HM Treasury & Anor v Global Feedback Ltd

Factual and Procedural Background

This appeal concerns the interpretation of Article 9(3) of the Aarhus Convention, which mandates that Parties ensure public access to procedures to challenge acts or omissions contravening national environmental law. The case arises from a judicial review claim brought by Plaintiff, a charity focused on environmental protection, against Defendant authorities regarding the decision to implement the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023 ("the 2023 Regulations"). These Regulations give effect to tariff preferences under a Free Trade Agreement (FTA) between the UK and Australia, which Plaintiff alleges will increase greenhouse gas emissions through "carbon leakage" due to differences in beef production emissions between the two countries.

Plaintiff contends that Defendant authorities failed to properly assess the environmental impact, acted irrationally, and misapplied international climate change obligations. Permission for judicial review was granted by Judge Lang, who subsequently ruled the claim to be an Aarhus Convention claim subject to costs limits under CPR 46. The Defendant authorities appealed this ruling concerning the Aarhus Convention claim status, and the judicial review is stayed pending the appeal. An environmental charity was granted leave to intervene by way of written submissions.

The procedural history includes multiple hearings before Judge Lang, with orders applying costs limits and awarding costs against Defendant authorities. The appeal focuses on the interpretation of the phrase "which contravene provisions of its national law relating to the environment" in Article 9(3) and whether the claim qualifies as an Aarhus Convention claim under Part IX of CPR 46.

Legal Issues Presented

1. What is the proper interpretation and scope of the phrase "which contravene provisions of its national law relating to the environment" in Article 9(3) of the Aarhus Convention?
2. Whether the judicial review claim challenging the 2023 Regulations falls within the definition of an Aarhus Convention claim subject to costs protections under CPR 46 Part IX.
3. Whether statutory provisions, including section 28 of the Taxation (Cross-Border Trade) Act 2018, which requires regard to international arrangements such as the UNFCCC, constitute national law relating to the environment for the purposes of Article 9(3).
4. Whether public law principles and alleged procedural errors connected to environmental considerations engage Article 9(3) when the underlying statutory scheme is not environmental in purpose.

Arguments of the Parties

Defendant's Arguments

• Article 9(3) applies only to contraventions of domestic law enacted for the protection or regulation of the environment; indirect or incidental effects on the environment are insufficient.
• The Taxation (Cross-Border Trade) Act 2018, including section 28, concerns import duties and taxation, not environmental protection, and thus does not constitute national environmental law.
• General public law principles and procedural errors related to environmental effects do not engage Article 9(3) absent contravention of specific environmental law provisions.
• The claim's environmental focus does not transform non-environmental legislation into environmental law.
• They challenge the correctness of the decision in R (Friends of the Earth Limited) v Secretary of State for International Trade as wrongly extending Article 9(3) to non-environmental legislation.

Plaintiff's Arguments

• A law falls within Article 9(3) if it has an environmental purpose, even if embedded within broader non-environmental legislation.
• A qualifying legal provision may include policies or obligations to have regard to environmental considerations, even if not binding law.
• The claim is an Aarhus Convention claim because the grounds for judicial review relate to environmental considerations, including carbon leakage and climate change impacts.
• Failure to consider international environmental obligations, such as the UNFCCC, under section 28 of the 2018 Act constitutes a contravention of national law relating to the environment.
• All public law errors connected to environmental matters should fall within Article 9(3) and (4), ensuring adequate access to justice.

Intervener's Arguments (Environmental Charity)

• Article 9(3) should be interpreted broadly to encompass all national rules capable of producing some effect or impact on the environment.
• The 2018 Act's potential environmental impact is sufficient to bring it within the scope of Article 9(3).

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by examining the language of Article 9(3) of the Aarhus Convention, focusing on the phrase "which contravene provisions of its national law relating to the environment." It emphasized that the connector "relating to" must be given a strong, not broad or loose, meaning consistent with the Convention's purpose to ensure effective environmental protection.

The Court reviewed the travaux préparatoires and the authentic French text, confirming that the national law provision must be concerned with the environment, not merely have incidental environmental effects. This interpretation aligns with established case law such as Venn and Austin.

The Court distinguished between laws enacted for environmental protection or regulation and general legislation with incidental environmental impacts. It held that a claim under non-environmental legislation, even if involving public law errors connected to environmental considerations, does not engage Article 9(3) unless the specific legal provision challenged has an environmental purpose.

The Court rejected the broader interpretation advocated by Plaintiff and Intervener, which would extend Article 9(3) to any law that might affect the environment indirectly. It also disagreed with the reasoning in Friends of the Earth, finding it inconsistent with the Convention's language and purpose.

Regarding section 28 of the Taxation (Cross-Border Trade) Act 2018, the Court found it to be a general obligation to have regard to international arrangements relevant to the function exercised, without an environmental protection or regulation purpose. Therefore, it does not constitute national environmental law under Article 9(3).

The Court further explained that public law principles regulating administrative legality do not form part of environmental law simply because the underlying decision has environmental effects. Such claims fall outside Article 9(3) and would require costs protection orders under other procedural rules.

Applying these principles, the Court concluded that the judicial review claim challenging the 2023 Regulations does not fall within Article 9(3) because the statutory provisions under which the decision was made are not environmental law, notwithstanding the environmental concerns raised.

Holding and Implications

The Court's final decision is to ALLOW THE APPEAL, overturning the lower court's determination that the claim is an Aarhus Convention claim under Article 9(3).

The direct effect is that the judicial review claim does not benefit from the costs protections afforded to Aarhus Convention claims under Part IX of CPR 46. The claim remains subject to standard procedural rules without the enhanced protections of the Convention.

No new precedent expanding the scope of Article 9(3) was established; rather, the Court reaffirmed a restrictive interpretation requiring the challenged legal provision to have an environmental protection or regulation purpose. This decision clarifies the limits of access to justice under the Aarhus Convention in the context of claims involving environmental considerations connected to non-environmental legislation.