National Assembly for Wales

Diolch, Chairman. Good morning. Bore da. What are your views on the list of environmental principles? Are there any others you would have liked to have seen?

And before we start, I understand, Dr Jenkins, that we won't be asking much of you when it comes to the principles, given that you're involved in some of the work around that. So, we'll just note that for now. There we are.

So, I ought to be rather nice about these principles. [Laughter.] But in all seriousness, I do think we've got the key principles there. I don't think it would be wise to go beyond the principles that we have, for the sake of clarity. Those principles are very well represented, not only in European law, but more importantly, I think, in international law. And there's a good deal of received jurisprudence about those principles. So, I think that's all good. I support the idea of integration as a duty, rather than as a principle, and I think that's a very nice balance. So, there's a duty to integrate environmental considerations into policy making, and in order to get a steer on that, we follow the principles.

Okay.

Anybody else?

Okay. Professor Ormerod.

I think there's general support for what are important principles that maintain parity with where we were before the exit from the European Union.

Okay. And Dr Gravey—any view? 

So, I think the main difference between this list of principles and the list of principles we've seen for Scotland, England and Northern Ireland is not the principles themselves, although there's something different with integration, it is about having an environmental objective overarching the principles, driving the interpretation of the principles and the use of the principles. I think that's where the Welsh approach is, in a way, more similar to what was done in the EU, but also more akin to linking back to Welsh practice and the Well-being of Future Generations (Wales) Act 2015. So, I guess that's where the innovation really is. I think it is something really important to note.

Okay. And we'll be getting into that in a minute, I'm sure, so back to Janet.

Thank you. And the Cabinet Secretary has told us there is no need for a power to amend the principles because they are well established and enduring. What are your views on whether there should be a power to amend the list?

So, if I might start, principles are in their nature dynamic. So, they're not written down anywhere in legislation. That's something that you need to think about in terms of the statement and interpretation. But they're received over time from case law and from policy development. So, being dynamic, it's not impossible that, in the future, there will be elements of customary international environmental law that we would say, 'This is now at the point that we consider this a principle.' So, in a sense, I would quite like a power to make additions to the principles, but that comes with a caveat: I wouldn't like to see any other principles being lost. I wouldn't like a power to revoke principles, and I'm not sure—. I mean, I think it's certainly a challenge both in drafting terms but also in policy terms to have a power to amend that goes only one way—you can add to, but you can't revoke. So, all in all, I would leave things as they are.

A few nodding heads. 

Okay, that's me done on that bit.

Okay. Sorry, Dr Gravey, did you want to come in on this?

I was just going to add, something like a precautionary principle is still extremely debated, and it would be the most likely to get the chop. And I think I completely agree that it is very difficult to have a power to amend only going one way, and this one would be very much at risk, and we want to preserve it.

Okay. Joyce.

Good morning. I just want to explore the power to revoke, because you've got to be careful what you wish for is what I'm reading, and it could undo, rather than advantage, the environment, and I just want to draw that out—I'm sure that's what I understood—just for the record, really.

Yes, you understood that correctly. That would be my worry.

Thank you.

There we are, excellent. Thank you very much. Carolyn.

There is a debate around whether the duty to apply the principles when making policy in relation to Wales that has or could have any effect on the environment is broad enough. The Cabinet Secretary told us that in the rare case where a policy has no impact on the environment, it wouldn't be proportionate to apply the principles. So, what are your views? The non-governmental organisations and I seem to have a concern. If it's just environment, and when looking at policy in other departments, maybe transport or education, will they refer to this law, this action? So, that's my concern. 

And Dr Gravey earlier mentioned we have the future generations and well-being Act, and that should hopefully cover some of this, having that regard, but we do have some concern whether—. It's a mindset, so does it actually have teeth and have enough strength when different  Government organisations are having regard to the environment and biodiversity. Just my views as well. So, your views, please.

Shall I go first, and then Dr Gravey? I do have some concerns. Clause 3 says that Welsh Ministers must have special regard—and we'll probably come back to special regard—to the principles when making policy that could have an effect on the environment, and that they should integrate environmental protection into such policy, that is policy that could have an effect on the environment. My worry is that that might leave the door open in the future for Welsh Ministers to say—and I'll take an example that you gave to the Deputy First Minister a fortnight ago—'Oh, this is just a bit of road, it's just a bit of tarmac; I don't really see any impact on the environment here, therefore I see no reason to integrate principles into policy making.'

That example is one I lived through as a cabinet member, trying to get the highway officers, when having Welsh Government funding to do highway schemes, and saying, 'Please, with the verge, plant wild flowers, or make sure it's managed for wild flowers', rather than bringing in new soil and just grassing it, basically. It's just that detail on delivering, so that every organisation has due regard to the environment, and I don't think, unless it's written down, they will comply, in my view.

Yes, and I think that my view of that is that, in a sense, procedurally, it passes the baton back to the Welsh Ministers, and then it's open for a Minister to say, in a rather Nelsonian way, 'I see no environment.'

Okay.

I think this element of debate may come up further down the line, but I'd be interested to hear what my colleagues thought in response to that question, where matters of policy, such as transport, or major infrastructure schemes that are UK-oriented from Westminster, interact with environment as devolved responsibility, because there may be some interesting conflicts or contrasts under those circumstances, and I'd be interested to see what the legal people think about that.

Dr Gravey wants to come in as well.

If I could go back to the original question, which is that I think a lot of this Bill is written with the underpinning assumption that Welsh Ministers now and in the future will always care for the environment. And I think that's a problem. It's a nice view to have, but I think if you're going through the effort of creating a Bill, you need to prepare for a moment when you may have Welsh Ministers who will not care as much about the environment.

We know that, in times of crisis, politicians are under a huge amount of pressure to act quickly, and if it is easy to not have to consider the principles, then they will do so, because they need to respond quickly to any kind of crisis. So, what you want is to make sure that this is not just a tick-box exercise, and actually making it that it's only about policies that could have an environmental impact means that you can even not have the Ministers go through that tick-box exercise. I think it is really concerning, even though it does look like the current Welsh Government doesn't see it that way, because I think if it could have an impact, it will cover almost every policy, so why should we worry? Well, we should worry because, you know, we have to plan for future Governments as well.

Thank you for confirming my view and my worry as well. The simplest and cheapest option is sometimes the way that people who are delivering projects might go and not have regard. So, thank you.

My second question: the Cabinet Secretary argues that the Welsh Ministers' duty to have special regard to the principles means that their effect will cascade down to every policy and decision; to what extent does this negate a need to apply the principles more widely to other bodies and situations?

Well, why does a Welsh Minister paying special regard mean that the policy will be followed by other public authorities in Wales? Is that your experience as Members? I just don't quite see that. But going a little bit further, 'special regard' I think is very welcome. It is different than what both England and Scotland have done, and I think that that word 'special' does carry some weight. I mean, there are other legislative examples of 'special regard', and it does offer a degree of priority.

Can I just cut in there? We were debating 'special regard' and 'due regard' the other day, and we weren't sure if there were examples where it's been used and has more weight. So, if you do have them, please can you let us have them?

Yes, I think I do. I would need to check them out, but I think the Equality Act 2010, for example, uses 'special regard' for certain categories of equality considerations. And on 'due regard', there's much more jurisprudence. 'Due regard' is a very common formulation in legislation, and in fact the UK Environmental Law Association, in its submission, has actually suggested that, while it welcomes 'special regard', it might wish to extend 'due regard' to the other public authorities outside the Welsh Ministers and Natural Resources Wales. So, add that word 'due', and that word 'due' then directs you back to the environmental objective. That's the purpose of it.

I am a little concerned that, with regard to other Welsh public authorities, this issue of 'regard' applies within the context of strategic environmental assessment, and I might go so far as to say that, in some ways, that is, maybe, where it's least needed, because since 2004 we've had law on SEA. And the clue is in the title—when you are doing a strategic assessment, forward-looking policy frameworks, put the environment in there. So, integration is already there in SEA. Where we're probably lacking integration is in other areas of policy, so I would argue that the notion of due regard, as I see it, ought to be applying across public authorities in policy decision-making formats.

Can I ask just a small supplementary?

Yes. I was just wondering if Dr Gravey wanted to come in on this particularly.

I was just going to say that the United Kingdom Internal Market Act 2020 also has special regard for Northern Ireland's space in the internal market of the United Kingdom, for example. There is some guidance there on how to put special regard. But I also completely agree with the point that was made around extending due regard to public authorities.

Do you believe that it should be, in my experience, written down in black and white for public authorities to follow? Rather than just have, like, the principle of it, that there's legislation for them to follow.

The one advantage of confining this to strategic environmental assessments is that you have a fixed format there, and we know what they are. We know there are things like local plans, and then the public authority would have to have, in my formulation, due regard. Confining it to SEA brings certainty. Extending it more widely to policy decision making by public authorities, you have a less clear boundary. But nonetheless, in spite of that, that is what I would go for; I think SEA is rather narrow.

Okay. Delyth wants to come in, and then we'll come on to Joyce.

Diolch. Bore da.

Bore da.

I'm really fascinated by and intrigued and troubled by this idea of special regard and due regard. The reason I'm saying 'troubled' is, with the degrees of magnitude that we've got there, if we imagine the worst case scenario of a future Government that, as Dr Gravey has been setting out, for whatever reason was a Government that was not minded to have regard at all to some of these matters, on the idea of special regard, is there enough added protection from that? Forgive my ignorance, it's something I want to understand more about. Or are there examples in other legislatures where there's a mechanism where things could go further than special regard, where it could be locked in more, to guard against something like that happening in the future?

So, what does special regard entail if I am a decision maker caught by this requirement for special regard? Well, it means, if challenged, and that's what would happen, someone with standing, and standing rules are quite wide in this area—. An eco non-governmental organisation, for example, could come along and say, 'Show me the special regard that you gave to this', and the court would look and would look for evidence that, in fact, not just regard had been made, but some priority had been given to environmental considerations, because of that word 'special'. And if that couldn't be shown substantively and procedurally, then you would have a good ground of challenge to the decision made by the Minister or by NRW.

That's useful, thank you. Are you aware of other legislatures, or even in our own legislature, where something further than that could be provided for?

I can't think of a formulation that would capture that—

Especially special regard.

—because, in a sense, what you're wanting to say there is, 'The Minister must—', but then, 'Must do what?' I think special regard is probably as good as we can get.

Okay. Thank you.

Okay, that's interesting. Joyce.

Right, we're getting into the detail here of how things could pan out in the very near future. You've talked about courts, and anybody having to go through that procedure is going to need the money to back it up, which NGOs won't have, probably. So, my question is: what's the strongest, I suppose, legislation that we can put in place to avoid that scenario? Because if we end up, as Delyth has said, with a Government that has no regard for the environment, we don't want to end up in a situation where we're eternally in the courts, which is going to take years, and damage can be done in the interim on a massive scale. So, what's the best that we can do within this legislation—I suppose that's what we're all asking—to make sure that we don't end up there?

So, then we are moving on to the governance provisions of the Bill, and that is where we would need to look to the OEGW. Then that takes us into territory in terms of what precisely are the powers of that office to seek ministerial review. At the moment, that looks rather weak, for reasons that I can explain, but we may come on to that later, I think. 

Okay. Interesting. Thank you. 

Sorry, Dr Gravey wants to come in.

I think there is—. I haven't actually read the latest ruling on this, but, of course, the OEP was allowed to intervene in a case on appeal for Rights Community Action, which is on the interpretation of due regard, and how due regard for environmental principles have been understood in the English system. So, I think here you see the fact that OEGW doesn't have that power to intervene in cases, but the OEP has, and the OEP was able to then bring its environmental legal credentials to support that appeal. That's something that we need to correct for OEGW.

Okay. And we'll maybe put that to them in an hour or so, when we have them before us. But we'll probably come back to that again as well. Sorry, Joyce.

I'm going to move on now to environmental principles and the integrating environmental protection statement. There's no express duty to explain how the principles should be interpreted in the principle statement. Do you believe the requirements around the statement content in section 6 will provide enough clarity on interpretation of the principles? 

So, as I said earlier, principles are just that. They're not formulated in legislation as such. They exist with this surrounding body of what I will call 'jurisprudence', but knowledge about what we mean by 'precaution' or 'rectification', what we mean by 'polluter pays' and so on. That being so, it probably is necessary to provide some guidance on the way in which we see these principles being applied in Wales.

Now, one thing to bear in mind when we're doing that is that we do have a combined jurisdiction of England and Wales. So, I think there's difficulty in moving too far away from what has been done in England, and indeed I would say in Scotland as well, probably. In other words, there ought to be some common shared understanding, I think, in the UK about precisely what we mean when we talk about 'polluter pays' or whatever it might be. 

There is a worry that the Bill as drafted is quite vague, I think, on what might go into that statement. How much guidance would there be on principle written in there? Could we decide not actually to put very much in and just assume that the principles are well understood? I would not want that to happen because, in a sense, you would cede authority almost to England, who have done that, who have got precisely a statement of environmental principles. And the courts, when asked to interpret, would, I think, be left going to the English statement, and we would have nothing to say in Wales. For that reason, actually, I'm not too worried, because I think anybody sensibly looking at this would say, 'No, we must have a Welsh statement that speaks to what we're about.'

Could I just ask then, because we scrutinised the Well-being of Future Generations (Wales) Act 2015—or the Bill, as it was—here in this committee a number of years ago, and is there not a risk here that this is so top level in terms of principle that actual palpable difference on the ground is a long, long way away, isn't it? Because that has been a criticism of the future generations Act, that it's all well and good, but show me the difference it's making. Is it too far a leap from the principles to palpable change?

Well, that, to my mind, is another reason to have guidance, and to have guidance that the people of Wales can understand. Ideally, I think, many environmental lawyers would say that principles should incorporate bottom-up approaches, as well as top-down approaches. So, when we are talking about, let’s say, the polluter-pays principle, we’re incorporating into that the anger that people have, for example, about the quality of our surface waters. And that filters through into our understanding of the principle and how it would apply. 

Okay, thank you. 

Could I just come in?

Yes. Sorry, Dr Gravey. Please do. 

It's really important that it's not just about, of course, England and Scotland and Wales on this. Of course, Northern Ireland also has, well, is finalising its environmental quality statement, principle statement. And what is really interesting here is it's the same Environment Act for England and Northern Ireland, yet you do have quite some differences in the statements. We don't yet have the final, final NI statement, but looking at the OEP feedback on both the draft English statement and the draft NI statement, you could see different Governments interpreting the principles differently. So, I think it is really important that you do have a different Welsh slant on those principles.

But it is also really important to then have sufficient and appropriate possibilities to look at the principle and to shape how the Government develops that statement. I think that's where there are some concerns around the timing, around when the statement has to be produced, because it will have to be produced before your OEGW is up and running. So, that will put actually a lot of work on you as a committee to make sure that the statement is up to scratch, but also then calls for a need to revise the statement as soon as possible once the OEGW is up and running and able to comment on it.

Okay, fine. There we are. Thank you very much. Diolch yn fawr. We'll move on now, then, to the Office of Environmental Governance Wales and I've said before that I think we should come up with a snappier title, but we'll live with that one for now, anyway. So, over to you, Janet. 

Thank you. Does the Bill sufficiently ensure that the OEGW's functions will not overlap with other oversight bodies, including front-line regulators? Schedule 2 provides that the OEGW must set out in its strategy how it intends to exercise its functions in a way that seeks to avoid overlap with the Auditor General for Wales, the Future Generations Commissioner for Wales, the Information Commissioner, NRW and the Public Services Ombudsman for Wales. The Cabinet Secretary has told us there would be limited overlap between the UK Climate Change Committee and the OEGW's functions, so there is no provision in the Bill to manage their co-ordination. What are your views? 

Okay. I've got two things, and they're two rather separate points. But the first is, the environmental objective in the Bill requires regard to be paid to a series of things, and they are maintaining and enhancing resilience in ecosystems, mitigating and adapting to climate change—and I’ll come back to climate change—halting and reversing biodiversity decline, and then there's another one, which is meeting the needs of future generations and contributing to well-being goals. And I'm not very keen on that final one, and I'll try and explain why.

I can understand that we have Welsh architecture and we want to use that Welsh architecture and build on it, but I have two concerns about tying it in—and this is the overlap with other bodies, right—tying it in to the future generations commissioner and that fabric. The first is that when you look at those things in the objective, they're all about ecosystems and biodiversity. But, of course, part of that environment also are people, human beings. They're troublesome in this environment. They don't always do a lot of good for the environment, but nonetheless they do need protecting as well, and that objective is very weak, on the protection of human health under the forces of pollution. And pollution globally is the single largest cause of premature death. It runs at 15 per cent on average of the population. It's far bigger than the combined effect of malaria, tuberculosis, AIDS and all those infectious diseases. So, I would like the objective to have a much stronger statement on the protection of people in Wales from pollution.

But there's a second point, which is that when we talk about future generations and well-being goals, we're moving into the realm of sustainable development, of sustainability. And we do that incidentally also in Schedule 1, paragraph 1. We talk about the Office of Environmental Governance Wales having a duty to advance sustainable development. I worry about that, because when we begin to talk about sustainable development, we often regard sustainable development as having three pillars. One is environmental sustainability, but there's also economic sustainability and social sustainability. And there's a danger that those two legs of the pillar can outweigh the third, the environment. This Bill is very much about the protection of the environment. If we begin to bring in and take economic considerations and consider growth in Wales, or whatever, even though well intentioned, we play down that environmental protection aim.

And in Wales, of course, we have a fourth pillar, which is culture and language.

Of course. So that's one point. And then coming on to your point about the UK Climate Change Committee, Schedule 2, when you look at it, focuses on Welsh bodies largely when considering strategy, and it gets very shy when it comes to things like the Office for Environmental Protection and Environmental Standards Scotland that stretch beyond Wales. And included in that is the UK CCC. Why is it so shy? I wonder whether in the drafting it was a worry about legislative competence, 'Well, what is it we can say about the UK CCC because it's not a Welsh body, it's a UK body?' But I think that's misconceived.

Of course, what we're doing here is giving instructions to a body that we are establishing. We are saying, 'Right, we're going to establish a new office, and we're now going to tell you how you should go about your co-operative operations with ESS and OEP, and also how you should transact with the UK CCC, and what account you should give to the reports'. It seems perfectly possible and permissible to do that, but it hasn't been done.

I totally agree with everything Bob just said. But also, on the idea of monitoring, the word 'monitoring' can mean different things in different circumstances, different contexts. The bodies that we've got listed here all monitor and report, but in different ways. The OEGW itself will have different purposes in terms of monitoring, and will be monitoring in different ways in different contexts. For example, over the effectiveness of environmental law, there's a wide perspective, but then specifically on issues in relation to compliance with environmental law in different circumstances.

With that in mind, with the idea that monitoring and reporting is different in different ways in different circumstances, I actually don't think that there will be an overlap in terms of function between the bodies that are listed. But actually, the UK Climate Change Committee is one body that may be collating evidence that would be relevant to the work of the OEGW, and it would seem wrong to duplicate that. Just because they're doing that on a UK-wide perspective, and they may report then on what they think about that evidence, that wouldn't stop the OEGW from using that evidence and coming to different conclusions.

So, I do think it's important that we do actually include the UK Climate Change Committee here, and that perhaps we include a provision to ensure that there's some guidance, or in the guidance—the strategy that the OEGW has to produce—that it actually includes some kind of guidance on these relationships and on the differences, so that it's clear to everyone what we mean by the terms 'monitoring' and 'reporting', in all these different circumstances.

Diolch yn fawr. Carolyn. 

I'll just ask some questions on independence now.

Sorry, could I just come in on the Climate Change Committee?

Very briefly, please. I'm just conscious of time. Thank you.

The OEP worked quite a lot with the Climate Change Committee when they started monitoring, and so there was a lot of information sharing.  They have a memorandum of understanding signed that is available on their website that I think would be really good to look at, and to see how they've managed to lay out how they don't overlap, but how they're going to work jointly when needed.

Excellent. Thank you for that. That's an important point. Carolyn. 

When we met the Climate Change Committee, their remit seemed quite narrow from my understanding as well. That's a comment.

Independence. Both the Environment Act 2021 and the Scottish continuity Act include an express provision setting up the legal independence of the OEP and ESS from Government. The Cabinet Secretary told us including a similar provision in the Bill would only be declaratory and wouldn't materially affect the practical measures around independence. What are your views on this?

Although I would agree that what's really important is that we have the right structures in the Bill to support the independence of the OEGW, I'm not sure what the disadvantage would be of including this statement in the Bill. I would need to understand more about why there might be thought to be a disadvantage in this, because, personally, I can't see one.

I agree with that. I think independence, in a sense, is proven by a series of implications: look at how we appoint to this office, look at the fact that they can turn down the invitation to give advice to Welsh Ministers. All of these are factors that prove independence. But I'm with Tori on this: why not make it more express, given the timing of this Bill, and given that the work of the construction of the Office of Environmental Governance Wales will take place under a different Senedd? Let me read you what the Scots legislation says. It says that, in performing functions,

'ESS is not subject to the direction or control of any member of the Scottish Government'.

I can't see why we wouldn't want a statement like that in our legislation.

I agree. But it's also about practical independence and making sure that there's enough money in all of this. We need some kind of forward statement of independence, and support for independence, and then we need to strengthen other provisions in the Bill, to actually make that independence a bit more weighty.

Which brings me on to my next question—

Sorry, can Julie just come in briefly on this point?

I'm just thinking about this independence, and thinking about the other bodies that we've got here, whether there are any statements like that in the other bodies—the commissioners that we've got and that are set up to be independent. I don't think there's a statement like that in those bodies, so it's interesting why we haven't brought that in at all. Sorry, it's a comment rather than a question. 

That's something we can reflect on. Clearly, the role of this body would be pretty different, I suppose, wouldn't it, in many respects. But that doesn't detract from the point. Carolyn.

Professor Lee's paper suggests that, to ensure the OEGW has enough budget to fulfil its functions initially, Schedule 1 should include a minimum level of agreed funding, ring-fenced for five years. Is there precedent for this mechanism in other legislation that you know of?

I listened carefully to what the Deputy First Minister said about legislation elsewhere in the UK and about this question of sufficiency of funding and the vague nature of that phrasing. I think all of that is true, and I accept it, though I have to say it is backed, for example, in England by the power of the OEP to comment on their funding and the sufficiency of their funding in its corporate planning, and that does go then on to the Parliament. So, there are other supportive mechanisms around that word 'sufficiency'.

But the First Minister laid down the challenge in giving evidence to this committee, and said, 'Well, if someone can come up with some other mechanism, then let them come forward'. So, I thought I ought to respond to the challenge, and suggest that there could be a legislative assurance for a fixed period of time, and I suggested in my paper five years, so that we knew, going forward, precisely what resources would be there for the OEGW. Beyond five years, there's no guarantee, but my logic was that, at the end of five years, if it's functioning well, then there would be Welsh public confidence in that office and we would be safe going forward. That was my logic.

We've had an example this week: Bridget Phillipson and the return to Sure Start. The press reports of that tell us that she said it would be embedded and protected against dismantling, and that would be in two ways. The first was ring-fencing £500 million specifically for the new scheme, and then allocating rights to draw down that funding to people. So, it's not impossible. There are other bodies—and this partly comes back to Julie's point—like the Office for Budget Responsibility that are important bodies that must establish their independence. In the case of the OBR, there's not ring-fenced funding, but any funding determination for future budgets for the OBR has to go to the full Parliament. So, there could be a ring-fencing of a budget for a fixed period of time. That is my suggested solution to the Deputy First Minister's question.

Thank you.

Diolch yn fawr. Thank you. Janet. 

In written evidence, you raise concern around reporting and monitoring frequencies. Can you expand on that, please?

I think that was a point I indicated, and it's quite a simple concern. There is no specificity on what the reporting and monitoring frequency must be. You could imagine annual time steps, you could imagine a time step that was linked, for example, to state of natural resources reporting. But it's a simple requirement for a degree of specificity in what the reporting frequency would be, and nothing more.

Straightforward enough. Thank you. Delyth, do you want to come in?

Diolch. I would like to ask about enforcement powers, please. It's something that Dr Gravey has already alluded to slightly. In terms of the approach with escalation that compliance notices can be referred to the High Court, do you think that that is enough of a deterrent? Is it strong enough in the absence of fines? Do you think that it should work in a different way instead?

I'm not enamoured by fines, put simply. NRW are stretched enough as it is. If they can't fulfil, and if the OEGW, post investigation, made a ruling, I just can't see the utility in taking much-needed resources away from the body that's trying to protect the environment. That's where I come from on this.

I do point out in my paper that, because we go to the High Court, the High Court judge could give any of those remedies that would ordinarily be available on judicial review of administrative action, and the final one of those remedies, and not used all that often, is damages. So, if people or property has been damaged as a result of the failure of a public authority to meet the compliance notice that's been served by the OEGW, and that damage would ordinarily be of the sort that's recoverable in private law, then the High Court could award damages. But that's not a criminal fine, that's a payment of compensation.

Sorry, Delyth. Janet wants to come in. 

A big concern I have about this coming in and making sure it's fit for purpose—. I am really concerned that, quite often, pollution incidents, land pollution or river pollution—. In Wales, we are becoming notorious for allowing pollution to go unchecked. As you said, NRW are challenged because of the lack of staff and things, but when we do have a situation where NRW or Dŵr Cymru are caught and fined, I'd hate to have a situation where we're making it more difficult. Because what other thing can you do to a company other than fine them, really? And also, I'm a great believer that—. I know, currently, any fines—. So, NRW use resources—

We need to be brief now.

—then they get the fines in, but then they go to the Treasury. I would want those fines coming back to help put back some damage, to repair the damages that have been caused to the environment by these companies polluting.

Sure. Okay, Professor Ormerod on this, and then we'll come back to Delyth.

I'm declaring a conflict of interest as deputy chair of Natural Resources Wales, but one of the things, I think, we're interested in is enforcement undertakings. And we've seen an example, even this week, where a small rivers trust in south Wales was given £150,000 to invest in their work around south Wales rivers when a company had been responsible for rupturing a sewer, which didn't result in a fine, but in money being levied to pay for what is effectively environmental damage. So, I think there are alternatives that we're very keen on seeing.

Thank you for that. Delyth.

Diolch. I'd like to bring us back to judicial review, if that's all right. The Bill doesn't explicitly provide for the office to refer bodies to judicial review or to intervene in civil proceedings. Added to what you've already said, do you think that—? Well, the Government has said that that isn't needed, because there are so many different ways in which judicial review could be undertaken; the Office of Environmental Governance Wales wouldn't have to be the body doing it. Is the balance right in terms of not just what is possible, but how that is likely to play out, in terms of public access to justice?

Yes. So, again, the Deputy First Minister, in this committee, pointed to the ancillary powers in Schedule 1, paragraph 23, and they basically say that the Office of Environmental Governance Wales can do anything that's appropriate in the discharge of its functions, or incidental or conducive to the discharge of those functions. So I think the Deputy First Minister was suggesting that, in appropriate cases, that might give an intervention right, or it might give the right to bring judicial review. I have a worry about that, because, if you read the Bill, the Bill gives no power for the OEGW to intervene or overturn a single decision, like a decision made in the planning system. The idea is that they look at systemic problems and not individual decisions. But most judicial review cases and most civil cases will be based around a specific incident, a specific decision that's been made—that's why I'm taking judicial review, because I disagree with the decision that you have made.

And that—. Forgive me for interrupting, but, in terms of the public, and public access to justice, it would tend to be about individual cases, wouldn't it? That's where it would be most immediate, that they would need that—. Sorry to have interrupted you.

Yes. And it comes to Joyce's point earlier: you know, who has the resources to be pursuing these judicial review cases?

Yes.

So, on the whole, I think this is an area where the Bill could be strengthened, but you are hearing in the next session from both the Office for Environmental Protection and Environmental Standards Scotland, and I suggest that it might be a very good question to ask them—precisely how are these powers being used.

Indeed. Can I ask as well—? Because the Bill provides that a public authority can request a review of a compliance notice that it has been served, so I'm just wondering whether—you know, there are pros and cons around that, really.

I don't want to hog proceedings here.

No, no.

There are things that I worry about. For example, I worry about the urgent compliance notice. It doesn't seem a very urgent procedure to me, especially when we have a review of the urgent compliance notice. And I have actually—or the UK Environmental Law Association have actually—suggested in the paper the possibility that the office could seek injunctive relief in its own right. And if I needed an interim injunction, I could get one today, whereas we're looking at weeks under the procedure, as it seems to me to stand at the moment. Also, on that whole issue of review, I worry, actually, that we trigger in to review of OEGW activity a body that is then being staffed by outsiders and not people from our independent office. And I don't understand why we simply don't go for a power of co-option. If we want external review, yes, let's have external review, but let's give our independent office the right to say who should sit in that independent review.

Okay. I'm just conscious that we have around about 20 minutes left and we want to come on to biodiversity targets as well. I think Dr Gravey, you want to come in on this because you had some particular comments about—.

Just to say, I think we're back to, 'Can we trust future Ministers to only appoint people that should be on that review list?' And the fact that it is Ministers doing it, you could have two of the three members that are completely anti the work of OEGW. So it's really important to give this either to OEGW or to partners as members.

Yes, thank you for reiterating that. I think that's an important point. Do you want to come in with a brief question, Joyce? 

I think so.

Just very briefly then.

Dr Gravey, do you want to expand on your assertion in your written evidence that the Bill fails to incorporate the Aarhus principles and how they could be addressed?

In many ways, that's a common problem with how we've done environmental governance after Brexit across the UK. It's not just a Welsh problem, but Wales is the only place in the UK that is in position to do something about it. I think there are specific concerns around the use of representation instead of complaints, which, while it is really good in that it allows people to reach out to the OEGW about more things, it also then doesn't come with the protections around complainants that you have in the Environment Act 2021 to be kept apprised and kept aware of what's going on, to get a response. I think this, in terms of access to justice, is not really good. But, yes. So, I think that's the main one, I think, where we need to make sure that complainants or authors of representations are actually kept in the loop and made aware of what is made of their complaint.

Okay, thank you very much. Right, we'll move on now then to the section of the Bill that talks about establishing targets for halting and reversing the decline of biodiversity. So, Carolyn, do you want to lead us?

Thank you. Dr Jenkins, in your written evidence, you call for long-term headline targets related to the 2050 UN Convention on Biological Diversity and that goal. Can you elaborate on this?

Yes. So, this was something that was in the White Paper originally. There was a target there to reverse the decline in biodiversity, with an improvement in status of species of ecosystems by 2030 and then their clear recovery by 2050, which is quite a long target, if you like, and I think there were some concerns around that, around enforceability, interpretation and timing and how we would reach that target. But, to me, what that did was it provided an aspirational goal or target, which would be this overarching perspective for the rest of the biodiversity targets. I don't think there's anything wrong with an aspirational goal, and I think it's very much within the Welsh way of environmental law that we have aspiration and that we put that on the face of the legislation. And then I think the path towards that target would be created by setting the other biodiversity targets.

So, if we wanted to make it a bit simpler, I think it would be good to have a target for 2050 to give us that kind of long-term perspective, to have something like recovery of biodiversity, so that we have that positive view of what we're trying to achieve, something that would be akin to what we've got for the climate crisis and the goal in relation to the climate crisis of net zero by 2050, because I think it kind of captures the public imagination, it tells us what's gone wrong—that we've been emitting too many greenhouse gases, that we need to address that—and I think to say 'We need to recover biodiversity by 2050' would give us the same sort of perspective, which I think we actually really need.

Thank you. Professor Ormerod wants to come in as well. 

The current targets we're working towards are global biodiversity framework 2030. We have a very long history of missing the targets that are set, from the UN downwards, and it seems to me the biggest need is for management information that allows us to adapt and change course where things are going in the wrong direction, and we've got to blend medium-term with longer-term targets, I think, to understand where we are, understand what levers we have to pull to make things better, but assess at the right time step. And it is a blend of medium and longer term perspectives.

Okay. Very, very briefly then, Carolyn, please.

In my experience, public authorities have regard for climate change, maybe take that on board, and reducing carbon targets. And my experience of the Climate Change Committee is that they focus on carbon, not on biodiversity and nature recovery. So, do you believe that having these biodiversity targets here would help people understand we have a nature emergency as well as a climate emergency and make it higher level?

In one word.

That's my belief, yes.

Thank you.

Thank you. Okay, great, thank you. Thank you, Carolyn. Julie. 

Diolch. The Bill allows three years for the Welsh Ministers to set biodiversity targets in regulations for priority areas, and the Cabinet Secretary has said that target development by the Joint Nature Conservation Committee will take a year, followed by additional time for the legislative timetable and the Senedd elections. Do you think this is reasonable?

I think one of the key needs is for more specific targets, so that we can understand exactly what the indicators are, the frequency with which they’re assessing them. I would have confidence in JNCC to deliver on that timescale, and I would suggest that, within three years, we can definitely come up with targets that are appropriately outcome focused and evidence based.

So, you think yes. 

Yes. 

Okay. Right. Thank you. 

But we do need specificity. And I think, if I may, some of the things that are discussed here—extinction risk, population size, resilient ecosystems, but also mention of genetic diversity—actually expose a degree of weakness in the Welsh Government-orientated indications about who will be delivering some of those things. So, for example, if we’re specifying genetic diversity as a target, we don’t really have the capacity in the Government sector to be measuring genetic diversity. So, there is a need to develop those skills, or to outsource them to organisations who do have that capacity. So, there is a developmental need in monitoring and assessment also.   

Thank you. And then priority areas for the targets are set at new section 6C, and the explanatory memorandum explains that these were developed following a prioritisation exercise with stakeholders around the 23 global targets. So, do you consider these to be the right priority areas? I know that, Professor Ormerod, you do say in your written evidence that the focus on pollution, which we’ve already discussed a bit this morning—.

If I can expand on that point, as a freshwater biologist who has spent my entire career working on freshwater pollution, I’m absolutely delighted to see that emphasis there. And the emphasis is exactly on the right things—nutrients, pesticides, emerging pollutants such as pharmaceuticals, plastic pollution. But I think we’ve got to recognise that pollution is just one of the drivers of biodiversity decline—so, habitat degradation, invasive non-native species, overexploitation and climate change. And it’s interesting that that specificity is given to pollution. I think the assumption is that some of other major drivers are captured by the actions that will be taken around ecosystem resilience or preventing extinction. But whether the emphasis specifically on pollution as the major thread is correct, I think, is an interesting question.

Right. 

Joyce, yes. 

You mentioned the word 'resilience', and we’re finding that, whatever resilience we have, we’re in a climate emergency. And we’ve got bluetongue at the moment, we’ve got moths that are eating the box, which—. So, our resilience is going to be tested to the full, quite frankly, because of the climate change. So, is there anything in this Bill—because I haven’t noticed it—that recognises that, and is there any way that we could somehow strengthen it to take note of the environment wider than Wales, and the resilience that we might need, or is that for somewhere else?

Resilience is a really interesting—

It is. 

—characteristic of ecosystems, because, on the one hand, it's a property of the characteristics that ecosystems themselves have—the number of species, their abundance, their dispersal capability, their genetic diversity. But that interfaces with the extent to which there is external pressure, and the external pressures on our ecosystems are almost certainly increasing, which puts us into a difficult dynamic situation. 

The evidence that, at the moment, we revolve around in Wales is the idea of diversity extent, condition and other aspects. Our own data show that the closer to semi-natural conditions ecosystems are, the more resilient they are. So, if there is a specification about what resilience could look like, it’s using the evidence we have to suggest that ecosystems should be closer to a semi-natural condition as a principal property.

Okay. Thank you. Back to you, Julie.

Yes, thank you very much. To Professor Ormerod again: in your written evidence, you express the need to consider short and longer term targets, so how could the Bill provide for that?

I’m sorry, I missed part of your question.

In your written evidence, you expressed the need to consider short and longer term targets. How do you think the Bill could provide for that?

I think that we rehearsed that a little bit earlier on in response to a question to Dr Jenkins around the importance of medium-term, outcome-focused targets and longer term aspirational targets. The requirement will almost certainly be resource limited, and I think we’ve got to ensure that the organisations who are responsible for monitoring progress—Natural Resources Wales and its partners—actually have the wherewithal to do what is required at the timescale that detects signals appropriately.

You think that it would be difficult for them.

Yes. All the evidence from the work we do in the United Kingdom generally indicates that our capacity to monitor environmental change is declining, rather than increasing. There is major resource demand pretty much across the board in all of the regulatory sector, and I think that we need to improve very substantially.

Okay. Diolch yn fawr iawn. Okay. We’ll come on now, then, to Janet.

Thank you. Dr Jenkins, your written evidence raises particular concerns over the provisions allowing Welsh Ministers to revoke or lower the targets. What would you suggest instead?

I think that you do have to have powers to revoke and lower targets. It’s important, as we continue to gather more and more evidence and our understanding becomes better, then we will need maybe to make changes. But I think what’s really important is that we don’t give Welsh Government such broad powers that we can undo all of the good work that we’re doing in setting the targets and meeting the targets. My concern was over some of the wording. So, there are a lot of very subjective terms there, like 'significant benefit', 'changing circumstances'. We’re giving them the power to consider the evidence without going to an independent panel about the nature of that evidence and to say whether or not that evidence is sufficient. And there’s also something in there about, basically, a cost-benefit analysis of this as well, over trade-offs between our biodiversity goals and our social and economic goals. So, my concern there is really around the wording and the need for that wording to be clearer and to be tightened up so that the those circumstances in which you can revoke or lower targets are much clearer.

But I wouldn’t want—and this is what worries me—following the elections next year, to be part of scrutinising legislation and seeing that, at any time, going forwards, the targets set—. I can’t see where we’d ever have a need to lower or revoke targets when we see the decline that’s happening. In the 14 years I’ve been here, it’s been like a train, just charging along. I can’t see us ever being in a situation where we won’t need stringent targets so that there’s no hiding place for Government or this body, or anything, because we want to see—. If you take hedgehogs, for instance, I want to see them come back, but they’re just on a constant decline. And Joyce—the beavers and things like that, we want to see those reintroduced. So, where or why would there ever be a situation where you could foresee, with what we know is happening by the species numbers that are going into decline—? Where can you see where we would ever be in a situation to revoke or lower a target, and do we need it in there?

I guess that I was thinking more about amending, rather than revoking it. I guess revoking it and putting in a new target was what I was thinking of. But I take the point.

But there’s a rather sad answer to your question, and it’s this: if you look at the biodiversity convention, we missed, by a long way, the targets set into that, and Steve was talking about the current round of targets until 2030 now, and we are way behind the game. It's going to happen again. Therefore, in the light of that, there is some inevitability to revisit and re-establish the targets. At the present rate of progress, they for sure will need amending.

Two things—one, a general principle, and the other a specific. There is a debate at Government level in the UK, through JNCC, that because we are now really, really struggling to hold on to the hedgehogs that you love and a whole range of other species, some of our emphasis should shift to life support and the ecosystem services that ecosystems deliver, which has some merits, in that it delivers some of the well-being that Bob wants to see, but it comes with a risk that we could probably deliver our life support with a very dramatically reduced array of species. So, there is some amendment that we might be forced into, rather like we have with climate change, to adapting to change rather than preventing it.

The other specific point is that the species complement of Wales and the United Kingdom is changing as we do suffer extinctions, but also as new species actually colonise the UK. So, there is a degree of rolling things forward to ensure that we are capturing representativeness, whether it's as a consequence of global change or extinction.

Okay. We've only got two or three minutes left, so did you want to come in briefly?

I just want to cross-reference this one, revoking and lowering targets, with a comment that you made earlier about tying also into the future generations, because this is where you've got your cross-reference here—which takes precedence? Is it the economic and social, or is it the sustainability? And this question really crosses both of those. So, my question is: where's the balance? It's not for you, it's for Government, obviously. And I understand the revocation of targets sometimes, because you need stronger ones. So, could we do something with the environmental targets, like the RSPB do with birds, and say, 'This is dangerous', and make it simple so that everyone can understand it?

Well, we have headline indicators, again, at UK level that are determined by arrays of bird species representative of different habitats. The environmental NGOs are quite effective at collecting long-term data that help with establishing targets, and my guess is that that's where JNCC will be drawing some of their indicators from, to help with the targets that we need to set.

Okay. We do have time for one very last question, and particularly maybe to you, Professor Lee, if I may. You suggest in your written evidence that a wider ranging duty to apply the targets to public authorities more generally would be preferable to the approach taken in the Bill, but how would that work in practice?

Yes, so Victoria was talking about amending and revoking and the element of cost-benefit analysis built into that, and one question is, 'Well, who's picking up the cost?' Now, if you look at the new section 6F to the Environment (Wales) Act 2016, then there can be designations of a public authority—it's written in the single—that we can designate a public authority to act. I would like either to see that extended so that it could extend to public authorities, so that we could be putting the same duty on a national parks authority and a unitary authority in the national park area at the same time. That would be one step forward. I think I might go further than that and try and place a duty on public authorities generally in Wales to discharge functions in such a manner that it fulfils the objective of halting and reversing biodiversity loss.

Okay. And on that thought, I think that's probably a good place for us to draw this session to conclusion. So, as always, can I thank the four of you for your evidence this morning? It's of great support for us as a committee; certainly plenty, plenty of food for thought, both received orally and in written form as well. So, you will be sent, of course, a copy of the draft record to check for accuracy. Thank you so much for your attendance this morning and we're very, very grateful. Diolch yn fawr iawn.

The committee will now break for 10 minutes, but we will be starting at 10.50 a.m., so maybe come back a couple of minutes before then, if you can. Diolch yn fawr iawn. Thank you.

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.