AUTHOR: Rachel Solomon Williams (Aldersgate Group)
When proposing solutions to major policy challenges, thinktanks and lobbyists often call for flagship new laws, reflecting the seriousness of an issue. However, making primary legislation is resource intensive as well as consuming political capital and precious parliamentary time. Rachel Solomon Williams, Executive Director of the Aldersgate Group and former civil servant, explores the case for making better use of the existing powers already on our statute book.
Delivering net zero and restoring the UK’s natural environment are huge challenges which often feel overwhelming in their scope and breadth. Over recent decades, governments have made legislation at both framework level (e.g. Climate Change Act 2008, Environment Act 2021) and subject-specific level (e.g. various Energy Acts, Control of Pollution Act 1974 and others) in an attempt to establish both binding targets and the means to meet those targets.
And yet, somehow this seems not to be enough. Sectoral strategies are either lacking in breadth and integration or are entirely absent; and enforcement agencies and delivery bodies are often under-resourced to deliver against their existing statutory requirements.
Sitting outside the tent, it can be tempting to say, “What’s needed here is an xxx Act, to show that the Government is serious and to make something happen”. It’s a satisfying intellectual challenge to work out what the new piece of legislation would do and then pitch it to decision-makers. However, concept-building is substantially the easiest and quickest bit of the process.
Once Ministers have agreed that new legislation might be a good idea and persuaded their Cabinet colleagues of this, the relevant department must put together at least one consultation setting out their proposed approach and seeking views. This might be followed by a White Paper with final policy, and only then is a draft Bill laid before Parliament for debate, assuming a slot can be found in the generally-packed legislative timetable. If the process takes less than three years from beginning to end it is miraculous; if any political or practical roadblocks arise, it can take much longer.
Whole separate articles could be (and probably have been) written on simply funding delivery bodies sufficiently to do their jobs effectively, thus enabling existing statutory requirements to be fulfilled and enforced. However, this post highlights a parallel opportunity which is insufficiently explored: the creative use of existing legislative powers to mandate change via regulation.
Businesses support well-designed regulations which are ambitious and well joined-up, as they create a stable investment environment. Regulations also help to establish a level playing field where businesses can exceed minimum levels of ambition without losing competitive advantage. The opposite can happen when you have diverging regulations, as is happening between the EU and the UK, and between the four nations. When clearly structured and effectively implemented, regulation can be a power tool to leverage change and mobilise the private sector.
A prime example of this is The Vehicle Emissions Trading Schemes Order 2023 , otherwise known as the new zero emission vehicle mandate. The Order was made in exercise of the powers conferred by sections 44, 46(3), 54 and 90(3) of the Climate Change Act 2008, which allow governments to create “trading schemes relating to greenhouse gas emissions”. The original powers exist through the foresight of the original creators of the Climate Change Act (hat tip to Baroness Bryony Worthington) but lay dormant for 15 years awaiting the right use case.
In an interesting turn of events, the Government made prominent political statements last year about not placing unreasonable burdens on individuals in relation to net zero, citing specifically the target date (at that time) of phasing out new internal combustion engine cars by 2030. In parallel, the process of establishing a UK zero emission vehicle mandate via statutory instrument was quietly completed, with requirements ratcheting up to a mandate of 100% ZEV registrations in 2035 (via 80% in 2030). Albeit a slight reduction in the original stated target, the regulations have had the effect of providing much greater certainty to the market than had been provided by the headline target. The burden on officials, ministers and the parliamentary timetable was much reduced in comparison with a new primary legislative process, and the result was a scheme that will help to bring down costs for motorists through industry certainty.
Another example, also in transport, is the use of powers in the Energy Act 2004 to support the supply of renewable transport fuels. Again with excellent foresight by the original creators, the powers were drafted such that they could be used with reference to any type of transport fuel or its relevant supplier. The immediate use of the powers was to set up the Renewable Transport Fuel Obligation, via The Renewable Transport Fuel Obligations Order 2007: the RTFO has been running successfully since then, largely focussed on promoting the supply of low carbon fuel for road vehicles. However, the relevant Energy Act powers are potentially now going to find a new use – for the implementation of a sustainable aviation fuel mandate (subject to final policy confirmation). The design of the new SAF mandate will be complicated and in some respects controversial, but once the design is agreed, the enactment should be straightforward.
Both these examples provide certainty to the relevant industries as quickly as possible and with clear forward timelines, driving decarbonisation at a speed that reflects the rapid tightening of UK carbon budgets. Using existing regulatory powers also supports consistent policy implementation, working within an established framework rather than creating a new, parallel one.
In a challenging political climate, with government departments working on many complex interlocking issues, smart policymaking will be vital to driving rapid change, and there may be existing statutory vehicles that can deliver benefits more swiftly and strategically than primary legislation. Could we use this principle to support the development of nature markets, heat pump deployment or planning system improvements? Now’s the time to think creatively.