DEFERENCE AND DUALISM ARE NOT FRIENDS OF THE EARTH

Abstract

FRIENDS of the Earth brought an action for judicial review against the decision of the Secretary of State for Trade and Industry to approve a $1.15 billion investment from UK Export Finance (UKEF) in a liquefied natural gas project in Mozambique (R. (Friends of the Earth Ltd.) v The Secretary of State for International Trade/UK Export Finance [2023] EWCA Civ 14, [2023] 1 W.L.R. 2293). The investment was conditional on the creation of 2,000 UK jobs related to the project. Friends of the Earth argued that the investment breached the Paris Agreement of 12 December 2015 and that the Secretary of State had failed to comply with the duty, established in Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] A.C. 1014 (Tameside), to carry out a sufficient inquiry before taking such a decision. The claim failed on both counts: the Government need only form a tenable view of what the Paris Agreement requires, and the Tameside duty was complied with. However, the conclusions of the court raise questions about the proper constitutional role of the courts, appearing to defer too greatly to the executive. Friends of the Earth argued that once a question concerning an unincorporated treaty is justiciable, then an English court must determine the correctness of a government claim that it is acting compatibly with that treaty; and there was no rational basis for concluding that the project aligned with the UK’s obligations under the unincorporated Paris Agreement as set out in UKEF’s final Climate Change Report. They drew on English precedent (R v. Secretary of State for the Home Department, ex p. Launder [1997] 1 W.L.R. 839, 866–68 and R v Director of Public Prosecutios, ex p. Kebilene [2000] 2 A.C. 326, 341–42, 367, 375–76), and what they considered to be a mandatory requirement in Article 31(1) of the Vienna Convention on the Law of