Climate Change, Environment, and Infrastructure Committee

Welcome back to the committee. We are now moving on to our second evidence session this morning with representatives from environmental governing bodies here in Wales, but also, of course, in other UK nations, so welcome to you all. You are joining us remotely, as we can see, but a warm welcome to Lynda Warren, interim environmental protection assessor for Wales; and also John Henderson, deputy interim environmental protection assessor here in Wales. Also joining us we have Dame Glenys Stacey, chair of the Office for Environmental Protection; Natalie Prosser, chief executive officer for the Office for Environmental Protection; and Mark Roberts, chief executive of Environmental Standards Scotland. So, a warm welcome to all five of you. We'll go straight into questions, if we can, and I'll invite Janet Finch-Saunders to start the session.

Good morning. Bore da. Since becoming operational, is there anything that you would change in the Environment Act 2021 or the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 to make OEP and ESS powers more effective?

Give us some lessons that we can learn in Wales from your experience. Who wants to go first?

I'm happy to do that, if it helps, Chair.

Yes, please do.

So, thank you very much for the invite to attend today, and thank you for accepting our attendance on screen rather than in person. Hopefully, we'll meet at some point, but it's good to have input now—thank you for the opportunity.

So, yes, our Act of Parliament did attract quite a lot of interest at the time when it was debated through Parliament. I think we were an early post-Brexit baby, and people were alert to the opportunities and the risks, if you like. And so it went through more than the usual parliamentary mangle to come out as it did, with some things coming in at late notice, and some things coming out at late notice. And we've got the net result of that. But actually, as I've said publicly before, the bag of duties and powers that we've got, and the statutory positions, are entirely workable and we work them to the full. So, we think the suite, the whole, that we've got—we're happy to live with it, and we can be effective using those provisions.

The only thing we'd draw your attention to, I think, here is that—. Well, there are always things at the edges that can be better, of course there are, and here one of the most notable things is the statutory timetable for us reporting to Government and Parliament on the state of things, and then Government responding to that. Because if we're not careful, we can trip over each other in that process. Government is given a 12-month period to respond, and then, before you know it, we're reporting again. So, I think all of us have to work at trying to make that as sensible as possible. But unless, Natalie, you've got anything else to add, I think that would be our main point.

I would agree with your summary there, chair.

Mark, what about the Scottish experience? Is there anything that you can or can't do that you'd like to or like not to?

Thank you, and good morning. I think the experience of the Scottish legislation when it was being passed was very similar to that in the English experience that Dame Glenys referred to, in that there was a high degree of scrutiny, and there were quite a lot of amendments that came in later on during the process. But I think broadly speaking, the legislation gives us a range of tools and, importantly, a high degree of independence and a high degree of discretion in terms of how we exercise those powers. So, broadly speaking, I think we're content with the legislative provisions that we operate under.

Diolch yn fawr. Janet.

We understand that you've been discussing plans for transition to the permanent body with the Welsh Government. Could you update us on those plans and the phases of transition from the interim arrangements?

Okay. So, Lynda.

Good morning, everyone, and thank you for giving us the opportunity to talk with you. We haven't yet had any discussions with the Welsh Government about the transition plans. We have raised it on occasions, but the view is that they've been more concerned with getting something out on the face of the Bill and that this will be the next phase and we will get down to the real details in due course. But it is something that we've been thinking about within the Interim Environmental Protection Assessor for Wales right from the very start. We're in a rather different situation, of course, from what happens in the other parts of the country in that we are there, we do have these interim arrangements, and we're working on the basis that there will be a smooth transition from one body straight into the other. We don't really see that there will be a need for a shadow board to be set up. We would like to think that there will be a mechanism set up where we will be able to move from what we're doing and carry that on across to the new body.

The single most important thing that we would like to see is that independence from the very outset. That's one of the reasons why we don't want to see a shadow board, because we know from our experience—and you will, I hope, have seen our lessons learned report that we sent through to you—that we may be an independent body, but in practice, we're not because we're so dependent on the resources that are held by the Welsh Government. I think the same would be true for a shadow board were it to be set up. We would much rather see a situation where, once the chief executive or the chair has been set up, there would then be a way in which we could work directly with them to help shape the way it goes forward. But as I say, we haven't yet had those discussions with the Welsh Government as to the way they would like to see it going forward. I did notice in the evidence session last week that Naomi did say that there was no intention for a shadow board.

Would you have expected to have been part of some discussions at this point? Do you think that it's leaving it a bit late in the day to not have had those discussions?

Initially, yes, but I have to say that knowing how much work has gone into producing this Bill and the issues that have been there that they've had to try and resolve, I'm not surprised that they have preferred to leave that until the next stage. It would have been preferable, I think, if we could have done it sooner, but I certainly wouldn't hold them to account for doing anything wrong.

Thank you. And we're coming on to independence now, actually, so we'll delve a bit deeper into that, I think. Carolyn.

Good morning. These questions are for Dame Glenys and Natalie—well, my initial question. Unlike the Environment Act 2021, there's no provision in the Bill to expressly set out the OEGW's independence from Government. You say in your written evidence that the provision has been a valuable safeguard in making clear the OEP's independence. Can you provide evidence to support this?

Thank you. Shall I have a go at this, Nat, and then turn to you?

Yes, very happy to do that.

There is a statutory provision in our enabling legislation, the duty imposed on Government to have regard to the need to protect our independence, and that means in practice just keep it in mind and behave in the right way, unless there's cogent reason not to do that. And it also means in practice, actually, that when officials provide advice to Ministers, who, of course, inevitably, come and go, officials have our independence very much in mind, and they make the legal duties very clear to Ministers, as they provide advice to Ministers in relation to what we may be recommending or asking or whatever. So, it is constantly there, actually, in the forefront of people's minds that we're not your average public body, if you like, we have some standing as an independent body.

Why is that important? I was listening to the earlier evidence session and one of your Members raised the question of the inevitable tensions, if you like, between caring for the environment and delivering for it on the one hand, and then all of the other pressures on parliamentarians: social requirements, economic requirements, political requirements and so on. So, it is quite obvious that a body like ours over time can be regarded as just a little bit of an inconvenience, a little bit awkward, actually. And so having those provisions, in my view, can act as a sensible counterbalance. It doesn't mean that government will follow our recommendations, it doesn't have to, it doesn't have to follow our advice, but it has to be careful about the extent to which it is seen to pressure us in any way. I think that's quite sensible, given the nature of what we're dealing with here. There are bound to be tensions, as between us and any government, because of the other things that governments have to reconcile.

Can I just bring Mark in here as well? Obviously there's quite explicit reference in the Scottish Act, isn't there, as well. What's your experience of this?

Our experience, I think, is very similar. The provision in the Act that sets us to be not subject to direction or control by any member of the Scottish Government I think has been an immensely valuable safeguard, analogous to, as Dame Glenys described, the OEP. It has meant that public bodies and the Scottish Government are very clear that, while they have to work with us, and again, there is an inevitable tension in any scrutiny relationship, we are independent, and we'll make our own decisions about what we do and how we do it, and what we conclude. So I think it's an invaluable safeguard in the legislation.

If I could just add to that, we're incredibly appreciative of the approach that has been taken in the Bill that puts so much emphasis on this body being independent. I think that's great, but governments change, and, in fact, we know the Government will change in one way or another fairly soon. I would feel much more comfortable if there was something on the face of the Bill that actually spelled out the need for this body to be independent of Ministers.

From a practical perspective, I'm the accounting officer for the OEP, and one of the provisions in our legislation places a duty on Ministers to ensure sufficiency of funding for the OEP. What that means in practice is that, as a relatively small organisation, when budgets are being settled, particularly in strained fiscal times, there is a heightened ministerial attention to the OEP's budget. It means, when Ministers themselves are being held to account by committees, they are questioned on this, and, in practice, what that has meant, I think, is particular care has been taken to ensure adequacy of funding, and it remains a pertinent question. When a body is new, there's a lot of attention to it. But I think we are five or six Secretaries of State on from the establishment of the OEP, and we've been very grateful to have that provision. It particularly assists civil servants when they're discharging their own professional responsibilities to have those duties there. So, in practical terms, I think it has been very helpful for us to ensure that independence is respected, particularly in circumstances where we have the sometimes challenging job of holding Government to account.

Natalie, do you have long-term funding, as well as sufficiency, so that you can plan?

Under the previous Government, we did have an indicative three-year budget, which was in line with the spending review cycles. At the moment, we have a one-year budget. We are in discussions about whether we will have more certainty of budget over the longer term. All public authorities would like to have that; very few, in fact, get it.

We're not in an unusual position, in other words, uncomfortable though it is.

And what's the Scottish position, Mark?

The Scottish position is we know what we have this year, and we are moving into the budget discussions for next year. In terms of the wider context, the Act that sets us up requires us to make a statement retrospectively when we produce our annual report and accounts to say whether or not we had received sufficient funding from the Scottish Government. We complement that now with an approach of, when budgets have been set, we write to the committee that scrutinises our work to say whether or not we think that the budget for the forthcoming year is sufficient. But I should stress that's not a statutory requirement, that's something that we have elected to do and reinforces our relationship and accountability to Parliament directly.

Thank you. Joyce wants to come on this.

It's coming into my area. We heard evidence this morning suggesting that a ring-fenced budget of five years would be preferable, and that the Government should sign up to that. What are your thoughts on that? The idea being that it would give a guarantee of income for you to do your job, which would, in our case, our fixed cycle, ensure that your budgets would be protected for all of the next term.

You may want to all answer together.

I'll start, but Natalie is the one on this, really. But just to say that arguments about ring-fencing often happen for bodies like ours, and of course certainty is nice to have, isn't it? But the most important thing is to have enough. This is often overlooked. For example, we've got about 85 staff—a lot more than you're proposing for this body in Wales—and we do struggle. We know that the calculations that were done initially as to what size we ought to be suggested at least half again, or thereabouts. We don't feel fully fledged on those numbers. We could do a lot more with a few more people. So, for me, actually, as chair, the bigger issue is about the totality of the amounts, and what you expect from the body with the moneys that you're allocating, given that there's such a wide range of powers and duties here. Natalie, you'd probably be more explicit about the certainty issue.

It's highly desirable to have clarity of future funding. It allows us to plan on a multi-year cycle, which allows us to operate more efficiently. In practice, we haven't had that. What I would say is we do have that statutory provision around sufficiency, which provides some safeguarding. In the absence of a statutory provision, an alternative could be longer term funding certainty. There is no public body anywhere that would not highly desire to have that certainty. It allows you to operate more efficiently and effectively and with more certainty. So, I would of course always support that.

One of my big concerns about this body is the expectations that are going to be out there as to what it can do. As Glenys has said, it's vast, the things that could be done, and we know that it's not going to be financed in a way to be able to do absolutely everything that we would like.

There is a danger perhaps that, in some way, almost, you're affecting the independence of the body by constraining its resources. You may still leave it free to decide how it uses it, but if it's under-resourced to the extent that it can't do as much as it feels it needs to, you are, in a way, exerting control. That's a big worry for me—what the resource will be, how it will be decided, and on what basis.

I fully accept what the First Minister said last week about sufficiency—I mean, how long is a piece of string? It's a difficult issue, but I would like to think that there might be some way of getting an idea as to what the funding is going to be, and keep it fairly constant at least, and not reducing.

Okay, thank you. Did you want to come in on anything else? No. Happy?

With that, yes, but has Carolyn finished her—?

Sorry, Carolyn. Okay, we're jumping about a bit. It's my fault, sorry. Yes, Carolyn.

I just had a question regarding the appointments process to the bodies and maintaining independence from Government. What have you learned from the appointments process and maintaining independence from Government that might inform the Welsh Bill? To Mark, Dame Glenys and Natalie. Thank you.

Mark, do you want to go first on this one, then? We need you to be unmuted. There we are. Thank you.

Our appointments process follows the standard public appointments process by which posts are advertised, and that is run by the Scottish Government. However, once that process finishes, then appointments to the board of ESS have to be approved by the Scottish Parliament. And the way in which that has operated to date has been through the medium of the committee to which we have reported during the current session of the Scottish Parliament holding an evidence session with the proposed appointees, and then those appointments are subject to approval by the whole Scottish Parliament. So, what that does is really reinforce the accountability of the ESS as an organisation to the Scottish Parliament, and provides a fairly high degree of independence from Scottish Ministers in terms of making that appointment, because Scottish Ministers cannot make the appointment unless there is the approval of the Scottish Parliament.

Doesn't that politicise it? Can I—?

Yes, Joyce.

Doesn't that politicise it? If the whole Parliament is voting on it, and you have a Parliament in the control of a particular party or parties, doesn't that run the risk of politicising it?

That's certainly not been the case to date. Hypothetically, that that could be a risk. I don't like to talk in hypotheticals, but theoretically, yes, that could be a risk. But it certainly has not happened to date.

But I suppose that better reflects the democratic will of the people than a single solitary Minister making a decision, I suppose.

Indeed.

But, yes, there are questions to be asked either way. Okay. Thank you. I don't know if Dame Glenys or Natalie want to come in on this.

Yes, I'm happy to do that, because I've been involved in the process relatively recently, actually, as we've been recruiting for two new board members.

But just to say, first of all, that the chair of OEP, that is an appointment that goes through the usual process, but then is subject to pre-appointment scrutiny by the relevant select committee. That's quite intense, and I think it's the right thing. I do think that, in that way, committee can decide whether or not it has confidence in the proposed appointment and, indeed, the select committee produces a report of several pages. So, it's not simply a nod; it's quite an intensive process.

For other members, though, it's a fairly standard application process and interview process. I find it works well, although it takes an inordinate length of time. Just the way it goes up and down between a department and No. 10 and back at every stage means, if you drew it out, it'd be quite a complex diagram. But, actually, I don't criticise it, because, at the end of the day, we've got some excellent appointments—truly excellent.

I think what's good about it is that we have an independent member in the whole process. Right from the beginning, we've had Baroness Brown from the Climate Change Committee—a wise woman who knows the sort of thing that we're looking for. So, that's been terribly helpful. And then we only put to the Secretary of State for consideration those that we think are well able to do the job. So, there's no there's no problem there. And then, in both rounds that I've been involved in, I've had conversations with Ministers about each of the candidates that is proposed, in order to give a full view, if you like, as to the strengths and otherwise of those candidates, and, in both of those sets of proceedings, my own personal preference and opinion has been taken very much into account. And we are about to announce—or DEFRA is about to announce—two new members, actually, to our board, and I'm simply delighted with them.

Okay. Thank you. Can we come back to Joyce?

Thank you. I want to raise the question about the Bill's lack of specifying which environmental targets the Office for Environmental Governance Wales should monitor. The Welsh Government's intention is that the body should decide its own priorities. What are your thoughts on that, and what do you see as the upside and the downside?

Okay. Shall we invite John or Lynda to come in on this one, then?

Well, my view on this is, if it's going to maintain its independence, then it's got to be free to decide which targets it's going to be monitoring, and it won't be doing that in a vacuum, because part and parcel of the whole business is it will be hearing from stakeholders and representatives, it will be knowing what's happening and will be guided by that. I would expect that if, for some reason, the OEGW decided not to monitor something that seemed to be pretty fundamental, then your committee will be there wanting to know exactly why. But actually forcing it to look at particular targets, making it a requirement to do so, I think could mean that it then can't devote time to issues that it thinks are more important. John, I don't know whether you want to add anything to that.

I'd add simply two points: (1) I think, as a matter of public credibility, it's good for the new body to make its own decisions about what it monitors, and, secondly, in terms of demarcation between what the new body monitors and what other bodies are already monitoring, there may be quite detailed boundaries to be drawn, and that's much better done by agreement between the new body and the other bodies under the development of the strategy, rather than having a clear line on a map drawn by somebody else, which may not work so well in practice.

Okay. And would your experiences in ESS and the OEP chime with those views?

Shall I pick up that first?

Yes, please.

Just for context, OEP is legally obliged to produce an annual progress report against the targets set out in the Environment Act—those are the legally binding targets—and we have to do that every year. It is a significant resource pull on the organisation. It takes up about 25 per cent of our corporate resources doing our annual progress report. Now, I think at the moment that that is probably right, and we do have discretion over the intensity of review that we undertake, and really it's most efficient where we bring our review to Government's own assessment of its progress. We're just commencing a similar programme in Northern Ireland against their environmental improvement plan, and that, again, will be a very significant part of our resourcing for Northern Ireland, which is obviously a much smaller jurisdiction. We have a much smaller resource envelope for that jurisdiction. Generally speaking, I think, for a relatively small organisation with a very large remit, which is the same for us in England, having discretion about what you do and the intensity with which you do it is rather essential if you're not to become entirely overwhelmed or have to place nearly all of your resourcing into non-discretionary activity.

Thank you. And—. Sorry, Dame Glenys, you wanted to come in.

Yes, I was just going to say, actually, just to follow through on that, that, when an organisation is pressed for resource, as this organisation, by the sound of it, is very likely to be, you will know that the first thing you have to do is what you have to do—so, that is running the organisation itself and keeping the doors open, if you like. And then the next thing is what you have to do by law, by statute. Natalie has given an example for us of our annual reporting. It must be done. And then the organisation, if it's run well, will identify, other than what it must do, what it's extremely desirable to do in the sense of what it can do for its raison d'être, i.e. improving the environment, and then what it might be nice to do if it had the chance to do it.

Now, for me, compliance with statutory targets and the monitoring of that compliance is absolutely right up there in things that you'd wish to do. Certainly, as chair, I wouldn't want us to be told by Government that some targets are more important than others but they're all statutory. It doesn't add up. So, what you want to see is, for each goal, each environmental goal, you've got an apex target, where possible that's enacted in statute, and an independent body is monitoring achievement.

Thank you. And Mark, what about deciding your own priorities in Scotland?

I would wholeheartedly agree with what's been said. As a small body, which is a similar size to that which is envisaged in Wales, having discretion over where you target your fairly limited resources in the context of a very broad remit is absolutely imperative. We don't have the same situation as the one that Natalie describes with the environmental improvement plan, so we don't have that kind of fixed bit of work that we have to do every year. But, having said that, and we may come on to this later when we talk about biodiversity targets, there is currently legislation going through the Scottish Parliament that may put a degree of a fixed requirement on us in the future.

Excellent. Okay, diolch yn fawr iawn. Thank you. Right, we'll move on now then to Delyth.

Diolch, Cadeirydd. Bore da. Good morning to all of you. First, I wanted to ask you about the relationship or any potential overlaps with other bodies and how they can be managed. To the OEP and the ESS firstly please—so, Dame Glenys, Natalie and Mark—could you talk us through any overlaps that you've experienced with functions of other public bodies, any experiences that you've had of that, and how you think that similar situations could either be avoided, if it's possible, or, if not, managed, in the Welsh context with this Bill?

Who wants to start?

Everyone's being very polite.

Mark. Yes, go on, then.

Shall I start then? So, our founding legislation requires us to ensure that we co-ordinate with other bodies in Scotland and who have remits in Scotland to make sure that we don't overlap, and those include the Scottish Public Services Ombudsman, Audit Scotland—the national audit body in Scotland—and also the Climate Change Committee. The way that operates is, at a practical level, very regular engagements on a number of levels within the organisations. From a more formal governance perspective, we have a memorandum of understanding with the Climate Change Committee, which works very well. We have perhaps slightly different angles on the same issue in terms of how we approach things, and that co-ordination and information sharing about what we're doing works very well.

Within Scotland, just to illustrate with an example, we were considering pieces of work around climate change adaptation and flooding, and, following discussion with our colleagues in Audit Scotland who were about to embark on a piece of work around flood risk management, we decided to step back from that and leave Audit Scotland to pursue that piece of work. So, that illustrates how it's operating on a practical basis. We haven't had any experience of where there have been difficulties in terms of overlap in terms of our pieces of work that we've undertaken.

Thank you.

We've had a very similar experience in England. So, also we have provisions in our legislation, particularly with the Climate Change Committee and the relevant ombudsman in both England and Northern Ireland; we have memorandums of understanding in place with all of those. In practice, we've worked very collegiately, particularly with the CCC. Our role is very broad and so is theirs, and we have no interest in overlapping, and, in practice, it doesn't happen.

We have had, I think, some very advantageous engagement with a number of other parts of the public sector, particularly the relevant audit offices. We're very aware of their programme of work, and sometimes we draw on the work that they have done to help inform our work. So, I think we find that what we do fits in quite a compatible way with a lot of other public authorities who also exercise scrutiny roles, and we undertake a programme to make sure we're not being duplicative. In fact, when we're prioritising, one of the things we take into account is, 'Is another public authority better placed to act?' And in a number of cases it is, including as well with the public bodies that we oversee.

So, we have an ability to receive complaints, which would be representations in Scotland, and I think will be in Wales, and where something comes to us that would be better dealt with by the original public authority, we've got well-established mechanisms for referring those matters on to those public authorities, and also supporting members of the public in understanding where best to direct their concerns when we're not the public authority that's best placed to do that.

So, I think, in practice, it's actually worked extremely well and we've had very good co-operation and engagement with other public authorities where their roles sit, I suppose, not overlapping with ours, but proximate to ours.

Thank you, that's useful. Forgive me, Dame Glenys, was there anything that you wanted to add to that?

I would say that Natalie's mentioned the national audit offices, but we also work quite closely alongside the Environmental Audit Committee. So, we're quite keen to know what parliamentary scrutiny is planned for the year ahead, because we don't want to duplicate effort there. And also, we do liaise with Environmental Standards Scotland and, so far, with the Welsh assessor, just to make sure. Sometimes, we're doing a bit of work together, as we have done in a recent investigation, for example, and that's good as well. So we've actually found it, I think, pretty easy to navigate ways through this, haven't we, Natalie?

Yes.

All of us; that's not just us, but the other bodies concerned.

That's useful. Thank you all very much for that. It's interesting, isn't it, the difference here that we've got with what's being proposed for Wales, because there isn't an express provision for managing co-ordination, for example, with the UK CCC. The Welsh Government have argued that that's because there would be limited overlap between the OEGW's functions and them. But, reflecting on your experiences, do you think that that assumption that it would not be needed could leave the door open for confusion, either within those bodies or—? Natalie, you were referring to the fact that, for the public, it's perhaps quite straightforward then to be able to know, for people to know, where to go or for them to be referred. Do you think that there could be a vacuum here, which could be problematic?

In my view, it has been helpful having expectations in our legislation that we need to put in place a protocol with the CCC and the ombudsman, because what we do—. A line does need to be drawn between their responsibilities and ours. I think it's clearly set out in legislation, but having that expectation early on to put in place those arrangements was really, really helpful, because we had to do it and so did they, and that allowed us to establish those relationships early on.

What I think is extremely important is making sure there's sufficient clarity about how we engage as the four UK nations. We've forged a really excellent working relationship with ESS and with the interim assessor, and I think that has been to our collective mutual benefit to be able to do that. Oftentimes, we're dealing with the same body of law, or very, very similar bodies of law, within the four nations, and, for example, being able to run parallel investigations in Scotland, Northern Ireland and England, and having a really clear provision in both our legislation and ESS's legislation that allows us to share sometimes sensitive information between us, allows us to be co-ordinated and consistent within the UK. I think the expectation of co-operation was rightly set by all of our respective Governments, and the practice of it, I think, has been to our mutual and collective benefit, and to the benefit of the environment.

Thank you. Natalie, on that specific point then, would you expect this Bill to provide explicitly or expressly for co-operation between the OEGW and the other bodies?

What I would say is that, because we have those provisions—. So, we are enabled to co-operate and provide information to the new Welsh body—it's defined in our legislation. Having an equivalent provision for them to provide that information to us, I think, would be incredibly valuable. We have relied on that. The reason it's important is that some of the information that we need to share and discuss will be in relation to contentious matters with Government. It will be sometimes very sensitive—both politically sensitive and confidential in the broader sense—and having a really clear gateway and expectation for doing that, it makes it administratively easy for us. Also, there's been a clear political intent in the framing of our legislation that that is what we should do. I would suggest you ask Mark as well for his reflections. Mark and I talk regularly about matters of mutual interest. We know we've got the gateways to have those conversations, and we've found it very valuable. I would hope to have that relationship with the new Welsh body as well.

Thank you, Natalie. Mark, it would be very useful to have your reflections on this, please.

I would 100 per cent agree with what Natalie said. It's a really valuable safeguard to have that sort of provision in place that allows us to share information during the course of our work with other UK bodies. Again, our founding legislation will allow us to do that with OEGW, if it is set up. It would be, I think, a real strength for the UK environmental governance system as a whole if that was reflected in the Welsh legislation.

If I could come in there, I would entirely agree with that. I think that is essential, otherwise there could be problems where we can't share.

But I'd like to go back to the previous point about working with UK bodies. I think there is a bigger issue here; I don't have an answer to it. Welsh Government seem to have been very keen to do a Welsh thing and look at this from the perspective of Wales. But there are issues where things are slightly more complicated. I mean, my background is in marine environmental law, and that is a good example where you have different sets of responsibilities, both legally and in policy, across the different parts of the UK, and there is a real danger there that issues could fall flat. And although I suppose we can expect that it will be OEP that takes the lead on things that would be a UK base, what would happen, say, if there's an issue that is very much a Welsh issue but is covered by UK legislation or UK policy? OEP have got other priorities. They're not probably about to say, 'Yes, we'll drop this, because Wales has got a problem.' I'd like to see some way in which the Bill recognises that, 'Okay, we want to do things because we are Wales, and we do things within our own little remit, but we are part of the UK, and we do have responsibilities that extend beyond just Wales.'

Thank you for that. It was interesting that, in the previous evidence session, Professor Robert Lee had a nice way of reflecting on this and saying that the Bill is 'shy' in some of these provisions, in the absence of some of what you've been referring to. Perhaps shyness can sometimes be a particular problem, but that's something we'll be looking at. Thank you.

Yes. Diolch yn fawr iawn. Okay. Could I just ask, then, all of you, but maybe particularly the interim assessor, Schedule 2 to the Bill includes some detail, doesn't it, on what should be included in the OEGW strategy? I'm just wondering whether you have any views on the level of the detail there and what's in the Schedule, and then, obviously, others can come in as well, maybe reflecting on how it works in your respective jurisdictions, really.

Well, I'll hand over to John in a moment, but just to start, one thing that slightly bothers me—in fact, maybe more than slightly bothers—is the actual purpose of the OEGW. I mean, the strategy is about saying how you're going to deliver the purpose. The purpose, as set out in the Act, is so incredibly broad and goes much further than I was expecting this body to be doing. The general purpose has:

'exercise its functions...for the general purpose of contributing to the environmental objective'.

And you look at what the environmental objective is, and that is extremely broad and covers a lot of things that are, yes, they're about governance, but they're not so much about the sorts of things that I would think this body could be looking at, which is largely about how the law is functioning and what you would expect the law to be doing. It's just an observation that I think it might be worth looking at.

Yes. Okay.

I'll hand over to John.

Yes. John.

What would I add to the strategy? Areas of focus, I think, echoing what's been said earlier about the enormous range of issues that the new body will cover. It will have to decide where it concentrates its resources. So, I would say that should be in the strategy. It would be extremely helpful if there was something about resourcing in the strategy, because if you're going to plan a strategy, you've got to know what your resources are to deliver it. There's no point in developing a magnificent broad-ranging strategy and then simply not being able to fund its delivery. And my third point would be about flexibility. At the moment, the strategy, I believe, is reviewed every four years, and it may well be that things change much more quickly than that, and a strategy, like a plan, only works until it doesn't work, and then you have to change it. So, I would like to see, somehow, more flexibility introduced into the strategy.

Okay. Any reflections? Yes, Dame Glenys, and then we'll come to Mark.

Thank you. A very interesting question, this one. So, if we ask what a strategy is to do for the organisation, well, it's to guide the organisation and its people, as they then develop more detailed plans and actually start delivering against those plans. But it also has a role externally, doesn't it, in actually demonstrating, giving some indication, to parliamentarians and, indeed, a wide range of stakeholders, how the body intends to go about its work—what to sort of expect by way of stance, culture and approach from this new body. And they're all legitimate asks of a strategy, but, of course, this is a new body; it's got a blank sheet of paper. It'll have an Act of Parliament and it doesn't probably quite know how it's going to go about things. So, there is a tension there as you draw up a strategy. You're trying to do as much as possible to indicate, for example, how you might approach setting priorities without actually saying what your priorities are.

So, for me, it needs to deliver for the people and for stakeholders, to give some indication. It should certainly cover the approach to prioritisation because there's going to be too much work and not enough cash. It needs to show how it's going to deal with its stakeholders, how it's going to have relationships with them, because they'll want to know. It needs to say how transparent it's going to be about the way it works, about its dealings with Government and so on. People will want to know.

It needs to be pretty clear—and this is where detail is often needed—about its approach to enforcement. People will want to know in sufficient detail—those who are overseen by the body and those who are watching the body—how this body is going to approach its enforcement powers, and then how it will assess itself over time. How will it know if it's making a sufficient difference? Can it indicate those sort of measures? And good luck as you start developing your first strategy when you don't quite know the answer to all of these questions, but you're doing your best to set out your thinking. We recently reviewed our strategy after three years—

Okay.

—just to say—and it's worked pretty well, but we've shortened it. Often, when you don't quite know, there are more words involved. [Laughter.]

Yes. Good point; good point. Okay. I'll come to you, Mark. I just want to ask—. You can give us some of your reflections, but also we understand that your strategy is subject to parliamentary scrutiny and approval in Scotland; maybe you can tell us a bit about the pros and cons around that. Because, obviously, we have proposed provision in Wales that the relevant Senedd committee is consulted, but it doesn't, of course, require Senedd approval.

Okay. Thank you. So, our founding legislation is also fairly detailed in specifying what we have to include within our strategy. I don't think that's been particularly problematic. As Dame Glenys said, the first time that you put together a strategy when you're a new body, you're probably trying to explain rather more than, and in more detail, than you would perhaps want to in a strategy for a more established organisation, and that was certainly our experience.

Our first—. Well, it was our strategic plan for the first three years of operation and it was really quite detailed in terms of how we were going to go about doing things. We have also recently reviewed that and we have also shortened it down significantly in the light of experience, but that has been enabled by the fact that we now have an awful lot of operational procedure and detail that is publicly available and that we can point to. So, that has enabled us to be much more focused in the strategy on a very, very high level on messages about what we're intending to achieve and how we're intending to do it.

John mentioned the point about flexibility, about when you can review it. We have a high degree of discretion, again, which is fantastic from our point of view. We have to review our strategy from time to time, which is probably about as broad as it can be. So, that affords us a high degree of discretion.

With regard to the scrutiny and approval of our strategy, we've obviously only been through this process once, but I think it contributes, importantly, to the relationship and the accountability that ESS has to the Scottish Parliament. It's very important that Parliament, which, ultimately, is voting us the money, is satisfied that we are doing what it wants us to do in the way in which it wants us to do that. And, from a practical point of view, the last time that we were there, in late 2022, it was fairly detailed scrutiny by the committee that scrutinises us in terms of looking at the nuts and bolts of how we were going to go about our business for the first three years of operation. I would anticipate the same will apply in the autumn of this year, when we submit our revised strategy to the Parliament for approval. So, again, coming back to what was said by the previous panel, I think it's another kind of plank of establishing our independence and accountability to the Scottish Parliament.

Okay. Diolch yn fawr. We have 20 minutes left, so I would ask that maybe questions and answers are brief. Obviously, we need to receive the information that we need to receive. We'll come on now to Janet.

Thanks. As regards the OEP and the ESS, have the enforcement powers available to your bodies led to effective redress for breaches of environmental law by public authorities, and what can we learn from that for the Bill?

The proof is in the pudding here now, isn't it? Let's see.

Shall I go first?

Yes, please, Natalie.

We have found our suite of powers, I think, to be pretty effective. They are not quick to use, but that hasn't necessarily proved itself a difficulty. We're still in the early days of the OEP, so we haven't yet taken any public authority to court, but we came very, very close to doing that. I will give you some general reflections.

The ability to seek an environmental review or a judicial review, I think, has been extremely important to allow and enable an environment where we can negotiate resolution of non-compliance with the law with public authorities. That has been the case with two completed investigations in Northern Ireland, both of which indicated serious non-compliance with the law, both of which went up through our escalation procedure, and both of which were resolved without the need to resort to court proceedings, although in one case we came within about 24 hours of issuing judicial review proceedings.

In England, we have had a very similar experience, including on some cases of significant complexity, such as the regulation of combined sewage overflows and, very recently, in relation to guidance on the farming rules for water. In both cases, our procedures allowed us to be really clear about where we thought the law had been broken, but also created space and opportunity to discuss and negotiate those with public authorities.

Our experience has been that we are far more likely to deliver a positive outcome for the environment where we can have good and open dialogue with public authorities, in confidence, where we're really clear where we think they've broken the law, where we can discuss and agree what remedial steps can be taken, and then we can let those public authorities get on with it. So I've been very pleased with how our processes work.

They can be quite resource intensive. Our board makes our key decisions through the escalation process. That requires a significant amount of work, particularly on complex cases where the law involved is complex. And, frankly, if we're investigating the cases, it is because the law is usually complex or because the issues are very substantive, because if they weren't circumstances like that, the non-compliance probably wouldn't be ongoing and it would have already been resolved. So I think it has worked very well.

Can I just quickly ask: do you think the lack of resources or the fact that it's resource intensive, that becomes a deterrent for you to actually be more robust in taking action against these agencies and things?

It hasn't stopped us being robust. We did take on possibly the biggest investigation in the organisation's history as our very first investigation. What it does mean is that we prioritise very carefully and we choose cases where we think we're going to have the greatest positive effect, because we know, when we start an investigation, we need to resource it, potentially, all the way through to the end. And in doing one investigation, we won't have capacity to do another. But our strategy sets us up to choose the most consequential cases, and I think, so far, we have done that.

Mark, just very briefly, if you would.

A very similar situation here in Scotland where our preferred model for resolving issues, whether it's either compliance or the effectiveness of environmental law, is to have that dialogue with public bodies to try and resolve things through that dialogue process. We have escalated to producing two improvement reports, which then demand that the public authority involved produces an improvement plan, which then has to be approved by the Scottish Parliament. We have not yet used our powers about compliance notices. We have come quite close, I think, on a couple of occasions. And nor have we yet taken any public authority to judicial review.

So, do you think the escalatory approach, ending with referral to the High Court—? Does it provide effective teeth to the body in the absence of fines?

I wonder if I may start that, and then see if others come in. All oversight bodies welcomed having a big stick in the cupboard. There's no point just having the carrot; you do need the big stick. Who you’re dealing with needs to know you’ve got a big stick. What we’re talking about here is what that big stick should be. In our case, it is the ability to go to court to seek judicial review, and it’s very powerful, and I like it. I much prefer it to fines. A body of the size that you are proposing would really struggle to manage the prospect of fines—setting a fine, agreeing what it should be, bringing it about. It’s enormous, and for what? Just because you then give money to Government. It doesn’t really make an awful lot of common sense. But access to judicial review turns out to be a very useful big stick in our cupboard.

Would Mark agree?

I would wholeheartedly agree with that. So, nothing more to add.

Okay, thank you. And Lynda.

My thoughts on this are that the idea of fines was a pretty good deterrent when we were talking about money coming out from the UK going into Europe. But I really don’t see much point in money going out from Wales and into the Treasury, frankly.

Indeed. Thank you very much for that. Julie.

I don't know whether John wants to add anything to that.

John, sorry. Yes, please.

I think my only point is relating to independence. If the new body can be completely independent, it can use its teeth, whatever they may be. So, that has a big effect on its effectiveness in enforcement and so on.

Okay, diolch yn fawr iawn. Thank you. Julie.

You’ve already referred to judicial review, but the Cabinet Secretary told us that it’s not necessary to include a power for the OEGW to refer authorities to judicial review, because anybody with sufficient legal standing can apply for a judicial review. I think you have told us, in relation to judicial review, that you haven’t taken that very far, so far. But what is your view on the Cabinet Secretary’s views?

If I may start from our own experience, as I’ve said, the fact that we can take public authorities, including Government, to judicial review has been very powerful and influential in the way public bodies have responded to our interests and investigations. For example, Minister Muir in Northern Ireland, in the Assembly, spoke about one of our investigations, and put it succinctly, in my view, when he said:

'when the Office for Environmental Protection comes a-knocking, action needs to be taken'.

It needs to be taken because we’ve got the big stick in the cupboard. That’s how it works. Thank you.

I would add that there is a distinct difference between our powers in England and Northern Ireland and conventional judicial review. Firstly, we have the power to bring environmental review. That has its own provision under the relevant White Book and civil procedure rules. A very, very critical difference is that we are not subject to the time limits that conventional judicial review applicants are subject to. And what that does is it allows us, firstly, to take the appropriate amount of time to work with public authorities to achieve resolution, without that pressing three-month deadline. I think absent the express statutory power to bring those cases—and we have two tracks, we have urgent judicial review, and we have environmental review, and a greater timescale—we would be severely hampered, because, essentially, there would be no end point to our escalation that subjected our decision to the full scrutiny of the court. And when you’re overseeing compliance with, essentially, the entire gamut of environmental laws, which is a very extensive range of laws, without having that final point of escalation, I think we would have found that, in practice, quite challenging.

So, basically, you think the power should be in the Bill, even if you usually wouldn’t use it.

It’s a matter, of course, for Welsh policy, but I think it would be difficult, because it would mean a weaker framework in Wales than in England. So, for example, if we brought an environmental review in England, it’s highly likely that those provisions would either be the same or parallel in Wales. We’ve had exactly that experience between England and Northern Ireland with a recent judicial review that we intervened in. And I think that would be rather unfortunate.

The same would work in the opposite direction. If the Welsh governance body adjudicated on a point of law that was relevant to us in England, and possibly as well in Scotland and Northern Ireland, we wouldn’t have a parallel track that we could then reflect on our side of the border. And that could be consequential in practice and lead to an inadvertent divergence in position on substantially the same laws.

If I could come in there.

Very briefly, then.

This is something that has concerned us greatly. I have two points. First, on the provision that relates to High Court review, a simple question: why doesn’t it say, 'environmental review'? Then we’d all know what it means and it would be the same process as Natalie has just described, and that would work, I think. More fundamentally worrying for us is the lack of provision for judicial review. It’s all well and good to say that we have the ancillary powers, but you go before a High Court and you’ll find someone turning around and saying, 'Where does it say you can do it?' You’re going to get challenged. I think it’s inevitable. The concern seems to be the need to get the Bill through without having to seek the necessary authority from Westminster to be able to put provisions in about judicial review, and I just think that it’s a great shame, frankly. I think that we’re missing a big opportunity, not least the power to be able to intervene if necessary.

Thank you, Lynda.

Thank you very much. This question now is to Mark. I believe that you have told us that you haven’t taken forward a compliance notice yet, but we understand that there is an appeals system for compliance notices, and I just wondered what your views were about having an appeals system.

You’re absolutely right, we’ve not yet issued any compliance notices, and yes there is a mechanism within the 2021 Act that allows a public authority to appeal against a compliance notice, and that’s an appeal to the sheriff within 21 days of a compliance notice being issued by ESS. That’s as much as I can say. We have no practical experience of how that mechanism actually would operate in practice, but it seems entirely reasonable that there is at least a time-limited appeals process. So, that’s as much as I can say on that.

Thanks very much. And then finally, we have discussed appointments, but what are your views on Welsh Ministers having a say on who is appointed to the OEGW’s review committee?

If I may deal with that quickly. I’m particularly concerned about it. It seems to me very important that a body like this should be independent in all respects and should be seen to be so. It should be perceived every day in every way to be independent. So, I do worry about that. I also recognise from experience that these decisions are extremely complex. Our board spends many hours, very well advised, in making each of these decisions, and what is being proposed here is that a different review committee, differently constituted to the body making the decision, then reviews it. I’m concerned about the review provision itself, but I’d be particularly concerned if the appointments for that committee were not anything other than absolutely above board and demonstrated both independence and wisdom.

Diolch yn fawr. Thank you. Janet. We’ll move on to biodiversity targets for the few remaining minutes that we have.

Thank you. Would you expect environmental governance bodies to have a statutory role in developing biodiversity targets?

I could jump in here and say that I really don’t think that it would be appropriate for the body that is going to be doing the monitoring to be actually involved in setting the targets. Again, it’s down to the independence. I would expect it, perhaps, to be asked to comment and to advise, but not to have a statutory role. I don’t think it’s appropriate.

I would echo that stance as well. It’s a matter of governance, isn’t it? It’s for Government and Parliament to decide its level of ambition and what it seeks to achieve for the environment. It does need to consult on what’s proposed, and of course it can always ask the body you’re setting up for advice, but I don’t think that we should muddy the waters in governance terms at all.

And Mark, do you agree?

I wholeheartedly agree. This is a live issue in Scotland at the moment, as I mentioned earlier. The Scottish Parliament is considering a Bill that will put statutory biodiversity targets in place. We are likely to be the body that has the duty to review progress against those targets, and we absolutely want to understand how those targets have been developed and the data that underpins them, but we should be absolutely independent of that actual target-setting process.

Given your role in the development and monitoring of environment targets, do you have any views on the biodiversity target-setting framework proposed in the Bill?

Would John or Lynda want to go first on this?

I think it's pretty well set out. It's very thorough. People are well aware that I don't have a great deal of faith in targets, they can be a distraction, they can be a box-ticking exercise, which is why I think it's very important that time is spent developing things that are actually going to have outcomes that are both meaningful and can be measured. I think that will take time. I'm pleased to see that there is a lot of consultation involved. I think it's a pretty good job that they've got in the Bill, personally.

The only thing I'd add to that is, in terms of it being a target-setting framework, I feel it would be useful to have some interim-level targets between the overall aim of reversing biodiversity loss and the minimum of four individual specific targets; there's a big gap between those two, which, for actually achieving the goal, it would be useful to fill with some interim stages.

Carolyn, you wanted to come in on something.

Yes. Earlier, we discussed having biodiversity targets on the face of the Bill, rather than just talking about the environment. Do you not believe that—? And, Lynda, you just said that you thought that targets were a tick-box exercise, but do you not believe that, if public authorities don't have targets then they may not have regard to biodiversity?

I think that's very relevant, but the question is what does the target actually ask you to do, how are you going to deal with it. And if the target is something that you really don't have a clue what you're supposed to do with it, it's not actually going to be encouraging you, as a body, to take it seriously. Much more important will be to have clearly defined targets so that people know exactly what they're going to be doing. So, that's what I think. And then they may well work.

Can I just, finally, ask the OEP and the ESS if you can discuss your bodies' roles in the development of the respective environmental principles statements and guidance? I'd just be interested to understand the role that you've played in that. Mark, do you want to go first?

We have, in Scotland, a similar set of environmental principles. The ESS was not actively involved in the formulation of those principles, but I think what is important and what we have said previously is that we would see it very much within our remit to, potentially, at some point in the future, scrutinise how those principles are being applied, and that's something that we will continue to consider.

We have scrutinised how they're applied in England and produced our first report, and we won't lose interest in it over time. It would be quite wrong for us to be scrutinising something that we'd half developed ourselves. But we were able to give Government some advice as the principles and guidance were being developed.

I think that brings us to the end of our allotted time. Can I thank the five of you for joining us today? We greatly appreciate the evidence that you've given us, which will certainly have a strong bearing on our reflections on the Bill, as we consider these Stage 1 proceedings. You will be sent a draft copy of the transcript, just to check for accuracy. But again, on behalf of the committee, can I thank you all for giving us your time this morning and for joining us? Diolch yn fawr iawn. Thank you.

Committee will continue. We move to item 4, papers to note. There are six papers to note. Are Members content to note them, or do you wish to discuss anything? Okay, we'll note them. Diolch yn fawr.

Item 5 on the agenda is the motion to move into private session. So, in accordance with Standing Order 17.42(vi) and (ix), I resolve that the committee meets in private for the rest of this meeting. Are the Members content? Thank you very much. Okay, we'll wait a second before we move into private. Thank you.