The High Court has rejected a claim that the government had failed in its legal duty to implement its fuel poverty strategy. The rejection was made mainly on the grounds that, despite the legislative framework, the strategy’s implementation was essentially something for which it is politically rather than legally accountable.
With the Climate Change Bill receiving its final Parliamentary approval in October, the decision may provide clues as to how a court would interpret the new binding duties concerning climate change reductions.
Friends of the Earth and Help the Aged v Secretary of State for Business Enterprise and Regulatory Reform and Secretary of State for Environment, Food and Rural Affairs(Administrative Court, High Court 23 October 2008  EWHC 2518) concerned the Warm Homes and Energy Conservation Act 2000. Under the Act, the Secretary of State had a duty to publish a strategy setting out policies to ensure that "as far as reasonably practicable persons do not live in fuel poverty". The legislation provided that a target date for achieving that objective must be specified.
Section 2(5) of the Act then provided that the Secretary of State was under a duty to take such steps that are in his or her opinion necessary to implement the strategy.
A strategy was published at the end of 2001 and revised the next year. It set a target to seek, so far as is reasonably practicable, to end fuel poverty for vulnerable households by 2010 and to eliminate overall fuel poverty by the end of 2016. A household was defined as being in fuel poverty when it spent more than 10% of its income on fuel for satisfactory heating.
The government has taken various initiatives to implement its strategy. But while fuel poverty fell by some 30% between 2003 and 2004, it has since risen. The government predicts that by 2010 about 1.3 million vulnerable households would still be in fuel poverty, even though the strategy had called for its elimination in this sector by that date. Rises in fuel prices appear to have been the main reason for the increase.
The applicants did not challenge the strategy itself or argue that the Secretary of State had acted irrationality according to familiar grounds of judicial review. Instead, they argued that section 2(5) of the Act imposed a legal duty on the government to identify what is necessary and suitable to achieve the strategy’s objectives.
Mr Justice McCombe examined the legal provisions of the 2000 Act. The primary obligation was to publish a strategy and while it had to contain some mandatory elements, the content was largely left to the Secretary of State’s discretion. In the sense that the strategy was rightly couched "not in the language of legislation but of policy".
However, section 2(5) imposed a legal duty to implement the strategy and in the court’s view "the juxtaposition of policy and legal duty in this Act poses difficulties in the task of statutory construction".
The government argued that the legislation did not impose a duty to achieve the strategy’s objective, though it accepted it had to take such steps as, in its opinion, were necessary to secure the objectives so far as reasonably practicable.
Mr Justice McCombe largely accepted this interpretation. There could be a flexible approach to the construction of policy documents, but the Act did impose a duty on the Secretary of State to take such steps as it considered necessary to achieve its fuel poverty objectives so far as reasonably practicable. "This is the language of ‘effort’ to achieve targets rather than of guarantee that targets will be reached. However, the obligation remains to take the steps considered necessary to make those efforts as far ‘as reasonably practicable’. To this extent the language of policy has been translated into the language of statutory duty," Mr Justice McCombe said.
In its interpretation of what was implied by the phrase, "as far as reasonably practicable", a key issue was the question of government budgetary restraints. DEFRA had indicated that it did not consider it reasonably practicable to take all measures required to eliminate fuel poverty, in part because of spending restraints on departmental resources. The applicants argued that while cost effectiveness was a relevant factor, budgetary restraint could not be, otherwise budgets would dictate legal duty rather than the other way around.
Mr Justice McCombe drove a delicate path between the opposing views in his approach to interpretation. He accepted that resources should not dictate legal duty and that a court should not shrink from declaring action unlawful simply because of spending implications.
On the other hand, he was satisfied that Parliament must have been aware that pressure on budgets were intense and it could not have intended to obligate the government to spend whatever funds were necessary to eliminate fuel poverty in priority to other commitments. In his view it was open to government to have regard to its overall budget and other calls on resources in deciding what steps to take to implement the strategy.
But he accepted there was still a minimum standard to be attained in the performance of the government’s duty and that it did not have the discretion to, for example, completely eliminate winter fuel payments, which is one of the main mechanisms to achieve the strategy’s goals. But apart from this type of gross derogation of duty, "the penalty (if any) for failure to achieve the desired results of the strategy as published because of errors in policy-making (if such they be) should, it seems to me, be political rather than legal".
However, the court criticised the government’s approach in respect of the budgets available. The witness statement from the Environment Department (DEFRA) appeared to indicate that the departmental budget was the prime constraint (and DEFRA is well known to have been under particular constraint in recent years).
Mr Justice McCombe considered that what was reasonably practicable under the Act has to be interpreted in light of the overall resources available to government rather than individual departmental budgets. And it was not acceptable to argue that Parliament, in providing allocations to each department under the Appropriation Acts, can be said to have borne in mind the overall legislative duties under the Act in question.
But in the court’s view, the evidence regarding whether departmental budgets or overall budgets were driving the policy was far from conclusive, and no breach of statutory duty could therefore be found in this case.
The applicants went on to identify particular failings in the government’s approach which they argued pointed to a breach of legal duty. But given there was no challenge made on the grounds of irrationality, Mr Justice McCombe found the arguments difficult to accept. Their challenge was essentially to the making of policy and it was not open to the court to adjudicate on the merits of opinions involved because there must be room for differences in opinion as to how to best implement policy.
The case raised starkly the familiar tensions for courts involved in reviewing the legality of policy while trying to avoid usurping the role of government in determining its substance. But because of the way the legislation was drafted, these arguments were translated into the question of implementation rather than policy formulation.
Mr Justice McCombe noted that issues concerning the desirability for government policy on the use of available money were not really suitable for legal arguments concerning breach of statutory duty and judicial review. Yet it was here that the statutory scheme of imposing a legal duty to implement a broad policy document "is at its most unsound".
The decision may have relevance to the interpretation of the Climate Change Bill, which imposes many duties on the government to produce various carbon budgets and reports by particular years. Failure to comply with these specific duties by the deadlines specified in the legislation will be clearly subject to judicial review.
But section 1 of the Bill imposes a general duty on the secretary "to ensure" the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline. One can predict a situation where closer to that date it seems clear that the target will not be met and, as in the fuel poverty case, legal action is taken.
On the surface, the Bill imposes an absolute duty to ensure the 80% reduction and there are no qualifying words equivalent to "so far as reasonably practicable" as found in the Warm Homes and Energy Conservation Act. To that extent a court might feel more able to grant a declaration at least that the duty has not been fulfilled, though it is unlikely to go beyond that by specifying steps required of the government.
However, the legislation also requires the Secretary of State to produce a final statement before Parliament for 2050. If the 80% target has not been met, the statement "must explain why it has not been met".
A court is likely to find rather more compelling the interpretation that, though the reduction duty is encased in a legal framework, Parliament clearly envisaged with this provision that the targets might not be met and that the accountability should be political rather than legal.
Richard Macrory is professor of environmental law, University College London