Paris, Policy, and Public Interest

The Court of Appeal’s decision in the recent Plan B case is significant, but perhaps not for the reasons it appears to be. Here, we focus on two aspects of the case which, while important, have largely been overlooked. The first is the court’s understanding of ‘policy’ and statutory entrenchment within the context of section 5(8) of the Planning Act 2008, while the second is its reasoning regarding section 31(2B) of the Senior Courts Act 1981 (‘SCA 1981’), which concerns the practical effect of administrative error.

Statutory Considerations

Most of the factual issues relevant to the decision have been discussed on this forum before. Simply put, the key issue for the Court of Appeal was whether section 5(8) of the Planning Act 2008 had been breached by the Secretary of State’s deliberate decision not to take into account the United Kingdom’s commitments under the Paris Agreement when deciding on the construction of a third runway at Heathrow Airport. This turned on whether the UK’s commitments under the Paris Agreement amounted to ‘government policy relating to the mitigation of climate change’ within the meaning of section 5(8). 

The Court of Appeal overruled the Divisional Court on this point. The disagreement lies in their interpretation of the Climate Change Act 2008 (‘CCA 2008’). The Act imposes a statutory duty on the Secretary of State to ensure that the UK lowers its total carbon emissions output to satisfy certain targets. The Divisional Court understood this carbon emissions target as an ‘entrenched policy’, which could not be subject to deviation on the basis of executive action (that is, the ratification of the international Paris Agreement). As such, the CCA 2008 subsumed other policy commitments by the Government due to the primacy of domestic law.

However, as the Court of Appeal noted, this reasoning is flawed. The CCA 2008 was not meant to limit the Government’s action on climate change, but to set a certain minimum standard. As such, it was a floor rather than a ceiling. Thus, taking the Paris Agreement into account does not conflict with the CCA 2008.

The Court of Appeal, importantly, went further and found the existence of a government policy in support of the Paris Agreement. To come to this conclusion, the Court of Appeal pointed to a number of statements made by various ministers where they expressed their support for and dedication to the United Kingdom’s non-binding commitments under the Paris Agreement. This led the Court of Appeal to hold that the Government erred in law by failing to consider their policy regarding the Paris Agreement, which amounted to a failure to fulfill their section 5(8) duty.

There are two important limitations to the Court of Appeal’s judgment. First, the Court of Appeal considered the Government’s commitment to the treaty as constituting ‘policy’, rather than the treaty itself – meaning concerns about the domestication of international law are somewhat overstated. Second, the PA 2008 only obliges the Secretary to take Government policy into account as a relevant consideration. Thus, it does not impose any substantive restrictions on what the Government might ultimately decide.

We suggest that the Court of Appeal was wrong to reverse the Divisional Court’s decision. The latter reached the right result, but for the wrong reasons.

The Divisional Court erroneously understood the CCA 2008 as creating a non-derogable ceiling for the Government. However, it was right to understand the CCA 2008 as a comprehensive framework upon which future state action could be directed. The CCA 2008 enacts a statutory regime which presents a coherent, unified, and broadly applicable strategy with which to combat climate change.

By enacting such a comprehensive framework, the CCA 2008 is a powerful expression of legal policy, intended to guide all future developments in the Government’s climate strategy. This makes it difficult to sharply distinguish between parliamentary and governmental policy. Any action taken by the Government must be understood in light of the CCA 2008.

Importantly, the CCA 2008 imposes a clear requirement: a reduction of carbon emissions by 80% by 2050, when compared to 1990 levels (it has since been increased by Statutory Instrument to 100%). However, this requirement, like all future-looking carbon targets, is difficult to apply in practice. First, it is difficult to project how a current project might affect carbon levels in the future. Second, such a generalised state-wide target offers little guidance on how much each sector, such as agriculture or travel, might reasonably be expected to contribute to the target.

A change in policy, which goes beyond the comprehensive scheme within the CCA 2008, will exacerbate these difficulties. Thus, while the CCA 2008 does not impose a non-derogable ceiling, it does in an important sense ‘entrench’ the legal position. In the face of a comprehensive statutory scheme within a given policy area, the courts should be slow to recognise the existence of an independent government policy.

This is where the Court of Appeal went wrong. The Government, at various points, expressed support for the Paris Agreement. But these statements have consistently been pitched at a high level of generality. There is a good reason for this: while the Government’s support for the Paris Agreement is clear, the practical effect of how this support is to influence future policy is not.

As such, the Government took some time before taking action to amend the CCA target in light of the Paris Agreement. Indeed, such difficulties convinced the Committee on Climate Change, in 2016, to recommend that the UK hold off on any change to the CCA. In line with this, the Government waited until 26 June 2019 to amend the target.

Given the uncertainty which afflicts this area and the presence of an entrenched statutory framework, we argue the Government’s support for the Paris Agreement cannot constitute ‘government policy’ within the meaning of section 5(8). To be clear, we recognise that ‘policy’, in the ordinary meaning of the word, is broader than ‘law’ or ‘binding obligation’. But the meaning of policy is not so broad as to encompass mere temperament or preference.

Our argument is buttressed by the statutory text. Section 5(8) requires the government to supply an explanation as to how the National Policy Statement takes account of climate change policy. Underlying this requirement is an expectation that the policy provides reasons for the Government to consider while crafting the National Policy Statement.

What, then, is sufficient to constitute governmental policy? In our view, it must be a rule, although it need not be binding or have the status of law. It must be sufficiently clear to enable government officials to intelligibly take an internal perspective towards the rule. It must, in other words, be capable of supplying sufficiently clear reasons which can, in turn, guide future conduct.

One might ask how the Government might adopt a policy rule if not through law. But it happens all the time. It is common practice for the Government to issue non-legal rules which are understood as authoritative standards by which to evaluate or criticise behaviour. For example, in British Oxygen v Minister of Technology [1971] AC 610, a policy of denying grants to items costing under £25 was understood by the House of Lords as a norm upon which the decision-making process was founded, with exceptions made only in unusual cases.

By imposing a legal duty to consider government policy, section 5(8) attaches legal consequences to the creation of these non-legal rules. This is a familiar idea in English law. For example, in Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12, the Supreme Court imposed a legal obligation on the Home Department to publish its internal detention policies.

However, the Government’s support for the Paris Agreement, without more, fails to constitute policy. The relevant portions of the Paris Agreement establish an indefinite temperature target. Specifically, the Paris Agreement sets a target of well below 2 ̊ C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 ̊ C.

Again, in our view, a policy must be sufficiently clear to supply an authoritative standard by which to guide action. A general statement of support for the Paris Agreement’s indefinite temperature target falls below this bar. It is better described as an inchoate policy – a statement which, while pointing in the general direction of future policy, has yet to crystallise into a rule.

Harmless Administrative Errors

It might be suggested that the court’s decision causes little by way of intrusion – that in all probability, the same decision regarding the runway would be open to the Secretary of State. This potential lack of impact brings Section 31(2A) of the SCA 1981 into play: that the court ‘must refuse to grant relief’ ‘if it appears...highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. However, the court reasonably noted that the facts of Plan B did not meet this standard. That is, there was a non-negligible chance that taking into account the Paris Agreement would have led to a different decision by the Government.

This conclusion is likely correct, given the differences between the CCA 2008 and the Paris Agreement. However, the Court of Appeal added in its dictum that even if this was the case, it would be justified to grant relief due to Section 31(2B) of the SCA 1981: the ‘court may disregard the requirements of subsection (2A)(a)...if it considers that it is appropriate to do so for reasons of exceptional public interest’. The court demonstrated this ‘exceptional public interest’ by reference to the size of the infrastructure project and the centrality of the issue of climate change – essentially, by reference to the public interest with respect to the decision to build the runway.

This reasoning is circular and defeats the purpose of subsection (2B). The provision operates only when the elements of subsection (2A) are applicable. In other words, it requires that the decision of the public body is one which it would have made even if the ‘conduct complained of’ – that is, the aspect of the decision which renders it illegal – had not taken place. It is thus strange to discuss the ‘public interest’ attached to the decision, since the decision in all probability would be the same notwithstanding the error.

The correct question for the Court of Appeal with respect to subsection (2B) is whether there exists some inherent public interest in correcting the legal error in question. As it applies to this case, the court should have asked whether the exceptional public interest requires the Secretary of State to consider the Paris Agreement apart from its impact on the final decision vis-a-vis the runway.

This interpretation is borne out by the judgment in R (Hawke) v Secretary of State for Justice [2015] EWHC 3599. The case concerned the disabled wife of a convicted prisoner, challenging the Minister’s decision to detain her husband further from her home than he had to. Holman J held that there had been a breach of section 149 of the Equality Act 2010, as the Secretary of State had not had ‘due regard to the need to reduce discrimination’. However, he then noted it was highly likely that an adequate consideration of the claimant’s disability would have resulted in the same prison being chosen, bringing subsection (2A) into play. Accordingly, he then considered the effect of subsection (2B). Importantly, Holman J did not consider the ‘public interest’ attached to the Secretary of State choosing to put the claimant’s husband in a different prison, a form of reasoning that would resemble the decision in Plan B. Instead, he considered the ‘importance of the statutory public sector equality duty’ – that is, the public interest in correcting the illegality.

This was, of course, a minute aspect of the decision in Plan B and formed no part of its overall ratio. Having said that, subsections (2A) and (2B) are very recent amendments to the SCA – added only in 2015 – and it is essential for these early cases to appropriately interpret these provisions. This is particularly vital as Plan B is the first time the public interest exception has been discussed by the Court of Appeal. Thus, the court’s approach to the matter is somewhat disappointing, and warrants clarification in future case law on the subject.