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

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. 

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"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.

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".

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.

"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.

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"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."