Memorandum submitted by Tom Bainbridge
& Michael Woods (CCB 41)
Tom Bainbridge, Partner at Nabarro, London
and Co-Chair of the UK Environmental Law Association Climate Change
Working Party
Michael Woods, Partner at Stephenson Harwood,
London, Council Member of the UK Environmental Law Association
and Co-Chair of the UK Environmental Law Association Climate Change
Working Party
We believe that the draft Climate Change Bill
could introduce a valuable framework for delivering vital reductions
in GHG emissions. Our additional comments below highlight where
we believe improvements could be made—or, indeed, are necessary
for the Bill to be sufficiently effective.
|
EFRA Committee
Terms of Reference
| Comments |
|
| 5. Enforcement | The Bill imposes an unambiguous duty on Secretary of State to reduce emissions. Failure to meet the 2020 or 2050 targets or
5-yearly carbon budgets could lead to public or Parliamentary censure of Government through the reporting process.
Judicial Review might create further embarrassment for Government provided procedural irregulatory could be identified. Failure of policy to deliver necessary reduction, however, would in itself be unlikely to give rise to a successful right of action, save for a declaration that the reduction had not been achieved. The Courts would not direct the Secretary of State to take action that would "fix" failed policy unless the fix itself had been provided for.
Therefore, the Bill provides a valuable framework but much depends on the detail of the measures to implement the targets. The Bill itself will be strongest if it contains a framework for the detail of those measures rather than this all being left to secondary legislation.
|
| 11/12 Climate Change Committee
| The role of the Committee is unclear.
In our view, the Bill would be considerably strengthened if the Committee's role was clarified and moved from (what appears to be) merely advisory, to a genuinely independent auditing and policing role.
This might include a power of veto and/or the ability to force a motion in Parliament if conflict arose on key decisions and the ability to source new evidence where necessary. The Secretary of State should also be obliged to provide explanation to the Committee for the reasons for any failure to stay within carbon budgets and planned "remedial" measures.Independence needs to be ensured in respect of:
|
| |
| — appointment of the Chair and all members of the Committee?
|
| — budget and governance rules—perhaps set under an Order subject to Affirmative Resolution.
|
| The Committee should be able to force review of budgets and 2020 and 2050 targets.
|
| 16. Enabling Powers | We note that the Secretary of State is given wide powers in relation to the introduction of emissions trading regimes but question whether other powers should also be included (provided suitable parameters are set for their exercise). We recognise though that powers exist under other legislation so the grant of additional powers may be unnecessary and/or properly reserved for full Parliamentary consideration.
However, if wider powers are not granted under the Bill, it should include an express obligation on the Secretary of State to consider the exercise of powers granted under other legislation to achieve required emission reductions, and might also require that powers exercised by the Government in respect of certain key areas (eg energy, transport, etc) take into account both the 2020-50 targets and potential impacts of decisions on the 5-yearly carbon budgets.
|
| We would also highlight an inconsistency between emissions trading which may address the basket of six greenhouse gases and the 2020-50 targets and 5-yearly budgets which are set for carbon dioxide only. This implies that GHG targets for the UK would be more appropriate or else requires that the Bill ensures that robust accounting standards and tests of "additionality" are applied to all GHG units allowed into the UK carbon dioxide pool.
|
| The UK Environmental Law Association aims to make the law work for a better environment and to improve understanding and awareness of environmental law. UKELA's members are involved in the practice, study or formulation of Environmental Law in the UK and the European Union. It attracts both lawyers and non-lawyers and has a broad membership from the private and public sectors.
|
|
UKELA prepares advice to government with the help of its
specialist working parties, covering a range of environmental
law topics. This response has been prepared with the help of the
climate change working party.
UKELA's current priorities include:
— Informing and actively influencing the broad law
and policy debate on climate change including the measures to
reduce greenhouse gas emissions and manage their impacts at the
international, EU and domestic level.
— Helping deliver more effective and efficient environmental
regulation including enforcement at the EU and UK level, not lower
standards nor less regulation unless the same or better outcomes
will be achieved.
UKELA works on a UK basis and seeks to ensure that best legislation
and practice are achieved across the devolved jurisdictions.
Tom Bainbridge and Michael Woods
June 2007
|
