Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Newid Hinsawdd, Amgylchedd a Materion Gwledig

Climate Change, Environment and Rural Affairs Committee

26/06/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Andrew RT Davies AC
Jenny Rathbone AC
Joyce Watson AC
Llyr Gruffydd AC
Mike Hedges AC Cadeirydd y Pwyllgor
Committee Chair
Neil Hamilton AC

Y rhai eraill a oedd yn bresennol

Others in Attendance

Anne Meikle Cyfarwyddwr, WWF Cymru
Director, WWF Cymru
Annie Smith Rheolwr Datblygu Cynaliadwy, RSPB Cymru
Sustainable Development Manager, RSPB Cymru
Llinos Price Swyddog Polisi Cymru, Coed Cadw
Policy Officer for Wales, Woodland Trust

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Andrea Storer Dirprwy Glerc
Deputy Clerk
Chloe Corbyn Ymchwilydd
Researcher
Marc Wyn Jones Clerc
Clerk

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Dechreuodd y cyfarfod am 09:16.

The meeting began at 09:16.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introductions, apologies, substitutions and declarations of interest

Bore da; good morning. Can I welcome everybody to the meeting? First of all, can I welcome Neil Hamilton, who has joined the committee as a permanent member? Can I ask Members for any declarations of interest? Joyce.

Any other declarations of interest? No? Okay. Thank you. There are no apologies or substitutions and we're expecting Andrew Davies to join us shortly.

2. Egwyddorion Amgylcheddol a Llywodraethu ar ôl Brexit - sesiwn dystiolaeth 5
2. Environmental Principles and Governance post-Brexit - evidence session 5

Can I first of all welcome Anne Meikle, head of WWF Cymru, Llinos Price, policy officer for the Woodland Trust and Annie Smith, sustainable development manager for RSPB? Thank you all very much. I think we've seen you all before at different stages, so you're familiar with how the committee works.

Are you okay for us to move straight to questions? Yes? Okay. If I can start with the RSPB and world wildlife fund, can you expand on why you believe the precautionary principle and the prevention principle are not sufficiently captured within Welsh primary legislation? And, for everyone: can you expand on the need for the additional environmental principles you suggest in written evidence beyond the four core European Union environmental principles?

Just to explain the point about the precautionary principle, you'll be aware that it's not plainly written in any of the legislation and what the Welsh Government has argued is that within the sustainable management of natural resources principles, they've reflected all of the elements from the EU guidance on how you apply the precautionary principle and that basically does the job. We don't accept that and the main reason is that one of those principles that draws from the guidance is about preventing significant damage to ecosystems—to take action to prevent significant damage. The precautionary principle requires that you take action if there is danger of damage—if there's a risk of damage—so you take action to prevent it without knowing that there's a significant risk. 

There's an example of the way that works in practice within the habitats regulations, for example, where, for an authority to consent a plan or project, they have to ascertain that there won't be an adverse impact, so saying that there's a low risk or 'we don't think so' isn't good enough. So, that's built in and that's why we think, when we're relying on domestic legislation to give powers to those principles and to have that influence over law making et cetera, it needs to be very explicitly stated. Anne might expand.

I think our key problem is not—. We would agree that the precautionary principle isn't properly represented because it's separated out, but also the way they are currently in there—prevention, for example—is in a very complex way within both the Well-being of Future Generations (Wales) Act 2015 and the Environment (Wales) Act 2016, and they are applied with a much more limited scope than the way the principles apply at the EU level at the moment. 

At the EU level, they are the four core environmental principles. They're overarching and they apply to everything: to the making, revising and implementing of law and policy. The way they're framed within those two Acts, where they do exist, is in a much more limited manner. So, for example, in the Environment (Wales) Act 2016—the environment Act doesn't apply to the making of legislation, unless that's related to the natural resources policy. So any other legislation you make would not be covered by a principle that's primarily captured within the environment Act, as it stands now. So, it's basically the scope of the way they are laid out; there are two missing altogether. And the way this was done is—obviously, when those Acts were developed, the EU overarching framework was there, so they were developed to operationalise, exactly as Annie says, what the EU said you needed to do to make this happen in practice, in different places. And that's what the legislation does, and it does a good enough job of doing that. They are not, in the way they're drafted now, the overarching principles that guide everything else that's going on.

09:20

Thank you, Chair. One thing that was said—last week, I think it was—and it just struck me as something I hadn't thought about, and I'm not overly concerned, but I just wouldn't mind hearing your views, really, as to how that potentially might upset the balance established in the Well-being of Future Generations (Wales) Act 2015, where we have to strike that balance between the environmental, the economic, the social, the cultural. And if we ramp up these principles, in terms of the environment, is there a risk that that equilibrium might be disturbed?

Why would it be disturbed, when that's the case already?

I can understand the point, and I understand why people make it, because, obviously, sustainable development is about all those parts. And I think that's also why—you were referring to other objectives—we were saying that you perhaps also need another overarching objective that, ideally, would actually apply across the whole of the UK, rather than just in Wales, because the principles are there to apply the overall approach, which is to provide a high level of protection for the environment, and all the environmental law flows from that. Now, technically, the future generations Act is not a piece of environmental law, it's a piece of sustainable development law. It's applying a different part of the ways of working. So it's a bit complex, but I don't think that replacing what's already there is going to upset the balance, because it's already—that's the situation as it stands. You're not changing the balance of the way this operates, in our opinion, I think.

Well, as others have said, the Welsh Government consultation focuses on the four core principles and analyses what's already in Welsh legislation. And we disagree with their view that some of the principles are already reflected, including, actually, non-regression, because the consultation states that that's also included in Welsh legislation. So, it's not just about enshrining those four core principles in law, but the overall objective as well, and non-regression. And that's a component of the withdrawal agreement, as well as the four core principles. And then the other bit that's omitted from the Welsh Government's consultation is looking at the principles that are in the draft UK environment Bill, which is a longer list of principles. And we would argue that there's merit in looking at that list as a whole, and not just the four core principles, except that, of course, the principle of sustainable development is there, and we would say that, maybe, that's already clear in Welsh legislation.

I would agree that it's not effectively embodied in the existing legislation, and that, actually, there is a commitment to maintaining standards. And there's been a commitment to continue to align with the EU's environmental standards, which I think is what we ought to focus on. I'm not sure of a mechanism to do it, but note that the Scottish Government has announced it will legislate around keeping pace with EU legislation, and that might be something that Welsh Government would want to look at.

I think it's important just to note as well that it does say in the explanatory notes for the draft UK environment Bill that non-regression hasn't been adequately incorporated, and that that's the intention.

I think all of the—. I mean, they're not environmental principles, these others: subsidiarity, integration et cetera. But they've sat alongside it for so long that they are part of the overall interpretation. We're looking here at the interpretation of environmental law, but they apply more broadly than that, of course. I think the other one that I would ask Welsh Government to have another look at is actually integration as well. Because, again, integration is within the future generations Act, but, again, it's defined in a very specific way to meet the needs of that Act. And I'm not sure that that's quite the same as the intent of it as an overarching principle. I don't have an answer at the moment, but I definitely think it's worth looking at, because it's very specific to looking at the integration of objectives et cetera, rather than more broadly across the whole piece. 

09:25

You've sort of already said that you want a higher level of environmental protection. You've just outlined some instances of where you think it could be strengthened. I suppose the question there is fairly obvious. How would we meet those objectives in redrafting and how should we best include them in the primary legislation?

I guess, from our perspective, they need a piece of primary legislation. Now, whether you do that by amending something existing or you put in place a new piece of legislation—I think Welsh Government have been edging towards the latter. That would seem a simpler and clearer way to do it, but I don't think it's the only mechanism that you can apply. 

I think the other reason for thinking it might sit better, potentially, in a separate piece of legislation goes back to the piece that perhaps we'll come on to later, which is about the coherence with the rest of the UK. That's proving very difficult, I think, at the moment to get discussions between the different Government departments about how to ensure consistency across the UK for environment and across the legislation that will happen in different Parliaments. I know that's a key concern for Welsh Government, about how to develop this in a way that respects our existing legislation but is coherent to having UK-wide responsibilities in delivering international agreements or, indeed, trade deals or anything else.

So, I don't think we have a simple answer. I think there are different ways that we can go about it, but it definitely needs to be in primary legislation—absolutely on the face of that legislation in Wales, to be really clear.

Just to say, we made a suggestion within our evidence, not in a detailed way, about potentially bringing those into the environment Act. That is just one route. As Anne says, the most important thing is that they're clear and that they're enshrined within legislation. It's a thing that we'd put on the table for discussions going forward on how to achieve that. 

Yes, thank you. Both WWF Cymru and RSPB Cymru have said in your evidence that the Aarhus rights need to be enshrined in domestic legislation. Can you tell me a little bit more about that, because the reality is the UK will still be a signatory to the Aarhus convention?

That's true, we're not leaving Aarhus, although we have not fully enshrined all of those rights at a UK level anyway. But we are leaving some of the governance structures that allow the implementation of Aarhus effectively. Therefore, it we don't replace the process by which citizens have not just free as in cost-free but also liability-free mechanisms for challenging Governments and public bodies, then we are regressing from rights that we currently have, because we're not putting in place a mechanism to make those rights actually practical. I think that's why we're suggesting that Welsh Government make clear in the way it sets up whatever the governance structure is, but also to be clear that they are trying to, I suppose, operationalise the rights that there are under Aarhus. 

09:30

And do you see this importance, then, of differentiating between the rights and principles that are enshrined in that legislation? You explicitly see them as rights and not as principles that should be adhered to? 

Yes, and I think, to be honest, the UK Government have recognised, from their own environment Bill, that, actually, they've muddled the two and they're probably going to separate them out—that rights are not the same as principles. And the way the Scottish Government is proposing to treat them is definitely as rights—legislating for them as part of a right to a healthy environment et cetera. Yes, I just think it's one of those things that just ended up in a list, and, with reflection, there's a better way of dealing with them, I think. I think that's what's happening.  

Can we just look at the application of these environmental principles that we've been talking about? To whom and to which bodies do you think they should belong? And if the RSPB has said that the principles should be applied to all public authorities, as defined under the Environment (Wales) Act's section 6(9), which, broadly speaking, is all Ministers, anybody paid out of public funds provided by the Assembly, statutory undertakers, office holders under the Crown and various other public office holders, is that the full extent of the application of these principles, in your opinion? 

I would say that's a good start. That's quite an extensive list of public authorities and it includes a number of reserved bodies, which the Welsh Government would have to negotiate with with the UK Government, obviously. There may be other bodies or entities that could be subject to those duties that we haven't analysed at this stage. 

I suppose I'm asking you to do the Government's job for it, in a sense, and providing the scope for the application of these principles—what should be enshrined in legislation post Brexit? 

Well, I'm just asking you to put your ideas forward as to whether the Government is going far enough, in effect, in Wales, in providing a framework for the application of these principles to the public sector, fundamentally?   

I think it's a really positive proposal to extend the scope of the sustainable management of natural resources duty. So, we've highlighted that we're not in agreement that to add the missing principles, as they're called in the consultation, to that list of SMNR principles and extend that duty is enough on its own. As an approach, that definitely merits a lot of further discussion, because it's a positive approach, it's a clear duty. Regardless of whether that is the mechanism for encapsulating a duty on those core principles, then that's a positive step forward, I think—broadening the scope of that duty. So, it applies not least across all of Welsh Government's functions. It's very limited in scope at the moment, and that would be a positive move. 

I think I would go back to the 'What are you trying to apply here?' The scope of the principles is about making and implementing law and policy and revising it. So, anybody that implements or revises, I guess, those policies and laws needs to be covered by the legislation. So, it's a bit like stepping back the other way. And we understand the difficulties of the limits of the devolution settlement are going to cause some negotiations or whatever about who gets covered by it. That is how it is for all environmental law and things now—you have to have that negotiation. So, I'm sure it's deliverable.

What I would like to make clear, and it's not necessarily on the face of a piece of law, though, is I think there are grey areas at the moment that maybe would be good to clarify. So, there are a lot of—. And we had this argument I think under the guture generations Act, potentially. It took an approach where it listed a named list of bodies. Well, new public bodies have been created since then. They're not on that list. And then there are these public-private sort of bodies that are a partnership—let's say, things like city deals, or you've got, as I said, new bodies like the infrastructure commission or whatever. What should be captured in there? Most of those are implementing or making policy in some way, potentially. So, I think there just needs to be a good, hard look at the bodies that I would say are in a grey area between public and private as to who needs to be captured by this and in what way, because I don't think it's clear enough at the moment. And there are bodies that are named in the Environment (Wales) Act 2016 that are not in the Well-being of Future Generations (Wales) Act 2015, and I think we've got a bit of an opportunity here to clarify and nail down who we want all of this to apply to.

09:35

And I think that's a very interesting point. Does the Woodland Trust have its own nuanced view of this? 

Well, we've said the same thing in our evidence, that we think it should be applied more broadly. The Welsh Government consultation, it's got a good analysis in there of what the gaps will be, but we don't think they're going far enough necessarily in their proposals, so they've got a shorter list of public bodies, which is an expanded one from the current arrangements, but it's still not long enough. 

Is it a good idea to have a list or rather have an idea of bodies funded out of the public purse, which means that new bodies don't have to keep on being added, but you just have a general statement—all bodies that are funded from the Welsh Government's public purse, or funding that is given by the Welsh Government, something like that to catch everybody—rather than adding people and then NRW gets split up into three bodies and you have to go and change it again?

Yes. I think that's right. You don't want to be going back and amending legislation all the time, so having a definition that works as to what you mean by who's captured by this, I think is a really good idea. 

Moving on to a different point. The Welsh Government has said that a policy statement on how environmental principles should be applied isn't required in Wales. There is one in Scotland and in the UK draft Bill. I see in the Woodland Trust evidence, which I've only just had a chance to look at, it says that you don't agree that the principles of prevention and precaution are effectively covered within the Welsh legislation, and that the precautionary principle isn't comparable with the principle that's important to,

'take account of all relevant evidence and gather evidence in respect of uncertainties',

which is what the Environment (Wales) Act provides, nor is it equivalent to the interpretation of the precautionary principle under EU law. So, can we explore this a little further, the question of Welsh Government policy in this respect? They don't think that this is necessary to make it explicit as it has been elsewhere in the UK. 

I don't really see the rationale in not having a policy statement. You would need some sort of policy statement or guidance on the principles in order to provide clarity on how they should be interpreted and applied. 

I think it's quite important to just note the difference between the approach proposed by Welsh Government and that proposed by UK Government currently. So, in the English environment Bill, as I like to call it, the duty on Ministers is to have regard to the policy statement that the Secretary of State will set out, which is where that content on the principles will sit. That's a bit hopeless because it's quite removed from having the principles in legislation and a duty to apply them, whereas the Welsh Government's proposal so far is actually much more robust, I would argue, because it's about putting the principles in legislation—and we have arguments over how to do that in the most clear way—and then placing a duty on public bodies to say they must apply those principles in the wider context of the sustainable management of natural resources duty. So, I think that is a different starting point. It's not a case of having to have a policy statement that does all the work of the legislation, which arguably is what's happening with the Department for Environment, Food and Rural Affairs Bill at the moment. But as Llinos says, we need clarity about these things and there is likely a place for guidance to explain what they mean and how bodies are meant to apply them. But the policy statement being used at Westminster is being used for a different reason, I think.

09:40

And I think I'd just add that the case has been made on that point in pre-legislative scrutiny at Westminster in the Environment, Food and Rural Affairs Committee and the Environmental Audit Committee.

Thank you very much. We've got two people who want to come in on the next item—the governance of the body. And if I start with Llyr, or Jenny.

I think one of biggest issues is whether there's sufficient capacity and expertise in Wales, or indeed at a UK level, to support the establishment of a new and robust system for environmental governance post Brexit. It's all very well picking up a plastic bag in the far east that is badged with a particular Welsh council, but sticking to a private company that this piece of liquid pollution has come from their premises is complicated. So, I wondered if you could elaborate on how we can proceed.

I think we share a lot of concerns about the availability of both capacity and expertise to deliver on this. The EC is a large and established institution, and my understanding is, even they, when they are investigating issues under this, use external expertise. They have panels of experts, they call on them, they get evidence in. So, I don't think we should think you have to have a body that has every skill within it—I think that's unrealistic, even on a UK-wide level—and accept that there has to be some system of expert advice, because I think that's how it operates now. Perhaps we'll come on to it later, but that's one of the advantages that the EC has had, in that they're sharing expertise across a very large area, from different countries. I'm not sure how we would replace that in quite that way, but I think it would certainly be very difficult to replace using, say, only expertise that's in Wales. I think you would have to have access, in some way, to be able to share that expertise across the UK at the very least. That happens now with lots of bodies, from NRW to others who share their expertise across the whole of the UK, even though they have responsibilities under different legislation in different countries. I think that's really important.

And the capacity issue, nobody has endless resources and money to put to these, so I think it's one of the reasons why we're also quite keen that we look at how that sharing happens at UK level. How is there going to be collaboration between the different governance systems and the different countries? Is there going to be any overarching thing? What is the mechanism for dealing with that and how do you share that knowledge? And where you need consistency, let's say in delivering international agreements, there is some mechanism of achieving that, just as there is now, but also how do the different Governments resolve their disputes? Because there may be differences of interpretation or, in terms of their delivery of an international agreement, they may feel that one area's not doing what it needs to do. So, there have to be both political dispute resolution things, which you can stick to one side, because that won't be just environmental, but also this watchdog will have to, in some way, be able to collaborate UK wide to be effective, I think.

Earlier, witnesses have suggested that the model of the UK climate change commission might be a useful model to use, because, obviously, all the experts that we've been able to gather are represented there. They have a coherent advice on what the science is telling us, and still we have got a Welsh expert panel as well to deal with specifics in Wales. Is that something that you think we should pursue as an idea so that we capture the expertise whilst, obviously, reserving the right to go out and pick up additional expertise on specific issues?

09:45

That's certainly a model that I can see could work. I think the practical problem is a political one, rather than necessarily a technical one. I think that there are lots of examples of UK-wide bodies that have operated collaboratively and across different countries. I think, at the moment, it's a bit difficult to see that collaboration from all of the countries in the UK in the same way. I think Welsh Government has made it clear they're more than happy to try and look at co-designing something. If that can't work UK wide, I think the question remains: can it work for three out of the four countries, or two out of the four? That really is a political question, but from our perspective, yes, those sorts of models could probably work if their remit is set up properly and they are accountable. I think, for us, one of the key things is about their independence as well as their expertise, and you have to set them up to be accountable to the Assembly in order to be independent. So, that's why there's a slight political rub in it, because one body, whether it's the climate change committee or whatever, I'm not quite sure that it is yet—. I'm not sure about the Committee on Climate Change, whether it is actually responsible or accountable to the Assembly or not.

They advise us. The only two bodies—I think I'm correct here—who are responsible and funded directly by the Assembly are the Auditor General for Wales and the Public Services Ombudsman for Wales.

And I think we've suggested at the UK level that the new body should be of a similar status to the audit office, in terms of how it's constituted.

Which is different to Committee on Climate Change. It's advisory as opposed to independent, and I think our concern is about that independence. If you are going to have oversight over Government, you can't also be answerable to Government, or you don't have the independence in the system that there is now.

Or even funded by Government, because they can decide how much of the tap to put on or off at any time.

The other issue is, of course, that the UK Government's proposals for the OEP, I would argue—. Even though the Welsh Government hasn't set out proposals on a structure for a new body, it's outlined the key features of that new body in terms of its independent status and so on. It's also argued in the consultation that judicial review is not the appropriate mechanism. So, actually, the proposals from the Welsh Government or at least what they're saying about how these things should be framed are potentially more robust than what's on the table from the UK Government at the moment. So, that's another challenge in looking at UK arrangements versus devolved arrangements.

Yes. I was just wondering about international examples, actually, and whether you could suggest any examples out there internationally of environmental governance models that Wales would do well to emulate or at least learn from.

I think I'm going to say something very unpopular now, but I would say that the EU's approach is one of the strongest in the world.

Genuinely, in terms of international examples, it's quite hard to find something that's better than the way they have set up theirs. I mean, don't get me wrong, there are lots of improvements that you can make to it; it's far from perfect, being somewhat slow and cumbersome in many places, but genuinely it is quite a robust structure, I think, is what we would say.

You mentioned judicial review, and Dr Tom West from ClientEarth was before us last week, and he mentioned that there's an environmental court kind of thing. He said it isn't called that, but it's some sort of tribunal or court system in New Zealand, which he urged us maybe to look at. Would you envisage that kind of body or tribunal coming into existence?

There's already an environmental tribunal existing in the UK for England and Wales, so it would be looking to expand the role of that tribunal, I think.

Judicial review is so limited in terms of the way it can—you know, it can't—

09:50

—require remedies, et cetera. Yes, all procedural focused. So, we do need something alternative as a way of sort of enforcing what the governance body needs to do and needs in train.

NRW obviously has an important monitoring and reporting function in relation to all these matters, but, clearly, it can't regulate itself. So, I think it's really, 'What can we afford?' is part of the anxiety, because there are all sorts of calls on the National Assembly's revenue. So, I just wondered if you could give us a little bit more of an idea of how we are going to carry out these monitoring and reporting functions that are currently held by the EU. Would we expand NRW in some way to do that or do we need this separate body to do that monitoring?

I think there are distinct roles involved. So, NRW has a responsibility for monitoring site condition, for example, and the responsibility to prepare the SoNaRR report, which is about the state of our natural resources. I think there's a more overarching level of monitoring that's about monitoring compliance with requirements that are on public bodies—so, how are they being delivered, et cetera—which would be more the premise of a new body. But one of the things we suggested is that we should look into remaining a part of the European Environment Agency, which, basically, represents a massive resource for reporting and gathering information and it would be extremely difficult to replicate that outside of the European Union. 

Okay. So, the SoNaRR report is a very good first step by NRW, but nevertheless we have things like—. Ammonia pollution is a massive issue across Britain, largely—you know, nobody gets prosecuted, or insufficient people get prosecuted. So, do you think that new technology's going to make it easier to ensure that bodies are compliant and that it'll be easier to pinpoint where pollution's coming from?

I think there's two slightly separate things here, and maybe that's a very good example for us to try and separate out, because I've had this discussion many times in the Brexit round-table. The difference between the role of NRW in monitoring and prosecuting non-compliance to, say, regulation, is one thing. This body's role, as we would see it, is—. For example, if your example is right and we have persistent pollution problems from, say, ammonia, and NRW, whose role it is to license that or whatever it happens to be, is not performing that role and we are therefore not meeting our legal requirements, it is this body's role to take NRW and/or Welsh Government or whoever to task for that, I would call it, systemic non-delivery. It's not this body's role to look at, I don't know, individual farms or whatever and whether they are compliant to environmental regulation; that's NRW's role. And I think there's a lot of concern—from us, at least—that the two things are quite often getting muddled. So, the reporting—. The reason—. This body will rely on a lot on the reporting and monitoring that comes from people like NRW, but their role is to take an overview of the effectiveness of all of that data: what does it tell them about whether we are complying with, I don't know, pollution, air quality regulations, whatever it happens to be, and is there a systemic problem here that should be being addressed to comply with the law and isn't? And it therefore undertakes its own investigation. So, it's not just about it taking complaints from individuals or bodies; it's about it having an overview of all this data that is already collected. We're not really talking about—. We're not talking about expanding what's collected or monitored now; we're talking about what is the body that takes an oversight of that and says, 'Oh, it looks like there's a problem there', because we seem to have a persistent problem with this, or whatever, in one area of the country or another.101

So, I think trying to separate those out, for me, is quite important, because we're not trying to add more regulation or monitoring into the system; we're trying to replace a layer that is there. And, as Annie says, sharing that data across elsewhere is important. It's partly—. It will depend on what happens, obviously, with trade agreements and otherwise, but some of that may be required anyway—that others can see our compliance with legislation in order to agree to trade with us. So, there's a set of systems that are going to have to be in place for people to be sure that we can keep up our end of the bargain on any environmental standards that we sign up to as part of deals. So, I would agree with you that there is a cost issue; on the face of it, the only way we can actually reduce that is by trying to share those costs across the UK, because we're obviously trying to replace something that we currently pay for, because it's an EC function, but it obviously has its own scale, doesn't it? So, it has some cost savings because of the scale at which it operates, which we're trying to—trying to replicate all of that in Wales is impossible, I think.

09:55

Okay. You've suggested in your evidence that existing bodies—for example, NRW—must be required to report to the new body on environmental compliance matters, in line with environmental principles and overarching objectives. Could you just expand a little bit on that? So, you'd envisage that NRW, local authorities, anybody else whose job it is to regulate, would have to provide state of the nation reports to the new regulatory body. Is that right?

Yes. It goes back to this agreeing, ultimately, what is it that you need to be ensuring compliance. I don't imagine it's very different than it is now, or is likely to be, but the particular details may change over time. It's really switching from—at the moment, the UK Government has to report to the EC on all these things, so we already collect this info; we're just reporting it to the Commission. Well, who are we going to report it to in the new system? Well, it has to be some governance body—body or bodies. So, it's really about who's taking the information and what they're going to do with it in replacing the EC.

Okay. Thank you for that. Does anybody else want to expand on that principle? Fine. Okay. So, could you tell us—? I just want to move on to enforcement now. What are your views about the Welsh Government's proposals on both informal and formal enforcement to resolve issues of non-compliance with environmental laws?

I think what you need to see is a way that matters can be escalated by a governance body. So, it could start by making a notification and looking to work more informally with a public body and possibly a complainant to resolve an issue or identify the solutions and get a plan to put them in train. But it's important that there's recourse if that's not followed up on. So, the power to refer matters to the courts is important as a part of that enforcement.

Okay. You argue in your evidence that the EU's enforcement mechanism of ‘rectification of damage caused by an offence’ is crucial and that any loss of that would be a ‘significant regression’. Could you just expand on this? How would that translate into domestic arrangements?

10:00

Perhaps one of the things that I would say is that there are several ways that you can do that. I think, at UK level, we've suggested that you could issue a system of, say, binding notices, and, if you fail to comply with a binding notice, you are referred to the court for action because you've failed to comply with something that has told you to—. I've forgotten the correct technical term, I'm afraid, but there is a—. It's not a restitution notice, I can't quite remember what it's called, but there are various names for what could this body ask you to do. So, it's exactly the same as the EC does now—it will have an informal process; if that doesn't work, it has a formal notice system that you must take action in a set time frame, let's say to comply with air quality directives. And, if you don't do that, and you don't make progress and they're not satisfied, they can refer that to the court for infraction proceedings. And I think we're saying the same thing, that that process of escalating and including some kind of binding notice—I use that as a loose term; it's probably not technically correct—at a point where you would be asked to make good the problem that is happening also then needs the backup of some legal process if it doesn't happen.

It's a very cumbersome process, isn't it? Air quality is a good example of how, despite the valiant efforts of Client Earth, not a lot has happened. How would we make a UK system just a little bit more responsive to the urgency of this?

I would hope—and this is a bit of a hope—that one of the key things that would happen is the process would happen more quickly, because the other problem with it being at the EC is it's dealing with a vast number of issues across the whole of the EC, and you would hope that, if we're dealing with this domestically, either at UK or at Wales level, there will be far fewer things that it's having to deal with and to look into, and that the process—because that would be one of the key problems for us—of, 'We're investigating this; we'd like you to tell us about why you've not, apparently, got good enough air quality. What does your action plan look like? When are you going to do that?' That process takes years at the moment, literally years, with the EC. It happens quite quickly when it gets to the point, I would say, from experience, when the EC is saying 'Okay, we're going to issue—'—the court, I should say, says, 'We're going to issue daily infraction fines for every day that you do not comply'. That really focuses the mind, and suddenly people find solutions. And it is very rare that any Government ends up paying the fine, because that backstop at the end that says, 'This is going to cost you money' actually drives a solution coming forward and action coming more quickly. And I think that's one of our concerns about how do you make sure that there is something that has an equal driver to the speed of response in there. I think that's the difference. I mean, the Client Earth stuff hasn't gone as far as getting to the point where you would be fined for lack of progress, but you would have thought it would've got there by now, but it's not—

Okay. So, as far as you're concerned, infraction fines would be a key part of the suite of tools—

Yes, and we recognise that there is a bit of a problem, because who's doing the fining and where is the money going and what are you going to do with it and are you just recirculating it around public bodies? You have to deal with that. At the moment, you lose it—it goes to the EC—and I don't know how you would quite work out who takes the money and where does it go to have some fairness within the UK. But, to me, it's a system of deterrents that—. You don't get speed and you don't get compliance when there isn't something—you know, it's the same with companies and everyone else; they can see this is going to be costly if they don't do something now so they do something now.

So, Annie and Llinos, you agree that infraction fines are an important part of the enforcement process.

Yes, we do, and, again, it's a requirement of the withdrawal agreement that sanctions need to be effective, proportionate and dissuasive and have a real deterrent effect. So, we've argued that, as well as the other mechanisms, the body needs to have powers to investigate and not just respond to complaints. And I think the Welsh Government and the Assembly have set a good precedent in the way that you've developed the public services ombudsman legislation in terms of making the system accessible to citizens and also including the powers to investigate. So, the policy is there already really.

10:05

I think it's critical that whatever system is developed, any money goes back into restoring following environmental damage, and that it's not just drained from public bodies to make them less able to deal with problems—actually what goes to reparation—.

I would have thought so too, but that's something we'd obviously have to explore when we're legislating.

To what extent do you think judicial review is an appropriate enforcement tool, because it's quite cumbersome and can be quite expensive in resources and time?

Yes, and it doesn't examine the merits of a decision, for example. It'll look at whether the right processes have been followed in arriving at that decision. So, it's an altogether different mechanism to the European court, for example, looking at whether a decision is compliant with the intent of the law.

Okay, so other than infraction fines, are there other enforcement tools that you think this new body ought to have?

We mentioned the role of an environmental tribunal, so I think when you get to the stage of the courts, then it's the courts that have the enforcement powers, and a tribunal, as I understand it, gives more opportunity for bringing in expertise and considering the merits of issues and potentially could issue a binding notice then to set out steps that needed to be taken. I think there are systems that basically need to be reviewed and refined to make this work, but also to enable those Aarhus rights to actually be delivered, because without that access to justice in a meaningful way, then we're not delivering on those rights.

How do you prevent—I'm trying to think of the word—vexatious complaints from clogging up the system?

Yes, and I think that is a concern, and I think the first thing that has to be is that it is up to this body whether it takes forward a complaint or not, and that's the first and most important thing—that there is no requirement that it has to investigate everything, if it looks at it and thinks, well—.

Okay, thank you. Fine. I'll call Joyce Watson now, but can I remind people that we've got seven minutes left of the time that we've allocated? I'm happy for this session to run on until 10:30, if the committee and the witnesses are. Yes? Okay. Joyce Watson.

We've talked about the scope of the body—policy areas and public bodies within its remit—so there's no need to rehearse those again, but I notice that the RSPB states that the scope of environmental law covered by the body could be drawn from the Environmental Information Regulations 2004. So, for us to understand that, could you explain please?

Yes. So, this relates back to the way all of this is legislated for, because, obviously, the legislation for the principles is really closely linked to the provision of governance, and, in relation to the principles, we've suggested that we need to bring in the overarching objective to secure a high level of environmental protection. And if you start talking about the environment, you probably need to define that, and that definition of 'environment' that we've referred to is really well understood, is comprehensive and deals with all the things that have an impact on the environment.

So, then, in looking at the scope of the governance body, whilst looking at natural resources and those things that interact is a really good approach, we were just wondering whether—probably further analysis is needed—we need to go further and broaden out that definition, and that definition of 'environment' is a useful, well-tried definition that would potentially serve for that.

10:10

It's definitely worth looking at. It's an issue.

I'd just like to explore the advisory function that is envisaged for this organisation. The Auditor General for Wales has suggested that combining advisory functions with regulatory and enforcement functions includes an inherent conflict of interest. Do you think it's wise to have an advisory function combined with these enforcement and regulatory powers as well?

I think, from my perspective, this goes back to what you mean by 'advisory'. In our response, I've said I think we need to be really clear here what kind of advice we're talking about and the limits of it, (a) so that we're not confusing what the role of this body is with the role of other advisory bodies, whether that's NRW or the future generations commissioner or whoever it is. For us, the advisory function, if you think of it the way it happens now, it goes back to this: so, on the face of it, let's say that either you get a complaint or, on the face of it, there seems to be a problem with, I don't know, ammonia or whatever it happens to be, and the first stage is actually about the body raising that with whoever is responsible and giving them an opportunity to explain and to say, 'Well, actually, we have a plan' or whatever it is, 'This is it, this is the time frame.' And the advice is really around whether that is enough to be compliant, to put it simplistically. It's about: is that action plan sufficient and are your proposals sufficient, in our view, to meet the law?

This, for me, isn't about the body advising, I don't know, Government on how to develop a policy on meeting a biodiversity target or something; it's very specific to how you get effective compliance with the law. I think it's less of an issue, then, in terms of this—. And we would agree, and we had lots of arguments about this when NRW was set up, about the problem of being an adviser and a regulator. I think, in this instance, if you're restricting the advice to compliance with the law, you're not in quite the same way getting yourself into this difficulty. If you broaden that advisory role, my other concern is not so much that problem but, going back to Jenny's point about resources, you're not going to be able to resource a body to advise every single public body or somebody else on every aspect of where they might be slightly concerned about the interpretation of a piece of law. That's what they'd buy legal advice or something for. That's not the role of this body. So, you wouldn't then have them coming along later and saying, 'Well, you didn't comply with the law', and the body going, 'But you told me that was okay.'

I think it is quite a difficult thing, and you still have to put some mechanisms in internally to make sure that there isn't a problem, but I think part of this is about being very clear about what you mean by 'advice'.

Well, that's very interesting because NRW obviously does have these endemic conflicts of interest, which we've explored on other occasions, so I do think that limiting the scope of this is one likely potential solution.

Yes. The one thing I was also concerned about is that, in the consultation, Welsh Government seemed to be suggesting that the advice would be restricted to the sustainable management of natural resources. This body is about—should be about—the application of all environmental law. That is only one piece of environmental law. We have lots of others that have been around for many, many years. So, that wouldn't be the restriction in definition that I would suggest. 

10:15

Yes. I'd just say that there's a potential strategic role in—. If there are systemic failures in delivery of a law by multiple public bodies, then that might be something this body could look at and advise as to whether that law needs to be changed, or there's general failure to understand its requirements—that sort of thing. So, strategic advice as opposed to coalface-type advice. 

Thank you, Chair. We've touched a couple of times on this tension—well, maybe that's over-egging it—or the potential scenario of a UK-wide approach, or a discrete, dedicated Welsh approach. And I note what you said in your respective papers about the preference of having some sort of UK-wide set of principles, let's say. Is there not a risk with that that we end up with the lowest common denominator?

I think that is a risk. And I think you're probably noting that I reflected within our evidence that there are lots of potential benefits to creating a UK-wide body in terms of its robustness, its resources, et cetera. You have to deal with risks like whether it sinks to the lowest common denominator and, actually, whether it is flexible enough to deal with the different legislative environments and the different countries. But that's something you need to acknowledge and address, so it's not a complete barrier; it's just a sort of risk that's part of the mix. 

I think it's critical that, whatever the institutional arrangements, there is some co-design of how this all works, because even if there are different bodies in each country, they're going to have to have duties to co-operate with each other. They're going to have to be bound together somehow legally, and that role of a shared UK set of principles potentially is a part of that. 

So, just to characterise, what you're saying really is you would like to replicate what we currently have on an EU level on a UK level, where you have the overarching frameworks and then there's scope within that for individual devolved administrations to implement and interpret. 

Yes, and I think this goes back to you have to have some common minimum standards to deal with transnational or transboundary issues. The seas are a particular nightmare, which some of you might remember from the marine Act many years ago that we had a bit of a nightmare with, because, simply, those boundaries don't really exist in environmental terms. But, also, going back to the international agreements, whether those are trade or other agreements that require certain standards to be met across the whole of the UK, so there has to be some mechanism for making sure that everybody is meeting those. But you also want the flexibility to do more than that, if, for example, Wales is going to sell itself as a more sustainable country and it wants to go beyond what's happening in England, Well, maybe there's the possibility for it do that, but it's not undermining those standards; there is a minimum. 

Although, I have to say that, currently, we've not seen that kind of mutual respect in terms of co-design and co-ownership in any other sphere in this sort of post-Brexit, or preparing for post-Brexit, governance in other spheres and around land management and all that really. We're not seeing that happening, are we, so I'm not sure that I would have confidence. Would you? 

I think that's the difficulty, isn't it. They did actually sign an agreement two years ago on inter-governmental arrangements, and how they would develop their thinking, and they don't appear to have stuck to that agreement. Welsh Government are suggesting that maybe we should have four core principles applied across the UK, but they don't want—. The UK Bill provision on the principles are intended to apply to England only, and they've made clear in statements that the working relationship has been problematic. So, that does cause some complexity. The Institute for Government has actually looked at Brexit, and specifically environment, fisheries and agriculture and what needs to be put in place in terms of inter-governmental arrangements. And they've suggested that there needs to be a review of current arrangements—the Joint Ministerial Committee, for example—to look at reforming those arrangements to make them fit for purpose.

10:20

Just finally from me on this, then, NFU Cymru suggested last week—or when they were giving evidence—that the window of opportunity to legislate for this UK-wide approach has passed, because, clearly, the clock is ticking. Do you agree, really, that retrofitting some sort of UK-wide arrangement into the environment Bill—or wherever it would sit—is clearly not the way to do it, but it's probably too late to achieve what we're hoping to achieve at this stage?

I'm a bit surprised; I'm not really sure why they think the time has passed. No legislation has been passed in any of the four countries on this, yet.

I don't know—and this is where I have sympathy with all the governments trying to work together on this. There is such uncertainty at the moment as to what is actually going to happen, and when, that a lot of time and effort is going into preparing, I guess, for that, and much less capacity is available, in all those countries, to look at what's the ideal solution that they would like to be aiming for and spending time on. I think that's why I'm saying I'm not sure the time has passed, because there may be opportunities coming because of a different solution coming in the autumn and different leaders in the UK than there are now. So, it's very hard to know whether the time has passed. I don't think I'm quite as pessimistic. 

I heard what the witnesses said about lowest common denominator. Only last week, we were talking about the clean air Act, and what we could do about clean air. It's worth reflecting that the Westminster Government are actually wanting to sign up to World Health Organization standards rather than European standards, which are over and above what the Welsh Government are looking at. And so saying that we're the exemplars all the time—actually, we could be holding back other parts of the United Kingdom, and that's worth reflecting on, that is, is it not? I think, by the shaking of heads, there's agreement there. But I'd also like just to reflect on maybe how a UK-wide body might advise on trade. Because obviously, environmental principles are an important part when it comes to trade, they are. How does it work at the moment, from a European level, when Europe are negotiating trade arrangements for environmental considerations? Because we can have and set the goals as high or as low as we want to, but the fact of the matter is that economies work on being able to trade globally, and also locally as well. So, I was just wondering, have you got any insight into that? Because some people quite rightly reflect on the fact that environmental principles could be sacrificed on the altar of international trade.

Well, I certainly don't know how the EC operates now in terms of its trade negotiations, except to say that its environmental standards, as part of its requirements of countries trading with it—it has raised standards, generally, over the years. I'm not aware of how that then—. Because we don't have separate trade deals in every instance, do we? I really don't know how then—

But is it not an important consideration, if we are looking at this UK-wide body? And what Jenny introduced about capacity—I would think that most people would subscribe to the point about building capacity. And from a Welsh point of view, that will be quite difficult. So, looking at it UK-wide, you've got this conflict of trade and the environment, haven't you, as such, then. And surely, any recommendations need to reflect that, in the construct of the group that you'd be looking to replace the European group.

I have to say that's not an area I—. There is a lot of discussion, certainly within the NGO sector, about how the trade deals are going to relate to meeting the requirements. But going back to, for example, the withdrawal agreement—if that continues—there are clear commitments in there that would restrict the type of trade deals that you're talking about, because we are making commitments to maintain the standards that they are now, not drop them. And that's assuming that you would then want to trade with Europe, primarily. But how that's going to play out at a UK level, I—

10:25

Well, just to say that it is actually a requirement in the withdrawal agreement, and so if that doesn't change, there's the imperative there to maintain standards across the UK. How we go about that—. Because it seems at the moment that each Government is going to be pursuing its own legislation, apart from Northern Ireland, I think, which will be part of the UK Bill arrangements. But it's not clear how that's going to be achieved, and it doesn't necessarily need to be achieved through legislation; it could be non-statutory agreement. 

Okay. I just thought I'd throw that in. My main question was about transitional arrangements. Assuming, say, there isn't a deal there on 31 October or whatever, what confidence have you got that if we were to leave the European Union on 31 October without a deal, the transitional arrangements that Welsh Government have put in place or talked about are sufficient? And if they're not sufficient in your mind, what do you think needs to be added to make them more robust? That's to all three of you.

I think, in terms of transitional arrangements, the only thing that it says in the consultation on that is that they will continue to apply the existing principles of Welsh law. It also says that they will apply the four core environmental principles from the Lisbon treaty, but they don't explain how they propose to do that. But in terms of other transitional arrangements, I don't think they've provided any proposals, although they, I think, have stated that they don't want to sign up to the UK Government's transitional arrangements, which is to set up a commissioner to receive complaints. So, they do need to actually make proposals themselves. 

I just want to know how would you do it. Who would you give this job to? Some people have mentioned the public services ombudsman; some people have even mentioned the future generations commissioner, which I have a view on. But I'm interested to know how you'd do it. 

I think it depends on—. I think when the ombudsman's been—. Let me back up a bit. The proposal in England that the Minister has said she doesn't think is very effective, I think she described as, 'Nothing more than a postbox', as in it's collecting complaints but it's not investigating them, as in it's banking them for when there's a shadow body in place. That's my understanding. If you were to replicate that in Wales, yes, you could have an ombudsman collect that. It's when it comes to the investigation that you need the expertise et cetera, and we don't currently have any body that is set up with an ability to do that. And that's where it becomes very difficult. And, I mean, England have, I think, just recognised that fact and just said, 'Until we set up a shadow body, which we are proposing to do, we will just collect them in this way'. And I think if that's the best we can do in the short term, okay, but actually not investigating complaints—for how long? How long is that transition before we get a new body? Realistically, even if you did it now, you must be two years away from setting up a body like that, between the legislation and then the practicalities of setting up something that will investigate. So, you're looking at having several years where there is no oversight.

So, you wouldn't see value in having a sort of ad hoc panel of five or six experts or individuals in place just to field some of those in the meantime?

Having a shadow body would be ideal, yes, but there is no proposal at the moment. 

Well, can I thank you very much for coming along and giving evidence? I'm sure when we produce our final report, you'll see a large amount of your evidence in that final report. So, thank you all very much.

3. Papurau i’w nodi
3. Paper(s) to Note

Colleagues, can I ask you to note the correspondence from the Minister for the Environment, Energy and Rural Affairs to the Chair in relation to the forthcoming meeting of the energy and climate change inter-ministerial group?

4. Cynnig o dan Reol Sefydlog 17.42(vi) i benderfynu gwahardd y cyhoedd o eitemau 5, 6 a 7 yn y cyfarfod heddiw
4. Motion under Standing Order 17.42 (vi) to resolve to exclude the public from items 5, 6 and 7 of today's meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

Can I move a motion under Standing Order 17.42(vi) to resolve to exclude the public from items 5, 6 and 7 of today's meeting? 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 10:29.

Motion agreed.

The public part of the meeting ended at 10:29.

Archwilio Cynulliad Cenedlaethol Cymru