The United Kingdom has a new Prime Minister and a new cabinet. This summer’s slow-moving political change played out against a background of even slower movement on climate change. It was the joint hottest summer on record. If further symbolism were required, the new administration’s first task is to address an ‘energy crisis’ which has arisen from the United Kingdom’s dependence upon carbon-based fuels.
Liz Truss’ election brings to the fore important questions concerning the accountability mechanisms which scrutinise the executive’s decision-making and enforce its legal obligations toward the environment (generally) and climate change (particularly). These questions form the subject of my Constitution Society research project, Climate change, the courts, and the constitution: a lawful failure to save the world. Due to be published in October, the report examines ‘accountability relationships’ in three contexts: the courts, Parliament, and wider legal discourse. With new leadership comes an opportunity to consider the short, medium, and long-term dynamics of these relationships.
Environmental and Climate Accountability: Three Contexts
Beginning in the courts, Chapter 1 of the report examines the recent rise in judicial review proceedings which challenge government decisions on climate-related grounds. Since 2018, proceedings brought by concerned citizens and climate advocacy organisations have generated twenty-two judgments – including seven within the last twelve months. When the judiciary apply well-established principles of administrative law in the novel context of climate change, they are compelled to articulate afresh the nature and boundaries of their institutional competence. This has constitutional implications: greater legal scrutiny results in diminished executive autonomy.
Turning to Parliament, Chapter 2 presents an analysis of the Environment Act 2021, which creates a new ‘constitution’ for environmental governance in the United Kingdom. The Act establishes a new environmental regulator, the Office for Environmental Protection (OEP), which is tasked with enforcing environmental law after the United Kingdom’s departure from the European Union. The Parliamentary debates which preceded the Act raised questions about the institutional design of regulatory bodies and environmental law. How powerful should the coercive legal powers of the OEP be? And how far should governments be bound by law in relation to environmental targets?
Finally, Chapter 3 examines recent debates between legal actors addressing how environmental (and climate) problems relate to the familiar concept of the ‘rule of law’. It identifies an emerging conflict between the ‘formalist’ vision espoused by Conservative ministers and the approach advocated by leading judges and academic commentators, particularly with regard to the necessary balance between certainty and legality, the nature of the boundary between law and politics, and the appropriate scope of judicial interpretation.
Across the three chapters, the core finding is the rise of executive dominance in the fields of environmental and climate-related decision-making and the related diminishment of accountability mechanisms. This dynamic has multiple sources. In climate-related judgments, judges have emphasised the significance of political, rather than legal, accountability in negotiating the path to net zero. In Parliament, the Environment Act 2021 creates a model of environmental governance which is dominated by policy and thus retains the executive’s freedom to change course. Lastly, Chapter 3 of my report demonstrates how Conservative ministers’ articulation of the rule of law in an environmental context is narrowly drawn, heavily reliant upon electoral scrutiny, critical of judicial intervention, and suspicious of (if not openly opposed to) the role of public law climate-related judicial reviews.
What happens next?
The Constitution Society commissioned the report to capture a snapshot of how environmental and climate accountability mechanisms have operated over the last three years. What do the resulting observations tell us about the future constitutional dynamics between the executive, climate-concerned litigants, and the judiciary?
In the short-term, there are two specific climate-related issues in the new Prime Minister’s in-tray. First, the ongoing energy price shock has sharpened focus on the United Kingdom’s long-term energy security. The United Kingdom’s transition to clean energy is underway. However, major strategic decisions await Liz Truss, the Treasury, and Jacob Rees-Mogg as to the balance between nuclear, renewable, and carbon-based energy. Media reports indicate that the Prime Minister intends to lift the moratorium on fracking and cut the green levy paid on energy bills. As Environment Secretary, she cut subsidies for solar farms. If so, we can expect a wave of climate-related litigation in response, as anti-fracking advocacy groups have past form. Future challenges will likely focus on the quantitative assessments of the carbon impacts of new shale gas developments. The second short-term issue is the government’s contribution to COP27, hosted by Egypt in Sharm el Sheik in November. Quite apart from questions over the legacy of COP26 in Glasgow, the latest round of international talks is an opportunity for the Truss administration to advocate for either greater ambition in reducing GHG emissions or more powerful international legal enforcement mechanisms, under the Paris Agreement’s structure. Whether the United Kingdom’s envoys will embrace either position remains to be seen.
Likely medium-term trends are more general. Climate-concerned litigants will continue to advocate for legal principles which impose more onerous climate-related duties upon the government, and which provide grounds for future challenges. A challenge to the International Trade Secretary’s decision to provide credit guarantees (worth approximately £1.15 billion) to a liquid natural gas exploitation scheme in Mozambique is currently on appeal following a split decisionin the Divisional Court. This case will provide further opportunity for an appellate court to define the judiciary’s assessment of its own competence. My report explicitly recommends a higher intensity of review in substantive review cases, by taking account of the existential threat posed by climate change. Given the broader trend of executive dominance in this field, the judiciary may – over time – shift their position to ‘balance’ the scales between political and legal accountability.
The most probable long-term trend is a growing tension between Conservative ministers’ interpretation of the rule of law; the necessities of executive discretion in handling climate change; and the approach adopted to the net zero target.
Statements by senior Ministers in the new cabinet have hewed closely to an interpretation of the rule of law which emphasises the values of clarity, certainty, and prospectivity in law-making. They draw upon the works of Raz, Dicey, and Hayek, who argued that determinate rules are required to protect individuals’ rights from the dangers of (arbitrary) government discretion. This interpretation is closely allied to an anti-regulatory, ‘small-state’ form of conservatism, in which both ‘regulation’ and regulatory bodies are maligned for their alleged infringements upon efficiency and individual liberty. In this conception, the ‘rule of law’ becomes an alternative to regulation, because it protects the citizens from an unbounded, meddling, and inefficient state.
Kemi Badenoch MP, now International Trade Secretary, has offered the clearest articulation of ‘anti-regulatory’ opposition to the net zero target in her speech announcing her candidacy for Conservative party leader some months ago:
“there are too many well-meaning regulations slowing growth and clogging up the arteries of the economy. Too many like net zero target set up with no thought to the effects on industries in poorer parts of the country [sic].”
Likewise, Suella Braverman MP (now Home Secretary) has written:
“In order to deal with the energy crisis we need to suspend the all-consuming desire to achieve net zero by 2050. If we keep it up, especially before businesses and families can adjust, our economy will end up with net zero growth.”
These comments are challenging for three reasons. First, they are impossible to reconcile with both politicians’ commitment to promises made in the 2019 Conservative Party manifesto. Second, they misunderstand the nature of the net zero target, which is enshrined in statute and is to be achieved through policies and proposals proposed by the government. Third, the Diceyan-Hayekian model of the rule of law should result in diminished executive autonomy: prescribed rules should limit the executive’s freedom to act. However, the Conservative party has consistently sought to maximise executive flexibility in statutory powers.
It would be easy to allege a double-standard: regulatory bodies are criticised for overreach, but the Conservative party is perfectly comfortable with broad executive power – as long as they are controlling it. On the contrary, however, such powers are likely necessary to address climate change. On a fundamental level, the nature of climate change threatens the practicability of clear, prospective legal rules which define the government’s powers to respond in advance. This is because climate change is characterised by ever-increasing complexity, exponential increases in harm and ‘Fat-tailed probabilities’ of catastrophic events.
These trends have two implications for governments’ policy-making abilities:
- the complexity and ever-evolving nature of climate problems means that clear, pre-defined rules limiting the government’s response will be rapidly outdated, and;
- governments will likely have to engage in trial-and-error policy responses, which evolve over time.
Environmental decision-making and climate change particularly appear to require wide-ranging executive discretion, at the expense of (formalist) strands of the rule of law. The appropriate response is not to insist upon limited powers, in the Diceyan mold, but rather to insist upon close and searching scrutiny of the exercise of those powers. This is why legal accountability remains vitally important. If Conservative ministers wish to be consistent, they should abandon the notion that ‘net zero’ is a problem of regulatory overreach and their critiques of judicial review. The new cabinet is free to determine climate and environmental policy as it likes – but it must accept legal and Parliamentary scrutiny of its decisions.
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. ‘Climate Change, the Courts, and the Constitution: A Lawful Failure to Save the World’ will be published in October 2022.
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.
 I draw upon Mark Boven’s analysis of ‘accountability’ not as a value but a relationship: “a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgment, and the actor may face consequences”: ‘Analysing and Assessing Accountability: A Conceptual Framework’ European Law Journal (2007) vol. 13, p.447.
 See: Suella Braverman QC MP, ‘Judicial Review Trends and Forecasts 2021: Accountability and the Constitution,’ (Delivered and published 19 October 2021 as keynote speech to the 2021 Public Law Project Conference), available at [https://www.gov.uk/government/speeches/judicial-review-trends-and-forecasts-2021-accountability-and-the-constitution], last accessed 15 May 2022.
 Joseph Raz, ‘The Rule of Law and its Virtue’ in The Authority of Law: Essays on Law and Morality (Oxford, 2012), p.214 and Friedrich Hayek, The Road to Serfdom (London, 1944), p.54.
 An edited transcript of the speech is available at Kemi Badenoch, ‘Why I should become prime minister’, The Spectator, 12 July 2022, available at: [https://www.spectator.co.uk/article/read-kemi-badenoch-s-bid-for-prime-minister], last accessed 6 September 2022.
 Suella Braverman, ‘“We have a real fight on our hands” Suella Braverman sets out leadership bid”, The Express, 9 July 2022, available at: [https://www.express.co.uk/comment/expresscomment/1637704/suella-braverman-conservative-party-leadership-boris-johnson-resignation-attorney-general], last accessed 6 September 2022.
 See: Jocelyn Stacey, ‘The Environmental Emergency and the Legality of Discretion in Environmental Law’, Osgoode Hall Law Journal (2015) vol. 52, pp.985-1082, at p.993;
Daniel A Farber, “Probabilities Behaving Badly: Complexity Theory and Environmental Uncertainty’, UC Davis Law Review (2003) vol. 37 no. 1, pp.145-173 at p.153.;
Jocelyn Stacey, ‘The Environmental Emergency and the Legality of Discretion in Environmental Law’, Osgoode Hall Law Journal (2015) vol. 52, pp.985-1082, at p.985.