Background to the Climate Change Framework
Abstract This chapter sets out the background to the Climate Change Act, outlining how it has been set in place in order to translate key elements of the UK’s national low carbon strategy into legally binding national commitments. An account of the intensive campaigning and political activity that helped to galvanise the Act is provided. The chapter also points out that the framework manifested in law the frst long-term legally binding national reduction targets imposed by one nation upon itself in the world and clarifes the reasons why the framework is justly considered to be immensely significant. Environmental governance mechanisms established by the Act are touched on in preparation for Chapter 2, and expert commentary and debate is explored.
Keywords Environmental governance · Climate and energy law and policy · Background to the Climate Change Act Climate change mitigation and adaptation
© The Author(s) 2019
T. L. Muinzer, Climate and Energy Governance for the UK Low Carbon Transition, https://doi.org/10.1007/978-3-319-94670-2_1
In the present era, dangers posed by anthropogenic climate change1 and associated issues (e.g. concerns around energy security2) have been driving many states down a path of radical decarbonisation. Against this backdrop, the UK has been undergoing an unprecedented ‘Low Carbon Transition’. The UK Low Carbon Transition involves the partial but substantial decarbonisation of the national life, and while it can be understood as an ongoing ‘process’, it is also articulated in print across certain key government documents, perhaps most importantly UK Government’s UK Low Carbon Transition Plan: National Strategy for Climate and Energy3 and The Carbon Plan. 4 The UK’s Climate Change Act (hereafter ‘CCA’), which passed into law in 2008, is an Act of UK Parliament that is designed to articulate in law and achieve in practice the major general processes and outcomes underpinning the Low Carbon Transition. In other words, the CCA is the primary domestic statute5 that the UK’s decarbonisation process is founded on. As the main legislative embodiment of the UK’s national climate governance framework, it may come as little or no surprise to scholars and practitioners in the felds of environmental studies, policy, law and governance to fnd that it manifests a special, complex and frequently challenging legal regime.
1 See further the body of major reports on this matter issued by the Intergovernmental Panel on Climate Change (‘IPCC’), the leading international scientifc body convened to examine and assess climate change. In its Fifth Assessment report, the IPCC has stressed that:
Human infuence on the climate system is clear. This is evident from the increasing greenhouse gas concentrations in the atmosphere, positive radiative forcing, observed warming, and understanding of the climate system. …It is extremely likely that human infuence has been the dominant cause of the observed warming [of the atmosphere and the planet] since the mid-20th century.
IPCC, Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report (Cambridge University Press, 2014), at pp. 15 and 17, respectively (emphasis appears in original).
2 See C. Mitchell, J. watson, J. whiting (eds.) New Challenges in Energy Security: The UK in a Multipolar World (Palgrave, Basingstoke, 2013).
3 DECC, UK Low Carbon Transition Plan: National Strategy for Climate and Energy (HM Government, 2009). This was presented to Parliament pursuant to sections 12–14 of the CCA.
4 DECC, The Carbon Plan (HM Government, 2011).
5 A statute is a written law passed by a legislative body. In the UK, the pertinent legislative body is national Parliament, based at westminster in London.
The CCA does several large things, and many subsidiary—or smaller—things, the most important of which will be highlighted at several points in this chapter, in advance of the more detailed and in-depth exploration of the framework’s mechanisms and requirements to follow in Chapter 2. Most particularly, the CCA imposes rigorous greenhouse gas emissions reduction targets on the UK, doing so in a way where these cumulative targets provide blanket coverage of all of the state’s socio-economic sectors. Thus, the framework transposes cornerstone elements of the UK’s national decarbonisation programme into legally binding duties: it commits the UK nationally to an ‘interim’ emissions reduction target, set as a 34% binding greenhouse gas reduction target that is to be met by the date of 2020,6 and it also commits the UK to a more distant 80% emissions reduction target, set for the date of 2050.7 These reduction percentages are measured from 1990 baseline emissions levels.8 The framework also creates and applies a carbon budget system, which introduces fnite emission units that are to be steadily reduced over fve-year budgeting periods.9 These target percentages, the carbon budget system and other key mechanisms are outlined and explored in greater detail in Chapter 2. Further, the next chapter will outline and consider the UK’s Committee on Climate Change (hereafter ‘CCC’), which has also been created under the terms of the Act. The CCC is a public body that is independent of government, which scrutinises and monitors the decarbonisation process and provides expert advice to UK Government and other key governance actors.10
As just noted above, the CCA adopts a broad approach that endeavours to provide blanket coverage of all of the state’s socio-economic sectors. So, for instance, the CCA has a direct impact upon the transport sector, the agricultural sector, industry, and so on. It will become apparent from the analysis of the substance of the CCA in Chapter 2 that this blanket-style approach can be construed as a ‘skeleton’ framework that facilitates a potentially broad range of targeted and/or pragmatic politicallegal action in the sphere of environmental governance; in realising and employing aspects of these existing capacities for innovative action,
6 CCA, s.5(1)(a).
7 Ibid., s.1(1).
8 See further Chapter 2.
9 CCA, ss.4–10. Discussed in Chapter 2.
10 The CCC’s main advisory elements are set out at CCA, ss.33–35 and s.38.
within the framework’s permitted parameters, such action serves to put fesh on the bones of the skeleton framework and contributes towards the achievement of practical outcomes. In addition to blanketing the UK’s socio-economic sectors, the framework also blankets the UK geographically, that is, the regime covers and applies to the UK as a whole, rather than, for example, being restricted to England and wales only.11
In terms of specifc sectoral coverage, this introductory book to the CCA is concerned to hone in most particularly on the sector that has received most attention to date in the context of climate governance, the energy sector.12 The compound term ‘energy sector’ can be defned in many ways, and ‘energy’ itself is a rather elastic and nebulous word that might arguably encompass many things13; however, in the present book the ‘energy sector’ should be understood in a narrow conventional sense, such that it refers to processes, practices and issues pertaining to the generation of electricity and heat. 14 Further, ‘decarbonisation’ of the energy sector refers to the mitigation or removal of greenhouse gases from power generation. This said, it will also be seen over the course of this introduction that, while the CCA is heavily concerned with climate change mitigation, it is also concerned particularly with the issue of adaptation, that is, the need to adapt to the tangible problems and severities arising as a consequence of climate change.
It has been noted in the Preface to this book that the energy sector has been chosen to occupy the central sectoral focus of consideration because energy generation constitutes the single largest source of greenhouse gas emissions in the UK, and it is also the single largest source across the EU and the international community taken generally. Thus, it is the sector that is being most directly and pervasively targeted under the terms of the CCA at the present time, and the decarbonisation of the energy sector stands as a high priority if the Low Carbon Transition is to succeed effectively.
11 See CCA, s.99, ‘Extent’.
12 See further r. Fouquet (ed.) Handbook on Energy and Climate Change (Edward Elgar, Cheltenham, 2013).
13 ‘Energy’ can take a wide range of forms, and it is consequently especially diffcult to defne, see, e.g., J. Andrews, N. Jelley, Energy Science (2nd edition, oxford University Press, 2013), Chapter 1, ‘An Introduction to Energy Science’, pp. 1–19.
14 See further, e.g., T.L. Muinzer, G. Ellis, ‘Subnational Governance for the Low Carbon Energy Transition: Mapping the UK’s “Energy Constitution”’ 35(7) Environment and Planning C 1176 (2017), p. 1177.
2
It has been highlighted above that the UK has a national Low Carbon Transition strategy in place and that the CCA translates key aspects of this strategy into legally binding national commitments, including the imposition of rigorous greenhouse gas emissions reduction targets upon the UK as a whole.15 In terms of environmental policy and law, the CCA is an immensely signifcant legal instrument, for it manifested in law the frst long-term legally binding national reduction targets imposed by one nation upon itself in the world. It is not only a complicated piece of legislation in its own right, which contains 101 sections and 8 Schedules and exceeds 30,000 words in length, but the extent of the merits of the legal form in which it has been crafted have been the subject of some disagreement amongst experts, as evoked by the contrast between lawyer Harriet Townsend’s suggestion that the Act might be viewed as ‘something to be proud of’16 and lawyer Peter McMaster’s view that aspects of the framework are ‘legislation at its worst’.17
At any rate, and regardless of one’s view of technical legal elements or micro-aspects of the overall framework, there is no question that Friends of the Earth’s description of the CCA as a ‘huge step in the fght against climate change’18 at the time of its creation in 2008 is appropriate. In order to appreciate more fully the framework’s values and limitations, and to assess the means by which it came into being and its associated overall sense of development, it is necessary to understand the background to the CCA’s creation. It should also be noted that an awareness of the CCA’s background and emergence might be drawn on usefully as a means of providing insight and offering lessons to governance actors in other states or within international bodies that are intending to press for the adoption of similar approaches in their respective countries or jurisdictions. Thus, for example, the CCA’s emergence might potentially
15 CCA, s.1(1) requires the net UK carbon account for the year 2050 to be at least 80% below 1990 baseline levels; s.5(1)(a) initially set a 26% reduction fgure on 1990 levels for 2020, which was subsequently adjusted up to 34% by s.2 of the Climate Change Act 2008 (2020 Target, Credit Limit and Defnitions) order 2009.
16 H. Townsend, ‘The Climate Change Act 2008: Something to Be Proud of After All?’ 7(8) Journal of Planning and Environmental Law 842 (2009).
17 P. McMaster, ‘Climate Change—Statutory Duty or Pious Hope?’ 20(1) Journal of Environmental Law 115 (2008).
18 Public statement released by Friends of the Earth UK’s climate team in 2008.
extrapolate to some extent to other states that are considering adopting a similar climate governance model; such lessons might prove useful not only for policy makers and government offcials, but also for actors within states that might be endeavouring to press governments to engage in robust climate action, such as NGos19 and other elements of the general environmental lobby (including sections of the general public).
UK Parliament is ‘bicameral’, being composed of two houses that jointly create legislation, the House of Commons and the House of Lords. Although the UK is a monarchy, where a Queen or King acts as Head of State,20 ultimate authority, described in the UK as ‘legislative supremacy’, is vested in the House of Commons and the House of Lords. Legislation that is ‘passed’—that is, created into law—by UK Parliament will typically go through a process where the initial proposed legislation will frst exist as a Bill that will be debated and reviewed a number of times, with signifcant adjustments and revisions commonly being applied over the course of this process, and ultimately the Bill, if it is allowed to proceed, which is not always the case, will become an Act of law. Acts will not necessarily come into force at the moment of their creation, since it is frequently the case that what is known as the ‘commencement’ of an Act, or parts of an Act, will be delayed, staggered or phased in gradually. In the case of the CCA itself, ‘commencement’ is dealt with at section 100, and the provisions of the framework came into force over 2008–2009.21 In general, the nuts and bolts of the Act’s regime were up and running relatively quickly.
The CCA was not the UK’s frst attempt at crafting a climate governance regime, and as such it replaced the UK’s pre-existing governance architecture, although that original architecture was considerably less stringent, rather loose, and was founded foremost upon policy. The CCA, by contrast, is a rigorous, binding and coherent legal framework, and has greatly improved upon what had preceded it. Karla Hill has highlighted key features of the UK’s pre-CCA climate governance regime in an insightful review of the CCA and its general implications produced for ClientEarth, the infuential environmental NGo that
19 An NGo is a ‘Non-Governmental organisation’, that is, a non-proft group that operates independent of government and that normally seeks to promote some aspect of human (or environmental) welfare.
20 At the time of writing, the monarch and Head of State is Queen Elizabeth II.
21 See further the provision made for ‘commencement’ at s.100 of the CCA.
operates major offces in London and elsewhere internationally.22 She notes that the UK had adopted a national climate change programme in 2000,23 which was revised in 2006,24 and that UK Government had produced energy white papers in 200325 and 200726 that expressed the need and intention to reduce greenhouse gas emissions from energy, in addition to recognising other problems such as a need for greater energy security and affordability.
Signifcant recognition concerning the important events that would set the creation of the Bill in motion that was to become in turn the world’s most pioneering climate Act must be accorded to the NGo sector. Most importantly, Friends of the Earth UK was instrumental in galvanising support for a Climate Change Bill. The primary methods used by the infuential environmental campaign group included employing targeted and sustained social campaigning that served to raise consciousness and stimulate support around the issue of the creation of a comprehensive climate framework in the public and non-governmental sector.27 Simultaneously, high-profle lobbying targeted at UK Government and the political arena more generally ensured that some degree of pressure to take action on the issue was being built up around politicians, government offcials and associated powerful interest groups.
Friends of the Earth UK began by pressing for the creation of a comprehensive climate change law in April 2005 and shortly after in May launched a Big Ask campaign to push its position. This was augmented by the formation in July 2005 of the Stop Climate Chaos coalition, which drew various NGo s together behind a progressive climate mitigation agenda.28 This Big Ask campaign, formed around a coherent,
22 K. Hill, The UK Climate Change Act 2008 Lessons for National Climate Laws (London, ClientEarth, 2009), see ‘Background’, p. 9.
23 See DETr, Climate Change: The UK Programme (HM Government, 2000).
24 DEFrA, Climate Change: The UK Programme 2006 (HM Government, 2006).
25 DTI, Our Energy Future Creating a Low Carbon Economy (HM Government, 2003).
26 DTI, Meeting the Challenge: A White Paper on Energy (HM Government, 2007).
27 A summary media and public release document produced by Friends of the Earth entitled The Big Ask Campaign: A Brief History of the Campaign for a New Climate Change Law is available from the organisation on request and provides a useful chronology of the unfolding campaign.
28 See N. Carter, ‘The Party Politicization of Climate and Energy Policy in Britain’, pp. 66–82, in G. Leydier, A. Martin (eds.) Environmental Issues in Political Discourse in Britain and Ireland (Cambridge Scholars, Newcastle, 2013), p. 74.
positive and impassioned pro-climate action message, was disseminated and expanded not only through the slight remove of print media, the Internet, and so on, but also through a range of well-organised and participatory public events. The campaign served to create a good focal point that allowed ideas and energies to come together behind a coherent cause, including at the ‘grassroots’ level through the manner in which it stimulated, cultivated and absorbed growing public interest.29 Friends of the Earth was also able to draw on its relatively well-developed network of members, activists and volunteers across the UK in order to promote and develop the idea across a broad geographic range.30 These ‘bottom-up’ aspects of the Big Ask campaign were complimented by the sustained lobbying of UK Government by Friends of the Earth offcials in the more elite spheres of governance, where the group enjoys some signifcant access and infuence in the UK.
Bearing these features in mind, in terms of the campaign elements that helped to galvanise the CCA, it is fair to say that its creation did not come about through the isolated lobbying of political elites, although such lobbying was certainly one distinguishing part of the process; it also drew on ‘bottom-up’ consciousness raising and mobilisation in a way that served to usefully motivate and gather public interest and action. It is also notable that Friends of the Earth UK sustained its campaign pressure over the course of what would become the Climate Change Bill’s passage into an Act (discussed below). Again, this included sustained ‘grassroots’ consciousness raising and bottom-up pressure in addition to sustained high-level pressure focused on UK Government and the elite political arena. In discussing how Friends of the Earth pressed members of the public to lobby their MPs31 in order to advocate for the strengthening of the climate legislation throughout the legislative process, Karla Hill records that by the time the Act was passed approximately 50,000
29 For further discussion of the Big Ask, see G. Haq and A. Paul, Environmentalism Since 1945 (routledge, oxford, 2012), pp. 21–22.
30 Friends of the Earth Scotland, which operates more independently than the group’s equivalent branches in England, Northern Ireland and wales, was able to feed the Scottish dimension of the Big Ask campaign into the creation of a special subnational Climate Act for Scotland, which enhances the operation of the CCA in that region; this Scottish legislation is examined in detail in Chapter 3
31 MPs are Members of Parliament, elected by the public in the UK to represent them in the national Parliament.
people had written to UK Government in support of the legislation.32 This occurred in a period where the then Labour government was endeavouring to exhibit leadership in engaging with the problem of climate change (including by tabling climate change issues to feature prominently at the G8 summit hosted by the UK at Gleneagles in July 2005), and where the then Conservative Party leader (and subsequently UK Prime Minister) David Cameron was endeavouring to alter perceptions of his own party by augmenting the Conservatives’ ‘green’ credentials.
A further innovative feature of this campaign occurred in early 2008, where Friends of the Earth launched the Big Ask campaign in a number of countries across Europe in an effort to export UK campaign energy and pressure with positive effect to a more international audience.33 The organisation projects a good online presence that assists people across Europe in following campaign progress and in getting involved, and asserts that ‘our Big Ask is that governments commit to reduce emissions—year on year, every year’.34 Given that Friends of the Earth International is in effect an international umbrella organisation made up of hundreds of networked environmental groups worldwide, including Friends of the Earth UK, its structure and form means that it is well placed to exert a positive infuence by these means. The European campaign has helped to encourage progressive climate governance both within and between European states, but it has not gained a degree of traction equivalent to the substantial effect exerted by the Big Ask in the UK setting.
working in conjunction with Friends of the Earth, a group of three MPs drawn from what were at that time each of UK Parliament’s three biggest parties came together in order to present a model Climate Bill in the House of Commons in April 2005. The MPs were John Gummer (now Lord Deben) of the Conservative Party, Michael Meacher of the Labour Party and Norman Baker of the Liberal Democrats.35 A parliamentary motion—that is, a proposal that is put forward for debate or decision
32 Hill, supra, n. 22.
33 See further The Big Ask Questions and Answers, at Friends of the Earth Europe, http://www.foeeurope.org/node/670
34 Quoting from the ‘Big Ask’ campaign’s homepage, hosted at the Friends of the Earth Europe, http://www.foeeurope.org/the-big-ask
35 At that time, the Labour Party was in government in the UK, led by Prime Minister Tony Blair.
in UK Parliament—urging the adoption of climate legislation was put forward, ultimately accruing strong support, specifcally from 412 MPs out of a total of 646 MPs.36 The model Bill presented by the three MPs named above at this time was not the actual Bill that directly went on to become the CCA (the UK Government published its own draft Climate Change Bill in March 2007); however, it had a degree of symbolic signifcance and genuine impact insofar as it introduced a ‘tangible’ Climate Bill into the debate. Moreover, it did so in a way that, in spite of the controversial nature of the proposals, drew to itself some sense of cross-party unity, given that it had been presented by MPs from UK Parliament’s three major parties, who are more often at loggerheads than in agreement on essential issues.
In accordance with the UK’s conventional law-making processes, UK Government published a draft Climate Change Bill for public consultation and scrutiny.37 The consultation was published on 13 March 2007, and it closed on 12 June 2007. In its offcial response to the public consultation, UK Government noted that ‘[n]early 17,000 individuals and organisations responded to the public consultation on the draft Bill’, adding that ‘[a]n overwhelming majority of respondents were supportive of the Bill’s aim to set and enable the achievement of ambitious emissions reduction targets’.38 It has been noted above that Karla Hill was commissioned to conduct an independent review of the CCA experience for ClientEarth (published 2009). Part of her research included interviews with certain parties that played a signifcant role over the course of the CCA’s development, and aspects of this work help to catch the spirit of the reasons behind the Act’s emergence. Based on an interview with an unspecifed person or persons from what was then UK Government’s Department for Energy and Climate Change,39 Hill has summarised that:
36 Early Day Motion (EDM) No. 178, 24 April 2005. See also K. Hill, supra, n. 22, p. 9.
37 HM Government, Draft Climate Change Bill, Cm 7040, March 2007.
38 DEFrA, Taking Forward the UK Climate Change Bill: The Government Response to Pre-Legislative Scrutiny and Public Consultation (HM Government, 2007), p. 6.
39 Hill records that this interview was conducted on 2 october 2009; Hill, supra, n. 22, p. 34, n. 17.
The government considers that the process of pre-legislative parliamentary scrutiny, the public consultation and the [public] campaign were useful and strengthened the [Climate Change] Bill, particularly in relation to the role of parliament and reporting requirements.40
She has also summarised as follows from an interview with Friends of the Earth UK41:
Friends of the Earth considers that the grassroots efforts, based on using its local groups and supporters to build a public campaign as well as lobbying and working with MPs who backed the initiative, were critical in securing the legislation.42
Hill adds that ‘[t]he Big Ask campaign also involved internal learning and capacity building as people working on the campaign developed their knowledge of the issues’.43 These elements and experiences articulate essential features of the background to the CCA that help to explain the means by which the framework came into being.
A further important stimulus to the Act’s creation was provided by The Stern Report, which was published in october 2006 and therefore preceded UK Government’s publication of the draft Climate Change Bill for public consultation and scrutiny in March 2007.44 The Stern Report was published and launched on 30 october 2006 by a panel that included the report’s lead author Lord Nicholas Stern, then Prime Minister Tony Blair and then Chancellor Gordon Brown. It was shortly after this, on 15 November 2006, that UK Government announced that it would produce a Climate Change Bill. while the scientifc community had by this time set out the scientifc case for redressing climate change in comprehensive terms,45 and the ethical case was being made strongly by Friends of the Earth UK, the Stop Climate Chaos coalition and many
40 Hill, ibid., p. 10.
41 Hill records that this interview was conducted on 7 october 2009; Hill, ibid., p. 34, n. 16.
42 Hill, ibid., p. 10.
43 Hill, ibid., p. 10.
44 N. Stern, et al. Stern Review: The Economics of Climate Change (HM Government, 2006).
45 See amongst numerous scientifc examples the body of major scientifc reports issued by the IPCC, discussed at supra, n. 1 above.
others, it is well known that most if not all national governments have exhibited a historic tendency to privilege short-term economic considerations disproportionately above other pressing longer-term matters, notably climate change.46 The Stern Report helped to fll a crucial gap in the overwhelming case for action that already existed at that time: it clarifed the strong economic imperative for engaging in national decarbonisation.47 As such, in identifying and elaborating a long-term economic case for climate mitigation and adaptation, the Stern Report played a vital role in infuencing the political class, while also serving to catch the ear in a meaningful way of the corporate and business lobby, and other infuential actors with vested economic interests.
Furthermore, and although the corporate and business lobby has tended towards being obstructive of progressive climate governance, with the incidence being particularly acute in the USA,48 the long-term nature of the carbon budgeting cycles that were due to underpin the framework proposed by UK Government served to some extent to reassure elements of this sector, insofar as they appeared to indicate that a degree of market certainty and stability would be locked-in over time.49
46 Given the USA’s role as both the world’s most powerful economy and the second largest emitter of greenhouse gasses (behind China), Jennifer wallace has pointed out how the acute nature of this problem in the USA serves to partially set the tone for the international community; J. wallace, ‘US Environmental Policy and Global Security’, pp. 185–195, in N.r.F. Al-rodhan (ed.) Policy Briefs on the Transnational Aspects of Security and Stability (LIT Verlag, Munster, 2007), p. 187. Discussion of this problem in the Australian context arises with reference to climate change in S. Smith, T. Dunne, A. Hadfeld (eds.) Foreign Policy: Theories, Actors, Cases (3rd edition, oxford University Press, oxford, 2016), p. 403. Governmental bias towards short-term economic interests is augmented by the role of powerful corporations that work to downplay the climate problem or outright stimulate support for climate change denial in order to preserve their own short-term economic goals, as highlighted by r.A. Schultz, Technology Versus Ecology: Human Superiority and the Ongoing Confict with Nature (IGI, Hershey, PA, 2013), p. 52.
47 on this subject in the context of the Stern Review, see also N. Stern, ‘what Is the Economics of Climate Change?’ 2(7) World Economics 1 (2006).
48 on the efforts of ExxonMobil, the Koch brothers and the Donors Trust to use their enormous fnancial resources to stimulate support for climate denial, often covertly, see Chapter 5, ‘Case Studies in the Anthropology of Climate Change’, in H. Baer, M. Singer (eds.) The Anthropology of Climate Change: An Integrated Critical Perspective (routledge, Abingdon, 2014).
49 Carbon budgeting is outlined and discussed in Chapter 2
Given the west’s relatively fundamentalist capitalist approaches to social organisation, Stallworthy has rightly stressed that investors have a key part to play in enabling an adequate response by the state to climate change, pointing out that business and industry likely require environmental policy and law to structure frameworks that not only incentivise investment, but that also maximise investor certainty.50 The economic uncertainty posed by the potential for change confronting the UK in the lead-up to the CCA’s creation was signifcant; as such, the sense of market certainty and stability represented by the long-term nature of the CCA’s carbon budgeting framework had a reassuring effect on elements of the corporate and business sector. Thus, Carter has pointed out that the Corporate Leaders Group on Climate Change seemed to exert some infuence on then Prime Minister Tony Blair in seeking for clarity in going forward, even though that clarity itself conceivably could have involved a more challenging emissions reduction framework being locked in place over time: ‘Businesses want the stability and certainty to allow them to plan and invest in becoming greener without losing competitiveness’.51 In a policy report on the CCA incorporating interview fndings from various stakeholders, Fankhauser, Averchenkova and Finnegan have recorded that ‘[t]he energy industry in particular appreciates the legal clarity in the long-term direction of travel’ provided by the Act’s substantive targets.52
The Stern Report has also served to highlight the major contribution that environmental economics can make in practice to decarbonisation at the present time; see further the discussion of carbon accounting, emissions trading schemes and associated matters in Chapter 2. Indeed, and bearing in mind that the CCA is a legal framework, in some respects the environmental economic dimensions of the climate change challenge are signifcantly comparable to environmental law: particular economic problems can be diagnosed, and economic mechanisms and solutions can
50 M. Stallworthy, ‘New Forms of Carbon Accounting: The Signifcance of a Climate Change Act for Economic Activity in the UK’ International Company & Commercial Law Review 331 (2007), p. 333.
51 N. Carter, ‘Combating Climate Change in the UK: Challenges and obstacles’ 79(2) The Political Quarterly 194 (2008), p. 200.
52 S. Fankhauser, A. Averchenkova, J. Finnegan, 10 Years of the UK Climate Change Act (Grantham research Institute and London School of Economics, 2018), p. 9.
often be devised and applied in practical ways to affect improvements, and likewise, particular legislative (or other legal) inadequacies, gaps or failings can be identifed, with opportunities to craft and apply new or developed environmental laws emerging, such that environmental law can contribute to solutions in the area in a similarly practical way.
The introduction of the Climate Change Bill to UK Parliament was announced in the Queen’s Speech in 2006 and, as noted above, the government consulted on the draft Bill in March 2007. After the conclusion of this consultation period and the process of legislative scrutiny that runs alongside it, which included the detailed examination and assessment of the Bill by parliamentary committees, UK Government issued its response to this phase in a document entitled Taking Forward the UK Climate Change Bill: The Government Response to Pre-Legislative Scrutiny and Public Consultation. 53 After being introduced at Parliament as a Bill in November 2007, the Act received royal Assent on 26 November 2008, with its major elements entering fully into force by the end of January 2009.54 The Act as it fnally appeared was designed to extend to the UK as a whole,55 committing the nation to major long-term legally binding greenhouse gas emissions reduction targets, setting a nationally binding reduction target for 2020 at 34% on 1990 levels56 and an 80% target on 1990 levels for 2050.57 It has been highlighted above that this stands as the frst instance in the world of a nation imposing major long-term binding emissions reduction targets upon itself in law (although other countries have since followed suit; see further Chapter 3).
It has also been highlighted above that the UK is presently undergoing an unprecedented Low Carbon Transition, and the CCA was intended in no small part to cement this process in law. As such, on its creation it became the main legislative embodiment of the UK’s national climate governance framework, designed with the intention of pervading emissions outputs at all levels of governance and across the UK’s full spectrum of socio-economic sectors. In addition to transposing essential aspects of the national decarbonisation programme into the legally
53 Taking Forward the UK Climate Change Bill: The Government Response to PreLegislative Scrutiny and Public Consultation, Cm 7225 (The Crown, Norwich, 2007).
54 See CCA, s.100, ‘Commencement’.
55 Subject to the provisions at CCA, s.99.
56 Ibid., s.5(1)(a).
57 Ibid., s.1(1).
binding duties for 2020 and 2050 that have just been highlighted, an inter-related carbon budget system was created at Part 1 to the Act that introduces fnite emissions units.58 The upper emissions range permitted by the budgeting system is to be steadily reduced over fve-year budgeting periods. Part 2 to the CCA established the UK’s CCC,59 the non-departmental public body set in place to scrutinise the programme and provide targeted expert advice to a range of key governmental actors, including UK Government and the Devolved Administrations.60 These features, and other aspects of the substance and detail of the Act, are considered in depth in Chapter 2
The interim 34% target for 2020 had initially been set at 26%, but it was adjusted upward to 34% in early 2009. This change was applied by a type of law called an order, specifcally the Climate Change Act 2008 (2020 Target, Credit Limit and Defnitions) order 2009, with section 2(2) of the order making a lasting change to section 5(1)(a) of the CCA, such that the 34% adjustment is locked into the Act in place of the 26% that had previously appeared.61 The 2050 target has remained at a constant 80% fgure. This matter was the subject of some debate at the Bill stage, in particular as to whether the later target ought to sit at 60% rather than 80%.62 In an interesting development, it was decided to get the CCC that
58 See CCA, Part 1; discussed further in Chapter 2
59 That is, the Committee on Climate Change, as introduced earlier above.
60 robinson has encouraged the idea that the CCC could be usefully imbued with powers to compel active policy changes; however, this would overreach its fundamental purpose and require substantial adjustment to its overall role, as the CCC has been designed as an advisory and reporting body. See further G. robinson, ‘Stemming the rising Tide: Developing Approaches for UK Law and Policy to Combat Climate Change’ 2(1) Birmingham Student Law Review 27 (2017), pp. 28–29.
61 See further the Climate Change Act 2008 (2020 Target, Credit Limit and Defnitions) order 2009.
62 The issue of whether international aviation and international shipping emissions should be incorporated directly within the fnal framework also proved to be a challenging and at times contentious issue. Ultimately, it was decided that they were not to be counted directly within the UK 2020/2050 carbon accounting regime, but a power has been created where the Secretary of State can issue regulations in order to change this circumstance and incorporate them directly if so desired (see CCA, s.30). These emissions sources are, however, still taken into account when budgets are being set and the CCC is providing budgeting advice.
was due to be established under the actual terms of the CCA up and running in advance of the Act’s creation, in a modest and less formalised way than would occur when the Act was actually passed. As such, although this committee was formally constituted under the terms of the Act, it existed in a rudimentary form from March 2008 prior to the Act’s completed passage through Parliament, and UK Government was therefore able to call upon it to advise on the 2050 target level. In response, the CCC published a formal recommendation letter dated 7 october 2008 stating in no uncertain terms that ‘[t]he UK should aim to reduce Kyoto greenhouse gas emissions63 by at least 80% below 1990 levels by 2050’.64 This recommendation played some role in helping to tip the balance of argument in favour of those advocating for the more stringent reduction fgure.65
The CCA’s development intersected in the UK with the creation of the Department of Energy and Climate Change (DECC), in october 2008. DECC was established in order to address issues and concerns around energy security, energy supply and cost, and climate change within one coherent government department. In effect, it unifed climate change policy administration, which had formerly been part of the Department for Environment, Food and rural Affairs, and energy policy administration, which had formerly been part of the Department for Business, Enterprise and regulatory reform.66 Prime Minister Theresa May closed DECC in July 2016, in a move that generated widespread concern across the environmental sector.67 UK Government stated that
63 The reference to ‘Kyoto’ greenhouse gas emissions alludes to the Kyoto Protocol, an international agreement arrived at in 1997: Kyoto Protocol to the United Nations Framework Convention on Climate Change. The agreement committed the cohort of developed nations listed in Annex I of the United Nations Framework Convention on Climate Change to greenhouse gas reduction targets of a minimum of 5% below 1990 emissions levels over the years 2008–2012. See further the consideration of the international experience in Chapter 3
64 Letter from Adair Turner, Chair of the CCC, to the Secretary of State, headed Interim Advice by the Committee on Climate Change, 7 october 2008.
65 The recommendation was based on the consensus view amongst scientists as to what minimum level of action was necessary over the rest of the century in order to most likely mitigate the negative projected impacts of climate change over time.
66 This became the Department for Business, Innovation and Skills (BIS), which has now developed in turn into the Department for Business, Energy & Industrial Strategy (BEIS).
67 See further I. Johnson, ‘Climate Change Department Closed by Theresa May in “Plain Stupid” and “Deeply worrying” Move’, Independent (UK Newspaper), 14 July 2016.
the department’s functions would be absorbed into the government’s Department of Business, Energy and Industrial Strategy, although this did little to alleviate apprehension in many quarters. The BBC’s Environment Analyst, roger Harrabin, commented that ‘DECC has made the UK a world leader in climate policy, and scrapping the department removes the words “climate change” from the title of any department. out of sight, out of mind, in the basement, perhaps’.68 However, he also pointed out that: ‘here’s an opposite scenario: the UK is already bound by its Climate Change Act to step-by-step cuts in greenhouse gases through to 2050’.69 This captures something of the importance of the steadying infuence and long-term sense of certainty provided by the CCA.
3
while the CCA has been rightly praised as a pioneering legislative achievement, it has also been the subject of some debate and critical discussion amongst experts.70 In order to gain a richer understanding of the framework in general, its particular pros and cons, and the extent to which it might be transplantable to other states or international settings, it is useful to have an awareness and understanding of key aspects of the expert assessment that it has received, and of debate that has arisen in the area. It should be stressed that one is required to tread carefully with the existing critical commentary, which can occasionally be blatantly misleading. A prominent example is Pielke’s paper ‘The British Climate Change Act: A Critical Evaluation and Proposed Alternative Approach’, which according to Google Scholar citation rates (at the time of writing) is amongst the most cited pieces of scholarship on the CCA.71 Pielke argues that the Act’s substantive targets are not realistically achievable,
68 ‘Analysis—roger Harrabin, Environment Analyst’, set within the news item ‘Government Axes Climate Department’ by P. rincon, BBC News, 14 July 2016.
69 Harrabin, ibid.
70 See, e.g., Macrory’s consideration of the CCA in r. B. Macrory, ‘The UK Climate Change Act—Towards a Brave New Legal world?’ pp. 306–322, in I. Backer, o. Fauchald, C. Voigt (eds.) Pro Natura (Universitetsforlaget, oslo, 2012); Feldman’s discussion of the Act in D. Feldman, ‘Legislation which Bears No Law’ 37(3) Statute Law Review 212 (2016).
71 r.A. Pielke, ‘The British Climate Change Act: A Critical Evaluation and Proposed Alternative Approach’ 4(2) Environmental Research Letters 1 (2009).
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face as he felt that death was upon him and he could no longer speak. If he had destroyed both wills, the one when alone, the other in the face of you all, he would have shown no such emotion. He had simply been eliminating every contestant save his daughter— something which should have given him peace.”
“You are right. And as for myself I propose to keep quiet, hoping that the mystery will soon end. Do you think that the police will allow me to leave town?”
“Where do you want to go?”
“Back to work; to my desk at Meadows & Waite in New York.”
“I don’t think that I would do that. You will meet with much unpleasantness.”
“I must learn to endure cold looks and hypocritical smiles.”
“But not unnecessarily. I would advise you to take a room at the Sheldon; live quietly and wait. If you wish to write a suitable explanation to your firm, do so. There can be no harm in that.”
My heart leaped. His advice was good. I should at least be in the same town as Orpha.
“There is just one thing more,” I observed, as we were standing near his office door preparatory to my departure. “Did Edgar say whether he saw the wills themselves or, like myself, only the two envelopes presumably holding them?”
He was shown them open. Mr. Bartholomew took them one after the other from their envelopes and, spreading them out on the desk, pointed out the name of Edgar Quenton, the son of my brother, Frederick, on the one, and Edgar Quenton, the son of my brother, James, on the other, and so stood with his finger pressed on the latter while they had their little scene. When that was over, he folded the two wills up again and put them back in their several envelopes, all without help, Edgar looking on, as I have no doubt, in a white heat of perfectly justifiable indignation. “Can’t you see the picture?”
I could and did, but I had no disposition to dwell on it. A question had risen in my mind to which I must have an answer.
“You speak of Edgar looking on. At what, may I ask? At Uncle’s handling of the wills or in a general way at Uncle himself?”
“He said that he kept his eye on the two wills.”
“Oh! and did he note into which envelope the one went in which he was most interested,—the one favoring himself?”
“Yes, but the envelopes were alike, neither being marked at that time, and as his uncle jumbled them together in his hands, this did not help him or us.”
“Ah, the red mark was put on later?”
“Yes. The pencil with which he did it was found on the floor.”
I tried to find a way through these shadows,—to spur my memory into recalling the one essential thing which would settle a very vexing question—but I was obliged to give it up with the acknowledgment:
“That mark was in the corner of one of the envelopes at the time I saw them; but I do not know which will it covered. God! what a complication!”
“Yes. No daylight yet, my boy. But it will come. Some trivial matter, unseen as yet, or if seen regarded as of no account, will provide us with a clew, leading straight to the very heart of this mystery. I believe this, and you must, too; otherwise you will find your life a little hard to bear.”
I braced myself. I shrank unaccountably from what I felt it to be my present duty to communicate. I always did when there was any possibility of Orpha’s name coming up.
“Some trivial matter? An unexpected clew?” I repeated. “Mr. Jackson, I have been keeping back a trivial matter which may yet prove to be a clew.”
And I told him of the note made up of printed letters which I had found in my box of cigars.
He was much interested in it and regretted exceedingly that I had obeyed the injunction to burn it.
“From whom did this communication come?”
That I could not answer. I had my own thoughts. Much thinking and perhaps much hoping had led me to believe that it was from Orpha; but I could not say this to him. Happily his own thoughts had turned to the servants and I foresaw that sooner or later they were likely to have a strenuous time with him. As his brows puckered and he seemed in imagination to have them already under examination, I took a sudden resolution.
“Mr. Jackson, I have heard—I have read—of a means now in use in police investigation which sometimes leads to astonishing results.” I spoke hesitatingly, for I felt the absurdity of my offering any suggestion to this able lawyer. “The phial which held the poison was handled—must have been handled. Wouldn’t it show finger-prints—”
The lawyer threw back his head with a good-natured snort and I stopped confused.
“I know that it is ridiculous for me,” I began— But he cut me short very quickly.
“No, it’s not ridiculous. I was just pleased; that’s all. Of course the police made use of this new method of detection. Looked about for finger-prints and all that and found some, I have been told. But you must remember that two days at least elapsed between Mr. Bartholomew’s death and any suspicion of foul play. That such things as the glass and other small matters had all been removed and—here is the important point; the most important of all,—that the cabinet which held the medicines had been visited and the bottle labeled dangerous touched, if not lifted entirely out, and that by more than one person. Of course, they found finger-prints on it and on the woodwork of the cabinet, but they were those of Orpha, Edgar and Wealthy who rushed up to examine the same at the first intimation that your uncle’s death might have been due to the use of this deadly drug. And now you will see why I felt something like pleasure at your naïve mention of finger-prints. Of all the persons who knew of the location and harmful nature of this medicine, you only failed to leave upon the phial this irrefutable proof of having had it in your hand.
Now you know the main reason why the police have had the courage to dare public opinion. Your finger-prints were not to be found on anything connected with that cabinet.”
“My finger-prints? What do they know of my finger-prints. I never had them taken.”
Again that characteristic snort.
“You have had a personal visit, I am told, from the Inspector What do you think of him? Don’t you judge him to be quite capable of securing an impression of your finger-tips, if he so desired, during the course of an interview lasting over two hours?”
I remembered his holding out to me a cigarette case and urging me to smoke. Did I do so? Yes. Did I touch the case? Yes, I took it in hand. Well, as it had done me no harm, I could afford to smile and I did.
“Yes, he is quite capable of putting over a little thing like that. Bless him for it.”
“Yes, you are a fortunate lad to have won his good will.”
I thought of Edgar and of the power which, seemingly without effort, he exercised over every kind of person with whom he came in contact, and was grateful that in my extremity I had found one man, if not two, who trusted me.
Just a little buoyed up by my success in this venture, I attempted another.
“There is just one thing more, Mr. Jackson. There is a name which we have not mentioned—that is, in any serious connection,—but which, if we stop to think, may suggest something to our minds worthy of discussion. I mean—Clarke’s. Can it be that under his straightforward and devoted manner he has held concealed jealousies or animosities which demanded revenge?”
“I have no acquaintance with the man; but I heard the Inspector say that he wished every one he had talked to about this crime had the simple candor and quiet understanding of Luke Clarke. Though broken-hearted over his loss, he stands ready to answer any and all
questions; declaring that life will be worth nothing to him till he knows who killed the man he has served for fifteen years. I don’t think there is anything further to be got out of Clarke. The Inspector is positive that there is not.”
But was I? By no means. I was not sure of anything but Orpha’s beauty and worth and the love I felt for her; and vented my dissatisfaction in the querulous cry:
“Why should I waste your time any longer? I have nothing to offer; nothing more to suggest. To tell the truth, Mr. Jackson, I am all at sea.”
And he, being, I suspect, somewhat at sea himself, accepted my “Good day,” and allowed me to go.
XXXVIII
“There is some small fact thus far successfully suppressed, which, when known, will alter the trend of public opinion and clarify the whole situation.”
A sentence almost fatuous in its expression of a self-evident truth. One, too, which had been uttered by myself. But foolish and fatuous as it was, it kept ringing on in my brain all that day and far into the night, until I formulated for myself another one less general and more likely to lead to a definite conclusion:
“Something occurred between the hour I left Uncle’s room and my visit to his door at three o’clock in the morning which from its nature was calculated to make Edgar indifferent to the destruction of the will marked with red and Wealthy so apprehensive of harm to him that to save him from the attention of the police she was willing to sacrifice me and perjure herself before the Coroner.” What was it?
You see from declining to connect Edgar with this crime, I had come to the point of not only admitting the possibility of his guilt, but of arguing for and against it in my own mind. I had almost rather have died than do this; but the word having once passed between me and Mr. Jackson, every instinct within me clamored for a confutation of
my doubt or a confirmation of it so strong that my duty would be plain and the future of Orpha settled as her father would have it.
To repeat then: to understand this crime and to locate the guilty hand which dropped poison into the sick man’s soothing mixture it was necessary to discover what had happened somewhere in the house between the hours I have mentioned, of sufficient moment to account for Edgar’s attitude and that of the faithful Wealthy.
But one conjecture suggested itself after hours of thought. Was it not possible that while I was below, Clarke in his room, and Wealthy in Orpha’s, that Edgar had made his way for the second time into his uncle’s presence, persuaded him to revoke his decision and even gone so far as to obtain from him the will adverse to his own hopes?
Thus fortified, but still fearful of further vacillation on the part of one whose mind, once so strong, seemed now to veer this way or that with every influence brought to bear upon it, what more natural than, given a criminal’s heart, he should think of the one and only way of ending this indecision and making himself safe from this very hour.
A glass of water—a drop of medicine from the bottle labeled dangerous—a quick good-night—and a hasty departure!
It made the hair stir on my forehead to conceive of all this in connection with a man like Edgar. But my thoughts, once allowed to enter this groove, would run on.
The deed is done; now to regain his room. That room is near. He has but to cross the hall. A few steps and he is at the stair-head,—has passed it, when a noise from below startles him, and peering down, he sees Wealthy coming up from the lower floor.
Wealthy! ready to tell any story when confronted as she soon would be by the fact that death had followed his visit—death which in this case meant murder.
It was base beyond belief: hardly to be thought of, but did it not explain every fact? I would see.
First, it accounted for the empty envelope and the disappearance of the will which it had held. Also for the fact that this will could not be found in any place accessible to a man too feeble to leave his own room. It had been given to Edgar and he had carried it away.
(Had they searched his room for it? They had searched mine and they had searched me. Had they been fair enough to search his room and to search him?)
Secondly: Edgar’s restlessness on that fatal night. The watch he kept on Uncle’s door. The interest he had shown at seeing me there and possibly his reluctance to incriminate me by any absolute assertion which would link me to a crime which he, above all others, knew that I had not committed.
Thirdly: the comparative calmness with which he saw his uncle, still undecided, or what was fully as probable, confused in mind by his sufferings and the near approach of death, order the destruction of the remaining will, to preserve which and make it operative he had risked the remorse of a lifetime. He knew that with both wills gone, the third and original one which at that time he believed to be still in existence would secure for him even more than the one he saw being consumed before his eyes, viz.: the undisputed possession of the Bartholomew estate.
So much for the time preceding the discovery that crime and not the hazard of disease had caused our uncle’s sudden death. How about Edgar’s conduct since? Was there anything in that to dispute this theory?
Not absolutely. Emotion, under circumstances so tragic, would be expected from him; and with his quick mind and knowledge of the worshipful affection felt for him by every member of the household, he must have had little fear of any unfortunate results to himself and a most lively recognition of where the blame would fall if he acted his part with the skill of which he was the undoubted master.
There was but one remote possibility which might turn the tables. Perhaps, it came across him like a flash; perhaps, he had thought of
it before, but considered it of no consequence so long as it was the universally accepted belief that Uncle had died at natural death.
And this brings us to Fourthly:
Was it in accordance with my theory or the reverse, for him, immediately and before the doctor could appear, to rush upstairs in company with Orpha and Nurse Wealthy to inspect the cabinet where the medicines were kept?
In full accordance with my theory. Knowing that he must have left finger-marks there on bottle or shelf, he takes the one way to confound suspicion: adds more of his own, and passes the phial into the hands of the two who accompanied him on this very excusable errand.
Was there any other fact which I could remember which might tip the scale, so heavily weighted, even a trifle the other way?
Yes, one—a big one. The impossibility for me even now to attribute such deviltry to a man who had certainly loved the victim of this monstrous crime.
As I rose from this effort to sound the murky depths into which my thoughts had groveled in spite of myself and all the proprieties, I found by the strong feeling of revulsion which made the memory of the past hour hateful to me, that I could never pursue the road which I had thus carefully mapped out for myself. That, innocent or guilty, Edgar Quenton Bartholomew, beloved by our uncle, was sacred in my eyes because of that love, and that whatever might be done by others to fix this crime upon him, I could do nothing—would do nothing to help them even if I must continue to bear to the very end the opprobrium under which I now labored.
And Orpha? Had I forgotten my fears for her—the duty I had felt to preserve her from a step which might mean more than unhappiness —might mean shame?
No; but in that moment of decision made for me by my own nature, the conviction had come that I need not be apprehensive of Orpha marrying Edgar or marrying me while this question between us remained unsettled.
She would be neutral to the end, aye, even if her heart broke. I knew my darling.
In this mood and in this determination I remained for two weeks. I tried to divert myself by reading, and I think my love for books which presently grew into a passion had its inception in that monotonous succession of day after day without a break in the suspense which held me like a hand upon my throat.
I was not treated ill, I was simply boycotted. This made it unpleasant for me to walk the streets, though I never hesitated to do so when I had a purpose in view
Of Orpha I heard little, though now and then some whiff of gossip from Quenton Court would reach me. She had filled the house with guests, but there was no gayety. The only young person among them was Lucy Colfax, who was preparing for her wedding. The rest were relatives of humble means and few pleasures to whom life amid the comforts and splendors of Quenton Court was like a visit to fairyland. Edgar had followed my example and taken up his abode in one of the hotels. But he spent most of his evenings at the house where he soon became the idol of the various aunts and cousins who possibly would never have honored me with anything beyond a certain civility
Ere long I heard of his intention to leave town. With his position no better defined than it was, he found C—— intolerable.
I wondered if they would let him go! By they I meant the police. If they did, I meant to go too, or at least to make an effort to do so. I wanted to work. I wanted to feel my manhood once again active. I wrote to the firm in whose offices I had a desk.
This is my letter robbed of its heading and signature.
I am well aware in what light I have been held up to the public by the New York press. No one accuses me, yet there are many who think me capable of a great crime. If this were true I should be the most despicable of men. For my uncle was my good friend and made a man of me out of very indifferent material. I revered him and as my
wish was to please him while he was living so it is my present desire to do as he would have me do now that he is gone.
If on the receipt of this you advise me not to come, I shall not take it as an expression of disbelief in what I have said but as a result of your kindly judgment that my place is in my home town so long as there is any doubt of the innocency of my relations towards my uncle.
This dispatched, I waited three days for a response. Then I received this telegram: Come.
Going immediately to Headquarters, I sought out the Inspector and showed him this message.
“Shall I go or shall I not?” I asked.
He did not answer at once; seemed to hesitate and finally left the room for a few minutes. When he came back he smiled and said:
“My answer is yes. You are young. If you wait for full justification in this case, you may have to wait a lifetime. And then again you may not.”
I wrung his hand and for the next hour forgot everything but the manner in which I would make the attempt to see Orpha. I could not leave without a word of farewell to the one being for whose sake I kept my soul from despair
I dared not call without permission. I feared a rebuff at the front door; Orpha would certainly be out. Again, I might write and she might get the letter, but I could not be sure. Bliss handled the mail and—and— Of course I was unreasonably suspicious, but it was so important for me to reach her very self, or to know that any refusal or inability to see me came from her very self, that I wished to take every precaution. In pursuance of this idea I ran over the list of servants to see if there was one who in my estimation could be trusted to hand her a note. From Wealthy down I named them one by one and shook my head over each. Discouraged, I rose and went out and almost at the first corner I ran upon Clarke.
What came over me at the sight of his uncompromising countenance I do not know, but I stopped him and threw myself upon his mercy. It was an act more in keeping with Edgar’s character than with mine, and I cannot account for it save by the certainty I possessed that if he did not want to do what I requested, he would say so. He might be blunt, even accusing, but he would not be insincere or play me false.
“Clarke, well met.” Thus I accosted him. “I am going to leave town. I may come back and I may not. Will you do me this favor? I am very anxious to have Miss Bartholomew know that I greatly desire to say good-by to her, but hardly feel at liberty to telephone. If she is willing to see me I shall feel honored.”
“I have left Quenton Court for the present,” he objected. “I hope to return when it has a master.”
If he noticed my emotion at this straightforward if crude statement, he gave no sign of having done so. He simply remained standing like a man awaiting orders, and I hastened to remark:
“But you will be going there to see your old friends, to-day possibly, to-night at latest if you have any good reason for it.”
“Yes, I have still a trunk or two there. I will call for them to-night, and I will give Miss Orpha your message. Where shall I bring the reply?”
I told him and he walked off, erect, unmoved, and to all appearance totally unconscious of the fact—or if conscious of it totally unaffected by it—that he had thrown a ray of light into a cavern of gloom, and helped a man to face life again who had almost preferred death.
Evening came and with it a telephone message.
“She will see you to-morrow morning at eleven.”
XXXIX
What should I say to her? How begin? How keep the poise due to her and due to myself, with her dear face turned up to mine and possibly her hand responding to my clasp?
Futile questions. When I entered her presence it was to find that my course was properly marked out. She was not alone. Lucy Colfax was with her and the greeting I received from the one was dutifully repeated by the other. I was caught as in a trap; but pride came to my rescue, coupled with a recognition of the real service she was doing me in restraining me to the formalities of a friendly call.
But I would not be restrained too far. What in my colder moments I had planned to say, I would say, even with Lucy Colfax standing by and listening. Lucy Colfax! whose story I knew much better than she did mine.
“Cousin Orpha,” I began, with a side glance at Miss Colfax which that brilliant brunette did not take amiss, “I am going almost immediately to New York to take up again the business in which I was occupied when all was well here and my duty seemed plain. Inspector Redding has my address and I will always be at his call. And at that of any one else who wants me for any service worth the journey. If you—” a little catch in my voice warned me to be brief. “If you have need of me, though it be but a question you want answered, I will come as readily as though it were a peremptory summons. I am your cousin and there is no reason in the world why I should not do a cousin’s duty by you.”
“None,” she answered. But she did not reach out her hand. Only stood there, a sweet, sane woman, bidding good-by to a friend.
I honored her for her attitude; but my heart bade me begone. Bowing to Miss Colfax whose eyes I felt positive had never left my face, I tried to show the same deference to Orpha. Perhaps I succeeded but somehow I think I failed, for when I was in the street again all I could remember was the surprised look in her eyes which yet were the sweetest it had ever been my good fortune to meet.
XL
It was a dream,—nothing else—but it made a very strong impression upon me. I could not forget it, though I was much occupied the next
morning and for several days afterwards. It was so like life and the picture it left behind it was so vivid.
What was the picture? Just this; but as plain to my eye as if presented to it by a motion-picture film. Orpha, standing by herself alone, staring at some object lying in her open palm. She was dressed in white, not black. This I distinctly remember. Also that her hair which I had never seen save when dressed and fastened close to her head, lay in masses on her shoulders. A picture of loveliness but of great mental perplexity also. She was intrigued by what she was looking at. Astonishment was visible on her features and what I instinctively interpreted as alarm gave a rigidity to her figure far from natural to it.
Such was my dream; such the picture which would not leave me, nor explain itself for days.
I had got well into the swing of work and was able, strange as it may seem, to hold my own in all business matters, notwithstanding the personal anxieties which devoured my mind and heart the moment I was released from present duty. I had received one or two letters from Mr. Jackson, which while encouraging in a general way, added little to my knowledge of how matters in which I was so concerned were progressing in C——. Edgar was no longer there. In fact, he was in the same city as myself, but for what purpose or where located he could not tell me. The press had ceased covering the first page with unmeaning headlines concerning a tragedy which offered no new features; and although there was a large quota of interested persons who inveighed against the police for allowing me to leave town, there were others, the number of which was rapidly growing, who ventured to state that time and effort, however aided by an inexhaustible purse, would fail to bring to light any further explanation of their leading citizen’s sudden death, for the very good reason that there was nothing further to bring out,—the doctor’s report having been a mistaken one, and the death simply natural,— that is, the result of undue excitement.
“But there remain some few things of which the public is ignorant.”
In this manner Mr. Jackson ended his last letter.
XLI
There remain some few things of which the public is ignorant. This was equally true of the police, or some move would have been made by them before this.
The clew afforded by the disappearance simultaneously with that of the will of a key considered of enough importance by its owner to have been kept upon his person had evidently led to nothing. This surprised me, for I had laid great store by it; and it was after some hours of irritating thought on this subject that I had the dream with which I have opened this account of a fresh phase in my troubled life.
Perhaps, the dream was but a natural sequence of the thought which had preceded it. I was willing to believe so. But what help was there in that? What help was there for me in anything but work; and to my work I went.
But with evening came a fresh trial. I was walking up Broadway when I ran almost into the arms of Edgar. He recoiled and I recoiled, then, with a quick nod, he hurried past, leaving behind him an impression which brought up strange images. A blind prisoner groping in the dark. A marooned sailor searching the boundless waste for a ship which will never show itself above the horizon. A desert wanderer who sees the oasis which promises the one drop of water which will save him fade into ghastly mirage. Anything, everything which bespeaks the loss of hope and the approach of doom.
I was struck to the heart. I tried to follow him, when, plainly before me—as plainly as he had himself appeared a moment previous, I saw her standing in a light place looking down at something in her hand, and I stopped short.
When I was ready to move on again, he was gone, leaving me very unhappy. The gay youth, the darling of society, the beloved of the finest, of the biggest-natured, and, above all, of the tenderest heart I knew—come to this in a few short weeks! As God lives, during the days while the impression lay strongest upon me, I could have cursed the hour I left my own country to be the cause, however innocently, of such an overthrow.
That he had shown signs of dissipation added poignancy to my distress. Self-indulgence of any kind had never been one of his failings. The serpent coiled about his heart must be biting deep into its core to drive one so fastidious into excess.
Three days later I saw him again. Strange as this may seem in a city of over a million, it happened, and that is all there is to it. I was passing down Forty-second Street on my way to the restaurant I patronized when he turned the corner ahead of me and moved languidly on in the same direction. I had still a block to walk, so I kept my pace, wondering if he could possibly be bound for the same eating-place, which, by the way, was the one where we had first met. If so, would it be well for me to follow; and I was yet debating this point when I saw another man turn that same corner and move along in his wake some fifty feet behind him and some thirty in front of me.
This was a natural occurrence enough, and would not even have attracted my attention if there had not been something familiar in this man’s appearance—something which brought vividly to mind my former encounter with Edgar on Broadway. What was the connection? Then suddenly I remembered. As I shook myself free from the apathy following this startling vision of Orpha which, like the clutch of a detaining hand, had hindered my mad rush after Edgar, I found myself staring at the face of a man brushing by me with a lack of ceremony which showed that he was in a hurry if I was not. He was the same as the one now before me walking more and more slowly but still holding his own about midway between us two. No coincidence in this. He was here because Edgar was here, or—I had to acknowledge it to myself—because I was here, always here at this time in the late afternoon.
I did not stop to decide on which of us two his mind was most set— on both perhaps—but pursued my course, entering the restaurant soon after the plain clothes man who appeared to be shadowing us. Edgar was already seated when I stepped in, but in such a remote and inconspicuous corner that the man who had preceded me had to look covertly in all directions before he espied him. When he did, he took a seat near the door and in a moment was lost to sight behind the newspaper which he had taken from his pocket. There being but one empty seat, I took it. It, too, was near the door.
It seemed a farce to order a meal under these circumstances. But necessity knows no law; it would not do to appear singular. And when my dinner was served, I ate it, happy that I was so placed that I could neither see Edgar nor he me.
The man behind the newspaper, after a considerable wait, turned his attention to the chafing-dish which had been set down before him. Fifteen minutes went by; and then I saw from a sudden movement made by this man that Edgar had risen and was coming my way. Though there was some little disturbance at the time, owing to the breaking up of a party of women all seeking egress through the same narrow passage, it seemed to me that I could hear his footsteps amid all the rest, and waited and watched till I saw our man rise and carelessly add himself to the merry throng.
As he went by me, I was sure that he gave me one quick look which did not hinder me from rising, money in hand, for the waiter who fortunately stood within call.
My back was to the passage through which Edgar must approach, but I was sure that I knew the very instant he went by, and was still more certain that I should not leave the place without another encounter with him, eye to eye.
But this was the time when my foresight failed me. He did not linger as usual to buy a cigar, and so was out of the door a minute or two before me. When I felt the pavement under my feet and paused to look for him in the direction from which he had come, it was to see
him going the other way, nonchalantly followed by the man I had set down in my mind as an agent of police.
That he really was such became a surety when they both vanished together around the next corner. Edgar was being shadowed. Was I? I judged not; for on looking back I found the street to be quite clear.
XLII
That night, the vision came for the third time of Orpha gazing intently down at her open palm. It held me; it gripped me till, bathed in sweat, I started up, assured at last of its actual meaning. It was the key, the missing key that was offered to my view in my darling’s grasp. She had been made the repositor of it—or she had found it—and did not know what to do with it. I saw it all, I was practical; above all else, practical.
However, I sent this letter to Mr. Jackson the next morning: “What have the police done about the key? Have they questioned Miss Bartholomew?” and was more restless than ever till I got the reply.
Nothing doing. Clarke acknowledges that Mr. Bartholomew carried a key around with him attached to a long chain about his neck. He had done so when Clarke first entered his service and had continued to do so ever since. But he never alluded to it but once when he said: “This is my secret, Clarke. You will never speak of it, I know.”
Asked when he saw it last, he responded in his blunt honest way, “The night he died. It was there when I prepared him for bed.” “And not when you helped the undertaker’s men to lay him out?” “No, I think I would have seen it or they would have mentioned it if it had been.”
Urged to tell whether he had since informed any one of the existence and consequent disappearance of this key, his reply was characteristic. “No, why should I? Did I not say that Mr Bartholomew spoke of it to me as his secret?” “Then you did not send the letter received in regard to it?” His eyes opened wide, his surprise appeared to be genuine. “Who—” he began; then slowly and
repeatedly shook his head. “I wrote no letter,” he asserted, “and I didn’t know that any one else knew anything about this chain and key.” “It was not written,” was the retort; at which his eyes opened wider yet and he shook his head all the more vigorously. “Ask some one else,” he begged; “that is, if you must know what Mr. Bartholomew was so anxious to have kept secret.” Still loyal, you see, to a mere wish expressed by Mr. Bartholomew.
I have given in detail this unofficial examination of the man who from his position as body servant must know better than any one else the facts about this key. But I can in a few words give you the result of questioning Miss Bartholomew and the woman Wealthy,—the only other two persons likely to share his knowledge. Miss Bartholomew was astonished beyond measure to hear that there was any such key and especially by the fact that he had carried it in this secret way about with him. Wealthy was astonished also, but not in the same way. She had seen the chain many times in her attendance upon him as nurse, but had always supposed that it supported some trinket of his dead wife, for whom he seemed to have cherished an almost idolatrous affection. She knew nothing about any key.
You may rely on the above as I was the unofficial examiner; also why I say “Nothing doing” to your inquiries about the key. But the police might have a different story to tell if one could overcome their reticence. Of this be sure; they are working as they never have worked yet to get at the core of this mystery and lift the ban which has settled over your once highly reputed family.
XLIII
So! the hopes I had founded upon my dream and its consequent visions had all vanished in mist. The clew was in other hands than Orpha’s. She was as ignorant now as ever of the existence of the key, concerning which I had from time to time imagined that she had had some special knowledge. I suppose I should have been thankful to see her thus removed from direct connection with what might involve her in unknown difficulties. Perhaps I was. Certainly there was nothing more that I could do for her or for any one; least of all
for myself. I could but add one more to the many persons waiting, some in patience, some in indignant protest for developments which would end all wild guessing and fix the blame where it rightfully belonged.
But when it became a common thing for me to run upon Edgar at the restaurant in Forty-second Street, sometimes getting his short nod, sometimes nothing but a stare, I began to think that his frequent appearance there had a meaning I could safely associate with myself. For under the obvious crustiness of this new nature of his I observed a quickly checked impulse to accost me—a desire almost passionate to speak, held back by scorn or fear. What if I should accost him! Force the words from his lips which I always saw hovering there? It might precipitate matters. The man whom I had regarded as his shadow was no longer in evidence. To be sure his place might have been taken by some one else whom I had not yet identified. But that must be risked. Accordingly the next time Edgar showed himself at the restaurant, I followed him into his corner and, ignoring the startled frown by which I was met, sat down in front of him, saying with blunt directness which left him no opportunity for protest.
“Let us talk. We are both suffering. I cannot live this way nor can you. Let us have it out. If not here, then in some other place. I will go anywhere you say. But first before we take a step you must understand this. I am an honest man, Edgar, and my feeling for you is one from which you need not shrink. If you will be as honest with me—”
He laughed, but in a tone totally different from the merry peal which had once brought a smile from lips now buried out of sight.
“Honest with you?” He muttered; but rose as he said this and reached for his overcoat, to the astonishment of the waiter advancing to serve us.
Laying a coin on the table, I rose to my feet and in a few minutes we were both in the street, walking I knew not where, for I was not so well acquainted with the city as he, and was quite willing to follow where he led.
Meantime we were silent, his breath coming quickly and mine far from equable. I was glad when we paused, but surprised that it was in the middle of a quiet block with a high boarded fence running half its length, against which he took his stand, as he said:
“Why go further? You have seen my misery and you want to talk. Talk about what? Our uncle’s death? You know more about that than I do; and more about the will, too, I am ready to take my oath. And you want to talk! talk! You—”
“No names, Edgar. You heard what I said at the inquest. I can but repeat every word of denial which I uttered then. You may find it hard to believe me or you may be just amusing yourself with me for some purpose which I find it hard to comprehend. I am willing it should be either, if you will be plain with me and say your say. For I am quite aware, however you may seek to hide it, that there is something you wish me to know; something that would clear the road between us; something which it would be better for you to speak and for me to hear than this fruitless interchange of meaningless words which lead nowhere and bring small comfort.”
“What do you mean?” He was ghastly white or the pale gleam from the opposite lamp-post was very deceptive. “I don’t know what you mean,” he repeated, stepping forward from the closely boarded fence that I might not see how he was shaking.
“I am very sorry,” I began; then abruptly, “I am sure that you do know what I mean, but if you prefer silence,—prefer things to go on as they are, I will try and bear it, hoping that some of these mysteries may be cleared up and confidence restored again between us, if only for Orpha’s sake. You must wish that too.”
“Orpha!” He spoke the word strangely, almost mechanically. There was no thought behind the utterance. Then as he looked up and met my eye, the color came into his cheeks and he cried:
“Do not remind me of all that I have lost. Uncle, fortune, love. I am poorer than a beggar, for he—”
He pulled himself up with a jerk, drew a deep breath and cast an uneasy look up and down the street.
