Net Zero: the Good Law Project continue to turn up the heat on the government

The Good Law Project (“GLP”) continues to challenge the actions of the Government with another successful case in the High Court last week, writes Juli Lau.

This time, following a judicial review application by GLP, working alongside Friends of the Earth and Client Earth, the High Court held that the Net Zero Strategy (“NZS”) approved by the Secretary of State in October 2021 was too vague to enable him to be satisfied that the statutory targets would be met and overall the report lacked the specificity necessary to meet the duty to inform Parliament and the public of his plans.

The Climate Change Act 2008 (the “Act”) requires the Government to hit Net Zero by 2050. Section 4 of the Act imposes a duty on the Secretary of State for Business, Energy and Industrial Strategy to set an amount for the net UK carbon account (a “carbon budget”) for successive five-year periods “with a view to meeting” the 2050 target. All six carbon budgets have been agreed, and the final one came into force on 24 June 2021.

The claim for judicial review did not challenge the setting of the net zero target or the setting of any carbon budget. Instead, it focused on the Government’s failure to comply with its obligation in section 13 and/or 14.

In this regard the Court declared that the Secretary of State had failed to consider:

• the quantitative contributions that individual proposals and policies (or interrelated proposals and policies) were expected to make to meeting those carbon budgets;
• how the identified c.5% shortfall for meeting the sixth carbon budget would be made up; and
• the implications of these matters for risk to delivery of policies in the NZS and the sixth carbon budget.

In addition, the Court held that not only had the above not been considered, but the Secretary of State had also failed to comply with the obligation in section 14(1) by failing to include the quantitative contributions that individual proposals and policies were expected to make to meeting the carbon budgets. It was acknowledged that the section 14 report was a “snapshot” as at the time of the report but, nevertheless, the details included in the report were not sufficient to satisfy the statutory objective of transparency in how the targets are to be met.

Finally, the Court also held that the Secretary of State did not comply with, and therefore breached, section 149 of the Equality Act 2010 in relation to the Heat and Buildings Strategy (which was separate from but related to the NZS) because it failed to carry out an Equality Impact Assessment in respect of this Strategy.

The Court ordered that a new NZS which is compliant with section 14 of the Act be laid before Parliament by no later than 31 March 2023. Any consequential implications of the additional detail in the NZS for the programmes and policies being rolled out under it, remain to be seen.

From a wider public law perspective, this case is a reminder that public authorities exercising statutory powers and functions must be mindful of any requirements that specifically accompany those functions, as well as broader requirements such as the public sector equality duty. This will be an area to watch, particularly as a sizeable raft of ‘post-Brexit’ new legislation (with attendant powers and duties given to government ministers) winds its way through Parliament this year.

Juli Lau is a Legal Director at Sharpe Pritchard LLP.

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