Select Committee on Environment, Food and Rural Affairs Minutes of Evidence


Examination of Witnesses (Questions 480 - 499)

WEDNESDAY 23 MAY 2007

RT HON DAVID MILIBAND MP AND MR ROBIN MORTIMER

  Q480  Mr Gray: There is a whole development of parliamentary procedure. Last week we agreed that Parliament would have a say on war-making, thank goodness, and we took the Royal Protocol away from the Government. Surely this is another area where Parliament usually say, "We are delighted that Parliament"—

  David Miliband: I have absolutely no---. I would encourage you to give us your thoughts on that area. Whether you conclude it is right to do it via the Bill I think needs a bit of thought.

  Q481  Mr Gray: Otherwise the risk would be that this would just be a PR exercise. It is just the Government saying, "We are keen to do something." We want to be seen to be doing something, it is frightfully important, but unless it is actually written into the parliamentary year, unless there were some real teeth in it and unless there was real muscle in it—

  David Miliband: I cannot guarantee a debate, but I can guarantee it will not be a PR exercise because this is an issue where all three parties are now zealously wanting to debate this issue. I think the idea that this will go the way of the Apples and Pears Monitoring Board is not realistic. I think this will be a subject of a lot of interest. I do not think it will just go off down the sluice somewhere and not be debated, not just here but more widely, but I think that will be an interesting area for the Committee to come to a considered view about.

  Q482  Lynne Jones: Could I ask you about sanctions?

  David Miliband: Back to the Tower.

  Lynne Jones: Yes.

  Q483  Chairman: I do not think there are provisions in the Bill for the Secretary of State to be sent to the Tower?

  David Miliband: Tempting though that is.

  Q484  Chairman: It would be a novel procedure: "The Secretary of State shall volunteer to spend an amount of time in the Tower of London if he fails to achieve his targets"!

  David Miliband: Inspecting the jewels.

  Chairman: In the stocks on the green!

  Q485  Lynne Jones: I am more interested in sanctions that might be effective. What might be they be? There is provision for judicial review. What happens if Friends of the Earth or Greenpeace or somebody else takes the Government to court for failing to reach their targets?

  David Miliband: They are known for not being litigious organisations. I would be amazed if these things crossed their mind.

  Q486  Lynne Jones: By that time the targets would have been missed, so it is too late. What sanctions can be applied? I put it to your colleagues a little earlier that one idea could be that the Government should be required to purchase overseas credits to meet the target, or there should be a provision to increase targets for subsequent budgetary periods. How can we make sure that future governments, future secretaries of state are going to be held to these targets given the five-year period, which has been quite controversial and has been criticised because there could be a new government in place?

  David Miliband: They are required to live within the budgets, that is not an option, and they are not simply required to act reasonably, for example. I think that you are reaching for the sanctions, which I am very happy to talk about in detail, but what I would say to you is that the whole point of the system is that we can see progress before the end of the budgetary period—that is part of the reason for annual reporting, query, debating. 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. In respect of the sanctions themselves, you are right, you could (I think it was your word) be required to purchase credits, you could imagine a range of other sanctions, but in our system—

  Q487  Lynne Jones: Tell us then: what are they?

  David Miliband: I assume you were thinking of the Kyoto Protocol, which has provisions for higher targets in subsequent periods, which is what you referred to, but my judgment is that, in our system of judicial review, it is right for the courts to be able to use that range of "sanctions". I think that is appropriate. Obviously, they would develop hopefully not too many cases where they would be able to develop practise in this area, but I think that 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.

  Q488  Lynne Jones: If there was a change of government within the five-year period, who would be held accountable then?

  David Miliband: The Secretary of State at the time, which is quite right.

  Q489  Lynne Jones: But they would just say, "It was that previous lot"?

  David Miliband: Then in the court of public opinion but also in the court itself they will have to argue that through. If you are saying to me that a Government gets elected four years and 11 months and 28 days into a budgetary period, is it going to receive all the opprobrium for not hitting a target, then, obviously, it will be a far different position than if it was elected after four days of a budgetary period; but we are a mature enough country. This is a political issue as well as a polity issue. People are mature enough to see their way through that.

  Q490  Lynne Jones: Is there not a problem that the Secretary of State that is designated to be responsible for this legislation does not necessarily have the responsibilities or the policy instruments to achieve the targets, and it would be—

  David Miliband: You are tempting me to build Defra's empire to pull more policy levers from other departments.

  Lynne Jones: There is further questioning perhaps of the role of the Carbon Committee, so I will stop there.

  Q491  Mr Cox: Secretary of State, in an article entitled "I will vote for Gordon" in The Observer on 22 April you described the Bill as the world's first eco-constitution. The judicial sanction of which you speak has been doubted by some very formidable experts. Professor Forsyth, who is the Director of the Centre for Public Law at Cambridge University, has regarded it as unthinkable that a court would enter into what are effectively policy decisions in a complex field before even you could determine with certainty that the trajectory would not meet the budget target for any particular period.

  David Miliband: Before did you say?

  Q492  Mr Cox: Yes?

  David Miliband: So during a budgetary period?

  Q493  Mr Cox: During a budgetary period, which is the only time it would be effective, because if you did it afterwards you would have already failed. But even if it were afterwards, the evidence that we have, not only from Professor Forsyth but also from many distinguished practitioners in the field, is that judicial review is a pretty implausible tool for the enforcement of this so-called eco-constitution. What I wanted to ask really was, I do not know what your advice has been, but are you really expecting the courts for the first time in the judicial review context to enter into a kind of dialogue with the Government over closing down this coal power station or "you will do this in order to achieve your target", or do you see it as some kind of last resort entry to the courts?

  David Miliband: I think it obviously is a last resort because it would represent failure of the system. Since the system is designed to pre-empt the missing of a target, there is provision for correction in the courts, there is provision for banking and borrowing, so there are a number of provisions to help avoid this situation, so it is very much a last resort. I do not expect "any particular" actions. What I have been advised to expect is that the court has a wide range of powers, and it would not be appropriate to presume how it would exercise them.

  Q494  Mr Cox: What I am really getting at is that to describe it as a first the world's first eco-constitution—

  David Miliband: Are you jealous of that particular—

  Q495  Mr Cox: I think it is potentially misleading, Secretary of State. I think the real role of the courts is infinitesimally small in the enforcement of this Bill, if there is any role at all for them, and I think what has happened in the Bill with the imposition of the legal duty is that expectations are being ramped up of a kind of legal sanction when really it is almost non-existent, the serious legal sanction that could exist behind this Bill. Your language "eco-constitution" tends to increase public expectation of something that, I suspect, is not a reality?

  David Miliband: The whole point about deterrent theory is that you never get to see what the impact of the threat is because it does not need to be used. I think that in a Cabinet Committee a Secretary of State worth his salt, or her salt, who was involved in a policy debate in year two, three or four of a budgetary period, a Secretary of State with a sense of penury, maybe able to conjure up particularly gruesome prospects of intervention. It is a last resort sanction or a last sanction.

  Q496  Mr Cox: It is an instrument to persuade your colleagues with, a judge over your shoulder, a sort of phantom?

  David Miliband: It is not a phantom, it is an instrument of this Bill.

  Q497  Mr Cox: But it is not—that is what the evidence has been—a serious instrument, though it is being promoted by your consultation paper and by you as such.

  David Miliband: With respect, we have said all along the whole point is not to have to get to that position. We are not putting it centre stage, we are saying that the Bill would be incomplete without it because it would allow you to say, perfectly legitimately, what is the last resort? I can say there is a last resort. The last resort is the courts. Should a government find itself in a position of not living within its budget, that would be a serious question. Should it not be able to live within its budget with the provisions for banking and borrowing and of course correction, that is a serious position. I would put it to you—you are a lawyer and I am not, so let me stick to the politics—I feel much more comfortable defending the Bill with this provision in it than I would without it in it. If it was not in it, you would perfectly legitimately be able to say there is a bloody great hole in the middle of this Bill and I think we are better off with the whole field admittedly in a way which has not been widely used for the sort of executive action that you take; but I would see the decisions and discussions—I think you mentioned power stations and other policy tools—as on-going during the course of the budgetary period.

  Q498  Mr Cox: The evidence we have had is that the problem with this for the purpose of legal sanctions is that it is wonderfully vague and, if it is to be genuinely susceptible to forensic inquiry in a court, it needs to be spelled out with more precision so that the courts can have benchmarks by which the Secretary of State's actions are to be judged. It is from a legal point of view vague, in the sense that there are no precise handles or sign-posts by which a court can judge it, except for the general target?

  David Miliband: You tell me, but clause two is not vague at all: "It is the duty of the Secretary of State to set a budget for the period to ensure that the net UK carbon account does not exceed the budget." That is not vague at all.

  Q499  Mr Cox: I fully accept that. The problem is when the Secretary of State sets his range of measures in order to achieve his target in the future, given that the amount of things the Committee is entitled to take into account and is obliged to—economic cycles, social factors and so on—a court is really at a loss in judging whether or not that is actually going to meet the target and what factors it has to take into account, social or economic, before it decides it is unreasonable.

  David Miliband: As you yourself said, I do not think we are talking about in-budget period litigation, we are talking about ex post litigation in this case. You said in your very preliminary remarks, because it is ex post it is meaningless. I do not agree. Because it is ex post it can still have impact for subsequent budgetary periods. I do not think your worry about whether or not the courts are skilled enough at seeing a trajectory is really the key point, if I may say so.


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2007
Prepared 5 July 2007