Terms of reference

These Terms of Reference relate to the operation of the Interim Environmental Protection Measures for Wales (the interim measures). They set out the broad framework within which the measures will operate and define the roles and responsibilities of the Interim Assessor, Welsh Ministers and Welsh Government staff as well as the relationship between them.

2.1     The Interim Environmental Protection Measures for Wales will provide members of the public with a mechanism to raise submissions about the functioning of environmental law in Wales.  It will further provide for those submissions to be considered by an Interim Assessor, who will advise the Welsh Ministers if the submissions raised are valid and make recommendations for any action they consider may need to be taken.

2.2     The interim measures are non-statutory. Their role is to provide a partial stop gap between the end of the European Union’s oversight of environmental law following the end of the transition period on 31 December 2020, and the introduction of permanent statutory measures for Wales.

2.3     The interim measures’ main purpose is to:

• provide oversight of the functioning of environmental law in Wales; and
• to consider systemic issues relating to the working or functioning of environmental law in Wales.

2.4     The scope of the interim measures will not cover:

• breaches in environmental law;
• areas of non-compliance of environmental law; and
• issues raised that are covered by another complaints mechanism or process.

2.5     Its aim is to identify where action may need to be taken to correct functioning issues that will improve environmental outcomes.

2.6     Its strategic objectives are to:

• provide a service to the public that allows them to submit their submissions;
• advise the Welsh Ministers on any action that may be required; and
• contribute to the development of the permanent approach to environmental governance in Wales.

Legal Context

3.1     The interim measures are non-statutory. The Interim Assessor’s role is advisory only.

Ministerial Responsibility

3.2     There is no formal oversight role for the interim measures as they are non-statutory, but they fall within the remit of the Minister for Climate Change. The Minister generally exercises the functions of the Welsh Ministers in relation to environmental protection and is ultimately accountable to the Senedd for Welsh Government action under this remit. The Minister is not responsible for day-to-day operational matters.

3.3     The Minister sets the strategic objectives and aims for the interim measures.

3.4     Any changes to the strategic objectives and aims will be discussed with the Interim Assessor fully and notified in writing.

Accountabilities and Responsibilities of the Welsh Government Officials

3.5     The Deputy Director of Landscapes, Nature and Forestry Division is responsible for ensuring arrangements are in place to:

• provide appropriate oversight of the interim measures;
• address issues within the operation of the interim measures, making such interventions as are judged necessary;
• periodically carry out an assessment of the risks both to the department and the interim measures’ objectives and activities;
• inform the Interim Assessor of relevant government policy in a timely manner;
• manage day-to-day relations between the Welsh Government and the Interim Assessor.

3.6     The Deputy Director is responsible for advising the Minister on:

• appropriate strategic objectives for the interim measures in the light of the wider strategic aims of their Group and key delivery and performance indicators;
• an appropriate budget for the interim measures in the light of the Group’s overall spending priorities as they are the budget holder; and
• how well the Interim Measures are achieving their strategic objectives within the policy and resources framework determined by the Minister and whether they are delivering value for money.

3.7     The Deputy Director of Landscapes, Nature and Forestry Division leads the Environmental Governance Team who are the primary source of advice to the Welsh Ministers on the interim measures. The Team’s specific responsibilities include:

• the policy for the interim measures
• monitoring and evaluation

3.8   The normal point of contact for the Interim Assessor in dealing with the Welsh Government will be the Head of the Interim Environmental Protection Assessor for Wales Secretariat. The Interim Assessor should notify them if they intend to meet with another area of the Welsh Government. 

Secretariat Support for the Interim Measures

3.9   The Welsh Government will provide dedicated secretariat support for the Interim Assessor led by the Head of the Interim Environmental Protection Assessor for Wales Secretariat (when in post).  The Secretariat will:

• monitor the inbox for submissions and advise the Interim Assessor when an issue has been raised;
• log submissions and securely file all documents;
• correspond with those who have submitted the issue, at the instruction and on behalf, of the Interim Assessor;
• assist the Interim Assessor in developing reports;
• source expert advice as instructed by the Interim Assessor;
• collate and provide the baseline information for the Annual Report.

3.10   The normal point of contact for Secretariat support will be: IEPAW@gov.wales

3.11    The Deputy Director of Landscapes, Nature and Forestry is responsible for decisions around staffing and management for the Interim Assessor’s Secretariat support. Any concerns should be notified to the Deputy Director. The Secretariat support staff are civil servants, employed by Welsh Government and subject to the Welsh Government’s terms and conditions. 

Accountabilities and Responsibilities of the Interim Assessor

3.12     The Interim Assessor is appointed by the Minister for Climate Change and employed by the Welsh Government on a consultancy basis from 1 March 2021 for a period of two years.  The appointment will expire automatically on 28 February 2023, unless a further one year reappointment is agreed by both parties. The appointment can be terminated early by either party, by giving three months' notice.

3.13    The Interim Assessor has oversight of the interim measures and is the principal adviser to the Welsh Government on their operation.

3.14    The Interim Assessor is responsible for considering relevant issues submitted about the functioning of environmental law and producing reports of advice to the Welsh Ministers on them as deemed necessary.  They can choose to group relevant issues and provide a composite report if appropriate.  The Interim Assessor has the discretion to prioritise cases and determine the best use of the resources available.

3.15    The Interim Assessor is responsible for identifying when additional expertise may be required and instructing the Secretariat to source this.

3.16    The Interim Assessor must produce an annual report on issues submitted and ensure this is published on the interim measures’ webpages.

3.17    There is funding available for specific aspects of the Interim Assessor role. For example, for sourcing necessary expert advice and reimbursement of reasonable expenses.  The Environmental Governance Team will advise on the budget available and the Secretariat will support the Assessor in accessing the required advice.   The Interim Assessor does not have management of the budget allocated for implementation of the interim measures.

Conflicts of Interest

3.18    The Interim Assessor is responsible for ensuring they have no conflicts of interest in considering issues raised.

3.19    Conflicts of interest could be:

• direct or indirect financial interest - influencing public spending decisions;
• non-financial or personal interest - companies or individuals with which the appointee has some kind of relationship;
• competing loyalties - between the organisation to which a primary duty is owed and some other person or entity;
• accepting gifts or hospitality - accepting gifts or hospitality creates a perception of biased decision making, even if the gift has no bearing on judgement.

3.20    The Interim Assessor is responsible for declaring all conflicts of interest and updating the Secretariat as any new conflicts arise. The Secretariat will arrange for the Interim Assessor’s declared conflicts of interests to be published on the Interim Measures’ webpages.

3.21    The Secretariat and the Interim Assessor will additionally consider any possible conflicts as each issue is submitted. This will be documented and form part of the case file.

3.22    In the event a conflict is identified, and it is considered necessary for the Interim Assessor to recuse themselves, an alternative source of independent advice will be sourced.

Annual Report

4.1     The Assessor must prepare an Annual Report.

4.2     The Annual Report must:

• detail the issues submitted for consideration during the previous calendar year;
• provide a note on the action taken.

4.3     The Annual Report must not contain any personal data from correspondents making submissions for consideration.

4.4     The Annual Report will be published on the interim measures’ webpages and a copy sent to the Minister for Climate Change. The Minister may wish to lay the Report in the Senedd.

5.1     Unless otherwise agreed in advance in writing by the Environmental Governance Team, the Interim Assessor must at all times follow the principles, rules, guidance and advice in this Framework document. The Interim Assessor must refer any difficulties or requests for exceptions to the Environmental Governance Team in the first instance.

5.2     From time to time, the Welsh Government may request certain information and data from the Interim Assessor. Advice and guidance that the Interim Assessor needs to take account of may also be issued from the Welsh Government Permanent Secretary and Public Bodies Unit, as well as HM Treasury.

5.3     Communications about the interim measures or the Interim Assessor will be under the Welsh Government’s brand mark.  However, advisory reports from the Interim Assessor to the Minister should be submitted independently.

6.1     The Interim Assessor’s performance will be discussed annually with the Deputy Director in the Landscapes, Nature and Forestry Division in accordance with their duties.

6.2     The Interim Assessor must ensure appropriate management systems are in place that enable them to review performance against objectives in a timely and effective manner. This will include agreeing a quality standard for the advisory and annual reports with the Environmental Governance Team and ensuring they are adhered to. The Interim Assessor must inform the Environmental Governance Team of any changes that make achievement of objectives more or less difficult.

6.3     It is the duty of the Environmental Governance Team to undertake periodic assessments of the risk assurance available to them and may amend the level of oversight accordingly.

Evidence Base

7.1   In order to ensure the Welsh Ministers receive balanced advice on issues concerning the functioning of environmental law, the Interim Assessor must have in place appropriate systems, and the capacity, to ensure that their advice is evidence based and will stand up to public scrutiny.

Evaluation

7.2   The Environmental Governance Team will put in place external evaluation of the interim measures to consider effectiveness in delivering objectives and to inform the development of the permanent environmental governance measures for Wales. The Interim Assessor will be expected to work with the evaluation team to ensure the evaluation delivers on its objectives.