6 Enforcement
65. The Government says that the draft Bill "places
a legal duty on the Government to ensure that the UK meets its
targets and stays within the limits of its carbon budgets".
This means that "a Government which fails to meet its targets
or stay within budget would be open to Judicial Review".
Further, "[i]n such instance, the Government could be required
to take remedial action by order of court".[78]
The Secretary of State reinforced this point and argued that the
draft Bill "provides Britain with the world's first eco-constitution".[79]
66. Some witnesses have already questioned whether
the Bill's provisions would be enforceable in the courts. Mr Woods
from Stephenson Harwood, and Council Member of the UK Environmental
Law Association, noted that:
I do not think it is very enforceable in practice.
[…] Judicial Review is designed for challenges in relation
to public bodies which act unreasonably. It is not an appeal tribunal
that is supposed to have an over-arching approach to bigger picture
politics, political decisions and targets such as this. What will
happen is if there is a flawed decision then certainly a challenge
could be brought, but in all likelihood all we would find is that,
as happened recently with the Energy Review, the Government has
to go back, have another look at its figures and then reproduce
its paper or its legislation or its rules. The judicial review
challenge would not actually change anything.[80]
67. The Environment Agency suggests that, following
consultation with the Committee on Climate Change, the Government
could meet any shortfall within a carbon budget by purchasing
credits from overseas, although notes that such a mechanism should
not be relied upon too heavily.[81]
In oral evidence to the Joint Committee, Professor Christopher
Forsyth, Director of the Centre for Public Law at Cambridge University
said:
A target is not something that you can guarantee
[…] The duty of the Secretary of State to achieve the target
is at best a duty to use their best endeavours to achieve that
target […] [So] a failure to achieve the target does not
[…] imply a breach of the duty so there is nothing to enforce.
This is a duty that is unenforceable in the courts.
It is unthinkable that the English courts would consider
themselves to have jurisdiction, for instance, to close down a
coal-fired power station in order that the target could be met
[…] or order the Minister to buy carbon credits. If the Minister
were to buy carbon credits, it is most likely that he would have
to have funds voted to him by Parliament.[82]
68. Friends of the Earth suggests that a more 'pre-emptive'
approach—whereby legal action can be taken in advance if
it is perceived that a particular policy is underperforming—might
be more effective from an environmental perspective:
while a Judicial Review may be relatively easy to
win it is hard to see what it would change - it would already
be too late. […] A much more useful process would be a way
to challenge in advance a policy or suite of policies which did
not appear likely to meet the budget(s). Should such a challenge
be successful, Ministers could be required to amend the policies
and thus still meet the budget. […] any judicial review is
really just saying you failed. I cannot see the point in that.[83]
69. In this vein, Mr Wilson of Cambrensis Ltd, Barrister
with the Environmental Law Unit, Burges Salmon LLP, told us:
There are some circumstances in which a court might
intervene in a judicial review challenge; for example if the Secretary
of State was acting wholly inconsistently with the targets and
budgets, or (if there was a requirement written into the Bill
for a more detailed action plan), by failing to take specific
steps. But the real accountability and sanctions involved here
are the risks of adverse public opinion, a bad press and Parliamentary
pressure.[84]
70. Climate Change Capital noted that: "international
environmental law, like all international law, tends to rely on
a reputation rather than some kind of compliance mechanism."[85]
This is supported by the CBI which observed that: "[p]articularly
for the government that has brought forward this Bill, which sets
its store by leadership in this agenda, to be shown to be failing
in some way through its programme of measures to deliver on the
target will be a pretty strong sanction—admittedly not a
direct, financial one but a very strong political one."[86]
Mr Wilson concurred, noting that: "I think the sanctions
here are not really Judicial Review but adverse public opinion,
bad press and having a hard time in Parliament, and those are
the really effective sanctions as envisaged by this Bill."[87]
The Association for the Conservation of Energy adopts a similar
stance, noting that "fear of Judicial Review does seem to
concentrate ministers' minds wonderfully".[88]
71. The Secretary of State supported this stance:
There is a requirement on the Government to live
within its budget. So, the whole bias of the system is towards
correcting problems before it is too late rather than after. […]
the sanction of, first, public opinion, second, political pressure
and, third, the law is pretty strong in trying to ensure that
the country—because in the end it is the country that has
to make the choices—lives within its carbon means.[89]
[…] in a Cabinet Committee a Secretary of State […]
may be able to conjure up particularly gruesome prospects of intervention.
It is a last resort sanction or a last sanction. […] I feel
much more comfortable defending the Bill with this provision in
it than I would without it in it.[90]
72. Although
sanctions may not be either likely or real, we recognise that
having an Act of Parliament has its own merits. By institutionalising
the targets, the political pressure to achieve them will be increased.
The Government of the day will also be subject to 'the court of
public opinion'.
73. If a target
is missed, we recommend that a debate on a remedial action plan
is held on the Floor of the House on an amendable Government motion
subsequent to the publication of the Government's response to
the annual progress report by the Committee on Climate Change.
78 Department for Environment, Food and Rural Affairs,
Draft Climate Change Bill, Cm 7040, March 2007, Consultation
Document, paragraphs 5.44 and 8.2 (RIA) Back
79
"David Miliband 'I will vote for Gordon'" The Observer,
22nd April 2007 Back
80
Qq 266-267 Back
81
Ev 135 Back
82
Uncorrected transcript of oral evidence taken before the Joint
Committee on the Climate Change Bill on 16 May 2007, HC (2006-07)
542-i, Qq 4-5 Back
83
Ev 27, Q 97 Back
84
Ev 73 Back
85
Q 148 Back
86
Q 233 Back
87
Q 269 Back
88
Ev 166 Back
89
Qq 486-487 Back
90
Qq 495, 497 Back
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