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Climate Change Bill [HL]

Volume 698: debated on Monday 4 February 2008

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Viscount Simon) in the Chair.]

Clause 61 [Territorial scope of provisions relating to greenhouse gas emissions]:

[Amendments Nos. 185 and 186 not moved.]

Clause 61 agreed to.

187: Before Clause 62, insert the following new Clause—

“Secondary legislation

No secondary legislation, including any order or regulations, may be made under this Act unless it is necessary for the proper operation of the Act and is compatible with the principal aim of the Act.”

The noble Lord said: The first amendment in the group places a prohibition on making secondary legislation unless it is consistent with the principal aim of the Act. It was on the very first day of this Committee that we debated whether to include a principal aim in the Bill. I do not intend to rehash the arguments made then, but I would like to treat the amendment as an opportunity to discuss a general problem with the Bill, as we look forward to Report.

The order-making powers in the Bill are too extensive. As it stands, the Secretary of State can change virtually all the targets, budgets and training schemes by order. Likewise, as we heard in the waste management services section, there is imprecision and power beyond the specific elements of addressing climate change.

I do not necessarily suspect the Government of planting Trojan horses in a cynical attempt to increase the power of the Secretary of State. However, we feel that it is important that the amendment be included to ensure that this Bill—which is very much just a framework—will not be interpreted in a way that is not related to or in keeping with its primary policy purpose of stopping climate change.

An example of an unnecessary power given to the Secretary of State is the subject of the second amendment in this group, proposed by the noble Lords, Lord Teverson and Lord Redesdale, and which also carries our names. The Secretary of State should not select the time at which this Bill is enacted. This Bill should come into force on the day that it is passed. I beg to move.

I generally agree with the noble Lord, Lord Taylor, in terms of his amendment and the very great issues that any secondary legislation could cover in a Bill that is as wide as this is written. As we have seen, this primary legislation has introduced provision on renewable transport fuels and waste disposal, which we were happy to debate most of the last Committee day. We also believe that this is an important area.

My own Amendment No. 188 refers to the climate change committee. This area should come into force when the Bill is passed. I cannot see the Government or the Minister objecting to that. They are keen, as we all are, for this Bill to move on—not just to reach the statute book, but to be implemented so that we can all get on and save the planet. The most appropriate date for that important work to commence would be on the day that the Bill is passed.

Referring to the climate change committee, I was delighted to read Defra’s press release about the nomination and appointment—subject to the Bill being passed or however these things work—of our colleague, the noble Lord, Lord Turner. That is an excellent start in showing how important that committee is and how independent it needs to be.

I hope I can offer some reassurance to noble Lords with regard to this possibly very short debate. I understand the concern expressed by the noble Lord, Lord Taylor. I asked the Bill team to go through the order-making powers and have also had a look myself to try to get a feel for how it looks when they are put together.

A theme has been running through our debates in Committee. In fact, my noble friend Lord Rooker has agreed to consider a number of questions on transparency and order-making issues. There is an intention to write to interested Peers and opposition spokespeople on a number of those before Report.

Amendment No. 187 would specifically prevent the Government bringing forward any secondary legislation which was not strictly necessary for the proper operation of the Act or not compatible with the two-degree goal, which we debated earlier in Committee. I appreciate the spirit behind the noble Lord’s amendment, but this would have a significant impact on the Government’s ability to meet the targets and budgets set under the Bill.

The two tests in Amendment No. 187 would set the bar extremely high. I understand that the amendments are probing but will take a moment to go through why they would set the bar so high. The requirement for secondary legislation to be necessary for the Act’s operation could have significant consequences. For instance, as the Bill already has a 2050 target, any regulations amending it are not strictly necessary for the Bill’s operation. This amendment would prevent the 2050 target being amended. For example, new trading schemes, as enabled by Part 3, are also not strictly necessary for its operation. Therefore, this amendment would also prevent the Government introducing any trading schemes to reduce UK emissions and help us meet our targets. I understand that the amendment is probing at a wider concern, so I will not labour that.

Amendment No. 188 would commence Part 2 on the day that the Act is passed. It would mean that the Committee on Climate Change becomes a statutory body on that date. I understand that noble Lords want to see the committee operational as soon as possible. However, there are practical reasons why the Government have included the provision to set the date in the Bill. As your Lordships will be aware, we do not often know in advance the exact date on which a Bill will be granted Royal Assent. That means that the establishment of such an important body could come, relatively speaking, as a surprise. We would not want that to happen.

There are very real considerations which require us to be able to plan this, so that it happens not only quickly but in an orderly and well managed way. For example, the committee’s staff will be its backbone and it is important that we make it convenient for both staff and the body alike to have advance notice of when the body will be legally established. That will help provide greater certainty as to, for example, the terms of their employment. As noble Lords will also understand, it is more administratively convenient if a body comes into existence on a known date—ideally, at the start of a new quarter, but, at the very least, the first of the month.

However, we recognise the demands for greater certainty about when the committee will be vested and the desire for it be at the earliest opportunity. I therefore reassure the Committee that it is our intention to commence Part 2 at the earliest practicable date, and no later than three months after we receive Royal Assent. The date will be decided following consultation with the committee’s chair-designate.

I am happy to put this commitment on record for the Committee and hope, with this reassurance—and my communication of the information that my noble friend Lord Rooker will be writing to noble Lords who have participated in Committee—that the noble Lord will consider withdrawing his amendment.

I would like to comment on that briefly, before the noble Lord, Lord Taylor, intervenes. I was terribly impressed by all that until the Minister said three months. I accept entirely the shortcomings of my own amendments in terms of the day of Royal Assent, which we may not be able to tie up exactly. However, I would have thought that the first day of the month, or within the month, was what we should expect at the very least. The reassurance is excellent, but I find three months excessive.

I echo those words. I hope that the Minister will listen carefully to what the noble Lord, Lord Teverson, has said. It seems remarkable. We know that so much has got to be done by the climate change committee so early, because we are vesting all sorts of responsibilities in it. The debates in Committee have given a strong argument for it being empowered to advise on setting targets and even, as we have proposed, setting targets itself. It is a mistake to have a delay before its authority is fully vested, and I hope that the contributions made in this short debate will be taken into account when the letter is penned.

I do not wholly take the Minister’s argument that accepting our amendments would mean that the orders changing the 2050 target could not be implemented. After all, the purpose of the Bill is to reduce climate change. Setting targets is an instrument for achieving that objective, but the purpose of the Bill is made quite clear in Clause 1. There is therefore no contradiction. I have not examined this from a legal point of view, but my feeling is that there cannot be a contradiction. Having said all that, I was very reassured by what the Minister said about how our debates in Committee have impressed on her, on the Government and on the noble Lord, Lord Rooker, that it is necessary at least to try to reconcile the need to empower the Secretary of State to issue orders with the need to ensure that the powers and authority of Parliament are also recognised. With that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 62 to 66 agreed to.

Clause 67 [Meaning of “national authority”]:

187A: Clause 67, page 28, line 31, at end insert “and acting in agreement”

The noble Lord said: The Committee will be relieved to hear that this is a probing amendment. I was led to table it when I read Schedule 1, which of course I read before I got to the end of the Bill because it comes up much earlier and must be read in context. The opening line of the schedule alerted me to the need to have this discussion. It says:

“The Committee shall consist of … a person appointed by the national authorities”.

As the noble Lord, Lord Turner of Ecchinswell, is in his place, I should say that I too am very glad to welcome him to that job, even though—I hope he will not blush when I say this—I was somewhat surprised to see in the House Magazine that a job which I saw described in another press release as the third most important job in the country, after Prime Minister and Chancellor of the Exchequer, is apparently assumed to take only one day a week. There is a little inconsistency there, which the Minister may be able to explain.

Anyway, we need to discuss a little the meaning of the “national authorities”. This appears only in Schedule 1 and in Clause 67, which gives the meaning of “national authority” in definitions. Clause 67(1) states:

“In this Act ‘national authority’ means”—

which is fine—

“the Secretary of State … the Scottish Ministers … the Welsh Ministers”,


“the relevant Northern Ireland department”,

which is interesting.

Subsection (2), however, says:

“Functions conferred or imposed by this Act on ‘the national authorities’ are to be exercised by all of them jointly”.

That, too, is simple enough, and I am glad that it works, except that the relationship is quite complicated. There is in this appointing body one Secretary of State but 12 Scottish Ministers and 11 Welsh Ministers. Indeed, I am not quite sure how many people there are if you include one “relevant Northern Ireland department”—let us assume that it is one.

The real question is how this works. We know that it has worked for the chairman, but the subsection says that the functions will,

“be exercised by all of them jointly”.

I think that the people who wrote that into the Bill simply had not thought about the wording, because you will never get all those people together to work jointly. Even if you put in a conference call, someone will not be able to be at the right place at the right time to take part in the discussion.

Finally, what happens if someone disagrees? Is there a mechanism for determining whether one Secretary of State in the United Kingdom Government equals 12 Scottish Ministers who might disagree with him? Are we saying that what we really require is a majority of the Ministers in the devolved institutions to accept, and that, if they do, that is all right? What does,

“be exercised by all of them jointly”,

mean? I tabled this little amendment because we need to discuss this, particularly because we need a means of dealing with disagreement if difficulties arise in the future—this job goes on when substitutes are appointed to the committee at some point in the future. If you do not think about this when you write the original agreement, by the time the original agreement is in place and in law, it is too late to change it. I beg to move.

We are back to a topic that we broached on 8 January on our third day in Committee, when I listened with much interest to what the Minister, who is now in his place, had to say about the likely outcome of a falling out between Westminster and some of the devolved Administrations. The amendment that I moved at that point was criticised because it implied that Westminster was wielding a big stick against the devolved Administrations in a field where it no longer had any right to do so. I support the amendment tabled by my noble friend Lord Dixon-Smith because it is a much milder take on the thing.

The co-ordination of the national authorities on all aspects of the Bill, which my noble friend described, will be difficult but essential to the Bill’s success. The Minister has mentioned several times in Committee that devolved authorities have issued statements about their intent to comply with the Bill, but he himself flagged up very early on the fact that one of the dangers in considering the Bill at the moment is that there is currently huge general enthusiasm for the concept. So far as I remember, only once, in a major intervention in our discussions, was the point made about how people will view the measures when they are causing disadvantage or deprivation. Science may progress; the accepted wisdom may change; individuals, regions or national authorities may disagree.

As the Bill is really only a skeleton, and as so much is left to secondary legislation that is yet to come, it is important that national authorities agree on the action that they will be involved in implementing. Having a provision that requires their agreement is the only way in which they can exercise their functions jointly, as it says in the Bill. Thus, in order to ensure that all national authorities will be able to implement the various complicated measures contained in the Bill, I strongly support the amendment of my noble friend Lord Dixon-Smith.

I am delighted to do my best to respond to this probing amendment. I hope that I can help. As we have discussed already, the Bill covers the whole of the UK. It will be important to ensure that its application to the devolved Administrations is set out very clearly and to ensure a joined-up approach between Administrations as far as possible, as the noble Duke and the noble Lord have already highlighted. We will be agreeing a concordat with the devolved Administrations about how we will work together on implementing the detailed elements of the Bill. The Bill describes the UK Government and the devolved Ministers together as “national authorities”, as the noble Lord, Lord Dixon-Smith, has already pointed out, for the purposes of some clauses.

I apologise for asking the noble Baroness to give way, but I wonder whether the other political parties will be included in drawing up this concordat. This legislation will require a long-term development.

My immediate response is to say that the concordat is agreed on behalf of the Administrations, of whatever political composition they might be. The agreement will be with the Administration concerned rather than with political parties. The important point to note is that the formal agreement of the Administrations will be sought, and equally it is important that the concordat is practical and realistic. We have said at earlier stages in Committee that we have experienced positive working relationships. I appreciate the concerns of the noble Duke about the future because this is a very long-term Bill, and I will come on to what might happen if there is a disagreement.

The Bill describes the UK Government and the devolved Ministers together as the “national authorities” for the purposes of some clauses. Clause 67, as the noble Lord pointed out, defines the term “national authority” to mean the Secretary of State, the Scottish Ministers, the Welsh Ministers and the relevant Northern Irish Ministers. Further, to make it clear, we would expect the Scottish Ministers to decide among themselves who should be the relevant Minister. The clause provides that:

“Functions conferred … on ‘the national authorities’ are to be exercised by all of them jointly”.

This means that they must agree on the way the functions should be exercised and then act together. “Acting jointly” is a well used and well understood legal term which means bodies acting together to do the same thing. In order to act jointly, all must agree on what they are doing, so “acting in agreement”, as proposed in Amendment No. 187A, would not add any further safeguards to the clause because the devolved Administrations will need to be in agreement in order to act jointly.

I want to stress what would happen if there were a disagreement between the different legislatures. As I have said, the concordat is being developed by the UK Government and the devolved Administrations. It will set out the procedure for resolving any differences. However, it is worth reiterating that UK government departments and officials already have a constructive relationship with their counterparts in each of the devolved Administrations in drawing up the Bill, which is truly UK-wide in scope. We expect this good working relationship to continue as proposals for trading schemes emerge and that this kind of disagreement is most unlikely. There are probably several options available to us if the situation did arise, but it would be wrong to speculate on the detail at this stage when there are no obvious risks of that happening.

However, I know that the noble Lord will push me further, so I shall make it clear. In the unlikely event that a procedure laid out in the concordat does not succeed in resolving an issue, a number of things could happen. First, the proposal would simply not be able to be introduced. If we could not agree, we could not proceed with it. Secondly, if we could not agree on a proposal, its scope might be revised so that it could be introduced by one or more national authorities acting alone. This is provided for in Part 1 of Schedule 3. Finally, if the proposal was very important, as I am sure noble Lords can imagine something might be, it would be possible to consider bringing forward primary legislation to introduce whatever the scheme was. As my noble friend Lord Davies of Oldham stressed when we had a debate along similar lines, this is a UK Bill. With that further information on the record, I hope that the noble Lord will consider withdrawing his amendment.

I was fascinated by the explanation that the Government are going for a unanimity rule here. I wonder whether they might like to introduce qualified majority voting. They could go, for instance, for 55 per cent of UK nations and 65 per cent of the total population. The fact that we have a veto for one of the nations is quite interesting.

After that frivolous intervention, could I ask the Minister a slightly more difficult question? If I heard her correctly, I thought she said that acting jointly means that all must agree, and “all” is defined in the Bill as all of them. She then went on to say that she thought the Scottish Ministers might agree on an “appropriate Minister”. That would put the Scottish practice outwith the wording of the Bill as I read it. We need to think about this because I am concerned about the way the Bill has been drafted. I accept entirely that we can amend practice, and we can amend the Bill. Indeed, the definition would be far better if it were changed.

Perhaps the noble Baroness would kindly indicate that she will perhaps think about that particular wording—she may say it is clear but to a layman reading the Bill, it is most confusing.

In my experience, many Bills are confusing to the layman because they seem to be largely the territory of lawyers; that is perhaps the case for some of this Bill. I want to make this clear because I am not sure that I was that clear on the question of the Scottish Ministers. The devolved Administrations are expected to agree a collective position in the same way as the UK Government would, so the fact that there are a number of Scottish Ministers is not material. What matters is that they agree a collective position and that those collective positions need to be in agreement in order to act jointly.

I shall read what has been said with great care. With the greatest deference, I do not think that we have sufficient clarity of explanation of this issue to be satisfactory, so we may need to return to it at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 67 agreed to.

Clauses 68 to 71 agreed to.

Clause 72 [Commencement]:

[Amendment No. 188 not moved.]

Clause 72 agreed to.

Clause 73 agreed to.

House resumed: Bill reported with amendments.