APPENDIX 5: CLIMATE CHANGE BILL [HL] —
GOVERNMENT RESPONSE
Letter to the Chairman from Lord Rooker, Minister
of State, Department for Environment, Food and Rural Affairs
1. I am writing to follow up recommendations
on the Climate Change Bill made by the House of Lords Delegated
Powers Committee in their Second Report of Session 2007-08. The
Committee's report has been very helpful in drawing my attention
to a number of points of detail in the Bill; this letter sets
out the amendments that I am bringing forward in response. It
also provides an explanation for the minority of issues where
I believe the Bill works best in its existing form.
2. The Committee recommended that Clause 16 be
amended to make clear that a budget may not be altered after the
end of a budgetary period - I agree that this would be helpful,
and propose to make that amendment.
3. In line with the Committee's recommendation,
I propose to amend the order-making power at clause 25(2) (definition
of aviation and shipping) so that it is subject to the affirmative
resolution procedure. I also propose to require affirmative resolution
where regulations on trading schemes only create a civil offence
or increase the level of a civil penalty, again, as recommended
by the Committee.
4. The Committee's report also recommended that
the first use of the appeals provision under paragraph 31 of Schedule
2 be subject to the affirmative resolution procedure. I propose
to make this amendment, which ensures a consistent approach to
the appeals provisions.
5. In addition, the report recommended strengthening
parliamentary procedures with respect to waste reduction schemes
under the Bill. I accept all of these recommendations, and propose
to make the following amendments.
6. I propose to amend the Bill so that the Secretary
of State's power to make regulations under paragraph 12 of Schedule
2AA should be subject to the affirmative resolution procedure
where such regulations modify an Act. I propose that the Secretary
of State's power in Schedule 2AA paragraph 6(1) to limit by order
the maximum level of charge in any financial year should be subject
to affirmative resolution on its first exercise and thereafter
subject to affirmative resolution if it is exercised to increase
the limit by more than is necessary to reflect changes in the
value of money since that limit was set. I also propose that when
the Secretary of State exercises the clause 63(2) power to amend
Schedule 2AA in order to confer powers on himself to make subordinate
legislation, he should provide that any such subordinate legislation
which he should make will be subject to either the affirmative
or the negative resolution procedure, as he thinks fit.
7. There are two areas in which I have not been
able to accept the Committee's recommendations. The Committee
was concerned that the powers in the Bill on penalties in relation
to trading schemes lack much of the detail that is provided in
the Regulatory Enforcement and Sanctions Bill. I consider that
the approach taken in the Climate Change Bill is justified. The
model in the Regulatory Enforcement and Sanctions Bill cannot
be replicated, as the purpose of that Bill is to convert existing
criminal offences into ones which can give rise to a civil sanction.
By contrast, the power in the Climate Change Bill is a power to
create new civil penalties from scratch.
8. In addition, the powers in the Regulatory
Enforcement and Sanctions Bill are much broader in that they could
conceivably be used in relation to most subject matters. The provisions
in the Climate Change Bill apply in a much narrower context -
they relate to trading schemes only and not any other regulatory
regime. It is generally accepted that civil sanctions are appropriate
for trading schemes, which means that further detail to ensure
that civil penalties are not being used in areas where criminal
sanctions would be more appropriate is not so necessary here.
9. The Committee further recommended that the
regulations which set up a trading scheme, extend the class of
participants or activities to which a trading scheme applies,
or make the overall requirements of a trading scheme significantly
more onerous, should be subject to the super-affirmative procedure.
I support the spirit of these proposals - to ensure that all new
trading schemes are subject to proper scrutiny. However, there
are two main practical reasons why I do not propose to accept
the specific recommendations.
10. Firstly, the time and resources involved
in the super-affirmative process removes a key aim of the powers,
which is to make policy-making more responsive by allowing trading
schemes to be introduced more efficiently. This is compounded
by the point made by the Committee in its report, that there is
no parliamentary mechanism currently in place to ensure the procedure
can be used effectively.
11. Secondly, it is difficult to see how the
super-affirmative procedure could be used where a scheme was put
in place by two or more UK administrations acting jointly. It
would be subject to detailed scrutiny by Committees of several
Parliaments, and if they reached differing conclusions on whether
or not the regulations should proceed, or on the manner in which
they should be amended, it would be very difficult to know how
to reconcile those recommendations.
12. On Monday I wrote to peers setting out the
Government's broader package of amendments to strengthen the Bill;
I am following this up with a supporting letter today. In addition,
my officials are submitting a supplementary memorandum to your
Committee to explain why we are also modifying an existing delegated
power relating to the waste provisions in the Bill.
Department for Environment, Food and Rural Affairs
February 2008
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