UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 678-i

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

WELSH AFFAIRS COMMITTEE

THE PROPOSED NATIONAL ASSEMBLY FOR WALES

(LEGISLATIVE COMPETENCE) (ENVIRONMENT) ORDER 2009

Thursday 11 June 2009

MR TEGRYN JONES

MR CHRIS MILLS, MS CERI DAVIES and MR TIM PEPPIN

Evidence heard in Public Questions 1 - 78

USE OF THE TRANSCRIPT

Oral Evidence

Taken before the Welsh Affairs Committee

on Thursday 11 June 2009

Members present

Mr David Jones

Mr Martyn Jones

Alun Michael

Albert Owen

In the absence of the Chairman, Mr Martyn Jones was called to the Chair

________________

Memorandum submitted by Keep Wales Tidy

Examination of Witnesses

Witnesses: Mr Tegryn Jones, Chief Executive, Keep Wales Tidy, gave evidence.

Q1 Mr Martyn Jones: Good morning, Mr Jones. We are very pleased you are able to start early. In the present situation, with the traffic and travelling around London, it is probably a good idea to get away as early as we can. We will be asking you a lot of questions. Some may or may not apply to your organisation, but we would like your views anyway. Can I start off by asking in what ways will this LCO allow the Welsh Assembly Government to develop a more effective holistic approach to waste management and other environmental issues than present powers allow?

Mr Jones: From our point of view, we are supportive of this process and we would like it to see its way through. To give a few examples, the Welsh Assembly Government has recently published their consultation on the new Waste Strategy in Wales, which has some ambitious targets and, hopefully, this legislation will ease that process. Another aspect which is perhaps even closer to our experience is work is on-going on developing a Local Environmental Quality Strategy for Wales, and while the policy functions relating to waste, LEQ, et cetera, are devolved, there would be some instances where perhaps there would be a need for legislation, and certainly bringing the powers to Cardiff to enable that process to happen makes sense, if you like, so that the responsible body from the context of policy in that aspect is able to fully implement them and not have its activities restricted or need to keep one eye on, "We cannot do this, therefore we have to go through the other processes of having the powers to do it."

Q2 Mr David Jones: Briefly, Mr Jones, there are already very wide powers, are there not, under the Clean Neighbourhoods and Environment Act 2005? That is the case, is it not?

Mr Jones: Certainly, in terms of local environmental quality, the Environmental Protection Act 1990 gives the basic structure. These were significantly developed through the Clean Neighbourhoods Act, but I think the whole agenda is changing. If you take public perception, their views towards waste management would have changed significantly over recent years. You just have to go back a couple of years: where recycling was something very niche, it is now becoming something that is far more widespread, and I think there will be moves in the future towards reducing the amount of waste produced. One of the issues that has been flagged up has been producer responsibility. So I think it is a moving feast.

Q3 Mr David Jones: I understand that, but it does seem to me that the powers that are already devolved to the Assembly are particularly wide, and I think that most commentators agree with that, and I am finding difficulty in the evidence, frankly, I have seen from you in identifying what is the gap in the current legislation that needs to be addressed by further legislation on the part of the Welsh Assembly?

Mr Jones: In some ways it is almost a point of principle of where powers should reside, is it not? In this field, the field of environment and particularly waste management and local environmental quality, which are the main interests of my organisation, they are devolved. From our point, it makes sense to be able to respond to concerns. They are essentially local issues, if you like - people are really concerned about the state of the street outside their houses, therefore to bring the process as close as possible to the people there - and the Assembly appears to be the body to do it, to have, if you like, the policy responsibility for it, but not have the abilities in certain areas to implement some changes as well this process would hopefully rectify.

Q4 Alun Michael: The answers that you have given so far, to be honest about it, have been very general and more constitutional and philosophical than practical, which I think is really where we want to get to in the questioning. Can you tell us what this Legislative Competence Order will allow the Welsh Assembly Government to do that cannot be achieved with existing powers?

Mr Jones: I think it is in some ways quite difficult for us to answer that.

Q5 Alun Michael: I wondered if that was why you were being so general and philosophical!

Mr Jones: I can answer give you an answer of what Keep Wales Tidy as an organisation would like to see happening, but I would stress that is our view.

Q6 Alun Michael: With respect, if your organisation want the Assembly to do things which it could not do under present legislation, that would be a legitimate part of the answer. Can we get to practicalities, please?

Mr Jones: Okay. An example perhaps would be things like deposit schemes. We recently trialled a process to introduce an element of a deposit scheme in Monmouthshire which sought to give some sort of value to litter - cans and bottles, et cetera - and if you look across Europe there are significant successful examples of such schemes. I am not a constitutional legal expert, but I would assume that to introduce such a scheme in Wales there may be a need to introduce some legislation there. That could also act as a precursor for almost piloting processes to see if they would work in other contexts. There would perhaps be some specific issues facing Wales, or areas of Wales that you would need to bring in different types of legislation.

Q7 Alun Michael: Such as?

Mr Jones: I am trying to think what we put down originally. Smoking-related litter is an example. Ninety per cent of streets in Wales, from recent surveys, have evidence of smoking-related litter. I think the figures are slightly higher in Wales than in the rest of the UK.

Q8 Alun Michael: That might be a legitimate point in terms of evidence - let us assume it is for the moment - but what about the powers under the Clean Neighbourhoods Act, where the implementation of the Act is in the hands of the Assembly?

Mr Jones: Certainly it is a relatively new process there. The impact of the smoking-related legislation is seeing its way through, but we are trying to take a long-term view of this, seeking to find solutions to problems that are faced in the local area, and while we accept that the Assembly has significant powers already, it is still limited in what it can do.

Q9 Alun Michael: In what way? What can it not do now that it will be able to do as a result of this Legislative Competence Order going through?

Mr Jones: In some ways it is for the Assembly and organisations within Wales to develop ideas.

Q10 Alun Michael: Of course it is, but that is why I am asking you what those ideas are. The thing is this committee is very strongly in support of the Legislative Competence Order process; we do not have a problem with the philosophy. You are Keep Wales Tidy. We are asking you about the issues that your organisation is concerned about which the Welsh Assembly Government will be able to undertake as a result of this Legislative Competence Order that it cannot at the moment.

Mr Jones: One of the other issues, and we have a problem with it, is litter on the sides of roads.

Q11 Alun Michael: Litter?

Mr Jones: On road sides. There is great difficulty in using the available enforcement powers with people throwing litter from cars, because it is very difficult to identify who is responsible.

Q12 Alun Michael: That is a practical problem, but the powers are there in the Clean Neighbourhoods Act.

Mr Jones: The powers are there, but it is very difficult to implement the powers in the Clean Neighbourhoods Act because of the difficulty of identifying who is responsible.

Q13 Alun Michael: Yes, that is a practical issue; it is not about powers.

Mr Jones: But powers could be changed to make it easier.

Q14 Alun Michael: In what way?

Mr Jones: You could put the responsibility on the vehicle owner for litter thrown from cars. That would make a significant difference.

Q15 Alun Michael: You would be able to do that under these powers?

Mr Jones: I assume you could bring legislation in to do it.

Q16 Alun Michael: You do not know.

Mr Jones: We would hope that the powers would exist.

Q17 Alun Michael: Mr Jones, I think I should leave it at that point, but can I suggest that it would be helpful if you were to perhaps let us have a note after this meeting dealing with some of the issues where you think things could be done by the Welsh Assembly Government which cannot now, rather than the sort of general philosophical aspects. I think as a committee we want to get down to the practicalities.

Mr Jones: I can do that.

Q18 Mr David Jones: Can I add to that point, please, Mr Jones? I think, with respect, you have not identified any gap in the current legislation that actually is an impediment to the Assembly in achieving its objectives. You would agree, I would hope, that the purpose of the Legislative Competence Order is not simply to confer upon the Assembly a range of powers that it may not need. Would you accept that?

Mr Jones: I would disagree with your first point. I have given you a couple of examples, the deposit scheme being one. Another one perhaps relates to plastic bags. There are some powers related to the Climate Change Act, but that, I think, is relatively narrow in terms of introducing some order of charge but whether the Assembly Government or the Assembly could do it in the way it intends might relate to other legislation. So there are three examples that we would suggest - litter from cars, cans and bottles, plastic bags. It is generally broad, and hopefully it would enable the Government in Wales to respond to needs as they arise, but we have given examples already. I understand we can give you more, but I disagree with the point that we have not given you any.

Q19 Mr David Jones: Mr Jones, I have to say that the examples that you have given appear to me to be covered by the powers that are already vested in the Assembly under existing legislation, devolved powers. In all frankness, I must reiterate the point that my colleague Mr Michael has raised. I think that your evidence, frankly, to be blunt, is extremely weak today, and I would be grateful if you would augment it with a written memorandum, please.

Mr Jones: Okay; I will do that.

Q20 Albert Owen: I want to continue slightly on this theme. You mentioned enforcement. Is not the problem with enforcement in Wales that many local authorities have different levels of enforcement officers and resources and they are not carrying it out? Could that be the problem, rather than changing the law or changing this order, to get the enforcement officers to enforce?

Mr Jones: Certainly. There is a whole raft of legislation relating to enforcement, and we would encourage all local authorities and the responsible bodies to use the available enforcement powers.

Q21 Albert Owen: I think that is it. I know Mr Michael was involved in the passage of the Clean Neighbourhoods Act and he takes a great interest in this, but I am aware of different boroughs in London that actually do carry out what you say about identity of cars when litter is thrown and it actually works. I do not know that changing the law in Wales would be the way forward, but I think enforcement would. That is a comment I am making on those first questions. Moving on to waste in particular and the matter 6.1, it talks about preventing, reducing, collecting, managing, treating and disposal of waste, but it does not talk specifically about recycling waste. Do you think that that should be included in the order?

Mr Jones: We have assumed that the spirit of the order is to cover the whole waste hierarchy. If I remember, the original drafting of the order gives less emphasis on reducing waste. I cannot remember the exact wording, but certainly it has changed between the original publication and its current state. So I would assume the spirit of it is that it covers the whole waste hierarchy and, obviously, if from a legal point of view there is an area such as recycling that has been omitted from this, then perhaps that is an area where redrafting would be necessary. I assume there is not a reason why recycling has not been included.

Q22 Albert Owen: No. There is a debate that it could come under management and treatment of waste in that respect, but the question I am asking is do you think it should be added?

Mr Jones: Yes.

Q23 Albert Owen: It is a straight, yes, to that one. Then I will not argue with you and we will move on to something that may not be of specific interest to your group, but I do want your opinion on radioactive waste, which is, again, omitted from the order. Do you think it should be in there?

Mr Jones: I have to say, I would have limited understanding of the issues regarding radioactive waste. Therefore, to give an opinion, which would not be an informed opinion, I think I had better not.

Q24 Mr David Jones: Would you say that the proposed order would give the Assembly sufficient powers to tackle issues relating to climate change, such as reducing greenhouse gases?

Mr Jones: Once again, it is not my particular area of expertise. We mentioned it briefly at the end of the evidence there. From our understanding, it would give some powers to tackle issues relating to climate change. There are other legislative areas that have devolved powers relating to climate change, because it is such a broad area there. I think there are some omissions regarding energy that might curtail the Assembly Government in its activities.

Q25 Mr David Jones: Is the issue of climate change something that is a particular area of expertise of you and the organisation you represent, Keep Wales Tidy?

Mr Jones: Not in a detailed policy context.

Mr David Jones: Thank you.

Q26 Albert Owen: You say there are energy issues that are not in there. Can you expand on that?

Mr Jones: I think there are exceptions relating to certain types of energy.

Q27 Albert Owen: What are you saying? You think the Welsh Assembly Government should have greater powers over them?

Mr Jones: I would probably reiterate what I said about radioactive waste there. Generally I know there are certain developments, and I think there is probably responsibility for government at all tiers to tackle issues relating to climate change. Therefore, if through this process it gives the powers for the Welsh Assembly Government to fully do its part, then, yes, I would think so, but it is not my particular area of expertise.

Q28 Alun Michael: Can we turn to the issue of nuisances? There has been some concern expressed to us in evidence we have had in advance of this hearing that the definition of nuisance in the Act is different from the common law understanding of nuisance. What acts or omissions does matter 6.3, relation to nuisance, encompass, again, that are not already encompassed within matters 6.1 and 6.2 in relation to waste management and pollution?

Mr Jones: Our understanding of nuisance is that the issues that we are primarily involved with - things like litter, fly-tipping, fly-posting, graffiti, vandalism, dog fouling, et cetera - would come under the nuisance section of this order and that, by the inclusion of 6.3, that would confer the necessary powers in that field, if that is our correct interpretation.

Q29 Alun Michael: It is your view, then, that those are not covered within 6.1 and 6.2?

Mr Jones: To be honest, we really assumed it was nuisance. I do not know if there is a different definition. Certainly things like litter could equally be applied to waste in 6.1, but issues such as graffiti, or fly-posting, I would assume they would be a nuisance as opposed to waste or pollution.

Q30 Alun Michael: Again, powers in relation to those and the way in which those powers are implemented are already in the hands of the Assembly through the Clean Neighbourhoods Act. I return to that. What is being added? What is the value in the addition?

Mr Jones: We are probably back to the first question, are we not?

Q31 Alun Michael: I thought we might be. Perhaps you would like to add to your note. Are you aware of the fact that Clause 1 of the Clean Neighbourhoods Act puts the ambit of the sort of issues you have just referred to into the responsibilities of the Crime and Disorder Reduction Partnership in any area?

Mr Jones: Yes; certainly.

Q32 Alun Michael: Which means that there are means of accelerating action on those aspects in an area where it is a problem.

Mr Jones: Yes.

Q33 Alun Michael: Is that an avenue that you use as an organisation?

Mr Jones: To be honest, we obviously do not have the necessary powers. Certainly we have engagement with Community Safety Partnerships, where appropriate, and work through that process there.

Q34 Alun Michael: So if you know there is a problem in an area, you would use that avenue for encouraging action to tackle it?

Mr Jones: Yes; certainly.

Q35 Albert Owen: You will be aware (I think it is next week) that the Marine and Coastal Access Bill is coming to the Commons, having already been through the Lords. Do you think the provisions contained within it address the concerns regarding waste disposal within the territorial seas?

Mr Jones: This is another one that probably relates back to the answer to first question. One of the other areas we highlighted was the exclusion, in our understanding, of waste deposited, or any substance, or object in the sea, under the seabed, from any vehicle, vessel, et cetera, and obviously coastal litter is a major problem in undermining, if you like, the excellent coastal water quality and management of beaches in Wales. The exclusion of that appears to limit any action relating to tackling litter coming from that source. Perhaps, to answer your question, I am not particularly sure what is going to be in the Marine and Coastal Access Bill.

Q36 Albert Owen: Okay; I am not going to push you on that, but it is widely available. It has been through pre-scrutiny, it has been through the House of Lords, and all I am asking is: is your organisation confident that that Act can deal with it or is there a need for a specific clause to be added to the order?

Mr Jones: In the context of what has been discussed, I was not quite sure why that was an exclusion, if you like.

Q37 Albert Owen: Okay. I will move on to the timing, because I think this is an issue really. The order was most certainly made, firstly, a couple of years ago and it has been amended and has been redrafted and come back, but the Marine and Coastal Access Bill is now going through. Do you think it would be appropriate to push them both together and then find out that there is some gap, or to hold back with the order to see what legislation does come through the House of Commons in the final Marine and Coastal Access Act before proceeding with the order?

Mr Jones: I would say marine and coastal access relates to a specific area.

Q38 Albert Owen: I am talking about waste at sea.

Mr Jones: Yes, but it relates to one particular aspect of what is covered by this process. I suppose, by taking that view, you could almost keep it back indefinitely, because I am sure there would be other pieces of legislation that gradually, over time, would cover a certain aspect of this from that point of the process. It is a long process anyway to undertake, this process, as it is with all types of legislation, and so I am not sure what the benefits would be to sit back. Also, I think it has been highlighted already that under the Clean Neighbourhoods Act there are powers. The powers relating to that are still being implemented. They have been enacted, but at the local level they are still being introduced as and when they are required. So you potentially take quite a long period before you are able to truly evaluate the impact of the legislation.

Q39 Albert Owen: I understand the theory. What I am suggesting now is that the Marine and Coastal Access Bill has had a huge airing. There are going to be areas that will be devolved to the Welsh Assembly Government. It is about timing. What I am saying is we do not want to be in a position where we have to revisit them later on. I am suggesting to you that the timing is poor, that both of them are going through out the same time, and there might be gaps that you have to revisit which might impede certain organisations.

Mr Jones: Certainly, as part of this process, I think the aim is to identify the gaps and to try and do something about them.

Q40 Mr David Jones: Have you identified any particular cross-border issues in relation to the powers proposed by the order?

Mr Jones: The majority of the areas, particularly in the areas which we have some experience of, are local by nature. They confer powers on responsible bodies, which tend mostly to be the various levels of local government, and they tend to be perhaps implemented at that level. So from that point of view, I think, certainly in that sphere, the aim is to give the necessary tools for people at a local level, and the 22 local authorities in Wales and the 800, or whatever, town and community councils will have some powers as well. So from that point of view there would be relatively limited cross-border issues. I suppose, once you get into more detail - certain aspects of waste management and perhaps the pollution aspect and things like climate change - then cross-border issues might play a bigger role, but I think the emphasis on a lot of this is on the local level, although you will have differences between local authorities already.

Q41 Mr David Jones: What do you anticipate will be the likely impact on the private sector of any variation in regulation between England and Wales?

Mr Jones: I suppose that depends a lot on the measures that are going to come out of it.

Q42 Mr David Jones: Do you anticipate some impact?

Mr Jones: Again, depending on the measures, I assume you would have an impact. What this process would do is to gradually develop different legislative frameworks relating to these issues. Since secondary legislation has already devolved to the Assembly, I assume that happens in part already. Therefore, once you consider the Assembly measures, then I am sure that it would be, but I do not think you could argue it will not have any impact on the private sector.

Q43 Mr David Jones: In that case, would it be fair to say that the proposed order would be likely to increase the regulatory burden upon the private sector in Wales?

Mr Jones: Once again, without knowing exactly the detail of Assembly measures that would come as a result of it, it is difficult to say. You could equally use the argument that this process might ease the regulatory burden on business in Wales, because there might be action taken that would make it easier, or you might introduce measures that might incentivise different ways of working that might be more efficient. So I think there is a difference. I do not think it necessarily holds that it is going to be a greater regulatory burden.

Q44 Mr David Jones: Nevertheless, whether for good or ill, would you agree there is likely to be some regulatory impact as a consequence of this order?

Mr Jones: I think there is a likelihood.

Mr David Jones: Thank you.

Q45 Mr Martyn Jones: I think we have finished grilling you this morning. Thank you very much for coming and thank you for being here early so we could get on with business. We look forward to getting your extra written submission.

Mr Jones: Okay; thank you very much.

Memoranda submitted by Environment Agency and WLGA

Examination of Witnesses

Witnesses: Mr Chris Mills, Director, and Ms Ceri Davies, Environment Agency, and Mr Tim Peppin, Director of Regeneration and Sustainable Development, Welsh Local Government Association, gave evidence.

Q46 Mr Martyn Jones: Good morning, lady and gentlemen. It is good of you to come more than on time, given the conditions of travelling around London today. Can I ask you, firstly, the general question I asked earlier. In what ways will this Legislative Competence Order allow the Welsh Assembly Government to develop a more effective, holistic approach to waste management and other environmental issues than present powers allow?

Mr Mills: I think it is clear from our written evidence that we have not identified very much in terms of augmenting the areas which the Environment Agency in Wales is responsible for, at least those which we are yet aware of. I think one of the points that needs to be made is that to some extent there may be things in the future that crop up that require measures, but we do recognise that there are additional measures which could be necessary to meet the Welsh Assembly Government's policy agenda, which clearly is very wide in terms of things like the Environment Strategy, the Sustainable Development Scheme, the Waste Strategy, the forthcoming Climate Change Strategy. Those are pretty holistic policy agendas and I think there have been identified a number of specific measures that would help to deliver those, and I will give you one example, which is the fact that at the moment it is not possible to actually set statutory recycling targets and, in addition to that, the sort of quite stretching recycling targets that are set in the Welsh Assembly Government's Waste Strategy may be very difficult to meet without, for example, some measures in terms of producer responsibility. Those are not things which the Environment Agency is directly responsible for, but I thought I would give them because, in your previous questioning, of your requirement to have some specific ideas of things that could help that policy agenda.

Q47 Alun Michael: That is very helpful indeed. I wonder if you could look at any specific areas of activity in which the responsibilities of your agency might be helped within Wales as well.

Mr Mills: One of the ones that we put forward was under matter 6.2, where we suggested measures to mitigate adverse environmental impacts due to new development, and what we quoted there were sustainable urban drainage schemes. Commonly people are looking at those from the point of view of flood risk management, but clearly they could also be used in terms of pollution: because when in an urban environment you get, as we are getting, these severe thunderstorms, a lot of oil, grime and polluting substances are washed off the roads and SUDS can be used to actually mitigate those effects.

Q48 Alun Michael: So that would, in effect, extend the ability of the Welsh Assembly Government to enable local authorities, through their planning powers, to deal with those environmental issues. Is that what you are saying?

Mr Mills: That is right, and in that particular case we are getting multiple benefits, because you not only mitigate flooding, but you can mitigate pollution as well.

Q49 Alun Michael: Looking at the powers in the Clean Neighbourhoods Act, some of which are general, some within local authorities and some actually are very much in the ambit of your responsibilities, will the transfer of powers under the Legislative Competence Order make a difference those areas?

Mr Mills: I think I am right in saying that it is really fly-tipping that is the only area which we are particularly involved in, and, of course, only part of fly-tipping, because the Environment Agency takes care of the big, the bad and the nasty. From that point of view, I think the area that we have identified that might be helped by measures is not fly-tipping on public land but fly-tipping on private land, where the private landowner is responsible not only for preventing fly-tipping but also for clearing it up. Clearly, that is quite a difficult thing for a lot of private landowners, and if there were measures that could be developed to help them in that, then that might be useful.

Q50 Alun Michael: Obviously we are not examining the specific measures, but that would provide the legislative competence to the Assembly in an area where the administrative competence is already there, would it?

Ms Davies: Yes, we believe so. There are responsibilities there for fly-tipping currently, but the focus is on public land. Clearly, we work with local authorities to deal with the big, bad and nasty, but it is perhaps transferring some of the work and activities that we have done under that into perhaps the private secretary scenario, which has not really been scoped out and looked at in any detail.

Q51 Albert Owen: A similar question about waste management. Looking at your response here, you do not think it is a big problem excluding recycling either from this order?

Ms Davies: Yes. We were strong advocates in 2007 when we appeared at the Assembly around expanding the measure to include reducing waste. I think, the way that it is phrased at the moment, we would assume that that includes recycling as a legitimate waste management activity. Taking waste and processing it in some way to either reuse it or turn it into something suitable, or another substance, we would feel is covered by the current definition of the matter.

Q52 Albert Owen: We are not just talking about words here. I appreciate you what you said. In your opening remarks, Mr Mills, you talked about the policy agenda, and, of course, the policy agenda is for recycling. Do you think it would be helpful if that was added in? Would it be an additional help?

Mr Mills: What, the actual word "recycling"?

Q53 Albert Owen: The actual word, yes; putting words into bills and orders.

Mr Mills: If it makes it absolutely clear that that is the case, but I think most people looking at that very broad definition would assume that recycling actually is included as a reduction.

Ms Davies: I guess that we would assume, going into the more detailed measures, that is where more definition would be provided in terms of the measures we are trying to deliver as well.

Q54 Mr Martyn Jones: If you want to interject, Mr Peppin, you can. Do not feel that the Environment Agency have the floor.

Mr Peppin: Thank you. I agree with everything that has been said so far. If I may add perhaps from the local authority side, we can see areas where the new legislative competence may be used which we may not be actually over keen on, but we recognise that some of those things need to be tightened up. I am talking in particular about the way that authorities organise their waste management processes. We do have 22 different authorities, there are benefits in authorities working together and looking at doing things collaboratively. That is happening and I think that the powers may be used to help further that process, which would potentially bring greater efficiency. Obviously, Chris mentioned the possibility of statutory targets as well, which we are not going to be over keen on again, because we have got existing targets that are statutory, but sometimes these things can help to move things forward and the power to actually set those targets does concentrate minds; it does help to bring authorities together and work collaboratively.

Q55 Albert Owen: On radioactive waste, to your knowledge (both organisations) would radioactivity waste be included within the scope of this proposed order?

Ms Davies: Yes, we believe that it is; that it has not been covered by an exception from the matter. Our view is that nuclear installation waste would not be, because that is not an area of devolved competence, but radioactive waste that emanates from other facilities like hospitals, universities, schools and other establishments would be a captured by this broad measure.

Q56 Albert Owen: What about military bases?

Ms Davies: They have been excluded as well by exception, so not from there either.

Q57 Albert Owen: So you are happy with the wording of the proposed order?

Ms Davies: Yes.

Q58 Mr David Jones: A short point, if I may, on that answer you have just given, Ms Davies. In your opinion, would radioactive waste transported from nuclear installations to disposal facilities be included within the terms of this order or would it also be excluded?

Ms Davies: I believe that it is excluded. Nuclear installation waste, I believe, is excluded currently.

Q59 Mr David Jones: Whether it is stored on the nuclear facility or whether it is in transit from the facility to another facility.

Ms Davies: Yes, because the likelihood is the facility it is going to will in itself be a nuclear licensed facility.

Q60 Mr Martyn Jones: This is probably for the WLGA, Mr Peppin. In what ways could Legislative Competence Order producer responsibility impact upon local authorities and businesses in Wales?

Mr Peppin: I think we are very keen to see the producer responsibility side of this taken forward. A big thrust of our submission was let us reduce the waste that is created in the first place, and I think producers can contribute enormously here, particularly in terms of reducing the amount of packaging that we end up picking up and then having to recycle. It would be far better if we could encourage innovation amongst the producers to look at ways of packaging that use less materials, or certainly more consistency in the types of materials, so it is easier to bring those together and recycle them. So we would be very keen to see the powers used to advance some of the producer responsibility.

Q61 Mr David Jones: Would you say that the proposed order would give the Assembly sufficient powers to tackle issues relating to climate change, such as greenhouse gases?

Mr Mills: When we gave evidence to the Welsh Assembly Government in 2007 the matter as worded then, we felt, probably would not include greenhouse gases, but we actually advocated that it should. Since then it is my belief that the Welsh Assembly Government have sought legal advice, and I believe that emission of greenhouse gases would be included within the definition of pollution. However, if you look at this from a practical point of view and look at the mechanisms that are already available for trying to tackle greenhouse gas emissions - the European Emissions Trading Scheme, shortly the Carbon Reduction Commitment and the Environmental Permitting Regulations, which deal indirectly with cutting down CO₂ emissions through things like energy efficiency - I do not have an exact figure, but my best estimate would be that that probably accounts for 70% or 80% of total CO₂ emissions, which leaves what would be a relatively large number of smaller installations, such as small manufacturing business. I think then you have to look quite seriously at what the regulatory impact might be on those organisations. However, my feeling is that it would be useful to retain the ability to try to deal with greenhouse gas emissions within the measure because, clearly, climate change is such a significant issue for us that we may need all the measures that we can get to combat it; but I think, in practical terms, at the moment it is hard to see quite what specific measures might be brought forward.

Q62 Mr David Jones: I was about to raise that with you. It seems to be that there is already a plethora of EU directives relating to the issue of climate change, and, of course, we have our own legislation coming through Parliament. A concern has been expressed to us in advice that we have been provided with that this might involve further gold-plating of existing legislation on the part of the Assembly. You made the point about there being a regulatory impact here. Is it a surprise to you that there has been no regulatory impact assessment?

Mr Mills: Within this?

Q63 Mr David Jones: In respect of this order, or this draft order?

Ms Davies: My understanding is that if this goes through, then the measures that would sit below would be subject to a regulatory impact assessment and scrutiny. I think it is at that point that there would be something material to assess the impact of, to assess what the burden might be.

Q64 Mr David Jones: But given, of course, that this is the facilitating legislation that we are talking about, do you not believe that there should be an assessment here?

Ms Davies: I think the difficulty is in how you would quantify that burden without the detail of what the measure might be that sits below it. I know, for example, referring back to the CO₂ emission point, when the Carbon Reduction Commitment was brought in there was regulatory scrutiny around that and, for that reason, a large proportion of the businesses within are caught within that have a reporting only requirement, as opposed to an allowance requirement, but there was detail there about what the likely impacts would be.

Q65 Mr David Jones: Are there any powers to tackle climate change that you would like to see included in the draft order that are not included?

Ms Davies: I believe it comes back to the point about what may be needed in future if we get to the need to then, therefore, look again at that large number.

Q66 Mr David Jones: Speaking as of today with the degree of knowledge that we have at the moment, can you envisage any powers that should be included that are not?

Mr Mills: Could I add something? I think one key point here is the effectiveness of the existing powers. Quite clearly, if the existing powers prove to be ineffective, then, yes, the answer is you would need additional powers, but at the current time, for the reasons that we have already given, probably not.

Q67 Alun Michael: Can we come back to the question of nuisance. The proposed order gives this definition: "An act or omission affecting any place, or states of affairs in any place, which may impair, or interfere with, the amenity of the environment or any legitimate use of the environment, apart from an act, omission or state of affairs that constitutes pollution." It has been suggested to us that this is different from the usage of nuisance terminology in common law. Can you help us with that? What is your view of the definition? Secondly, what acts or omissions does matter 6.3 in relation to nuisance encompass that are not already encompassed within matters 6.1 and 6.2 that already exist?

Mr Peppin: Yes, the definition would not win any plain English prizes. I notice what Tegryn said earlier in his evidence. The areas he outlined in terms of litter, dog fouling, graffiti, fly-posting, are the things that we interpret as being the meaning of nuisance. Whether they are covered adequately under 6.1 and 6.2, I guess you could find ways to say that there are not elements that are covered. I suppose there is a benefit in having some clarity to say that nuisance activities such as the ones I have just mentioned are covered by the order and, therefore, there is a licence for the Assembly to actually take action in those areas. It comes down to the clarity really. I do not think the definition does give that clarity at the moment.

Q68 Alun Michael: So there may be a degree of belt and braces, but at least you are sure you are not omitting anything. Is that what you are saying?

Mr Peppin: Yes, that is what I am saying.

Q69 Alun Michael: Would that be the Agency's view too?

Mr Mills: From our point of view, our involvement with the nuisance side of things is pretty limited. The first aspect is nuisance in terms of, for example, noise or odour from sites we regulate, and we currently have powers to do something about that anyway. The second would be the big, bad and nasty fly-tipping, and, again, in many cases that would possibly be more encompassed by matter 6.2 rather than 6.3.

Q70 Albert Owen: Are you confident that the forthcoming Marine and Coastal Access Bill will contain provisions to address the concerns regarding waste disposal within territorial seas?

Mr Mills: To the best of our knowledge, yes.

Q71 Albert Owen: The issue of timing. You mentioned you gave evidence in 2007 on this and here we have a comprehensive bill coming through which has measures for Wales. Do you think it would have been more appropriate to hold back on this order until that bill has gone through Parliament, bearing in mind that they are looking at this holistic approach and that the whole environmental agenda could be dealt with there?

Mr Mills: I think that is a bit of a philosophic question, because it seems to me that at any point in time you could make an argument that specific measures that might be encompassed by this order might be provided through existing legislation.

Q72 Albert Owen: Sure, but I am trying to be practical here. What we have got is government ministers here talking to Welsh Assembly ministers; there has been full consultation, pre-legislative scrutiny about what measures they want contained within that bill. What I am concerned about is the point I made earlier. If that goes through, then all of a sudden there is a gap found and there is the need for another order. You have waited this long for this order to come along. Why not hold it back for a period of time so that the Welsh Assembly ministers get the complete picture that they want?

Ms Davies: All I was going to add is I guess it comes down to the competing priorities, through the comprehensive strategies and policies they have developed, of them wanting to ensure that they are putting in place measures to be able to deliver on the commitments that they are making in those. So I think it is a fine balancing act, on the timing, of trying to ensure that for the Wales Waste Strategy, which is out on consultation now, there are clear measures in place to deliver on some of the things that they are aiming to achieve.

Q73 Albert Owen: So you are not concerned about them going through at the same time?

Ms Davies: No.

Mr Peppin: I am sure the Assembly has looked closely at this themselves, and we rely on their judgment that they feel there is still a need for the two to go forward; that they will have looked at the marine provisions and feel that there is still that requirement to progress.

Q74 Mr David Jones: Have you identified any particular cross-border issues that might become apparent in relation to the powers proposed by this draft order?

Mr Mills: We do make clear in our written submission that we would not want to do anything to disrupt some of the regimes that we have that do, in fact, go across England and Wales, and the example we give is the Environmental Permitting Regulations. Those have been specifically designed, in consultation with the both Governments, to ensure that we are providing a consistent, clear and efficient permitting system for both countries. For things like that we would not wish to see measures that would actually have some perverse impact on. Equally, one can envisage, particularly for example in relation to fly-tipping, which I think both the WLGA and ourselves gave as an example, the enforcement of fly-tipping could drive the activity from one location to another or, indeed, by a measure that actually restricted, for example, the particular waste stream that you could you see, the waste stream then being diverted somewhere else. These are the sorts of things that need to be taken into consideration. It is not, I think, a show-stopper, but they just need to be carefully considered when a particular measure is put forward.

Q75 Mr David Jones: To what extent would you say the private sector is likely to be affected by any variation in regulatory regimes as between England and Wales?

Ms Davies: I think that comes back to a lot of work that was done around the Environmental Permitting Regulations, because that was driven by looking at the impact of the regulatory regimes on businesses and trying to provide clarity and on-going forward security in terms of them understanding what the requirements were and there being this level playing field across England and Wales and, indeed, Scotland and Northern Ireland. A lot of the legislation that we deal with, obviously, emanates from Europe anyway, so it is Europe-wide as well as UK-wide. I think, in terms of moving to the detail of the measures, there is a need for a regulatory impact assessment and scrutiny around what the impact on business might be around cross-border issues and potential differences.

Q76 Mr David Jones: We are coming back to the gold-plating point, again, are we not? Potentially there could be a significant impact upon the private sector in Wales.

Ms Davies: Potentially there could be, and that is where I think the regulatory scrutiny needs to come in and make sure that the impact on business is assessed properly.

Q77 Albert Owen: You are obviously talking to colleagues in England on this matter. Did your colleagues in England give evidence to the Welsh Assembly Government, or did they give you a briefing when you were giving evidence? What we have found, and this is unintentional, when we are devolving powers from Parliament to assemblies and parliaments in Scotland, is there is this cross-border issue that never gets discussed, and we have had a number of inquiries, the Welsh Affairs Select Committee, which have been helpful later on to assist in those processes. Do you think your colleagues in England have been given adequate input into this and have you been able to relay that?

Mr Mills: There are two points there. The Environment Agency is an Environment Agency for England and Wales. For example, if we are presenting written evidence to a committee such as yourselves, there is a process by which that will go to our chief executive. So we do not operate as two organisations.

Q78 Albert Owen: That is why I am asking.

Mr Mills: Equally, operationally, part of our Midlands region has operational responsibility for Powys and we have operational responsibility for parts of Herefordshire, because we work on catchment boundaries rather than political boundaries. So, yes, there is a very thorough understanding and joined-upness between people in the Environment Agency operating in England and those operating in Wales.

Mr Martyn Jones: That is useful. Thank you very much indeed for your evidence; it has been a useful session. If you have any other additions you would like to make, would you let us know before we finish our report. Thank you very much indeed.