The radical changes to UK public law over the last 50 years were paradoxically marked by a silence over the UK government’s recent announcement of a slowing down of the UK’s previously always accelerating pursuit of carbon emissions reduction, though the aim of having ‘net zero’ emissions by 2050 remains. The announcement was met with intense political criticism. But it has passed without comment that there almost certainly will be similarly intense legal criticism as environmental activists will bring judicial reviews of slowing down.

This would have been unthinkable when UK public law was actually based on sovereignty of parliament. That such judicial review is now anticipated as routine represents a truly major shift, made at the expense of democracy, in the relationship of politics and law. New constitutional structures and legal procedures have successfully worked against electoral participation in policy formation, creating a ‘constitutional ventriloquism’ in the working of government which the electorate does not understand.

When the judicial reviews are brought, they will merely add to a now substantial part of the business of the Administrative Court, which has heard over 100 climate change reviews, some 50 of which went the Court of Appeal, with one famous case reaching the Supreme Court. In this representative case, environmental activists sought to use judicial review to prevent the expansion of Heathrow Airport because of the carbon emissions involved. The purportedly legal review included claims that the expansion contravened the European Convention right to life; contradicted the net-zero policy; and took no account of the Paris Agreement.

All of these claims were legally preposterous. The standard of judicial review respectful of sovereignty of parliament was whether the government had been outright procedurally irrational. That a policy might have been very unwise rightfully did not mean it fell foul of this standard, for the substance of policy is a political matter. Departing from this standard and allowing substantive review has had a malign effect on, in particular, asylum and immigration, but it could have only limited effect regarding climate change. Over an issue so complex as what is necessary to meet net zero, the courts, unless they are prepared to embrace the sort of chaos that now characterises asylum and immigration, have little scope for action beyond finding irrationality. If the government had taken no account of legally binding obligations to pursue net zero, this would be procedurally irrational. But, of course, this was never the case. The activists were seeking to challenge the substance of the way governments have pursued net zero. But courts have no competence to second guess such complex policy. One cannot even imagine the wording of any effective remedial order the courts might make.

Incredibly, real danger loomed when the Court of Appeal did embrace chaos by finding for the Heathrow case claimants, potentially granting them a power to prevent all major infrastructural projects. This decision went too far, and was reversed by the Supreme Court, which called the decision ‘wrong’; appeal court language for ‘stupid beyond belief’. But it is the Court of Appeal’s decision, not the Supreme Court’s, which conveys the atmosphere of the climate change judicial reviews.

Though these preposterous claims are eventually dismissed as ‘hopeless’ and ‘unarguable’, they are not struck out but are heard most attentively. These cases have occupied working days adding up to years of the time of the Administrative Court and the Court of Appeal, and many thousands of paragraphs in judgment have been written. The main Administrative Court judgment in the Heathrow case was itself of 669 paragraphs, and the appeal courts spent over 500 paragraphs on it. The impression left by these cases is that the claimants and the courts are engaged in a friendly dialogue about how to push judicial review as far as it can go in support of net zero. And in a most important sense the environmental activists have succeeded. The undoubted effect of their judicial reviews has been to politically energise the campaign for net zero.

The government must have spent many millions of pounds defending these actions, with the feebleness of the way these defences are conducted, extensively engaging with unarguable arguments, greatly increasing that cost. Those with some knowledge of English civil litigation might not be too troubled about this. They would expect that losing environmental activists would have to pay the government’s legal costs. But following the Aarhus Convention, an international agreement addressing ‘Justice in Environmental Matters’, the normal costs rules have been set aside so that the losing claimants have their costs capped at low levels. The government of course still runs up its legal costs, but as matters now stand, the UK electorate largely subsidises climate change judicial review. It pays for the use of court resources, and also for the government to frame extensive legal responses to unarguable arguments which should be struck out, and would very rarely be brought under normal costs rules.

The electorate has been reduced to resigned bewilderment by this litigation. It would be right to explain what is going on by saying that government policy is being subjected to political attack in the form of legal proceedings, but the explanation would miss a very important point. It is a succession of UK governments that have been responsible for the laws giving rise to this litigation, principally the Climate Change Act, which has done much to transform what should be democratically decided matters of economic and political policy into a legal obligation to pursue net zero. It is a succession of UK governments that have gravely misled the electorate over the cost and possible effectiveness of this pursuit. And it is a succession of UK governments that have invited, and caused the electorate to finance, a wave of climate change litigation trying to intensify pursuit of net zero.

Liberal democracy rests on the assumption that ultimately policy will reflect the will of the majority. But UK governments have reduced the business of the Administrative Court to a constitutional ventriloquism in which it is urged to intensify its net-zero policy. Environmental activists are heavily subsidised in their politicised judicial review campaigns by an electorate unaware of its own generosity. The cost of net zero to the UK economy has been very large and could be overwhelming. The very same should be said of the cost to UK democracy of the way a succession of UK governments have managed to get as far as they have in their pursuit of this irrational policy, which certainly would be abandoned were the electorate properly aware of its costs.