As a UK bill that touches on reserved powers, the Environment Bill requires the Senedd to provide its consent before it enters power in Wales.
But a report by the parliament’s Climate Change, Environment, and Infrastructure Committee, released earlier this week, says that it has “serious reservations about specific provisions” in the draft law, namely powers over water quality and Whitehall’s ability to exercise of powers over Wales. It wants to see them resolved before royal assent, though given the timeframe it admits that this will be difficult to fulfil.
The report states that the Welsh government’s decision to use the UK bill was regrettable, it having been subject to significant delays. “We believe the most appropriate way to legislate for Wales on environmental matters is through a Senedd bill, made by Senedd Cymru and its elected members, to whom the Welsh government is accountable,” says the report.
However, given that the next opportunity to legislate on environmental policy will be through the Senedd’s environmental governance bill next year, “using the UK Bill is the only way to ensure the provisions for Wales can be made within a reasonable timeframe”, it states.
The report makes six key recommendations. Approval of a legislative consent motion should be continent on the Senedd receiving a satisfactory response from the Welsh government.
The first is that environment minister Julie James “not provided a sufficiently strong rationale for including the ‘concurrent-plus’ powers” in the bill. The phrase refers to Brexit-derived functions that can be exercised by the UK government directly, even though they fall within a devolved competence. They may only be used following Welsh ministerial consent.
The report says that they are not in line with the Welsh government’s own guidance, which says that “new concurrent powers… should be avoided wherever possible” and created only in “very exceptional circumstances”.
The committee would prefer secondary legislation to be made in Wales and subject to Senedd scrutiny. UK-wide policy should be implemented through regulations made jointly by the UK administrations, “and to be subject to scrutiny by all four legislatures. This approach could also apply for regulations to be made on an England-Wales-Northern Ireland wide-basis and an England-Wales basis, for example, in the case of DRS regulations and regulations on water quality,” it adds.
If the concurrent-plus provisions cannot be removed immediately, then they should be “at the earliest opportunity”. James should also set out how the Senedd should consider the use of such powers, the MSs say.
She should also explain “why she believes it is appropriate to take the powers to charge for single-use plastics in the UK bill when it is unclear whether those powers will be needed”. Wales is planning to ban the most commonly littered such items, which could be made under existing powers.
Part five of the Environment Bill sets an array of new rules on water resources and consumption, which the minister admitted are ““immensely complicated”. Again, it contains a concurrent-plus clause, which the report does not consider justified.
Part five would also lend direct powers to Welsh ministers, which James’ predecessor Lesley Griffiths said would only be employed following consultation. The MSs want that commitment to be repeated. They include powers of direction over water undertakers, which the committee says should be exercised according to presently undefined criteria.
The final condition is that, “The minister should further explain why she believes it is appropriate for a non-binding informal agreement to be used to resolve the dispute with the UK government over legislative competence in respect of the provisions in relation to the use of forestry commodities.”
More generally, the committee want the Welsh government to commit to introducing a Clean Air Bill and Environmental Governance Bill within the second year of the current Senedd, propose statutory biodiversity targets as soon as possible and commit to introducing an ‘all-in’ deposit return system, “regardless of whether the UK government and Northern Ireland Executive decide to introduce a scheme narrower in scope”.