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High Court judge dismisses legal challenge to government's cycling funding cuts

Transport Action Network (TAN) says it is "bitterly disappointed" by the judgement and is hoping to appeal...

A High Court judge has ruled against campaigners who mounted a legal challenge after the government last year cut the budget for active travel schemes by two-thirds.

Transport Action Network (TAN) says it hopes to appeal and is "bitterly disappointed", having believed the cuts of around 65 per cent — made by the Conservative government to the active travel budget in March 2023 — were unlawful and "outside the framework provided" by the Cycling and Walking Investment Strategy (CWIS) made under the 2015 Infrastructure Act.

> "A backward move" – Government slashes active travel budget for England

The campaign group was granted permission to apply for a High Court judicial review in October, however, in a judgement approved today by Mr Justice Kerr, the High Court judge ruled that "the claim must fail and I dismiss it".

The judge repeatedly rejected TAN's arguments and stated that Transport Secretary Mark Harper "was entitled but not bound to consider PM2.5 (particulate matter) levels or air quality more widely". He also accepted the argument that Harper "adequately considered the impact on carbon budgets".

Chris Todd, TAN's director, this afternoon told us he wishes to raise funds for an appeal "to set the law straight and put the next government on the right path to boosting healthy travel".

"When Parliament included active travel in the Infrastructure Act 2015, it was with the clear intent of stable funding and stronger ambition," he explained. "We are therefore bitterly disappointed by today's judgment, which appears to set an unhelpful precedent.

"TAN is hugely grateful for the generosity shown by individuals and local campaign groups in crowdfunding the legal challenge. This has already revealed how ministers were sitting on evidence that their plans and budgets were completely inadequate. 

> Government knew it wasn't investing enough in cycling, according to new document

"While party manifestos published so far pitch positively for walking and cycling, they lack firm commitments in terms of funding, infrastructure or outcomes. We now urgently need to raise funds for an appeal, to set the law straight and put the next government on the right path to boosting healthy travel."

What does the judgement tell us?

At one point in the 22-page document made public today, Mr Justice Kerr refers to the "tortuous and technical narrative of documents, policies, targets and decisions" requiring comprehension to provide complete context for TAN's legal challenge.

Mr Forsdick KC, instructed by Leigh Day for TAN's challenge, argued that "where Parliament has conferred powers or duties to do a particular act, it must be done under and in accordance with the statutory scheme" and that in this case the government had "unlawfully departed" from this.

The judgement continues the legal analysis and highlights the arguments made by Hugh Flanagan, representing the Government Legal Department, notably that the cut to the active travel budget was a "small proportion of the overall £3 billion of savings from the DfT's budget" and that it is "impossible and unrealistic" to expect that available funding would not be subject to change.

He also argued that there was "no inconsistency between the ministerial statement of 9 March 2023" and the CWIS and the statutory framework.

Cyclists and pedestrians in Doncaster (Doncaster Council)

The legal representative's argument was paraphrased as: "It is impossible and unrealistic to suppose that available funding levels may not be subject to change during the period of a CWIS".

Ultimately, after much technical legal debate, the judge ruled "that in the phrase 'the financial resources to be made available' to meet the objectives of the CWIS, the words 'to be made available' bear the meaning 'intended to be made available'; rather than 'which must be made available as a minimum'." 

The judge concluded: "Even if TAN were correct in describing the funding allocation as a ring-fenced expenditure commitment, the commitment still might be met by the end of March 2025 if (which seems unlikely, but is possible in principle) the £225 million is restored to the active travel budget by a future decision in, say, August 2024, a decision TAN would no doubt welcome but of which others (e.g. supporters of projects from which funds are diverted) might complain."

He went on to add that the Secretary of State did not agree to the cut because "he overlooked what the funding was for", but rather because "he accepted the Treasury's suggestion, prompted by the 2022 Autumn Statement, that something had to give" and he "examined the DfT budget as a whole including its other component parts and including, as part of the total budget for local transport and decarbonisation measures, the active travel budget".

Female cyclist in London casual winter clothing on hybrid bike - copyright Simon MacMichael

The judge also rejected TAN's submissions regarding the Equality Act and air quality targets, in the latter concluding that PM2.5 (particulate matter levels, something Mr Forsdick argued consideration of had been absent) were "not a mandatory relevant consideration" and the Secretary of State "was entitled but not bound to consider PM2.5 levels or air quality more widely".

"The DfT had to cut some £3 billion from its overall budget for the two financial years ending in March 2025. The reduction of £200 million in active travel funding was a small part of that exercise, without any obvious, immediate and probable impact on PM2.5 levels. There was no quantified relationship between active travel projects and PM2.5 levels," the judgement states.

TAN also argued that the cut failed to take into account the risk that carbon emission levels would be adversely affected, however the judge accepted "Mr Flanagan's submission that the Secretary of State adequately considered the impact on carbon budgets of the decision presently under challenge".

"For all those reasons, the claim must fail and I dismiss it," the judgement concludes. "I am grateful to counsel for their very full and erudite submissions."

When the cuts were announced by Transport Secretary Mark Harper last spring the government was widely criticised by active travel groups, the Walking & Cycling Alliance (WACA) calling it a "backward move" and "disproportionate" compared to those made for other modes of transport.

Mark Harper (Parliament)

"It is heart-breaking to see vital active travel budgets wiped away in England, at the exact time when they are most essential to UK economic, social and environmental prospects," WACA said. "It simply doesn't make sense to withdraw investment in active travel at this time.

"Representing a two-thirds cut to promised capital investment in walking, cycling and wheeling, these cuts are a backward move for active travel and will counteract the tremendous progress we've seen in recent years. These cuts are disproportionate compared to those for road and rail and will leave England lagging far behind other UK nations and London, at a time when we need to be raising the bar everywhere.

"Promised government targets of 50 per cent of all journeys in English towns and cities being walked or cycled by 2030, and for the UK to be Net Zero by 2050, are made impossible by these cuts. People walking, wheeling and cycling take 14.6 million cars off the road, saving 2.5 million tonnes of greenhouse gas emissions every year.

"More than ever, people want and need support to walk, cycle or wheel, and these cuts will impact those that would have benefited most, limiting our choice to travel healthily, cheaply and emissions-free."

Likewise, the cross-party All Party Parliamentary Group for Cycling & Walking (APPGCW) reacted with dismay.

APPGCW co-chairs Ruth Cadbury, the Labour MP for Brentford & Isleworth, and Selaine Saxby, the Conservative MP for North Devon, said in a statement: "It is incredibly disappointing that the active travel budget has seen extensive cuts at a time when we need to really make progress on decarbonisation and when people need cheap transport choices.

"We've witnessed the popularity of active travel increase in the capital but other parts of England will now not benefit from the same quality transport system. London now has three times as much funding per year for active travel than the rest of England combined.

> Does cycling policy need a reset after the election?

"We understand that there are pressures on the public purse but active travel schemes frequently have much higher benefit:cost rations than road-building schemes, many of which are still going ahead despite falling value for money for taxpayers.

"No other mode of transport will deliver the same health benefits and actually save the NHS money," the statement continued. "If we're serious about decarbonisation and giving people real choices on how they move, active travel needs to be properly and consistently funded."

Dan is the road.cc news editor and has spent the past four years writing stories and features, as well as (hopefully) keeping you entertained on the live blog. Having previously written about nearly every other sport under the sun for the Express, and the weird and wonderful world of non-league football for the Non-League Paper, Dan joined road.cc in 2020. Come the weekend you'll find him labouring up a hill, probably with a mouth full of jelly babies, or making a bonk-induced trip to a south of England petrol station... in search of more jelly babies.

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7 comments

Avatar
eburtthebike | 1 month ago
1 like

Mark Harper, my MP, atrocious, inept, useless.  Sadly, it looks as though labour are exactly the same on transport, with drivers front and centre of their policies.

I'll be voting Green.

If TAN want to launch an appeal, count me in for a few quid again.

Avatar
hawkinspeter | 1 month ago
4 likes

Can we please get rid of the death cult Tories now?

Avatar
ROOTminus1 replied to hawkinspeter | 1 month ago
4 likes

Soon; 4th July, unless you plan on voting Reform instead, then head out on the 5th

Avatar
mdavidford | 1 month ago
3 likes

road.cc wrote:

active travel schemes frequently have much higher benefit:cost rations

Seems to me like they're typically on much lower rations.

Avatar
ROOTminus1 | 1 month ago
5 likes

A classic case of big numbers being used to baffle and hide the reality;
Justice Kerr - £200m is a small dent in the £3b of cuts to the DfT budget, that's not unreasonable.
Forsdick KC - The active travel allocation was £300m in the first place, that's the crime.

Avatar
NPlus1Bikelights | 1 month ago
3 likes

It would take the climate crisis manifesting is a way that threatened The Houses of Parliament (Thames Barrier being overwhelmed) to get anything Active Travel funding related reversed now. The view of the future is in 4 year cycles, again. Money was also misused by many councils who had grand plans, and then watered them down but kept all the money.

 

Avatar
chrisonabike replied to NPlus1Bikelights | 1 month ago
2 likes

Although all the parties are promising "you'll pay less, or at least definitely not more, AND we'll fix things"... from the little I have heard about our national finances it seems exactly the opposite trend will continue. At least, for us small folks, and for public spending.

The councils- yeah, waste and mismanagement - but some of the follies were because they kept finding they were given less to do more with. And I believe at the same time were actually encouraged to fund some of the money-generating wheezes by Central government!

Anyway, not a good outlook for active travel provision in the future sadly.

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