Successive U.K. Governments have trumpeted a commitment to achieving ‘Net Zero’ carbon dioxide emissions that is more stringent than pretty much anywhere else in the world. Recently, Prime Minister Rishi Sunak bucked this trend by joining counterparts across Europe in signalling a softening, indicating amongst other things that the sale of new petrol and diesel cars would be prohibited from 2035 rather than 2030, and that there will be exemptions from the requirement that all newly-fitted boilers be heat pumps after 2035.
There was, predictably, outrage about this, but also a threatened legal challenge. Chris Packham – a famous TV presenter for wildlife shows – has written to the Prime Minister giving him 14 days to reverse the proposed changes or face a challenge in the High Court. This challenge (if it actually happens, which I have to confess I doubt) will likely be based on the Climate Change Act 2008, as amended in 2019, which purports to bind the Government to achieving net zero carbon dioxide emissions by 2050 and to keep to predetermined ‘carbon budgets’ in five-year periods. The idea is that, by rowing back on various commitments such as the phasing out of petrol and diesel cars from 2030, the Prime Minister is in contravention of (procedural) elements of that Act.
Packham has little prospect of success, for reasons which I will come to, but discussing his challenge is instructive nonetheless because it sheds light on the utter mendacity of a particular form of lawmaking which is now the dominant form of Government in the U.K. and which nobody – no matter what their views are with respect to climate change – ought to defend.
Some background, first. If somebody in the U.K. wishes to challenge the legality of a decision of a public body (including the Government) he or she may do so through the courts via a procedure called judicial review. The important thing about judicial review is that it is not supposed to be what lawyers call ‘substantive’, i.e., concerning the substance of the decision itself. It is only supposed to be ‘procedural’, i.e., concerning the manner in which the decision was made. If that procedure was biased, or took into account irrelevant considerations, or was ultra vires (meaning the person making the decision did not actually have the authority to do so), and so on, then the court can quash the outcome. What it can’t do is declare a decision unlawful because it was ‘wrong’ or undesirable in some way. This is what the rule of law means: not that decisions must be good, but that they must be in accordance with what the law says regarding how they are to be made and by whom.
So if Chris Packham wishes to successfully force the PM to hold to purported commitments (I use the word ‘purported’ advisedly – more on that in a moment) it is no good arguing that anything Sunak has declared would be objectively bad. Instead, Packham must find some reason why any decision the PM has made did not follow the correct procedure.
This will be difficult to do, because of the way that the Act operates. It is important to say from the outset that (as I will explain later on) the way it operates is absolutely indefensible as law-making and is simply not how a legislature should operate in a country that professes to take seriously the idea of the rule of law. But, be that as it may, Rishi Sunak is probably in the clear as regards procedure. Let me explain why.
The Climate Change Act 2008 requires Government to do two big things and a host of little things. The big things are reasonably well known. Section 1 requires the Secretary of State to ensure that, in 2050, the U.K. collectively emits 100% less carbon in net than it did in 1990 (hence ‘Net Zero’, although it is important to mention that the 100% figure was a 2019 amendment – originally the commitment was actually to produce 80% less); and section 4 requires the Secretary of State to set ‘carbon budgets’ for every five-year period, 12 years in advance, which stipulate how much carbon can be emitted within that timeframe.
What is significant about these requirements as far as Chris Packham is concerned, however, is that the Act is silent about how they are to be achieved. The only duty stipulated in that regard is found in section 13, which says that the Secretary of State must prepare “proposals and policies” to meet the carbon budgets, with a view to ultimately achieving the 2050 target, and (as provided in section 14) lay those proposals and policies before Parliament. But the content of those “proposals and policies” is not predetermined, and there is no requirement in the Act that they be made binding. Indeed, when a list of “proposal and policies” was laid before Parliament this year, in March 2023, it was hedged in its very introduction by some surprisingly honest and open confessions:
We expect the world to change between now and the end of Carbon Budget 6 [i.e., 2037], so we expect that the package of proposals and policies will evolve to adapt to changing circumstances, new evidence, to utilise technological developments and address emerging challenges… In light of this, and consistent with the duties imposed by the Climate Change Act 2008, we will continue to keep the proposals and policies under review and update and amend the package as appropriate. It is an extremely difficult process to precisely forecast those proposals and policies that will be in effect so far in the future, for example those intended to take effect in Carbon Budget 6, and there is considerable fluidity in the final delivery.
The ban on the sale of new petrol and diesel cars in 2030 was laid before Parliament pursuant to section 14 of the Act in the form of the Net Zero Strategy of 2021, as was something about phasing out of new gas boilers by 2035 – all following on of course from Boris Johnson’s ‘Ten Point Plan for a Green Industrial Revolution‘. (If only we had known that governments have it in their power to start and orchestrate industrial revolutions. We could have had them all the time.) But there is considerable ambiguity: the only reference I can find in the March 2023 Carbon Budget Delivery Plan to banning the sale of new petrol and diesel cars actually still refers to the date of 2035 (it’s on page 54, if you’re particularly interested), where it is described as an “ambition”. And all the 2021 Net Zero Strategy says about gas boilers is that the Government is “[a]iming to phase out the installation of new and replacement natural gas boilers by 2035 in line with the natural replacement cycle”. This is hardly a cast-iron commitment.
It would be a brave High Court judge, then, who would find that any of this somehow binds Rishi Sunak’s Government or that he had somehow acted in excess of powers or had failed to follow correct procedure in dialling down Boris Johnson’s ‘ambitions’ a tad. I simply don’t find that scenario plausible, particularly when we consider that section 10 of the Act specifically requires the Secretary of State to take into account amongst other things “social circumstances, and in particular the likely impact of the decision on fuel poverty” during the process of carbon budgeting. Social circumstances and particularly fuel poverty are in fact the overriding reasons which Rishi Sunak more or less explicitly referred to in his speech announcing these amendments to policy. All that will happen is that, in the course of time, some sort of document will appear before Parliament (whether in the form of a ‘Strategy’ or the next Carbon Budget Delivery Plan, or whatever) stating that the Government has had a rethink, and that will be that as far as the Climate Change Act 2008 is concerned.
In a video posted on X, Packham has suggested that there may be another path to a successful challenge, which would lie in a failure on the part of the PM when making these amended commitments, to consult with the public or a body created by the Climate Change Act 2008, called the Climate Change Committee. That Packham thinks such a challenge has any grounds can only be attributed to a failure to read the Act properly. Section 9 does stipulate that the Secretary of State must consult the Climate Change Committee when setting carbon budgets through a statutory instrument, but that is not what is happening here. And, indeed, if at some point the Government does decide to set a new figure for a carbon budget in this way, while it is required to consult the Climate Change Committee, it can in fact ignore its advice.
Packham is, of course, more or less the textbook definition of what judges used to call a ‘meddlesome busybody’ – somebody who brings a claim for judicial review not because they have a genuine stake in the outcome of the decision they are challenging but for attention or for some other vexatious purpose. Nonetheless, in drawing attention to the Climate Change Act 2008 he is performing a public service of a kind, because he may end up bringing into the public awareness just how ramshackle the relationship between our executive and legislature has become.
In an earlier post, I described how there has been:
a move away from law understood chiefly as comprising rules per se, to law understood as policy. Legislation is not created simply to order the conduct of otherwise free citizens. It is created in order to give effect to governmental purposes. It is used not to make clear rules, but to delegate the authority necessary to effect desired changes of some kind within the economy or society, usually to the state’s ever-growing administrative bureaucracy.
But in saying so I ought also to have made clear that it is very often the case that it is the executive itself which gets to call the shots in this world of law-making. The pattern, essentially, is as follows. First, Government decides it would be a jolly good wheeze if it could somehow issue edicts with respect to some policy area or other, without really having to go to the trouble of going through the drawn-out and painful process of involving the legislature (i.e., those pesky representatives of the voters). Government therefore draws up a sweeping piece of legislation which essentially says that, with regard to matters X, Y and Z, Government itself gets to make the rules, in the form of statutory instruments or delegated legislation issued by Cabinet ministers. Because it commands a majority in Parliament, Government then quickly gets the piece of legislation in question enacted. And then it is free: it all of a sudden has the legal permission, as it were, to issue edicts and decrees as it sees fit with regard to X, Y and Z, and never has to involved MPs at all in the process except insofar as they are perhaps required to nod things through late at night on a Friday.
The New Labour Governments truly excelled in this form of law-making, and it is no accident that the practice’s very pinnacle was reached in the Climate Change Act 2008, which came in the dog days of the New Labour years in power. The Climate Change Act is particularly notable because it does not even require Government to go through the trouble of drawing up delegated legislation. The way it works is much more straightforward and egregious: it gives the Government the power to make “policies and proposals” of vast, almost limitless scope, and then simply “lay them before Parliament” in a trendily-titled document – at which point they become de facto law. Everyone then simply starts talking about the relevant “policies and proposals” as though they are faits accomplis – they are what will happen – and behaving indeed as though law-making is a function of the executive, when the most basic principle of constitutional law in England of course is that it should be anything but.
The banning of new petrol and diesel cars, whether from 2035 or 2030, is the paradigm example of the egregious consequences of governing in this way. It would astonish the average layperson to learn, given the way that the Government, opposition parties and journalists talk about this ‘ban’, that at the time of writing it is not a ban at all, but a mere ‘proposal’ (or is it a ‘policy’?) that has never come within a country mile of a statute book. Our political class might argue amongst themselves about when the exact date of the ban will be, but the idea that one day an elected Government might decide not to have one at all simply doesn’t enter their minds. And in a sense they are perfectly entitled to see things in this way. They have become used to a situation in which the legislature is a mere talking shop and a general election a mere way of electing Governments, who then run the show in the manner I have described – drawing up legislation for Parliament to rubber-stamp, which grants Government itself the power to rule by decree. At some point the sale of new petrol and diesel cars will actually be banned as a matter of law, and everyone knows it and behaves as if it is so; the only question is when.
To somebody beholden to this mindset, the idea that the legislature – the people who the electorate actually vote for – might have a say in which laws are made is a sort of category error. Yes, technically Parliament makes laws. But it increasingly only makes laws which set the frames of reference within which the executive regulates. In their darker moments the fans of this way of doing things might reflect that there is something about it that is not entirely consonant with the rule of law. But in their minds, of course, what matters is the fact that regulation is being done by those who know best – the experts – and fusty old concepts like the rule of law ought really not to stand in the way of that process anyway.
For the unhappy citizenry, the result can only really ultimately be confusion. The increasing sense among the electorate is that, whoever they vote for, it’s difficult to discern any difference in outcome. This is because large numbers of the public have intuited that the legislature, who are the elected representatives of the public, don’t actually make much in the way of law anymore, and that the Government and its technical experts, quangos and ‘stakeholders’ are the only game in town. Very few people know quite how to articulate why this is, but the answer is in a sense very clear: it’s because there has been a concerted effort on the part of successive Governments (aided and abetted by supine Parliaments – let’s be scrupulously fair) to make sure that this should be so.
One is tempted, then, to wonder: what if people like Chris Packham were to use their power and influence to raise public awareness about the reasons for how poorly we are governed, rather than pursuing quixotic, hare-brained litigation like the one in question? We might actually then begin to see some changes. But that, of course, will never happen, and this speaks directly to one of our truly intractable problems: we have a political and media establishment (‘elite’ is too strong a term) who see absolutely nothing wrong with the way of governing that I have described, as long as it is their side who is in charge. For Packham, embedded within that establishment, the problem is not in principle that the PM and his mates in Cabinet get to issue whatever decrees they see fit like khans of the steppe. The problem is that it’s a Tory PM doing it, and his decrees are wrong. And the law should therefore intervene.
Packham only cares about substance, in other words, not procedure. And almost everybody in his circles thinks the same way. They don’t have any conception of the truth: that it is actually procedure that is everything. If you get the governing procedures right, such as to ensure that public bodies (including governments) make decisions in the proper way, then wise policy will likely follow. If you let procedure decay, decision-makers start pursuing personal interests and hobby horses. And that, to bring us full circle, is precisely the underlying philosophy of judicial review within the English constitution. When the procedure is right, wisdom prevails. The issue we confront is not just that the procedure has gone very badly wrong, but that we have ceased to have any interest in getting it right. This, I’m afraid, makes good policy – in any area – a decreasingly likely proposition.