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As I said, for technical reasons, the way in which the new clause is drafted could do more harm than good. I am sure that is not the intention of the noble Lord in proposing it and I ask him to think again.

Lord Taylor of Holbeach: My Lords, I am grateful to the Minister for trailing amendments yet to come and we look forward to them with interest. However, I wish to focus your Lordships’ attention on the amendment we are considering at this stage. The question is whether the Climate Change Bill and cuts in carbon emissions are simply a means to an end.



25 Feb 2008 : Column 458

I accept what the Minister said about a judicial review. Unfortunately, at that time I gave way to the noble Lord, Lord Clinton-Davis, and I may not have expressed exactly what I want to say. It would be a consideration under the terms of the amendment whether a particular decision or action had been taken with proper consideration and in a reasonable and rational way—I accept that. Indeed, it would be a driver, I hope, to reinforce the need for the Committee on Climate Change and the Government to do that.

I ask my noble friend Lord Blackwell and the noble Lords, Lord Jay, Lord Turnbull and Lord Woolmer, who all felt that the wording was infelicitous and not useful to the construction of the Bill, to read the amendment as printed. The objective is to play our part and ensure that we contribute to limiting the global average temperature increase to not more than two degrees. That is the essence of the Bill and, as far as I understand it, it is government policy. The noble Lord, Lord Teverson, made the point earlier about the Prime Minister’s comment.

I understand that the phrase “pre-industrial temperatures” is rather abstract and vague. None of us was around at the time to know how warm or cold it was. However, it is the accepted wording in international protocols and the standard reference point for defining climate change. It is a widely accepted concept and I make no apology for using it.

Lord Clinton-Davis: My Lords, I simply fail to understand why we have to incorporate the amendment in the Bill. If there is a duty on the Government to do something, that would be justiciable; but equally, if there is no duty, how do you go about it? Being justiciable requires a duty—and in that regard the Government are under no duty at all.

Lord Taylor of Holbeach: My Lords, as I hope I explained earlier to the noble Lord, the duty is to contribute to a reduction of 2 per cent. Carbon emissions are a mechanism. The duty of the Government is to influence climate change. That is certainly the policy of these Benches. In the light of the debate we have had, I wish to test the opinion of the House.

4.25 pm

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 159; Not-Contents, 149.


Division No. 1


CONTENTS

Addington, L.
Anelay of St Johns, B. [Teller]
Ashcroft, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Bell, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Brougham and Vaux, L.
Byford, B.
Campbell of Alloway, L.
Carnegy of Lour, B.
Cathcart, E.
Chadlington, L.


25 Feb 2008 : Column 459

Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Craigavon, V.
Crathorne, L.
Crisp, L.
De Mauley, L.
Denham, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Fearn, L.
Fookes, B.
Fowler, L.
Freeman, L.
Garden of Frognal, B.
Gardner of Parkes, B.
Geddes, L.
Glentoran, L.
Goodlad, L.
Goschen, V.
Greengross, B.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harries of Pentregarth, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
Inglewood, L.
James of Blackheath, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Jopling, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lee of Trafford, L.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marland, L.
Mawson, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Morris of Bolton, B.
Murphy, B.
Naseby, L.
Neuberger, B.
Neville-Jones, B.
Newby, L.
Newton of Braintree, L.
Northesk, E.
Northover, B.
O'Cathain, B.
Palmer, L.
Park of Monmouth, B.
Perry of Southwark, B.
Platt of Writtle, B.
Plumb, L.
Quinton, L.
Ramsbotham, L.
Razzall, L.
Redesdale, L. [Teller]
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Rowe-Beddoe, L.
Russell-Johnston, L.
Ryder of Wensum, L.
Saatchi, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Sharp of Guildford, B.
Shephard of Northwold, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Steinberg, L.
Stevens of Ludgate, L.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tonge, B.
Tordoff, L.
Trefgarne, L.
Trimble, L.
Trumpington, B.
Tyler, L.
Ullswater, V.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Walker of Worcester, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warsi, B.
Wilcox, B.
Williamson of Horton, L.
Windlesham, L.
Wolfson, L.

NOT CONTENTS

Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.


25 Feb 2008 : Column 460

Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Best, L.
Billingham, B.
Bilston, L.
Blackwell, L.
Blood, B.
Borrie, L.
Brooke of Alverthorpe, L.
Brookman, L.
Butler-Sloss, B.
Campbell-Savours, L.
Chorley, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Coussins, B.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dearing, L.
Desai, L.
Dixon, L.
Donoughue, L.
Elder, L.
Elis-Thomas, L.
Elystan-Morgan, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Golding, B.
Gordon of Strathblane, L.
Graham of Edmonton, L.
Gregson, L.
Griffiths of Burry Port, L.
Grocott, L.
Harrison, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jay of Ewelme, L.
Jay of Paddington, B.
Jones, L.
Jones of Birmingham, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Lawson of Blaby, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Marlesford, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Monson, L.
Montgomery of Alamein, V.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Yardley, B.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Onslow, E.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B. [Teller]
St. John of Bletso, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Slim, V.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Truscott, L.
Tunnicliffe, L.
Turnbull, L.
Turner of Camden, B.
Vadera, B.
Vinson, L.
Wall of New Barnet, B.
Warnock, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.



25 Feb 2008 : Column 461

4.36 pm

Clause 1 [The target for 2050]:

The Earl of Caithness moved Amendment No. 2:

The noble Earl said: My Lords, Amendment No. 2 would change Clause 1(1). The provision states:

With the amendment, it would state:

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,

25 Feb 2008 : Column 462

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:

In Committee, the Minister then made it clear that the clause was not drafted for the purpose of making it enforceable:

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 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,

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,

Then the noble Lord, Lord Rooker, produced another gem when he said that,

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.

4.45 pm

Lord Lloyd of Berwick: My Lords, in the absence of the noble Lord, Lord Crickhowell, I support this amendment. I did not take any part in the lengthy proceedings in Committee and I do so now to make one short point only. I say at once that I do not like the drafting of Clause 1. In my view—this was said by others in Committee—it is meaningless to impose a duty on the Secretary of State that cannot be enforced. By way of contrast, many noble Lords present will remember the duty imposed on the Lord Chancellor under the Constitutional Reform Act 2005, under which he is obliged to protect the independence of the judges. That duty is unobjectionable. If, for example, the Government were to attempt to oust judicial review—as they did in one of the many Bills dealing with applications for asylum—they could, on the face of it, be in breach of that duty and the question could then be tested by way of judicial review.

Clause 1 of this Bill is quite different. 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

25 Feb 2008 : Column 464

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.

There could, of course, be no objection to stating a target figure in the Bill to give meaning to government Amendment No. 50, to which we shall come in due course. But to express it in the form of a duty is, as I say, meaningless and wrong. So whether we agree with Amendment No. 2 proposed by the noble Earl, Lord Caithness, or with Amendment No. 50, I hope that we shall get rid of Clause 1 as it stands.

I have one other point. From what was said by the Minister in Committee, I gather that the real purpose of Clause 1 is, as the noble Earl observed, to give a wake-up call to the Civil Service. One could have no objection to that, but surely there must be other ways of achieving that desirable objective without putting something on the statute book the like of which I have never seen.

Lord Teverson: My Lords, I support the amendment, which emphasises for me the fact that the Bill, much as it has broad political support from us all, does only three things: it sets targets, sets up an advisory committee and enables further legislation. That is all that it does and all that it pretends to do. It is good as far as it gets, but one of the most important things that we need to bring into the Bill is policy. Unless policies follow the Bill, we have no chance of meeting the targets. I like the fact that the amendment relates the duties of the Secretary of State to policies. That is why we support the amendment from these Benches. Government Amendment No. 50, which has been grouped with Amendment No. 2, is also a considerable improvement, because it does exactly the same thing and relates the legislation to proposals and policies. However, it still uses the language that we criticised in Committee, albeit without much support from the rest of the Committee. It says:

We believe that they should be “prepared to meet”; I do not understand that language.

Lord Turnbull: My Lords, I, too, find the clause incoherent and the logic of the amendment compelling. Instead of imposing a duty to ensure that the nation reaches its target by 2050, it creates a separate objective and a duty to deliver everything that will make the objective possible. It is more sensible to attach the duty and accountability to the things that the Secretary of State does than to the way in which society responds to those things. The test becomes whether the Secretary of State, by action or omission, could be deemed to have behaved reasonably in relation to the objective in force. That could be in relation to the things that Secretaries of State do: they legislate, impose taxes and negotiate treaties, and they should be held responsible for those things.

The amendment’s merit is that you would attach the duty to the things that Ministers did, such as authorising a suite of coal-fired power stations without a legal requirement that they should have carbon

25 Feb 2008 : Column 465

capture and storage or reducing the caps under the various trading schemes when we were behind schedule. The Conservative Benches have an in-house constitutional expert in the noble Lord, Lord Norton of Louth. I found his criticisms of the clause and his evidence to the pre-legislative scrutiny committee compelling. That is why we need to look at this again.


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