Consultation Response – Environmental Standards Scotland (ESS) draft Strategic Plan

In earlier posts, I explored the challenges facing a new environmental ‘watchdog’ for Scotland1, post-Brexit, and responded to an earlier Scottish Government consultation about the shape of the new body2. Now, with ESS up and running, there’s been a consultation over a draft strategic plan3. This post includes the response I submitted to some of the questions posed.

ESS was established by the (not so) snappily titled UK Withdrawal from the European Union (Continuity) (Scotland) Act 20214. Let’s call it the 2021 Act for short. As well as setting out the functions and powers of ESS, the Act establishes five ‘Environmental Principles’. In making policies, government Ministers must ‘have regard to’ these principles.

The draft Strategic Plan is mainly concerned with the modus operandi for ESS, which seems well enough thought through for starters. But I’d say it rather overlooks a couple of important strategic issues facing the new body.

The first is the interface between its work and that of its Whitehall equivalent, the Office for Environmental Protection. A memorandum of understanding is promised which will set out how ‘matters of common interest’ are to be handled. This is a key part of a wider set of relationships between Scotland and the UK which have yet to be clarified post-Brexit. Confusion, especially of English and UK perspectives on rural land management and environmental concerns, is currently widespread. Scotland’s interests are at risk of being overlooked in the UK context.

The second strategic issue seems entirely neglected. The modus operandi of ESS is strongly focused on the work of various public bodies, but increasingly these bodies are engaged in diverse delivery partnerships with private commercial and non-profit organisations. Scrutiny of these relationships can be problematic where, for example, they are judged to lie beyond the scope of freedom of information requirements. In such cases, it’s hard to judge how well the wider public interest is being served.

So here, for what it’s worth, are my responses to the consultation questions:

1. Do you have any comments on our Vision and Mission Statement, set out in chapter 3?

Answer: These set a welcome and appropriate level of ambition, although there must be some doubt whether the mission statement goes beyond the precise scope of the ESS remit set in the 2021 Act. Achieving Scotland’s ambitions requires more than simply compliance with environmental laws and standards;

ESS can help by highlighting gaps and shortfalls, which are likely to go beyond solely ‘public authority’ compliance to involve the activities of private and third sector actors.

2. Do you have any comments on our Strategic Outcomes, set out in chapter 3?

Answer: Outcomes 1,2,3 and 5 are broadly sound, but outcome 4 should be reworded to make clear that ‘widely understood’ is achieved through openness and transparency (as spelled out in the fourth principle, below). The summary wording used in Fig 1 (“Engaging & Communicating Effectively About Our Role and How to Raise Concerns”) is better, but rather narrow vs. the scope of principle 4 i.e.: “keeping people informed about the progress of our work and providing opportunities to input to and influence it”.

These outcomes should be reviewed after (say) three years to test their fit in the light of experience and in context with the vision and mission statement.

3. Do you have any comments on our Values and Principles, set out in chapter 3?

Answer: These are a good basis on which to work.

4. Do you have any comments on our proposed approach to resolving matters informally with public authorities, set out in chapter 4?

Answer: The approach is sound and consistent with principle 2, but Chapter 4 is overly focused on ‘public authorities’. These are certainly prominent in S20 (1) of the 2021 Act, but “the effectiveness of environmental law and of how it is implemented and applied” also requires partnership with private and third sector actors. Working with ‘public authorities’ is necessary but will not be sufficient. After more than a decade of austerity and budget restrictions, public bodies are increasingly working with and through private bodies to achieve environmental outcomes (see for one example: ). Navigating these relationships is a key strategic challenge for ESS and deserves more explicit attention in this Plan.

5. Do you have any comments on our proposed approach to determining what constitutes a systemic failure, set out in chapter 4?

6. Do you have any comments on our proposed approach to determining whether a compliance failure could be addressed more effectively by a compliance notice than an improvement report, set out in Chapter 4?

7. Do you have any comments on our proposed approach to determining whether a compliance failure or environmental harm is serious, set out in chapter 4?

[Common answer to questions 5,6 and 7]: This approach is a fair starting point and should be reviewed in the light of experience after (say) three years.

8. Do you have any comments on our proposed approach to deciding whether, and how to prioritise and carry out our investigations, set out in chapter 5?

Answer: Para 5.14, “details of all active and completed investigations will be published on our website”, is especially welcome. This is consistent with the principle of transparency and openness.

9. Do you have any comments on our proposals for monitoring compliance and effectiveness, and taking account of different types of information, as set out in chapter 6?

Answer: These proposals are broadly sound, however there’s a general shortfall of understanding around who does what among the various bodies, public and private, with relevant roles in delivering environmental outcomes. Then there’s a shared challenge to minimise duplication while ensuring that any gaps in coverage are bridged. The ESS focus on compliance and effectiveness of environmental law requires multiple interfaces with other bodies involved in different aspects of environmental monitoring. But the ESS interest in monitoring is surely to inform the core purpose of compliance with environmental standards.

10. Do you have any comments on our draft priority topics for further analysis? Do you have any suggestions for key sources of data and intelligence that we should consider, as set out in chapter 6?

Answer: The bullet points in 6.13 are quite broadly stated. While these provide a sound starting point, they must be refined and updated in light of experience.

Priority issues are buried within some of these bullet points (for example, the effectiveness of deer legislation, or compliance with emerging proposals for licensing driven grouse moors are both key questions under the heading of ‘biodiversity decline’).

It is necessary to consider how emerging issues can be properly accommodated where resources are already stretched to cover those listed. New issues may well attract higher priority than some of those already listed.

11. Do you have any comments on our proposed approach to avoiding unnecessary overlap with other regulators, oversight and scrutiny bodies, as set out in chapter 7?

Answer: This is a key strategic challenge for ESS. The success of the proposed MOU with OEP will be important, helping to navigate the boundaries between ‘Scotland’, ‘UK’ and beyond, but there’s also the interface with private and third sectors actors within Scotland, especially where these are working in close partnership with public bodies. ‘Openness and transparency’, for example, is less assured where these relationships are involved and where ‘commercial in confidence’ can become the default preference at the expense of transparency. Perhaps more explicit discussion of the terms of a wider ‘public interest’ would help to frame this appropriately.

What are the implications of the ‘limits’ to openness mentioned in para 7.7?

The commitment in para 7.8 is especially welcome, providing clarity on the scope of work in progress and forthcoming findings.

12. Do you have any comments on our proposed approach to receiving and handling representations, set out in chapter 7?

Answer: The open approach is especially welcome, although how these are framed into investigations, and how these are placed in context of legitimate complaints and appeals will be key to its success.

13. Do you have any comments on how we maintain our ambition to be a high performing organisation, as set out in chapter 8?

Answer: This is a very small organisation, and so very dependent on others for many of its administrative systems. How will these be delivered – via Scottish Government? What constraints does this dependency place on how ESS can operate (eg required IT security policies affecting the ability to work collaboratively with public bodies and others)?

The initial balance of resources in Fig 8 seems quite weighted towards ‘Strategy and Analysis’. Surely as demand builds up ‘Investigations, Standards and Compliance’ will need to be reinforced? Is this going to restrict the number and scale of investigations ESS can conduct?

14. Do you have any comments on our proposed approach to measuring our impact, as set out in chapter 9?

Answer: Figure 9 is certainly logical, but the subsequent development and application of KPIs risks becoming burdensome. It’s important not to re-invent or duplicate measures already in place, or already required of public bodies like ESS. Where is the interface with the National Performance Framework?

15. Do you have any comments on our proposed key performance indicators, as set out in Annex B?

Answer: Although these each have validity, there are already too many for a small organisation. Where is the logic to determine which of these (or others) are really ‘key’?

16. Are there any other factors that you think we should consider before exercising our functions?

Answer: See 17 below

17. Do you have any other comments on our draft Strategic Plan and our proposed approach to fulfilling our remit?

Answer: In summary, this ‘strategic’ plan is rather focused on ways of working at the expense of some important strategic challenges. In particular, the strategic question of how best to interface effectively with other bodies, public or private, feels somewhat overlooked. For example, yes, the proposed MOU with OEP will help, but that is only one part of the interface between Scotland and the UK which will frame the work of ESS in its early years. Following Brexit, this has yet to take shape; it isn’t yet clear how the terms of cross-border or wider international standards will be established or maintained. The post-devolution co-ordination arrangements between UK government and devolved administrations are not an encouraging precedent, despite the recent refresh.

Second, as noted above, the interface between Scotland’s ‘public authorities’ and private or third sector actors is much less clear-cut than previously, yet this is barely mentioned in the Plan. Understanding and managing these interfaces will be key to achieving the overarching vision that “Scotland’s communities benefit from a high quality environment and are protected from harm through the consistent application of effective environmental laws, which are recognised internationally as setting high standards”.

Following the Money – a view out to 2027

At the end of May, the Scottish Government published a ‘Resource Spending Review’1, presenting summary spending proposals for the next five years. Although these are no more than an outline, they give an early hint of the likely pattern of priorities and expenditure extending the historical analysis of previous posts2 into the future. What does this imply for rural land management in Scotland, and in turn for our natural world?

The spending review does not drill down to the level of detail of previous posts (‘Level 3’ in the jargon). But the Level 2 data presented indicate a broadly ‘flat cash’ outlook for the £1bn or thereabouts of annual expenditure examined in this series of posts. Making comparisons with the published figures from previous years isn’t easy; this new publication addresses only recurrent annual expenditure. A separate document3 sets out projections for SG capital expenditure to 2026. Trends in capital investment tend to be harder to see because the annual totals are more ‘lumpy’ as major projects come and go. However, taken together, the recurrent and capital figures are broadly comparable to the budget and spend figures from previous years4.

As we can see only too well, the next few years will present challenges. Prices are rising faster than for many years; if the prices affecting rural land management were to rise at 10% per annum over the period, these funds would lose about one third of their current spending power over five years. Set in the broad context of the outlook for rural land management, that represents a big reduction in Scotland’s capacity to tackle the ‘biodiversity crisis’, somewhat at odds with the accompanying rhetoric (“…the Scottish Government’s overarching ambition to tackle climate change and biodiversity loss…”, “…delivery of ambitious programmes focused on nature restoration and addressing biodiversity loss…” and so on). So how might this play out in practice?

These documents concede a growing disconnect between ambition/ need and the capacity /action possible with the public funds expected to be available (…”government investment on its own will not be sufficient….private and third sector investment will be criticalwe have set strong expectations on public bodies and public services to work effectively together and with the private and third sectors using the totality of resources available to improve outcomes….). This pragmatic approach unavoidably requires frank understanding of both the public and private objectives pursued through such collaboration. We have become used to transparency and open access to information about the work of public bodies, often contrasting with ‘commercial-in-confidence’ restrictions where private interests are involved. We need a way to navigate this boundary respecting personal privacy while at the same time tracking the wider public interest.

There’s the beginnings of an appreciation of some unintended consequences, for example in the arena of ‘rewilding’. Growing comment and controversy has emerged around the entry of so-called ‘green lairds’ into the rural land market in pursuit of carbon offsets5. Consistent with SG urging for greater public/ private collaboration, Forestry and Land Scotland has begun to promote ‘carbon offset partnerships’ 6 “…Corporate partnerships will play an important part in our future. We bring together private funding and public land to tackle the Climate Emergency and biodiversity crisis side by side….”. Recent publications by the Land Commission for Scotland7 and Scotland’s Rural University College8start to explore the implications even within this one dimension of the wider rural land management ‘landscape’: “…Natural capital buyers and voluntary carbon markets are driving significant and rapid changes in the land use sector…These trends create risks for markets, land managers and rural communities…..Options [are explored] for reducing risks and enhancing positive impacts of natural capital investment...”.

Another much larger emerging issue is the replacement of previous EU Common Agricultural Policy payments – around half of annual support for rural land management in Scotland. Steady progress in Scotland to develop alternatives has yet to yield firm proposals9, but those emerging for England have become controversial with recent publication of a ‘strategy’ implying a low priority accorded to caring for nature; again the rhetoric does not seem to match the capacity for corresponding action.

The SG spending review also recognises the limits imposed by staff numbers, once again revealing a mismatch of rhetoric “…a high-performing public sector continues to make a vital contribution within Scotland’s economy, environment and society….” and reality “…A broad aim to return the total size of the devolved public sector workforce to around pre-COVID-19 levels by 2026-27, through effective vacancy and recruitment management…”. Specifically for rural land management, there are no explicit proposals to improve capacity (Section 2.5) despite “…Experts agree(ing) that public spending now to address the climate (and biodiversity) crisis delivers future benefits which far outweigh the costs today…”. The review reveals, at best, a flat cash projection for paybill. This will drive a continuing decline in staff numbers, perhaps offset to some extent by ‘efficiency’, ‘digital transformation’ and restructuring: “…seeking to work collectively, with common purpose, breaking down delivery silos and efficiently using the totality of available resources within the constraints
we face

Looking ahead, there will be value in trying to place forthcoming spending and associated policy announcements in a context that confirms their scale and significance as a contribution to matching the Scottish Government’s overall ambitions. Disentangling and reconciling potentially dissimilar public and private interests seems bound to present some additional, perhaps novel, challenges – constructive tension, anyone?

Following the Money (Part 2)

Part One began to explore the resources which Scotland’s public bodies can bring to bear on protection of our natural world through rural land management. This second part considers how public policy effort on land management and caring for nature has been changing over recent years. Setting out the scale of change over time is not as simple as one might wish; not only is there scope for debate around how much effort is directly, or indirectly, relevant, but also definitions and expectations change over the years. This post aims to paint a big picture, while trying to side-step numerous rabbit-holes of unhelpful detail.

In summary, annual government expenditure supporting rural land management in Scotland is around £1bn per annum, directly employing around 4000 people. This hasn’t changed much in cash terms over the last 15-20 years, but gradual annual growth in cost per job affects how this can be spent. Within the total, it’s harder to distinguish expenditure on caring for Nature – probably around £150m per annum. But this would double if so-called ‘greening’ payments to farmers were included; there’s need for debate around what should be eligible and what represents value for money….

The even broader-brush understanding of recent trends in overall government funding for UK public bodies (i.e. in the 21st Century) has been a perception that a decades-long trend of gradual annual growth in budgets since the 1950s was fairly abruptly reversed in 2010. The global financial crash of 2008/09 and bailing out of banks up-ended the balance of public finances leading to successive ‘austerity’ budgets – reduced cash spending year on year through the decade which followed. This has had a big impact, reducing the capacity of public bodies to address the growing challenges we face. Most recently, response to the Covid pandemic inflicted another large shock to the system, the consequences of which are still to be fully expressed. In addition, rural land management post-Brexit now also faces particular challenges because the dominant farming subsidies are no longer framed by the EU Common Agriculture Policy, and must be replaced with a new approach1.

As we shall see, these general perceptions may be rather over-simplified. Despite rhetoric to the contrary, public expenditure as a proportion of the economy still seems to be on an upward long-term trend2.

Figure 1 – UK public expenditure as % of Gross Domestic Product 1978-2021 (ONS)

Figure 1 is for the UK rather than Scotland, but the latter will show a broadly similar track. There certainly was some decline through the 2010s but, even before the pandemic spike from 2020, the 2019 figure of around 35% is still higher than the level from 1985 to 2004. How have Scotland’s public bodies fared within this bigger picture? Of course, the value of expenditure (per £) changes over time, but the figures which follow are first presented in ‘nominal’ terms, ie expressed as cash values at the time it was allocated3. I will return to the value issue later.

Figure 2 – Source: Economic Report on Scottish Agriculture

Taking in turn the rural sectors used in Part 1, farming is the land management sector with the greatest geographical coverage and attracting easily the greatest annual support expenditure; at least £750m out of the land management total of around £1bn, more than support for all other land uses put together. Since 2005, the core of farm support has been an annual direct payment (previously, but no longer, linked to production) currently totalling around £420m per annum. Other direct payments to farmers bring the annual total to around £580m. There’s no clear trend to this core annual payment, despite policy changes over the years. Hence the cash totals for 2020 are much the same as for 2005, although they rose to a peak in 2009 before declining until 2015.

In addition to these direct farm payments, there’s a variety of indirect costs supporting rural land management, such as animal health and veterinary services, running costs for relevant public bodies including the Crofters Commission, Scottish Land Commission and especially RPID (see below). Figure 3 suggests that the total has more than trebled over the years; however, the composition and presentation of this budget heading has changed, so it is possible that some costs from earlier years were buried elsewhere in the SG budget. Perhaps the most important increase in recent years has been the cost of the information technology supporting the direct payment system, rising strongly since 2011 following some adverse EU audits of Scotland’s payments system.

Figure 3 – Source: SG Budget documents

The delivery of farm support is overseen by the Scottish Government’s Rural Payments and Inspections Division (RPID), once part of the old Department of Agriculture and Fisheries for Scotland (DAFS, 1961 to 1990) before going through a succession of name changes. It’s hard to track what has happened to this body in terms of staff numbers, within the much larger whole of the Scottish Government. In 2019, a Freedom of Information request stated that RPID had 620 staff (full time equivalent) costing £31m, out of the larger SG Agriculture & Rural Economy directorate of just over 1000 FTE, with a paybill cost of £49m4.

Almost by definition, farm support is directed to rural land management. A much smaller proportion supports caring for Nature, nevertheless the larger scale means this is still very significant. For example, direct payments from various agri-environment schemes have varied from around £60m declining recently to less than £40m. There’s an annual ‘greening’ payment of around £140m but it isn’t clear what this buys, since there’s no evidence this is ever withheld5. Because of the scale of such payments, these definitional questions deserve further exploration at a later date.

Support for forestry is delivered mainly through the two successors to the old Forestry Commission, first Forest and Land Scotland (FLS) overseeing the national forest on behalf of Scottish Ministers, second Scottish Forestry (SF) supporting and regulating the private sector. FLS is run as a trading company, with annual budget support from SG which can vary. For example, if timber sales and prices are up, taxpayer support can be eased and vice versa6. Nevertheless, the combined scale of public funding for the two bodies as shown in figure 4 has been pretty consistent over the years, until recent growth due to accelerating tree planting to mitigate climate change7. All of this funding, more or less directly, supports rural land management; a significant proportion also supports caring for nature.

Figure 4 – Source: SG annual budget documents

These totals include the costs associated with staff in the forestry bodies. Recent annual reports show a total of more than 1100 FTE, at a cost of nearly £50m per annum. Although these staff are employed on analogous Civil Service terms, some of the funding derives from trading by FLS, so there is considerable revenue supporting these salaries in addition to that shown in Figure 4.

Support for environment dimensions of land management is routed through several public bodies, notably NatureScot (SNH) and SEPA. Figure 5 shows the growth, and subsequent decline, in SNH funding since its inception in 19928. NatureScot/ SNH gains nearly all its funding in Grant-in-Aid from Scottish Government. A fair chunk of this, more than half perhaps two thirds, supports rural land management in one way or another; the balance includes for example marine and urban conservation work. The recent hike in related SG spend seems mainly due to peatland management schemes. By definition, most of this cash will support caring for Nature in some form.

Figure 5 – Source: SG annual budget documents

SNH staff numbers show similar trends to the overall expenditure, as detailed in Figure 6, and have now declined below the start-up year, forced down by cost pressures. The cost per FTE has grown from £20k in 1998, to about £35k in 2007 and now £48k9. Staff costs account for roughly half of annual expenditure.

Figure 6 – Source: SNH annual accounts

SEPA, with a different core role, is funded partly from SG Grant-in-Aid, but also via a range of charging schemes, with fees charged to industry for discharge or emission consents within its regulatory framework. Only a small, yet significant, proportion of this addresses rural land management issues, for example farm pollution and wider issues of freshwater and air quality; all of that proportion, and more, addresses caring for Nature. Overall funding has been fairly steady after some restructuring costs in 2009 and 2010, with a slight trend to depend more on charging income.

Figure 7 – Source: SEPA annual accounts

SEPA staff numbers have been fairly consistent over the period at around 1200 (FTE), despite increasing costs per FTE from £35k in 2007 to around £50k currently. Staff costs account for around two thirds of total SEPA expenditure.

Figure 8 – Source: SEPA annual accounts

Turning to outdoor recreation, the most easily identifiable budget is that for Scotland’s two National Parks, created in the early years of the Scottish Parliament. Figure 9 shows how funding has grown. Quite a lot of this supports rural land management in one form or another, and caring for Nature at least indirectly.

Figure 9 – Source: SG annual budget documents

National parks currently employ over 200 staff (FTE) at a cost per FTE of around £45k.

Other bodies with land management interests have relatively small, but not insignificant, budgets supporting rural land management, usually indirectly. The enterprise agencies, VisitScotland and Historic Environment Scotland have recently had a combined annual budget of around £200m. Even a small part devoted to rural land management or caring for Nature potentially has a big impact. For example, Visit Scotland administers the Rural Tourism Infrastructure Fund on behalf of SG, worth around £10m per annum. While this is mainly devoted to visitor facilities, some spend may help to ameliorate tourism impacts on land management.

Relevant research and analysis funding is hard to track consistently over the years, with many changes in the composition and funding arrangements for higher education institutions and research institutes, and evolving presentation in the annual budget documents. The heading includes various monitoring programmes which inform spending in the sectors above. Prior to 2015 funding for the Scottish Agricultural College (SAC, now SRUC) was included in rural budgets, because the colleges provided on-farm advice and research as well as education; now SRUC is part of the higher education portfolio while elements of advice and research remain within these headings. A recent addition would be the newly established Environmental Standards Scotland. The most directly relevant body is probably the James Hutton Institute, spending nearly £40m per annum from various sources and around 500 staff. Scottish Government funding under this heading remains significant at around £80m per annum, as shown in Figure 10, although it would seem to have varied a lot over the years, once a consistent definition has been established. There’s perhaps a change of emphasis to be seen away from farm production in favour of environmental impacts and climate change. Not all of this is directly relevant to rural land management, less so caring for Nature; this deserves further exploration.

Figure 10 – Source: SG Annual Budget documents

The changing value of cash

Combined, all these budgets amount to around £1bn spent each year to support rural land management, a total which Figure 11 shows has changed relatively little over the years in nominal cash terms.

Changing focus from the snapshot ‘still’ picture used in Part 1, to a more dynamic ‘video’ story of change over time presents some new challenges. £1m in 2020 or 2022 is not the same thing as £1m was in, say, 2000 or 1980. Obviously, inflation has eroded value, but more subtle changes also creep in. The easily available CPI or RPI measures of inflation are designed to show implications for household budgets; land management businesses may have experienced a quite different balance of changes to the costs of inputs and value of products. But also, over these years, the overall size of the economy has grown, usually measured in terms of Gross Domestic Product (GDP). So £1m now is smaller relative to a larger economy; this is not the same thing as inflation, and has different implications. For example, 100 lambs to market now must make more, per beast, to keep up not only to account for inflation but also as a share of the total economy – but generally have not done so. Hence making a living from land management has tended to be a bit harder year-on-year. Conventionally, cash comparisons over time are presented in so-called ‘real terms’, for example as “2020 £”, using a ‘GDP deflator’ published by HM Treasury. While often regarded as a proxy for the effect of inflation, in many ways this just muddies the water. So ‘real terms’ allows only approximate like-for-like comparisons; simple cash figures expressed at the time they were spent can be just as valid – recognising that cash now will not buy the same as cash did in the past10.

Figure 11 – Source: sum of sectors above plus indexes for comparison

Figure 11 sketches out the different effect of adopting three different indexes, as recommended by the ‘Measuring Worth‘ website11. These suggest the buying power of our £1bn per year has declined by between 20% to 27% over the fifteen year period.

Adopting any one index depends on how we expect this cash to be spent. In practice, it will all eventually be spent on paying a person for their time, perhaps indirectly (since squirrels or oakwoods do not themselves have a use for cash……). So as well as the 4000 staff employed by these public bodies, other payments will eventually reach a person12. Year on year comparisons here again require care, not only because the annual cost per head changes as salaries follow the trends of inflation and economic growth, but also because ways of working change as new technology comes in and as expectations evolve. For example, following several (thankfully rare) tragic accidents, lone working must now be thought through much more carefully than in previous years, increasing some delivery costs. Another example of special relevance to rural land management is the time, cost and environmental impact of travel; employees are increasingly expected to operate remotely, where possible. Information technology increasingly facilitates online working, but is expensive to establish and maintain (see for example the growing costs of the system for making direct farm payments). So one employee working for one year in 2022 will not be quite the same as one working 10 or 20 years ago.

Our analysis falls some way short of clear trends in expenditure, within the rural land management total, on caring for Nature. We can say it is probably in the range £150m to £300m per year, depending on definitions. Some UK figures for public sector expenditure on ‘biodiversity‘ are published annually13, but there’s currently no Scottish equivalent. Figure 12 shows the trend in UK spend, in this case presented as 2019 £m using the Treasury GDP deflator. The supporting documents suggest this uses quite a narrow definition of ‘biodiversity expenditure’ and, of course, goes well beyond that linked to rural land management, for example extending to the marine environment.

Figure 12 – Source: JNCC – UK Biodiversity Indicators 2021

In summary, annual government spend supporting Scotland’s rural land management has been around £1bn for more than a decade. This is now worth at least 20% less, in ‘real’ terms, than it was at the beginning. Within that total, the trend in spend on caring for Nature (perhaps around £150m) has proved hard to pin down…… Working this out, and what these resources are actually buying, is a subject for future posts in this series….

Following the Money (Part 1)

Quite a lot has happened out there since my previous post, and here we are now in 2022 with new, updated, understandings of the damage we are inflicting on the rest of the natural world1, new rhetoric about how this damage might be tackled and put right2, and new budgets in place that might provide the means to do so3. Here in Scotland, with one of the lowest ‘biodiversity intactness’ scores in the world4, it continues to be hard to make any sense of how all this plays out among the confused landscape of public bodies involved in rural land management.

The header page ‘Crowding Out‘ lists these public bodies and summarises their roles. Finding out about the resources each can bring to bear on this task is far harder than it ought to be; relevant numbers (where available) are published in diverse places and formats, while definitions are less than clear about what these mean in practical terms. This post is a first effort to assess these allocations so as to inform discussion on the adequacy (or otherwise) of the measures in place. Awareness of the way we are failing to make space for Nature is now widespread, and there’s broad support for doing something to correct this. The focus of this blog is on how, in Scotland, this might come about in the important arena of rural land management.

The most recent suite of biodiversity targets5, agreed internationally in 2010 for the decade to 2020, spawned an assessment of relevant UK expenditure6. The relevant 2010 international target7 was: “by 2020, at the latest, the mobilisation of financial resources …… should increase substantially from the current levels“. The UK assessment, on the basis of these definitions, is that while government expenditure had grown gradually to around £700m per annum in 2008/9, it then fell back to around £500m in 2019/20. So, over the decade, a ‘substantial increase’ was not achieved.

What is the annual Scottish contribution to this expenditure? Pro rata by population the Scottish share of the UK estimate might not be much more than £40m. More plausibly perhaps, on a land area basis, the Scottish share might be around £150m, but this draws from a very (perhaps unhelpfully) tight definition of relevant expenditure. Closer examination of these definitions and comparison with related Scottish budgets reveals considerable scope for debate.

Care is always required when drawing together and comparing information from UK, GB or Scottish sources. Published description of the UK assessment, in an attached ‘technical note’, gives some idea of how the total has been compiled, aiming to present information collected on a consistent basis across England, Scotland, Wales and Northern Ireland. Achieving this requires numbers to be: ‘estimated by expert judgment‘ on the relevant share of larger budgets, noting: ‘the figures presented are likely to be an underestimate of total biodiversity spend‘. Both for these UK and any Scottish figures, there’s a valid debate around what spend is directly, or indirectly, relevant. Adding to the general fog of confusion, plenty of items: ‘are designed to meet more than one policy objective, eg tree planting‘. Realising the stated ambition to protect nature requires bold and clear resource commitments, but measuring these is not straightforward!

The UK estimates are for biodiversity expenditure as a whole; rural land management is the largest subset of that total, but there’s also spend directly addressing the impacts of urban and industrial activity, the marine environment and so on. Here, we are trying to tease out relevant expenditure on rural land management in Scotland.

To start with, let’s consider the sectors listed in the Crowding Out page in turn:

Farming – ‘Agricultural Support’ is by far the largest block of support for rural land management in the Scottish Budget, amounting to about £800m per annum mainly disbursed to farmers via the Scottish Government Rural Payments and Inspections Division (RPID), with associated running costs. A small part of this8 has been included in the UK biodiversity expenditure estimate, but most of this spend has implications of some sort for nature. Some large parts are labelled oddly for example £142m ‘greening’ payments to farmers “for agricultural practices beneficial for the climate and environment” are not classed as biodiversity expenditure. The work of the Crofting Commission is additionally funded under this heading, with running costs of some £3.5m per annum as well as funding various grant and loans for crofters included in the larger subtotal.

Forestry – The two public bodies involved, Scottish Forestry and Forestry and Land Scotland (FLS), attract funding totalling around £120m. There’s significant change from year to year here, mainly because taxpayer funding for FLS is only part of a much larger turnover dominated by timber sales which fluctuate from year to year. Again, only part of this expenditure directly supports biodiversity, although nearly all has implications of some sort depending how the core purpose of timber production is conducted.

Environment – Several funding streams fall under this heading, including NatureScot (or Scottish Natural Heritage) currently around £50m funding most SNH annual spend, with a focus on wild species and habitats, and the Scottish Environment Protection Agency (SEPA) at around £40m. The latter is complicated in two ways, first that SEPA has a charging regime which provides a significant proportion of its annual turnover and second that the primary focus of its work is on water and air quality impacts from urban and industrial activity. Nevertheless, SEPA is active in rural land management and its environmental implications such as nutrient runoff from livestock farming. In addition, the sponsoring part of Scottish Government spends a growing amount directly (eg on peatland restoration) currently a little over £60m. The new regulator, Environmental Standards Scotland, now has a budget just over £2m.

Outdoor recreation – The most easily identifiable distinct budget is that for Scotland’s National Parks at £18m, although access and recreation also forms part of NatureScot/ SNH activity across Scotland as a whole. Little or none of this spend has been classified as biodiversity expenditure, although access, recreation and tourism generally have major impacts (both positive and negative) on our care for nature.

Other bodies with land management interestsHighlands and Islands Enterprise and its recently established counterpart, South of Scotland Enterprise, have a combined budget of around £100m, although only a small proportion of this impacts on rural land management. Historic Environment Scotland has a budget of around £70m, again only a small proportion impacts on rural land management. None of the spend in this sector would be formally included in the biodiversity spend totals. However, the work of the Scottish Land Commission and administration of the Scottish Land Fund supporting community buyouts amounts to around £15m, with implications for the way rural land is managed.

Relevant research funding – The Scottish Government budget includes support for a variety of research bodies, some of which have significant involvement in rural land management. Out of a total of nearly £90m, some has implications for rural land management and biodiversity, for example via the James Hutton Institute, but none will be included in the biodiversity expenditure totals.

To sum up – The sum of all these numbers is more than £1.3 billion per annum in Scotland; not all of this directly impacts rural land management, but the relevant total must be of the order of £1bn. How much of this is relevant to caring for nature? There’s no separate published Scottish account for biodiversity expenditure; perhaps the relevant share of the UK total may be £100m. If these set upper and lower boundaries, the tenfold gap deserves closer scrutiny. The stated ambition is for: ‘strong and bold actions to bring about transformative change… to halt biodiversity loss9‘. What are the trends in all these annual lines of spend? How is this money actually spent? And what does it achieve in terms of our general desire to care for nature?

Behold our strange new land

The past, it has been said, is a foreign country. Never has this seemed more so than in this year of pandemic lockdown. So much has been turned on its head or inside-out. It seems everything must be recalibrated. How much of what we previously took for granted counts for anything now?

In truth, disconnects between past and present are nothing new. In previous posts1, I’ve written about some of the changes which took place from my first permanent job, in the Nature Conservancy Council (NCC) of the 1970s, through to my retirement from the Scottish Natural Heritage (SNH) of 2016. So often, these disconnects fractured continuity in ways which left behind much of value, diluting lessons learnt and discarding experience gained, laboriously, over time. Understanding relevance, or irrelevance, to the present day makes a rich subject for reflection and debate.

Many commentators and activists were quick to exploit the space opened up by lockdown to spell out how things can, and should, be different in future2. So much has been upended and so much else, it is argued, can be improved if only we take the opportunity to ‘Build Back Better’. An early contributor3 differentiated short-term effects (eg reduced carbon emissions) to highlight potential long-term opportunities for change. Much has been made of the idea of a ‘Green New Deal’, promoting improved resilience and co-existence with Nature. But, as lockdown has eased, and sectors of the economy emerge from deep freeze, few of these ideas seem to be gaining much traction4. Debate rages on the scope for funding change5, while the chair of the SG Advisory Group on Economic Recovery has disparaged ‘green zealots6. So perhaps not so much a new beginning, more like the familiar status quo ante.

A recent polemic, published in Ecos7, vigorously condemns the track record of conservation bodies over recent decades. While I can empathise with the author (whose career trajectory has had many parallels, in time and work areas, with my own) and share frustration at our failure to correct damage to our natural world, I profoundly disagree with his conclusions. He argues that nothing has worked, and nothing has changed, in terms of losses to Nature, because conservation bodies have allowed themselves to be drawn into a morass of bureaucracy, pointless ‘consultation’ and prevarication. Instead, he now intends to “work with smaller organisations that are less bureaucratic” and in “campaigning  directly as an individual“. These are both valuable but, for me, could never come close to the scale of response we need to make a big enough difference.

Having equipped myself with a vocation, a fistful of degrees and (miraculously) relevant paid employment, I quickly discovered that making further progress was less about me, but rather more about how best to align the energies of a critical mass of like-minded people pulling together. So it has been that I have tried to fathom how to secure large-scale collective action to protect nature, finding ways and means to harness resources on a scale sufficient to have an impact. For example during the 1980s I helped create environmental management schemes within farming policy which now spend hundreds of millions of pounds. We can argue how effective these have been, but in this sector it isn’t true that ‘nothing has changed’. I concede there’s more substance to criticism that wider engagement of conservation bodies has drawn them into a morass of paperwork, consultation and ‘management-speak’. Yet something of this kind has infected most organisations; those in conservation have not been able to maintain a principled immunity.

After graduating in ecological science, I went on to study natural resource management. A postgraduate Diploma8 in 1977 framed ‘management’ principally as a mathematical challenge based on measurement, drawing on engineered industrial processes. While these ideas resonated to some extent with my previous science training, in my subsequent work they failed to deliver results on contact with reality. I started work in NCC on Scotland’s rural land management as a singleton, then gradually assembled a small team. Through the 1980s, we fumbled our way forward, bidding for project resources and engaging with wider initiatives, growing in scale and confidence. There was minimal resource planning visible to us across an organisation which was emerging from a relatively quiet backwater of public life and engaging with increasingly controversial issues.

At the same time, I was helping to run two small environmental charities, valuable hands-on experience of how, and how not, to get things done. But scale always eluded us, limited by staff and resources, feeling somewhat lost in a busy wider world.

Successive governments urged public bodies more generally to develop and use systematic management information. Much more explicit expectations emerged that public bodies must set an example of good practice, demonstrating and evidencing accountability in all aspects of their work. Although funds and staff numbers gradually increased, so did the organisational overheads. Three years of secondment to The Scottish Office from 1991 broadened my experience to include a different viewpoint working within a much larger body closer to the heart of Scotland’s affairs. Throughout, the rapid emergence of digital technology made it increasingly feasible to assemble and present management information supporting decisions. Perhaps this was the right path to greater leverage of our combined energies.

From 1995, for several years I found myself in charge of a corporate planning team for SNH, a new body replacing NCC in Scotland, working at a larger scale and with a much higher profile. We drafted documents making the case for our grant-in-aid funding from government, supported the allocation of staff and funds across the organisation, assembled metrics to measure progress against targets to secure budget management outcomes, presented regular progress reports to senior management and drafted an annual report. Very little of this quite busy target-driven ‘bureaucracy’ had existed in previous decades, but SNH could not have opted out of a way of working energetically endorsed by our paymasters in government.

Even at this larger scale (an SNH headcount growing to more than 700) we found ourselves constantly held back by our capacity. We explored joint working and co-operation across other public bodies with related roles, especially in rural land management, which revealed a whole new dimension of challenge9.

In 2005, I contrived to embark on another postgraduate diploma10. I found that quantitative methods were now somewhat out of favour, with a new focus on qualitative understanding of human group behaviour and motivations. ‘Leadership’ was favoured over ‘management’ ( the latter now seen as too mechanistic). This led me to new insights11 which highlight the importance of human agency over algorithms. In other words, humans cannot be treated simply as inert cogs in a machine, but rather should be expected, and encouraged, to exercise their free will. But, however individually talented, the record shows this does not always go well. It seems that any organisation is capable of stupidity12 and unintended consequences are commonplace.

Such limitations of the public body managerialism of the 1990s and new millennium were exposed following the financial crash of 2008. Over the following decade, funding was progressively withdrawn across a wide spectrum, including the statutory environmental organisations. As a result, the capacity to tackle the many challenges revealed by recent survey and monitoring of nature has been steadily eroded13.

Earlier this year, I came across a paper14 which helpfully rehearses the evolution of these various organisational theories, from the positivist ‘scientific’ or algorithmic management I encountered in the 1970s to the more recent relativist post-modernism of leadership studies. My experiences leads me to agree that “tensions and contradictions are ubiquitous” in institutions, to lament the “misguided pursuit of scientific rationality and fascination with ‘heroic’ leaders“, and agree that we must “find better ways to manage the tension between getting things done and getting people’s needs met“. Getting the results we need remains a work in progress then, to address the frustrations expressed in the Ecos piece referenced above.

So is this strange new land we occupy truly a foreign country, one for which our prior experience provides only limited guidance? I’m not so sure. The rapid re-emergence of previous flaws and behaviours suggests to me that our right response, post-pandemic, is to draw on, and apply, our prior insights and learning.  After all, as another saying has it “The past is never dead, it’s not even past“.

A Green Deal for Scotland?

A flurry of early autumn publications and announcements underline continuing widespread concern that Scotland’s wild animals and plants are in decline, and public recognition that a larger practical response is necessary. But the scale of action required in such a response implies a substantial commitment of public funds. What are the prospects that these will be forthcoming?

Early in September, the Scottish Government published its new Programme for 2019-201 , headlined with a ‘Green New Deal’ (sic). One passing reference to ‘biodiversity2 in the summary is later expanded to four pages (out of around 160), trumpeting a £2m “Biodiversity Challenge Fund“. While such prominence is encouraging news, the risk remains that such rhetoric raises expectations when £2m falls far short of an adequate response.

Green New Deal‘ is a fashionable buzzphrase which has emerged this year, promoted by prominent Democrats in the USA and picked up in Europe and elsewhere3. The core idea seems to be to harness public investment to achieve environmental and social objectives together. The Scottish Greens published their own GND proposals4 just ahead of the SNP Government. For the Greens, biodiversity is subsumed within one of six wide-ranging aims, however the document also highlights the need to rebuild the capacity of Scotland’s public bodies. Detailed Scottish Government budget proposals will soon follow for the annual total spend of more than £30bn; it isn’t easy to disentangle biodiversity implications from within this total, but clearly they must involve a lot more than £2m.

The 2019 State of Nature report5 documents how human impacts are driving sweeping changes in wildlife in the UK. The companion report for Scotland evidences the continuing net loss of nature in Scotland. The main UK report estimates around £456m of public funding in 2017/18, representing a modest 0.022% of GDP6. This has fallen by about a third from a cash peak of around £700m in 2008/9, which still only represented around 0.038% of GDP. No separate figures are presented for Scotland, but an equivalent proportion of Scottish GDP would currently be only around £30m, down from around £50m ten years ago. This, also, seems too low when set against the total Scottish Government budget.

Reinforcing concern around the trends of relevant expenditure is a recent Unchecked report: The UK’s Enforcement Gap7. This headlines a 50% fall in real terms funding for the environmental and social protection work of ten key national regulators since 2010. Although this striking headline is problematic in some ways8, it mirrors a corresponding trajectory and scale of change in Scotland. The government’s financial support for action to protect Scotland’s wildlife has now fallen year-on-year for a decade. Prior to 2010, funding and staffing had slowly grown year-on-year, enabling a growing capacity to tackle these challenges. That capacity is now seriously compromised.

So how can the scale of relevant public expenditure in Scotland be assessed? The background document accompanying the published UK biodiversity metric quoted above confirms that this is a tricky thing to pin down. The regulatory activity forming the focus of the Unchecked report is only one part of the story, which must also include the costs of staff conducting research and monitoring to underpin expert advice based on sound evidence. There’s also substantial direct funding for land managers and others in the form of grants and management agreements. Much of the latter is not solely devoted to measures protecting nature directly, but also access, amenity and landscape measures. Many other budget lines contribute less directly to “the importance of biodiversity and the complexities and challenges that tackling its loss presents9. It’s clear that the UK metric adopts too narrow a definition of relevant expenditure for this purpose.

Taking Scottish Natural Heritage as an example, the current annual budget of around £46m is down from £69m in 2010. Only part of this would qualify for the definitions contributing to the UK headline figures above10. Overall Government funding has fallen by about a third, with a corresponding fall in staff numbers from a 2010 peak. Similar shrinkage has taken place across other public bodies in the sector. For SNH, the annual budget has usually split roughly 50/50 between staff costs and grants/agreements; these both had to be reduced. In order to avoid compulsory redundancies, much of the shrinkage in staff costs had to be achieved simply by not replacing staff departures. One inevitable consequence of this has been to unbalance the age profile of the organisation with relatively few younger, up-and-coming employees. As highlighted in the Scottish Greens GND proposal, there’s now a growing urgency to be able to rebuild capacity in SNH and its public body partners.

Throughout the period of austerity, the Scottish Government has preferred to maintain a convenient fiction that the diminished organisations continue to work effectively across the full breadth of their responsibilities despite fewer staff and less funds to disburse. The Unchecked report challenges this for regulatory functions; similar challenges can be made on staff capacity and the outcomes from direct grants and agreements.

But SNH and its budget is only one part of Government support for sustainable land and marine management, involving several other public bodies with much larger budgets including farming and forestry. SNH staff advise on substantial central government expenditure outwith the SNH budget. For example, farming support includes so-called “agri-environment” measures, some of which should qualify as part of the published UK biodiversity totals. For Scotland, in 2018, these came to around £10m, down from over £40m in 201411. But, digging deeper, the annual Economic Report on Scottish Agriculture12 lists these figures alongside a separate total of more than £140m simply labelled ‘greening’. This is around one third of the annual ‘Basic Payment’ to farmers, “for agricultural practices beneficial for the climate and environment13. I don’t think the latter can qualify for inclusion in the UK biodiversity metric, since the sum of similar expenditure across the UK would match or even exceed this total. So questions around what qualifies as relevant spend and what, exactly, this buys do not yield straightforward answers.

In summary, the ‘green’ dimension of the proposed Scottish Government programme is prominently framed as a response to climate change14. Buried in the detail are clear (and welcome) statements that biodiversity loss and the climate emergency are intimately bound together, and equally welcome commitment to the UN Sustainable Development Goals15. There’s a commitment to publish a biodiversity progress report by April 202016. But will funds allow these commendable commitments to translate into action on a sufficient scale – and how will we ever know?

The next step, for Scotland, is a draft budget for 2020/21, due to be published in the coming weeks. This will reward close scrutiny for the extent to which good intentions are backed up with realistic funding.

Environmental Governance post-Brexit: response to Scottish Government consultation

Today I submitted a response to the Scottish Government consultation on Environmental Principles and Governance1, seeking to secure effective environmental protection post-Brexit. The text of my response follows, although you might need to look at the consultation paper to make most sense of it.  As usual, responses were invited to a series of specific (if rather open) questions addressing each of its main sections, which perhaps makes for a rather disjointed read. But I hope my preference for a new body with sufficient powers and resources is clear enough.

1. Do you agree with the introduction of a duty to have regard to the four EU environmental principles in the formation of policy, including proposals for legislation, by Scottish Ministers?

Yes – These principles underpin environmental policy across the EU and beyond.  A post-Brexit Scotland should commit to matching, or exceeding, these standards.

2. Do you agree that the duty should not extend to other functions exercised by Scottish Ministers and public authorities in Scotland?

No – The duty cannot operate successfully in isolation. The consultation paper invites the answer yes, but the text fails to explain how the environmental duty bears on other duties. Compliance should not be optional. I agree there are complex interactions, but now is the time to address these.  The aim should be to simplify the multiple (sometimes cross-cutting) obligations and responsibilities of Scottish Ministers and public bodies, so as to reduce the scope for confusion and dispute. The consultation paper implies (paras 33 and 34) that there may be circumstances in which the environmental principles would be put to one side.  At face value, that simply devalues any apparent commitment to them.

3. Do you agree that a new duty should be focused on the four EU environmental principles?

No – The principles are devalued in isolation, so alignment of these principles with other responsibilities is essential.  For example, how and when will the December 2018 human rights proposals (including the creation of rights with respect to the environment) be taken forward?  Is there a commitment to seek appropriate legislation before the next Scottish Parliamentary elections?

Alignment of new environmental governance with the Aarhus convention is important.  There is a case to restate the Aarhus principles of access to environmental information alongside these principles.

There’s a growing need to establish a framework for reaching a considered view on how the wider public interest is best expressed in decision making, showing how the environmental principles are realised in practice.

4. Do you agree there should be an associated requirement for a policy statement which would guide the interpretation and application of a duty, were one to be created?

Yes – The duty to have regard to the environmental principles must be clearly understood and enforceable, so clear guidance on their interpretation should be published, covering the scope of discretion which can be exercised, and the basis on which the principles are to be balanced with other factors, such as human rights.

5. What do you think will be the impact of the loss of engagement with the EU on monitoring, measuring and reporting?

It is important to maintain alignment with monitoring, measuring and reporting protocols across the EU and beyond. Without this, there is a potentially serious loss of understanding of how a post-Brexit Scotland, and UK, perform in tackling environmental degradation. Many environmental challenges are unavoidably cross-boundary in nature, for example air quality or annual bird migration. I agree with the Round Table assessment summarised at para 55 of the consultation paper, including:

• Our future ability to use EU systems to facilitate reporting and contribute to developing methodologies.

• The ability to aggregate data at European level and assess UK progress on a comparative basis.

• Access to wider expertise, systems, and data and knowledge holdings.

• Potential loss of requirements for data to be published..

6. What key issues would you wish a review of reporting and monitoring requirements to cover?

I agree with the Roundtable’s suggestion that a review of environmental reporting and monitoring could help to rationalise current programmes. Transparency and common standards are essential.

7. Do you think any significant governance issues will arise as a result of the loss of EU scrutiny and assessment of performance?

Yes – Post-Brexit, there is an essential requirement for informed, evidence-based and demonstrably independent scrutiny of the performance of Scottish Ministers and public authorities. A coherent replacement covering scrutiny, compliance and enforcement is required. The track record of the UK’s approach to the devolved administrations is unsatisfactory, so I agree with the Round Table statement2 that: “…having a Scottish body with a thorough understanding of Scottish law, procedures and systems would be more focused on the issues that are most significant in a Scottish context. Scotland is of a scale at which we can envisage a separate body being justifiable and effective.” However, I also agree with the Round Table that UK arrangements to allow collaboration, comparisons, efficient use of expertise and promotion of best practice would be advantageous – if there is an appetite for appropriate cooperation at the UK level.

8. How should we meet the requirements for effective scrutiny of government performance in environmental policy and delivery in Scotland?

A new body is required which has sufficient resources and powers to provide oversight and to hold government to account. This body has a valuable role as arbiter of the wider public interest in respect of environmental protection. Simply amending the role of a current body, or appointing a ‘Commissioner’, does not seem to meet the need, implying a low-cost and hence under-powered approach. I agree with the Round Table assessment that: “to be effective and achieve public confidence, any such body must have independence from government and the regulatory bodies, must have the expertise and capacity to do its work, must have a guarantee of the resources necessary for its role and must have the powers required to fulfil its tasks“.  See:  for my recent exploration of the terms of ‘independence’ for such a body.  None of the existing bodies are well-placed, for reasons of position or expertise, to meet this requirement.

9. Which policy areas should be included within the scope of any scrutiny arrangements?

I agree with a scope including the policy areas summarised at para 72 of the consultation paper, namely:

• nature conservation and biodiversity;

• air pollution emissions and transboundary pollution issues;

• environmental impact, access to environmental information and environmental justice;

• marine environment;

• radioactive substances;

• waste and circular economy;

• water environment and flooding;

• chemicals, biocides and pesticides

• climate change mitigation and adaptation obligations;

• soils and contaminated land..

10. What do you think will be the impact in Scotland of the loss of EU complaint mechanisms?

I agree with the Round Table assessment of key issues summarised at para 80 of the consultation paper, including:

• Who can bring a case with respect to harm to the environment.

• The loss of the Commission’s role as an essential means of ensuring Member States take their duties seriously – it acts

as an incentive for Member States to deal with concerns and complaints before they reach the Commission.

• The loss of the Commission’s role in resolving concerns and problems without formal procedures.

11. Will a new function be required to replace the current role of the European Commission in receiving complaints from individuals and organisations about compliance with environmental law?

Yes – Post-Brexit, there will be a loss of coherence in the recourse available to complainants.

12. What do you think the impact will be in Scotland of the loss of EU enforcement powers?

I agree with the Round Table assessment of key issues summarised at para 91 of the consultation paper, including:

• The loss of the Commission’s power to refer a member state to court for failure to properly implement EU environmental law.

• The fact that judicial review proceedings are traditionally used to consider powers, process and procedure rather than substantive environmental outcomes. The nature of many EU measures is to impose obligations on Member States to

achieve specific outcomes (e.g. a target for air or water quality or for recycling rates).

• The CJEU’s powers to impose fines on Member States which do not comply with its rulings..

13. What do you think should be done to address the loss of EU enforcement powers? Please explain why you think any changes are needed?

A new body is required to exercise these powers along with the scrutiny role (question 8 above).  This scrutiny and enforcement body has a valuable role to play as arbiter of the wider public interest in respect of environmental protection. Similarly, this body must have sufficient resources and powers to provide oversight and to hold government to account. Again, simply amending the role of a current body, or appointing a ‘Commissioner’, does not seem to meet the need, implying a low-cost and hence under-powered approach. I agree with the Round Table assessment that: “to be effective and achieve public confidence, any such body must have independence from government and the regulatory bodies, must have the expertise and capacity to do its work, must have a guarantee of the resources necessary for its role and must have the powers required to fulfil its tasks“.  See: for my recent exploration of the terms of ‘independence’ for such a body.  None of the existing bodies are well-placed, for reasons of position or expertise, to meet this requirement, analogous to that of Audit Scotland, hence responsible directly to the Scottish Parliament and funded via the Scottish Parliament Corporate Body.

Following the Plan

When working alone, it’s often simple and straightforward to keep track of the things to be done, and how, in your head. As soon as there’s a team effort involved, things are not so simple. Does everyone share the same understanding of the what, and the how? Almost certainly not! It seems sensible to set the task out in a plan. Setting out aims, roles, resources, methods, the expected sequence of events, review points and so on just seems like common sense – doesn’t it? This blog is a reflection on where such logic led me, and many fellow travellers, over the years. Spoiler alert – it has not gone smoothly…..

I recently came across an essay, by Mark Toogood, discussing Frank Fraser Darling’s West Highland Survey1. A passing comment in this notes that: “…both (Tom) Johnston and Darling (as well as most senior actors in state ecology in Britain) held integrated planning models in high regard…”. I’ve no reason to doubt this, but I now wonder what Johnston and Darling, individually or together, thought this to mean. Another giant of their generation, Max Nicholson (who helped found the Nature Conservancy and led the organisation as Director General from 1952 to 1966) argued vociferously for a National (economic) Plan from the 1930s onwards. Nicholson joined the Civil Service in 1940 and is said to have accompanied Winston Churchill to the Yalta and Potsdam conferences which set the scene for post-war reconstruction. He was then Private Secretary to the Deputy Prime Minister, Herbert Morrison, from 1945 to 1952. The end of the War was the trigger for rapid social and political change, creating not only the welfare state, free secondary education, nationalisation of railways, coal mining and electricity generation, but also a new approach to farming support, National Parks (but not in Scotland), the Nature Conservancy and a development planning system. Expectations and optimism seem to have been high.

Nicholson’s 1967 polemic ‘The System – the misgovernment of modern Britain2, laments the subsequent failings of successive post-war governments, arguing: ‘The key to co-ordination and to getting the best results with the highest morale is a clearly thought-out plan, based on a complete and sound appreciation of the assembled facts, fully and simply explained to all whose efforts are essential to its fulfilment.’ (p420) .

Contemporaneous with the West Highland Survey, an interdepartmental committee of the Scottish Office reviewed ‘Highland Development’3, leading later to a White Paper4 recommending establishment of the Highland Panel. The 1964 Highland Panel report ‘Land Use in the Highlands and Islands’5 highlights the Island of Mull as a locality requiring urgent attention. The Labour government elected later that year established the Highlands and Islands Development Board.  The Board prepared “comprehensive development plans” for Strath of Kildonan and for the Island of Mull6. These documents begin to realise the limitations of proposals which are unable to reconcile the views of different stakeholders. HIDB went on to sponsor a ‘Mull Development Committee’, which sat uneasily with the various public bodies, elected representatives and other powerful interests and was eventually disbanded.

As a student in the mid 1970s I studied ecology and ‘rural planning’, going on to research land management in the Island of Mull7 . I investigated Mull as an ecological and economic system, framing an exploration of the interactions between land, people and the panoply of public bodies influencing land management. It became clear that no single plan document could realistically provide a foundation for co-ordination along the lines envisaged by Nicholson, even in such a limited geographical area. Encouraged by sceptical critiques8, I began to think of the word ‘plan’ more as a verb, rather than a noun.

As a junior official joining the Nature Conservancy Council in 1979, I found that plans were not much in evidence across the organisation. But public bodies through the 1980s and 1990s were increasingly challenged to demonstrate their effectiveness. Unexpectedly, for several years from 1995 I found myself Head of Corporate Planning for the recently formed Scottish Natural Heritage. Especially following the 1997 General Election landslide bringing Labour to power, we were pressed to adopt a managerial, delivery target-driven approach to our work, and plans were seen as key evidence of our credibility. In SNH, we had a three-year Corporate Plan and an annual work plan setting out the main work streams and budget allocations, broken down into directorate, team and individual job plans, reporting regularly on progress back up the line to senior management team and Board. The plan material was the foundation for reporting of progress and achievements in the Annual Report and Accounts. These plans, for people and resources, were perhaps the kind of thing Nicholson had in mind. Other public bodies had their own corresponding arrangements, but efforts to co-ordinate these never attracted sufficient priority; joint working was always an uphill struggle.

Meanwhile on the global stage, UN conferences in Helsinki (1972) and especially Rio (1992) led to the international Convention on Biological Diversity9. UK CBD commitments included the preparation of Species Action Plans (SAPs), Habitat Action Plans (HAPs) and Local Biodiversity Action Plans (LBAPs). An initial list of 577 priority species and 49 priority habitats signalled preparation of hundreds of SAPs and dozens of HAPs by the new Millennium. Their progress was to be monitored and reviewed; a massive commitment of expert effort. The priority lists were increased to 1149 species and 65 habitats, meanwhile public body budgets and staffing grew year-on-year increasing capacity for such work. Contrasting with corporate planning as above, this was a managerial approach comprising plans for wild species and habitats; but the absence of plan documents for the longer priority lists is a hint that practical limits had been breached10.

From 2010, incremental growth in public body budgets was abruptly reversed. Austerity policies drove year-on-year budget reductions and corresponding shrinkage in staffing. Even before these developments, the limitations of a plan-based managerial approach had become evident. Plan documentation usually lags behind events, and is often incomplete. The dream of accessible, easily digestible, yet comprehensive information was never realised. The idea of a plan (along the lines proposed by Nicholson) also implies a fantasy of control; the UK Government project management methodology adopted in the 1990s is called PRINCE – PRojects IN Controlled Environments11.  For a modest project within a single organisation such control over events might just about be credible, but not for real-world initiatives involving multiple interests and especially across organisations. Delivery of a pre-determined plan is never realistic, so practice must accommodate unexpected developments and reconcile diverse interests – whatever the theory might say.

Such a managerial plan-based approach is especially deficient when applied to natural systems. A contemporary strand of thinking promotes the idea of ‘rewilding’; this is defined in diverse ways, but at centre is the idea of letting go – the antithesis of managerialism. For example, Benedict Macdonald’s excellent new book ‘Rebirding12 highlights the shortcomings of prescriptive habitat management plans 13, preferring to ‘…let nature write the targets…’. A recent blog by Mark Fisher14 highlights the contradictions and absurdity emerging when such plans are put into practice.

Making plans for nature may indeed be a step too far, but I’m still left believing that some proportionate style of planning must facilitate people working together. For all our efforts and experience, we simply haven’t yet established what good practice should look like. Yet collective effort without co-ordination risks confusion and wasted effort. The UK’s biodiversity challenges cut across multiple interests and organisations, challenging the logic of methodical plan preparation and implementation. So, after the plan – what next?

Woodlands for 21st Century Scotland – response to Scottish Government forestry strategy consultation

Today I submitted a response to the Scottish Government consultation on Forestry Strategy1. The text of my response follows, although you might need to look at the consultation paper to make most sense of it.  Responses were invited to a series of specific (if rather open) questions addressing each of its main sections, which perhaps makes for a rather disjointed read. But I hope my plea for more ambition, better collaboration and sustained partnership effort is clear enough.

Q1. Do you agree with our long-term vision for forestry in Scotland?

The vision lacks ambition.  Scotland needs more trees – many more trees. We should strive to put right the grievous damage inflicted over many centuries.  I agree that Scotland needs more diverse, multi-purpose woodlands, looking beyond a narrow focus on timber production to embrace recreation, carbon capture, catchment protection, landscape enhancement and all contributing to restoration of our plant and animal biodiversity.

The vision aspires to forest expansion, but alas has no sense of scale.  Although we cannot be sure, our best available evidence is that prehistoric Scotland once enjoyed woodland cover of more than 50% of land area. This fell to less than 5% around 1900. Through the 20th Century, led by the Forestry Commission, this has increased fourfold, a substantial achievement.  Now we need a 21st Century ambition, perhaps aiming to reach 30% over the next half century, which would restore around half of the prehistoric woodland extent.

Q2. Does the strategy identify the right objectives for forestry in Scotland over the next 10 years?

Aligning the objectives with the Scottish Government’s National Outcomes and associated UN Sustainable Development Goals makes sense up to a point, but the resulting objectives adopt lacklustre language. They are too vague to inspire ambition and do not do enough to show how the 10-year horizon can set the scene for realising the long-term vision.

For example, adopting a vision to reach 30% forest cover implies an extra 850,000ha of woodland over 50 years, as well as maintaining and regenerating existing woodlands. Such ambition to increase Scotland’s woodland cover by 17,000ha per annum obviously has many implications, especially for other land uses. I believe these implications can successfully be managed, but the consultation paper is sadly deficient in failing to address them. The ten-year objectives must establish the framework within which success can be achieved.

Close co-operation and collaboration is most essential with farming, recreation, conservation and especially local community interests. The consultation paper recognises that pursuing forestry in isolation, or in opposition with these other interests, would be a recipe for failure. Yet it does not say nearly enough about how a joined-up approach can be made a reality.

Q3. Do you agree with our assessment of the major issues likely to have the greatest impact on the achievement of our objectives?

The major issues are listed, but the assessment in the accompanying text fails to spell out a response to these capable of realising the ambition.

Section 4.2, in particular, gives no assessment of the barriers to expansion or how these can be tackled. As Section 2 makes clear, the strategic importance of forestry needs to engage a wider community far beyond professional foresters. The silo mentality criticised in the paper is reinforced when foresters talk mainly to each other. A step-change in style is required, and this Strategy is the opportunity to spell this out and map out the first steps towards its achievement.

Q4. Do the ten priorities identified in table 2 capture the areas where action is most needed to deliver our objectives and vision?

These are broadly the right areas, but fail to set out what success looks like, in terms of progress towards the long term vision.

Q5. Can you provide any examples of delivery mechanisms that have previously been effective in delivering similar objectives and priorities?

Examples include Cairngorms Connect2, the Borders Forest Trust3 and similar initiatives. At a regional scale, indicative forestry strategies4 have important lessons. But experience of failure is also important, drawing out and applying lessons learnt. For example, the SRDP experience and implementation of the recommendations of the Mackinnon Report5. This shows that close working between land use agencies and departments has been sporadic, and that grant applications tend to be treated in isolation rather than as contributions to an overall pattern and direction of landscape improvement.

Q6. For any delivery mechanism examples given in answer to question 5, please explain why they worked well?

These operate at a landscape scale, engaging a range of land management and community interests to achieve a joined-up approach.

Q7. Do you think the proposed progress indicators are the right ones?

These are too narrow, they need to address the terms of the strategic vision and set out milestones towards its achievement.

Q8. Do you have any suggestions for other indicators we could use to measure progress (especially ones which draw on existing data)?

There is a lot of material to draw on in the Environmental Report pp79-906.

Q9. For any indicators suggested in answer to question Q8, please explain why you think they would be appropriate.

There’s a implied focus in the Consultation Paper on tree planting, when regeneration is very important in many areas and essential to meet woodland expansion ambitions. But land management to secure regeneration especially requires a range of measures engaging with other land management interests.

Q10. Would you add or change anything in the Equality Impact Assessment (which includes our assessment of the potential impact of the strategy on inequalities caused by socioeconomic disadvantage – Fairer Scotland Duty)?

Nothing to add

Q11. Would you add or change anything in the Business and Regulatory Impact Assessment

Nothing to add

Q12. What are your views on the evidence set out in the Environmental Report that has been used to inform the assessment process?

This is a fair summary of a wide range of available evidence, although it rests heavily on the priorities set out in Table 2 of the consultation paper. If these are amended, then additional evidence and analysis will be advantageous, especially to clarify the nature of barriers to woodland expansion.

Q13. Should any additional evidence sources be used in the Environmental Report? Please provide details.

Where relevant and available – the Environmental Report is wide-ranging but there may well be additional sources of evidence and these should be used as appropriate.

Q14. What are your views on the predicted environmental effects as set out in the Environmental Report?

Priority 4 should make more of the environmental effects of wild deer and other herbivores (including domestic livestock) – for example drawing on the sources listed on pp80-82.

The assessment of Priority 5 is too narrow, since the benefits of community engagement are not limited to population and human health.

Q15. Do you agree with the conclusions and recommendations set out in the Environmental Report?

These are too broad, and would benefit from drawing out more specific priority areas which can inform actions, commitments and milestones.

Q16. Please provide any other further comments you have on the Environmental Report.

The indicators at Table 10 are too thin, and need to be strengthened to reflect improvements along the lines recommended in response to questions 2, 3 and 4.

Q17. Do you have any other comments you would like to make about the draft strategy for forestry in Scotland?

A lot of good stuff here, but could do so much better. Let’s have a much sharper, inspirational and inclusive vision for Scottish Forestry in the 21st Century!

Dog Days

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 window2. 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.