Climate Change Bill [HL]

moved Amendment No. 2: 2: Clause 1, page 1, line 5, after ““to”” insert ““promote policies and take measures, including the setting of targets and five year budgets, best calculated to”” The noble Earl said: My Lords, Amendment No. 2 would change Clause 1(1). The provision states: "““It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 60 per cent lower than the 1990 baseline””." With the amendment, it would state: "““It is the duty of the Secretary of State to promote policies and 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 use of the word ““promote”” is taken from Section 1 of the National Health Service Act 1946, and the words ““best calculated to”” come from the Coal Industry Nationalisation Act 1946. Unfortunately, I did not have the Marshalled List of amendments when I headed north to home in Scotland, and it was only when I saw the groupings at lunchtime that I saw that government Amendment No. 50 was grouped with this amendment. Had I known that earlier, I would have asked for the two to be separated, because the government amendment is actually nothing to do with this one. I have dropped a note to the Minister; I apologise for not letting him know earlier, but the information does not seem to percolate through to the north of Scotland. It could be said that this House is designed for those in the south of England rather than those in the north or indeed, in the case of the chairman of the Joint Committee, the noble Lord, Lord Puttnam—I wish him a happy birthday—on the west coast of Ireland. The amendment would give clear legislative expression to the underlying purpose of the Bill, setting out its principal objective, goals and conceptual basis. It is deliberately linked to Clause 4, which requires the preparation of budgets. The Joint Committee that I have just mentioned considered the question of enforceability at some length. Indeed, it was my noble friend Lord Crickhowell—he sends his apologies to the House today—who led the argument that to impose a duty on the Secretary of State to ensure that a particular target should be achieved in 2050 was absurd and meaningless and that such a duty would never be enforced by the courts. The committee shared those doubts about enforceability. The issue was raised again during the debate on the Queen’s Speech and again at Second Reading. My noble friend and I put down amendments in Committee to make Clause 1 a purpose clause that clearly set out the objective of the legislation, linked to Clause 4, imposing duties to achieve targets and five-year budgets, and underpinned by a clause establishing compliance mechanisms similar to those under the Kyoto Protocol and the EU Emissions Trading Scheme. The object of those supporting the amendment is not to weaken the Bill but to strengthen it. It also fulfils the objective of clarity that the noble Lord, Lord Rooker, mentioned in respect of Amendment No. 1. Those who want the legislation to work are concerned that the whole exercise will be undermined when it comes to be understood that all the Government’s words about leading the world by imposing a statutory obligation that is legally enforceable are really no more than spin. Other countries will certainly not be impressed, but they will perfectly understand a regime based on compliance mechanisms, with which they are familiar; we will come on to those in Amendments Nos. 22 and 81. It is interesting to look back and see how the Government’s arguments have shifted like sand on the question of enforceability. At Second Reading, the noble Lord, Lord Rooker, said: "““Putting a duty such as this into law is important in itself. It is not just about the punishment in the event of failure; it is about trying to change institutional behaviour through a change in the law … By putting these duties into law, we are giving them a constitutional significance which will permeate down to every level of decision making””.—[Official Report, 27/11/07; col. 1209.]" In Committee, the Minister then made it clear that the clause was not drafted for the purpose of making it enforceable: "““The intention was to attempt to change the infrastructure culture in Government … We were trying to find a way to achieve behavioural change in Whitehall … That is the central objective””.—[Official Report, 11/12/07; col. 163.]" There is the whole reason for this amendment. It seems extremely doubtful to me that civil servants will keep saying to themselves, ““I must not forget Clause 1, and my Ministers and I may be held responsible in 40 or more years’ time””. It is much more likely that they will say, ““There’s not a cat’s chance in Hell that the courts will want to get involved in making judgments about these extremely complex issues and actions, which in many cases will be outside the control of the Secretary of State””. Also at Second Reading, the noble Lord, Lord Davies of Oldham, raised the possibility of a court making a stringent order, such as one ordering the Government to purchase credits to remedy a position. He then moved significantly from the propositions made previously when he said in Committee: "““We are saying that we do not accept using the law and judicial review as mechanisms to solve the problem. … 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””.—[Official Report, 17/12/07; col. 543.]" We then come to day three in Committee. The statement by the noble Lord, Lord Davies, that compliance mechanisms might be important was a big step forward, but in response to an amendment from my noble friend Lord Taylor of Holbeach the noble Lord, Lord Rooker, produced what he described as ““an absolute gem”” from his brief, which established with devastating clarity—far more than I am able to give your Lordships—the very point that my noble friend Lord Crickhowell and I had been trying to make about the legal duty in Clause 1. The Minister said that, "““A legal duty to implement the proposals and policies would be highly unusual in legal terms. Ministers can say all they like about implementation, but a legal duty—this is what my note says—would be highly unusual in legal terms. On another point, the amendment would be very restrictive. If the Government were unable to implement one element of the plan—through, say, ""unforeseen events—they would be in breach of the law. The same problem would apply if evidence came forward supporting a change in policy approach. It is not intended—this is not to demean the Bill at all—that the programme should be drafted as a legal document. It is therefore likely that any duty to implement would raise questions about precisely what the duty is and what needs to be done in order to fulfil it, and it would be very difficult to determine whether the duty had actually been fulfilled. Legal duties need to be set out in a way that shows precision and inflexibility. We do not want the proposals … to be drafted in this way. We want them to be understood and informative to the public””.—[Official Report, 8/1/08; col. 778.]" That is exactly the argument in our amendment. Indeed, my noble friend Lord Crickhowell stood up immediately and mentioned that to the Minister, but the noble Lord, Lord Rooker, fell back to his previous defence that the clause, "““was drafted so as to send a signal to the Civil Service; the noble Lord knows how the culture of Whitehall works. That is what Clause 1, line 1 is intended to do””." Then the noble Lord, Lord Rooker, produced another gem when he said that, "““a duty to implement a plan could be seen as a very broad enabling power for the Government to carry out any actions they proposed through the plan. I have no doubt the Delegated Powers Committee will have a look at that. I only say it ““could”” be seen to be a very broad enabling power. I do not think a power of that breadth would win the support of your Lordships’ House””.—[Official Report, 8/01/08; col. 779.]" The current situation is not satisfactory. We do not have a legally enforceable duty. The Joint Committee pointed that out, and its position has been reinforced. The wording that I propose tries to give that legal enforceability when combined with an amendment to Clause 4. I very much welcome the government amendment to Clause 4, although it does not go as far as my noble friend Lord Crickhowell and I wish to go, and we shall debate that. I beg to move.