Cynulliad Cenedlaethol Cymru

Can I welcome Members to the meeting, and can I remind people to set their mobile phones to silent and turn off any other electronic equipment that may interfere with broadcasting equipment? Any declarations of interest? We've had an apology from Simon Thomas, and there's no substitution. I'm waiting for Dai to say, 'Yes, there's no substitution'.

Yes.

Thank you.

Can I welcome our witnesses? Can I ask you to give your names and job titles for the record? You've been asked to prepare, or you've offered to prepare, or you have prepared—I'm not quite sure which order that is—an opening statement. So, if you would like to make your presentations, and then would you be prepared just to answer a few questions after that? Who's going to go first?

Shall I go first? I'm Dr Victoria Jenkins. I'm an associate professor at Swansea University. I've put forward a paper. I hope to focus on the Welsh perspective because my colleague here, Maria Lee, from a university in London, is a specialist in terms of UK environmental governance principles. So, I've tried to focus on the Welsh perspective and how these issues relate to our current frameworks for sustainable development and the sustainable management of natural resources.

In terms of environmental governance, my starting point was the paper by Macrory and Bryce for the UK Environmental Law Association, which is an organisation that I'm also involved in, where they talk about thinking imaginatively about our new arrangements for governance, rather than just focusing very narrowly on perhaps what the commission is doing and how we replicate that. I think that's a good starting point. I think, in Wales, there's going to be a lot of attention to the role of the future generations commissioner because she obviously has a role there in terms of contributing to, and ensuring, that we meet the goal in terms of environmental resilience. I have some concerns about her role being extended to this new perspective on environmental governance because, at the end of the day, that environmental resilience goal—or the resilience goal, as it's called—is only one of seven statutory goals, and it's in the nature of sustainable development that it's very much about integration and it's very much about the balance of objectives. So, environment, in a sense, might be lost in that if we then extend her role to this, or might provide some conflict for her in that respect.

It's also important, I think, that, in environmental protection—although environmental protection is a complex issue, it's not as complex as sustainable development. We can narrow it down to specific and very detailed standards, and that means that reporting mechanisms are really quite different to what we would expect of a governance model for sustainable development. And that then also leads us to perhaps a different approach in terms of accountability and enforcement. So, I do think that what we're dealing with is quite different in that respect.

Then, turning to the principles, it's my belief that the core principles should be considered to be prevention, the precautionary principle, and the polluter-pays principle, because those are the ones that are agreed at an international level, as well as at the EU level. I think, if we introduce a lot of principles, it could lead to a situation where we might have some conflict between them, and it might be, again, difficult to balance them. And also, I think, from a Welsh perspective, it would be easier in terms of then allowing more devolved approaches.

Of course, Wales now has a set of principles for sustainable development and a set of principles for sustainable management of natural resources. On those principles, the principles that we have in Wales already, I think they do fit very well with—. I've done a sort of mapping exercise, and you can see that we fit well with the preventative principle, and, to some extent, the precautionary principle, but I do think there's a gap there in terms of the polluter-pays principle, and that might be something we need to think about in the future.

So, I think these three core principles, as I've referred to them, should be considered to provide the framework for the UK going forward, and particularly that they underline the common frameworks that we are also discussing at the moment. I think that those principles should guide us in terms of policy making, creation of law. If we are to replicate what's currently happening at the European Union level, we need to ensure that they're an aid to interpretation. That, I think, will be a challenge, and perhaps that's something Maria can talk about further, because of the difference in terms of the approach to interpretation in the court of justice and in the UK courts.

Thank you very much.

Thank you. I'm Maria Lee and I'm a professor of law at University College London. I looked at the very helpful questions that we were sent, and I hope I'm going to more or less address all of those as I go forward. There are two main things that I think you're asking for: one is the accountability of public bodies for their environmental commitments after Brexit, and then there's the related question of the role of the environmental principles.

I think it's quite right, actually, to be focusing on accountability mechanisms, because environmental law is a completely empty letter without them, and there is now, I think, some urgency about putting the laws and the institutions in place that will ensure accountability. Laws and institutions, not fine words—it's getting quite urgent, I think.

You've probably seen the paper I sent in. I think there is a third issue, which is relevant to your broader work, which is about future governance: how we craft new environmental standards when we no longer participate in the EU's processes, institutions and bodies. This raises the same sorts of governance issues as the backward-looking accountability. My own view is that good standard setting needs to be thought about now. It requires—. Good standard setting should be inclusive, it should be expert, it should be outward looking, and it should be principled.

But, back to accountability, implementation and enforcement, how do we replace the functions currently being performed at EU level? First of all, the banal, day-to-day institutional regimes of environmental agencies are crucial. We need to ensure, as is currently the case under EU law, that there are statutory obligations on public bodies to articulate how they intend to comply with their environmental commitments, to report on how they have complied with their environmental commitments, or haven't, and have an iterative process of planning and reporting. The planning and reporting should be public, it should be detailed and it should take place within defined time frames. Planning and reporting are an useful mechanism for civil society, as civil society tries to hold public bodies to account, but, in addition, these plans and reports should go to a named public body that has the resources and the expertise to scrutinise those plans and reports properly.

I think it's widely accepted—not completely accepted, but widely accepted in principle—that a new environmental body will be necessary to hold public bodies to account after Brexit. Existing bodies lack either the independence—so Natural England can't hold itself to account—or the powers and duties to do that job, or, as Victoria said, they may have too many powers and duties to do that job properly. The new environmental body needs to be independent, it needs to be well resourced and it needs to be expert.

There is no perfect way of getting that balance between funding and independence, but there are some imperfect mechanisms that we should turn to. So, I think there should be a statutory body, so you can't abolish it by press release. There should be multiple public sources of funding— different Government departments, the devolved administrations, even Parliaments and Assemblies, should contribute to the funding. It's a more robust body if it's not just one institution that can pull the rug from under it. Another common but imperfect way of trying to ensure independence is to have accountability to Parliaments, not to Governments. So, that might be important as well.

The new environmental body needs adequate powers and duties. Dialogue will be crucial, but it needs to be backed up by teeth. It should respond publicly to all the reports it receives from environment agencies. It should also have the power to undertake its own investigations. Having the power to undertake its own investigations implies a power to hear complaints from the public, I think.

Relevant parties should be obliged to respond to the new environmental body's reports. This reporting, this trustworthy, expert, detailed reporting, enhances political accountability. It helps you; it helps broader civil society.

Legal accountability is important too, so there should be, for example, powers to demand compliance, powers to demand remedial action, powers to bring judicial review, powers to intervene in judicial review. There's a longer list; they're the things that I think are most significant.

You asked how many bodies. The 25-year plan suggests an England-only body, which suggests four, because the whole of the UK should be accountable after Brexit. However—obviously, this is constitutional and political, but, from a governance perspective, I think there's great strength in a single UK-wide public body. It provides peer review, shared authority, which strengthens the accountability mechanism. That, in turn, necessarily implies joint design and joint administration between the four nations, I think.

Timing—you raise it in your questions. This should be in place on the day the UK leaves the European Union, because we don't really know what the European Union is going to do in terms of accountability during the transition period. It's less than a year; that doesn't seem very plausible to me, but perhaps it is. Given everything else that needs to be done, I think even the transition period is going to be challenging—even getting it in place by the end of the transition period. The point is that this is quite urgent, and it's even more urgent if all four nations are to have a say, because it needs to get started. So, that's the new environmental body and accountability.

Turning to the environmental principles, I might add the integration principle to Victoria's list, but it's something to think about, certainly. The meaning and role of the principles are contested, but they aren't fancy new things, they've been around for decades and they are routine parts of environmental administration. Their roles include guiding policy development, guiding policy implementation, guiding the interpretation of legislation, structuring the exercise of discretion by public decision makers, and sometimes providing a criterion, a standard for judicial review. Context, especially legislative language, is enormously important in the way the principles are interpreted and applied. So we have to look with some caution across legislation and across jurisdictions.

I think that the environmental principles should continue to play at least their current role in UK environmental law after Brexit. It looks as if a policy statement is intended for England. I think a UK-wide policy statement would be useful, because then it could apply across devolved and retained issues. That again, obviously, implies shared ownership. It doesn't imply a Westminster policy statement that's simply applied everywhere. It implies shared ownership.

The policy statement should be underpinned by legislation. The legislation should do at least two things. First of all, it should require all public bodies to act in accordance with the national environmental principles policy statement, or whatever better name that has. The normal provisos would apply, so you don't comply with the principles if to do so would breach, for example, human rights law or any other law; you don't comply with the principles if the costs would significantly outweigh the benefits; and there are good policy reasons, sometimes, not to comply with, for example, the polluter pays principle.

The second thing the legislation should do is set out a statutory procedure by which the statement is first of all established and secondly amended and evolved. That statutory procedure should, I think, include wide public consultation and parliamentary and Assembly approval. Thank you very much.

Thank you.

Thanks very much. I'm Richard Cowell. I'm professor of environmental planning at the school of geography and planning at Cardiff University. Many thanks for inviting me to be part of this panel this morning.

I'd just like to start by clarifying where I'm coming from, and where I was coming from in the evidence note that I submitted to you. I don't think anyone would say that the EU's been faultless in its promotion of environmental sustainability, but I do share the view of most research that suggests that key features and key powers of the European institutions have contributed very significantly to improving the environmental performance of member states, including the UK. So, a key issue with Brexit is how best to create institutions in the UK that are also a force for long-term improvement in environmental performance, and that we learn the salient lessons from what made EU institutions effective in designing things here.

So, those are the concerns that I put in my evidence note. I'm not going to summarise all of that here. I did cover the environmental body and the principles. I'm just going to focus on a certain number of particular points.

On questions about the functions of the European Commission, the European Court of Justice and other EU institutions, my main point is that these had key roles, of course, in policing environmental policy implementation, such as enforcement, but also go beyond them to achieve a whole number of other things, such as monitoring, evaluation and imposing reporting requirements on member states, which, as Maria said, was an important vehicle for holding nations to account. They had an important role in developing new standards, and of course they had behind them significant pools of expertise.

I think recognising that wide range of functions is important, because treating the issue of a potential new domestic body simply as a matter of creating some kind of ombudsman for fielding complaints would only cover a narrow subset of the work that EU institutions do, and therefore there's a need to think about where those wider oversight and implementation monitoring functions would go. They could also potentially go into a new body.

In terms of the key powers, those that prove to be key ingredients of the successful European institutions include those that are monitoring accountability functions; also, scope for third parties to bring complaints and other cases; and fairly powerful mechanisms for policing compliance and ensuring remedial action, occasionally threatening fines for infraction problems. There's no doubt that those kinds of forceful powers are what has driven progress in a number of environmental policy areas in the UK, and I guess a key challenge is to see whether or not UK Governments will voluntarily be prepared to create a body with similar powers that might impose constraints upon it.

I'd also like to emphasise that the ability of any future body of any design to exercise a firm and effective implementation enforcing role would also depend to a great extent on how UK environmental policy evolves as the EU's influence diminishes. One of the things that made action by the EU effective on monitoring and enforcement was because EU legislation tended generally to have hard edges. It tended to be more likely to have clear time targets, clear timetables for implementation, and firm, measurable output targets, often underpinned by science-based monitoring. That's what made it possible to hold governments to account. Should post-Brexit environmental legislation in the UK become more vague, more discretionary and with more scope for accepting trade-offs, then holding governments to account for their implementation failures will inevitably become more difficult.

I state in my note that, of course, any new body should be adequately resourced and have a high degree of independence and access to sufficient expertise, but what I'd really like to emphasise now is that this is much more likely to be achieved and better achieved, I think, if the new body is cross-UK. So, not only do I think that the devolved Governments should help to create it, but the body itself should be cross-UK in its remit. I think this would achieve a number of positive things. It would still allow accountability to all Governments and parliamentary parties. It would achieve cross-national buy-in, but by not being the property of any single Government it would insulate the body from political pressures, and greater insurance of independence and durability. 

It's also necessary to deal with the fact that many environmental issues are cross-border, and therefore action on cross-border issues could well be essential. It would also deal with the fact that many issues link questions of environmental standards and policies to the operation of the new thing, the UK internal market, so there are crossovers there between common frameworks and internal market environmental standards, which I think push in favour of a cross-UK body. I'd argue that all of the Governments of the UK have some interest in ensuring that implementation problems in any one part do not confer economic advantage with cross-border negative spillovers on the others.

So, in many ways, as with the EU, the new environmental body could be a classic case where pooling sovereignty may be where we're gaining more power to solve the problems that we may face. It may be also the case that the need for the UK to demonstrate its compliance with any environmental aspects of the Brexit deal may mean some need for cross-UK oversight, and there's also the more mundane things such as sharing back-office functions and expertise. 

So, I think making the case for a cross-national body is very important, especially as it seems possible that the proposals coming out of the Department for Food, Rural Affairs and Agriculture will be England-only in the first instance, and if the transition period does give us more time—and I'm not saying we should treat it as though it does—then using that time to develop a cross-UK body would be well spent. We should perhaps start thinking of transition as not something that applies to UK-EU relations, but managing well the issues created by devolution too. I think rushing to a solution that, in the short term, that just creates a body in different parts of the UK, because that's swift and it's consistent with devolution, would mean we leave the EU and end up with a framework for environmental governance that is more fragmented, weaker and vulnerable. 

In terms of the principles, I share with Victoria the list of what those might be, and I certainly support the idea that a way is found to retain core European environmental principles in the UK. Consideration should be given to the principle of subsidiarity, particularly given the need to deal with issues around common frameworks. Ideas coming out of DEFRA around environmental net gain may have interesting policy-forcing potential. 

Many would say that what gave the EU environmental principles their force and relevance was an overarching commitment enshrined in the Lisbon treaty to aim for high levels of environmental protection, and things like that also need to be considered. It would deal with the fact that simply going for a non-regression principle doesn't really have much provision for ambition within it. 

On whether the principle should be retained in legislation by some other means, this is an issue that I defer on to people who are much more clearly legal experts than I am, but in many ways principles have perhaps a wider role in terms of giving coherence, purpose and direction to policy, helping us make decisions, helping to resolve problems and working out what to do when new issues arise. Of course, the environment may generate a whole number of those. 

In fact, a major function of principles in any state is that they can provide us with some kind of policy resources that are available for anyone to use to make legitimate arguments to resolve problems and to promote innovative new solutions—it could be Government, it could be political parties, local government or civil society. So, in a sense, they provide an argument or a set of ideas to think about what to do when trying to develop and create legitimacy for new solutions in dynamic and uncertain situations. So, my overall view is that how best to retain them in legislation or by some other means ought to be shaped by our understanding of what is required to make them be used effectively. 

Just to discuss very briefly the idea that principles might best be instituted in policy, because this seems to be where UK Government is heading, and some legal scholars seem to be quite sanguine about that—as I say, I'm not an expert in this particular field—clearly what matters is that principles and policy statements are backed up by legislation to give some clear legal relevance to decision making, so that relevant actors in the courts will be empowered to apply them. Some would say that what happens in planning is something of an analogy here and that principles are enshrined in planning policy statements; they're enshrined in national policy statements for bits of infrastructure in the English planning system, and they retain a degree of relevance there for individual decisions. 

I think the planning analogy also perhaps shows some of the downsides or the risks of enshrining principles in policy alone. Perhaps in some ways, it can be seen as diminishing their status or weight. It means that principles are at risk of being interpreted simply by the Government of the day, and that raises questions about their durability. Creating legislation goes through a more inclusive cross-party parliamentary process, and therefore might be expected to achieve wider buy-in. And a key thing you'd want in the way in which you enshrine principles is that they have potentially wide application across Government, but they're not attached to some environmental ghetto, and so it can be a device for improving environmental performance across Government as a whole.

And, of course, there may a clear read across between issues of bodies and issues of principles, in that a new environmental body would, of course, be very helpful. It may well see as one of its key roles the overseeing of the application of environmental principles to policies and decisions. 

Thank you very much. When you were talking there, I thought 1972 was an entirely different world when we went into the European Union, where the environment was of much lower interest to the public and politicians. We were a unitary state and Parliament decided everything. There's been a lot of talk by all of you about how we share control, share ownership of the four parts of the United Kingdom, with Westminster acting effectively as the English Parliament because there isn't an English Parliament. How do you see that actually happening in practice? There's quite a lot of talk about shared ownership, but sometimes shared ownership means that I'm coming to tell you what to do and you can have somebody come along who can either agree with me, or if they disagree with me, then I will overrule them. How do we stop that happening? 

I don't think you can avoid the need to create an arena in which debate over what to do between the various parts of the UK is able to happen, including dealing with the possibilities for disagreement. So, I think the nature of the problems that we face should drive the kind of institution that we create. A smaller part of the answer to that might be to look at some of the things that offer some relevant lessons here, and I guess the climate change committee, and its role under the Climate Change Act 2008, does operate for England and Wales. It does provide accountability functions there, and provides firm monitoring and enforcement, potentially for monitoring enforcement action around that. That certainly offers something of a template for an institution that operates wider than England scale. 

I think that once we've left the European Union the intensity and the quantity of work that needs to be done at UK level, without undermining the current devolution settlement, is extraordinary and goes well beyond environmental protection. And something new is going to need to be put in place. As a London lawyer who works on EU environmental law, I'm not best placed to talk about that. But something quite significant is going to have to happen, I think, once all of those decisions move from the European Union to the UK and/or its constituents parts. 

I think I would agree with everything that my colleagues have said about having a body at the UK level. And from an environmental perspective, what we need there is to have that co-operation. Whether that's possible politically, or how that is achieved, is another issue and we might think about perhaps some legal mechanisms to support that. But I would also say that I think when it comes to accountability for environmental protection in Wales, there is probably also an argument for having a body in Wales, perhaps as well. And maybe that's seen to be—. And maybe, in the time frame that we're looking at, that might not be possible, but at the same time, again, I think, to me, the ideal solution would be to have both, because then you would have a mechanism for accountability, for environmental standards for the people of Wales at the Welsh level. And, to me, that's something that is important as well.

Thank you. David.

I think we should explore the hypothesis that we need a UK body. I suspect there'd be a consensus amongst parliamentarians and probably the devolved Governments, that that body should be independent and have some sort of accountability to Parliament or Parliaments. We may find out this morning, when I believe the consultation is about to be launched. There's obviously been, as is quite appropriate, a full discussion in Cabinet about the basic principle. But given that—. And I think you can make a very strong argument that the governance of environmental matters has been one of the outstanding successes of the European Union. That's not to say that we can't replicate it with appropriate modification and adaptation for our needs, but the one thing that I've not really heard very much talk about so far—. Although, in fairness, when you've gone through what is currently done in EU governance, which goes much beyond enforcement, you're talking policy formation for all the environmental law that we’re going to need, which is massive, through to the other functions in terms of developing scientific understanding and having that role also for other bodies to engage with an environmental body and ensure there's compliance and so forth—what sort of capacity would such an organisation require?

We are talking about something that's going to be bigger, probably, than what we will need to conduct our wonderful new independent trading policy around the world. All this has been done by senior civil servants at the European level. Do we have any idea what sort of numbers we would be talking about to give that body the capacity it would need to operate at these really important higher functions? As I said, everything from policy formation, evaluation, monitoring, enforcement— I mean, it's incredible—scientific assessments; it's just massive.

If I had the figures to hand for staffing levels at the Directorate-General for Environment, that would be very good and a rather interesting thing to take on board. I guess when you start to break down the individual functions of the things that the European Commission does, some, one would hope—one would have to hope—could be domesticated. So, the power of policy initiative, which is a distinctive function of the European Commission, whilst many in the UK who are concerned about environmental issues might bemoan its loss, you really would end up having to place faith in domestic Governments to take that on board, really, I think, rather than others picking it up. But, others, I think, yes. Certainly there are figures available on staffing levels for those various functions that you could begin to look at and see how much—you know, do some kind of ballpark indication of how staffing-intensive these things are. So, I don't have them to hand, but presumably they are obtainable.

I think this loss of pooled resources is a fact of Brexit and it is a cost of Brexit, and we will find that we lack capacity for a period. I think that is the case and what we need to do is work as hard as we can to build that capacity in time. So, we're all, in good faith, working really hard to try to ensure that things are as good as they can be when we leave the EU. I think we will lose things. I don't think it will be as accountable or as forward-looking or as expert—certainly not initially. I think we will actually lose something.

The other thing to say is that I don't necessarily think that the new environmental body should be doing all of those things. You could have a fairly tight accountability body, which wouldn't necessarily be enormous. You'd develop norms around which complaints from the public could come in and which complaints from the public couldn't. You'd develop norms around reporting and you'd develop norms around when you actually take legal action. So, if you think that that body—. It's not enforcing all of environmental law; it's keeping its eye on Natural Resources Wales, it's keeping its eye on the Environment Agency and SEPA. It's not doing everything. It's looking at the way our agencies implement the law. So, that could be a relatively tight body. The building of the capacity to make new decisions is an extraordinary challenge and something—you know, all I can do, really, is agree with you.

So, you'd concentrate on evaluation, monitoring and enforcement.

I can envisage a new environmental body that has a very defined role and doesn't get involved in arguing about policy. All it does is say: 'These are the commitments that you have undertaken, and you are not doing what you said you would'. And, actually, just to nuance slightly what Richard said earlier about the hard-edged standards, our legal traditions tend to leave a great deal of discretion to Government Ministers, et cetera, when they're asked to take 'reasonable steps' or whatever. A new environmental body could say, 'Well, I don't think those are reasonable steps; go away and try a bit harder'. So, it's potentially got quite a lot of pragmatic power in that sense; it can do a lot of things that courts may be nervous of doing.

And then, finally, on the issue of where the courts would be, they obviously do not have the embedded expertise that rests at the European level at the moment. How much of an inhibiting factor will that be, in the next five to 10 years?

They don't have—. Which expertise?

Well, at the minute, enforcement would rest with the European Commission and the European court. Now, obviously, it's going to be within our courts. So, I don't know, perhaps there are lots of European judges that we currently send over to Brussels and Luxembourg, but I suspect that's not the case.

They won't be allowed back in. 

I'm not sure there'd be a problem with judicial expertise, particularly. I think the courts will be quite familiar with judicial review actions and enforcement. But there may be, again, a capacity issue in the sense of: how many new cases are they going to get?

To respond to your earlier question, on the issue of what this body looks like, I would agree with Maria that my vision for it was very much that it would be about accountability and enforcement. Even though I don't think this is something that we necessarily give to the future generations commissioner, that is the role that she has, in a sense, in relation to sustainable development. So, that's the model for that, rather than it being the body that actually creates the legislation and creates the policy.

So, policy formation would be dispersed and, presumably, drawing on lots of international agreements and, in effect, what's happening at the European level. Is that kind of what the inference is that I need to draw?

I think so, yes.

Something new is going to have to happen, but, at the moment, we send a lot of civil servants to Brussels. Those civil servants are, I am sure, going to try to continue to draw on global expertise, but they will be doing it in a different forum.

Thank you.

Dai.

I think there are lots of issues around the three things that you've raised there. When we think about Brexit and about environmental protection, in a sense, there are two ways of looking at this. We can look at it politically and in relation to the debate in terms of devolution. As an environmental lawyer, I think it's also possible to look at it from an environmental perspective. What is best in terms of environmental protection? How should that be taken forward in a devolved state? In a sense, you can remove that from the political debate and then say, 'That's what we need; now we need to think about how we achieve that in a practical sense and in the political system that we have'.

From that perspective, I think, as Richard has already mentioned, the principle of subsidiarity in the EU has been very important. Since 2008, that has specifically referred to the significance of regional and local government. It's always been very significant. Long before it was introduced as a general principle in the EU, it was always very significant in environmental protection. And I think there's that recognition there that, although working together is important at the UK level, at regional levels above the UK and at an international level, at the same time, the actions that need to be taken will need to be taken by citizens and communities, and devolved approaches are important in that. So, it is important that we continue to allow devolved Governments to take action and to have a significant role in this.

In terms of the future generations commissioner, I have said I don't think that her role specifically should be extended to the environmental advocate, as I've described it, but that doesn't mean to say that I don't think her role is very important and should continue to be important. Sustainable development or well-being, as we refer to it in the well-being of future generations Act, is, in a sense, almost like an umbrella, and the environmental standards that we're talking about—. The need to ensure those standards is essential to future generations, and therefore—. And the principles, the core principles—prevention, precaution, polluter pays—they've all stemmed from our commitment to sustainable development. So, in that sense, there shouldn't be a conflict between the two things.

On your final point, yes, I absolutely agree that we don't want any loss in terms of environmental standards. But I also very much agree with Richard's point that what we need to think about is actually improving the situation. So, we don't just want to think about regression, but also about how we move forward. Like you say, that has to take account of both the need to work together, for lots of good reasons, but also the need to allow devolved approaches.

I think the last two years have exposed the fragility of quite a lot of our constitutional settlement, and I think that's simply something that we're going to work through over the next generation. I don't think I should really purport to have any expertise on where the devolution settlement should lie or how it might evolve in the future. I agree with Victoria, that we can look at this from an environmental perspective, and we should. But it's never empty of the politics. So, we can never say, 'Well, technically, climate change must be dealt with globally'. Because that's simply—. Climate change must be dealt with at all levels at all times, and they must all work together. So, I don't think that there are any technical answers, but I think there are questions of governance, really, that might help us but won't trump the constitutional issues. 

Also, this idea of new and better environmental standards: well, yes, absolutely. Of course. I do, however, think that time is ticking on, and we are in danger of silent abandonment of environmental standards, because all the laws will stay in place, but there isn't anyone watching. So, my personal view is to focus on what we're going to lose and put that in place. I see the strength of the argument that says, 'We might not get another chance to talk about the other things'. I really do. I get that. But I think focusing on exactly what we are going to lose is quite important at the moment.

I think you raise some very important observations, and I would just make three quick responses. On the risks of the deregulatory rhetoric around Brexit, and the risk of erosion of environmental standards, I entirely grasp and share those concerns. I derive modest comfort from the fact that, in some ways, one might be surprised at how far the Government has moved, in that when I think it was first asked, 'How are we going to hold Governments to account for not achieving environmental goals?', they said, 'Well, there's judicial review, or there's Parliament.' And now you have the environmental body on the table, and, as far as I'm aware, Michael Gove is open to the idea of others putting in suggestions here. It's not that they're putting something that is fixed. So, the debate has moved, just from recognising some of these problems.

In terms of the intersection with the future generations commissioner, I think wider environmental governance that would tend to uphold higher environmental standards, and do so with a long-term perspective on their delivery, would surely underpin the long-term perspective, which I think is one of the key merits of the creation of the well-being legislation.

But Maria's right: in a sense, Brexit has exposed bigger deficiencies in our constitutional settlements, particularly our capacity to deal with issues collaboratively between the various states. The fact that we don't have a properly federal situation, the fact that our arrangements for inter-governmental dialogue are poor, patchy and deficient, is really very exposed by this. Because, in a sense, what one is suggesting, if you are putting the case for a cross-UK body, is that there are merits in pooling sovereignty. Thus far, devolution debates have been very little about pooling sovereignty; we just work out who takes up which kinds of responsibilities. And you can see hints of that in Brexit so far, where debates about common frameworks rush very quickly to drawing up a list, putting things into three categories, without at all thinking about, 'What are the processes by which we work out which are common? What are the processes by which we come to agree on those? What are the processes by which we work out how these are going to be enforced?' Procedural quality of federal institutions, and how we collaborate and pool sovereignty, have been left by the wayside in the rush to divvy up and demarcate issues quickly. And I guess that's my worry about the new environmental body, that it would just seem very quick and pragmatic for England to set up something and others just to set up something. And, granted that the clock is ticking, steps to do something that is as good as possible within the time frame should be taken.

Jayne, you wanted to come straight in? You're next, Joyce.

Yes. Thank you, Chair. I think we can all agree that there's much to be fought for. I think we all agree on that one. But do you—? You've mentioned the role of the future generations commissioner, but how do you see other bodies, UK bodies or Welsh bodies, such as the Planning Inspectorate or the Committee on Climate Change, Natural Resources Wales—? How do you see—? Could they help in terms of the governance gap, or do you think that's just not feasible at all?

Well, in terms of Natural Resources Wales, its role as a regulator would really exclude it from being the independent body that we're talking about. So, that would exclude that. In terms of the climate change committee, that has been said to be another possible model that we might want to follow. So, I'm not saying that the future generations commissioner is the only one, but, to my knowledge, it's the one that most people have looked to as a body that we might want to replicate, and that was why I was focusing on her role. Also because it's the body that I'm most familiar with. So, I'm not saying that there aren't others. Perhaps Richard could talk about the Planning Inspectorate, because he would know more about that as a model. I think there might be some issues with that as a model, but you might want to come in on that, Richard.

Yes. I think these sort of institutions and bodies are very useful to show you what is possible and what therefore could be practical or readily and quickly brought into being. The Planning Inspectorate's relevance, simply, is that it's a body of expertise in doing certain kinds of planning cases, but works for England and Wales. So, in a sense, we already have bodies where Wales supports across-the-UK bodies, and, you know, the planning inspectors deal with planning inquiries and appeals and do so under Welsh legislation. So, the idea that one can have a shared body that is also sensitive to Welsh legislation—it provides a bit of model on that front. I don't think, in terms of how one might create the new environmental body, it offers that many particular lessons, but it shows that a single body can deliver informed views on legislation that is differentiated. I think that's what that particularly says. The Climate Change Act, I think, was just showing—that's offering some lessons about how monitoring and accountability might be achieved, how it works best with certain kinds of legislation and, again, how that can perform a function that embraces England and Wales, rather than just England alone.

And I think, Natural Resources Wales and the Environment Agency, they hold corporate bodies to account. This body needs to hold them to account. 

Joyce.

Good morning, and thank you for the paper. I think I've managed to get my head around it. As Dai said, it's very complex information that you've provided in a readable format, and I thank you for that.

We don't have a good history in the UK when it comes to environmental protection. It took our membership of the European Union to—not nudge us, to push us in any direction whatsoever. One of the nudges comes under article 191 on the Treaty on the Functioning of the European Union and the principles therein. And I suppose my question is this: assuming that we've set up a body that's going to oversee everything—. I want to ask the question, because as I understand it, the principles drive any policy or any implementation of policy that currently exists, and there are a few named here. So, what do we need to do? If it is the case, as it seems, if I've understood it right, that those environmental principles that have been adopted don't have the same status already within the European Union as general principles, what is the gap that we need to watch when we adopt those principles in turning them into hard legislation that people can be monitored by? Because, if those are the ones that we need to keep an eye on—and I'm looking at you, Maria—in what we might lose, that's why I've come straight to that. 

So, the environmental principles only work if they are embedded in a strong environmental law framework, and, indeed, a strong administrative law framework. They don't do anything in themselves. They only work if they sit in this legal framework that can, in turn, be enforced. So, on their own, they do nothing, I think. But they can have a powerful role in guiding what decision makers do, including judges. And I think, in order to make sure that they maintain the role they have at EU level—and, I mean, I've spent the last 20 years critiquing EU environmental law and saying, 'It's not good enough', so the principles aren't dealt with perfectly at EU level, but, in order to give them that status, we need legislation, and the legislation, unlike at EU level, needs to be quite explicit about their strengths. It needs to be quite explicit that these are justiciable, that they can be used in court, that sort of thing. So, it needs to be in legislation, it needs to be quite clear what they can do. My own view is that the detailed—. If we want to do a detailed definition of the polluter-pays principle, that could quite usefully be done in policy rather than in statute, or you could just leave them as they are; the treaty just says 'precautionary principle'. 

And I suppose, then—. I also am focusing on the fact that the conversation this morning has been about imitating or enforcing what we've got, but I note in one of the papers—I think it was Richard's—about looking at degradation as well as protection. Because we're now going to fall outside any directives, because we're outside the European Union, so if we are only going to keep what we've got, while that might be admirable in some cases, it isn't going to take us anywhere into the future in terms of degradation. So, who do you think, within this new body that we might have, needs to be responsible for that, and how are we going to manage the accountability as well, and the enforcement, but, more importantly, the forward thinking about what we need to do? 

I think the need to enshrine some commitment to improve is important, and it's important because we might get a non-regression clause out of the Brexit trade deal in any case, but many would say, as you say, that's not particularly ambitious; it ties us to EU standards and raises all sorts of questions about—. The word's often 'zombification'—you know, standards inherited, enshrined, but with no great scope to hold people to account for them or no great scope to improve them. So, I think enshrining principles that do—[Inaudible.]—certainly, which does promote high levels of environmental protection, as I think are in the Lisbon treaty, is sound. I think arguments about you want some benefit coming out of DEFRA, for their policy, have some merit there.

In terms of then enforcing those, that goes back to Maria's point that such principles are not delivered directly, but brought into use when dealing with certain kinds of situations in terms of dealing with possible disputes, perhaps in challenging the direction of policy. I think a nice phrase, probably from Richard Macrory, is that, in most environmental protection conflicts, the heavy lifting is done by our policy, but there are certain situations where the principles become rather important. 

I suspect we then come down to whether or not, in any given policy sphere, in the light of the principles, the goals and targets that were set were sufficiently ambitious—they did improve, they did more than just simply avoid further degradation, they did require ongoing enhancement. So, yes, biodiversity policy, which includes not just protecting existing habitats and species, but enhancing their range and diversity, would embody that kind of role. So, in the end, it would be the ability to translate commitments to enhancement into policy, I think, that would give these things most teeth. 

And one of the things we will lose is, indeed, that forward-looking perspective; it is indeed the pooled expertise and resources of the European Union's environmental law-making and policy-making bodies. So, that is one of the things we'll lose.

I was going to say as well that Macrory and Bryce have also written a paper about environmental standards, which very clearly sets out the situation at the moment and the fact that the directives—if you take the water framework directive or the industrial emissions directive—do actually provide a mechanism for those standards to be updated. And that's what we need to replicate at the UK level. That would be the most appropriate level for that, because that's where we need everybody to pool resources, to pool our scientific knowledge. They talk about the importance of keeping up. Whether or not we have a non-regression clause in the trade agreement or whether it says that we need to keep up with what the EU is doing, we don't know yet, but even if it doesn't say that we have to keep up with what the EU is doing, we will still need some kind of mechanism to keep the standards moving forward. And obviously then that raises questions as to whether we do that at a devolved level or whether we do it at a UK level. But I think that, when it comes to something like that—when you're talking about the importance of scientific knowledge—then there is a great benefit in pooling our knowledge at the UK level, if not, as you said, trying to co-ordinate further than that with partners in other countries et cetera, because the more knowledge we have the better.

The environment doesn't know anything about boundaries. I'm thinking here particularly about the waterways. So, if we're going to accept that we have a single body overseeing environmental protection, then it seems fairly obvious to me that we will need to start to agree some policies that protect waterways particularly and whether—. I suppose what I'm trying to understand, and maybe you can help, is how that process that will be hugely important, in my view, is going to perhaps be enabled—make it easy for you—in this new environment we're going to find ourselves in, because that's the role that now sits very often within the institutions in the European Union where there is a collective agreement. But we're not going to have anybody, necessarily, arriving at the collective agreement, so how are we going to manage that, do you think?

I think the other thing that's worth saying is that the EU has developed—I mean, the EU has 28 member states and many, many regions, and it has developed over many years really elaborate ways of bringing people together to collaborate, and water is a brilliant example. So, the common implementation strategy under the water framework directive, which Victoria just mentioned, is a way of getting the people who are doing the management of the water across this vast geography together to talk about their needs and where they might go. That wasn't invented in a piece of legislation—and also under the industrial emissions directive—. These processes evolved because people needed to talk to each other, and then subsequently you find them turning up in the legislation. The first bit of legislation said, 'There will be a collaborative process', and then the next piece of legislation—and you think, 'Okay, that's what they did.' Something has to happen a bit more quickly for us to get that right over the next few years. A room where people who are both high level and doing things on the ground can sit down and talk about what they need is just going to be crucial.

One of the things to think about is the process around the common frameworks. I think, from memory, water issues come in the middle category of perhaps non-legislative shared frameworks. I guess the question is what process is built around that to think about what those might be. Is simply collaborative action without legislation fine in the first instance, or could that process lead to a case for actually saying, 'No, there are aspects of water that clearly need to be across the UK and legislative'? The common frameworks seem to be driven primarily by concerns about trade. You know, 'Traded things need common UK standards, and the environment can be dealt with by some other kind of mechanisms.' But a better process around taking forward the common frameworks as to whether the categories are right and what kind of activity might then be required to achieve the relevant areas of harmonisation would be something to focus on.

It's also worth remembering that EU-level standards are not all statutory. So, many of the water standards are policy statements that have statutory backing, but they aren't mandatory. Some of them are mandatory and numerical, but there's a vast variety of approaches to standard-setting in the EU, as well as there would be here.

David, do you want to come back?

Yes, I wonder if I could just ask you about robust practice elsewhere, because the European Union is an utterly exceptional political association so far—it's not been emulated anywhere else in the world. So, many other countries face the sorts of challenges we now face in terms of having to do a lot of this in domestic institutions and using domestic resources. I think Professor Cowell refers to the New Zealand Environment Court, for instance, and the United Kingdom Environmental Law Association paper then talks about other examples, including the New Zealand parliamentary commissioner. There seems a certain elegance in our race for a fairly direct, even if it's a limited solution that you could have a parliamentary commissioner or ombudsman and an environmental court, and that would give you a lot of accountability and enforcement potential. Given the challenges ahead of us, would that be a fairly crisp way of progressing our interests here, or is there some other model internationally we should look at?

I think it would be better than nothing, but I don't think it would be sufficient. It's interesting, isn't it, because the European Union developed these mechanisms for accountability, not because the European Union wanted to keep its eye on us, but because all the member states needed to keep an eye on each other? It is unique. There aren't other countries where there's an external body that will start imposing fines on them for failing to comply with air quality standards. It is unique, but it's pretty powerful and valuable, I think. So, ideally, we will want to see something that is nearly as powerful as that. And also, I think what your proposal would suggest is that we go back to parliamentary accountability plus judicial review, and that's—

Well, I don't think, in New Zealand, it's a judicial review. That would be a wholly inadequate basis, and I think everyone accepts that.

So, the environmental court will have greater powers than our existing courts.

Well, that's my understanding now, just from a simple reading of some of these papers.

It's not a simple reading at all. I suppose, then, what I would say is: if we set up a new environmental court, we can decide what powers it should have, and it would need to have stronger powers than ordinary judicial review. My own view is we're giving up a really robust system of accountability and implementation, and it would be better if we didn't.

I suppose it also requires us to hold our nerve on the issue of time because, undoubtedly, the clock is ticking and pragmatic solutions have a lot of merit. But I guess one of the risks of Brexit is that we deal with it in ways, quickly, that lock in a poor solution or lock out better solutions in ways that then prove very, very difficult to unstitch, particularly where there's a constitutional dimension as well. The risk: we might end up with England, Wales, Scotland and Northern Ireland-specific bodies in ways that isn't really quite appropriate. That's one of those risks. So, I think the time is ticking, but I think holding our nerve and pushing for better solutions is something we also have to do.

Okay. Joyce.

Two quick questions—well, they're quick questions; I wouldn't say the answers are. Is there a model anywhere that we could examine and look at that might help us in managing all these functions? And the other thing that's struck me is data and the importance of data, of gathering it, of analysis—more crucially, the independence of that data, because that's what's always used and relied on when we're trying to drive change in the environment, or prove that change is needed. So, I'm particularly keen to know whether you've considered where that data should rest. If it rests with Government and Government were to ignore it, that's not the right place for it to be. So, those are my two questions.

I think there's a lot of research out there about different models. New Zealand is one of them, but there are others as well and there has been a good deal of research about the role of environmental commissioners, but I think, there's a point that's already been made—it might be better to think more about what we want to actually achieve and, therefore, what the key components are that we need to ensure. But, certainly, the research is already there, which has been done on those different models.

In terms of data, I've said in my paper that I think it's really important that we have good scientific data to underline environmental standards, and, obviously, the independence of those is essential, and that's something that we need to ensure that we have good reporting mechanisms for.

I agree with that. I don't have anything further to add to that.

I guess the only example to add would be that the Joint Nature Conservation Committee in the UK does some work on co-ordinating the four nations' approaches to nature conservation, so, yes, data input to that may provide some kind of template—[Inaudible.]—already doing.

Thank you.

If there are no more questions, can I thank you all very much for coming along? I'll just end with a statement. I live in the lower Swansea valley, which I think is an area that Victoria knows quite well, and before we had environmental rules there it looked like a moonscape, and the last thing we want is to end up going back to that in what I think now is a very nice area. So, I think that it is important that we get this right. Can I thank you very much?

I can only echo what Dai Lloyd said earlier, but I'll say it in English rather than in Welsh, that your papers were exceptionally good in terms of them being easy to read and they passed us an awful lot of information that we needed. Thank you, again, for your opening statements, which reduced, then, the number of questions we needed to ask no end. So, thank you all very much indeed.

Thanks very much.

I forgot to tell you that you'll get a copy of the transcript of this. I would urge you to read it, because, sometimes—I'm one of the worst examples of this—if you turn away as you're talking, they miss some of the words. So, please check it to make sure that some words haven't just disappeared. It happens to me quite regularly—I turn away like this and the microphone doesn't necessarily pick it up for the people doing the transcript. So, please check it and if there are any errors, please let the people know. Again, thank you all very much.

Can I move a motion under Standing Order 17.42 to resolve to exclude the public from item 4 of this meeting?