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?

  1. This section of the Scottish Government website isn’t always easy to locate: National Performance Framework | National Performance Framework
  2. See: Wellbeing and Sustainable Development (Scotland) Bill – Scottish Government consultations – Citizen Space.
  3. See: Agriculture and Rural Communities (Scotland) Bill – Bills (proposed laws) – Scottish Parliament | Scottish Parliament Website .
  4. See: Part B – Proposals for Legislation – Tackling the Nature Emergency – strategic framework for biodiversity: consultation – gov.scot (www.gov.scot)
  5. See: Report on the National Performance Framework: Ambitions into Action | Scottish Parliament

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