Our legal challenge on the national adaptation plan

At a glance

• A disability rights activist, a man who's lost his home and Friends of the Earth have together brought a legal challenge to the UK’s National Adaptation Programme 3 (NAP3).
• Mitigation and adaptation are the 2 complementary ways in which society can respond to climate change. Mitigation refers to action taken to reduce greenhouse gas emissions. Adaptation refers to action taken to reduce exposure to, or enhance resilience against, the remaining climate impacts. NAP3 is our national plan to adapt to existing and predicted climate impacts.
• The claim focuses on legal compliance with s58 of the Climate Change Act 2008, as well as breaches of human rights under the Human Rights Act 1998.
• One co-claimant is a care home resident particularly vulnerable to overheating during seasonal heatwaves. The other was at imminent risk of losing his home to rising sea levels and coastal erosion, and unfortunately lost his home in December 2023 after the claim was issued.
• Between them, they allege that NAP3 is so deficient that it breaches their human rights to life (Article 2), home (Article 8) and possessions (A1P1), and that they’re discriminated against on account of their vulnerable situations (Article 14).
• The case was filed on 17 October 2023 and is believed to be the first of its kind in the UK.
• The court has confirmed that the trial will be heard over 2 days on 23 and 24 July 2024 (it was previously due to take place on 18 and 19 June but has been adjourned).

Background and context

1. Human-induced climate change is an existential threat to people and nature. In August 2021, UN Secretary-General António Guterres noted that the then latest report by the Intergovernmental Panel on Climate Change (the IPCC, of which the UK is a member) was a “code red for humanity”.

2. Every 5 years, the UK government makes a National Adaptation Programme (NAP) under the Climate Change Act 2008 to set out how it will adapt to the impacts of climate change. It made the third such programme on 17 July 2023, the so-called NAP3.

3. In its scientific report published shortly before NAP3 (February 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.”

4. Despite this already well-established context, each NAP has been strongly criticised, including by the government’s own statutory adviser, the Climate Change Committee (CCC).

5. In its last progress report (March 2023), the CCC said of NAP2 (2018 – 2023) that it had only included credible plans for just 5 of the 45 adaptation areas (or outcomes) that it had examined. And in its 2021 independent risk assessment, the CCC had 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” (our emphasis).

6. In March 2024, the CCC published its initial independent assessment of the NAP3. It states that “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.” Worryingly, it also highlights 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

7. Consistent with this wider context, NAP3 doesn’t appear to the claimants to make the necessary step change in approach. The claimants have applied for judicial review of the decision by the Secretary of State for Defra (Department for Environment, Food and Rural Affairs) to publish and lay before parliament NAP3, on the following basis:

7.1 Ground 1: misdirection in law as to the correct approach to setting “objectives” under s58(1)(a). Rather than setting lawful specific objectives, the Secretary of State has included vague “risk reduction goals”. We consider this is inconsistent with the statutory language in s58, the overall statutory scheme, and its fundamental purpose.

7.2 Ground 2: unlawful failure to consider and/ or publish information on the risk(s) to delivery of the plans and proposals in NAP3. There’s no evidence this assessment was done, yet it was considered legally necessary by Holgate J. in “Friends of the Earth (& Others) v SoS for BEIS [2022] EWHC 1841” for the analogous situation when producing the then Net Zero Strategy (for mitigating emissions) under the Climate Change Act.

7.3 Ground 3: unlawful failure to discharge the “public sector equality duty” (s149, Equality Act 2010) in not lawfully assessing the unequal impacts of NAP3 on protected groups in society (such as age, race or disability). 

7.4 Ground 4: breach of Section 6 of the Human Rights Act 1998 due to unlawful interferences with the individual co-claimants’ rights under Articles 2, 8 and 14 and Article 1 of Protocol 1 of the European Convention on Human Rights. This is partly due to the failures in ground 1, but also separately due to the content and deficiencies in NAP3 itself.

8. In relation to Ground 4, the following issues are relevant to the co-claimants’ circumstances:

a) The well-established but urgent need for long-term policy and protected funding to enable care homes (and similar healthcare settings) to adapt to excessive heat. This remains absent in NAP3 despite the increasing frequency and severity of annual heatwaves.

b) There being no new policy to manage overheating risks in existing health and social care buildings, such that they’re properly refurbished as soon as reasonably practicable.

c) A lack of a commitment to provide adequate resources or other support to communities at imminent risk of being lost to erosion and flooding, including as to the established mental health and emotional wellbeing impacts for those affected. 

d) Gaps, inconsistency and uncertainty in the potential allocation of funding provided for a range of areas, in particular for those communities that must (or are likely to have to) relocate and have their homes demolished. 

e) There being no insurance or compensation schemes available for those worst affected by coastal erosion and who lose their homes.

f) No evidence of an express consideration, or reasoned analysis, of what would be a fair balance to strike between doing more to safeguard the human rights of vulnerable people and the interests of wider society.

g) A lack of public engagement with at-risk groups or communities. 

h) A lack of information so that people can take informed choices and assess the risks to which they’re exposed due to the content of the national plan, including as to the policies and proposals it does, and doesn’t, include. 

For more information, read our Skeleton Argument. 

Why bring this case?

9. We’re bringing this case because climate impacts are increasing and set to get much worse on current trajectories, yet we have a national approach to adaptation that’s nowhere near what it needs to be to adequately protect society. We consider this situation to be unlawful. Cross-governmental leadership delivering effective climate governance is sorely lacking.
    
10. In addition, climate adaptation doesn’t get the public or political attention it deserves given the increasing severe risks. There’s a lack of awareness, not just of the acute problems individuals already face here in the UK, such as shown by our co-claimants, but also of just how bad it could foreseeably be for much wider sections of society.

11. Long-term, consistent and integrated government planning based on specific and measurable (lawful) 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.

12. Our position in this case has, in our view, been validated by the CCC’s most recent assessment. Its independent assessment of the NAP3 criticises the lack of specificity in the plan. It says that “NAP3 only contains a very high-level vision statement that is not operational, with no measurable goals or specific outcomes for any sector (our emphasis).”

13. Current and previous national adaptation programmes have, in our view, unlawfully failed to understand the legal requirements in formulating a credible and lawful plan (as set out in the Climate Change Act 2008). And despite acknowledging it as an issue, they don’t properly account for and address the unequal impact of climate change on the more vulnerable in society. We believe that in some instances those failures breach the human rights of individuals concerned.

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

Next steps

15. By the Order of Mr Justice Sheldon on 9 February 2024, the case was allowed to proceed as a “rolled-up hearing,” where permission and substantive hearing are heard together at the same time. The court has confirmed that the trial will be heard over 2 days on 23 and 24 July 2024 (it was previously due to take place on 18 and 19 June but has been adjourned).

Further information

The Friends of the Earth legal team managing this case includes Will Rundle, Niall Toru and Gabhan O’Tighearnaigh. 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. 

Read our press release announcing the news of our case. 

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