High Court judgment on the national adaptation plan

At a glance

• In October 2024 the High Court ruled that the UK government’s National Adaptation Programme 3 (NAP3) was lawful, dismissing a claim brought by a disability rights activist, a man who's lost his home and Friends of the Earth.
• Mitigation and adaptation are complementary ways society can respond to climate change. Mitigation means action to reduce greenhouse gas emissions to slow the rate of climate change. Adaptation means action to reduce vulnerability to the impacts of climate change, like extreme weather. NAP3 is the current national plan to adapt to climate impacts.
• The claim was brought by: (1) Friends of the Earth; (2) Kevin Jordan, a man who unfortunately lost his home to rising sea levels and coastal erosion; and (3) Doug Paulley, a disability rights activist and care home resident particularly susceptible to overheating during heatwaves. The 2nd and 3rd claimants alleged NAP3 breached their human rights. All 3 claimants alleged it breached the Climate Change Act and equality laws.
• Although the judge didn’t accept the bulk of these arguments, he stopped short of endorsing the plan. He referred to the Climate Change Committee’s (CCC) view that NAP3 “falls far short of what is needed” and that it “lacks the pace and ambition to address growing climate risks”. This damning view wasn't called into question, with the judgment focusing only on the legality of NAP3.
• Worryingly, for the second time in a matter of years, a flagship climate strategy has fallen foul of equality laws because ministers didn’t consider impacts on marginalised groups such as disabled people. Here, ministers only did this after NAP3 was published and only in response to this legal claim. While, in the judge’s view, this belated assessment cured the original error, it shouldn’t take litigation to force government to comply with equality duties. 
• The judgment suggests it may be easier to establish “standing” for individuals to bring human rights challenges to adaptation measures than previously thought.
• The claimants are considering an appeal. Whatever happens, they call on the government to commit to introducing a robust and comprehensive NAP, aligned with the CCC’s advice. They also call for inclusive public engagement so that those most at risk can have a voice.  

Background and context

Every 5 years, the UK government makes a National Adaptation Programme (NAP) under the Climate Change Act 2008 to set out how it’ll adapt to the impacts of climate change. It made the third such programme in July 2023, when the Secretary of State for Environment, Food and Rural Affairs decided to adopt NAP3.

Human-induced climate change is an existential threat to people and nature. In August 2021 UN Secretary-General António Guterres introduced a report by the Intergovernmental Panel on Climate Change (IPCC), a scientific body that provides authoritative reports on climate science, impacts and solutions, of which the UK is a member. The UN chief described the IPCC report as a “code red for humanity”. 

In 2022 the IPCC confirmed with “high confidence” that: “Human-induced climate change, including more frequent and intense extreme events, has caused widespread adverse impacts and related losses and damages to nature and people, beyond natural climate variability.” It also noted that: “Across sectors and regions the most vulnerable people and systems are observed to be disproportionately affected.” 

Despite this already well-established context, each NAP has been strongly criticised, including by the government’s statutory adviser, the CCC. 

In 2021 the CCC said of the UK’s efforts that “the evidence shows that the gap between the level of risk we face and the level of adaptation underway has widened. Adaptation action has failed to keep pace with the worsening reality of climate risk”. 

In 2023 the CCC said the previous plan, which covered the years 2018 to 2023, only included credible plans for 5 of the 45 adaptation areas examined.  

And in March 2024 the CCC said the current plan, 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 also highlighted that “only around 40% of the short-term actions to address urgent risks identified in the last Climate Change Risk Assessment are progressed”. 

The legal challenge and the judgment

Consistent with this wider context, NAP3 didn’t appear to the claimants to make the necessary step change in approach. We therefore applied for judicial review, a type of proceeding in which a High Court judge reviews the lawfulness of a decision by a public body.

Our claim was heard at a “rolled-up hearing” in July 2024. In October 2024 the judge gave judgment, dismissing each of our grounds of challenge.

What follows is a summary of the grounds and the judge’s reasoning. For more detail, see the written outline of our arguments at the hearing (our “Skeleton Argument”) and the transcripts of that hearing. Also see the judgment.

Ground 1: meaning of “objectives”

Our first ground was about the meaning of the word “objectives” in section 58 of the Climate Change Act. Under this section, the government must issue programmes for adaptation to climate change (NAP3 being one such programme). The programmes must “address” the risks identified in the most recently published risk assessment. In doing so, they must set out both the government’s “objectives” in relation to climate change, and its proposals and policies for meeting those objectives.

The “objectives” in NAP3 were labelled as “risk reduction goals”. Many were vague, an example being to “Reduce the risk of high temperatures to health and wellbeing […]”. We argued that, to be lawful, objectives must instead be in the form of substantive, specific and measurable outcomes. This, we said, was consistent with the section 58 wording, and with the wider Act and its purpose. We relied on human rights law to support our interpretation.

Dismissing this ground, the judge held that section 58 doesn’t prescribe how ambitious the objectives must be, except that they must be objectives “addressing” the risks identified in the most recent risk assessment. “Addressing” a risk doesn’t mean “eliminating” or “minimising” it. Parliament chose not to impose any explicit constraint on how ambitious or specific the objective must be. If an objective is thought insufficiently ambitious, the remedy lies in the ability of the CCC to say so, and the government would be accountable to parliament.

The judge viewed his interpretation as compatible with the European Convention on Human Rights (ECHR). On this, he considered a recent landmark ruling by the European Court of Human Rights, which found the Swiss government in breach of its ECHR obligations to address climate change adequately. However, that case mainly concerned mitigation (reducing emissions). Had it considered adaptation measures, it would likely have given more freedom to states to set relevant objectives. 

In reaching these conclusions, the judge noted that mitigation measures, such as the UK’s 2050 net zero target, are fixed and quantified. This contrasts with adaptation measures, which aren’t quantified and are more "open-textured". 

Ground 2: risk of delivery 

This ground also concerned section 58 and its requirement that NAPs set out the government’s “proposals and policies for meeting” the objectives. We argued this must involve the government considering risk to the delivery of the proposals and policies. We relied by analogy on a similar argument that succeeded in our challenge to the government’s previous climate mitigation plan, the Net Zero Strategy.

The judge didn’t accept that the Net Zero Strategy case was relevant. It concerned hard-edged, quantified mitigation targets, as opposed to adaptation targets which could, as he had concluded under ground 1, be set with greater or lesser specificity. Given the government’s approach to delivery risk was a rational one, ground 2 was dismissed.

Ground 3: public sector equality duty

We argued that the Secretary of State failed to discharge his “public sector equality duty” (PSED) under the Equality Act 2010. This meant he failed to lawfully assess unequal impacts of NAP3 on protected groups, such as the elderly and disabled people.

The judge agreed with the claimants that, when the Secretary of State adopted NAP3 in July 2023, he breached the PSED. However, in response to this legal challenge, officials prepared an equality assessment and, in February 2024, presented it to the Secretary of State who, on reading it, confirmed that NAP3 should remain unchanged.

This led the judge to conclude that, were he to quash NAP3 for the breach of PSED, all this would achieve would be a re-run of a process that’s already occurred. He therefore considered himself obliged, by statutory curbs on judicial review introduced in 2015, to refuse permission for this ground to proceed. This was despite case law on PSED urging caution against drawing too much from equality assessments completed as a “rearguard action,” ie after the event.

In what is a worrying trend, this is the second time in a matter of years that a flagship climate strategy has fallen foul of equality laws because ministers didn’t properly consider impacts on marginalised groups such as disabled people and people of colour.

Ground 4: human rights

The 2 co-claimants argued that NAP3 was so deficient that it breached their human rights to life (Article 2), home (Article 8) and possessions (A1P1), and that they were discriminated against on account of their vulnerable situations (Article 14). This was partly due to the failures alleged in ground 1, but also separately due to the content and deficiencies in NAP3 itself.

The judge’s provisional view was that both co-claimants had standing to bring their human rights complaints. However, for the reasons given by the judge under ground 1, he dismissed the human rights grounds. And while the Swiss case, referred to above, also required states to have in place “procedural safeguards,” these “open-textured” obligations were met in this context by reference to the Climate Change Act and the Environmental Information Regulations.

Why we brought this case

Climate impacts are increasing and set to get much worse based on current trajectories, yet we have a national approach to adaptation that’s nowhere near what it needs to be to adequately protect society. Cross-governmental leadership delivering effective climate governance is sorely lacking.

In addition, climate adaptation doesn’t get the public or political attention it deserves given the increasingly severe risks. There’s a lack of awareness, not just of the acute problems individuals already face here in the UK, such as those shown by our co-claimants, but also of just how bad it could foreseeably be for much wider sections of society.

Long-term, consistent and integrated government planning based on specific and measurable objectives, with timely delivery of related adaptation measures, is currently absent. This is the case even though the risks are scientifically established with high confidence and the solutions are known to us.

Our position in this case was, in our view, validated by the CCC’s most recent assessment, which criticised the lack of specificity in the plan. It said that “NAP3 only contains a very high-level vision statement that is not operational, with no measurable goals or specific outcomes for any sector”.

By taking this case, we hoped to strengthen climate governance in the UK and uphold human rights standards in this area of policy making. We need to see improvements in the way government plans for and delivers climate adaptation in the UK: for everyone, and especially those most at risk.

Next steps

We’re considering the judgment and our appeal options.

Whatever happens with the litigation, Friends of the Earth calls on the government to commit to introducing a robust and comprehensive NAP, aligned with CCC's advice. We echo the Committee’s call for urgent government action in 3 key areas: 

• Governance: the government must make adaptation a top priority and ensure effective cross-government collaboration. All departments should be engaged with adaptation and recognise the challenges that climate impacts pose across multiple sectors.
• Investment: adaptation funding must be increased to deal with the climate challenge we face. The CCC warns that “NAP3 does not tackle effectively the barriers to investment, such as low perceived urgency of adaptation, lack of clear targets and the limited understanding of adaptation actions”.
• Monitoring: better monitoring and data collection are crucial for responding to the impacts of climate change. We must be able to track progress effectively. Without better information, people can’t assess the risks they’re exposed to, and parliament can’t hold the government to account.  

Friends of the Earth is also calling for inclusive public engagement with a newly developed plan so that those most at risk can have a voice and comment on the proposals and their implications.

Further information

The Friends of the Earth legal team managing this case includes Will Rundle and Niall Toru. The following Phil Michaels Legal Scholars have worked on our case and campaign at different times: Gabhan O'Tighearnaigh, Vivian Aiyedogbon, Flora Hausammann and Millie John-Pierre. The claimants are represented by leading environmental barristers David Wolfe KC of Matrix Chambers, Margherita Cornaglia of Garden Court Chambers and Nikolaus Grubeck of Monckton Chambers, and by Rowan Smith and Julia Eriksen at the law firm Leigh Day LLP.

Journalists can get further information by emailing the Friends of the Earth’s media team.