“13. Duty to prepare proposals and policies for meeting carbon budgets (1) The Secretary of State must prepare such proposals and policies as the Secretary of State considers will enable the carbon budgets that have been set under this Act to be met. (2) The proposals and policies must be prepared with a view to meeting— (a) the target in section 1 (the target for 2050), and (b) any target set under section 5(1)(c) (power to set targets for later years).”
“14. Duty to report on proposals and projects for meeting carbon budgets (1) As soon as is reasonably practicable after making an order setting the carbon budget for a budgetary period, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting the carbon budgets for the current and future budgetary periods up to and including that period. (2) The report must, in particular, set out— (a) the Secretary of State's current proposals and policies under section 13, and (b) the time-scales over which those proposals and policies are expected to take effect.” (b) any target set under section 5(1)(c) (power to set targets for later years).” (a) the Secretary of State's current proposals and policies under section 13, and (b) the time-scales over which those proposals and policies are expected to take effect.”
“34. In my judgment, the contention that the 2008 Act has been breached does not get off the ground. Under section 13, the Third Defendant has prepared proposals and policies that he considers will enable the carbon budgets that have been set under the Act to be met. Under section 58, he has laid programmes before Parliament setting out objectives, proposals, policies and timescales regarding adaptation to climate change. Disagreement with the merits of those proposals and policies (etc.) does not give rise to an arguable case that there has been a breach of the statutory duties. It also seems to me that the claim overlooks an important part of the structure created by the 2008 Act. The Act created the CCC precisely for the purpose of providing independent advice and oversight to Government. The requirement of section 36 for the CCC to consider whether budgets and targets are likely to be met presupposes that the CCC may on occasion find that they are not. The advice to be given by the CCC is expressly not binding on the Government but the Government is expressly required to have regard to it. 36. Evidentially, the Claimants rely to a very substantial extent on criticism of Government contained in CCC reports. But that criticism, far from demonstrating that the 2008 Act is not being complied with, demonstrates that the 2008 Act is working as Parliament intended. Parliament plainly contemplated that the periodic provision of reports and responses would feed into an evolution of policy over many years while successive Governments grapple with the vast and unprecedented challenge of climate change.”
“(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence[2006] 1 WLR 3213 ;[2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. (2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department[2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)). (3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health[2005] EWCA Civ 154 at [26]-[27] per Sedley LJ. (4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a “rearguard action”, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing[2008] EWHC 2062 (Admin) at [23]-[24]. (5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions[2008] EWHC 3158 (Admin) , as follows: (i) The public authority decision maker must be aware of the duty to have “due regard” to the relevant matters; (ii) The duty must be fulfilled before and at the time when a particular policy is being considered; (iii) The duty must be “exercised in substance, with rigour, and with an open mind”
“[77] Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para [34]) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision. [78] The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield’s submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.” (ii) At paragraphs [89]-[90]: “[89] It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council[1977] AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para [85]): ‘….the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons’ disabilities in the context of the particular function under consideration.’ [90] I respectfully agree……..”
“Nothing we say should be thought to diminish the importance of proper and timely compliance with the PSED. But we have strong reservations about the proposition that the court should necessarily exercise its discretion to quash a decision as a form of disciplinary measure. During the course of argument, [counsel for the claimant] accepted that if an Assessment, subsequently carried out, satisfied the court, there would be no point in quashing the decision if the effect of doing that and requiring a fresh consideration would not have led to a different decision. We think this was a correct concession. The court’s approach should not ordinarily be that of a disciplinarian, punishing for the sake of it, in these circumstances. The focus should be on the adequacy and good faith of the later Assessment, although the court is entitled to look at the overall circumstances in which that Assessment was carried out.” (i) The public authority decision maker must be aware of the duty to have “due regard” to the relevant matters; (ii) The duty must be fulfilled before and at the time when a particular policy is being considered; (iii) The duty must be “exercised in substance, with rigour, and with an open mind”
“[77] Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para [34]) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision. [78] The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield’s submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.” (ii) At paragraphs [89]-[90]: “[89] It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council[1977] AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para [85]): ‘….the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons’ disabilities in the context of the particular function under consideration.’ [90] I respectfully agree……..”
“Nothing we say should be thought to diminish the importance of proper and timely compliance with the PSED. But we have strong reservations about the proposition that the court should necessarily exercise its discretion to quash a decision as a form of disciplinary measure. During the course of argument, [counsel for the claimant] accepted that if an Assessment, subsequently carried out, satisfied the court, there would be no point in quashing the decision if the effect of doing that and requiring a fresh consideration would not have led to a different decision. We think this was a correct concession. The court’s approach should not ordinarily be that of a disciplinarian, punishing for the sake of it, in these circumstances. The focus should be on the adequacy and good faith of the later Assessment, although the court is entitled to look at the overall circumstances in which that Assessment was carried out.”
“Furthermore, effective protection of the rights of individuals from serious adverse effects on their life, health, well-being and quality of life requires that the above-noted mitigation measures be supplemented by adaptation measures aimed at alleviating the most severe or imminent consequences of climate change, taking into account any relevant particular needs for protection. Such adaptation measures must be put in place and effectively applied in accordance with the best available evidence (see paragraphs 115 and 119 above) and consistent with the general structure of the State’s positive obligations in this context (see paragraph 538 (a) above).”
“Failure by the State to comply with this aspect of its positive obligations would suffice for the Court to conclude that the State failed to comply with its positive obligations underArticle 8 of the Convention without it being necessary to examine whether the ancillary adaptation measures were put in place (see paragraph 552 above).”
“These lacunae point to a failure on the part of the respondent State to fulfil its positive obligation derived from Article 8 to devise a regulatory framework setting the requisite objectives and goals (see paragraph 550 (a)-(b) above).”
“the UK government’s ambition for NAP3 is to have a clear set of objectives for adaptation, and a systematic and robust set of policies, programmes and investments to meet those objectives, with measurable metrics, timelines and progress indicators, all linked to the sixty-one risks set out in our risk assessment.”
“Each chapter is supported by an annex that includes objectives for addressing each risk and opportunity (risk reduction goals), and proposals and programmes to achieve those objectives (actions), in accordance with section 58 of the CCA 2008. Timescales for introducing these proposals and policies are set out under individual risk actions.”
“Risk reduction goal Improve the nation’s resilience to future flood and coastal erosion risks, thereby reducing the risk of harm to people, the environment and the economy.”
“Actions 1. Defra and the Environment Agency will invest£5.2 billion to build new flood and coastal defences to better protect communities across England by 2027. This will include projects which focus on better protection for coastal communities.”
“Risk reduction goal Reduce the risk of high temperatures to health and wellbeing, through regulation, planning policy, retrofit, research and guidance. Department for Energy Security and Net Zero (DESNZ) will ensure that measures to deliver net zero and retrofit existing buildings, as described in the Heat and Buildings Strategy, will seek to minimise overheating risks and maintain temperatures conducive to good health. This will result in an existing building stock that is appropriately retrofitted to deliver net zero by 2050 and is more resilient to climate hazards.”
“Risk reduction goal Minimise the impact of climate change on the quality, effectiveness, and timeliness of health and social care delivery.”
“As we have previously set out, we have provided guidance to risk-owning departments on how to ensure their policies and actions within the NAP3 document pay due regard to the Public Sector Equality Duty. No departments have come back to indicate any issues with regard to this requirement.”
“NAP3 falls far short of what is needed. NAP3 lacks the pace and ambition to address growing climate risks, which we are already experiencing in the UK. It fails to set out a compelling vision for what the government’s ‘well adapted UK’ entails, and only around 40% of the short-term actions to address urgent risks identified in the last Climate Change Risk Assessment are progressed. The lack of a measurable vision will prevent effective delivery of adaptation by public agencies, local authorities, and the private sector, as well as inhibiting a clear assessment of progress.”
“Adaptation policy is currently coordinated across government by the Department for Environment, Food and Rural Affairs (Defra). However, many of the risks that need to be addressed sit with other government departments and local authorities. Despite the best efforts of officials, the machinery of government has been ill-suited to ensure that adaptation reaches the top of other departments’ priority lists and is sufficiently well understood and resourced in local government. This has been an important factor in the limited success of the NAPs conducted to date and without change it is difficult to imagine future NAPs breaking the cycle of underwhelming policy responses by fostering true ownership of risks across all departments.”
“As we have previously set out, we have provided guidance to risk-owning departments on how to ensure their policies and actions within the NAP3 document pay due regard to the Public Sector Equality Duty. No departments have come back to indicate any issues with regard to this requirement.”
“…we have strong reservations about the proposition that the court should necessarily exercise its discretion to quash a decision as a form of disciplinary measure. During the course of argument, [counsel for the claimant] accepted that if an assessment, subsequently carried out, satisfied the court, there would be no point in quashing the decision if the effect of doing that and requiring a fresh consideration would not have led to a different decision. We think this was a correct concession. The court’s approach should not ordinarily be that of a disciplinarian, punishing for the sake of it, in these circumstances. The focus should be on the adequacy and good faith of the later assessment, although the court is entitled to look at the overall circumstances in which that assessment was carried out.”