Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Newid Hinsawdd, Amgylchedd a Materion Gwledig

Climate Change, Environment and Rural Affairs Committee

20/06/2019

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

Y rhai eraill a oedd yn bresennol

Others in Attendance

Alan Hunt Uwch-ymgynghorydd Polisi Brexit, Cyfoeth Naturiol Cymru
Senior Brexit Policy Adviser, Natural Resources Wales
Charlotte Priddy Swyddog Polisi, Undeb Amaethwyr Cymru
Policy Officer, Farmers Union of Wales
Dr Tom West Cynghorydd y Gyfraith a Pholisi ar gyfer Amgylchedd y DU, ClientEarth
Law and Policy Adviser for UK Environment, ClientEarth
Huw Thomas Ymgynghorydd Gwleidyddol, NFU Cymru
Political Adviser, NFU Cymru
Rebecca Williams Cyfarwyddwr yng Nghymru, Y Gymdeithas Tir a Busnesau Cefn Gwlad
Director for Wales, Country Land and Business Association
Ruth Chambers Senior Parliamentary Affairs Associate, Green Alliance
Uwch-gysylltydd Materion Seneddol, Green Alliance
Ruth Jenkins ennaeth Polisi Rheoli Adnoddau Naturiol, Cyfoeth Naturiol Cymru
Head of Natural Resources Management Policy, Natural Resources Wales

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Andrea Storer Dirprwy Glerc
Deputy Clerk
Katy Orford 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 Members to the meeting? John Griffiths and Dai Lloyd have now left the committee, as we've had committee changes and a reduction in the size of committees to six. I think we would like to thank John and Dai Lloyd for their contribution to the committee's work. Dai has been on and off this committee several times, so I wouldn't be surprised to see him returning at some stage. [Laughter.] Any Members got any interests to declare? We've had apologies from Neil Hamilton, and Jenny Rathbone and Andrew R. T. Davies are going to be late. 

2. Egwyddorion Amgylcheddol a Llywodraethu Amgylcheddol ar ôl Brexit - Sesiwn dystiolaeth 2
2. Environmental Principles and Governance post-Brexit - Evidence session 2

That takes us on to environmental principles and governance post-Brexit—evidence session 2. And it's my pleasure to welcome Alan Hunt, senior Brexit policy adviser, Natural Resources Wales, and Ruth Jenkins, head of Natural Resources Wales management policy. Hope I got that right?

Yes, you have. Well done; thank you. 

If I haven't, I've got people to tell off. [Laughter.] Are you happy if we move straight to questions?

We've heard from some stakeholders who believe that existing Welsh law does not provide equivalents to the European Union prevention and precautionary principles. What are your thoughts on this?

We think it's important that all four principles are recognised as overarching principles, either at a UK or a Wales level, rather than focusing on them in isolation in specific functional legislation that may not provide comprehensive coverage. So, whilst we support restating the two principles in Welsh legislation, or UK legislation, we would like to see all four principles restated. 

We think it's important that there's an overarching framework, with a clear integrated objective of a high level of environmental protection, as is currently the case. 

I want to look at it from the principles to the objectives. You referred to the need for an overarching objective, a high-level environmental protection. So, why do you believe that that's necessary, given the current protection afforded by the Environment (Wales) Act 2016 and the Well-being of Future Generations (Wales) Act 2015?

So, having an objective as an overarching framework that supports the four principles would help to underpin it and provide a framework for public authorities that supports delivery and proportionate application of the principles. And I think it's important to recognise that these are currently the case, and were there in legislation to frame the application of the environment Act and the well-being of future generations Act. So, it's currently the case that they supported the implementation of those two pieces of legislation. 

So, do you think, then, that those objectives should be explicitly set out in the Welsh primary legislation? Is that what you're saying?

We would like to see the objectives and principles set out either in Welsh legislation, or also UK legislation as well.

09:20

Some of the evidence we've received suggests that the Aarhus principles should be enshrined in domestic legislation and that this might be an opportunity to do that. What's your view on whether that should be the case?

We support the principle of open access to information and to decision making. The current process provides free and open access for any citizen to raise a complaint or raise a concern directly with the European Commission, and we would like to see an appropriate process that’s accessible by members of the public and other interested parties that's free and open in the same way.

Yes, because we’ll still be signatories, we’ll still be part of the convention, but do we really need to enshrine that in law in order to strengthen it or to make sure that it doesn't get lost in any way? That’s what I’m asking, effectively. Because, for example, ClientEarth tell us in their evidence that

'rights do not have the same legal character as principles'.

We believe that it would be helpful for that to be enshrined in law, if we don’t want any regression from where we are now.

Okay. Fine. Thank you for that. Can I just ask about the application of the principles as well? Which bodies or who do you think should be subject to these?

Currently, the principles are legally binding on all public authorities, including Ministers and Government departments, in the application of their relevant functions. So, we’d like to see the EU environmental principles, and whatever follows them, apply to all Welsh public bodies in the application of their relevant functions as applied to the environment so that there’s a continuation and no regression.

And what about a potential issue between Crown bodies that aren't subject to Welsh Government and bodies that are? Because clearly there's an inconsistency there that could lead to all sorts of confusion and conflict.

Yes, I think we'd agree. In our consultation response and in our letter as written evidence to this committee, we said that we'd like to see an overarching framework at UK level that provides for that and ensures there isn't a gap where there is a meeting of devolved and non-devolved remits.

And we'll come on to interrogate that a little bit further later on, if that's okay, Chair.

The only other thing I wanted to ask was—. There's a policy statement, isn't there, in the UK environment Bill. There's a policy statement, I think, being proposed in Scotland as well. But the Welsh Government says that we don't need one in Wales, referring, I presume, to existing legislation and that kind of thing. Is that sufficient, or do we need the clarity that maybe a statutory policy statement would bring?

Do you want me to answer that? I think if we had this overarching set of principles, set in the context of a clear objective—. In relation to the policy that is set out in the current legislation in Wales, it is obviously framed around those principles that are currently set out in that EU treaty. So, the policy that we have in Wales is relevant, because it is already established in the context of those principles and that objective that's set out in the treaty.

Okay. Thank you. Can we talk about environmental governance specifically? How might the functions of a new environmental governance body complement NRW’s current role, or will it be in conflict with it?

It is important to ensure there's clarity in terms of the role and function of any new body and existing bodies and, where there are overlaps, to clarify exactly how those exist and how those will be dealt with. There’s value in maintaining the current provision for high-level strategic advice and guidance, for example, that Europe provides on standards and on issues that are raised at international level. There’s potentially significant value added at that level. However, it is important to provide clarity that NRW takes a leadership role, for example, in providing advice and guidance on sustainable management of natural resources principles and applications. So, there’s a need to ensure the new body’s remit is clarified there.

Yes. So, for us, in order to get, I guess, the benefit, we need clarity and clear differentiation.

So, if I can paraphrase it and you tell me if I've got it right or not, what you're saying is we need to have what you're doing and what's laid out for the new body to be set up and to ensure that there's no duplication between the two and they complement each other.

09:25

Thank you very much. Welcome, Andrew. Moving on, how confident are you there is sufficient capacity and expertise in Wales, or at a UK level, to support the establishment of a new and robust system of environmental governance post Brexit? Really, two points: are you likely to start losing some of your staff to this new body and will that leave gaps with you, or are there lots of people out there who can fulfil this role and we will have no problem?

I think it's important to recognise that there are some aspects of our work and the proposed work for the new body where there are quite scarce resources at a Welsh level and, potentially, at a UK level. So, there's value in working with other administrations at a UK level to share expertise and resource in that sense, and also internationally if we're able. 

I think it's also relevant that, as we see it currently with the European Union, they set up technical groups to actually help support their advisory role. Therefore, we can draw on existing resources if we were to do something similar in Wales.

I don't know the answer to this—you may not either—but are there people working in the European Union at the moment who are Welsh who could potentially come back to Wales in order to fulfil some of this function within Wales, because they may well no longer be employed by the European Union?

I don't think we're in a position to answer that question, sorry.

I didn't think you would be able to, but I think it is an important question to ask somebody, because if we've got a shortage of people skilled in this area, and you've already said that, then if we can bring back some of the people currently in Europe, that might meet part of the shortfall—that's the point I was trying to find out. Perhaps if you're not the right people to ask, then somebody else must be. Thank you.

Monitoring and reporting function—notwithstanding NRW's role, what further domestic arrangements will need to be put in place to fill gaps with regards to the monitoring and reporting functions of the EU? 

Currently, EU directives require monitoring and evidence-based reporting against environmental standards. Some of these are aggregated at EU level and provided to international obligation or direct to UN obligations. I think it's important that there's not a gap here, and that we recognise that there's a need for further clarity on how reporting and aggregating of environmental monitoring data for Wales and the UK against international and UN requirements is undertaken and delivered in the future. 

If you treat this as an administrative rather than a political question, what are your views on Wales remaining a member of the European Environment Agency post Brexit, in terms of working with them?

There's significant value in maintaining a working relationship with other bodies, and the European Environment Agency is one of those. They're able to provide research and evidence capacity that we don't have in Wales. They're a link to other administrations and other regulators across Europe, and there's value in benefiting from that knowledge and expertise. 

There's another question that you may not be able to answer, but what help and support do you expect to get from other regulators across Europe when we cease to be a member of the European Union?

We have an intention to try and maintain relationships at an international level. Some of our work already sees us working at an international level and we get great benefit from that, as we are also able to take out on an international stage what Wales is doing and the work that we're doing in Wales, which is seen now on a world stage with our new legislation here in Wales. I think it is important to maintain that connection.

Thank you. You highlight potential impacts on your role in terms of gaps in monitoring and reporting following Brexit. Can you expand on this in the context of European Union and international requirements?

In terms of monitoring and reporting against international requirements, I think I outlined earlier there are some aspects of EU directives that help aggregate those at an EU level for international standards. There are a number of other areas where we provide data and evidence to UK level that meet international standards as well. For example, the Joint Nature Conservation Committee, on behalf of the UK's statutory nature conservation agencies, aggregates data on protected sites and species, and that's a valuable process that Wales is part of.

09:30

Many. There are a number of UK frameworks that we benefit from. The UK forestry standard is another. The UK technical advisory group on water framework directives is another aspect that's very valuable and supports our work.

I think, just for the record, and perhaps people looking in to try and understand what is quite technical at the moment, could you further expand on why it's important—what exactly the international requirements do for us in terms of advantages that we accrue, but also the other side being the necessity of following these rules, for us?  

I think on the side of the advantage, obviously, the environment is a dynamic system. It works across countries and across boundaries. Understanding the wider stage on which we are trying to manage the sustainable management of our resources requires us to see how that works wider than Wales. But it's also an opportunity for Wales to demonstrate the value that we bring on an international stage. So, I think it's really important that those things are aggregated. And the value of maintaining that aggregation of information allows us to see across that dynamic system.

Okay. If I can—can I, Chair? There's a really good example everybody's tuned into at the moment, and that's plastics in the ocean—how we might deal with that. It doesn't start in our seas and it doesn't end in our seas, but everybody's very aware that we need to tackle it on a worldwide, international basis. So, if we just use that as an example, would that be the right example of the sort of things that you're trying to talk about?

Yes, I think so. And climate change is another, and air quality and water quality. We work very closely with other regulators in the UK, for example, and with Ireland.

Thank you. I'm just trying to bring some life into what is, potentially, for the audience, perhaps a dry subject that doesn't affect them.

Ruth, you introduced there the legislative framework that we have now in Wales in your earlier evidence, and you touched on, I think, the future generations Bill. In a recent court case, Mrs Justice Lambert basically said that it was not the best piece of legislation. In fact, it was very broad—it was meant to be very broad—and it didn't reflect or it didn't help individuals; it was more for organisations. And the barrister in that particular case actually said it was a toothless piece of legislation as well. What's your thoughts on the future generations Bill if it is the case that, obviously, it is world leading and we're going to rely on it, given that this judgment is quite damning of it, to be honest?

I think it's really important to remember, in terms of that framework legislation, we're not just talking about the future generations Act; we're also talking about the environment Act. One of the reasons in our evidence that we are suggesting that the four principles here need to be applied together is that they help us to provide a framework for our legislation in Wales and, if we lose them, I think that would be to the detriment.

I think the other thing to remember is that the application of those principles in the context of our Welsh legislation for all public bodies, and all the decisions that we make individually, helps us to think about those decisions as more of a collective. So, this issue around us having collective responsibility for the environment is really important. And the other thing to remember is that that framework legislation acts in the context of individual pieces of domestic and European legislation, and it's important to remember that NRW itself operates around those existing pieces of legislation, but in the context of our framework legislation and those principles. Those things all work together to help us to think about how we work and make decisions around protecting our environment and helping to manage, sustainably, our natural resources in Wales.

So, do you think, given the new environment we will be moving into once we leave the European Union, that the future generations Bill, which was obviously devised not with this in mind, us leaving the European Union, does need a review, a revamp, so that it can cater to the new demands that we will face?

09:35

I actually think the fact that Wales has that legislation is actually a big advantage to Wales in the context of leaving the European Union. I think it sets us in a very good position, with others understanding the ambition that we have in Wales for managing our resources sustainably and meeting the principles of sustainable development.

I think, inevitably, the opportunity will be seen for existing legislation, which is being transposed at the moment for the Wales situation through those statutory instruments, and one of the reasons in our evidence that we're suggesting that we need this collective set of overarching principles is that we may see change over time, but the fact that we have that framework legislation is making a clear statement and sets out what Wales wants.

I think we'll have an opportunity to ask further questions to the Minister on the future generations Act before the end of term, and I'm sure, Andrew Davies, you will want to ask a lot of questions along those lines.

Okay. Moving on to the enforcement functions, what are your views on the Welsh Government's informal and formal enforcement proposals to resolve issues on non-compliance with environmental law?

We think it's important that there are credible sanctions and that they are set in a framework that makes best use of public money, but we would like to see a focus on remedial action to rectify issues as a first step and as a primary purpose of that enforcement process, rather than an immediate focus on punitive action.

If you work on the assumption that most people, when they do something wrong, do it by lack of knowledge and by mistake rather than just trying to take themselves outside the law, isn't it true, what you've just said, that it would be beneficial to help them to act within what the law is, rather than immediately take them to court?

Yes. That is the basic principle of better regulation, that we work with people to help them to do the right thing, based on the fact that people don't set out, normally, in relation to the environment, to do the wrong thing, so we help them. I think there's also an issue there around the value of having those principles in place, the principles of prevention and rectification.

This is not relating to this, but it's relating to, it's an area you are involved in— people who fish, and different bits of river are owned by different people and some—. Actually, within the enforcement of that, the first time somebody transgresses by 10m over the line, the warden has to tell them, 'You've gone past the brook, which is the boundary,' and, if they keep on doing it, then having to take action. Is that the same principle?

In a simple sense, then, yes. Obviously, if people are continuing to do the wrong thing and are doing it more deliberately, then—. That's why, I think, as Alan has stated, it's important that we've got credible sanctions available, but they should be the last resort.

What are your views on the need for infraction fines where a public body does not comply with an initial judgment that a breach has occurred, which is currently, I believe, under European Union law?

It is important that there's a credible final sanction in place. We'd like to see all efforts made to resolve issues first. So, there might be steps needed to undertake binding actions or, for example, enforcement undertakings or a similar process where there's an obligation enforced by a court to fix issues first, with the threat of infraction if needs be.

To what extent is judicial review an appropriate enforcement tool? Could something else be used? Judicial review is, of course, expensive, lengthy, and doesn't always come up with the answer you think you're going to get.

I think judicial review has its place, but there is a need for other tools that allow investigation and members of the public to raise complaints that can be done so freely and directly to the body, that also allows issues that are substantive rather than procedural to be investigated.

If we start off with the basic principle that we want to protect the environment and that most people don't want to do harm to it, then surely there's got to be a system by which we can ensure that we have a governance system that actually makes sure that doesn't happen, and, where it does, we put it right first. If people keep on saying, 'We're going to ignore it. What are you going to do about it?', then we need a final sanction that will actually deal with it. 

09:40

And, finally from me, how might the new governance system be used to strengthen and complement existing protections whilst avoiding overlap with the roles of existing regulatory bodies in terms of enforcement? 

Well, I think we'd go back to our earlier comments in terms of there's a clear need to state exactly what the role and remit of any new body is and how that interrelates with current regulators and with other bodies elsewhere in the UK, and having an overarching framework at a UK level would support that. 

Yes. Just picking up, really, on enforcement, because one of the big frustrations on an EU level is it isn't always as transparent as you'd like it to be and it can take years, sometimes, for cases to be concluded. So, any thoughts about how we could use this opportunity to improve? I just noted that in the WWF Cymru's evidence they recommend a publicly available log, for example, so that you can actually be fully aware of where every case is at and that it's updated regularly. Because this could be an opportunity—well, it is an opportunity; or, potentially, if we leave the EU, it's an opportunity—not just to recreate, of course, European structures, but actually recast the whole system and make it much more efficient and effective and transparent and timely. 

I think we'd agree timely and transparent is important in dealing with complaints in transition as well as when the body's implemented. So, it's important that there's an appropriate mechanism for registering and dealing with complaints and recognising that the public should have access to those decisions and understand them and understand the time frame. 

And could we go as far as suggesting an outline time frame for different types of cases that—? Sometimes, of course, things might take longer than you'd wish and you accept that, but—. Because, in the planning system, for example, you have a timescale, don't you? You can expect a decision within a certain time. Is that the kind of approach you think that we should be looking at?

That's an approach that we take with a number of our permitting regimes, and it's a useful way for stakeholders to understand the process and the time frames expected. 

Okay. Always accepting that, you know, things might take longer than you wish, but at least there's some sort of indication, isn't there? 

Okay. Thank you for that. I'm interested in the constitution of any new governance body, particularly making sure that it's independent and that it has that integrity. So, how can we best ensure that, do you think?

We're supportive of the principles set out in the consultation in that the body should be independent and should have oversight—that, in Wales, might be to the Assembly Government; at UK level, could be to Parliament. There's significant value in having it removed from oversight of other bodies because it gives it that independence and that clarity to be able to investigate issues. 

So, just to be clear, you said, 'Assembly Government'. Did you mean the National Assembly or the Welsh Government?

The Welsh Assembly Government, I meant, yes.

The National Assembly. Sorry. 

The Assembly, yes. The Parliament, if you like. Okay. So, similar to what's proposed on a UK level. And the funding, then—? How would you see that working? Would you see it coming directly from the consolidated fund or—through the commission as opposed to coming from the Government, clearly, because otherwise you'd be running against the principles that you've just outlined?

I think that, likewise, the money has to come from a source that allows the body to be independent. 

So, would you see it, for example, coming from the same kind of source as the public services ombudsman, the audit office in Wales, those kinds of independent bodies? 

That would seem to make sense. 

I think that Llyr's made a very important point there, because the only way that you can make a body responsible to the Assembly as a whole is for the Assembly as a whole to fund it through the consolidated fund. Once you have it funded by anything else, either the commission or the Welsh Government, it then becomes responsible to them, not the Assembly as a whole. Would you accept that?

Having decided who's going to fund it, we now need to decide who's going to be under the remit and the policy areas, mostly the public bodies. So, the Welsh Government at the moment proposes the remit should include the Welsh Ministers, NRW, Welsh local authorities and Ministers of the Crown, and that's consistent with their current responsibilities under the Welsh environment Act. Do you think that that's an appropriate list of bodies?

09:45

In application of the principles, they currently apply to all public authorities, including Ministers and Government departments. So, the application of the principles—we would see that that being a similar process would be useful. In terms of the SMNR duties, we agreed with the consultation proposition.

Can I just probe that a bit further, if I may? I touched on this earlier really, on this sort of conflict between UK bodies or UK Government, Crown bodies and devolved organisations. We, effectively, have two regimes, don't we? And we have organisations that are subject to one or the other, and we have organisations that are subject to both. That's a bit of a dog's dinner, I would say, but there we are. So, how can we use these potential changes? I would be arguing for the Crown bodies to be subject to Welsh law and Welsh principles because, if they're operational in Wales and if they're acting in Wales then surely they should be subject to that territory's rules, but I'm just wondering if you have any thoughts about how that could be disentangled a little bit.

Maybe not so much disentangled, but I guess one way of dealing with that would be to make sure that any body that's set up in Wales has very good association, communication and contact with any body that is set up that then oversees other bodies that are operating in Wales but which are overseen elsewhere.

And in a system where, potentially, you have one set of standards that are considerably higher than the other set of standards, I imagine that, as an organisation, you would be keen for the highest level to be applied to all bodies.

Yes. And I think we said in our evidence that there is opportunity from having an overarching UK agreement on what that looks like.

You would certainly need to avoid gaps in governance where there are UK bodies that aren't subject to individual administrations' oversight.

Thank you, Chair. The auditor general has provided us evidence where he's indicated that there could potentially be conflicts of interest where there's the advisory role and the regulatory role under one roof, if you like. And NRW is a good example of this because you've got both hats, really, you have. I'm interested in trying to understand how as an organisation you manage to split that out from maybe a governance point of view, avoiding that conflict of interest that the auditor general has pointed to and that could be legitimately worked through to a conclusion that says there is a conflict of interest there.

There are two issues there for me. Internally, obviously, we operate very operationally and, where we do, and in accordance with a code of better regulation, it's really important to see the role of adviser and regulator actually coming together. But I accept that there are occasions where we need to provide advice directly, perhaps to the Welsh Government, and, in which case, I guess we have managed that both structurally but also in the context of our own internal governance.

So, how exactly do you do that, from a working example? Have you got something you could give us as a clear example of how you do that on a day-to-day basis in the way that you've organised yourself and structured yourself?

Yes. So, structurally, and, in accordance with our internal governance, we have separate internal governance for our regulatory work, which has an internal governance board on our day-to-day operational work, and we do have some separation of functions. So, where we are, for example, regulated—so, we obviously manage land and do things on that land that requires regulation—we have structural separation of those functions internally.

So that would be a good example for the committee to consider, would it?

Yes. We've touched a couple of times on a potential UK-wide arrangement or understanding or even body—some might argue for that. Could you just expand, then, a little bit on why you think—? You've mentioned that you'd like to see some overarching principles that everybody's subject to and then, within that framework, if you like, each devolved administration would have flexibility to implement. Is that how you see it, just to be clear? Or do you see it as more of a formal UK-wide structure that everybody is subject to?

09:50

If we take the current framework, there is the ability for any administration to apply its own legislation.

EU framework. And there is value in recreating a similar framework at a UK level, and it would allow for devolution and for variation at the UK level within the framework of an agreed set of overarching principles. What it would do is reduce the risk of regulatory divergence and support our work in terms of working with landowners and regulated industries and other regulators around the UK to deal with transboundary issues, and to ensure that there is a similar approach on either side of the border or in different parts of the UK. And it would provide clarity and a means to take a collaborative approach where there are issues that might occur in one administration but have an impact in others or might need a joint response, such as air quality or water quality.

Is there a danger that brokering that common framework across the UK might lead to a sending up of the lowest common denominator, and therefore reduced standards, effectively?

I think there are risks and opportunities. There's the opportunity that through us taking a role in developing a UK framework, we could encourage other administrations to consider Welsh legislation and the approach and benefits that we have in Wales with that. Having an agreed set of principles is more likely, particularly if restated in legislation, to underpin a common approach that has high standards in the future, particularly since all administrations so far have stated a desire for no regression on current standards.

So, you would suggest that the UK Bill is a missed opportunity if it doesn't address that opportunity in some way or other?

Yes, I think so. But, obviously, it has to be beneficial to what we want in Wales.

It needs to be an union of equal partners, clearly. Yes. Okay. You made the point—I think it was in your paper—about cross-border rivers and a consistent approach across river catchments, and I can understand the rationale for that. So, how do all the other countries in the world manage that?

There is, yes, but, you know, there are a lot of countries that border the EU, for example.

In other parts of the world, there's considerable scope for cross-border agreements. I don't think we're necessarily experts on how that works elsewhere.

No, no, but it isn't unique to Wales, is it, this kind of situation, where you have one set of rules on one side of the border and another set of rules on the other side of the border? People will just—

It's not unique, no, but currently we have— 

—a framework where we can benefit from wider experience and knowledge, and that helps us deal with those issues; that helps us—

I'm not arguing against a framework, I'm just trying to make the point, maybe a bit crassly, that other countries in the world manage, so why can't we, kind of thing?

What is relevant is that it is important. This is about the environment, and therefore those issues where, if we can't manage them across border, it is important to resolve that.

But you would still see a distinct Welsh environmental governance body being created in order to police Wales. You wouldn't prefer to see a UK-wide body. I just need clarity on that, really.

In terms of the function of the body, we would wish to see a body that has an appropriate remit that applies in Wales. We don't necessarily hold a particular view on whether that is replicated elsewhere or one overarching body.

Yes. Okay. But that there is a distinct role in terms of its work in Wales. Because if we follow that rationale, then I'm not sure whether we'd ever have established Natural Resources Wales, of course.

Can I follow on from what Llyr Gruffydd was saying on rivers? The Danube, I think it is all in the European Union now, but it certainly didn't all used to be in the European Union, and the Nile, which is one of the great rivers of the world, goes through lots and lots of countries. I mean, do you know how they manage?

Personally, no, but I imagine it is very testing and the resource that comes from our rivers in terms of our security around water resources, water quality management, those are all areas where, I would imagine, that other countries would struggle if they don't have a joined-up approach to how that is done elsewhere.

From my understanding, and you might know more than I do, the Danube has cleaned up since the countries of eastern Europe joined the European Union. There was a lot of concern when it was going through parts of the European Union about the quality of the water coming through at one stage.

And I guess that's where we see the advantage of meeting common standards.

The transitional arrangements that the Welsh Government have proposed, obviously, if we haven't got an agreement in place by the time we leave the European Union, do you have a view on those transitional arrangements that have been proposed? Do you think they're robust enough? Do you think there are additions that could be made to them?

09:55

I think we would say from the outset that, you know, NRW, as an adviser to Welsh Government, would be happy to work with Welsh Government about putting in place the appropriate transitional arrangements. I think we've agreed that there is a need to see, as much as possible, no gap. And therefore, there's a timescale issue around that, potentially, particularly in terms of the public being able to engage with the body within that transitional period.

So, what's proposed is robust enough, if they get enacted—the transitional arrangements—but that ability for public engagement maybe does need a little bit more thinking on.

I think it is essential that there's an appropriate mechanism for registering and dealing with complaints.

Currently, any citizen in the EU can complain directly to the European Commission and it will be logged and registered and taken account of and processed. We need to ensure that in Wales and in the UK, hopefully, there's a way for complaints to be registered, there's a place where they're kept and they are dealt with appropriately in a timely manner, whether or not we're in a transitional period, or when the body is already in place.

And that system has worked well in the past, it has, has it? I'm not familiar with it.

The system works well at a European level. The proposals in terms of how that might work at a UK level need further clarity.

Unless anybody has got any more questions, can I thank you very much for coming along, and thank you very much for both your written and oral evidence? We've found it very helpful and it will help us with our final report. Thank you very much.

Gohiriwyd y cyfarfod rhwng 09:57 a 10:14.

The meeting adjourned between 09:57 and 10:14.

10:10
3. Egwyddorion Amgylcheddol a Llywodraethu Amgylcheddol ar ôl Brexit - Sesiwn dystiolaeth 3
3. Environmental Principles and Governance post-Brexit - Evidence session 3

Bore da. Good morning, and can I welcome Ruth Chambers, senior parliamentary affairs associate of Green Alliance, and Dr Tom West, law and policy adviser, UK environment, ClientEarth? You're welcome. Are you happy for us to move straight to questions?

10:15

Absolutely. Bore da. Thank you.

Thank you very much, and I'll start. Can you expand on why you believe the precautionary principle and the prevention principle are not sufficiently captured within the Welsh primary legislation?

Thank you, first of all, for the opportunity to come and give evidence to you today. I think the precautionary principle's a really crucial principle of environmental law; it really underpins how a lot of it works, how it's guided, how it fits together. Our view is that currently it's not reflected adequately in existing Welsh legislation. We've seen in the Welsh Government's consultation that there's a willingness and intention for precaution to form part of environmental law going forwards, but this, we believe, is much better done by being very clear that the precautionary principle forms this guiding principle of the law. That's true of any principle, but in particular of a principle like precaution, which is, by its very nature, quite a complex principle. It deals with uncertainty in science and how that interacts with law and decision making. That's complicated: science is complicated, law is complicated, how they fit together is perhaps even more complicated. And so, there's real value, especially with precaution, in setting out clearly in the legislation that law and policy and their implementation should be based on precaution. Given that that seems to be, from the consultation, the intention of Welsh Government, we think there are overwhelming reasons why precaution should be specifically included.

I think all I would add is, really, to stress that importance of clarity. This is an opportunity to ensure that the law is both clear and stakeholders' expectations are fully met. As my colleague Tom has said, environmental principles are really important, but they're also quite complicated, so making sure that they are there visibly and explicitly listed on the front of legislation will help all stakeholders, whether they're from civil society or business, understand what the principles are and how they should be applied. So, I think that's very important, that they are listed, actually explicitly, on the front of any new legislation.

I'm probably stating the blindingly obvious here, but the sustainable management of natural resources that's in the environment Act is, therefore, insufficient, although—because I think the Government could argue that there are elements there that might refer, not explicitly—and that's probably the point you're making—to some of these principles, but you want to see it on the face of the Bill in black and white, unequivocally.

Exactly. I think having it tucked away under the SMNR legislation—also, there's an issue about it's not a full application in the way that currently happens at the EU level. We can probably do it a little bit better than that, so this is a chance to improve and clarify the law, rather than have it tucked away in that legislation, and if stakeholders don't know it's there at the moment, then this is an opportunity to address that.

I think that's exactly right. It's insufficient. Clarity is an important part of the rule of law. It helps everyone to be clear on this. Precaution, as I say, it's complex, it's contested. We see it, actually, under attack from other areas as well. There are movements to enshrine a so-called innovation principle, which we see as being a threat to the precautionary principle functioning adequately. And so, being very clear that precaution is a cornerstone of environmental law is really crucial.

Sorry, if I may, is the EU definition of 'precautionary principle' sufficiently clear for us just to transpose that across?

So, there are two ways to think about defining the precautionary principle. You can do it in a sentence, in that lack of full scientific knowledge should not be used as a reason for not taking action, but then there's the much longer detailed version, and the European Commission have a—I can't remember how many pages, but a 20 or 30-page document from the year 2000 on what this means. This demonstrates the fact that, yes, you can explain it in this short way, but it does need this more detailed explanation.

But that is there, which we could actually use in Wales if we chose to.

Yes, I mean it can be improved on, as well, for sure.

Thank you. And finally from me, why do you believe it is necessary to incorporate the principle of non-regression into Welsh primary legislation and how do you think this can best be achieved?

Shall I start? I think this is incredibly important, because one thing that we all know about Brexit is it's leading to a lot of uncertainty, constitutional, legal and political. One thing we know is that that uncertainty is likely to continue for some time. There is a real expectation amongst the public and civil society for environmental protection to remain strong after Brexit. Indeed, governments have committed to that being the case. But ensuring that that commitment is enshrined in law through a clear non-regression principle—we think not only would it meet with public and political expectations, it would also provide that legal clarity. Any principle of non-regression should be broad, clear and enforceable. That's very important, and I think would have particular relevance for Welsh Government, because non-regression is not about ensuring that we don't weaken our protections now, but it's also about ensuring that we improve those protections over time, so meeting the needs of both current and future generations. So that very much seems to go with the grain of what the Government has done through other legislation, thinking about the needs and the rights of future generations too.

10:20

I think non-regression's a really exciting opportunity. I think it's a really exciting part of contemporary environmental law. In a recent French law, I think in 2016, they put this into their legislation. There are emerging international agreements, the IUCN and a draft global pact, which refer to non-regression. It's clear that this is part of the future for what environmental law should look like. I've talked about precaution and how important it is, and that's all true, but that's from the 1970s. We're now well into the twenty-first century. Let's think about what future environmental law looks like. As Ruth says, let's think about how environmental law needs to work for future generations, and non-regression, or even a principle ensuring the progression, the progressive realisation of environmental law, is crucial to that.

I think the way that it needs to take part in the legislation might need to be done slightly differently to the other principles, and again, how the French law does this is a good starting point to look at as to how it can work. Again, it's interesting that the French law has been before the courts there, demonstrating that this is something that can work, that does work. But yes, like I say, it's this exciting opportunity to do something that is clearly forward looking for environmental law.

Good morning. I'm going on to talk about overarching objectives. You've both talked about them, and you said that there's a need for an overarching objective of a high level of environmental protection. That's your statement. So, why do you think that's necessary given the current protection afforded by the environment Act and the well-being of future generations Act? Do you think that those objectives should be explicitly provided for in Welsh primary legislation?

I think that there are parts already in existing Welsh legislation that can work in this area and can tie together. But we're in a situation now where we've got two pretty enormous challenges: we've got Brexit and we've got the ecological and climate crisis. And there's a real opportunity here to set out a new environmental objective that responds to those, that sets out what it is we can and want to achieve in Wales for the environment. And to have that as a response, and to put that in the primary legislation, I think, would be incredibly valuable. So I think there's something in terms of policy and politics that makes it very useful, but legally as well it would be very valuable to have a new objective with obligations of result attached to that objective to say, 'Look, we're going to achieve this', and whether that's a high level of environmental protection, whether that's looking at the state of the environment itself—there are many different ways to do it, I think. But also it provides a real way to make sure that action across government is joined up, to make sure that it's clear what everyone's aiming at, and potentially even to think about action by the private sector and how that needs to be regulated, and to make sure that's all going in the same direction, too.

I think I'd agree with the comments that Tom has made. The only two things I would add are that, at the moment, what we're doing is something really novel: across the UK and in Wales we are creating a new environmental governance system, basically, and we're creating that to replace the system that we have at the moment enjoyed for many years from the European Union level. This is an opportunity to create a system that's actually better than the system that we have at the moment. It's going to be very complicated. The architecture will be new, it will have many different parts, which we might come on to speak to. There may or may not be a new body to enforce and oversee compliance with law. We've talked about environmental principles. We obviously have existing legislation in Wales. We see an overarching objective as being a guiding light, if you like, for that new governance system, and having it—again, a bit like the comments that we made on environmental principles—explicitly listed on the face of any new legislation will be a really strong beacon for that legislation, not just now, whilst we're all in the tos and fros of thinking about that governance system, but for the future as well.

I realise it's a different context, but I would commend the committee to looking at the reports of both the Environmental Audit Committee and the Environment, Food and Rural Affairs Select Committee in the UK Parliament, which did consider this question very carefully in relation to the environment Bill in Westminster. They both concluded that there would be some significant merit in having such an overarching principle, not least because one of the things that we're losing when we no longer sign up to the European Union treaties is that, at the moment, there is a requirement that all environmental policy shall achieve a high level of environmental protection. So, even from a very broad political level of equivalence, there would seem to be some merit in stating such an objective on the face of Welsh primary legislation as well.

10:25

If I may add, as well, another, not the same, but a comparable example, is the recent net zero target for climate change. I think that's a good way to look at the value of setting out that clear overarching ambition and objective, and then to say, 'Look, that's what we want, that's what we're aiming for'. Of course there's lots of work to do to actually get there, but that clarity and that flag in the ground to say, 'That's where we're going' is of real value.

The advantage of that, of course, would be that whoever takes control of the Government—whichever party—would be bound by those rules. I would think that would be an advantage of putting it there.

Completely. Like I say, it's having an objective where there's an obligation of result on it to achieve the objective. And also, this links, as well, to non-regression and saying, 'We need to move progressively towards this objective and to make sure that the action we take, not just now, but for the future, as well heads there'.

And much of what we're talking about is exhibited in the form of political commitments. We recognise that, and that's very welcome and fantastic, but politicians don't last forever and administrations do change. So, making sure that those commitments are enshrined in the law, we think, would be incredibly valuable.

Speaking about enshrining things in law—the Aarhus rights. The UK will still be a signatory to the Aarhus convention post Brexit, and in the UK Government's withdrawal agreement, they list the Aarhus rights in terms of non-regression. So, why do we need to worry?

The UK will continue to be a signatory to the Aarhus convention, but the UK does have some work to go in order to fully comply with the Aarhus convention. One of the concerns we had about treating the Aarhus rights in the same way as the principles is a bit like, as I was saying with non-regression, they're different legal constructs and they just need a slightly different framing. But the Aarhus rights are of enormous value, and taking steps to make sure, in particular, that people have full access to justice and remedies in Wales was a real value.

Yes. So, what would you say is the best legal mechanism of upholding them, then? How would you go about doing it? Would you just put something on the face of proposed legislation around—?

On access to justice and remedies, I think there does need to be—. It's not a simple thing as just saying, 'You put that into legislation'. It does require new mechanisms in place, new rules around costs issues, for example. And also—and we'll come on to them as well—a new set of governance mechanisms and enforcement mechanisms that are available to civil society as well.

Because the UK Government has included some principles, I think, from Aarhus, hasn't it, in its proposed environment legislation. But the Welsh Government is resisting that, so, you would want to go further than the UK Government as well, I'd imagine.

I think the list, at the moment, is a draft list, as we understand it, so you're absolutely right, the Aarhus rights are in there with the principles. But as Tom has said, that could be, potentially, a little bit confusing. So, those principles may or may not change when we eventually see the final environment Bill, which we expect some time in the autumn now.

Okay. So, looking at the application of the principles, then, which bodies do you think should the proposed environmental principles be applied to, and for what purpose?

So, I think for me, this is fairly straightforward. I was listening to the previous evidence session with Natural Resources Wales, and I would concur that the principles should apply to all public bodies. So, that's Government departments, Ministers, but also public bodies as well.

In terms of the scope of their application, again, we feel this is reasonably straightforward. Look at how they're applied at the moment and the principles should apply to the making, the revising and the implementation of both the law and policy.

I just want to really echo what we were saying, in particular on the implementation of policy. Sometimes, they're arguments that look at the technical way that the current treaty on the function of the European Union works and the principles and they say, ‘Well, they don’t apply directly in this way’. Well, that’s a different legal system; that’s complicated—how that international treaty would work. The point is that, currently, staff at places like Natural Resources Wales are using the principles in their decision making and that’s a good thing and there’s the opportunity here to make that clear in the law—to say, ‘Look, actually, when making decisions, these principles should guide how you make those', and setting that out, again, in the law. But this isn’t a case of just simply trying to copy and paste how things were under the EU. For starters, you can’t do that—it’s a different legal game, almost, in that things are in different places, but also, we don’t need to, because we can do things better.

10:30

So, would it be a fair criticism of the Welsh Government’s consultation that there is a tendency towards that cut-and-paste approach, or do you really get a feel for the Government’s wish to do things in a Welsh way or a different way?

I wouldn’t say that it runs throughout the consultation, but there are certain times when they’re saying, ‘Well, that’s how it’s done in the EU, and therefore, we should do exactly the same here’. That’s not the case. Of course, we don’t want regression—we don't want to go back from this—but this is about building something that works here.

Yes. Okay. Thank you. And then the other question I have was around the policy statement. The Welsh Government asserts that they don’t need to include a policy statement, although the UK legislation and Scotland propose to do that. So, you would wish to see the Welsh Government do it—yes?

I think, for me, this goes back to the point of clarity. The principles—they’re not straightforward to many people; we’re doing something that we haven’t done before, which is bringing them across to our own domestic statute book. How should that work? That question is undoubtedly open to interpretation.

So, having a policy statement—and it doesn’t need to be many, many pages, but it could be at quite a high level—is bound to be of value to stakeholders who want to understand, either, if they’re applying the principles, how they might go about doing that, or if they’re stakeholders wanting to understand how bodies are applying them, to check whether or not there are compliance issues, there would seem to be considerable value in having a statement.

I think there’s also a wider point here in how the principles are going to apply across the UK after Brexit. We’ll have principles probably in different legislative contexts, which is fine, however principles and policy and environmental issues more broadly don’t respect borders. There are going to be cross-boundary issues, so is there scope to do something on a pan-UK level across all Governments with the consent of everybody, which talks about how the principles should apply across the UK? Again, that doesn’t need to be very, very detailed, but something of high value could be of help to the public, I think.

And, finally, the draft environment Bill in Westminster does, you’re right, talk about  a policy statement; it also talks about a duty in relation to that policy statement, rather than a duty on public authorities in relation to the principles. We think that balance is not right. If you’re going to apply the principles, you apply the principles and you don’t do that by having regard for a policy statement. That’s then taking the application two steps away, if you like.

So, just for clarity then: the duty is to have regard to the policy statement and not to the principles.

At the moment, yes. A number of stakeholders from across business and civil society have said that, not only is that not equivalent with current arrangements, it’s actually about what then you really apply and have a regard to. So, you could end up with weak and quite distant application.

It's a weaker approach than that currently taken for SMNR principles, for example, which are stronger. On the policy statement, yes, I entirely agree. I’m sure that you don’t need one, but there’s real value in one, so why not do it? As I've already said, precaution is complex; it's helpful to be able to set out what it means. The principles should be applying to people making decisions on a day-to-day basis. Again, it's helpful to have that guidance there, put in place. Otherwise, what will happen is, you'll end up having these decided in the courts—what exactly they mean. Now, I'm not saying that's a bad thing, but I'm just saying that, in terms of making things clear and understandable, then having them in the policy statement is surely a preferable route.

I just want to explore with you just how marvellous things are at the moment, because you both talk about the governance gap that will be created by leaving the EU, but I’m struggling a little bit to understand why that gap is so huge in the current context.

There was an article in yesterday’s paper about the fact that over half of the land in Wales has got ammonia concentrations that are above the critical level set for the survival of plants and presumably also insects, and yet—and it's even worse in England. So, if that's the case, where are these environmental principles that we have that we enjoy while being in the EU that are being effectively applied to preventing this sort of thing happening?

10:35

So, things aren't marvellous right now. There's a lot of work to be done, and the example you give is a good example of it. What I would say is that the governance, the implementation, the enforcement of environmental law—this has always been a big problem and is a problem, a difficulty, for environmental law as a whole. There was a report that came out from UNEP earlier this year on the environmental rule of law, which talked about the difficulty in ensuring that environmental law is properly complied with and enforced around the world. So, this is a challenge we see everywhere. In the EU currently, no, things aren't perfect, but we have mechanisms in place that allow citizens to make free complaints to the Commission and the Commission can then pick those up and take enforcement proceedings, which can ultimately end up with the threat or with the actual fining of a member-state for not complying with the law. 

'Can'—exactly. So, of course it's not perfect, and whether or not the Commission decides to proceed with matter as well—I'm sure there are plenty of considerations that factor into that. But the point is, right now, the UK Government—and it is UK, because the relationship with the EU is there—is aware that ultimately it has these responsibilities to the EU and that the Commission and the European Court between them are able to escalate and to make sure that the law is being properly complied with, and we're losing that.

Okay, but the Brexiteers would argue that, if we bring agencies closer to the people—take back control, all that—you might have a more effective compliance, because people would be closer to where the issues are happening.

I think it's true that it's possible to build an environmental governance system that hears better than that of the EU's. As I was saying before, we can't just copy and paste, mirror exactly, the EU's. We will lose some of the important factors the EU one brings, such as the regional international approach, which is of value; the independence of the Commission is very difficult if not impossible to replicate at a domestic level. But what you say about bringing things closer to communities and people I think is really valuable and true. I think the European Commission is often perceived as, if not actually being, something quite remote. Building governance systems that work for people in communities, which allow their problems to be understood, to be heard, to be discussed, and to try and develop solutions with those people who are being affected by problems—there's a real opportunity to do that here. Now, that needs new institutions and institutions set up in a way that are well resourced, robust, independent, with legal powers. But, yes, there is a chance to do things well, do things better.

Okay, but Wales is a small country with limited resources and there are lots of demands on these resources and a risk that some of the resources we currently have we won't even have if we leave the EU. So, how do you think we can address this environmental governance gap realistically? I appreciate what you're saying, that it's really important that they're independent and have expertise, but that takes quite a lot. For example, some people might argue that NRW already does some of these things. They have a regulator role, they can prosecute.

But they can't regulate themselves, can they?

And I guess—I would just like to start by saying I absolutely agree with you where you started your questioning. The environment and our natural world are in crisis at the moment. Therefore, there's something, isn't there, about our current system that isn't fit for purpose? So, just by closing the governance gap that will be created upon Brexit—yes, that has to be the baseline, that has to be the starting point, but that isn't going to address the decline in nature, that isn't going to address the toxic air that our children are breathing, that isn't going to address the plastic pollution that's coming ashore and in rivers and seas. That's why, certainly for the Westminster environment Act, yes, we're campaigning very hard for the governance gap proposals to be addressed properly, but alongside that we see the governance system as comprising many different things as well—so, for example, legally binding targets on clean air, clean water, waste and resources and biodiversity. So, unless you have that baseline of targets with which we all will be able to hold Governments to account for not just adhering to commitments, but improving the natural environment, then, yes, we're just going to have a good governance system, but we're not going to actually address that decline in nature. So, we think that the governance gap is a start, but it only has to be the start of that journey.

The second point I think you came on to was resourcing—how do we get the resourcing that we need to get the systems that are fit for purpose? Ultimately, resourcing comes with political priority. If these issues aren't given that priority by Governments across the UK, then the resources won't follow, and that resourcing is absolutely key, whether it's resourcing of the frontline regulators like NRW, the Environment Agency and others, or whether it's the resourcing of any replacement bodies for the Commission and the courts. But that resourcing is absolutely key. And, if it isn't provided both independently of Government and sufficient in quantum, then, again, we won't get the system that's fit for purpose. 

10:40

How confident are you that there's sufficient capacity and expertise in Wales, or indeed in the UK, to support the establishment of a new and robust system of environmental governance? I could turn the question round to say: how much do organisations like yourselves rely on the expertise coming from the EU?

An awful lot, and I think there is a worry that we're not just creating a governance gap of capacity, but, as you suggest, it's of expertise as well. There is an awful lot of expertise, however, elsewhere outside Government, whether it's in civil society or existing regulators or in the business community. So, something that we've been very keen to suggest is that the new governance system is actually co-designed, almost, with stakeholders. For example, in England, the UK Government is talking to stakeholders about how the office for environmental protection—the body that's being set up in England—should be set up, what should it look like, how should it work. It's not exactly being pursued on a co-designed basis with stakeholders—that wouldn't be appropriate. But it's being pursued in the spirit of co-design, and I think it will be a better and a stronger body as a result. And I think we'd be very keen for Welsh Government to pursue a similar spirit of co-design for whatever arrangements come forward in England. Because it's clear that the resourcing in Wales will need to be supplemented and added to by outside of Government in order for that to work.

There's no reason, I don't think, to assume that that wouldn't happen, given the culture of the Assembly and the Welsh Government and the working with stakeholders that goes on at the moment. So, I think that would happen. But I suppose, even if we have that co-design, we'd still be able to liaise with colleagues in Europe. We're going to still be part of Europe. So, what are your views on Wales remaining a member of the European Environment Agency?

So, the loss of technical expertise, in terms of who's actually collecting the data, assessing the data, et cetera—yes, at the moment, lots of this done in a way that makes sense, of course. Continued membership of bodies like EEA—and there are other ones as well, the European Union Network for the Implementation and Enforcement of Environmental Law, for example, where there's possibility for either the UK as a whole, or Wales in particular, to continue membership, participation, in EU bodies, agencies, forums; the UK Environmental Law Association produced a report with a big, long list of all the ones that there are—we think is of clear environmental value, but it's also a good use of resources. If you go back to thinking about why leaving the EU is such a challenge for environmental law and policy, it's partly because so much of our environmental law comes from the EU, and that's not just a coincidence. It makes sense for environmental law and policy to be done at that supranational level, because environmental issues cross borders, of course, but also it makes sense to share resources, expertise, et cetera. And so, continuing to do that as much as possible, and putting in place the tools and the agreements necessary to make sure that Wales and the UK can continue to co-operate, talk, share resources—to me, this just seems like something that is of real, obvious value.

How well do you think the EU monitoring and reporting functions work at the moment? I accept what you say, that there's a lot of wonderful gathering of data going on by specialist organisations in the EU, but how accessible is it? How well is it used?

Again, they're imperfect, yes, and for a long time we spent much time complaining about how those mechanisms worked and seeking to improve those. But it's important that they're in place and that environmental law has those mechanisms to make sure it doesn't stay static, to make sure we are monitoring what the state is, that those reports go to a centralised body that is able to systematically review those. It's possible to forget that the EU providing those structures is of value, even though they are done imperfectly. But they provide the framework and the structure to do those things. Again, yes, we can think about how to improve on those, but I should say as well that we have seen—. In the process of the statutory instruments, which are correcting retained EU law under the Westminster withdrawal Act, we're seeing in places some requirements on reporting being removed, and that's of real concern, because, as I say, while, yes, they may be imperfect, having them in place provides at least a route that could be relied on. Yes, it may need improving, but it's a mechanism that, without it, environmental law risks becoming much more static.

10:45

If I can just add, on monitoring and reporting, they are absolutely vital functions and, if they are done transparently, they help the public understand what's happening to the environment around them, but they need to be properly resourced. So, it goes back to one of your previous points about the resourcing. The European Environment Agency is a very useful information-sharing forum. To us, it seems inconceivable that we wouldn't want to see to retain membership of that. [Interruption.]

It's such an important forum, and I think we would very much welcome a clear and strong recommendation from this committee that there would be value in retaining membership of that forum in the future. And, just to add, there are other expert advisory committees across the UK. I sit on one, as the lay member, called the Committee on the Medical Effects of Air Pollutants. So, there is a lot of existing infrastructure that will need to be bound into the new governance arrangements to ensure that all of the good work being done by academics and other experts across the UK continues to inform the new governance system as we go forward.

Okay, and do you think it—? Given that the current system isn't perfect in terms of getting the enforcement we want, do you think we should do something on a Wales-wide basis or endeavour to have a UK-wide expert agency?

Expert and/or enforcement agency, do you mean?

Yes. I mean, subject to whatever arrangement comes forward being devolution-sensitive, to it being co-designed and co-owned by whatever Governments sign up to it, I think our view is that there would be potentially quite significant merit in having some kind of body that exists and sits across all of the four administrations and jurisdictions. That could be a single body; it could be four bodies with a joint UK unit. The actual precise shape and function doesn't really matter. I think, for us, the really important thing is that the arrangements work together as a complete whole after Brexit, and that they allow for intra-UK co-operation and collaboration on environmental issues, because environmental issues—whether it's pollution or invasive species—do not respect borders. There are also obvious resource and expertise-sharing benefits of doing something on a joint basis. Those discussions—we know that there are discussions taking place. Sometimes I think there's a perception from stakeholders that they could be done a little bit more transparently or a little bit more collaboratively. We understand why things like the joint ministerial groups obviously happen behind closed doors, but the more that they could be done with the input of stakeholders, then I think the more that we can all feel that we're part of that journey together.

Do you think the UK Food Standards Agency is the sort of model that we could follow, because, clearly, food crosses the Welsh border in both directions and therefore we need to have the same standards?

I don't know much about that body, but a good example is the Committee on Climate Change, which is a UK-wide body. As I understand it, when that was set up in the Climate Change Act 2008, it had, let's say, some teething troubles in how it would cross all countries in a devolved and sensitive and appropriate way. So, there had to be a little bit of retrofitting done afterwards. Therefore, that reinforces the point to think about these issues very carefully now so that whatever legislation is designed is devolution-sensitive and appropriate from the outset, rather than to try and introduce fixes somewhere down the road. But that is a good model, and I think that model, with its members appointed and approved by all Governments—it makes it more durable; it makes it better able to withstand political variations, and, inevitably, it will help solve some of the resources conundrums as well.

10:50

I'm going to—. We've got the body now, so they're going to do some enforcement functions, which is what I'm going to ask you about. You've already elaborated to say that there are weaknesses in that current environmental enforcement structure, and you've given us some solutions to that as well, but could you, perhaps, expand a little bit and explain how you see that being used to strengthen the weakness that you've already identified, and, perhaps, the complexity, so that they complement? 

Setting up a new governance and, in particular, an enforcement mechanism—it's hard, and I think it's important to be clear about that. Leaving the EU: this is inherently a constitutional process, and so we're going to need constitutional kind of thinking and constitutional innovation to get this right, especially if we're thinking about trying to design something that's world leading as a governance body, which I think we should be. So, how do we do something better? Well, there's a few parts to it, and we've touched on many of them already, I think. Firstly, in terms of resources and independence—those are crucial. We've talked about those. Secondly, in terms of the right enforcement powers, and, thirdly, in terms of the processes.

So, if we think about the enforcement powers in particular, right now, the way the European Commission and court work is slightly different to existing enforcement mechanisms in England and Wales, which are primarily reliant on judicial review, which, of course, is a tool that can be incredibly useful, and ClientEarth have shown that with our challenges on air pollution. But what we're losing from the EU is a slightly different process, and we think we need to recreate something like that here. What that means is we think it requires the establishment of a new institution. As Ruth says, there are advantages to that being either UK-wide or having links with four or however many bodies that have links across the different jurisdictions of the UK, with this body being able to receive complaints from the public free of charge, to look into those complaints thoroughly, to work with the complainants to understand their concerns, and then also to be able to issue notices in an escalating way. The Commission currently has a similar process to this where it's able to issue, first, a reasoned opinion and then a formal notice, setting out whether it believes there's been a breach of the law and what should be done instead, and there's a chance here to set out a body that is able to work with the problem, with the people involved, work out what it thinks is best to be done, and then issue a notice, setting out the steps it thinks should be taken in order to come into compliance with the law.

It's really important that the enforcement function at the end of that has teeth too. Part of the reason why the Commission and court's mechanism is successful is the threat of fines. This concentrates the mind, the threat of fines, and we think fines should be available and other sanctions as well. But having something that's, sort of, powerful at the end means that the earlier, more amicable processes are more likely to see resolution, and, of course, that's what we want. We want things to be resolved before they end up at that end. So, providing a new body with the right legal powers and providing it with the ability to work with stakeholders to find solutions—we think these are the sorts of things that are necessary in order to build a governance system that not only covers up the gap but actually builds something that can work better.

I agree with that, and if I can be, perhaps, even more explicit on the mechanism that this body will have to give it teeth, if you like, we are absolutely convinced that judicial review is not the right mechanism for this body. It is complicated, it is difficult to access. If you're an individual without legal expertise, well, basically, forget it. And it doesn't result in a new decision; it results in an order to make new decisions. So, from our view, it is not equivalent to the system that we have at the moment.

I think the other thing that I would add to Tom's comments is that it will be very important for whatever body that is created to have some power and ability to act urgently because, sometimes, breaches of law will come at us very quickly, and the system that Tom's outlined is the right system, an escalating system, where most of the work is done kind of privately with Government departments or with public bodies, but occasionally it will need to kind of press 'go' and it will need to do that quickly. So, being able to do that urgently through some kind of power of its own initiative will be very important as well.

10:55

But you also mention that you might have specially designed environment courts. I'm assuming, having read that, that that's to make sure that you've got the right expertise in the right place, because we may not have that. So, again, we're going to have to build it, and we've talked about that already. So, in terms of that specially designed environment court, would you see that as a function that should exist here in Wales on its own or would there be an advantage if it was, say, at a UK level?

So, I think you're exactly right that some of the problems with judicial review are the inability to have those technical experts involved. ClientEarth were involved in a challenge earlier this year against the Environment Agency where we had concerns around a permit they'd issued. Essentially, we disagreed on the science, and the court said, 'Sorry, that's not a matter for us to look into.' So, it wasn't that they looked at the issue and then decided that they were okay with what the Environment Agency had done. They simply said, 'We're not able to look into this matter.' A clear problem. And so something like an environmental court can do this. Currently, there is an environmental tribunal, whose jurisdiction covers Wales, which is able to look into certain sort of appeals, essentially, which do involve the right kind of—well, not the right kind, but technical experts to assist with the decision making. And something along those lines, either in a new tribunal or in a new court, but the key part is the ability to actually look at the substance. That requires technical expertise. That requires a sort of new intensity of review. So, rather than just simply asking procedural questions, asking: was the right decision made here? Was the decision that meets the law—and this in some ways then takes us back to what's in the law in the first place—in there?

In terms of whether that needs to be something specific for Wales, I think there probably are different ways to do this, and whether or not you need to have something distinct here I'm not sure, but certainly a judicial review process that allows looking at the facts and looking at the substance is needed. This also goes back to the point about Aarhus earlier. The Aarhus convention requires that people have the right to access to justice and to remedies, including procedural and substantive review, and that's what we're talking about here. We're talking about a substantive review. And so, as well as making sure that this new enforcement body is able to access this new judicial mechanism, giving civil society direct access to such a mechanism would help ensure compliance with the Aarhus convention. And, furthermore, as if this wasn't already a good enough idea, it also picks up on the point earlier about, 'Well, what if the European Commission doesn't pick up on a complaint?' Well, the same may be true of any new body here. They will have priorities and strategic decisions to make. What if they don't decide to pick up on a complaint? Well, if you give civil society direct access, then that means the opportunity to pursue that will exist.

Moving on, what are your views on the need for infraction fines where a public body hasn't complied with the initial judgment and there's been a breach? And that exists at the moment in the EU, so we're not going to have that, so any thoughts around that?

It's a great sting in the tail, the fines. It's a great thing to have at the end to say, 'Look, if you don't take us seriously, we're going to fine you', and that focuses the mind. So, we think keeping that possibility available makes a lot of sense. It also might make sense in many situations to have different remedies and sanctions available. We've already heard about the lack of and limited resources of environmental bodies. And it's a very valid question to say: what's the point in fining a body that is not complying with the law because it's strapped for cash? It's a sensible question—in which case, you'd go, 'Well, actually, maybe a fine isn't the most appropriate mechanism there, so let's think about other tools.' So, things like requiring senior members of staff or a chair to appear in a public inquiry before a public panel to explain why actions haven't been taken, or why certain actions have been taken—a special measures-type procedure—to work with the new enforcement body to improve things. Ultimately, what we want to see is improved compliance with the law. It isn't about fines for fines' sake. This is about making sure the law is better complied with and thinking about what tools can be put in place that achieve that goal.

11:00

Can I just, whilst you're—? Would it not be the case that, mostly, if you're talking about any heavy fines, you'd be talking about industry. You might be talking about them existing in the private sector rather than, perhaps, anywhere else. So, isn't this not an important part—and we're leaving an institution that's already set up and got all the form and function to deal with this—to ensure—and it sort of closes the circle, doesn't it, in a way—that people clearly understand their obligations and know that, ultimately—and we are talking ultimately—if they don't adhere to that, there is a body that exists that will ensure that that happens?

So, currently, the Commission is able to fine member states, and the remits of any new enforcement body will expect to be public bodies only, partly on account of the fact that there are existing bodies like Natural Resources Wales that have enforcement roles over private actors. Now, in cases where those enforcement functions maybe are not being carried out as strongly as they could be, this body, in theory, should then be able to ask questions of the public bodies who are responsible for overseeing enforcement with the private bodies—which may seem somewhat like a roundabout way of doing things—but, yes, clearly, whether it's a private or a public actor, if they are not complying with the law, then they should be held to account for it.

I think my view on fines would be: if you look at all of the tools in the EU's toolkit, the ability to issue fines on member states has been, by far and away, the most powerful deterrent to a number of member states over a number of years. There are practical difficulties, undoubtedly, about replicating a fining system domestically within the UK and within a Welsh context. I think my challenge back to Governments would be, 'If you're not going to do fines, what are you going to do that is equally and an effective, powerful deterrent?' As Tom has said, any kind of ability to fine, whether it's within a new body or whether it's directly for the courts themselves—it needs be part of a wider toolkit.

But there are examples from elsewhere in the world where such powers do exist in a purely domestic context. For example, in New Zealand, enforcement orders can be made to ensure remediation of contaminated land, and that enforcement order is applied, if you like, to the authority in question. So, there are ways to do it. Fines have been in the too-difficult box for a little bit too long now, and our view would be that this is an opportunity to get them out and make them work in a Welsh context.

Okay. I want to move on now to the scope of the new body—assuming that that's what we have—and the policy areas and the public bodies within its remit. We talked about the public bodies within its remit—I don't know whether you think that there should be some that are not here, and if you do, you can tell us, and your views on the potential advisory role for that governance body, and how, maybe, there might be some potential for conflict of interest between being both advisory and also regulatory.

So, it's all in the scope of application first. I think it should be all public bodies; there shouldn't be an either/or list. For clarity, if you're a public body or a Government department, you should fall within the scope of any new body. On the advisory function, I think this will be a very important function for any new body or arrangement to have, providing advice on compliance with the law, and perhaps providing advice on what the law should be. If there are conflicts, or perceived conflicts, with other functions, one need look no further than other regulators that manage these conflicts, potentially, in a very effective way, through putting in place firewalls or separating out how those kinds of functions are applied. So, there are ways to ensure that functions don't necessarily undermine each other, but I think, for us, the three areas of function—enforcement, scrutiny and advice—they're all an essential part of the package.

11:05

I agree the scope should be all public bodies. I think the advice question is a very interesting one, as Ruth said. There is, I think, a distinction between advising on complying with existing law and advising on what new law should be. Certainly, the body should have a role in advising on complying with existing law. This goes back to the point of, 'Well, what's its purpose?': its purpose is to ensure compliance with the law, and, of course, we want breach of the law to be avoided in the first place. So, giving a new body an ability to conduct systemic inquiries, when it has suspicion or reason to believe or receives complaints that there's systemic failure to comply or misunderstanding or misapplication of the law, to look into this matter and then produce recommendations or guidance that say, 'Look: here are the steps that you should take in order to comply with the law'— the future generations commissioner has a similar power already—but this sort of thing, which, again, it helps improve clarity, it helps improve—. Preventing that failure in the first place can be of real value.

Yes. Thank you. You touched on some examples there of organisations that do manage this advice and regulatory combined function. Could you give us some examples of groups that do manage that? NRW is one in the Welsh context, but I'm sure there are others in a UK context that we might be able to look at, or offer us examples. Because there is that reality that there could be a perception, anyway, if nothing else, of a conflict of interest.

We're happy to write to you with some examples if that would be helpful.

And could I just ask you—? You cited New Zealand as an example on certain aspects of governance and the way they do certain things. Would you suggest that the way New Zealand have gone about setting up their organisations, in respect of the way the Government are dealing with the climate change agenda and the climate change emergency that they've identified there, is a good country to look at?

I think so. My understanding of the Parliamentary Commissioner for the Environment in New Zealand is it's a good model, but it is not a complete model, because it doesn't have enforcement functions, for example. So, it's a good model of how you set up an independent body to do much of your environmental governance agenda, but it's not quite the complete package, if you like. So, there are other examples around the world. I think the Hungarian future generations commissioner is also commendable, but I genuinely think that what we're seeking to do here would be world leading if we get it right, because there isn't an existing body anywhere in the world that houses all of those functions together in the way that both UK Government and Welsh Government are thinking of doing it. So, in a sense, if we get this right, then the eyes of the world should be on us.

The New Zealand case—as Ruth says, the parliamentary commissioner ticks some boxes, but it's not everything. Another part of the jigsaw in New Zealand is that they do have an environmental court—I don't think it's called that, but it essentially is that; it's a court that is able to look at environmental matters, including the involvement of non-legal experts on the panel to make the decisions. So, again, that just demonstrates that there are different ways to do these things and different parts of governance that fit together in various ways, and we can look for good practice and good examples from elsewhere to learn what are good ways to design these mechanisms.

The reason I've taken the argument or the discussion on around New Zealand is because I presume their law, and certainly their parliamentary system, is very similar to our own in this country, isn't it? And, given that time is pressing, if they've got a system in place already, albeit I hear its limitations, it mightn't be a bad example for us as a committee to try and open up and have a look at.

I think that would definitely be a very good suggestion to pursue, and I think you've hit the nail on the head there by talking about the need for urgency—the need for urgency because Brexit is coming, we don't exactly know when, but it is coming, so these arrangements need to be in place from day 1 so that we're operationally ready. However, it's not just about Brexit; as we've talked about, the environment and our climate are in crisis too. This Assembly and the UK Parliament—there have been emergencies declared. That's a great first step, but any emergency is only as good as the response that we put in place to deal with it, and what we're talking about today is actually dealing with that through new governance arrangements. But the sooner that we can embed those in our system, then the better. So, this is all pretty urgent stuff.

I agree. Looking at New Zealand makes a lot of sense for those reasons, and looking at other places. I think it's also sensible to look at things like other human rights bodies, so the Equality and Human Rights Commission, and there are lots of those around the world as well, but also important to bear in mind that what we're talking about here is something that hasn't been done before. It is something new, but it's something that is needed, because of the crisis that we find ourselves in.

11:10

Yes. You addressed somewhat earlier the consideration of whether we have a UK body or allow separate, devolved approaches to governance, really, and how you see, maybe, a combination of both or a set of overarching principles. The only point I'd make and I'd ask you to respond to this, really, is: the likelihood is, or the danger is, that we just get the lowest common denominator. You mentioned the urgency—there is a UK environment Bill; the realpolitik suggests that what we might end up with is some sort of retrofitting into this Bill through amendments some kind of UK framework, at best, and that that'll just end up being the lowest common denominator. Is that a fear that you recognise—or risk, if you like?

That is a risk, and it's a risk that we've been recognising for the past 18 months, so we were pleased when the Welsh Government's consultation came out. We would, again, encourage the committee to recognise the urgency and to hasten things along to the best of your ability. There is now more time on the environment Bill, because, with the various Brexit and wider political uncertainty, we understand that the timetable has slowed according to what it would have done, so the summer months do offer an opportunity to do or to try and avoid what you suggested, which is retrofitting, which nobody wants, either through amendments or a later stage in the parliamentary process. If the Bill isn't fit for purpose from a devolved perspective in the beginning, and if the issues to do with legislative consent motions and making sure that any arrangements respect the devolution—so, if those conversations are not happening, and I'm sure that they are happening, but if they don't result in well-designed legislation, then I think we do run the risk of things that don't quite match up or add up in the way that we all want.

Well, you have more faith than me, because we've seen from other pieces of legislation, such as the Agriculture Bill, that we're not really—. There we are. I'm tempted to make a party political point there.

The RSPB highlight in their evidence that there are risks as well to a situation where maybe you only have two or three of the devolved administrations, or the UK Government and maybe one or two others, coming together and that it's not a comprehensive, UK-wide approach. They cite a risk in terms of maybe the resources then, as we've seen in previous iterations, being concentrated in England and that the devolved countries are poor relations in terms of the way that we approach some of these. I don't know whether that's something, a risk that you recognise, because, of course, we have seen as well in terms of the policy thrust here in Wales that, actually, we've moved out of the Environment Agency on the UK level, out of the Forestry Commission on a UK level, and we've consolidated on a Welsh level. So, to suggest that maybe we would go back in some way is running against the narrative that we've had in Wales over recent years.

I think there are various ways to fit the jigsaw together again. From an environmental point of view, something that works at a UK-wide level—whether that's one body with offices or four very closely connected and working together bodies, which might help to address your concern about reaching the lowest common denominator as well—that's what's crucial and that it's done in line with our constitution, as well, of course. So, yes, if you had a situation where you had partial coverage of the UK—whichever bit of it that's not included—yes, that's problematic from an environmental point of view. Of course, we want to see the entirety of the UK having the highest environmental governance structures and standards, but also, from an environmental point of view, you go, 'Well, hang on, that doesn't make sense. There's going to be, potentially, a problem with things crossing borders or information sharing.' So, whatever can be done to make sure that there is co-ordination across the UK and, as well, we talked about earlier, with the EU as well and our neighbours.

I was just going to say about the withdrawal agreement—. So, obviously, we don't know if we're going to have a withdrawal agreement or a Bill to implement that, but the current draft withdrawal agreement does talk about the requirement for effective governance arrangements across the UK. So, I think there will be a challenge for us all to ensure that, whatever arrangements come forward, they meet the terms of that agreement. So, if there's an agreement, there's another driver from that level, if you like.

Finally from me, then, people say that there's a risk of complexity, but we already know, potentially, that the functions of the office for environmental protection will be applied in Wales to non-devolved public bodies and any Welsh body's functions will be applied to devolved organisations. So, it is going to be pretty complex, potentially, but, of course, that already exists in relation to the environment Act and the well-being of future generations Act, so nothing changes. I mean, is this an opportunity to maybe tidy up or amend other pieces of legislation? It's too big a question to ask with one minute to go, probably.

11:15

Complexity is inevitable. And chances—. Things like, and this is slightly—. But, going back to the idea of a principles policy statement that works across the entirety of the UK while also allowing things to be done as appropriate within the different jurisdictions, yes, that kind of clarity could help.

And I would just add that the more transparently the Governments can act and work together and share with stakeholders their thinking on some of these challenges and issues, which are definitely not easy to solve, then I think the more comforted the public will be, and the more opportunity we will have to make suggestions and provide some challenge as well.

Just briefly, on transitional arrangements, assuming that we don't get a deal or it doesn't happen in time, because, as you quite rightly pointed out, Ruth, time is getting tighter and tighter, what are your views—this is to both of you—on the proposals of the transitional arrangements that the Government have put in place at the moment? Can you make any suggestions that might improve them, or are you quite happy with what's on the table?

I'm not altogether clear what the transitional arrangements in Wales would be, to be perfectly honest, on environmental governance. In England, we know a little bit more about what the plans are. The plans are to put in place some sort of interim arrangement that would allow the public at least to continue to make complaints about breaches of environmental law. Details have still not fully emerged on that, but at least there's going to be some sort of mechanism. As far as I'm aware, there is no equivalent mechanism planned in Wales, and, if not, I would ask why not. 

I think I would also like to put a question to Welsh Government to ask how any arrangements it is proposing to put in place would interrelate to the kind of arrangement that DEFRA is thinking about. So, again, some more clarity and transparency would be very welcome. 

Likewise, and just to add that the interim arrangements that we're aware of in England are clearly insufficient to really cover the governance gap. This is part of the problem of the governance gap—you can't solve it with a quick fix. It does require quite detailed and in-depth plans, and the risk of crashing out of the EU at the end of October without these mechanisms in place is laid quite starkly, I think, by the fact that what you're looking at is clearly not a replacement for what we currently have and doesn't fulfil those needs for environmental law. 

We're two minutes over. Llyr wants to ask another question. We've got a minute for the question and the answer.

I'd really like to hear who you think should do it in the interim in Wales. There have been suggestions of the future generations commissioner, the public services ombudsman—even NRW themselves have been suggested. But where do you think—? Who plugs that gap?

The best way to plug the gap would be to do it independently of all of those bodies, and to set up a bespoke arrangement. 

That does take time, so inevitably any arrangement has to be connected to some body, but the important thing is that that connection needs to be as loose as it possibly can be—so, for example, say there was some sort of system within Welsh Government to do some of the governance stuff on an interim basis, making sure that maybe the people doing that weren't situated inside Government, making sure that, if there was a website for people to know more about that, that that was, again, run independently of Government. So, there are ways to enshrine a degree of independence, which will be very important, because anything that's done now will clearly send smoke signals to the permanent arrangements. So, the more you can do it independently now, the better.

Independently and—one more word—transparently.

We have gone three minutes over time. Can I thank you very much for coming along this morning and answering our questions? I'm sure that—well, I'm certain that what you've said will end up in our final report. Thank you very much.

Can we move into private session and all meet back here at half past?

Gohiriwyd y cyfarfod rhwng 11:19 ac 11:30.

The meeting adjourned between 11:19 and 11:30.

11:30
4. Egwyddorion Amgylcheddol a Llywodraethu Amgylcheddol ar ôl Brexit - Sesiwn dystiolaeth 4
4. Environmental Principles and Governance post-Brexit - Evidence session 4

Good morning—it is still morning. Can I welcome Rebecca Williams, director of the Country Land and Business Association in Wales; Huw Thomas, political adviser to the National Farmers Union Cymru, and Charlotte Priddy, policy officer for the Farmers Union of Wales? At this stage, I think Andrew Davies wants to make a declaration of interest.

I'd like to make a declaration of interest in that I'm a member of the NFU.

Thank you very much. Do you mind if we go straight to questions? No. We have heard from several stakeholders, who believe that existing Welsh law does not provide equivalence for the European Union’s prevention and precautionary principles. What are your thoughts on this? The FUW, for example, say in their written evidence that there needs to be clarity around the polluter pays principle and that recognition is needed for genuine accidents as opposed to neglect or deliberate actions. Would you like to go first?

Yes, absolutely. So, 'polluter pays' is very much already, by and large, a feature of law, and the clarity, however, needs to be around if, for example, there is somebody who’s adhering to the legislation and an accident occurs—they’re adhering to everything they need to do and an accident occurs. Will they be penalised to the same degree as someone who’s gone out to overtly neglect the law? I just feel there needs to be clarity there over a genuine accident and someone who’s not adhering to the policy and legislation in place.

Yes, I think I'd agree entirely with that. It’s all well and good to have high standards, and we support that, but even when there is best practice, accidents can still occur, and I think you need to have sufficient flexibility in your policy to mitigate some of the harshness that could arise from a particularly strict application of that principle, then.

I think, looking at it from a slightly different angle in terms of why these principles maybe haven’t made it into domestic law in the first place and what the reasons were behind that, it’s true that ‘polluter pays’ is a more complicated matter for farmers and, often, when we’re looking at pollution, identifying the source of pollution can be slightly more complex than it seems on the surface.

There need to be checks and balances in the system to understand who is genuinely polluting, and I think the fear would be that it’s easy to implement a principle without really understanding the consequences and who may be held accountable for that from a land-use perspective. But if it were to be introduced and implemented, you’d have to look right across all those who had roles and responsibilities in managing the land and the landscape and who may contribute to pollution. So, whether you would only apply it to farming or whether you would actually apply it to all of land use and use it as a general principle with genuine meaning is a very, very different question.

Thank you very much. We've heard differing views on establishing new principles beyond the four core EU environmental principles. The NFU have said, in their statement, that there is a need to define the principles. Why do you believe this is required when the current EU principles are not defined?

In order to provide this sort of certainty, we would say that there needs to be a definition. It’s not necessarily a good thing that the European principles aren’t defined. I think a commonly agreed definition so that everybody knows what sort of standard is expected of them—. I think that if the principles are undefined, then they risk becoming contested in a litigation et cetera. I think there’s an opportunity to refine and finesse principles that we’re importing from the EU into Welsh law. We can finesse and refine those to the Welsh context. So, I would say there is a need for definition. Sustainability is one example in point of a concept that is contested; it means different things to different people, and that does cause problems.

11:35

If you have environmental principles, and they are defined as principles that sit somewhere slightly above the law, if you want, and have a more overarching way of being applied or thought of, it's really important that those principles are able to flex, move with time, apply in a way that takes account of public perception and changing attitudes. The benefit of the European principles is that they guide us, but they guide us in a way that is not just a legal principle; it's a wider concept, and that's how they've been successful. Over recent months and years, we've really seen our understanding of what's important environmentally change, and having that ability to use principles in that way is really, really important. When you start defining them in legislation very tightly, you are defining them to a fixed point in time, and every time there is new understanding or new evidence then, it becomes a really complicated matter to update and review those principles. So, we really need to understand why we want principles and what they're going to be used for. Are they going to be there to guide wider society, or are they just there for legal obligations? You get to a very different answer.

I would agree with both of your points there. There's concern about duplication. We don't really know what's happening with Brexit at the moment, and so I would argue we need to make sure anything we put in place can be subject to review and be flexible to the needs of how we are going forward. There needs to be some sort of clarity, I would argue, and some sort of definition. Even just looking at the Welsh future generations Act and the environment Act, there's still little understanding of them below the very highest level. So, in order to get the most impact, I think it would need to be some sort of integrated policy that's understood by all.

Good morning, both—all. There are more than two of you. We've got the environment Act, we've got the well-being of future generations Act, but we've also got a call from some stakeholders for overarching objectives and a high level of environmental protection. What are your thoughts on that?

To offer you an NFU perspective, I think we are quite proud of the high standards that we have, both in terms of the environment and animal welfare, and we are conscious of Brexit being a threat to that high standard that we operate to—having it undermined. So, I would say we would be anxious to ensure that we're not disadvantaged, compared to overseas competitors who might not be held to these standards. So, there has to be some way of rewarding farmers. If you want to raise the regulatory floor above and beyond what our competitors are doing, then there has to be recognition of that, I would say, in rewarding farmers for doing so.

Can I ask a supplementary, just because of what you've just said, before the others answer? The policy that is currently coming through Welsh Government, where farmers are rewarded, or landholders are rewarded, for public good, do you think that that—because these aren't going to stand in isolation, are they—would help achieve that?

I think it's difficult to say at the moment, because we had a consultation, obviously, last year, which closed. It was quite a high-level consultation; there wasn't drilling down into detail. I think I might be better placed to answer that question having seen the consultation that's due out early next month from Welsh Government on the same issue where, potentially, there should be more fine detail that we can maybe get our teeth into. But, at the moment, it's difficult to give you an answer to that question, I'm afraid.

Going back to your original question about environmental principles, I think, looking at environmental principles through the lens of the well-being of future generations Act, what that did is a balance of environmental, cultural, social and economic together, and identified that no one was more important than the other. The concern might be, if you have another set of environmental principles that sit above or alongside that, that you're actually focusing on one element of that sustainability as opposed to all of them in balance, and how you ensure that you maintain that very sensitive balance that the well-being of future generations Act is intended to create and uphold against having separate environmental principles. So, it's a question of where they would fit and how they would work together and, as Charlotte mentioned earlier, not duplicate each other. It's hard at the moment to see, reviewing this consultation and the legislation that we have, how all these jigsaw pieces come together to create a coherent framework. It feels very bitty and very complex at the moment. 

11:40

I would echo what my colleagues have said. We need to remember that Wales is at a very different starting point to the rest of the UK. So, to turn the question, what sort of scale were you looking at for this overarching environmental—? Are we talking about something overarching for Wales or for the UK more widely?

I think that's what we're trying to establish and that's what we've been establishing all morning. But we do have some jurisdiction over what we do too. I think, for us, we're looking at where the best fit is, and it might not be the same fit in every aspect, because we have got the future generations Bill, which gives a different fit to us perhaps than England when it comes to the environment. It's not for us to answer the question. It's a fair question and it's one we're trying to seek the answer to.

I just want to make an observation. There's been a lot of focus in the Assembly this week about air quality and the importance of air quality. The environment, obviously, is a critical component of that. Huw, you touched on the danger that Brexit poses to our very high standards—I think they were your words. I disagree with you on that, obviously. But I'll make this point: in the DEFRA department for air quality, instead of subscribing to the EU regulations, the DEFRA department are bringing forward proposals that follow the World Health Organization proposal or protocol—call it what you will—which is a far higher level than the EU level. In Wales, the Welsh Government are talking about sticking to the EU level of regulation. Flipping it on its head here, there is a danger that obviously a greater emphasis is placed on some of these accords, and yet you're representing businesses that obviously have to subscribe, and especially cross-border businesses. That's a real challenge, is it not, to the members and organisations you represent? I just use that as an example that's come to us this week, if you like. 

I think certainly the policy divergence within the UK is potentially a challenge that we'll have to somehow—. It's a circle that we'll have to square, somehow, after Brexit, ensuring that we—. Air doesn't respect national boundaries, neither does water and many other things. I fully take the point you're making. Obviously, in relation to DEFRA, the EU standard sets a baseline in terms of our EU obligations. The fact is DEFRA appear to have chosen to exceed that, but that is a decision for DEFRA. The bare minimum they'll have to do is observing the EU minimum.

Yes, thank you. Bore da. I just wanted to ask a few questions around the Aarhus rights. Clearly, we'll still be subscribed to the Aarhus convention if we ever leave the European Union, so some people would say that we're still subject to some of the basic principles there. But, we have had a lot of evidence suggesting that those Aarhus rights should actually be enshrined in domestic legislation and that there's a vehicle here somewhere in terms of environmental governance to do that. What would your view be on that prospect?

Looking at Aarhus, it's not an area that I'm an expert in, but, in terms of my understanding, the purpose behind it is the contribution of public to understanding environmental—

In terms of the environment—and recognition that the environment affects everybody, and trying to engage as many people in understanding that. So, I think my question would be why we would want to enshrine it and do we want to enshrine that, or are we trying to—. What are we trying to enshrine into law and why? Is it that we want the public in Wales or the general public in Wales to be more involved in understanding the environment and the consequences on the environment of some of our practices? That may be a positive thing, but how do you legislate for that? And what does that look like on a domestic level maybe different to the convention. And, like you say, the convention is still there, we're still part of it. By signing up to a convention, we agree as a nation to abide by it. So, what are the additional benefits to putting it into domestic legislation?

11:45

Because it's been pointed out to us that there is an anomaly, really, in that the proposed UK environment Bill does incorporate some of the principles in from the Aarhus convention in law, through that Bill, whereas the Welsh Government doesn't propose to do that, and they refer to, or I suppose they believe, that we have sufficient Welsh legislation, in terms of future generations and the participative principles and stuff within that. That sort of covers that base, albeit we'd still be part of the convention. But, clearly, it's come from other stakeholders. So, I was just wondering whether you had a particular view, really.

I don't have a strong view, but I think I’d want to understand what the legislation would look like different to what we have now. Like I say, we have quite a lot of participation through the well-being of future generations Act, and the environment Act looked at things like area statements and things like that. There are ample opportunities for the public to get involved in the environment. What, additionally, would that look like in practice?

I'd like to come in if I—

Quickly, sorry. So, already, as I mentioned earlier, the Welsh future generations Act it still largely unknown—and the environment Act—to the general public, particularly the SMNR principles. And I would argue that perhaps it's more beneficial to spend time engaging the public with such principles that we've already got in Wales before bringing in principles elsewhere. Although we, you know—I don't understand this; I'm not fully up to speed on this principle, the convention, but it does seem like we've got a lot of room; we're still in very early stages of the Welsh future generations Act and indeed the environment Act, and I think there's still a lot of work we can do there before going further. I think, if you spoke to Joe Public and asked them to tell you the sustainable management principles, they wouldn't know.

I'd be inclined to agree with both contributions there, really. I think, at the moment, it's unclear where we're headed and there is—. Importing the Aarhus into Welsh law—you know, I think we need to let the existing structures bed in first as well.

Everything you've said about Aarhus rights is true, except for one thing that hasn't been mentioned, and that is that it is a mechanism that allows the public to understand your legal obligations and their right to hold you to those legal obligations, which is probably the most important part of it. So, that's why I've asked to come in. Because that gives non-statutory bodies an opportunity to come together as a collective to exercise their right to say that something is happening that shouldn't be happening and trying to seek some redress or agreement, because it's not always going to be redress—hopefully, it's going to be mostly agreement. So, that's why the evidence that we've been given has asked for this to be enshrined. So, in terms of what I've just explained, do you still think that it's a good idea that we don't adopt it?

I don't think we’d said that it’s not to be adopted; I think we just need to see where the gaps are. And I think the point you make that the most important part is that access to justice—

—redress—is the most important, I would actually say getting people more involved and understanding the environment is equally important, and, actually, if you can avoid the problems at the end by getting more involved, you should then have less issues at the backend, then. I don’t know how many cases a year are raised and how prolific an issue it is in terms of cases being brought forward, and I think I’d like to understand more, in terms of how many cases, what the figures are, before understanding how important it is from that perspective.

Thank you, Chair. So, there's a proposal that certain principles will be applied through the legislation, and I'm just wondering whether you have a view as to who, or which bodies, should be subject to those environmental principles and for what purpose.

11:50

So, if environmental principles are principles, they should apply everywhere, to everyone, all the time—that's what principles are. So, to answer the question who they should be applied to in legislation kind of goes back to the question of are they legislative principles or are they principles that sit beyond the legislation and influence and shape all decisions. If you look at the legislation that we have, maybe some of the failures of the environment Act at the moment are that it has a very prescribed list of bodies who are subject to particularly the first end of the environment Act. That will become more complicated in the future, particularly in our world, when the common agricultural policy, for example, isn't there. So, from a farm perspective or a land-use perspective, a lot of the rules and regulations around the environment are tied up into the common agricultural policy, and, if you remove that bubble, it will be interesting to see how the legislation that we have or the adoption of the principles applies and affects our sector, and I think that's something we will be looking very closely on as time goes by.

So, do you see any coherence between 'Brexit and our land' and the environmental governance consultation at the moment, because, clearly, to build on the point that you just made, they should go hand in hand? 

Well, no, because environmental principles aren't just there for farmers. Environmental principles are principles that apply for everybody. Farming is one sector of the community and should not be treated any differently when it comes to environmental principles. Of course, there is overlap, and, if they are genuine principles, then whatever comes out of 'Brexit and our land' and 'Brexit and our land 2', which we're expecting in a few weeks' time—for want of a better title for now—will have to consider that in the light of whatever principles take shape. But it shouldn't be that there are special principles for farmers.

No. You make a fair point, actually, yes. Yes. Okay. So, the UK Government and the Scottish Government are talking about producing a policy statement to go with what they're proposing. That isn't being proposed in Wales. We've heard other evidence this morning that that would be useful in terms of maybe articulating in a bit more detail the kinds of approaches that the Government would be looking at in terms of applying the legislation. Do you have a view on whether a policy statement sitting next to the legislation would be a useful contribution?

I think it would be useful to have that. I think it would provide greater clarity and certainty as to the purpose of the legislation and I think it would put people such as ourselves in a better position to understand the objectives behind what the Government is seeking to do. So, yes, I think there does need to be that—

So, you would urge us as a committee to convey that message in our response to Government.

Just to add to that, I'm not convinced yet that the case has been made for any legislation.

Yes, fair comment—there was a huge presumption in my question, yes. Well, actually, there's been a huge presumption in the session so far, then, in that respect. But yes, sure.

So, subject to that question of clarity then, but I don't think we've been persuaded as yet that there is absolutely definitely a need for legislation.

For any legislation at all.

On a Wales basis, because of the interaction between Wales and England.

Okay. Well, we'll come to that interaction in more detail later on, maybe. Just to pick up—. And I think, Rebecca, you touched on this earlier on. In your written evidence, you say that there needs to be a clear distinction between guiding principles in terms of decision making and operational principles in terms of ways of working. I don't know if you want to expand a bit more on that, and how, maybe, that could be articulated or captured through legislation.

Yes, and again I think it's what the role of legislation is, and we can very easily legislate for whatever we like, to some extent, but that doesn't actually change practices on the ground or behaviours or outcomes. So, I think we should be cautious before we get the legislative tools out and try and put everything to legislation and then think that we've solved whatever problem we're trying to fix. We need to understand how those translate into impacts on businesses, how it impacts on ways of working—in the public sector, but also in private businesses—and how that will affect our businesses, and this is probably where the link to 'Brexit and our land' comes though. I think it's very easy to say we've fixed a problem by legislating, but actually it changes nothing, and, until we understand why we're legislating, what that legislation will cover, and how that is then implemented and delivered, it just feels a bit too simple. 

11:55

Yes, okay. Okay. Thank you. You also say—and this is probably along a similar line, really—in your written evidence, you highlight that:

'The EU environmental principles operate is more interpretive and ingrained into ways of working',

whilst the UK's legal system is more literal. So, that's a similar kind of point that you're making there.

And the points I was making earlier about time, and society changes, and our evidence base and understanding of climate change, for example, has changed dramatically in a very short amount of time—

But when you legislate, as you say, you legislate at a point in time.

—and when you legislate, you're fixed in time, and, unfortunately, the courts will then interpret the legislation based on that definition—

—and, as the work moves on, we could be at risk of holding back our ability to move with the world if we are stuck with very rigid principles in law.

But there is—. In terms of enforcement, legislation and principles are very different beasts. 

The CLA, in your paper, you do recognise that obviously there is a lot of interest in this whole issue from citizens, I'm sure including the young people who are in the gallery watching this at the moment—you know, the issues have been raised by young people, the levels of plastic pollution and other issues relating to the environment, obviously have been given heightened importance for a whole manner of reasons that we don't need to rehearse here. So, I think, really, it's about what role should the citizen have in ensuring that the principles and the regulations that we currently enjoy through our membership of the EU should be maintained and how. So, what do you think—all of you—are the main challenges in addressing the governance gap that is likely to emerge if we leave the European Union?

I think we approached the evidence and the consultation more generally at looking—. We felt that it looked at what we have now and what gaps it creates as opposed to maybe taking a step back and saying, 'What kind of society do we want? What type of governance could work best for Wales?', and I think we're looking backwards in terms of what we had and how to replicate it as opposed to looking forward in terms of what we could have and how we could engage citizens in the debate and what would be the best solution for Wales, and I think gap-filling isn't a good way of starting. We should look to the longer term at what we want to achieve, and then think about how we get there.

I think legislation is one way to get there, but, actually, things like leadership are also important, and, as Assembly Members, as Ministers here in Cardiff, you have a role in leadership as well as creating legislation. Again, it's very simple for you to create legislation that says you've done something, but showing leadership, leading by example, is actually more difficult, more challenging, but could actually have a significant impact too. 

Yes. I mean, FUW makes the point that it's obviously much better to prevent accidents than—

—to pay for the impacts, pursue people for cleaning up the impact afterwards. So, that point's absolutely taken.

But the current situation is not perfect, is it? Because the article yesterday in the paper about the level of ammonia nitrate on Welsh land—over 50 per cent of our land has got higher levels than the controls indicate is necessary for the flora and fauna to survive. So, there are clearly issues already and I just wondered how closely—. I mean, I can see there are advantages in taking back control, of having enforcement agencies closer to the citizen and the communities that we endeavor to serve, but, equally, there are resource implications in this. I mean, the NFU, you rather boldly state that,

'the loss of the European Commission’s supervisory and enforcement function',

is, really, the only true governance gap following Brexit.

12:00

Yes. I think I made that point because the consultation that we've gone through—the Welsh Government consultation—makes reference to our governance and principles, and we recognise there is a governance gap opening up, but what the Welsh Government are proposing to do goes somewhat beyond closing merely that gap, because they are considering bringing new principles into law or into policy and also are looking to bring bodies into the remit of this oversight body, the proposed oversight body, that would never have been subject to the oversight of the Commission itself. So—

Can you give us an example? Because it's not just public bodies that need to be complying with environmental regulations. Everybody—

No, I agree with that, but the EU community-derived obligations relate to the member state. They're obligations on member states. What is being proposed here goes somewhat beyond that, from my reading of the consultation anyway, because you're proposing to put other bodies within the remit of this oversight body, which is replicating the role of the Commission, and you're also introducing additional principles that weren't there before. So, yes, you are closing the governance gap, but you're going a little bit beyond that, potentially, as well with some of the proposals in here.

Okay, but I suspect that the Welsh Government is listening to what the public is saying as well on these issues, and we also have to bear in mind what some people want to see in the future trade deals—for example, with the United States—which would mean a huge lowering of environmental standards relating to farming and food. So, establishing these principles is going to be crucial. So, the NFU is wanting us to push into law those principles that we currently enjoy through membership of the EU but go no further.

I think so. That seemed to be the view that our members came to on that, yes. If this is about closing that governance gap, then you close the governance gap on the basis of what we are losing as a result of leaving the European Union. If you want to go beyond that, sort of relating back to the point I made to Joyce earlier, that has to be paid for somehow if you are wanting higher standards of your producers, which is fine; we don't have a problem with that. But if you want higher standards of your producers, then, certainly, we shouldn't be undermined by food coming in from abroad produced to lower standards. And it has to be rewarded, either through the marketplace or through support from Government for taking those additional steps.

That's a very important point, of course. Do any of you want to elaborate on what the overarching governance should be? One of you touched on the role of the future generations commissioner and whether or not she was truly independent. I think there are lots of indications that she is, but that's for a different day. But, clearly, one option would be to give enhanced powers to the future generations commissioner or, equally, build on the enforcement powers that NRW currently has. But earlier witnesses have pointed out that NRW can't be regulating itself. So, we're going to have to have some sort of body that is going to be the guardian of our environment and the principles that we need to establish in law. So, the main issue is really whether we have a specific Wales one or whether we have a UK one.

My concern is that we are rushing into trying to answer that question without understanding all the implications. For example, Huw mentioned earlier the cross-border farms. So, how would you apply that along the River Wye or how do you measure air quality? It doesn't stop at the border. I understand the political need to make progress in the face of Brexit, but I think my call would be, looking in and working with Wales and with colleagues working with Westminster and the environment Bill, that these two worlds are covering very similar territory and are kind of 90 per cent talking about the same thing. They're just not quite touching in the middle, and we are concerned that, in the future, if we don't get this right now, it could create no end of havoc, having two bodies, two different interpretations, in the future. How do businesses cross-border apply, then? What happens for decisions that the UK Government takes in Wales, so the non-devolved areas? What sets of principles would they be obliged to follow? Who would then be held politically accountable for those decisions? If you were a member of the public who was unhappy with the decisions, how would you seek redress? Would that be in Wales? Would that be through the English body? What happens if the Welsh body and the English body disagree? How is that arbitrated? The list of questions goes on and on and on.

12:05

That already exists, to a large extent, doesn't it, because the provisions of the environment Act and the well-being of future generations Act don't apply to non-devolved public bodies in Wales? So, a lot of that already exists, and the point I made earlier, in an earlier session was: most of the countries in the world deal with this. I mean, it's not unique to Wales and England, is it? That's not to say that—. I think there's merit in a common framework, as there is in the current arrangement in the EU, but, I mean, crikey—.

I'm not saying we shouldn't have it and we can't have it, but let's at least have the conversation and make sure it works. And if the solutions—

The solutions may be different and we may have different interpretations, but let's understand the implications of that first, not wait for the problems to hit later. It may be that we want to take a different approach in Wales, and that's what devolution is, but let's not go into it blindly.

Clearly, there's some coherence in your argument about having a whole-of-Britain regulatory body, but that would then lead you to say, well, you'd need a whole-of-Ireland regulatory body, because they're two islands, from the land perspective. But then it gets you into, well, when we're looking at our seas, clearly the fish don't recognise any borders. So, this is a really complicated issue, but the principles have to be that whatever regulatory body we set up, they have to have sufficient expertise to understand the complexities of things, as well as the resources to carry it out on behalf of the citizen.

And it may not be one regulatory body, but there needs to be a way of interacting between regulatory bodies and some sort of process in place. So, I don't think we'd go as far as saying that we definitely want to see one body, but we'd certainly need to see a framework, and I know that word is overused so often at the moment, but a system that enables the four parts of the United Kingdom to work together where there are issues that are bigger than our territorial extent. Air quality and water quality are really good examples of this.

Yes. I mean, the NFU, you are saying your members are opposed to members of the public being able to raise complaints directly with the oversight body. Can you just elaborate on why that is?

We see the primary role of this new oversight body as being the oversight of Welsh Government and public bodies in relation to their environmental obligations. We have some misgivings about, perhaps, the volume that that potentially could attract, and it's likely that some of those would be frivolous—possibly—complaints as well, taken to the body. We'd be concerned about it being inundated with complaints and potentially not able to discharge its other functions. I think we'd point to some of the other mechanisms that might be open to members of the public as well. They can—. In the first instance, I suppose you can raise a complaint with the relevant body, and bring to their notice that they're not discharging their functions. You can raise issues with Assembly Members and Members of Parliament. Ultimately, there is judicial review. 

So, is your argument that this oversight body would need to be regulating the public bodies, whose job it is to enforce environmental regulation, including, obviously, NRW?

Well, yes, I suppose that's what's proposed in the consultation—that it would have oversight of these public bodies, and if it is going to do that, then I think, if a large volume of complaints are coming in from the public as well, it could distract from that role.

12:10

Okay, so you'd limit this body to having oversight over the public bodies who already have obligations in this regard.

Yes, I think so. Certainly, if the Welsh Government were minded to go down the route of giving members of the public a means of complaining to the body, then, obviously, there would probably be a resourcing implication, and there would probably be a need to have some sort of screening mechanism as well to screen out some of the complaints. 

Just very quickly, to add on to Huw's point, we've had some difficulties with—. I don't know whether you're aware of this Project Calf, which—

'Calf', as in baby cow, where people are encouraged—. There was a group who encouraged people to go onto farms and film what they perceived as animal welfare issues, and then submit it. It was just a terrible thing that really put quite a lot of—not our members, but members in the whole of the UK—farmers in the whole of the UK into some turmoil and distress. It was members of the public who were, in many cases, ill-informed about—. If there is lameness in a sheep and you're recording it, it just needs some sort of level of— 

Yes. So, I think there needs to be some sort of clarity. It's all very well engaging the public, but also there needs to be something that the farmer can come back on, or whoever can come back on.

Moving on to enforcement, and we, sort of, talked about it, but there are different types of enforcement and the functions therein, and there are two. So, there's the informal and the formal enforcement proposals within this, and we've heard evidence early on about the different levels of enforcement and compliance, because we need to think about them both together. So, what are your views? Or do you have anything to add from what you've already said about the informal and formal enforcement proposals within this?

If you don't have anything to to add, I'll carry on, because there is also judicial review, and to what extend do you think that that's an appropriate enforcement tool?

Judicial review isn't necessarily an effective enforcement tool. It's useful and can be helpful in raising awareness of gaps in application of legislation, and could be used to hold government to account for not applying legislation or not effectively applying legislation, and that may change legislation. But it’s quite a costly and time-consuming route to get to an outcome. And from a member of the public’s perspective, it’s quite an expensive and difficult process to achieve the standards that you need to get, even to get standing to get to judicial review in the first case. So, it has a place to play, and there’s probably not one solution that’s going to resolve all environments. So, I don't think there’s a quick fix to this. I think there needs to be a range of tools available for different people with different levels of complaint to be able to seek redress appropriately. If you are a large organisation or an non-governmental organisation, judicial review may be an effective means for you. If you're a private individual, there may need to be other opportunities available. And how do you create a framework, a governance structure, that allows access to people at the right level, which is appropriate to the complaint that they have? If your complaint is minor, judicial review is not the way to redress it.

Okay. We've had evidence earlier on that highlights the importance of strong disincentives for non-compliance. So, they could financial, they could be practical, but they could be reputational. And if we come back to where we started not so long ago—who would pay the producer, whoever they are, for the goods being of a higher standard?—then there is a reputational damage to the producer of those goods if they were non-compliant. And I think that’s where we're trying to get to—to give confidence to the people who are producing and the people who are consuming. That’s my understanding of what we’re trying to do and I think we would all agree that we’re on the same page.

12:15

I think that's a laudable aim: to give that confidence to consumers here and also in our export markets as well, because we will need to, somehow, whoever we’re exporting to, be able to demonstrate that we’re operating to a standard that is mutually agreed.

So, in that context, because we don't always want to see it as a stick—we want to see it as a carrot sometimes—then it can be seen and viewed as a really positive thing that we know that everybody's compliant. Coming back to your question about how many people end up in this situation, well, let's hope we don't end up with anybody in this situation. So, that leads me to move on to the scope of the new body—

Can I briefly come in on that point? Because I think Joyce hit a really interesting line that maybe we haven’t explored much this morning as a committee. Obviously, all of your organisations speak maybe for the commercial sector, shall we say—businesses that are at the coalface, producing the goods under the regulations and the guidance that we’ve been taking evidence on. I think everyone subscribes to getting as high a standard as we possibly can, but if we hit that very high gold standard, then your members and your businesses need the certainty that the trading environment they’re working in—‘protected’ is most probably the wrong word, but is also the right word really—is protected and they don’t get it knocked out from under them. So, I’m just wondering, have you got any examples of where else in the world, maybe, where environmental practices have been pushed to the highest standards possible, but yet that hasn’t decimated indigenous businesses, if you like, because they’ve been taken out by the imports?

Because, in my own region, for example, this week, there’s a bakery shutting in Cardiff North, or under consultation of closure, because they lost a supermarket contract, because, basically, someone came in and could make it cheaper than they could do it—160 jobs gone like that—and that’s the nature of the commercial environment we work in. So, I think, as a committee, we do need to understand, when we reach for these really high standards that we want, what commercial safeguards we also need to be considering when we’re considering the landscape that you’ve got to operate in. I appreciate that it’s a big statement, but it’s something that does need to be considered from a commercial environment.

Yes, but what I want, if something does exist, is examples that we can say in a report or whatever, ‘Actually, this is what you need to look at.'

I can't think of any examples, off hand, of where what you’ve just described happens. As nice as it might be to think that the marketplace rewards those goods, it’s often difficult to get that from the market. What hasn’t been especially helpful is the tariff schedules that the UK Government have published. They are asymmetric in terms of imports coming in versus exports going out, of course, and we know that some sectors would be hit pretty hard, actually, by some of the access that some third countries would gain to our markets. And the tariff walls are being dismantled slowly—what's being proposed there anyway—and we can see product from abroad, potentially, vying to come into the UK, and that would be a huge problem. So, the direction of travel in this country at the moment isn’t especially encouraging for our sector.

Just to very quickly come in there as well. So, the principles we've discussed already throughout the morning—. Perhaps there’s scope to have more cost-effective—so, things like incentivisation, education and co-operation, which is on a much lower level, but perhaps it’s a way of engaging the farmer to make these small changes before having to do the big changes that relate to the trade, going forward—going back to the ‘carrot’. So, just the small things just to encourage movement, which can then be used later on in the trade.

I'm sure it's where we all want to be. We don't want to end up in court and we don't want to see—. And I just want to come back to this idea of both sides gaining from high levels of environmental, I suppose, obligations. Because we have to move—and you've said it, Rebecca, earlier on—with the times, and the times are clearly changing. The provenance of food, air miles and the damage to the environment, or not—in this case, we're talking about not—are really high on the agenda now when it comes to the consumer. So if we can talk about it in those terms, which is why I opened up the debate, I think it's a good thing, and I'm going to leave it there.

So in terms of the scope for the body, the policy areas and the public bodies within the remit of the new proposed body, just to be clear, you've already mentioned that there is potential for overlap of responsibilities. I don’t think you need to expand any further on that, but what are your views on the list of public bodies that fall under that? Are you happy with the current ones, which are Welsh Ministers, Natural Resources Wales, local authorities and Ministers of the Crown? Do you think that that is the right list, or are there any others you think ought to be included?

12:20

I think there's an interesting disconnect between that list you just read out and what Andrew just said earlier about commerciality and businesses. And while I understand the list, it's actually commercial private businesses that are actually at the end of the conversation and are impacted and need to do something different. So how do you move from having legislation that is applicable to a list of public bodies to actually seeing changes and improvements and delivery of the environmental outcomes that we all wish to see in the private sector? Because largely we are talking about privately owned businesses. Eighty per cent of Wales is privately owned. So I'm not clear how having an oversight body that has oversight of a list of public bodies links to having better outcomes on farm, in our sector. Other sectors may have—

That's a good question. We'll ask the Minister that question, you can be certain, because this evidence session will feed into that evidence session, and we'll get the answers and I'm sure you'll be watching this space.