A Runaway Decision? Discussing and Defending R (Plan B Earth) v Secretary of State for Transport

Below is a copy of a piece I wrote for the Youth Law Journal. Please see the full edition of the journal at: https://www.theylj.co.uk/wp-content/uploads/2020/11/YLJ-5th-Edition.pdf?fbclid=IwAR1hrsS3gzj5h4vzaiDkor-s8a5ykVFPCjgmHDdrpNEiWdB73p9n5ugLghk

Few events have generated quite the volume and complexity of litigation as the Heathrow expansion. In Plan B, the Court of Appeal decided that the Secretary of State’s (SoS) decision to designate a National Policy Statement (NPS) under s.5 of the Planning Act 2008—supporting plans to build a third ‘north-west’ runway at Heathrow—was unlawful. While environmental campaigners may hail the decision as a triumph against globally polluting mega-corporations, its real intrigue lies in its robust use of unincorporated treaties to determine the scope of domestic law obligations, and the Court’s determination to provide a remedy in circumstances where the unlawful decision may have been retrospectively corrected.

I. The Facts

When the SoS designates an NPS (under the Planning Act 2008, s.5), planning applications must be decided in accordance with it. The SoS supported the Heathrow expansion in the UK’s ‘Airports National Policy Statement’ (ANPS). Three grounds of appeal were made. Two concerned EU law, which failed. The third, which succeeded, challenged the SoS for failing to take into account a relevant consideration: the Paris Agreement 2016.

In making an NPS, the SoS must, under the Planning Act 2008 s.10(3), ‘have regard to the desirability of… mitigating, and adapting to, climate change’ and, under s.5(8), give reasons as to how the NPS takes government policy on climate change into account. It was common ground, however, that he did not consider the Paris Agreement 2016, an unincorporated international treaty. Indeed, he had received legal advice that he was ‘not permitted as a matter of law to take [the Agreement] into account’ ([237]).

II. Treaty Incorporation

The issue that arose was whether the SoS was required to take the Paris Agreement into account as ‘government policy’. In deciding that it was a relevant consideration, the Court has been accused of incorporating international law ‘through the back door’: that is, without the consent of Parliament. Mills (2020) sees a tension with this outcome and the principle of ‘dualism’ in the British Constitution, by which treaties do not form part of domestic law ‘until incorporated by legislation’. Campbell (2020) also questions the desirability of requiring the Agreement to be taken into account, because the ‘political substance’ of the decision is left open to challenge, transgressing the Court’s judicial function. I will test both criticisms in turn.

To Mills, we first must assert that the Court is not acting on its own terms, giving the Paris Agreement a life of its own. It is given a clear warrant to do so by s.5(8) of the Planning Act 2008, which requires ‘government policy’ on climate change to be taken into account. If it is correct to consider the treaty ‘government policy’ (our second criticism, considered later) then the conclusion is surely that the Court is requiring something ‘conventional’ ([230]): that the ‘executive must comply with the will of Parliament’ ([229]).

Furthermore, using unincorporated treaties to define the scope of statutory obligations is not a radical, controversial prospect; indeed, it is entirely conventional. For example, in R (Al-Jedda) v Defence Secretary, the House of Lords used several unincorporated treaties (UNSC Res 1545 and Article 103 of the UN Charter) to define the scope of rights under the Human Rights Act 1998. Several other cases follow the same example, such as Occidental Exploration v Ecuador.

To Campbell, we start with the Cambridge English Dictionary’s definition of ‘policy’: ‘a plan of what to do [that] has been agreed to [by] a government’. With this definition in mind, several factors are pointing towards the Court’s decision being correct. Not only did the Government ratify the treaty in 2016 (making it a ‘plan’ that has been ‘agreed to’), they actively agreed to adhere to it in several Ministerial statements ([237]). As the Court correctly states, ‘policy is necessarily broader than legislation’ ([224]).

This is a normatively desirable outcome. This case sets a precedent that the Government must adhere to its promises, preventing Ministers breaking political commitments with impunity. This is not a challenge to the ‘political substance’ of the decision, as Campbell suggests, but the legitimate use of an unincorporated treaty, through the warrant of statute, to ensure the Government does not regress from its commitments.

III. The Question of Relief

The Government then argued that the court should refuse to grant a remedy. This was because, even though the SoS had not taken the Paris Agreement into account when developing the ANPS, he would still have considered it when individuals apply for specific projects related to the policy. Thus, it would be ‘highly likely’ that the outcome would not have been ‘substantially different’ if the Paris Agreement had been taken into account, per s.31 of the Senior Courts Act (SCA) 1981 ([274]).

Nevertheless, the Court granted a declaration of unlawfulness. It did not matter that the unlawfulness in the policy designation could have been rectified later: it was ‘incumbent on the Government to approach the decision-making process in accordance with the law at each stage’ ([275]). Furthermore, the public interest in climate change issues would have warranted the provision of a remedy in any case ([277]), per SCA 1981 s.31(2B).

It is easy to see why Campbell (2020) has criticised the case as ‘insufficiently cautious’ with the provision of remedies. The modification of the SCA 1981 was intended to expand the number of cases in which courts would refuse to provide a remedy from the stringent Simplex test. Under this test, it was necessary to show that the decision-maker ‘necessarily’ would still have made the same decision. This was because the Government was concerned with ‘busybodies’ challenging, for example, planning decisions—abusing judicial review and disrupting infrastructure.

Despite this, the Court stated that ‘Parliament has not altered the fundamental relationship between the courts and the executive’ ([273]). This means that, even under the Act, courts should not assess the ‘merits’ of the decision. For this reason, it will be ‘difficult’ or even ‘impossible’ to refuse a remedy where there has been an error of law ([273]).

There is a paradox at the heart of this dictum. The Court seems cautious by refusing to contemplate the merits of the decision; but, in so doing, the judges are expanding, not restricting, their powers. Under the pretence of keeping to their proper role, they are ensuring that the rule of law is upheld to a standard not far from the original Simplex test. I would suggest that this is because the Court is overusing the term ‘merits’. Assessing the ‘merits’ is asking the question: is the decision correct? This is not what the Court is asking by refusing to grant a remedy. It is asking: what are the likely implications of the decision? These questions are related, but they are not the same. Indeed, if the Court is cautious to consider the implications of a decision it is hard to see when a remedy would ever be, in reality, refused.

Nevertheless, the decision is correct on the facts. Two points should be remembered. First, the Court was especially firm because the SoS had received legal advice to the effect that the Government was not permitted to take the Paris Agreement into account. This was a clear ‘misdirection’ in law ([275]), and it is possible to see why this is—at least slightly—more significant than neglecting to consider the Agreement. Second, the Court did not quash the decision, instead merely granting a declaration of unlawfulness. I would suggest this, in fact, takes careful consideration of the seriousness of the error and the consequences of the breach.

IV. Conclusion

Although, at first glance, this case might look like judicial overreach, I have argued that Plan B enforces reasonable, robust limits on administrative discretion. The Government has decided not to appeal this decision—little wonder, given Boris Johnson’s pledge to ‘lie down in front of those bulldozers and stop the construction’ (Carrington (2020), The Guardian)—but Heathrow will do. The fasten-seatbelt sign has come on: there is more turbulent legal thinking to come.

Many thanks to Frederick Cheng for his valuable comments on the first draft of this article and to Professor Alison Young for her initial guidance. All remaining errors are my own.