Challenges to the Jet Zero Strategy grounded as Administrative Court dismisses claims based on consultation and policy concerns

The Administrative Court has dismissed claims for judicial review brought by two interest groups against the Government's Jet Zero Strategy: Possible (The 10:10 Foundation), R (on the application of) v Secretary of State for Transport [2025] EWHC 1101 (Admin). In a lengthy judgment, the court gave helpful guidance on the duty to consult, the Tameside duty to make sufficient inquiries and the duty to consider mandatory relevant considerations, in the context of interest groups bringing environmental and climate-based challenges to Government consultations and policy.

Key points

• The duty to consult is not all-encompassing: unless statute provides for a duty to consult, the duty is heavily fact-dependant and does not necessarily involve consulting on every alternative or discarded option. However, it may be preferable to briefly explain in a consultation document why certain options have been rejected.
• There is no general requirement to re-consult on changes to policies that have previously been consulted on, or policies which have the same subject matter. Nor is there a general duty to consult where proposed changes to the policy have arisen out of consultation.
• The Tameside duty does not require a cost/benefit analysis to be carried out when the policy in question is an overarching strategy which involves no specific regulatory or policy requirements that would significantly impact businesses.

Background

On 19 July 2022, following a period of consultation, the Secretary of State for Transport (the SST) published the Jet Zero Strategy (JZS), which set out the Government's strategy for decarbonising the UK aviation sector by 2050. In 2023, the SST reviewed the JZS and decided that it was still the appropriate strategy to pursue that goal (the 2023 Review Decision). The JZS is consistent with but distinct from the Net Zero Strategy and Carbon Budget Delivery Plan, which were each subject to successful judicial review challenges covered in previous blog posts.

Two interest groups launched judicial review claims against the SST's decision to publish the JZS and the 2023 Review Decision: (1) Possible (a climate action charity); and (2) the Group for Action on Leeds Bradford Airport (GALBA) (a group opposed to the expansion of that airport). By the time of the hearing, these groups pursued 12 grounds of review in total, although the court identified that most of their concerns related to the fact that the JZS did not incorporate Direct Demand Management (DDM) measures to place direct limitations on the demand for air travel, such as preventing the expansion of airports or banning flights on short routes also covered by passenger trains.

The court found that the SST was of the view that air travel presents freedom to individuals and benefits to the economy and that the chosen strategy should allow and encourage individuals to make climate-conscious choices rather than directly limit their ability to travel by air. The claimants believed that this was a close-minded approach to policymaking, whilst the SST considered there was nothing unlawful in sticking to that view when publishing the JZS and making the 2023 Review Decision. Other concerns were also raised and are discussed below.

The challenge

In summary, the claimants' 12 grounds of review centred around various different categories of challenge, including:

1. The SST failed to discharge the duty to consult because although consultations were carried out, they did not invite submissions on DDM and effectively ignored the submissions that were made by various consultees about DDM; and because there was no further consultation at the time of the 2023 Review Decision.
2. The SST failed to discharge the Tameside duty of sufficient inquiry by effectively ignoring the possibility of implementing DDM rather than treating it as a realistic policy alternative and subjecting the different alternatives to cost/benefit analysis.
3. The SST failed to consider mandatory relevant considerations, in particular by failing to consider matters such as the responses to consultation extolling the benefits of DDM, the literature of DDM as a realistic policy alternative, and advice from the Climate Change Committee (CCC) and a ministerial submission which recommended DDM measures as a policy which "should be implemented" or which could be implemented as a "last resort", respectively.

Judgment

The court dismissed all 12 grounds of review. The court's reasons were extensive and contain helpful guidance for both prospective claimants and policymakers.

1. Global Feedback followed

Although the majority of challenges based on the Climate Change Act 2008 (CCA) were no longer pursued by the claimants by the time of the hearing, the court reiterated the Court of Appeal's decision in Global Feedback that the duties in sections 13 and 14 CCA relating to the preparation of proposals and policies for meeting carbon budgets are the sole responsibility of the Secretary of State for Energy, Security and Net Zero and do not apply to other departments, in this case, the SST. The court held that "[t]he fact that the JZS, like the Food Strategy, is consistent with the Net Zero Strategy does not mean its preparation is subject to the same obligations". Claimants can expect the same result in relation to similar greenhouse gas abatement or net zero strategies prepared by other Government departments.

2. The duty to consult is not all-encompassing

The court set out the three circumstances in which a duty to consult arises (if there is no statutory duty to consult): (i) there has been a "clear and unequivocal promise to consult", (ii) there is "an established practice of consultation amounting to a clear and unequivocal promise to consult in the future", or (iii) "failure to consult would lead to conspicuous unfairness". The JZS fell into none of those circumstances and so the court held there was no duty to consult, still less to consult on DDM in circumstances where DDM measures were contrary to the SST's preferred strategy and had already been rejected, holding that "the Defendant had a broad discretionary power to formulate a strategy and then choose matters on which to consult".

However, this duty is heavily fact-dependant, illustrated by the fact that the authorities on when discarded options must be referred to pull in different directions. Lang J noted that the consultation gave an opportunity to suggest alternative options and many of the consultees did advocate for DDM, and although this did not change the court's view that the consultation was lawful, she observed that "it may have been preferable to have included a few lines in the consultation document explaining that, although the CCC had recommended DDM, the Defendant had ruled it out".

In relation to whether there should have been a further consultation on the 2023 Review Decision, the court explained that there is no general requirement to re-consult on changes to policies that have previously been consulted on. Nor is there a general duty to consult on policies which have the same subject matter as policies that have previously been the subject of consultation, or where proposed changes to the policy have arisen out of the consultation. In any event the court did not consider there to have been any fundamental change since the previous consultation.

3. A cost/benefit analysis is not always necessary to discharge the Tameside duty

GALBA argued that to discharge the Tameside duty to make sufficient inquiries, the SST ought to have undertaken a cost/benefit impact assessment to inform the JZS. However, the court accepted the evidence filed on behalf of the SST that a cost/benefit analysis was not undertaken because it is an overarching strategy which involves no specific regulatory or policy requirements that would significantly impact businesses.

4. Decision-makers have significant discretion over what to take into account

In accordance with established principles, the court confirmed that not all the issues the claimants pointed to as relevant were "obviously material considerations" such that the SST had to take them into account. The complexity and scientific uncertainty around areas such as non-CO2 emissions reinforced this discretion. In addition, CCC advice is not a mandatory material consideration to which the SST had to give significant weight.

Comment

The Administrative Court's decision in this case emphasises that in circumstances where there is no statutory duty to consult, the duty of consultation will be heavily fact-dependant. Policymakers will generally have a broad discretion to choose whether to consult and on which policy alternatives, unless they promise a consultation, or a consultation on particular options, either by express words or by their conduct. However, if a policymaker chooses to consult on some options having already rejected others, it may be helpful to explain why those other options have been rejected in the consultation materials.

More generally the judgment reinforces that climate policy is a matter for elected decision-makers, and not the courts. This broad discretion meant it was lawful for the SST to effectively conclude at the outset that DDM would not form part of the Government's strategy without including that option in a consultation or undertaking further detailed analysis, despite advice suggesting it should be considered a last resort.