Is it Tenable? R (Friends of the Earth Ltd) v. Secretary of State for International Trade, [2023] EWCA Civ 14

From the Court of Appeal for England and Wales, here is an interesting recent judicial review decision about the effect of international agreements, and the role of the courts, in dualist legal systems: R. (Friends of the Earth) v. Secretary of State for International Trade, [2023] EWCA Civ 14.

Here, Friends of the Earth sought judicial review of a decision to fund a liquified natural gas project in Mozambique on the basis that the decision was incompatible with Britain’s commitments under the Paris Agreement on climate change. Article 2(1)(c) of the Paris Agreement states that the Agreement “aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by … Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development”.

The project at issue here would have very large ‘Scope 3’ emissions, that is all indirect emissions from the fossil fuels extracted by a project not which are not direct emissions (or indirect emissions from the generation of purchased electricity). Friends of the Earth argued, accordingly, that there was no rational basis for the British government to conclude that funding the project was consistent with its international obligations under the Agreement; they also argued that the government had failed to meet its ‘Tameside‘ duty (discussed here) to investigate the scale of the ‘Scope 3’ emissions.

The Court of Appeal found that the funding decision was lawful.

First, the Agreement is an unincorporated treaty with no effect in domestic law. There was no jurisprudence at the international level or otherwise, on the “precise legal meaning” of the Agreement: it was accordingly sufficient for the government to adopt a “tenable” view of the Agreement: “Questions as to the interpretation of an unincorporated treaty [are] for the executive to determine” (at paras. 29, 50). The ‘tenability’ approach is the appropriate one in respect of unincorporated treaties, the Court of Appeal found, because the alternative would be “to make it necessary for the domestic courts definitively to construe unincorporated treaties every time the executive decided to have regard to them in making decisions”: this “would be problematic and unworkable” (at para. 50) as it would contribute to a cacophony of domestic voices chiming in on the meaning of an international agreement. The Agreement was better viewed as one of a “range of factors” to which the government was entitled to have regard in making a decision (at para. 50).

Here, the government had a “tenable” view that the Agreement did not require it to demonstrate that its funding decision was compatible with a pathway to limiting global warming. There had been internal advice that funding the project was, on balance, consistent with Britain’s obligations under the Agreement, as the gas produced could displace coal in power generation in other states (at para. 10). It was also advised internally that the project was an important part of Mozambique’s transition to cleaner energy sources (at para. 11). For the Court of Appeal, therefore:

…it cannot possibly have been irrational for the respondents to decide to provide finance for the project, when they were being advised that the project could, in some scenarios, align with the UK’s obligations under the Paris Agreement. That was at least a tenable view (at para. 56).

The ‘tenable view’ approach was set out by Philip Sales QC (now Lord Sales) and Joanne Clement in a 2008 article:

If the rule of law in Launder is treated as unlimited it will lead to very extensive direct application of treaties and international law in the domestic courts, thereby for practical purposes undermining the basic constitutional principle about non-enforceability of unincorporated treaties. One solution might be for the domestic courts, in recognition of the limits of their competence … either to decline to rule or to allow the executive a form of margin of appreciation on the legal question, and to examine only whether a tenable view has been adopted on the point of international law (rather than ruling on it themselves, as if it were a hard-edged point of domestic law) … Adoption of a ‘tenable view’ approach would be a way … to allow space to the executive to seek to press for legal interpretations on the international plane to favour the United Kingdom’s national interest, while also providing a degree of judicial control to ensure that the positions adopted are not beyond what is reasonable (“International Law in Domestic Courts: The Developing Framework” 124 LQR 388, cited at para. 29).

It might seem odd on first glance for judges to hand off the interpretation of legal instruments (even non-binding ones) to ministers. In other cases, the English courts have considered the proper approach to the interpretation of non-binding instruments, such as administrative policies. There, the view has been that the correct interpretation of a policy is “a matter of law which the court must therefore decide for itself” (Mandalia v. Home Secretary, [2015] UKSC 59, at para. 31; R. (SK (Zimbabwe)) v. Secretary of State for the Home Department (Bail for Immigration Detainees intervening), [2011] UKSC 23, at para. 36). In respect of policies, though, the definitive interpretation offered by a court will be of domestic interest only: it would not necessarily complicate life for ministers who must perform on the international stage.

In addition, as Lance Baynham has observed at the UK Human Rights Law Blog, the UK Supreme Court has sometimes taken a more nuanced approach to policies. In R (Samuel Smith Breweries) v. North Yorkshire County Council, [2020] UKSC 3, the meaning of “openness” in the National Planning Policy Framework was at issue. Lord Carnwath cautioned that this “broad policy concept” lent itself to “planning judgement” (at para. 22), in contradistinction to policies containing “relatively specific language” (at para. 21). Implementing the Agreement arguably also requires the exercise of judgement.

There is some hint, therefore, in Friends of the Earth that deference will be paid to ministers on the interpretation of legal instruments, but in an unusual context, where judicial pronouncements could have unintended consequences and the meaning of the instrument is thought to be a matter more for expert judgement than legal analysis.

Second, the Court of Appeal rejected the Tameside challenge, which was based on the failure to quantify the Scope 3 emissions. Here, the reasoning was somewhat thinner:

The ultimate question for the court is whether it can be said to have been irrational for UKEF to have taken the funding decision without quantifying the Scope 3 emissions … Quantification of the Scope 3 emissions did not answer the far more difficult question … whether, and to what extent, gas from the project would replace more polluting fossil fuels and over what timescale. It was, as we have already said, well understood that Scope 3 emissions would far exceed Scope 1 and 2 emissions. We conclude that [the] decisions as to the quantification of the Scope 3 emissions and the adequacy of the [internal report] were well within the substantial margin of appreciation allowed to the decision-makers. The decision to fund the project was not irrational, even bearing in mind that an estimate of the Scope 3 emissions proved to be obtainable in a short timescale when the Prime Minister, in effect, asked for it. Any estimate is by its nature uncertain. A failure to make such an estimate as part of a multifaceted decision-making process does not itself render the decision irrational (at paras. 62-63).

The Court of Appeal also noted that the project would have gone ahead with or without this funding, as other backers were prepared to put up the necessary money (at para. 61). A decision by the British government not to fund the project would not have reduced or avoided the emissions in question.

There are several premises buried in here which could have been unpacked. Evidently, where international relations are concerned, the courts have traditionally given ministers a significant degree of deference: this seems to lie behind the proposition that the scope of the duty to obtain relevant information was relatively narrow in this scenario. Moreover, in a “multifaceted” decision-making process, a particular decision might be reached regardless, even if additional information is put before the decision-maker (see also Canada (Commissioner of Competition) v. Rogers Communications Inc., 2023 FCA 16, at paras. 11, 19). One might also add that the inherently speculative nature of the accounting of benefits that might offset the Scope 3 emissions meant that precise quantification was unnecessary or, at least, unlikely to influence the final decision.

Nonetheless, there is room for scepticism on the Tameside point. The very thing in issue was the balance between the quantifiable Scope 3 emissions and the unquantifiable medium- to long-term benefits of the project. It is hard to say that quantified Scope 3 emissions would have been irrelevant; and if they were not irrelevant, they might well have changed the course of the decision-making process, not least by prompting further investigation of the project’s medium- to long-term benefits. And whether the project would go ahead regardless is not an obviously relevant consideration as far as Britain’s compliance with its obligations is concerned (insofar as those obligations have some grounding in domestic law).

Whether or not the UK Supreme Court grants permission to appeal on one or both grounds, the lesson is that domestic challenges to executive action are less likely to succeed where unincorporated treaties are concerned. Legislation is a much surer thing (as long as it is cast in specific terms, of course).

With thanks to Stéphane Beaulac for discussion.

This content has been updated on January 25, 2023 at 19:11.

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