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Fuel Poverty Bill

I am grateful to the hon. Gentleman for that intervention. I referred to one of the unintended consequences. We could potentially put it right, but he stands by his bull point, which is the duty in clause 2 as currently specified. That is why I must take issue with him. We heard earlier about the judicial review in the High Court of the Warm Homes and Energy Conservation Act 2000. The judge, Mr. Justice McCombe, said:""I am quite satisfied that, in this case . . . Parliament would have taken as axiomatic that the pressures on budgets are intense and that government would have to take the necessary steps in the context of other pressing needs for funds. I cannot conceive that Parliament can be taken to have intended that, whatever the expense, so long as not disproportionate to the benefit, the government should be obliged to expend whatever funds might be necessary to eliminate fuel poverty"." That is a correct interpretation of what Parliament decided when it enacted that Bill. I participated in the debates and supported the Bill, and that interpretation is entirely in keeping with what I thought we were voting for. One of the unintended consequences of the absolute duty is this. Let us suppose that the costs involved with the provision escalate dramatically because rising fuel prices mean that more people come within the definition of fuel poverty, because the cost of the work has gone up or because the Government's resources decline. Which hon. Member will want to say that the hospital promised for their constituency should not be built because the Secretary of State has to meet that duty, or that the primary school in their constituency should not get the new boiler that it needs because the priority is ensuring that homes are warm? Which hon. Members would vote for such things, which would be a consequence of the duty as it is phrased in the Bill? Those things would be the consequence, although unintended, of making the duty override all other demands on Government spending. As the Minister said earlier, the previous Bill was phrased precisely to overcome that barrier; furthermore, the judge whom I mentioned interpreted the law accordingly. That was the correct way to approach the issue. As I said, my Committee has done a lot of work on social and economic rights and their justiciability. We debated at great length whether there should be social and economic rights in the Bill of Rights proposed as part of our constitution and, if so, the extent to which they should be enforceable through direct justiciability. We came to the conclusion that such enforceability could be extremely dangerous. It is not even required by the UN convention on these matters. That requires the progressive realisation, as resources permit, of all the great objectives of health, education and eliminating poverty; it does not impose absolute duties. The position now adopted by the Government, and which they are at great guns to achieve, matches that duty. The consequence of justiciability is not just that Friends of the Earth can bring a case against the Government, but that any individual or busybody could do so. There is a better approach than through extreme justiciability, and it is the system that we advocated in our report on a UK Bill of Rights and Freedoms; I recommend it to the hon. Gentleman. The fact that that approach is better is partly reflected by clause 4, to which I shall come in a minute. We said in the report that the best way was to give the judges an interpretive power, so that they interpreted the common law, Acts of Parliament regulations or whatever in a way that gave maximum effect to the duty. The duty itself would not be directly enforced, but the courts would do their best to give effect to it in how they approached it. That is a halfway house that fits much better within our overall constitutional settlement than what the Bill proposes. There should, of course, also be an absolute bottom line below which nobody should be expected to fall and which the courts could also enforce. In the end, clause 2 risks the separation of powers. There is a clear separation of powers—although not as clear as some of us would like—between the legislature, the Executive and the judiciary. The Executive's job is to run the country, the legislature's job is to pass the laws and the judges' job is to interpret them and make sure that the courts are doing their job properly. The problem is that clause 2 would blur the distinctions. Effectively, the judges would be making decisions on the allocation of resources. The judge would decide that the Government had not met the very precise duty under clause 2(1), therefore they must spend more money on it, therefore something else would have to give. Judges have the luxury of not having to say where the money will have to be cut—whether from the housing, schools or health budgets or elsewhere. Judges do not have to make that decision. All the judge has to do is to tell the Government that they are not spending enough money on the target and they have to spend more. The Government do not have that luxury, but the judiciary would have that power as a consequence of clause 2.