5. Legislative Consent Motion on the Environment Bill

Part of the debate – in the Senedd at 4:48 pm on 28 September 2021.

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Photo of Huw Irranca-Davies Huw Irranca-Davies Labour 4:48, 28 September 2021

I'll do my best, Dirprwy Lywydd. Can I preface my remarks by thanking my committee members for their scrutiny, and our clerking team as well, and note, in advance of my comments, that when our committee does its job well, it will sometimes make for challenging listening for the Government as well?

As the Minister told us, the Bill has got a long history, and our predecessor committee published two reports on the Bill in the fifth Senedd. We reported on this memorandum and the supplementary memorandum last Thursday. We made four recommendations, having taken evidence from the Minister, and I really do thank her for her open engagement that she had with us in July, and we've been in receipt of correspondence from the Minister in August. 

Now, in light of the long history of this Bill—the UK Bill—we are disappointed at the lack of information contained in the memorandum. At the start of the sixth Senedd, with new Members elected, the first memorandum should have been better in making the case for the Senedd to give its consent. So, in our view, it is regrettable that the Welsh Government does not feel in a position to follow the principle that was outlined in its first memorandum, that primary legislation in devolved areas should be enacted by the Senedd. I'll expand on this briefly.

Despite it being a devolved area, this policy area, the Minister put forward numerous reasons to justify the UK Government legislating on environmental policy in Wales. While these included the benefits of UK co-ordination, surprisingly the Minister also said that, and I quote, 

'if we only use Senedd legislation, we just wouldn't get everything done'.

Now, whilst it may be 'sensible' and 'advantageous', in the Minister's words, for the Welsh Government to include provisions in a UK Government Bill as stated in the first memorandum, it does not follow that it is in the best interests of the Senedd's responsibility of holding the Welsh Government to account and legislating for Wales. The Minister highlighted the significant amount of work that has gone into ensuring that the Bill fully protects Welsh interests and reflects the needs of Wales, and we take that point. But, fully protecting Welsh needs and interests through legislation is the function of the Senedd in devolved areas, rather than the Welsh Government in negotiation with the UK Government.

So, the Minister's suggestion that there is a need for the Welsh Government to rely on the UK Government and UK Parliament to get its legislative programme, therefore, is slightly disconcerting. This stance denies the Senedd and its elected Members the ability to directly influence and shape legislation that will become law in Wales. Furthermore, it also relies on there being good inter-governmental relations, which we've talked about this afternoon in here, with successive UK Governments and Ministers, and there's no guarantee of a successful outcome with that.

So, we therefore recommended that a future Welsh environmental Bill should address devolved issues contained within the UK Government's Environment Bill, following appropriate consultation with stakeholders. I welcome the Minister's response accepting this recommendation, albeit in principle, and we look forward to scrutinising a future Welsh environment Bill.

I would now like to mention the use of the Bill to give Welsh Ministers the power to make regulations. In particular, the Bill includes concurrent plus powers to make regulations where cross-border arrangements would be beneficial in relation to producer responsibility obligations, resource efficiency, deposit schemes and chemicals legislation, known popularly and colloquially as REACH. However, the inclusion of concurrent plus powers in the Bill does not appear, we say, to be in line with the Welsh Government's own guidance. Our second recommendation, therefore, called on the Welsh Government to seek an amendment to the Bill removing these powers. So, it is disappointing that the Minister has rejected that. In line with our third recommendation, the Minister's response explains the reasons why they've not been removed. However, it remains to us unclear why the inclusion of concurrent plus powers in the Bill is being progressed against, seemingly, the Welsh Government's own guidance.

Turning now to other regulation-making powers provided to Welsh Ministers through the Bill, in the main they are subject to either a slightly vague timetable for their use or have no timetable whatsoever attached at all. The Minister's case for taking these powers appears to be based on speed and a lack of resources. We don't consider these to be valid reasons normally. We consider that this diminishes the role of the Senedd as a legislature having responsibility and oversight of powers to be delegated to Welsh Ministers in devolved areas.

We did not have time to explore the implications of the second memorandum fully, but our fourth and final recommendation asked the Minister to confirm that there are additional provisions that require consent and that were not identified in the second memorandum. We note her response on those points and we thank her for that.

Finally, Dirprwy Lywydd, our report draws the Senedd's attention to an important issue. It highlights that most areas covered in the Bill are now subject to provisions in the trade and co-operation agreement between the UK and EU. The Welsh Government's uncertainty around TCA requirements—I am nearly finished, Dirprwy Lywydd—coupled with the lack of clarity around how and when powers provided by the Bill are to be exercised, means that the approach taken by the Welsh Government to meet its obligations is unclear. This includes the extent to which it intends to rely on UK-wide measures that could introduce different policy or divergence from the EU.

The greater the reliance on UK Government legislation to action UK-EU obligations in Wales, the more difficult it becomes—you can see the theme—for the Senedd to effectively scrutinise the Welsh Government's compliance with these obligations. It affects our ability to scrutinise whether the Welsh Government is acting in the best interests of Wales. This might well be a theme, Dirprwy Lywydd, we return to in future, but I genuinely thank the Minister for her engagement with us and Members for their scrutiny of this, as there are some important issues within this.