COMMISSION ON THE POWERS AND ELECTORAL ARRANGEMENTS OF THE NATIONAL ASSEMBLY FOR WALES

MINUTES OF PROCEEDINGS

of the

EVIDENCE OF:

COUNTRYSIDE COUNCIL FOR WALES

held at

Committee Rooms

County Hall, Haverfordwest

on

Thursday, 10 April 2003

LORD RICHARD: Good morning. Thank you very much for coming. I wonder whether you would be kind enough to do two things to start off. The first is to introduce yourselves for the sake of the transcript; and, secondly, can you give us five or ten minutes about the issues, and then we can pursue the ones that the Commission might like to pursue.

MR LLOYD JONES: I am John Lloyd Jones, and I am the Chairman of the Countryside Council for Wales. I have on my left Roger Thomas, my Chief Executive. You have asked us for a short presentation. First of all, it is important that we all understand the purposes of CCW. We have almost three functions. One is that we act as an agency for the Welsh Assembly. We deliver Tir Gofal, Tir Cymen, the All-Wales Agri-Environment Scheme, on their behalf. Secondly, we advise and help to implement legislation, including the Countryside & Rights of Way Act, the CROW Act, where we are charged with mapping open access land; and the other one would be the Habitats Directive, where we are charged in designating and identifying candidates for Sites of Special Importance. Our third function is as independent advisors to the Welsh Assembly, based on science.

There are three functions, and obviously there are sometimes tensions between those three functions.

Perhaps I can quickly open up the discussion by telling you how we are tackling some of the issues that you have put in front of us. The first issue is whether the powers of the National Assembly are sufficient to meet the needs of Wales. We see great merit in the ability of the Welsh Assembly to adopt what is called the Sewel provision in Scotland, where the Welsh Assembly would have the ability to adopt Westminster legislation without going through the whole consultation process, albeit with a back-out provision. We are mindful that at the moment there is a Hedgerow Regulation Order going through Westminster. It has a Defra consultation. The same problems would be applicable to Wales as to England. In the same way, under the Habitats Directive, we note that sites of scientific importance are protected by law in England, but they only come under policy guidance in Wales because the statutory instrument has not yet been created by the Welsh Assembly.

The second point under that heading is that we are concerned that in some instances the Assembly’s ability to carry out the sustainable development functions sometimes can be compromised. An obvious example of this is the Cefn Croes Wind-Farm where, because the wind-farm was over 50 MW the decision lay within the DTI rather than the Welsh Assembly. The same would also apply to marine issues, because the definition of Wales is out to the 12-mile nautical limit. Given that basis, 40 per cent of Wales legally is the sea. Who is responsible for various functions within the marine environment is distinctly murky waters!

The second issue you ask about is scrutiny. I have great pleasure in saying, as Chairman of a quango or ASPBs, as we are now called, that the more open and transparent our working methods, the better the system, without a shadow of doubt. We have seen that with our own internal workings. All our council meetings are held in public. We have now moved to have confirmations of Sites of Special Scientific Interest in public, and that has made the system more robust; and there is no question at all about that.

We are seeing that resources towards scrutiny committees is an important element in their work. There is also a clearer understanding within committees of their roles of scrutiny. To give you one short example, we operate on the remit letters that we receive from the Minister. The scrutiny of the contents of the remit letter should be the committee scrutinising the Minister. How that delivery of the remit letter – quite rightly, that is for us to be scrutinised on our ability to deliver.

The third element you have asked about the role of the Assembly in scrutinising Westminster legislation. There needs to be clarification on that, especially now that the same political party is in power in the Welsh Assembly and within Westminster. There needs to be clear protocols established. We found ourselves in a strange situation when the Countryside Rights of Way Bill was going through the parliamentary procedure because we were advising on behalf of the Welsh Assembly; but, obviously, within a fast-moving situation, especially when the Bill was at committee stage, things were moving so quickly that we did not have time to go through the entire consultation process; and we are having to try to second-guess what the Assembly wanted us to say. Again, those protocols need to be sorted.

The relationship between the Secretary of State ----

LORD RICHARD: Can you spell out the sort of protocols you want?

MR LLOYD JONES: To make sure that if we are advising within the Westminster process, are we advising -----

LORD RICHARD: Doing what the Assembly asks you to do.

MR LLOYD JONES: Exactly – or even clarification.

LORD RICHARD: Why can you not do that now?

MR LLOYD JONES: There is uncertainty as to whether we are engaging on behalf of the Welsh Assembly or whether we are part of the process because we are independent scientific advisors to the Welsh Assembly.

LORD RICHARD: Both, I would have thought.

MR LLOYD JONES: Yes, exactly. Sometimes we are having to second-guess what the Assembly would wish us to say.

MR THOMAS: If I can interject, that uncertainty extends to sometimes us getting contacted by Westminster, and the Assembly not knowing about it; so we let the Assembly know that there is contact.

LORD RICHARD: Can you not just tell them?

MR THOMAS: We do, but it does not seem particularly clear how it is all intended to happen. There is always the danger, of course, that something could be missed.

TED ROWLANDS: The Countryside Bill was one that crossed over the pre post-devolution period, was it not? It was an earlier bill.

MR THOMAS: Yes, it was.

TED ROWLANDS: Have we had a bill since that starts and finishes within the post-devolution period?

MR LLOYD JONES: Not one that we were so intimately involved with.

MR THOMAS: The Marine Bill might be the nearest. That foundered. It was a private member’s bill which foundered in the Lords in the end, and there was confusion, and the view in Wales was different to the view from England.

LORD RICHARD: Badgers?

SIR MICHAEL WHEELER BOOTH: A private member’s bill from the Commons that foundered in the Lords. That is very, very unusual. Why did it happen?

MR THOMAS: I do not know the full details, to be honest. Might it have run out of time?

SIR MICHAEL WHEELER BOOTH: You can rush bills through, and that is what normally happens, and if most people wanted the Bill -----

MR THOMAS: I think the Bill was strongly supported initially, and then it became clear that the proposed legislation was flawed, and maybe that is what saw it off. Certainly, we saw it as flawed from the outset, but it was not seen as flawed in England. Ultimately, it fell. We could do some research on it and let you know.

SIR MICHAEL WHEELER BOOTH: It is just such a very unusual circumstance. Normally, if it is the second House – getting a private member’s bill through the Commons is quite difficult. The opportunities for objectors are so large.

MR THOMAS: Yes. It was strongly supported initially. It had some big NGOs behind it like the RSPB.

MR LLOYD JONES: We were advising against it; it was to set up Sites of Special Scientific Interest within the marine environment. If you think about it, if you are going to designate parts of the sea because of the fish that are there, you cannot guarantee that those fish are going to stay within the same area; they tend to move around a bit, by the very nature of fish!

The other element you have asked to look at is the relationship between the Assembly and Whitehall. I hope you do not lose sight, when doing that, of the European dimension. Much of our work is driven by European directives. The Habitat Directive is the classic example of delivering on behalf of the Welsh Assembly. The other countryside agencies within Scottish National Heritage and English Nature are also delivering that directive on behalf of their constituent parts. Within that process, it is very important that there is consistency of approach and common standards. That is dealt with through the Joint Nature Conservancy Council. That body is owned by the countryside agencies and it therefore tries to ensure commonality and consistency of approach and common standards. If we did not do that, you would leave yourself open to judicial review.

It raises another interesting point. It is very important that the Welsh Assembly is involved with European directives when they are being constructed, in order to get their viewpoint in. Increasingly now, when you go to Brussels, it is seen more and more as Europe of the regions. That is becoming clearer and clearer within the 15 Member States. Therefore, it is important that we clarify this. When we are talking about European regions, are they administrative regions or are they political regions? The whole point of having devolution is to address the separate emphasis or requirements of the devolved administrations. It is therefore very important that the devolved administrations have an input into the construction of European directives, because it will affect them.

LORD RICHARD: Why shouldn’t they? In my day in the Commission, if somebody wanted to come along and talk, they came along and talked.

MR LLOYD JONES: Was that on an ad hoc basis?

LORD RICHARD: Yes.

MR LLOYD JONES: Did that work?

LORD RICHARD: Yes, very well

MR LLOYD JONES: You find no merit in having a more formal way of doing it?

LORD RICHARD: I think you might destroy some of the immediacy effects if you do that.

MR LLOYD JONES: I bow to your experience, Chairman. You have far greater experience of that then I do.

LORD RICHARD: I do not see any reason why Cardiff should not in effect go over to Brussels and say, "look here, we have got wind of this particular proposal; can we come and talk to you about it?" I would be very surprised if the Commission said "no". It is not a formal representation as such, but it is an informal expression of views. In my experience, the Commission was one of the most open bodies that you could find when it was in the process of deciding what it wanted to do. After it had decided what it wanted to do, it was very much more difficult. I am not quite sure what sort of mechanism you want.

PETER PRICE: But the informal approaches do not preclude a more formal one existing alongside. You seem to be pressing for some more formal structure, as I understood the distinction you are now drawing. What are you actually urging should be in place?

MR LLOYD JONES: I am urging that there should be a realisation that the Welsh Assembly has a legitimate part in the debate. Lord Richard, if you are saying that that could easily be accommodated on an ad hoc basis, then I am quite happy to accept that advice.

LORD RICHARD: Unless there is something in the concordats between the Welsh Assembly and Whitehall so that their representations are no longer made in that way. The Brussels end – and Peter will know as well as I do – it is always pretty open.

MR THOMAS: I suspect what we are really thinking that this lack of clarity in the process may mean that the Assembly might not take the opportunity to speak out on something sometimes, and we might see that as a loss from where we sit.

SIR MICHAEL WHEELER BOOTH: A week ago we had evidence from somebody on behalf of the European Committee in the Assembly, and the impression that he gave was very truthful and rather disarmingly so, that there had been very little work done on the specifics of EU proposals; in other words, something on the environment or on agriculture policy was very much on a higher basis. They had done something about the grand re-doing of the constitution, but they had not got down to the nitty-gritty. It seemed to me that this is perhaps a problem, because if you do not get down to the nitty-gritty, you do not have much influence. As our Chairman has been saying, it is by going to or making representations to the Commission, or indeed to our Government or whoever is going to the Council, as the two Houses at Westminster do; and they produce very elaborate reports on agricultural and environmental matters in both Houses. Some of them are highly argued. In a way, it is because there are a lot of opportunities that are not being taken.

MR THOMAS: I think we would agree with that. We are worried that opportunities are not being taken. I do not know how many opportunities there, but some opportunities are lost.

TED ROWLANDS: Excuse my ignorance, but what date was the Habitat Directive? Is that a post devolution directive?

MR LLOYD JONES: Early nineties.

TED ROWLANDS: It is quite an old one. Is there a directive in the pipeline, or has there been one since devolution, where we could trace the processes through which things did or did not happen?

MR LLOYD JONES: The one that is going through the European parliamentary processes at the moment is to do with environmental liability. I am not certain what our engagement is within that potential piece of legislation.

TED ROWLANDS: You, as a commission, have not seen drafts or early papers on it?

MR THOMAS: The only papers we have seen on it we got from Brussels anyway: we happened to be out there, and that was by chance.

PETER PRICE: I know a little about that directive. It strikes me as being one with virtually no distinctively Welsh content about it. Am I right in that assumption? There are very big principles at stake, and they would have their application throughout the European Union, but I do not see anything in it that would have a distinctively Welsh viewpoint as compared with the UK viewpoint.

MR LLOYD JONES: I think this merely highlights our concern. We know this legislation is going through the European process; we are not involved in it, and we do not know what the Welsh Assembly role is in it.

TED ROWLANDS: Have you asked them?

MR LLOYD JONES: That is a good question.

LORD RICHARD: Is there any mechanism for that? In this case, for example, where you have a view that you think the Assembly ought to be listening to, can you ring up the chairman of the committee and say, "we want to come and give evidence" or write a letter or ring Rhodri or the Minister?

MR LLOYD JONES: The whole process is very open, so there is no barrier there.

PETER PRICE: I feel drawn into contributing views rather than putting questions, but I put it to you that in the European context the danger is that if you do not select the right subjects which do have a very strongly distinctive Welsh interest, then pursue them with the various European institutions, not just the Commission but the Committee of the Regions, the European Parliament and through HMG vis-à-vis the Council. Instead of having a big impact on the things that you have a distinctively Welsh position on, you try and follow a whole lot of issues on which you have no distinctively Welsh position, and therefore the net product is not to have any real influence. The Environmental Liability Directive strikes me as being the kind of thing that you can get bogged down in, and it is just simply a distraction. In this Commission, we are getting much more at your relationship with the Assembly, and in the selection of what is pursued at the European level, do you have some kind of process that is joint with the Assembly to identify what it is that ought to be pursued, and a mechanism for pursuing it thereafter in some effective joint way?

MR LLOYD JONES: I suppose an example of that now would be the Mid-Term Review of the Common Agricultural Policy, where we are quite heavily engaged with the Welsh Assembly on giving them advice about that process, when there are distinct elements about the Mid-Term Review and the Fischler proposals that would not work within Wales. Just to give you an example, Fischler, as part of the Mid-Term Review, is against the ploughing of any more grass and converting it to arable areas simply because they see that as a loss of biodiversity. Within the Welsh context, we are actively encouraging farmers through the Tir Gofal mechanism, to plough up grassland for spring cereals in order to get more diversity into the countryside. That is a small example. It is a very clear example about how a European dimension is at variance to the Welsh dimension.

TED ROWLANDS: How consistent is the Welsh view with the UK view?

MR LLOYD JONES: I think that is more at variance in Wales and is not so much applicable to England because they are not in great -----

TED ROWLANDS: So they might not go into battle on this issue with the same intensity.

MR LLOYD JONES: They do not see it as such an important factor as we would.

LORD RICHARD: But this is within the Council now, is it not?

MR LLOYD JONES: Yes.

LORD RICHARD: Surely there are mechanisms for the Assembly having an input into HMG’s position?

MR LLOYD JONES: Yes. We drew the Assembly’s attention to that. I know it is a small bit of detail, but actually it is quite important as far as we are concerned.

LORD RICHARD: I can see that.

MR THOMAS: That is an aspect where it is working because we and the Assembly work closely together to get our views known. I guess the point that you are making, Mr Price, is that – it is almost akin to the comment we made about having a Sewel type provision: leave well alone; it is good enough to introduce in Wales, but make sure you focus on the things where you need a difference. What we do not have at the moment is a filtering mechanism, so that we know what is going on and we can say "yes, it is that, but it is not that".

SIR MICHAEL WHEELER BOOTH: You have referred more than once to the Sewel type provision. That is applied in Scottish procedures to primary legislation on which the National Assembly has no role. So you cannot just apply Sewel to Wales because it is not relevant.

MR THOMAS: That is why we said "Sewel type" provision – provision for secondary legislation. John gave the example of the hedgerow regulation. Before that is the Article 10 statutory instrument for candidates: special areas of conservation, which does not apply in Wales but could do if we had that sort of provision.

SIR MICHAEL WHEELER BOOTH: That depends on the Welsh Assembly Government adopting things and just saying, "good, right".

MR THOMAS: Yes.

SIR MICHAEL WHEELER BOOTH: "We will have a translation and we will do it."

MR THOMAS: Yes.

SIR MICHAEL WHEELER BOOTH: You do not need Sewel. Sewel is, in a way, rather a red herring.

MR LLOYD JONES: We said "Sewel type". What we are saying is that when you get situations like the hedgerow regulations and like the ones for protection of special areas of conservation, is there a need to go through the whole consultation process within Wales if that process is happening in England? It goes back to your point, Mr Price, about the filtering mechanism. Do we need to do everything twice?

PAUL VALERIO: To take that a step further, is there any legislation in Scotland that you think would be more relevant to Wales than England perhaps, so that you can take advantage of that? Part of the terms of reference of the Commission is the different types of governmental regulations throughout. One of the questions that some of us ask ourselves is this, is devolution really appropriate in certain cases? In the environment that we are talking about, you want to take the best of legislation that is available. There are different types in different areas, as you have distinguished; so how far would you want to go?

MR THOMAS: If there was something in Scotland that is applicable – I am not aware of anything.

MR LLOYD JONES: It is an interesting example. When you look at the primary legislation going through Scotland now, with the Land Reform Act, in all probability land reform within the Welsh Assembly would be very low down, simply because the land ownership pattern in Wales is so different to Scotland. Primarily, Wales is a country of small family farm owner-occupiers, whereas in Scotland absentee landlords are, in Scottish terms, a problem. That is an example of primary legislation that is importance in Scotland, but it would have very little relevance for Wales. It is a good example of how the devolutionary process should be working.

LORD RICHARD: Can I come back to Sewel? As I understand it, you want a situation in which, if there is a proposal at Westminster, or a statutory instrument that you think is sensible and ought to be applied in Britain – that there should be some mechanism whereby if it is done at Westminster, it has dual application. That can be done as in the Scottish case: the National Assembly requests Westminster to do it for them. Is that the sort of thing you have in mind?

MR LLOYD JONES: Yes.

LORD RICHARD: What is the jurisdictional position? The responsibility for statutory regulations has been devolved to the Assembly. Are they going to pass it back?

MR THOMAS: Do they have to pass it back, or could there be a provision? You will understand far better than we do, I guess, how these things work in law. It is a Sewel type provision, I think, where the Assembly simply says on this occasion, "we will follow England" without passing a formal statutory regulation and just take the SI and pass it in Wales without going to consultation.

LORD RICHARD: They will have to pass it.

MR THOMAS: Yes, they could pass it, but without having to have the debate and consultation. We do not have, as John said, the protection of our specialised conservation -----

LAURA McALLISTER: Is there not a political issue here as well? I am struggling to get my head round the comments you have made about the Sewel type approach because when we were in Scotland the extent of use of Sewel was heavily criticised by some groups, because it is being internalised as a fairly frequent device now; and some would argue that that undermines some of the basic principles of devolution. If this was to extend to a secondary legislative situation, then you are circumventing some of the basic accountability and consultation loops that are inherent within the political scheme of devolution. Many people would argue that that would be a very dangerous route to go down.

MR LLOYD JONES: We have given two specific examples, and there is always a danger that you generalise on the specifics. The Hedgerow Regulations, because they are non-contentious are merely wanting to update the existing legislation. This is a time factor, if you like. On the candidate special areas of conservation, this is a European directive and it has a member state responsibility; yet at the moment the legal status of these candidate special areas of conservation is different in England in Wales, though it is a member state responsibility.

LAURA McALLISTER: You have mentioned a less contentious issue there, but there would be a danger, because of political circumstances, of more contentious issues being used in this way, which one could argue would be a threat to democracy.

TED ROWLANDS: Suppose there is a Sewel issue in some ways, because it does require the Scottish Parliament to pass a motion saying, "we will allow Westminster to do this". I cannot see the point of it because the simplest way to do it would be for the National Assembly to endorse the statutory instrument with its own powers, without an elaborate consultation process.

When I read your paper and the paper we had from the Environment Agency, perhaps the word "schizophrenic" is a bit strong, but certainly you are ambivalent about the nature of devolution in some respects, are you not? You want devolution, but if it starts to create inconsistency of standards or of application of some of these environmental agreed norms, then you do not like that. That is why you do not want them. Devolution does assume that people are going to do things differently and go in different directions. You feel there is a limit to how much difference there should be.

MR THOMAS: We were saying that in Wales there may well be a case for doing things differently and doing more than the minimum because of the special situation we have in Wales. We have far more specially protected areas as a proportion of Wales, than either England or Scotland has; so we might want to do more in Wales, surely? That would be the point. Where there is something coming through which, in Wales, can simply be adopted – and the example given might be protection of the candidate sites – it is simply to protect them as soon as they were notified, because there is a period between notification when we can legally designate it, when otherwise there was no protection. In Wales, that could have been applied immediately but instead it was done by planning guidance, which is not as robust. We are not anti-devolution; we are very strongly in favour of devolution.

TED ROWLANDS: There is ambivalence running through your document for this understandable reason, that the environment is not easily bordered.

MR LLOYD JONES: It does not respect political boundaries. Let us be perfectly clear about this. We are finding the devolutionary process extremely beneficial to the work that we do. We have a Minister who is directly responsible for environmental matters. We have far greater access to civil servants, and we are in constant contact with the Welsh Assembly and the scrutiny committees.

SIR MICHAEL WHEELER BOOTH: One of the clarion calls in A Voice for Wales, the White Paper preceding devolution, was that there was going to be more efficient and cheaper supervision of quangos or ASPBs post the Government for Wales Act than before. Are you in practice more accountable now?

MR THOMAS: Yes.

SIR MICHAEL WHEELER BOOTH: Are you accountable for the Assembly and its committee or to the Minister in practice?

MR LLOYD JONES: Both because it is an inclusive system.

SIR MICHAEL WHEELER BOOTH: How many times has the committee heard you? How much real dialogue has there been? It is not a question of bossing around; it is dialogue and having to answer questions.

MR THOMAS: Twice a year formally, and then we get called in for specific subject areas.

SIR MICHAEL WHEELER BOOTH: So quite a lot.

MR THOMAS: Yes; and there are informal meetings as well. For our formal meetings outside of the Assembly, the Minister will come and talk to us about particular issues.

MR LLOYD JONES: It is not only the Chief Executive and myself that get called in front of the committees, but some of our specialist staff will get pulled in as well to explain things like biodiversity action plans and agri-environment schemes, so there is a lot of dialogue, not only at Chairman/Chief Executive level, but also at the specialist advisor level.

SIR MICHAEL WHEELER BOOTH: Does the Countryside Council see itself as having environmental issues and improving the quality of the countryside as its main aim? How far does it see itself as having to consider the interests of farmers or indeed of fishermen, as you have mentioned. That is always a very difficult area because people say you want open access or something, and the farmer says, "you come and leave gates open and the sheep get out", which is the point. How do you see yourself? Where is your objective?

MR LLOYD JONES: Our objective is – and this is in very general terms. We have to carry out what the legislation instructs us to carry out, so the CROW Act would be one, and the Habitats Directive and the SSSIs would be another. Generally, we would much prefer to concentrate on raising the general standards of the Welsh countryside, rather than protecting specific areas. That is why we have been heavily engaged in and advocates -----

LORD RICHARD: I am sorry to interrupt you, but what do you mean by "raise the standards of the Welsh countryside"?

MR LLOYD JONES: We would like to roll out the Welsh Agri-Environment Scheme, Tir Gofal, to as many farmers as possible, because that is raising the general standards rather than protecting specific areas. It does raise the point that if you are trying to conserve species and habitats in situ, which we are under the legislation, given the fact that global warming means that habitats and species will tend to migrate, then there is a fundamental dilemma of trying to conserve them in situ, because in fact you want to make sure that they have the mechanisms to migrate.

LAURA McALLISTER: Coming back to Michael’s question on scrutiny, you make a very significant point in paragraph 7, where you say that scrutiny may not always be effective. Then you suggest some ways in which it might be improved. I have to say that those two points you make there strike me as being a little bit difficult to achieve in that politics intervenes, and one of the reasons why the subject committee composition has changed is because of political developments, as we all know. In a sense, politicians should be able to scrutinise, regardless of the depth of their knowledge on this particular subject, and I would suggest anyway that most of the members have sufficient understanding of your responsibilities to be able to scrutinise you effectively. Can you give examples of where you think the scrutiny has not been sufficiently stringent and robust, and why? What was the atmosphere like, so that we can get a sense of it?

MR THOMAS: I suppose the point we are trying to make there is that the members sometimes are not as well briefed. You say they understand what we do, but sometimes that understanding is not there. We have put seminars on for members to help them understand what we are trying to do because a lot of people assume that they understand what we do. Many people confuse us and the Environment Agency, for example. I would say we look after habitat, species, landscape, but the Environment Agency looks after environmental practice. I used to run the Agency in Wales as well, and I can see a very clear distinction, but that distinction is not seen by many people. There is that, and I think the back-up facilities they have sometimes may therefore be deficient in terms of being able to access information by organisations and understand where they should be programmed. I know that researchers are being put in place for committees to help that process, and that from our perspective is a very welcome point. In terms of specific inquiries, I suppose at the agri-environment inquiry we felt that it spent time looking at other organisations and we did not really get an opportunity to put our points across. In our paper we did but at the actual hearing we felt we did not have the opportunity to get our points in.

MR LLOYD JONES: Parliamentary select committees have the ability to call in specific expertise, depending on the topics that they are dealing with. It just shows you how far we have gone, that an ASPB is actually calling for greater scrutiny!

LAURA McALLISTER: Do you think the presence of the Minister on the Committee is one factor in terms of the weaker scrutiny role? Is it problematic to be able to scrutinise effectively when the Minister is part of the Committee and is involved in his or her own relationship with you via their remit?

MR LLOYD JONES: It must be a factor. It depends on the character of the Minister as much as anything else. Some Ministers have a very consensus-driven relationship with their committees, and others have less so.

PETER PRICE: There is a theme of capacity behind some of your answers. I would like to loop back on this issue of capacity to the reasoning behind your urging a Sewel type approach to secondary legislation. We have been talking about what you were wanting, and now I would like to get at the reason why you are going down that road. I am implying two reasons, and I would like to see whether I have got this right. The first reason that I am implying from what you said was that it would avoid the need for consultation on some of those issues. That suggests that whilst you have welcomed the scope for consultation on some key issues, the capacity of the organisations being consulted and the capacity of the Assembly itself to handle it all, is too restrictive to be able to handle it across the waterfront, and you are urging that there ought to be more selectivity, and you are finding a mechanism whereby you do not have to get involved in all the secondary legislation; it can be done elsewhere as part of a bigger package, where there is nothing distinctively Welsh.

The second reason that I am deducing from what you are saying may be to do with capacity of the Civil Service. You have talked a couple of times about SSIs adopted in England that had not been adopted in Wales. Are you suggesting that the capacity of the Civil Service, both in policy and in drafting terms, is not there to be able to do the job properly and effectively across, again, the whole waterfront, and it needs therefore to reverse devolve some of the legislation to London in order to deal with that capacity point in the Civil Service?

MR THOMAS: I think both of those are points we are making, but reverse devolve – we said earlier that there are opportunities to simply take what is being developed. It is non-contentious in Wales: everybody agrees that it is the way forward, and why can we not simply take it? I am sure that we could even consult as well, if we needed to, because as things develop in Westminster we can still consult in Wales, if there is a need, but take it to the point where it is ready for consultation and not go through the whole process ourselves.

SIR MICHAEL WHEELER BOOTH: The Welsh lawyers have told us that the numbers of SSIs applied by the Assembly to Wales since devolution are something like nine out of ten passed without amendment; and very often, where they have been amended, the date of commencement is one of the issues, which is an obvious point. If that is true, that means that what you are asking for should apply; and it is the process of deciding whether you want to have Assembly scrutiny or a variation that is just too slow, which may be a reflection of the resources available or it may reflect other, more human issues.

MR THOMAS: It is largely a reflection of resources available. If you compare the Civil Service in Wales with that in Westminster, obviously it is only about a tenth of the size and much smaller than the Civil Services in Scotland. Whilst the Assembly does use ASPBs and may be involved in working with the Assembly on the agricultural front, for example, there is not sufficient capacity to do everything. You have to be selective about what you do – the same point that you made about European legislation.

TED ROWLANDS: Where the protection directive has not been implemented in Wales, has that been a policy decision, or is it just an inability to get round to it?

MR THOMAS: My understanding of the Assembly’s decision was that they did not have time to do the consultation. Therefore, it went through on policy guidance instead, because they wanted to have something there but could not do it in the other way.

TED ROWLANDS: So they used policy guidance as a shortcut through the consultation process.

MR THOMAS: Yes. By doing it by policy guidance, there has not been consultation either. One of you made a point earlier that we should not reverse devolve, and therefore deny Wales its opportunity to consult, because that is anti-devolutionary. In fact, if you put it in policy guidance anyway, you are short-cutting.

TED ROWLANDS: You mentioned the whole marine issue. I do not know what the issue is and how it impacts upon powers.

MR THOMAS: The marine issue is pretty messy, as John said in his introduction.

TED ROWLANDS: Describe the mess!

MR THOMAS: It is UK-wide because the various bodies have powers with different nautical limits. When I was in the Environment Agency, I used to carry a diagram round with me to show all the different responsibilities, because they overlap and then there are gaps. It is very difficult to understand. I suppose our main point is that Wales includes the seas of Wales. There are 2 million hectares of land area in Wales and 1.5 million hectares of sea, so we have a huge sea area.

SIR MICHAEL WHEELER BOOTH: That is the 12 miles.

MR THOMAS: Yes.

SIR MICHAEL WHEELER BOOTH: That comes up to 1.5 million hectares.

MR LLOYD JONES: Yes, 40 per cent of legal Wales is marine.

PAUL VALERIO: I think everybody agrees there is a problem, but it seems nobody wants to grasp it.

TED ROWLANDS: I do not even understand what the problem is yet. Tell us what it is that rouses you to make a statement to us, and what we should concentrate on.

MR THOMAS: Off-shore renewable projects would be one. Again, projects above 50 MW are consented via the Assembly if they go through the Transport & Works Act. If they go through the Electricity Act, they go via DTi.

TED ROWLANDS: We understand that.

MR THOMAS: We have three in Wales at the moment, one of which is going via the Transport & Works Act, so the Assembly will take the decision, and two of which the proposal is put the other way.

MR LLOYD JONES: The fundamental problem here is that under section 121 of the Government of Wales Act, the Welsh Assembly has to base its decisions on the whole principle of sustainable development – sustainability. The DTi do not have the same obligation, and that is the difficulty. It may not arise, but you may well have decisions taken within the Welsh environment by DTi that may not take into account the sustainable development/legal issues. That is the potential.

TED ROWLANDS: We have taken quite a lot of evidence on the question of power stations, so we can put that aside, but let us go back to the marine issue. What is it that tells us something about the powers of the Welsh Assembly Government and the Welsh Assembly in relation to the marine issue that you have brought to our attention.

MR THOMAS: The other issues outside of renewables are cables – oil and gas developments. These are all different and can impact on the Assembly’s other requirements, for example marine special areas of conservation under the Habitats Directive; so there are difficulties there. From our point of view, it is the delivery of a sustainable development duty.

TED ROWLANDS: Does the Scottish Parliament, the Scottish Executive, have other powers than the Welsh Assembly in connection with marine issues?

MR THOMAS: I have no idea, but I suspect not because marine waters throughout the UK generally have so many different authorities involved and different limits that the whole thing is a bit of a dog’s breakfast.

MR LLOYD JONES: We are looking for greater clarity here. Who is responsible for what?

LORD RICHARD: That is a good question, and I entirely agree with you. I think it is extremely fuzzy, and we have heard a lot of evidence about that. Can I turn to another function of your Council, as it appears from the paper you have put in, which is your role in lobbying at Westminster in respect of primary legislation which will apply in Wales. Why do you do that; how do you do that; and do you go to the Assembly and say, "hey, this is going through in Westminster; you ought to have an eye on it"; or do they come to you and, if so, do you liaise with your equivalents in England and possibly Scotland, if it is a reserve power? How does this work and why are you doing it?

MR THOMAS: I go back to the example of the Marine Bill. There, we spoke to the Assembly, which agreed with our views. We took the views to Westminster. Our views, of course, disagreed with the views within England – this was the private member’s bill that was withdrawn.

LORD RICHARD: Who did you argue with at Westminster?

MR THOMAS: We put written evidence in at Committee stages in the House of Commons.

LORD RICHARD: To whom?

MR THOMAS: To various Welsh MPs.

LORD RICHARD: In other words, you lobbied Welsh MPs in the hope that they would do something.

MR THOMAS: Yes. Well, we had two Welsh MPs on the committee.

LORD RICHARD: But your instructions basically came from the Assembly and not from you.

MR THOMAS: No, we spotted that the Bill was going through that had important issues for Wales, and so we took it to the Assembly.

LORD RICHARD: The Assembly had not spotted that.

MR THOMAS: They certainly had not come to us.

PAUL VALERIO: What is the mechanism for becoming aware of these development issues?

MR THOMAS: For us it is having an Assembly liaison officer and then we have a link through to Westminster, so we have somebody in our organisation who is charged with keeping an eye on developing legislation. Then we have an organisation called the JNCC (Joint Nature Conservation Committee), which is an organisation that is effectively responsible to the countryside agencies within Great Britain and Ireland, and plays a semi-detached role.

EIRA DAVIES: How often does that committee meet?

MR LLOYD JONES: Four times a year.

TED ROWLANDS: In paragraph 12 you raise an interesting question about procedural understanding between the two legislatures, including clarification of the ability of a select committee at Westminster to call someone like yourself to account. This is obviously based on recent experience of some kind, is it? What has happened that prompted you to write paragraph 12?

MR THOMAS: We have not been called recently to give evidence.

TED ROWLANDS: Post devolution you have not.

MR LLOYD JONES: No, not to my knowledge.

MR THOMAS: It certainly has not happened in the last year.

MR LLOYD JONES: If we appear before a House of Commons or House of Lords select committee, in what capacity are we there? Are we there in the capacity of independent advisors to the Welsh Assembly, or are we there, in some of our functions, as their agents.

LORD RICHARD: That is a matter for you and the Assembly to sort that out; it is not a matter for Westminster to sort out.

MR LLOYD JONES: No, I do not think it is.

LORD RICHARD: Why is it an issue that we should be concerned with?

MR LLOYD JONES: Because it is important that the role of ASPBs – at what level or in what context should they be engaging with the Westminster debate?

LORD RICHARD: Do they not differ? Some do and some do not; some are more active, and some are less active.

SIR MICHAEL WHEELER BOOTH: From the point of view of the Westminster select committee, they would regard you as experts advising them, and as you referred to having expert ad hoc advisors, in the same way. Very often it is the evidence given to the committee, which is the single most valuable thing that they do, or that is the product of the inquiries. Once it is down there in writing or verbally on the record, there it is and people have to take account of it – or should take account of it.

TED ROWLANDS: We had evidence from a chairman of another ASPB that it required the permission as it were of clearance from Welsh Assembly officials before the chairman could go and talk to officials of people in the English department. Have you had a similar restriction placed upon you?

MR LLOYD JONES: Not personally, no, but I believe that was an issue four or five years ago with the previous chairman with evidence given in front of the House of Lords.

TED ROWLANDS: You, as Chairman, and you as Chief Executive, can go to Defra as and when you feel, and you do not feel obligated to have to say to Assembly officials "I am going up to see them about this, this and this".

MR THOMAS: No. As Chief Executive, the agreement I have with my sponsorship division is that if I am doing anything in Westminster, I will always copy them in so they know what I am doing. They have not asked to see it first to approve it anyway, and seem quite content with that approach.

MR LLOYD JONES: I do not think it would cross any of our minds to get engaged in a conversation with Defra without letting the Welsh Assembly know that we are doing it. It is not part of our culture.

TED ROWLANDS: But letting them know as opposed to seeking their approval for it.

MR LLOYD JONES: Well, seeking their guidance certainly, yes.

SIR MICHAEL WHEELER BOOTH: In paragraph 7 you put in a plea about enhanced understanding and length of service of committee members, which seems very reasonable. Years ago I was concerned in running an EEC scrutiny committee that had a lot of sub-committees. One of its sub-committees was on agriculture. At one point, we had to displace a chairman who was a farmer by a chairman who was an ex-Treasury mandarin because no account had been paid to the interests of the taxpayer in looking at European draft legislation. Do you get the impression that in the Assembly there is a broad spread and sufficient expertise in your own field? The majority of Assembly Members, presumably, are slightly more townie than country-dwellers, are they not?

MR LLOYD JONES: Not really; there is a broad spread. Obviously, sufficient expertise develops over periods of time, and that is what we are saying. All right, there are political reasons why membership of committees gets changed, but the point that we are making is that the ability of members to develop expertise within select committees is completely proportional to the amount of time that they spend on those select committees.

LORD RICHARD: Do you appear before a number of committees?

MR LLOYD JONES: The main ones are Environment, Planning and Transport, which is our sponsoring division, and the Agricultural Rural Affairs, although we do occasionally appear in front of the Economics Development Committee as well.

MR THOMAS: And once the Culture Committee.

MR LLOYD JONES: Yes. I was not there at the time, which probably says something more about me than the organisation!

PAUL VALERIO: How do you compare your performance compared to Scottish Heritage and your equivalent in Northern Ireland, since devolution?

MR THOMAS: The Irish body is a very different body to ours because I think it has castles in its remit. It is the Environmental Heritage Service.

MR LLOYD JONES: I do not think we would like to compare. I suppose in terms of delivery, then certainly we have delivered the Habitats Directive in Wales than a less traumatic way than Scottish National Heritage, but that may be more to do with internal politics. We have certainly not populated off-shore islands with hedgehogs and the attendant problems either!

LORD RICHARD: You have not de-populated them either!

PAUL VALERIO: You said in your remarks that you felt your organisation to be a more robust organisation because you are now open to the public. Do you have any more success in attracting members of the public to your meetings than perhaps we have done today?

MR LLOYD JONES: I think that once an organisation is open, the members of the public can sit in. In a peculiar way, that is a disincentive for them to attend. However, the kind of situation that has improved immensely – we had a very large site that we designated as an SSSI called the Midnight up in Blaenau Ffestinniog. It was contentious: it was a large, 20,000-hectare site, and there were lots and lots of farmers who were vociferously against the whole thing. We held a couple of open meetings in a pub – which may have been a tactical mistake in itself. However, they were quite fiery meetings, and there are obviously strong passions, but those farmers were allowed to come in front of us when we were notifying the whole thing – each one was allowed a ten-minute oral representation. We took all day, from half past nine to five o’clock. Their arguments were seen to be heard in public, and we were listening to them and adjusting both the site and the ways that we were going to manage that site in the future, making it perfectly clear to them that we were only going to approach the management of the site, unless there were overwhelming reasons, on a voluntary basis, with management agreements in place. That turned the whole situation from a negative situation to a positive situation. If we were confirming that behind closed doors, then that problem would still be there now because those people would not have thought they had had a fair hearing.

MR THOMAS: In terms of attracting the public in general meetings, in the standard council meeting that precedes or follows the protection meeting, we generally have no more than about half a dozen people there and sometimes more. We always have representatives there.

MR LLOYD JONES: Wind farms are always a good subject for attracting audiences.

EIRA DAVIES: Can you comment on paragraph 13 of your paper about the role of the Secretary of State and the mechanism you suggest for scrutinising the Secretary of State?

MR THOMAS: All we are saying there is that the Secretary of State for Wales comes to the Assembly once a year to talk about the Queen’s Speech, but does not present himself for scrutiny about the primary legislation that is being developed in Westminster. I suppose it is back to our point about not really understanding how Wales gets primary legislation on the statute books any more and how to propose things.

LORD RICHARD: It takes its place in the queue with the rest of them, fighting for parliamentary time.

MR THOMAS: What is the role of the Secretary of State in that process?

LORD RICHARD: He is the one doing the fighting. All sorts of favourite sons and daughters are strangled in that legislation committee.

EIRA DAVIES: So you have no further experience of working with the Secretary of State beyond -----

MR THOMAS: No, our work is largely with the Assembly these days.

MR LLOYD JONES: That paragraph is there, with respect, because you asked the question.

LORD RICHARD: Thank you very much indeed for coming. It has been very useful.

MR LLOYD JONES: Thank you all very much for your constructive questions.