Cleared for Take-off: Court rejects challenges to Jet-Zero Strategy

Introduction

In this article Adam Riley and Nicole Pearson explore the recent judicial review challenge of the Government’s Jet Zero Strategy in Possible (The 10:10 Foundation) and others -v- Secretary of State for Transport [2025] EWHC 1101 (Admin) which held the Government acted lawfully in excluding Direct Demand Management (“DDM”) measures such as frequent flyer levies and airport expansions from its Jet-Zero Strategy (“the Strategy”).

The judgment is essential reading for practitioners interested in the impact of climate policy targets, specifically on the aviation sector. Among other matters, it examines:

• The extent of ministerial discretion in discarding policy options before public consultation and whether public support for such measures during consultation requires them to be reconsidered;
• The weight to be given to independent expert advice, such as the Climate Change Committee’s (“CCC”) 2023 Progress Report; and
• The standards of fairness required in public consultations where alternatives are excluded from scope.

Background

The Strategy, published in July 2022 and reaffirmed following a 2023 review, sets out the Government’s strategy for decarbonising the aviation sector by 2050. It focuses on technological solutions such as electric and hydrogen aircrafts, improved operational efficiency, the commercialisation of sustainable aviation fuels (“SAF”), carbon pricing, and increased investment in research and development of zero-emission flights.

Crucially, the Strategy omitted any policy measures relating to the restriction of airport capacity or passenger numbers (so called “DDM” measures). This was despite repeated advice from the CCC between 2020 and 2023 that demand for air travel must be constrained, recommending that passenger growth be limited to 25% above 2018 levels to keep the sector aligned with net zero targets. Suggested DDM measures include limiting passenger numbers, frequent flyer levies, and curbs on short-haul flights.

The Government rejected DDM measures early in the policy development process. Internal ministerial advice in 2021 had treated such restrictions as a fallback option if technological measures failed to deliver. However, the Defendant (then Grant Shapps MP) dismissed this, describing DDM measures as a “slippery slope towards restricting travel and closing down the world.”  As a result, DDM measures were omitted from the proposed policy options in 2021 and 2022, which instead emphasised a pro-technology approach, reflected in the resulting Strategy.

Following criticism from the CCC in its 2023 Progress Report, and from members of the public, the Defendant then reviewed updated evidence to decide whether the Strategy required revision to include DDM measures. However, following advice from officials that none of the literature reviewed represented any material change requiring further public consultation, the Defendant reaffirmed the Strategy’s 2022 position.

The Claim

Claims were brought by the Possible 10:10 Foundation (“Possible”), a climate-focused campaign group, and The Group for Action on Leeds Bradford Airport (“GALBA”), a Yorkshire-based grassroots unincorporated association set up to oppose the expansion of Leeds Bradford Airport.  The Claimants challenged both the decision to publish the Strategy and the Government’s 2023 review decision to maintain its approach taken in the Strategy.

A rolled-up hearing was held in April 2025 where 11 grounds of challenges were pursued. Boiled down, it was alleged that:

1. The 2021 consultation was unlawful due to the Government maintaining a “closed mind” on demand-reduction policies and not properly considering the responses that raised DDM measures;
2. The Defendant breached the Tameside duty of inquiry by failing to undertake a proper inquiry into DDM measures and their impact on decarbonising aviation and not carrying out a cost/benefit impact assessment to inform the Strategy;
3. The Defendant failed to give rational reasons for departing from the advice of his officials in rejecting DDM for a technology-led approach, despite lack of certainty around such technologies;
4. The absence of consultation on the 2023 Review amounted to “conspicuous unfairness”;
5. The Defendant created a policy vacuum by failing to consider recent planning decisions on airport expansion schemes; and
6. The Defendant had not discharged the Public Sector Equality Duty under section 149 of the Equality Act 2010 by failing to acknowledge the differential impact of carbon emissions on ethnic minority groups.

The Decision

In dismissing all grounds, Lang J upheld the lawfulness of the Strategy and associated consultations.

The Court found the Defendant was entitled to adopt a technology-led approach to aviation decarbonisation and to exclude DDM measures from the policy options put forward in the consultation. The exclusion of DDM policies, even if advised against by officials or contrary to public responses, did not render the consultation unlawful. In addition, procedural fairness did not require the preparation of reasons for internal decisions which were no more than preparatory steps on the way to a substantive decision. Such a requirement would impose an unacceptable burden on ministers and officials.

The Court also found no breach of the so-called Tameside[1] duty: officials had presented relevant evidence, including advice from the CCC, and there was no requirement to undertake further inquiry into DDM once ministers had taken a clear policy stance. Likewise, the consultation was not unfair simply because it omitted certain alternatives; consultations are not required to consider every conceivable policy option.

Lang J further rejected the argument that the 2023 review triggered a fresh duty to consult. She held that the review did not amount to a policy shift but was simply a decision as to whether to explore policies on DDM measures further. As such, there could be no legitimate expectation of any further consultation.

Lastly, the Court found that the Defendant’s approach to airport expansion was not irrational, as specific planning decisions are not material considerations and the Public Sector Equality Duty had been adequately discharged through the carrying out of Equality Act impact assessments, to which the Defendant had given due regard.

Key Takeaways

The judgment provides helpful clarification of the limits of legal intervention in policymaking, particularly where alternative options for achieving long-term outcomes are excluded. Key takeaways include:

1. Consultations are not a “blank slate”: Ministers are entitled to rule out certain policy options at the outset based on political or strategic judgments, without having to publish reasons for doing so.
2. There is no general requirement to re-consult on policy changes: the 2023 review did not necessitate another consultation since it had been previously consulted on or had the same subject matter as a policy that had previously been the subject of consultation.
3. Discretion to reject expert advice is wide: Ministers are entitled to reject advice given by officials or expert bodies in internal decisions.
4. The Tameside duty has limits: Decision-makers are only required to take such steps to inform themselves as are reasonable, with the Court only intervening if no reasonable authority could have been satisfied that it possessed the necessary information for the decision under challenge.

End of the runway for demand reduction advocates?

The judgment demonstrates the broad discretion afforded to ministers in shaping climate policy.  As long as ministers can demonstrate that a policy path was consciously ruled out before consultation, courts are unlikely to interfere, even when expert advice or public feedback strongly favours re-consideration.   For proponents of demand-curbing measures, the ruling signals that the key climate battleground remains political, not legal.

[1] Named after the case of Secretary of State for Education v Tameside MBC [1977] AC 1014.