Court rules air quality plan must be published before General Election

The government has been defeated in its bid to delay the publication of the draft Air Quality Plan until after the General Election in June, after a High Court hearing today (27 April).

After hearing evidence this morning, His Justice Garnham ruled that a draft version of the plan must be published by 9 May – shortly after local council elections have taken place – but before the General Election on 8 June. A final version of the plan will be required to be published by 30 July – as originally set out by the Court in a ruling in November.

The November ruling suggested that the government had failed to take adequate steps to address air pollution in a number of towns and cities across the country, and ordered the government to re-draft its plans to bring it into line with EU air pollution limits at the soonest possible date.

However, the government had launched a last minute bid to push back the deadline for the draft plan from Monday (April 24) until June 30 due to ‘purdah’ restrictions on government activities in the run up to elections. If this had succeeded, it would have delayed the publication of the final plan until September 15.

In court this morning, James Eadie QC for the Department for Environment, Food and Rural Affairs commented that: “The Secretary of State is understandably alive to the seriousness of this issue.”

Mr Eadie said that “This application is not without some considerable reluctance given the advance state of the plan. It is not some demonstration of a lack of commitment – it is made this application because of the impact of launching this consultation on an important issue on the democratic process of the local and general elections.”

Defra’s application centred on the argument that launching the plan for consultation could restrict input from local authorities due to imminent council elections. The Department had also made submissions that the plan could become a political issue during the forthcoming General Election – akin to dropping a ‘controversy bomb’ ahead of the June 8 poll – in Mr Eadie’s words, and should therefore be postponed until after the election.

Representing ClientEarth, Nathalie Lieven QC, argued against Defra’s assertion that delaying the plan would not delay the implementation of measures to tackle air pollution. She also argued that the impact of air pollution on public health would constitute ‘exceptional circumstances’ to allow purdah rules to be circumvented.

Ruling

After retiring to consider the representations form both sides Mr Justice Garnham this afternoon ruled that General Election purdah rules should not prevent the government from releasing the plan.

Outlining his judgement shortly after 3pm this afternoon, he said purdah does not provide a defence for failure by the executive to comply with a court order. “It is not a trump card to be applied at will by one litigant,” he said. He also noted that the publication of the plan was important to safeguard public health, and to bring the UK into compliance with the EU air quality directive at the soonest possible date.

Whilst the government was denied permission to appeal the judgement in the High Court, the ruling can still be challenged in the Court of Appeal.

Reaction

Reacting to the judgment, ClientEarth chief executive James Thornton, said: “We are delighted with the ruling. We cannot afford more dither and delay from the government. Rather than appeal this decision, they need to get on and produce their plans to bring down air pollution as soon as possible.

“The judge agreed with us that this is a matter of public health, not politics.”

Also commenting, the Mayor of London, Sadiq Khan, who was represented in court as an interested party, said: “I am pleased that the Government will now have to face its responsibilities sooner rather than later.

“Ministers were dragged kicking and screaming to face the huge scale of this health crisis, but rather than take immediate action to protect the public they deliberately used the election as a smokescreen to hold back their plan.