R(Friends of the Earth Ltd, Mr Kevin Jordan and Mr Doug Paulley) v Secretary of State for Environment, Food & Rural Affairs (challenge to the Third National Adaptation Programme)

A disability rights activist, a campaigner trying to save his home and Friends of the Earth, have together brought a public law challenge to the UK’s ‘National Adaptation Programme 3’ (or ‘NAP3’). The claim focuses on legal compliance with section 58 of the Climate Change Act 2008, as well as breaches of human rights. One co-claimant is a care home resident particularly vulnerable to overheating during seasonal heatwaves, the other is at imminent risk of losing his home and possessions to rising sea levels and coastal erosion. Between them they allege that NAP3 is so deficient that it breaches their human rights to: life (Article 2), home (Article 8), possessions (A1P1), and that they are discriminated against on account of their vulnerable situations (Article 14). The case was filed on October 17, 2023, and is believed to be the first of its kind in the UK. The grounds are as follows. 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’. The claimants consider this is inconsistent with the statutory language in s58, the overall statutory scheme, and its fundamental purpose. Ground 2 – unlawful failure to consider and/or publish information on the risk(s) to delivery of the plans and proposals in NAP3. There is no evidence this assessment was done. Ground 3 – unlawful failure to discharge the ‘public sector equality duty’, in not lawfully considering the unequal impacts of NAP3 on protected groups in society (such as age, race or disability). 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, 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. In relation to Ground 4 the following issues are relevant to the co-claimants’ circumstances: - 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. It is said this remains absent in NAP3 despite the increasing frequency and severity of annual heatwaves. - There being no new policy to manage overheating risks in existing health and social care buildings, such that they are properly refurbished as soon as reasonably practicable. - A lack of a commitment to provide adequate resources to support 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. - 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. - There being no insurance or compensation schemes available for the worst affected by coastal erosion and who lose their homes. - No evidence of their being an express consideration, or reasoned analysis, of what a fair balance to strike would be between doing more to safeguard the human rights of vulnerable people and the interests of wider society. In pre-action correspondence the Secretary of State has denied any wrongdoing. The claimants now await a more considered response, following which the court must decide whether to grant permission for the case to proceed to full trial. If permission is granted for judicial review, a trial would be expected in mid to late 2024. A two-day hearing occurred on 23-24 July 2024, in which the claimants challenged NAP3 on the four grounds. The court delivered its judgement on October 25, 2024, and dismissed the application for judicial review on all grounds as follows. Ground 1 - The court found that the Secretary of State did not misinterpret the requirement for “objectives” in s.58 of the Climate Change Act, determining that the duty imposed by is not a single, precisely quantified, objective. Ground 2 - The court found that the Secretary of State had considered “delivery risk” at various stages and there was no evidence of unlawful failure. Ground 3 - The court ruled that although the initial approach of assessing the equalities implications of NAP3 did not lawfully comply with the Public Sector Equality Duty, the subsequent Equality Impact Assessment conducted solved the original error, considering quashing the belated assessment decision would serve no useful purpose. Ground 4 - The court ruled that the claimants’ human rights were not breached and that the government’s adaptation strategies were in alignment with statutory requirements. The claimants have now sought to challenge the ruling at the European Court of Human Rights as they have exhausted the domestic route.