What does the bill do?

The bill will enshrine environmental principles in Welsh law and place duties on Welsh ministers and public authorities to take account of them in policy making (Part 1); establish a new governance body to hold Welsh ministers and public authorities to account on compliance with environmental law (Part 2); create a framework to set legally binding biodiversity targets, with a duty to bring forward targets in priority areas and a duty on Welsh ministers to deliver the targets (Part 3). This blog focuses on Parts 1 and 2 of the bill.

A different approach to environmental principles

In his evidence to the Senedd’s Legislation, Justice and Constitution Committee, the Cabinet Secretary for Climate Change and Rural Affairs expressed a keenness to learn lessons from the approach of the other legislatures in the UK. This is perhaps most evident in how the Welsh government has chosen to embed environmental principles in Welsh law.

The bill places duties on Welsh ministers and Natural Resources Wales to have “special regard” to four longstanding international environmental principles and to integrate environmental protection into their policy making (sections 2 to 4). Policy making includes proposals for legislation and developing, adopting or revising policies but individual regulatory, planning or licensing decisions made by Welsh ministers are out of scope of the duty.

Certain public authorities will be required to have regard to environmental principles and integrate environmental protections when carrying out their functions in connection with the strategic environmental assessment of plans and programmes (section 5).

Welsh ministers must consult on and publish an environmental principles and integration statement, to clarify and explain how the environmental principles are to be interpreted and applied (section 6).

The bill introduces an environmental objective to guide the application and implementation of the duties on environmental principles and integration (section 1).

The selection of a stronger standard for the duties on Welsh ministers and Natural Resources Wales (“special regard” vs the “due regard” standard used in the other countries) is welcome. This means they must attach considerable importance and weight to the principles when making policy, as per a 2014 Court of Appeal ruling on a case involving a wind farm. The Court of Appeal recently commented on the meaning of “due regard” in a case involving the application of the section 19 duty in the Environment Act 2021, reiterating that it must be carried out in substance, with rigour and with an open mind.

While it has been used in other legislative contexts such as The Broadcasting Act 1990 and The Children Act 2004, “special regard” is a less familiar construct in environmental law with the closest examples found in heritage conservation, for example in section 102 of the Levelling up and Regeneration Act 2023. The environmental principles statement should provide guidance on the meaning and application of “special regard”.

The Welsh government has opted to apply the duties directly to the principles rather than the more indirect – and less helpful – approach taken by the UK government of attaching the duty to a policy statement.

However, while the environmental principles duties in other legislation in the UK cover all policy making, with some exceptions for fiscal and defence policy, the Welsh government has opted for what appears to be a narrower approach in which only policy “that has, or could have, any effect on the environment” will be covered by the duty.

It has maintained that this is “not in practice narrower” but concerns have been raised, including by expert academics, that this places considerable discretion in the hands of future Welsh ministers to decide whether policy has, or could have, any effect on the environment. There is no requirement for them to seek advice on this, nor to publish the criteria that they will use to decide whether policy is in scope of section 3.

The Welsh government has taken a novel approach to the integration principle, which seeks to ensure that environmental protections are embedded across all fields of policy, not just those obviously related to the environment. It has elevated the principle to a duty on Welsh ministers and some public authorities, but the inclusion of “such” in section 3(1)(b) of the bill limits the application of the integration duty to policy which has, or could have, any effect on the environment, instead of its accepted and longstanding application to all policy.

The bill requires Welsh ministers to review the environmental principles statement “from time to time”, a framing which has started to seep into Welsh law (section 6(5)). It would make more sense for the statement to be reviewed once during each Senedd term, to ensure that it keeps pace with developments in international environmental protection legislation and provides up to date guidance to ministers and public authorities.

The duties on Welsh ministers, Natural Resources Wales and public authorities on environmental principles and integration will come into force six months after Royal Assent.

A new oversight body – the Office of Environmental Governance Wales (OEGW)

Part 2 of the bill establishes a new statutory environmental oversight body, the Office of Environmental Governance Wales (OEGW). This is long overdue, as since Brexit, Wales has been without a statutory body to monitor and enforce breaches of environmental law by Welsh ministers and public authorities and is the last UK nation to introduce legislation to fill this gap.

The Office for Environmental Protection (OEP) and Environmental Standards Scotland (ESS) perform a similar role in England, Northern Ireland and Scotland. The OEGW is to be provided with the same range of powers as the other bodies to monitor and enforce compliance with environmental law and to provide advice and guidance to Welsh ministers and other persons.

While an interim arrangement, the Interim Environmental Protection Assessor for Wales, has been put in place, it lacks resourcing and has no statutory powers. The Interim Assessor recently published a ‘lessons learned’ report in which it warns that “It will not be possible to deliver environmental oversight effectively for the Welsh environment and public on a shoestring” and that the OEGW must be independent of the Welsh government, with sufficient powers and resources to deliver its mission.

These five areas have attracted the greatest attention in the scrutiny of the bill to date:

• Independence and resourcing – the Cabinet Secretary has said that he is “…crystal clear that the independence of the OEGW is crucial to its operation”, and yet the bill lacks any formal provisions on this. He has been dismissive of the safeguards in other UK legislation, citing them as declaratory or unclear. Evidence provided from the other oversight bodies and stakeholders has countered this, with almost universal calls for the bill to place a duty on Welsh ministers to respect the OEGW’s independence and provide it with sufficient funding. The bill will also need amending in other technical regards. For example, Section 29 enables Welsh ministers to change the meaning of environmental law. This matters for OEGW independence because the definition effectively sets the scope of the OEGW’s functions. There is no requirement to consult the OEGW on changes to the definition as there is for the Office for Environmental Protection in the equivalent provision in the UK Environment Act 2021.
• Enforcement powers – the bill provides an escalatory approach to enforcement, which is designed to achieve compliance as early as possible. The OEGW will be able to serve public authorities with information notices and compliance notices, which can be urgent if warranted. The system resembles the enforcement powers provided to Environmental Standards Scotland. If public authorities refuse to take the remedial action specified in a compliance notice, the OEGW can apply to the High Court for an order to require the public authority to take action. The effectiveness of this system will depend on whether the end point has sufficient bite to give the OEGW sufficient negotiating clout to secure swift compliance with environmental law. It is notable that the OEGW will not have an explicit power to undertake judicial review or to intervene in third party proceedings, although the Welsh government has said that the body would be able to do either of these in the same way as any other public authority or through the potential use of its broad ancillary power in Schedule 1. There are concerns this may affect the OEGW’s standing before the court, especially as it seeks to build its legal authority.
• Composition of review committees – public authorities will be able to ask the OEGW for an internal review of a compliance notice. That is reasonable given that the notice will specify the conduct that has caused the OEGW to consider that the public authority is failing to comply with environmental law and the actions that the authority is required to take in order to address the failure. The arrangements proposed for the review committee would undermine the governance and enforcement authority of the OEGW, as external members from a list maintained by Welsh ministers will be in the majority, and empowered to confirm, vary or withdraw the compliance notice. The Chair of the Office for Environmental Protection said she was “particular concerned” by this. It would be possible for a review to be undertaken in a fair and objective manner without requiring the OEGW to cede its enforcement authority in this way.
• Access to environmental justice – there is no explicit provision in the bill for people to make formal representations to the OEGW if they feel an environmental law has been broken, nor on how the OEGW would handle such representations. Schedule 2 will require the OEGW to set out how it intends to enable people to make representations to it in its strategy, but that is not the same as including a legal right for people to make representations on the face of the bill. The bill should mirror the approach taken by the UK government in section 32 and section 34 of the UK Environment Act 2021.
• The establishment of the body – the set-up of the OEGW has to be seen in the context in which this legislation has taken over 7 years to reach the Senedd, despite repeated political commitments to introduce it. A small number of the OEGW provisions will be commenced two months after Royal Assent to allow it to exist in legal form, but most of the other provisions relating to the OEGW will not come into force until future Welsh ministers want them to. In light of the political uncertainty that lies ahead, it would be prudent to require the commencement of all OEGW provisions within a timescale commensurate with the Cabinet Secretary’s indication that the body will be ready within two years at the latest.

What happens now?

The bill is currently in stage 1 of the Senedd scrutiny process, with Royal Assent expected in April 2026. The timetable is tight as there will be Senedd elections in May, so the bill must pass by then if it is not to fall.

Most of the provisions will come into force and be implemented in the next Senedd term, amidst the usual degree of uncertainty that any election brings, exacerbated by the forthcoming changes to the electoral system.

Back in March 2018, the then Leader of the House, Julie James MS, pledged to close the governance gap at “the first proper legislative opportunity”. This seven year wait is important context for the Senedd’s scrutiny of the bill, including for those parts which are not yet explicit enough to provide a definitive guide for future governments.

Ruth Chambers is a senior fellow at environmental think tank Green Alliance.