Climate Change, Environment, and Infrastructure Committee

Can I please welcome our witnesses this morning? Thank you so much for joining us. Could I please ask you to introduce yourselves in turn for the record? If we can perhaps start with you, Dame Glenys?

Thank you very much. I'm Dame Glenys Stacey. I'm chair of the Office for Environmental Protection. Can I just explain to committee members that I'm not in the room I anticipated being in because of an echo? So, I'm actually in a coffee bar area of a conference centre, so, please forgive me if the noise level behind gets a bit difficult. I'll move if that happens. Thank you.

Thank you very much, and welcome to you. If I can move on now, perhaps, to Natalie.

Thank you. My name is Natalie Prosser. I'm the chief executive officer of the Office for Environmental Protection, and I'm very happy to be here today.

Thank you for joining us. And finally, Mark.

Good morning. My name is Mark Roberts, I'm the chief executive of Environmental Standards Scotland.

You're very welcome, the three of you. If you don't mind, we'll got straight into questions, and if I can start with a specific question for the OEP, just to ask, really, whether the interim environmental governance secretariat role, if you believe it was effective in logging and passing complaints to the OEP once established.

Shall I start, Natalie, and then you can follow on? So, yes, we do think they were enormously helpful, those arrangements. The team we had were very good. They worked assiduously to do the right thing and not cross the line into actually investigating complaints. But there's a lot of work, as you receive a compliant, to make sure that it is at the appropriate place and in the appropriate format. And all that was done very carefully for us by that interim arrangement. And it also gave us a chance to test out our embryonic complaints procedures, so, it was a bit of a testing bed as well.

What I would add to that is that there was a reasonably considerable delay between establishing the IEGS and the establishment of the OEP on a statutory footing, and for those complainants who had to essentially wait for the OEP to be a on a statutory footing, we had to take a lot of care to support and manage them because there was a delay, and I'm sure that that was the cause of some frustration. But I agree with Dame Glenys's assessment—it was very helpful having that function in place to allow complaints to be received and triaged before they were passed over to the OEP proper.

Thank you, both. Both Janet Finch-Saunders and Huw Irranca-Davies have indicated that they have a supplementary, so, I'll come to you first, Janet.

Thank you and good morning. I just picked up on the comments that you made on not crossing the line to investigate the complaint.

Yes. So, the interim body did not have the statutory powers of investigation. We had to wait for those to be enabled. That was the difficulty.

Okay. Now you have those powers, you've followed on through now with a number of investigations, then.

Yes. We've had 86 complaints; we've had over 700 general inquiries, and we have commenced two investigations.

Two investigations. Thank you.

Thank you. And if I can bring Huw in.

Thank you very much, Chair. I just want you, briefly, to reflect on what lessons we might take as a committee now that we have a slight delay here in Wales. So, how do we overcome those hurdles that you've had, particularly with that lag between the powers you needed? What would you say to us as a committee?

Right. Well, again, I'll start, Natalie, and perhaps you'll come in. So, of course, the lag that we experienced wasn't just a problem in relation to complaints, it was the other powers and duties that we hoped to have as well as a statutory body. And during that period, I do think it's right that we were able to receive complaints and that people were then kept informed. And, as Natalie said, we worked hard at making that happen.

But we were also able to make progress in other respects. So, for example, Government was persuaded to set up the OEP on an interim footing. So, there was this intermediate stage, if you like. We initially had the secretariat, then we became the interim OEP, and then we became the enacted OEP proper. And in that interim OEP period, we were able to make progress in a number of ways. We were able to, for example, complete the appointments process for members of our board. And that's a sizeable amount of our intellectual capital, and they were able to steer and shape the way the organisation would be in the way that they should. So, being able to get key senior staff and board members in early, before enactment, if you like, did enable us to hit the ground running, I would say, Natalie, didn't it, and it gave us thinking time. There's no point in having thinking time if you haven't got the right people doing the thinking. You don't want an interim secretariat doing that thinking for you, when you're thinking about how you prioritise matters or what your approach to enforcement might be, or what the priorities might be for you. You need the people who will be the bedrock of the organisation doing that thinking with you, and we were able to get those on board.

Thank you very much. If I can bring Joyce Watson in.

Thank you. Good morning, both. I think quite a few of the questions have been asked, but you started talking about your reflections on establishing the interim OEP prior to the legislation. Do you have anything further to add?

Natalie, would you like to start?

The material benefit of the OEP being on an interim footing is, as Dame Glenys mentioned, the ability to do the building of the organisation, which is a substantial resource investment of recruiting, establishing all of your operational protocols, finding premises and so on. That space did enable us to progress.

The other lesson I learned from the interim OEP was that we worked very closely with our sponsorship department, the Department for Environment, Food and Rural Affairs, to scope out a governance arrangement that allowed OEP to take further steps forward in that establishment. That was developed in partnership, ahead of the legislation being finalised. For example, that allowed us to deliver a first report, assessing the Government's progress, which is our 'Taking stock' report, and it allowed us to provide advice to Government while we were in the interim phase. We didn't have all the powers that the statutory OEP had, but it allowed us to start doing that job in earnest while we were still building the organisation, and it allowed us to straight away start performing our role and supporting those statutory functions before they came online. So, I do think the interim arrangements were very valuable. I think the lesson from us is that there is real merit in establishing an interim body while the necessary legislative process happens. It's important that that legislation is subject to the right thinking and scrutiny, but in the meantime, we were able to crack on in getting the organisation up on its feet.

Thank you.

Okay, and where did you manage to find your staff and your expertise, and how did you go about doing that?

Natalie—

Shall I start?

Yes, please.

It was incredibly valuable that the appointments process for our board had been commenced early, and our board was appointed in interim form in July. That brought a guiding and informed board to allow the shaping of the organisation. I think that was a very prudent and wise decision to make to get the board up and running. The board, then, were able to commence recruitment and appointment, which we started almost straight away, and the interim arrangements with DEFRA meant that we could recruit staff on an interim basis into DEFRA, and the legislation then enabled those staff to be ported over into OEP. That was a very helpful enabling bit of legislation in the Act that happened.

We are based in Worcester in England and Northern Ireland, and we progressed with our England-based recruitment initially. We advertised through the normal civil service channels. We found an enormous amount of interest from a broad range of skilled individuals in the organisation, so we were able to bring on board relatively quickly some very high-calibre staff. Through the transition period, we retained that supporting group of seconded staff from DEFRA, some of whom elected to apply and stay with the organisation on a permanent basis, and some of whom went back to DEFRA. That allowed a smoother transition from interim to statutory form.

Thank you. Janet.

Thank you. A very quick one first: how many staff do you have, and how many are on your board, please?

Do you want to go with the board, Dame Glenys, and I'll pick up staff?

Yes, I'll deal with board. So, our board membership isn't as large as it could be. The statutory provisions would allow us to have a couple more board members. The statutory provisions also provide that our chief exec is a board member, as indeed she is, and that at least one other member of our executive staff should be on the board as well. And we deal with that by rotating—[Inaudible.]—on and off on a sort of six-monthly basis, so they each get a chance to do that, and that's working quite well. We followed the model set up there by the National Audit Office, actually, in approaching that in that sort of fashion. Other than that, there is myself, there is a board member dedicated, well, from Northern Ireland; by statute, we need that member, although he plays his full part across the whole range of other work. And then we have four other board members, bringing a mix of expertise, understanding of environmental law and wider environmental matters, and a good amount of policy experience as well. If I could say, they've proved to be excellent, and there are no one-trick ponies on our board; they all bring much more than one thing.

Oh, fantastic. So, what would you say are the lessons for Wales if we build—or they build—an interim body in anticipation of legislation to establish a Welsh environmental governance body?

Okay. So, I'll start, Nat, and you can pick up what I forget. So, first of all, there'll be a large debate about the extent to which this body would be independent, as there was in our country, and you can expect that debate to play through. It is important, in my view, that the relevant parliament or assembly is comfortable, ultimately, with the level of independence to be given to the body, although, in my experience, independence is all in the doing, in any event. So, you can expect that debate and the to-ing and fro-ing that would come with that. And you need to ensure that the body is sufficiently independent, in my view. That's the first thing.

The second thing is that the quality of those board members, if you set it up in that way, is so important. You need a really good board for something like this, particularly where the board has statutory powers reserved to it, for example, to commence investigations. So, making sure that you attract a good cadre—we had almost 200 applicants, I think—and that the process is thorough and fair, and making sure that you get the best possible people, I think, is important as well, and get them in quickly so they can start to do the thinking that needs to be done.

Thirdly, it is really important, in my view, to think carefully about the design of the organisation. Now, that is a matter for the organisation; it's not for a Government department, in my view, to do the detailed organisational design, but design matters, because this will be a cerebral organisation; it needs to do a good amount of proper thinking. It needs to be expert as well. It can't be expert in all areas of the environment, so it will need to bring in expertise, and also it will need to be remarkably flexible as an organisation, and you do need to think that through. It needs an embarrassing number of lawyers, because it's a very legalistic territory. You need to think about how those things are going to be designed to best effect. So, that's important.

The last thing I would say is: get yourself a really good interim chief executive. If you've got someone that you actually do know can do the job, as we have the luxury of having Natalie, it does make it possible.

Thank you very much. And also what are your reflections on the establishment of Environmental Standards Scotland? And that's—

Oh, sorry, that's—. We're going to a different section there.

I do apologise.

Sorry, apologies. Yes. Mark, thank you for your patience. And thank you for answering so fully on the OEP there. If we can move on just for some questions on the ESS, and I think Jenny's going to kick us off, and, then, you're going to come in, Janet.

Very good. Hello, good morning, Mark Roberts. We've heard some very cogent arguments from the OEP about the importance of establishing a shadow or interim board, and I wondered if Scotland followed the same model, or, if you did things differently, what were the reasons for that.

Thank you, and good morning. So, first of all, it might be helpful if I just set out some of the chronology in terms of how things operated in Scotland. I should also say that I joined after the events I'm about to describe, so I'm reliant on my team's history here to a certain extent. So, the Bill that established ESS was passed by the Scottish Parliament in December 2020, and then, during the early part of 2021, ESS, in its shadow or interim form, came into being, and that included, in a very similar way to OEP, the establishment of the board.

Our board is currently five members, all of whom are non-executive. I'm not a member of the board. It is about to become seven; we're about to have two new board members join us, which will take us up to our maximum number. During that interim or shadow period, the transition team, who had been established to start the process of setting up ESS, worked very, very hard—a very small number of people—around three key areas: firstly, the establishment of the organisation and its governance; secondly, around setting up about what our investigatory processes would be; and, thirdly, setting out our scope in a draft strategic plan that would set the backdrop for our work over the coming years.

That interim or shadow phase ended on 1 October 2021, when ESS came into being and we adopted our full statutory powers. So, there was a comparatively short period of time when the board was operating in that shadow capacity. We were receiving enquiries. We were getting information coming in from the public and from organisations. But, similar to OEP, without our statutory powers, there was not a lot of work that we could really take on or do a significant amount of work with until 1 October 2021, when we came into our full mode of operation. And since then, we have gradually been growing and establishing the organisation, and that work is an ongoing process. We are currently about a head count of 20. I envisage that, fairly shortly, becoming about 25, and that's where we have got to at the moment.

The last question from me, before I hand over to somebody else, is: how good a job did the Scottish Parliament do in establishing in the public's mind that the ESS is independent from Government, given that one of your major roles is to scrutinise public bodies?

I think the short answer to that is, 'I think it did a very good job.' And I think the fact that we are established as a non-ministerial office, the appointment of board members has to be approved by the Scottish Parliament, every year we have to make a statement as part of our annual reporting that we have sufficient resources in order to deliver our functions to the Scottish Parliament—. And I think there's real clarity, both within Government and beyond, that we are independent of Government, and our main accountability, our primary accountability, is to the Scottish Parliament. And if you have an opportunity to look at our strategic plan, independence is one of the key values of the organisation; it's one of the key principles. And for me, it's one of the major priorities. My responsibility is ensuring that accountability to Parliament and that independence is maintained and demonstrated.

Thank you.

Many thanks. Can I bring in Janet?

A similar question to before: where did you find your good staff and expertise? And how many staff do you have?

So, the initial transition team was brought in to concentrate on those three priorities that I mentioned previously, and they came from both Scottish Government and also from the Scottish Public Services Ombudsman, so, bringing that investigatory perspective to bear. Since then, we've recruited people from a really quite diverse range of backgrounds. So, we have people who have come from a local authority environmental health background, from environmental consultancy, from regulators such as Natural England, from the Scottish Environment Protection Agency, from the civil service itself, both at a UK level and at a Scottish level; we have people from the third sector, from environmental charities, and even someone like me, who has come from an audit perspective.

And how many staff do you have?

So, at the moment, we have a head count of 20. We have active recruitment campaigns going on, so I anticipate that, fairly shortly, becoming about 25, which is about where we want to be.

Thank you. That's me done.

Thank you very much.

Oh, sorry, I beg your pardon. What's the kind of resource that you've needed for its establishment?

So, in the transition year of 2021-22, our budget was £1.3 million. That grew in 2022-23 to £2.2 million. And during the current year, we have about £2.8 million.

Thank you.

Thank you very much. If I can bring in Huw.

Thank you. I'm going to switch back, for a moment, to the OEP, but we're coming back to you, don't worry, as well—to our colleague in Scotland as well. But, just for the OEP at the moment, can I just ask for your reflections on the remit of the OEP now that it's fully operational?

Natalie, do you want to go first, and I'll come in later?

Thank you. That's a very good question. I would say that now that we have been operating for over a year, we've used all of the functions that we have, with the exception of bringing our own legal proceedings. If I summarize the main functions the OEP has, we have a role to scrutinise environmental improvement plans and targets, and we've now published two reports doing that, and our most recent report, published in January this year, I think has been extremely influential and important in assessing the progress that Government has made, and that's a key part of our programme and something that we will be investing in in future. I think that has been a very valuable exercise for us and for wider government.

We are scrutinising environmental law, and we published our first statutory report in this regard very recently in relation to Government's completion of something called PIRs, which is assessment of the effectiveness of regulation. And we've got two major programmes under scrutiny going on at the moment, one in relation to laws for nature, with protected sites and environmental impact assessments, and one in relation to the regulation of water. Those will report later this year, and we'll see the effect of that. It's very pleasing to be able to have that function, because it allows us to really focus on the gap between the setting of laws and the delivery of them in practice. So, it allows us to see how things are working on the ground, which I think will be very insightful, particularly should those laws be reformed.

We advise Government in relation to proposed changes to environmental law and other matters, and we've provided a number of advices in that respect, including, for example, in relation to biodiversity net gain, in relation to a Green Paper in terms of marine net gain, and a number of others, and those advices, we think, and hope, have been influential, but they've also built our bank of knowledge of these laws, and that has fed into the understanding in both our monitoring and scrutiny functions and our scrutiny of environmental law.

And we have complaints investigations and enforcement, and Dame Glenys has already mentioned that we've had over 80 complaints and over 700 enquiries, which are essentially pre-complaint discussions with members of the public. We've taken two of those through to investigations, one of which will conclude fairly imminently. We've also exercised our power to intervene in legal proceedings; there is a case in front of the Supreme Court today where the OEP's a statutory intervener.

Some of these powers and functions relate or are not hugely dissimilar to the role that the commission had, but, actually, in large part, they go much, much further, and in a way that we have found has enabled us to focus with a forensic-type intensity on issues that are really topical and issues that are really important to Government. So, in practice, I think the suite of responsibilities that we have are a very useful and comprehensive set of roles and responsibilities. The biggest challenge we face as an organisation is the sheer breadth of our remit; it means we have to be very targeted and very selective in the matters that we take forward, and we've invested a considerable amount of time in setting our strategy and deciding how we're going to choose topics to focus on, because the list of topics we could focus on is a very, very long one.

That's a lovely, comprehensive answer, and, as I turn to Dame Glenys, if you've got anything to add, could I ask you: it's been described there by your colleague as a very comprehensive set of tools that you have in terms of regulatory functions, statutory functions and so on. Is there anything at this moment that you think is still a gap that frustrates you that you don't have within your remit, that you have quiet conversations with the Secretary of State about? Or, alternatively, is there anything that you would say to us as a committee, 'Well, as you look to establish something down here, you should do something different'?

Thank you. So, it does look like an unusually broad range of powers and responsibilities when you look at it, and, at first sight, it's hard to envisage how it would work. What we have found in practice is we've set out to make the biggest possible impact, and so what you can do then is take the issue that is of most significance and look across your entire range of powers, duties and responsibilities to see how you best tackle it, and that's the approach that we generally take. It becomes very clear then: you've got an issue, you need to deal with it, which of these various tools are you going to use in order to make the most difference? And you may be using several at once. So, I think that all works very well.

Secondly, there was a long debate, and there probably still is an interest, in the fact that we don't have powers to fine, whereas, of course, financial penalties were a significant part of the pre-Brexit arrangements, if you like, for oversight. Actually, we never argued for powers to fine and wouldn't wish to have them. It's all a bit of a circular economy, fining a public body; it really doesn't make a lot of sense. We would argue that that would take a lot of effort, and for what? We think our powers in terms of enforcement are generally good enough. They're certainly workable and we are making them work. They can be a bit ponderous at times—you might want to think about that. Our experience, for example, has been that, when we were calling Government to account for its potential failure to set statutory targets for the environment by a statutory deadline, our tools didn't really quite fit; our powers didn't quite fit. We're happy to talk to you or your staff about that, and what could have possibly made a difference. But, generally speaking, our powers are well suited, if you like, to what we're trying to do.

Lastly, we do keep a list of things we might wish to change, had we the opportunity. The list is really quite a few matters of detail rather than anything particularly profound. But, like every regulator, every oversight body, should we have the chance to review our powers, we probably would have something to say, yes. Thank you.

Thank you. Just one other question, then: is it too early at this moment—? You mention the fact that, actually, the work that you've been doing, and the accumulation of data that you've been doing and so on, is good in itself and might turn things around, but is it too early to say that you've made a tangible difference in areas in environmental outcomes, or can you point to areas where you have made that difference already?

Thank you. It is always difficult to measure the difference that you make in a business like this, and in the environment, it's particularly difficult to measure in a timely and reliable way, isn't it? But we can point to some things. For example, those statutory targets were set—yes, three months late—but there was a real concerted effort on the part of Government to do that, and that's very important. Secondly, those targets are, in the main, sufficiently challenging, and we gave advice about that, about those areas we thought were sufficiently challenging and those that weren't, and we know that our advice was read and regarded. Indeed, we did point out a difficulty there in terms of the legality of one of the proposed targets, and that was amended and sorted as well. So, we can see some positive things there.

We've also been able to discuss with DEFRA a potential difficulty—well, not potential, a real difficulty, actually—about the extent to which they are able to measure the state of the environment and measure the extent to which they are meeting each of the goals that they set, and the targets, statutory or otherwise, that they wish to meet. Because there's an awful lot of data, a wealth of data, but the data doesn't necessarily measure the attributes that you need to measure in order to be sure that you are on the right trajectory to meet your target. If you look at species abundance, for example, the last collated information we could find, to rely on for our January 2023 report, was from 2018 or 2019. If you're aiming for a 2030 target, as this Government is, you need to get a bit more on the front foot. So, we're already having constructive discussions with DEFRA. They're making a big investment in data collection and collation, but we are pressing to get the gaps filled, if you like, to make sure that we can then measure achievement.

I've no doubt at all that some of the advice we've given to Government—Natalie mentioned a good number of those pieces of advice—has been really helpful to the teams dealing with those matters as well. We are now beginning to have those discussions with departments beyond DEFRA. The Department for Levelling Up, Housing and Communities, for example, is there looking at environmental assessments relating to planning and what they might do by way of that new scheme. So, I'm confident that we are making a difference. One of the big challenges is how we measure that difference, actually, and how we report that difference. You'll know from your own experience that having influence is not always measurable—not at all. But we've got our thinking caps on about how to demonstrate achievement. Thank you.

Thank you. If we can bring Mark back in, and if I move to Jenny to lead on the questions.

Thank you very much. Clearly, the laws to protect nature and the regulation of water are both top priorities in the public's mind in Wales, and I just wondered if that is also in the forefront of the remit of ESS.

Yes, absolutely, and similarly, as you will imagine, they're topics of high priority in Scotland as well. Just to set this in context, ESS can operate in two ways, similarly to the way that I think Glenys and Natalie have described—[Inaudible.]—in response to what we term representations from members of the public, and explore whether there have been any failures to comply with environmental law, or there is a weakness in the implementation of environmental law. Some of those have touched on those questions of the water environment, of biodiversity, of protected sites, protected areas, and so forth.

The other aspect of our work is more proactive as opposed to reactive, and it's work that we initiate ourselves. As we developed our strategic plan, we did a significant amount of work looking across the broad sweep of the environment, which, as Natalie says, is very, very broad, to identify what would be our priorities for this proactive work, and within those priorities, questions around biodiversity and water environment are absolutely core to that, so those are two of the eight themes that we’re looking at. We are looking to be producing work in those areas later on in the course of this year, alongside work on air quality, which is also one of our priority areas.

So, to give a shorter answer to your question, yes, absolutely, nature loss and water quality are high priorities for us.

I just want to examine your powers to actually make a difference. I do rather agree with Dame Glenys that to the power to fine is all part of a circular economy, because the board of X company simply passes it on into customers' bills. But could you just tell us—? I'm sure you have some carrots, but what are the sticks to enable people to stop doing the things that are so harmful to the environment?

Our powers in terms of enforcement are set out in the 2021 Act that provides the foundation for our powers. At a basic level we can issue information notices to all public authorities, which they must comply with, seeking information on anything that’s related to environmental law. We have the power to issue a compliance notice where we think there has been a failure to comply with environmental law, or we think that that failure is resulting in environmental harm. We can issue improvement reports where we consider that there’s been a systemic failure—by that, we mean probably across multiple public bodies—to implement environmental law effectively. And finally, the ultimate option is for us to petition for judicial review, or to become a party to another organisation’s judicial review of a public body. Clearly, that would be at the extreme end. Where we felt that there was a serious failure, or that there was a serious or immediate risk to the environment, that would be open to us.

We have not issued any compliance notices to date. We have made one improvement report, and that related to air quality and the long-standing failure to meet nitrogen dioxide targets. That had been an issue that had been identified by the European Commission prior to Brexit, and we picked up on that, conducted an investigation and issued an improvement report to the Scottish Government. It might be interesting just to understand the process that then follows, because it’s important in terms of independence and accountability. The Scottish Government has to respond to that improvement report within six months with an improvement plan setting out to the Scottish Parliament what it is going to do in response. That process has now run through. An improvement plan has been laid in the Scottish Parliament, considered by the Scottish Parliament, and approved by the Scottish Parliament. That was a really interesting demonstration of how the system of accountability now operates here in Scotland.

Thank you.

Huw.

Can I just very briefly explore this issue of fines with both organisations for a moment? When the Groceries Code Adjudicator was established, there was a big discussion over whether fines should be part of the armoury to deal with supermarkets or others that were abusing the supply chain within it. It wasn't given, and subsequently people said it should have been given. In the fisheries industry, if there are people abusing fisheries by landing black fish, I've seen fines of £0.25 million. The difference is that both of those are within commercial operating sectors—okay, I get that—but fines are part of the regulatory system on public bodies as well. When the polluter, such as a water company, pollutes serially or has a landmark pollution incident, they can get fined. Why have the Government and you come to the conclusion that fines are not part of the tools you should have?

Just to say, for my part, as the chair of the OEP, I wasn't consulted on whether or not we should have fining powers; it was a matter for Parliament, so Parliament determined that. I simply make the point, as a seasoned regulator, that fines are enormously complex and time-consuming to deliver, and they don't necessarily bring about the change in behaviour that you would wish when it's a public body. The money is simply circulating from Treasury to Treasury. I can see a rationale for having fines, but equally I see the sense of not having them.

I think the point for us is to have enough clout, enough authority, to make a difference and to get bodies to change their behaviour without going anywhere near, actually, a court or, indeed, a penalty by way of fine. Our approach is to always start directly with communication with the body in sight, if you like, and to reach a compromise, where we can, to make sure that the environment is protected and, where necessary, enhanced. Looking to court proceedings and then a fine, which is going to take you, maybe, two years, is not necessarily the best way in which you change behaviour and make a difference. But, it is, ultimately, a matter for the Government and the Government could choose to give a fining power. As you say, it's one of the tools that regulators and oversight bodies sometimes have.

That's a really good answer, but I just wonder whether I could ask you—. You're absolutely right that parliamentarians agreed what your remit and your powers would be, but can I just ask, do you think you are missing a tool in the toolbox? I do agree with you, by the way, that you want to avoid fines; you want to find a way to change behaviour through different ways. But if you don't have that tool in the back of your armoury and it is a circulatory economy—it's public money going from one area to another—actually, when you do bang somebody out of the baseball park with a massive fine because their behaviour is so reprehensible, yes, it's the public paying for it, ultimately, but, my goodness, it's not just an embarrassment, for those directors and their future careers it's—. So, do you miss having that tool? Maybe I could ask our colleague as well, but can I just come back to you, Dame Glenys, on that? Do you miss having that tool?

I don't, personally. We're not a first responder, are we? First responders, like the Environment Agency or Ofwat, can and do impose very substantial fines on, for example, the water companies. It's not that those tools aren't available to the immediate regulatory bodies; they've got those. We're a sort of level ahead of that, different to that, at a higher strategic level. Ultimately, of course, we can take any public body or, indeed, the Government to court, and the court can direct the Government or that body to do what is required. So, we have other tools, really, that I think are more suited to our position as not the first responder, but the oversight body. Natalie, you might want to add a perspective on this as well. I'm very sorry about the background noise here.

We can't hear any background noise—

Oh, you can't.

No.

Thank you.

I would just add the nuance that unlike front-line first-responder regulators, we only oversee the public sector, so we have only organisations exercising functions of a public nature. If we had the power to fine them, those fining moneys would be recirculated back through the Treasury. In that respect, I feel that the impact of any fine would be minimal, but the administrative burden of levying it would be substantial. I think it is far more important that any oversight body can bring proper and fulsome scrutiny and accountability, and can do that in a way that's transparent. I think it is that approach that engenders public trust and motivates behaviour—and we are talking about the public sector not the private sector—promotes the behaviours and focus that we want to see.

I can see that Jenny has indicated that she wants to come in.

Okay. I just want to push this argument slightly further, because obviously many of the bodies who deliver public services are actually private companies, and so this is not as clear cut as it might appear. I think the public's disgust at the behaviour of water companies, in terms of the pollution of our rivers and seas—. The argument is being made that only imprisonment of board directors will change the behaviour of these companies, who simply pay the fines because it's cheaper than doing the work. So, has there been any serious discussion within Parliament, either in Scotland or in England, about strengthening the powers to really get these companies to take their duties seriously?

Right. There is active discussion in this country about oversight of the water companies. I should say, by the way, that when a water company is conducting public business it does fall under our remit. It counts as a public body in that respect, so we do have them under our umbrella, if you like. Discussions here have been broadly about the respective roles, responsibilities and powers of Ofwat and the Environment Agency—the two immediate oversight bodies—and, indeed, Government here has lifted a cap that was imposed on the extent of the fine that could traditionally be imposed on water companies. So, there's much greater remit now for much bigger fines. So, there's already been that change here. We can see that happening.

But, of course, I come back to the fact that we are not the first responder. But what we can do and what we are doing is looking at how our Secretary of State for the environment, the Environment Agency and Ofwat each follow through with their roles and responsibilities for the oversight of water. So, these responsibilities are quite complex, overlapping, historical. No-one's really mapped them out, but we are doing that. We are setting out, in a report that we will publish over the summer, exactly what each of these three bodies have by way of responsibilities and whether those are working well enough or not, and whether there needs to be any—. Is there any breach of the law? Is there anything that could work better? That is our role. It is not our role necessarily to go for the pockets of the chief executive of a water body, because the first responder is after that, if you like. We're operating at a slightly different level, if that's helpful.

Thank you.

Thank you. Can we just hear from Mark Roberts on this point?

Yes.

The context is different in Scotland, where Scottish Water, as the single organisation that provides water and sewerage services, is a public corporation and the sole shareholder is the Scottish Government. So, there are not private water companies operating within the domestic market within Scotland, and, in the same way as Dame Glenys and Natalie have described, SEPA, the Scottish Environment Protection Agency, is the immediate responder and regulator of Scottish Water. It grants licences to Scottish Water to operate. If Scottish Water breaches the conditions of those licences, SEPA can prosecute, and has done, and Scottish Water has been fined, and so that money has, as Natalie has described, been recirculated within the public sector, but that has been relatively limited in the number of cases that have happened.

More broadly, in terms of the question of fining powers for Environmental Standards Scotland, I would absolutely support what Natalie's described in terms of whether or not that actually makes sense, in terms of the types of public sector organisations that we are overseeing and scrutinising. While we're never going to say never, I think that would be not necessarily the most appropriate way for our remit, for us to go.

Okay. Thank you.

Could I just add one other reflection, actually, because both Natalie and I have worked in organisations that did have those fining powers? And what can happen in that situation is that the body that you're overseeing—the particular water company or whichever public body it is—immediately goes to lawyers. As soon as you do any request for any information, it gets concretised very quickly, and lawyers make a lot of money out of it, and the dynamic is different. Now, if that's what you want, fair enough, but I don't think it's the most constructive way in which to resolve the issue, actually. It's the fine and the reputational damage linked with that that takes them straight to lawyers. So, it's another thing to consider. Thank you.

Thank you, that's really useful.

Thank you. Janet, do you have any questions on this section, just finally?

Well, yes. It goes back, really, to the fining. My question was to be how the work of the assessors made a difference in terms of environmental outcomes. I suppose I believe that you would have the powers to fine, and that's something I think we need to perhaps take more detail on.

Okay, so we've covered those. Thank you. Can I move on to Delyth Jewell?

Diolch, Gadeirydd. Good morning. It's very useful for us to have the two organisations giving evidence together. I wanted to ask, from your perspectives, how you think the role of the OEP and the ESS differ and whether you each look longingly over the border at things that you wish you could replicate, or, for us in Wales, whether you would like us to be learning lessons either from yourselves or from your sister body.

Shall we bring Mark in first this time? Thank you.

I think how I would characterise it is very similar, but with certain key differences. So, as Dame Glenys and Natalie have described, the OEP's function to provide advice to Ministers is not one we have. We are purely and would always describe ourselves as being purely a scrutiny and oversight body. We don't have that advisory function. We don't have the function too to monitor an environmental plan as Natalie has described. What we do have, as I've mentioned, is if we see a failure to comply, we can issue these compliance notices that could be challenged by a public body in court. As I said, we have never had to go down that route to date.

I think also it's worth stressing, so not just talking about the statutory powers we have, but the context that we have: the Scottish Government has committed to maintaining alignment with European policy and legislation. Obviously, within the environmental sector, that's a very significant aspect of what we do. So, although not a statutory power, it is a really significant strategic priority for us to assess whether or not the Scottish Government is achieving that, and if not, reporting that to the Scottish Parliament. So, I think that's a critical difference in terms of the wider political context in which the two organisations are operating.

Thank you.

Thank you. I'm not sure who else—

Dame Glenys or Natalie, whoever would like to take this.

That's a very helpful description from Mark and our powers are different, and, of course, as you consider this, I strongly advise you look closely at both organisations' powers, and you'll want to see what is the best fit for your environmental issues and your political and wider context as well. Personally, I think England got it right for England, in the sense that it is important that we have that annual, independent stock take of progress. Our targets are eye-watering: stopping the decline of species by 2030. So, you really do need to keep your foot to the pedal on it.

So, I do think, for us, that's important, and also being able to give advice to Government. It's a very busy place, Westminster, isn't it? I'm sure it's similar in your neck of the woods, but it's difficult sometimes for them to get considered advice with the appropriate level of expertise and understanding, and I think that's a very helpful thing. And I'm really pleased we're able to monitor environmental law—

Are you finding you're struggling to—

—and already we're making a difference there. We've identified that in so many cases—

Dame Glenys, apologies. We're just struggling to hear you for a moment, your microphone—. Thank you.

Is that better?

Yes, much better. Thank you.

Sorry about that. I was just saying our power to look more widely at environmental law and its working is proving really fruitful. It's a new power. We didn't have it when we were in the European Union, and we're already identifying examples that so many post-implementation reviews of legislation haven't been done, and they do need to be done. You need to know how well legislation is working before you choose to change it, for example. So, I think our powers are right for our country, our context, our environmental issues and our environmental ambitions here in this country. But it may be different in Wales, and, of course, there is a resource implication. We are resourced more fully than our counterparts in Scotland. So, you’ll want to look at what you get for your money as well, won’t you?

Thank you.

Thank you, both, for that. The other question I wanted to raise, and this has already been alluded to, was how you would assess your powers are now, and how they differ from the arrangement we had when we were under the EU arrangement. I take on board the point that’s already been made about fines, and also Mark’s point about the political context and how alignment is very deliberately different in that respect for Scotland. But are there any other points that you’d like us to be reflecting on, particularly, again, if there are any lessons that you think you’d like us to learn in Wales? Mark, do you want to go first on that, please?

So, I’ll caveat what I’m going to say just by the fact that ESS is less than two years old, so it’s early days. But I think the immediate reaction would be that it is different from when the European Commission was providing the oversight. We are more immediate; we are here in Scotland; we are very visible within the environmental sector, and that enables us to be more responsive and more reactive. What we don’t have is that great strategic overview of what’s going on across the European Union as a whole. We are 20 people and the environment is very big; there is a limit to that sort of horizon scanning that we can do, but I think that immediacy, that closeness and that accessibility is a really substantive difference, and I think that’s been challenging for some of the public authorities and the Scottish Government, who we are scrutinising. But I think that’s an almost inevitable outcome of bringing this kind of scrutiny function closer in to the organisations that are being scrutinised.

I think it also has real benefits in making us more immediately accessible to community groups. It is a lot easier to talk to us than perhaps it would be to talk to the European Commission, and one of our priorities for the next year is to build a programme of consciously going out to try and talk to community groups and listen and hear what their immediate concerns might be. So, early days, but those would be my initial reflections on how it differs.

Thank you, Mark. And Dame Glenys or Natalie.

I’ll just start, Nat, and then perhaps you can come in. So, I would say that one of the big differences that is proving really fruitful, and I think it’s so sensible, is that we don’t just oversee a Government, but we oversee public bodies. And it’s public bodies that are delivering or not delivering at the end of the day, so I think it’s a very significant improvement over the arrangements of the past. But, Natalie, you’ll have more to say, I know.

I absolutely agree with that assessment. The fact that we can look specifically at what each public authority is doing allows us to target far more specifically the issues at play. I’d like to echo the things that Mark has said. I think being a domestic organisation means you are much more accessible to your stakeholders. The other benefit in comparison with the Commission is that we are able to work at a more rapid pace, and part of that is to do with the fact that we are well connected on the ground in our respective jurisdictions, and of course for us, that’s England and Northern Ireland. It allows us to understand issues and understand the context of those issues in a way that I don’t think the Commission was able to do.

I should also reflect—and I think this would be important for Wales—that we do work very closely on a four-country basis, so we work closely with the interim assessor, we work in England and Northern Ireland, we work very closely with ESS in Scotland, and although the context differs between these jurisdictions, a lot of the role that we fulfil is very similar. It would be really important, I think, that any Welsh body was able to participate in that collegiality as best they could, and that can be helpfully supported by enabling provisions in legislation around things like making it easy for us to pass intelligence and information between the bodies. So, for example, we had a complaint made to us that related to Scotland; it was very straightforward for us to pass that complainant up over the border to Mark’s organisation, and that can be well supported to allow us to work together on a four-country basis where that is appropriate.

That’s a really useful point on which to end on. Thank you very much.

Many thanks. Unfortunately, time has run out this morning. Can I please thank the witnesses? And specifically in relation to the OEP, obviously, you do have some jurisdiction in Wales related to non-devolved environmental law, and we do have some questions that, unfortunately, we haven’t reached today. Would you be happy for us to write for some further clarification?

Of course, of course.

Many thanks. So, if I can thank the three of you very much this morning; that's been extremely helpful for our work here. We will of course be sharing a transcript of what's been said this morning, so you can check for accuracy and so on. But if I can once again just thank you for your time this morning and for joining us.

For Members, we'll be taking a short 10-minute break now and starting back at 10:40 for our next evidence session.