Examination of Witnesses (Questions 262
- 279)
MONDAY 21 MAY 2007
MR WILLIAM
WILSON, MR
MICHAEL WOODS
AND MR
TOM BAINBRIDGE
Q262 Chairman: Gentlemen, you are
most welcome, and particularly Mr Wilson, thank you very much
for your written evidence. The Committee is under certain pressures
of time today and I just want to advise you that I will be vacating
the chair between five to five and five past five and Roger Williams
will be taking over. Don't imagine we stop, Mr Williams will take
over the chair. Can I formally welcome William Wilson, Director
of Cambrensis Limited, a barrister from the Environmental Law
Unit of Burges Salmon; Mr Michael Woods, a partner with Stephenson
Harwood and a Council Member of the UK Environmental Law Association
and co-convenor of the UKELA's Climate Change Working Party and,
finally, Mr Tom Bainbridge, a partner from Nabarro and also the
co-convenor of the UKELA's Climate Change Working Party. Gentlemen,
we are here to talk about the Climate Change Bill. Is it a well
drafted, good piece of legislation? Mr Bainbridge, you look like
a man who wants to give us an answer?
Mr Bainbridge: It is a well drafted
piece of legislation but I think it leaves some questions still
unanswered.
Q263 Chairman: What would those be?
Mr Bainbridge: I suppose the key
of them is the consequence of failure to meet targets. It is a
question of enforceability.
Q264 Chairman: Right. We will no
doubt come to that. What do you think, gentlemen who have not
spoken, are the Bill's strengths and weaknesses?
Mr Woods: I think the strength
is it is the first step, in legislative terms, for setting a framework
for going forward, that is impressive. I should just back up Tom's
comment, I think it is a good Bill, better than expected perhaps,
so that is a strength. There is lots of scope for debate.
Q265 Chairman: Mr Wilson?
Mr Wilson: I also welcome the
Bill, on the whole, because I think it is a determined attempt
to address a very difficult issue and the Secretary of State is
exposing himself to adverse public comment and parliamentary pressure
if he fails to meet his targets. I think there are a couple of
aspects of the Bill which I would like to see further detail on.
Chairman: Bit more than work in progress,
good direction but some questions about responsibility if you
miss your target. Right, we will come on to that in due course.
Q266 Mr Williams: To what extent
is the draft Bill's proposed legal duty on the Government to meet
its 2020 and 2050 targets and remain within its carbon budgets
enforceable?
Mr Woods: I do not think it is
very enforceable in practice. It might look that way, to have
a duty on the Secretary of State but, in actual fact, if anybody
were to raise a Judicial Review challenge they would find it very
difficult I think to pin the Government down, not only because
the data they would need to muster would be difficult but also
because Judicial Review as an enforcement mechanism is not quite
suitable for this particular job.
Q267 Mr Williams: Could you tell
us why it is not suitable?
Mr Woods: 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.
Q268 Mr Williams: Would anybody else
like to say something on that?
Mr Bainbridge: Yes, I think, as
Michael said, with judicial review you are looking for a decision
to challenge whereas what one would more likely be doing here
is looking not for a decision but at a failure of policy that
was meant to be delivering against the budget. One has great difficulty
trying to identify the decision that was the wrong decision. As
Michael has said, again even if you find the decision, what can
the court require the Secretary of State to do, other than go
back and think again? As it is drafted, it does not provide a
mechanism as the back up. I took the liberty of listening on the
webcast to the evidence taken last week, and there was a discussion
of a plan A and plan B approach. That struck me as being something
where it could provide a mechanism which a court might find easier
to work with. If there is then a failure of one set of policies
to deliver on the objectives but there is also something very,
very concrete that a court could turn to as an alternative, a
decision is then of the Secretary of State not having moved to
plan B, but in the absence of pre-determined measures pretty difficult
to enforce.
Mr Woods: Especially in 2050.
How do you come up with some sort of remedy in 2050 which is going
to take account of something which went wrong in 2025?
Q269 Chairman: One of our witnesses
sent us about four pages of lists of regulations, principally
of secondary legislation but some primary, making the point that
if you added it altogether there was no need for this Bill at
all.[1]
Do you think there really is a need for something like this to
set these targets with some kind of legal underpinning because
in the opinion column of the May 2007 edition of Parliamentary
Brief it said, and I quote, "In the absence of a genuinely
effective legal mechanism why have the Bill at all"?
Mr Wilson: 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. I think
there are some limited circumstances in which a Judicial Review
case might be brought, for example if the Secretary of State proposed
a policy that you could show was completely inconsistent with
meeting your targets on a particular date or if, for example,
you write in to the Bill a more detailed action plan and it fails
to meet a particular stage or particular specific point in that
action plan, then there could be a Judicial Review brought. I
think the real sanction is public opinion.
Q270 Mr Williams: If the real sanction
is public opinion then why not just set targets rather than have
a piece of legislation to do it? The Government sets plenty of
targets.
Mr Bainbridge: I suppose, to start
off with, it is a political question rather than a legal one,
is it not? It is perhaps drawing attention to this issue. One
can think of a number of alternative approaches which could be
adopted.
Mr Woods: It is raising the profile
of the targets, I suppose. It is saying "This is not simply
an aspiration or something we will have a go at", it is a
statutory obligation, however difficult that is to enforce in
practice.
Q271 Mr Williams: Within any five
year budgetary period, the Secretary of State will be able to
"bank" and "borrow" as well and, therefore,
give huge amounts of flexibility. How can you pin him down or
could we devise a better way within the Bill of pinning the Secretary
of State down?
Mr Woods: Possibly. Can I draw
the parallel with the international regime? We have the UN Framework
Convention on Climate Change which sets the framework, hence the
name, under which we then have the Kyoto Protocol which establishes
more detailed rules and targets, then below that we have the Marrakech
Accords ie rafts of detailed rules. One could see the Bill as
the first step along those lines and perhaps in that sense it
is very useful, but one could also be more cynical and say there
is an element of it being a political gambit at this stage.
Q272 Mr Cox: Why do you think it
is necessary for those promoting the Bill to want to put in this
nonsense about Judicial Review? You are obviously right that a
high court judge in the administrative court, confronted with
the idea that he was to police the political decisions of the
Secretary of State about how he would meet these targets, would
look aghast at the idea that he was supposed to do anything about
it, except obviously if he did nothing. Why is it necessary, do
you think, for people in the White Paper and the Government to
suggest that Judicial Review might be something which could be
used because it is not, is it, it is not realistic?
Mr Woods: Perhaps to reflect the
policy move towards increased transparency. For instance, the
UN/ECE Aarhus Convention is pushing towards increased public access
to environmental information and increased participation, so the
Government by flagging up the opportunity to judicially review
meets that goal, though it is perhaps easy to give, given the
concerns you have just mentioned.
Q273 Mr Cox: Or is the real purpose
of it, do you think, to pretend that it has some kind of legal
underpinning or sanction to those who are perhaps not as able
to determine its real use as you are and to pretend that it is
in fact something with teeth when it is not?
Mr Wilson: I think that is a little
bit hard. I also think that maybe the Bill which you have got
in front of you at the moment is maybe a work in progress to this
extent. It is going presumably to look quite different by the
time it is introduced and also by the time it is enacted. I do
not know what level of detail may get written into it by then,
but it would be quite different in terms of enforceability and
Judicial Review if more detailed stages along the way were incorporated
in the Bill.
Q274 Mr Cox: That is an odd proposition
to start from, that it may become something different later so
what is in it now may become justified.
Mr Wilson: That is true but it
is a draft Bill at the moment and policy is being made at quite
a rate, as far as I can see from today's papers in any event.
Q275 Chairman: Let me just ask this
question, there is this question in the Government's own consultation
document where they talk about the reporting process to Parliament
being part of the process of accountability but there is nothing
in the Bill that specifically commits the Government, for example,
to having an annual debate on the report on a substantive motion
of the House which could put the Government at risk of losing
that motion if it had failed to meet the target. Do you think
it needs to go that far?
Mr Wilson: Yes, I do. I think
it needs to go further in terms of the reporting to Parliament.
I think it needs in particular two things. I think it needs to
take much fuller account of what is happening at the EU and international
level. There is a slight artificiality about saying "This
is our national policy but we are not taking account of what we
are separately negotiating at EU and international level".
I think that should be reflected in the reports to Parliament.
Also, I do suggest that having an affirmative resolution procedure
may not be the most effective way of getting constructive input
into the Bill and constructive scrutiny of new proposals.
Q276 David Taylor: Our two UKELA
co-convenors seem to agree that the Bill was deficient, and I
will paraphrase what I think they said, in being, in a sense,
reactive rather than proactive and even the reaction that the
Bill foresees Judicial Review, and things which might follow would
be perhaps too little too late. You may be interested, both of
you, that Friends of the Earth seem to anticipate that type of
approach and they argued in their evidence to us last week that
"... 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".[2]
They go on to argue a pre-emptive approach whereby legal action
could be taken in advance if it is thought that a particular policy
is failing to deliver or, in their words, which does not appear
likely to meet, for instance, the budget. Are you attracted by
that approach? Is it workable? Does it open up new areas of law?
Mr Woods: I am attracted but whether
it is workable though, again I think what you are adding there
is an extra layer of uncertainty. How do you prove in advance
that something is going off the rails? I think that is almost
harder than a retrospective approach.
Mr Bainbridge: Yes. If you are
looking at a five year budgeting period you are saying that actually
you are permitting enormous variation in emissions within that
five year budget so long as overall it achieves the average emission
level; how would you determine poor performance? On the other
hand, if you had something which perhaps set some kind of limit
on the variability from a trajectory within that period, then
perhaps you have something against which you can measure failure.
As it is currently drafted, I do not see how it would be workable.
Q277 David Taylor: They are not necessarily
arguing, as it is currently framed, that such a concept of pre-emptive
action would be possible but they are arguing that something like
that ought to be incorporated into the Bill. In relation to Mr
Woods' point about whether or not it is possible to demonstrate
clearly that something is likely to happen in the middle distance,
are not English courts all the time discussing questions of probability
and what the most likely outcome of particular events is, as well
as looking back on the most likely reasons for certain things
having happened. It is not the competence or capacity of courts,
surely?
Mr Woods: Certainly not. The courts
are certainly very interested in discussing causation, looking
at causation, when they have an end result that they have to assess.
But in terms of impacting, by way of their decision, on a political
judgment, they are very reluctant to do so in terms of Judicial
Review. I think they would tend to steer clear of that kind of
approach and look for a specific decision that can be challenged
before they would jump in.
Q278 David Taylor: You seem to be
arguing that the legal establishment would wash its hands of anything
which had a remote political dimension to it in this context?
Mr Woods: Separation of powers
applies, I suppose. We see this at the EC level as well. The ECJ
has certainly been more proactive on the environmental front than
some people, including some politicians might like, and there
has been a shift in the UK along similar lines but it is slow
progress. It depends what you want your judiciary to do.
Q279 David Taylor: Could I put the
question to Mr Wilson then. Are you as pessimistic as your colleagues
today on the capacity of the legal system to perform the role
that Friends of the Earth suggested might be possible, to look
at policies, to see if it was likely that budgets were likely
to be missed or other objectives were not to be hit, to take pre-emptive
action within a legal context? Is that possibly impossible?
Mr Wilson: It is quite difficult
for them in practice, not impossible, but I think it is quite
difficult for them in practice on the evidence to judge that something
is going not to meet a budget, say, or that certain actions will
lead to a certain result. The courts will be ready to step in
if there has been a breach of procedural rules so if you write
in more procedure, more stages along the way, there is more that
the courts can do to review it. On the principle they will be
able to step in if there is a really wide divergence between where
you are and where you need to get to. You are straying into the
area of whether you can reasonably adopt one lot of policies if
it is going to be completely inconsistent and mean that you do
not meet your carbon budget, but it is quite a high level of evidence
to reach and quite a high barrier to cross.
1 Evidence from LEWIS-Global Public Relations (Ev
126). Back
2
Ev 27 para 7.1. Back
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