Grant Shapps, the Secretary of State for Transport, has confirmed that the Government does not intend to appeal today’s defeat for Heathrow expansion in the Court of Appeal.
His statement puts quite a bit of effort into distancing the Government from the project altogether: “We have always been clear that Heathrow expansion is a private sector project which must meet strict criteria on air quality, noise and climate change, as well as being privately financed, affordable, and delivered in the best interest of consumers.”
Yet for all that, the Heathrow plan did have the sanction of the Commons and got a green light from Theresa May. This has led to fresh complaints about judicial activism, although in this instance that’s harder to stand up as a) the Commons hadn’t legislated to expand Heathrow and b) it looks as if the Department for Transport was subject to some truly abominable legal advice regarding whether or not it needed to factor the Paris Agreement into its decision-making on the subject.
In a way, the ruling has actually done Boris Johnson a favour – he won’t be needing to lie down in front of any bulldozers anytime soon. But it does raise a couple of important questions.
The first is what to do about air capacity. This can had already been kicked a long, long way down the road before the judge sent it clattering back to the Prime Minister’s feet. He now has to choose an alternative way forward, and soon. Has the hour finally come for ‘Boris Island‘?
Less immediately, but just as significantly, this fiasco puts a spotlight on the tension between ministers’ enthusiasm for signing up to grand, abstract targets – especially if they’re about to leave office and casting about for a legacy – and the detailed consequences of such pledges on practical policy-making.
Today’s defeat arose from the decision of a previous government to enshrine various environmental targets in law. This is a habit our legislators are developing. It allows governments to sound like they’re taking decisive action without them actually having to do anything, at least immediately.
But the result is that the judges, whose proper role it is to enforce these laws, gain huge scope for intervening in policy decisions down the line.
If the Government were serious about rolling back the role of the courts in what it considers political decisions, it would urgently review such obligations and the legislative practices which give rise to them. It would certainly not proceed with plans to start introducing legally-binding targets to the NHS, which will simply open up a vast new frontier for conflict between ministers and judges.