Proposals for ‘Wellbeing and Sustainable Development’ – response to Scottish Government consultation

The Scottish Government legislative programme currently includes a proposed Bill to improve accountability and scrutiny of the National Outcomes defining the long-established (and somewhat overlooked) National Performance Framework1. This consultation2 on ‘Wellbeing and Sustainable Development’ perhaps points the way to a better alignment of the different strands of policy affecting rural land management. In particular, two other Bills are proposed on ‘Agriculture and Rural Communities’3 and the ‘Natural Environment’4, with no evident linkage between them. The core issue examined through this consultation is the extent to which Scotland’s public bodies are obliged to show how their work is aligned with the National Outcomes. The report of a review published by the Finance Committee of the Scottish Parliament (para 175)5 concluded: “the NPF is not currently seen to drive financial decisions nor as a mechanism by which organisations are held to account for spending effectively….. there needs to be a closer alignment between the NPF and those who advise and take funding decisions in the Scottish Government“.

Here, for the record, are my answers to the consultation questions:

Defining wellbeing

1. Is a statutory definition of ‘wellbeing’ required?

Yes

2. Do you have any views on how ‘wellbeing’ can be clearly defined in legislation?

We need some way to leave no doubt that increasing ‘wellbeing’ is central to any consideration of how well Scotland is doing, and that our mainstream economic measures (especially Gross Domestic Product) are completely inadequate for this purpose. As the consultation paper makes clear, “our ability to have a thriving society and economy is derived from the health of the planet” (p5). An increase in GDP at the expense of ecosystem health, or social dislocation, diminishes our overall wellbeing. So a formal definition which places the economic, social, cultural and environmental dimensions of wellbeing in context is required.

Defining sustainable development

3. Is a statutory definition of ‘sustainable development’ required?

Yes

4. Do you agree with our proposal that any definition of sustainable development should be aligned with the common definition: “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”?

Yes

5. Do you have other views on how ‘sustainable development’ can be clearly defined in legislation?

The word ‘sustainable’ has become widely misused (for example ‘sustainable growth’ on a finite planet must ultimately be an oxymoron) such that any meaning it once had has become contested. Hence there is benefit in formally adopting the widely used definition of sustainable development taken from the 1987 UN report ‘Our Common Future’.

6. What future wellbeing issues or challenges do you think legislation could help ensure we address?

Numerous economic, social, cultural and environmental challenges are evident, impacting the living standards and life chances of Scotland’s people, old and young. The proposed legislation will support the broad framework within which the many trade-offs required may be acknowledged and addressed.

7. We are aware that the term ‘sustainable development’ has been set out in various legislation of the Scottish Parliament since devolution in 1999, and that careful consideration will need to be given to how any new definition will impact on these. What impact, if any, would the proposed definition have on other areas of legislation?

A single statutory definition provides the basis on which any contradictions arising from the use of this term in prior legislation may be identified and resolved.

Strengthening duties for the National Outcomes and sustainable development

8. How should a legal duty be defined to ensure that public authorities uphold sustainable development and the interests of future generations?

‘Sustainable development’ (however defined) and ‘the interests of future generations’ are too broad to have much practical bearing on the priorities and day-to-day spending decisions of individual public authorities. Experience of the 2015 Act duty to ‘have regard to the National Outcomes’ clearly shows that the different core statutory duties and functions setting out the purpose of each body are given precedence. As a public servant, I welcomed the emergence of the National Performance Framework from 2007. But during my working life I saw, time and again, how senior staff across several Scottish public bodies felt **obliged** to address their respective core duties first and foremost. So the ‘have regard’ duty has been ineffective. Equally, it is hard to see how the National Outcomes, in their present form, can be imposed in a way which diminishes these core statutory duties and functions. Instead, we need greater clarity how those clearly stated core statutory functions driving the work of each public authority combine together to deliver the National Outcomes.

A duty to ‘have regard to’ is not the only language used in legislation. For example, Section 1 of the Nature Conservation (Scotland) Act 2004 states that: “it is the duty of every public body and office-holder, in exercising any functions, to **further** the conservation of biodiversity so far as is consistent with the proper exercise of those functions”. But this duty is qualified by reference to core functions. Section 14 of the National Parks (Scotland) Act 2000 requires that: “the Scottish Ministers, a National Park authority, a local authority and any other public body or office-holder must … have regard to the National Park Plan…” but the efficacy of this duty is under review as part of the proposed Natural Environment Bill.

Arguably, the National Outcomes are different when compared with such examples. To be effective, the National Performance Framework must surely sit above the core purpose and functions of individual public authorities. Hence a legal duty is required which clearly states the core purpose of the Outcomes to form the one common framework within which the continuing core duties and purposes of each public authority can be aligned.

9. Are there specific areas of decision making that should be included or excluded from the Bill?

Areas of decision making to include::

The consultation paper states that the National Performance Framework and National Outcomes are “intended to shape policy and delivery decision making across all levels of government, public bodies, and public services” (p22), hence all areas of decision making must be within scope.

Areas of decision making to exclude::

The consultation paper states that the National Performance Framework and National Outcomes are “intended to shape policy and delivery decision making across all levels of government, public bodies, and public services” (p22), hence no areas of decision making can be excluded.

10. What issues, if any, may result from strengthening the requirement to have regard to the National Outcomes?

As noted in response to question 8, there are several other ‘have regard’ or similar duties placed on some or all of Scotland’s public authorities in prior legislation. In this case the duty, however defined, must bring about **alignment** of the work of Scotland’s public authorities within a common framework.

At least three other proposed Bills in the current legislative programme need to be taken into account in setting the terms of a duty for the National Outcomes. The proposed Agriculture and Rural Communities Bill requires Scottish Ministers to prepare, and ‘have regard to’ a Rural Support Plan. It isn’t clear how this would align with the National Outcomes.

The proposed Natural Environment Bill, as well as amending National Parks legislation as noted at Q8, will introduce statutory targets for biodiversity. It isn’t clear how any such targets would be aligned with the National Outcomes (or where responsibility for delivery will lie).

The proposed Human Rights Bill plans, inter alia, to create a right to a healthy environment. It isn’t clear how the exercise of this right (or other rights) can be aligned with the National Outcomes.

These examples reinforce the need for the National Performance Framework to become the common reference point for alignment of the many strands making up the wellbeing of Scotland’s people.

Clarifying to whom the duties apply

11. Should any duty apply to the Scottish Government?

The consultation paper states that the National Performance Framework and National Outcomes are “intended to shape policy and delivery decision making across all levels of government, public bodies, and public services” (p22), hence clearly the duty must apply to the Scottish Government.

12. Do you have any views on the range and type of organisations that any duty should apply to?

The consultation paper states that the National Performance Framework and National Outcomes are “intended to shape policy and delivery decision making across all levels of government, public bodies, and public services” (p22), hence any duty must apply at least to all Scottish public authorities.

Beyond this straightforward requirement, the application of the duty to the growing plethora of partnerships with private and third sector bodies will require careful consideration. Ideally, all will pull together within the common framework of the NPF to achieve the National Outcomes.

Defining ways of working

13. Do you have any views on how we can better report the achievement of wellbeing objectives which supports clear accountability and scrutiny of public bodies in Scotland?

There’s a plethora of strategies and delivery plans across the breadth of functions of public bodies in Scotland, most with accompanying measures and targets. For example, the Scottish Biodiversity Strategy has a Delivery Plan intended to be reinforced by statutory targets for nature restoration. It isn’t clear how these ‘binding’ targets “will form a key element of the accountability framework”. The provisions of this Wellbeing and Sustainable Development Bill are the opportunity to reinforce a single framework for joint working and collaboration towards common objectives right across the functions of Scotland’s public bodies.

14. What additional steps are needed to ensure collaboration and working across boundaries?

Too often, performance assessments of the work of Scotland’s public bodies take no account of how well, or otherwise, their efforts are aligned one with another. Although some work has been done at portfolio level, this has always been a low priority when set against the pressing demands of core functions and budgetary pressures. In addition, the portfolios have been too fluid, changing on political whim. The governing structures (boards, leadership teams etc) need to be held to account to show how their work fits in to a bigger picture – one set by the National Performance Framework.

15. Do you have any views on whether any duty related to ways of working could create conflicts with duties currently placed on you?

N/A – I have no current organisational affiliations.

16. Do you have any views on the additional resource implications necessary to discharge any wellbeing duty in your organisation?

N/A – I have no current organisational affiliations.

Determining an approach to future generations

17. Should Scotland establish an independent Commissioner for Future Generations?

Don’t know

18. In what ways could an independent Commissioner for Future Generations increase the accountability, scrutiny and support for decision making?

While the definition of sustainable development highlights the interests of future generations, this is but one dimension of the National Outcomes. Clear and transparent lines of accountability, scrutiny and support for decision making are required, but such a Commissioner may perhaps not be best-placed to provided this? A clear case for such an appointment has not yet been made.

19. Are there alternative ways we can increase the accountability, scrutiny and support for decision making?

We already have a confusing array of Commissioners and small public bodies with regulatory or quasi-regulatory responsibilities. Do we really need another one? In particular, it might seem there’s some common interest with the work of the Scottish Children’s Commissioner vis-a-vis the interests of future generations – perhaps some amendments to roles and responsibilities would improve scrutiny in this regard?

Following the Money (Part 4) – entering a new dimension

Following the Money explores how the public funds spent each year to support rural land management in Scotland influence our unfolding biodiversity crisis; this new post in the series brings the story up to date. Previous posts established that there’s an annual spend of around £1 billion, a large part of which (roughly £600m) is channelled directly to Scotland’s farmers. This total has not changed very much over recent years, while rising costs have eroded its spending power by around a quarter.

The first post1 set the scene, noting international ambition to reverse our failure to make space for Nature and associated commitments, dating from 2011, to “substantially increase” financial resource allocations. Rural land management is one of the largest impacts on our wild plants and animals. In Scotland, enumerating the relevant allocations is not easy, due to the confused landscape of public bodies, diverse definitions and forms of publication. But we can be thankful that the regular publication of Scottish public body budgets provides a degree of transparency with some indication of trends over time.

The second post2 brought together the various relevant numbers to make an assessment of how effort has changed over two decades, showing how the funds provided are dominated by the direct farm payments framed by the EU Common Agricultural Policy (CAP). Post-Brexit, of course, these are being replaced, although in Scotland this is not scheduled to begin until 2025 3. By that time, the CAP-derived Basic Payment to farmers, with its associated shortcomings, will have been rolled forward for nearly a decade.

The most recent post 4 in the summer of 2022 reviewed the Scottish Government’s five year plans in the light of a rapid increase in price inflation; a further large erosion of spending power became inevitable. The mismatch of rhetoric and reality is more apparent than ever. During 2023, an extensive consultation process has explored how the UN Global Biodiversity Framework, setting 23 targets for 2030, will be implemented in Scotland5. A new Biodiversity Strategy sets “a clear ambition for Scotland to be Nature Positive by 2030, and to have restored and regenerated biodiversity across the country by 2045“, through “transformative change“. An initial five-year Delivery Plan sets out numerous actions, and a Natural Environment Bill is proposed to establish statutory targets bearing on public bodies. But there’s a lack of clarity on where the increased resources to bring all this about will be found.

A second extensive consultation process is ongoing, helping to design the new farm support measures. Late in 2023, a new Agriculture and Rural Communities Bill began its progress through Parliament6 . The core of the new measures as proposed look remarkably similar to the previous arrangements; this isn’t entirely surprising, since there’s an ambition to track the continuing CAP measures. However, this also implies an absence of the ‘transformative change’ sought by the Biodiversity Strategy…. There’s a steady undercurrent of comment about all this7, but persistent confusion of the arrangements for Scotland with those for England (or England and Wales).

The draft Scottish Budget for 2024-25, published in December 2023, details proposed allocations of Scottish Government funding broadly matching those set out in the five-year outlook published in 2022. There have been a few changes in the configuration of portfolios within which the relevant expenditure is brigaded8, and in recent years some expenditure has been reclassified as capital rather than recurrent. For 2024/25, this has led to a £30m budget cut in woodland planting grants from £57m to £27m due to general restrictions on capital spend9. However, overall the total allocations relevant to rural land management are largely unchanged; certainly no ‘transformation’ of resource availability is evident.

Stepping back from the detail of these developments, it’s worth reflecting on how around the £1 billion is spent in Scotland every year. First, remember that every penny is (eventually) paid to a human being – most often directly to an individual farmer or crofter, or an employee of one of the relevant public bodies, but sometimes at the end of a very lengthy supply chain (for example the grower of trees planted as part of a woodland establishment project, or even to pay for the production of fuel or manufacture of tyres on a vehicle used by an on-farm adviser helping to deliver biodiversity targets). So, as I have commented previously, none of these funds directly buys a squirrel, an orchid or a brood of hen harriers. But we can be confident that £1 billion spent each year has a pretty big impact on Scotland’s natural animals and plants, even although it can be hard to pin down exactly where the money goes or what it ‘buys’ in terms of biodiversity outcomes.

The UN ‘Aichi’ biodiversity targets for the decade to 202010 included the ambition to increase expenditure, accepted by the UK and reported as indicator E2. During 2022, I corresponded with the Defra team managing these targets, who were able to give me a breakdown of the Scottish component within the published UK totals covering two decades from 2000 to 2020. This shows that the estimate grew to around £60m per annum in 2007/8 (before the Aichi target was adopted), then declined to around £30m in 2012/13 before climbing back to around £60m in 2019/2011. This is a very conservative estimate of biodiversity expenditure in Scotland (and don’t forget that the scope of ‘biodiversity expenditure’ goes well beyond rural land management). It excludes, for example, the £142m annual ‘greening payments’ to Scottish farmers, on the grounds that it isn’t clear what this is buying. But we can be certain that quite a lot of the annual £1bn total has a much bigger effect, both positive and negative, than the £60m reported.

New global targets for 203012 include Target 19 “Substantially and progressively increase the level of financial resources from all sources, in an effective, timely and easily accessible manner, including domestic, international, public and private resources, in accordance with Article 20 of the Convention, to implement national biodiversity strategies and action plans, by 2030 mobilizing at least 200 billion United States dollars per year“. It is not yet clear how this may be translated into a UK, or Scottish, contribution however the target reinforces the notion of a ‘transformative’ change of pace.

Scottish government is well aware that taxpayer funds on their own are not going to bring about the ‘transformation’ required. The Biodiversity Strategy, for example, proposes to harness the resources of the private sector – individual owners and commercial organisations – to bridge the gap. This is a radical change of outlook compared to before. Throughout my career, debate focused almost entirely on the availability and use of public funds plus, to a lesser extent, the resources of non-governmental charitable organisations (NGOs)13The latest UK biodiversity target report estimates total annual NGO spend of around £300m, on top of UK public funding a little above £700m so these resources, too, are not ‘transformative’.

The idea of harnessing private sector investment is both novel and controversial. The idea of ‘green lairds’ has become the subject of debate in Scotland14. While the primary focus of these is on sequestration of carbon, tackling the climate and biodiversity crises is closely linked. A report published in 2021 estimated a UK funding shortfall for Nature of £20bn15, however this estimate has been subject to close scrutiny16. Scottish government has defended its promotion of privately funded solutions, proposing guidelines17.

So, in conclusion, the availability of public money remains extremely tight with no sign of any ‘transformative’ change in the years ahead unless, somehow, a way can be found for private funds to bridge the gap. The stage is set for a lively debate on how best to take this forward.

Tackling the Nature Emergency: Response to Scottish Government Consultation

This consultation, which closed on December 14th, set out proposals “designed to halt and reverse biodiversity loss“. The Scottish Government has recognised that we face a combined climate and nature crisis. But does the response come close to the scale of this challenge? The consultation paper1 ran to over 100 pages, asking around 80 separate questions. Such a broad sweep demands a lot from us as consultees, covering a wide sweep of complicated and interacting questions, arguably too many for a single coherent response. However I submitted answers to many, if not all, of the questions. This post sets my answers in context of some broader, underlying issues. Consultations, like this one, which ask many specific detailed questions can mask significant underlying themes. In this case, the failures of the two previous Biodiversity Strategies (2004 and 2013)2 seem glossed over in an anxiety to align with the latest UN-inspired ‘Kunming-Montreal Global Biodiversity Framework’3. Where are the lessons learnt from this prior experience?

Flowing from the new Biodiversity Strategy4 , earlier drafts of which had previously invited comments, the first of the two main sections here presents a draft ‘Biodiversity Delivery Plan’, along with proposals for ‘Nature Networks’ and a ’30 by 30 Framework’.

Answers were sought to three questions repeated over the six main sections of the draft delivery plan, and my answers in each case were along similar lines:

Have we captured the key actions needed to deliver the objective (xxx)…?” – No – The scope of these actions may seem a good starting point, but the failures of the last two decades show that the wording of such actions is empty of meaning unless the means and resources are in place such that these numerous measures can appropriately be delivered. There are missing actions to ensure the availability of these essential provisos.

Are the key actions ……. sufficient to put Scotland on track to ending the loss of biodiversity by 2030?” – No – These actions are necessary, but not sufficient, to put Scotland on track. The means/ powers and resources to deliver each action must also be firmly committed. The failures of the last two decades underline this requirement.

Which actions do you think will have most impact?” – There’s more variety in my answers to these questions, for example highlighting reduced deer and sheep grazing to levels allowing measurable nature recovery. But my common theme here is to question the proliferation of proposed frameworks, partnerships, plans and guidance with rather little in terms of practical delivery. I fear that many people will be very busy, but without much concrete progress to show for it at the end of the decade. This unease is reinforced by the evident shortage of resources and limited powers over a variety of competing pressures. For example, a key impact should come from an appropriate refresh of the suite of farm subsidies (because these are easily the largest source of public funds affecting land management). But will this happen? The present proposals5 look remarkably similar to the discredited EU CAP schemes, with too much of the (considerable) funding handed out for too limited benefits in terms of public goods. Failure to adopt more ambitious measures will not bring about the transformation required.

Chapter 6 of the Delivery Plan concedes “that more investment is required” to bring about this transformation. The text trumpets some small (relative eg to farm subsidies exceeding £500m per annum) initiatives from public funds, before promoting private sector green finance solutions. I share a general scepticism about this approach; my answers to the consultations questions are:

Have we captured the key actions needed to deliver the objective: invest in nature? – No – These proposals are concerning because the lines of accountability to the wider public interest are unclear. Although investment of private resources is clearly significant, the argument that these resources can substitute for shortfalls in the budgets of public bodies has not been made.

Are the key actions, to support the objective: invest in nature, sufficient to put Scotland on track to ending the loss of biodiversity by 2030? – No – The introduction to this section claims that ‘Scottish Government has increased public investment in nature restoration in recent years’. Where is the evidence for this? The documentation concedes that such public funds have not been enough to bring about the transformation required. Instead, there are rather vague proposals to harness private investment. What assurance can be provided that any such investment can, in practice, put Scotland on track to end biodiversity loss by 2030?

Which actions do you think will have most impact? – Prior experience indicates that the most impact (in terms of ending biodiversity loss) will come from appropriate deployment of public funds, especially through the adoption of a joined-up approach across public bodies to ensure that different funding streams are pulling together, and not competing with each other. There’s already a general expectation that the way such funds are used should be transparent with clear lines of accountability (although there’s always scope for further improvement). In contrast, experience to date of private investment has been that this is secretive (claiming ‘confidentiality’), that lines of accountability are veiled (eg through use of complex ownership structures) and that any public benefit (in terms of nature restoration) is hard to identify.

Part A ends with an invitation to comment on the proposals for ‘Nature Networks’ and a ’30 by 30 Framework’. My brief comments were:

Do you have any comments on the Nature Networks Framework? – Landscape scale connectivity across Scotland is essential to ensure that the protected areas highlighted in the complementary 30 by 30 Framework are not isolated from each other. Only when such connections are maintained can nature recovery be sustained. This requires collaboration across a range of public bodies to harness a collective effort involving public and private, local and national perspectives.. The proposed Nature Networks Framework provides one useful structure within which this can be tackled.

As things stand, of course, the framework must be backed up with the resources to give it effect. As headlined in the Biodiversity Strategy, “the action needed is both urgent and transformative”.

Do you have any comments on the 30 by 30 Framework? – 30 by 30 is a handy slogan for the essential work of identifying and ensuring appropriate management of protected areas for nature recovery. While this work is necessary, it is not sufficient. What happens to the other 70% matters too. So it is important to treat the 30 by 30 Framework and Nature Networks Policy Framework as complementary. Either one without the other will fall well short of what we must do.

As things stand, of course, we are falling short on both of these. As headlined in the Biodiversity Strategy, “the action needed is both urgent and transformative”.

Part B of the consultation turns to two parts of the proposed Natural Environment Bill, namely proposed statutory targets and amendments to National Parks legislation. It isn’t clear how much difference any “binding” statutory targets might make. Certainly two decades of non-statutory targets failed to bring about the change required. The consultation proposes yet more working groups to answer this question and complex process to track and report on their delivery. My response to the questions is:

Do you agree with this approach to placing Targets on a Statutory Footing? – Yes – It is important that all levels of government are held to account for agreed targets, so the formality of a statutory basis is essential. I agree that the framework should be set in primary legislation to allow some subsequent flexibility in setting specific targets and learning from experience.

Do you agree with the criteria set out for the selection of targets? – Yes – These criteria are necessary but not sufficient. It makes no sense to establish a framework of statutory targets which are not embedded within the National Performance Framework (or whatever replacement emerges from the proposed Wellbeing and Sustainable Development Bill). Alignment with the NPF must be an additional key criterion.

Do you agree statutory targets should include a combination of outcome targets and output targets? – Yes – Input targets should not be discounted because, although they risk a focus on ‘busyness’ at the expense of practical progress towards outputs and outcomes, they complement these with evidence of sustained commitment to target delivery.

Is the list of potential target topics sufficiently comprehensive in terms of the focus of proposed target areas and overall scope? – Yes – The list makes a fair attempt to set out the potential scope for targets, but highlights the impracticality of setting targets covering every detail. How can all these be measured and reported in practice, when resources are so tight? The topics on this list could provide candidates for contribution to a small number of headline targets, for example along the lines of the existing Natural Capital Asset Index (https://nationalperformance.gov.scot/natural-capital  ).

Do you have any other comments on the list of potential target topics? – No

Do you agree with the proposal to have the smallest feasible number of targets which reflects the complexity of nature restoration? – Yes – It would be best to establish small number of headline targets along the lines of the NCAI (https://nationalperformance.gov.scot/natural-capital  ), provided always that the process of establishing and managing index measures of this kind is transparent, allowing open debate around their significance, effectiveness and currency.

Do you agree statutory targets should align with the 2030 and 2045 timescales set out in the Strategy? – No – Although it may be advantageous to obtain updates on target performance on the 2030 and 2045 timescales, there’s greater benefit in tracking progress in line with periodic delivery plans – so at least there must be interim checkpoints with specified dates.

Do you agree the Bill should allow for the review of statutory targets? – Yes – A due process for taking account of changing circumstances, while maintaining the integrity of targets over time, is essential.

Do you agree that reporting on targets should align with existing Biodiversity reporting requirements? – Yes – These reporting requirements add weight to the need to make provision for interim checkpoints, and not have to wait to 2030 or 2045 as suggested above,

Do you agree that an Independent Review Body is needed to report on Government’s progress in meeting the statutory targets? – Yes – Whatever arrangements are put in place for statutory targets, their basis must be open and transparent to facilitate constructive debate about the scope for further improvements. A designated independent review body will help to make this clear. Environmental Standards Scotland is the most obvious candidate.

Finally, the consultation considers proposals to amend National Parks legislation. Scottish Government has committed to the designation of at least one new National Park in Scotland by 2026. What new designation(s) might achieve is not clear, nor are the lessons from two decades of National Park experience clearly stated. Several aspects of the history and context might be contested; this consultation seeks comment on some specific proposals to amend the underlying legislation – my responses to the questions asked are:

Do you agree that the purpose of National Park authorities should be amended in order to emphasise the important leadership role that National Park authorities need to play in restoring nature and in mitigating and adapting to climate change? – Partially disagree – The wording of the statutory purpose and aims of Scotland’s National Parks is not the primary constraint on their success. Especially since 2010, our two National Parks have been starved of the resources they need and, from the outset, have had insufficient powers over the work of other public bodies operating in the area, notably those with responsibilities for farming and forestry. Until these points are addressed, the present wording of purpose and aims arguably remains fit for purpose.

The next four questions address proposed amendments to the four National Park aims in turn. I don’t see such changes as a priority, so my answer to each was the same:

Do you agree with these suggested changes to the (xxx) National Park aim? – Partially disagree – Until constraints of limited resources and powers of National Park authorities are addressed, it is hard to see how such changes of wording can make a material difference.

Do you agree that the National Park ‘principle’ set out in section 9(6) of the 2000 Act should be retained? This would mean that, if there is a conflict between the National Park aims, greater weight should be given to the first aim which would seek to protect, restore and enhance the natural assets, biodiversity and ecosystems within the National Park. – Agree – Given the emphasis on biodiversity and landscape quality in the establishment of our National Parks it would be perverse to remove or dilute this principle.

Do you agree that public bodies operating within the National Park should have regard to the proposed National Park aims? – Partially disagree – The ‘have regard to’ terminology is too weak, especially when set against the ‘primary responsibilities’ of relevant public bodies. Arguably, it is the very pursuit of these primary responsibilities (eg farm subsidies) which undermines the National Park aims. A different solution is required to resolve such conflicts.

Do you agree that public bodies operating within the National Park should have regard to the National Park principle? – Partially disagree – It isn’t clear what the logic for this proposal might be. The National Park Principle is surely for each National Park authority to address in reaching an appropriate balance across the aims. For other public bodies, ‘have regard to’ is too weak when set against their various primary responsibilities, especially where these are drivers of adverse changes to the qualities underlying National Park designation.

Do you agree that the duty on public bodies operating within National Parks should be strengthened so they have an obligation to support and contribute to the implementation of National Park Plans rather than having regard to these plans? – Agree – The National Park plan may be a suitable means to resolve conflicts of purpose across the various public bodies involved, but only if these public bodies are fully engaged in plan preparation and if the scope of the plan includes relevant primary responsibilities of such public bodies, for example farming subsidies. Such a plan might then provide a framework for a collective effort to address the challenges faced across each park.

Do you agree with the proposal that National Park Authorities should be able to enforce byelaw breaches within National Parks by issuing fixed penalty notices rather than referring them to local Procurators Fiscal? – Disagree – Addition of such enforcement powers changes the nature of the National Park authority raising questions about lines of public accountability and alignment with other enforcement arrangements, notably Police Scotland. It is preferable to work through established and well-understood structures wherever possible. The experience of managing (eg) parking violations on busy weekends suggests that FPN powers alone would not resolve the policing challenges that arise.

Do you think that any other changes should be made to the general powers of National Park authorities? – Agree – The consultation paper is silent on the role of National Park authorities in the planning system. There are inconsistencies here between the two extant parks, and it isn’t clear what lessons have been learned from this experience or how such experience will shape the planning powers of future park authorities.

Do you agree with the proposed changes to the governance (Boards) of National Parks? – Partially agree – I agree that the present National Park boards are too large and unwieldy. Smaller boards would be advantageous, however this undermines the idea that the board is essentially the only forum in which the full range of local and national interests is represented. A smaller board will tend to lead to more debate and decisionmaking taking place among officials, with an accompanying loss of transparency (sadly, this already seems to happen with some planning decisions). Greater clarity is required setting out the relationship between board members and officials and their respective powers and responsibilities.

Do you have any other comments that you would like to make about the aims, powers and governance of National Parks? – This consultation seems to start from the premise that the present governance structures are fit for purpose. The failure to achieve National Park aims suggests that a different approach is required. It makes no sense for each additional National Park to be a self-contained NDPB with its own staff and board. Much greater clarity is required on how the various national and local dimensions are to be reconciled. For example, staffing could be provided by a single National Park Service working to Boards more explicitly charged to secure a collaborative approach harnessing the work and resources of various relevant public bodies. Such joint working arrangements must be the way forward in the face of unavoidable resource constraints.

Review of Environmental Governance: response to Scottish Government consultation

Despite a title unlikely to draw a crowd, the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 has established formal Environmental Principles and set up Environmental Standards Scotland (ESS), responding to erosion of environmental protections in Scotland following Brexit. Five years have passed since I first blogged on the vexed question of ‘watchdogs’1. Now, Section 41 of the 2021 Act gives Scottish Ministers a duty to consult on the effectiveness of environmental governance, hence this review2. In brief, the review has an air of complacency, failing to set out robust analysis or sufficient evidence to justify its conclusion that the governance arrangements now in place are broadly satisfactory. In my view, setting up ESS has been a welcome step forward but it is still early days for this new organisation, and much else remains to be done. I am especially disappointed that the review makes no reference whatsoever to much-needed co-ordination between Scotland and the UK given the evident tensions emerging, for example around the UK Internal Market Act 2020. The new UK Office for Environmental Protection has made a stronger start, and many of the issues have cross-border dimensions.

Here is the text of my consultation response:

Overview of environmental governance

Chapter two of the review highlights wider issues of environmental governance.

1. Do you have any general comments on the scope of the review and the Scottish Government approach?

The scope of the review is far too narrow, falling far short of the stated ambition to support ‘transformative change’ addressing the twin challenges of climate and nature. The report lacks any serious analysis of the problems of environmental governance which exist in Scotland, it fails to draw on or to reference previous published assessments and it does not even acknowledge the key interface with UK arrangements and the necessity for effective collaboration with the UK Office for Environmental Protection. The 2021 Act and the establishment of Environmental Standards Scotland are steps in the right direction, but much more needs to be done to if Scotland is to have a truly effective and appropriate system of environmental governance.

2. Do you have any further comments on wider issues of environmental governance?

Prior to Brexit, environmental governance in Scotland was already deficient, and leaving the EU has made matters worse. The establishment of Environmental Standards Scotland and the Office for Environmental Protection are welcome key steps to offset this weakness, but leave an urgent need for further improvement.

There is a regrettable pattern of rhetorical reassurance from Scottish Government contrasting with the failure, on the part of a range of public bodies, to scrutinise and enforce the environmental protections which are in place. As a result, monitoring and measurement of impact demonstrates continuing decline – falling far short of the promised ‘transformative change’.

Robust environmental governance is absolutely central to overcoming these difficulties, covering structured assessments of:

– the coherence and co-ordination of effort across a range of public bodies operating in Scotland including both Scottish and UK dimensions;

– various limitations on scrutiny, audit and challenges to decision-makers so securing accountability;

– the vague and non-binding nature of many statutory targets, duties and powers;

– the ambivalence of political will to sustain and hear a voice for the environment within government;

– the progress of economic transformation which respects environmental limits;

– realistic means to overcome the shortfall of funding and staffing for environmental initiatives.

Perhaps the most important weakness in Scotland’s environmental governance is the widely acknowledged failure to implement aspects of the Aarhus Convention as explored later in this consultation. Putting this right would help to overcome barriers of access to environmental justice which include availability of relevant information, facilitating and engaging public participation and mitigating costs of litigation.

Environmental Governance Post-Brexit

1. Do you have any comments on the content of chapter three and the Scottish Government policy on this subject?

Chapter three is focused on the work of ESS, concluding that “there continues to be effective and appropriate governance relating to the environment following the withdrawal of the United Kingdom from the EU”. But this conclusion is not adequately evidenced. It is far too soon to draw such a conclusion since only one case (the air quality investigation) was sufficiently advanced. While this case shows positive signs, there is no evidence provided that this has yet led to any improvement in air quality. Meanwhile, the continuing failures in many other areas – for example wildlife crime – show that such a general conclusion cannot be sustained.

It is astonishing that this assessment of the work of ESS omits any discussion whatsoever of the interface between Scotland and the UK, especially regarding the September 2022 MoU agreed with the OEP. The success of these arrangements will be an essential dimension sustaining any conclusion along the lines proposed in this chapter.

2. Do you have any further comments on the existing environmental governance arrangements?

The Memorandum of Understanding with the UK Office for Environmental Protection (September 2022) is a small but essential building block in the framework of environmental governance for Scotland.  The document itself is modest in scope, undertaking to share relevant information and maintain regular liaison. Time will tell whether this is sufficient to address the challenges to effective environmental governance flowing from the evident post-Brexit tensions between UK government and the devolved administrations. We now understand that the separation of devolved and reserved powers cannot be as clear-cut as it once seemed, so although many aspects of environmental governance are devolved the interface with wider UK perspectives must be worked through in each case. This will have unavoidable implications for the conduct of environmental governance in Scotland, yet these have been overlooked in this report.

3. Do you have any further information or evidence on the issues presented in chapter three?

As noted above, the report  fails to explain how environmental governance and access to environmental justice in Scotland facilitate the broad aim for ‘transformative change’ (section 2.2) addressing the twin crises of climate and nature. These crises are global in nature, so cannot be resolved within Scotland in isolation. Brexit has made matters worse, but we now need clarity on the post-Brexit arrangements setting out how Scotland contributes to a wider effort in the UK and beyond. For example, the 2021 Institute for Government briefing “The United Kingdom Internal Market Act 2020” (https://www.instituteforgovernment.org.uk/publication/report/united-kingdom-internal-market-act-2020), read alongside the more recent 2023 Scottish Parliament Information Centre Highlight (https://spice-spotlight.scot/2023/03/24/from-single-use-plastics-to-the-deposit-return-scheme-how-are-common-frameworks-and-uk-internal-market-act-exclusion-processes-operating/) show work to be done to reconcile ‘common frameworks’ with the 2020 Act emphasis on ‘market access principles’, to establish appropriate regulatory alignment in many areas with environmental implications.

Access to justice on Environmental Matters

1. Do you have any comments on the content of chapter four and the Scottish Government position on this subject?

Chapter four concludes that there is no “strong argument for major reforms to the system of justice on environmental matters”, opting instead for some minor amendments. It is not clear that these will result in compliance with the Aarhus Convention.

The proposed recognition and inclusion of the human right to a healthy environment in the forthcoming Human Rights Bill does not, in itself, remove barriers to environmental justice such as the high costs of litigation.

2. Do you have any further comments on existing access to justice on environmental matters?

References to legal aid reform in the report are vague and lacking in substance, for example civil society organisations (including community groups and NGOs) should be made eligible for legal aid.

The Report highlights ESS’ ability to provide an additional route to remedy and assist individuals and groups to ‘seek environmental justice’. This is contradicted by the inability of ESS to deal with individual cases.

The Report maintains that a third party right of appeal is not required in the planning system for compliance with the Aarhus Convention. I understand that this position remains under review via the Aarhus Convention Compliance Committee.

3. Do you have any further information or evidence on the issues presented in chapter four?

Nothing to add here.

Governance Arrangements and Environmental Court

1. Do you have any comments on whether an environmental court would enhance environmental governance arrangements and the Scottish Government position on this subject?

The published consultation report dismisses the arguments in favour of an environmental court in Scotland without evidence or serious analysis. ESS is no substitute, and this approach seems unlikely to be compliant with the Aarhus Convention. Indeed, an environmental court would improve ESS’ capacity in enforcing environmental laws by giving it a cost-effective means to exercise its enforcement powers. Current arrangements, in contrast, are fragmented and unsatisfactory.

The 13-page supplementary briefing, published more recently, at least rehearses these issues in greater depth. But it reads as if written principally to buttress arguments against an environmental court. Drawing on the 2021 UNEP Guide for Policymakers is helpful, but does not address the core issues for Scotland as set out below.

2. Do you have further comments on whether an environmental court can enhance governance arrangements?

– The supplementary briefing paper underlines how environmental litigation is carried out in several different courts and tribunals in Scotland, resulting in a system of environmental governance which is fragmented and inefficient. An environmental court could give a focus yielding efficiency benefits for example reducing the risk of having multiple legal proceedings arising out of the same environmental dispute.

– Environmental litigation in Scotland is unaffordable and time-consuming – in contravention of the Aarhus Convention.  An environmental court would help improve access to justice. For example, environmental courts often incorporate alternative dispute resolution, which can allow for less adversarial resolution than litigation. The supplementary briefing paper touches on this issue, without providing any additional mitigation for cases in Scotland.

– Some types of environmental litigation do not allow the courts to consider whether the substance of a law has been violated. An environmental court could be given the power to carry out merits reviews.

– Resolving environmental disputes requires both legal and scientific expertise. Due to the variety of legal routes described in the supplementary briefing, Judges in Scotland may not be exposed to environmental disputes on a regular enough basis to allow them to develop a specialism in this area. Environmental courts provide a focus to enhance judicial expertise in environmental science and law.

3. Do you have any further evidence or information on whether an environmental court can enhances governance arrangements?

Please give us your views

The supplementary briefing paper makes one passing reference to the 2023 ERCS report: “The Clear and Urgent Case for a Scottish Environment Court” but fails to engage properly with this reasoned contribution. This consultation has not not adequately addressed the arguments supporting its conclusion, that: “in order to protect the environment and the citizen, (three) good governance tiers are  needed: independent oversight (including by Parliament), effective executive (including regulatory) controls and thirdly, robust juridical processes, and that a dedicated environment court or tribunal would effectively address the juridical route to remedy.”

Proposal to establish the Right to a Healthy Environment – response to Scottish Government consultation

The Scottish Government has consulted on a draft Human Rights Bill to go before the Scottish Parliament1, aiming to incorporate international human rights standards already signed and ratified by the UK into domestic law in Scotland. The main part of this is somewhat off-topic for me, but the proposals include formal recognition of the right to a healthy environment. It is intended not only that this will help to ensure a healthy and sustainable environment in Scotland, but also to provide a platform to tackle issues related to the environment and human rights so that they are realised together.

As the establishment of Environmental Standards Scotland is showing, there are flaws in our governance arrangements which a Right along these lines might help to correct. For example, Scotland is said to be non-compliant with key aspects of the UN Aarhus Convention, covering access to information, public participation in decision-making and access to environmental justice2. However, there’s also an elephant-sized question about the extent to which our devolved administration is empowered to make legislation of this kind. For what it’s worth, here’s my response to the relevant part of the proposal:

Part 5: Recognising the Right to a Healthy Environment

This part of the consultation sets out our proposed approach to including the right to a healthy environment in the Bill.

6. Do you agree or disagree with our proposed basis for defining the environment?

 Agree 

7. If you disagree, please explain why

N/A

8. What are your views on the proposed formulation of the substantive and procedural aspects of the right to a healthy environment?

These proposals are a sound starting point for consultation, but are capable of improvement.

The list of **substantive** aspects of the right are all valid, but incomplete. They must be recognised as interdependent, as well as having standalone aspects. The standards set out in the recommendations of the UN Framework Principles on Human Rights and the Environment and the Aarhus Convention should be adopted.

The right to safe and sufficient water must make clear that adequate sanitation is part and parcel, given the problems we have with sewage pollution and wastewater treatment in Scotland impacting, for example, on the quality of bathing waters.

The proposal to exclude the right to healthy and sustainably produced food (on the grounds this is included elsewhere in the Bill) seems anomalous given its interdependence with the rest of the list of substantive aspects. As a minimum this must be cross-referenced.

As for the **procedural** aspects of the right, recognising the Scottish Government’s acknowledgment that we are currently in breach of Article 9(4) of the Aarhus Convention, we require a clear path to meeting the recommendations of the Aarhus Convention Compliance Committee (ACCC) by the stated deadline of 1 October 2024.

9. Do you agree or disagree with our proposed approach to the protection of healthy and sustainable food as part of the incorporation of the right to adequate food in International Covenant on Economic, Social and Cultural Rights (ICESCR), rather than inclusion as a substantive aspect of the right to a healthy environment?

Disagree

Please provide your reasons why

The proposed approach is inadequate because it risks emphasising availability and access to food while neglecting the increasingly acute damage caused by the global food system to nature, climate and health. This includes biodiversity loss caused by farm management (including harmful applications of pesticides and fertilisers) on habitats and species, impacts on the quantity and quality of freshwaters, impacts from food processing & distribution (including ‘food miles’) and especially the farming contribution to carbon emissions. Hence an integral part of the right to a healthy environment is the right to healthy sustainable food and vice versa; they are not distinct. Noting that a right to food was previous excluded from the Good Food Nation Act, on the grounds that it would be incorporated in this Human Rights Bill; this must now be put right in a way which recognises the interdependence of these factors.

10. Do you agree or disagree with our proposed approach to including safe and sufficient water as a substantive aspect of the right to a healthy environment?

Disagree

Please give us your views

The right to safe and sufficient water is welcome but risks being too vague and hence unenforceable. For example, the definition must make clear that adequate sanitation is part and parcel, given the problems we have with sewage pollution and wastewater treatment in Scotland.

To give this right meaning, the aim must be to restore and maintain the ecosystem health of Scotland’s waterways, rivers and lochs. It must address wastewater and pollution from sewage, agricultural discharge, and other sources, the impacts of climate change on water availability (eg flood resilience), and measures for enhanced water monitoring, testing, and enforcement.

11. Are there any other substantive or procedural elements you think should be understood as aspects of the right?

 Yes

If yes, please specify what substantive or procedural elements and explain how this could be achieved

While the distinction drawn between substantive and procedural elements is welcomed, the proposal for a right to a healthy environment remains high level and aspirational in the absence of clear timetables and commitments to implementation. While these will not be detailed in the Bill, a requirement to publish plans and periodic monitoring reports will help to evidence and demonstrate progress towards ‘progressive realisation’ (as proposed at Q23 and Q24 of the consultation).

The right to a healthy environment should be set in context of the five environmental principles at S13 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021.

For the procedural element to be fulfilled, rights must be enforceable in a court of law, with appropriate mechanisms in place to effectively hold public bodies and polluters to account. Full compliance with Aarhus Convention including access to justice requires a more joined-up approach than currently proposed. Establishment of a dedicated Scottish Environment Court will increase access to justice, address the current fragmentation in routes to remedy, and develop judicial expertise to improve effectiveness and efficiency.

(Response ends)

Proposals for Wildlife Management – consultation response to Scottish Government

This (relatively short) consultation paper sets out proposals for licensing of grouse moor management with revised controls over muirburn and various forms of trapping. These are not new issues; there’s been ongoing debate over the years and a disappointing failure especially to prevent illegal persecution of raptors. The proposal to introduce a licensing system is an attempt to regulate this form of rural land management, which has become increasingly intensive over recent decades. My response to the consultation is as follows (extracts from the consultation paper in italics, for clarity):

Section 1 – Licensing of Grouse Shooting

The Scottish Government is proposing a licensing scheme for the taking of grouse. 

Purpose of the scheme

The main purpose of the proposals to license grouse shooting is to address the on-going issue of wildlife crime and in particular persecution of raptors on grouse moors.  It will do this by enabling the application of a meaningful civil sanction regime for offences against wild birds and other specified wildlife crimes.

More details can be found in “Part 1: Licencing of Grouse Shooting”” of our consultation paper.

Q1. Do you agree that the licensing of grouse shooting should be introduced to deter raptor persecution and wildlife crime linked to grouse moor management? (Yes/ No/ Unsure)

Yes

Q2. If you answered ‘No’ to question 1, please state what other option/s you think we should consider (max 150 words).

If you answered ‘No’ to question 1, please give us your views

Q3. Do you agree that the landowner/occupier/person responsible for or accountable for the management decisions and actions should be responsible for acquiring and maintaining the licence for the taking of grouse on a particular piece of land? (Yes/ No/ Unsure)

Yes

Q4. If you answered ‘No’ to question 3, please state what other option/s you think we should consider (max 150 words).

If you answered ‘No’ to question, please give us your views

Q5. Do you think that the person wishing to shoot grouse on land that they do not own, or occupy, should be required to check that the person who owns the land has a licence which allows for the taking of grouse on that area of land? (Yes/ No/ Unsure)

Yes

Q6. If you answered ‘No’ to question 5, please state what other option/s you think we should consider (max 150 words).

If you answered ‘No’ to question 5, please give us your views

Q7. If we introduce a licensing scheme, do you agree that NatureScot should be the licensing authority? (Yes/ No/ Unsure)

Yes

Other body (please specify)

Q8. Do you think that a licence should be granted for a maximum period of one year (renewable on an annual basis thereafter)? (Yes/ No/ Unsure)

Yes

Q9. If you answered ‘No’ to question 8, please state what other option/s you think we should consider (max 150 words).

If you answered ‘No’ to question 8, please give us your views

Q10. Do you think that the civil rather than the criminal burden of proof is an acceptable test for the application of sanctions in relation to grouse moor licences?

[Please note that a civil standard of proof would require NatureScot to base their decision on the ‘balance of probabilities’ whereas a criminal standard of proof requires satisfaction ‘beyond reasonable doubt’.] (Yes/ No/ Unsure)

Yes

Q11. If you answered ‘No’ to question 10, please state what other option/s you think we should consider (max 150 words).

If you answered ‘No’ to question 10, please give us your views

Q12. Do you agree that record keeping or reporting requirements should be part of the licence conditions?

[Please note that record keeping would involve noting down the activities carried out under the licence (e.g. the number of days on which grouse shooting took place, the number of grouse shot on each day, types of predator control undertaken, etc.) and providing these if/when they are requested. Reporting requirements would involve the active reporting of activities carried out under the licence on a regular basis.]

Record KeepingYes

Reporting RequirementsYes

Neither

Unsure

Q13. If you answered ‘neither’ to question 12, please outline why you believe this (max 150 words).

If you answered ‘Neither’ to question 12, please give us your views

Q14. Do you agree that, where a person holds a valid licence, and there is sufficient evidence to show that, on the balance of probabilities a wildlife crime has been committed on their property, NatureScot should have the power to impose the following penalties:

  • Issue a written warning
  • Temporarily suspend a licence
  • Permanently revoke a licence

(Yes/No/Unsure)

Yes

Q15. If you answered ‘no’ to question 14, please outline why you believe this (max 150 words).If you answered ‘No’ to question 14, please give us your views

Q16. Please provide any further comments on the questions in this section here.

Grouse moor management has been given every opportunity to demonstrate responsible self-regulation and to tackle the long term sustainability of the practice. Failure to show significant progress makes licensing, along the lines explored in the Werritty Report, inevitable. Any licensing system needs to be robust enough to provide effective oversight of what is happening on the ground and, hopefully, to encourage improved working practices. All the elements above (Q1, 3, 5, 7, 8, 10, 12 and 14) are required to achieve this.

The licensing system will have cost implications for the licensing body, which should be recouped as one of the expenses of grouse moor management.

Grouse moor management has gradually become an intensive form of land use on some of our most sensitive upland landscapes, with damaging ecological consequences. The growing need to mitigate climate change is another reason to rethink the forms of land management compatible with the wider public interest in these upland areas.

Section 2 – Muirburn – Scottish Government Proposals

The Scottish Government intends to implement the recommendations of the Werritty review which stated:

“That muirburn should be unlawful unless carried out under a licence.

  • That muirburn should be subject to increased legal regulation
  • This should apply to all muirburn, not only on grouse moors.”

We are also proposing a statutory ban on muirburn on peatland (to be defined as peat of a depth of 40cm or more) unless it is part of an approved habitat restoration programme, to protect public safety (e.g. reduce the risk of wildlife) or for the purpose of research.

We propose that the approach outlined above is consistent with precautionary principle in this matter. However, recognising that the scientific evidence on the impacts of muirburn is currently contested and that the management of peatland is a highly important aspect of Scotland’s net-zero target, we propose that the Bill should contain powers to modify the regulation of muirburn in the future, as the scientific evidence base develops. 

More details can be found in “Part 2: Muirburn” of our consultation paper.

Q17. Currently a licence is only required to undertake Muirburn outwith the Muirburn season. Do you agree that a licence should be required to undertake Muirburn regardless of the time of year that it is undertaken? (Yes/ No/ Unsure)

Yes

Q18. If you answered ‘No’ to question 17, please outline why you believe this (max 150 words):

If you answered ‘No’ to question 17, please give us your views

Q19. If we introduce a licensing scheme, do you agree that NatureScot should be the licensing authority? (Yes/ No/ Unsure)

Yes

Q20. Do you agree that there should be a ban on muirburn on peatland unless it is done under licence as part of a habitat restoration programme approved by NatureScot? (Yes/ No/ Unsure)

Yes

Q21. Other than for habitat restoration, public safety (e.g. fire prevention), and research, are there any other purposes for which you think muirburn on peatland should be permitted? (Yes/ No/ Unsure)

No

Q22. Do you agree that the definition of peat set out in the muirburn code should be amended to 40 cm? (Yes/ No/ Unsure)

Unsure

Q23. If you answered ‘No’ to question 22, please outline why you believe this (max 150 words):

Please give us your views

The case against muirburn on deep peat for any reason is strong, however the threshold of 50cm is arbitrary and originates, I understand, from the basis on which peatland has previously been mapped by the James Hutton Institute, among others. But a reduction in the threshold to 40cm, or even 30cm, would still permit damaging muirburn on large areas of peaty soils. The urgent need for measures mitigating against climate change suggest that routine muirburn on peatland of any depth should be discouraged. There’s enough of a challenge controlling wildfires in our uplands; it can be argued that permitting deliberate muirburn, even within the terms of the muirburn code, makes this challenge more difficult.

Q24. Please provide any further comments on the questions in this section here.

The practice of deliberate muirburn is not restricted to grouse moor management, although perhaps this is where it is most prevalent. Taking a long view, across recent centuries, there’s good evidence that repeated burning has impoverished our upland soils and vegetation, with damaging ecological consequences. These are hard to see, because throughout our lifetimes the hills have been bare. There’s even a perception that such bare hills are natural, contradicted by comparisons with similar areas in Scandinavia. We urgently need a strategic rethink about land management in our upland areas, so as to tackle the climate and biodiversity emergency we are facing and begin to ‘bend the curve’ in favour of nature recovery.

Section 3.1 Wildlife Traps – Scottish Government Proposals

The Scottish Government accepted this recommendation, committing to amend legislation to strengthen the use and monitoring of traps.

To fulfil this commitment, we are proposing to make it a requirement that anyone must satisfy certain conditions if wishing to use the following types of traps:

  • Live capture bird traps;
  • Live capture mammal traps (except for traps that are used or intended to be used to capture mammals in indoor settings); and
  • Traps regulated by the Spring Traps Approval Order (STAO)

The conditions to be met are as follows:

  • complete training by an approved body (list of approved bodies to be determined by NatureScot);
  • register with NatureScot for a unique ID number;
  • display this unique ID number on each trap they use using a non-transferable ID tag or another other form of permanent ID marking;
  • undergo refresher training every 10 years; and
  • keep a record of the traps they deploy and make those records available to Police Scotland if requested.

More details on this can be found in “Part 3.1: Trapping and snaring” of our consultation paper.

Q25. The Scottish Government proposes that a person operating a wildlife management trap must apply for a unique identification number which they must then attach to any traps that they set outdoors, do you agree that this proposal should apply to (select all that apply):

Live capture traps for birds – Yes

Live capture traps for mammals (except rodents) – Yes

Traps listed in the Spring Trap Approval Order – Yes

Rodent kill traps – Yes

Live capture traps for rodents – Yes

None of the above

Unsure

Other Traps (please specify)

Q26. The Scottish Government proposes that a person operating a wildlife management trap outdoors must successfully complete an approved course dealing with the relevant category of trap, do you agree that this proposal should apply to (select all that apply):

Live capture traps for birds – Yes

Live capture traps for mammals (except rodents) – Yes

Traps listed in the Spring Trap Approval Order – Yes

Rodent kill traps – Yes

Live capture traps for rodents – Yes

None of the above

Unsure

Other Traps (please specify)

Q27. This question should only be answered if you agree that training should be required for at least one of the traps listed in question 26. The Scottish Government proposes that a person operating a wildlife management trap outdoors must undergo refresher training every 10 years, do you agree that this proposal should apply to: (select all that apply)

Live capture traps for birds – Yes

Live capture traps for mammals (except rodents) – Yes

Traps listed in the Spring Trap Approval Order – Yes

Rodent kill traps – Yes

Live capture traps for rodents – Yes

None of the above

Unsure

Other Traps (please specify)

Q28. Do you agree that record keeping and reporting requirements should be part of the registration scheme?

[Please note that record keeping would involve noting down the activities carried out under the licence (e.g. the number of days on which grouse shooting took place and the number of grouse shot on each day) and providing these if/when they are requested. Reporting requirements would involve the active reporting of activities carried out under the licence on a regular basis.]

Record KeepingYes

Reporting RequirementsYes

Neither

Unsure

Q29. Do you agree that an individual found guilty of the offence of:

  • using a trap without valid training from an approved body
  • using a trap without being registered to do so
  • using a trap without displaying an identification number correctly on the trap
  • falsifying records or identification number
  • using a trap on land without landowner permission
  • failing to comply with the duty to keep trapping records

should be liable, on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both). A level 5 fine is currently £5,000. (Yes/ No/ Unsure)

Yes

Q30. If you answered no to question 29 please explain the reason for your answer (max 150 words):

Q31. Please provide any further comments on the questions in this section here.

Control of ‘predators’ is an important issue which goes well beyond the grouse moor management which is the focus of this consultation. It is argued, for example, that such control is necessary to protect breeding wading birds such as curlew, yet these species co-existed for centuries before humans massively modified the landscape. Any resulting imbalance between predators and other species need very careful research (some of which is taking place) before this can be properly understood and management actions prescribed. However, it is certainly plausible that numbers of crows, foxes etc are artificially high due to availability of prey species such as pheasants, bred and released annually in huge numbers.

Section 3.2 Glue Traps – Scottish Government Proposals

The Government has accepted the recommendations of the SAWC report on the use of rodent glues traps in Scotland

We are proposing introducing a comprehensive ban on the use of glue traps by both members of the public and professional pest controllers. 

We are also proposing introducing a ban on the sale of rodent glue traps in Scotland, provided that this can be achieved under the terms of the Internal Market Act, which was brought in by the UK Government in 2020.

In-line with the recommendations made by the SAWC that there should be an outright ban on the use and sale of glue traps we are not proposing to the introduction of a licensing regime for professional pest controllers.

We are proposing that there will be a 2 year transition period between the legislation being passed and the ban on the use (and sale) of glue traps coming into force.  This is to allow a reasonable period for businesses who use and sell glue traps to develop, trial and source alternative methods of rodent control.

More details on this are available in the section on “3.2 Glue Traps” in our consultation document.

32. Do you agree that the use of glue traps designed to catch rodents should be banned in Scotland? (Yes/ No/ Unsure)

Yes

33. Do you agree that the sale of glue traps designed to catch rodents should be banned in Scotland? (Yes/ No/ Unsure)

Yes

34. Do you agree that there should be a two year transition period before the ban on glue traps comes into force? (Yes/ No/ Unsure)

No

35. Please provide any further comments on the questions in this section here.

Glue traps are indiscriminate and should be banned without delay.

Section 3.3 Snares

The Scottish Government is proposing to implement the recommendations of the 2017 Snaring Review. This involves the following legislative amendments:

  • “the Scottish Government to consider the merit of amending legislation to require operators to update records at least once every 48 hours unless they have a reasonable excuse not to do so, and to submit records to the Police on demand if the Police arrive at the location where the records are kept, or within 7 days to a police station.
  • “Furthermore that consideration is given to the introduction of the power of disqualification for a snaring offence, in line with section 1 of the WCA regarding the use of general licences to control birds.
  • “Consideration should also be given on how a strengthened Code of Practice can be better endorsed through legislation in a manner comparable with how the WANE (Scotland) Act 2011 (section 15) applies the Code of Practice for Non-Natives.”

A disqualification order can stop you from owning, keeping, selling, transporting or working with animals or running a service which involves being in charge of animals.

As recommended by the Statutory Snaring Review Group, the Scottish Government is currently undertaking a wider review of snaring which will consider the wider welfare implications of snaring included whether there should be a ban on the use of snares.

Depending on the outcome of the wider snaring review we may undertake further consultation on additional proposals to amend the legislation governing the use of snares, at a later date.

More details on this can be found in the section on “3.3 Snaring” of our consultation paper.

Q36. Do you agree with the recommendations from the statutory review of snaring that operators should be required to update their records at least once every 48 hours, unless they have a reasonable excuse not to and that these records should be made available to the Police on demand if the police arrive at the location where the records are kept, or within 7 days to the police station? (Yes/ No/ Unsure)

Yes

Q37. Do you agree that a power of disqualification should be introduced for snaring offences?

A disqualification order can stop you from owning, keeping, selling, transporting or working with animals or running a service which involves being in charge of animals. (Yes/ No/ Unsure)

Yes

Q38. Please provide any further comments on the questions in this section here.

Snares are indiscriminate and should be banned without delay. However, in the meantime it’s important that snaring is conducted in a way which minimises harm, and the measures proposed here might help to achieve this.

Proposals for a new Agriculture Bill – Consultation Response to Scottish Government

As a result of Brexit, the UK is no longer tightly bound to the EU Common Agriculture Policy (CAP). Farm policy is devolved, so the Scottish Government is developing a new approach. In the meantime, the existing CAP support measures remain in place, providing the basis for the huge annual payments examined in other posts1. These currently stand at around £750m per annum, including direct and indirect payments to farmers and crofters. The Scottish Government has embarked on extensive consultations with the sector, involving a number of ‘farmer-led groups’ overseen by an ‘ Agriculture Reform Implementation Oversight Board’2. The resulting proposals require new legislation, hence this large (and rather unwieldy) consultation with more than 70 separate questions to consultees. I didn’t attempt to answer all of them, since some topics are getting beyond my core interest in rural land management, but illustrate the massive complexity of the underlying issues. Overall, I thought the consultation tackled the right issues, but the proposals seem disappointingly similar to the previous Basic Payments System. In my view, this hands over far too much of the available support with far too little in terms of public benefit. The responses I submitted are as follows:

[Extracts from consultation paper text in italics for clarity]

The proposals for the new Agriculture Bill aim to provide an adaptive framework to respond to future social, economic, and environmental changes, challenges and opportunities.

This approach also enables tailored provisions and support to be implemented through secondary legislation and potentially adapted on a regular basis as required. This will enable specific targeted support to be adaptable to the future challenges and uncertainties, including climate impacts and market changes, whilst reinforcing our commitment to continue to support the agricultural industry.

The new Agriculture Bill aims to enable flexibility whilst ensuring that Scotland’s people are able to live and work sustainably on our land and this framework will deliver key outcomes:

  • high quality food production
  • climate mitigation and adaptation
  • nature restoration
  • wider rural development

For each of these proposals for the new Agriculture Bill, there are a number of questions to determine whether respondents agree with the aim of the proposal; agree with the suggested method to achieve that aim; have any alternative proposals for achieving the aim; and have any comments on the potential impacts of the proposals.

This consultation is split into 6 parts to reflect the proposals that the Scottish Government is considering for possible inclusion in the new Agriculture Bill. Each of these proposals will assist in the delivery of the Vision. These parts are:

    Future Payment Framework – Proposals

    The Future Support Framework proposes mechanisms should be incorporated into the new Agriculture Bill to enable conditional payments under 4 tiers:

    • Tier 1 – a ‘Base Level Direct Payment’
    • Tier 2 – an ‘Enhanced Level Direct Payment’
    • Tier 3 – an ‘Elective Payment’
    • Tier 4 – ‘Complementary Support’

    Tier 1 and 2 would sit under the one umbrella of direct payments, acknowledging the need to ensure that conditions are fitted to the variance of Scottish agriculture, and Tiers 3 and 4 would be indirect payments. 

    Q1. Do you agree with the proposal set out above, in relation to the Agriculture Bill including a mechanism to enable payments to be made under a 4 tiered approach? (Yes/ No/ Don’t Know – please give reasons)

    Don’t Know – Pillar 1 and 2 payments to farmers and crofters, currently exceeding £500m per annum across Scotland, outstrip all other forms of direct support for rural land management put together, while also making up a substantial proportion of net farm income (around 40% of net value added – Economic Report on Scottish Agriculture). Many farm businesses, even some whole sectors (notably livestock farming in the hills and uplands), would simply not be viable without these annual payments.  So the way these funds are deployed is of huge consequence. While they provide appreciated socioeconomic support, it can also be argued that funding on this scale has been a key driver enabling rural land management’s contribution to the damaging practices creating our climate and biodiversity emergency.

    Scottish Government endorsed the Leaders Pledge for Nature, a “commitment to urgent and transformational actions to address biodiversity loss”. The influence of rural land management and the scale of these payments makes them a foundation for practical action to meet this commitment.

    Although the debate leading up to these proposals has hinted at this among key elements defining a wider public interest and justification in providing agricultural support, it seems extraordinary that these emerging proposals are so similar to the basic payments system currently in place.

    It does not seem likely that these proposals are bold enough to drive the transformation of rural land management required to achieve the key Outcomes, at least unless any tiered payments are conditional on delivery of sufficiently high standards to achieve ‘transformation’. For example, in the current system, around £140m of annual direct ‘greening’ payments apparently achieve no identifiable benefit. Such tokenism does not set a good precedent and would not seem to be a good use of public money.

    How will the new approach do better? Some assurance on this is urgently required. The Vision is right to assert that “it is necessary to ensure Scottish farmers and crofters have security of income and have the mechanisms in place to enable their activities to be rewarded” and “to ensure these mechanisms are flexible to emerging social, economic and environmental priorities”. The latter, especially, requires a transparent and responsive ongoing process engaging a range of stakeholders which has not yet been spelled out. Farmer-led groups are a small step in the right direction, but too narrow to meet these wider aspirations.

    Q2. Do you agree that Tier 1 should be a ‘Base Level Direct Payment’ to support farmers and crofters engaged in food production and land management? (Yes/ No/ Don’t Know – please give reasons)

    Don’t Know – Any support to farmers and crofters from limited public funds must be conditional on land management achieving defined standards of husbandry and stewardship supporting all four key Outcomes – public funds for public goods. All businesses in receipt of public support should be required to meet such standards. However, the numerous valid components of such conditionality (as listed in the proposal above) show the risk of creating a bureaucratic nightmare of paperwork which would fail to achieve the desired outcomes.

    The focus here should be on how these multiple factors and stakeholders can be reconciled in a proportionate way, rather than this focus on the resulting ‘base level’ payment tier which implies an unjustified degree of entitlement over conditionality.

    Q3. Do you agree that Tier 2 should be an ‘Enhanced Level Direct Payment’ to deliver outcomes relating to efficiencies, reducing greenhouse gas emissions and nature restoration and enhancement? (Yes/ No/ Don’t Know – please give reasons)

    Yes – I agree there must be scope for enhanced direct payments linked to commitments to deliver efficiencies, reduce greenhouse emissions and restore losses of biodiversity. More explanation is required to clarify how such payments are justified above and beyond the land management standards forming conditions for any tier 1 direct payments.

    Q4. Do you agree that Tier 3 should be an Elective Payment to focus on targeted measures for nature restoration, innovation support and supply chain support? (Yes/ No/ Don’t Know – please give reasons)

    Yes – I agree there should be scope for further payments linked to commitments to even higher ambition. More explanation is required to clarify how such payments are justified over and above the standards required for tier 1 and tier 2 payments.

    Q5. Do you agree that Tier 4 should be complementary support as the proposal outlines above? (Yes/ No/ Don’t Know)

    If so what sort of Complementary Support do you think would be best to deliver the Vision? (Please give reasons)

    Yes – As budgets for staffing of public bodies have been cut back over the years, there has been a regrettable focus on ‘enforcement’ of a rule-based approach to the detriment of encouragement of good husbandry and stewardship. Enhanced and secure funding for a farm advisory service would help to counter this trend, but realistically there also needs to be a greater emphasis on fostering self help through enhanced support for local group actions.

    Q6. Do you agree that a ‘Whole Farm Plan’ should be used as eligibility criteria for the ‘Base Level Direct Payment’ in addition to Cross Compliance Regulations and Greening measures? (Yes/ No/ Don’t Know – please give reasons)

    Yes – A ‘whole farm plan’ may be the best term to describe the package of conditionality defining eligibility, however there’s a key challenge to devise an approach which is proportionate while delivering tangible outcomes.

    Q7. Do you agree that the new Agriculture Bill should include a mechanism to help ensure a Just Transition? (Yes/ No/ Don’t Know – please give reasons)

    Yes – In principle this seems right, although it isn’t clear what form such a mechanism might take. It is essential to avoid slogans or token gestures which raise expectations without clearly defining practical support for land managers to whom this is applied. Many of the elements making up a Just Transition are touched on elsewhere in these proposals (ie rural support measures that foster a farm sector that more directly and explicitly supports our climate and environmental ambitions, in a way that is fair and leaves no one behind). Perhaps a mechanism to help ensure a Just Transition is simply the complete implementation of all these proposals.

    Q8. Do you agree that the new Agriculture Bill should include mechanisms to enable the payment framework to be adaptable and flexible over time depending on emerging best practice, improvements in technology and scientific evidence on climate impacts? (Yes/ No/ Don’t Know – please give reasons)

    Yes – While there are merits in such flexibility included in the proposed Bill, it is essential that this is not simply open-ended, because then it becomes impossible to assess progress against the key outcomes. Any such flexibility must be defined in terms of an open and transparent process to be followed, engaging stakeholders and providing a clear evidence base for change.

    Q9. Do you agree that the new Agriculture Bill should include mechanisms to enable payments to support the agricultural industry when there are exceptional or unforeseen conditions or a major crises affecting agricultural production or distribution? (Yes/ No/ Don’t Know – please give reasons)

    Yes – In principle this must be right, but the use of such mechanisms must be clearly circumscribed to make sure they are used only in exceptional circumstances and for a short time. Longer term difficulties should be addressed through the flexibility measures proposed in the previous question.

    Climate Change Adaptation and MitigationProposals

    To deliver the Vision and “emission reductions in line with our climate targets” we propose:

    The new Agriculture Bill should include powers and other mechanisms to allow future payments to farmers, crofters and land managers to support delivery of national climate change mitigation objectives (including the statutory economy-wide greenhouse gas emissions reduction targets and duties set in the Climate Change (Scotland) Act 2009).

    The new Agriculture Bill should include powers and other mechanisms to allow future payments to farmers, crofters and land managers to support delivery of national climate change adaptation objectives (e.g. building resilience to relevant risks identified in statutory Climate Change Risk Assessments).

    The new Agriculture Bill should include a mechanism to enable payments to be made that are conditional on outcomes that deliver climate mitigation and/or adaptation measures, along with targeted elective payments.

    The new Agriculture Bill should include a mechanism to enable payments to be made that support integrated land management, such as for peatland and woodland outcomes on agricultural holdings, in recognition of the environmental, economic and social benefits that it can bring.

    Q10. Do you agree with the proposal set out above, in relation to the new Agriculture Bill including measures to allow future payments to support climate change mitigation objectives? (Yes/ No/ Don’t Know)

    Do you have any views on specific powers and/or mechanisms that could support such alignment? (Please give reasons)

    Yes – It is essential that the new Agriculture Bill has the scope to embrace the many factors bearing on rural land managers, as summarised in the four key Outcomes. Payments to support climate change mitigation must be part of this, without which the target to secure a one third reduction in carbon emissions over the next decade cannot be achieved. But greater clarity is required on how this reduction will be achieved, so that limited resources can be focused for maximum benefits. Which sectors, what land management changes, are most affected? Only then can funding mechanisms be best designed and implemented.

    Q11. Do you agree with the proposal set out above, in relation to the new Agriculture Bill including measures to allow future payments to support climate change adaptation objectives? (Yes/ No/ Don’t Know)

    Do you have any views on specific powers and/or mechanisms that could support such alignment? (Please give reasons)

    Yes – For adaptation as for mitigation, it is essential that the new Agriculture Bill has the scope to embrace the many factors bearing on rural land managers, as summarised in the four key Outcomes. Payments to support climate change adaptation must be part of this, so as to secure better resilience. But greater clarity is required identifying the priorities for better resilience in rural land management, so that limited resources can be focused for maximum benefits. Which sectors, what land management changes, are most affected? Only then can funding mechanisms be best designed and implemented. Building, for example, on the Farming for a Better Climate initiative is one worthwhile way to bring this about, yet activity on this appears to have tailed off during 2022. Has funding support been curtailed, or redirected to a new priority?

    Q12. Do you agree with the proposal set out above, in relation to the new Agriculture Bill including a mechanism to enable payments to be made that are conditional on outcomes that support climate mitigation and adaptation measures, along with targeted elective payments? (Yes/ No/ Don’t Know – please give reasons)

    Yes – It’s important to be sure that all payments are aligned with all four key Outcomes, avoiding competing and contradictory results.

    Q13. Do you agree with the proposal set out above, in relation to the new Agriculture Bill including measures that support integrated land management, such as peatland and woodland outcomes on farms and crofts, in recognition of the environmental, economic and social benefits that it can bring? (Yes/ No/ Don’t Know – please give reasons)

    Yes – Alignment of these multiple objectives is essential to achieve balanced progress across all four key Outcomes.

    Delivery of Key Outcomes – Nature Protection and RestorationProposals

    To deliver the Vision and “contribute to the restoration of nature through biodiversity gain” we propose:

    We propose the new Agriculture Bill should include powers and mechanisms to protect and restore biodiversity, support clean and healthy air, water and soils, contribute to flood risk management locally and downstream and create thriving, resilient nature.

    The new Agriculture Bill should include a mechanism to enable payments that are conditional on outcomes that deliver nature restoration, maintenance and enhancement, along with targeted elective payments.

    That the new Agriculture Bill should include a mechanism to enable and support action on a catchment or landscape scale.

    Q14. Do you believe the new Agriculture Bill should include a mechanism to protect and restore biodiversity, support clean and healthy air, water and soils, contribute to reducing flood risk locally and downstream and create thriving, resilient nature? (Yes/ No/ Don’t Know – please give reasons)

    Yes – A mechanism along these lines is essential because rural land management has such a key role in tackling and resolving our combined climate and nature emergency. The provisions of the Agriculture Bill must provide practical support for delivery of Scotland’s Biodiversity Strategy. A sectoral approach would be impractical and risk waste of limited resources where it resulted in competing measures. Farmers and crofters deserve a joined-up approach which provides clear signals and support for their efforts, so working to achieve our collective wellbeing.

    Q15. Do you believe the new Agriculture Bill should include a mechanism to enable payments that are conditional on outcomes that support nature maintenance and restoration, along with targeted elective payments? (Yes/ No/ Don’t Know – please give reasons)

    Yes – It’s really important that payments addressing different priorities across the four key Outcomes are aligned to avoid wasted resources through competition or failure to recognise connections. All payments must support delivery of all four key Outcomes.

    Q16. Do you believe the new Agriculture Bill should include a mechanism to enable landscape/catchment scale payments to support nature maintenance and restoration? (Yes/ No/ Don’t Know – please give reasons)

    Yes – It’s important that payments are not thought of only in context of an individual farming or crofting business.  The combined effect of payments across landscape and catchments can reinforce joined-up delivery of key Outcomes and sometimes judicious wider resource commitments can help foster understanding of landscape or catchment land management opportunities.

    Delivery of Key Outcomes – High Quality Food ProductionProposals

    To deliver the Vision of “high quality, nutritious food locally and sustainably produced is key to our wellbeing – in economic, environmental, social and health terms. We will support and work with farmers and crofters to meet more of our own food needs sustainably and to farm and croft with nature.”  We propose:

    Giving powers to make changes to rules related to food – Further rules on common market organisation (e.g. marketing standards and trade descriptions) are contained in Scottish Statutory Instruments and retained EU law. The CMO ( was partially replaced and amended by the Agriculture (Retained EU Law and Data) (Scotland) Act 2020 (“the 2020 Act”). Now that the UK has left the European Union there has been the opportunity to see how powers need to be used in practice. As a result of this, some technical fixes are necessary to allow Scottish Ministers to readily amend retained EU law and related legislation on common market organisation in the area of food and drink.

    Continuing to provide current support re. food – Furthermore, adjustments may be necessary to the nature of the support to enable the Scottish Government to deliver wider objectives while reflecting current circumstances. For example, there may be opportunities to tailor support to the Scottish context while maintaining the objective of EU alignment, in order to produce more of our own fruit, vegetables, and horticulture products; assist the apiculture programme; support the circular economy; or meet our climate change and biodiversity targets. Similarly there may be changes to support schemes at an EU level which Scotland wishes to consider as part of its policy of alignment. Therefore we propose that Scottish Ministers should have powers to amend the CMO regulations and to take appropriate measures to provide support to relevant sectors in the future.

    Giving new powers to support the agri-food sector – The Agriculture Bill should include a mechanism to enable payments which help deliver food production and, where appropriate, to provide grants to support both the agri-food sector and to bodies related to the agri-food sector in connection with:

    • Agri-food sustainability
    • Agri-food efficiency
    • Agri-food co-operation
    • Agri-food industry development
    • Agri-food education 
    • Agri-food processing
    • Agri-food marketing

    Giving reserve powers to support the agri-food sector – The new Agriculture Bill should include a power to declare when there are exceptional or unforeseen conditions adversely affecting food production or distribution, and the ability to provide financial assistance, if necessary, to the agri-food sector and related bodies whose incomes are being, or are likely to be, adversely affected by the exceptional or unforeseen conditions described in the declaration.

    Q17. Do you agree that the powers in the Agriculture and Retained EU Law and Data (Scotland) Act 2020 should be extended to ensure Scottish Ministers have flexibility to better respond to current, post exit, circumstances in common market organisation and easily make changes to rules on food? (Yes/ No/ Don’t Know – please give reasons)

    Yes – Agree, however safeguards are required to ensure that the exercise of these powers is evidence-based and that this evidence is open to scrutiny. Ministers lines of accountability to Parliament must be explicit.

    Q18. Do you agree that Scottish Ministers should have powers to begin, conclude, or modify schemes or other support relevant to the agricultural markets? (Yes/ No/ Don’t Know – please give reasons)

    Yes – Agree, however safeguards are required to ensure that the exercise of these powers is evidence-based and that this evidence is open to scrutiny. Ministers lines of accountability to Parliament must be explicit.

    Q19. Do you believe the new Agriculture Bill should include a mechanism to enable payments that support high quality food production? (Yes/ No/ Don’t Know – please give reasons)

    Yes – The amount and purpose of any such payments must be transparent, enabling clarity of understanding of the benefits of using public funds for public good.

    Q20. Do you believe the new Agriculture Bill should include a mechanism to provide grants to support industry in the agri-food supply chain to encourage sustainability, efficiency, co-operation, industry development, education, processing and marketing in the agri-food sector? (Yes/ No/ Don’t Know – please give reasons)

    Yes – The amount and purpose of any such payments must be transparent, enabling clarity of understanding of the benefits of using public funds for public good.

    Q21. Do you believe the new Agriculture Bill should include powers for Scottish Ministers to declare when there are exceptional or unforeseen conditions affecting food production or distribution? (Yes/ No/ Don’t Know – please give reasons)

    Yes – Agree, however safeguards are required to ensure that the exercise of these powers is evidence-based and that this evidence is open to scrutiny. Ministers lines of accountability to Parliament must be explicit, indicating the basis on which such powers are required and for how long. Any such powers must be time-limited showing how and when ‘normal’ conditions are expected to be restored.

    Q22. Do you believe the new Agriculture Bill should include powers for Scottish Ministers to provide financial assistance to the agri-food sector and related bodies whose incomes are being, or are likely to be, adversely affected by the exceptional or unforeseen conditions described in the declaration referred to above? (Yes/ No/ Don’t Know – please give reasons)

    Yes – Agree, however the amount and purpose of any such payments must be transparent, enabling clarity of understanding of the benefits of using public funds for public good, are evidence-based and that this evidence is open to scrutiny. Ministers lines of accountability to Parliament must be explicit, indicating the basis on which such payments are required and for how long. Any such payments must be time-limited showing how and when ‘normal’ conditions are expected to be restored.

    Q23. Do you agree that the new Agriculture Bill should include the powers to process and share information with the agri-food sector and supply chains to enable them to improve business efficiency? (Yes/ No/ Don’t Know – please give reasons)

    Yes – Agree, however safeguards are required to ensure that the exercise of these powers is evidence-based and that this evidence is open to scrutiny. Ministers lines of accountability to Parliament must be explicit.

    Delivery of Key Outcomes – Wider Rural DevelopmentProposals

    To deliver the Vision and “ensure that Scotland’s people are able to live and work sustainably on our land” we propose to undertake a whole land approach which seeks to optimise the use of our wider natural assets in striving to meet our climate change targets while benefiting and empowering rural communities as a whole we propose:

    To make provision under the new Agriculture Bill to continue to provide the support to land-managers and communities who are undertaking and supporting economic activity related to land management including but not limited to agriculture.

    To enable Scotland to continue providing support for rural development – collaborative, partnership working; capacity building; support for innovation and engagement in local and policy development – we propose the new Agriculture Bill should provide Scottish Minster’s powers and other mechanisms to allow:

    • Activity in and financial support for rural development and the rural economy generally.
    • Activity related to the delivery of community led-local development to enable delivery of the principles identified above.
    • Activity in and financial support for collaboration and the sharing of information, ideas and good practice.
    • Activity in and financial support for innovation in agriculture, food production, forestry, and land management.  
    • Activity in and financial support for farmers, land managers, rural and island communities and stakeholders to influence policy developments.
    • Activity in and financial support for public access and the understanding of land use.

    Q24. Do you agree that the proposals outlined above should be included in the new Agriculture Bill? (Yes/ No/ Don’t Know – please give reasons)

    Yes – It’s important to avoid any loss of continuity with previous experience of support for rural development, maintaining active engagement of a wide range of stakeholders, while also giving scope to nurture new initiatives emerging in response to changing circumstances.

    Q25. Are there other areas relating to non-agricultural land management such as forestry that you would like considered for support under the Agriculture Bill to help deliver integrated land management and the products produced from it? (Yes/ No/ Don’t Know – please give reasons)

    Yes – Strong support is required to bring about a ‘whole land’ approach to rural land management, avoiding artificial or bureaucratic boundaries between different sectors and groups of stakeholders. Support for farmers and crofters is the largest programme, with implications for other sectors; careful alignment of expenditure across sectors (especially with forestry, biodiversity, access and recreation) will help to avoid contradictory and competing measures.

    Q26. What other powers may be required to enable rural development in Scotland’s rural and island communities? (Yes/ No/ Don’t Know – please give reasons)

    Yes – It isn’t clear how the work of the many public bodies involved fosters the best possible framework of support for Scotland’s rural and island communities. Too often, different public bodies pursue distinct priorities defined for Scotland as a whole without taking account of the combined effect of the resulting programmes for each locality. Statutory duties, eg to ‘have regard’ to each others responsibilities, are worthless without visible, ongoing collaboration and joint working. So a more explicit commitment or duty to this end would be valuable.

    Q27. What potential social, economic or other impacts, either positive or negative, would such powers have on Scotland’s rural and island communities? (Please give reasons)

    Rural Scotland, including the islands, face many universal challenges, for example health, housing, poverty and social inequality, which are also prominent in our main population centres. But in addition, rural Scotland is the site for additional challenges resulting from the climate and nature emergency which bear especially heavily on rural and island communities. This is mainly because there is more land (and sea) and fewer people. The scale of support for rural land managers, especially farmers and crofters, is hugely significant hence careful alignment of policy measures, effective collaboration between public bodies and the many stakeholders, both local and national is essential to make the most of limited resources. The positive impact of success will be progress towards the Government’s vision to “create a wellbeing economy: a society that is thriving across economic, social and environmental dimensions, and that delivers prosperity for all Scotland’s people and places”.

    Animal Health and Welfare

    Q28-30 not answered

    Plant Genetic Resources and Plant Health

    Q31-32 not answered

    Skills, Knowledge Transfer and Innovation

    Q33 – 36 not answered

    Administration, Control, and Transparency of Payment Framework DataProposals

    To deliver against the Vision and ensure that funding to support farming, crofting and land management is distributed based on sound financial management, budget principles, transparency and non- discrimination we propose that:

    The Scottish Ministers take the powers to set an annual and/or multi-annual budget to support the proposed future support framework (outlined above) and enable intervention for the purposes of supporting high quality food production, climate change mitigation and adaptation, and nature restoration.

    The Scottish Ministers take the power to set up an Integrated Administration and control System (IACS) which includes the following elements:

    • an identification system for agricultural parcels
    • a geo-spatial application system and, where applicable, an animal-based application system
    • an area monitoring system
    • a system for the identification of beneficiaries
    • a control and penalty system including recovery of payments where proportionate
    • a system for the identification and registration of payment entitlements
    • a system for the identification and registration of animals

    This proposal will improve the effectiveness and monitoring of support payments and allow Scottish Ministers to create further IACS for the purposes of improving support effectiveness.

    The Scottish Ministers take the power to collect information for the purposes of carrying out management, control, audit and monitoring and evaluation obligations and for statistical purposes, and shall not process that data in a way that is incompatible with those purposes. To allow for the measurement and reporting of key performance indicators which will help better inform future policy.

    The Scottish Ministers take the power to gain independent assurance that objectives are being met. This is to ensure that the support provided is within the scope of agreed conditions.

    The Scottish Ministers take the power to enable the publication of details pertaining to recipients who receive payments including under the future payment model (outlined above) and set a level above which payment details will be published. 

    Technical fixes to the Agriculture (Retained EU Law and Data) (Scotland) Act 2020 are necessary to extend the powers affected by section 5 to allow Scottish Ministers to amend retained EU law for CAP (Common Agricultural Policy) legacy schemes as needed to ensure their continued effective operation and regulation until they expire and also to ensure Scottish Ministers have flexibility to better respond to current, post EU exit, circumstances .

    Q37. Do you agree that Scottish Ministers should have the power to create a system that provides for an integrated database, to collect information in relation to applications, declarations and commitments made by beneficiaries of rural support? (Yes/ No/ Don’t Know – please give reasons)

    Yes – These are all essential components of a competent system of public administration.

    Q38. Do you agree that Scottish Ministers should have the power to create a system that collects and shares information for the purposes of carrying out management, control, audit and monitoring and evaluation obligations and for statistical purposes, subject to General Data Protection Regulation (GDPR) requirements? (Yes/ No/ Don’t Know – please give reasons)

    Yes – These are all essential components of a competent system of public administration.

    Q39. Do you agree that Scottish Ministers should have the power to share information where there is a public interest in doing so, and subject to complying with the General Data Protection Regulation GDPR? (Yes/ No/ Don’t Know – please give reasons)

    Yes – These are all essential components of a competent system of public administration.

    Q40. Do you agree that Scottish Ministers should have the power to create a system that provides a mechanism that aligns with the principles of the Scottish Public Finance Manual? [The Scottish Public Finance Manual’s principles are: (1) to ensure proper handling, reporting, and recovery (where appropriate) of public funds, (2) to prioritise the need for economy, efficiency, and effectiveness, and (3) to promote good practice and high standards of propriety] (Yes/ No/ Don’t Know – please give reasons)

    Yes – These are all essential components of a competent system of public administration.

    Q41. Do you agree that Scottish Ministers should have the power to create a system that provides the data required to undertake administrative checks on applications / claims made by beneficiaries for rural support? (Yes/ No/ Don’t Know – please give reasons)

    Yes – These are all essential components of a competent system of public administration.

    Q42. Do you agree that Scottish Ministers should have the power to create a system whereby on-the-spot-checks should be undertaken to further verify applications / claims made by beneficiaries for rural support? (Yes/ No/ Don’t Know – please give reasons)

    Yes – These are all essential components of a competent system of public administration.

    Q43. Do you agree that Scottish Ministers should have the power to create a system that would provide for cross compliance, conditionality that covers core standards in relation to sustainable environment, climate, Good Agricultural and Environmental Condition (GAEC), land, public and animal health, plant health and animal welfare, Soil health, carbon capture and maintenance? (Yes/ No/ Don’t Know – please give reasons)

    Yes – These are all essential components of a competent system of public administration.

    Q44. Do you agree that Scottish Ministers should have the power to create a system that provides a mechanism to support the delivery of practices aligned to receipt of elective payments, for targeted outcomes? (Yes/ No/ Don’t Know – please give reasons)

    Yes – These are all essential components of a competent system of public administration.

    Q45. Do you believe that Scottish Ministers should have the power to monitor and evaluate outcomes to ensure they meet the agreed purpose and help better inform future policy? (Yes/ No/ Don’t Know – please give reasons)

    Yes – These are all essential components of a competent system of public administration.

    Q46. Do you believe that Scottish Ministers should have the power to seek independent assurance that outcomes are delivered appropriately? (Yes/ No/ Don’t Know – please give reasons)

    Yes – These are all essential components of a competent system of public administration.

    Q47. Do you agree that Scottish Ministers should have the power to enable the publication of details pertaining to recipients who receive payments including under the future payment model (outlined above) and set a level above which payment details will be published? (Yes/ No/ Don’t Know – please give reasons)

    Yes – These are all essential components of a competent system of public administration.

    Q48. Do you agree that technical fixes should be made to the Agriculture and Retained EU Law and Data (Scotland) Act 2020 to ensure Scottish Ministers have all requisite powers to allow CAP legacy schemes and retained EU law to continue to operate and be monitored and regulated and also to ensure Scottish Ministers have flexibility to better respond to current, post exit, circumstances? (Yes/ No/ Don’t Know – please give reasons)

    Yes – These are all essential components of a competent system of public administration.

    Modernising Agricultural Tenancies

    Section 5 questions 49-58 not answered

    Scottish Agricultural Wages (Fair Work)

    Section 6 questions 59-60 not answered

    Assessing the Impact

    Section 7 questions 61-67 not answered

    The future for National Parks in Scotland: consultation response to NatureScot

    The agreement between the Scottish National Party and the Scottish Green Party includes a commitment to designate at least one new National Park in Scotland during the life of the present parliament. To this end, a consultation process began in summer 2022 with an ‘ideas challenge’1. This has been followed up with a more conventional consultation on the role and approach to National Parks, and how nominations for new National Parks could be evaluated2. My response to the Part One questions (on role and approach) are set out in this post, for the record. I didn’t answer the questions on the nomination process, since these were broadly as one might expect plus I felt the level of detail rather implied that the role and approach issues had already been settled.

    The role and purpose of National Parks is pretty contested territory, as illustrated by the diverse responses to the ideas challenge. Scotland was late to the party, with two National Parks designated soon after the millennium – England and Wales have had parks since the 1950s and the USA, at the other extreme, has had parks for over a century. Despite the shared name, these can be very different beasts. The ‘scene-setting’ paper from NatureScot helpfully includes an annex3 listing the internationally recognised IUCN classification showing that Britain’s parks are seen as ‘protected landscapes’ (Category 5), with a mix of private and public ownership and incorporating whole human communities. Multiple (not necessarily compatible) objectives are thus unavoidable, and the National Park Board becomes an arena in which the interaction of numerous stakeholders is played out.

    I felt the latest consultation muddies these waters even more, introducing ideas which don’t seem compatible with the basis on which Scotland’s two parks are operating. The next stages of the process promise to be interesting. Constructive tension, anyone?

    Section 1 – The Role of Scotland’s National Parks

    This section examines the role of National Parks in Scotland and sets out proposals for refreshing the approach to National Parks.

    At present, Scotland’s two National Parks  cover 7.2% of its land area  Establishing more National Parks will increase this total, bringing Scotland more in line with others parts of the UK (for comparison, the 10 English National Parks cover 9.3% of England and the 3 Welsh National Parks cover 19.9.% of Wales).  How do we enable the National Park designation to deliver more for each of these areas and Scotland as a whole?

    Contents

    • The role of National Parks
    • The statutory Aims of National Parks
    • Powers and Functions of National Park Authorities
    • Diversity in approach 

    2. The Role of National Parks (Q1-4)

    Scotland has ambitious targets and priorities to meet the challenges we face in tackling the climate and nature emergencies and we need to transform what we do, and how we do it, if we are to deliver them.  Scottish Ministers wish to see Scotland’s National Parks as places that will actively demonstrate nature recovery and the transformational change needed in our approach to land-use, providing leadership and showcasing a just transition to net zero in Scotland. 

    The establishment of one or more additional National Parks is therefore not only a goal in its own right, but must be seen in the context of a range of connected Scottish Government strategies and policies including:

    • National Strategy for Economic Transformation – including its ambition “to demonstrate global leadership to deliver a just transition to net zero nature positive economy and rebuilding natural capital”.
    • The Environment Strategy 2020 with its outcome that ‘Scotland’s nature is protected and restored with flourishing biodiversity and clean and healthy air, water, seas and soils’.
    • Delivery of vision and outcomes of the Scottish Biodiversity Strategy for 2030, to protect nature by 2030 and restore it by 2045 including:
      • Preventing any further species extinction and halting declines by 2030 and making significant progress in restoring the natural environment by 2045.
      • 30×30 – securing by 2030 that at least 30% of Scotland’s land and seas are managed for nature.
      • Nature Networks – ensuring every Local Authority area will have a nature network of locally driven projects to improve ecological connectivity.
      • Establishing a world leading suite of highly protected marine areas
    • Commitment to meeting carbon reduction targets and adapting to climate change through implementation of the Climate Change Action Plan by developing “thriving rural economies based around woodland creation, peatland restoration and biodiversity as well as sustainable tourism, food and drink and energy”;
    • Delivery of Scotland’s national planning frameworkland-use strategy and national marine plan, including the development of regional land-use partnerships and regional marine plans;
    • The development of new legislative proposals for land reform including the introduction of a public interest test for transfers of large-scale landholdings;
    • Implementation of Scotland’s vision for Responsible Tourism for a Sustainable Future in Scotland Outlook 2030 and its visitor management strategy; and the
    • Refresh of Our Place in Time – Scotland’s strategy for the historic environment.


    Scotland’s National Parks currently play a number of key roles that support many of these strategies and plans through demonstration and good practice.  In particular:

    • they help protect some of the very best of Scotland’s nature, landscapes and heritage;
    • they are at the forefront of landscape-scale action for nature restoration;
    • they are an important part of Scotland’s visitor offer and provide a range of outstanding opportunities for outdoor recreation and enjoyment of nature;
    • they are an important mechanism for land-use planning and the piloting of regional land-use partnerships; and
    • they provide exemplars of community engagement and sustainable development, including natural capital approaches.


    To build on this existing work and add greater emphasis to it, National Parks could be given a new overarching purpose “to lead nature recovery and a just transition to net zero”.  Key elements of leadership and action required in this role could include:

    • Promoting the need to do things differently and at greater pace if we are to make the changes needed to address the climate and nature emergencies;
    • Recognising that change is inevitable and that nature recovery should be inspired and informed by the past but not seek to simply replicate it;
    • Accelerating the transition in land and marine use needed to deliver climate mitigation and adaptation and nature recovery;
    • Testing and embedding natural capital approaches to growing a well-being and sustainable economy;
    • Generating opportunities for greater  private investment in natural capital;
    • Realising the just transition by championing reskilling and new employment opportunities to help ensure that no local community in the Park area is left behind;
    • Leading on improving ways of design and place making that achieve optimum outcomes for people, nature and landscapes.

    Question 1. Do you support “leadership of nature recovery and a just transition to net zero” becoming the overarching purpose of Scotland’s National Parks? If not, what else would you propose?

    No, I do not support this proposal. I’m not in favour of yet more rhetorical slogans lacking practical effect, especially this wording which seems far too broad, and has the disadvantage of lacking clear legal definition. So many things could be branded as ‘leadership’ or as ‘a just transition’.

    Our National Parks are not some over-arching banner, but rather have the core purpose to achieve the specific aims defined in Statute.  British National Parks are all focused on ‘protecting landscapes’ (as defined by IUCN Category 5) and none meet the IUCN National Park Category 2 definition of “large natural or near natural areas set aside to protect large-scale ecological processes” although land meeting the Category 2 definition may be required to achieve ‘nature recovery’ (some larger National Nature Reserves might better meet this requirement). The four aims defined in Statute show how ‘nature recovery’ in our Parks is inevitably compromised by considerations of land management, recreation pressures and local community viability. By design, ‘primacy of nature’ this is not.

    I’m not sure there’s anything so wrong with the established statutory aims as to justify their revision. But their diverse nature carries unavoidable requirements for cooperation and conciliation. In practice, Scotland’s two National Parks were established especially to help manage pressures from recreation and tourism which other structures (local authorities and public bodies such as NatureScot or Forestry and Land Scotland working through various non-statutory committees) found difficult. But when it comes to land management, for example, our two Parks have relatively minor roles to play compared especially to the public bodies supporting farming and forestry which have much greater powers, resources and long-standing stakeholder relationships. While a third National Park might have a different focus to its predecessors, it would be essential that any such new focus provided clear added value over any alternative.

    Question 2. Which of the proposed elements of leadership and action set out in the list above do you support? What others – if any – would you propose?

    In general terms, I support all seven bullet points as identifying action required, but it isn’t clear why they are applied specifically to a National Park. There’s a variety of national and local public bodies who are just as much challenged by these statements, and who have greater resources and powers to help address them.

    Question 3. What opportunities are there for National Parks to generate private investment in natural capital?

    It’s clear that the quantity of public money which has been, and is likely to be, made available falls well short of need in tackling the nature and climate emergencies across Scotland. So there has to be a role for private investment; to date this has been problematic because private investors have not been subject to comparable transparency and accountability. The risk is that private money is simply driven by private gain, sometimes at the expense of the wider public interest. So there’s an urgent need to clarify the terms of this wider public interest in private investments in our natural capital. With this greater clarity, National Parks may perhaps be able to exemplify a proper balance of public and private interests.

    Question 4. What role should local communities play in the National Park and how should National Park authorities work with and for them to secure a just transition?

    National Parks, of the kind we have in Britain, cannot succeed without active engagement of their local communities.  Scotland’s National Parks are exemplary in maintaining a line of local accountability through the election of local Board members, but this highlights the fact that the Parks were designated for their National significance and attract additional National funding which would otherwise not be available. Alignment of national and local interests and priorities may often be difficult, and the balance struck between them must always be open and transparent – that’s a key bargain driving access to these additional resources.

    3. The Role of National Parks (continued) (Q5-7)

    A national statement that sets out the Scottish “vision and mission” for National Parks could be useful to provide further clarity on the role of National Parks and to promote their work more widely.


    Question 5. Do you support a “vision and mission” for all of Scotland’s National Parks being clearly set out in a national statement? If not why not?

    Now that the terms of the 2000 Act are informed by two decades of experience, a new national statement could help clarify the role of our Parks.  Such a statement provides an opportunity to explain where the National Parks designation fits in to, and enhances, Scotland’s rather piecemeal framework of designations.

    There’s clearly a lack of consensus around what our National Parks are for, evidenced by the diverse responses to the ‘national discussion’ earlier this year. There was strong support, for example, for the idea of primacy of nature in National Parks, prioritising the protection and enhancement of biodiversity and ecosystem services. This idea is encouraged in the present consultation (for example “delivering more on the opportunities to restore nature as well protecting what exists already”, from the Scene setting paper), yet the present legislation does not provide such clarity of purpose. Our two National Parks lack the powers and resources to “maintain a working countryside”, despite this leading the list of key considerations in both cases. So some realism, yet ambition, in vision and mission would be welcome.

    Question 6. If you favour a national statement for Scotland’s National Parks being developed, what else should it cover?

    A national statement must set out a clear organisational framework for Scotland’s National Parks. Having our first two Parks as self-standing public bodies was pragmatic, but to continue in this way (with each new park creating yet another public body) risks greater confusion, especially if different parks develop distinct core purposes and priorities. As part of this, better clarity of the National Parks relationships with other public bodies and local authorities is required. Support for land management, for example, is dominated by farming (mainly RPID) and forestry (SF and FLS). Their shared purposes and relationships with National Parks are not explicit.

    Question 7. To what extent should new National Parks be about the future potential of an area for nature restoration as well as what’s currently in place

    This begs the question of the core purpose and priorities of any new National Parks. A primary focus on nature restoration may not be compatible with the multiple aims set out in Statute. Perhaps National Parks, on the Scottish model, may not be the best vehicle to achieve nature restoration (whereas for example a park meeting the IUCN Category 2 definition would be – perhaps designated as National Nature Reserves). A key issue here is the essential role of local communities; focus on nature restoration without their active support will fail, but we currently lack a clear path to reconcile local and national interests for example where national nature designations (SSSI, SAC, SPA etc) are determined and implemented centrally.

    4. The Statutory Aims of National Parks (Q8-10)


    National Park Aims are to:

    • conserve and enhance the natural and cultural heritage of the area; 
    • promote the sustainable use of the natural resources of the area; 
    • promote understanding and enjoyment (including enjoyment in the form of recreation) of the special qualities of the area; and
    • promote the sustainable social and economic development of the area’s communities.


    Where
    natural heritage” includes the flora and fauna of a National Park or a proposed National Park, its geological and physiographical features and its natural beauty and amenity.
    cultural heritage” includes structures and other remains resulting from human activity of all periods, language, traditions, ways of life and the historic, artistic and literary associations of people, places and landscapes.

    Section 9 (6) – In exercising its functions a National Park authority must act with a view to accomplishing the purpose set out in subsection (1); but if, in relation to any matter, it appears to the authority that there is a conflict between the National Park aim set out in section 1(a) and other National Park aims, the authority must give greater weight to the aim set out in section 1(a).

    National Parks (Scotland) Act 2000


    There should naturally be a close relationship between the “vision and mission” of National Parks and the statutory Aims of National Parks provided in the Act.  In covering environment, social and economic dimensions, the four statutory Park Aims currently provide the basis for Scotland’s integrated approach to National Parks.  While none explicitly refers to it, the Aims also enable National Parks to contribute to nature recovery and a just transition to net zero.

    Definitions of both the natural and cultural heritage are provided by the Act.  The latter was developed before 
    Our Place in Time, Scotland’s strategy for the historic environment, was written.  Further consideration may be needed on whether this definition should be updated to reflect this strategy and its implementation as well as experience of its application within National Parks.

    The National Park Authority is required to take forward each of the Aims in a joined-up way unless this is likely to lead to the detrimental loss of the natural heritage and cultural heritage of the area at which point it must give “greater weight” to this first Aim.  This “balancing duty” is essential to the protected area function of Scotland’s National Parks.

    While the current legislative approach has generally been seen as successful, a number of changes to these statutory Aims could be considered to further strengthen the focus and contribution of National Parks. Some of the possible broad options include:

    1. retaining the current status quo e.g. keeping the existing four Aims as currently worded;
    2. keeping the policy intention of each Aim unchanged but rewording them to better reflect the new vision and mission in the proposed national statement;
    3. keeping the four Aims but include a new overarching statutory purpose of National Parks to secure nature recovery and a just transition to net zero;
    4. adding additional aims e.g. “to promote the just transition to net zero” or “to  increase the accessibility of the areas for all”; and
    5. reducing the Aims to the first one only and change the other three Aims to duties, thus giving the National Park a much stronger, single statutory focus on the protection and enhancement of the natural and cultural heritage.

    Question 8. Are any specific changes to the existing four Aims required? If so why, and what are they?

    Experience has been, over the last two decades, that our National Parks have focused on development planning and recreation management. Their role in land management (and hence maintaining “a working countryside”) has been limited by resources and overshadowed by the larger influence of other national public bodies. I’m not aware of any external review of their performance in taking forward each of the four aims in a joined-up way. There’s no obvious requirement to change these Aims unless the proposed National Statement clarifies the mission for our National Parks.

    Question 9. Which of these possible options, or mix of possible options, do you think would help strengthen the focus and contribution of National Parks, and why?

    Of the five options, only the last provides greater clarity of purpose, but begs the question of how much sign-up there would be among the many stakeholders. Options three and four risk even greater confusion, potentially adding an ‘alphabet soup’ of additional jargon hindering overall clarity of purpose.

    Question 10. Are there other options that could be considered? If so, what are they?

    It isn’t helpful to be considering the vision and mission of National Parks in isolation.  The ‘national discussion’ earlier in the year revealed a diversity of perspectives and proposals, some of which might well be better handled in another way.  A statement clarifying where our National Parks fit in to a wider framework of countryside management (including measures addressing land management, development planning, sustaining local communities and protection of natural and cultural heritage) would add value.

    5. The Statutory Aims of National Parks (continued) (Q11-12)

    Other public bodies are also bound by these statutory Aims when they are exercising functions within a National Park through the duty on them “to have regard” to the Park Plan.


    Section 14 – The Scottish Ministers, a National Park authority, a local authority and any other public body or office-holder must, in exercising functions so far as affecting a National Park, have regard to the National Park Plan as adopted under section 12(7)(a).


    This wording does not itself require action by public bodies.  While the track record of partnership working by public bodies in National Parks is strong, issues can arise between policy objectives which may slow or block delivery of the Park Plan.  To address this, there may be a need to strengthen the effect of this duty so that public bodies exercising functions within a National Park are required to positively support delivery of National Parks Plans.
     


    Question 11. Do you think there should be any changes to the wording in the Act to require public bodies to support delivery of National Park Plans? If so, what would you propose?

    In the absence of any external review showing positive effects of this duty, it seems likely that such vague exhortations are ineffective. But other public bodies cannot be expected to support a Park Plan which cuts across their respective roles. The ‘have regard’ duty appears to be an empty gesture which fails to address the underlying tensions.

    Question 12. Do you have any other suggestions for improving partnership working to support the implementation of the National Park Plan by all?

    Other public bodies must exercise their distinct functions consistently across Scotland, and /or across a range of functions beyond the remit of a National Park, so the Park Plan can never itself be the sole reference point. Greater clarity of these interactions and relationships, how they are managed and how they bear upon implementation of the Park Plan, would help foster a sense of shared purpose.

    6. Powers and Functions of National Park Authorities (Q13-14)

    At present, the Act provides the following powers and functions to all National Park Authorities These include:

    • general powers of non-departmental government bodies (charges, advice, research, grant-aid; land acquisition and compulsory purchase etc.);
    • natural heritage functions of local authorities and NatureScot (for example for countryside management, ranger provision, nature reserves, compulsory purchase and grants etc.); and the
    • planning and access authority functions of local authorities.


    Through the designation order, these powers and functions can be further specified to meet the needs and circumstances of the area. 

    All National Park Authorities also have general powers to make bylaws and management rules in relation to the achievement of the National Park aims.  While not yet used, the legislation also contains unique powers for Scottish Ministers and public bodies to transfer their functions and powers to a Park body and vice versa.
     

    Question 13. Could any of the existing powers and functions be used more effectively? If so, which ones and how? There’s an unavoidable tension between a focus on joined-up working within the Park boundary and the need for coherent, consistent and effective management of various functions across a wider area, often extending to Scotland as whole. It is surely significant that the powers to transfer functions and powers to or from a Park body have never been used over two decades. Such powers must be used judiciously, if at all, bearing this in mind. But greater clarity of how these tensions can best be managed and resolved would be beneficial.

    Question 14. Are any of the existing powers or functions redundant or unnecessary? If so, which ones and why?

    There’s no evidence that removal or restriction of powers and functions would aid the effectiveness of National Parks in delivering their mission.

    7. Powers and Functions of National Park Authorities (continued) (Q15-16)

    To take forward a refreshed “vision and mission”, National Park Authorities may require strengthened or new powers and functions in relation to the following areas

    • Improving protection, enhancement and enjoyment of nature
    • Delivering Net Zero
    • Better management of land or sea
    • Funding
    • Community well-being and development

    Question 15. What, if any, changes to the powers and functions in these areas should be considered and why?

    In the absence of a clear National Statement for Scotland’s National Parks, as proposed earlier, it’s hard to say what changes to powers and functions might be required.  As long as the scope of our National Parks is aligned with IUCN Category 5 (protected landscapes) and the areas designated contain a variety of ownership types and human communities which must be sustained, then the present powers and functions are largely fit for purpose. Improvements then depend on better co-ordination of effort across the range of public bodies and stakeholder interests. To date such co-ordination has been patchy; it’s not obvious that better co-ordination can be imposed from above, or by enhanced powers to the Park Authority.

    The five areas listed are all important, but none are uniquely relevant to our National Parks. It is wrong to argue that National Parks can fulfil some sort of ‘pathfinder’ role, because they cannot then model responses required where no National Park has been established.

    Question 16. Are there any other areas where strengthened or new powers and functions will be needed by the National Park Authority? If so, what are they?

    If a new National Statement gives rise to significant amendments to the vision and mission for all, or some, of our National Parks then corresponding revised powers and functions will be essential. For example, if a third National Park were to be designed to meet IUCN Category 2 (large natural or near-natural areas) then enhanced powers would be required to reflect a different balance of the wider public interest in protecting large-scale ecological processes along with provision of appropriate cultural, spiritual, scientific, educational, recreational and visitor opportunities.

    8. Diversity in approach (Q17-18)

    In thinking about powers and functions, a key question is the extent to which we want all our National Parks Authorities to be similar. Consideration may also be needed in relation to their governance and management.  It could be that a new National Park Authority will need to be similar to the existing ones.  Alternatively, very different approaches could be developed though bespoke arrangements set out in the individual designation order for each new National Park Authority which reflect the needs and geography of its area and its administration. 

    Any changes to the statutory Aims of National Parks and the powers, functions and governance of National Park Authorities will require amendments to the legislation and will be the subject of further consultation by the Scottish Government. 

     Question 17. Should the powers and functions of National Park Authorities be decided on a Park by Park basis? Should any apply to all National Park Authorities? If so, which ones and why?

    A piecemeal, park by park, approach seems unlikely to succeed. The new National Statement needs to place our National Parks in context of wider protection measures corresponding to each of the four statutory aims (plus any amendments). Any bespoke arrangements for a specific Park would then have to be formally and carefully set in this wider context to avoid confusion.

    Question 18. Are there any changes you would want to see to the governance and management arrangements of all National Park Authorities?

    The prevailing model, of a self-standing executive NDPB for each park, does not look sustainable especially as a third and subsequent Parks are established.  The merits of a Scotland-wide Park Service, with the economies of scale this offers, should be explored. But at the same time, each Park must have clear lines of accountability to the local communities within its boundaries and to its key stakeholders.

    9. Section 2 – Criteria for selecting National Parks

    This section considers the issues that need to be addressed in selecting new National Parks.  While NatureScot has been asked to provide advice on how it should be done and what it should comprise, the Scottish Government will lead the development of the evaluation framework and the nomination process itself.

    Contents

    • Developing a nomination process for National Parks
    • Criteria for nomination and evaluation
      • Outstanding national importance
      • Size and coherence
      • Need or added-value
      • Degree of support
      • Strategic contribution
    • Selection Criteria – other issues

    10. Developing a nomination process for National Parks (Q19-21)

    Scottish Ministers have committed themselves to an open, transparent and bottom-up nomination process for selecting new National Park areas rather than the traditional expert-led, top-down approach.  This fits well with new thinking about “co-production” in protected areas approaches, conservation practice and public policy more generally.  

    Key elements of the approach envisaged by Scottish Ministers include:

    • Development and publication of an evaluation framework to assess nominations;
    • A request for nominations to be made with clear guidance and within a timeframe that encourages nominations from all parts of Scotland;
    • The provision of advice and other support for potential areas to prepare nominations;
    • An open and transparent evaluation of the nominations based on the agreed framework;
    • Decisions on which area or areas to progress made by Scottish Ministers based on recommendations following this evaluation.

    Question 19. Are these the key elements of an effective nomination process for National Parks in Scotland?

    [As Section 2 sets out proposals for a nomination process along broadly the right lines, I haven’t answered these detailed questions 19-37 so as not to repeat points made in Section 1. I have offered some general comments in a response to Q38.]

    19. Section 3 – Other issues and respondent information (Q38)

    This final section covers other issues and respondent information

    This consultation has focused on proposals for the role, powers and functions of National Park Authorities and the criteria for selecting new National Park areas. Future consultations from Scottish Government will follow, seeking views on the detail of any legislative changes Ministers consider are required and on a draft evaluation framework for selecting new National Parks.  Following the finalisation of this evaluation framework, a call for nominations for specific areas will then be issued by Scottish Ministers.


    Question 38. Are there any other issues about either Scotland’s approach to National Parks or the selection of new National Parks you would like to raise in your response at this stage?

    The most striking omission in this detailed consultation is the question of affordability. A third National Park along similar lines to its predecessors will cost, say, £5m per annum in round terms. Is such a sum available without further erosion of related budgets (eg for NatureScot)? Where is the best added-value from a commitment of this scale?

    As noted in earlier responses, there’s general confusion around the role and purpose of National Parks, and how they fit into a bigger picture. A new National Statement is the opportunity to set out this wider context, the relationships of Park bodies with other public authorities and the organisational structures required for a third and subsequent park designations. The National Statement is also an opportunity to set out the terms of the wider public interest where private investment in natural capital is being encouraged.

    Draft Land Reform Bill – consultation response to Scottish Government

    Following Land Reform Acts in 2003 and 2016, the Scottish Government is now planning new legislation on which it consulted over the summer months1. My interest in the configuration of land holding dates back half a century, since these patterns form a foundation for understanding how the twists and turns of Scotland’s rural land management affect our heritage of wild animals and plants. This post publishes, for the record, my responses to the questions asked in this latest consultation.

    The central proposal presented in this consultation is the idea of defining legal duties applied to ‘large-scale landowners‘ above a proposed threshold of 3000 hectares. The threshold seems set very high and feels arbitrary (not being supported by convincing evidence) but, on reflection, I also argued that the term ‘landowner’ is used far too loosely (both within the consultation paper and more generally). Debate around land ownership carries underlying political and ideological undertones, which can get in the way of any clarity around the practical implications of proposed actions. There are many different ways in which land is owned, tenanted, leased and so on by public, private, community and other actors so I’ve argued for use of the term ‘landholding’ as a better umbrella across this diversity of the means through which our land resources are managed…..

    Whatever, the questions that were posed (in italics) and my answers are as follows:

    Part 4: Criteria for large-scale landholdings

    Q1 – Do you agree or disagree with the criteria proposed for classifying landholdings as ‘large-scale’:

    Q1a) A fixed threshold of 3,000 hectares: Disagree

    Q1b) Land that accounts for more than a fixed percentage of a data zone (or adjacent data zones) or local authority ward(s) designated as an Accessible Rural Area or Remote Rural Area, through our six-fold urban/rural classification scheme: Agree

    Q1c) Land that accounts for more than a specified minimum proportion of a permanently inhabited island: Agree

    Please give some reasons for your answers and outline any additional criteria in the text box below:

    The proposed 3000 ha threshold is arbitrary and not supported by compelling evidence. The definition of what counts towards the threshold lacks clarity, leaving scope for ‘gaming’ whatever number might be adopted. The focus on land *ownership* misdescribes a real world in which legal landholding is not an absolute, rather a bundle of rights and responsibilities. Land can be held or accessed in many ways, for example including tenancies and a variety of contractual arrangements as well as a heritable asset. Land ‘owners’ may be legal persons, such as companies or trusts; it is essential that the beneficial ‘owners’ can be identified, but the primary focus here should be on the land *holding*, whatever form or scale is involved. There is also the question of rights held in common or as part of the wider public interest. So the size of any distinct land parcel is only one of many elements making up these diverse patterns of landholding. The general principle should be that rights and responsibilities of land holding should apply to all holdings, with only a minimum of exceptions for defined purposes. The established right of responsible access to land is an exemplar in this regard, for example exemptions apply to dwelling houses and their curtilage (as well as a few other exceptional circumstances).

    Within this approach there are also legitimate questions around the local scale and distribution of landholding rights, including especially the proportion of any inhabited island. Again, the general principle should be that duties around rights and responsibilities should be applied consistently, with minimal carefully defined exceptions.

    Q2 Do you agree or disagree that family farms should be exempt from the proposals outlined in Parts 5 to 7 even if they are classified as a ‘large-scale’ landholding? Disagree

    Please give some reasons for your answer in the text box below:

    Without an unequivocal definition of a ‘family farm’ this proposal is unworkable. In the real world there are numerous diverse patterns of landholding and management, within which ‘family farms’ are but one. For example, many modern farms involve a variety of contract farming arrangements which can involve farm family members both as contractors and contractees – how would such arrangements be accommodated within a ‘family farm’ definition? As argued above, the general principle should be that the rights and responsibilities associated with landholding apply to all holdings, with a minimum of exceptions.

    Q3 Do you think that the proposals considered in this consultation should be applied to the urban context? Yes

    Please give some reasons for your answer in the text box below:

    While the urban context can be different, contrasting with some rural settings, there are extensive boundary areas where intermediate circumstances prevail. Land reform is not exclusively a rural issue – although, by area, the larger part of Scotland is rural, land rights and responsibilities in urban areas usually affect a much large number of people.

    Part 5: Strengthening the Land Rights and Responsibilities Statement

    Q4 We propose that there should be a duty on large-scale landowners to comply with the Land Rights and Responsibility Statement and its associated protocols. Do you agree or disagree with this proposal? Disagree

    Please give some reasons for your answer in the text box below:

    I agree that the LRRS should be a defined duty but, as a general principle, the duty should apply to all landholdings, with minimal exceptions. Thresholds based on size of holding are arbitrary and hard to defend.

    Q5 If there was a legal duty on large-scale landowners to comply with the Land Rights and Responsibility Statement and its associated protocols, we propose that this should be enforced by having a formal procedure for raising complaints, and by making provisions for independent adjudication and enforcement. Agree

    Please give some reasons for your answer in the text box below:

    I agree there should be recourse to independent adjudication and enforcement. A legal duty without provision for enforcement undermines the rule of law.

    Q5b) Do you agree or disagree that only constituted organisations that have a connection to the local area or the natural environment should be able to report breaches of the Land Rights and Responsibility Statement? Disagree

    Should these constituted organisations have a remit on:

    Community: Don’t know

    Charity: Don’t know

    Public sector: Don’t know

    Please provide some reasons for your answers and any additional suggestions in the text box below:

    In the absence of robust definitions, this proposal is unworkable. There should be no restriction on who can report alleged breaches of the duty.

    Q5c) Do you think the responsibility for investigating and dealing with complaints should sit with:

    the Scottish Government: No

    a public body (such as the Scottish Land Commission): Yes

    Please provide some reasons for your answers and any additional suggestions in the text box below:

    There should be a role here for our elected local authorities, representing their respective community interests and reinforcing established lines of democratic accountability.

    Q5d) Should the potential outcome from an investigation of a breach be:

    Recommendation for a mediation process: Yes

    Recommendation on how the landowner or governing body could comply with the Codes of Practice/protocols: Yes

    A direction to the landowner or governing body to implement changes to operational and/or management practices: Yes

    Please provide some reasons for your answers and any additional suggestions in the text box below:

    These are three possible outcomes, but there should also be last resort recourse to fines and other penalties, for example potentially to put a land holding into some form of ‘special measures’.

    Q5e) Should the enforcement powers for a breach be:

    Financial penalties: Yes

    ‘Cross-compliance’ penalties: Yes

    Please provide some reasons for your answers and any additional suggestions in the text box below:

    Such penalties should be a ‘back-stop’ last resort. It is disappointing that no proposals have been presented for reinforcing advice and assistance to reconcile differences of view, thus minimising any punitive tone in these proposals.

    Q6 Do you think the proposal to make the Land Rights and Responsibility Statement and its associated protocols a legal duty for large-scale landowners would benefit the local community? Yes

    Please give some reasons for your answer in the text box below:

    As a general principle, land rights and responsibilities should apply to all land holdings and relevant interested parties, without arbitrary size thresholds. In some cases, a local ‘community’ is hard to define, hence as a general rule there should be a role for local authorities, because they have established lines of democratic accountability.

    Q7 Do you have any other comments on the proposal to make the Land Rights and Responsibility Statement and its associated protocols a legal duty for large-scale landowners?

    Please write your answer in the text box below:

    The published rights and responsibilities statement is a very general, high level document. The nine protocols published to date indicate what a bureaucratic quagmire this might become if inappropriately developed into a legal duty and especially if applied arbitrarily to vaguely defined ‘large’ holdings (so incentivising and encouraging avoidance). Far better to establish a principle that the Statement applies to all landholding (not just ‘large-scale landowners’) and focus effort on facilitating and enabling good practice. Legal measures may perhaps be required as a ‘back stop’ against unreasonable behaviour.

    Part 6: Compulsory Land Management Plans

    Q8 We propose that there should be a duty on large-scale landowners to publish Management Plans. Do you agree or disagree with this proposal? Disagree

    Please give some reasons for your answer in the text box below:

    The Forestry and Land Scotland management plans are exemplary, and the five bullet points above set out the broad terms of good practice. However, it is undeniable that preparing, scrutinising and maintaining such plans more widely carries a cost. Would this be the best and most constructive use of limited staff time and other resources in an era of austerity? There is a risk that a duty to prepare and maintain such plans becomes a bureaucratic burden which is not adequately funded, that plans are of poor quality, out of date or not easily accessible. In that case the admirable intentions behind this proposal would be seriously undermined. This idea requires further thought to generate a practical proposal for implementation.

    It would be regrettable and counterproductive if there was any sense in which a duty to prepare land management plans became perceived as a punitive measure on those landholdings to which it was applied.

    Q9 How frequently do you think Management Plans should be published?

    Please write your answer in the text box below:

    It is important that any plans are up to date and easily accessible. Frequency is only one factor here.

    Q10 Should Management Plans include information on:

    Land Rights and Responsibility Statement compliance: Yes

    Community engagement: Yes

    Emission reduction plans: Yes

    Nature restoration: Yes

    Revenue from carbon offsetting/carbon credits: Yes

    Plans for developments/activities that will contribute to local and inclusive economic development or community wealth building: Yes

    Please provide some reasons for your answers and any additional suggestions in the text box below:

    Land management plans are potentially an important way to set out and communicate the terms of land rights and responsibilities exercised by all the relevant partners (including local community and wider public interests). Good practice potentially includes all the points above, and more. Further thought is required on how this might be worked up into a practical proposal and piloted in a variety of circumstances. It isn’t right to restrict such work to arbitrary ‘large-scale’ landholdings.

    Q11 Do you think the responsibility for enforcing compulsory land management plans should sit with:

    • the Scottish Government: Yes
    • a public body (such as the Scottish Land Commission): Yes

    Please provide some reasons for your answers and any additional suggestions in the text box below:

    The Scottish Government unavoidable carries overall responsibility, but responsibility for enforcing individual land management plans should not be centralised. There is a role here for our elected local authorities, suitably resourced, to facilitate and (on occasion) enforce good practice. Using this established framework of democratic accountability, it would be possible to consider the interaction of management plans between neighbouring land holdings, and placing these in context of development planning more generally.

    Q12 Do you think the proposal to make Management Plans a legal duty for large-scale landowners would benefit the local community? Don’t know

    Please give some reasons for your answer in the text box below:

    Land management plans are potentially a good thing (as exemplified by FLS) and a constructive vehicle for community engagement, but the extent to which they should be a legal duty and on whom requires further thought. Any sense that such a duty was some form of punitive measure would be regrettable. As argued in earlier responses, a robust definition of ‘large-scale’ is lacking. In some cases, it is hard to define a local ‘community’, so as a general rule there should be a role for local authorities, because they have established lines of democratic accountability not always evident in the ‘local community’.

    Q13 Do you have any other comments on the proposal to make Management Plans a legal duty for large-scale landowners?

    Please write your answer in the text box below:

    The terms of any such proposal requires further thought, and good practice should be facilitated and piloted to establish costs and benefits, before any legal duty is established.

    Part 7 i): Regulating the market in large-scale land transfers – a new Public Interest Test

    Q14 We propose that a public interest test should be applied to transactions of large-scale landholdings. Do you agree or disagree with this proposal? Agree

    Please give some reasons for your answer in the text box below:

    The concept of a public interest test is welcome, but it isn’t clear why this should be applied only to ‘large-scale’ landholdings. The idea of a: “risk arising from the creation or continuation of a situation in which excessive power acts against the public interest” is far too vague to be workable. The scope of public interest extends to community development (such as housing need), environmental sensitivity and other factors. These have not yet been set out.

    Q15 What do you think would be the advantages and/or disadvantages of applying a public interest test to transactions of large-scale landholdings?

    Please write your answer in the text box below:

    Wider public recognition is required that land holding necessarily involves a bundle of rights and responsibilities extending to local community and wider public interest in the management of Scotland’s land resources. Is this what is meant by a “risk arising from the creation or continuation of a situation in which excessive power acts against the public interest”? Not clear!

    Q16 Do you think the public interest test should be applied to the seller only / the buyer only / the seller and buyer / don’t know: To the seller and buyer

    Please give some reasons for your answer in the text box below:

    Both seller and buyer should be bound by recognition of a wider public interest, and associated good practice.

    Q17 If the public interest test was applied to the seller, do you think the test should be considered as part of the conveyancing process? Yes

    Please give some reasons for your answer in the text box below:

    To be effective, a public interest test should be part of the formal conveyancing process.

    Q18 Do you think that all types of large-scale landholding transactions (including transfers of shares and transfers within or between trusts) should be in scope for a public interest test? Yes

    Please give some reasons for your answer in the text box below:

    Consistent with responses to previous questions, the bundle of rights and responsibilities associated with various forms of land holding logically includes transfers within or between trusts, so any public interest test applies here also.

    Q19. We have proposed that if a public interest test applied to the seller concluded there was a strong public interest in reducing scale/concentration, then the conditions placed on the sale of the land could include:

    i. The land in question should be split into lots and could not be sold to (or acquired by) one party as a whole unit

    ii. The land, in whole, or in part, should be offered to constituted community bodies in the area, and the sale can only proceed if the bodies consulted, after a period of time, indicate that they do not wish to proceed with the sale

    Do you agree or disagree with these conditions?

    Condition i.: Agree

    Condition ii.: Agree

    Please give some reasons for your answer and suggest any additional conditions in the text box below:

    These are both potential conditions, but proposals for implementation require further development.

    Q20 Do you think that a breach of the Lands Right and Responsibilities Statement should be taken into account when determining the outcome of a public interest test? Yes

    Please give some reasons for your answer in the text box below:

    Agree, but the scope of consequential actions requires further development. For example, responsibility for exercising and enforcing such actions should not be centralised and would have to be adequately resourced.

    Q21 Do you think that a public interest test should take into account steps taken in the past by a seller to:

    Q21a) Diversify ownership: Yes

    Q21b) Use their Management Plan to engage with community bodies over opportunities to lease or acquire land: Yes

    Please give some reasons for your answer in the text box below:

    These are both relevant considerations.

    Q21c) What time period do you think this should cover?

    Please write your answer in the text box below:

    Rather than any specific time period, this consideration should be framed in terms of how any such steps had been sustained over time.

    Q22 Do you think the responsibility for administering the public interest test should sit with:

    • the Scottish Government: Yes
    • a public body (such as the Scottish Land Commission): Yes

    Please provide some reasons for your answers and any additional suggestions in the text box below:

    The Scottish Government unavoidably retains overall responsibility, but administration of individual cases should not be centralised. There should be a role for our elected local authorities, suitably resourced.

    Q23 Do you think the proposal that a public interest test should be applied to transactions of large-scale landholdings would benefit the local community? Yes

    Please give some reasons for your answer in the text box below:

    Yes but the extent of any such benefit depends on how, and to whom, the public interest test was applied.

    Q24 Do you have any other comments on the proposal that a public interest test should be applied to transactions of large-scale landholdings?

    Please write your answer in the text box below:

    In line with responses to earlier questions, any public interest test should be more generally applied and not only arbitrary ‘large-scale’ landholdings.

    Part 7 ii): Regulating the market in large-scale land transfers – requirement to notify an intention to sell

    Q25 We propose that landowners selling large-scale landholdings should give notice to community bodies (and others listed on a register compiled for the purpose) that they intend to sell.

    Q25a) Do you agree or disagree with the proposal above? Disagree

    Please give some reasons for your answer:

    This seems like an additional piece of unnecessary bureaucratic process potentially duplicating existing provisions of Community Right to Buy.

    Q25b) Do you agree or disagree that there should be a notice period of 30 days for the community body or bodies to inform the landowner whether they are interested in purchasing the land? Disagree

    Please give some reasons for your answer in the text box below:

    See answer to part a

    Q25c) If the community body or bodies notifies the landowner that they wish to purchase the land during the notice period, then the community body or bodies should have 6 months to negotiate the terms of the purchase and secure funding. Do you agree or disagree with this proposal? Disagree

    Please give some reasons for your answer in the text box below:

    See answer to part a

    Q26 Do you have any other comments on the proposal that landowners selling large-scale landholdings should give notice to community bodies that they intend to sell?

    Please write your answer in the text box below::

    No further comments

    Part 8: New conditions on those in receipt of public funding for land based activity

    Q27. We propose the following eligibility requirements for landowners to receive public funding from the Scottish Government for land based activity:

    i. All land, regardless of size, must be registered in the Land Register of Scotland.

    ii. Large-scale landowners must demonstrate they comply with the Land Rights and Responsibility Statement and have an up to date Land Management Plan.

    Do you agree or disagree with these requirements?

    a) Requirement i. Don’t know

    b) Requirement ii. Don’t know

    Please give some reasons for your answer in the text box below:

    These proposals seem confused. Use of the term ‘landowners’ seems to restrict the scope to exclude eg tenants – ‘landholders’ better reflects the variety of circumstances to include, for example, various forms of leaseholding. All land holdings should be registered; it isn’t clear how this eligibility provision helps to resolve shortcomings in the Register. Proposal ii applied to (arbitrary) ‘large-scale landowners’ when proposal i is not seems hard to justify. The scope of ‘public funding’ is not defined – potentially applied to funding not specific to the land holding or its management? This does not seem workable in practice.

    Q28 Do you have any other comments on the proposals outlined above?

    Please write your answer in the text box below:

    Transparency in the use and application of public funds is an important principle. The development of new public/ private partnerships makes this more important than ever. It is always important to be able to demonstrate how the wider public interest has been secured, and not concealed behind blanket ‘commercial in confidence’ restrictions.

    Part 9: Land Use Tenancy

    Q29 Do you agree or disagree with our proposal that there should be a Land Use Tenancy to allow people to undertake a range of land management activities? Agree

    Please give some reasons for your answer in the text box below:

    Tenants should be able to undertake the widest range of land management activities – and existing tenants should have a right to convert to any new measures.

    Q30 Are there any land management activities you think should not be included within a Land Use Tenancy?

    Please write your answer in the text box below:

    No

    Q31 Do you think that wider land use opportunities relating to diversification, such as renewable energy and agri-tourism, should be part of a Land Use Tenancy? Yes

    Please give some reasons for your answer in the text box below:

    Q32 Do you agree or disagree that a tenant farmer or a small landholder should, with the agreement of their landlord, have the ability to move their agricultural tenancy into a new Land Use Tenancy without having to bring their current lease to an end? Disagree

    Please give some reasons for your answer in the text box below:

    Existing tenants should have a right to convert to a new form of tenancy.

    Q33 Do you agree or disagree that when a tenant farmer or small landholders’ tenancy is due to come to an end that the tenant and their landlord should be able to change the tenancy into a Land Use Tenancy without going through the process of waygo, with parties retaining their rights? Agree

    Please give some reasons for your answer in the text box below:

    Q34 How do you think the rent for a Land Use Tenancy should be calculated?

    Please write your answer in the text box below:

    Don’t know – this is not my area of expertise.

    Q35 Would you use a Land Use Tenancy if you had access to a similar range of future Scottish Government payments which other kinds of land managers may receive? Don’t know

    Please give some reasons for your answer in the text box below:

    Q36 Do you think that there should be guidance to help a tenant and their landlord to agree and manage a Land Use Tenancy? Yes

    Please give some reasons for your answers and outline who you think should be responsible for writing and managing the guidance in the text box below:

    Q37 Do you think there should be a process to manage disputes between a tenant of a Land Use Tenancy and their landlord? Yes

    Please give some reasons for your answers and outline how this process could be managed in the text box below:

    Q38 Do you agree or disagree that tenants of a Land Use Tenancy and their landlords should be able to resolve their legal disputes in relation to the tenancy through the Scottish Land Court? Agree

    Please give some reasons for your answers and outline additional ways in which disputes could be resolved in the text box below:

    Q39 Do you have any other comments on our proposal for a Land Use Tenancy?

    Please write your answer in the text box below:

    No further comment

    Part 10: Small landholdings

    40 Would you like to be kept informed via email about the Small Landholding Consultation for the Land Reform Bill? We would use the email you provide in the ‘About you’ section to contact you. No

    Part 11: Transparency: Who owns, controls and benefits from Scotland’s Land

    Q41 Do you agree or disagree with our proposal to explore:

    • Who should be able to acquire large-scale landholdings in Scotland: Agree
    • The possibility of introducing a requirement that those seeking to acquire large-scale landholdings in Scotland need to be registered in an EU member state or in the UK for tax purposes: Agree

    Please give some reasons for your answer in the text box below:

    As argued in response to earlier questions, arbitrary definitions of ‘large-scale’ should be avoided. The general principle is that the extent of land holdings and beneficial ownership should be transparent and that these proposals should be explored. It isn’t clear how any of this affects the difficulties resulting from absenteeism.

    Part 12: Other land related reforms

    Q42 Do you have any views on what the future role of taxation could be to support land reform?

    Please write your answer in the text box below:

    Taxation is an essential dimension of landholding, so it is disappointing that no proposals have yet been brought forward. While there are limits defined by the devolution settlement, there is still a need for open debate about how devolved and reserved provisions interact and influence patterns of land holding and management.

    Q43 How do you think the Scottish Government could use investment from natural capital to maximise:

    Q43a) community benefit

    Please write your answer in the text box below:

    A much better exploration of the implications of investment from natural capital is urgently required, given the scale of interest in land acquisition allegedly for carbon offsets. There are serious risks that novel approaches compromise the wider public interest in the restoration and maintenance of natural systems and their associated biodiversity and may not even contribute to achieving net zero emissions.

    Q43b) national benefit

    Please write your answer in the text box below:

    As above

    Q44 Do you have any additional ideas or proposals for Land Reform in Scotland?

    Please write your answer in the text box below:

    The continuing failure to establish a comprehensive public register locating land holding and identifying beneficial owners is scandalous.

    Part 13: Assessing impact

    [Questions 45 to 51 no answers offered]

    Scottish Biodiversity Strategy 2022 – response to Scottish Government consultation

    Over the summer months, the Scottish Government consulted on a draft Biodiversity Strategy, closing on 12th September1. At first sight, this seems unremarkable, since the previous strategies from 2004 and 2013 are due for an update. However, the timing doesn’t quite fit the wider context, since the previous publications were linked to biodiversity targets set for 2010 and 2020 respectively. The global targets are currently under revision, as part of the COP15 review of the UN Convention on Biological Diversity2. This is setting a ‘Post-2020 Global Biodiversity Framework‘ for the decade ahead, agreement on which has been delayed, mainly by the Covid pandemic. There’s a meeting set for Montreal in December which is intended to complete the process. So this draft biodiversity strategy from the Scottish Government will need to be reviewed in light of that outcome.

    The draft strategy recognises “evidence……that Scotland is seeing dramatic declines in its biodiversity‘ (p7) – in other words that our wild plants and animals face a crisis of our own making. But I didn’t find its proposed response to this crisis at all compelling, since we failed to achieve most targets set for 2010 and 2020 and the new proposals do not feel like the promised ‘transformation needed in the way we use and manage natural resources‘ (p5). A revised draft strategy is awaited. In the meantime (for the record) here below are my responses to the questions raised.

    1. Using your own knowledge and the evidence presented, to what extent do you agree that there is a nature crisis in Scotland?

    Evidence that we have a nature crisis in Scotland is summarised by Scotland’s poor showing in the global biodiversity intactness index – 28th from bottom of the global assessment of 240 countries and territories for land-based biodiversity. The UK as a whole is bottom of the G7 industrialised countries, setting a poor example to others. Furthermore, the accompanying detailed evidence for example the 2019 State of Nature report highlights two decades of failure since biodiversity strategies have been introduced. The vision set out in Scotland’s 2004 Biodiversity Strategy: “It’s 2030: Scotland is recognised as a world leader in biodiversity conservation” is failing. We must now construct a radical new approach.

    2. What do you see as the key challenges and opportunities of tackling both the climate and biodiversity crises at the same time?

    These crises cannot be tackled separately, because they are profoundly interlinked. Neither can successfully be overcome without the other. Our key challenge now is to tackle both successfully despite the mounting economic and social disruption of which they are, in part, a cause. Failure to do so will simply exacerbate economic and social turmoil into the future.

    But this wider context of disruption also creates opportunities to pursue new directions, policies and measures for which there has been little prior support. Continuing with the status quo ante is not an option. A new biodiversity strategy must frame and expedite such policies and measures, providing a sense of co-ordination and shared purpose across the many relevant strategies and related policy documents.

    3. Is the draft vision clear enough?

    No – This draft vision represents an unacceptable retreat from the vision published nearly 20 years ago in 2004. In the first sentence, use of the word ‘substantially’ undermines clarity. Simply to slip the target date from 2030, in the previous strategy, to 2045 falls far short of the gravity of the crisis we face.

    4. Is the draft vision ambitious enough?

    No – This draft implies a sense that we can ‘kick the can down the road’, extending the 2030 ambitions of the current strategy to the longer term of 2045. Given our lack of progress towards 2030, our poor showing compared to other nations and the growing urgency of the task, this is far too complacent.

    5. Do you have any suggestions for a short strategic vision which would form the title for the strategy?

    ‘Make more space for Nature in our lives’ – We must make more space in Scotland to live alongside the wild plants and animals which are being squeezed out here, in the United Kingdom and across the world. We must engage our fellow citizens, in all walks of life, in a joint enterprise of restoration and stewardship, without which the long-term prospects for our children and grandchildren are grim.

    How will we know when we have succeeded? Topic 1 – Scotland’s rural environment – farmland, woodlands and forestry, soils and uplands

    6. Do the 2045 outcome statements adequately capture the change we need to see?

    No – The introduction rightly states that ‘transforming the way we use and manage land will be critical’ to delivery of the vision. But there’s little sign of transformation here. The 2045 outcome statements are aspirational, but show little indication of how delivery will be achieved any different from the failures of the last two decades.

    Farming is our biggest single land use, but there’s an over emphasis here, for example the first bullet should be amended: “Farmland and forestry practices……while sustaining high quality food and timber production.”

    The second bullet is overly focused on woodland, should include explicit reference to restoration of wetlands (a relatively quick win compared to woodlands) especially in lowland Scotland. The separate section on freshwater (below) leaves a risk that the impact of land management on wet habitats is overlooked.

    7. Are the 2030 milestones ambitious enough?

    No – Add drive to restore wetland habitats especially in lowland Scotland – across farmland there are too many areas where efforts to drain naturally damp ground continue despite limited success over many years. ‘Shifting baseline syndrome’ has erased our memory of the extent of wetland and the loss of wetland animals and plants.

    8. What are the key drivers of biodiversity loss in this outcome area?

    For decades, rural land management has been subsidised by the taxpayer to intensify production, reducing the space for nature despite often limited economic or social benefits. Redirection of this support is essential to achieve the transformation advocated in the introduction.

    9. What are the key opportunities for this outcome area?

    A new orientation of support for all aspects of rural land management to demonstrate better public value expressed in ecological, economic and social terms.

    10. What are the key challenges for this outcome area?

    Resistance to change and reluctance to replace or modify long-established funding channels is only to be expected, making it even more important to win widespread support for new ways of working. This is most especially true of the reframing of post-Brexit farm support which is currently under way, because the scale of this annual expenditure is the single most important policy influence on rural land management. The new approach must be evidence-led, including open discussion of the costs and benefits of different support measures.

    Topic 2 – Marine environment

    11. Do the 2045 outcome statements adequately capture the change we need to see?

    No – These statements seem so far away from our current marine challenges as to question their value. Surely an outcome statement must begin by recognising our present poor position resulting from decades of overfishing (such that we don’t even recognise the richness of sea life we have lost since, say, the Eighteenth Century), pollution and climate impacts.

    12. Are the 2030 milestones ambitious enough?

    Again, these milestones seem from another world. Given the lack of progress since 2004, to adopt such statements for 2030 simply lacks credibility. How will we even establish a baseline from which recovery can begin?

    13. What are the key drivers of biodiversity loss in this outcome area?

    First, chronic overfishing since the mechanisation of fishing effort from the 1800s, second the cumulative impact of pollution (not only from industrial sources and shipping but many others, for example, the damage to the Firth of Forth resulting from reclamation of the Carse of Stirling) and third, increasingly, the impacts of climate change on weather patterns and ocean temperatures. Starting to correct these, by 2030, is a formidable challenge.

    14. What are the key opportunities for this outcome area?

    Create numerous sanctuary areas from which fishing boats are excluded, allowing marine species to recover. The resulting increase in stocks will, in time, benefit fishermen more generally as well as bolstering food supplies for seabirds, cetaceans and other wildlife.

    15. What are the key challenges for this outcome area?

    Marine fish farming is problematic, in terms of location, local impacts and sustainability of feed supplies. Recovery of, for example, wild salmonids depends on doing this better.

    Topic 3 – Freshwater environment: rivers lochs and wetlands

    16. Do the 2045 outcome statements adequately capture the change we need to see?

    No -These outcome statements suffer from a lack of recognition that they depend, to a great extent, on changes to rural land management, especially farming.

    17. Are the 2030 milestones ambitious enough?

    The statements are fair as far as they go, but lack credibility in view of the failures to make progress since the 2004 Biodiversity Strategy.

    18. What are the key drivers of biodiversity loss in this outcome area?

    The context of centuries of efforts to drain farmland is overlooked. The space for wetland species, especially in lowland Scotland, has particularly been squeezed, so some rebalancing is long overdue.

    19. What are the key opportunities for this outcome area?

    As noted earlier, a new orientation of support for all aspects of rural land management to demonstrate better public value expressed in ecological, economic and social terms. Wetlands can especially benefit from such a change.

    20. What are the key challenges for this outcome area?

    As noted earlier, the new approach must be evidence-led, including open discussion of the costs and benefits of different support measures. This is especially important in understanding where effort is best directed to begin recovery of wetland habitats with minimum adverse economic and social impacts.

    Topic 4 – Coastal environments

    21. Do the 2045 outcome statements adequately capture the change we need to see?

    No – These are very general statements, and it isn’t clear that ‘coastal environments’ are a distinct category not adequately covered by land management and marine. There’s an argument for the simplicity of focus on land and sea, understanding that there’s a coastal interface rather than a hard boundary between the two.

    22. Are the 2030 milestones ambitious enough?

    The focus on ‘coastal environments’ isn’t convincing (see answer to previous question).

    23. What are the key drivers of biodiversity loss in this outcome area?

    The drivers of biodiversity loss in coastal areas are not fundamentally different from those for land and sea respectively.

    24. What are the key opportunities for this outcome area?

    Focus on land, and sea, recognising the coastal interface between them.

    25. What are the key challenges for this outcome area?

    As above

    Topic 5 – Urban environments – towns and cities

    26. Do the 2045 outcome statements adequately capture the change we need to see?

    No -The focus on urban landscapes is problematic because, while this is where most of the people are, it is directed towards the land rather than the people.

    This strategy is missing a key dimension well captured in the 2004 vision “..everyone is involved; everyone benefits…”.

    Take, for example, the second bullet: “Multi-functional urban Nature-based solutions provide the basis for healthy and resilient communities” – surely this outcome applies equally beyond urban centres?

    27. Are the 2030 milestones ambitious enough?

    The 2030 outcomes are very general, and should be rewritten in plain English. For most of us, ‘nature richness’, ecological coherence’ and ‘green/blue infrastructure’ are jargon. How would we know these when we see them?

    28. What are the key drivers of biodiversity loss in this outcome area?

    The focus on urban landscapes is flawed because urban drivers of biodiversity loss are widespread out and beyond the urban boundary. The engagement of people in all walks of life in tackling the biodiversity crisis requires a broader approach – although, since this is where most people live, conservation of urban biodiversity is essential to their personal experience and wellbeing.

    29. What are the key opportunities for this outcome area?

    Facilitate and harness community effort.

    30. What are the key challenges for this outcome area?

    Find ways in which people in all walks of life can constructively engage directly in meeting the biodiversity and climate challenges.

    Topic 6 – Across our land and at sea – overall health, resilience and connectivity

    31. Do the 2045 outcome statements adequately capture the change we need to see?

    No – These draft outcomes imply a degree of central planning and top-down control which has proved difficult to achieve in practice.

    32. Are the 2030 milestones ambitious enough?

    These draft outcomes fail to capture the need to achieve active engagement of people and communities, without which past failures will continue.

    33. What are the key drivers of biodiversity loss in this outcome area?

    This standard question seems a poor fit with the topic, since the drivers are ubiquitous and equally affect rural, marine and urban environments.

    34. What are the key opportunities for this outcome area?

    This standard question seems a poor fit with the topic, since the opportunities equally affect rural, marine and urban environments.

    35. What are the key challenges for this outcome area?

    This standard question seems a poor fit with the topic, since the challenges equally affect rural, marine and urban environments.

    36. To what extent will these outcomes deliver the Vision? What might be missing?

    There’s a huge omission of outcomes to achieve constructive engagement of people and communities.

    There’s also an increasing need to acknowledge and address conflict in delivering the vision, seeking to facilitate conciliation which will not happen spontaneously. Different contested accounts and perspectives need to be teased out and grounds for reconciliation cultivated.

    37. What evidence and information should we use to assess whether we have delivered the Vision?

    The existing monitoring effort, for example via citizen science supporting research and survey effort, needs to be properly resourced and maintained.

    The conditions for success

    38. Have we captured the key enabling factors which are essential in order for our strategy to be successful?

    These proposed outcomes have an old-fashioned, top-down and rather tired feel to them. The jargon (delivery plans, buy-in, mainstreamed, line of sight, values-led and so on) is of a piece with an approach and style which has failed in practice over recent decades. The transformation sought in the opening sections of the draft will not be achieved simply be repeating previous practice.

    There are some key points buried within this long list which suggest the possibility of trying new measures, but they aren’t adequately explained (for example ‘statutory targets’ do nothing to win people over) nor how they interface with the many other strategies and policy areas. Clarity of these relationships, how biodiversity fits into a wider picture, is lacking!

    39. Are there good examples of enabling conditions in other strategies we could learn from?

    Good examples are those which facilitate and empower people and their communities, providing evidence-based advice, flexible support and fostering a constructive approach to framing and overcoming diverse challenges. I’m not sure ‘strategies’ are the best place to find these examples, more likely in accounts of success and learning through practice.

    40. Can you set out how you think any of the proposals set out in the consultation might help to eliminate discrimination, advance equality of opportunity and foster good relations?

    These are all valid dimensions of the challenge; looking across recent debate around biodiversity, there’s a clear need to acknowledge and address conflict in contested accounts of issues and proposals, cultivating dialogue and grounds for conciliation.