SUMMARY OF MAIN POINTS FROM ENVIRONMENT BILL ROUND TABLE DISCUSSION BETWEEN WELSH GOVERNMENT AND UKELA
15 JANUARY 2013
Present:
Welsh Government UKELA
Andy Fraser Professor Lynda Warren
Laura Fox Dr Haydn Davies
Nia James Dr Victoria Jenkins
Lowri Frater James Molland
Nicola Charles Heather Sargent
Richard D’earth Professor Susan Baker
Wyn Jones
Introduction
Welsh Government officials stated that it is currently planned to introduce the Bill in the spring of 2015. It was indicated that proposals for the consolidation of environmental law were being considered for future development. It was also said that there was no intention to publish a draft Bill, but a consultation summary report would be issued in April.
NRM Definitions and their interface with Planning and Future Generations Bills
Haydn Davies introduced the subject by stating that UKELA was concerned to see coherence in relation to the definitions. He added that the definitions will need to interface and integrate with the Future Generations Bill. The importance of consistency and a clear scope of any definitions to be included in the legislation were stressed.
Susan Baker stated that the proposed definitions appeared to be concerned with process, key characteristics and outcomes. She emphasised that the key elements should be separated from processes and outcomes as they are fundamental for implementation. The need for joined up governance was stated and for consideration to be given to both spatial and temporal dimensions. The point was made that the interface between the short and longer term objectives to enable difficult decision making needed to be given consideration.
Victoria Jenkins raised the issue of consistency with the Future Generations bill, which at present was not including a definition of sustainable development. It was also said that the Planning Bill proposals make very little reference to sustainable development.
Lynda Warren commented on the broad definition of Natural Resources and pointed out the absence of linkages with landscape and cultural heritage, and the marine environment. She stressed that there needs to be a clear legal framework for NRW to provide Government and others with advice.
There was discussion around the merits of including definitions in the Bill and the problems of achieving an exhaustive definition, particularly in terms of the landscape which could be considered a product of natural resources or the interaction of humans.
Lynda Warren added that a definition of the natural environment and how it could used as a resource would be helpful.
The Nature of the Duty and how it Dovetails with other Duties together with Reporting Arrangements
Following a presentation on the Future Generations Bill, which is due to be introduced in summer 2014, Royal Assent expected in 2015, Haydn Davies initiated the discussion on how the process will enable the desired sustainable development outcomes. In response, it was stated that outcomes will be related to well being at the high strategic and budgetary levels using RBA approach. There was some discussion about the various bodies being given the power to decide their own outcomes and whether the process of producing annual reports and the requirement for audits by the Auditor General Wales would ensure the delivery of national outcomes. Victoria Jenkins also expressed concern about how the necessary outcomes at Local Service Board level would permeate all the organisations concerned. She added the importance of using language that everyone can understand and interpret. Reference was made to the planned “national conversation” that is to be led by the Sustainable Futures Commissioner for Wales, which will take account of people’s views and those of their children. This will inform development of the policy together with a report on future environment, social and demographic trends. Susan Baker referred to the work of Andrew Dobson on proxy voices and scenario building which could be helpful in trying to work out the wants of future generations. There was reference to trans-boundary issues as, for example, LSBs do not cover the same spatial elements as those proposed for natural resource management i.e. river catchment or landscape area. Wyn Jones commented that the area based approach needs to have some flexibility and that this should be enabled through secondary legislation of policy making.
Payments for Eco-system Services
Susan Baker questioned who was going to identify the value or cost of an eco-system, as a number do not have a market. It was stated that there are major issues around deriving prices and technical issues, such as discount rate setting. Furthermore, concern was expressed about the unproven presumption that creation of a market will lead to conservation and the point was made that environmental management has the potential to become a fraudulent market. The issue of payments needs much greater thought, such as for what service and to whom of the many landowners in Wales (e.g. National Trust, the Military, the Church in Wales amongst others). Although considered a trendy concept, there was a danger in using “fashionable methodologies” and a need to ensure that the legislation is framed in a way that enables delivery of the desired outcomes. In response to Welsh Government comments and acknowledgement of the linkages with strategic national outcomes and the area based approach, the point was made that in relation to existing eco-system payment models there is a need to be mindful of current problems to ensure that effective governance structures are put in place.
Lynda Warren commented that, if used, NRW’s new experimental powers could provide some useful information for development of the concept.
James Molland outlined his concern about the multi-role of NRW as an undemocratic body, which will act as a regulator and promoter of market trading in eco-system services. He stated further concern about NRW having conflict of interest through its policy development responsibilities and its role as a broker/accreditor.
In conclusion, there was broad support for the proposal, but it was stated that there is a limited role for market instruments to support the delivery of public policy objectives. It was further stated that payments for eco-system services involve managing trade-offs and can give rise to conflicts in terms of achievement of policy objectives. There was recognition that introduction of this framework will require cultural change within Government and NRW, and that more information should be sought before policy implementation.
Land Management Agreements
James Molland said that generally UKELA was content with the principle, but more detail was needed and there needed to be consistency of approach with Natural England. It was queried whether such agreements can be a land charge and that some components may be commercially confidential.
Lynda Warren raised the issue of multi-party agreements, such as those for river catchment management where a number of landowners have mutual responsibilities, pointing out that for one management area, separate agreements pass on to a new owner with the land.
Heather Sargent mentioned the usefulness of conservation agreements and it was stated that the introduction of conservation covenants may be pursued through different legislation.
General Binding Rules
There was some discussion around whether the intention is to use general binding rules or standard rules, as used under the current permitting regime. Haydn Davies expressed the view that general binding rules are generally best suited for low level and low risk environmental issues and would not be appropriate for other major environment issues, such as emissions under the EU Industrial Emissions Directive. In response, it was stated that general binding rules are to be based on the model working in Scotland so that they can be used to ensure cross compliance.
Human Rights
Heather Sargent said that the human rights implications were not evident and that the Minister is unable to contravene anything that is within the Human Rights convention. She added that changes to extant licences and regulatory controls together with the introduction of payments for eco-system services could all affect rights under Article 1 of Protocol 1. Mention was made of case law in Sweden where revocation of a licence was found not to have led to deprivation of a property, but fair and reasonable warning had been given to the possible infringement of rights.
The issue of public participation under the Aarhus Convention was also raised and there was reference to a case brought by Fish Legal to the European Court of Justice claiming that water companies could be classed as public bodies. The point was made that the convention applies to policy making and executive measures, including secondary legislation.
Carrier Bags
There was a brief discussion around the proposal to give Welsh Ministers the enabling power to widen the scope of causes to which the net proceeds from the sale of carrier bags might be provided. Susan Baker had some concerns that use of this power could encourage additional sales of carrier bags, pointing out that this had been the experience in other countries. In response Welsh Government officials were of the view that retailers would discourage staff from promoting the sales of bags as because this would not be profitable for the businesses.
Summary
Lynda Warren summed up as follows:
· There is a need for more work in relation to the wording of the definitions, in particular outcomes and scale.
· In relation to the SD duty, the Group had been further informed on the matter.
· As regards, payment of eco-system services, there was still a degree of uncertainty about how the concept would work in practice.
· The use of conservation agreements in the future was noted.
· There was still a need for clarity around what is meant by General Binding Rules.
· The obligations in relation to Human Rights and those under the Aarhus Convention had been flagged up.