Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Newid Hinsawdd, Amgylchedd a Materion Gwledig

Climate Change, Environment and Rural Affairs Committee

12/06/2019

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Andrew R.T. Davies AC
Dai Lloyd AC
Jenny Rathbone AC
John Griffiths AC
Llyr Gruffydd AC
Mike Hedges AC Cadeirydd y Pwyllgor
Committee Chair

Y rhai eraill a oedd yn bresennol

Others in Attendance

Dr Ludivine Petetin Darlithydd yn y Gyfraith, Ysgol y Gyfraith a Gwleidyddiaeth, Prifysgol Caerdydd
Lecturer in Law, School of Law and Politics, Cardiff University
Dr Mary Dobbs Cyfarwyddwr, Rhaglen Meistr yn y Gyfraith, Ysgol y Gyfraith Prifysgol Queen's Belffast
Masters in Law Programme, School of Law, Queen’s University Belfast
Dr Victoria Jenkins Cymdeithas Cyfraith Amgylcheddol y DU
UK Environmental Law Association
Yr Athro Richard Cowell Yr Ysgol Daearyddiaeth a Chynllunio, Prifysgol Caerdydd
School of Geography and Planning, Cardiff University

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 09:15.

The meeting began at 09.15

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 Climate Change, Environment and Rural Affairs Committee? We've had apologies from Joyce Watson. Are there any declarations of interest? No. Thank you very much. 

2. Cynnig o dan Reol Sefydlog 17.42(vi) i benderfynu gwahardd y cyhoedd o'r cyfarfod heddiw ar gyfer eitem 3
2. Motion under Standing Order 17.42 (vi) to resolve to exclude the public from item 3 of today's meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o'r cyfarfod heddiw ar gyfer eitem 3 yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from item 3 of today's meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

Can I move a motion under Standing Order 17.42 to resolve to exclude the public from item 3 of today's meeting? Yes. Okay, fine. Back into private. 

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 09:16.

Motion agreed.

The public part of the meeting ended at 09:16.

09:45

Ailymgynullodd y pwyllgor yn gyhoeddus am 09:47.

The committee reconvened in public at 09:47.

4. Egwyddorion Amgylcheddol a Llywodraethu Amgylcheddol ar ôl Brexit – Sesiwn dystiolaeth 1
4. Environmental Principles and Governance post Brexit - Evidence session 1

I welcome Professor Richard Cowell, Dr Mary Dobbs, Dr Ludivine Petetin and Dr Victoria Jenkins. You're most welcome. Thank you very much for coming along. We've got a number of questions. Are you happy for us to move straight to questions? Yes. Can I start on environmental principles?  What are the key environmental principles you believe need to be incorporated in domestic legislation following the UK's exit from the EU, and why? And can you expand on why you believe that the precautionary principle is not sufficiently captured in the sustainable management of natural resources principles in the Environment (Wales) Act 2016? Who wants to go first? It's probably best if somebody at one of the ends—. Oh, sorry. 

I'll go first, then, just to point out that I'm here today to represent the views of the United Kingdom Environmental Law Association Wales working party, because I've already represented my own views on this subject beforehand. So, I would just say these are the views of our members as far as we could consult with our wider membership. So, the point that we made was that we don't believe that the principles are currently sufficiently covered by the Welsh law, although we do recognise and welcome the fact that we have the principles of sustainable management of natural resources. We believe that all four of these principles should now be included in the new legislative framework.

On the precautionary principle, at the moment we refer to taking account of all evidence, but what that doesn't do is mandate action in the face of uncertainty, and that's the key to the precautionary principle, which is why we don't think what we currently have in the principles of sustainable management of natural resources is sufficient.  

Just to follow up on that, incorporating all four principles would be helpful. If we imagine that we are to collaborate across the UK on environmental governance, some of those principles should be shared, because I think the UK is moving towards embracing that wider set. 

I guess the other thing to emphasise is that, with Brexit, there's going to be more intra-UK environmental governance challenges, and thererfore principles that concern the spatial organisation responsibility, like subsidiarity and dealing with cross-border effects, I think rightly should take a greater place. 

I would essentially echo those points. We need to think about having a wide range of principles and, as Victoria was saying, the principles can come in different forms, and the precautionary principle is in a weaker form there, or a more narrow form than could be adopted. It's key, I suppose, in thinking about—. I mean, we could list a range of principles, but it's perhaps more important to think about why we need those principles. We're losing key ones that are already outlined in the EU firstly, both the core environmental principles and good governance principles. We're also in the new context that Richard was outlining of post Brexit, and in trying to deal with new issues that are going to arise, including, for instance, those cross border, but also the allocation of powers. And, also, EU environment principles were created decades ago. They are in a limited form, and it's also a chance to go and think about what versions of those principles we want to develop, and to strengthen them in adopting it, so not just simply to copy and paste the ones that are there within the treaty. 

09:50

Those principles, and future ones in particular, would be the way to drive Welsh policies and legislation forward, and I think it is important in terms of, as was said, cross border, but also in terms of facing the scientific uncertainty that is underpinning environmental policy and environmental legislation, to have the precautionary principle. One of the examples would be the difference between gene editing and the views coming from the Department for Environment, Food and Rural Affairs, and Michael Gove, the Secretary, and the views in Wales in terms of genetically modified organisms. So, enshrining the precautionary principle would be a key example when we're thinking about genetic modification and gene editing. 

Thank you. We have received evidence to suggest that the objectives set out in article 191(1) of the Treaty on the Functioning of the European Union should be reflected in domestic legislation. Do you agree?

I think the key point here is the objective of a high level of environmental protection. That is the essential overall objective of European Union environmental law, and there's a concern that that is going to be lost if we don't replicate that. And I think that's the most significant point on that. 

I think here I would stress that article 191(1), is really important in terms of the objectives, but also article 191(2) is very important. And this is where we have this drive for a higher level of environmental protection that comes in. And this, I'm going to say 'principle', of a higher level of environmental protection should become key within Welsh legislation. The fact that it's a drive for better environmental protection, better policies, is really key, and should be present as well as the objectives in 191(1). 

If I can just add to that, I think here again it's important to differentiate between objectives and principles, and Ludivine and myself would have debates in relation to high-level protection. I think it can play both roles. But, important about having objectives is that they help provide the balance of weight with the principles, because the principles will help guide and direct but the objectives on having those as overarching objectives ensures that that's what we are driving towards at all times and provides that overarching approach. So, we need to have those alongside the principles within the Welsh legislation as well. 

I'll just echo that. In a sense, the overarching objectives are the goal towards which interpretation of the other principles takes place. 

Just in terms of who should be covered by the environmental principles, I wonder if you could say a little bit about that—who should be covered, for what essential purpose, and what is meant by 'all public bodies'?

I think one of the key principles that would be driving law and policy forward would be the principle of integration and having environmental principles integrated into the formulation of law and policy across any legislation, any policy, so that those principles underpin future legislation. This is really, really important, and—. I've lost my train of thought there. You go ahead. 

I would just clarify that we're talking about principles here. These are often guidance to the [Inaudible.] of legislation and its operation. So, we're not talking about targets and goals. It's not the case that we want to be multiplying the targets and goals on public bodies, which would indeed be cumbersome. But, nevertheless, inserting them, making them relevant to a wide range of public bodies, that makes a great deal of sense.

I've also lost my train of thought. One point is it's possible to add a caveat—wording to the effect of, 'to the extent that it's relevant to their duties'.

09:55

As I say, it's who should be covered, what's the essential purpose of that, and, if we're talking about all public bodies, what exactly is meant by that?

When they are acting as competent authorities, and their acts, or their omissions, are impacting on the environment, then I think they should be—and this is why we're going to discuss this—accountable for that. So, this is why it depends on whether they are competent, and, if they are competent, then those principles and those governance mechanisms, should be applicable to them.

I would basically go for the 'all bodies wherever relevant'. And I think it links into what Richard was saying about the nature of principles—that they aren't setting standards or targets. They're not very specific rules that require specific outcomes. For instance, you wouldn't go and say that public bodies shouldn't apply the principle of due process—that we would ignore it. All public bodies should automatically apply it. And these environmental principles, and the objectives also, the question is when they apply, and they should apply at all stages. They should apply in the formulation of policy and law making, they should guide the creation in the first instance, but they also need to guide us in how we implement and enforce it. And this is something that we actually see on a day-to-day basis. We may not think about it on a day-to-day basis, because it's engrained within the system frequently, but it has to be there, because they help go and fill the gaps, they help resolve conflicts, they help us go and make the strongest environmental governance approaches that we can, whilst balancing other objectives. And the role of the courts here in particular is very important because they're the ones that interpret the legislation, interpret the rules that are there in the light of the principle and objectives. And they help develop that approach that lets us all know what's expected of us.

I think, as well, that this is related to the issue of the principles of the sustainable management of natural resources, because the principles, in relation to well-being, do apply to public authorities in Wales. Those principles have been restricted to NRW and to Welsh Government, and yet we've had this idea put out there that, somehow, the principles of SMNR are also driving what's happening in Wales across the public authorities. But, actually, in law, they're not currently applied to those bodies. And if, as Mary said, we have a duty, as we've said, that puts this in terms of, 'So far as they are relevant to the discharge of their functions', then we're not saying that they need to operationalise these principles in the way that NRW does, but that they can help to influence the work that they're doing. And I think that would apply whether we're talking about the four EU environmental principles we've been discussing, or whether we're talking about the principles of SMNR.

Okay. Could I ask you as well about whether or not there should be a policy statement from Welsh Government on the application of the principles, because that's proposed by UK Government in Scotland. But I think Welsh Government's line is that that's actually covered by the Environment (Wales) Act 2016. Would you agree with that Welsh Government view?

The issue, if you have a policy statement on this, is that these are principles, and there might be different views about how those principles be put into action. And one of the questions we might look at later is about collaborative action across the UK. If we have different statements, with different interpretations of the principles, it's going to be very difficult to take that approach across the UK. And also it can be quite restrictive, in the sense, as we've just said, that it's going to restrict someone in terms of thinking about how that principle might influence them in the way that they discharge their functions as a public authority. So, from that perspective—well, from both of those perspectives—I'm not sure that it's a good idea.

That's also my view. I think my anxiety about what's going on in Westminster is that the policy statement could turn what are relatively enduring principles applicable to a range of scenarios, into something that is more susceptible to short-term political priorities, basically, in a way that's possibly unhelpful.

I think I'm going to be the voice of dissent here, slightly. It's not that I think the policy statement is the be-all and end-all on the UK front—I actually have severe problems with what they have proposed, as well—but I think that incorporating the principles within the legislation, first and foremost, is very important and we'll come, as you're saying, to the idea of doing it on a UK-wide basis as well. But having something in legislation that is binding—that is harder to change and remove or weaken—is very important. Having, potentially, some limited definitions within the legislation can be very important. A policy statement, depending on how it's done—and that's always the question of depending on how it's done and what the purpose of that is—could be useful; it depends on how it is developed. Are they being put there as ideas to explain what these principles can involve, but without restricting? So, it is the role of that policy statement—it could be very useful.28

One of the interesting things from the consultation document was that it was indicating that this was not required because there are these documents on the EU level, and in our current context within the UK, that is a very interesting perspective to put in a document. In a presuming, post-Brexit scenario, if we are relying on that, they can still play a persuasive role—absolutely—the EU, no matter what, can still play that role, including the communication on the precautionary principle, for instance, but it would make sense, if you think that it is required, to have a policy statement—to have a Welsh policy statement or to have a UK-wide policy statement.

10:00

I would echo what was said. We need to have the principles enshrined in law, but the statements could be a way to drive policy change as well, but it shouldn't be restricting what we want to do in the future in Wales. And also, those statements should reflect what are future aspirations and should not constrain at all what we think the environment should be like. But the statements should not be the place where we can only find the principles. The principles should be in the law and could be then expanded in the statements, but they should not only be in the statements without being in the law.

Could I just pick up on something that Victoria said? You said that, in law, the sustainable management of natural resources doesn't apply to public bodies other than Welsh Government and Natural Resources Wales. Is that a deficiency in the Well-being of Future Generations (Wales) Act 2015, or a deficiency in the Environment (Wales) Act 2016, that it doesn't apply to all 46 public bodies?

Well, it's a provision in the environment Act, not the future generations Act. When this legislation was being developed, the thought was that the well-being of future generations should apply across the board because it's a broader concept—a broader notion. The view, or this is my understanding of it, was that the development of sustainable management of natural resources was very much around the operation of NRW and ensuring that it would underline the operation of NRW, which is a very valid idea. It was also then applied to Welsh Government because it was to underline policy on natural resources. But I think these things evolve and I believe that I said in evidence at the time that it was very important that we monitor how this law was being implemented and how it was developed. And I think it's become apparent, over time, since the environment Act—even in that short period of time—that perhaps this is something that can have a broader application and maybe should have a broader application, but I don't necessarily see that as a criticism of the way the law was developed at the time.

Can I add something to this? I agree with Victoria's interpretation. We have to remember that those two Acts that we're talking about had been created under the EU framework and, therefore, the EU principles were still there creating a safety net, and now that these are going to be gone, this is creating gaps within the governance and also within the interpretation of principles. And I think it is really important that we focus on those gaps and this is what the document is about—trying to look at or assess those gaps and how to fix them. This is why it's important that the role of the sustainable management of natural resources and other principles expand to other public bodies across Wales and not only NRW and the Welsh Government when they are formulating natural resources policy.

10:05

Okay, thank you for that. Just moving on slightly, the Future Generations Commissioner for Wales and Natural Resources Wales both have a very wide remit—some people would argue too wide—but on the other hand, we have limited resources in Wales, so to create a specialist environmental body, a regulatory body that has the clout to face down Welsh Government or other public bodies and say, 'You are in breach of the law' is going to be quite challenging. So, I just wondered how you would advise us to proceed on this. 

I think that's the key challenge in many ways for taking through environmental governance in the Welsh context, because the way I see it, Wales could be seen as being both in the best and worst positions here. Best in the sense that the Welsh Government has developed environmental legislation in this field in a way that the UK Government hasn't, so in a sense it has less of an environmental governance gap, but it's in the worst position because, as you say, working out how the functions lost by European institutions might be fitted into what is already quite a crowded institutional space is really, really very tricky.

I think it's better to figure out what is it that's distinctly needed and not present in the current situation. And if you think there are distinctive needs that are not met, then action perhaps needs to be taken to plug them. One of those is the substantive question of having the powers of oversight, monitoring, enforcement and holding Government to account, and other public bodies to account for performance, which one might argue is not fully represented, certainly not in operational bodies like NRW and not in the same way by the future generations—

Well, they're paid for by NRW, by the Welsh Government. So, it makes it difficult. 

Yes, that's fine. But also there are questions about how the goals of EU environmental objectives fit into that legislative framework. There's a substantive question there at present. It would be the case that if Welsh legislation, future generations legislation, environment legislation was not helping us to deliver or implement EU environmental objectives, that could be an implementation problem, that could be something that needs correction and enforcement action. The challenge then, when you think about that wholly in the Welsh context, is: how might a new body therefore relate to the future generations commission? Is it one of the bodies over which it should—should the relationship be one of collaboration but also oversight? Because in a sense the performance of that body and of Welsh legislation is also legitimately under question when it comes to thinking about whether or not environmental objectives are being achieved. 

Okay. Does any other member of the panel want to provide us with a view on this?

Yes. I don't believe this is something that UKELA has specifically responded to, but as an individual I've spent 20 years looking at and researching sustainable development, understanding sustainable development, which is now part of the agenda for the well-being of future generations. The key thing for me as an environmental lawyer is that this is not environmental protection. They are different. People sometimes—or did in the past—read sustainable development to mean environmental protection. It didn't mean it then and it doesn't mean it now. The well-being of future generations clearly identifies that agenda as being something that includes but is not exclusively about environmental protection, and the issue will always be that, within that very broad agenda, the clear focus on environmental protection will be lost, and that's what we need in these circumstances. We're going to lose these key mechanisms that hold the Government to account for what it does in terms of environmental protection, or as we might refer to it now, the sustainable management of natural resources. That's going to be lost, and it needs to be replaced and the future generations commissioner is not in a position to do that because that's not her remit.

I would echo what was just said. There is a danger that environmental protection or SMNR just get subsumed into what the commissioner currently does. I think it's important that we don't lose the momentum that Wales is creating, thinking about the climate emergency, thinking about the recent decisions taken within Wales to drive environmental protection forward. I think that having a separate body dealing with environmental protection or SMNR would be key. What aspects and what form that body takes remain to be seen, but for me, to be separate from the commission.

10:10

If I can interject with what is probably a depressingly practical perspective, which relates back into your question. So, I think what we've heard is that there is clearly a need for such a body, definitely. We need something independent, something accountable that can hold other bodies to be accountable. But there is the funding issue, there is the resources issue, because it will be expensive. And I don't have an answer for you for that. I don't think anyone here could possibly have an answer for that, because it depends on how you prioritise, how the Welsh Government will prioritise, currently and for the future, and that might be something to negotiate with Westminster as well, and do the wishful thinking of ring-fencing funding away from the block grant.

But what I would highlight is that this question actually highlights even more the urgency of having an independent body, because this highlights the potential for conflicts of objectives, for competing objectives, and the fact that if it's a choice between objectives, the environment risks being pushed into the corner and ignored. And, it's for that reason that we need this independent body that can hold the Welsh Government to account in future, irrespective of what it intends to do now. But for the future it needs to be able to hold the Welsh Government and public bodies to account. So, I don't have an answer; I'm just saying that it accentuates the need.

But it's all going to take time. We won't have anything in place by 1 November. So, what happens then? There will be no enforcement. So, the Government will have to look to some existing regime or set-up to fill that gap, surely.

We have existing enforcement bodies. They're not just directed at the Welsh Government. And we don't know exactly yet what will happen on 1 November as well, which is always fun and games.

I'd say everyone's crossing their fingers in all different directions all over the place. We don't know what's going to happen, but we have to go and prepare as best as possible for the future. And, yes, things take time, but that's why we step in right now and we act now, but trying to develop it as best as possible for the future.

People can go to judicial review on that kind of thing, yes, but there will have to be a designated lead body—the go-to body—for this kind of thing, and I think that's where the future generations commissioner thing has come in, I suppose, isn't it? Because I would never see it as a long-term answer. I wouldn't really see it as a short-term answer, but I think Government are looking around and thinking, 'Who's going to do this in the interim?'

I suppose if I just throw out what's happened and what's happening in England, which is they've convened a notionally short-term, life-limited panel led by Richard Macrory to receive cases in the interim. Whether something like that could be rustled up in the Welsh context is a moot point. But I guess the dilemma the Welsh Government's created is by, quite rightly, thinking very carefully about how you integrate this new machinery in the best possible way with what exists and proposing a conversation about it—you know, good results that are well integrated take longer than short-term, gap-filling solutions.

So, Llyr Gruffydd has already outlined the potential gap that might suddenly appear on 1 November. So, how should we proceed on this, given that the long-term solution to it is going to take time to be set in place? In your written submission you recommend that Wales remains a member of the European Environment Agency, were we to leave the European Union. Could you just expand on why that would be an important thing to do? Whether we can achieve it is another matter, but why would that be a significant contributor to protecting the environment?

I'm actually really happy that your committee picked up on this point. You just talked about the potential for the lack of resources post Brexit, and the European Environment Agency provides so much support, so much information, it has the capacity to do the research, to inform its membership. It would be putting so much more pressure onto the resources in Wales if Wales decided to just do the same type of research and create the same information, whilst it's already available and done by the EEA. And the EEA has membership beyond the European Union, so it has 33 members at the moment—Turkey, for instance, is one of them—and therefore it's not limited purely to the European Union or the EEA countries. Therefore, there is potential for remaining a member of this bigger network, to have the expertise, being able to access the knowledge, the information that they have, and I think it's really important and would be key for Wales to remain a member.

10:15

Thank you for that clarity. Is there anybody who feels they need to add to that? Fine. Okay. Moving on, what are your views on the Welsh Government's informal and formal enforcement proposals to resolve issues of non-compliance with environmental law?

I think the consultation document is a little thin on this. There's a lot more thinking going on at a UK level around tribunals and so on. I'm not the expert to speak on that, but this is a cross-UK debate.

I would agree. There's not as much detail there. There's a recognition of the need for informal and formal responses. What's in the consultation document, again, UKELA didn't specifically comment on, but personally I would say it seems to make sense. It is certainly a good idea to have both informal and formal responses, as the commission does. That would replicate what the commission does. But clearly, and as the conversation in England has brought out, the devil will be in the detail, and so we need the detail before we could comment, perhaps, more about that.

In terms of the need for enforcement and the need for this new body, if there is one, to be able to take action to court, I think the points have been made very strongly—and in UKELA we would certainly agree with this—that judicial review has problems—you know, it's not based on looking at the merits of cases—and that we might want to look at quite a different model for that, and that the tribunal approach is something that we might want to look at in more detail.

Judicial review is very clunky, isn't it? I mean, it takes huge resources, so it's very difficult for citizens to use it. Could you just expand a little bit on the sort of tribunal idea? In what way would that be different?

The tribunal approach is different in the sense that you can look at all the merits of the case. So, you can look at all the circumstances surrounding this, all the factual evidence, and come to a decision on that basis, which is very different to judicial review, which focuses very much on procedure: 'Have you followed the correct procedure? If you followed the correct procedure, then that's fine. If you haven't, then we'll declare that you haven't done that and then you can go back and make that decision again.' So, it's focusing very much on procedure, which is not really what we need in these circumstances where we're looking at environmental targets and thinking about whether those targets have been met. Very often, the responses to those targets are very complex. In the tribunal system, you would have people there who had expertise. Very often, these are really complex scientific questions that need that expertise to be understood and to be answered effectively. So, it's just a totally different style and system, which seems to be much more appropriate to the kinds of questions that we'd be asking.

Okay. That seems very clear. Are there any other enforcement tools we'd need to think about?

Can I complement Victoria's answer? When you think about judicial review, it's also quite costly. The Aarhus secretariat, its committee, really has told the UK repeatedly that in terms of its justice in relation to the environment, it's far too costly, and therefore this is something really to consider, moving forward. Judicial review usually happens within four months—a maximum of four months—where someone has to do something about it and act upon something that can take quite a while to think about. When Victoria was talking about the targets—. I mean, sometimes, it takes longer than four months to actually realise the consequences, and I think this needs to be considered.

The other problem with judicial review is that it often attracts proceedings in relation to nature conservation. The aspects of environmental protection are quite attractive to the public, but not so much other aspects, and, therefore, there is a danger that focusing only on a judicial review, some things are not really focused on. The other problem as well is that we can't expect environmental NGOs to be driving the push for more environmental protection, and this is something that we should all bear in mind—that environmental NGOs are there, and they can do certain things, but it's also—. We should all have the powers to do something about environmental protection.

10:20

Okay. Thank you for that. Could I just finally ask you, if somebody's found wanting, should infraction fines be imposed where a body doesn't comply with an initial judgement that a breach has occurred, as is currently the case in the EU?

I will throw myself on the sword and say 'yes'. So, I realise it may seem somewhat circular, in a way, because it does go back round within the Welsh Government or within the governmental system, but I think there have to be consequences or there has to be the threat of consequences, and for that purpose, both administrative fines, potentially, before getting to some form of tribunal or court, and then also some actual fines that are imposed, as well as the costs. So, the same as is done to an ordinary individual or business whereby it's possible to undertake the actions and reclaim the cost, you could also have that. So, a range of different mechanisms including, yes, a final fine from a court.

It's perhaps just worth adding an extra dimension to this judgement about what constitutes appropriate enforcement measures, and that is that the EU has a keen interest in the kind of environmental governance measures we create. It's expressed this in the withdrawal agreement, and I forget the exact wording, but any mechanism we create must have a real and dissuasive effect. And the challenge is that there is evidence that fines or the threat of fines has had a real and dissuasive effect, which has had a good upfront effect on Government in terms of taking steps to make sure, for example, we hit waste management targets and so on. I'm struggling to find something that has an equivalent dissuasive effect.

Diolch yn fawr, Gadeirydd. Allaf i ddechrau drwy ddiolch yn fawr i chi gyd am y papurau bendigedig rydych chi wedi eu cyflwyno ymlaen llaw? Mae yna dystiolaeth fendigedig yn fanna. Diolch yn fawr iawn i chi. Ac ar gefn y cwestiynau rydych chi newydd fod yn eu hateb yn nhermau cwynion, ond yn dod o ochr, yn benodol, y cyhoedd, felly, a mynediad dinasyddion cyffredin i unrhyw system o gwynion, wrth gwrs, ar hyn o bryd, o dan adain yr Undeb Ewropeaidd, mae'r unigolyn yn cael rhyw fath o gymorth i gwyno pan mae rhyw anffawd amgylcheddol yn digwydd, ond sut ydych chi'n gweld pethau'n datblygu yn y dyfodol? Pa beth sy'n rhaid digwydd i wneud yn siŵr ein bod ni'n gallu cryfhau swyddogaethau cwynion er budd yr unigolyn yn y wlad yma? 

Thank you, Chair. Could I start by thanking you all for the excellent papers that you've introduced beforehand? It's excellent evidence. So, thank you very much. And on the back of the questions that you've just been answering in terms of complaints, but coming from the public's side specifically and the access for ordinary citizens to any complaints system, of course, under the European Union, the individual has some support to complain when there is some environmental wrong, so how do you see things developing in the future? What needs to happen to ensure that we can strengthen the complaints function for the benefit of the individual in this country?

I'd love to apologise in Welsh for the fact that I can't understand Welsh or speak it, but my apologies. So, the complaints mechanism is a key function. It's very important from an accountability and democratic perspective for the individual, as you were mentioning. It's also a very useful resource for enforcement because it means that an ordinary individual who sees, for instance, water pollution in the stream can call in. We have these mechanisms across the UK where there are, basically, consumer hotlines, effectively. We can call these in. This is something that needs to be maintained. It needs to be maintained from just a general effectiveness perspective and it also needs to be maintained, really, to facilitate the Aarhus rights as well—the idea of the individual being able to engage in environmental governance. But it's something we should definitely maintain.

The fact that citizens can complain at the moment is free of charge to the EU, and this is something that should be maintained as well so that it's not costly to the citizens to actually complain about something that's happening down the road, or that they have seen. But most importantly—and this is going back to the question on judicial review, as was mentioned by Victoria—is that citizens are able to complain both on procedural and substantive grounds or rights, and judicial review focuses on procedural grounds. But it's also important to keep focus of the substantive rights that any EU citizens, therefore any UK citizens, currently have in terms of complaining to the European institutions. And therefore, this is something that should be carried forward.

10:25

I'd agree with what my fellow panellists have said, but just flag up an interesting issue in terms of how this relates to planning, because I think we have a slightly anomalous position in that under EU legislation, citizens have quite strong free-at-point-of-use rights to complain about the implementation of EU environmental legislation, but the planning system, which is not, broadly speaking, an EU competence, has very significant environmental implications, and the rights of citizens, as third parties, are very, very limited by comparison. I think when you bring these questions of complaints back home to the UK, to Wales, to deal with, that anomaly becomes quite apparent, really. So, the interesting question is, perhaps, whether or not an improved complaints procedure—because it's, after all, about getting better decisions—might also have some application to planning and its environmental aspects as well.

And I think one of the real benefits, in a sense, of bringing this back is the idea that there will be this closer relationship between citizens and the complaints procedure, in essence, and that we should really be trying to capitalise on that. It's so important that these routes for participation are free and are easy to use and easy to understand, and that's not always the case, even with some of the procedures that we have for bringing complaints to ombudsmen. So, we need to really be thinking about that, thinking about uses of technology to make sure that this is easy for people to do, and supporting people in providing this kind of access. Because the new body, if there is a new body, will be supported by receiving complaints from individuals as well, hopefully, as being able to bring action in its own right and taking up action on their behalf. So, that's a much more effective means of ensuring the implementation of environmental legislation than relying on cases in judicial review and relying on citizens to be able to bring those kinds of cases.

Thank you, Chair. But we're going to have two different systems in Wales: we're going to have public bodies who are subject to Welsh principles and Welsh governance, and we're going to have other bodies, Crown bodies in Wales, who are going to be subject to the UK Government principles and the UK Government governance system, and we're going to have bodies in Wales that are subject to both. Looking from the citizen's perspective, it's a recipe for confusion, duplication and inconsistency. That was a statement, not question. Is it not? [Laughter.]

[Inaudible.]—the distinctive feature of EU legislation and complaints about non-implementation of EU legislation is about substantive outcomes. So, with regard to the panoply of principles to which bodies may be subject, in the end, it's that focus on substantive failure to implement or achieve goals that would be the main focus to maintain, I think. And that may not be quite so complex from the citizen's point to view—that it's outcome focused.

But the citizen would have to negotiate whether it's a reserved matter or not.

But with the correct portal, if you like, with the correct citizens' portal, it could be left to somebody else. They could just make the complaint, based on what they see and have seen and what they perceive to be a problem, and that's dealt with afterwards.

But you would somebody to do that, there'd be a cost associated to that, and there would potentially be a slight delay in pursuing it if you add that other tier of bureaucracy that needs to be fulfilled before you proceed.

To an extent, we already have this—and I'm not saying that to justify it or make it any better—but we're already in that kind of mess in that we have EU environmental law that applies—those principles only are applying where it's relevant to EU law. And then, you also have Welsh law, and then you also have UK law, and we deal with this complex system. It doesn't mean it has to stay like that, and I'm not saying it should stay like that, but we manage that sort of system at the moment, and we can deal with it, even though it's a complicated mess.

For the future, I think that you're wanting to get on to this idea of potentially having UK-wide systems as well as the panel, as the committee, here, but that is something that could definitely be looked at to have overarching shared principles and objectives, and, yes, that could make it more coherent, but there's always flexibility over the objectives and principles. So, it might shift where the layers are and it might shift where the issues might arise instead.

10:30

Yes, I'll come in on that point, because that will be my line of questioning, Mary, and you introduced it, about UK-wide principles and access via maybe a UK-wide body. What is the panel's view on that? Do we need to make sure that we have a robust bespoke model in the devolved context, so you've got Scotland, Wales, England Northern Ireland? Or do we have one overarching UK body that obviously then the devolved model sits either alongside or under, depending on what your viewpoint is, as such, then? What would be the panel's view on that? The thing that's coming over time and time again to me, sitting here listening, is capacity, and the capacity to deliver this. And, in Wales, that could be a challenge, given what Jenny's previous question was saying about the demands on the public purse already and organisations and the size we are. Then logic would say that, at a UK level, there is that capacity.

Can I go ahead? Okay. So, there are two points here that I see, from what you've just said. The first one would be in relation to having shared frameworks, common frameworks, across the UK and the second one in relation to a UK-wide body. So, in terms of having a shared framework, shared policy frameworks, across the UK, we already have that with the EU. The EU at the moment, and EU policy and EU law, is providing, across the UK, this baseline. And, within that baseline, we have differences in terms of environmental protection, where, in the UK, Wales is driving, really, environmental protection forward. So, it's not something that would be new in terms of thinking about things, post Brexit, for the UK and for Wales.

Having a shared policy framework would also enable you to have this baseline, but also to create policy divergence, to a certain extent, across the UK and that could lead to innovation and, in the end, foster a race to the top, with each nation kind of competing and saying, 'Well, I'm better for the environment in relation to nature conservation', or whatever it might be. And I think this could be a good thing.

In relation to the body itself—sorry, the UK-wide body—because of Wales sharing a border with England, I think it would be crucial to have a UK-wide body in order to resolve cross-border issues— environmental issues—post Brexit. And what I would say is that this body should be UK wide and not purely Anglo Welsh, first of all and also that the body should actually reflect what's happening in Wales and across the four nations, and not just having just one representative from each of the nations just feeding into that new UK-wide, or potential possibility for a UK-wide, approach. Because what we don't want—or what I don't want—is for the momentum that we have in Wales to be lost within that UK-wide framework and, potentially, the UK-wide body.

Well, I've certainly always been very persuaded of the logic of having a cross-UK approach. It just seems to be a major loss to move from a situation where we have pan-EU environmental governance mechanisms in which divergence and innovation and people leading and so on can be managed to a situation where we haven't even got something that does that kind of function within the UK, despite the multiplication of intra-UK environmental governance challenges.

But the gap is between the logic and what you might get and what is achievable. I think that's on two fronts. One is simply the divergent approaches and the time frames at which different parts of the UK are moving, and, how one manages that, I could say a bit more about that. But it's also worth bearing in mind that there is a trade-off in terms of how far moves to a cross-UK or Welsh-tailored approach—just as there's a trade-off involved in EU membership. That is to say, the more that one might try and embed a bespoke Welsh approach that's well attuned to Welsh circumstances, it might militate against adopting principles and approaches that could be reasonably shared across the UK. There are trade-offs there too, which mean you can't get everything one might want, and I guess an instance of that might be the environmental principles. The more the Welsh Government articulates the fact that it covers these environmental principles in its own Welsh way in Welsh legislation, and is rather minimalist on the amount of principles that might be shared across the UK, that would work against the kind of cross-UK consistency that might—would work against the scope for advancing across the UK the consistency of governance you might get if the Welsh Government said, 'Actually, do you know what? We're happy to institute roughly the same list of principles in primary legislation as other parts of the UK are planning to do'.

10:35

The UKELA Wales working party view was that the starting point is that safeguarding natural resources has to be a shared aim across the UK and that we should pursue effective means of collaboration. I'm personally on record as producing a report that looked at common frameworks and was in support not just of policy frameworks, but of legal frameworks that would provide broad agreement on what was necessary to meet the particular aims in terms of approaches to different environmental objectives. It would follow from that that you would need a body at the UK level to ensure that we would comply with those common frameworks. But that's not where we are, and we have to be realistic about that. So, if we're not there, and if we can't achieve that kind of collaboration, and it would have to be collaboration from across the four nations, then some very useful ideas have been posed in the consultation in relation to England, one being that we have a duty written into the legislation to collaborate, and that that be written into the separate legislation; the other being that we review this in, say, five years' time, and the UKELA Wales working party thought that those were both very good ideas.

I would very much echo what Victoria was saying, in particular about the desirability versus the practicality and the idea of having, effectively creating, a new common framework that addresses governance mechanisms on a cross-border basis. For me, that would actually include environmental principles as well, but the idea of collaboration, communication, the potential for cross-border litigation as well—you have four special areas of conservation within Wales that cross over with England as well. You have a river basin district. All of these are managed from an EU perspective currently, and require both to work together to a shared standard, and yes—I think people get worried about the words 'common frameworks', that idea that it means a UK approach. We have these systems in place currently with shared elements and shared goals, shared standards, some shared procedures, which are also very important, but there's always the capacity for divergence, there's always the capacity to increase the standard or to take slightly different approaches—or hugely different approaches in some contexts. But I think the initial starting point is going: we have existing common frameworks already within our law, they're already there; what we need is to have something that facilitates continued collaboration and co-ordination, and, from there, let's go and build the future common frameworks and adapt as necessary, including, yes, again, the—you're raising in relation to the actual enforcement bodies. So, yes, to have UK-wide ones, but not an English one that applies, but actually ones where there are elements coming from each of the devolved administrations, partially because the laws will be different—they are different—and the circumstances are different, so they need to be aware of, if you like, the flavours coming from each of the areas within the UK.

Could I just go back, if I may? Ludivine—and forgive me if I've pronounced your first name wrong—you said that it is critical to have these UK-wide agreement bodies, but I appreciate from Victoria's point it's going to take time to do that, it is. So, from the committee's point of view, and bearing in mind we're taking this evidence, the panel agree that it is critical to have this UK-wide body, but what would be a good interim measure are the two points that you made, Victoria, in particular about writing into the legislation that exists at the moment this collaboration between the various administrative areas of the UK, because, obviously, with the clock ticking down, time is most probably against us to get this UK-wide body up in the first place. Is that a fair assessment of the four—?

10:40

But I would clarify there that the UK-wide body is really essential if you have the common frameworks, because the UK-wide body then is there to ensure the effective implementation of those common frameworks. So, the two things are connected. I don't think you can distinguish them. 

No, I'm not trying to divorce them off, I'm trying to—. Because I agree entirely you need UK frameworks, you do, but I'm just trying to get in a—catch the evidence that you've given so that we may be able to reflect that in what our deliberations are, and the importance of the UK-wide body, but accepting that the time frame is too tight to create that overnight. And so we need some interim measures in the first place to get us to the place that you agree—. 

I think that would be that we have existing common frameworks and we maintain the ones that we have, that we develop frameworks that deal with the cross-border collaboration, co-ordination, as you're saying, to integrate that within the legislation. And those are the two most urgent things immediately, but what Victoria is saying that we have those in the Act in a vacuum then without an enforcement body. Therefore, if we're going to maintain these, if we really are going to do this, we need to get that up and running as soon as possible. There's that annoyance of having to be practical and realise it takes time, but the best enforcers aren't going to be ourselves—the best enforcers are going to be our neighbours who want us to do well, because we'll affect them. if we go and contaminate our land, it contaminates their land. If we go and have nice smoke blowing up, it'll blow down into their land. So, they are the best enforcers. So, having bodies that address the whole of the UK—we need that to go and maintain that body, and, once we lose the Commission and the court of justice, they need to be in place. 

I think I would add to that summation, and the need for a review clause, that it will also be important that the nations of the UK in developing the environmental governance proposals avoid doing things that would gratuitously make difficult downstream the scope for greater collaboration, so, needless differentiation, whether it's on issues around principles or something else that would just make further cross-working harder.    

And also we already have examples of bodies for environmental protection, on climate change, on nature conversation. So, we have examples that we could carry forward in the interim to give us time to set up a body that would be reflecting the UK that we want to be in terms of environmental protection, I think. 

Thank you, yes. I wanted to ask a few questions about the governance—sorry, the constitution of any sort of governance body. I know the Welsh Government's consultation suggests a commission or commissioner-type of approach. I know, Dr Jenkins, you referred to the Canadian commissioner model as an option. Maybe you could elaborate a little bit on that, and maybe other members of the panel could tell us a bit about your thoughts and whether you're aware of any other international good practice models that we might want to consider. 

Yes. So, this was—. So, we had a consultation event, as you heard, as the Wales working party, and one of the issues that came up was the idea that we can have two models of accountability, if you like; you can have an audit model of accountability, you can have a democratic model of accountability, that there was some merit in an audit model of accountability, and the model of the Canadian commissioner was brought up in that context. Clearly, it's never usually appropriate to take a model and just transplant it, so it was more about drawing upon the ideas of that, and the idea that an audit model of accountability can be very effective when you're looking at an issue like scrutiny in terms of the implementation of environmental law. The issue there, though, is that the new body would also have these enforcement powers. That's not something that the Canadian commissioner does. The Canadian commissioner is also looking at not just at environmental protection, but that broader agenda of sustainable development that I referred to before, and the difference between them.

So, it's not about uplifting and transplanting, but it's about thinking about drawing upon these ideas and what we might do, perhaps thinking about some kind of hybrid in terms of ensuring also that perhaps there's not just reporting to the National Assembly, but that the National Assembly is involved also in terms of creating a democratic model of accountability in the appointment of the commissioner, commission, whatever form the body takes, and that that would also be important in this context.

I think the key issue here is that we are in unchartered waters. We don't have a body that would have the kind of effective enforcement powers that we're considering and, ultimately, we need absolute independence of this body, and we need to think about the ways that we can achieve that. If we compare to the consultation in England, it's been criticised for not being innovative enough and not thinking imaginatively, and I think our discussion was around drawing upon different ideas, different models, to see if we could come up with something that was that little bit more imaginative. 

10:45

The only point I can think of, and it really depends on my fellow panelists fleshing out any of the details, is that one of the challenges that Wales has is imagining how you could have more than one body in a small country concerned with driving progress towards environmental protection and sustainability. Granted, there are distinct roles there.  I'm sure I've read somewhere that is the situation that pertains in New Zealand, also, in population terms, a small country. They do have more than one body—one concerned with enforcement issues, one with qualitative change, but I can't recall the details of it. You're not obliged to know. [Laughter.]

I'll plead the fifth on that one. [Laughter.]

You touched on the independence. Clearly, what's been proposed, if I'm right, on a UK level, is that the Government funds and appoints the relevant people there. That, clearly, would not be appropriate in Wales. 

It's not independent, is it. So, I would say definitely not. 

So, funded directly by the National Assembly and answerable to the National Assembly and scrutinised by the National Assembly, not the Government.

That's a clear model of democratic accountability then, yes. 

And appointments as well. 

And also the budget. I don't know if you mentioned that, but funding is absolutely essential. 

Sure. As happens in some contexts already. And that brings me on maybe to where I wanted to go next, really, in terms of the scope of the body and its remit and its relationship. We touched on this earlier, actually, and how it might overlap with the public services ombudsman's work, the Auditor General for Wales and others. How can we manage those potential overlaps, or how can those be avoided, then? It's inevitable in one sense, is it not? As long as we manage it properly. 

An opening point might be just simply to think that. So, an overlap is probably better than a gap. So, casting the remit widely, but flexibly, whilst knowing that downstream there might be overlaps that need dealing with, is not a bad situation. Memoranda of understanding can be used to work out where things overlap. But, also, I guess the overlap has several dimensions, but it's about dealing substantially with environmental improvement, and, of course, there are rightly overlaps in that other bodies are concerned with that. If there are overlaps in terms of governance procedures, I think what's missing and what might need to be dealt with in a new body is quite distinctive. I think we could agree that perhaps the robust enforcement in pursuit of implementation is not something that's dealt with in existing bodies in relation to environmental protection. But, also, the issue around overlap is also, I guess, hierarchical authority—how any new body might sit in relation to the remits of other bodies, particularly those that also have an impact on environmental outcomes. And that too needs considering. As I mentioned earlier, one that's not really dealt with very much in the consultation document is how precisely any enforcement and oversight procedures of the new body, if that's what it's to be, would relate to the future generations commissioner and the future generations Act in terms of its performance in relation to environmental protection, and that needs thinking through. 

I think, on this point, it is difficult because there will, like you say, be overlaps, so you have to be quite clear. The central role of this body is in scrutinising the implementation of environmental law and the effective enforcement of that. The consultation paper then looks at a role in policy development, a role in advice and guidance. And this is my personal perspective—they are, in a sense, to me, secondary to that clear role in scrutinising the implementation of environmental law, which will require an element of monitoring and reporting, which you might then say might overlap with the kind of information that NRW is collecting, in terms of its monitoring and reporting role, but it would be much more clearly focused on ensuring the implementation of environmental law. So, you have to think about why we are collecting the data, what purpose we are collecting that for, what that will data look like, whether it will be different to the data that NRW is collecting and whether that will then provide a perspective whereby that organisation then might have a different perspective of feeding into policy, and might be able to do that in a different way. And then, again, in terms of advice, it would affect the kind of advice that it's giving. It's always difficult to be somebody's critical friend, isn't it—to give them advice and then wield a big stick. So, that's something that perhaps, in terms of our presentation of evidence, we might have sat on the fence a little bit about. But I think we need to always be clear that what we're looking at is scrutiny of the implementation of environmental law, and then the effect of enforcement of that. And that should be the focus of the role. And perhaps we can co-ordinate with these other bodies in these other ways then—in some big spider diagram.

10:50

Okay. What are your views, then, about the list of public bodies that are proposed to come under the remit of this governance body?

As we said earlier, I think it depends on when those bodies are competent, and when they are acting, or whether there are omissions in relation to environmental protection. And if there is a problem, or if there is an issue in terms of the effectiveness of what they are doing, in relation to enforcement, in the accountability, then they should be accountable to the body that we are talking about. I think this is really important. And therefore, I think—if I remember well, the document mentions four bodies—it should be much wider than that. When you look at the Well-being of Future Generations (Wales) Act 2015, it's 44 bodies. Why restrict it to four when we look at the consultation? The sustainable management of natural resources is much wider than those four bodies, and therefore it should be much wider than that.

I think, again, in relation to the England consultation, the issue has been brought up there about collective responsibility, as opposed to individual responsibility, among public authorities for the implementation of environmental law. And that's something to consider as well. I don't have the answers on that, but I think it's something that we need to think about. Because what's been effective in terms of the EU regime has been holding the UK Government to account. And if we're then going to translate that into holding an individual public body to account, that's a very different thing.

I would agree. In a sense, if you're interested in promoting environmental protection in a way that is not siloed in some ways, that is what it looks like. It does mean that, relevant to the their competence, it's making it, potentially, everyone's problem as to how they might contribute to outcomes. As I say, the EU, in a sense, passes judgment on the whole of the UK's public policy governance system, in terms of whether it delivers certain kinds of outcomes, and it's important to replicate that at a domestic level.

I suppose, though, that part of the discussion there is thinking about the competence to review specific actions, versus who you then hold accountable. So, the roles, wherever they are relevant, should fall within the remit. Because if you go and do not have it within the remit, then you risk, as Richard was saying, those gaps arising. But it's then what the body then does, and that is to do with the enforcement mechanisms it has and who it directs those at. So, that could be something very much to be debated. It wasn't one that I'd specifically thought about, but, yes, the idea of going and focusing, and saying—. I mean, it's like for vicarious liability—we don't hold the individual employee liable normally, but we look at the company that they work for. So, it could be that sort of system, but we need to look at the individual public authorities, and the roles they're playing, wherever relevant. So, it needs the broader remit in the first instance, and then maybe think more flexibly about what one does after that as well.

It does, sorry. [Laughter.]

You've covered some of it. You're talking about this new body being created. And, obviously, there are lots of bodies that have been created over the last couple of years—the Future Generations Commissioner, for example, we've got the Environment (Wales) Act 2016, we've got the Well-being of Future Generations (Wales) Act 2015—all predicated on staying in the European Union. Now, that landscape has changed quite dramatically, by the referendum, whether it gets enacted or not—debate. And we could be here until kingdom come debating that, so let's not go down that route. But, just listening to the evidence, it seems to me that a lot of these organisations need their remits looking at as well, to see if they're fit for purpose, rather than just saying, 'Right, you're going to stay there, carry on as you are'. Because that risk of duplication that was touched on, and duplication equals waste of resource, I would suggest. I appreciate it's better than not having anything there, but it's a waste of resource. How important is it that these organisations that exist today and were set up under a previous regime require a review of what their functions and governance are so that they can be more effective in delivering the principles, whatever they might be in the future?

10:55

I think that it's a really important point that you're making, namely that when we are talking about the well-being of future generations Act and when we are talking about the environment Act, they were created under the scope of the EU, as you said. And, therefore, we are moving forward to a post-Brexit regime. It's new and no-one really knows what it's going to look like, but we will be out of the EU, and, therefore, here we also have the opportunity to rethink what we want those bodies to look like—existing ones and future ones—completely starting from scratch, if we wanted to, because we are not constrained by the EU and its framework. So, we could look, as was suggested earlier, at other bodies throughout the world and other legislation, and just think outside the box, I'm going to say.

I would take issue with that, though, because I think, having followed closely the development of that legislation, it was developed in a way that was very innovative for its time. It's, in essence, moving the debate into how we really pursue the well-being of future generations under a legal framework that, personally, I'd actually written about and said was a really good idea back in 2000-and-something.

That was really moving on that debate and at the same time thinking about environmental protection in a very different way, in terms of the sustainable management of natural resources and linking that to the ongoing and increasing knowledge of ecosystems. There was a great deal of effort and thought that went into the development of that, and I don't think we need to deconstruct it. But what I do think we need to do, because it was developed at a time when we also had the European Union framework above us, which was creating the frameworks for specific environmental laws and their enforcement, is that we now think about how we might develop—and I do think it needs to be a new body—how it connects with that agenda.

So, I don't think it's about deconstructing what's there or thinking about that all over again, but it's about thinking about how we now have this gap, as we've identified. We need to fill that gap and how do we do that in a way that is cost-effective in linking with these other organisations but also clearly moves the agenda forward in terms of environmental protection?

Okay, and just stating the blindingly obvious, am I taking that the panel would say that it is important that their functions are reviewed—the existing bodies are reviewed—and that this duplication that potentially could come in, for example, waste, is ironed out of the system? So, you do regard that as an important piece of work that needs to be undertaken.

It's impact assessment, essentially, of the legislation. We normally would do it for future legislation, but considering our legal context is changing, we should do an impact assessment of the existing legislation—the impact of Brexit, essentially, on it and see what needs to be adapted. Some duplication will necessarily arise, probably, but most of it, you could see that—[Inaudible.]

I can see there's a need for a review, in terms of overlaps of functions, but there seem to be two rather more substantive questions that hang over this wider debate. One is that we'd be making views about the functions of these existing bodies, and we yet don't really have a good understanding of how well the Welsh legislation works, because it's very new—we've got very little understanding of how good it is at doing what it espouses to do, and that's an information gap.

Another is that, in the end, we're having to confront the bigger question, which is: how important is environmental protection in Wales's conception of sustainable development? We've largely fudged that issue by the fact that environmental protection is hived off to the EU. Bringing these functions together, I think, forces us to re-confront that substantive question.

Thank you, Chair. Just coming back to this collective responsibility thing, really, and the member state previously being answerable, is it too simplistic then to say, 'Well, let's make the Welsh Government answerable, and everything should stem from there', instead of targeting the different organisations sat beneath Welsh Government? Surely, they should be answerable. Therefore, their remit letters to these organisations and whatever should reflect the principles and the expectations more clearly. Or is that too simplistic?

11:00

I think that might be too simplistic. I think it needs more thought. I think the issue is, if you don't bring the public authorities in, are we saying that, if they're doing something that isn't in line with environmental law, that's fine because they're not Welsh Government? We don't want that to be the framework.

[Inaudible.]—legislation passed by this Assembly. But, yes, I know, with 30 seconds left, I'm not sure we're going to address that. 

I'm not sure I can answer it in that time. [Laughter.]

I think we do need to think about that, though. We need to think about that. 

[Inaudible.] Take the Blaenavon mining museum, it's a wholly owned subsidiary of the Government but you have to go a long way through the organisation of Welsh Government to get to it. Isn't that the reason why it's best to have it on every organisation rather than the Welsh Government? Because it's very difficult for us to scrutinise what's happening in some of these organisations that are well down the hierarchy of Welsh Government. 

I'd go with that. 

Yes, I would agree with that. 

I would put it on both—just to be mean. [Laughter.]

Okay, it falls to me then to thank you very much for coming along and how informative you've been this morning. I'm sure a lot of what you've said you'll be reading when you see the final report. So, thank you all very much.

5. Papurau i’w nodi
5. Papers to note

Can I move we note the following papers? Correspondence from the Future Generations Commissioner for Wales, following her annual scrutiny session. And correspondence from the Public Services Ombudsman for Wales, the Auditor General for Wales, and the Future Generations Commissioner for Wales relating to the committee's inquiry on environmental principles and governance post Brexit. 

6. Cynnig o dan Reol Sefydlog 17.42(vi) i benderfynu gwahardd y cyhoedd o'r cyfarfod heddiw ar gyfer eitemau 7 ac 8
6. Motion under Standing Order 17.42 (vi) to resolve to exclude the public from items 7 and 8 of today's meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o'r cyfarfod heddiw ar gyfer eitemau 7 ac 8 yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from items 7 and 8 of today's meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

Can I now move a motion under Standing Order 17.42 to resolve to exclude the public from items 7 and 8 of today's meeting?

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 11:02.

Motion agreed.

The public part of the meeting ended at 11:02.

Archwilio Cynulliad Cenedlaethol Cymru