R (on the application of Foodrise Ltd (formerly Global Feedback Limited)) (Appellant) v His Majesty’s Treasury and others (Respondents)

NGO Foodrise brought a judicial review of a decision by HM Treasury and the Secretary of State for Business and Trade to give effect, under the Taxation (Cross-border Trade) Act 2018 Pt 1, to tariff preferences to Australian imports under a 2021 UK-Australia free trade agreement and the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023 (SI 2023 No. 195) giving effect to it. Foodrise argued that the tariff preferences would likely lead to an increase in beef production in Australia, where beef production methods are more greenhouse gas (GHG) intensive than in the UK, thus increasing GHG emissions substantially and generating “carbon leakage”. Foodrise also successfully applied to the High Court for a costs limit order under Part IX of the Civil Procedure Rules (CPR) (r 46), arguing the claim was subject to a cost cap under the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ("the Aarhus Convention"). Article 9(3) of the Aarhus Convention, which the UK ratified on 23 February 2005, requires parties to the Convention to ensure that members of the public "have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment", which procedures must "provide adequate and effective remedies" and not to be "prohibitively expensive" (Article 9(4)). Under the Aarhus Convention, legal costs for NGOs involved in environmental litigation are capped at £10,000. At first instance, the High Court judge agreed with Foodrise, finding that the judicial review fell within the scope of Articles 9(3) and 9(4) of the Aarhus Convention given that, although the FTA and the 2018 Taxation Act were not environmental legislation, s. 28 of the Act required the respondents to have regard to international obligations including those under the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement on climate change, which directly with environmental issues. The government appealed, countering that the claim did not fall under the Aarhus Convention. The Court of Appeal sided with the government, holding that the judicial review concerned breaches of public law principles and not any breach of national law relating to the environment or environmental law, hence it fell outside the scope of Article 9(3) of the Aarhus Convention. Foodrise applied to the UK Supreme Court, which has granted permission to appeal the decision. The judicial review is stayed pending the appeal.