High Court orders publication of draft air quality plan before the general election

In ClientEarth v Secretary of State for Environment, Food and Rural Affairs [2017] EWHC 1618 (Admin), the High Court rejected the government’s application to delay publishing its draft Air Quality Plan (AQP) for consultation until after the June 2017 general election. The government had argued that consultation on its AQP would contravene the purdah restrictions ahead of the forthcoming local and general elections. In refusing the application, the court ruled that purdah was simply a convention and did not override the government’s statutory duty and legal obligations to comply with the Air Quality Directive. Furthermore, the case fell within the exceptions to the purdah rules in the Cabinet Office Guidance on account of the continued threat to public health resulting from additional delays.

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What is the significance of the decision?

This decision is the latest in a series of court challenges between by ClientEarth and the government concerning the domestic implementation of the EU Ambient Air Quality Directive 2008/50/EC (the Air Quality Directive). It illustrates the role of national courts in ensuring the proper implementation of and compliance with EU law. The judgment is also an important confirmation that political convention does not necessarily entitle a public authority to fail to comply with its statutory duties or a court imposed order, particularly where such failures lead to a continued threat to public health.

The government has confirmed it will not be seeking leave to appeal the ruling. Consequently, it will have to publish its draft AQP by 9 May 2017. Developers promoting development projects with air quality implications will have to take into account the modelling used to prepare the draft AQP and any measures it contains to reduce nitrogen dioxide.

What is the legal background to the case?

ClientEarth first commenced proceedings against the government in 2011 for the failure to put a plan to the European Commission for reducing nitrogen dioxide to levels below the limit values by 1 January 2015, as required under Articles 13 and 22 of the Air Quality Directive. The court in that initial case recognised that the government was in breach of its obligations to ensure cleaner air but declined to grant any relief. A 2014 ruling by the Court of Justice of the European Union in C-404/13: The Queen, on the application of ClientEarth v The Secretary of State for the Environment, Food and Rural Affairs clarified that enforcement of the Air Quality Directive was within the jurisdiction of national courts. The Supreme Court subsequently issued both a declaration of non-compliance and a mandatory order requiring the Secretary of State to revise the AQPs to demonstrate how conformity with the nitrogen dioxide limit values would be achieved as soon as possible in R (on the application of ClientEarth) v The Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28.

In December 2015, the government published its revised AQP. ClientEarth issued proceedings against the AQP, arguing that it failed to achieve the value limits within the shortest possible time, as required by the Air Quality Directive. On 2 November 2016, in R (ClientEarth (No. 2) v Secretary of State for Environment, Food and Rural Affairs [2016] EWHC 2740 (Admin), the High Court held that the December 2015 AQP published by the Secretary of State had failed to comply with Article 23(1) of the Air Quality Directive, and its domestic implementing instrument, Regulation 26(2) of the Air Quality Standards Regulations 2010, SI 2010/1001 (the Air Quality Regulations). The court found that on its proper construction, Article 23 of the Air Quality Directive meant that the Secretary of State 'must aim to achieve compliance by the soonest date possible, that she must choose a route to that objective which reduces exposure as quickly as possible, and that she must take steps which mean meeting the value limits is not just possible, but likely.' For several reasons, which included that the Secretary of State adopted too optimistic a model for future emissions, the AQP failed to comply with those requirements, so that the 2015 AQP was quashed. The court ordered that a draft modified AQP was to be published for consultation by the Secretary of State by 4pm on 24 April 2017, and a final AQP by 31 July 2017.

What is the political background to the case?

On 12 April 2017, in advance of the local elections on 4 May 2017, the Cabinet Office published its guidance on a three week 'period of sensitivity' (also known as purdah) in which ministers, public servants, councillors and officials are expected to refrain from making announcements or decisions with political implications. On the following day, the Department for Environment, Food and Rural Affairs (Defra) issued its application for an order to vary the court's order and to postpone the publication of the draft AQP from 24 April 2017 to 9 May 2017.

On 18 April 2017, the Prime Minister made a surprise announcement that she intended to seek Parliament's approval for a general election to be held on 8 June 2017. The Cabinet Office published its guidance in respect of the purdah period applying in respect of the general election on 20 April 2017 (the Guidance). It came into effect at midnight on 21 April 2017 and is applicable until the date of the general election.

On 21 April 2017, Defra prepared an urgent application to the High Court to extend the deadline for publication of the draft AQP to 30 June 2017, ie after the general election, and the final AQP by 15 September 2017. The government relied on the Cabinet Office's Guidance, which it argued restricted it from publishing and consulting on the draft AQP.

What did the court decide?

The court allowed the first extension of time for the draft AQP to be published on 9 May 2017, the day after which the newly elected local councillors take office. However it dismissed the second application to cover the general election period.

The nature of purdah

The government had argued that the purpose of purdah is to protect the electoral process from interference, whether intentional or not, by local or central government members. As such, a consultation on an AQP during this period could risk distracting the electorate or potentially influence the final outcome. Furthermore, the government argued that if the consultation were to go ahead in advance of the general election, there was a real risk that the quality of the process would be substantially undermined because the government would be constrained in publicising it or holding stakeholder events.

The court rejected this argument. It ruled that purdah in itself is not a principle of law nor binding upon the courts. It therefore did not override the government's duty to comply with both its statutory duty and order of the court to produce a draft plan to reduce exposure to nitrogen dioxide as quickly as possible, regardless of the degree of influence this would risk having on local and general elections.

However the court accepted that local authorities are potentially crucial consultees in the consultation of the draft AQP due to their active role in monitoring air pollution against national targets and to take action where these targets are unlikely to be met. This contrasts to the primarily receptive role of the national government after the launch of a consultation, and so the same considerations do not apply in respect of the general election. Additionally, granting the extension to take into account the local election need not threaten the publication date of the final plan.

The effect of the Cabinet Office Guidance

The court accepted that the general principles set out in the Guidance applied in the present case but noted that the Guidance also acknowledges that it remains open to the government to launch public consultations during the purdah period preceding a election if there are 'exceptional circumstances which make that launch essential'. It rejected the government's distinction that these 'exceptional circumstances' applied to the example of an unexpected public health emergency, and not the continued threat caused by nitrogen dioxide emission which the government has been long aware of.

Furthermore, the government's failure to comply with its obligations to improve air quality compounds an already significant existing threat to public health. On this point, the court cited Defra's own analysis that the effects of exposure to nitrogen dioxide contributes to the equivalent of 23,500 deaths annually in the UK or on average 64 deaths a day. The circumstances of the present case therefore fell within the exceptional circumstances exception provided for in the Guidance.

Condoning a continuing breach

The court emphasised that as no AQP has yet been published, the Secretary of State remains in breach of her obligations to achieve compliance by the soonest possible date under the Air Quality Directive, the Air Quality Regulations as well as the by the date specified in the court order of November 2016. By granting the extension as sought by the government, the court would serve to permit all these continuing breaches of law. Such a step by the court could only be justified in the most exceptional of cases, of which the present case was not one.

Finally, the court re-iterated the detrimental continued threat to public health caused by continued delays in complying with the Air Quality Directive and Air Quality Regulations. According to the court, '[t]hat alone constitutes a powerful reason for refusing to permit further delay in the process to remedy the problem' and constitute circumstances which are 'wholly exceptional'.

This Analysis was originally published on Lexis®PSL Environment. Discover how Lexis®PSL can help you stay on top of the latest developments and find the answers you need fast: click here for a free trial to access.

Postscript: On 5 May 2017, Defra and the Department for Transport published their draft AQP for consultation.

 
Filed Under: Environment

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