Examination of Witnesses (Questions 20-31)|
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
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
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
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 Kyotothe
CDM and the JIalthough 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
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