And so the first group of amendments to be considered relate to environmental principles and governance. Amendment 9 is the lead and only amendment in this group, and I call on Simon Thomas to move and speak to the amendment. Simon Thomas.

Amendment 9 (Simon Thomas) moved.

Thank you very much, Llywydd. I move amendment 9. I make no apologies for returning to an area that we discussed yesterday, but I won't rehearse everything that was raised yesterday either, but I just wanted to emphasise why we have returned to this issue. As Members will hopefully recall, although a great deal has happened since yesterday, the Bill as it currently stands doesn't include a specific reference to some of the environmental principles that underpin current European legislation.

Now, the Government's argument yesterday was that we have legislation in Wales that either derives from the European Union or directly Welsh legislation that has been drawn up in the context of European legislation that would do the job, and I'm not convinced that that's sufficient. And, if you like, the position that I and Plaid Cymru are taking here was endorsed just half an hour ago in the Scottish Parliament, where an amendment similar to this was passed by the Scottish Parliament, placing environmental principles on the face of their Bill in the Scottish Parliament. And who moved that amendment? A member of the Labour Party—a member of the Labour Party against the SNP Government in Scotland. So, we have the Labour Party in Scotland wishing to place environmental principles on the face of their Bill, and you have the Labour Party here rejecting an amendment that does exactly the same thing. Well, there is no consistency there, so I make no apologies in returning to this point.

The amendment that you have before you today is different from the one you had yesterday—it’s better, if anything. Of course, we’ve had at least 24 hours to think about it. It’s not better for the Government, because they will reject this even more robustly. But the part of the amendment that’s different on this occasion is clause 4, which relates to placing a duty on Welsh Government Ministers to seek to do what I referred to yesterday, but wasn’t included within the amendment yesterday, namely to close the governance gap in this area. As we leave the European Union, as I said yesterday, there will be no direct right for Welsh citizens now to go immediately to the European Court of Justice on some of these issues, and we don’t know what the Westminster Government will put in place of that. We don’t know what will be put in its place. And therefore this amendment has a clause added to it, which ensures that those functions that were carried out by the Commission and the European Court of Justice should now remain for public authorities in Wales, and that there will be a duty on Welsh Government Ministers to seek to do that. We can’t bind anyone because we are leaving the European Union—this Bill is just a continuity Bill; it can’t add anything that isn’t already there. But the point that we make is that it is already there. We already have this access to the European Commission and the European Court of Justice.

I asked the question on this issue directly to Lesley Griffiths today—the complaint from Afonydd Cymru, the six river trusts in Wales, about the state of Welsh rivers. They have the right to go to the Commission. I’m sure the Government has a very good defence, but they have that right to approach the Commission. When we leave the European Union, we’re not sure what those rights will be. So, that amendment closes that gap, to a certain extent, but in an appropriate manner, and restates those environmental principles that I covered yesterday.

Jenny Rathbone. [Interruption.] Neil Hamilton. 

Diolch, Llywydd. Well, I adopt my traditional role of being a friendly, disputatious neighbour of Simon Thomas in this particular instance—not that I'm opposed, obviously, to having a high level of environmental protection. Anybody in his right mind wants that; we all live in this world, and we all want to be protected against the ills that come from pollution. But I am a bit worried about the nature of the precautionary principle when it's inserted into law. This is something that was inserted into European law as a result of the Maastricht treaty in 1992, and what I think it seeks to do, actually, is to remove the balancing process that should be at the heart of what we do in deciding on environmental policy. There are a number of problems that this can create because, in the first instance, of course, it can block innovation if it's applied too strictly. If we had applied this rule back in the nineteenth century, we may never have seen steam engines appear, or railways. And, indeed, we would never have removed the man with the red flag who used to precede motor cars until 1896, as a result of which legislation to remove we have the London to Brighton car run every year. A fear of the unknown, of course, is a problem—or can be. And, yes, we should always, of course, want to have a high level of environmental protection, but we should weigh that up against the cost of doing nothing, and the cost of alternatives that are available. So, if we apply this principle without regard to that, then we are actually, perhaps, making things worse rather than better.

Just take an example: if we, as they have done in Germany now, decided to bring an end to nuclear power generation—that has led to greater reliance upon fossil fuels. And if you accept the man-made global warming theories, that could, of course, produce a worse outcome in environmental terms, not a better one. Indeed, Germany is building a large number of new coal-fired power stations whilst it's closing its nuclear generation, and also becoming more dependent—and this is another geopolitical issue of great topical interest—upon Russia for gas supplies. So, there are all sorts of reasons why we might not wish to apply the precautionary principle with too great a rigour. Why is it safer or more precautionary to focus on the potential harms of new activities or technologies, without reference to the activities or technologies that they might displace? There is no a priori reason to assume that newer technologies or less-known risks are more dangerous than older technologies or familiar threats.

This principle, applied in the United States, has led to some very curious cases indeed. In the face of scientific uncertainty, some formulations don't specify any minimum threshold of plausibility or risk that acts as a triggering condition, so that any indication that a proposed product or activity might harm health or the environment is sufficient to invoke the principle. There was one interesting case called Sancho v. the US Department of Energy, where a litigant began a lawsuit, which included the popular worry that the large hadron collider in Switzerland would cause destruction of the earth by a black hole. I mean, this was seriously litigated. It was, fortunately, thrown out by the judge eventually. But when we introduce broad principles of this kind that are capable of giving rise to sometimes complex litigation, we set a hare running and we don't know where it's going to end. So, whilst I believe that proper regard for the environment must be upheld, it's got to be done, always, on the basis of science and a balance of risk.

So, whilst I'm not opposed to the principles that Simon Thomas's amendment seeks to cause us to focus upon, I do think that if we were to accept it, it would impose upon the Government too onerous a responsibility and would actually, in a sense, deprive us as legislators of one of our primary functions, which is to be the balancing and judgmental grouping that, ultimately, in the name of the people, decides what's best for our country.

I have no problem whatsoever with the principles as they're outlined in the amendment, and as it's drafted, and to that extent, in its drafting, it is a good amendment. It is just that it is a wholly inappropriate amendment in this particular piece of legislation.

I have to say, from my personal view, had this been an amendment that came before the Constitutional and Legislative Affairs Committee, there would've been issues that we would've wanted to consider—would've had to consider—as to the implications and how it relates to some of the competence issues. What I would say is that our Bill is not the same as the Scottish Bill; they are not replicas of one another. The drafting is very, very different. In fact, I think the drafting of our Bill is actually significantly better than the Scottish Bill. I think it is more comprehensive than the Scottish Bill, but establishing these particular principles in this particular way, what that will do is it will apply into areas that may well have unforeseen consequences, particularly in application to those areas where there may be grey areas as to whether they are matters for us or matters for the UK Government, or across, whether they are grey areas. If that were the case and if this matter were then to be referred, in some way, to the Supreme Court, they would become, indeed, quite significant issues.

Now, we might well win those, but what I would say is that this is a constitutional Bill of such constitutional importance to Wales that I'm not prepared to support a gamble—

We're embarking on this huge constitutional Bill with a matter of profound principle that has been placed into the Scottish version of, well, their Bill, and you're now saying we don't have time to really examine these things and fully consider them. So, isn't this whole procedure an utter sham?

Well, no. In actual fact, David, as you well know, what I'm doing is commenting on an amendment that's put in that has not been raised previously, an amendment that could be raised at any stage in any piece of legislation, and I'm also reminding you, of course, that the Welsh Bill is different from the Scottish Bill and has adopted a different approach. What I'm actually saying is that because of the importance of the constitutional issue to this Assembly and to the legislation that is going through Westminster, it would be reckless to actually put that on the table and to take that particular gamble with the constitutional status of this Bill. For that reason, I think it is an inappropriate amendment and one that I would oppose.

I call on the leader of the house, Julie James.

Well, I was going to start by thanking Members for their contributions, but I'm a little hesitant to do that. I am, though, grateful that Simon Thomas has again demonstrated the great importance the Assembly places on ensuring the environment in Wales is preserved for future generations, and I'm grateful for that, because, as a Government, we do wholeheartedly agree with the sentiments behind the amendment. We've been clear and consistent in our message that Brexit must not result in any dilution of the rights that currently flow from our membership of the EU or of the standards that apply across member states. This includes environmental standards.

I referred yesterday, during the Stage 2 debate, to our proven track record on the environment. This includes the Environment (Wales) Act 2016, which provides an important overarching framework for environmental protection in Wales. The Well-being of Future Generations (Wales) Act 2015, a landmark piece of legislation, will guide our use of the powers in the Law Derived from the European Union (Wales) Bill. It places the environment and sustainable development at the heart of our Government here in Wales. I emphasise again how Lesley Griffiths, the Cabinet Secretary for Energy, Planning and Rural Affairs, has already made clear that we are committed to maintaining and enhancing environmental standards, and we will continue to build on the positive outcomes we have achieved to date. This clearly demonstrates the Government's commitment to the environment.

While we are unequivocal in our support for the environmental principles cited in Simon Thomas's amendment, we have to consider the amendment in the context of the Bill before us today and recognise the implications that passing the amendment would have. The LDEU Bill already sets out how the various types of EU law are to be converted into, and secured within, our domestic legal system after we leave the EU. Because environmental principles do not have a single legal status or effect, this Bill will apply differently to them, depending on the matter at issue. For example, the precautionary principle, as a general principle of EU law, is given effect by section 7 of the Bill. It requires that all EU derived law must be interpreted in accordance with it. The polluter-pays principle will be subject to section 5 of the Bill and will continue to be part of the domestic law in Wales after exit.

The amendment Simon Thomas has tabled today differs from the amendment he tabled at Stage 2 in one important way—and you made specific reference to this. It makes reference to environmental governance and the functions currently carried out by EU institutions with regard to the protection of the environment. Can I reassure Members that we are absolutely committed—although I'm not sure I'm reassuring Neil Hamilton, but I reassure everybody else—that we are absolutely committed to ensuring that we do not leave any gaps in environmental protections after we leave the EU? It's in all our interests to ensure that, for example, any environmental damage continues to be monitored and that action to enforce the law is taken. This Bill confers all the powers needed to transfer any existing functions relating to the policing, monitoring or enforcement of all environmental EU law. 

Llywydd, the primary purpose of this Bill is to fill the legislative gaps that will arise as a result of the UK leaving the EU, including those in relation to the environment. This is a Bill designed to provide legislative continuity as we leave the EU. It has been introduced to this Assembly via the emergency procedure, and, as such, there has been minimal time for scrutiny of new and emerging issues. This is not the vehicle to provide for the new legislative framework for the environment post Brexit, which this amendment seeks to do. [Interruption.] Well, I can hear David Melding muttering from below. I was glad to see him take part in the debate today—I will take an intervention.

You now have the audacity as a Government to make a virtue of the fact that you used an emergency procedure, which, of course, doesn't mean you can actually scrutinise things properly. That's what you've just told Simon Thomas. I mean, it is shambolic.

Well, I think that's really interesting, because, of course, the reason we're using the emergency procedure is because of the UK's shambles in negotiating our exit from the EU, and that's what's driven us into this position.

Llywydd, there are a number of other issues that have informed the Government's decision not to accept this amendment. Firstly, we recognise the importance of the environment; it's not the only important area of law governed at the EU level. If we were to accept this amendment, we would be giving prominence to the environment above and beyond a number of other extremely important issues, such as social rights, workers' rights and protected food names, just by way of some examples. We do not believe it would be right to start specifying a non-exhaustive list of important matters, as it would begin to cast doubt on the scope of the powers contained in the Bill, which I'm sure is not the intention of the amendment.

The second issue I must highlight is the amendment's far-reaching implications. It would apply to all functions under the Bill, not simply the regulations made under sections 3, 4 and 5. It would include other functions contained in the Bill, such as the function to provide consent to subordinate legislation made by UK Government Ministers under sections 14 and 15, powers to specify fees and charges and the power to specify exit day. Of greater concern, however, is its application to section 4 of the Bill and the power to restate EU derived enactments. These include legislative and executive functions covering a very broad range of subjects. If the amendment was passed, these functions would all, for the first time, be the subject of a new duty to have regard to these principles. These principles and governance duties would not be limited to the steps we take now as the UK leaves the EU, but would apply well into the future. This amendment goes well beyond the stated purpose of this Bill, which is to ensure continuity. Because we are taking this Bill through using the emergency procedure, we have not had the usual opportunity to scrutinise this amendment properly or to consider its impact on the extension of the scope and purpose of the Bill.

The third issue is that it creates an avenue of legal challenge to the exercise of powers under the Bill, but also in relation to existing powers contained in a broad range of enactments. The risk of challenge would arise in relation to possible failures to adhere to what is a broad-ranging set of principles that are specified in the amendment. We have not been able to analyse what the full implications of this amendment are and how it impacts on all of the existing functions across the broad range of subjects it would apply to, not just in the short term, but in many years to come. We cannot, therefore, support it. [Interruption.] I wonder, David, how you feel about the UK withdrawal Bill, in that case.

I want to conclude by giving Members this commitment: this Government will take the first proper legislative opportunity to enshrine the environmental principles into law and close the governance gap. I would hope, on the basis of that commitment, and in the knowledge that the Government fully supports the sentiments behind this, that Simon Thomas will feel able to withdraw his amendment. Diolch.

Simon Thomas to reply to the debate.

Diolch yn fawr, Llywydd. Can I start with the positive and just say that I do welcome the political statement, if I can put it that way, made by the leader of the house, around no dilution of environmental standards and—what she has just concluded in saying—to seek an early legislative opportunity—presumably after we have left the European Union, that is—to restate some of these principles?

I'm pleased we did retable this. It's allowed new ideas to come into the debate; not all of which I agree with, but at least new ones. I have to say to Neil Hamilton that I don't think he really understands how the EU precautionary principle is utilised. Most of his examples were from America, where an Uber self-driving car has just knocked down and killed a pedestrian, of course. So, there is perhaps a lack of precautionary principle in Arizona—that's for certain.

We need to focus on what we have here. The precautionary principle is not a stop to development, otherwise Jane Hutt would not be asking questions about an incinerator in Barry. Otherwise, we wouldn't be asking questions about a new M4 motorway. We wouldn't be asking questions about ancient woodland in Northop being demolished for another new road. The precautionary principle does not stop development. It makes you think of development in the light of future generations, and that's what our foundational Act of the well-being of future generations is. That embodies a lot of the precautionary principle in the action that it does, and I don't think that necessarily restating these on the face of a Bill is, in itself, defective.

Now, if the amendment itself is defective—gone too far or not good enough—then the Government could, of course, table its own amendment. That's what I hoped would happen. I hoped to flush that out, and I was unable to do that, and I regret that, because when we look at what's happened in Scotland—. Yes, it's a different Bill to that in Scotland; they have the different powers model, of course. We're getting this through just on our own old powers model. Nevertheless, the political commitment in Scotland is very clear. So, who tabled it? I said a little earlier that it was a Labour Member, but it was a Labour Member with the support of the Liberal Democrats and the Greens. And we have a coalition Government here that has a Liberal Democrat in it, somebody who describes themselves as an independent environmentalist, and the Labour Party. This is exactly the coalition that's tabled these amendments within the Scottish Parliament, and I just don't see why this Welsh Government has not moved that one step further and brought forward their own amendments to deal with this. Because if this one doesn't work, and the Scottish Bill is different, bring forward an amendment that does work and suits this Bill. 

And if I might conclude on my final point, because members—. You know, members of the Government bringing forward this emergency Bill are tired. Are you tired? Do you want to go to sleep? Are you tired, Alun Davies? Do you want to go to sleep? 

You're boring me.

I'm boring you, am I? Well, I'm sorry I'm boring you. I'm sorry I'm boring you about something that you think is so important that you'll bring it forward as emergency legislation. I'm so sorry it's boring you.

Are you taking an intervention?

From Alun Davies? Certainly.

No, from Mick Antoniw.

From Mick Antoniw. I was just about to deal with Mick Antoniw's points, but if he wants to intervene before I deal with them. 

Yes. I'll just make this point that if there is any merit whatsoever in the argument, 'This might cause difficulty for the Bill at a later stage,' is it a gamble you're prepared to risk the whole of the legislation on, on the basis of a luxury?

From a Member who introduced an asbestos Bill that went straight to the Supreme Court and cost £60,000 to this Assembly, that is a bit rich.

What relevance does that have to this legislation?

That's a bit rich. It's not—

What possible relevance does that have?

Would you like to intervene again and explain? You persuaded this Assembly to support the Bill that went straight to the Supreme Court.

No, I did not. With respect—with respect—the Member has got it wrong, as he has got so many things on this wrong. It was a recommendation from the Counsel General, and it was appropriate because of specific circumstances. It has no comparison whatsoever. The point is: are you prepared to gamble with what is the most important constitutional piece of legislation we've had in this Chamber?

Such an important piece of legislation that your ex-natural environment Minister just yawns and says he's tired and bored with it. [Interruption.] That's how important it is. [Interruption.] I'm starting to think that maybe the Conservatives have a point here: maybe the Government's not taking this seriously.

I think you need to focus on amendment 9 now, Simon Thomas. Finish your responding to the debate.

Well, amendment 9 will not—. If it is included in the Bill, amendment 9 will not damage the Bill in the Supreme Court, because the Member who did bring forward the asbestos Bill, and was the Counsel General for a while, knows full well that the Supreme Court does not throw out whole Bills when one amendment is found, or one clause is found, to be defective. It simply adjusts the Bill. He knows that. Therefore, there is no danger that this Bill will be rejected by the Supreme Court if one aspect of it—this amendment, included in the Bill—is found to be defective. Therefore, I hope the Assembly supports this amendment.

The question is that amendment 9 be agreed to. Does any Member object? [Objection.] We'll therefore move to an electronic vote, and I call for the vote to be opened. Open the vote. Close the vote. In favour 19, one abstention, 33 against. Therefore, amendment 9 is not agreed.

Amendment 9: For: 19, Against: 33, Abstain: 1

Amendment has been rejected