Joint Committee on the Draft Climate Change Bill Minutes of Evidence


Examination of Witnesses (Questions 20-31)

MR WILLIAM WILSON, MR CHRISTOPHER NORTON AND PROFESSOR CHRISTOPHER FORSYTH

16 MAY 2007

  Q20  Lord Crickhowell: Without writing it into the Bill, is there something we should do to at least cover the point more than the Bill perhaps does at the moment? Any suggestions would be welcome.

  Mr Norton: Perhaps through making sure emission trading schemes which the UK introduces are actually not dealt with through secondary legislation.

  Mr Wilson: I think there is something more which could be done in the Bill and I agree with what has been said and I think it is a very important point. Perhaps the Secretary of State's reports at various points in the Bill could reflect more closely what is going on at international and EU level. I think that would be a benefit to the information provided to Parliament and it would make it more real, because otherwise you can in a sense move the goalposts by making an order to change the targets because of something which has been agreed at an international or EU level.

  Q21  Dr Whitehead: So far we have dealt with circumstances under which perhaps the Secretary of State might fail in his or her legal duty, but there could be circumstances however under which the Secretary of State would wish to pursue his or her legal duty by doing particular things which might conflict with individual rights or duties otherwise and then claim legitimacy for those actions because of the provisions of the Climate Change Act as it would be. Do you see that as a potential conflict with, as it were, the provisions of the Act trumping other rights and duties, or do you think there are ways such possible conflict could be resolved?

  Professor Forsyth: It seems to me clear that the various trading schemes will affect the rights of other people; there will be fortunes made and lost when these schemes get up and running, but those changes will be authorised in effect by the legislation setting up the trading scheme. One of the things which struck me in reading this Bill is how few policy levers the Secretary of State will have other than the trading schemes to try and reach his target. Because there are so few expressed powers, there may be an attempt to find implied powers but they are pretty well hidden. He has the duty to ensure compliance with the target, but he is not given any powers other than the trading schemes with which to achieve that, so he would have to find that under other legislation or ask Parliament for more powers if he wished to change the mix of power generation or whatever it may be. But I do not see a real danger of implied powers being found in this Bill and the minister being able to justify oppressive action on the basis he has to comply with his target.

  Q22  Lord Jay of Ewelme: I wanted to broaden out the question which Lord Crickhowell asked just now, which was relating in particular to European legislation and to the European trading schemes. As Mr Norton said earlier, at the moment our only international obligation is really the Kyoto Protocol but I think it is reasonable to presume there will be further international obligations over the next ten or 15 years or so. Is it your view that the Bill as drafted provides enough flexibility as it were to be reasonably confident that the British policies will be consistent with and coherent with the international obligations we might enter into? I know that is a rather futuristic question but I would be grateful to know if you think the basic structure is satisfactory from that point of view?

  Mr Norton: I think you are asking really whether it is consistent with international law and policy on climate change.

  Q23  Lord Jay of Ewelme: As it may evolve.

  Mr Norton: You could ask whether we are undermining our negotiating position on post-2012 Kyoto by coming out with a legally binding target of the type we are, because other countries will pick up on that presumably and require us to stick to that in the way I mentioned earlier and under international treaties. In many ways I think the Bill is consistent with international policy on climate change but there are various little things which are inconsistent, for example the dates. Reporting and budgeting dates are consistent with Kyoto but actually the target dates are not, they fall in the middle of a Kyoto target if Kyoto periods run on as they are expected to. So I think there are issues like that. The other point is that we would be the only country to have set legally binding targets. The European Union is talking about binding targets in terms of renewable energy but not in terms of its initial reductions, so I think it is inconsistent in that sense. The question is whether the UK taking this approach will actually push other international bodies, whether Kyoto or the European Union, to go along the same line.

  Q24  Lord Teverson: I would like to follow up on the European side. In terms of compatibility, is there a situation at all where the Secretary of State puts in other additional carbon restrictions on sectors of British industry where industry in Britain may feel hard done by or maybe would look upon it as a distortion of the single market? Is there any potential issue of calling foul of the European level in that way? The other thing which I particularly would like to follow up is the question of David Kidney about secondary legislation. When I first read through the Bill I was quite staggered by the powers it seemed to give to the Secretary of State to go off and do pretty well whatever he or she wanted, and I wondered whether there was similar legislation where similar powers had been given to Secretaries of State in other areas, or is this exceptional in terms of the amount of power it gives to the executive to increase legislation?

  Mr Wilson: If I could try the last point. It is the case that there is a proliferation of enabling powers in the legislation and the Pollution, Prevent and Control Act, which enacts the IPPC Directive, is one large enabling power really. I think that can probably be effectively addressed by reporting and consultation as well as or instead of these affirmative resolution procedures, because there is then an opportunity to make sensible comments and amendments and that is the way I would suggest addressing that issue. I am sorry, I have not addressed the first point.

  Mr Norton: I might come back in on the state aid issue you mentioned. Currently under the EU scheme one of the big issues that the European Commission looked at under the national allocation plans is state aid and competition law issues, and if the UK is imposing additional burdens on particular sectors of industry or in fact is giving them benefits which industry in other European countries or other countries do not have, clearly there will be arguments in and around state aid. So, yes, there is potential for that type of issue to arise.

  Q25  Lord Teverson: I was particularly interested in Mr Wilson's memorandum and the Oregon example of legislators or state legislators having to go out and get on their soap boxes around the state to proclaim the legislation, and I wondered whether he felt this should be a duty put on the Secretary of State for this legislation?

  Mr Wilson: Not just the Secretary of State but also the officials. I do not think it would have done me too much harm to have to go and explain the legislation I was working on to people around the country, I think it would be very good for me. I was never asked to do it because that is not how we work but I think it should be. I admire the way they do it in Oregon, I think it is very healthy.

  Mr Norton: My experience of working on the EU emissions trading scheme and the way that has been put into the UK, the UK has been far more advanced than many other European nations in having a dialogue with other stakeholders, and I think that is one of the good things about the way the legislation has been done in the UK. I hope this Bill involves a similar sort of level of stakeholder discussion, I am sure it will do.

  Q26  Lord Woolmer of Leeds: Coming back to the European emissions trading scheme, if the UK sets itself targets which are more demanding than the EU trading scheme for those sectors which are in it, would I be right in saying that the UK Government cannot prevent those emitters from buying credits from other sources within the EU?

  Mr Norton: That is absolutely right. That is the basic principle of an emissions trading scheme, that you either abate your emissions or you go out and buy allowances, so there would be that option but it depends on what the carbon price is and what the impact is on those industries, but that would be available to them.

  Q27  Lord Woolmer of Leeds: So if we set a distinctly more demanding level or restriction than other EU states, emitters in this country could buy credits on the European carbon trading market?

  Mr Norton: Yes, and they could also buy credits from the project mechanisms under Kyoto—the CDM and the JI—although there is a quantitative cap on the number of credits you can bring in from this.

  Q28  Lord Woolmer of Leeds: But there is not within the European Trading Scheme?

  Mr Norton: Yes, there is. The European Commission requires quantitative caps on the number of project credits you can use for compliance purposes. It is this concept of supplementarity. No one quite knows what supplementarity means but the European Commissioners have set a benchmark of around eight or 12 per cent cap on the number of project credits you can bring in and use.

  Q29  Lord Woolmer of Leeds: From elsewhere in the European Union?

  Mr Norton: No, from elsewhere in the world, so you have got the CDM projects in the developing world and JI in developed countries.

  Q30  Mark Lazarowicz: Going back, brief mention was made of the role of action plans in bringing about the enforceability of the legislation. Is it envisaged, however, that any such requirement to be involved in action plans would create a duty upon the Secretary of State simply to prepare an action plan or is it envisaged that it would actually create any further obligations on the Secretary of State to actually implement the action plan?

  Professor Forsyth: I am thinking of the procedure off-the-cuff, but I would imagine the Secretary of State could propose an action plan and he would propose it perhaps to a more independent committee, and it would then be agreed between the committee and the Secretary of State, and the Secretary of State would then have to do it, and if he did not do it the courts would enforce it.

  Mr Norton: But also presumably in the Bill you can have set out what type of mitigation the Secretary of State would be required to look at, whether it is actually going and buying the credits on the international market, whether it is setting aside a credit bank, something along those lines, so those types of techniques could be built into the Bill and I think that presumably will assist with enforcement against non-compliance or non meeting of the target.

  Chairman: A last question from Lord Whitty.

  Q31  Lord Whitty: We have talked a lot about the responsibilities of the Secretary of State here, the Bill focuses very much on that, and we have also talked a bit about the interface with the European situation, but there is also the interface the other way in that the devolution settlement on environmental issues is actually very complex and differential. Do you see that the legal duties of the devolved administrations could be better combined with those of the Secretary of State than the Bill provides at present or do you think that the Bill by focusing on the Secretary of State has is got it about right?

  Professor Forsyth: Shall I tell you what my view is and then give others a chance. I do not really know how it would work if you started trying to enter into a devolution settlement in regard to these matters. It strikes me that it is complicated enough as it is and it is probably best and most efficient if you have a single UK-wide scheme run by a single UK Secretary of State. It may be politically impossible to go down that road but that is probably the most effective way.

  Mr Wilson: I think that there is not a particular problem about, for example, extending to the devolved administrations joint responsibility for appointing the Committee on Climate Change and having the Committee on Climate Change report to them as well as to the UK Parliament; that has been done before. The powers on energy and environment have already been devolved variously to the Scottish Parliament and the Welsh Assembly and so on, and so it would be very much within their responsibility and their call as to how they were going to co-operate with it. No doubt in scientific terms it would make a lot of sense to co-ordinate activity as closely as possible.

  Mr Norton: I do not think I can add anything useful; I would agree with everything that has been said.

  Chairman: Thank you to the three of you. Professor Forsyth, you very kindly have written full responses to all of the questions. If either of the two of you have anything more you would like to add, please do. We may also be writing to you with some additional questions, if you do not mind, that have emerged from this particular session. Thank you very much indeed.





 
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