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( ) In the event of the net UK carbon account for a budgetary period exceeding the carbon budget the Prime Minister must, within three months, prepare a compliance action plan so that the shortfall is made up in the following commitment period, or identify other compensating actions to remedy the failure, after consultation with the Committee on Climate Change.
The noble Lord said: Amendment No. 26 stands in my name and those of my noble friend Lord Caithness and the noble Lord, Lord Teverson. When I was in Moscow last week and my noble friend moved my amendment to Clause 1, the noble Lord, Lord Woolmer, said that taking a series of amendments in isolation from the others can create problems. I am afraid that here we cannot take the clauses and amendments in isolation. I am going to have to refer back to my original amendment which was proposed by my noble friend Lord Caithness. I do not intend to weary the Committee by going into it in too much detail because I am pretty confident that we are going to have to do that again at Report. None the less, some very interesting things were said. On reading the debate, I was puzzled by something that the noble Lord, Lord Rooker, said but I think I am now clear that it was either a misreporting in the Official Report or one of those slips of the tongue that we are all guilty of when we are speaking off the cuff. He said of the amendment which was then being debated:
It seems to have been thought that the intention of the amendment was to address the perceived lack of enforceability of this requirement or duty to meet the targets and budgets in the Bill. It was not drafted for that purpose.[Official Report, 11/12/07; col. 163.]
As I drafted the amendment I was not at all sure that the Minister was the man to tell me what its purpose was. It was exactly the purpose but then I realised that the word it should have either been the Bill or Clause 1. It is clear from what he said subsequently that the noble Lord, Lord Rooker, was referring, as he had at Second Reading and as he did several times during his response to the debate, to the fact that Clause 1 was not a provision that was to be treated like going through a red light or over the speed limit and getting a fine. That is not the kind of penalty that is implied; the penalty is parliamentary opinion, the court of public opinion and the opinion of business. He made it clear that one of the prime objects of the drafting of Clause 1 had been to change the whole approach of civil servants, Ministers and the Government because they believed they were dealing with a legally enforceable clause.
The noble Lord, Lord Rooker, as he so often does because he does not always stick to the brief even when it is not 22 pages long, speaks with a degree of freshness and frankness that we all appreciate. He gave some very good reasons why it was not going to be enforceable in the way of being taken to judicial review and he gave a very clear description of the fact that this was going to be a question of a range of policies across government. It is exactly that kind of situation that the courts are not going to intervene in. They are not there to decide that policy is wrong, let alone that a great interacting set of policies has been wrong. They usually intervene only if they feel that the decision has been taken entirely in the wrong way or that there is a clear breach of a straightforward law. That is why unfortunate Home Secretaries in all Governments seem to fall foul, because they can be pinned down on a single provision concerning, say, immigration legislation or something of that kind. The Governments intention is to change the whole approach of Government and make them think that
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I was extremely careful about the way that I drafted that first amendment to link it to Clause 4 which sets out the arrangement for setting targets and budgets over five-year periods. My reason for wanting to link it clearly to Clause 4 is that we are entering a rather different area. While it is almost inconceivable that a duty to see that something happens in 30 or 40 years hence can be enforced, with five-year budgets you are talking about much more limited periods and you get the results quite quickly. I could even envisage circumstances arising from Clause 4 where the courts might be prepared to intervene. The Front-Bench spokesman for the Liberal DemocratsI cannot remember who it wasearlier referred to aircraft policy and airport policy. I can just conceive of a budget and target having been prepared. The Department for Transport, which does not always seem to be quite as interested in these issues as Defra, might come along with a new policy for building runways that might conceivably be held to be in breach of the statutory duty. But I would rest on that, which is why I have moved this amendment.
The Joint Committee, having expressed its doubts, took up the extremely valuable contribution of the noble Baroness, Lady Young of Old Scone, who, coming to the same conclusion that we needed some system of enforcement, came forward with a series of proposals and recommendations. The committee reached a conclusion on page 41 of its report that it had,
In other words, since it is clear that they have failed to achieve their target, the Government have to come forward immediately with a detailed plan which they will put to Parliament as to how they are going to put it right in the immediate period that follows.
That is just one of the possibilities but one can think of others. The noble Baroness and her colleague Mr Clive Bates gave evidence to us on this subject on days 50 and 51 and elaborated on other perhaps even tougher possibilities, such as forcing the Government if they fail to meet their targets to purchase emission allowances on the international carbon market, investing in a domestic carbon reduction fund at an agreed price per tonne of carbon, and a number of other possibilities.
I have not elaborated on the other possibilities in my amendment. At this stage, I think it is quite enough simply to pick up the recommendation of the
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Therefore, I say that there is a compelling need for a compliance mechanism in the Bill. I do not say that the single solution that I have offered in the amendment is the final answer, although I go on to refer to other possibilities. When the noble Baroness, Lady Young, and her colleague came before the Joint Committee, I asked them to work up some more detailed ideas and to come forward with other specific recommendations on the way in which we might proceed down this road. I hope that in due course, if not today, we shall hear about some of those proposals. However, I urge the Government to accept the Joint Committees strong recommendation for a compliance mechanism. I beg to move.
The Earl of Caithness: I support my noble friend on this amendment. I was saddened by the Governments response to the Joint Committees recommendations on this matter. The most that the Government managed to come forward with was the statement that they were proposing to amend the Bill to require the Government to explain in Parliament why they had failed to meet the carbon budget. However, that is not good enough. When one has a budget of this nature, it is unacceptable to say, These are the reasons why we have not achieved it, and then to sit down and do nothing about it. The whole point of the amendment and the Joint Committees recommendation was that something had to be done about it. The Government argued in their response that, if there were a compliance mechanism, it would be likely to weaken the statutory result from a judicial review. I do not think that that is right. I do not think that a judicial review will be very likely to happen under this Bill, for all the reasons given by my noble friend Lord Crickhowell. However, a compliance mechanism is necessary, just as it is with the Kyoto agreement, and it should be very simple. In it, the Government should set out exactly how they are going to remedy the situation in which they find themselves.
Lord Campbell-Savours: I want to intervene briefly. As I said before, I was not fortunate enough to be a member of the Joint Committee which produced this extraordinarily good report, but I have followed the debates fairly closely.
I, too, believe that there is a need for a compliance mechanism. What interests me is that the amendment talks about the budgetary period, and that period is not one year but five years. That being the case, if action were not taken at the end of the budgetary period, that would almost be negligent. One would have thought that there was an absolute responsibility to ensure that at least at the end of every budgetary
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Lord Teverson: I put my name to the amendment because I also felt that there needed to be a positive outcome if budgets failed to be met, and this seemed to offer a very practical and focused way forward. As I think I have said before, it is very nice to think of the Secretary of State of the day being dragged away to the Tower of London because the targets have not been met, but that will not happen. Judicial review might happen but that process would not contribute greatly to what we want to achieve here, which is to ensure that we meet our longer-term targets. The amendment or something like it would do that very well; hence, I am very happy to support it.
Baroness Young of Old Scone: I, too, support the principle of a compliance mechanism. I am very grateful to the noble Lord, Lord Crickhowell, for speaking so glowingly about some of the ideas that were put forward when we gave evidence to the Joint Committee. However, the nature of a compliance mechanism is not necessarily captured by this amendment, as we need something that will drive change.
We are a bit adrift from our trajectory for meeting current targets, and no amount of words of commitment to meeting targets will address that. Practical measures are needed, and that probably means new policy and perhaps new investment. That is why I thought that the proposition put forward in the evidence sessions to the Joint Committee that I helped to present was quite neat and cunning. I shall not go into it in great detail, save to say that under the proposed compliance mechanism, if the targets at the end of the five-year period were not met, the Government would have to buy enough international credits and make sufficient contributions to a domestic fund to meet the gap. In that way, we would be clear that new funding was going into the system to help to drive reductions. The most important thing there would be that a UK-based fund would be used to help to implement carbon reduction technologies within the UK faster than would otherwise have happened. Clearly, there would be a need to be fast because the target had not been met. The intention behind our proposition was to say, Lets find a way that asks the Government not just to report on what else is going to happen but to put their money where their mouth is and drive change for the future.
I am sure that there are ways in which that could be worked up and elaborated on by those who are better at these things than I am. However, it seems to me that judicial review will clearly not be enough, and if one asks what the sanction is for non-compliance and judicial review is offered, that will clearly not do the
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The Duke of Montrose: I add my support for my noble friends amendment. The Minister said that the Government are committed to decarbonising the UK economy but one needs to think back a little to the words of the noble Lord, Lord Campbell-Savours, and the fact that there is no sanction for this whole issue. In 30 years time when our children or, dare one say it, grandchildren are looking at this problem, if it is suddenly decided that the whole thing is a lot of rubbish and there is no sanction, they could just sit back and not implement any of it. That would be a very different day from today when all those who have spoken are convinced that something needs to be done.
These amendments place a duty on the Prime Minister and the reporting mechanisms to recommend ways of remedying shortfalls in carbon budgets. Our position is that the Bill does not have provisions for making plans on how to overcome the problems that might arise if the budgets are not met. We cannot be blinded by optimism, which is why we feel that the Bill needs to stipulate that a plan will be put together to remedy any shortcomings in the carbon account.
I speak to Amendments Nos. 87 and 93. The risk is that we will get behind. It stands to reason that, should the report find that the Government have done rather poorly in their attempts to reduce carbon emissions, a new strategy might be in order to take into account previous failures in efforts to get back on track. That would increase the transparency and open the Governments action up to deeper parliamentary and public scrutiny. Any plan to remedy the shortfalls would involve an assessment of the reasons why the Government had not met the target. This fits into our more general theme of beefing up the committee and making the Bill more robust. A roll call of how we had missed targets would be inadequate to face the challenge of climate change appropriately. A duty to have a plan to remedy any shortfalls presented when the report is given would go some way to strengthening the Bill.
Lord Davies of Oldham: I am grateful to all noble Lords who have spoken in this debate. I suffer from the same disadvantage as the noble Lord, Lord Crickhowell, as I missed the previous day in Committee because I was otherwise entertained on the Dormant Bank and Building Society Accounts Bill. I recognise that these issues were discussed earlier in Committee and I have no doubt that we shall return to them again because the Committee shares a determination to have an effective Bill that brings about the points that the noble Baroness, Lady Young, emphasised. The Government share her reservations about what is being proposed in this amendment and will take on board what she said as a potentially fruitful line of inquiry.
In the previous Committee sitting my noble friend Lord Rooker agreed to look at whether another form of words could describe what we want to do here without weakening the Bill. The problem with the amendment moved by the noble Lord, Lord Crickhowell, and supported by other noble Lords is that the Government could be challengeable in law if it were thought that they were neglectful of their obligations, and there would be a risk of judicial review. Although other Members of the Committee indicated that that ought not to worry the Government unduly, it will worry them because the remedy would be at the discretion of the court. It may be that the court would do what it often does in these circumstances and would issue a declaration to force the Government to reconsider their action. However, we cannot rule out the possibility of the court making a more stringent order, such as ordering the Government to purchase credits to remedy the position. Although such sanction would certainly meet the objective of the noble Lord, Members of the Committee will recognise why the Government cannot take this proposal lightly. We are facing real issues in compliance although we entirely subscribe to the general wish articulated on all sides of the Committee.
As has been recognised on all sides of the Committee, we have strengthened the Bills provisions to ensure maximum transparency about whether a budget or target has been met. For instance, Clause 14(3) requires that if a budget has not been met the Secretary of State must explain to Parliament why that was the case. In addition, Clause 28(2) requires the Committee on Climate Change to set out in its report to Parliament its views on the ways in which the budget for a period was or was not met. The Bill therefore ensures that there is ample opportunity for scrutiny and debate if a budget is not met.
Baroness Byford: I have followed the debate very carefully and I was not intending to speak. However, unless I misunderstood him, the Minister has indicated in his response that the Government are not prepared to put stronger compliance mechanisms into the Bill because of the threat of judicial review. Are the Government no longer taking responsibility for driving the Bill forward as the noble Lord, Lord Rooker, indicated earlier that they wished to do?
Lord Davies of Oldham: My noble friend indicated that he wants to see the Bill and the policy driven forward. We accept the representations of the committee on that point. If it is suggested that the Government would not take sufficient action, the Bill provides that shortly after setting a budget the Government will have to publish a programme setting out how it will be met. We have already made it clear that it will be laid before Parliament. The Government will be under an obligation to make regular annual reports on progress to Parliament and to the independent Committee on Climate Change. It will be abundantly clear to everyone interested in these issuesand it is difficult to think of a person in the land who would not be interested in themwhether the net UK carbon account is being reduced. The Government will be in the court of the nation. An independent committee will identify any deficiencies and Parliament will express its views on
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The noble Lord, Lord Crickhowell, was his usual modest self when presenting the amendment as one possible solution to what we all recognise is the difficult area of guaranteeing what has to be the result of effective action in many quarters. We are saying that we do not accept using the law and judicial review as mechanisms to solve the problem. As my noble friend said when these issues were previously discussed, we have taken on board the representations, which have been made again today, that we need to look at the provisions in the Bill for compliance.
Lord Campbell-Savours: I cannot understand why the Government are resisting this. Under the Bill the committee has only an advisory responsibility, and the Government can ignore the committees advice if they wish. If at the end of a five-year period there was a conflict between the committee and the Government about the action required, we might find that there was a shortfall irrespective of whatever recommendation the committee has made during that period. What mechanism would then exist to ensure that we went into the next period with a policy to deal with deficits from the previous period?
Lord Davies of Oldham: My noble friend may be underestimating the significance and power of the committee. While it is an advisory body, it will be the custodian of the nation in terms of the effectiveness of government policies and others in achieving the reduction in carbon count and therefore will have an immensely powerful role to play. Therefore, a Government who are effectively being arraigned before Parliament by the committee for having failed to run an economy that met the identified targets would be subject to severe sanctions. We are prepared to look at extending sanctions in addition to the powerful provisions that are already in the Bill. However, the Government cannot accept the strategy outlined in the noble Lords amendment for the reasons that I have identified.
Lord Crickhowell: I find that a curious and contradictory response. The noble Lord tempts me to go back to the debate that was held in my absence last week on the question of whether there is likely to be a judicial review. I shall resist that temptation in the knowledge that I will have the opportunity to address the issue at Report stage, and I certainly intend to take it then.
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