Examination of Witnesses (Questions 300
- 320)
MONDAY 21 MAY 2007
MR WILLIAM
WILSON, MR
MICHAEL WOODS
AND MR
TOM BAINBRIDGE
Q300 Mr Cox: That is a very odd proposition
to start from. You should assume it is not going to be worked
on at all, it might go through tomorrow.
Mr Wilson: Surely not.
Mr Woods: I agree with Mr Bainbridge.
Mr Cox: I was using poetic licence. Be
candid with this Committee, gentlemen.
Q301 Chairman: You do not have to
agree. If you feel deep down a sense of deep discomfort, this
is not a sort of king is in his altogether situation, you can
be the little boy who points the finger saying but.
Mr Bainbridge: I think the question
is whether other aspects be built into the Bill which will fix
these problems. For myself, I think we are saying these are not
problems which cannot be fixed through some mechanism being built
in explicitly but as we stand there are—
Q302 Mr Cox: — major flaws.
Mr Woods: We like the Bill because
it is cutting edge legislation. We do not like the Bill because
it raises certain concerns. It could be better formulated than
it is at present and we hope that will happen on the back of our
comments and others comments.
Mr Wilson: I think, Chairman,
if you want the Bill to be more effectively subject to Judicial
Review in terms of the challenges to the various actions by the
Secretary of State, then it would need to have more specific detailed
action points to which a court could say, "This has or has
not been met", without doing what I think a court would be
reluctant to do, which is micro-managing the carbon budgets of
the UK.
Q303 Chairman: I think the sad thing,
from the point of view of the parliamentary side of the table,
is that we keep coming back to the fact that it is the courts
who are supposed to be the mechanism by which the quality and
effectiveness of the legislation is judged rather than Parliament.
Parliament is there to hold the executive to account but I think
we note the areas of reservation that you have as far as that
is concerned. Let us move on to the Bill's enabling powers because
I was struck, Mr Wilson, in your memorandum when you said, "The
draft Bill takes a remarkable number of powers for the Secretary
of State to make regulations which will deliver the substance
of whole new emissions trading schemes and many aspects of the
proposed carbon budgets." The Bill will go some way by saying
that it should be by the affirmative resolution of the House but,
as you will understand, apart from the resolution, the content
of any order is not amendable and yet these could be very big,
complex schemes which are brought in, simply through an order
making power. Is that good? Is that the right way to do it? Right,
Mr Wilson, what is the right way and how should the Bill be changed?
Mr Wilson: I do not think it is
the right way, because I think the affirmative resolution procedure
is quite a frustrating one, really, in that you get a chance to
vote something through or vote it down, but the chances are you
do not want to do either of those things, but you may have three
or four constructive amendments to make to the trading scheme
proposal. Why not have a requirement that Parliament be consulted?
Why not have a requirement to put a proposed trading scheme to
Parliament, to a Committee like this, and to take account of its
comments?
Q304 Chairman: Gentlemen?
Mr Woods: We already have a trading
scheme which came from Europe under delegated powers so it worked
that way. In fact, across the board, in environmental legislation,
we have primary legislation which is then followed by secondary
legislation and the devil is in the detail in the policy guidance.
For instance, the Integrated Pollution Prevention and Control
(IPPC) regime is a good example, the contaminated land regime
is another example. It is quite often the case that because of
the technical nature of environmental regulation, one needs to
deal with the detail later on in guidance and secondary legislation.
I do not think it is anything new to take this approach under
the Climate Change Bill, provided the Climate Change Bill sets
the remit, the principles, correctly.
Q305 Mr Williams: At the moment,
within the Bill itself, no account is taken of emissions from
international aviation or shipping. The ministers tell us that
could be added, a formula was agreed which would indicate which
of the amended emissions Britain was responsible for. What would
be the legal implications of including the UK's share of the emissions
from aviation and shipping before their inclusion within the EU
Emissions Trading Scheme? Would there be any legal implications
to that?
Mr Woods: There would be legal
implications, I think there would be market implications, if you
do not mind me saying so, as well. Of course, what you are doing
is cutting across the EU regime which in itself is probably going
to cut across the international regime. Yes, I think there could
be big problems there.
Q306 Mr Williams: The minister, in
saying that we have to hang on before we have an international
agreement on it, he is right in saying that?
Mr Woods: It looks to me as if
he is keeping his options open. The EU has chosen to go forward
because it feels that the IMO and ICAO have not done enough, under
the Kyoto Protocol, to address aviation and shipping. I suppose
the UK minister is thinking, "Well, let's see what happens."
There might be a benefit if things do change over the next few
years in the UK taking action.
Mr Wilson: If I could just add,
Chairman, that is why I think it is necessary for these reports
to Parliament to take better account of the detail of what is
going on at international and EU level, and to be much more forthcoming
about that, because otherwise there is a sense of artificiality,
and we are dealing with national policy as if the same Secretary
of State was not very actively engaged on very important negotiations
which will make a great deal of difference to the substance of
this Bill.
Mr Bainbridge: To second or third
all of that, I think the distinction is between the budgets themselves
and the reporting. Putting it in the budgets would create the
market and legal complications whereas addressing it through the
reporting does not.
Q307 Chairman: You wanted, Mr Wilson,
to see some kind of website, did you not, about reporting what
was going on?
Mr Wilson: Yes, I think the reporting
is quite a long time after the event, which is quite frustrating
in some circumstances. Parliamentary scrutiny of European negotiations
seems to rely on memoranda submitted quite long after the negotiations
themselves have moved on, and that must be quite frustrating for
the parliamentarians, because they are always hearing something
six or nine months late; in this case it will almost two years
late. If possible, I would like it brought more up to date and,
if possible, I think we could just be more open about the positions
being taken in international and EU negotiations so everyone is
better informed.
Q308 David Taylor: We are now on
the penultimate paragraph of your submission, are we not, Mr Wilson,
and a very interesting suggestion about the website, and I do
think that has great potential. You have just gone on to raise
the point I wanted to put to you as a question. You suggest that
such a website might contain within it " . . . all UK negotiating
positions on all EU and international treaties, conventions and
agreements on climate change."[4]
Is any government likely to expose its negotiating stances and
pitfalls to a wider public in the light of the sensitivity and
difficulty of some of these negotiations?
Mr Wilson: I just wonder sometimes
how much of this is really confidential or secret.
Q309 David Taylor: Sensitive rather
than secret.
Mr Wilson: Certainly, but by the
time the UK has taken a negotiating stance in international negotiations,
within about three months those in the know seem to know about
it, the key NGOs, other Member States, the thing is starting to
become public. I just think more of it could become public in
the first place and we would all be better informed.
Mr Woods: I think that was in
a way demonstrated in relation to phase one, with the reporting
there, the information coming through, as it were, prematurely
which caused the market to crash. It was not well handled; it
is going to be handled hopefully better next time around. As William
says, if everybody who is on the inside in the market knows anyway
then perhaps more of that information could be made available
on the outside so there is better debate.
Q310 David Taylor: You have done
international research on these sorts of things, have you not,
particularly in the States. Are you aware of any nation which
has an approach similar to that which you are urging on the UK
Government?
Mr Wilson: I would have to think
about that more in order to give you chapter and verse on nation
states. I just think of the work that I was doing and I just cannot
think how much of it really was that confidential or that secret—or
should have been. I do not think very much of it really. I cannot
imagine taking a particular stance on international or EU negotiations
on climate change issues that I was not prepared to pretty much
relay to the public in that sense. I think it is a less confidential
area than some.
Q311 David Taylor: Do you think that
would somehow complete the cycle, an openness to the general public
who would then presumably apply pressure—political pressure
or other types of pressure—on the Government to take particular
stances or change directions? Is that how you envisage it happening?
Mr Wilson: Yes, I am quite idealistic
about the benefits of giving the public better access to information;
I think it does have an effect. It is not evenly spread, you do
not get every member of the public enthralled by the detail of
this Bill, but I think it does have a real effect. I think it
did in America, it does in America and it could do here.
Mr Woods: If this Bill is designed
to apply emissions trading to the next layer down under the Energy
Performance Commitment (or personal carbon trading even in a few
years to come), then without engagement from the public we are
not going to get the best outcomes. People need to know about
it in advance and be able to influence the process.
Q312 David Taylor: In Mr Wilson's
evidence submitted to the Joint Committee you describe having
contact with the state of Oregon where those involved in making
environmental legislation had to go out and explain particular
provisions in town meetings across the state. I am not sceptical
about that, I think it might have some attractions and there have
been great debates in this country on GMOs and things like that.
I am not sure that they have necessarily advanced the legislation
or changed it in ways that we would like but do you think that
would roll over into a national forum, the sort of forums that
you saw in one state within the USA, having an obligation to have
this national debate in every corner of the land?
Mr Wilson: I do think—and
it is a point that Michael has just made—that long-term
the best way of making your environmental legislation effective
is to have people understand and share the objectives that it
has. If the public see this Bill as an enormous imposition on
them by a group of policy makers, maybe in London, then I think
they will not support it, but if, on the other hand, they really
understand what it is trying to do, they understand what it is
trying to get at, how they could be involved and how they could
make it effective, then I think it stands a much better chance
of staying the course.
David Taylor: I think we are trespassing
on areas of our other inquiry: the citizen's contribution to climate
change, which in itself would be a hugely important document.
Q313 Chairman: It is interesting
to hear what you have to say because a lot of this Bill is fairly
remote at this stage from the public. I just wondered though,
in legal terms, whether you felt that the order making powers
that are in the Bill would be sufficient ultimately to enable
the Secretary of State to introduce a personal carbon allowance
scheme. Would that, at the level of the individual, still count
as a trading scheme?
Mr Bainbridge: The powers are
there, are they not, to introduce greenhouse gas emission trading?
Chairman: It says the Secretary of State
may make provision by regulations for trading schemes relating
to greenhouse gas emissions.
Q314 Mr Cox: It is likely to be affected
by European framework legislation and to be perceived in that
way.
Mr Wilson: I suppose he could
add other greenhouse gases. I would need to think about it as
to whether he could make the personal carbon trading scheme under
that provision, maybe he can.
Chairman: It is cast in pretty general
terms, the current clauses 28 and 29.
Mr Cox: The European Directive defines
a trading scheme.
Chairman: Only a European Union trading
scheme.
Q315 Mr Cox: No, but this legislation
may be perceived as European—
Mr Wilson: The European Emissions
Trading Scheme would not cover personal carbon trading.
Q316 Chairman: The section of the
Bill is designed to enable the Secretary of State to introduce
trading schemes into areas where the European Union trading schemes
do not currently operate. That is what it is there for.
Mr Bainbridge: Absolutely.
Q317 Mr Cox: I was going to ask you
about that, is there a problem with introducing legislation that
goes beyond the current European framework? I do not know, presumably
there is a directive at the heart of this somewhere which sets
out the European trading emissions.
Mr Woods: They are running in
parallel, to my mind. There is certainly a problem, I think, for
Government if it strays beyond a European approach and then finds
that the two do not quite marry up.
Q318 Mr Cox: Is there a problem,
as a matter of European law, I do not know what the directive
says but does it permit individual Member States to go further
than the current European framework?
Mr Woods: This is possible but
there are certain constraints.
Q319 Mr Cox: In parallel there is
a danger there, obviously, of coming up against the problem of
conflict. I have not looked at the European legislation, I do
not know if you know.
Mr Wilson: The issue would be
whether it conflicted. If it conflicted with the UK's obligations
under the EU Emissions Trading Scheme then there would be a problem.
Q320 Mr Cox: Right.
Mr Bainbridge: I am not aware
that it does conflict. The EU Emissions Trading Directive identifies
particular types of installation, and deals with points source
emissions from those classes of installation. In terms of how
allocation is worked out, it is by reference to other climate
change policy, which could include measures brought in under a
Bill such as this. The difficulty, of course, is the fact that
the EU Emissions Trading Scheme looks at direct emissions from
specific installations whereas this could be looking at direct
emissions or indirect emissions. Then you have the problem of
the fungeability. The Bill has provisions which allow for the
use of credits in the EU scheme to be used to offset obligations
introduced under the Bill but they could not be interchangeable
in the other direction; otherwise, for example, you could have
double-counting. You could have double-counting anyway.
Mr Woods: Care will need to be
taken to make sure that the two are complementary and I suppose
that comes back to carving out at this stage aviation and shipping,
and waiting to see what the EU does on that front.
Chairman: Gentlemen, thank you very much.
Before you go, you indicated in the earlier exchanges that there
might be areas where you would like to see the Bill developed
or improved and some of those we have touched on but if, subsequently,
when reflecting on what you have said, there are some further
thoughts you would like to communicate to us in writing on that,
in other words ways of polishing and improving or sign posting
with greater clarity where the Secretary of State should do further
work before the Bill emerges in its final form, we would be very
grateful to hear from you. Thank you very much indeed.
4 Mr Wilson's evidence submitted to the Joint Committee
on the Draft Climate Change Bill (HC 542 06/07). Not printed here. Back
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