Their Lordships divided: Contents, 47; Not-Contents, 194.
Resolved in the negative, and amendment disagreed to accordingly.
On Question, Motion agreed to.
Read a third time.
Clause 2 [The target for 2050]:
Lord Crickhowell moved Amendment No. 1:
Clause 2, page 2, line 3, leave out from “to” to end of line 4 and insert “prepare such proposals and policies (including the setting of five year budgets) as the Secretary of State reasonably considers will—
The noble Lord said: My Lords, Amendments Nos. 2 and 3 are grouped with this amendment. All three amendments have the same objective. When I read the draft Bill for the first time last summer—it seems almost a lifetime ago—my immediate reaction was that Clause 1 as it then was imposed a meaningless duty that was almost certainly unenforceable and that if we had any respect for the legislative process something better had to be put in its place. It seemed to me self-evidently absurd that any Secretary of State could be held responsible for the delivery of a target 20, 30 or 40 years into the future, particularly when its successful delivery would depend not just on the actions of government but also on the reactions of a host of individuals and organisations, not to speak of events beyond the control of government.
The view that the clause would be unenforceable in the courts was widely held by those far better qualified than I am, and the joint pre-legislative scrutiny committee, of which I was a member, shared my scepticism. As the noble Lord, Lord Puttnam, its chairman, told the House on Report, the committee probably spent more time discussing this issue than any other. He was charitable about my responsibility for that fact.
During that same debate at Report, the noble and learned Lord, Lord Lloyd of Berwick, gave to the argument an authority that I cannot match when he observed that,
I pursued the issue in the debate on the Queen’s Speech, at Second Reading and in Committee, when I tabled an amendment that was admirably argued by my noble friend Lord Caithness during my absence
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In Committee, he added to a similar comment about institutional behaviour the words:
Later in the proceedings, the noble Lord told the Committee that the clause was drafted so as to send a signal to the Civil Service. It has always seemed to me wildly improbable that civil servants, if they even remember the wording of Clause 1, would say to themselves, “Gosh, I may be held responsible in 30 or 40 years’ time if the target is not delivered”. It is surely much more likely that they will say, “There is not a cat’s chance in hell that I or my Minister, if we are still alive, will be blamed”. In any case, the courts are never going to get involved in making judgments about those extremely complex issues, which may well be totally outside the control of any particular Secretary of State.
On that occasion in Committee, the amendment was not pressed and we decided to have another go at Report. I seem to be fated. Once again, I was out of the country on day one of the debate and, once again, my noble friend Lord Caithness powerfully moved an amendment in which we attempted to overcome all the objections that Ministers had raised on the previous occasion. If we had succeeded, the original Clause 1 would have been replaced with the following clause:
“It is the duty of the Secretary of State to promote policies and to take measures, including the setting of targets and five year budgets, best calculated to ensure that the net UK carbon account for the year 2050 is at least 60 per cent lower than the 1990 baseline”.
The words “promote policies” were taken from the National Health Service Act 1946 and “best calculated to” from the Coal Industry Nationalisation Act 1946, precedents that I thought might appeal even to Ministers in a new Labour Government.
Among those who supported the amendment were the noble Lord, Lord Turnbull—I am very glad to see him in his place—who said that he found the logic of the amendment compelling, the noble and learned Lord, Lord Lloyd of Berwick, for the reasons that I have already cited, and the noble Lord, Lord Puttnam, who chaired the Joint Committee with such distinction.
Rather unexpectedly, the amendment was grouped with government Amendment No. 50, which introduced into the Bill for the first time what is now Clause 13. Although the noble Lord, Lord Rooker, stood alone among those who spoke in defending Clause 1—the score was one against nine—my noble friend Lord Caithness felt that we should carefully consider the effect of new Clause 13, which moves things a little further in the right direction, and come back at the
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I am extremely grateful for the help that I have received since the conclusion of Report from the noble Lord, Lord Turnbull—the former Cabinet Secretary and head of the Home Civil Service—the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Puttnam, in arriving at an elegant solution that would strengthen the Bill and bring together in one place and very early on the most crucial duties of the Secretary of State. We have combined the provisions of Clause 13 on the preparation of proposals and policies to enable carbon budgets to be met with the requirement of Clause 2 to ensure that the 2050 target is met. If my amendments were accepted, the crucial part of Clause 2 would read that it is the duty of the Secretary of State to,
The clause would then continue with existing subsection (2), which defines the 1990 baseline, and with the remaining components of Clause 13, which cover sustainable development and the role of our national authorities.
One noble Lord has told me that he has a doubt about the amendment, as the clause would still provide that the account for 2050 was at least 60 per cent lower than the 1990 baseline. He would like it to be higher. If, however, I had been minded to attempt to merge yet another amendment into the clause, I am certain that I would be out of order at Third Reading because it would reopen an issue that had already been voted on and decided at an earlier stage.
The word “reasonably” has been included in the amendment at the suggestion of the noble and learned Lord, Lord Lloyd of Berwick, who like me had initially been tempted to stick to the words “best calculated”, which were used in my amendment on Report. We judged it wiser to stick to the basic formula that the Government had used and therefore approved in Clause 13.
The noble Lord, Lord Turnbull, pressed the case for the amendment in a very helpful letter that he sent to the Minister and copied to those who took part in the debate on Report, in which he argued that,
In other words, as he argued on Report, instead of trying to pin everything on the nation reaching its target in 2050, the amendment would create a duty to deliver everything that makes the objective possible.
While a civil servant or a Minister is never likely to be held responsible for the non-achievement of the
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Perhaps even more important is the requirement to prepare policies that reasonably can be judged to achieve the interim targets and budgets. During our debates, there has been widespread agreement that the 2050 target will be achieved only if prompt and effective action is taken to achieve the 2020 target and the interim budgets along the way. My amendments would not only ensure that civil servants and Ministers had to prepare policies likely to achieve what we all want—the 2050 target—but guarantee continuous, political pressure if the five-year targets were missed or looked like being missed.
The existing clause is little more than a spoof. The Government are pretending to the world that we are the first country to impose a statutory, legally enforceable duty to achieve such a major environmental target, but it will not take long for the rest of the world to realise that the Bill does nothing of the kind. Thanks to the combined efforts of noble Lords sitting in different parts of this House, the Government have been given the opportunity to give much greater strength and clarity to the Bill. I hope that the Minister will accept that opportunity. If he does not, I shall seek the support of the House to achieve this important improvement. I beg to move.
The Earl of Caithness: My Lords, I support my noble friend, having put my name to a variation of this amendment for the third time. As my noble friend has said, we worked on this at Second Reading, in Committee and on Report. Although, I feel that we could have won a Division had I tested the opinion of the House on Report, it would have been wrong to do so in view of government Amendment No. 50, which I needed to consider. The Government’s only argument, which the noble Lord, Lord Rooker, has used on every occasion, is that this amendment would weaken the Bill. I dispute that. This amendment strengthens the Bill. It makes it a realistic proposition rather than a fanciful idea, which the original Clause 1 did by imposing a duty on the Secretary of State that could not be upheld in the courts.
As has been said, we discussed this in the Joint Committee at great length. Without doubt, this is one of the key amendments now left to be agreed by the House in order to put this Bill into the right shape to send to another place. If we do not alter it in this way, there is little chance that the other place will have even
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Lord Turnbull: My Lords, when an amendment to Clause 1 was debated on Report, the Minister was rather dismissive of it. He argued that it would weaken the Bill. We now have a new amendment, tabled by the noble Lord, Lord Crickhowell, and the noble Earl, Lord Caithness. I shall make another attempt to persuade the Minister of its merits. First, the amendment has the merit of elegance and clarity in its drafting. In relation to the targets, it brings together in one place at the beginning of the Bill the things that the Secretary of State has a duty to do from the original Clause 1 and the things that the Secretary of State must do under new Clauses 13 and 14. That will make the Bill’s purpose much clearer and the way it operates more logical.
Secondly, the Minister argued on Report that the amendment would weaken the Bill. It could be said that the Government draft is stronger because it relates the duty directly to the final objective set for 2050, but in my view this is illusory. The link with the 2050 target is an indirect one, depending not only on what the Secretary of State does, but also on how society responds. As a result many legal experts, some of them in this House, have cast doubt on whether the Secretary of State could successfully be challenged in law. The amendment is superior, in the view of many, because it relates the duty to those things a Secretary of State actually does—developing policies and implementing them—and not to something that a Secretary of State does not actually do, which is emit CO2. The test then becomes one of whether the actions or omissions of the Secretary of State are reasonable in relation to the objective. That looks to me like a proposition that a court could handle.
The Minister also argued that one of the purposes of the Bill is to require departments and their civil servants to look continuously at whether their actions could be challenged in law, thereby evoking the famous JOYS booklet, The Judge Over Your Shoulder, first published in 1987 and now in its fourth edition. Again, this would be more effective if it related to what civil servants actually do in terms of giving policy advice, enforcing regulations and so forth, as the noble Lord, Lord Crickhowell, explained. The purpose must be connected to the objectives of the department and those of individual civil servants.
Thirdly, the new Clause 2 brings greater and more continuous pressure of enforcement. At present there are to be two channels, the first of which is political accountability. If any of the targets for the five-year carbon accounts are missed or look like being missed, the Government must report to Parliament on why and what they are going to do about them. The second channel is the threat of legal challenge for failure to meet the duty to deliver the objective for 2050. But this really begins to bite only when 2050 comes into sight and it becomes undeniable that the target will be missed. The advantage of the amendment is that the duty will apply to the quinquennial targets as well as to that for 2050, so bringing the political and legal enforcement processes into line.
The defect in the Bill which this amendment addresses has not just come to light. It was identified last year by the Joint Committee on which many of your Lordships served, and while the introduction by the Government of what are now Clauses 13 and 14 go some way to rectifying the fault, in my view they do not go far enough. Therefore I hope very much that the Government will complete the process by agreeing to adopt this amendment and refining it if necessary during the Bill’s passage through the Commons.
Lord Teverson: My Lords, I congratulate the noble Lord, Lord Crickhowell, on his tenacity in pursuing this important issue. Certainly one of the big messages from the Government has been that this Bill leads globally in the fight against climate change because there are statutory targets, yet there are two fundamental problems with the claim, one of which this amendment would begin to put right. The statutory targets do not apply strongly enough to the five-year budgets that frame the short-term areas of action and count rather more than the target for 2050. We also have a statutory obligation on Ministers which concerns the 2050 target, but in the Bill is set at 60 per cent. We are therefore in the strange position of having the Prime Minister expecting the climate change committee to come back with a reduction of around 80 per cent, but the target set out in primary legislation remaining at 60 per cent. The legal obligation in 2050 remains at 60 per cent rather than 80 per cent. The amendment goes a long way towards solving the interim issue.
We on these Benches have a particular problem because we believe that it is absolutely wrong for the incorrect target to be on the face of the Bill that passes from this House. This matter was voted on and the opinion of these Benches was rejected. I do not agree with that but I accept the will of the House. We will fight for our target in the other place when the Bill goes there.
Again I congratulate the noble Lord on this approach. The amendment would strengthen the Bill considerably. As the House has already expressed its will on the 60/80 argument, we on these Benches support this strengthening of government accountability.