High Court allowed Ministers to exclude discarded options in the consultation on net-zero aviation

This is Blog no 103

The Courts are rapidly becoming the battleground for important public policy issues. And they shouldn’t be!

The recent case of Possible (The 10:10 Foundation) v Secretary of State for Transport was merged with a legal challenge against likely expansion of airports by GALB – the Group Action on Leeds Bradford Airport. The judicial review is ostensibly about whether the provisions of the 2008 Climate Change Act were being observed, and whether the related consultation was lawful.

In reality it is about the UK’s overall aviation policy and whether this is compatible with politicians’ rhetoric and legislation on net-zero. As is often the case, consultation plays the valuable role of obliging a Government to declare its hand, disclose its intentions and enable a dialogue. When politicians – in or out of Government - try to sidestep awkward or ‘wicked’ issues, it is often consultation that finds them out. The previous Government’s JET ZERO STRATEGY (JZS) is such a situation. Conservative Ministers’ actions were supported in this case; their consultation was declared lawful by Mrs Justice Lang. But the judgment provides a great example of the perils of policy-making processes,  and the difficulties of challenging Governments who wish to evade some harsh realities.

This is about the future of flying. The consultation took place from July to September 2021 whilst the aviation industry was still reeling from the disaster of COVID lockdowns. It envisaged four scenarios of various degrees of ambition and anticipated implications for carbon emissions. Ministers placed great faith on the ability of forthcoming technology advances to ameliorate the impacts both through ‘greener’ aircraft and ‘greener’ or ‘sustainable’ jet fuel. For this reason, the consultation did not consider other ways to address the problem. So-called ‘demand management measures’ (DDM) were expressly excluded, and it was this that was challenged at the High Court.

In the outside world, such measures enjoy considerable support. They include placing curbs on airport expansions or the number and range of flights. They also involve taxes such as on ‘frequent flyers’. Several Climate Assemblies have resulted in recommendations to use ‘demand management’ in some form or another.  However, for Ministers in recent Governments, and despite similar urging from the Climate Change Committee, this was not an acceptable policy, so they became ‘discarded options’. The case turned on whether it was lawful to discard them.

The leading case is the oft-quoted 2014 Supreme Court judgment in the Moseley v Haringey case. On that occasion, what made the Council’s consultation on a local housing benefit scheme unlawful – at least in part – was the failure to explain what alternatives it might have considered. Lawyers have argued about the extent to which consultors should mention discarded options ever since and the Judge in the JZS case admits that legal precedents ‘pull in different directions… reflecting the fact that fairness in this context is highly fact-sensitive’.

On these facts, she ruled that the Government was within its rights to confine the scope of this consultation exercise and explains it as follows:

In my judgment, the JZS consultation was not a consultation on aviation decarbonisation generally; it was a consultation    on how to achieve net zero aviation by 2050 consistently with the objective of not directly restricting aviation demand.      

In choosing to consult on a strategy to achieve a specified objective, fairness did not require that the Defendant also  

consult upon a different strategy to achieve a different objective. Such an approach would fundamentally undermine and

delay the Defendant’s lawful adoption of a particular strategy. It would also be contrary to the principle, expressed in the

Cabinet Office Consultation Principles 2018, that consultation should only take place on issues which are still at a  

formative stage:- 

         ‘Do not ask questions about issues on which you already have a final view.’

In my view, it would have been positively misleading for the Defendant to consult on DDM as an option when he and the Aviation Minister had already formed a firm view against it. (Par 130)

Without doubt, other factors also made a difference. There have now been a whole succession of difficult cases where judges have been placed in the invidious position of having to arbitrate between different interpretations of climate change legislation where politicians fudged the issues and kicked several cans down several roads. And with aviation, Governments have oscillated between one policy and another for years; witness the indecision on the Heathrow third runway. No one can argue that there has not been a wide public debate, or that ‘demand management’ ideas have been suppressed because they were not included in this particular consultation. Once again, the Courts have re-iterated the established line that the consultor has a wide discretion over the scope of its consultation. What it must NOT do is consult on something it has already decided upon.

Maybe, however, the real learning point from this judgment is the continuing confusion over when Governments should consult, and when they need not! In fact, everyone agreed that there was no statutory requirement to consult. But the judge accepted that “where consultation is not a legal requirement and is embarked upon voluntarily, it must be carried out lawfully.” This itself is welcome clarification after the Court of Appeal judgment in the 2023 Eveleigh case (See Blog No 34) made some unfortunately ambiguous obiter dicta.

How the Jet Zero strategy was developed comes across as  battle between officials looking at the evidence, listening to the experts and offering politicians ways to square an almost-impossible circle only to find Ministers hoping that some form of techno-breakthrough might save them from taking hard decisions. At one point, exasperated civil servants briefed Secretary of State Mark Harper using the following language:

We have reviewed the most prominent literature since publication, which demonstrates that our assumptions relating to

different technologies continue to be towards the upper end of what is likely to be feasible.”

At the time the Sunak Government was reviewing its Jet-zero strategy and reaffirming its plans to ignore any demand management options. For some, this is political opportunism (It came just as Sunak announced his retreat from the electric vehicles mandate…) based on optimism bias.  For others, it is merely the prerogative of a democratically-accountable Minister to take decisions as was his right … even if the powerful environmental lobby is sure he was wrong!

These are controversial public policy issues. They should be thrashed out in Parliament; not in the Courts.

And on matters of such complexity and implications, with a huge number of potential stakeholders, they should also be the subject of comprehensive consultation with the ability to address a wide range of options. As things stand, however, Ministers can pick and choose when to consult, and, quite lawfully manipulate the scope of consultations as they like. No wonder concerned lobbyists like Possible, and GALB feel aggrieved that their views could not be heard in the JZS consultation. For that reason, the judicial reviews will continue! These are the checks and balances of our system.

In fact, there are great strengths to our system – and the process of consultation is one of them. But it could be better, and this case well illustrates some of the current weaknesses.

Ultimately, though, process is only to a means to an end, and for many people, an unrealistic aviation policy will be the most worrying aspect of recent events. And we should remember that the new Labour administration is even more positive in its encouragement of aviation. It is now full-steam ahead on expanding airport capacity everywhere – as it fuels economic growth.

As for the fuel itself … well that seems to be another story ….

Rhion H Jones LL.B