Returning to blogging after a summer break (extended by unexpected good weather), I’m struck by the popularity of canine metaphors applied to the work of government-funded environmental bodies. Routinely, these are described in media reports as ‘watchdogs’1. More memorably, Natural England has recently been criticised as no more than a ‘nodding dog in the Government’s rear window’2. This implies that such bodies are failing in their duty to hold Government to account; but is such derision fair? How is their authority and accountability rightly defined and managed? This blog seeks to shed some light on these questions in Scotland.
Before you yawn and ‘swipe left’, let’s be clear that there’s widespread ignorance of how public bodies are constituted and funded, their established ways of working and where each one fits in to a wider canvas of endeavour. This ignorance isn’t helped by the apparently chaotic, inconsistent and bureaucratic frameworks which are in place. Let’s try to set the record straight in simple terms.
In order to operate within the rule of law, any organisation must be set up as a ‘legal person’. Without this it cannot make contracts, employ staff and so on. In fact, of course, organisations public or private have no tangible existence in themselves, but impact on our real lives through the use of real physical assets and the actions of real people acting on their behalf. The ‘legal person’ is a convenient fiction (or a collective hallucination, if you like). So, for example, the whole of central government is treated as one single legal person (ie all government ministers and civil servants are, in strictly legal terms, one and the same thing). This is awkward for some functions, especially those which require a measure of independence, for example to regulate the actions of bodies including government itself. For this and similar reasons, numerous public bodies are set up at ‘arm’s length’, as separate legal entities3.
Take, for example, Scottish Natural Heritage, which employed me prior to my retirement in 2016. Established by Act of Parliament with defined functions4, the ‘legal person’ is the SNH Board, comprising a Chair and Board members appointed by Ministers. All the staff, including the Chief Executive, are servants of this Board. Funding for SNH is supplied almost entirely by grant aid from the Scottish Government. The way these funds may properly be used is defined, in some detail, in a ‘framework document’5. The terms of this originate from general guidance issued by HM Treasury.
There are a few public bodies which are, indeed, set up to hold Government to account. An example would be Audit Scotland. Its independence is protected, to some extent, by making it responsible to, and funded via, the Scottish Parliament6. This maintains a distance from possible ministerial influence. Ministers have sometimes been prone to protest that their sponsored public bodies are ‘independent’ or ‘arms-length’ (on occasion seeking to avoid taking personal responsibility for controversial decisions or shortcomings – these tactics are rarely successful, the media usually holding politicians to account despite such protestations). On other occasions, arm’s length public bodies have been held to be unaccountable (usually by parties who dislike decisions made to signal some wider public interest). So accountability is a controversial issue.
Staying with SNH as an example, where does accountability (or power, if you prefer) rest? The legal person is the Board, represented by its Chair and Members. But they are appointed by Ministers – so hardly independent. Ministers also hold the ultimate purse strings and have formal powers of direction (although these are very rarely used). If a senior government official has a concern to discuss, most frequently they will lift the phone to SNH’s Chief Executive, who has separate defined (and personal) responsibility as ‘accountable officer’ covering, for example, the propriety of expenditure7. Day-to-day dealings with Scottish Government are most frequently with a ‘sponsor team’ of officials in the most relevant SG Division. These relationships have become closer over the years, as the political profile of environmental concerns has grown and especially as budgets have progressively been cut since 2010. Scottish government officials are now fewer in number and so depend more on SNH for expert advice and assistance.
Independence, in these circumstances, is something of a pipedream. Revisiting the earlier canine metaphors, the roles of master and dog are clear enough – but it’s hard to see how the latter could hold the former to account. Equally, the ‘nodding dog’ jibe, whilst entertaining, feels shallow; more of a working dog perhaps.
Some commentators highlight contrasts between SNH (and its English and Welsh equivalents) and one of its predecessors, the Nature Conservancy Council, lamenting the demise of the latter when it was dismantled in 19918. I was employed by NCC in Scotland for the last 12 years of its existence; a great experience and a privilege to be directly involved in the many dramas of the 1980s. To some extent, these dramas broke out simply because NCC (working across England, Scotland and Wales) was just too far outside the orbit of the Scottish Office and its satellite bodies. So I don’t believe NCC could ever have been kept going into the changed circumstances of the new century. Working in the days before devolution, the NCC I joined in 1979 had antiquated procedures (no email, mobile phones, videoconferencing or computer screens, now found on every desk) and little sense of the public expectations now loaded on present-day public bodies. Its earnest but genteel ambience of academic enquiry was increasingly at odds with the growing profile of environmental concern. The case made for SNH, less naïve with a broader remit, greater capacity and direct Scottish engagement had its attractions9. While some qualities may have suffered in the transition, others were gained. SNH became so much more capable as a result, but still a ‘watchdog’ only in the limited sense of providing a body of informed expertise.
Current anxieties surrounding the effectiveness of watchdogs are reinforced by the looming prospect of Brexit. At present, one important way the Scottish Government can be held to account is the possibility of European Commission ‘infraction proceedings’ (against the UK government) leading potentially to a hearing in the European Court. Some government decisions are challenged in this way, while others respect the body of case law built up across the EU. The UK government has promised to set up a replacement10, while the Scottish government has published a preliminary review of the wide range of environmental concerns which must be addressed11. To maintain credible independence but with clear accountability, any such ‘watchdog’ would best be appointed and funded along similar lines to Audit Scotland, accountable first and foremost to Scotland’s Parliament.