Friends of the Earth & Ors, R (on the application of) v Secretary of State for Energy & Climate Change

According to its long title, the Warm Homes and Energy Conservation Act 2000 (“the Act”) is an Act:

“to require the Secretary of State to publish and implement a strategy for reducing fuel poverty; to require the setting of targets for the implementation of that strategy; and for connected purposes.”

This style of legislation is of recent origin. Historically, central Government has announced and developed its policies primarily through political rather than statutory or legal channels and the consequences of failure have been political rather than justiciable. It is common ground that the Act is a source of governmental obligations. However, there are fundamental disputes as to their content and extent.

The Act is concerned with “fuel poverty” as defined in section 1(1):

“… a person is to be regarded as living in ‘fuel poverty’ if he is a member of a household living on a lower income in a home which cannot be kept warm at reasonable cost.”

Section 1(2) empowers the Secretary of State to make regulations to define “lower income”, “reasonable cost” and “warm”, but has not done so. This appeal is about section 2, the material parts of which provide:

“(1)

It shall be the duty of the appropriate authority to prepare and publish, before [23 November 2001], a strategy setting out the authority’s policies for ensuring, by means including the taking of measures to ensure the efficient use of energy, that, as far as reasonably practicable persons do not live in fuel poverty.

(2)

The strategy must –

(a)

describe the households to which it applies,

(b)

specify a comprehensive package of measures for ensuring the efficient use of energy, such as the installation of appropriate equipment or insulation,

(c)

specify interim objectives to be achieved and target dates for achieving them, and

(d)

specify a target date for achieving the objective of ensuring that as far as reasonably practicable persons … do not live in fuel poverty.

(3)

The target date specified under subsection (2)(d) must be not more than fifteen years after the date on which the strategy is published.

…

(5)

The appropriate authority shall take such steps as are in its opinion necessary to implement the strategy.

(6)

The appropriate authority shall –

(a)

from time to time assess the impact of steps taken under subsection (5) and the progress made in achieving the objectives and meeting the target dates,

(b)

make any revision of the strategy which the authority considers appropriate in consequence of the assessment, and

(c)

from time to time publish reports on such assessments.”

In England (but not Wales, this being a devolved matter), the appropriate authority is the Secretary of State. When this litigation began, the responsibility was split between the Secretary of State for Business, Enterprise and Regulatory Reform (BERR) and the Secretary of State for Environment, Food and Rural Affairs (DEFRA). However, it is now vested in the Secretary of State for Energy and Climate Change (DECC). At the commencement of the hearing of the appeal we agreed to substitute the Secretary of State for Climate Change as sole respondent. At the same time, we substituted Age UK as one of the appellants, as successor of Help the Aged.

Pursuant to section 2(1) the UK Fuel Poverty Strategy (the Strategy) was published in November 2001. It was revised in December 2002. As it is common ground that the Strategy complied with the requirements of section 2(2), it is unnecessary for me to refer to its detailed contents. Its focus is upon “ the fuel poor household”. It adopted a widely accepted definition of that concept, namely a household which needs to spend more than 10% of its income on fuel in order to heat its home to an adequate standard of warmth, being a standard defined by the World Health Organisation. In the revised version of the Strategy, the targets required by section 2(2)(c) and (d) are described as follows:

“In England, the Government as far as reasonably practicable will seek an end to fuel poverty for vulnerable households by 2010.

Fuel poverty in other households in England will, as far as reasonably practicable, also be tackled as progress is made on these groups, with a target that by 22 November 2016 no person in England should have to live in fuel poverty.”

“Vulnerable households” are defined as those households which include older people, families with children and householders who are disabled or suffering from long-term illness.

A number of programmes have been initiated or continued under the Strategy. “Warm Front” is a programme providing for the making of grants for household energy efficiency measures, energy advice and benefit entitlement checks. “Decent Homes” is a programme designed to set benchmarks for social housing in terms of heating and other standards. “The Carbon Emissions Reduction Target” (CERT) is focused on energy suppliers, requiring them to fund measures to achieve energy savings by customers. Winter Fuel Payments provide an income supplement to all pensioners which, although granted because of perceived heating problems, take the form of direct cash grants which the recipients are free to spend as they wish.

Between 2001 and 2004 the number of households in fuel poverty fell from 1.7 million to 1.2 million. However, since then the numbers have risen significantly. By 2006 there were 1.9 million vulnerable poor households and 2.4 million fuel poor households in total. By 2010, far from meeting the target of an end to fuel poverty for vulnerable households, there will still be a very substantial number of vulnerable households in fuel poverty – approximately 1.2 million. According to Government figures this figure is only slightly lower than when the Strategy was published in 2001. It is abundantly clear that the main reason why the 2010 target will not be met is the very substantial increase in fuel prices in recent years. They rose by 72% in 2002 – 2007, as compared to an increase in the retail price index as a whole over the same period of 21%.

In the evidence provided by the officials responsible for the implementation of the Strategy, there are copious references to budgetary constraints. In September 2007, it was concluded that the Government was already taking all measures which were reasonably practicable in order to meet its fuel poverty targets, both for 2010 and 2016. It was considered that there were no further reasonably practicable measures that could be taken to seek to end fuel poverty amongst vulnerable households by 2010 or to ensure the elimination of fuel poverty by 2016. Numerous possibilities were considered but rejected as being not reasonably practicable, either because they were considered “not presently cost-effective” or because, for example, “substantial additional resources … were not currently available”. References are also made to “the Government’s other spending priorities and commitments”. A witness from DEFRA states:

“The money allocated to Warm Front in the current Comprehensive Spending Review amounted to some 25% of DEFRA’s total capital budget across the three year CSR period. DEFRA was not in a position to make additional funding available for fuel poverty in the light of its other priorities and spending commitments.”

The witness from BERR states:

“Like DEFRA therefore, BERR does not have the additional resources available within its budget to take the steps identified as necessary to end fuel poverty, even if those steps could be made cost-effective.”

It seems that in 2006 the fuel poverty budget of BERR (or its predecessor, the Department of Trade and Industry) was only £267,154, “made up of staffing costs and the sums paid for its contract with the Buildings Research Establishment”. In 2008 it was £474,000. Essentially, the case for the Secretary of State is that what would have been reasonably practicable before the exceptional and unforeseeable rise in energy prices is no longer reasonably practicable.

The present proceedings are in the form of an application for judicial review. The appellants, as claimants, sought a declaration that the Secretary of State is unlawfully failing to perform his duties under section 2(5) and (6). At the commencement of his careful judgment in the court below, McCombe J observed:

“… this is not a challenge to the rationality of any particular decision on Wednesbury grounds but simply on the basis that the defendants have failed to meet their statutory duties under section 2(5) and (6) of the Act.”

The challenge is not to the Strategy but to an alleged failure to implement the Strategy. The primary dispute between the parties relates to the proper construction of the Act, although Mr Michael Fordham QC, on behalf of the appellants, makes a further and alternative submission that, even if the appellants fail on statutory construction, the appellants should still succeed because, in the words of the skeleton argument, “much of the Secretary of State’s thinking on which steps to take or not to take remained without any reasonable justification”. In the event McCombe J found in favour of the Secretary of State on most of the construction issues and rejected the “no reasonable justification” submission: [2008] EWHC 2518 (Admin). On this appeal, Mr Fordham has repeated most but not all of the original grounds of challenge. On behalf of the Secretary of State, Mr Jason Coppel submits that the judge was correct to reject the application for judicial review and, by way of a Respondent’s Notice, further submits that the judge ought to have found in favour of the Secretary of State on other grounds.

Although much of this appeal is focused on the words “as far as reasonably practicable” in section 2(2)(d), there is a prior question as to the obligation to which those words of limitation attach. McCombe J said (at paragraphs 18-19):

“… it must be recalled that the document [viz the Strategy] is a policy document, although the Act imposes a legal duty to take the steps considered necessary to implement the policy. This is a distinction when compared with most other government policies which impose political rather than legal duties. So, while adopting a flexible approach to a construction of a policy document, there remains to my mind a duty upon the government … to take such steps as it considers necessary to ‘seek’ (ie to ‘try’) ‘as far as reasonably practicable’ to end fuel poverty in vulnerable households by 2010 and ‘so far as reasonably practicable’ to ‘tackle’ fuel poverty (ie ‘try to eliminate it’) in other households, with a ‘target’ of ending fuel poverty in other homes by 2016.

This is the language of ‘effort’ to achieve targets, rather than of a guarantee that targets will be reached.”

Mr Fordham submits that this construction is wrong and that the duty is not simply to try but to achieve a result by a date – subject, of course, to the test of reasonable practicability. He seeks to support his submission by reference to other features of the statutory language. Section 2(1) requires that the Strategy sets out policies for ensuring that persons do not live in fuel poverty. By section 2(2), the Strategy must specify a target date for achieving the stated objective. Section 2(5) requires the Secretary of State to take such steps as are in his opinion necessary to implement the Strategy. So, submits Mr Fordham, the Secretary of State “can choose the route, but not the destination”. He further submits that this approach is reflected in the language of section 2(2)(c) which is in the form of a requirement that the Strategy must specify interim objectives to be achieved and target dates for achieving them.

Until recently, one would not have expected legislation to impose upon central government a model which defines the route from policy, via strategy, to implementation in terms of legal obligation within a temporal framework. However, in so doing – and here the dispute is about the extent not the fact of legal obligation – the 2000 Act is not unique.

At the hearing, counsel were unable to tell us of any other statute which imposes this sort of obligation on a Secretary of State. However, the following examples have since come to my attention. Section 4 of the Climate Change and Sustainable Energy Act 2006 requires the Secretary of State to designate one or more national microgeneration targets and section 4(5) requires him to “take all reasonable steps to secure that the target is met”. Section 1 of the Climate Change Act 2008 imposes on the Secretary of State a duty “to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline”. By section 2 he is empowered to amend this target in certain circumstances. Any decision he takes must take into account numerous matters, including

“economic circumstances, and in particular the likely impact of the decision on the economy and the competitiveness of particular sections of the economy.”

Counsel did refer to the Child Poverty Bill presently before Parliament, clause 1 of which would impose a duty “to ensure that the following targets are met … in relation to the target years”. There is also a private members’ bill, the Climate Change (Sectional Targets) Bill, due for second reading in October, which would require the Secretary of State “to take all reasonable steps to ensure that … specified targets are met”. There are two striking things about all this. The first is the relatively sudden upsurge of this type of target-setting, duty-creating legislation. The second is the variety of formulations in relation to such duties, each model attracting its own interpretation. On any view, this is a rapidly developing area of public law with an obvious and concerning potential for litigation.

Without proffering authoritative interpretations of legislation which is not in issue in the present case, one can at least observe that sometimes the drafting is more hard-edged than it is in the 2000 Act. It seems to me that it behoves a court to proceed with caution so as to ensure that softer obligations are not construed in a more prescriptive manner than their language and context require. In my judgment, McCombe J was correct to emphasise the flavour of the statutory language to which he referred. Notwithstanding the other parts referred to by Mr Fordham, I agree that, properly construed, the essential legal obligation is correctly described in terms of effort or endeavour.

The case for the Secretary of State is that, in September 2007 (the relevant date in the present case), there was no further step that it would have been reasonably practicable for him to take, given the overall spending priorities of the Government and the budgets allocated to DEFRA and BERR for fighting fuel poverty. He continues to review his approach to fuel poverty in the light of changing circumstances and new measures were in fact introduced in September 2008. The appellants, on the other hand, contend that “budgets must follow the statutory duty, not the other way round”. Mr Fordham does not leave this in absolute terms but on the basis that the duty to achieve an objective “as far as reasonably practicable” contains a duty to achieve it except to the extent that the costs involved in so doing would be grossly disproportionate to the benefits.

McCombe J rejected the appellants’ case in these passages (at paragraphs 28-31):

“… in framing s.2(1) and (2)(d) of this Act Parliament would have taken as axiomatic that the pressures on budgets are intense and that government would have to take the necessary steps in the context of other pressing needs for funds. I cannot conceive that Parliament can be taken to have intended that, whatever the expense, so long as not disproportionate to the benefit, the government should be obliged to expend whatever funds might be necessary to eliminate fuel poverty in priority to all its other commitments.

… Government … did not assume a statutory duty to achieve the desired results, whatever the cost.

This is not to say that resources are dictating the content of the legal duty … the court will not shrink from declaring government’s action or inaction unlawful, simply because to do so may have spending implications …

In my judgment, absent a rationality challenge or a demonstrated failure to implement an identifiable part of the Strategy’s provisions, I do not consider that it is open to the court to review the policy decisions of the [Secretary of State] as to the way [he] should go about the implementation of the Strategy. It is open to the government to have regard to its overall budget and other calls upon its resources in deciding what steps to take in implementation of the Strategy, including its requirement that efforts should be made to achieve the 2010 and 2016 targets as far as reasonably practicable.”

He accepted a submission by Mr Jason Coppel, on behalf of the defendants, that the “minimum standard” to be attained in performance of the duty is implementation of the express provisions of the Strategy. Thus, to eliminate Winter Fuel Payments in their entirety or cut Warm Front funding to zero would be a breach. Above that, however, policy choices which cause the targets of the Strategy not to be met, have potential political rather than legal consequences.

These passages give rise to a number of criticisms on behalf of the appellants. To some extent they overlap, but I shall endeavour to deal with them separately.

“Reasonably practicable” in other statutory contexts

Mr Fordham points to a number of statutory duties, from the Metropolitan Gas Act 1860 to the Health and Safety at Work etc Act 1974, which have obliged undertakers, occupiers or employers to ensure safety “so far as is reasonably practicable”. He submits that an established approach to a form of words in previous legislation leads to at least a presumption that, when using the same form of words in a later statute, Parliament is investing them with the same established meaning: Bennion, Statutory Interpretation, 5^th edition, p.599. In my judgment, it is not appropriate to read across from previous legislation of the kind indicated in order to define the extent of a public law duty such as that imposed by section 2 of the 2000 Act. The inappropriateness is acknowledged in R v London Borough of Brent, ex parte S [1994] 1 FLR 203, at pages 214-215, per Peter Gibson LJ (rejecting the analogy of section 28(1) of the Factories Act 1961 when construing section 23(8) of the Children Act 1989).

Inconsistency with R(Calgin) v Enfield LBC

Calgin, [2006] 1 All ER 112, was concerned with the duties of a local housing authority under Part VII of the Housing Act 1996. By section 188, in defined circumstances the authority has an obligation to provide an applicant with interim accommodation. By section 206(1), the obligation may only be discharged in certain ways including (a) by securing that suitable accommodation provided by it is available or (b) by securing that the applicant obtains suitable accommodation from some other person. Section 208(1) then provides:

“So far as reasonably practicable a local housing authority shall … secure that accommodation is available for the occupation of the applicant in their district.”

In other words, if the authority secures accommodation from “some other person”, then, so far as reasonably practicable, it must be in its own district. The case was concerned with “out of district” provision. At one point in his judgment (paragraph 32), Elias J said:

“There is a minimum standard below which the council cannot fall, and lack of resources will not justify going below that standard … ” (Emphasis added)

Mr Fordham seeks to draw on this passage to support his submission that it is first necessary to identify the minimum that must be done in order to fulfil a statutory duty. Then, he submits, the budget must follow from that; and “it cannot be right that the minimum is dictated by the resources already allocated to fighting fuel poverty”.

The difficulty with this submission is that it is constructed on the first part of a sentence from the judgment of Elias J in Calgin, without regard to what came before and after it. The remainder of the sentence reads:

“but ‘ it is a matter of judgment for the local authority to decide what accommodation on the spectrum of suitable accommodation to select’ per Dyson J in [R(Sacupima) v Newham LBC (2001) 33 HLR 1, at paragraph 18].”

Mr Fordham’s submission has to be that Elias J was right in one part of his sentence, but wrong in the other parts and elsewhere in his judgment, where the “matter of judgment for the local authority”, was assessed against a Wednesbury test of what was reasonably practicable. In my judgment, the selective reliance on Calgin is not sustainable. What Calgin, Sacupima and the earlier Court of Appeal authority of S (above, paragraph 25) all demonstrate is the relevance of current resources when considering reasonable practicability, whilst acknowledging that there is a minimum standard below which the authority must not drop. This was the approach adopted by McCombe J in the present case. I consider that he was correct on the authorities to reject the submission that it is impermissible for the Secretary of State to approach the question of reasonable practicability as he did by reference to current budgetary constraints.

Reasonable practicability and gross disproportionality

In a sense, this third criticism is an amalgam of the first two, run harder in this court than it was below because Mr Fordham expresses disinhibition from the full force of Calgin and, in particular, from the notion that a public law duty couched in terms of reasonable practicability allows a Wednesbury area of discretion, albeit subject to the attainment of a minimum standard. In his skeleton argument, he encapsulates the submission in this way:

“… as a matter of principled statutory construction, the ‘reasonably practicable’ qualification does not give the Secretary of State a discretion as to what is to be achieved but absolves him of a breach of duty if it is simply not feasible to ensure that nobody lives in fuel poverty, or of the costs of so doing (be they financial or other costs) are out of all proportion to the benefits.”

By way of written submissions, he sought to support this approach by reference to two arguments. The first involved resort to Hansard as an aid to construction but that played no part in the oral submissions. I infer that this was either because of late recognition that this is not a Pepper v Hart case or, more probably, because Mr Coppel, in his skeleton argument, was able to demonstrate counter-arguments from within the same debates as reported in Hansard. I need say no more about that.

The second argument involved reliance on the meaning given to the “reasonably practicable” qualification in other legislation, including the Factories Act and the Health and Safety at Work etc Act – in other words, a more nuanced representation of the argument I rejected in its more generalised, abstract form in criticism (1): paragraph 25 above. In health and safety law, the best-known formulation is that of Asquith LJ in Edwards v National Coal Board [1949] 1 KB 704 (at page 712):

“… a computation must be made by the [defendants], in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them.”

On this basis, only the grossly disproportionate is not reasonably practicable. If applicable in the present context, the reasonably practicable qualification would oblige the Secretary of State to take all steps to achieve the 2010 and 2016 targets, except to the extent that particular steps carry costs out of all proportion to their potential contribution to the achievement of the objective.

In my judgment, this submission goes no further in its refocused, reformulated form than it did in its more abstract form advanced as criticism (1). Essentially, it was considered and rejected not only by Elias J in Calgin but also by this Court in S, where, invited to proceed by analogy with the health and safety cases, all three members of the court (Peter Gibson LJ at pages 214-215, Ralph Gibson LJ at pages 217-218, and Hirst LJ who agreed, at page 218) preferred to apply conventional public law principles. Nor do I consider that these authorities are readily distinguishable because they deal with different statutes. As Mr Coppel submits, the cost of eradicating fuel poverty is dependent upon factors beyond the direct control of the Secretary of State, in particular the cost of energy, and Parliament cannot have intended to impose upon him an obligation to meet that cost without reference to the discretion which would usually be accorded in fixing spending priorities and allocating resources. That the reasonably practicable test does not bear the same meaning in all contexts, and particularly as between tortious and public law applications, gains some support from R(Q) v Secretary of State for the Home Department [2003] EWCA Civ 364, [2004] QB 36, where the test applied not to the decision of the Secretary of State but to the conduct of the applicant asylum seeker. Giving the judgment of the court (which also included Clarke and Sedley LJJ), Lord Phillips of Worth Matravers MR referred to Edwards v National Coal Board and said (at paragraph 32):

“There the relevant test of proportionality involves weighing what is physically involved in taking a precaution against the risk that it will guard against … There is no scope for such an exercise in the present context.”

I do not equate the position of the applicant asylum seeker in that case with the position of the Secretary of State in the present case. Of course, the context is different. But what it illustrates is that the meaning of a test of reasonable practicability can vary between one statutory context and another.

All this leads me to conclude that, both as a result of authority and as a matter of principle, the “grossly disproportionate” approach does not apply in this case.

As I noted earlier (at paragraph 22 above), McCombe J admitted two ways in which it is open to the court to review decisions as to the way the Secretary of State should go about the implementation of the Strategy. One – a Wednesbury challenge – is disavowed by the appellants. The other is by way of “a demonstrated failure to implement an identifiable part of the Strategy’s provisions”. It was in connection with the latter that he propounded his “minimum standard” formulation. The context is important. Having concluded that (i) it is not open to the court to review policy decisions of the Secretary of State as to the way he should go about the implementation of the Strategy and (ii) it is open to the government to have regard to its overall budget and other calls on its resources in deciding what steps to take in implementation of the Strategy, including the requirement that efforts should be made to achieve the 2010 and 2016 targets as far as reasonably practicable, he said (at paragraph 31):

“… the ‘minimum standard’ to be attained in performance of the duty is implementation of the Strategy’s express provisions.”

On this basis there would be a constraint upon the elimination of Winter Fuel Payments in their entirety or the reduction of Warm Front funding to zero.

The rationale underlying this is that “the Strategy’s express provisions” are limited to the specific steps detailed in the Strategy itself. This is because, under section 2(5), the obligation is to take such steps “as are in its opinion necessary to implement the Strategy”. Mr Fordham complains that it would be pointless, and would defeat the purpose of the Act, if the Secretary of State is obliged only to give effect to such steps as he chooses to set out in the Strategy. He submits that the obligation must extend to the achievement of the final and interim objectives by their target dates, subject to the reasonably practicable qualification.

In referring to “the minimum standard”, McCombe J was replicating the language of Elias J in Calgin. However, he was not plucking a judge-made measurement from the air. He was identifying the standard as defined in the statute which refers in terms to the taking of steps necessary to implement the strategy. Interim objectives and target dates for achieving them have to be specified under section 2(2)(c) and the strategy must also “specify a target date for achieving the objective of ensuring that, as far as reasonably practicable, persons do not live in fuel poverty”: section 2(2)(d). I accept Mr Coppel’s submission that the specified objectives and target dates are of fundamental importance in conditioning the content of the strategy. He concedes that the strategy must contain a package of measures which are suitable and appropriate for achieving the interim and final objectives. However, the appellants have never disputed that it did so. This is what the judge was referring to in his reference to “the minimum standard”. In my judgment, there was no error in his approach.

Departmental budgets

One part of McCombe J’s judgment has attracted criticism from both sides. It is to be found in these passages:

“36.[In light of the evidence], it seemed possible that the decision as to what steps are reasonably practicable may have been determined at times not by reference to the resources of government as a whole but merely by reference to the budgets of DEFRA and BERR … If that was so then, as it seems to me, there might have been a potential breach of duty under the Act to that limited extent.”

He then rejected a submission by Mr Coppel based on the Appropriation Act before concluding (at paragraph 38):

“However, the evidence on this point is far from conclusive and is, in my judgment, an insufficient basis for finding a breach of statutory duty. Even if I am wrong in that conclusion on the evidence, given the main thrust of the arguments in the case, I would not have exercised my discretion on judicial review to grant relief on the basis of this point alone.”

By way of response to this, the case for the appellants is that the judge ought to have found a breach of duty, whereupon he ought not to have denied discretionary relief. The case for the Secretary of State, raised by way of a Respondent’s Notice, is that the judge was wrong to reject the submission based on the Appropriation Act and that, in the circumstances, there was simply no breach. It is logical to consider the Respondent’s Notice point first.

Although McCombe J found the evidence that the Secretary of State, through his officials, considered reasonable practicability only by reference to departmental budgets “far from conclusive”, I shall assume for the moment that, at least to some extent or on some occasions, that was the mindset. If so, was it erroneous? I think not. Mr Coppel describes the position as follows. Each year HM Treasury presents Estimates to Parliament which lay out the expected cash and resource expenditure of each Department over the forthcoming financial year. Parliament – in fact, the House of Commons – passes a resolution approving them and an Appropriation Act is later passed for the year in question. Schedule 2 of each Appropriation Act sets out the allocated funds for each Department and sets out, in broad terms, the purposes for which the money may be spent. This is not necessarily the end of the matter. If a need for additional funds arises, Supplementary Estimates may be presented by HM Treasury to Parliament to seek increased resources for particular purposes during the financial year. When approved, these are enshrined in a further Appropriation Act.

Against this background, Mr Coppel submits that, if the appellants are correct in their interpretation of section 2 of the 2000 Act, HM Treasury would have to assume that, each year, there would have to be allocated sufficient money to permit the eradication of fuel poverty in accordance with the Strategy, save to the extent that the cost would be disproportionate to the expected benefit. Given that public finance is limited, the eradication of fuel poverty would have to be prioritised over other government commitments such as the National Health Service, education, defence, policing etc because they are not the subject of a statutory obligation such as that found in section 2. Mr Coppel submits that this would be “constitutionally startling” and that it is inconceivable that, in the absence of clear and unambiguous language, Parliament intended to bypass the long-established constitutional processes and controls in respect of public expenditure. I accept this submission (which was rejected by McCombe J). In my judgment, having regard to the unanticipated scale of the increase in fuel prices, I do not consider that the Secretary of State was in error if he considered reasonable practicability at least to some extent by reference to departmental budgets. Section 2 does not require or permit the Secretary of State to spend in a particular year vastly more on the eradication of fuel poverty than has been made available for that purpose by the Appropriation Act. It is also relevant that the duties under section 2 are imposed on the Secretary of State and not on HM Treasury or the government as a whole and that it is the Secretary of State who is the defendant in this application for judicial review. I reach these conclusions with a degree of relief because it seems to me that, if the position were otherwise, the scene would be set for a wholly undesirable judicialisation of public spending priorities.

My conclusion on the Respondent’s Notice point makes it unnecessary to address the appellants’ ground of appeal on the departmental budgets issue. Suffice it to say that I would have hesitated to go behind the judge’s finding that the evidence was “far from conclusive”. On the other hand, if it had been conclusive in favour of the appellants, but for the Respondent’s Notice point I would have found it difficult to justify the discretionary denial of relief.

The grounds of appeal with which I have been concerned until now are essentially construction issues. The final ground of appeal is advanced on a different basis. In the appellants’ skeleton argument, it is introduced in this way:

“… the appellants also contended [at trial] that much of the Secretary of State’s thinking on which steps to take or not to take remained without any reasonable justification … even if the judge was against them on the question of statutory construction, they contended, their claim ought to succeed on this ground.”

In this context, Mr Fordham identifies three aspects of “the Secretary of State’s thinking” which, he submits, lack any reasonable justification: a cut in Warm Front funding; a decision not to adopt more targeting of effective measures, in particular in relation to the making of Winter Fuel Payments without regard to the means of the recipients; and “the lack of a clear and costed plan”.

I confess to finding this a somewhat elusive ground of appeal. My first response to it is the same as that of McCombe J who said (at paragraphs 57 and 58):

“… one must remember that there is no challenge made in these proceedings as to the lawfulness of the policy decisions taken, apart from the contention that the government has failed to comply with its duties under section 2 …

… There must be room for difference of opinion as to how one can best go about the implementation of such policy. When one looks at section 2(5) … again it is clear that the Defendants are only obliged to take such steps as ‘in their opinion’ are necessary in order to implement the Strategy. Absent a challenge to rationality of particular decisions, taken in compliance with the Act, it is not open to this court to adjudicate upon the merits of the opinions so formed … Even if one sees force in the complaints made on their face, arguments are raised to meet them and these are arguments as to the desirability of the policy of the government on the use of available money. Those arguments are not apt to found an argument of breach of statutory duty and judicial review.”

I have set out that passage at some length because it seems to me that it is correct. Having disavowed a rationality challenge, at first blush Mr Fordham’s submission seems like one of rationality by the back door. His answer to that is that it is not; on the contrary, it arises in relation to the alleged breach of the section 2(5) duty. However, this argument seems to me to assume the correctness of the appellants’ case on the meaning of “as far as reasonably practicable”. Mr Fordham seems to concede this in a later passage in his skeleton argument:

“If … the proper public law principle governing the duty to achieve results ‘as far as reasonably practicable’ is a proportionality principle, the Secretary of State must justify any shortfall from the standard, as he must, for example, in a human rights context, and as must an employer under a duty to avert a health and safety risk … ”

However, the hypothesis does not arise if, as I have concluded, the test is not one of proportionality and the health and safety analogy is false. In these circumstances, and in the absence of a conventional rationality challenge, I consider the resort to “lack of reasonable justification” to be unsustainable.

It follows from what I have said that I would dismiss this appeal.

I agree.

I also agree.