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As I said, my Committee has done a lot of work on social and economic rights and their justiciability. We debated at great length whether there should be social and economic rights in the Bill of Rights proposed as part of our constitution and, if so, the extent to which they should be enforceable through direct justiciability. We came to the conclusion that such enforceability could be extremely dangerous. It is not even required by the UN convention on these matters. That requires the progressive realisation, as resources permit, of all the great objectives of health, education and eliminating poverty; it does not impose absolute duties. The position now adopted by the Government, and which they are at great guns to achieve, matches that duty. The consequence
of justiciability is not just that Friends of the Earth can bring a case against the Government, but that any individual or busybody could do so. There is a better approach than through extreme justiciability, and it is the system that we advocated in our report on a UK Bill of Rights and Freedoms; I recommend it to the hon. Member for Somerton and Frome.
The fact that that approach is better is partly reflected by clause 4, to which I shall come in a minute. We said in the report that the best way was to give the judges an interpretive power, so that they interpreted the common law, Acts of Parliament regulations or whatever in a way that gave maximum effect to the duty. The duty itself would not be directly enforced, but the courts would do their best to give effect to it in how they approached it. That is a halfway house that fits much better within our overall constitutional settlement than what the Bill proposes. There should, of course, also be an absolute bottom line below which nobody should be expected to fall and which the courts could also enforce.
In the end, clause 2 risks the separation of powers. There is a clear separation of powers—although not as clear as some of us would like—between the legislature, the Executive and the judiciary. The Executive’s job is to run the country, the legislature’s job is to pass the laws and the judges’ job is to interpret them and make sure that the courts are doing their job properly. The problem is that clause 2 would blur the distinctions. Effectively, the judges would be making decisions on the allocation of resources. The judge would decide that the Government had not met the very precise duty under clause 2(1), therefore they must spend more money on it, therefore something else would have to give. Judges have the luxury of not having to say where the money will have to be cut—whether from the housing, schools or health budgets or elsewhere. Judges do not have to make that decision. All the judge has to do is to tell the Government that they are not spending enough money on the target and they have to spend more. The Government do not have that luxury, but the judiciary would have that power as a consequence of clause 2.
Janet Anderson: Is my hon. Friend saying that if the Bill is passed judges would decide national policy on fuel poverty, not elected parliamentarians?
Mr. Dismore: I am not saying that, because the policy would be set out in the Bill and the Government would bring it forward. I shall say more about that later. The issue is not the policy but the duty.
Clause 2(1) is absolutely prescriptive: by 31 December 2016 a given number of households must be taken out of fuel poverty. If by 2014 it looks as though that target will not be met, somebody will no doubt go to court and demand that the Government divert their last penny to achieve it. Judges could order the Government to do that, no matter what the social consequences elsewhere. Indeed, not only could judges do that, they would have to do it, because that is the absolute interpretation of the law—to the letter. They would have no choice, irrespective of the consequences, even to court budgets. Judges might have to be made redundant to give effect to the policy. Some people might think that a good idea, but it could be one of the unintended consequences of the way in which that absolute duty is phrased in the Bill, which is why when the Human Rights Committee
looked at such things in great detail we came to the conclusion that there could be no direct justiciability for what are in effect social and economic rights. It would be too dangerous to give such power to the courts, and it would significantly change the constitutional settlement of the UK. I am sorry to be so heavy on the Bill in that respect, but it could be the thin end of a large wedge.
Emily Thornberry (Islington, South and Finsbury) (Lab): If judges ordered Ministers to spend all their budget on ensuring that we reach the target and Ministers said no, can my hon. Friend tell the House what would happen?
Mr. Dismore: As I said earlier in response to an intervention by my hon. Friend the Member for Ealing, North, I suppose that if the High Court passed a mandatory order requiring a Minister to do X, Y and Z and the Minister refused or failed to do so, it would technically be contempt of court. The Secretary of State would be in breach of an order of the High Court and would be subject to the punitive sanctions that follow from contempt of court, which could ultimately mean imprisonment. That is an absolutely ludicrous consequence, but it is possible.
Mr. Heath: May I bring the hon. Gentleman back to my earlier intervention? Will he tell me how my proposals differ from the situation under the Climate Change Act 2008?
Mr. Dismore: The interpretation under the Climate Change Act would be much more in line with what Mr. Justice McCombe said about previous legislation. We have yet to see the text for the Bill on child poverty, but although I suspect that it will be framed in aspirational terms I should be very surprised indeed if it included such an overriding duty as set out in clause 2(1). If that were so, every last penny of the Government’s resources would have to be diverted to deal with child poverty.
We could have several such duties, all possibly in conflict and all demanding their share in the allocation of Government resources. The Committee looked at the South African experience, which produced some peculiar consequences. Luckily, the judges there are being sensible and allowing time to adopt the measures, but politicians say that if they had realised what they were doing when they passed social and economic rights they might have done so rather differently, without allowing full justiciability. Such a duty could take from elected politicians our proper role, which is to decide on the allocation of resources and priorities for the country and stand or fall by those decisions at the next election, and put that right into the hands of unelected judges, who are unaccountable and do not face the same pressures as us when we try to make decisions.
Lynne Jones (Birmingham, Selly Oak) (Lab):
I understand my hon. Friend’s point, but it is clear that previous fuel poverty targets and the best practicable means to achieve them have not been successful, so is it not important that when Governments set a target they at least put a reasonable amount of resources into achieving it? Could we not have a fuel poverty Bill that at least ensures that there is some likelihood of achieving the target? I certainly hope that the Government will
want to do just that in the child poverty legislation. I also hope it will not take all the Government’s resources to alleviate child poverty.
Mr. Dismore: My hon. Friend has not been present for most of the debate, but earlier we heard about the efforts that the Government have made, and the billions of pounds that have been spent on dealing with fuel poverty. I think that the figure for what has been spent so far is in the region of £20 billion, although I stand to be corrected. That is not peanuts; that is a significant amount of money to spend on eliminating fuel poverty, yet we still have not achieved the target. That is because of the issues that have come out in this debate, and because it is a moving target. That is the real difficulty with clause 2(1); it sets an absolute target, which does not reflect the fact that fuel poverty is a moving target. One of the issues that we will face when we come to consider the child poverty Bill is how child poverty is defined in it, because child poverty is potentially a moving target, if we define it in relative terms, rather than in absolute terms. We will have to wait and see what is in the Bill.
The problem with fuel poverty is that it is a relative, not an absolute, target. That is inevitable when there are different factors in play that affect who is, and is not, in fuel poverty. I do not quibble with the definition in the Bill, which I think is reasonable: it is when 10 per cent. of disposable income has to be spent on fuel if the temperature thresholds are to be reached. The problem is that people’s disposable income changes. As my hon. Friend the Member for Chorley (Mr. Hoyle) said, what happens if somebody loses their job? Their disposable income plummets, so someone who is not in fuel poverty one day falls into fuel poverty the next. On the other hand, as we discussed, if the price of fuel rockets, people who are low-paid, but who are not in fuel poverty because their income is sufficient to ensure that they do not come within that 10 per cent. bracket, may be pushed over into fuel poverty. When fuel prices come down, they come out of fuel poverty again. The same is true of someone who gets back into work. It becomes a moveable feast.
If we set an absolutely definite, specific target in clause 2(1), it will fail to reflect the fact that the target is moving and changing. The reason why the number of people in fuel poverty has gone up in the last couple of years has nothing to do with the Government not making an effort or commitment, or not spending on the issue. It is to do with the fact that fuel prices have gone up, as my hon. Friend said. That is the real reason why more people have fallen into fuel poverty in the past couple of years, although there are still fewer people in fuel poverty than 10 years ago. No doubt, as fuel prices come down, people who are currently in fuel poverty will cease to be so. Prices are coming down, albeit not as fast as my hon. Friend and I would like. Earlier, we discussed what the remedies for that might be. At the same time, other people may enter fuel poverty because of the rise in unemployment.
That makes if very difficult not only to meet the target set out in clause 2(1), but to identify the target that we are aiming at in the first place. It is like asking somebody to do archery blindfolded when the target is
moving from left to right every day of the week. How on earth is one supposed to hit the bull’s-eye in those circumstances?
Janet Anderson: My hon. Friend is, of course, much more expert in matters of the law than I am, but is he saying that one of the principal problems with the Bill is that it does not set out a way of identifying fuel-poor households, and that we therefore cannot achieve the target?
Mr. Dismore: I think that the Bill does identify fuel-poor households. I certainly do not quibble with the definition in clause 13(d), as I said earlier; it is a perfectly acceptable definition. The problem is that the numbers change daily, partly because of the Government’s initiatives, but also because of all the other factors. There are subjective factors affecting individual households over which the Government simply do not have control. Of course, the Government have some control over macro-economic policy, but not over whether an individual loses their job. They may have overall control over energy policy, but not over the day-to-day spot market prices that companies pay for gas. They cannot possibly have control over those things, so the target is moveable, which is why it becomes so difficult to have an absolute duty. If we were talking about a duty to achieve the target “so far as is reasonably practicable”—that is the duty that we currently have—or “so far as is practicable”, that would be a realistic way of approaching the matter.
Mr. John Horam (Orpington) (Con): Is not any duty on the Government restrained, inevitably, by the resources available? As the hon. Gentleman says, it is right that prices will change from time to time and therefore the extent to which any group of people can be taken out of fuel poverty will change from year to year. The Government cannot control that. None the less, the Treasury controls the amount of resources that can be put behind any particular objective. There is presumably a budget and a cap on that budget, and that will constrain what can be done.
Mr. Dismore: The hon. Gentleman is right as far as the law stands. That is exactly what the High Court said in the previous case and I would not object to that. It is a sensible approach to adopt. The Government have a duty to do that, balanced out against all the other obligations and duties that the Government have to meet. That is what the judge said. I cannot conceive that that point could be taken to entail that whatever the expense, so long as it was not disproportionate, the Government should be obliged to expend whatever it takes. I agree with the hon. Gentleman, but the trouble is that the hon. Member for Somerton and Frome does not. He says that it has to be an absolute duty. Fuel poverty is an overriding priority and so what the hon. Member for Orpington (Mr. Horam) says would not apply if the hon. Member for Somerton and Frome gets his way with the Bill as phrased. That is his bull point—from his point of view, it is the absolute priority of the Bill. That is what I have to take exception to, because I think that it is unrealistic. It is a Trotskyite transitional demand. It is superficially designed to please and to be attractive, but it is not a practical proposition for any Government to accept or, in my view, for any Parliament to pass. The fact remains that it is unrealistic and the hon. Member for Somerton and Frome must accept that.
We would all love to be able to say that the Government had a duty to ensure that we eliminate entirely illiteracy, waiting lists and people having to hang around in accident and emergency, but that cannot be done in those terms. We can have the aspiration to do so, which is why I agree with clause 1, or the duty to do it, as in the definition set out by Mr. Justice McCombe, which is the right way of setting priorities and the right relationship between the legislature, the Executive and the judiciary. Or we can have it the hon. Gentleman’s way, where he does not give a monkey’s about health or education so long as he gets his way on this point.
My bull point of concern—where I really fall out with the hon. Gentleman—is that issue. That is not the end of the Bill, of course. There are other practical problems. We have to achieve this by 2016 in absolute terms, but that might be unrealistic depending on how the world changes. The hon. Gentleman has already conceded that clause 2(3)(a) will have to go. When he drafted the Bill, he did not realise that only 30,000 properties in the whole country would meet that criteria and that the cost of that would be £50 billion plus. Even to do what he is talking about in clause 2(3)(b) at present prices will cost an extra £20 billion on top of the £20 billion we have already spent.
The hon. Gentleman is on to something with clause 3, which concerns the fuel poverty strategy. I do not disagree that it would be a good idea to set a fuel poverty strategy and for it to deal with all the points to which he refers. It would be helpful to have a strategy set out as a way of benchmarking Government performance. That is one way in which we can do that much more effectively. A benchmarking system whereby we have a strategy that links in to the fuel poverty annual report required by clause 4 would be very effective. I hope that it would mean that every year we would have a debate in Parliament on the strategy and on how far we had got in achieving it, and we could hold the Government to account in the legislature for their performance. That is the right way of holding the Government to account—not in the courts, but by asking the Minister to come to the House, stand at the Dispatch Box and say what they have done or have not done, as well as answering questions and facing challenges from hon. Members on both sides of the House. That is the correct democratic way of dealing with the issue.
The hon. Gentleman is absolutely right to require the fuel poverty strategy to be set out and I do not think that I would take issue with any of the points that he has set out that should be required in the strategy. I particularly agree that it would be useful to include provisions about microgeneration installations. I have no difficulty with that. I do, however, have difficulty with the hon. Gentleman’s references to the time scale for the fuel poverty strategy. I do not think that he has considered the correlation between clause 3(1), which sets out a time scale of six months, and clause 9, which deals with consultation. I agree that it is good practice for any Government to consult interested parties and organisations—in this instance, Friends of the Earth, Age Concern and the other organisations that the hon. Gentleman mentioned earlier—and to try to reach agreement with them about what should go into a strategy. However, the Government are always being criticised for having sham consultations, for not allowing
enough time for consultations and for not taking into account anything that anyone says. They are criticised for just going through the motions.
My concern is that the Bill would make it a duty to produce the strategy within six months, because clause 3(1) states:
“The Secretary of State must, not later than six months...publish a document”.
Bearing in mind the length of time it takes to write Government documents, proof-read them and print them, I am worried that clause 3(1) and clause 9 would be mutually exclusive, in that it would be very difficult to have a proper and effective consultation involving consideration of, and reaching agreement on, all the suggestions, as well as publishing the document, all in the space of six months. That is not realistic. I hope that that matter will be corrected in Committee, but I wanted to draw it to the hon. Gentleman’s attention now. I agree with the aims of both clauses, but there is a significant difficulty there.
Clause 3(5) states that the Secretary of State
“shall take such steps as are necessary to implement the Fuel Poverty Strategy.”
I shall not repeat my previous argument, but this provision is draconian and probably unachievable in its present form.
Clause 10 is welcome. It puts pressure on the suppliers to introduce energy assistance packages, and it is quite right that the energy companies should play their full role in helping to deal with the problem. I am worried, however, that the hon. Gentleman seems to want to let them off the hook, because clause 10(3) states that the lower tariffs should be available to customers only
“until such time as their homes have been made fuel poverty proof.”
Those people are probably on the lower tariff in the first place because they do not have very much money. I would like to see that final provision removed from the clause in Committee, because we ought to be aiming for lower tariffs to be more generally available throughout the fuel companies’ charging structures. This picks up on points that were made earlier.
Clause 12 relates to expenses, and states:
“There shall be paid out of money provided by Parliament...any expenditure incurred”
as a consequence of the legislation. As I said earlier, the hon. Gentleman has not put a price tag on this. Indeed, I am not sure that he has one. The best estimate from the Government is that it would cost £20 billion to meet the band C requirement set out in clause 2. This raises the question of whether we would need additional taxation to finance these provisions. I am not sure what £20 billion translates as income tax, but it could be 4p or 5p in the pound; or would we need to cut other things in order to pay for this?
Mr. Heath: Does the hon. Gentleman support the Government’s policy of eradicating fuel poverty by 2016? There is a bill attached to that policy.
Mr. Dismore:
Of course I do. I said at the beginning of the debate that I agree with the thrust of what the hon. Gentleman is trying to do. I also agree with a lot of his Bill. The only proposal of substance that I have taken issue with is clause 2. As far as the rest is concerned,
I have pretty well agreed with him. I have not commented on some of the other clauses because I am broadly happy with them.
However, we need to be careful that we scrutinise Bills properly. When the hon. Gentleman introduced the Bill this morning, he didn’t half skate over the details. He basically just read out the title of each clause. Our job in Parliament is to scrutinise Bills and to pass Bills that are practical and that will achieve things. Most private Members’ Bills, if they are to succeed, have to do some good, which this one tries to do. However, they also have to be modest in their objectives and not cost very much. His Bill is neither modest nor cheap, and he must reflect on that fact. If he gets it through, he will have achieved an extremely rare feat, given the way in which it is phrased.
I have made my point about the expenses and the costs, and the hon. Gentleman will no doubt respond to it when he closes the debate. I certainly do not intend to try to talk the Bill out. It is trying to achieve a worthwhile objective, and I would like to see it in Committee. However, I give notice to the hon. Gentleman that, if it comes back to the House with clause 2(1) remaining as it is at present, I shall table an amendment to make the phraseology more realistic, to reflect the true balance between Parliament, the judiciary and the Executive.
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