A Bill no one is going to pay

The Draft Climate Change Bill, published for consultation in March and now reported upon by a powerful Joint Committee of both Houses (HL Paper 170-1; HC 542-1) seeks to impose a legally binding target on the reduction of carbon emissions.

If the Bill is enacted in its current form a duty will be imposed upon the secretary of state for the environment, food and rural affairs ‘to ensure that the net UK carbon account [that is carbon emissions into the air less carbon removed from the air] for the year 2050 is at least 60 per cent lower than the 1990 baseline.’

The duty to ensure that emissions are reduced to this extent is supplemented by a process that requires the secretary of state to set a series of five year ‘carbon budgets’ of the UK, each lower than its predecessor. He or she would then have to ensure that the emissions in any period did not exceed the amount budgeted for.

The basic tool vouchsafed to the secretary of state to achieve this reduction in emissions is the power to set up carbon trading schemes, whereby carbon emitters would have to reduce their emissions or purchase increasingly expensive carbon credits.

The secretary of state will be assisted in these tasks by the Committee on Climate Change, whose advice he must take into account. The apparently legally binding targets within this complex machinery were trumpeted somewhat when the Bill was published.

However, it is worth asking whether any of this is legally binding. Will it make any difference or does it amount to nothing more than a lot of hot air about hot air?

The Bill, if enacted in its current form, will doubtless express a deep political commitment by the government and parliament to the reduction of carbon emissions. But will it be a legal commitment enforceable through the courts?

The government was clearly of the view that these various duties were legally binding in the sense that they would be policed by judicial review: that a judge would be able to call a secretary of state who was not on track to achieve the 2050 target (or one of the interim targets) to account.

This could easily be a real issue. It is easy to conceive of circumstances in which the political commitment of government and parliament would change.

It is a fair bet that achieving the target will not be easy or cheap. As 2050 approaches voters may become sceptical about the higher prices and higher taxes that will be necessary to meet the target — especially if the deleterious affects of climate change were not immediately obvious to the man on the Clapham omnibus.

So a secretary of state who was not on track to meet the target of a 60 per cent reduction in emissions might find the loyal backbenchers of his party surprisingly understanding. There would be much fulminating and complaint from the opposition but the government would be able to avoid significant embarrassment in parliament.

But would our recalcitrant secretary of state, since he is under a legally binding duty to ensure that the emissions reduction target is met, yet find himself facing a judge in the Administrative Court asking difficult questions?

Would that judge order the secretary of state to do something unpalatable? To close coal burning power stations, for instance, or construct nuclear stations? This is most unlikely. Apart from anything else, such obvious steps to reduce emissions are not within the secretary of state’s current powers. More realistic might be an order to bring the UK’s carbon budget into balance by purchasing carbon credits from elsewhere.

The lawyers who gave evidence to the Joint Committee were pretty clear that this kind of outcome was most unlikely. They saw the basic duty to reduce emissions enforced ‘by the pressure of public opinion and parliamentary pressure’ and compared its enforceability to that of an international treaty.

It is just conceivable that a court might make a declaration that emissions in a particular carbon budget period exceeded the emissions budgeted for, but such declarations would be pretty pointless and achieve very little. We do not need judicial intervention to know whether the annual financial budget is in balance and we will not need judicial intervention to know whether a carbon budget for a particular period has been met.

While a pointless declaration is just possible, it is quite inconceivable that the courts would issue a coercive order against a secretary of state for breach of his duties under the Bill.

This is, first, because the reduction in emissions that the secretary of state is to ensure is only a ‘target’. It is not called that in the relevant clause of the Bill, but it is called a target in the marginal note, in the heading and in the preamble to the Bill.

A target is something that one aims to achieve — but no one can guarantee a bull’s eye. Inherent in the idea of a target is that it is an aspiration, not a guarantee of achievement. At most, the Bill can be interpreted as requiring the secretary of state to use his or her best endeavours to achieve the target, but a failure to achieve the target does not necessarily imply a breach of the duty.

How can a court pronounce upon whether the secretary of state, unless guilty of some egregious dereliction of duty, has used his best endeavours?  After all, the secretary of state for the environment, food and rural affairs on which the duty primarily rests does not have responsibility for energy policy, transport or tax. Control of such matters may turn out to be essential if the 2050 target is to be met. His duty to use his best endeavours could not require him to go beyond his powers and responsibilities.

Second, the courts would be very cautious about intervening because it is not clear what the courts could order the secretary of state to do. A court cannot order the secretary of state simply to ‘ensure’ that a target is met. The court would obviously need to be more specific in what it ordered, but the courts lack the power (and the inclination) to enter into the detail of government.

It is unthinkable that, in the absence of specific legislation granting such powers and the duty to exercise them, the court would order the minister, for instance, to take any of the difficult decisions adverted to earlier. The obvious way in which the court might compel the secretary of state to bring a carbon budget into balance would be to order him to purchase carbon credits. But even this would require parliament to vote funds for such purchases and, perhaps, even raise taxes.

The truth is that the hard decisions that will be necessary to ensure the desired reduction in emissions are complicated, with many conflicting interests having to be reconciled and resolved. These are exemplars of the kind of decision that should be taken by political not judicial authorities.

Finally, there is a touch of unreality about this whole issue of legal enforceability. It is unlikely that the issue will arise in the ways discussed here because the secretary of state will have the power to amend the target. Targets are likely to be met, but perhaps after the secretary of state has lowered the target.

The secretary of state’s decision to amend the target will be subject to judicial review and one may anticipate that the court would have close regard to the restrictions on the exercise of that power under the Bill (developments in scientific knowledge or international law or policy justifying a change of percentage). But unless Sir Humphrey has lost all his cunning, we may anticipate that a development in scientific knowledge or international law or policy will have been found to justify the change. There will be no evidence that a base desire to meet the target at all costs played any part at all in amending the target.

The Joint Committee was aware of the difficulties that lie behind legal enforceability of these duties and proposed instead the adoption of a compliance procedure. In broad terms such a procedure would require the adoption of ‘an action plan’ specifying the steps to be taken in order to achieve the objective and a timetable to take them.

Such an action plan — in which the secretary of state undertakes to do certain things by certain dates — might provide a structure in which the secretary of state might be coerced by the courts to fulfil the plan. The government’s response to this suggestion may be awaited with interest.

But if the Bill is not amended in some such way, the rhetoric about the legal enforceability of the secretary of state’s duties — as Parliamentary Brief has rightly argued before — may safely be dismissed as hot air.

Christopher Forsyth, Professor of Public Law and Director of the Centre for Public Law, University of Cambridge.