Climate Change Bill [HL]

moved Amendment No. 1: 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— (a) ensure that the net UK carbon account for the year 2050 is at least 60% lower than the 1990 baseline, and (b) enable the carbon budgets that have been set under this Act to be met”” 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, "““it is meaningless to impose a duty on the Secretary of State that cannot be enforced … It could not be said that the Secretary of State who happens to be in office in 2050 was in breach of the duty imposed by Clause 1 until the very last moment of 2050, by which time it would be far too late for anybody to do anything about it. In the mean time, there is nothing that anybody can do—and certainly nothing on which the courts could possibly adjudicate. That applies to all Secretaries of State between now and then. So Clause 1 is what Roman law—it is a very long time since I studied Roman law—called lex imperfecta. It has no force and it has no place in this Bill””.—[Official Report, 25/2/08; cols. 463-4.]" 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 abroad on the business of a Lords committee. By then, the Government had begun to give ground. In response to my Second Reading speech, the noble Lord, Lord Rooker, observed: "““It is not just about the punishment in the event of failure; it is about trying to change institutional behaviour””.—[Official Report, 27/11/07; col. 1209.]" In Committee, he added to a similar comment about institutional behaviour the words: "““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.]" 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 next stage. Because an amendment about the principal aim of the Bill was carried, the original Clause 1 has now become Clause 2. 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, "““prepare such proposals and policies (including the setting of five year budgets) as the Secretary of State reasonably considers will—""(a) ensure that the net UK carbon account for the year 2050 is at least 60% lower than the 1990 baseline, and""(b) enable the carbon budgets that have been set under this Act to be met””." 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, "““it relates to what civil servants actually do, ie give policy advice, develop trading frameworks, advise on tax rates, and draw up and enforce regulations etc. These responsibilities will be reflected in departmental objectives and can be cascaded down into individual job descriptions in a way a national CO2 target cannot””." 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 2050 target, one can envisage Parliament and even the courts holding them responsible for the production of policies that are clearly in conflict with that objective. I offer a perhaps exaggerated example. Let us assume that, a short time ahead, we are faced with an energy supply crisis. Gas has been cut off by Russia to Europe and the nuclear programme is running years behind schedule. The Minister announces that we are to build a large number of coal-fired power stations without the necessary cleaning equipment and that we are to import large quantities of heavily polluted coal from some other part of the world because that is where the supplies are economic and available. There can be no question but that Parliament and, I suspect, the courts would argue that that could not be held to be in line with the objectives that our clause sets the Secretary of State. 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.