TORTIOUS LIABILITY OF GOVERNMENT MINISTERS FOR CLIMATE CHANGE: ARISTOTELIAN POTENTIAL AND THE LIMITS OF NEGLIGENCE

Abstract

uncertainty. Reform, however, does not mean starting from scratch. Even the adoption of the first (more expansive) option would not land English law in uncharted territory; instead, it would return it to the position espoused by Lord Bridge in McLoughlin. What is more, previous decisions can be rationalised within the adopted framework (or discarded as incompatible with it) to offer guidance on how it applies in particular situations. And while certainty is important, it is not the only desideratum; the aim in developing the law of negligence is to balance the need to maintain certainty with the need to achieve justice (Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, at [27] (Lord Reed)). In this connection, were the first approach to be adopted, it is paramount that it does not result in a mechanical application of the factors guiding reasonable foreseeability, otherwise they would simply transform from overt to covert control mechanisms, robbing the approach of its flexibility. Finally, should such reform not be left to Parliament? There are good reasons why courts might generally take that course. Judges have no relevant expertise or easy access to the sort of material that informs legislative policy making. Nonetheless, the case for deferring to Parliament in this area is less strong. The law with its policy restrictions has been exclusively developed by the courts. Much preparatory work has been done by the Law Commission. Parliament has not only repeatedly failed to act, but the Government has taken the view that the development of the law is best left to the courts (Department for Constitutional Affairs, The Law of Damages (CP 9/07), 2007). Pleas from judges, the Law Commission and individual Members of Parliament have fallen on deaf legislative ears. In these circumstances, expecting Parliament to act is a pious hope. The ball is now firmly in the Supreme Court’s court. It is hoped that it will pick it up and bring the law into line with contemporary societal and medical perceptions. It will no doubt be tempting to conclude again that legislation is the best, perhaps the only, option for reform. Tempting, but wrong.