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National Assembly for Wales (Legislative Competence) (Environment) Order 2010

Volume 716: debated on Tuesday 26 January 2010

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the National Assembly for Wales (Legislative Competence) (Environment) Order 2010

My Lords, the order has been approved by the National Assembly for Wales and was debated in the other place last week. It has had the advantage of pre-legislative scrutiny by the Constitution Committee of this House, by the Welsh Affairs Committee in the other place and by a committee of the National Assembly for Wales. Therefore, whatever anxieties were harboured about the previous order, I can certainly give this one a clean bill of health in terms of effective scrutiny. It deserved such scrutiny because it is an order of obvious importance, and the draft order has been improved as a result of that scrutiny. I shall return to the changes in a few moments when I have established a number of other matters.

In the debate in the other place, Members noted that although the order has been simplified to an extent as a result of scrutiny, it remains complex. Indeed, the Government are obliged to accept that the order is complex. This is not surprising given the wide-ranging nature of its subject. After all, it encompasses many aspects of environmental policy and touches on a large number of policy areas, including energy, transport and defence. I notice that, in the environmental policy, it touches upon aspects of the treatment of waste. The last time I appeared in this Committee Room to deal with a waste order—admittedly for England—I had an extremely difficult time. Such was the complexity of the order and the questions addressed to me, I can vouch that this area of environmental policy produces issues that are complex to deal with.

Environmental challenges such as air pollution, litter and waste management affect us all. The Welsh Ministers currently have a wide range of executive powers related to the environment but these powers are somewhat piecemeal, with gaps preventing the Assembly Government delivering specific policies and restricting reforms to particular areas of environmental regulation. For example, in the area of waste management, Welsh Ministers do not have the power to ensure that high priority waste materials are prioritised for collection, or to prevent key recyclable materials being sent to landfill. Every Member of the Committee will know about the drive across the whole of government to reduce the use of landfill and to ensure that that which can be recycled is recycled.

The order would give the National Assembly for Wales a power to make its own laws—assembly measures—to protect and improve the environment, and to legislate to help the Assembly Government implement its environmental strategies and create a more sustainable Wales. The democratic process would also be enhanced by enabling the Assembly to decide on legislation over the environment, an area where Welsh Ministers currently have powers and the Assembly none. The order will provide competence to legislate to protect and improve the environment in three main areas—waste, pollution and nuisances—which affect the quality of the local environment.

Matter 6.1 relates to:

“Preventing, reducing, collecting, managing, treating or disposing of waste”.

Matter 6.2 relates to:

“Disposal of waste in the sea where the waste has been collected, managed or treated on land”.

Matter 6.3 relates to:

“Protecting or improving the environment in relation to pollution”.

Matter 6.4 relates to,

“Protecting or improving the environment in relation to nuisances”,

which are further defined in the order.

The order includes a number of fixed, or specific, exceptions to each of these matters, and general, or floating, exceptions which apply to all matters in Schedule 5 to the Government of Wales Act 2006. These reflect the need to specify the often quite complex boundary between devolved and non-devolved areas of policy relating to the environment. Every Member of the Committee will be only too well aware of the difficulties attendant upon that.

The committees which scrutinised the proposed order made a number of recommendations which were largely concerned with making the order easier to understand, providing clarity about what is within and outside the Assembly’s competence and avoiding unnecessary duplication. We made a number of changes to the order following that level of scrutiny, which was extremely helpful to us, and they are reflected in the final draft before the Committee today. The changes are the result of careful consideration of all the recommendations by both the Government and the Welsh Assembly Government.

The first change is to create two matters dealing with waste, rather than having the single waste matter contained in the proposed LCO. Matter 6.1 now deals primarily with waste on land and Matter 6.2 deals with waste on land which is disposed of in the sea. The change has been made to help to clarify the scope of the Assembly’s competence over waste. It has also enabled the definition of “Wales” to be rationalised so that it is the same as that which has applied in other LCOs. Scrutiny of the proposals both in the other place and in Cardiff Bay highlighted this as an area of concern. We think that we have now addressed it.

Secondly, a number of exceptions and definitions have been removed from the legislative competence order, and others have been clarified to sharpen up their meaning. This reflects the concern of the scrutiny committees that the order should not be so technical and complex as to become unintelligible and inaccessible to the lay reader. I am all too conscious of the fact that orders present a challenge to all noble Lords when they address them in debate; we must have even more sympathy for the lay reader who has an interest in these matters. If ever I saw a number of representations from members of the general public, they related to the difficulty of understanding regulations around waste management, and of course some of it reflected a clear interest on the part of those who earned their living from the field. If we are to engage the general public in constructive action on the environment, we must make absolutely certain that they understand just what we are driving at and what they are meant to do. No area is more important in these terms than waste management.

I assure the Committee that the legislative competence order includes only those exceptions and definitions that we consider to be absolutely necessary; that is, necessary to ensure that the legislative competence being conferred is accurately described and that the boundaries between devolved and non-devolved areas of competence are quite clear.

I am pleased to note that the Welsh Assembly Government have recently published a short guide to the order, which is available on their website. A key recommendation arising from the scrutiny of this LCO was that easily readable guidance be prepared for the lay reader to understand it better.

Concerns were also expressed during scrutiny about the general, or floating, exceptions that the LCO inserts into Schedule 5. The Government and the Welsh Assembly Government believe that it is necessary to include the exceptions in the order. They would apply to all matters in Schedule 5 to the Government of Wales Act 2006 but have a particularly strong relationship to environment policy, especially to pollution. Assembly measures which may be passed using the powers conferred by this LCO may have a direct bearing on electricity generation, nuclear power, road transport, shipping, aviation and water policy. Including these general exceptions clearly delineates the respective roles of the Government and the Welsh Assembly Government in areas of policy that impact on the environment. This will enable us to work together in a co-operative and co-ordinated way, as we take the work forward.

The majority of exceptions fall within three key areas of national policy interest—energy, transport and defence. The exceptions in a fourth policy area, the marine environment, reflect the fact that the legislative regime for managing the waters around the United Kingdom—including important new roles for Welsh Ministers, which we debated during the passage of the Marine and Coastal Access Act 2009—has been set out recently in that Act.

The Committee will appreciate that, although the order remains relatively complex, the changes that we have made simplify it and make it easier to understand. Importantly, none of the changes significantly affects the scope of the proposed competence being conferred on the National Assembly. Further detail on the rationale for the effect of each exception is provided by the Explanatory Memorandum. Pre-legislative scrutiny has helped us to refine and improve the draft order now before us. It is wholly appropriate that the National Assembly would be able to legislate on waste management and environmental protection improvement. Accordingly, I commend the order to the Committee.

My Lords, the Minister is absolutely right to say that this complex-looking order was thoroughly discussed and considered in a committee of the other place as recently as last Tuesday. It also featured as a case study in the Welsh Affairs Committee report of 15 January entitled, Review of the LCO Process. The order is closely related to the committee’s key finding that LCOs must be more user-friendly and that a more straightforward approach to drafting is required. Those who have studied this document will readily agree. The Minister implied that he also agreed.

Incidentally, the chairman of the Welsh Affairs Committee, Dr Hywel Francis MP, and its Members are to be highly commended—if that is not out of place—for their scrutiny and development work to improve the quality of LCOs over recent years. Similarly, our own Constitution Committee, which until recently included the noble Lord, Lord Rowlands, has done sterling work in the same field and we are all indebted to it.

On the content of the order, all I have to say is that the National Assembly and the Welsh Assembly Government must be aware of the havoc that the recession is causing to our industrial landscape in Wales. We can no longer take great companies and employers such as Bosch at Miskin and Rio Tinto at Holyhead as semi-permanent features of that landscape. Nor can they be replaced in a hurry—and who knows what further damage is yet to come? Today’s announcement of 0.1 per cent growth in GDP in the last quarter of last year does not give us much clearance from the recession, although technically we are out of it. However, even now and later this year unemployment may well rise and companies continue to fail.

Many of the Assembly’s environmental policies and ambitions were formed in the decade of comparative prosperity and reflect those benign conditions which, alas, no longer prevail. For example, the Explanatory Memorandum talks about the environment strategy setting,

“the direction for the next 20 years”,

and establishing a,

“framework to achieve an environment which is clean, bio-diverse healthy, and valued by the people of Wales”.

I suggest that the havoc caused by the recession may well affect any such strategy with a 20-year perspective. In other words, much of the content of the environmental policies described in the policy background section of the Explanatory Memorandum attached to the order will almost certainly have to be adapted—and so will the mindsets behind these policies as the need to provide jobs, preferably in wealth-producing units, becomes ever more pressing. Those are my comments on this order. I shall not go into the detail of it; I accept the ample explanation that the Minister has given.

My Lords, this is an extremely complex LCO. Even after the massive scrutiny that has taken place on it, when contrasted with the previous LCO that we considered on modifications, this is a much more complex order. Witness the massive length of the Explanatory Memorandum document. It clearly affects the Welsh environment and waste disposal.

When looking at this LCO in the other place, my colleague the Member for Ceredigion said that,

“it will enable the Welsh Assembly Government to pursue with coherence, and with an holistic approach, the areas of prevention, reduction, collection management, the disposal of waste and the protection and improvement of the environment in relation to pollution and nuisance”.—[Official Report, Commons, 19/1/10; cols. 9-10.]

If we look at what is in front of us—for example, in describing its legislative context—I note that it covers no fewer than 10 Acts of Parliament and eight European Union orders. In the UK context, I note that it stretches from the Clean Air Act to the Anti-social Behaviour Act. Much of the legislation covers waste management, and the overall context is that of the One Wales programme of government. It also incorporates sustainable development—a commendable objective—and specifically addresses climate change, including carbon reduction objectives.

The LCO adds to exceptions already contained in the Government of Wales Act 2006 and takes amendments on carve-outs from existing exceptions that relate to listed matters. Although I can see why it has become necessary to do this, largely because of new matters introduced by the Assembly that impact on existing legislation, it still seems overcomplicated to me. Indeed, I also commend the work of the Welsh Affairs Select Committee in doing much of the spadework to make this LCO more understandable. In fact, that demonstrates the value of close scrutiny and amendment.

Issues such as pollution and environmental harm are clearly important. The need to define the meaning of the implications for the environment in this LCO’s contents is very detailed indeed. The noble Lord, Lord Roberts of Conwy, addressed the question of the downturn in the economy and its impact on Wales. All I can say is that there are not enough companies based in Wales with research and development capacity. We have an enormous mountain to climb in terms of entrepreneurial activity that is based in Wales. The noble Lord, Lord Roberts, referred to the departure of Bosch and other important matters. I remember an occasion when LG was welcomed to Newport, but it never took off.

We have to work very hard to ensure that we have our own industry, our own basis and our own employment opportunities in Wales. I can see, however, that under this LCO lawyers and inspectors will be scanning this legislation and its detail with a great deal of interest. Let us hope that, in the environmental and public interests of Wales, they reach the right conclusions. This legislation is required and I hope it will be interpreted rather more simply than it appears to be in these documents.

My Lords, anybody who reads the Explanatory Memorandum will realise—because it spells it out very well—that the transfer of environmental powers is long-standing, considerable and pre-dates the establishment of the Welsh Assembly by many years. Old Welsh Office Ministers started gaining such powers under the Control of Pollution Act 1974. Even before that, I had the privilege, in my ancient ministerial days of 1969 to 1970, and from 1974 to 1975, of leading the Derelict Land Unit. It was established in the wake of the terrible disaster at Aberfan to deal with both the justifiable fear of the dangers of tip waste and the scarring of the landscape. It was a remarkable success story of innovation and imagination, and pioneered much work in the technology of tip clearance and dealing with old coal waste.

We are not in new territory at all. First, Welsh Office Ministers before the establishment of the Assembly exercised considerable environmental powers, devolved to them by extensive legislation listed, as the noble Lord has explained, in the Explanatory Memorandum. Secondly, as the memorandum also explains, Welsh Office Ministers, and now the Welsh Assembly, have important roles in designating the designation orders under European Union law. Thirdly, Assembly Ministers have inherited an extensive range of powers in subordinate legislation to be able to use such legislation as a result of the earlier legislation. I utterly support and endorse the content of this LCO. All that the order will do is match the executive powers that have been transferred, and the transfer of functions of one kind or another over many years, giving a legislative competence that mirrors those executive orders and powers. Therefore, I wholeheartedly support the thrust and intention of the order.

Quite rightly, the Select Committee on Welsh Affairs and the Constitution Committee raised several concerns about the original draft order. If we can pass messages to those who will enjoy the power of legislation at the Assembly, I hope that when the Assembly Government come to draft a measure flowing from this order, they take particular note of paragraph 33 of the Select Committee’s report about cross-border issues. The report says:

“There is some potential for Measures brought forward on the basis of this LCO to give rise to cross-border issues in relation to business and with regard to possible perverse effects of differences in regulations for environmental problems, such as fly-tipping”.

Although it should not involve any amendment to the LCO, I hope that that particular concern will be expressed when the measure that flows from the order comes to be drafted. We do not want businesses worrying that the law across the border will be so different that they find it difficult to operate in any context, let alone that which the noble Lord, Lord Roberts of Conwy, noticed.

While I am a passionate supporter of transferring the powers, I was surprised that, for the second time at least, the original LCO dealing with the environment contained a whole host—a clutch—of exceptions in fields totally unrelated to the environment. The Constitution Committee had previously expressed considerable concern in relation to the carers order about dumping into orders which have well defined purposes a list of exceptions totally unrelated to them. In the original draft environment order, there were fields for economic development, highways and water and flood defences, all of which it has now been accepted are not relevant to the point and purpose of the order and have thankfully been removed.

As my noble friend rightly said, it is not our duty to get involved in drafting measures, but let us send a gentle but stringent message to drafters of future LCOs that we will be vigilant and liverish if we see draft orders, such as the carers order and with the original draft of the environment order, including things that are totally or virtually unrelated to their specific subject and content. We do not want another set of unrelated exceptions pushed into a future order that have no bearing on the main purpose. I hope that that important message will go to the Assembly.

Otherwise, as the noble Lord, Lord Roberts of Conwy, observed, and as the interesting review of the LCO process in the Select Committee’s report reveals, an amazing convergence and consensus have developed around the way in which we scrutinise orders. I support the positive comment in that report about all the committees involved in the scrutiny—I suppose that I am being boastful, because I had a minor part in the process—that:

“It is a matter of record that on every occasion so far the observations of these committees have been constructive, complementary and consensual, and the Welsh Assembly Government has responded positively. There is no doubt that almost all the LCOs so far passed into law have been improved as a result of the scrutiny process”.

That has been verified. I think back to the Welsh language competence order, which became a very different animal as a result of proper scrutiny. Here is another example of an order that has benefited considerably from the process of scrutiny that has been put in place. Therefore, I fully support the point and purpose of the order, but I also support the invaluable scrutiny that has amended the original order to make it much more palatable today.

My Lords, I am grateful to noble Lords who have indicated their broad support for the order while identifying some criticisms which need to be taken on board. In some cases, I would think that they have been taken on board. I very much appreciate the point made by the noble Lord, Lord Roberts, about the contribution of others to the committee’s deliberations to improve the order.

We owe the Welsh Affairs Committee a government response to its report, which we will provide in due course. I second the proposition put forward by the noble Lord that we should note the valuable work that it does, which is of great assistance as far as matters in Wales are concerned.

The noble Lord, Lord Roberts, was right to indicate that these are difficult economic times and that Wales, in the same way as the rest of the United Kingdom, must look towards to its enterprise laurels to ensure that it creates new jobs, new enterprises and new productive capacity, and recovers from what is after all the worst recession for more than a generation.

However, the environment and environmental challenges also produce opportunities. An awful lot of enterprises are going to be concerned with how we meet the challenges of climate change, and not least the whole question of how we generate energy. The important thing is that the United Kingdom, and Wales in particular in this case, should be at the forefront in grasping those opportunities, although I am only too conscious of the very serious effects of the withdrawal of a major employer such as Bosch from Wales, with a serious loss of jobs. The noble Lord, Lord Livsey, is right that it was a matter of regret that LG did not eventually invest in Newport. He has always been an extremely fair analyst of these situations. I was involved in politics in Newport at that time and he will know just how strenuously everyone concerned bent every sinew to try to land what would have been a very impressive investment in Newport and more widely in Wales. For a long time, we lived in serious expectation that we would be successful. I hasten to add that what caused LG to make a different decision had nothing to do with environmental considerations, or anything like that. However, it reflected the obvious fact that there is always some tension between investment and development and aspects of the environment.

I accept the point made by the noble Lord, Lord Roberts: we have to be aware that there is no legislation without cost, and environmental legislation also involves some costs. Of course, we will also reap the ferocious costs of failure to tackle environmental issues successfully, which is why we should applaud the fact that Assembly Members are eager to take on board the powers that will give them the opportunity to do their best for Wales in these very challenging circumstances.

The noble Lord, Lord Livsey, went on to identify that it is necessary to have a holistic approach towards environmental issues, and of course that means that matters become complex. The interrelationship between different factors can add to the complexity, and therefore the Government are bound to accept the anxieties expressed by every noble Lord who has spoken in the Committee about the complexity of this order and the challenges that it presents. We should be about ensuring that orders are eminently comprehensible by the ordinary man and woman in the street, as well as by those of us who spend a great deal of our time seeking to master the detail.

I was grateful to my noble friend Lord Rowlands for reminding us that 30 or 40 years ago, before the age of devolution, Ministers in Wales wrestled with these issues and had to meet these challenges. I think he would be the first to recognise that they are probably now more challenging. The whole environmental relationship to the age of climate change is more demanding. There is an impact on the economy and a necessity for change, and none of us pretends that change is easy. Change imposes burdens on people and presents difficulties. I very much bear in mind his vast experience of that period of time and thank him for reminding us that Welsh Ministers had to address these issues on behalf of the country, but these are particularly challenging times and it is good to see the Assembly seeking these powers to enable it to meet those challenges.

My noble friend Lord Rowlands raised an important cross-border issue. Of course, certain environmental issues know no borders—least of all the one between England and Wales—but he is absolutely right about the pernicious and gruesome social offence of fly-tipping. You cannot go any distance from a serious farmer’s farmhouse without him saying that one of the problems that he has got to face is people using his land for illegal fly-tipping and that the cost of clearing it up after it has been dumped is considerable. I appreciate the point my noble friend raised and I have no doubt that the Assembly will have to address that dimension.

My noble friend Lord Rowlands has vast experience on the matter of exceptions because he served on committees which scrutinised a range of these issues. The exceptions were included because they are relevant to the matters which the Assembly is taking on board. The original proposed LCO applied transport exceptions to the environment matter. The exception does not have to be in the same field. Of course it is more appropriate if it is related to the same field because it is easier to justify, but it does not have to be directly in the same field, and issues such as transport, energy and water interrelate very closely with the environment. It is not surprising, therefore, that it should have proved necessary to include exceptions in those areas. However, I take on board the point that he made. I have no doubt that the work of the committee on which he used to serve, together with the scrutiny that we are involved in when dealing with legislation at this stage and the constant pressure that we should exert to make our legislation intelligible, will impact on those doing the work in the Assembly and the draft legislation with which they are concerned.

We will not engage our communities unless our legislation is perceptive, comprehensible and fits the purpose for which it is intended. We all realise that in the real battle for the environment, education and understanding are almost the most important dimensions of all. We will not get conscious and effective public action unless the public are fully engaged, and getting the legislation right and comprehensible is very important in those terms. I thank noble Lords for their contributions.

Motion agreed.

Committee adjourned at 6.50 pm.