Cynulliad Cenedlaethol Cymru

Diolch, Cadeirydd. It's good to be at this point, actually, in front of you here with this Bill, and you rightly ask the fundamental question: well, why do we need this legislation? Can't we just carry on as we do? Well, the simple fact is that the Mines and Quarries (Tips) Act 1969 was fit for its time, but it's now well past its sell-by date, in terms of the work that we are now embarked on, which is a post-coalmining landscape, and dealing with both coal tips and non-coal tips as well.

Just to remind you, I come from a mining community. The last pit in Maesteg closed in 1984—St John's colliery. What we're dealing with now is the legacy of that, so we need to actually update the legislation. But we're not pulling this out of the blue; it's actually the Law Commission review that underpins the way forward we are looking at. Welsh Government instigated that Law Commission review to look at it. It found that the 1969 Act is no longer fit for purpose in the twenty-first century, so a very clear, very fundamental finding that they had. But in addition to that, Chair, of course, what we've seen since then is instances such as the Tylorstown slip. And I was up in the freezing-cold morning on Monday morning, standing on top there with the leader of the local authority there, and the people who are working now on the remodelling and the re-landscaping of that to make it safe. That's what this Bill is fundamentally about: looking after the human welfare implications, making communities and individuals feel safe, and genuinely are safe, then, there. So, it's bringing forward a new dedicated body whose purpose is to actually protect human welfare going forward, a preventative approach, so not waiting until things happen, but actually to have that ability to get ahead of it, and identify where there are maybe issues of stability. That's why we need the update. And also other aspects within this, such as not only the land on which those tips sit, but lands, possibly adjacent to it, that could impact the stability and impact upon the human welfare impacts—working with owners of those lands as well.

Just to say, as I said on the floor the other day, this doesn't materially affect that fundamental point that the owners are the owners. The owners of this land carry their responsibilities, but it makes clear within this Bill, then, that this authority would have the power to work with those owners, to collaborate with them. But also we take on board powers within this Bill that really updates it beyond where we were with the 1969 Act, and, of course, things like information sharing. So, there's a range of matters that flow from the Law Commission's fundamental finding.

Thank you for that. We'll get into those specifics as we go along, but I'll ask Delyth Jewell now to ask a few questions. Diolch.

Can I ask about when the new tip safety regime is going to become operational? We understand that that's going to be in the spring of 2027, and I was struck by what you were saying earlier, and what you've said before on the floor of the Senedd about this as well, that this regime and what the new legislation is setting up are going to be about both ensuring that these communities are safe and making sure that they feel safe, because the perception is really important with something like this as well. If the new regime won't become operational until the spring of 2027, could you talk us through, please, how you hope the legislation and what's going to come as part of the legislation will be communicated to those communities so that they feel safe in the interim as well, and what you were saying the other day in the Senedd that the other safety regime is going to continue up until that point as well?

Yes, Delyth, you're so right. It's really important that we stress to people that, whilst we take this new legislation through, subject to the will of the Senedd, we have already invested massively in identifying and categorising tips, coal tips particularly, although this Bill, of course, extends to non-coal as well in the phased approach. But we've already done an enormous amount of work on that, with the help of, I have to say, the inspection regime with what is now called the remediation authority, with their assistance as well. That work will continue, and the investment that we're putting in, which, as I mentioned on the floor of the Senedd the other day, Delyth, this Senedd term alone now, will be £102 million, will allow that prioritisation and categorisation work to continue forward, whilst we put in place this new regime.

But in terms of the timescale here, you're right in saying—. It's an ambitious target, by the way, but it is achievable to get the new authority up and running by 1 April 2027. We anticipate, subject to the will of the Senedd, that we gain Royal Assent this August—sorry, 'this August', I'm already looking ahead to next year, this August coming, August 2025. After that, the work will intensify, because there will be a lot of preparatory work that this authority will need to do, bringing on board additional expertise, doing the additional categorisation that it will need to do, because we'll move on from the current categorisation. The key milestones within it will be after Royal Assent; we need to get on with appointing the chair as the first point, followed by the chief executive officer and the board members. Those are public appointments, by the way, so they'll be carried out in full accordance with the normal code on public appointments. And then 2027—the authority will be up and running, but we'll have transitional arrangements as well, to make sure that we flow from where we are now to that position.

I think you are right, Delyth, it's really important to stress to people we are not starting from a blank sheet. There is a lot of work currently going on. That work will continue as well. The small mines grants that we have will continue in place as well. So, we'll keep on doing the work as we transition to this new, more independent, more authoritative body that can focus on this for years to come.

Thank you very much for that. Because of what's happened recently with Cwmtillery, are there any elements of the Bill, in terms of the timetable that you—? Is there any room where you think that any of it could be brought forward, or will you be focusing more on communicating the interim measures to the public? Are there any elements of the Bill that you had thought that you'd be able to implement later on, but that might have to change because of what's happened very, very recently?

I'll turn to my colleagues in a moment, but it's quite instructive in what has and is happening in Cwmtillery, as one example. Because there we have the role of the local authority, the role of the landowners in place, but also, instantly, the engagement with the remediation authority in terms of inspection and monitoring and what now needs to be done to make that safe. So, we do not have to wait, because the approach of collaboration and the co-ordination on the ground is already very effective there. And there's also been in Cwmtillery, then, an acceleration of the tip's inspection on the back of this and an assessment of what happened there, what the issue is and how it will need to be put right.

So, we have to wait for Royal Assent, we have to get the authority. And I suspect we'll get into some detail today, Chair and Delyth, on the need for that authority to actually bring forward itself and help shape some of the ways it does its—. So, I don't want to pre-empt them, as a Minister, and say—. But we can actually get on with much of that work in this period leading up to the establishment of the authority. Much of the collaboration and the underpinning aspect of this is already in place, and we'll keep on doing that.

Okay. Thank you very much for that. Turning, then, to one of the aspects—. Oh, forgive me, did one of your officials want to come in?

No. They're nodding at me, saying I didn't misspeak.

They're nodding; that's a good sign. [Laughter.] In terms of some of the elements that had been, I suppose, promised in the White Paper, or suggested in the White Paper, that might be in the Bill that haven't made it onto the face of the Bill, originally the White Paper had proposed that the Bill would, and I'm quoting,

'protect communities, critical infrastructure and the environment'.

I think everyone who is in the committee would agree that the paramount consideration has to be human welfare, but in terms of the environment, that isn't one of the considerations, as it's framed, in the Bill. Could I ask if your intention is still that the Bill would be used to prevent these tips from threatening wildlife and biodiversity?

Yes, I can give you the reassurance here that underpinning this piece of legislation is our environmental legislation as well. So, the authority and landowners have got to ensure that any maintenance or remediation plans must comply with the relevant existing legislation on environmental protection as well, and that includes that environmental protection for the habitats and biodiversity, but also for wildlife as well. So, they have to take into account those existing provisions. We don't need to repeat them in the Bill, they're in place already. So, yes.

Thank you for that, that's useful. Do you think that, were this mentioned on the face of the Bill, that might make that tidier in terms of how the two pieces of legislation will be working in concert?

I don't think it's necessary, genuinely. And what we don't want to do is put things on the face of this Bill, or other pieces of primary legislation, that then have to be adjusted when we are just underpinning environmental legislation. So, the fact that—. My approach in this Bill is to say, 'We have statutory underpinning of environmental protections, wildlife protections in Wales.' That, if you like, is the legislative bible that underpins even bringing this forward. To reference it on this as well is probably not necessary and not proportionate, and it may inhibit us in future, because we'd have to come back to this and adjust it, if we adjusted that legislation.

Okay. Thank you for that.

Does that make sense? Yes?

And the other thing to mention as well is that you'll see in section 82 that the definition of 'threat to human welfare' is actually really quite broad. So, it covers far more than just what you might think in terms of human life, for example. It's far more than just loss of human life, it's

'serious disruption of a supply of food, water, energy or fuel...serious disruption of a system of communication...facilities for transport'.

It really does cover in terms of protection around communities and infrastructure, as well as—. I just wanted to add that point.

That's really useful, thank you. Thank you, both, very much. And then, finally from me for now, looking at—. You mentioned already Deputy First Minister, the fact that lots of these tips are in private ownership, that they are on land where it might be more tricky for people to even know where they are. Do you have a clear and up-to-date picture of who owns which tips in terms of the ones that we know about at the moment? And do you have a breakdown of ownership across the different groups that you'd be able to share with the committee please?

Yes, we can share with you some details, and it's based on the work that we've done already, and this comes back to the point that there is an element of confidence we have in the way of taking this forward that we're not starting from a blank sheet. So, I can share some of our analysis. The first thing to say right to the outset is land ownership is exceptionally complicated—it really is—and I know the committee will understand that. Sometimes we have patterns of joint ownership, multiple ownership of land, and on a tip area and coterminous land that might affect the stability, it gets even more complex. However, because of the work that we've been doing, we do have some understanding, and part of this has been the work we've been doing with HM Land Registry, part of it is to do with occupiers of land trying to identify who actually owns the land that you're working on, you've got your livestock on, or whatever there.

I'll give you a summary of what we know at the moment. First of all, recognising that complication, what we've tried to do is look at those where there is a majority ownership, recognising that there could be multifaceted ownership. If we've got ownership where we can identify—. The figures I'm going to give you are based on where there is more than 50 per cent of a tip’s area based on majority ownership, just to be very clear from the outset. I'm going to do two breakdowns here. One is based on area, to be clear, and the other one is based on ownership model. If we go on, first of all, majority ownership—more than 50 per cent, majority ownership—42 per cent of the total number of all disused coal tips are in the ownership, rather than the area, of private individuals. That's 42 per cent. The public sector owns 30 per cent, by ownership, not by area, because it flips around a bit when I'll come to that. By ownership, public sector 30 per cent, and 20 per cent owned by businesses and commercial interests. And you're then going to ask, well, what about the bit left over? Well, the remaining 8 per cent either has no clear majority ownership, so it's even more complicated, or the area is unregistered land. Okay?

But if I then break it down by area, it becomes quite interesting. By area, if we look at—. I'm going to highlight category C and D tips, which are those where there's the greatest degree of need for monitoring and maintenance to avoid issues of instability. For category C and D—. Sorry, before I go to areas, let me just deal with category C and D under ownership, first of all. Under ownership, 39 per cent of C and Ds are private individuals, 33 per cent in the public sector, 21 per cent business and other commercial interests, and the remaining 7 per cent no clear majority owner or the area is unregistered. So, broadly similar in terms of the ownership type, whether it's C and D. There’s a slight difference, but broadly similar.

Where it changes is when you look at the area, the hectarage, if you like. If you go by area—. Let me get this absolutely right now, before I give you these figures. Have I done this back to front? No, I haven't, have I? No, right. Analysis—yes, on the area. I want to get this absolutely right. Thirty-nine per cent is owned by area by the public sector, 32 per cent then is owned by business and commercial interests, 24 per cent by private individuals, and 5 per cent is unregistered. So, it flips it round quite interestingly where the public owned by area becomes more significant. It wouldn't be a surprise to many people here.

No, but it's interesting, though, isn't it? 

Can I just ask a very quick supplementary, if that's all right? 

Yes, and then Carolyn, and then we'll move on to Janet. 

Forgive me, Carolyn. So, am I right with those figures that there would be quite a disproportionate number of smaller tips that are still in the higher risk categories that are in private ownership? 

No, that's not necessarily the case, not automatically. I can see the extrapolation you're making from that. When you look at it on the basis of purely—

Sorry, I don't want to get too bogged down on this because we have large areas that we need to cover. Maybe we could have a note outlining the figures.

[Inaudible.] 

'Not necessarily' is the answer. 

Yes, okay. Thank you. Carolyn, you wanted to come in as well. 

Just regarding ownership and accountability, it's really important for enforcement, so that people know. So, when you're discovering who owns it, I know we've got the land register but not everything is on it, and a lot is not registered. We've talked about having cadastral mapping in the past here. So, where is it all being logged so people know, so that our public services know who owns this land to make it easier, going forward, for that accountability? And a lot goes into private equity, as well, into hidden ownership. I was just really concerned about that.  

So, two quick responses to that. One is that there are powers within this new legislation on information sharing—bearing in mind we've done the work, we can identify where the ownership is and also where we don't know what the ownership is. So, we have the ability, in a proper and proportionate way and protective of the rights of individuals as well, to have information sharing from a new public body to others involved in things like emergency response and coal tip stability and safety. 

But the other thing is we have powers in here that are emergency powers as well. So, in the event that we did not know who the owner of land was, then we have powers within here that the authority could either contract or go in to carry out work to improve the stability of a tip, regardless of the ownership model. And if we do identify the owner, then hopefully we're doing that in collaboration. Nothing changes the fundamental premise of this, which is the landowner is the landowner is the landowner—they carry their responsibilities. But there is the ability if we can't identify the landowner to go in and make it safe, and then seek out who that owner might be, and, if necessary, seek to regain some of the costs of contributing towards that.  

Okay. Lovely. Thank you very much. Janet. 

Thank you, Chair. Good morning. 

Good morning. 

The White Paper sets out the Welsh Government's intention to undertake further work before deciding whether to extend the regime to non-coal tips, and to include an enabling power to add such tips where the evidence supports it. So, the Bill applies to both coal and non-coal tips. So, can you explain the change in approach? 

Yes. Thank you very much. Over the last few years, we've been very much focusing on coal tips primarily, for obvious reasons that I'm sure everybody will understand. But during the course of the consultation and the feedback that we've had, it's clear that whilst we have, I think, in excess of 2,500 coal tips—where we started four years ago not only identifying them, but actually categorising them as well, and we've done a lot of work—it's clear and obvious that we've got in excess of 20,000 non-coal tips, and those could be things metal mine legacy tips, it could be slate tips, or it could be a range of other ones as well. Now, what this Bill does allow, it doesn't mean—. Clearly, the primary focus, particularly early on, will be working on the identification and the prioritisation of what we've done already and then transitioning across to the new authority to focus on those. But we know there will be others. What this Bill does enable is that if the authority says, 'We've also identified another non-coal tip in another part of Wales that needs stability issues to be dealt with for human welfare', then they can actually go in and do that as well and take action on that. 

So, the reason, Janet, is because we've identified that there is a wider scope of tips out there that need also our attention, and I suspect the direction of travel will be to focus on where we've already identified the prioritisation and any risks of instability, but also have that eye to moving on then into the area of non-coal tips as well. But if there are any significant non-coal tips with issues of stability, it would be within the remit of this authority to also say, 'We want to deal with that as well'.  

So, what evidence do you already have that suggests that the cost of including disused non-coal tips in the regime is proportionate to the level of risk they present to human welfare, given that the regulatory impact assessment suggests that most of these tips present a far lower risk than disused coal tips?

You’re absolutely right, and that’s such an important point there. We do think that non-coal tips are likely to pose a lower threat to human welfare, but we think it’s right to bring them within this regime. And on that basis, we also think that, on the costs and capacity and resources—bearing in mind the biggest piece of work in front of us at the moment is the coal tips that we’ve already identified—we have the resources to do so. And if, then, in two or three years down the line, we identify we need more resources, then those discussions will be had, but this authority is empowered to actually say, 'We need to get on with that work.'

Okay. And, then, the regulatory impact assessment states that the authority will begin to assess non-coal tips in 2032-33, six years into the new regime. This is not set out in the Bill. So, what is the justification for that timescale?

I think there’s a number of reasons for that. One is that we recognise—and you’ll see a theme of this when I’m here today, but also, when I’m here in front of you in other committee sessions—that the authority is the one that will build on the expertise we currently have, will develop its own expertise, and will be the one that will actually say to us, and give that assurance to wider society, 'These are the timescales we think we need to work to. These are the priorities we need to do.' And we need to give them some of the freedom within that new authority to do that. It’s also because the six-year timescale that you mentioned is our best estimate currently on when all disused coal tips will have been assessed, and then when we can move the work on to disused non-coal tips.

But, if we set out a timeline on the face of the Bill, that is going to be very restrictive for a new authority, who might come in and say, 'Well, thank you for doing that, Minister; we actually think there’s a different timeline that we should be applying here, based on the criteria you said about human welfare, and tip stability—you've tied our hands.' So, we’re trying to give them the appropriate amount of flexibility to devise this themselves as well.

Okay. 

Diolch yn fawr iawn. Julie. 

Diolch and bore da. My questions are about the disused tips authority. Why do you think it’s necessary to have a new supervisory authority? Why not use the existing body, or a combination of bodies?

Thanks, Julie. There’s a number of reasons why, but, primarily, it stems from the Law Commission’s findings themselves. They supported setting up a single body—one body—with integrity, with cohesion, that had a comprehensive overview of this area—one body. The danger with going to other, even existing bodies, or other existing bodies and a small new body, is the fragmentation of that amongst different entities there. There was no single body—it was looked at within the review—we couldn’t identify one single existing body that could provide that uniform approach in terms of things like risk assessment, inspection, prioritisation, the allocation of resources to this very important area. So, the Law Commission was very clear and the respondents have been very clear as well—there wasn’t one single existing body. It was one of the options considered in the RIA, but it was discounted for those reasons.

But, the other reason as well is that vesting in one new authority—bearing in mind, which I think we’d all agree, the importance of this piece of work—the independence, the accountability, as well, to that new authority, and the expertise, I think, is significant and compelling. It’s what the Law Commission said. We couldn’t identify that one other body. If we’d spread it amongst the existing ones, it could be fragmented, but, more importantly, we get one identifiable body that carries accountability and carries the expertise, and drives forward this agenda. So, we did think about alternative ways, but they were discounted as not workable, not practical, and they wouldn’t deliver the outcomes we’re trying to do.

Yes, because it often is better to use something existing, isn’t it, but you did look into that, from what you said, I think.  

We did, and that fragmented landscape and lack of clear lines of accountability meant that it wouldn’t work. And the Law Commission said exactly the same.   

Right. In previous questioning you’ve confirmed—. Well, the Bill says it won’t be established until 1 April 2027. How have you determined that that is the appropriate timescale and is there any risk of overlap between the functions of the disused tip authority and the Coal Authority?

Thank you very much. I described before what I think: it's a challenging, ambitious but achievable timescale. We've done this based on the work that we've done already. So, we're not starting from a blank sheet, we know that this is achievable: setting up that new authority and transitioning from the work that we've got now into that new authority. It's very important again—I'm going to keep on restating this—that work does not stop in the meantime. In fact, we can see an acceleration of the work that's currently going on as we lead up to the establishment of this authority, between now and 2027. But it does take time to establish a whole new body and to actually give them the powers that we're seeking to do within this legislation, subject to the will of the Senedd, but also to do this in an approach that they can take on these roles, bring in the expertise behind it, and also, by the way, I'm sure we'll come to it, help to shape some of the statutory guidance, and so on, that will flow from it.

We think that the implementation plan we've got is realistic, even if it's ambitious. There will be a detailed work schedule, by the way, to actually bring this forward. And, as we develop that, I think that we'll be able to share more of this as we get to subsequent stages with the committee as well and that implementation schedule. But I can scope it out in highline now, if it's of some help to the committee.

Roughly speaking, we can identify three phases, which are basically implementation, establishment and transition. The implementation phase will run from—subject to this being passed—November 2024 to October 2026. During that period, the foundational systems and the processes would be put in place in readiness for the appointment of key figures, such as the chair, the CEO, the support staff necessary; the basic stuff like e-mails, document storage, finance, HR systems, all of that stuff to run a new authority.

Then the second phase of establishment will run from October 2026 to March 2027. In the establishment phase, the core line of business systems—so the asset register for disused tips, the data collection and the storage systems—will be developed in readiness for when the relevant provisions come into force. And then at the end of these two phases, those systems will be ready for handover to the established complement of staff in the new authority. And then we've got the transition phase. So, starting in April 2027, the authority will build on those foundations and the work we've done already as a part of continuous improvement, and then bring all of the functions into being, as outlined in the Bill. So, there's a headline, but as we get more detail, I'm more than happy to share a more detailed schedule with the committee. 

Obviously, that is quite a huge bit of work, all of that.

It is. That's why we need a little bit of time. 

Yes. So who will do it?

It's the work that we are doing, along with our officials, and the remediation authority, who are currently carrying out inspections. If we have Royal Assent, then we accelerate that with the work of Government to actually support that process going through. I don't know if you want to add to that.

Just to confirm that there is an implementation team that is already in place that is working on this now. It's fully resourced at the moment. We're working on developing those systems and planning the recruitment. So, all of the plans are in place, it's just a case now of making sure that we stick to the—

The timetable.

Well, the regulatory restrictions around what we can do and when we can do it, and also making sure that the timetable can be met. 

So you have got the resources to do it. 

We have got the resources. They're in place. 

We have. There's been an immense amount of planning behind this and getting to this point, but also going forward as well.

You mentioned as well, Julie, the issue with the existing authorities, including the new Mining Remediation Authority. That team and my officials will continue to work with the Mining Remediation Authority to make sure that we've got that smooth transition, that we avoid any issues of overlap as well, that we work through that. We have a handover plan in place to get the establishment phase in place, and that would include involvement with NRW, local authorities, the Mining Remediation Authority and others so that, as we hand over very carefully in a planned way various functions, they're done in a very planned and sequential way. 

Thank you. We've already discussed the fact that the main objective of the Bill is to prevent threats to human welfare, and we've talked about that already. But the definition does refer to 'serious' damage, illness and disruption, so could you talk about more a bit more about what how you define the 'serious'?

Yes, indeed. There's a reason we put 'serious' in there, which is to avoid 'any' impact on human welfare encompassed within this, which is a slightly low threshold, because if we didn't have the qualification of 'serious', then any possible threat to human welfare, irrespective of the severity of that, could be included, whether it's slight or negligible; it would make the Bill unworkable.

On the use of the word 'serious' and what that will constitute, it's serious human illness, serious damage to property, serious disruption of supply of food. It will depend on the specific circumstance, but where there's a possibility of any loss of human life, this will fall within that meaning of threat to human welfare under the Bill. All of the other events listed must be 'serious' to fall within definition in section 82. It is the ordinary meaning of 'serious', and I think it's well understood. It's something that is significant or dangerous because of the possibility of danger of risk. The qualification 'serious' will allow the authority to make that judgment considering all those surrounding circumstances.

By the way, as a public body, of course, the authority will be required to act in accordance with standard public law principles, i.e. fairly, reasonably, et cetera, when making a judgment as to what constitutes 'serious' in the context of the events listed in section 82. So, I think it's a very straightforward way in which to say there is a threshold here, and it's not things that are inconsequential or marginal; they need to be serious.

I think that is quite a key issue, isn't it? Because there could be things that are there as a result, but may be less serious, but probably still do need remediation.

But bear in mind the context. There are two parameters underpinning in this Bill, two fundamental principles. I can elaborate on them, but one is that risk to human health, and the other issue is that of instability. So, when you, in section 82, apply that issue of 'serious' to it, I think it captures the intent of this Bill. There is a different issue and a different argument outwith the scope of this Bill on wider remediation and so on, but this is to do with human welfare and instability.

Thank you. And then finally, section 5 provides a broad power for the authority to do anything that is calculated to facilitate or that is conducive or incidental to the exercise of its functions. How do you anticipate this power being used, and what checks and balances are there in the Bill?

Thanks, Julie. First of all, just to say to the committee, this is quite a standard approach when establishing a new public body, so we can cite some precedent here that might be helpful and instructive. There's a similar provision, for example, in paragraph 13(1) in Schedule 1 of the Health and Social Care (Quality and Engagement) (Wales) Act 2020, so there are precedents for this approach.

We don't feel that there are any express checks and balances in the Bill to ensure this power is used appropriately, as they're not required. As a public body, the authority is under a general public law duty, as I referred to earlier, to exercise its functions fairly and reasonably. So, the authority could use this power, for example, to enter into contracts, or to acquire land to accommodate its staff or equipment—that sort of approach. So, we don't think this requires additional checks and balances. There is a clear understanding of what fair and reasonable discharge of its duty as a public body would be in respect of this particular issue.

Thank you.

Diolch. Over to you, Janet.

Thank you. The meaning of 'disused tip' in section 81 of the Bill relies on provisions set out in pre-existing regulations. Why have you taken this approach, rather than providing a stand-alone definition in the Bill?

It's a good question. The Bill applies, as we've been very clear, in terms of disused tips, so it needs to fit in with and not conflict with existing legislation that applies to active mines and quarries that is contained in two pieces of legislation: one is the Mines Regulations 2014 and the other is the Quarries Regulations 1999. The definition of 'disused tip' in the Bill is a disused tip 'situated wholly or partly'—that is important, by the way—'in Wales', because we think there might be a couple of tips that this might apply to that do actually straddle the border. We think there are probably six, but there are two where we think there are issues that we need to deal with in terms of stability. So, it's:

'wholly or partly in Wales other than one to which the Quarries Regulations 1999 (S.I. 1999/2024) or the Mines Regulations 2014 (S.I. 2014/3248) applies.'

It's the same definition of 'disused tip' as in the 1969 Act as amended for that very purpose. If we created a stand-alone definition, Chair and Janet, we could inadvertently create an error here, a gap in the description of active or disused tips. We might even create an overlap in definitions, as well, so neither of those would be good in terms of the application of good law, good policy.

What the Bill does, however, just for some reassurance, is it does provide Welsh Ministers with the ability to change the definition of 'disused tip'. This gives us a flexibility to react if circumstances change, and if we did do that, then, again, just as an element of reassurance, if we did bring forward a change in definition of disused tips, that would be subject to the affirmative procedure, so it would be in the full light of the Senedd procedures.

Why does the Bill only include a duty to monitor registered tips, rather than including detail on the monitoring regime—how often, by whom and what will be monitored—particularly as there were detailed proposals in the White Paper?

Our proposal here, Janet, is to try and mirror the arrangements we've currently got in place with the Mining Remediation Authority, but we will set out the minimum recommended monitoring requirements in statutory guidance, including the recommended frequency of inspection, as well. But, in saying that, just to help the committee if this is of help, I've asked my officials to try and bring forward publication of summary guidance on the issue for the committee to consider. We're going to try and make this available in January so that, by the time we meet again, I think in February, you'll be able to see it, so that may help as well.

But what I'm really aware of is that circumstances can change very quickly. We need the new body to be able to react at speed, so setting our expectations in that statutory guidance, rather than the face of the Bill, allows them that flexibility. That'll be really important. We're seeing it now. We're having to respond live to the changing meteorological climate around us. So, it allows us to respond to future events, be that on climate change, be that with the availability of new technologies, as well. Crucially, what this approach allows us to do, Janet, is make sure that the regime is robust, but it's also futureproof.

I'll give you a clear example of that. We're seeing innovations. I said on the floor of the Senedd the other day that we've got some of the most advanced technology now in terms of monitoring tip stability, a range of technology. But satellite technology is moving on at pace in monitoring ground movements, it really is. We want the authority to be able to encompass this in the way forward in its monitoring requirements. So, I think that statutory guidance feels to us the right way to give the balance between clarity, but also flexibility and futureproofing, because the methods they use might change over time, and I'd want them to be able to encompass that.

Thank you.

Thank you very much. Diolch. Hefin.

Just to push you on that guidance question, you said it brings flexibility and manages changes with time. Why would it not happen if it was on the face of the Bill?

I think it's because those elements that I just mentioned, Hefin, things like the need to respond rapidly to both the changing climate—. That's a big, key one that we're clear is in front of us. If we had to return to the Bill, on the face of primary legislation, to adjust the monitoring frequency, or whatever, that would be a real impairment for that new authority. But secondly, the big, obvious one is the advances in technology. What we're doing now, four years on from when we started this process, is a world away from what it was only a few years ago. And I think, in another three or four years, that technology will have moved on again, and I hope that Wales will be at the forefront of it. So, rather than coming back to the front page of a piece of law, putting it in statutory guidance, I think, gives that flexibility to the authority, Hefin.

Did you consider secondary legislation as a way of doing this as well?

Yes, we did look at that. We did consider that. Bearing in mind that we're talking about statutory guidance here, rather than secondary regulations—sorry, rather than non-statutory guidance, I think Welsh Ministers, in this situation, will be able to outline our expectations regarding monitoring and maintenance, and that will be reflected then in the guidance. Our assessment is that it gives us that robustness, but it also futureproofs the approach as well. But under the legislation, if it's passed, it will be the authority who will determine the up-to-date, live-time, dynamic approach to monitoring, and we're trying to give them that flexibility as well as the clarity.

Okay, thanks. And why doesn't the Bill place a duty on the Welsh Government to publish both the guidance and timescales for its development?

Well, we intend to use the powers that we've already got in the Government of Wales Act 2006 to make the guidance, so sections 58(A) and 60 carry those duties to publish guidance. Also, just to say, Hefin, there's no reason why this guidance won't be published. There's an expectation that it will be published. I think everybody would be surprised if there wasn't guidance. So, there isn't a need to repeat that within this Bill; the power is already there within the Government of Wales Act.

We also, by the way, need the time for the necessary development and engagement with stakeholders in the development of that guidance. That's another reason, by the way, why putting it in statutory guidance is important. We need to get this absolutely right. So, the timescales we've currently got give us that flexibility to work with stakeholders. We will be, by the way, working concurrently on subordinate legislation, as well as the guidance.

Diolch, Cadeirydd.

Thank you. Can I just, before I come to Janet, remind Members that we're over halfway through our allocated time, but we're nowhere near halfway through the areas that we wish to cover? So, maybe we could all be a bit succinct, so that we can cover as many bases as we can. But I'll come to you next, Janet.

Okay. The White Paper sets out proposals for the prioritisation of assessments according to the interim categorisations and timescales within which assessments should be completed. The Bill provides for the authority to determine these matters through its work programme. Why is this?

Well, I think, again, it comes back to the fact that, in setting up an independent, authoritative, expert-led authority, we also want them to have input into this. So, whilst the approach to operational delivery will be made by the authority through its work programme, we envisage that the activity of the authority will be prioritised initially towards those tips that are designated as higher risk. So, under the current regime, those that are C and D. Also, that the disused tips, whether they're coal or not, that are currently known to present the greatest threat to human welfare would be the first to receive those preliminary assessments. In respect of disused coal tips, that'll be based on the existing data that we are working with from the Mining Remediation Authority. There is a requirement in the Bill, by the way, of course, for the authority to prepare this programme of work, setting out its proposed approach and a timetable for those preliminary assessments. So, I think, again, this gets the balance right between getting the authority's input, with their expert-driven, data-driven approach to it, from the authority, and also allowing then the technical experts to inform policy. It's—

And will the authority be able to commence work before its work programme is approved?

Yes, it will.

Right. And how soon after the Bill comes into force will the first preliminary assessment on disused coal tips be undertaken? Is it the intention that preliminary and full assessments will be undertaken on higher category tips before preliminary assessments on lower category—? It'll be on the higher?

Yes. We anticipate that the preliminary assessments, bearing in mind that they're an entry point into the new regime we're talking about, will be one of the very first activities of the authority following it establishment. Then, in terms of those categorisations and the prioritisation, we envisage that the preliminary assessments will be prioritised in those tips that fall within those categories C and D as they currently are. So, this would expedite the inclusion of those tips that currently have been identified as posing a potentially higher threat to human welfare straight away into the new regime.

Okay, thanks.

Diolch yn fawr. Hefin. 

Sorry, Chair. I'm not sure if I'm supposed to unmute myself or be unmuted. You seem to have deviated from the Law Commission's guidance on the minimum content of disused tip assessments to be provided in subordinate legislation, and instead it’s in guidance. So, can you justify that deviation from that advice?

Yes, indeed, Hefin. It's not dissimilar from the discussion we had a few moments ago. A number of the more technical elements of the regime, including the approach to assessment, are going to need expert input from the authority. If we use guidance, supporting that principle of an adaptive futureproofed regime, it allows the practical experience of the authority to feed into it and into that guidance. It aligns, by the way, with the consultation responses we had. Those took us into this territory of saying, 'Futureproof it, give it the necessary and appropriate flexibility to have that input from the expertise within the authority.' But as I mentioned earlier on, one of the things we can help the committee with is bringing forward the summary guidance for the committee to consider in January.

Have you done an assessment of the risks of taking this approach as opposed to what was recommended?

Genuinely, I don't believe that there are risks with this approach to setting out the assessments in guidance. In fact, it mitigates some of those risks, because if we have the expertise of the authority feeding into this guidance, the process for assessment then becomes more sophisticated, more adaptive. We can quickly amend guidance to keep pace with changing circumstances, whether those are, as I've said before, climate change or technological advances. This actually mitigates the risks of getting it wrong. It allows a more expert-driven, dynamic response within that statutory guidance to changing circumstances.

Okay, diolch, Cadeirydd. Diolch yn fawr.

Okay, diolch yn fawr. Janet.

Why aren't old disused tips required to have a full assessment rather than a preliminary assessment in the first instance?

It's a really good question. The preliminary assessments will, in the main, actually be desk based—very thorough, but desk-based assessments. They assess whether it appears that the criteria for registering a disused tip may be met. To be clear, not all disused tips will require then the more extensive full assessment. So, this follows the Bill's underlying principles of proportionality. It ensures that we can then adequately focus the resource on those tips that do pose a threat or could pose a threat to human welfare. But just to be clear, in practice, we anticipate that a high percentage of disused tips will meet the threshold for a full assessment, but we can then focus the priorities on those.

Okay, thank you. Carolyn, do you want to come in?

Will Part II of the Mines and Quarries (Tips) Act 1969 continue to apply in relation to Wales until all disused coal and non-coal tips have been subject to a preliminary or full assessment and the authority determines that they need or do not need to be registered?

In accordance with section 87 of the Bill, those provisions that establish the authority, sections 1, 2, 5 and Schedule 1, will come into force on 1 April 2027. All the other provisions will be brought into force by commencement Order, including section 70, which, when commenced, will disapply Part II of the 1969 Act in relation to local authorities in Wales. We will be working with the relevant bodies, including the local authorities and the Mining Remediation Authority, to determine whether any formal transitional arrangements are required, and if they are required, then the powers that we've put into section 87 are broad enough to enable that to happen.

And just to be clear, the authorities' functions are broader than those of local authorities under the 1969 Act. We touched on this earlier. They will have access, for example, to all the inspection reports, et cetera, of the Coal Authority. There's not going to be any gap in provision of services. So, there's no advantage, actually, now in prolonging the application of the 1969 Act to local authorities in Wales.

Okay.

Thank you. Janet. 

Thank you. The White Paper sets out tip categorisations based on a hazard assessment and potential impact on receptors. This has changed in the Bill to focus on the risks related to the stability of the tip rather than the impact on receptors. Can you explain the reason why this has changed?

Yes, I think I can clarify this, Janet. The change in terminology that you refer to is—. It provides a clearer definition of terminology. So, the Bill focuses on instability—I keep coming back to this—of a tip as the primary hazard, and then any potential impact it might have on human welfare. So, the term 'threat to human welfare' provides a very clear definition of the receptors to be considered when assessing those potential impacts. So, we've encompassed it within it. And the results of a full assessment will still directly inform the categorisation as per the proposals on hazard assessment, set out in the White Paper. 

Okay, and the Law Commission recommends the criteria for categorisation be set out in regulations. The Bill states the authority must publish a statement of its policy on categorisation. Why have you chosen a different approach to that recommended by the Law Commission?

In some ways I'm going to sound like a broken record, but it is for a good reason. I think it's really important that we develop the criteria with the relevant experts in the new authority once they are in place. And I also believe they'll need to be kept under review. So, it's important we have that flexibility to respond to circumstances and to do that at pace. So, section 24(3) of the Bill provides a list of the matters the authority has to consider when setting out a category; for example, tip instability or the potential for instability. We think that this approach strikes the right balance, setting out the matters that need to be considered whilst giving that flexibility for the expert authority—the authority—to decide the finer details. 

When do you anticipate—? 

Sorry, Janet. But could not the authority feed into the regulations? 

It's an alternative approach but we think putting it out in guidance, again, gives it that dynamism that we don't have to return to regulations; they can, actually, as the invested authority, respond dynamically, rapidly to changing circumstances. We think that's the right balance. 

Okay, thank you.

And when do you anticipate the authority publishing its policy on the approach to categorisation, and will the policy be subject to consultation? 

So, we anticipate that once the authority comes into being on 1 April 2027, it will then work towards publication of all of the relevant policy documentation. Now, there isn't a statutory duty for the authority to consult. However, the policy is to consult. We would expect them to consult but if they didn't for some strange reason, we could also, of course, issue something like a remit letter to say, 'Get on and consult'. But the anticipation is they will consult. They'd be expecting to consult. 

Thank you. Hefin. 

Thank you. The White Paper proposed five tip categories but the Bill only covers four. Can you just justify the reason why that's been the case? 

There are five, it's just only four that are described in the Bill. Let me explain. So, in effect, there are five categories. The fifth category are those disused tips that don't meet the criteria for registration and therefore are not included on the register. That's, if you like, the phantom fifth category. These tips are still covered under the regime, but as they don't pose a potential threat to human welfare, they're not included in the active portion that requires proactive monitoring, maintenance, inspection, management, and so on. So, yes, there's a phantom fifth one there.  

Okay. 

And those of us with tips in our constituencies have been used to the Coal Authority's definitions and categorisations, so what's the justification for the change from that regime? 

Yes. Well, the aim of the new categorisation approach is to get consistency, accuracy and transparency in the categorisation of all the disused tips. It sets those categorisations against the Bill's objectives. It's focused on coal tip stability and human welfare which, even away from the legislative context, I think are things that the public can understand as well—stability, human welfare, very understandable. So, that's the reason, Hefin. 

How much difference is there in the categorisations between the Coal Authority's categorisations and the current ones? And to what extent is that going to inform the approach taken in the Bill? 

There's definitely read-across. So, those categories that you and I know and all the committee know very well—the A, B, C, D categories—even with the recategorisation, in some ways, I think it might become clearer, and particularly if we move to a numerical system, where it also has the advantages, then, as a numerical system, of also being bilingual. You don’t have A, B, C, CH, whatever; you have 1, 2, 3 and 4. But, I think, again, not just from a legislative point of view, but from a member of the public point of view, and the wider stakeholders, they’ll understand, if you have a category 1, that’s higher than a category 2, it’s higher than a category 3, and so on. Whereas some people have said to me, just from a layperson’s perspective, 'Why are the C and D those ones where the maintenance is higher need and at risk of instability?' But there is a flow.   

Sometimes the simpler answers are the best ones, and I’ll accept that and move on. [Laughter.]

Julie. 

Just to follow up, do you anticipate there to be a change of categorisation?

Well, it needs to be informed by the new authority, going forward. But it will build on what we’ve currently got.

Yes, but in the future, after you’ve—. Is that likely, that—

Tips will move along the scale, you mean? 

Yes. 

So, as they get safer, they will be recategorised.

Oh, I see; sorry, I understand what you’re saying. Indeed, and there’s the ability within the Bill to actually change the categorisation of tips. So, if work is done on tips, if we’ve identified those that have a risk or a potential risk to instability, or to human welfare, and then work is done and progress is made, then there can be recategorisation.

That recategorisation goes on now. So, there are tips that have been reclassified recently. So, that does and will continue to happen. The information is updated on DataMapWales.  

Yes, but do tips that are classed as not so risky become risky?  

Yes, it has happened the other way.   

It can go the other way.

It works both ways. 

Yes, that's right. Thank you. I wanted to ask about compensation. Sections 31 and 48 provide for payment of compensation for damage or disturbance, and, in the case of section 48, removal or loss. So, who will be responsible for determining the process and applying for compensation, and the amount of compensation that will be received?

Thanks, Julie. First, just to note that the Law Commission suggested that we should try and keep this simple, to avoid repeating, I have to say, some of the cumbersomeness of the 1969 Act mechanisms. So, what we’ve done is we’ve set out key principles of the right to compensation. The Welsh Ministers will issue statutory guidance and compensation, and the authority will then have to have due regard to it when exercising its functions under section 69(1) of the Bill. That statutory guidance will set out the process for applying for compensation, and the amount of compensation that eligible persons will be entitled to claim for, depending on the category of damage. We also intend to produce an outline of statutory guidance that we can hopefully share with the Senedd committees during the scrutiny process as well. So, you’ve got early sight of that, and you can see where our thinking is. That will help clarify, as well, how the compensation under a Bill is intended to operate.

The Bill also provides, of course, for disputes about claims for compensation under section 31, damage or disturbance, and section 48, removal or loss, to be decided by the court. And it could be the High Court or it could be a county court. But, developing that guidance on the outline of the right to compensation, how it fits within the wider context of the regime, an overview of the procedure to follow when there’s an entitlement to compensation, and the outline of dispute resolution are going to be important. And, as I say, I think we can flesh some of that out for the committee in fairly short order.

Avoiding putting the process for claiming compensation on the face of the Bill, again—and I know it’s constantly a thing we agonise over, what goes on the face of the Bill and what doesn’t—gives us the flexibility for the guidance to be reviewed without coming back to the primary legislation and to be updated quickly to keep pace with any changes in circumstances and technological advances as well. So, we’re trying to get that balance right with flexibility once again.

Thank you. And section 33 provides for the authority to give notice requiring an owner of a disused tip to carry out operations, and if the owner of a disused tip cannot be identified—we’ve talked, obviously, about the percentages and things that you talked about earlier on—and a notice cannot be served, what impact will that have?

Well, first of all, I think it’s important, based on our analysis at the moment, to say to the committee that we think the instances where an owner cannot be identified are going to be few and far between, but they will occur. In that situation, then we do have the powers within the Bill, if it's passed, subject to section 42 of the Bill, to undertake the operations—the authority can go in and undertake or contract the operations to be undertaken itself. So, this would not hold it up. This would not hold it up. But, the Bill does have detailed provisions allowing the authority to seek information from, for example, the occupiers of the land for information about land ownership. And again, I come back to the fact that we're trying to do something within the Bill that is collaborative as well. We do not anticipate major problems with landowners saying, 'I can see we've got an issue we need to deal with. How can we help?', as opposed to 'We're going to stand in the way. Keep off.' But we can actually go to those who are occupying the land in different ways and say, 'What information do you have on the land ownership?' So, there are a number of ways in which we can do that.

Right. Thank you. And finally, how will you take into consideration the requirement to have planning permission—any planning permission that's required or any other consent?

Any serving notices requiring operations to take place on a piece of land, requiring that of the owner of the land, will have to take into account—the authority will take into account—the requirement to obtain planning and any other consents as well that might be necessary. So, the operations will have to be carried out in accordance with planning and other legislative requirements as well.

Right. Thank you.

Diolch yn fawr iawn. [Interruption.] Yes, sorry.

When we drill into this deeper, when we return, you may want to look at, also, the powers within this in emergency situations as well, which are pertinent to this. So, where work needs to be carried out immediately because there's been an identifiable risk to the stability or a risk to human welfare, there will still be co-operation with all of the partners, with the landowners and so on, in the best interests of the communities. But we might want to return to that in the future; I'm conscious of time today.  

Yes, and you made the point earlier that the authority could respond to emergency situations without being restrained.

Indeed. 

One of the things that is happening at the moment is that local authorities are pursuing private companies to remediate tips based on the fact that they can extract surface coal not extracted coal. And that is a solution that local authorities are finding is at low or no cost to themselves, subject to the proper planning regulations. Do you feel that this Bill will in any way hinder that or, conversely, will it encourage such approaches?

Thank you, Hefin. I know I mentioned on the floor of the Senedd the other day that the one thing this Bill isn't is that it isn't an all-encompassing remediation Bill, including some of the former opencast sites, and so on. This is very much focused on those issues of stability and risks to human welfare of coal tips and non-coal tips. But, what I can say is that, under the Bill, under sections 34 and 43, it does enable a landowner and the authority to remove and dispose of any property, as it's described in the Bill—property—situated on the land that belongs to another person if—and this is important—that removal is for the purposes of carrying out operations. And remember, the purpose of those operations is to do with human welfare and stability; it is not the commercial extraction of coal. That's not a principle of this Bill, if you see what I mean. So, the Bill does not do this in respect of inspections.

We do understand that it may be the case that, during the course of operations, property may need to be removed from the land or even destroyed. In a small number of cases, it may be that there is some value to that property and, in those circumstances, the Bill allows for the property to be sold and the proceeds of sale to be given to the owner of the property after relevant deductions have been made. We consider that balance to be reasonable and appropriate. Part of our considerations on this, Hefin, as well are the human rights implications, and that includes human rights over property. So, those were considered during the development of these provisions. 

It is possible, Hefin, that materials from a disused tip could include coal, and sections 34 and 43 would allow for its sale. That is not the primary purpose or the underlying reason for this Bill, which is focused on stability and human welfare. The Bill only allows for sale of property, including coal, for the purpose of carrying out operations or consequential works of reinstatement. It's important to note that the new body would only recommend moving material from a tip for a safety purpose. Now, when I was up on top of Tylorstown the other day, they were not removing material from that tip; they were actually using it in other areas in a much more stable position on the same acreage of land that they had. The other thing to say, Hefin, as well is that the owner of the authority, in discharging these aspects, would have to act within the parameters of existing planning and wider environmental legislation.

That's understood, and you've answered a lot of the questions I had before I asked them there—that's helpful. [Laughter.] The key issue, though, is the accompanied—. Well, let's take Six Bells: Six Bells was remediated, but the primary motivation of the company was to make a profit from the reselling of surface coal. That seems to sit outside that definition you just described as not for making a profit, but to favour safety. Although, the consequence was that the tip was remediated and the whole of area of Six Bells landscape. So, isn't there a chance that the Bill could end up inadvertently preventing those kinds of activities?

We consider that we've got the balance right here, bearing in mind the fundamental focus of the Bill, but I would restate for you that this does—. The Bill only allows for the sale of property, which would include coal within that definition of property, for the purposes described in the Bill—for that purpose of reinstatement, delivering stability of that tip. There would only be a recommendation of moving material from a tip for those safety and welfare purposes.

Yes, so, just to be clear—sorry to push this, but it's really important—if a company was to approach a local authority and say, 'We can do this. Yes, we'll make a profit, but our primary purpose would be the safety of the land', then that wouldn't be preventing that company from that action.

Yes, it's in the context of existing legislation, but let me just bring Chris in here.

Just to confirm, this would not prevent any of that from happening. So, if that proposal was made, they would have to go through existing planning processes in order to get that approved. Nothing in this Bill prohibits it. 

Right. That's good. Thank you.

Carolyn.

I am a bit concerned about this because we've had remediation through the planning process. The local authority were minded not to approve it twice. It went through on appeal. So, we'd have to make sure that the legislation is really tight. So, it should be on appeal to Government. And then it's about the community being aware of what's happening, but I suppose that would be through the planning process, wouldn't it, that they'd be aware?

Indeed, it would be.

Did you consider at all—you touched on the human rights element, of course—not allowing the sale of coal in some way because, obviously, it does grate with wider Government policy around fossil fuels, doesn’t it?

These are the normal tensions of Government policy, and the Welsh Government has a clear approach in terms of—sorry, it's wider than the debate we're having today—fossil fuel extraction and use. We have a clear decarbonisation trajectory as well. But that doesn’t take away any aspects of the previous few minutes of discussion we've had, which is that this is the wider planning context, the wider policy context, but this Bill—this Bill—is focused very squarely on the issues of human welfare and tip stability. And I return to that point that we have to get the balance correct here in terms of a human rights analysis, and that includes the rights to property. But this Bill is designed not necessarily to shift property off-site, in respect of the fact that you're talking about coal, but it fits within that wider planning context as well. I don't know if, Madeline, you want to touch on anything to do with the human rights aspects of this at all.

I think, when considering this, on the issues around whether it's necessary to deprive somebody of property, obviously, the human rights elements need to be considered there, so that's one of the reasons why this power has been included in the Bill. But, as the Minister's explained, it's for very particular purposes, so it's not broad. So, hopefully, that might give some reassurance to the committee.

Yes, okay. I understand the context within which you're legislating; maybe we can, as a committee, consider that further. Okay. Thank you. Janet, back to you.

Thank you. Section 36 does not make provision for the process of applying for an appeal. Why is this not included in the Bill?

So, we did give consideration to setting out an appeal on the face of the Bill, but we didn't consider it necessary. Section 36 sets out in detail the time frame for making an appeal—it's 21 days—and the grounds for that appeal. It also sets out who is entitled to appeal, and who the appeal has to be made to: Welsh Ministers. It also makes explicit that an appeal can seek the variation or cancellation of a section 33 notice, and we do accept, Janet, that these are really important that which should absolutely be set out on the face of the Bill, they're fundamental things, but the nuts and bolts of how to make an application is an administrative matter; it's more appropriately outlined by the authority itself and set out on the webpages of Planning and Environment Decisions Wales, who the Welsh Ministers intend to appoint to determine the appeals on their behalf. So, we think we've got the balance right between setting the clarity on the face of the Bill and then the administrative elements in a different way.

Section 38(5) provides the Welsh Ministers with a broad regulation-making power, including to make provisions for entry to land, and to create offences for failure to comply. Why do you consider this to be reasonable and appropriate?

Well, first of all, I think we need to set this, really, in the context. The regulations that are being made under section 38, they govern appeals that are made under section 36, and those appeals under section 36 can be brought by owners of land who are given that section 33 notice to carry out operations on land, or by a person who is given a copy of a section 33 notice, and they can apply to Welsh Ministers to cancel or to vary that notice. Now, these appeals could be complex to determine. It is foreseeable that, in some cases, we could have a need for the person who is determining the appeal, or an expert appointed on their behalf, to have access to the land in question to help them in that determination. So, we feel think it's appropriate—we feel it's appropriate—that regulations should be able to set out provisions in relation to powers of entry, and to create offences for failure to comply with those requirements imposed under the regulations. But we are, when we make those regulations, bound by the same considerations as in Bills when creating any powers over entry and offences. They need to be proportionate, and, in terms of the creation of offences, we would have to liaise as well with the Ministry of Justice. But this is clearly a critical element of the Bill to be able to actually get onto the land. And we want to do that in collaboration, by the way, but sometimes we would need to utilise these powers.

Okay.

Thank you. Carolyn.

The Bill doesn't make provision for disused tip owners to apply for an extension of time to be able to complete operations other than through the appeal process, so why have you chosen to include such a provision?

Well, odd in discussing legislation, I'm going to come back to and put my feelings here very strongly on record. The underpinning statutory legislation that we're putting in place here, we also want to see a collaborative approach taken on the ground with landowners as well, so what we want to see happening is, if a landowner reasonably requires some more time, that is something that could actually be just agreed with the authority. It comes back to the earlier point of principle I was saying, is I think most landowners would want to say, 'How can we help in dealing with these issues of stability and welfare?' As opposed to, 'Keep away from me. I don't even want to even get involved in this.'

So, for example, if a landowner was unable to complete works, because—and we're familiar with this in other policy areas—of weather conditions, then that discussion could happen actually with the authority, and we'd really encourage the authority then to treat reasonable requests favourably, and this is a point, by the way, that we're happy to include in guidance to the authority, so we make what I've just said very clear to them as well: 'Engage with the landowner, be reasonable in the way that you apply this.'

Okay. Just regarding the authority's power to carry out operations, section 42 provides a broad power for the authority to carry out operations on any land for the purpose of ensuring disused tip safety. So, what checks and balances does the Bill contain to ensure this power is exercised appropriately?

We do have what we think is a good range of checks and balances here that are appropriate and proportionate. So, the authority mustn't carry out any operations on land under section 42—other than in an emergency, okay, and I come back to that—unless it has given the owner of that land at least 21 days' clear notice of its intention to do so. That's in section 44. It's also got to give a copy of the notice to others with interest in carrying out that notice, so anybody that's affected by the carrying out of operations on the land, or who might be asked to contribute towards the costs of carrying out the operations, is informed about them in a timely way. Where the authority seeks to recover some expenses from a landowner or a contribution towards the cost of operations, then the Bill provides a right of appeal to the court in respect of such a demand, and the court can make, in its own judgment, then, an order either varying or cancelling the authority's demand to recover expenses. So, section 52(3) provides grounds on which an application against the authority's demand can be made. So, I give an example here: if there were reasonable grounds for that court believing that the operations were not necessary or that the operations were more extensive than necessary as well. So, there's a range of checks and balances here within that broad power to make sure that a fair and proportionate approach is taken by the authority in discharging these powers.

And in what circumstances do you envisage the authority would need to carry out operations immediately? And why aren't these set out in the Bill? What checks and balances would be put in place to ensure this power is being used appropriately, so, if there's something they need to do immediately?

Yes, I think this is the critical element there. We could have circumstances where the authority perceives there's an immediate threat to human welfare. We can envisage this. And then, in that situation, they would need operations to begin immediately to mitigate those effects. I think all of us sitting in this committee would want that to happen. We feel very strongly that it's the new expert body, the authority, that is best placed to determine the circumstances under which they'd need to carry out those operations to protect human welfare, and the approach here means that the technical experts directly inform the operational approach to achieve those objectives. So, we can see this. You can see the situation where, immediately after we've had heavy downpours and discharges, the deluges we've seen, the authority then looks at that and says, 'Things have changed on that tip. We need to actually get in there immediately and take action.' Now, it's probable that such scenarios are likely to be relatively infrequent, relatively rare, but, where they are, we want the powers to be there.

Can I just ask a supplementary? So, climate change is one of the biggest risks now, and I just want to know what strength of power this legislation will have. For example, councils are the lead flood authority, and they should be able to enforce public bodies like NRW to make sure they clean culverts. They've got that legislation in place, but it's not happening, so I want to know what power and what enforcement have you got to make sure that that is properly enforced and people do listen, basically?

So, local authorities will continue to be the category 1 responder, because they have that wide sweep of comprehensive—alongside others—. They'll engage with NRW, the Mining Remediation Authority in the immediate future and so on as well, but this will also be part of that response. That's why we're bringing forward this suite of powers, but, in all of the aspects where the new authority will discharge these powers, including those in an emergency situation—because we can envisage the need to take urgent, immediate action—they are subject to public law principles. On that basis, they have to act reasonably and fairly in all that they do, and if they do, for example, use emergency powers, they have to robustly evidence the need to do that as well. But I think having an expert input into that, from an independent authority with real expertise that people can have real faith in, I think that helps them say, then, 'We need to go in and take action. We need to either work with the landowner with adequate notice, or, alternatively, we need to step in right now and take action to protect the welfare of communities.'

Okay.

Diolch yn fawr. Janet.

The White Paper proposed a range of enforcement powers and civil sanctions. These have not been included in the Bill, with the explanatory memorandum stating that this would make the regime overly bureaucratic and unwieldy, and it would be difficult for the authority to administer. Does the Bill provide the authority with sufficiently strong powers to deliver its objectives?

I might bring in colleagues on this one. We believe that it does and we've got the balance right, but, Chris, I don't know if you want to add—.

I think the range of civil sanctions, such as fixed monetary penalties and compliance notices, do provide a fairly robust system, which will be able to be followed through, during the processes. Whilst we've not included them in the Bill, the White Paper proposals, we thought that they would be overly bureaucratic and unwieldy, but, more importantly, it would slow the authority's ability to react in a quick way. We think that the penalties that we have put in place enables them to act in a faster way, with less bureaucracy and administration. But, in our view, they are sufficient to enable them to act.

Okay. Thank you.

Diolch yn fawr. Carolyn.

So, what does section 57(1)(b) of the Bill—? Why does it leave it to relevant public authorities to determine whether they consider that information about a threat to disused tip stability, or evidence of instability, should be shared with the authority? So, information is really, really important, isn't it, and flow of information is really important. So, I'm just asking a question about that, really.

It's a fair point. So, the Bill, if it proceeds to Royal Assent, gives a duty to relevant public authorities to inform the authority, this new authority, as soon as is practicable if they become aware of this threat to the stability of a tip, or evidence of a disused tip's instability, and also to consider the information that ought to be shared with the authority in the interests of avoiding a threat to human welfare. So, it's a very clear ask, it goes well beyond legislation that's previously been there. It is appropriate to place that duty on the relevant public authority, as it's going to be that public authority that holds that information. No other body or person might be aware of this information, so putting it onto them to say, 'You now have a duty to share that and inform' is the right way to do it.

Okay. All right.

Okay. Diolch yn fawr. And finally, I think, Janet.

Yes, final question. Thank you for your answers, as well, today. The White Paper identified a lack of specialist skills to support the new regime, which the explanatory memorandum states that the establishment of the authority will help to address. How does the Bill support skills development? And let's be honest, we all know that we've got major skills shortages in all aspects—planning, legal, building control, all across those kinds of positions. How do you envisage being able to fulfil the skills needed?

It's such a critical thing. We've talked a lot, in this session, about the need for expertise and so on. And we are aware that we need to expand and develop in certain areas. So, when I was up on Tylorstown the other day, chatting with some of the people there—really interesting, by the way, Janet; it sounds like I'm a sales agent for this company, but they were really impressive, they're one of several now, in Wales, Pritchard's, local people employed and whatever. But, chatting with them, they were saying, 'One of the challenges we have got is hydrologists', for example, and we want them to be coming from Welsh universities, Welsh FE colleges and so on. They also need to develop that apprentice, on-site expertise as well, as we bring this authority through and build on what we've done already.

Now, we've already undertaken a skills survey with local government partners, looking at the baseline of where we are to better understand current demands, but also future demands of where we go with this authority, because this is going to be groundbreaking in terms of Wales leading the field in what we do with coal tip and non-coal tip safety. So, we'll use that as a basis of our understanding, but we need to keep on engaging now with those local authorities, with skills providers, with NRW as well and the Mine Remediation Authority. But the Bill, in establishing this regime now to proactively and preventatively manage disused tips in Wales, puts a real impetus behind that. It'll be a catalyst for development and investment and growth within those sectors. We won't just have the Pritchards, we'll have hopefully many more of those with levels of expertise, but also in the authority itself, and also in the other agencies and the partners. So, I think you're right: we need to turbocharge the skills within this area, but we've done a baseline analysis. I think some of those conversations that I had were pointing out there are good people doing this, we need more of them. It's an opportunity, by the way, for Wales as well.

What level of qualification or expertise do you deem necessary for undertaking preliminary and full assessments of disused tips? And will you as a Government be working with our local colleges?

Yes, entirely. And we would expect the authority and the other partners to be working on that supply chain, bringing them through as well. And it could be a range of things. It could be everything from degree apprenticeships in particular specialisms, because this is quite a specialist area, from the traditional engineering to the geological and hydrological underpinning as well. But it also, by the way, includes people who are currently on the ground at the moment doing similar work, but for example could develop through additional qualifications and training on site, chartered membership of institutions, work with FE colleges. So it's not simply the fresh-out-of-university ones or the graduate apprenticeships. It's also that continuing development in the professional situation into this new space. So, that is a job of work that we—

An exciting challenge for anybody watching this, if they're interested.

It really is. And we also want the authority to help identify where the skills opportunities, shall we say, as opposed to challenges, are—where these opportunities are.

Thank you very much, Cabinet Secretary—

The Children, Young People and Education Committee are currently doing an inquiry, or are going to, into pathways into careers in post-16 education, starting at 14 years of age, which would be a really good piece of work to tie into this as well.

It's interesting that, for years, coal tips and things provided employment, and now the remediation and making them safe can equally provide some good, highly skilled jobs.

Yes. On that note, can I thank you, Cabinet Secretary, and your officials for being with us this morning? It was quite a canter through the Bill, that one, in 90 minutes, but obviously it's the start of our deliberations and we're grateful to you for helping us with that. Just to remind Members, we will be hearing from stakeholders in the new year as well, and of course there's an invitation for people to submit written evidence as well, up to 17 January, and we'll be welcoming you back at the end of Stage 1 deliberations as well. 

Diolch yn fawr. 

Committee will continue with our agenda items. The next item is our papers to note. Are Members happy to note them collectively? There are six papers there. Yes, diolch yn fawr iawn.

Sorry, Carolyn, yes. 

On the papers to note, we've had a few about storms and water capture, all of that, what we need to do, and I was just hoping in our forward work programme we could possibly do some work on that.

That has been highlighted as an item that we should consider in our—

Thank you. Delyth is hopefully supporting—

No, absolutely. That's something that we are considering, and there will be discussion in private session on our forward work programme. So we'll certainly do that.

Thank you. 

Sorry—Delyth, yes.

Diolch. I wanted to make a similar point and wanted to speak in support of Carolyn there. I think for anyone who has written to us and those who've been expressing concerns to us as individual Members, it would be useful for them to know that this is very much something that we're going to be discussing and seeing how we can fit it in. Thank you very much for that. Diolch.