Legislation, Justice and Constitution Committee

The first item is the Environment (Principles, Governance and Biodiversity Targets) (Wales) Bill. This is an evidence session with the Deputy First Minister and Cabinet Secretary for Climate Change and Rural Affairs. Can I welcome the Cabinet Secretary? Do you wish to introduce your colleagues, or do they wish to introduce themselves?

Diolch yn fawr iawn, Cadeirydd. If I could ask my officials to introduce themselves, because I always forget their full titles. Joel.

Joel Scoberg-Evans. I'm a lawyer and I lead on the biodiversity parts of the Bill.

Bernadette Payne, Welsh Government lawyer, leading on the body parts of the Bill.

Naomi Matthiessen, deputy director for landscapes, nature and forestry, and I lead on the principles and governance body bits of the Bill.

Alice Teague, deputy director, marine and biodiversity, leading on the biodiversity aspects of the Bill.

Diolch a chroeso. If I can start, are you satisfied the Bill is within the Senedd's legislative competence?

Yes, I am Chair. We're satisfied the Bill is within competence, subject to a number of other provisions needing Minister of the Crown consent. I've written to the Secretary of State for Wales, and this consent process is under way.

What discussions have you had with UK Government in relation to the Bill, and for what purpose?

We've had extensive discussions with UK and Scottish Governments on the Bill, especially in respect of the establishment of the Office of Environmental Governance Wales, because, as you know, they have been ahead of us slightly with their bodies. So, we've been keen to learn lessons and what we might do differently in a Welsh context.

There have been some pitfalls, I've got to say, that they've experienced, so we've been able to learn from them. What we have got, I have to say, as a result, is something where we've learned lessons, but we also have something tailored to the unique Welsh legislative landscape. I don't need to remind you that we do have the Well-being of Future Generations (Wales) Act 2015 landscape, the environment Bill, et cetera, et cetera, et cetera. That's why it needs to be bespoke for Wales, not, 'For England or for Scotland, read Wales.'

Specifically, we've engaged on the development of the biodiversity targets as well, to discuss the approaches and how they're set out in legislation. We've compared specific targets. Again, we've looked at lessons learned. And we've also provided regular updates to the four countries biodiversity group on the targets and the wider Bill progress. We've engaged with the Wales Office. We provide technical briefings to representatives from the UK, Scottish and Northern Ireland Governments as well. So, I'm really pleased to say it's been extensive and over quite a sustained period as well.

Diolch. And finally from me at this stage, the explanatory memorandum accompanying the Bill does not discuss human rights. What account have you taken of human rights in preparing the Bill?

The first and important thing to say is that my view is that there are no convention rights directly engaged by this Bill. However, in the unlikely event that a provision does engage convention rights, then any interference with those rights would be justified in the context of the Bill, in that it's pursued a legitimate aim, it's necessary and it's proportionate. But I should say as well, Chair, we have, of course, undertaken a full suite of impact assessments, including equality assessments, socioeconomic duty impact assessments, and so on.

Diolch. Alun.

This is a Bill that was promised in 2018, isn't it, Deputy First Minister? I think the then leader of the house, Julie James, told the Senedd that the Government would be taking the first proper legislative opportunity to enshrine environmental principles in law and to close the governance gap. That was in March 2018. We're now looking at the end of this Senedd, in the middle of 2025. So, the question asks itself: where have you been?

I understand that, and I do understand as well the frustration from some of the stakeholders out there saying, 'Please, give us this piece of legislation.' I have to say as well, it's been really welcomed, the fact that we've introduced it and the shape that the Bill is in as well.

Yes, but that's not the question I was asking.

It doesn't answer the question of, 'Why so long?' Well, we haven't just been standing still on this. We've done things here in Wales they have not done in other countries. We've taken forward the clean air and soundscapes legislation—that has not been done in other countries. We've moved progress on the net zero target. We've set out the pathway to delivery. We've responded to the climate and nature emergency through a range of other policies, including ones on nature restoration. We've radically redirected transport investment in Wales. We've made planning reforms in this agenda. We've supported investments in water quality targets. So, we haven't stood still.

Well, you have, because other countries have been doing things like that as well. The idea that no other country has got a transport policy is for the birds. It doesn't answer the question that was asked. The then leader of the house and chief whip said, in March 2018, the first proper legislative opportunity—that didn't happen. This Government—well, that Government, which finished in 2021—. In England and Scotland, they were both able to deliver legislation—by the end of the last Scottish Parliament in 2021. The Welsh Government will have failed to do this in this Senedd by the time this gets on the statute book. So, I think we are justified in seeking an explanation from Government as to why this has taken two Senedds to reach this point.

I agree with that. The justification is needed. But I would say part of my justification is we've taken forward pieces of legislation that they haven't done in other countries. We have redirected transport spending in a way that they have not done in other countries, in line with the Well-being of Future Generations (Wales) Act 2015. We've also, for example, prioritised agricultural reform as well. So, we've taken forward an agriculture Act. We're now working on the sustainable farming scheme as well. So, there is a question of prioritising, but we are making good on the commitment. But I do understand when people say, 'Why are you behind?' I would say to you as well, Alun, one of the advantages of coming to this now is we have learned from the things that they've done right and that they have not done so well in other countries.

That really is scraping the barrel, isn't it? You're smiling, you've sat in this committee, you know exactly where we are here. None of what you've said answers the question of why it's taken so long. You will know from your interrogation of previous Counsel Generals that you have asked questions on capacity—capacity of policy making, capacity of legal drafting. But this is a serious political failure from the Welsh Government in terms of the years that it's taken to reach this point. I think the committee, in all seriousness, Deputy First Minister, requires and deserves an explanation of why the Welsh Government has failed for two Senedds to deliver this legislation. I think that's a reasonable question to ask and I think that people both here and elsewhere have the right to an explanation of why.

Whilst you may not be content with my explanation, this is not an issue of capacity.

You haven't given us one yet.

I've given you three different ones, but you're not content with it. One of them is we haven't been standing still, and we have not been standing still. My argument would be we've done far more than other countries.

Did you deprioritise this Bill?

No, we didn't. If we succeed, with the will of the Senedd and the committees in taking this forward, we will have made good on our commitment to deliver it now in this parliamentary term. We appreciate it is towards the end of this parliamentary term—

It's right at the end.

—but it is deliverable. We can either go back along, 'Why has it taken so long?', or I can say to you, 'There are reasons why we have prioritised other work first and we are now coming to this.' It's not a capacity issue, it's prioritisation. That is always the case. And you know, as a former Minister, I need to prioritise one after the other. But we have not been standing still. We have been doing many other things, and this can be delivered within this Senedd.

I understand that, but both in Scotland and England, farming schemes have been introduced with various degrees of success as well. And I think the same could be said here as well, to be fair. I'm not convinced that those explanations—. Those explanations may provide a clear reasoning for one or two years, or a slipping in timetable. And if that were the case, I would accept it, I've got no issue about that; it always happens in any process. But this is a process of the best part of a decade—

I understand. I really do get that—

—and that is different to others.

I really do get that. As you rightly pointed out, I've been one of those from the backbenches who have been advocating to bring this forward—

Very strongly and very well.

But I would say to you, both in terms of the discussions we might have now on this committee, but also the evidence we have had at the climate change committee, as a result of bringing this forward right here right now, that means we have a distinct advantage. And the advantage is, through that engagement we've had with other Governments, we have been literally able to interrogate what's worked, what hasn't worked, what can we do better, how do we strengthen this legislation. And I would argue it's in a better place because of it. I do understand those who would say we should have been here sooner, but we haven't been standing still.

But it's not the case that, in 2018, Julie James said what she said but the Government decided to wait another eight years in order to learn lessons from England and Scotland. That is not what happened, and I think we need to accept that. And it is striking that the Government doesn't have a very clear explanation for that eight-year delay. But let's move on.

Can I just ask one question on that, because I'm confused by one of your replies? How can you prioritise something over something else without deprioritising what you're prioritising something over?

It's more than a semantic decision, it's a very practical consideration of Government. In choosing priorities, whether it's in budgets or legislative priorities, you always put things in an order of the way you're going to work through them. But it doesn't mean you don't get to all of them, Chair. It means you get to them in a sequence.

Some come a lot later than others. I don't think we're going to get much further than this. Back to you, Alun.

That's fine. The committee will reach its view on these matters, and I'm sure the Deputy First Minister will not be surprised by the views of the committee on it.

In terms of the environmental principles that the Bill introduces, I can see four of them: a precautionary principle, preventative action, a principle that environmental damage is seen as a priority to be rectified at source, and the polluter pays. All of those are well known in terms of this area of policy. I'm interested as to how you intend, therefore, to define those, to ensure what that means and how it should be interpreted. The precautionary principle, for example, could stop Government or public bodies doing almost anything that may potentially have an impact on environmental issues. Is that really what the Government's intention is?

As you said in your opening remarks, Alun, and you'll be familiar with this as well, these principles are very well grounded, very well established, and they are understood and operate within not just a legal perspective, but also in an operational perspective. The precautionary principle doesn't stop everything going, but the fact that it's one of the fundamental principles means that you have to have that regard, or, in the case of this Bill, in some situations, special regard to it in terms of environmental protection.

I'm interested in the Welsh Government's view and how it will interpret these things, because you are right, I remember debating the precautionary principle 20, 30 years ago. But it can be defined in either a very tight or a very wide way. The wider way in which you define and interpret it will have a greater impact than a more narrow interpretation. My concern is that we are putting on the statute book principles that will be tested in law—no doubt about that—but if we don't know, and if we don't understand what we mean by it, then we lose control of the legislation.

Indeed. So, where we can assist the committee with this is the clarity that will come through the statement that underpins this. So, as the explanatory notes explain, we have a statement that will improve understanding of the interpretation and application of the principles.

And just for me to understand, this is the section 6 statement.

Indeed. And it includes the integration of these principles as well as each individual principle, so the integration of them—how they're understood, how they're interpreted. So, in practice, the statement will include in practice the interpretation of these principles. So, the statement should be used to explain how the principles apply in different circumstances, what they mean in those circumstances, and that, as you say, is what is set out in section 6(1) to 6(3), that the statement must include some certain specific matters relating to interpretation and the application of the duties imposed on Welsh Ministers. So, this covers, for example, how the environmental principles relate to each other, the duty to integrate environmental protection, and how the environmental principles and the duty to integrate environmental protection relate to the environmental objective. It also needs to set out detailed guidance to NRW and those certain other public bodies in connection with the duties imposed and how they should comply with those duties and guidance. So, this is what will help, actually, public authorities and other interested parties to understand how those principles should be applied.

Okay, that's very useful. I'm grateful to you, Deputy First Minister. But of course, there won't be a—. I think the Bill says that the statement will be laid in the Senedd, but it won't be subject to any process or procedure through the Senedd. So, if I could, I want to get some sort of despatch-box sort of commitments from you on how you expect this to work. So, you would expect, therefore, a statement to be drafted by Government and published. I assume that statement will be subject to consultation. I assume that you would provide that to a Senedd committee, for example, for scrutiny. So, I presume that you will be able—perhaps it would be easier to do this in writing—to write to this committee and outline a process that you would expect to follow for the production and agreement of this statement.

I can give you, if it would help, some detail on how this will work and how I see that this will work as well, if it gives some comfort and clarity to the committee. So, first of all it's important to say that the Bill actually lays out some detailed procedural requirements for the preparation and publication of the statement, or indeed a revised statement as well. And it requires Welsh Government Ministers to consult Natural Resources Wales, the Future Generations Commissioner for Wales, OEGW and other persons as they see appropriate. We have to—Welsh Ministers have to—lay before the Senedd a copy of that statement or revised statement as well. It's got to have a document giving details of the consultation carried out, summarising the representations received and Welsh Ministers' response to them. This will enable that essential Senedd scrutiny of the statement or revised statement. But I should say as well, if the Senedd or any of the committees want to actually input into that process—the preparation of the policy statement during the consultation process—they are of course free to do so, whether it's this committee or the Climate Change, Environment and Infrastructure Committee or other committees, they can input directly into that. So, it's very transparent.

It was the parliamentary process that, sorry, I was particularly focused on, because I accept that you would go through that process in drawing up a statement with stakeholders and the rest of it, and I have no issue with that. But it is the lack of a parliamentary process that I really wanted to focus on, so that—and it might be easier to write to us on these matters—when the statement emerges from the process you've described, the Senedd itself will have an opportunity then to actually consider that in more detail, rather than a simple take it or leave it, sort of passive laying of the statement itself.

We don't have a formal Senedd procedure as part of this at the moment, but we would be interested in hearing from the committee what your views are on that.

That's very useful, thank you.

Diolch. Sam.

Thank you very much, Chair, and good afternoon to you, Deputy First Minister. Looking at some of the language in the Bill and the definition of the terminology within there, if you look at section 3, Welsh Ministers must have special regard to the principles when 'making policy', but the Bill doesn't explain in detail what 'making policy' encompasses. Could you elaborate a little bit more on what that intends, please?

Yes, indeed, Sam. In terms of 'making policy', there's a definition within the Bill under section 3 to make clear that this includes developing, adopting or revising policies, but it might be helpful to clarify a bit further than that what we mean by that. So, the duty that we are imposing on Welsh Ministers includes that making, developing, adopting, revising or repealing policy, and I can give some examples. So, this would include things like legislative proposals, things like policy statements, things like strategies and frameworks, ministerial statements setting out the Government's formal position on an issue, and frankly other formal policy documents that set out a change in approach to an established policy position. I think, Sam, if that helps, it's quite broad in the interpretation deliberately, so that this can bite on all that policy development and reviewing of policies.

Okay, and understanding that point, do you think then it's explicit enough within the Bill and gives sufficient legal certainty around that? You can be broad, but if the Bill itself isn't explicit in what's meant by 'making policy', is there a little bit of a legal vacuum?

No, we don't think there is, because I think there's a good understanding of 'making policy' and the further definition in the Bill about developing, adopting and revising policies is pretty clear as well. But I think maintaining that breadth allows then, in the establishment of this Bill, the Welsh Ministers to be quite firm and forthright in the way that they seek to apply their duties, and for the OEGW, I have to say, to see that they've applied their duties as well there. They can take us to task—I'm making a rod for my own back here.

It's worth saying as well, Sam, the duties that we have here, the approach that we're taking, is very similar to those—. This is one of the good lessons that we've learned. It's very similar to those that are applied in the UK and the Scottish Bills as well. It seems to be working for them.

Okay, and moving on to some different terminology, Welsh Ministers must have 'special regard'—noting the word 'special' there—to the principles when making policy. How does this differ to just 'regard' or 'due regard'? Because also Welsh Ministers and Natural Resources Wales must have special regard, but public authorities will only need to have regard. So, the introduction of the word 'special' only to Welsh Ministers and NRW and not to other public authorities, is that a drafting issue or is there a specific reason behind that?

No, there is a specific reason. This is one of the points of difference and one of the learnings that we have taken from other legislation. So, the 'special regard' approach, which doesn't feature in other pieces of legislation, means that Welsh Ministers and NRW have that higher level in giving regard to environmental principles. So, we must give—and again, it's a rod for our back here—considerable importance and weight to the principles when we are making policy. You can contrast this, Sam, with the much more regularly used 'due regard' approach, where the weight to be given to factors is a matter for the decision maker. For example, on careful consideration, the decision maker could say in a particular case they can be given little, if any, weight. Here, we have to have special regard.

By the way, this wording takes account as well of the stakeholder engagement we've been doing through consultation, and together with the duty to integrate the environmental protection, the environmental objective we were just talking about, it emphasises the importance of an effective response to the nature and climate emergencies. It aims at a higher level of environmental protection. That's why it's a very deliberate choice of legalistic words here.

Okay, I'm grateful for that explanation. Who then adjudicates as to whether Welsh Ministers and NRW have given 'special regard' in comparison to just 'regard' or 'due regard'? Who's the adjudicator?

Ultimately, the benefit of this is it would be the OEGW, and that's the importance of them making the decisions on this: has a Minister—have I or somebody in this seat—paid special regard—actually had special regard—to the principles and the objectives?

So, the OEGW will have the means to challenge decisions made under their definition of what's 'special' and the higher point that 'special' gives, other than just 'due regard' or just 'regard'.

Absolutely. And that's the importance, I think, to communicate in terms of this Bill: this is not another environmental regulator like NRW. This is a very powerful regulator. We haven't touched on the broad areas that we did—. Perhaps it would be helpful if I referred the committee to some of the wider discussion we had on what this three-pillared environmental Bill is trying to do. But the OEGW will be very powerful, very independent, and will hold me to account, will hold future Ministers to account on whether they're actually complying with environmental law or not.

And will it also hold public authorities to account as well, to ensure that they comply with their duty?

Yes, it will. Public authorities are also within the Bill—certain public authorities, as prescribed in the Bill. It's different in terms of the public authorities; there's a special regard I have to have. Why? Because I set the strategic high-level policy making that cascades down to NRW and all those other public authorities. But, for those public authorities, they have regard, and again that's a very understandable context in the legal context, but I have to have special regard.

Okay. I think one of your officials wants to say something.

Oh, sorry.

Thank you, Chair. It was just to add that the OEGW has an oversight function of the various public authorities, including the Welsh Ministers' role in this area. But in terms of adjudication itself, if this was disputed, that's something for a court to usually determine. But the OEGW has the enforcement responsibilities that could ultimately end up with the interpretation of that specific wording before court.

And it's worth saying as well that NRW is the other body that has to have special regard, and it recognises their wide, all-encompassing sphere as a regulatory body within the environmental context.

Thank you, Deputy First Minister. Thank you, Chair.

OK. Thank you. I think another one of your officials wanted to say something.

I was just going to add, if the committee is happy, in response to public authorities just having 'regard' to the environmental principles for the strategic environmental assessment, the reason why we felt that was appropriate is because the SEA regime is already focused on the environmental impacts of certain plans and projects, and so it wasn't felt necessary, in that context, to add the extra weight and emphasis of 'special regard'. So, there's a specific reason why we felt it wasn't necessary to have that special regard in those circumstances.

Okay. Thank you. Adam.

Thank you, Chair. Good afternoon, Cabinet Secretary. Do you expect to make the commencement regulations for the OEGW—SLlAC is the acronym in Welsh—? It isn't an easily pronounced acronym in Welsh, but there we are. Do you expect that the commencement regulations will happen before the next Senedd election, next year, and when do you realistically expect the OEGW to be operational?

Diolch. Neither of the acronyms are easily used. I've got used to the OEGW now, but even that is a bit of a mouthful. So, the OEGW will be established two months after the Bill receives Royal Assent, in line with accepted conventions, alongside the powers to appoint the board, and followed by the commencement by Order of powers to develop the strategy. Then, the remaining functions will be commenced by Order. That is to make sure that the OEGW is not put under duty and obligations it can't possibly actually fulfill until it's fully operational, and then we get to the obvious question of when will it be fully operational—[Interruption.] Oh, right. [Laughter.]

I agree. That's the question.

Right. Based on precedent, on establishing bodies like this, it's pretty clear that, if you were going to be a great optimist, you're looking at 18 months; a realist would say 24 months. And it really is the whole back-room operations and functionality to make it happen. So, that's based on experience before. There's also, by the way—. I think one of my appearances might well be in front of the Finance Committee. There's also an issue of tying up some of the back-room stuff for cost-effectiveness. We've got other bodies coming down the line, such as the disused tips authority as well, but, in the meantime, the Interim Environmental Protection Assessor for Wales proceeds with their work as well.

We've just heard about frustrations in terms of the time it's taken us to get to this point where we have a Bill. There's going to be greater frustration if it's going to take two years for the body that's created by the Bill to be operational. Isn't that an argument for accelerating or expediting the process in this case, surely?

I'll bring colleagues in on this. Again, because I know we're up against shortness of time on this, I've got an enormous amount of detail that I can explain to you that we went through with a sister committee as well, but perhaps I can write to you on it. But let me bring colleagues in, because there are real, practical reasons why the full functionality will not be up and running as early as you might want, and that means that we have to make sure that before we impose all the obligations on the OEGW, they have everybody in place to do it, and that means bringing on the expertise, setting up the back-room functions and everything else. Naomi.

So, we will be looking at ways in which we can accelerate the timetable and bring it forward as quickly as possible because we absolutely recognise the frustration that lies here in the length of time this has taken, and many of the stakeholders are saying the same thing. We are working from very clear previous plans on how long these things take and the kinds of procedures that you need to go through. One of the things that's quite interesting, and we got into with the Climate Change, Environment and Infrastructure Committee, is that there is a balance here to be played between ensuring the real independence of the body and the speed of setting it up. So, one of the things that you could do in order to try and speed up the process is to set up a shadow body, but, actually, our judgment is that it is better for the independence of the body not to do that. Unfortunately, that extends the timescales because it means you can't start certain things as early as you would with the shadow body, and there's a lot of concern from stakeholders as well about the independence of the body. So, it's a bit of a balancing act.

You refer to this question of the independence of the body. One of the ways that the equivalent body in England has been able to ensure its independence is through the clause in the Environment Act that gives an assurance that they receive funding over five years being ring-fenced for that period, and there is a system of annual sufficiency statements to safeguard their ability to operate independently. Is there something similar in place in this legislation that I've missed?

No. We've chosen to put in place a range of practical measures that I've outlined previously, and I'm happy to again go through today, that guarantee the independence of the OEGW. We have not put the sufficiency of funding clause in here because it's an interesting discussion to have, if you had a sufficiency of funding clause in there, because when the OEGW comes in front of a committee and says, 'If we had more funding, we could do even more things', or when a Minister appears and says, 'We've done our Cabinet discussions and whatever, and we've given them sufficiency of funding to get on, but of course they could always do a myriad of other things', what we're trying to do is give them the bandwidth and the time to actually set out what its priorities are. And it could focus, for example, on targets, or it could focus on other areas of following investigations. How do you define the sufficiency of funding at this point in time, when you have to allow the OEGW to actually determine independently what it's going to focus on and what it will need to do?

Now, there is a catch-all argument to say, 'Just put a clause in that says sufficiency of funding', but I would say to you, in legal terms, how do you define 'sufficiency of funding'?

Well, they must have solved that when it comes to the legislation in England, because it's included.

Okay. Right. Let us move on to another question with regard to timescales. Why doesn't the Bill set out any time limit on when a strategy for the office should be finalised?

This comes back to the issue of independence, because we feel that it's very important to allow the OEGW to have independence on the strategy. It's wholly owned by the OEGW. So, Welsh Ministers have no role in signing off that strategy—and, by the way, this is more independent than the approach taken in England. Just to say, in England, the OEP has to have regard to guidance issued by the Secretary of State there in developing that strategy. We are hands off on this, Adam, entirely.

So, in that context and with respect to OEGW's independence, we haven't put any constraints whatsoever on the strategy and when the strategy will be produced. It's for the OEGW to decide when it will bring it forward and when it's ready. However, the strategy, to be clear, will need to be finalised before its wider functions can be exercised. So, there is a clear and compelling timeline on the OEGW to get on with it. In that strategy, they will need to set out how they intend to exercise their functions, so it has to be produced, has to be formally consulted upon, before the OEGW can start to exercise their primary functions. So, actually, the timeline is in their hands and that gives them the independence, I have to say, as well, to devise the strategy and bring it forward according to the timeline they think is critical.

Right. How are you going to avoid duplication and overlap of functions between the office and NRW?

Yes, we're confident that we have avoided that overlap within the Bill, to the extent that we're able. We've included specific measures, as well, to make sure that it's minimised. Where the OEGW will oversee public authorities in Wales as defined in the Bill, aligning the scope of its oversight function with the scope of environmental law, it is intended to oversee and limit an overlap between the OEGW and other public bodies, and that includes NRW. But it's important to say that the OEGW is a strategic oversight body. There's a clear separation from existing regulatory bodies and the governance body. So, this will allow the OEGW to focus specifically on monitoring and enforcing compliance with environmental law without becoming involved in the decision-making processes of other regulatory bodies.

Let me give you a clear example of this. In section 16(7), for example, it expressly provides that a compliance notice, which features within this legislation, may not require any action to be taken in respect of an administrative decision in relation to a particular person or case—so, for example, the granting of a planning permission under the Town and Country Planning Act 1990, or a consent Order, an infrastructure consent Order under the Infrastructure (Wales) Act 2024 and other regulations. So, we've been very clear in here that, on a practical basis, in that respect for example, compliance notices issued by the OEGW wouldn't be able to overturn, or overlap, as your question puts it, with planning and licensing decisions made, for example, by NRW or by local authorities or other public bodies. The Bill also, of course, has within it details of how it will exercise its functions in a way that doesn't overlap with other bodies as well, the functions of other bodies—so the auditor general, the future generations commissioner, the information commissioner, NRW and the public services ombudsman. It's very specific in avoiding those overlaps. Those bodies do specific functions, this does a specific function, and it is that strategic oversight and compliance with environmental law.

What if there is conflict or disagreement between some of those bodies? Is there a mechanism to resolve any disagreements?

Yes, there is indeed. Within the Bill, there's express provision for OEGW to set out in its strategy how it will collaborate with other persons—legal persons—for the purpose of its exercise of its functions. So, we haven't sought—again, the matter of independence—to constrain or limit how it would do that, as we consider it's best left for OEGW to determine that for itself. But we note the strategy itself will be subject to consultation, so we anticipate that they will, through that express provision, set out how they will work with others to avoid overlap or duplication.

So, you don't set or impose a duty on them, for example, to have a memorandum of understanding with the other bodies. That's one way for them to set out the relationship, but that's up to them.

We've tried to avoid defining for them how they should do this and not to impose on them a structure, but there's an express provision within this for them, actually, to do that engagement, that collaboration, and to then set it out. I anticipate, by the way, there will be a desire amongst these public bodies to make that happen, because why wouldn't they? It's in their interest to avoid that overlap and duplication of effort.

Right. Okay. Let us turn to another question, which is somewhat complex. I'll do my best understand the question myself, and then you can see whether there's a response. It relates to section 15 of the Bill, which gives the office the ability to investigate any matter related to a failure by a public authority to comply with environmental law currently, or at any time in the past failed to comply with environmental law. That's one point. Another is that the office's ability to take enforcement action only relates to current failures to comply with environmental law. I hope I've got the question right there. But what is the response in terms of why there is a need for a retrospective dimension at all? And if that dimension is needed, why not have consistency between the retrospective and the enforcement actions? Doesn't that complicate things?

Yes, I do understand. I think I do understand the issue. There are two really important things to say. One is that it's not our view that the provision is retrospective in a legal sense, because this needs to apply where there are failures that are ongoing. So, they could be historic, but they are ongoing, and that's an important point to make. So, it will not change the law at the time of the alleged failure—that aspect of retrospectivity, which is always a concern with legislation—but, by their very nature, investigations could be looking at the ongoing concern that may have been going on for some time. So, the intention of including 'at any time' is to allow for those representations to be made about alleged failures that have been made in the past and may only recently have come to light, but to ensure that there's no gap between the new body and the interim provisions that we have in place now.

So, to be clear, if an investigation concluded that a failure to comply is no longer ongoing, then the body will not be able to issue a compliance notice; it needs to be ongoing. But what we've got in the explanatory memorandum set out is that a failure to comply with environmental law must be ongoing at the time that that compliance notice is issued. It's deliberately to avoid any retrospective nature to this—something happened many, many years ago, but it's not still ongoing. The 'at any time' element only refers to the OEGW's ability to investigate and not its ability to enforce. I know this is a complex matter, but I hope that's clear. Sorry—Naomi.

Yes. Maybe, before you come in, what about a community, then, where—? I mean, how can a community get redress, then, where it wants to see restoration, where the damage may have happened in the past but the consequences, the effects of the damage, persist in the here and now? So, what does this Bill or what can the office offer them?

I'll bring Naomi in, but, interestingly, this Bill is in three parts, of course. One of these parts also is the environmental targets, the halting—broadly speaking, within that context of environmental protection—and reversing the loss of biodiversity. So, within that, of course, you come to the issue of baselining—what does a pristine environment look like? What does a 'good' look like in terms of that? So, there are other aspects within this Bill as well, beyond the OEGW itself, that they can bite on. However, Naomi, you're deeply—[Inaudible.]—technical details of this as well.

So, it's an interesting question, the specific one you asked. Unless my legal colleagues here can answer it today, we may have to come back in writing on that one, but I think what I was going to say, possibly, partially answers the question. So, the reason for the difference in how the two things are applied is because we want the OEGW not only to have the ability to deal with current and ongoing cases where environmental law is being flouted, but we also want them to be able to have this ability to do wider investigations that look at how well environmental law generally is being implemented and addressed, and make recommendations to Welsh Ministers where that hasn't been happening effectively. That could be a thing that has been happening in the past for quite a long period of time. We want them to have that ability so that they can help guide the future of environmental policy and legislation. That doesn't answer the specific example of the community that you talked about, but we can come back on that, unless—

Bernadette wants to come in, but if I can show you how the three stools of this legislation work together, the setting out of the environmental principles we talked about at the front end, the setting out, then, of the right to targets that drive halting and restoring biodiversity. Those very much speak to the—[Inaudible.]—but in the middle you have the OEGW, and if the OEGW then looks at that wider application of environmental law and policy, and says, 'We are not content that the quality of your river systems, your estuarine systems, your marine systems are up to scratch. You need to actually address that. You are failing in that respect on that.' They can actually independently say, 'We are coming at you over that issue.'

Maybe before we bring the lawyers in, though, am I right in thinking that the OEP does have a power to issue, I think they're called, information and decision notices, regardless of whether the breach is ongoing? So, they do not make a distinction between the breach being ongoing or not. You seemingly do. Am I right in that and could you explain why?

If you're happy, Deputy First Minister, the decision notice itself in the OEP doesn't compel the public authority to take action, so it differs from the notice that we are issuing. Because there is that compelling part of the notice, that's why the ongoing nature has come into it, as the Deputy First Minister has already said, to avoid that issue of retrospectivity, so that there is a difference between the decision notice and the compliance notice that will be issued by the OEGW.

Okay. With the examining of past environmental harm or systemic harm or whatever, is there any time bar at all? Could the office go back however long it wants to?

The OEGW, as we've tried to stress both here and in our appearance before the CCEI committee the other day, has, we think, greater independence in the measures that we've put within this Bill to go where it needs to go, but it will have to decide where its priorities are.

But there is not in law any time limit in the past.

No, there's no specific time limit set out on the face of the Bill, but, obviously, the public law principles will apply in terms of the reasonableness of those actions as it's a public body.

All right. There's one final question I wanted to ask. If I'm an individual citizen, I think that, in the OEP's case, I can make a representation. What's the equivalent, like making a complaint, I suppose, that I, as an individual citizen, can use, or what route can I use in the case of the OEGW?

Well, again, there's provision within the Bill for persons to bring forward their representations to the OEGW, and there is a difference, by the way. This could be a concern or a complaint, but it could also be a suggestion or an idea. It could be something that you've just flagged up—'Why don't you look at what this should have been looking like 50 years ago or whatever?' It's for the OEGW then to make its independent deliberation on whether it thinks that is worth pursuing.

Now, that could be brought by an organisation, or a body, or a citizen's body; it could equally be brought by Adam Price, concerned citizen of Wales. It can be done—Bernadette, I don't know if you want to add to that—but that provision is in there. When we say 'persons', it could be a legally identifiable person such as an organisation, a constituted organisation, or it could be, as I described to the committee the other day, Mrs Jones from Tredegar.

Okay, thank you. Diolch.

Alun.

Let's go straight to Sam Kurtz.

I thought you wanted to come in on one point earlier.

It's fine, it's been covered.

Okay. Sam.

Thank you very much, Chair. Looking at those biodiversity targets that were mentioned in one of your previous responses, Deputy First Minister, in terms of the framework, the targets will be set in regulations rather than on the face of the Bill. Do you consider this to be correct and does that strike the correct balance between providing sufficient detail and making sure that there's enough flexibility to deliver as well?

Yes, Sam, I do. I think the balance is right here. I'm aware of some of the concerns about targets not being on the face of the Bill, but setting them out in the regulations I think is the right way forward. There's a general power to set biodiversity targets in regulation, but the Bill also provides very clear direction for how the power will be used. For example, we can only set targets if they'll contribute to that aim of halting and reversing the decline in biodiversity. The Bill also sets a duty on Welsh Ministers to set at least one target in each of the four priority areas on the face of the Bill that we consider address the most urgent issues required to tackle the nature emergency. And it'll also provide detail of the attributes of the targets that will be set. So, we think we have got the balance right here, and it is something that we have engaged on, through the extensive consultation and stakeholder engagement, to get this right.

Part of this is also that element of making sure that we have some of the flexibility within this because targets may need to be reviewed from time to time. They could well be; you can anticipate they could be. Some of these targets will be enduring; they will be long term and enduring. On others we might find the evidence base has changed—and this is important, by the way, for getting the targets right—but the evidence base may well change and we want to revisit and refresh and update or make more ambitious a particular target. This gives us the right way forward to do it in a more agile way. And just finally, Sam, the regulations, of course, will be subject to the Senedd approval procedure, so they give the Senedd an opportunity, then, to scrutinise these targets.

Okay. Alun wants to come in here.

Yes. I am listening to you, Deputy First Minister, and, you know, sometimes the longer the explanation the more worried somebody gets and I'm becoming a little worried about the complexity of structures that we are establishing in Wales. We have got the future generations legislation, which I seem to remember we were told would do much of this work itself. We have now created this body, which is setting different targets and new targets itself. We have also got NRW setting out planning for different aspects of environmental and landscape management in different parts of the country. We have also got work that you have been leading on, on rivers and watercourses. I am just left thinking that we are creating a complexity of governance that actually inhibits accountability, because we've got so many adjoining pieces of legislation that seek to each tick a particular box. I'm just left thinking that we are just creating a monster here.

Far from ticking boxes, one of the criticisms we've faced is: why are we taking real time to get these targets right? Because you are right, there are other areas of policy where we already have targets and we are working to deliver them. What we don't want to do is to duplicate or replicate existing ones. But this is a drop down from those internationally agreed headline targets and how we now apply them in Wales. Not duplicating, but the ones that will genuinely halt and reverse biodiversity loss, because we have not done that yet. So, that's why it is important, curiously, and I don't know if we will get to this—. Taking time to get these right, the work that we are doing with the biodiversity targets advisory panel, the work we are doing with experts and so on—these should not be ones that add complexity, they should drive the change, the transformative change that we have in reversing the loss, halting and reversing the loss of biodiversity. So, no, this doesn't add complexity; what we're seeking to do here with stakeholders that we have been engaged with is actually add clarity on what we are trying to change, what the top priority areas are that will turn this around.

Okay. My challenge to you, then, Deputy First Minister, is to write to this committee with an organogram explaining how all these different pieces of legislation, processes, targets, objectives actually fit together, because I have to say I haven't got a clue.

Okay. [Laughter.] And that is a fair point. I'm sure we can do something in that space and write to you and to the other committees as well.

One side of A4.

On one side of A4? Now, that's a real challenge.

Well, if you can't get it on one side of A4, then you need to think more deeply about what you are trying to achieve. Sam.

Yes, thank you, Chair. I would agree with what Alun has mentioned there and, of course, the one thing that wasn't discussed in that was the sustainable farming scheme and the delivery method of the question that I posed to you in the Senedd Chamber about these targets being legally binding for all, and yet we still don't know the final details of the sustainable farming scheme and what will be included in that, while this Bill will have legal targets that are not linked to the agriculture Bill—the Agriculture (Wales) Act 2023, I beg your pardon. So, is there agricultural policy coming in via this environment Bill?

No, no, completely not. I'll come back to the purpose of this Bill that we have in front of us, which is that strategic oversight of compliance with environmental law and policy—a strategic look at it. So, this OEGW, looking at the principles, looking at the targets, can make its decisions to say where do they think I, as a Minister, am failing in delivering the halting and reversing of biodiversity and failing in delivering good standards of environmental protection. That doesn't replicate what's been done in the agri Act with the sustainable land management principles, all four of them. It doesn't replicate, it actually dovetails with what we're doing on the well-being of future generations Act, which is referenced within this, by the way, and dovetails what we're doing with the environment Act and the section 6 duties. It actually pulls together with it.

But I do understand what the committee is saying, from a member of the public's perspective or a farmer out in the field, if they say, 'Well, how does this Act change the way that I'm using my slurry this year going ahead, or what I'm doing with the rivers and hedgerow planting?' That's actually within the SFS, which flows from the agri Act, but all of it should be held together. What this Bill does is have strategic oversight to say, 'Are the decisions that Welsh Ministers are making actually delivering that halting and reversing biodiversity loss?' So, they're not going to set a new regulation for NRW.

I think one of your colleagues, or lots of your colleagues, would like to come in.

Thank you, Chair. It was just to say that the biodiversity targets are only binding on the Welsh Ministers, they're the ones with the duty to meet the targets.

At strategic level.

Okay, fine. And again, another one of your colleagues.

Just to say, at the official level, we're working very closely with the team that are working on the sustainable farming scheme, looking at the SLM indicators and so on. So, there is a huge amount of join-up that's happening at the official level to make sure that the targets that are set dovetail with what we already have, that there isn't going to be any duplication. So, for example, there is the requirement not to set targets on air pollution that could be set through the existing legislation.

Yes.

Back to you, Sam.

Okay. So, if, then, the OEGW comes back to the Minister saying, 'We are not meeting these targets, x targets', whatever they may be, will that then mean that the Minister, if in future governments still has responsibility around rural affairs and climate change within the same portfolio—. The delivery mechanism is—. Given that agricultural land is 80 per cent of Wales's total land, isn't one of the ways of then fighting to achieve the biodiversity changes through the delivery of our future agricultural policy? If the OEGW says you're not doing something, isn't the lever to do that via agriculture?

Well, I think the direct lever is to work on those levers that we're currently doing within agricultural policy on individual day-to-day, month-to-month operational things. But if the OEGW came to a Minister, there are a number of ways and a range of policy areas that they could seek to shape policy or law where they think at a strategic level it is failing. So, for example, they could say to me, as a Minister, in a range of policy areas, 'Here is an improvement report', or they could deliver an information notice to seek further information on how we're delivering it. They could ultimately, Sam, issue a compliance notice to me as well.

Okay. And so this should be a 'yes' or 'no' question: could the OEGW suggest changes to agricultural policy?

No. They can suggest changes that are framed within the principles of this legislation in Part 1, which we've discussed previously. If there was an issue of failure in agricultural policy on an environmental matter right here, right now, then that would be being addressed with the farming community, with NRW, the environmental regulator, in the here and now. But if there was a strategic failure, a systemic failure, overarching those principles and/or the targets, then the OEGW could come to me and say, 'Minister, sort this out. Review the policy. Come to the Senedd. Talk about why it needs to be done. And if you fail to do it, Minister, ultimately, we have an escalatory approach.' So, they would seek to do it always in collaboration, in engagement. But, failing that, they do have teeth. So, they have measures through those information notices, improvement notices, compliance, including urgent compliance notices, in order to force the hand of me or other public bodies to actually step up their game. Sorry, two of my colleagues want to come in.

Just to say, obviously, we are talking about agriculture here, but the targets could be delivered through Welsh Government policy in a wide range of areas: transport, housing, planning. It's not just agriculture. It would be for Welsh Ministers to look at how they would meet those targets through a wide range of existing programmes and schemes and so on.

Thank you.

I was just going to say, in terms of the improvement reports as well, the governance body will be able to make recommendations that will be on failures across the board, and the Welsh Ministers will be required to respond to those recommendations. So, there will be an onus on them to give consideration and provide that response as well.

Yes. But, if it's of help to you, Sam, where they could—. Let's say, for example—. We had, earlier this week, published a report on the state of some of our marine areas, and the report that was delivered tied in that the impact on those marine areas was partly a factor of what was happening in our river environments. Now, on that basis, an OEGW, in their independence, could come to me, as Welsh Minister, and say, 'Minister, it's not just that report we've just had, but I've got 20 other pieces of evidence here that suggest that you are failing to comply with environmental principles and also the delivery of targets', once they have set those targets. On that basis, they could give me that challenge: 'How are you going to fix it?' And on that basis, I would say: 'Okay. Let's go back and look in the round at our policy, and then let's start working with people to put in place the right regime.' And as Alice said, this could be in transport. This could be in housing. This could be in local townscapes and our local community environments. It could be a range of things. That's what the OEGW can do, as opposed to saying, 'Let's sort out the slurry storage next October.'

Thank you very much, Deputy First Minister. Sam, it wasn't a 'yes' or 'no', honest. I think that we've gone over time. Now, normally, if we go over time, I'd ask, 'Have you got a few minutes for us to complete?' The amount of time that we'd need to complete is probably the best part of 40 minutes. So, consequently—

With your permission, Chair, can I just ask one question, seeing as I'm the one that's being nixed here? Just on that last point: okay, so they tell you that you—. You are under a responsibility to ensure that the targets are met. They come to you and say, 'Look, Minister, the targets are not being met here.' They issue you with this challenge. But they don't have the right, they don't have the power, to enforce that, do they?

They do. The compliance notices are enforceable, and if a Minister or another public body does not comply with them, ultimately, they have the teeth to take this to the High Court for resolution. But they want to avoid that—

Even against you as Minister.

Indeed. So, if you want Mrs Jones in Tredegar's power, there it is.

Okay, thank you. I think that we've gone almost five minutes over time. Can I thank you, Deputy First Minister, for coming along? You'll not be surprised to hear that we've got a large number of questions that we never got anywhere near. So, if we write to you, I'm sure you you'll send us a reply to them. Can I just thank you and your officials for coming along this afternoon? You'll know that you'll get a transcript to check for factual accuracy, and I look forward to seeing the written answers to the questions that we send. Thank you very much.

Diolch yn fawr iawn. Thank you, everybody. Thank you.

Shall we have a five-minute break?