The Glasgow Climate Pact and COP26: Does It Mean Anything?

The Prime Minister has called the Glasgow Climate Pact (the “Glasgow Pact”) a “game-changing agreement” (albeit through gritted teeth).

There has already been plenty of coverage on the scope of the Glasgow Pact, including on emissions cuts, finance and the decision to “accelerate efforts towards” phasing down “unabated coal power”.

But a number of recent Supreme Court decisions has made clear that absent domestic legislation the Glasgow Pact is difficult to enforce in the UK courts.

If the Government is serious about climate change it needs to enact domestic legislation enabling it to be properly held to account by the UK public.

International climate commitments in UK courts

On an international stage, a rosy picture is painted of commitments by governments to end climate change. The Glasgow Pact follows the Paris Agreement. On 8 October 2021, the UN’s Human Rights Council recognised the right to a clean, heathy and sustainable environment is a human right.

The starting point when considering international treaties is that they have no effect before domestic courts unless they have been enacted by domestic legislation. Individuals cannot enforce them and domestic courts cannot decide whether the Government is in breach. That was made clear in a number of recent Supreme Court cases including R (SC and others) v Secretary of State for Work and Pensions and others [2021] UKSC 26, in which the court stated that a fundamental part of the dualist constitution in the UK is that international law and domestic law operate in independent spheres.

So does that mean the Glasgow Pact is entirely unenforceable before the UK courts?

The obvious comparison is the Paris Agreement. The Supreme Court held in R (Friends of the Earth Limited v Secretary of State for Transport) [2021] PTSR 203 (the “Heathrow Airport Case”) that through sections 1 and 4 of the Climate Change Act 2008 (“CCA”) the UK had given effect in domestic law to its obligations under the Paris agreement.

That was because, in short, the Government amended the target in domestic legislation, the CCA, to take account of the 1.5 degree temperature target set out in the Paris Agreement. Section 1 CCA was revised so that the target for reduction of carbon in the UK against 1990 levels was increased from 80% to 100%. In addition, article 4 of the Paris Agreement requires each state to communicate a “nationally determined contribution” to emissions. Section 4 of the CCA requires the Secretary of State to set a carbon budget for a five year period.

But whilst the Supreme Court held the Paris Agreement to have effect in domestic legislation, the enforcement of those targets faces hurdles. Legal challenges need to be tied to legal duties and obligations.

In the UK, legal duties relating to Paris Agreement generally arise in requirements to “have regard” to the environment. For example, in planning laws, when setting a national policy statement, the Secretary of State must “include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change” (section 5(8) of the Planning Act 2008, the law applicable to the Heathrow Airport Decision).

Legal challenges therefore have generally concerned to what extent decision makers need to have regard to the Paris Agreement, and what is necessary to be taken into account when making decisions.

For example, recent cases (Packham and Transport Action Network) focus on a requirement to address the cumulative burden of carbon emissions in the period leading up to 2050. I.e. whether a decision (such as HS2 or building major roads) will impact the ability to meet the net zero target in 2050 and the carbon budgets running to 2032.

These challenges have generally failed. That is because role of the courts is to ensure that public bodies act within the limits of their legal powers, and is not responsible for making political, social or economic choices. The courts therefore afford the state a great degree of flexibility on how it achieves its aims.

The circumstances in which a judge will consider the Paris Agreement has not been properly taken into account are therefore narrow. The following principles apply:

• (i) where a decision maker decides to take a consideration into account it is generally for him to decide how far to go into the matter, and that judgment may only be challenged on the grounds of irrationality;
• (ii) likewise, the decision maker decides how much weight to attach to a factor, and that judgment can also only be challenged on the grounds of irrationality; and
• (iii) the concept of ‘irrationality’ is a very high bar, which is only met where is a decision is beyond the range of rational responses, or which is based on a flawed logic. Lord Diplock[2] observed “the very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred”

So where does that leave the Glasgow Pact?

One of the highest profile commitments in the Glasgow Pact relates to coal, so a good example of where it could be relevant is the construction of a new coal mine (there are proposals to build one in Cumbria, to be used primarily to produce steel).

The laws which apply to the planning decision of the Cumbrian coal mine are different to the Heathrow Airport Decision. Heathrow Airport had to consider ”Government policy relating to the mitigation of, and adaptation to, climate change” whereas the coal mine must be “environmentally acceptable” and take into account whether it is likely to contribute to sustainable development.

As explained above, the Supreme Court in Heathrow Airport stated that international treaties do not form part of UK legislation or policy unless domestically enacted. It seems to us unlikely therefore the Glasgow Pact will be given any weight.

It could be however that because the legal question applicable to the Cumbrian coal mine is broader than “Government policy” and instead is “environmental acceptability”, a court would decide it can consider the Glasgow Pact as a factor.

But even if a court did decide it could consider the Glasgow Pact, it would still have to grapple with the vague and caveated form of language used in the Glasgow Pact; “accelerate efforts” towards phasing down. And as explained above, the courts will afford the Government a great deal of discretion in deference in the exercise of its discretion.

Concluding thoughts

The Government appears to recognise the commitments made by the international community did not go far enough in the Glasgow Pact.

It remains open to the Government to make stronger domestic commitments, and at least transpose the commitments made in the Glasgow Pact into UK law so it can be held legally accountable.

It appears this Government would rather not tie itself to legal duties and obligations. In an apparent response to high profile legal challenges (e.g. the Miller cases) it has conducted reviews of judicial review and the Human Rights Act. The Environment Act 2021 which quietly received royal assent last week, also has concerning constraints on the court’s ability to grant remedies usually available to it in judicial reviews.

Its reluctance to do so is unlikely to dissuade individuals and groups from making legal arguments based on the Paris Agreement and Glasgow Pact with the aim drawing attention to the gap between aspirational political rhetoric and action.