Lord Deben intervenes in climate High Court legal challenge
Former chair of the Climate Change Committee (CCC), Lord Deben, has made a dramatic intervention in the High Court by providing a witness statement in support of Friends of the Earth’s legal challenge against the government’s climate strategy, which is currently before the court.
The High Court is hearing three separate (but related) legal challenges – brought by Friends of the Earth, ClientEarth and The Good Law Project – to the government’s Carbon Budget Delivery Plan (CBDP), the country’s economy-wide decarbonisation plan.
The three organisations believe that the CBDP, which was adopted in March 2023, fails to properly account for how it would meet the UK’s domestic climate targets, as required under the Climate Change Act (CCA). Friends of the Earth's challenge also refers to the absence of sufficient information on how the UK's 2030 target – its Nationally Determined Contribution (NDC) adopted under international law – will be met.
Friends of the Earth’s case criticises the assumption at the core of the government’s climate plan that ‘everything will go right’. This is especially relevant given information that has only come to light through this case that officials’ categorisation (known as RAG rating) of the risk of policies not delivering the emissions cuts required into ‘very low’ (red), ‘low’ (amber/red), ‘medium’ (amber), ‘high’ (amber/green) or ‘very high’ (green), were not actually shown to the Secretary of State before the plan was approved.
A document produced by Department for Environment, Food and Rural Affairs (DEFRA) officials, but not shared with the Secretary of State, identified that nearly half of the policies were listed as having ‘very low’ or ‘low’ degree of confidence.
In his witness statement submitted to the High Court in a ‘rolled up’ hearing currently before the court, which had been opposed by the government, Lord Deben provides powerful evidence in support of Friends of the Earth’s case:
He says the government did not share information on its strategy with its statutory advisors the Climate Change Committee (CCC) in advance of the publication of its Carbon Budget Delivery Plan, stating “in my experience, the government has previously given the CCC advance information about reports published under the CCA 2008”.
He concludes that it is “difficult to avoid the view” that the government did not want the CCC to examine the plan before it was published, calling this “regrettable”.
Lord Deben criticises the government’s approach to risk, the issue which lies at the heart of Friends of the Earth’s case, including the government’s assumption that everything will go to plan, and the lack of contingency planning.
He highlights a lack of adequate information provided to the Secretary of State on risks that the plan would not deliver the legally required cuts in emissions and considers that the information which was provided to the Secretary of State (but not included in the plan) was unclear.
He refers to the RAG risk ratings (see above) provided by DEFRA officials, and expresses surprise that this document, and those RAG ratings provided by other government departments, were not actually provided to the Secretary of State.
His view is that if they had been, where “many of the policies and proposals were rated red or amber in terms of delivery risk”, the Secretary of State could not have concluded that the policies would enable the statutory targets to be met. These RAG risk ratings are not mentioned in the published plan either.
Lord Deben says that after the CCC was able to study the full detail of the CBDP and supporting documents, they reached the conclusion that they “were even more unconvinced that the government’s programme would achieve net zero by 2050”.
Friends of the Earth is challenging the Carbon Budget Delivery Plan under the Climate Change Act, arguing:
There is a lack of information on the government’s assessment of the very real risks that many of the key policies in its plan simply won’t deliver the cuts necessary to meet legally-binding climate targets. And the Secretary of State lacked sufficient information as to the level of risk associated with the plan to adopt it lawfully under the CCA.
The plan contains insufficient information on risk to delivery of the policies, the uncertainty associated with the policies actually being rolled out and ultimately achieving their intended emissions cuts, so Parliament and the public have been kept in the dark.
Lord Deben said:
“The government is relying on everything going to plan with no delays or unforeseen circumstances, and on technologies which have either not been tested or indeed on which testing has not even started.
“From what I have seen of the evidence provided to the court, the Secretary of State was not given enough detail on the level of risk associated with the policies in the plan. This meant that he could not see how many of them were likely to fail to achieve their end.
“When you see that evidence, to me it’s clear that the present programme does not provide the necessary assurance that we can meet our statutory duty to reach net zero by 2050. I know of no other government policy which is premised on everything going exactly right.”
Friends of the Earth lawyer, Katie de Kauwe, said:
“Lord Deben’s written statement is a damning indictment of the government’s latest climate strategy and its failure to properly consider the risk of its policies not achieving the emissions cuts needed to meet its climate targets.
“It’s a sorry state of affairs that the government departed from established ways of working to deny its own expert statutory advisors, the Climate Change Committee, the opportunity to view and offer comments on its draft climate plan before it was finalised and published. From an accountability perspective, it’s interesting that this has happened in the context of a plan which is so manifestly weak.”
Rowan Smith, Solicitor at Leigh Day, said:
“Friends of the Earth’s case is supported by evidence from Lord Deben, former chair of the Climate Change Committee. Lord Deben has expressed strong reservations about such information having been withheld. The government had opposed that evidence even though Lord Deben has first-hand experience of what information ought to have been made public and available for scrutiny in order for the legal safeguards under the Climate Change Act 2008 to operate effectively.”
ENDS
Notes:
In 2023, Lord Deben completed his legal term of ten years as Chair of the CCC, the government’s independent expert advisor on climate change.
His written Witness Statement for Friends of the Earth’s case can be read in full here: https://friendsoftheearth.uk/climate/witness-statement-rt-hon-lord-deben
The three day ‘rolled up’ hearing for the three cases is taking place between 20-22 February 2024. In a ‘rolled up’ hearing the question of permission is often heard in tandem with the substantive case itself. In practice this is effectively the same as a trial, in that the court is expected to allow each claimant to argue its case in full.
The plan’s assumption referred to above that everything will go to plan, is a reference to para. 26, of the CBDP, pp14-15: “The calculated savings assume the package of proposals and policies are delivered in full. We consider it is reasonable to expect this level of ambition - having regard to delivery risks and the wider context, which give rise to both downside and upside risks (see further information on delivery risks below).”
A legal briefing on Friends of the Earth’s legal challenge is here: https://friendsoftheearth.uk/climate/legal-briefing-our-challenge-governments-climate-plan
A joint press from Friends of the Earth, The Good Law Project and ClientEarth, containing more information on all of the legal challenges is here: https://friendsoftheearth.uk/climate/government-high-court-over-inadequate-climate-action-plan-again
The RAG ratings encapsulate a central issue to Friends of the Earth's claim: that the Secretary of State was simply not informed of the level of risk/ likelihood of the policies in the CBDP failing to deliver their predicted emissions savings. These ratings were produced by officials within government departments, such as Defra, and sent to the Department for Energy Security and Net Zero at their request, but they were never shared with the Secretary of State, who only saw the risk tables.
The risk tables extracted some of the information provided by government departments, but did not provide the complete picture, and it is Friends of the Earth's case that they are themselves misleading. Whilst they describe some of problems with the individual policies (which the published CBDP lacks information on entirely) eg referring to issues with the need for investment and decision-making, they do not actually categorise the level of risk for the policies (except, rather conveniently, in relation to policies which were assessed as having a high delivery confidence). Friends of the Earth is arguing that both the RAG ratings and the risk tables should have been published when the CBDP was adopted.
Government’s own assessments reveal big risks to climate plans | press release (20 Feb 2024): https://friendsoftheearth.uk/climate/governments-own-assessments-reveal-big-risks-climate-plans
Friends of the Earth is represented in this case by David Wolfe KC of Matrix Chambers, Catherine Dobson of 39 Essex Chambers and Nina Pindham of Cornerstone Barristers; Rowan Smith and Julia Eriksen at the law firm Leigh Day; and its own in-house legal specialists.