National Assembly for Wales (Legislative Competence) (Environment) Order 2010

My Lords, the order has been approved by the National Assembly for Wales and was debated in the other place last week. It has had the advantage of pre-legislative scrutiny by the Constitution Committee of this House, by the Welsh Affairs Committee in the other place and by a committee of the National Assembly for Wales. Therefore, whatever anxieties were harboured about the previous order, I can certainly give this one a clean bill of health in terms of effective scrutiny. It deserved such scrutiny because it is an order of obvious importance, and the draft order has been improved as a result of that scrutiny. I shall return to the changes in a few moments when I have established a number of other matters. In the debate in the other place, Members noted that although the order has been simplified to an extent as a result of scrutiny, it remains complex. Indeed, the Government are obliged to accept that the order is complex. This is not surprising given the wide-ranging nature of its subject. After all, it encompasses many aspects of environmental policy and touches on a large number of policy areas, including energy, transport and defence. I notice that, among the environmental policy, it touches upon aspects of the treatment of waste. The last time I appeared in this Committee Room to deal with a waste order—admittedly for England—I had an extremely difficult time. Such was the complexity of the order and the questions addressed to me, I can vouch that this area of environmental policy produces issues that are complex to deal with. Environmental challenges such as air pollution, litter and waste management affect us all. The Welsh Ministers currently have a wide range of executive powers related to the environment but these powers are somewhat piecemeal, with gaps preventing the Assembly Government delivering specific policies and restricting reforms to particular areas of environmental regulation. For example, in the area of waste management, Welsh Ministers do not have the power to ensure that high priority waste materials are prioritised for collection, or to prevent key recyclable materials being sent to landfill. Every Member of the Committee will know about the drive across the whole of government to reduce the use of landfill and to ensure that that which can be recycled is recycled. The order would give the National Assembly for Wales a power to make its own laws—assembly measures—to protect and improve the environment, and to legislate to help the Assembly Government implement its environmental strategies and create a more sustainable Wales. The democratic process would also be enhanced by enabling the Assembly to decide on legislation over the environment, an area where Welsh Ministers currently have powers and the Assembly none. The order will provide competence to legislate to protect and improve the environment in three main areas—waste, pollution and nuisances—which affect the quality of the local environment. Matter 6.1 relates to: ""Preventing, reducing, collecting, managing, treating or disposing of waste"." Matter 6.2 relates to: ""Disposal of waste in the sea where the waste has been collected, managed or treated on land"." Matter 6.3 relates to: ""Protecting or improving the environment in relation to pollution"." Matter 6.4 relates to, ""Protecting or improving the environment in relation to nuisances"," which are further defined in the order. The order includes a number of fixed, or specific, exceptions to each of these matters, and general, or floating, exceptions which apply to all matters in Schedule 5 to the Government of Wales Act 2006. These reflect the need to specify the often quite complex boundary between devolved and non-devolved areas of policy relating to the environment. Every Member of the Committee will be only too well aware of the difficulties attendant upon that. The committees which scrutinised the proposed order made a number of recommendations which were largely concerned with making the order easier to understand, providing clarity about what is within and outside the Assembly’s competence and avoiding unnecessary duplication. We made a number of changes to the order following that level of scrutiny, which was extremely helpful to us, and they are reflected in the final draft before the Committee today. The changes are the result of careful consideration of all the recommendations by both the Government and the Welsh Assembly Government. The first change is to create two matters dealing with waste, rather than having the single waste matter contained in the proposed LCO. Matter 6.1 now deals primarily with waste on land and Matter 6.2 deals with waste on land which is disposed of in the sea. The change has been made to help to clarify the scope of the Assembly’s competence over waste. It has also enabled the definition of "Wales" to be rationalised so that it is the same as that which has applied in other LCOs. Scrutiny of the proposals both in the other place and in Cardiff Bay highlighted this as an area of concern. We think that we have now addressed it. Secondly, a number of exceptions and definitions have been removed from the legislative competence order, and others have been clarified to sharpen up their meaning. This reflects the concern of the scrutiny committees that the order should not be so technical and complex as to become unintelligible and inaccessible to the lay reader. I am all too conscious of the fact that orders present a challenge to all noble Lords when they address them in debate; we must have even more sympathy for the lay reader who has an interest in these matters. If ever I saw a number of representations from members of the general public, they related to the difficulty of understanding regulations around waste management, and of course some of it reflected a clear interest on the part of those who earned their living from the field. If we are to engage the general public in constructive action on the environment, we must make absolutely certain that they understand just what we are driving at and what they are meant to do. No area is more important in these terms than waste management. I assure the Committee that the legislative competence order includes only those exceptions and definitions that we consider to be absolutely necessary; that is, necessary to ensure that the legislative competence being conferred is accurately described and that the boundaries between devolved and non-devolved areas of competence are quite clear. I am pleased to note that the Welsh Assembly Government have recently published a short guide to the order, which is available on its website. A key recommendation arising from the scrutiny of this LCO was that easily readable guidance be prepared for the lay reader to understand it better. Concerns were also expressed during scrutiny about the general, or floating, exceptions that the LCO inserts into Schedule 5. The Government and the Welsh Assembly Government believe that it is necessary to include the exceptions in the order. They would apply to all matters in Schedule 5 to the Government of Wales Act 2006 but have a particularly strong relationship to environment policy, especially to pollution. Assembly measures which may be passed using the powers conferred by this LCO may have a direct bearing on electricity generation, nuclear power, road transport, shipping, aviation and water policy. Including these general exceptions clearly delineates the respective roles of the Government and the Welsh Assembly Government in areas of policy that impact on the environment. This will enable us to work together in a co-operative and co-ordinated way, as we take the work forward. The majority of exceptions fall within three key areas of national policy interest—energy, transport and defence. The exceptions in a fourth policy area, the marine environment, reflect the fact that the legislative regime for managing the waters around the United Kingdom—including important new roles for Welsh Ministers, which we debated during the passage of the Marine and Coastal Access Act 2009—has been set out recently in that Act. The Committee will appreciate that, although the order remains relatively complex, the changes that we have made simplify it and make it easier to understand. Importantly, none of the changes significantly affects the scope of the proposed competence being conferred on the National Assembly. Further detail on the rationale for the effect of each exception is provided by the Explanatory Memorandum. Pre-legislative scrutiny has helped us to refine and improve the draft order now before us. It is wholly appropriate that the National Assembly would be able to legislate on waste management and environmental protection improvement. Accordingly, I commend the order to the Committee.