Legislation, Justice and Constitution Committee

Yes. Thank you very much, Chair. We are absolutely satisfied that the Bill is within the Senedd's competence, and, very fortunately, this is also the Llywydd's assessment.

Very good. And the second one again is a standard question we ask of anybody bringing a Bill forward: what discussions have you had with the UK Government in relation to the Bill, and have they made any observations?

So, a number of things to say there. There are no provisions in the Bill that require the consent of various Secretaries of State under Schedule 7B, I'm very delighted to say; that's not the case with all of my Bills, but it is with this one.

In relation to section 19 and Schedule 2 of the Bill, we've written to the Lord Chancellor, Secretary of State for Justice and the Chief Secretary to the Treasury, in accordance with paragraph 11(2) of Schedule 7B to the Government of Wales Act 2006, but, unfortunately, we have not had a response to date.

And then, just in general, officials—Olwen in particular, actually, has met a lot with counterparts in the Department for Environment, Food and Rural Affairs to discuss matters relating to air quality. I've been in interministerial working groups on air quality over a number of years now, as has Lesley Griffiths, and we've been open and transparent with all of the four Governments of the United Kingdom as this Bill has gone through about what we intend to do and what the effect of that might have across the UK, and we've got a UK air-quality common framework group, which discusses all of these things as well. So, there's been a great deal of—at official level—to-ing and fro-ing and sharing of information and detail and intention, and then there's been some high-level strategic and policy discussion at the interministerial groups. But in technical legislation terms there are no issues that we're aware of.

That's really excellent. Well, it's good to hear, and you've touched there on the common frameworks thing, which is really helpful as well. So, as far as you're aware at the moment, there are no niggles, no wrinkles you need to iron out with either UK Government or any other administration?

No. We've obviously been looking at the EU retained law Bill. I mean, that's a very movable feast, isn't it, at the moment. But, as far as we're aware, there aren't things that we need to look at. I'm reluctant to say more than 'as far as we're aware', because who knows what's going to happen with that Bill.

Yes, and that might evolve over the coming weeks and months as well.

Yes. But, apart from that, we're happy that it doesn't impact on any of the common frameworks and it doesn't appear to be controversial in any way with any of the other Parliaments.

Okay, lovely. Now then, one interesting thing here, if I could turn to the explanatory memorandum; it doesn't discuss human rights, so, can I ask you what account you've taken of human rights in preparing the Bill, what assessments have been undertaken in relation to human rights impacts of the Bill, and what was the outcome of those assessments, and why doesn't the explanatory memorandum mention it?

So, we've carried out the usual suite of impact assessments, including the equality and socioeconomic duty impact assessments. Obviously, the key aim of the Bill is to improve air quality to reduce airborne pollution and its negative impacts. Inasmuch as it might impact on A1, P1—article 1, protocol 1—in terms of individual rights, we think that any impact on that is fair and proportionate—I mean, such that it's kind of a no-brainer, if I can put it in non-legal terms. We don't think it has any conceivable issue with human rights. I'm sure the committee will come on to this, but the only impacts, really, are in changing the penalties for particular parts of the regime, and in making something a civil matter instead of a criminal one. It's very hard to see how that particularly impacts on anyone's individual freedoms.

Okay, good. Thank you. Peredur.

Afternoon, Minister. What does this Bill enable you to do that you can't do with the existing legislative framework we've got?

So, you are asking me more or less the same questions you asked me last time, actually. As I said before, this isn't a Bill that's an all-encompassing Bill in its own right. This is part of a suite of things that we're doing around environmental improvement, particularly in the air, and so it needs to be seen as part of a package of measures to improve air in Wales, and that's set out as part of the clean air plan. In fact, oddly enough, I have a Cabinet meeting later on today, and the noise and soundscapes plan is going to the Cabinet. It's part of a whole series of things that we're doing in the air space, I suppose it is. So, we need to make sure that, in and of itself, it sits neatly in there and makes some sense and is not making the law less accessible, for example.

So, we want to change some things that we can't change without the Bill. I've already mentioned a couple of them. We want to change the sanctions regime for smoke control from criminal to civil. I've already discussed that in a number of the committees. We want to change the penalties for anti-idling in particular. And we want to change Welsh Ministers' powers in terms of road user charging schemes, which are difficult at the moment, just to make them more understandable and accessible. The Bill is very specifically aimed at doing that. We have some broad powers under the environment Act, but the broad powers are very broad, and we think they're too broad, really, to achieve what I want to achieve, which is to hold this Government's and future Governments' feet to the fire around making sure that we're proactively doing something about our air quality all the time, and, as the data changes, we have the ability to change the targeting and so on. I'm sure we'll come on to some of that later on.

Thank you. The explanatory memorandum states that:

'Existing legislative requirements regarding air quality information and awareness are limited and centred around compliance with legal limits and targets.'

How does this Bill change that position, and could you tell us a little bit more about how those targets are measured and taken forward?

Yes. So, what we're doing is we're going to put an actual duty on Welsh Ministers to promote awareness, because at the moment there's a general power rather than a duty, so there's a proactive duty. That will be one of the main changes in it. The duty will put Welsh Government Ministers under a duty to promote awareness of health and environmental impacts, as well as the actions that need to go with that to reduce or limit air pollution. We've intentionally made that a very broad duty, because we want to be able—. We want to futureproof it, basically. We want to do something about PM2.5 immediately. We all know that's a problem. But there are a whole range of things we don't yet know about, because there's a whole series of data collection things in this Bill that we need to do. It gives us a power and puts us under a duty to collect various data points. And then, as I see it working, the regulations—I'm sure we'll come on to how the regulations get put in place—will be able to be changed on a relatively regular basis, as the data comes in and we understand what is possible and practical to implement.

What I desperately don't want to do is to put targets in place that are just not achievable, so that everybody goes, 'Well, that's a great target but nobody's ever going to get there,' so nobody bothers. The legislative landscape over the past many years of all Governments in every part of the world is littered with that kind of stuff. So, what we want is to have stretching but achievable targets that can be moved downwards, or indeed upwards, if you're looking at pure air, commensurate with the data, that allows the Government to be able to hold its own feet to the fire. It puts us under a duty to report what that is, so we can't just ignore the data; we have to report the data. And then it puts—. Well, I'm sure we'll come on to how the regulations get passed, but I would say that you want a rigorous scrutiny process for the regulations to make sure that those targets remain stretching but implementable. So, I think it's quite a decent ambition for the Bill, for what we're trying to do.

Is the power too broad, though, or are you content that it's broad enough to capture that without being Henry VIII powers and that sort of thing?

No, I think it captures a range of issues that might come up that we are aware of—I don't want to have a Donald Rumsfeld conversation with you, but the things we're aware of that might come up, that might want to be captured in the regulations. And we want some futureproofing, don't we? I'm no scientist, Peredur—you know that—so, we take advice, don't we, about it. But, I don't know, say there's a hitherto unknown thing in the air that nobody's ever heard of, well, I wouldn't want to be trying to encompass that. These are things that we know are likely to be problematic and come up, and are likely to need regulations. What we don't have at the moment is any way of setting targets or milestones for them, because we don't have enough data to know what that might look like, and I don't want to set a target only to discover, when we get the data in, that, actually, it's meaningless.

So, it's about trying to calibrate futureproofing, near-futureproofing, with data collection, so that we have these stretching targets, because what we all want is for us to get pollutants out of the air as fast as is possible and practicable.

Okay, thank you. Can you explain why you decided against consulting on the draft Bill, particularly given the comments within the explanatory memorandum that the means of delivering some of your White Paper proposals have changed? So, what discussions—? You've talked about having discussions with officials and with Westminster and other people, but no formal consultation.

So, this is always the difficulty, isn't it, whether you want to wait for a draft Bill to be ready—there's a timescale issue there—or whether you think it's already clear enough. And I think, small 'p' politically, we've waited a long time for this Bill. So, I think if we'd waited until we could get a draft Bill out to consultation before we came anywhere near actually introducing it, we'd have been waiting even longer. And I think we were ready, really. The draft Bill doesn't hold any major surprises. Where there is a surprise, which is on the soundscapes issue, that's been consulted on separately anyway. So, we've got a very good consultation response back on that. So, granted, it's not on a draft Bill, but we know what the public thinks about the things contained within the Bill. And the clean air strategy has been subject to consultation—well, more consultation than most things need to be consulted on. I think, of all the criticisms levelled at the Welsh Government, insufficient consultation isn't usually one of them. So, I just think, in the interests of getting the Bill into the Senedd—and it's pretty transparent what it is—we just didn't think it was worth waiting is the real truth.

Thanks, Peredur. James, before I bring you in, can I just ask—? One of the things—because I sit on the other committee looking at this from a policy context—on your reluctance, which you've just explained the reasons why, to fix targets on the face of the Bill—because they could change, there could be new air quality aspects to monitor and so on—. But many of the organisations out there have said, 'Well, you could avoid that if you fixed World Health Organization on the face of the Bill.' Is that something that makes sense to you? Because they're regarded as a sort of gold standard. If you have WHO adherence, that will flex over time, in view of the latest science and changes.

I'd rather see that in the regulations, myself.

Yes.

Only because cherished institutions suddenly go out of favour when things are found out about them, and, all of a sudden, you've got a written-in-stone thing that attaches you to something that either has morphed out of recognition or doesn't exist or whatever. There's nothing to stop the regulations doing that. I also think there are wider issues at play than the World Health Organization. So, there are other factors playing into that. So, we might want to go further in some respects than the WHO guidelines, because, here in Wales, once we've got the data, we may be able to go further. So, I wouldn't want to be slavishly adhering to, what is, after all, a world-wide kind of standard. I have to say, at this point, I wouldn't want to be seen to be not adhering to it, but I kind of feel we might be able to do better.

Okay, interesting.

But also, just a very personal thing, I have to say, I do think putting specific organisations into a Bill is an absolute hostage to fortune.

Okay. That's great. James.

Diolch, Cadeirydd. Good afternoon, Minister. I want to talk about accessibility, if that's okay. In addition to a range of delegated powers, the Bill amends a number of older pieces of English-language legislation, such as the Clean Air Act 1993. Did you consider making provision on the face of the Bill consolidating rather than amending other legislation, so as to enable provisions to be fully bilingual, to improve the accessibility of the law for people speak Welsh in Wales?

I think we might want to get Helen to answer a bit of this, but, as I understand it, James, because this isn't an all-encompassing Bill—it's a Bill that's intended to fit into other legislation—the attempt to do that in this Bill would have caused ripples across the other legislation in a way that was less than helpful and might actually make the Bill less accessible. So, I understand the sentiment of what you're saying entirely, but, as I understand it, you'd then have to look at the interaction between this and various environment Acts and so on, and then the ripples of that would start to go out and you'd start to be looking at a very different Bill. But I think Helen's done the work on it—if you want to add to that.

As the Minister says, we obviously have considered consolidation. When you're amending primary legislation, it's something that's always considered, particularly when it's English-language legislation. But, in this case, the Bill has got a particular focus, and to carve out parts of the body of environmental law and put them elsewhere—our view is that that results in a partial retelling of the story about air quality, for legislation about air quality. You mentioned the Clean Air Act 1993; taking out Part 3 of that takes it out of its context with other Parts of that Act that are about air quality. So, yes, overall, the view was that it wouldn't improve accessibility of law in this instance to just take those bits out.

I thought you were going to come in there, Chair. No. Okay. Via the combination of the National Assembly for Wales (Transfer of Functions) Order 1999 and amendments made to section 80 of the Environment Act 1995 by the Environment Act 2021, the Welsh Ministers are under a duty to prepare and publish the national air strategy. Sections 9 and 10 of the Bill then further amend section 80 of the 1995 Act to give the Welsh Ministers ability to change the review period for the national air strategy and makes provision in relation to consultation on the strategy. Whilst we know this, the explanatory memorandum does not state how the Welsh Ministers have the power under section 80 of the 1995 Act. Why haven't you taken the opportunity to amend the 1995 Act to make it clear that it is the Welsh Ministers who are under a duty to prepare and publish a national air strategy, as well as making provision for the change to the review period and consultation?

Okay, so I think there's some—

Please don't ask me to repeat it, Minister. We'll be here all day otherwise. [Laughter.]

This is actually something that I had to really think about. I'm going to defer to Helen as well here, but as I understand it, in the 1995 Act, there's a duty to prepare a strategy. That's predating devolution. So, that clearly wasn't the Welsh Ministers, because there was no such entity. That's what it is. It's to prepare 'the strategy', 'a strategy'. So, there's no point in amending it to 'the Welsh Ministers'. It's done. It was done, there was a duty for someone to do it. Whoever was under that duty—the Secretary of State for Wales, presumably, or somebody—did it. Done. End of. So, there's no point in amending it backwards to say it should be the Welsh Ministers who didn't exist at the time. That's as I understand it.

And then there have been recent amendments made in England under the Environment Act 2021, and they are all based on the assumption of a single strategy as well. So, it's quite a complicated set of things here. The amendments there, as Helen explains to me, say 'the strategy', not 'a series of reviews' or whatever. And so, we think that what we're doing is putting a duty on us to review and republish the strategy. I think that's right, Helen, I hope.

Yes. In answer to your question, as the Minister said, the drafting refers to the strategy in section 80 and throughout Part 4 of the Environment Act. What we're seeking to achieve here is to create a power for the Welsh Ministers to amend that period of review, to do that relatively discrete change, and then also to make the amendments you talked about. To put it on the face of the legislation—wherever it refers to the 'Secretary of State', to change that to the 'Welsh Ministers'—would've been a very complicated set of amendments throughout the Environment Act, because there are a lot of functions of the Secretary of State in that Act that have now, through an admittedly complicated but a very well-trodden route, transferred to the Welsh Ministers. As the Minister said, it wasn't something we felt was necessary, as the Welsh Ministers do have those functions, albeit not on the face of that particular piece of legislation. But also, it would've gone beyond what we were seeking to achieve with our amendments.

The converse of this, then, is that there is a job of work to be done with the UK Parliament in tidying up their statute book now, because some of this is, you would argue, redundant, if this Bill proceeds.

I think one of the things we have a problem with constantly is the edge of the devolution settlement with Westminster legislation. The committee will be very familiar with this. The UK Parliament often—. I hope you've recently read the environment Act. I have attempted to do so as part of the prep for this. It's enough to give you a headache, it has to be said. It is replete with Secretary of State for England things, which also then apply to Wales. So, it's quite complicated. I defer to the lawyers, and, actually, I'm in awe of who on earth worked their way through this.

But I think it comes back to the earlier answer that we gave: if you try to consolidate it into this thing, you start to come outside of the bit of the environment Act we're talking about and you start to add a ripple effect into it. It's not a very well-drafted law, I think it's fair to say. I mean, at some point in the future, when we've done—. Because we're going to propose another environment Act; we've got an environmental governance Act coming through as well, and assuming that the planning consolidation Act makes its way through the Senedd in reasonable order—

You're going to commit the resources to tidying it up, then.

Well, environment is one of the list of things that are very convoluted and difficult laws to follow through, because of the large number of different players. If you think about environment law in Wales, people tend to forget the environment Act here. They talk about the Well-being of Future Generations (Wales) Act 2015, and you have to, generally speaking, remind people that there's also an environment Act that goes with that Act.

Okay. We get it. You made a choice on the way to proceed there. It leaves something of an untidy statute book behind it at a UK level. We'll have to come back to that at some point.

To be honest, Huw, if the committee thinks there's a different and maybe better way to do it, I'm more than happy to look at it, but I think it's a very complicated thing to do, and I don't really want to be trying to implement this thing for the next—. I'm a bit allergic to how long it takes to implement things when you start doing that sort of stuff.

Okay. Sorry, James.

Another question, Minister: please can you explain in greater detail why it was not necessary to transpose the local air quality management provisions of the Environment Act 1995 into Welsh legislation via the Bill or, indeed, to transpose all air quality provisions from the Act into the Bill?

This is the same thing, really. The main elements of the framework are still in place and all we're doing is amending the local air quality provisions in the existing framework. It didn't seem necessary or optimal in any way to transfer the entire framework, only to say, 'It's exactly the same, apart from these little bits', really. So, it's part of the same conversation. We've been trying to limit the Bill that this committee is now scrutinising, and, obviously, the policy committees have scrutinised as well, to its own parameters. We've been very clear that it's not an all-encompassing Bill, and a lot of what you're talking about would stretch it back out into starting to take in a whole pile of other things. So, I'm afraid it's part of the same issue, isn't it?

And then, for me, there's a big issue about implementation, so do we have to spend the next two years doing consequential amendments before the thing is implementable? I didn't want to get into that. And also, you start to have what should be a fairly straightforward Bill taking up two thirds of the legal resource of the Welsh Government. So, I wouldn't want to get into that either, if I were honest.

I think the Minister has answered my final question, which was about devolved issues in the Environment Act.

We'll leave it for the Counsel General's next consolidation Bill.

I think the Minister has answered my last question, so I'm content. Diolch, Cadeirydd.

Okay. Alun.

I'm grateful to you. I'm grateful, Minister, for your time this afternoon. I think the conversation you had with the Chair earlier answered well the questions that I have on the use of delegated powers, and I think the use of delegated powers in this Bill is broadly where it probably should be. I'm not a great fan of putting unamendable targets on the face of primary legislation—I'm not sure that's really the best way to proceed. I think you're right as well about naming organisations on the face of primary legislation—I think that's probably a fair response as well. But the real bite of this legislation is those targets, of course. How then do you anticipate the Senedd and the general public having the ability to shape and influence those targets? Because what concerns me—. I think the process for target setting outlined in the Bill is a perfectly fair and reasonable one. You used the term 'robust', and I think it is—I think there's no issue there at all. But it appears to me that there's no compulsion for Ministers to consult widely across the country and take note of consultation. I'm just interested to understand where you think the public and the Senedd plays a role in that.

As I understand it—and officials, please feel free to correct me, because this is a very complicated thing to try and keep straight—what we're talking about is doing data collection, which is published, and feeds into the plan, which is also published, and then the regulations would follow on from the data. If you had a Government that decided it didn't want to regulate in the face of overwhelming data that had been published, I suspect strongly there would be a pretty big political hullabaloo about that. Because you'd basically have data saying, I don't know, 'There are so many whatsits in the air, and there really shouldn't be so many, and here's very obvious data that says that you should be doing something about it, and here's the power to do it', and you've somehow not brought the regulations forward. I don't know if there's any way of compelling the Government to bring the regulations forward; we're under a duty to review the plan, and we're under a duty to publish the data and to collect the data. So, I think it's a pretty robust one.

I've got no issue with that—I think the process is fine. And I've got no issue with the balance either—I think that's all fine. My question was does that hullabaloo have a bite.

If the committee can figure out a way to make it obligatory for the regulations to come forward, then—

Well, you can have a duty to consult—

Yes, but I don't think the—. I think there is—. I think what I'm trying to say is that there is a sufficient duty to consult, but we've got to consult about the plan, we've got to consult about the data, we've got to publish it all. What would you do with a Government who had consulted absolutely everything, and everybody had come back, and said, 'Absolutely, you should regulate', and then they don't?

Well, then you could bring forward a motion, I presume, of some description, in the Senedd.

It goes back to the legislators, doesn't it? At that point, somebody in the backbenches would be doing something about it. And then, for me, the process of how do the regulations become law is very important—and I guess you're going to come on to that. But we've put quite a lot of positive resolution stuff in here, deliberately, because I think it needs to have a proper scrutiny process. Because these things need to be real—they need to be stretching, achievable targets. I certainly wouldn't want some sort of negative procedure, where the Government just said, 'Oh, we've decided on X, have a good day', and it relies on a backbencher to spot that and call it. I presume the committee is going to be advocating an affirmative procedure of some sort. I'm quite happy to discuss with the committee—I'm pre-empting probably lots of your questions; apologies, Chair—whether you want some kind of superaffirmative procedure, and, if you did, what would that look like, because, as you know, there are several options in that. If the committee wanted to report back to us, because, once you've deliberated, you thought there was a particular option, we'd be more than happy to look at that. I really want these things to have teeth, and I want the Senedd to be signed up to them.

I'm very grateful to the Minister for that, and I think that it's probably where we're looking towards going. I'm grateful to the Minister for her willingness to have that conversation; I think that's a very useful thing to do. In terms of timescales, when do you actually see this target setting taking place, and what scale of target setting are you looking at?

We say within three years, and that's based on how long we think it will take us to get a robust set of data. I'd be really reluctant to shorten that, because I don’t want to cut corners on the data collection. Three years from where we sit now is quite difficult politically, because I’d quite like to do it before the end of the Senedd term, but at the same time I’d quite like to get it right. And it’s within three years, so if we can do it in this Senedd term, I would certainly want to. And then it’s about rolling it forward. I also didn’t want to put it—. We don’t want to put a particular date on it because you know as well as I do that there are discussions about how long the Senedd term should be, and when the election should be, and so on. And actually, ideally what you’d like is to have this midway through a term, so you’ve done the data collection and then you put the regulations through once every term of the Senedd, and it’s kind of in the middle somewhere. But because of where we are with the Bill, it’s out of sync with that. So, we’re trying to get the best of all possible worlds in this Bill to put a duty on us to do the data collection, and to do it within a time frame that might get us into this Senedd term, but frankly doesn’t cut so many corners that we end up with a set of regulations that aren’t what we’d like them to be.

Can I say, I quite agree with the Minister on that, and there’s no point setting targets to meet a false deadline? I've got no issue with that. Can I share a nagging concern I have? I don’t want to turn this into a self-help group this afternoon, but I worry sometimes that the Welsh Government is creating a very large number of strategies and plans, and I’m wondering what the relationship is. Natural Resources Wales has a responsibility for setting environmental plans, we have land-use planning, which you’re responsible for, I think, in terms of some of your planning responsibilities, and we’re here asking local government to deliver on plans in terms of air quality and the rest of it, and I’m wondering how they all mesh together, because it just feels to me that we’re asking people to put together a lot of plans. And I don’t disagree with any of them as individual plans. I don’t disagree with the air quality plans that are in this legislation. But I’m just concerned about the overall relationship between all of those different plans and strategies, and whether we are actually overloading ourselves with plans and strategies rather than getting on and doing things.

I absolutely share that, as it happens. You’ll know that, in some of the other Bills that I’m taking through, I’ve resisted having a duty to report on various things, and said that it should go into the Government of Wales report, so that the Government has a report that has a large number of components in it rather than a large number of different reports. I do think this is a bit different, the clean air plan for Wales, because it encompasses a large number of other organisations, and it’s also one of those things that people are familiar with the concept of. So, I think this is a stand-alone plan that works in the way it ought. I really have thought about it, and I don’t think this is one that’s right for consolidation into one of the local government reporting mechanisms or the Government of Wales reporting mechanism, because I think it does a number of other things, and it also needs to mesh with the UK. Air doesn’t understand borders, so it needs to properly mesh across the whole of the UK, really. So, I think you’re right, and it's a concern I share. We are very good at layering things and I’m really keen not to do that, but I do think in this instance this one is one that deserves to have its own place, if you like.

Shall I just finish here with the question you've raised, actually, Minister, in your earlier answer on data? You said that data in Wales isn’t great, and I’ve no reason to doubt that. I’m sure you’re right. The question I’m asking is: why is data—? We’ve got a lot of people doing a lot of research and producing a lot of reports into lots of different things, and I’m surprised, therefore, that we don’t have the data available to us that would enable you to feel comfortable with understanding the situation that we face in different parts of the country.

I'm going to get Olwen to talk a little bit about data, if you don't mind, Olwen. Olwen's used to having to talk about data. But the answer is that we just haven't been collecting it at the Wales scale in the way that we want, and we also collect it in slightly acute places rather than general ones. My own constituency, for example, has air quality monitoring stations in three places where everybody in my constituency knows where they are, and they know why they're there. But they aren't the sort of thing that we're talking about for this, which is a much more widespread set of data, and they also only collect—and here I'm well out of my comfort zone—particular data on particular types of particulate matter, and we're looking at a wider data set. Now I'm really, Chair, right at the edge of my knowledge and I defer to Olwen.

You lost the committee a while ago, don't worry. [Laughter.]

Go on, Olwen.

I think you've pretty much covered it. The network is primarily operated at a UK level through the Department for Environment Food and Rural Affairs and the Environment Agency, and then you've also got the local authorities, which do their own monitoring for specific purposes as well. What we don't really have, in the context of PM2.5 and broader pollutants that we're going to be looking at for the future through this legislation, is the sort of monitoring and data collection we would need for that, going forward. We have some, but we need more to make sure we've got robust assessments, and also combined with modelling techniques as well. We have data, but we need more for the Welsh-specific circumstances.

That's fair enough.

Okay, thank you. Peredur, are you okay? Peredur, before we come back to you, can I just ask a couple of things, just following on from Alun there? There is a contrary argument, in terms of where you put targets, because you could have chosen to put targets on the face of the Bill, imperfect as they are, and amend them by secondary regulations. Why not do that, particularly when, in your response to Alun, you've been talking about, as you get the better knowledge, you'll have these brought forward in the next Senedd term, which could be another Minister and another Government? So, just respond to that: why don't you do it the other way round?

I don't think we know what those targets should look like right now. I think there's a real risk, if we did put targets on—. There are three separate things, actually. So, whether the actual targets themselves would mean anything. I think we'd probably have to set them at a point where they probably didn't, in order to be inside the data issues that we've got. What is the point of that? You're basically setting a target that says, 'It's all right as it is for a bit.' I'm not very keen on that as a way forward.

So, the targets you've put on at the moment, you're not convinced would be meaningful and the right targets.

No, I don't think they would drive the kind of improvements—.

Right, and Olwen is shaking her head as well.

Yes, and I think it is useful, Minister, if you don't mind—

Yes, please.

—that they are guideline targets as well. They are very ambitious and could, actually, bring detrimental—. We could have to bring quite serious action to get down to certain levels in certain areas, depending on the pollutants, and it's not just one, it's five. So, we'd be in a situation where we weren't sure if we could do it, and the guidelines themselves say that it needs to take account of local circumstances as well, for which you need the evidence to be able to do that. But, more broadly, as you covered earlier, it's not about just the health guidelines; there are environmental standards and socioeconomic guidance, and you need to combine all of that together to get the full suite of evidence to inform what those targets should be. Otherwise, we could end up having unachievable and unrealistic targets, really.

It does raise the question of what targets are actually in place now. Are those not meaningful at all?

There are a range of targets and emission limits as well. A lot of that's from existing EU legislation and international standards, which have now been brought into domestic law—so, for example, the nitrogen dioxide limits for 40 µg, and we've seen the 50 mph limits. We have a number of those in place. Some are similar to what the existing World Health Organization guidelines had in place. We're in a reasonably good place with most of those at the moment, but the WHO guidelines take us quite a lot further than where we are now. You might catch me out here and I'd have to double check, but where it's 40 µg now for nitrogen dioxide, it could be going down to 10 µg, so you can think about, on the A470 and the M4, the difference that that might make.

Okay, but you could put those WHO ones, even if you'd want to go further, perhaps, in some areas—you could put them into the Bill now and amend them subsequently by regulations. I'm just intrigued.

But what would we be putting them in—? What I think Olwen is saying, nicely, is that we couldn't achieve them. So, you would be doing exactly as I said at the beginning: you'd be putting unachievable targets onto the face of a Bill, and then everybody would go, 'Well, that's not achievable at the moment', so—

Which comes back to the way that the Bill is devised, in terms of balancing the socioeconomic and so on.

Yes. We can't get down to that on the A470 unless we knock down every house all of the way along wherever. That's not going to happen, so what would happen? We want implementable targets. We also want to be able to ramp up the kind of work that we do to get the air quality to be better.

Yes, okay, I accept that.

Can I just say the last one, which I think is a more constitutional point, really, which is that I think that that makes people lazy legislators? That's my personal view. But I can think of loads of Acts that have got a target on them and nobody has ever, ever looked at them again, because they're 'job done'.

So, let me work then to the next question, which is, if I accept that, if we accept that as a committee, then why not, actually, put a duty to bring those targets forward, rather than a discretionary power?

I'd be prepared to look at that, if I'm honest—

Thank you. Okay. That's brilliant.

—but it's the timescale that you'd then need to look at.

Okay, okay.

Alun and I, once, when we were in an exact opposite relationship over a Bill—if you remember, Alun—I said, 'Why have you got a power and not a duty?' Do you remember it? That was exactly the same conversation.

[Inaudible.]

Yes, you did. [Laughter.] But I'll give you a slightly different answer, which is: it's not the duty that we're afraid of, it's the timescale.

Okay, okay.

So, if you put us under a duty to do it, you kind of have to put a timescale to it, and I'd be concerned that the timescale would drive poor decision making.

Okay, okay. Thank you. That's helpful. Pered, take us on to timescales.

Timescales, yes. [Laughter.] Having studied systems engineering at university, I quite like data and targets and all that sort of stuff, and I was always taught that a model is only as good as the data—

Absolutely.

—but that you can have an imperfect model and improve a system using an imperfect model and improve the model as you're going along. So, it's a bit of a chicken-and-egg situation, but you've got to take a point at one point and say, 'Well, you've got the data, set a target and nearly see what happens', and take a judgment call as to when that is the right time to do it.

In section 3(8), I think, it states that regulations setting an air quality target under section 2(1) must be laid in draft before the Senedd within three years of receiving Royal Assent. Now, we've talked a little bit about timescales and that sort of thing. Would you be disappointed if we had to wait until the seventh Senedd to have those targets in place?

I would, but I understand—. I'm not the expert here at all and I have to defer to the people who are. I understand why—. It's been explained to me a lot why the three years is necessary. It takes us a while to get the data stations in place, it takes the data a while to come in, it takes a while for them to be analysed. The three years is part of the discussion we've had. I'd like to do it this Senedd term, right? So, the three years makes that kind of possible, but I also don't want to do it in circumstances where we're basically just making it up, because we don't have any of the right data.

We've got a lot of work to do with local authority colleagues and with other schemes. This isn't the only thing we're doing in the clean air space, as you will know, and lots of what we're doing is quite controversial, so the speed limits and all the rest of it. There's a whole job of work to re-educate people about why going very fast in your diesel car is not a good thing. There's a suite of things to do. Three years is a long time in that kind of trajectory, so we would hope that, in three years' time, cars would be even cleaner than they are now, lots of emissions will have fallen anyway, we're re-educating people about the whole issue around idling and burning wet wood in your wood burner—all kinds of stuff. There are all kinds of stuff going on. So, we would very much hope that by the time we get there we're in a position to actually implement some of these. I don't think there's any point at all in implementing a target on the M4 that means that the M4 couldn't be used. We aren't going to do that. No Government is going to be able to do that. So, you just end up with a target that doesn't mean anything at all, because people will just go, 'Oh, we're in breach', and that's the end of it. You know, as well as I do, I can recite 220 of those over the last—. It's hopeless to do that.

Using targets as an incremental tool to improve and change behaviour and then by having that in regulations to be able to increment it up, yes, it would be a judgment call as to when that would be, and, yes, I'd like to see these as soon as possible, as soon as we've got meaningful data to—

So, as soon as possible, but to be upfront, 'as soon as possible', we think, is about three years.

Is three years, yes. The Bill contains provisions for Welsh Ministers to make subordinate legislation. Sections 16(2), 24(1)—a number of them—allow the Welsh Ministers to make regulations using the negative resolution procedure. Why do you consider it to be appropriate for these powers to follow the negative procedure, and do you anticipate any risks? For example, section 16(2) enables the Welsh Ministers to make regulations that suspend or relax current provisions of the Clean Air Act 1993 that make provision relating to smoke emission penalties. Are you content that a power that can be used to change a civil offence will be subject only to a negative procedure?

I'm really happy to have a discussion with the committee about what they think is appropriate or not appropriate on which procedure. Broadly speaking, we've used the negative procedure where there's already a regulation power that has a negative procedure attached to it, because we're restating some of the Environment Act things, for example, and there are already negative procedures in place, so we've restated them. But, honestly, I am very happy to consider anything that the committee thinks should be changed in either direction, actually. I don't think we need positive procedures for everything. Some things are pretty administrative in nature and, frankly, you'll have seen yourself in Plenary the number of times I have read out a statement on a regulation that's got a positive procedure attached to it and not a single Member has wanted to comment, or even understood a word I just said, and it's gone through on the nod. There are a lot of them. So—

But the point is that we've got the opportunity to do so, isn't it—

Yes, but the point I'm making is you'd make a much better opportunity of that opportunity if we streamlined it so that the ones where nobody is really very interested in them and they're so technical that you've got very little chance of understanding what they are—. Frankly, I can think of some of the chemical ones—well, I don't think I understood what I read out loud, never mind anything else, and I'm happy to say that in a public broadcast. These things are very technical in nature. You rely heavily on very specialist advisers to tell you about transporting chemicals in various—. I've no idea, and that should be a negative procedure, in my view. I don't think there's any point in that being a positive procedure.

Whereas when we're talking about things that members of the committee will have a very determined interest in, and will be very well informed about because they're being heavily lobbied and they will have had constituency work, that's a wholly different thing, isn't it, where you can have a proper set of scrutiny provisions in place and a positive procedure is necessary. I am very happy to discuss with the committee whether we've got the balance right or not in this Bill.

Thank you.

Thanks, Pered. James, take us on, then, to a different area here.

Section 19 of the Bill—Minister, I see you smiling at that—about enabling Ministers to have trunk road charging. You've told the environment committee that you have no intention of bringing forward trunk road charges to reduce or limit air pollution, but you're putting it in the Bill so it gives futureproofing and not wanting to come back again to get primary legislation. But why not just leave it for a future Government to bring forward their own legislation, taking account of all recent scientific developments, improved data that you'll be getting through this Bill and which would just allow further scrutiny of any of those charges, if you, or any future Government, want to implement them?

I think that's a fair question, isn't it, but we're talking, I think, over the next three years, so I don't think there'll be too many future Governments in that space of time—

You never know.

—and we just talked about it on the M4. So, we hope very much that, by a combination of measures that can be introduced now and changes in technology and changes in working behaviour, patterns and driving and all the rest of it, the air quality on the M4 will be improved beyond all measure, and on the A470 in various parts of it, and there are hotspots, aren't there? We can improve that beyond all measure. Therefore, it will not be necessary to introduce any kind of scheme to do it. But, it might not, and we will have to do something pretty urgently about it, and so there is every possibility that we might need to do it. So, I have no intention, as we speak now, of doing it, because I think there are a large number of other things that we'll be able to do to try and encourage people to do the right thing when they're driving through those particular hotspots. But, if that's not successful, then we may need to do it, and I don't think leaving it to a future Bill is the right thing to do at all. It might come to the fact that we need to do it sooner rather than later.

So, I'm a big believer in social change taking time and education, not legislation, but I don't think leaving it a hostage to fortune because we haven't been able to do it is the right path either. I know it's an unusual thing for a Minister to say, 'I want this power, and I have no intention of using it,' but I have no intention of using it right now, I suppose.

Because there's no requirement in the Bill under that power for Welsh Ministers to consult either on introducing road charges. Is that something you would look to put in the Bill when it's amended, or would you amend it to put the consultation in there, because I do think, for a scrutiny element of it, having consultation attached to that element of it would make it more robust.

Well, no, because, first of all, we'd always consult anyway. Of all the criticisms even you might make of the Welsh Government, James—

I wouldn't possibly do such a thing. [Laughter.]

—not consulting sufficiently isn't one of them. We've got the power to designate various public bodies, and so on, in it who might work alongside us on this, and we've got other consultation requirements. What we didn't want to do is have another list of consultation issues in this Bill that would be rapidly outdated. I don't know if the committee's aware, but we're always having to add people in to consultations because they didn't exist at the time, and all the rest of it. So, we have an overarching duty as a Welsh Government to consult on things that affect members of the Welsh public, and also, if we put a road charging scheme in place, the scheme itself would be consulted on, so I don't see that the Bill needs to do that, myself.

I mean, this is always a trade-off, isn't it, between a Bill that's a relatively simple Bill, easy to understand, and a Bill that's so crammed with additional stuff in it that you can't make head or tail of it. And again, if the committee feels differently, I'm very happy to look at a report on it, but I don't think it's necessary. The Welsh Government has an overarching duty to consult anyway, and I think, often, duties to consult on the faces of Bills have the wrong list attached to them very rapidly.

Okay. James, could I bring Alun in just for a moment? Alun.

I'm grateful for that clarification, Minister, but I find this a rather curious power, because it feels to me like you're giving yourself half the powers you need to actually introduce such a scheme, because you're attaching it to this Bill, and I presume to maintain its integrity, you are saying—I'm reading here—the scheme is made for the purpose of reducing or limiting air pollution in the vicinity of the road. And then you go on in Schedule 2 to describe the proceeds and the rest of it. But it's all limited to air pollution, the rest of it.

Now, I would have expected any trunk road charging scheme to have a number of different objectives, one of which would be to reduce congestion. If you look at the M4, as the example you've already used, you would have a number of different objectives to a road charging scheme, if you were to introduce it. And I just question whether you've got all the powers you require in this Bill, or whether—. I can understand, from your point of view, you've got this in your back pocket should you require it in the future, and it's there, it's happy and it's fine, but, really, if you were to introduce a really serious road charging scheme—and I've got no objection to them in principle—then you haven't got all the powers you need here.

So, we have deliberately limited it to air quality road charging schemes, and the financial provisions are limited to that as well. There's a scope argument there. There's the whole—

Yes, absolutely. Absolutely.

We'd get into a can of worms if we started to—. I mean, road charging schemes for other purposes—and a whole series of other purposes, actually—are something that we may well consider in the future, but this is a kind of 'right now' issue, really, and if a government brings forward a more general road charging scheme, for the purposes of raising the money to build it, for example, then I would expect that Bill to take it into account.

That's the point I'm making. If you had a clear idea in your mind that you had a scheme that you wanted to deliver, which would have the objectives that are described in the legislation, then there wouldn't be a question, and I certainly wouldn't be raising this question. But you don't, and what you've already said is that you don't have any plans to introduce such a scheme, and that's fine as well. But it just begs the question: why is it in the Bill, because you've got no plans to do it? As far as I know, I've heard no other Minister argue for this. Would it not be better for the Government to take legislation that is more comprehensive, which could enable a much wider debate to take place, a public debate, about the use of road charging in our overall transport priorities, which would then enable the Government to meet its air pollution targets but also its other targets on other matters, and to do so in a way that potentially—

I do totally see the point you're making. I think where we're coming from is slightly—well, a lot—narrower than that.

Yes, it is.

We don't have right this second any intention of introducing one, but we know of two places in Wales where there could well be an intention to make one in the next three to five years. That's the truth. We're currently monitoring those road sections very closely. There's a whole range of other interventions in place there. If those interventions don't work, then we will be looking to do this. It's not that we have absolutely no intention into the foreseeable future of ever, ever considering it. That's not where we are. Right this second, we aren't considering it. But I think there's every possibility in the next three years that we might consider it, around the M4 in Newport, for example, if we can't get the air quality to be better around there, and there are a couple of places on the A470 that are pretty awful as well. Now, I very much hope, as I said in earlier answers, that the interventions we're currently taking will get the air quality back to where it ought to be and we won't have to do this. I think these can be quite counter-productive, and it will set a whole series of hares running and all the rest of it. But I think it would be irresponsible not to take the powers to do it if that is the only way that we can get the air quality to improve. That's the truth of it.

Okay. We're into the last few minutes, but, James, go ahead.

It's my final question. Are there any other powers that Ministers are taking in the Bill that the Government don't have any current plans to utilise?

No.

No. There we are.

There we are. Okay. Let's see if we can get a couple of areas in very, very quickly with questions and answers here. One is in respect of the part of the Bill that refers to the smoke control orders. It's taken our notice that you haven't mandated the application of smoke control orders. You've chosen to use the option of statutory guidance instead. Why is that?

We already have a power to direct a local authority to create a smoke control area, if necessary, so we already have an existing power under the Clean Air Act 1993, as I understand it. If we mandated them, then all kinds of other issues then follow. If you mandate a smoke control area, then anyone living in that area might have individual costs that are quite substantial placed on them to retrofit home appliances and all the rest of it. We'd have to put a specific consultation out about the individual effect of that. We talked about human rights earlier on; we would certainly be straying into that area. We're in a cost-of-living crisis, so I don't think suddenly announcing that the people in the good city of Abereggub would suddenly have a 30 per cent increase in their cost of living because they're going to have to retrofit their fireplace, for example, is a particularly great thing to do right now. What we want to do is we want to encourage—. This is the way we do everything. We want to encourage and work with our local authorities to do the monitoring necessary and do the work locally necessary to educate people about the effect of what they're doing, rather than mandate something and then force people to do it. We always take that approach. There are four smoke control areas already in Wales, as I'm sure you know. We're changing the way that we enable a local authority to enforce those, because they've been largely unenforced. This is a whole education piece. I hope members of the committee understand the difference between burning wet and dry wood, for example—

We do. Well, I can't speak for everybody, but yes.

But I don't think there's a widespread understanding. Genuinely, I don't think there's a widespread understanding of that. I think people think if you pick up wood that's fallen in your own garden and burn it, that's fine, and it isn't. So, I think there's a big educational piece there. You have to dry it for two years—for members of the committee to be aware, in case they aren't—and that reduces the particulates coming out of that wood burner very substantially. So, it's a big education piece to do here.

Okay. It's a good explanation of why you've chosen that route. Thank you for that.

In the last minute, we're going to turn to the issue of soundscapes. The only question I'm going to ask you—we'll probably write to you with other matters—is on the lack of a definition, an express definition, of soundscapes on the face of the Bill. Is that any worry for you? Why is that? Does it leave it too wide open to interpretation and make the legislation less precise?

As I said, this isn't a stand-alone Bill; it has to be read in conjunction with other things. 'Soundscape' is formally defined in 'Planning Policy Wales', and there's been a recent consultation draft of technical advice note 11, which I'm sure the committee has spotted. So, that has a consultation draft that is the British and international standard definition, so 'the acoustic or sound environment as perceived or experienced or understood by a person or people in the context they are'. That's the definition, because it's the definition in other parts of Welsh Government documentation.

So, do you feel that, albeit with that refining of the definition that's currently going on, and the development of the technical guidance—? Do you think there's any scope for more precision on the face of the Bill, or is it as far as you can push it at the moment?

So, I don't think there is, because I think this is an emerging body of law, isn't it?

Yes.

And so, again, we'd have the same problem. If you put too precise a definition on the face of the Bill, only to find that it's changed in the next four years, because this is definitely a moveable feast here, then we would have a real problem. Whereas, if it's contained in the TANs, and in 'Planning Policy Wales', you have a very good way of updating it on a very regular basis, as the TANs are, as you know, subject to periodic review and consultation; in fact, we've just done one. So, the TANs are under constant review. Amongst the many things I do all day is partaking in a large number of meetings with local authorities about the review of various TANs. And I just think it's a much better way of making sure that the definition is fit for purpose on an ongoing basis than tying it down on the face of the Bill, as it is a pretty emerging area.

Okay. Colleagues, we've just run a little bit over time. Can I check is there anything else that you want to raise at this time? No. Well, Minister, and your colleagues, can I thank you very much indeed for coming in front of us today? Obviously, the transcript we'll send to you for accuracy and for checking that we're not misquoting or misattributing something to you. We will probably write to you with some more questions, if that's okay, as well. But it's been a really helpful session, it really has. So, thank you very much.

We will take just a short break for a moment; yes, we will have a short adjournment for a moment while we reshuffle the tables here and the seats in here. Minister, thank you very much.

Pleasure.