The Court of Appeal in R (on the application of Friends of the Earth & Ors) v Secretary of State for Energy and Climate Change [2009] EWCA CIV 810 upheld McCombe J's dismissal of an application for a declaration that the Secretary of State had failed to fulfil its statutory duty to implement the UK Fuel Poverty Strategy (the "Strategy"). The case raises issues about the nature and scope of such policy-related duties, particularly where they are framed in terms of targets. Another issue was the extent to which the Secretary of State was entitled to take account of financial constraints when deciding whether he had done enough to comply with the duty. The Court of Appeal (Kay LJ giving the leading judgment) noted that this "is a rapidly developing area of public law with an obvious and concerning potential for litigation."

The statutory duty – Section 2 Warm Homes Energy Conservation Act 2000

Section 2 of the Warm Homes and Energy Conservation Act 2000 ("the Act") requires the Secretary of State to publish a strategy setting out his policies "for ensuring… that as far as reasonably practicable, persons do not live in fuel poverty" (our emphasis). It also specifies certain requirements to be met by the strategy, including that it must (section 2(d)) "specify a target date for achieving the objective of ensuring that as far as reasonably practicable persons…do not live in fuel poverty."

The Strategy was published in November 2001. It set target dates for the Government "as far as reasonably practicable [to] seek an end to fuel poverty" (our emphasis.) For vulnerable households, the target date was 2010 and for others it was November 2016.

The Government initiated a number of programmes to meet these targets. However, as a result of steep rises in fuel prices, it became clear that it would not achieve an end to fuel poverty by the target dates. It concluded in September 2007 that it was already taking all reasonably practicable measures required to meet the Strategy targets and that there were no further reasonably practicable measures that it could take to meet the targets. In rejecting a number of possibilities, reference was made to the lack of resources within the relevant department and to the Government's other spending priorities and commitments.

The duty - to succeed or simply to try?

In order to decide whether the Government had complied with its duty, it was necessary first to decide exactly what the nature of its duty was, on the proper construction of the Act. At first instance, McCombe J found that the duty was constructed in the language of "effort" to achieve targets, rather than of a guarantee that targets would be reached. The Court of Appeal upheld that approach and concluded that, as a matter of statutory construction, the Act and Strategy did not confer a duty to succeed in meeting the Strategy targets but merely a duty to try to succeed.

Commenting on the Act and Strategy, the Court of Appeal also noted the "relatively sudden upsurge of this type of target-setting, duty-creating legislation" and "the variety of formulations in relation to such duties, each model attracting its own interpretation."

"Reasonable practicability" and financial constraints

Having concluded that the essential duty was framed in terms of effort or endeavour, the Court of Appeal went on to consider whether the Government had done all that was "reasonably practicable" to comply with that duty. In particular, there was an issue as to whether the Government had been entitled to rely on financial constraints as justification for not taking further steps aimed at achieving the targets.

In analysing the extent of "reasonable practicability", McCombe J at first instance stated that he did not consider that Government had assumed a statutory duty to achieve the desired results, whatever the cost and in priority to all its other commitments. He also indicated that it was not the role of the Court to review policy decisions of the Secretary of State regarding how he should implement the Strategy and that the Government was permitted to consider "reasonable practicability" by reference to current budgetary constraints.

Before the Court of Appeal, the appellant argued that the words "as far as reasonably practicable" required the Government to achieve its targets except to the extent that the costs of this would be "grossly disproportionate" to the benefits conferred. The Court of Appeal rejected this approach, finding that the Government was obliged to attain a "minimum standard", which was to implement the express provisions of the Strategy, including preserving Winter Fuel Payments and funding the Warm Front initiative. Beyond those provisions, any policy choices which resulted in Strategy targets not being met had political rather than legal consequences.

The Court (disagreeing with McCombe J on this point) also accepted the Secretary of State's argument that in deciding what was "reasonably practicable" he was entitled to limit his consideration to the relevant departmental budgets rather than to the resources of Government as a whole. The Court accepted that this would have led the eradication of fuel poverty to be prioritised over other Government commitments such as the National Health Service, education, defence and policing, since these were not the subject of statutory duties as found in the Act. The Court observed that such a situation would be "constitutionally startling" and would set the scene for a "wholly undesirable judicialisation of public spending priorities."

Comment

This case provides useful guidance as to the extent to which budgetary constraints may bear upon the performance of statutory duties, particularly in the context of financial matters outside the control of Government. Although the Government successfully resisted this application for judicial review, the enshrining in statute of targets, which could equally have taken the form of policy guidance, is likely (as the Court noted) to give rise to further challenges. This trend for "target-setting" legislation increases the scope for challenges on political issues and impacts directly on the public bodies charged with implementing such targets.