HM Treasury & Anor v Global Feedback Limited [2025] EWCA Civ 624

[2025] EWCA Civ 624Case No CA-2024-001637
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2024] EWHC 1943 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mrs Justice Lang DBE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/05/2025
Before
LORD JUSTICE COULSONLORD JUSTICE STUART-SMITHLORD JUSTICE HOLGATE
Between
(1) HM TREASURYAppellants(2) SECRETARY OF STATE FOR BUSINESS AND TRADEAppellantGLOBAL FEEDBACK LIMITEDRespondentWWF UKIntervener
Sir James Eadie KC, Malcolm Birdling, Richard Howell and Adam Riley (instructed by Government Legal Department) for AppellantsVictoria Wakefield KC, Sarah Love and Conor McCarthy (instructed by Leigh Day) for RespondentBrendan Plant (instructed by WWF UK) made written submissions for IntervenerHearing Hearing date : 7 March 2025
Approved JudgmentThis judgment was handed down remotely at noon on 13 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]Article 9(3) of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“the Aarhus Convention”), which was ratified by the United Kingdom on 23 February 2005, requires each Party to ensure that members of the public “have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.” Article 9(4) requires inter alia those procedures, and also procedures under Art.9(1) and (2), to “provide adequate and effective remedies” and not to be “prohibitively expensive”. The central issue in this appeal is what is the meaning and width of the phrase “which contravene provisions of its national law relating to the environment” in Art.9(3).[2]Part IX of CPR 46 gives partial effect to Art.9(4) by imposing costs limits on “Aarhus Convention claims”. That expression means “a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Art. 9(1), 9(2) or 9(3)” of the Aarhus Convention (CPR 46.24(2)(a)).[3]The costs capping provisions in ss.88 and 89 the Criminal Justice and Courts Act 2015 do not apply to Aarhus Convention claims falling within Part IX of CPR 46 s.90 of the Criminal Justice and Courts Act 2015 and the Criminal Justice and Courts Act 2015 (Disapplication of Sections 88 and 89)Regulations 2017 (SI 2017 No. 100). . Conversely, claims falling within the costs protection provision in Art.9(4) for procedures under Art.9(1) to 9(3) but outside part IX of CPR 46, may be the subject of a costs protection order under the 2015 Act.[4]The issue has arisen in a claim for judicial review brought by Global Feedback Limited (“GFL”) against HM Treasury and the Secretary of State for Business and Trade (“the appellants”) in respect of their decision on 23 February 2023 to make the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023 (SI 2023 No. 195) (“the 2023 Regulations”). The 2023 Regulations give effect to tariff preferences on Australian imports under a Free Trade Agreement (“FTA”) between the UK and Australia which was signed on 17 December 2021 and came into force on 31 May 2023.[5]GFL is a charity concerned with environmental protection. It seeks to regenerate nature by transforming food production services. GFL claims that the 2023 Regulations will harm the environment by adversely impacting on climate change. It says that the FTA would lead to a substantial increase in greenhouse gas (“GHG”) emissions from the production of cattle meat, because(i) beef production methods in Australia produce significantly more GHG emissions per weight of beef than those in the UK and(ii) the lower prices of Australian beef compared to UK beef are likely to lead to a net increase in production of Australian beef for consumption in the UK. According to GFL, “carbon leakage” occurs when production moves from one country to another resulting in higher net GHG emissions, for example where the production process in the new country is more GHG intensive.[6]In its Statement of Facts and Grounds GFL alleges that the appellants declined to assess the nature and extent of this carbon leakage for reasons which were illogical and/or irrational; the decision was tainted by predetermination; and flawed by a misreading of Art.4(1)(f) of the United Nations Framework Convention on Climate Change (“UNFCCC”).[7]At a hearing on 26 June 2024 Lang J granted permission for the claim for judicial review to be brought. Her judgment is at [2024] EWHC 1810 (Admin).[8]A second hearing took place before Lang J on 28 June 2024 at which the appellants contended that the claim was not an Aarhus Convention claim falling within Part IX of CPR 46. In an ex tempore judgment Lang J decided that it was ([2024] EWHC 1943 (Admin)). She ordered that the costs limits in CPR 46 should apply. She adjourned the appellants’ application to vary those limits to a hearing on 23 July 2024. By an order dated 24 July 2024 Lang J refused that application, with the result that the standard costs limits in CPR 46.26 apply. The judge also ordered the appellants to pay GFL’s costs of resisting their applications for a ruling that the claim was not an Aarhus Convention claim and to vary the standard costs limits.[9]With the leave of Arnold LJ, the appellants appeal against para.2 of Lang J’s order dated 28 June 2024 determining that the claim is an Aarhus Convention claim, but not the order dated 24 July 2024. The claim for judicial review is stayed pending the determination of this appeal.[10]On 24 February 2025 Arnold LJ gave leave to WWF UK (“WWF”) to intervene by way of written submissions. The intervener is a charity with longstanding experience in matters concerning international trade and environmental protection. These include the environmental impact of supply chains on the sustainability of food production.[11]On 20 July 2018 the then Department for International Trade (“DIT”) published an information pack for consultation on a proposed free trade agreement between the UK and Australia. The consultation closed on 26 October 2018 and resulted in 146,188 responses. A summary of the responses was published on 18 July 2019. One of the recurring concerns was the effect that trading with Australia might have on global carbon emissions and climate change owing to the distance between the two countries.[12]On 17 June 2020 the DIT published the UK’s “Strategic Approach” to negotiation with Australia for a free trade agreement. The Government stated that it wished to liberalise tariffs so as to promote trade and to seek provisions for supporting its ambitions on climate change, including the net zero target for 2050 and the UK’s commitments to the UNFCCC and the Paris Agreement. The document stated that once negotiations with Australia concluded and the text of an agreement was known, a full impact assessment would be published prior to implementation. This would update and refine the preliminary estimates of the scale and distribution of the impacts outlined in a “Scoping Assessment” included in the “Strategic Approach”.[13]Negotiations between the two countries began in June 2020 and an agreement in principle was reached in June 2021. The Governments of the UK and Australia signed the FTA on 17 December 2021.[14]The DIT published the Impact Assessment on 16 December 2021. This stated that nothing in the FTA would prevent the UK Government taking the domestic action necessary to achieve its net zero target, which focuses on UK GHG emissions. One section of the Assessment addressed carbon leakage risk Defined there as displacement of GHG production emissions attributable to differing climate rules and policies across jurisdictions. . It acknowledged that there is such a risk, but concluded that “the extent to which rising emissions may be attributable to carbon leakage relative to increased economic output … is uncertain”. Modelling indicated that the production of cattle meat in Australia might involve carbon leakage, but the data on emissions intensity in cattle meat production shows either higher or lower differences between the two countries depending on the sources consulted. The claim for judicial review focuses on the approach taken in the Impact Assessment to carbon leakage.[15]Before the FTA could be ratified it had to complete the process of scrutiny required by Part 2 of the Constitutional Reform and Governance Act 2010 (“the 2010 Act”). Because the FTA covered trade in agricultural products, the Secretary of State was obliged to have laid before Parliament a report under s.42 of the Agriculture Act 2020 explaining to what extent those measures are consistent with the maintenance of UK levels of statutory protection for inter alia the environment. The Secretary of State exercised her power under s.42(4) to take independent advice. On 13 April 2022 she received that advice from the Trade and Agriculture Commission. They concluded that there was no evidence to support the notion that agricultural production in Australia of products likely to be imported at an increased rate into the UK under the FTA would be more emissions-intensive than comparable products in the UK. On 6 June 2022 the Secretary of State for International Trade presented her s.42 report to Parliament. Paragraph 58 of the Statement of Facts and Grounds accepts that the s.42 report only had to consider compatibility with domestic law, not international legal obligations such as UNFCCC. The report is not the subject of any complaint in GFL’s claim.[16]On 15 June 2022 the FTA was presented to Parliament. The process of scrutiny under the 2010 Act was completed on 20 July 2022. To give effect to the tariff provisions of the FTA the appellants made the 2023 Regulations under Part 1 of the Taxation (Cross-Border Trade) Act 2018 (“the 2018 Act”) on 23 February 2023. The 2023 Regulations came into force on 31 May 2023.[17]The upshot is that the statutory provisions which GFL says fall within the scope of Art.9(3) and (4) of the Aarhus Convention for the purposes of its claim are the relevant provisions of Part 1 of the 2018 Act and the 2023 Regulations, but not part 2 of the 2010 Act or s.42 of the 2020 Act.

Taxation (Cross-Border Trade) Act 2018

[18]Part 1 of the 2018 Act is concerned with import duty. The remaining provisions of the Act are concerned with export duty (Part 2), VAT (Part 3), excise duties (Part 4), VAT and duties in connection with withdrawal from the EU (Part 5) and related matters (Part 6). The structure of the 2018 Act is reflected in its long title, the material part of which reads:
“An Act to impose and regulate a duty of customs by reference to the importation of goods into the United Kingdom”
Self-evidently the general purposes of the Act are not concerned with the environment, or with the protection or regulation of the environment.[19]Section 1 provides for the charging of import duty on the importation of chargeable goods into the UK. Section 2 provides that goods are chargeable to import duty unless they are “domestic goods” within the meaning of s.33.[20]By s.7(1) the amount of import duty applicable to goods is determined by the “customs tariff” in s.8 as amended or adjusted by ss.9 to 15, which deal inter alia with preferential rates and quotas.[21]The customs tariff is a system established by regulations which classifies goods according to their nature, origin or any other factor and specifies rates of import duty applicable to goods within a class or code by reference to value, volume, weight or any other measure of their quantity or size (s.8(1) and (2)). Section 8(5) provides:
“(5) In considering the rate of import duty that ought to apply to any goods in a standard case, the Treasury must have regard to— (a) the interests of consumers in the United Kingdom, (b) the interests of producers in the United Kingdom of the goods concerned, (c) the desirability of maintaining and promoting the external trade of the United Kingdom, (d) the desirability of maintaining and promoting productivity in the United Kingdom, and (e) the extent to which the goods concerned are subject to competition.”
The customs tariff is set out in the Customs Tariff (Establishment) (EU Exit) Regulations 2020 (SI 2020 No. 1430). It is subject to amendment and adjustment by regulations made under Part 1 of the 2018 Act. (a) the interests of consumers in the United Kingdom, (b) the interests of producers in the United Kingdom of the goods concerned, (c) the desirability of maintaining and promoting the external trade of the United Kingdom, (d) the desirability of maintaining and promoting productivity in the United Kingdom, and (e) the extent to which the goods concerned are subject to competition.”[22]Section 9 enables the Treasury, on the recommendation of the Secretary of State, to make regulations for giving effect to “arrangements” made with a government of a country or territory outside the UK providing for a lower rate of duty than under the customs tariff.[23]Section 10 enables the Secretary of State to make regulations to establish a trade preference scheme reducing the rate of import duty in the customs tariff for goods originating from an eligible developing country.[24]Section 11 provides for regulations to determine the amount of import duty applicable to goods subject to a quota, either as a result of “arrangements” with a foreign government or a decision by the Treasury.[25]Section 12 enables the Treasury to provide by regulations for a lower rate of import duty on specified goods for a specified period, that is a tariff suspension. According to para.82 of the Explanatory Notes to the Bill which became the 2018 Act, the object is to encourage trade and support domestic production so that UK businesses have access to the supplies they need.[26]Section 13 and scheds. 4 to 5A enable the rate of import duty to be raised in response to the dumping of foreign goods, foreign subsidies and certain increases in imports, causing serious injury to UK industry or producers.[27]Section 14 enables the Treasury to make regulations to increase the rate of import duty on specified agricultural goods if the volume of imports exceeds, or the price of imports falls below, specified trigger levels. Paragraphs 87 to 90 of the Explanatory Notes state that in accordance with Art.5 of the World Trade Organisation (“WTO”) Agreement on Agriculture this provision enables the UK Government to protect domestic agriculture.[28]Section 15 provides that where a dispute has arisen between the UK Government and a foreign government and the former considers that (having regard to the matters set out in s.28 and any other relevant matters) it is appropriate to deal with the issue by varying the amount of import duty on goods originating from that other country, the Secretary of State may make regulations to that effect.[29]Section 28 provides:
“Requirement to have regard to international obligations (1) In exercising any function under any provision made by or under this Part— (a) the Treasury, (b) the Secretary of State, (c) HMRC, (d) the TRA, and (e) any other public body, must have regard to international arrangements to which Her Majesty's government in the United Kingdom is a party that are relevant to the exercise of the function. (2) This section is not to be read as affecting the circumstances in which any obligation to have regard to such matters would otherwise have arisen.”
There is no overall definition of “international arrangements”. Section 37(1) provides that “‘arrangements’ includes an understanding of any kind”. Otherwise the 2018 Act contains instances where “arrangements” are defined as part of a specific term of art, e.g. “international excise arrangements” (s.46(9)).

(c) HMRC, (d) the TRA, and (e) any other public body,

[30]Paragraph 130 of the Explanatory Notes states:
“130 Clause 28 places a requirement upon specified persons, departments, and bodies exercising functions specified in Part 1 of this Bill to have regard to international arrangements that the UK is a party to and that are relevant to the exercise of that function. This would, for example, include agreements with the WTO.”

The grounds of challenge in the judicial review

[31]Lang J granted GFL permission to amend its Statement of Facts and Grounds. The gist of the grounds of challenge, based upon GFL’s skeleton argument, is as follows: Ground 1 The appellants erred in law in adopting the conclusion in the Impact Assessment that the available data was too inconsistent to allow for a meaningful assessment of the risk of carbon leakage from the FTA, in particular the shift in the production of cattle meat from the UK to Australia because:(a) The Impact Assessment referred to two datasets, first the United Nations Food and Agricultural Organisation’s “Global Livestock Environmental Assessment Model” (“GLEAM”) which indicates that Australian beef production is materially more emissions intensive than that in the UK and second a paper by Poore and Nemecek (“P & N”) showing that it is less. The treatment by the Impact Assessment of the P & N data as a valid alternative source to GLEAM was obviously wrong. GLEAM data relates to all beef produced from beef herds and dairy herds, whereas P & N data relates to dairy herds only;(b) The appellants failed to consider and to obtain information to answer an obvious question: which types of herd in the UK would be affected by the FTA - dairy herd, beef herd or both? The majority of the UK’s production is from dairy herds which are less emissions- intensive than beef herds. This was a failure of the Tameside duty of reasonable inquiry ([1977] AC 1014);(c) The appellants could not rationally have taken the decision to make the 2023 regulations without knowledge of the matters set out in ground 1(a) and (b);(d) The conclusions in the Impact Assessment were influenced by the understanding of officials as to what would be acceptable to Ministers, or in other words predetermination. Ground 2 The appellants erred in adopting the conclusion in the Impact Assessment that GLEAM alone could not provide a reliable basis for assessing the risk of carbon leakage arising from the FTA. The concerns raised in the Assessment about the uncertainty of future policy changes and technological advances were not a proper basis for declining to assess the impact of carbon leakage. Ground 3 The appellants failed to comply with s.28 of the 2018 Act by failing to take into account Art.4(1)(f) of the UNFCCC and/or by misinterpreting that provision and the Paris Agreement. The appellants wrongly considered that any increased generation of GHG emissions through increased production of beef in Australia was a matter for assessment by the Australian Government not the UK Government.[32]Article 4 of the UNFCCC is entitled “Commitments” and provides so far as is relevant:
“1. All parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall: … (f) Take climate change considerations into account, to the extent feasible, in their relevant social, economic and environmental policies and actions, and employ appropriate methods, for example impact assessments, formulated and determined nationally, with a view to minimizing adverse effects on the economy, on public health and on the quality of the environment, of projects or measures undertaken by them to mitigate or adapt to climate change; …” … (f) Take climate change considerations into account, to the extent feasible, in their relevant social, economic and environmental policies and actions, and employ appropriate methods, for example impact assessments, formulated and determined nationally, with a view to minimizing adverse effects on the economy, on public health and on the quality of the environment, of projects or measures undertaken by them to mitigate or adapt to climate change; …”
[33]In her judgment on the Aarhus Convention point Lang J said at [12] that:(i) The purpose of the 2018 Act is to regulate the importation of goods and customs duties, not the environment;(ii) However, arguably the appellants were required by s.28 to have regard to relevant international obligations which included UNFCCC and the Paris Agreement, which are directly concerned with environmental issues;(iii) Even absent s.28, the UNFCCC and the Paris Agreement were arguably relevant considerations when making the 2023 Regulations, which they were obliged to take into account. Ms. Victoria Wakefield KC on behalf of GFL stated in her skeleton argument and oral submissions that her client does not rely on point (iii) in this appeal. It is not suggested that either the UNFCCC or the Paris Agreement has been incorporated into domestic law.

The Aarhus Convention

[34]The recitals to the Convention affirm the need to protect, preserve and improve the environment and recognise that adequate protection of the environment is essential to human well-being. Thus, every person has the right to live in an environment adequate to his or her health and well-being and the duty individually and collectively to protect and improve the environment for present and future generations:
“Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights, Recognizing that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns, … Desiring to promote environmental education to further the understanding of the environment and sustainable development and to encourage widespread public awareness of, and participation in, decisions affecting the environment and sustainable development, … Concerned that effective judicial mechanisms should be accessible to the public, including organizations, so that its legitimate interests are protected and the law is enforced, …”
[35]The objective of the Convention is laid down by Art.1:
“In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.”
Thus, the rights guaranteed by Art.1, including that of access to environmental justice, are delineated by the Convention.[36]The Convention does not define what is meant by “the environment” as such, but Art.2(3) does define “environmental information”:
“3.

(b) above;”

[37]Article 4 provides for access by the public to “environmental information”. By Art.4(1) public authorities are to make “environmental information” available to the public in response to a request, subject to certain limitations and exclusions. By Art.4(7) a refusal of such a request must give reasons and information on the review procedure provided by the State in accordance with Art.9(1).[38]Article 5 deals with the collection and dissemination of “environmental information”. For example, each Party is to ensure that public authorities possess and update environmental information relevant to their functions and that there are systems providing an adequate flow of information to those authorities about activities “which may significantly affect the environment”. (Art 5(1)). Article 5 goes on to set out a number of requirements for the dissemination of “environmental information”.[39]Article 6 deals with “public participation in decisions on specific activities”. In summary, this provision applies to decisions on whether to permit proposed activities listed in annex I or other activities which “may have a significant effect on the environment” (Art.6(1)). The public is also to have access to information relevant to decision-making, including a description of the significant effects of the proposed activity on the environment and the measures envisaged to prevent and/or reduce those effects, including emissions (Art.6(6)). The public is to have an opportunity to submit in writing or at a hearing their opinions and analyses in relation to the proposal (Art.6(7)). The public is to be informed of the decision taken on a proposal along with the reasons and considerations on which the decision was based (Art.6(9)). Thus, Art.6 reflects several of the requirements for environmental impact assessment introduced within the EU in 1985 (Directive 85/337/EEC).[40]Article 7 requires each Party to make provision for the public to participate during the preparation of “plans and programmes relating to the environment”, after having provided necessary information to the public. Each Party, to the extent appropriate shall also endeavour to provide opportunities for public participation in the preparation of “policies relating to the environment”.[41]Article 8 requires each Party to strive to promote effective public participation at an appropriate stage during the preparation by public authorities of executive regulations and other generally applicable legally binding rules “that may have a significant effect on the environment”.[42]Article 9 is entitled “Access to Justice”. Article 9(1) requires each Party to ensure that any person who considers that Art.4 has been breached has access to “a review procedure before a court of law or another independent and impartial body established by law”.[43]Article 9(2) requires each Party to ensure that members of the public with a sufficient interest (or, alternatively, who maintain that their rights have been impaired) have access to a review procedure before a court of law and/or another independent and impartial body established by law “to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6 and, where so provided under national law and without prejudice to [Art.9(3)], of other relevant provisions of this Convention”.[44]Article 9(3) provides:
“In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”
The phrase “acts or omissions” is sufficiently broad to encompass “decisions” (Venn v Secretary of State for Communities and Local Government [2015] 1 WLR 2328 at [13]).[45]Article 9(4) provides:
“In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.”
[46]The structure of Art.9 is clear. Article 9(1) and 9(2) defines the circumstances in which a Party should provide procedures before a court or independent body for members of the public to pursue breaches of the Convention specifically under Arts. 4 and 6 (public access to environmental information and participation in permitting decisions on activities affecting the environment). In addition, Art.9(3) requires a Party to provide judicial or administrative procedures for members of the public to challenge contraventions of provisions of national law relating to the environment by public authorities or private persons. Article 9(4) then requires each of the procedures under Art.9(1) to (3) to provide adequate and effective remedies which are fair, timely and “not prohibitively expensive”.[47]Article 3(5) makes it clear that the Convention does not prevent a Party from having measures providing for broader access to information and justice in environmental matters and more extensive public participation in decision-making.[48]The Parties to the Aarhus Convention have established a Compliance Committee under Art.15 which provides: “The Meeting of the Parties shall establish, on a consensus basis, optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of the Convention. These arrangements shall allow for appropriate public involvement and may include the option of considering communications from members of the public on matters related to this Convention”. (emphasis added)[49]In Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51 the Supreme Court drew some support from a decision of the Compliance Committee for its conclusion that there had been no procedural unfairness in that case. Lord Carnwath JSC said that “decisions of the Committee deserve respect on issues relating to standards of public participation” ([100] to [101] and see also Austin v Miller Argent (South Wales) Limited [2014] EWCA Civ 1012; [2015] 1 WLR 62 at [9]). But at the same time, the Committee’s decisions do not create binding rulings, nor are they analogous to the decisions of an international court or tribunal. They may not contain legal analysis which would be found in a judicial adjudication on the interpretation and application of an international treaty (see Lord Reed PSC in R (AB) v Secretary of State for Justice [2021] UKSC 28; [2022] AC 487 at [64]-[67]). In any event, none of the decisions of the Committee cited to us support the analysis by GFL or WWF of the ambit of Art.9(3) where that differs from that of the appellants, nor do they run counter to the analysis in this judgment.[50]The parties also referred in their submissions to the Implementation Guide to the Aarhus Convention produced by the UN Economic Commission for Europe (2nd edition - 2014). While the Guide is an explanatory document, which, if appropriate, may be taken into consideration, among other relevant material, for the purpose of interpreting the Convention, the Guide has no binding force and does not have the normative effect of the provisions of the Convention (Fish Legal v Information Commissioner Case C-279/12; [2014] QB 521 at [38]).

The Vienna Convention on the Law of Treaties

[51]The parties agree that it is necessary for the Court to interpret for itself the meaning of the words in Art.9(3) “contravene provisions of its national law relating to the environment”, because the definition of “Aarhus Convention claim” in CPR 46.24(2)(a) has the effect of incorporating that language.[52]The parties also agree that the following provisions in the Vienna Convention are relevant to this exercise:
“ARTICLE 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. … ARTICLE 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. ARTICLE 33 Interpretation of treaties authenticated in two or more languages 1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. …”
For the Aarhus Convention the English, French and Russian texts are equally authentic (Art.22). General rule of interpretation … Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. Interpretation of treaties authenticated in two or more languages …”

Civil Procedure Rules

[53]CPR 46.25 provides that CPR 46.26 to 4.28 apply where a claimant who is a member of the public states in the claim form that the claim is an Aarhus Convention claim and files a schedule of his or her financial resources, unless the claimant opts out of costs protection.[54]CPR 46.26 sets out the standard limits on the costs recoverable against a claimant or a defendant, unless varied under CPR 46.27.[55]Under CPR 46.47 the court may vary the limit on the costs recoverable from a party or may remove that limit altogether (CPR 46.27(1)), subject to the proceedings not becoming prohibitively expensive for the claimant (CPR 46.27(2) to (4)). A claimant’s application to vary costs limits must be set out in the claim form and a defendant’s application must be in the acknowledgement of service. Such applications must be determined by the court at the earliest opportunity, unless there is subsequently a significant change in circumstances (CPR 46.27(5)) to (7)).[56]Where a defendant has denied in an acknowledgement of service that the claim is an Aarhus Convention claim, CPR 46.26 continues to apply unless and until the court determines that the claim is not a Convention claim (CPR 46.28(1)). The court must determine that issue at the earliest opportunity (CPR 46.28(2)).

The judgment of Lang J

[57]The judge reviewed a number of decisions on the scope of Aarhus Convention claims. She referred to her own decision in R (ClientEarth) v Financial Conduct Authority [2023] EWHC 3301 (Admin); [2024] Env. L.R. 20 (“the FCA case”) in which she had held that a challenge to the Authority’s approval of a shares prospectus by Ithaca Energy plc was not an Aarhus Convention claim because the relevant statutory provisions under which the approval had been given did not form part of national law relating to the environment. The purpose of the legislation was not to protect or regulate the environment.[58]However, the judge decided at [12]-[14] that the present claim does fall within Art.9(3) and (4). She said that it was arguable that s.28 of the 2018 Act required the appellants to have regard to relevant international obligations, including the UNFCCC, and those obligations were directly concerned with environmental issues. The appellants were under obligations in UK national law to have proper regard to their environmental obligations under international law when making the 2023 Regulations. This was sufficient to bring the claim within the scope of Art. 9(1), applying a broad purposive approach.[59]The judge also took into account at [13] the nature of the alleged contravention. She was not persuaded that the appellants’ obligations only related to GHG emissions in the UK as opposed to Australia, in circumstances where the implementation of the FTA by the 2023 Regulations would promote a market for the importation of Australian produce into the UK with a risk of increased emissions in Australia. There is a public interest in the environmental issues raised by the claim and the scope of s.28 of the 2018 Act may be relevant to other free trade agreements which are being implemented.

A summary of the parties’ submissions

[60]On behalf of the appellants Sir James Eadie KC submits that Art. 9(3) and (4) apply to contraventions of domestic law, the purpose of which is to protect or regulate the environment. There is no requirement for the whole of an enactment to be for that purpose. It suffices if a relevant provision serving that object is contravened.[61]The 2018 Act is concerned with import duty and other forms of taxation. None of its provisions, including s.28, has been enacted for the protection or regulation of the environment. The fact that the implementation of the 2018 Act may have an indirect effect on, for example, economic activity and, thereby GHG emissions, does not alter the nature of the legislation so that it is to be treated as national law relating to the environment. Most tax legislation and, indeed, legislation more generally, will impact on economic and social activity and therefore may have indirect effects on one or more aspects of the environment. Laws of that kind do not relate to the environment. Articles 9(3) and (4) were prepared, and finally agreed, so as not to have any such wider effect.[62]The fact that the claim for judicial review is to do with the effects of the FTA and the 2023 Regulations on climate change is insufficient to bring the proceedings within Art.9(3) and (4). Instead, it must be shown that a claim involves a contravention of a domestic legal provision relating to the environment.[63]General principles of public law are not legal provisions relating to the environment. A breach of a principle of public law in the taking of a decision is not a contravention of a national law relating to the environment simply because that decision has consequences for the environment. Such a challenge falls outside Art.9(3) and (4) of the Aarhus Convention. By contrast, where a legal provision for the protection or regulation of the environment is contravened through a breach of a public law principle (e.g. a failure to comply with a duty or an irrational exercise of discretion in the carrying out of that law) a legal challenge would fall within Art.9(3) and (4). The distinction lies in whether there is a contravention of a legal provision relating to the environment. For this reason the Court is asked to hold that R (Friends of the Earth Limited) v Secretary of State for International Trade [2021] EWHC 2369 (Admin) (see below) was wrongly decided.[64]Even assuming at this stage that s.28(1) of the 2018 Act required Art.4(1)(f) of UNFCCC to be taken into account by the appellants when making the 2023 Regulations, a general provision of that kind which simply requires relevant considerations to be taken into account is not a provision of national law relating to the environment. Furthermore, a legal duty to take a matter into account does not involve any obligation to give that matter any weight in the decision-making process.[65]CPR 46.28(2) requires an issue about whether a claim for review falls within Art.9(3) and (4) to be determined by the court at the earliest opportunity. Typically it is dealt with not long after a claim is filed and served, at the permission stage. A decision on whether permission should be granted turns on whether the grounds for judicial review are arguable, but the issue of whether a claim falls within Part IX of CPR 46 requires a definitive assessment of whether the law which a claimant alleges to have been contravened is a national law relating to the environment, yes or no.[66]In summary, Ms. Wakefield submitted for GFL that:(i) It is sufficient for a law to fall within Art.9(3) that it has an environmental purpose, even if it forms part of a statute or wider set of legal provisions which have no environmental purpose;(ii) A qualifying legal provision does not have to be binding law. It may be a policy which legislation requires the public body to take into account (Venn), or an “obviously material consideration” to which that body must have regard;(iii) Friends of the Earth [2021] EWHC 2369 (Admin) was correctly decided. Articles 9(3) and (4) apply even where a policy, not legislation, relates to the environment even if there is no legal obligation to have regard to that policy.(iv) It would be odd if an irrational judgment regarding the effect of a decision on the environment fell outside a Party’s obligation in Art.9(3) to provide access for members of the public to a procedure and remedy;(v) All public law errors relating to the environment fall within Art.9(3) and (4).[67]GFL submits that the claim is an Aarhus Convention claim because each of the grounds for judicial review are related to the environment, on the basis that carbon leakage was a mandatory material consideration such that the 2023 Regulations are rendered unlawful (para. 42 of skeleton argument).[68]GFL submits that ground 3 of the challenge suffices to bring its overall claim within the scope of Art.9(3) and (4). This is because s.28 of the 2018 Act required the appellants to take into account the UNFCCC and because the failure to have regard to increased GHG emissions through increased production of beef in Australia was a breach of public law principles (ibid. paras.43 and 45).[69]GFL says that the present case is directly analogous to the decision in Venn in that national law requires a public authority, the appellants, to have regard to “non-legislative matters” that are related to the environment. The fact that that law may also require non-environmental considerations to be taken into account does not prevent the claim from being an Aarhus Convention claim (ibid. 44).[70]GFL submits that grounds 1 and 2 are Aarhus Convention claims because the failure to take into account the matters to which they refer is based on(i) s.28 of the 2018 Act,(ii) the appellants’ policy to have regard to environmental matters, or(iii) the appellants’ decision choosing to take them into account which obliged them to do so lawfully (ibid. para.53).[71]WWF goes further in its written submissions by suggesting that Art.9(3) encompasses all national rules which have some bearing, or are capable of producing some effect, upon the environment (para.7(a)), or which might affect the environment in some way (para.12), or which have the potential to produce an environmental impact (para.25). Indeed, they say that because the 2018 Act has the potential to impact upon the environment, that is sufficient to bring it, seemingly referring to the Act as a whole, within the scope of Art.9(3).

Discussion

[72]The determination of whether a claim is an Aarhus Convention claim must be made at the earliest opportunity (CPR 46.28(2)). Typically, this will be when a judge first considers whether to grant the application for permission to apply for judicial or statutory review. Although a decision on whether to grant permission often turns upon the arguability of the grounds of challenge, the issue of whether a claim falls within Part IX of CPR 46 does require a definitive assessment by the court of whether that claim is an Aarhus Convention claim within the meaning of CPR 46.24(2)(a). It would be insufficient for a judge merely to say that it is arguable that the claim is an Aarhus Convention claim.[73]CPR 46.25(1) requires a claimant to state whether the claim is said to be an Aarhus Convention claim. Form N461 also requires the claimant to give reasons in support of that statement. So ordinarily a claimant should explain whether the claim is said to fall within paragraph (1), (2), or (3) of Art.9 and why that is so. Where a claimant relies upon Art.9(3) he will need to explain in the claim which provisions(s) of national law relating to the environment are said to be contravened. A defendant who wishes to deny that the claim is an Aarhus Convention claim must do so in his Acknowledgement of Service and set out his grounds for such denial (CPR 46.28(1)). “Relating to”[74]Article 9(3) obliges each Party to ensure that members of the public have access to administrative or judicial procedures for challenging acts and omissions, not only by public authorities, but also by private persons. Those acts or omissions must contravene provisions of national law relating to the environment.[75]It is necessary to understand the constituent parts of this phrase and also to read it as a whole. “Provisions of national law” and “the environment” are joined by a connector “relating to”. That connector’s degree of strength affects the meaning of the phrase as a whole.[76]It is well-established that the expression “relating to” can have a broader or narrower meaning depending upon its context (Svenska Petroleum Exploration AB v Lithuania [2006] EWCA Civ 1529; [2007] QB 886 at [137]). For example, the phrase can mean “referring to” (Torfaen County Borough Council v Douglas Willis Limited [2013] USKC 59; [2013] PTSR 1088). In some contexts the phrase can require a more substantial and direct connection (see e.g. Tooheys Limited v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602), while in others a broader meaning may be justified (R (Veolia ES Nottinghamshire Limited) v Nottinghamshire County Council [2010] EWCA Civ 1214; [2012] PTSR 185).[77]The case law dealing with the words “relating to” (and other similar connectors) shows that the nature and strength of the link will depend upon the surrounding language, the wider context of the legislation and its purpose. The purpose of Article 9(3)[78]In Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky Case C-240/09; [2012] QB 606 (“the Brown Bear” case) the Slovak Republic had decided that the applicant, an environmental protection organisation, did not have standing to take part in proceedings which resulted in a derogation from requirements in the Habitats Directive 92/43/EEC for the protection of the brown bear. The Court of Justice of the European Union (“CJEU”) held that Art.9(3), “although drafted in broad terms”, is “intended to ensure effective environmental protection”. Accordingly, it was for a Member State to have, as far as possible, procedural rules which give standing to an environmental protection organisation to challenge a decision liable to be held contrary to “EU environmental law” [45]-[52]. In that case the alleged contravention of a “national law relating to the environment” concerned the Habitats Directive, which plainly was for the protection of the environment.[79]In Venn the Court of Appeal adopted the CJEU’s explanation in the Brown Bear case that Art.9(3) applies to contraventions of national legal provisions which are for the protection of the environment ([2015] 1 WLR at [12] and [16]-[17]).[80]Similarly, in Deutsche Umwelthilfe C-873/19; [2023] Env. L.R. 17 the Grand Chamber of the CJEU decided that national rules on standing should not be so strict as to make it effectively impossible for an environmental association to challenge acts or omissions falling within Art.9(3) [67]-[69]. The Court held that an EU Regulation prohibiting devices which reduce the effectiveness of NOx control systems in diesel vehicles had been promulgated for the purposes of environmental protection and therefore fell within Art.9(3) of the Aarhus Convention ([51]-[52]).[81]In Austin the Court of Appeal held at [22] that a private law claim for nuisance can fall within Art.9(3) if it has a sufficiently close connection with “the particular environmental matters regulated by the [Aarhus] Convention” (emphasis added). This point was taken up by Lang J in the FCA Case at [36]-[37] and [46]. She decided that to fall within Art.9(3), the subject of a legal provision must be environmental or its purpose must be to protect or otherwise regulate the environment ([41] and [43]). In my judgment that statement accurately reflects the language of Art.9(3), read in the context of the Convention as a whole and the jurisprudence. Travaux préparatoires and the French text of the Aarhus Convention[82]Given the potential ambiguity in the meaning of “relating to” in Art.9(3), the court has been asked to consider the travaux préparatoires for the Convention.[83]The original draft of the Convention prepared by the Working Group of the Committee on Environmental Policy (dated 11 April 1996) suggested that there should be access to judicial and quasi-judicial proceedings concerned with “matters related to the protection of the environment”. It is worth noting that from the outset the purpose of the provision which became Art.9(3) was environmental protection. But initially it was expressed in terms of access to proceedings about matters relating to such protection, a plainly wider concept than proceedings to challenge acts or omissionscontravening national legal provisions relating to that protection.[84]When the Working Group reported on 11 November 1996 they recognised that the provisions on access to justice would require “careful wording” and the text “matters related to the protection of the environment” needed to be clarified.[85]In its report dated 7 July 1997, the Working Group said that there was general agreement on the inclusion of provisions covering procedures for dealing with public access to information and public participation in decision-making (which became Art.9(1) and (2)). But there was an issue as to whether in addition there should be a right to “access to justice in environmental matters generally”. Some delegations considered that the convention should not contain any additional provision on access to justice, because that would be inconsistent with the agreed scope of the convention. However, others suggested that there should be a right to challenge unlawful acts or omissions by private persons or public authorities “which contravened specific provisions of national environmental law”. Two options were put forward for further consideration. The second option referred only to acts or omissions by public authorities contravening provisions of the Convention. The first option was:
“which contravene provisions of its national environmental law”
The French text for that first option had exactly the same meaning:
“allant à l’encontre des dispositions du droit national de l’environnement.”
[86]Both options were on the agenda for the eighth meeting of the Working Group in December 1997. The Group’s report dropped the second option and altered the English text for the first option to use the same language as became the agreed wording of Art.9(3) of the Convention. The report does not give any explanation for that alteration.[87]However, the authentic French text of the agreed Convention remained the same as the draft text referred to in [85] above. In other words, the Working Group did not see any significant difference between the earlier English equivalent of the French text “which contravene provisions of national environmental law” and the final English version “which contravene provisions of its national law relating to the environment”. The meanings of “environmental” include “of or relating to the environment” and “concerned with or relating to the protection of the environment” (Oxford English Dictionary).[88]Thus, the travaux préparatoires and the French text confirm that “relating to” is used as a strong, not a loose or broad, connector. The relevant legal provision of national law should be to do with, or be concerned with, the environment. This is consistent with saying that to fall within Art.9(3) the purpose of the legal provision in question should be for the protection or regulation of the environment. The preparation of the Convention shows that the Parties were not prepared to agree that Art.9(3) should apply to any claim or matter related to the environment or the protection of the environment. The interpretation of Art.9(3) in [78]-[81] above is “confirmed “by the travaux preparatoires (in the sense explained in JTI Polska sp z oo v Jakubowski [2023] UKSC 19; [2024] AC 621 at [32]).”[89]It is important to keep in mind that the Court is being asked to interpret an international treaty which was the result of a deliberative process in which there were competing views between different nations. They will have carefully considered and discussed the language used in the drafts, but the text of the final Convention is the only thing that the many State Parties can be taken to have agreed. A domestic court should not depart from the natural meaning of the Convention unless that departure plainly reflects the intentions of all the participating States so that it can be assumed to have been equally acceptable to them all (R (Friends of the Earth Limited) v Secretary of State for International Trade [2023] EWCA Civ 14; [2023] 1 WLR 2011 at [46], citing Al-Malki v Reyes (Secretary of State for Foreign and Commonwealth Affairs intervening) [2019] AC 735 at [12])).[90]Similarly, the courts have made it clear that a broad purposive approach to the meaning of the Aarhus Convention must not be taken too far. For example, the public right of access to environmental information is not a general, unlimited right of access to any information held by a public authority which has a connection, however minimal, with one of the environmental factors in the definition of “environmental information”. The information sought must fall within the language used in the Convention (Department for Business, Energy and Industrial Strategy v The Information Commissioner [2017] EWCA Civ 844; [2017] PTSR 1644 at [16]-[17]). As the case law shows, it is that language which determines the purposes and ambit of the Convention and those purposes may explain the language used to delimit a particular article. Key provisions of the Aarhus Convention[91]Most of the discussion in the cases on Art.9(3) has concerned the provision of procedures for challenging decisions, acts or omissions of public authorities, usually in the context of judicial review. But contracting States are also required to provide access to procedures for challenging decisions, acts, or omissions of private persons. That is a strong indication that Art.9(3) does not have the expansive interpretation for which GFL and WWF contend. There is no reason to think that the Parties to the Convention intended to entitle members of the public to a procedure for challenging the decisions, acts or omissions of another citizen because the latter’s contravention of any national law might have an impact on the environment, or because those decisions, acts or omissions might have some effect on the environment.[92]The scope of Art.9(3) is no different when applied to the decisions, acts or omissions of public authorities. Whether a claim is brought against a person or a public authority, the key requirement is that the complaint is about a decision, act or omission which contravenes a national law which itself relates to the environment. It is insufficient for a claimant merely to say that his claim relates to the environment, or to the protection of the environment, or to an effect on the environment.[93]By contrast where the Convention requires Parties to provide measures which address the significant effects of activities or rules on the environment, it does so in express terms (see Art.2(3)(b), Art.6(1) and (6) and Art.8). For example, Art.6 provides for public participation in decisions on whether to permit development having a “significant effect” on the environment. The public is also to have access to information on the “significant effects” of that development on the environment (Art.6(6)(b)).[94]The expression “relating to the environment” appears in other parts of the Convention. Article 7 requires each Party to make provisions for the public to participate during the preparation of plans and programmes “relating to the environment”, and not simply “affecting the environment” (cf. Art.2(3)(b)). Article 5(3)(b) and (c) requires each Party to make certain environmental information available in electronic form, including the texts of legislation, or policies, plans and programmes on or relating to the environment. Article 5(5) requires each Party to take measures for disseminating inter alia legislation and policy documents “relating to the environment” and progress reports on their implementation. Article 5(7)(c) requires each Party to provide information on the performance of public functions or the provision of public services “relating to the environment” by government at all levels. There is no reason to think that “relating to” in these provisions means that, for example, performance information must be provided on all public functions or services which have an effect or effects on the environment, as opposed to only those functions or services which concern, or are to do with, the environment.[95]Article 9(3) is expressed to be “in addition and without prejudice” to Art.9(1) and (2). Article 9(1) and (2) are provisions providing access limited to specific types of environmental justice. Article 9(1) deals with contraventions of a right to access environmental information under Art.4. Article 9(2) deals in particular with challenges to the legality of any decision, act or omission subject to the provisions of Art.6 on public participation in processes for permitting certain types of project.[96]There is nothing in Art. 9 or the Convention read as a whole to indicate that the ambit of Art.9(3) extends to any decision in breach of any national law so long as that decision has an effect or impact on the environment. Instead, Art.9(3) only applies to a contravention of a legal provision which concerns, or is to do with, the environment, its protection or regulation. Case Law Venn v Seretary of Sate for Communities and Local Government[97]In Venn the claimant challenged a planning inspector’s decision to grant planning permission for the erection of a dwelling in the side garden of a neighbour’s house, on the ground that he had failed to have regard to a policy in a draft local plan which restricted development on garden land. The Court of Appeal decided that the claim fell within Art.9(3).[98]Sullivan LJ held that a broad interpretation is to be given to the term “environment”, based upon the wide ambit of the definition of “environmental information” in Art.2(3). Environmental information includes information on administrative measures affecting “the state of land” [11]. For the purposes of the present case I note that environmental information also includes information on measures affecting the air and the atmosphere.[99]Sullivan LJ accepted at [12] and [16]-[17] that the purpose of a national law to which Art.9(3) applies must be the protection of the environment (see [78]-[79] above). The Brown Bear case involved taking a sufficiently broad approach to standing to ensure that effective environmental protection provided by the relevant “environmental law” was not undermined [12].[100]The Secretary of State submitted that the claim did not fall within Art.9(3) on the ground that the claimant was not challenging a decision which contravened a provision of national law relating to the environment (see [14]). Instead Ms Venn had claimed that the Inspector had failed to comply with the obligation in s.70(2) of the Town and County Planning Act 1990 (“TCPA 1990”) to have regard to all material considerations. The Secretary of State’s case was that s.70(2) was not a law relating to the environment. It was to be distinguished from “specifically environmental laws” such as the statutory nuisance provisions in the Environmental Protection Act 1990.[101]Sullivan LJ said that the Secretary of State’s argument might have had force if Art.9(3) had been a UK enactment [15]. But instead it formed part of an international treaty under which each Party had agreed to give effect to Art.9 within the framework of its national legislation and could do so in different ways.[102]Parliament had chosen to implement much of the UK’s environmental protection through the planning system and, in some cases, the environmental impact assessment regime [15]. Most of the detail of that protection is contained not in legislation but in policies, both national policies in the Government’s National Planning Policy Framework (“NPPF”) and local policies in development plan documents adopted by local planning authorities. Section 70(2) of the TCPA 1990 requires decision-makers to have regard to those policies. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires them to determine planning applications and appeals in accordance with the statutory development plan unless material considerations indicate otherwise [16].[103]Given that a great deal of the UK’s environmental protection is provided in this way, it would deprive Art.9(3) of much of its effect if a distinction were to be drawn between policies which do relate to the environment and the law which does not directly do so, but requires them to be taken into account in accordance with s.70(2) and s.38(6). This combination of law and policy, with the law requiring that policy be prepared, taken into account and in some instances followed, comprises a “national law relating to the environment” (Venn [17]). Accordingly, a claim that a decision-maker had failed to comply with a legal provision requiring him to take into account or apply a policy for the protection of the environment falls within Art.9(3). The policy forms part of that national legal framework relating to the environment.[104]Properly read, there is nothing in Venn which gives a broad meaning to the phrase “relating to”. Instead “provisions of national law relating to the environment” can include a policy which that national law requires to be taken into account, in so far as the policy is for the protection (or regulation) of the environment.[105]Sullivan LJ stated at [11] that the concept of “environmental information” and hence “environment” in the Aarhus Convention is “arguably broad enough” to cover most, if not all, planning issues. But that is not the same thing as saying that a “challenge” to a particular decision, act, or omission falls within Art.9(3). To engage Art.9(3), a challenge must allege a contravention of a legal provision relating to the environment, that is for the protection (or regulation) of the environment. The clear implication of Venn is that an allegation that a decision-maker has failed to take into account a material consideration in breach of s.70(2) of the TCPA 1990 without more does not fall within Art.9(3). Section 70(2) is not itself a legal provision “relating to the environment”. Such a claim does not fall within Art.9(3) unless, in addition, the material consideration left out of account was a policy (or perhaps some other measure) for the protection (or regulation) of the environment. What Sullivan LJ envisaged was that the policies applicable to most, if not all, planning applications will include some policies for the protection (or regulation) of the environment.[106]It should be remembered that in Venn the only provision of national law which the claimant said had been contravened was s.70(2) of the TCPA 1990. The decision in Venn leaves open the possibility that a claim for judicial or statutory review in a planning case may be based upon other provisions of our national law which do relate to the environment.[107]GFL’s submission that in Venn the Court of Appeal rejected the notion that Art.9(3) only relates to “environmental laws” is wrong. Once it is appreciated that a national legal provision “relating to the environment” refers to a law which concerns or is to do with the environment, for the purposes of environmental protection or regulation, it is obviously permissible to use the term “environmental law” as shorthand. A good deal of the jurisprudence does so. In addition the expression “environmental law” is used by the UN’s Economic Commission for Europe when explaining Art.9(3) in its Implementation Guide to the Aarhus Convention (2nd edition (cited in Austin at [15] and [18]).[108]The Implementation Guide also helpfully explains that Art.9(3) may apply where the relevant legal provision relating to the environment forms only part of an enactment otherwise dealing with non-environmental issues. For example, a provision specifically for the protection of the environment against pollution from ships may be contained within an enactment of general maritime law unconnected with the environment. Austin v Miller Argent (South Wales) Limited[109]The claimant proposed to bring a claim in private nuisance against the operator of an opencast coal mine alleging that the dust and noise from its operations unreasonably interfered with the enjoyment of her home nearby. She contended that the claim fell within Art.9(3) and (4) of the Aarhus Convention to support her application for a protective costs order [2]-[3]. The defendant argued thatprivate nuisance claims are simply intended to protect private property rights and therefore fall outside Art.9(3) [14]-[15].[110]The Court of Appeal held that it would be wrong to exclude all claims of private nuisance from the scope of Art.9(3), irrespective of the potentially significant public interest in wider environmental benefits which they may bring if successful. Private individuals can play a valuable role in helping to ensure adherence to good environmental standards even if in the process they are also vindicating a private interest [17]. It is unrealistic to expect the powers conferred upon public authorities to be sufficient to achieve the objectives of the Convention and so action by individuals is a valuable additional method for ensuring the maintenance of high environmental standards [18]. In addition, the UK had accepted before the Compliance Committee that the law of private nuisance formed part of this country’s law relating to the environment [19]-[20]. It follows that the law of nuisance may serve the additional purpose of protecting the environment, as well as protecting the enjoyment of property.[111]Accordingly, private nuisance claims are in principle capable of falling within Art.9(3). But actions in private nuisance relating, for example, to damage from tree roots or water leakage from adjoining premises, concern only the claimant’s property and have no wider public interest at all. There must be a significant public interest in the claim [21].[112]Consequently, the Court held that it must be shown that a claim in private nuisance meets two requirements to fall within Art.9(3). First, the nature of the claim must have a “close link with the particular environmental matters regulated by the Convention”. Second, the claim must, if successful, confer significant public environmental benefits [22]. Ultimately, the Court held that the claim in that case fell outside the scope of Art.9(3) because of the limited public benefit it would achieve [46].[113]Thus, Austin is consistent with the jurisprudence which holds that the purpose of a national law falling within the scope of Art.9(3) must be to protect or regulate the environment. R (Friends of the Earth Limited) v Secretary of State for International Trade[114]Thornton J granted permission for the bringing of a judicial review against the decisions of the Secretary of State and others under the Export and Investment Guarantees Act 1991 to provide $1.15bn of export finance for the development of offshore gas production facilities in Mozambique. She then went on to decide that this was an Aarhus Convention claim ([2021] EWHC 2369 (Admin)). The claimant contended that the defendants erred in treating the project as being consistent with the commitments of the UK and/or Mozambique under the Paris Agreement and failed to comply with their Tameside duty to obtain relevant information on that subject. The circumstances of the case were addressed in more detail by the Court of Appeal in relation to the application for judicial review ([2023] EWCA Civ 14; [2023] 1 WLR 2011).[115]The defendants submitted that the claim fell outside Art.9(3) because firstly, it was directed at international law and not UK law and secondly, the decision challenged was a finance decision.[116]In rejecting the first point Thornton J said that the issue was not whether the defendants should have acted compatibly with international law in circumstances where they chose not to do so; but whether the defendants, having decided to comply with the Paris Agreement, had properly directed themselves on national law, including whether they took into account essential relevant considerations and not proceed on the basis of errors of fact [9]. In other words the judge relied upon contraventions of public law principles.[117]When the judge addressed the defendants’ second point, she went back to Venn. There the court had accepted that the contravention of a statutory requirement to take into account or apply a policy for environmental protection, was sufficient to engage Art.9(3). The judge decided that the circumstances in the FoE case were analogous to Venn. The Secretary of State had a broad discretion under the 1991 Act to make funding decisions. She exercised a statutory power to require an Advisory Council to advise her on climate change issues. There was a policy on environmental due diligence for funding decisions to take into account government policy on environmental impacts and to comply with relevant international agreements. The funding body assessed risks and impacts through an Environmental, Social and Human Rights Review and a Climate Change Review. The judge concluded that to draw a distinction between the 1991 Act (which did not relate to the environment) and the arrangements in place for funding (which did relate to the environment) would conflict with Art.9(3), by analogy with Venn ([11]-[12]).[118]On that point the judge also drew some support at [12] from a decision of the CJEU in ClientEarth v European Investment Bank Case T-9/19 [2021] CMLR 17 (“the EIB case”) at [125] (see [120] below), although she rightly noted that the decision was not binding on her. The judge added that, by way of a cross-check, it was hard to envisage a more quintessentially “environmental claim” than the case before her [13].[119]With great respect, the decision in the Friends of the Earth case is inconsistent with the analysis in [74] – [113] above of the language, purpose and ambit of Art.9(3), the key provisions of the Convention and the decision in Venn and Austin. I return to this subject in [150] below. R (ClientEarth) v Financial Conduct Authority[120]Under the Financial Services and Markets Act 2000 the FCA approved a shares prospectus for an oil and gas company, Ithaca Energy plc. Regulations required the prospectus to contain adequate information relevant to potential investors making an informed assessment about the investment opportunity, including risk factors relating to that business. ClientEarth challenged the FCA’s decision contending that it had erred in approving a prospectus which did not contain an assessment of Ithaca’s climate-related financial risks, in terms of probability of occurrence and the magnitude of their negative impact on the company. It was said that the FCA had misinterpreted the requirements of the legislation and/or had acted irrationally in deciding to approve the prospectus.[121]Lang J held that the claim did not fall within Art.9(3) of the Aarhus Convention. She stated that although the words “relating to” may be interpreted broadly, a purposive approach indicates that a mere connection with the environment is insufficient. She referred by analogy to Department for Business, Energy and Industrial Strategy v The Information Commissioner (see [90] above), dealing with the public’s right of access to environmental information, to emphasise that there must be a focus on the language of the legislation (or treaty) and a “purposive approach adopted, so as to avoid an overly broad interpretation which would encompass any information with a connection to the environment” [36]. In my judgment, this approach to interpretation is appropriate when considering the scope of Art.9(3). Indeed it can be seen in action in cases such as Venn and Austin (to which Lang J referred at [37]).[122]Lang J held that the relevant statute and regulation were concerned with investor protection and the proper functioning of the market. They did not “form part of the UK’s environmental law”. “Their subject is not environmental, and their purpose is not to protect or otherwise regulate the environment” ([39]-[41]). Some of the risks disclosable under the legislation might arise from environmental circumstances. For example, a company’s assets might be at risk from flooding or subject to changes in environmental regulation. But the purpose of the legislation was to ensure that potential investors were informed about risks of financial relevance to the shares being issued. It was not to protect or regulate the environment ([42]-[43]).[123]Lang J also decided that the notion that disclosure of climate change financial risks would contribute to making capital flows consistent with a net zero pathway was too incidental and remote to bring the claim within Art.9(3). Looking at the matter more widely, not just at the nature of the legal provisions, but also the nature of the contravention alleged, the claim did not have a sufficiently close connection to environmental matters regulated by the Aarhus Convention ([44]-[45]). ClientEarth v European Investment Bank[124]GFL relied upon the EIB case. That the decision was concerned with Regulation 1367/2006 (“the 2006 Regulation”), which was introduced by the EU to apply the Aarhus Convention by laying down rules for Community institutions and bodies (Art.1). I note in passing that it is common ground between the parties that(a) the 2006 Regulation is “assimilated law” by virtue of s3(1) of the European Union (Withdrawal) Act 2018 and (b)the CJEU’s decision in the EIB case is not “assimilated case law”. The main issue was whether the Bank’s approval of a loan for a biomass power generation project was an administrative act by an EU institution under “environmental law” as defined in the Regulation, so as to entitle a NGO to an internal review of that approval under Art.10.[125]Article 2(1)(f) of the 2006 Regulation defined “environmental law” to mean EU legislation which, irrespective of its legal basis, contributes to the pursuit of the objectives of EU policy on the environment as set out in the Treaty on the Functioning of the European Union (“TFEU”) (see Art.191). Those objectives are wider than the matters covered by Art.2(3) of the Aarhus Convention. For example the former refers to protecting human health as a freestanding objective, whereas the latter refers to “the state of human health and safety” in so far as it may be affected by the state of the environment. Not surprisingly the CJEU decided that the EU’s environmental objectives are not limited to matters relating to the protection of the natural environment in the strict sense [118].[126]Self-evidently the Aarhus Convention represents what the contracting Parties to that treaty were able to agree upon. Article 3(5) declares that a Party may provide inter alia wider access to environmental justice than is required by the Convention. How a Party, including the EU, may choose to legislate in this field may not be an aid to the interpretation of the Convention itself. However, I do not believe that the position this Court should take on the EIB case requires any comparison of EU law with the Aarhus Convention.[127]The passage in the EIB case upon which Thornton J relied in her judgment in Friends of the Earth appears at [125]:
“Lastly, it is clear from the wording and scheme of Arts. 9(3) and (4) of the Aarhus Convention, in the light of which the Aarhus Regulation must, so far as possible, be interpreted (see [107] above), that all acts of public authorities which run counter to the provisions of environmental law should be open to challenge. Thus, access to justice in environmental matters should not be limited solely to acts of public authorities that have as their formal legal basis a provision of environmental law.”
[128]This passage needs to be read in the context of the issues which the CJEU had to resolve. The EIB had adopted eligibility criteria relating to the environment for use in decision-making on applications for finance for energy projects. An important part of the screening process for such projects was the application of an emissions performance standard, so that an application not in line with EU targets for climate change could be ruled out ([28]-[31]). ClientEarth sought an internal review under the Regulation because they disputed the assessment in which the loan eligibility criteria had been applied ([55] et seq).[129]The CJEU pointed out that it was well-established law that those eligibility criteria limit the exercise of EIB’s discretion in approving loans. EU Courts take those internal rules into account when determining the legality of the Bank’s acts ([123]). For those reasons, the rules governing the EIB’s grant of loans for the purpose of achieving the environmental objectives of TFEU were equivalent to EU legislation in the field of environmental law as defined by Art.2(1)(f) of the 2006 Regulation ([124]). The fact that the “formal legal basis” for the making of those eligibility rules for loan finance was the EIB’s statute, which did not itself form part of EU environmental law, did not prevent those rules from being treated as environment law. Plainly, those rules were made for the purpose of protecting the environment and to ensure that loan approvals conformed to that objective.[130]On a proper reading of the EIB case, it can be seen that the decision is similar to Venn. They both involved a legal requirement when reaching a decision under non-environmental legislation, to apply either a policy or an eligibility rule, the purpose of which was to protect the environment. For the purposes of the issues in this appeal, the EIB case does not add anything of substance to Venn.[131]Accordingly, the EIB case does not lend any support to Thornton J’s decision that the claim brought in Friends of the Earth fell within Art.9(3) of the Convention. The real issues in relation to that decision are whether the case was truly analogous to Venn and whether public law principles are to be treated as part of this country’s law relating to the environment. Public law principles and environmental law[132]Public law principles regulate the legality of the administrative actions of public authorities exercising a wide range of functions in many areas of public service, not simply environmental protection and regulation. Public law principles do not form part of our law relating to the environment. Their purpose is not to protect or regulate the environment. Instead, they form an important part of the rule of law within the constitutional separation of functions between Parliament, the Executive and the Courts. Where a principle of public law is contravened, it would be wrong to say that that in itself amounts to a breach of environmental law, or for that matter any other type of law in the context of which the decision or action under challenge has been taken or carried out.[133]Some situations are straightforward and require little discussion. For example, there are cases where the principles in Venn genuinely do apply. In other cases it may be alleged that there has been a contravention of a freestanding statutory requirement for the protection of the environment. Sometimes such a requirement may cut across or regulate the performance of other statutory functions, such as the “appropriate assessment” regime which the Conservation of Habitats and Species Regulations 2017 (SI 2017 No. 1012) imposes on a range of statutory functions. In addition, a law for the protection or regulation of the environment may be contravened through a breach of a public law principle, such as an irrational exercise of discretion (see [63] above). Such cases fall within Art.9(3).[134]But the present case raises this issue: does Art.9(3) of the Aarhus Convention apply where a claim alleges that a defendant’s decision or act under a legal provision not relating to the environment is vitiated by a public law error in some way connected to the environment or an effect on the environment? It is difficult to reconcile some of the decisions in the High Court, notably Friendsof the Earth and the FCA case, and indeed the decision in the present case.[135]Typically, the question posed in [134] above arises where a claimant alleges that the decision-maker failed to take into account a material consideration, such as the effect of his decision on the environment or some particular environmental issue, for example, climate change. Alternatively, in some cases a claimant may allege that the decision-maker acted irrationally in the manner in which he dealt with an environmental issue, having chosen to take the matter into account. GFL and WWF maintain that a claim raising any public law error in some way connected with the environment falls within Art.9(3), even if it has been taken under a legal provision which does not itself relate to the environment. I disagree.[136]In R (Friends of the Earth Limited) v Secretary of State for Transport [2021] PTSR 190 the Supreme Court set out key principles on a decision maker’s obligations to have regard to relevant considerations ([116]-[121]). First, there are considerations which a statute requires, whether expressly or impliedly, a decision-maker to take into account. Second, there are considerations which a decision-maker must take into account, because they are not merely relevant but are “obviously material”, in the sense that it would be irrational not to take them into account. Third, there are considerations which are simply relevant and a decision-maker may choose whether or not to take them into account. However, in relation to that third category, a decision-maker is not obliged to go through every matter which could be relevant and to decide whether or not to take them into account. In my judgment it follows that the mere fact that a decision-maker does not take into account a consideration in the third category cannot found a legal challenge. Finally, whether a decision-maker is required to take a consideration into account or whether he chooses to do so, the weight he gives to that matter, including whether to give it no weight, are matters for him, subject to review on the ground of irrationality.[137]In determining the extent to which Art.9(3) may apply to any of the above scenarios, an essential question is whether the claimant is able to allege that the defendant has contravened a national legal provision for the protection or regulation of the environment. That will depend upon the wording, context and purpose of the provision under which the defendant has acted.[138]Take for example a defendant which has acted under a statute the purposes of which are not in general for the protection or regulation of the environment. The legislation may nonetheless contain a provision which requires a particular factor to be taken into account and the language or context demonstrates that the object of that provision is to protect or regulate the environment. In that situation Art.9(3) will most likely be engaged. But another piece of non-environmental law may simply impose a general obligation to take into account all relevant considerations without more. Venn indicates that a provision of that kind does not engage Art.9(3). I agree. The purposes of such a provision is not to protect or regulate the environment.[139]An essential part of the reasoning in Venn was based upon the Court’s understanding that Parliament had chosen to implement much of the UK’s environmental protection through a statutory scheme, namely planning legislation, although that has the broader purpose of controlling land use by reference to planning considerations. In particular, Parliament envisaged that that protection would be provided through a requirement to apply relevant policies for the protection or regulation of the environment at both national and local level. Venn applies to such policies in two ways. Statutory development plan policies fall into the first category of material considerations, that is mandated considerations (see [136] above). But draft development plan policies, and national policies in the NPPF, fall outside that category. They must have been treated by the Court of Appeal as potential “obviously material considerations” in the second category.[140]Accordingly, although s.70(2) of the TCPA 1990 and s.38(6) of the 2004 Act impose obligations to take into account statutory development plan policies and, in general, material considerations, but not environmental matters specifically, the court was able to infer that Parliament intended that environmental protection would be achieved through those provisions combined with relevant policies for the protection or regulation of the environment.[141]However, it cannot be assumed that the Court’s reasoning in Venn, which was specific to the nature of the well-established role played by the planning regime in environmental protection, is transferrable to open-ended statutory requirements to take into account relevant considerations in other legislation enacted for non-environmental purposes, such as funding for overseas projects, financial market controls or international trading arrangements. Certainly, no argument was presented to us in the present case, which could justify reading across this critical part of the reasoning in Venn to the 2018 Act. To read across Venn while disregarding this essential part of its ratio would result in an overly broad application of Art.9(3) and by the same token Art.9(4).[142]What should be the court’s approach where a claimant alleges that a defendant, when acting under a legal provision not relating to the environment, failed to take into account an obviously material consideration, such as the alleged effect of his decision or action upon an environmental interest or issue? Here, by definition, the reasoning in Venn does not apply. As previously stated, the purpose of a bare principle of public law is not to protect or regulate the environment. Its purpose is to regulate the lawfulness of decisions, actions or omissions of public authorities, irrespective of the various functions they carry out. Therefore, a principle of public law, without more, does not form part of our law relating to the environment. It does not become so by being applied in a factual matrix which involves environmental impact or effect, nor could that matrix alter the non-environmental nature of the legal provision under which the defendant acts. Article 9(3) is not engaged. Indeed, if Art.9(3) were to be treated as applying to this type of situation, then it would have been unnecessary in Venn for the Court of Appeal to have relied upon the reasoning in [12] to [17] of its decision. Instead, the Court could simply and directly have said that a public law error in a decision which has an effect upon the environment, or an environmental issue, is sufficient to engage Art.9(3), irrespective of whether the legal regime under which the defendant acted served the purpose of protecting or regulating the environment. The Court did not do so.[143]The same analysis applies to the situation where an authority acting under a non-environmental legal provision takes into account an obviously material consideration or simply a relevant consideration, but acts irrationally in the handling of that matter. The mere fact that this concerns the environment, or an effect upon the environment, does not turn the breach of a public law principle into a breach of national environmental law. It does not alter the non-environmental nature or purpose of that legal provision. In such circumstances, Art.9(3) is not engaged. The judge’s decision in the present case[144]The judge accepted that the relevant purpose of the 2018 Act is to regulate customs duty and the importation of goods, not the environment. But she then relied upon s.28 of the Act (see ground 3 of the judicial review) to decide that the claim fell within Art.9(3) so as to attract costs protection under Part IX of the CPR 46. She considered that s.28 required the appellants to have regard to the UNFCCC and to the Paris Agreement. She said that those international obligations were directly concerned with environmental issues.[145]I respectfully disagree with the judge’s analysis. Parliament has not given any indication that a purpose of s.28, in contrast to the other provisions of the 2018 Act, is to protect or regulate the environment. Section 28 simply requires the Minister or authority concerned to have regard to international arrangements to which the UK is a party that are relevant to the function being exercised. In essence it is the same as any general, statutory obligation to have regard to relevant considerations, such as that contained within s.70(2) of the TCPA 1990. Such a provision gives no indication that its purpose is to protect or regulate the environment. Unlike the statutory matrix in Venn, there is nothing to suggest that Parliament treated the general language of s.28 as imposing a requirement, or providing a mechanism, for the protection or regulation of the environment.[146]Furthermore, s.28 only provides that the Minister or other authority should have regard to any arrangements relevant to the function being exercised. Given the range of measures which may potentially be relevant under s.28, it is not surprising to find that the 2018 Act does not impose any requirements as to how the decision-maker should deal with any such arrangements. The Explanatory Notes state that WTO agreements are an example of the material which will be taken into account. But there is no indication as to how that would constrain or affect, if at all, the function being carried out. The object of s.28 is simply to ensure that the decision-maker is aware of, or advised of, such arrangements. He can then decide for himself whether they should influence the decision he proposes to take, and, if so, how. It is impossible to treat the obligation in s.28, and any potential application to environmental arrangements, as amounting to a legal provision for the protection or regulation of the environment.[147]In any event, Art.4(1)(f) of the UNFCCC essentially contains only a high-level requirement to take climate change considerations into account in relevant social, economic and environmental policies and actions and to employ appropriate methods, such as impact assessments, with a view to minimising inter alia adverse effects on the environment. How that is done is a matter of evaluative judgment for the decision-maker. There is no doubt that the Secretary of State and HM Treasury did take climate change considerations into account when deciding to make the 2023 Regulations. The issue here is about the way in which that was done. Ultimately this depends upon an irrationality challenge. This also applies to the alleged failure to comply with a Tameside duty of enquiry (R (Khatun) v Newham London Borough Council [2005] QB 37).[148]Accordingly, this is a challenge which amounts to allegations of breaches of public law principles and not any breach of this country’s law relating to the environment or environmental law. It therefore falls outside the scope of Art.9(3) of the Aarhus Convention. Any costs protection could only be considered through an application for a costs protection order.[149]Although Lang J did refer in her judgment to the decision of Thornton J in R (Friends of the Earth Limited) v Secretary of State for International Trade [2021] EWHC 2369 (Admin) she does not appear to have relied upon that decision in order to support her own conclusions. Nevertheless, it is necessary to address the appellants’ submissions on that decision.[150]I am unable to accept that the claim in the Friends of the Earth case fell within Art.9(3) of the Aarhus Convention. For the reasons explained in [139]-[142] above, Thornton J was wrong to treat the circumstances of that claim as analogous to Venn. The defendants acted under a statutory regime which was not concerned with, or for the purposes of, the protection or regulation of the environment. It was not suggested that there was any provision in that legislation which required environmental effects, and specifically effects on climate change, to be taken into account, with the purpose of protecting or regulating the environment. Nor was it suggested that there was any legal provision which had the effect of requiring policies for that purpose to be taken into account. The Secretary of State chose to take advice on climate change. The claim as analysed by the judge simply involved the application of principles of public law. She did not identify any contravention of a provision of national law for the protection of the environment so as to engage Art.9(3) of the Aarhus Convention. The decision of the CJEU in the EIB case did not lend any support to the judge’s conclusion for the reasons already set out. Finally, in my judgment, it was inappropriate to approach the issue of whether the claim fell within Art.9(3) by asking whether the matter was an “environmental claim”.[151]Likewise, it would be wrong for a judge simply to ask whether a claim or ground of challenge is to do with the protection of the environment or with the effect of a decision or legal provision on the environment. Instead, it is necessary to return to the language of the Convention and its purposes as established in the case law, and to have in mind the principles for the interpretation of international treaties (see e.g. [88]-[90] and [121] above). Put in a nutshell, what matters is whether the purpose of the national law that has allegedly been contravened is to protect or regulate the environment, not, whether the decision being challenged has an effect on, or some connection with, the environment. Accordingly, I accept that theFCA case was correctly decided in relation to the ambit of Art.9(3).

Conclusion

[152]For these reasons I would allow the appeal. LORD JUSTICE STUART-SMITH[153]I agree. LORD JUSTICE COULSON[154]I also agree.

Cited in 3 later judgments