within the Council’s administrative responsibilities and was a key infrastructure asset interwoven into the Council’s public and legally significant plans. Further, the Council was heavily represented on the Operator’s own consultative committee and was a key stakeholder during the Strategic Review.

Delay

The court was not persuaded that it should refuse permission for judicial review on the grounds of delay and a lack of promptness. Although the Council had placed itself on the outer limits of promptness by waiting 5 ½ weeks to issue its claim, it was actively involved in the engagement leading to the decision, and proactive in its attempts to deter the Operator. Just 2 ½ weeks after the Decision, the Council raised in correspondence that it was considering injunctive and public law remedies.

It is notable however that even though the judicial review proceedings were commenced within a matter of weeks, rather than months, Fordham J considered that the Council was “skating on thin ice” notwithstanding the understandable approach of focusing resources on other solutions and turning to the lawyers to draft a claim only as a ‘last resort’. Despite all this, Fordham J considered that there had been a delay of a nature capable of having consequences in relation to any question of interim relief.

Grounds for judicial review

There were a number of different grounds for judicial review advanced, including in relation to the consultation process, predetermination, substantive unreasonableness and unlawful delegation. However, the court found no viable ground for judicial review crossing the threshold of arguability with a realistic prospect of success. Permission for judicial review was therefore refused.

Comment

This judgment, although only at the initial permission stage, is notable in confirming that decisions made by privately owned airport operators may potentially be amenable to judicial review. When exercising their powers regarding the running of aviation services, operators may be discharging public functions. Although the issue of whether or not a particular decision will be amenable to judicial review is highly fact and context specific, this judgment serves as a reminder to private organisations functioning in an area of public interest, both in aviation and other sectors, that they are not necessarily exempt from public law’s basic standards of lawfulness, reasonableness, and fairness.

The approach of the court on the delay issue is also striking and emphasises the need for claimants who are considering challenging public law decisions to move with the utmost urgency.

Andrew Lidbetter
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Nusrat Zar
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Administrative Court gives strong guidance on the duty of candour following failure to provide accurate instructions to legal team

December 7, 2022

The Administrative Court has emphasised the importance of the duty of candour in judicial review proceedings, and found a breach of that duty by the Secretary of State in R. (on the application of HM) v Secretary of State for the Home Department [2022] EWHC 2729 (Admin). The two joined claims concerned the Home Office’s unpublished and unlawful blanket policy in relation to the seizing of all mobile phones from migrants crossing in small boats.

Key Points

  • The court emphasised that the duty of candour imposes on the state “a positive duty” to provide accurate information.
  • This requires both clear and accurate instructions to legal teams and proper engagement with the preparation of evidence and submissions in judicial review proceedings.
  • Despite acknowledging the challenging wider circumstances presented by the pandemic amongst other factors, the court held that this was no excuse for unlawful conduct and lack of candour.

Factual Background

At the outset of the proceedings, the Home Office’s legal team understood that the unlawful policy (which had been the subject of the original judicial review claims) had been discontinued in June 2020 and replaced with a lawful policy of targeted seizing. This understanding was incorrect. Although the policy did undergo changes in the months following June 2020, aspects of it remained unlawful until November 2020. As the first of the two judicial review claims concerned a seizure which took place after June 2020 but before November 2020, the legal team erroneously believed that the claimant’s phone had been seized pursuant to a lawful policy. Holding this view, the legal team decided that it was appropriate not to disclose that an unlawful policy of blanket seizure had existed at any time, and robustly defended the case suggesting that the allegation of a blanket policy was fanciful.

Legal Background

Turning to the legal background, the court emphasised the fundamental importance of the duty of candour in judicial review proceedings, which imposes “a positive duty” to ensure that the court is “supplied with all the information necessary to determine a case accurately.” This is so that the court can “adjudicate on issues involving the state without deciding facts or engaging in disclosure processes” which, considering the nature of public law, would be onerous and time-consuming were they to be required.

Whilst the principal legal authorities on the duty of candour are well-established, the court also referred to the guidance published by Treasury Solicitors Department in January 2010 (see here) as a source of “sound advice” on the subject. In particular, the court highlighted the section confirming that the duty of candour “applies to every stage of the proceedings”, including before the permission stage.

Judgment

The court found that the principal failure in relation to the duty of candour was the decision not to disclose that there had been an unlawful policy, about which the legal team knew, thereby failing to provide an accurate and complete picture of the case to the claimants and the court. This was a “collective error of judgment“. Furthermore, the court suggested that had an accurate case been put forward, any misunderstanding in relation to the facts of the case would have been resolved much earlier.

The court commented that it was the “surprising failure to provide accurate factual instructions to the legal team” which was the origin of the subsequent failures of those acting on behalf of the Secretary of State. In particular, the court noted its surprise, given that when the challenge was brought, the government lawyers were in direct contact with the officers who were “at almost exactly the same time” involved in discussions about necessary changes to the policy. Recounting the chronology of events, the court noted a number of missed opportunities for the confusion to be resolved in which they were not. This was due to a consistent and widespread absence of clear instructions to the legal team, and a less than rigorous engagement on the part of the Home Office with the draft documents and updates being circulated by the legal team.

The court recognised the various contextual factors which may have contributed to the failings, including the great pressure the participants were under due to the migrant crisis, and the related need for events to move quickly. Furthermore, opportunities to meet face-to-face continued to be restricted by the pandemic. Under these circumstances, there was “a failure to take appropriate steps to ensure that what was done [i.e. the creation and implementation of policy] was being done lawfully, and thereafter […] to conduct rigorous enquiries to establish before making statements in the proceedings what the truth was.” In summary, whilst the court agreed that these factors offered an explanation for the origin of the unlawful conduct and lack of candour, it did not consider that they offered an excuse.

As a consequence of the breach of the duty of candour, and following an apology from the Secretary of State, the parties reached an agreement that the Secretary of State must pay some of the claimants’ costs for the linked judicial review claims on an indemnity basis.

Comment

In keeping with a line of post-pandemic judicial reviews, the court has again maintained that exceptional circumstances such as the pandemic or political crisis do not necessarily permit public bodies to dispense with rigorous internal checks and the proper following of processes. The strongly worded judgment acts as a reminder to legal teams and instructing parties alike of the importance of clear and accurate instructions and the need to stay actively and critically engaged throughout the proceedings.

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Nusrat Zar
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Jasveer Randhawa
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Jessica Fechner
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High Court considers standing of a non-economic operator to challenge procurement decisions

November 23, 2022

In R (Good Law Project Ltd) v The Secretary of State for Health and Social Care [2022] EWHC 2468 (TCC), the High Court dismissed a judicial review claim brought by the Good Law Project (“GLP“) against the Secretary of State for Health and Social Care (“SSHSC“) in connection with the awarding of contracts in the Covid-19 pandemic, and in doing so found that GLP did not have standing to bring the challenge.

Key points

  • Non-economic operator claimants in judicial reviews in the procurement area may have standing in some limited circumstances.
  • The question of standing remains heavily dependent on the facts of the case and the circumstances of the particular claimant.
  • Following a number of recent cases, claimants should be mindful that defendants may seek to raise standing arguments more frequently than before.

Background

Over the course of 2020, the SSHSC entered into three contracts with Abingdon Health plc (“Abingdon“) to develop and purchase lateral flow tests which could be used by individuals to test for Covid-19 antibodies.

GLP was granted permission to challenge the decisions by the SSHSC to enter into contracts with Abingdon on the following grounds, which rely on both public law principles and the Public Contracts Regulations 2015:

  1. The SSHSC’s decision to enter into the contracts was irrational.
  2. The SSHSC acted with apparent bias, had a conflict of interest and had an unlawful nationality preference when choosing to award Abingdon with the contracts.
  3. The SSHSC breached obligations of equal treatment and transparency.
  4. The SSHSC unlawfully granted Abingdon State aid.

The SSHC challenged GLP’s standing to raise any of the grounds set out above.

The judgment

In a lengthy judgment of over 100 pages, the court (Waksman J) dismissed all of GLP’s grounds of challenge, finding that:

  1. There was no evidence to suggest that the decisions to enter into any of the three contracts were taken without conducting adequate enquiries (or were otherwise irrational);
  2. The allegations of apparent bias, conflict of interest and unlawful nationality preference were not made out on the facts;
  3. On the facts, there was also no breach of the principles of equal treatment and transparency and notably, GLP could not identify another company as being “unlawfully treated”; and
  4. Neither the grant of the contracts nor any assistance provided by the Government to Abingdon constituted State aid.

Although having dismissed the claim, the point was academic, Waksman J addressed the question of standing fully in his judgment.

The law on standing

Section 31 (3) of the Senior Courts Act 1981 provides that an applicant for judicial review must have “sufficient interest in the matter to which the application relates“.  This is often straightforward, on the basis that a claimant will have a direct interest in the decision (for example in the case of an economic operator who has unsuccessfully competed for a contract). However, standing can be a live issue in public interest cases, where decisions affect society generally but there are no particular affected individuals.

Describing the issue of standing as a “multifaceted one“, Waksman J identified the following six factors which he considered to be relevant when making a decision on standing:

  1. Merits: The merits of the case are relevant to the question of standing, although not a determinative factor because, if the claim fails (as it did in the present case), it does not necessarily mean standing cannot be found.
  2. Particular legal context: In this context (which concerned procurement decisions) it was not disputed that the “natural” claimants would be relevant economic operators. However, Waksman J emphasised that this does not mean that a person other than an economic operator can never bring a public law challenge against a procurement decision.
  3. Effect on the claimant: The court held that this factor is “clearly relevant” when considering standing. In the present case GLP was not affected by the alleged unlawfulness any more than any other member of the public.
  4. Gravity: Waksman J found that the “gravity” of the issue in dispute is a further way of showing a basis for standing (even for a non-economic operator in a procurement dispute), albeit again not a determinative one.
  5. Other possible claimants: Waksman J emphasised that, while the absence of claims brought by the “natural” claimants (in this case being the economic operators) “is not wholly irrelevant“, the court should not focus too heavily on this but should instead “concentrate more” on the questions of gravity and the effect on the claimant.
  6. The position of the claimant: While it is well accepted that, if a claimant is a “busybody” or has an “ulterior motive“, this can be enough to disqualify them, this must be assessed in the context of the case as a whole.

While focussing on these six factors, Waksman J also identified a number of other points (including the relevance of a public interest in the decisions in question) which might be relevant and noted that overall, the question of standing is case sensitive.

GLP’s standing in this case

Having considered the factors described above, Waksman J found that GLP did not have standing for any of the challenges pursued.

The starting point is that, as a non-economic operator, it could not be said that GLP was affected in any “tangible way” by the award of the contracts. Neither was it “acting as a surrogate for operators”. In addition, Waksman J did not consider the claim to be “grave” as it concerned a single operator in contracts worth £15 million (as opposed to the fact pattern in a previous case whereby contracts involving billions of pounds had deliberately not been publicised) and ultimately no findings of unlawfulness had been made.

As to the position of GLP itself, the court found that while it had a “particular interest” in the matters pursued, in the circumstances “very limited weight” could be attached to GLP’s “experience and expertise” in procurement-related claims.

Comment

This case, which is the latest in a succession of recent cases involving GLP which have considered standing (see here for our blog on an earlier case), provides some helpful clarity and guidance on the factors which are taken into account by the court when deciding standing, in particular in circumstances where the applicant is not the “natural” claimant in a case.

It also clarifies the question of standing for non-economic operators with no commercial interest in a procurement process, which was described as “ripe for review” in R (Good Law Project) v Minister for the Cabinet Office [2022] EWCA Civ 21.

This case leaves open, however, the question of whether recent decisions reflect a tightening of the law on standing and it will be important for claimants and defendants alike to keep a close eye on developments in this area going forward.

Andrew Lidbetter
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Nusrat Zar
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James Wood
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Administrative Court dismisses judicial review challenge of FOS “mortgage prisoner” decision

October 10, 2022

The post below was first published on our Banking Litigation notes blog.

The Administrative Court has dismissed an application for judicial review of a decision by the Financial Ombudsman Service (FOS) in the context of a complaint against a lender by an individual borrower who claims she is trapped in her mortgage (a so-called “mortgage prisoner”): Mortgage Agency Service Number Five Ltd, R (On the Application Of) v Financial Ombudsman Service Ltd [2022] EWHC 1979 (Admin). In this case, the court found that the FOS did not accept jurisdiction over complaints which were out of time and there was no other basis for challenging the final decision of the FOS.

The result demonstrates the court’s reluctance to interfere with the wide remit of the FOS to consider a complaint by reference to what is “fair and reasonable in all the circumstances of the case” (s.228 of the Financial Services and Markets Act 2000 (FSMA)). In particular, the court recognised that it is for the FOS to decide the parameters of the complaint when considering whether it will accept jurisdiction over it. The court also acknowledged the FOS’s wide discretion to consider the background and context to complaints found to be within its jurisdiction.

The judgment therefore reflects the court’s usual approach of giving significant latitude to the judgment of specialist decision-makers in judicial review. The court indicated that it is only if the Ombudsman makes an error in reaching a final determination that there might be a basis for action.

The case is considered in more detail below.

Background

The claimant (MAS5) is a mortgage lender which is part of the Co-operative Bank, and which currently owns the mortgage of Mrs Gwendolyn Davies, the Interested Party to the claim.

In October 2018, Mrs Davies made a complaint to MAS5 about the fairness of the interest rates charged under her mortgage, and subsequently escalated her complaint to the FOS in December 2018.

The FOS decided that it would be able to investigate the complaint about the interest rate that MAS5 applied to Mrs Davies’ mortgage from October 2012 (i.e. for the six years prior to the initial complaint made by Mrs Davies, in accordance with Rule 2.8.2 in Chapter 2 of the “DISP Dispute Resolution: Complaints” section of the FCA Handbook (DISP)). As part of this investigation, the FOS confirmed that it would review the history of Mrs Davies’ mortgage from the time it reverted onto the standard variable mortgage rate in January 2009.

MAS5 applied for judicial review of the FOS’s decision to consider the rates applied to the mortgage prior to October 2012, on the ground that this decision was an error of law and goes back further than the jurisdiction of the FOS permits (i.e. more than six years before the complaint was made in October 2018).  MAS5 did not challenge the decision of the FOS to investigate the complaint about the interest rate applied to the mortgage from October 2012.

Decision

MAS5’s application for judicial review was dismissed. The key elements of the decision were as follows:

  1. FOS entitled to identify the parameters of the complaint. The court stated that it is for the FOS to decide what the complaint is and whether it will accept jurisdiction over it. In the court’s view, the FOS had clearly both: (a) identified the complaint as it was understood; and (b) stated which parts the FOS would, and would not, accept jurisdiction over.
  2. FOS did not accept jurisdiction for time-barred complaints in this case. The court found that the jurisdiction the FOS accepted was, exclusively, to consider complaints about interest charged after October 2012, and the proposed consideration of interest variations before October 2012 was firmly set as background or context only. Accordingly, there was no basis for challenging the FOS’s final decision on the basis that it accepted jurisdiction over complaints which were out of time.
  3. FOS has broad discretion to consider background to complaint. The court emphasised the broad discretion of the FOS under s.228 FSMA and DISP 3.6.1R to decide what it will take into account when deciding what is “fair and reasonable in all the circumstances of the case”. In the court’s view, the FOS was entitled to consider the background to the complaints within its jurisdiction, including the setting of the prevailing rate. The FOS’s decision as to what it would take into account was not irrational or unlawful.

Andrew Lidbetter
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Nusrat Zar
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Ariel Wiebe
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Court rejects challenge to new food regulations designed to tackle childhood obesity

August 10, 2022

In R. (on the application of Kellogg Marketing and Sales Co (UK) Ltd) v Secretary of State for Health and Social Care [2022] EWHC 1710 (Admin) the High Court dismissed all four grounds of a challenge brought by Kellogg to the Food (Promotions and Placement) (England) Regulations 2021 (SI 2021/1368) (the “Regulations”).

Key Points

  • The courts will take a deferential approach to policy decisions involving weighing up competing interests, particularly in areas such as public health.
  • There is no rule that prohibits the incorporation of extraneous documents into a statutory instrument by reference, provided this is permitted under the enabling legal provision.

Background

The Regulations (due to come into force on 1 October 2022) introduce restrictions on the promotion of food classified as high in fat, sugar or salt (“HFSS“) and therefore considered “less healthy”, as part of the Government’s strategy to tackle childhood obesity. The assessment of whether a particular food is “less healthy” depends on the score given under the Food Standards Agency’s existing Nutrient Profiling Model (“NPM“) which is incorporated into the Regulations by reference along with the associated technical guidance (together the “NPTG“).

Regulation 10 provides that an improvement notice may be issued by an enforcement authority where it has reasonable grounds for believing that a food proprietor is failing to comply with the Regulations. In making this provision, the Defendant relied on the authorisation contained within the Food Safety Act 1990 (the “FSA“), specifically Section 10 FSA which concerns the regulations of food preparation processes and hygiene practices (or as extended by Section 48(1) FSA “matters similar”). Section 16 FSA also enables further provisions to be made by regulation in the interest of food safety and consumer protection.  

Following the classification of a number of Kellogg breakfast cereals as “less healthy” the Claimants sought to challenge the Regulations on four grounds:

Ground 1: Regulation 10 is ultra vires as Section 10 FSA does not permit the issue of improvement notices for the subject matters concerned in the Regulations.

Ground 2: The incorporation of the NPTG by reference, as opposed to by inclusion in the statutory instrument itself, is ultra vires.

Ground 3: The Defendant failed to adequately consider the appropriateness of assessing cereal as sold (i.e. without milk) rather than as consumed (i.e. with milk), and this failure amounts to irrationality.

Ground 4: The assessment of cereal without milk disproportionately infringes the Claimants’ right to peaceful enjoyment of its possessions contrary to Article 1 of Protocol 1 of the European Convention on Human Rights (“A1P1 ECHR“).

Judgment

Ground 1

The Claimants contended that Section 10 FSA does not confer a power to enact regulations which expand the scope for issuing improvement notices, and that Regulation 10 therefore has the effect of amending primary legislation.

The court dismissed the argument that the Defendant had sought to amend primary legislation on account of the fact that Regulation 10 is a free-standing mechanism which “enlarges” the power to issue improvement notices in a way that is consistent with the aims of the FSA rather than altering Sections 10 and 11 FSA.

The court then addressed the question of whether the relevant FSA provisions confer a power on the Defendant to enact Regulation 10. After considering the relevant statutory provisions in detail, Linden J did not accept that there was any real doubt as to the existence of the power.

Ground 2

As conceded by the Claimants, there is no rule which forbids the incorporation by a statutory instrument of rules set out in an extraneous document. Whether or not this is permitted in a given case therefore depends on the construction of the enabling provision. The Claimants referred to Section 16 FSA which permits the Defendant to make provisions “by regulations [emphasis added]” to suggest that the reliance on the NPTG (which is not contained within the Regulations directly) was ultra vires. The court rejected the notion that this formulation created a requirement for the whole provision to be contained in one document and suggested that “it would be surprising if the position were otherwise” given the detailed scientific analysis which, though important, need not be spelt out in the statutory instrument.

It is worth noting here that the court also reiterated that the incorporated document must be in existence at the time the statutory instrument is laid before Parliament, and that “the effect of it becoming law is that it cannot then be changed without following whatever legislative process is required to amend or replace the statutory instrument itself”.

Ground 3A

Grounds 3A and 3B both centred on what the Claimants refer to as “the milk issue“. The Claimants argued that the Defendant was irrational in failing to conduct an assessment of the appropriateness of determining the nutritional profile of breakfast cereals without taking into account the fact that they are normally consumed with milk. Had the nutritional value of the milk been considered alongside that of the cereal, fewer products would have become subject to the restrictions imposed by the Regulations.

The court accepted that the Defendant had not been asked in any Ministerial submission to reassess the issues ventilated in formulating the existing NPM nor the process by which they were decided and the question therefore was whether the Defendant was bound to consider these matters or make further inquiries into them (as per the Tameside principle). The court concluded he was not, reasoning that it was open to him to make further inquiries as necessary (indeed he did so) and ultimately he “evidently considered that he was sufficiently well informed“.

Furthermore, the court highlighted that the relevant matters had been carefully considered in the course of the development and review of the NPM by various experts over a period of years. There had then been ample opportunity to raise the point again in a 2019 public consultation, in response to which the Claimants did not raise these issues. The court held that, “the approach stated in the NPM had been applied for more than a decade without controversy” and simply because the Claimants sought to re-open decisions taken more than a decade earlier and re-taken in 2021 “at the eleventh hour” did not render those decisions irrational or mean it would be irrational for the Defendant to proceed without making further inquiries.

Ground 3B

The court acknowledged that there was no dispute that A1P1 was engaged and that the question was therefore whether the Defendant could justify the relevant infringements, with the dispute between the parties focusing on proportionality. The court noted that although the Defendant did not personally consider the issues now raised by the Claimants under Grounds 3A and 3B, these issues were considered at length and in detail by various experts and expert bodies, including state bodies, in the period 2004-2009. The court found that the Defendant was clearly aware of the relevant considerations, and that he “evidently considered that the public interest and considerations of public health outweighed the detrimental impact on business of the measures“.

The court went on to conduct a broad analysis in which it noted that “the addition of milk does not alter the nutritional profile of the products themselves” and that the move to an “as consumed” approach would reduce the effectiveness of the NPM by introducing multiple points of uncertainty in the assessment.

The court concluded that the Defendant’s approach was both proportionate and rational.

Comment

In this judgment the court took a robust approach to the various grounds of challenge brought by the Claimants, which is to be expected in an area of social policy such as health. In relation to Ground 3 in particular, the court emphasised that “[t]his is a case in which a significant degree of deference should be accorded to the decision marker(s)“. Despite this deferential approach the courts conducted an analysis of the practical implications of the “milk issue” from various perspectives, but the court was ultimately dismissive of the notion that the NPM as currently applied would cause unfairness to the Claimants or arbitrariness in the effects on their business.

The court’s comments in relation to ground 3A demonstrate the importance of engaging early in the regulatory process and raising key legal arguments before the decision maker takes a final decision. A failure to do so is likely to weaken the ability to challenge the final decision.

Andrew Lidbetter
Andrew Lidbetter
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Nusrat Zar
Nusrat Zar
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Jasveer Randhawa
Jasveer Randhawa
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Court finds unlawfulness in relation to Government’s Net Zero Strategy

July 27, 2022

In R (Friends of the Earth Ltd and ors) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin), the High Court partially upheld a challenge to the Government’s Net Zero Strategy (the “NZS“) under the Climate Change Act 2008 (the “2008 Act“).

Key Points

  • It is not incumbent on the Secretary of State to rely on quantitative analysis alone on climate change issues where this is not mandated by the legislation.
  • It is, however, necessary that sufficient information is provided to the relevant minister and to Parliament in order to fulfil obligations under the 2008 Act.
  • Section 3(1) of the Human Rights Act 1998 (the “HRA“) does not permit the court to interpret legislation in a way that confers greater rights protection where there is no question regarding the incompatibility of the legislation with a Convention right on an ordinary interpretation of the provision.

Background

The 2008 Act was amended in response to the UK’s obligations under the Paris Agreement, which required member states to hold the increase in the global average temperatures. Section 1 of the 2008 Act requires the Secretary of State to ensure that the net UK carbon account for 2050 meets certain benchmarks. The Secretary of Secretary is also required by statute to create carbon budgets for future periods to meet these benchmarks.

Section 13 requires the Secretary of State to prepare “such proposals and policies” as he considers will enable the carbon budgets which have been set to be met. Section 14 requires that “as soon as is reasonably practicable” after setting a carbon budget, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting the budgetary periods.

Following the setting of Carbon Budget 6, the defendant Secretary of State laid the NZS before Parliament pursuant to sections 13 and 14. The Good Law Project, Friends of the Earth Ltd, and ClientEarth (the “Claimants“) sought to challenge this by judicial review on several grounds:

  • Ground 1(1): The Defendant erred in law on the basis that he was not entitled to conclude that the proposals and policies in the NZS (prepared under section 13) would enable the carbon budgets to be met.
  • Ground 1(2): The briefing material supplied to the Defendant was insufficient, meaning that he had failed to take into account relevant considerations.
  • Ground 2: The Defendant failed to include information legally required to discharge his section 14 obligations, namely an explanation for how the NZS will enable the carbon budgets to be met, an estimate of the contribution of each proposal and policy for reducing emissions, and the time scales over which the proposals will have effect.
  • Ground 3: Section 3(1) of the HRA has the effect that sections 13 and 14 should be interpreted as the Claimants contend, and not as the Defendant contends which would risk contravention of Convention rights.

Despite these issues, the Claimants acknowledged the positive value of much of the NZS. Consequently, the Claimants sought declaratory relief rather than quashing of the NZS.

Judgment

Ground 1(1)

The Claimants contended that the Defendant’s duty under section 13 required that he make an assessment of the time scales within which the measures would take effect and their impact on reducing emissions. Such an assessment required numerical predictions of the contribution which the proposals and policies would make to meeting the carbon budgets. The Claimants contended that although the Defendant was allowed to make a qualitative judgment as to whether the measures would be sufficient to meet the carbon budget, the Defendant was not allowed to use a qualitative judgment to overcome a shortfall presented by quantitative analysis.

The court disagreed with this analysis. There was nothing in the statutory scheme requiring this quantitative approach, which would have been a significant constraint on the Defendant’s ability to judge how to discharge his duty. Section 13 necessarily involves making predictive assessments into the future, which inevitably introduces uncertainty and subjective judgment. The Defendant is accountable to Parliament for his proposals and policies under section 13: he will have to answer Parliamentary questions and appear before Parliamentary Committees. This is the mechanism by which the merits, realism and efficacy of the Defendant’s policies should be challenged. Although the fact that the Defendant is subject to parliamentary scrutiny does not preclude the court’s involvement (there is no indication that the functions under section 13 are not justiciable), the obligation in section 13 does not have to be satisfied by quantitative analysis alone – it is simply a relevant consideration that should inform his decision.

On that basis this ground was dismissed.

Ground 1(2)

The question here was whether the legal information provided was sufficient to make a proper decision. The Claimants contended that the relevant omissions were:

  • (a) Lack of an assessment of the time scales over which the proposals and policies were expected to take effect;
  • (b) Failure to identify under the quantitative analysis the contribution that each proposal or policy would make to meeting the carbon budgets; and
  • (c) Failure to identify under the qualitative analysis which proposals and policies would meet the carbon budget.

The court held that only if the briefing omitted something which the Defendant (or a relevant minister) was legally obliged to take into account, and which was not insignificant, will he have failed to take into account a material consideration. The test is whether the legislation mandated, expressly or by implication, that the consideration be taken into account or whether it was so “obviously material” that a failure to take it into account was irrational.

With regards to omissions (b) and (c), it was clear that the quantification of the effect of individual policies was obviously a material consideration on which information had to be provided to the minister in order that he could discharge his section 13 functions and make a rational decision. There was no dispute that these matters were not addressed in the briefing. Regarding omission (a), the court accepted that it was a matter of judgment as to how much detail should be included in the ministerial submission regarding the assessment of time scales.

Therefore, the court upheld the challenge in relation to omissions (b) and (c) only.

Ground 2

The court held that the Defendant was required to provide greater detail in its report to Parliament than merely publishing “the proposals and policies” suggested without any further information. This turned on the meaning of section 14 and what the phrase a “report setting out proposal and policies” meant. It was clear from the statutory context and the explanatory notes to the 2008 Act that this included explanation about how the government intended to meet its obligations under the Act. Moreover, although the legislation did not require detailed workings or modelling to be provided to Parliament, a quantitative analysis would be necessary for these purposes.

The court was conscious of the need to respect the constitutional separation of functions in a situation where the Executive provides a report to Parliament. Parliament is well able to call for more information to be provided where it wishes to do so. Therefore, the court should tread carefully in this area. However, it remains the role of the court to interpret the legislation and resolve legitimate disputes on the scope of the obligations that legislation imposes.

The NZS did not go below national and sector levels to look at the contributions to emissions reductions made by individual policies (or by interacting policies) where assessed as being quantifiable, which it ought to have done in order to comply with the language and statutory purposes of s.14. However, on the facts, the NZS did address the issue of time scales.

Consequently, the court again upheld the challenge in part.

Ground 3

The Claimants argument proceeded along the lines that the UK has obligations under Articles 2, 8, and A1P1 of the European Convention on Human Rights to take effective action against climate change because this represents a real and “imminent threat” to “life, quality of life and to property”. Therefore, the effect of section 3(1) of the HRA is to require sections 13 and 14 to be interpreted as the Claimants contend: Parliament should be assumed to have intended those provisions to be conducive to more, rather than less, rights protection. The Claimants made this argument despite not being aware of any authority in which a court has stated that this is a permissible application of section 3(1) of the HRA.

The court rejected this argument as not according with established principle. Section 3(1) only applies if the ordinary interpretation of a provision is incompatible with a Convention Right. This is not the same as saying that section 3 allowed courts to adopt interpretations that would ensure greater rights protection when an issue of incompatibility does not arise. In any case, the Claimants’ submission would go beyond the permissible incremental development of clear and constant Strasbourg case law.

Comment

This judgment is notable as it demonstrates that courts are not afraid to conduct a detailed review of the actions of the Government in fulfilling their obligations under climate change legislation. Interestingly, Mr Justice Holgate started his judgment by emphasising that climate change is a global problem. The Claimants succeeded in two significant respects: the court held that the information provided to the relevant minister and the report laid before Parliament were both legally inadequate.

It is important to note, however, that the court was at pains to emphasise that the challenge was still directed at the legal sufficiency of the Secretary of State’s actions and a rationality challenge must not be used as a cloak for a challenge the merits or demerits of policies. The primary mechanism of accountability of the Executive is Parliament, but this does not prevent the courts from intervening in circumstances where the Government acts unlawfully, even on issues of policy.

The judgment can be contrasted with that of R (on the application of Friends of the Earth Limited) v Secretary of State for International Trade/Export Credits Guarantee Department [2022] EWHC 568 (Admin), where the court refused to quash a decision to provide export finance in support of a natural gas project (see our blog post on this case here). There the Claimants unsuccessfully sought to use international legal instruments to challenge the decision on climate change grounds. Read alongside each other, these two cases confirm that while “high-level” and “aspirational” international instruments may not create specific duties in national law, domestic legislation read in its proper context may well do so and is a much stronger basis for holding the Government to account in terms of its actions on climate change.

Andrew Lidbetter
Andrew Lidbetter
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Nusrat Zar
Nusrat Zar
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Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998

Constitutional All Change? The Judicial Review and Courts Act, the Brexit Freedoms Bill and a new Bill of Rights

May 17, 2022

Recent weeks have seen a number of notable developments concerning new or proposed legislation which could have a wide-ranging impact on aspects of public and administrative law. In particular:

  • The Judicial Review and Courts Act 2022 has recently received Royal Assent and introduces, amongst other things, changes to remedies in judicial review.
  • The Queen’s Speech, delivered on 11 May 2022, revealed the Government’s legislative agenda for the Parliamentary year ahead, including the introduction of a Bill of Rights and a Brexit Freedoms Bill which could impact claims based on human rights and retained EU law respectively, going forward.

The Judicial Review and Courts Act 2022 (the “JRCA“)

On 28 April 2022, the JRCA received Royal Assent (though the relevant provisions discussed below have not yet come into force). The JRCA will introduce a number of changes to judicial review, which we detail further below. You can also listen to our views on the draft bill here.

(i) Quashing orders

Section 1 of the JRCA amends the Senior Courts Act 1981 to provide for two new types of quashing order, which can be made with or without conditions:

  • A suspended quashing order (“SQO“) which may provide that quashing does not take effect until a date specified in the order. The impugned decision or act will be valid until that date. The purpose of having a period of suspension would be to retain some certainty in a period where the original decision is valid, whilst allowing the public body time to re-evaluate its decision before the date of suspension.
  • A prospective quashing order (“PQO“) which may remove or limit any retrospective effect of the quashing. The effect of a PQO would be that only future acts or decisions would be affected.

In deciding whether to make an SQO or PQO, the court must take into account factors such as:

  • The nature and circumstances of the relevant defect;
  • Any resulting detriment to good administration;
  • The interests or expectations of persons who would benefit from the quashing;
  • The interests or expectations of persons who have relied on the impugned act; and
  • Any other matter that appears relevant to the court.

Notably, the Government accepted the House of Lords’ proposal to remove the presumption that either an SQO or PQO should be granted where this offered adequate redress, unless there was a good reason not to do so. We welcome this amendment as it gives the courts greater discretion as to the use of these new remedies.

(ii) Exclusion of review of an Upper Tribunal decision to refuse permission to appeal a First-tier Tribunal decision.

Section 2 of the JRCA 2022 amends the Tribunals, Courts and Enforcement Act 2007 by providing that where the Upper Tribunal refuses permission to appeal a decision of the First-tier Tribunal, that decision is described as “final and not liable to be questioned or set aside in any other court” (subject to certain limited exceptions). This is a legislative attempt to ensure that such a decision should not be amenable to judicial review. The purpose of this was to partially reverse the decision in R (Cart) v Upper Tribunal [2011] UKSC 28.

The Queen’s Speech

The Queen’s Speech, along with its accompanying Background Briefing Notes, provided some detail on legislative developments which may have an effect on the nature and/or scope of public law claims going forward.

(i) A new Bill of Rights

The Government announced its intention to introduce a Bill of Rights which is likely to impact the approach to human rights claims in the UK going forward. This announcement is a further step pursuant to the Government’s intention to “restore the balance of power between the legislature and the courts” through the proposed Bill of Rights.

According the Background Briefing Notes, the main elements of the Bill are:

  • “Establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court.
  • Ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning and constraining the ability of the UK courts to impose ‘positive obligations’ on our public services without proper democratic oversight by restricting the scope for judicial legislation.
  • Guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims. The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant.
  • Recognising that responsibilities exist alongside rights by changing the way that damages can be awarded in human rights claims, for example by ensuring that the courts consider the behaviour of the claimant when considering making an award.”

As outlined in our previous blog post here, this development was foreshadowed in the Government’s consultation to overhaul the existing human rights regime in the UK by replacing the Human Rights Act 1998 with a new Bill of Rights (the “HRA Consultation“). HSF’s views on the HRA Consultation were discussed here and in March we published HSF’s response to the consultation.

Proposals envisaged in the HRA Consultation included providing guidance to the courts on how to apply the principle of proportionality and requiring a ‘permission stage’ for human rights claims in order to ‘weed out frivolous or unmeritorious claims’. However, the extent to which the specific proposals in the HRA Consultation will be carried forward in the draft wording of the Bill of Rights remains to be seen. It is therefore unclear what precise impact any new Bill of Rights will have on the scope of and approach to human rights claims, but it is possible that the impact could be significant.

(ii) The Brexit Freedoms Bill

Following the UK’s departure from the EU, the Government has also announced an intention to introduce a Brexit Freedoms Bill. This has the potential to enable further divergence from EU law going forward. The stated purpose of the Bill is to “end the supremacy of European law and seize the benefits of Brexit“. The main elements of the Bill are stated to be:

  • “Creating new powers to strengthen the ability to amend, repeal or replace the large amounts of retained EU law by reducing the need to always use primary legislation to do so.
  • Removing the supremacy of retained EU law as it still applies in the UK.
  • Clarifying the status of retained EU law in UK domestic law to reflect the fact that much of it became law without going through full democratic scrutiny in the UK Parliament.”

The focus on the Bill therefore appears to be on EU retained law (i.e. some EU law measures which were effectively transferred into domestic law and ‘retained’ as UK law following the end of the Brexit transition period). This approach was taken in relation to a significant volume of EU legislation and according to the Queen’s Speech briefing paper, “the Government’s review of retained EU law has, to date, identified over 1,400 pieces of EU-derived law that have been transferred into UK law.”

The proposals for the Brexit Freedoms Bill could have an impact on public law claims founded upon EU retained law going forward. For example, currently, a piece of retained EU law in our domestic legislation may be similar (if not the same) in substance to the original EU law measure on which it was based. This means that post-Brexit, any claim based on that piece of retained EU law may be similar in substance to a claim that would have been based on the original EU law measure before Brexit. However, the Brexit Freedoms Bill appears to envisage facilitating amendments / replacements of retained EU law. This could create potential for greater (and possibly more accelerated) divergence of our domestic law from EU law measures.

Conclusion

Each of the developments discussed above has the potential for far-reaching implications. Taken together they give a strong indication of the Government’s wish for Parliament and the Executive to “take back control”, whether that be by moving away from EU law or the influence of the European Court of Human Rights, or encouraging the courts in judicial review cases to consider allowing unlawful acts to remain valid at least for some period of time.  It is also interesting to see a further attempt to use an ouster clause. It remains to be seen how the courts will interpret and apply these new provisions once they are included in legislation and come into force.

Andrew Lidbetter
Andrew Lidbetter
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Nusrat Zar
Nusrat Zar
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+44 20 7466 2465

Jasveer Randhawa
Jasveer Randhawa
Of Counsel
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Hannah Lau
Hannah Lau
Associate
+44 20 7466 2314

Court finds Government’s Covid policy in care homes unlawful

May 4, 2022

In R (Gardner and Harris) v Secretary of State for Health and Social Care and others [2022] EWHC 967 (Admin) the Divisional Court has found that arrangements by the Department of Health for discharging patients from hospitals to care homes during the pandemic were unlawful.

Key points

  • Article 2 of the European Convention on Human Rights (ECHR) (the right to life) contains both a ‘systems duty’ and an ‘operational duty’. The systems duty requires the state to put in place a legislative and administrative framework designed to protect against risks to life, whilst the operational duty requires the state to take practical steps to safeguard people’s right to life from specific dangers where there is a link to the state’s responsibility.
  • A real and immediate risk to life is a necessary but not sufficient factor for the existence of an Article 2 operational duty. The duty may exist even in the absence of an assumption by the state of responsibility, where it has become aware of dangerous situations involving a specific threat to life. In appropriate circumstances the operational duty may also arise where the state engages in activities which it knows or should know pose a real and immediate risk to the life of a vulnerable individual or group of individuals.
  • The implementation of protective measures in relation to care homes during the pandemic did not trigger state responsibility under Article 2 or Article 8 (the right to respect for private and family life) of the ECHR.
  • In considering whether the decisions made and the policies promulgated by a public body are unlawful by the standards of public law, the Court has to consider the facts as they were presented at the time to the decision makers. The Court must ask whether the decisions taken fell outside the range of reasonable decisions properly open to the Government in the light of the knowledge then available and the circumstances then existing.

Background

The daughters of two care home residents who, along with 20,000 others, died of COVID-19 in a care home in England in April and May 2020 (the Claimants) brought a claim for judicial review against the Secretary of State for Health and Social Care (SoS), NHS England (NHSE) and Public Health England (PHE) (the Defendants) in relation to four policies issued between 13 March and 15 April 2020.

Judicial review was sought on three grounds:

  • Breaches of the Claimants’ fathers’ rights under Article 2 and Article 8 of the ECHR (the ECHR claims).
  • Unlawfulness, on the basis of failure to take into account relevant considerations, failure to conduct a sufficient enquiry, taking into account irrelevant considerations, irrationality and breach of the duty of transparency (the public law claims).
  • Breaches of the public sector equality duty under section 149 of the Equality Act 2010, which imposes an obligation to have regard to the need to advance equality of opportunities and to eliminate discrimination (the PSED claim).

The four policies under challenge included the March Discharge Policy, which comprised two policies dated 17 and 19 March 2020 relating to arrangements for discharging patients from hospitals to care homes without testing and isolation, and the April Admissions Guidance dated 2 April 2020, which advised that symptomatic or asymptomatic COVID-19 patients could be safely cared for in a care home.

Judgment

Unanimous judgment was given by two judges (Bean LJ and Garnham J) sitting as a Divisional Court.

ECHR claims

The Claimants submitted that the Defendants had a positive obligation to take appropriate steps to safeguard the lives of those within England and do all that could have been required to prevent life from being avoidably put at risk. They alleged that both the ‘systems duty’ and ‘operational duty’ applied and were breached by the Defendants during the first wave of the pandemic. The systems duty required the Defendants to put in place a legislative and administrative framework designed to protect against risks to life, whilst the operational duty required the state to take practical steps to safeguard people’s right to life from specific dangers in circumstances where there was a link to the state’s responsibility.

The Court rejected the ECHR claims in their entirety. In relation to the systems duty, the Court dispensed with the Claimants’ arguments that the Defendants breached their duty to put in place a legislative and administrative framework; on the contrary, the complaint concerned the contents of the policies implemented.

In relation to the operational duty, the Court concluded that any acceptance of the argument that protective measures relating to private sector care homes involved a sufficient connection or link with the state would significantly widen the scope of the Article 2 operational duty owed to potentially very large numbers of elderly people. Strasbourg authority did not support the extension of the duty to “as broad and undefined a sector of the population as residents of care homes for the elderly” and the Court doubted that the European Court of Human Rights would be willing to declare such a duty.

Public law claims

The Court held that the decision to issue the March Discharge Policy and the April Admissions Guidance was irrational in that the Policy and the Guidance failed to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should so far as practicable be kept apart from other residents for 14 days.

The public law claims against NHSE were dismissed on the basis that it was not responsible for making such arrangements.

Public sector equality duty

The PSED claim was dismissed on the basis that in the “highly pressured” circumstances of March and April 2020, the Government could not be reasonably criticised for failing to carry out an equalities impact assessment of its policies relating to care homes, nor did the PSED add anything to the Defendants’ duties under common law.

Comment

The Court’s judgment is a noteworthy development in the growing body of litigation regarding Government decision making during the pandemic. In considering the claim the Divisional Court recognised that the Defendants had to make judgments in circumstances of enormous pressure, in respect of a novel disease against a background of uncertain and rapidly developing scientific knowledge. The case however turned on a clear-cut failure to take into account highly relevant considerations regarding the risks of non-symptomatic transmission of COVID-19, which by mid-March 2020 had been acknowledged by the Government in Parliament and in the media.

A further point of interest is the Court’s approach to deficiencies in the witness evidence presented by the SoS, with the Court declining to resolve disputes of fact in favour of the Defendants. It held that “where there is no record at all of an important issue being raised with the Secretary of State nor of his response we cannot simply assume that everything relevant was taken into consideration“. Even in the exceptional circumstances of a pandemic, maintaining a thorough paper trail of decision-making remains critical for the purposes of defending a judicial review.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998

Decision makers have significant discretion in climate change issues

April 13, 2022

In R (on the application of Friends of the Earth Limited) v Secretary of State for International Trade/Export Credits Guarantee Department [2022] EWHC 568 (Admin), the court refused to quash a decision to provide export finance in support of a natural gas project in Mozambique.

Key points

  • The nature and scope of the enquiry that a decision-maker is required to undertake depends on the nature of the decision which is to be made. For complex political decisions, the decision-maker should be afforded a wide margin of appreciation.
  • Courts should be wary of reaching “hard-edged” interpretations of international treaties. It is sufficient in most cases that the decision-maker’s interpretation of the treaty was “tenable”.
  • Where the language of a treaty is high-level and aspirational, this supports a less strict approach to interpretation.

Background

Friends of the Earth (“FoE“) sought judicial review of the decision of the first defendant, the Secretary of State, to provide export finance in support of a natural gas project (the “Project“) in Mozambique. The decision was initiated by United Kingdom Export Finance (“UKEF“), in exercise of delegated powers. UKEF aims to ensure that no viable UK export fails for lack of finance and broadly operates like a financial institution in support of UK exports and investments.

FoE sought to quash the decision on two bases. Firstly, FoE contended that the decision was based on an error of law or fact, namely that funding the Project was compatible with the United Kingdom’s commitments under the Paris Climate Change Agreement (the “Paris Agreement“) and/or assisted Mozambique to achieve its commitments under the Paris Agreement (Ground 1(a)). Secondly, the UKEF’s decision was unlawful in that it was reached without regard to relevant considerations in reaching the view that funding the Project aligned with the UK and Mozambique’s obligations under the Paris Agreement (Ground 1(b)).

Judgment

The case was heard by two judges sitting as a Divisional Court. Both judges emphasised that they were not concerned with the merits of the decision.

Stuart-Smith LJ gave the leading judgment and recognised the duty emerging from Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 All ER 665, which requires public bodies to undertake a sufficient inquiry prior to making a decision. However, the question of what should be taken into account and what enquiries should be made is a matter for the decision maker and is highly context specific. The intensity of review and the scope of any margin of appreciation varies depending on whether the decision involves political calculations: R (Spurrier) v Transport Secretary [2019] EWHC 1070 (Admin), [141] ff.

On the facts, he noted that UKEF’s decision depended partly on an assessment of climate change effects of a long-term project. This was a complex, policy-laden, and necessarily predictive exercise. It was also relevant that there was no established or internationally recognised methodology for such an exercise. Whether FoE were challenging the rationality of the decision itself or whether the decision should have been made at all (given UKEF’s lack of expertise on climate change), UKEF should be afforded a wide margin of appreciation.

Turning to the Paris Agreement, there was no rule that the court should never determine a question of interpretation in relation to unincorporated international treaties. However, in cases involving broad political or aspirational statements of principle, courts should not attempt to reach “hard-edged” interpretations on provisions. Rather they should restrict themselves to applying a test of “tenability”. This was not a case where the court were bound to provide a strict interpretation of the treaty. Given the high-level and aspirational language of the Paris Agreement, Stuart-Smith LJ considered that an overly strict interpretative approach would in fact be inappropriate.

The thrust of the claimant’s arguments on both Grounds 1(a) and (1b) was that the Defendant failed to have proper regard to the climate impacts of the Project. However, the decision would have no impact on climate change impacts because the development would go ahead in any case. The decision was not “about” emissions. The scope of the Tameside duty is consequently framed by the fact that the decision concerned only whether to provide finance. This involved consideration of multifarious economic, political, and scientific factors. Since a high degree of policy judgment was involved, it was appropriate for the decision-maker to adopt a less rigorously technical approach to climate change analysis than if that had been the only material factor.

On the facts, even though the UKEF did not undertake a full-blown environmental assessment, climate change impacts and considerations of the Paris Agreement were accepted as relevant considerations alongside other factors and they took steps to inform themselves about impacts by sourcing assistance from outside bodies. On the analysis that they had undertaken, it was already clear that emissions resulting from the Project would be significant. UKEF, in the exercise of its judgment, decided to proceed anyway. According to Stuart-Smith LJ, it was therefore difficult to see how more rigorous analysis would have had an impact on the outcome of the decision.

Moreover, regarding ground 1(b), the language of the Paris Agreement was too opaque and high-level to generate hard-edged legal obligations. For example, the claimants contended that the phrase “a pathway towards low greenhouse gas emissions” required states to keep the global increase in temperature below 1.5 degrees Celsius. Given that the world is so far off this target, this was said to be an unrealistic interpretation. Instead the Paris Agreement should be approached as a composite package of aims and aspirations. On that basis the UKEF’s interpretation of their obligations under the Paris Agreement was in fact tenable: it was based on the judgement that the Project would foster climate resilience in Mozambique and increase Mozambique’s ability to adapt to adverse impacts of climate change.

Dissenting judgment

Thornton J disagreed, concluding that UKEF had filed to discharge its duty of inquiry because there was not a sufficiently detailed review of emissions. This, combined with other flaws in the climate assessment, led her to conclude that there was no rational basis on which to demonstrate that the funding for the Project was consistent with the Paris Agreement. UKEF had concluded that climate risk was a material consideration. However the analysis that was then carried out was incomplete. Whilst she accepted that it would have been a complex predictive exercise, and whilst acknowledging the need to accord considerable respect to UKEF’s decision making, Thornton J considered that emissions should and could have been properly calculated. The flaws in the analysis meant that, in her view, ministers did not have a legally adequate understanding of the scale of the emissions impact from the Project.

Comment

The Divisional Court’s decision demonstrates that a significant margin of appreciation will be given to public bodies where the decision that they have to undertake is complex and multifaceted, and particularly where it requires the exercise of political judgment. Moreover, this case is a reminder that it may be difficult for claimants to challenge the decisions of public bodies based on compatibility with international law, especially where that law is contained in language that is expressed at a high level of generality. Despite the greater focus on climate change issues recently the courts remain willing to give decision-makers a degree of leeway in these circumstances. However the fact that the two judges disagreed in this situation is interesting and demonstrates that there may be room for greater scrutiny from the courts on climate change issues going forward.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998