The Constitution Society is delighted to announce the publication of Climate change, the courts and the constitution. In his comprehensive report, Joshua Kimblin surveys how the legal mechanisms of environmental and climate accountability have operated over the last three years and considers future directions.
Since 1990, environmental management and mitigating climate change have become core aspects of the state’s responsibilities. In particular, the executive has become subject to a variety of domestic and international legal obligations. Executive decision-making in relation to climate change and the environment may be scrutinised in multiple ways: through judicial review, a complaint to a regulator, or under questioning before a parliamentary committee. Each method of scrutiny constitutes a different accountability mechanism. Each of these mechanisms involves a contest between executive autonomy and the coercive potential of institutions which provide accountability. The Constitution Society commissioned this report in August 2021 to capture a ‘snapshot’ of how the mechanisms of environmental and climate accountability have operated over the last three years and to consider future directions.
In particular, the report addresses three questions:
- Given that climate change mitigation is an area of contested policy, what is the proper role of the judiciary and judicial review as a form of legal accountability?
- What degree of autonomy is appropriate for the executive to alter environmental policy; and how far should regulatory bodies be able to challenge executive decisions?
- What do the underlying ideological differences between politicians, judges, and climate-concerned litigants tell us about the future of the rule of law in an environmental context?
Chapter 1 presents the first comprehensive survey of climate-related judicial reviews in England and Scotland. This is a rapidly growing field: since 2018, courts have handed down 22 judgments, including 10 between June 2021 and July 2022. These challenges must be viewed cumulatively as a campaign to interpret existing legal principles to impose more onerous climate-related duties upon the government. When judges apply well-established principles of administrative law in the novel context of climate change, they are compelled to re-articulate the limits of legal accountability and the judiciary’s constitutional role. Thus far, judges have emphasised the supremacy of political accountability in negotiating the path to net zero. They have deprecated any requests for strengthened forms of legal accountability, in the form of a heightened standard of scrutiny, expansive interpretations of environmental statutes, or creative adaptations of pre-existing common law principles. Furthermore, the common law’s institutionalised deference to executive discretionary judgments means that judicial accountability has been necessarily cautious. These attitudes are unlikely to alter soon. However, recent judgments provoke profound questions about the appropriate balance between political and legal accountability given the existential threat posed by climate change.
Chapter 2 analyses the Environment Act 2021 as a new environmental ‘constitution’ for the United Kingdom. Replacing the EU legal architecture, the new statutory framework grants the executive radically flexible powers to alter environmental policy. Specific objectives and targets for environmental management are no longer etched in law. The Environment Act additionally established a new environmental regulator – the Office for Environmental Protection (OEP). The powers granted to the OEP to enforce environmental law are weak and highly restricted in terms of available remedies. The Johnson administration’s deliberate pursuit of capacious powers and limited accountability raised questions over its commitment to the rule of law.
Shifting from Parliament to wider legal and political discourse, the third chapter charts the evolving meanings of the ‘rule of law’ in an environmental context. Numerous commentators, ranging from cabinet ministers to former judges, have described the role of the rule of law in environmental governance and adjudication. These visions of the rule of law substantially differ and, to a substantial degree, mirror familiar distinctions
between formalist, procedural, and substantive accounts of the rule of law. These accounts also correlate with diverging visions of the judiciary’s role in addressing climate change. In particular, the formalist vision espoused by Conservative ministers contrasts sharply with the wider role proposed by leading judges and academic commentators, with regard to the necessary balance between certainty and legality; the boundary between law and politics; and the complexity (or lack thereof) of judicial interpretation and application. These competing understandings currently exist in ‘latent’ conflict, where explicit references to opposing views have been rare. Continued climate-related litigation, government efforts to restrain statutory regulatory bodies, and the gradual fracturing of political support for the net zero target will push competing ideological commitments towards ‘manifest’ conflict.
Across the three chapters, the core finding is that executive autonomy in environmental decision-making is increasing. Conversely, the influence of institutions which provide accountability functions is diminishing. These trends are the cumulative product of dynamics described in each chapter. Judges have conspicuously avoided curtailing executive autonomy in deciding how to respond to climate change generally, or how the executive decides to assess scientific evidence. In Parliament, the Environment Act 2021 has sidelined law as an accountability mechanism, while the OEP’s enforcement powers are weaker than the institution which it replaces. Finally, the Johnson administration advanced a model of accountability which is narrowly drawn, reliant upon electoral scrutiny, critical of judicial intervention, and suspicious of climate-con- cerned public law litigants. We are on a trajectory towards a strongly political-constitutionalist model of environmental and climate accountability, in which scrutiny is dependent upon public interventions by advocacy groups and regulatory bodies, whose mandate is contested by the politicians subject to their supervision.
The report concludes with three concerns for the future. The first relates to an emerging strand of political opinion which allies the ‘formalist’ vision of the rule of law with an anti-regulatory, small-state conservatism. Senior Ministers in the Sunak administration have adopted a Diceyan/Hayekian model of the rule of law. They seek a clear division between the legislative and judicial functions, because judicial ‘overreach’ creates uncertainty. They demand limited judicial discretion in developing the law, because laws should be prospective and judges are ought to bound by rules. The same individuals have also criticised regulation for diminishing efficiency and prejudicing individual liberty through arbitrary decision-making. The rule of law therefore becomes a ‘check’ on regulation: it protects citizens from a meddling and inefficient state. It is concerning that, in making these arguments, senior politicians have undermined the regulatory bodies which provide accountability functions. It is also concerning that the net zero target has been maligned as ‘meddling’ regulation. These criticisms are impossible to reconcile with the Conservative Party’s 2019 manifesto commitments. The cornerstone of the United Kingdom’s approach to climate change mitigation rests upon increasingly unstable political ground.
Second, the ever-increasing complexity of climate change threatens the practicability of prospective legal rules. The Diceyan/Hayekian model of the rule of law requires that the law should define the state’s powers in advance. However, as harms caused by climate change become exponentially greater over time, any such powers will become rapidly outdated. Governments will likely need to engage in trial-and-error policy responses to mitigate climate-related consequences. This indicates that enhanced executive autonomy is not simply likely as the government’s preferred position, but an inevitable consequence of the nature of climate change. The appropriate remedy is enhanced scrutiny of the executive’s exercise of powers. Legal accountability will therefore become more vital in the future. This casts the currently cautious judicial approach in a troubling light.
Finally, the fields of environmental law, climate-related government policy, and public-interest public law are developing with alarming speed. This report records the status quo, legally and constitutionally, at the beginning of the United Kingdom’s fight against climate change. The subject must be revisited in the future. It is hoped that this report, rather than providing the end to a discussion, will attract attention and promote debate. As climate change accelerates, so too must our understanding of its impacts upon the state.
Joshua Kimblin is a Research Fellow at the Constitution Society. He holds undergraduate and postgraduate degrees in History from the University of Cambridge and a Graduate Diploma in Law from City University, London. He works as a paralegal for an offshore firm of advocates. Next year, he will commence pupillage at Essex Court Chambers.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.