3. Will the First Minister make a statement on the Well-being of Future Generations (Wales) Act 2015, in light of comments made today by Rhodri Williams QC describing the legislation as 'toothless'? 314

The Well-being of Future Generations (Wales) Act contains binding legal obligations and is driving a positive change in how public bodies make and implement decisions that affect the people of Wales and our environment now and in the future.

Thank you for that very broad response, Deputy Minister. It is a fact that a judgment does sit there now that has been handed down by the High Court, which calls the Act, 

'deliberately vague, general and aspirational and which applies to a class rather than individuals.'

What is really important is that, in light of this judgment, do you as a Government now believe that the Act does need to be tightened up so that it does confer stronger rights to individuals and communities, given that that judgment sits there, or do you believe the judgment is correct and that you, as a Government, deliberately put an Act down that was vague and was general and was more aspirational?

The well-being of future generations Act is about improving the social, economic, environmental and cultural well-being of Wales, now and into the future. Of course, the interpretation of the law is a matter for the courts, but the Act does provide for enhanced scrutiny, not just of the Welsh Government through the powers of the Future Generations Commissioner for Wales—an independent commissioner—but also the examination duty on the Auditor General for Wales, and it's improving decision making, both in the short and longer term through the five ways of working. It's designed to support 44 public bodies in Wales to make decisions.

The well-being of future generations Act is well regarded, not just in Wales. I met with the third sector today keen to embrace those ways of working, keen to make it work. Worldwide, it is highly regarded as something where Wales is leading the way, and indeed it is an opportunity in terms of making real change. And if you look at the powers of the future generations commissioner, they're very clear. The commissioner's role is to act as a guardian for the interests of future generations in Wales and to support those public bodies.

Well, I do know that, in fact, Andrew R.T. Davies didn't actually vote for this piece of legislation in the final stages—

Because it was poorly crafted.

—but I think that the well-being of future generations Act is already standing up to the test, and I would very much like to actually organise a meeting with, not only the Member, but all Members, to update on the impact of the future generations commissioner's work and the well-being of future generations Act. 

The Welsh Government is spending millions of Welsh tax pounds on the well-being of future generations commission, run by a Labour insider. The High Court—the High Court—has now stated what many of us already knew: the well-being of future generations Act is 'deliberately vague'. A senior barrister in Wales has described the Act as both 'toothless' and 'virtually useless'. The well-being of future generations commission is nothing more than an expensive talking shop. A place where yet another Labour person can get yet another six-figure salary package.

Instead of spending millions on something said by an eminent QC to be 'virtually useless', why not fund front-line services, which will really make a difference to future generations? You can invest in sustainable infrastructure, you can invest in public transport, install electric charging points for cars, you could even put the money into the NHS to save lives. Do you agree with the High Court? It seems not, actually, but I'll ask you the question: do you agree with the High Court that your legislation is deliberately vague and will you change it? 

This Assembly passed this pioneering, world-breaking well-being of future generations Act, and also it has already had a powerful impact in terms of examples in the way that the well-being of future generations Act is driving a renewed focus on how we can improve and engage with the diverse population of Wales. I'll give you some examples, really important examples. For example, in terms of the strong leadership that's needed to engage with our communities, those affected by decisions, affected by policy: making the Valleys regional park, for example, in terms of making that landscape and the heritage of the Valleys more accessible to people. They used the principles of the ways of working and the well-being objectives in the Valleys taskforce to ensure that we looked at this using the examples of the well-being of future generations Act. Transport for Wales: ensuring that their decision-making process is focused on sustainability. I mentioned yesterday, in answer to questions, that our national planning policy, which I know the Member always raises in this Chamber, has been re-framed using the Act, and it puts placemaking at the heart of the planning system, ensuring that people's well-being is considered as part of the planning process. In fact, people are looking to the well-being of future generations Act to do what the Future Generations Commissioner for Wales aims to do: advise, encourage and promote, carry out reviews, make recommendations, report, and also ensure that we do deliver for our future generations. I think that is the key purpose of the well-being of future generations Act.

It's interesting that you describe the Act as 'well regarded', because, usually, Government Ministers tell us it's 'world-leading' and 'groundbreaking' legislation. I remind you regularly that it'll only be as much if it leads to groundbreaking and world-leading change. I have to say that this doesn't augur well, but I suppose the jury's still out on that. We clearly tried to strengthen the Bill when it was a Bill but we were voted down, but we didn't want to throw the baby out with the bath water, because it's not necessarily about transforming the legal landscape. For me, the main thrust of the Act was to effect that wider cultural change, which was about putting sustainable development as the central organising principle, if you remember that term, of the whole public sector in Wales. Now, I'm waiting to see the evidence that I'd like to see in terms of that being achieved still, although I think it's work in process. I suppose the M4 decision around the black route to me will be a litmus test. If you fail that test, then the Act won't be worth the paper it's written on, as far as I'm concerned.

The important thing here is, of course—I'd like to ask whether the Government is committed to undertaking post-implementation review of this legislation so that we can be confident that it actually does what it said on the tin. And if it does show up deficiencies, and we've already heard one, then would you as Government be committed, then, to look again at the Bill and to maybe introduce further legislation to correct it, so that it can be the strong legislation that we all want it to be?

I'm very grateful for the Member's comments on this, and I do fully remember his engagement and his party's engagement in these discussions. You're quite right, this is about the cultural change and the leadership that is required to ensure that we do deliver on our sustainable development principle. In fact, if you look in the Act, it says quite clearly:

'any reference to a public body doing something “in accordance with the sustainable development principle” means that the body must act in a manner which seeks to ensure that the needs of the present are met without compromising the ability of future generations to meet their own needs.'

That's now in statute. It was important to build on our original principles in terms of sustainable development in the Government of Wales legislation. So, yes, it's early days, clearly, and we do need to assess the impact of the future generations commissioner's role and, indeed, the legislation. 

I have to say, when I was a member of the Finance Committee, we more than once had the future generations commissioner helping us, coming along and actually being extremely helpful in terms of looking at our budget-making process, for example. She has had a powerful influence, for example, on moving towards a more preventative approach to our budgets and looking in terms of health in terms of how we can address the long-term needs and not just crisis-manage the health service—crucial in terms of prudent healthcare, and, indeed, crucial in terms of the aims of the cross-party parliamentary review in terms of the well-being of future generations Act.

There are 44 public bodies that are subject to the well-being of future generations Act, but others—the police, for example—are not devolved. They have embraced the core principles of the well-being of future generations Act, because they see it as a way in which they can improve the way they deliver services. I know that the commissioner herself in a recent article said

'this is the biggest cultural change programme that Wales has ever seen.'

We have to make it as such. We do need to invest in how we go about changing the culture so people will start thinking more about the long term. In Government, we so often think about the short term, the crisis—it's about the long term. Others do look across the world to see how we are delivering on this new piece of legislation. But we will report—she has a duty to report anyway in terms of the future generations report—assessing each step of the way how this is being delivered and learning the lessons. 

Minister, I've heard a lot of huffing and puffing on this and I think it's perhaps time for a little bit of perspective on this. This is a judgment that's based purely on the papers submitted for a preliminary application for a judicial review. It's not a binding judgment, it does not set any particular precedent, but there are one or two particular points in it that are quite important. 

It raised the issue of justiciability, but what the judge very clearly says is this: he said, 'Well if it is justiciable, they have complied with the Act in any event.' That is, they did apply the well-being objectives and have satisfied them. That, in itself, confirms that the Act has actually worked in this case in terms of the culture and the processes that were actually gone through. I was involved in the early stages of this legislation and there were many arguments on this legislation as to how such a difficult area could be drafted, but this has been commended at United Nations level. Now, the real test of the effect it's having and how it's working is when we have an opportunity to debate the annual report of the sustainability commissioner, and you can look at the overall picture. 

I actually commend the legislation, because I think it is important legislation, and it's a little bit disappointing that this rather preliminary judgment that would probably have been appealed if it wasn't for the finding that the Act has been complied with in any event—. And it may be at a future stage that the justiciability issue needs to be looked at, but I don't think that is any grounds for undermining and some of the poisonous and bilious comments that have been made about the individual involved, the sustainability commissioner, which I think is very regrettable in this case. 

I'm very grateful to Mick Antoniw, the former Counsel General and esteemed lawyer, and I'm glad it was you as the Member who responded and put the record straight in terms of the impact of this legal judgment. As I said, it's an interpretation of the law and interpretation of the law is a matter for the courts. And, again, I don't wish to return to this, but Members can read that judgment that was made and see for themselves how that judgment was made and the justification. But I think it's very important also to say that we must ensure that we see what the impact of this legislation is. 

And let's just look at some of those duties of the commissioner. The Act gives the commissioner the power to conduct a review into how public bodies are safeguarding the ability of future generations to meet their needs and make recommendations. The commissioner can intervene, review and, indeed, as she has done, make comments on policy matters. She's done that formally in terms of planning policy, the economic contract, Transport for Wales, the Valleys regional park and also in terms of housing—she herself has engaged in the development of the affordable housing supply review panel, looking at ways in which they can consider the important issues in terms of future housing needs for future generations. But I am grateful to the Member for making those points. Let's focus on this legislation, on the pioneering role that the first independent future generations commissioner is undertaking, and I'm very pleased that we have got the opportunity today to put the record straight on these issues. 

Well, Deputy Minister, you say that it's up to the courts to interpret this legislation, but it's also incumbent on this legislature to have made its legislative intention clear. And one of the reasons our party were not particularly keen on this Bill, as it was at the time, is that it was never clear to us how it could be enforced and, even now, those duties to which you've been referring in this exchange today—it's not clear to me quite how action can be taken against any of those public bodies should they fail in those duties, apart from judicial review, which in my view is absolutely not the easiest route to access justice for any of our constituents, actually. 

It's not the first time I've disagreed with, shall we say, a legal opinion. The judge in this case—. I don't know the specifics—obviously, I know about the closure, but I don't know the detail that was presented to support the judicial review application, so I don't know what she actually saw, but I can say categorically that, in the case of Craigcefnparc school and Felindre school in my own region, when we sought advice from the commissioner, she gave us a very, very comprehensive set of guidance and advice on how public bodies should not just observe those duties to which you refer, but how to demonstrate that they had complied with those duties, and that certainly wasn't the case with the two schools that I mentioned, which as far as I'm concerned—personal view—would probably still be open to judicial review proceedings should the local community wish to do that.

So, when we're talking about the strength of this Act, I appreciate what you've been saying about culture change, but there's a way of actually strengthening it as a legal instrument as well, and perhaps I can invite you to look at this—it's a chunky piece of paper we've had from the commissioner with this advice—to see whether it would be worth introducing secondary legislation to make some of this advice statutory, so that all public bodies—the 44 to whom you referred—will know precisely what they have to do in order to demonstrate that they've complied with these duties, and not rely on, shall we say, communities who will struggle to get money together for judicial review to push it all back into their court, on the basis that they're probably too poor to take action against poor decisions.  

I welcome the fact that Suzy Davies has commented on the advice that was given by the future generations commissioner—advice and guidance in terms of her powers, and the opportunities particularly to engage with those affected by those decisions about those particular school closures. I think we have to recognise that whatever the situation is, this legislation was never set up to bypass existing regulations in terms of change—difficult decisions such as school reorganisation. The school organisation code, which obviously the people and the communities you were involved with would have to have responded to, as indeed in the case that's set out as a result of this question, sets a very high standard of consultation, and it is a public consultation. The Act was never designed to bypass consultation processes such as those laid down in that particular code, which are difficult decisions. So, this Act was never set up in order to bypass or even set the stage for those kinds of legal challenges.

Now, what is clear is that we have to see how the impact of the legislation, what the outcomes of that are in terms of—. I think Llyr Gruffydd made an important point—does this make a difference to our sustainable development principle in terms of social, environmental and cultural well-being making a difference? Will it make a difference to the long-term decision making of not just this Welsh Government, but all those public bodies who are willingly engaging in the new ways of working, looking at the seven well-being goals, and seeing that this actually provides them with a backdrop for a new way of working to look towards our future generations, as well as the well-being of Wales today?    

I don't agree with the comments from the QC. I don't believe the legislation is toothless. I do believe and agree with Mick Antoniw. This legislation has made us a world leader in thinking differently, so would the Minister agree with me that we do need to keep flying the flag for this piece of legislation, because it's why countries right now, as you've rightly said, Deputy Minister, are looking to Wales and are interested in Wales and this piece of legislation, and they want to follow Wales's lead? So, we do need to keep flying the flag. 

Deputy Minister, I was very proud recently to launch a report alongside the Civil Engineering Contractors Association and also be at the launch of a report from Coleg Cambria in my own constituency. They don't need to follow this piece of legislation, but what they have done is to take the piece of legislation, looked at how it works, realise the benefits and implemented their own plans. And I do believe they are doing some incredibly positive things because of this legislation. So, would you agree with me, Minister, that this is another example of the legislation making a difference right here on our doorstep in Wales? 

To finish, again, I do not believe this is a piece of toothless legislation. I think drafting a world-first piece of legislation that changes the way we work, that protects our planet, that looks at the way we monitor and maintain our budgets for the future is something that we should be proud of, and I think it's something that our future generations will be proud of moving forward. 

I thank Jack Sargeant for flying the flag today with a concrete example of how this legislation is being used by Coleg Cambria and how—. These are early days, and we need these examples of case studies of how the public sector is embracing this. I said I'd met with the third sector today. They are embracing it; they see that, particularly in terms of the five ways of working, involvement and engagement is crucial. We know that we haven't done enough of that in terms of getting people's views. So, it is also very important to recognise that people outside of Wales are looking at this legislation, and certainly they will be expecting us, who passed this legislation through this National Assembly, to stand up for it. So, there may be a private Member's Bill being considered by Lord Bird of The Big Issue, a Member in Westminster. The New Zealand Government sending a delegation to Cardiff to learn more about the innovative Welsh model, Sophie Howe being at the World Government Summit talking about this, and, indeed, Eluned Morgan, Minister for International Affairs and the Welsh Language, in the UN in New York speaking about the well-being of future generations—isn't the Assembly proud of that? But, clearly, we have got to demonstrate the impact of it on the ground here in Wales in our public bodies and in our communities.

Finally, Alun Davies.

Thank you very much, Presiding Officer. Deputy Minister, I would counsel very gently that the Government doesn't simply defend the piece of legislation and not consider criticisms that are made of it. The nature of legislation is that it should be reviewed, and the Government has in the past, certainly in my day, accepted reviews of legislation. Post-legislative scrutiny has been a positive part of the legislative process. So, I would hope that the Government would take a more open approach to this. Members will be aware of my own concerns about a piece of legislation—you know, you don't make Wales bilingual in 50 years by declaring that you're going to make Wales bilingual in 50 years; you do it by legislating in different ways to do it, and the Government, of course, has dropped the legislation that might have achieved that. So, I would counsel caution to the Government on this matter. Many of us find declaratory statements given the weight of law to be little more than pious hopes, unless it's actually backed up by real action. Certainly, my concern would be that the Government would review the workings of this piece of legislation that the relevant committee—I think my colleague from Pontypridd mentioned that the sustainability committee could do that, and certainly I think it would be good practice were it to do so. But simply passing legislation and defending it, I think, is a very poor way of operating. We need to look hard: does this achieve the ambitions set for it? Does it achieve the visions set for it? Is it the legislation today that we hoped it would have been when we voted for it? Is it achieving the objectives set for it? And, were we to do that, I'm less confident than the Minister that we would give ourselves 10 out of 10. We might get over the 50 per cent, but, certainly, we need to think much harder about the impact of legislation, and certainly my experience in Government is that this piece of legislation is worshipped more in the theory than the practice.

I thank Alun Davies for that question. In fact, I also thank Andrew R.T. Davies for the question, because I think it was important that I could come here and answer the question, because it should be a matter of public debate. This is about scrutiny, after all, of our legislation, legislation that we passed, and I completely agree with Alun Davies and with his experience in terms of legislation that we have to consider it in terms of scrutiny and the outcomes. I think I've made that very clear this afternoon in terms of reporting examples of where it's working, as Jack Sargeant has identified. It is early days, and, yes, we can proclaim this as a pioneering piece of legislation, I believe—certainly others are, including the United Nations—but we now need to take stock of the considerable debate this afternoon that has arisen as a result of this. Certainly, I would be very pleased—in fact, I think it would be helpful if committees were able to do this in terms of scrutiny and reporting, but also that we set up a seminar or a meeting where we can discuss the legislation further to explain how public bodies are delivering on it.

I thank the Deputy Minister.