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

My Lords, anybody who reads the Explanatory Memorandum will realise—because it spells it out very well—that the transfer of environmental powers is long-standing, considerable and pre-dates the establishment of the Welsh Assembly by many years. Old Welsh Office Ministers started gaining such powers under the Control of Pollution Act 1974. Even before that, I had the privilege, in my ancient ministerial days of 1969 to 1970, and from 1974 to 1975, of leading the Derelict Land Unit. It was established in the wake of the terrible disaster at Aberfan to deal with both the justifiable fear of the dangers of tip waste and the scarring of the landscape. It was a remarkable success story of innovation and imagination, and pioneered much work in the technology of tip clearance and dealing with old coal waste. We are not in new territory at all. First, Welsh Office Ministers before the establishment of the Assembly exercised considerable environmental powers, devolved to them by extensive legislation listed, as the noble Lord has explained, in the Explanatory Memorandum. Secondly, as the memorandum also explains, Welsh Office Ministers, and now the Welsh Assembly, have important roles in designating the designation orders under European Union law. Thirdly, Assembly Ministers have inherited an extensive range of powers in subordinate legislation to be able to use such legislation as a result of the earlier legislation. I utterly support and endorse the content of this LCO. All that the order will do is match the executive powers that have been transferred, and the transfer of functions of one kind or another over many years, giving a legislative competence that mirrors those executive orders and powers. Therefore, I wholeheartedly support the thrust and intention of the order. Quite rightly, the Select Committee on Welsh Affairs and the Constitution Committee raised several concerns about the original draft order. If we can pass messages to those who will enjoy the power of legislation at the Assembly, I hope that when the Assembly Government come to draft a measure flowing from this order, they take particular note of paragraph 33 of the Select Committee’s report about cross-border issues. The report says: ""There is some potential for Measures brought forward on the basis of this LCO to give rise to cross-border issues in relation to business and with regard to possible perverse effects of differences in regulations for environmental problems, such as fly-tipping"." Although it should not involve any amendment to the LCO, I hope that that particular concern will be expressed when the measure that flows from the order comes to be drafted. We do not want businesses worrying that the law across the border will be so different that they find it difficult to operate in any context, let alone that which the noble Lord, Lord Roberts of Conwy, noticed. While I am a passionate supporter of transferring the powers, I was surprised that, for the second time at least, the original LCO dealing with the environment contained a whole host—a clutch—of exceptions in fields totally unrelated to the environment. The Constitution Committee had previously expressed considerable concern in relation to the carers order about dumping into orders which have well defined purposes a list of exceptions totally unrelated to them. In the original draft environment order, there were fields for economic development, highways and water and flood defences, all of which it has now been accepted are not relevant to the point and purpose of the order and have thankfully been removed. As my noble friend rightly said, it is not our duty to get involved in drafting measures, but let us send a gentle but stringent message to drafters of future LCOs that we will be vigilant and liverish if we see draft orders, such as the carers order and with the original draft of the environment order, including things that are totally or virtually unrelated to their specific subject and content. We do not want another set of unrelated exceptions pushed into a future order that have no bearing on the main purpose. I hope that that important message will go to the Assembly. Otherwise, as the noble Lord, Lord Roberts of Conwy, observed, and as the interesting review of the LCO process in the Select Committee’s report reveals, an amazing convergence and consensus have developed around the way in which we scrutinise orders. I support the positive comment in that report about all the committees involved in the scrutiny—I suppose that I am being boastful, because I had a minor part in the process—that: ""It is a matter of record that on every occasion so far the observations of these committees have been constructive, complementary and consensual, and the Welsh Assembly Government has responded positively. There is no doubt that almost all the LCOs so far passed into law have been improved as a result of the scrutiny process"." That has been verified. I think back to the Welsh language competence order, which became a very different animal as a result of proper scrutiny. Here is another example of an order that has benefited considerably from the process of scrutiny that has been put in place. Therefore, I fully support the point and purpose of the order, but I also support the invaluable scrutiny that has amended the original order to make it much more palatable today.