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.
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