Cleaner Air for Scotland strategy: independent review

10. Governance

Overview

10.1 A paper for this review highlighted the complex nature of EU, UK and Scottish legislation and policy which provides the framework for managing air quality in Scotland.^[97] It also looked in detail at the Local Air Quality Management (LAQM) system which is the framework under which local authorities manage air quality. This review concluded that some important elements of this system have been “less than successful and conducted in an incoherent and uncommitted fashion across local authorities.”

10.2 There was, nonetheless, clear evidence from outwith and within the local government sector, that there has been, especially in more recent time, recognition of the importance of tackling air pollution and that many important elements of doing so, lie within the policy sCoPe, powers, functions, capabilities and resources of local government. It is also worth noting that some issues impacting on air quality lie outwith local authority control: Pollution Prevention and Control (PPC) activities, trunk roads and transboundary pollution for example.

10.3 Helpful discussions have been had with representatives of CoSLA and SOLACE and their support in considering and framing implementation actions is acknowledged and appreciated. It is clear that better engagement within as well as between authorities and with fellow bodies involved in tackling air pollution will be necessary and how this is achieved and governed matters.

10.4 Scottish Ministers, in the current devolved UK context and irrespective of Brexit, given Scottish Government’s commitments, are responsible for EU Directive requirements’ compliance and a case still exists for the creation of a clearer and more integrative framework for all air pollution issues to ensure both effective implementation, the delivery of clean air and the avoidance of governance gaps.

LAQM governance gaps

10.5 As observed earlier, it became apparent during the review that air pollution is not currently treated as a priority. Whilst some officers and elected members clearly do appreciate the issues, there is a clear need to give a much higher priority to air pollution and to the nexus of policy and delivery areas in which local government is involved which relate to air pollution. We welcome such engagement as we have managed to garner but this does identify and amplify a major governance gap at this stage.

10.6 Local authorities are legally obliged to characterise air quality in their area, designate problem areas where pollution breaches air quality objectives (AQMAs), develop Air Quality Action Plans (AQAPs) for dealing with air quality problems in the AQMAs and report periodically on progress. However local authorities have no legal duty to meet air quality objectives, only to demonstrate that they are doing all that is reasonably possible to work towards them. This is because some pollution sources are not within direct local authority control (e.g. Transport Scotland-controlled trunk roads and SEPA-regulated installations) and because not all AQMAs are declared due to local issues (e.g. Grangemouth). As a result, in legal terms, continuing failure to meet air quality objectives, whilst arguably a systemic failure, is a failing of Scottish Ministers not of the local authorities. In hard financial times a busy local authority Chief Executive is understandably likely to prioritise those things which s/he is legally obliged to do and mostly ignore the things which are ‘nice to do’.

10.7 SEPA has, as indicated previously, significant but somewhat contingent reserve powers under the Environment Act 1995 to compel local authorities to act (with the agreement of Scottish Ministers). SEPA certainly appears to engage in encouragement and persuasion, but the powers to compel action have never been used. In part this results from the framing of the legislation at present. Currently, SEPA should ensure that LA duties are fulfilled. As those duties are to “work towards” objectives, this is vague and readily contestable. Were this expressed as LA’s having to meet air quality objectives as set and agreed in specific and regularly updated plans, this could readily be progressed more effectively.

10.8 Our review of this system and specifically the LAQM elements, suggested a number of specific improvements. These are aimed at improving the overall effectiveness of the system through streamlining and to reduce where possible the burden on local authorities, maximise available funding and its impact and enable high quality data to be used to provide stronger evidence for necessary interventions. Some improvements will require additional directions from Scottish Ministers and some may require improved or additional guidance:

• Making the LAQM system’s air quality objectives apply in all places with public access (as opposed to places where the public are “regularly present”) would increase the level of health protection delivered by the system and simplify communication of air quality issues. This could add a significant burden and may require an amendment to the Air Quality (Scotland) Regulations in order to be enforceable.
• The annual progress reports (APRs) should be revised to include much more systematic reporting of progress against AQAP measures, with agreed, specified timelines
• Reporting on combustion sources, through APRs, should be expanded to include all sources, which would provide significant benefits, especially given the distribution of Medium Combustion Plant and increasing domestic sector pressures for example.
• A standardised format and defined timescales for delivery of actions for AQAPs would be a big improvement, with a two year deadline to revise current plans into the standard form.
• This standard format would require inclusion of specific measures on transport where it is a significant contributor to non-compliance, and a requirement for a justification of their uptake or exclusion. This needs to be informed by knowledge of which types of vehicles are causing which problems, which in turn requires high quality traffic data.
• These plans should include a target date for compliance with air quality objectives, to be agreed with the Scottish Government and SEPA.
• These plans to be updated if a local authority has committed to a LEZ.
• Local authorities should expect to be held to account for delivery of the actions in their plans.
• To complement this, Scottish Ministers should target existing dedicated LAQM funding to measures which are agreed in AQAPs, and which demonstrably contribute to meeting the objectives of the AQAP, as well as to continue monitoring for an appropriate period once air quality objectives have been met.
• Scottish Government should direct SEPA to use its reserve powers under a broad remit^[98], allowing for clarity on what is sanctioned and swifter action when it is necessary.
• Ideally, future legislation should place a statutory duty on local authorities to deliver the actions in their Air Quality Action Plans and this should be complemented by specific commitment to state and adhere to delivery timetables.

Governance of the new Air Quality^[99] strategy

10.9 There is a major governance gap for future air quality strategy delivery at the Ministerial level. The responsibility for delivering on air quality strategy rests with the Cabinet Secretary for Environment Climate Change and Land Reform (ECCLR) but almost all the actions required sit with the Cabinet Secretary for Transport, Infrastructure and Connectivity (TIC) and Transport Scotland and the Minister for Local Government, Housing and Planning. And many of the benefits of success as well as key aspects of advice on the pressures and impacts of air pollution rest with the Cabinet Secretary for Health and the Public Health Agencies. On LEZs there are regular meetings where the Cabinet Secretaries for ECCLR and TIC co-chair discussions with the local authorities. More generally, the ECCLR Cabinet Secretary has held a number of meetings with a range of Ministers on air pollution.

10.10 As this review has made clear, Health, Planning and Local Government, including environmental and public health portfolios are strongly relevant as well as transport and environment. But there is no formal structure, below the level of Cabinet, where Scottish Ministers could regularly discuss progress on CAFS. In addition, it is not clear what reports Ministers receive on progress with the current strategy and there is no commitment to any kind of integrated, programmatic reporting to Parliament addressing the sCoPe of this review.

10.11 The CAFS GG was misnamed. It certainly did not ‘govern’ the delivery of the strategy, since it had no governance or decision making powers nor powers to compel action. Nor was representation always sufficiently senior or authoritative. It might better have been called an ‘Advisory Group’ as it allowed a range of CAFS stakeholders to discuss issues at length, to share information at officer level and seek inputs from a wider partnership. Actual decisions regarding delivery of actions, however, were mostly made elsewhere, within individual CAFS deliver organisations with virtually no feedback loop; something members of the Governance Group complained of, at least, as an issue of lack of transparency.

10.12 Some progress reporting was attempted at the CAFS GG but the Group had no power to do anything if progress was insufficient, which led to the resignation of two of the Group’s external members. Given the potential disconnects in authority and the need for different parts of government and local authorities to work together under a voluntary framework it is perhaps surprising that so many of CAFS’ commitments have been delivered.

Recommendations

G1. Implement the suite of improvements suggested above on LAQM arrangements

G2. The useful experience of the ministerial group on LEZs is built on with the establishment of a broader ministerial group meeting regularly to oversee the delivery of the new air quality strategy. This group would ideally be led by the Cabinet Secretaries for ECCLR and TIC (and periodically Health and other relevant portfolios) as well as appropriately senior local government representatives^[100] and would be attended by senior officials from relevant areas (e.g. health, planning, etc., as appropriate) and SEPA, and external advisors, similar to the model of the apparently-defunct Climate Change Delivery Board. Other Ministers would be invited to attend as appropriate and the existence of the group should not discourage the kind of ministerial bi-lateral meetings that have taken place from time to time. Crucially, this oversight model would be intimately connected to and served by an appropriately resourced officer body to bring and take advice and action reports as well as escalate action delivery and performance issues to the ministerial group.

G3. If a group similar to the current CAFS GG is to continue it should be correctly called an Advisory or Working Group and adopt a clear remit, including a description of how its advice is conveyed to Scottish Ministers and/or serve as described at G2. The group will need a clear remit, clear performance targets and KPIs and appropriate authoritative membership, reflecting the stakeholders needed, not least representation from across the powers and responsibilities of local government.

G4. Given the multi-departmental and multi-organisational dimensions of policy and implementation responsibility, there may be merit in considering independent chairing or appropriate overall accountability for progress of these groups. This would help to address the question embedded in the recent and current governance discussions on the environment and other policy roles post-Brexit. Ensuring effective cabinet level leadership, authority and energy is critical. So is transparency, independence and public accountability. The matter of who guards the guards is always important but, even with parliamentary accountability, without EU Commission or the Court of Justice of the European Union (CJEU) as ultimate overseers and arbiters of performance and remedy, the question becomes yet more serious. Independent oversight would appear desirable, however it is accomplished.

Performance Reporting, Management and Accountability

10.13 The quality of performance reporting achieved during the CAFS 2015-2018 period has been high, with relatively accessible and well-presented documents. The main issue is what was done with the content. The annual performance reports have been visible and useful but they have not led to particular interrogation or detailed policy or strategic organisational responses in all the affected bodies, shared and owned by all. We believe this has to change. The revised model described and recommended above at G2, directly serving the accountable ministers, would focus minds and actors to deliver. It also ensures simple line of sight from strategy, to planning, through delivery action to accountability.

10.14 Performance reports, quarterly and annually need to be owned by the various partners and delivery and outcome target holders and an action response must be visible as a cross public service result. The simpler stronger and more accountable the targets the better the results and the more likely both improvements will be visible but that they will also be taken seriously and owned.

10.15 If the approach detailed above is followed, effective management and the robust holding to account of those responsible becomes easier. If these latter are taken seriously, then reporting becomes meaningful and important. It can also then be fitted into corporate, team and personal delivery and developmental targets and plans and seen to be what matters and what gets delivered.

Resources

10.16 The Review Steering Group and Working Groups have not costed the various recommendations made at this stage. For good reasons. We believe that the policies required to deliver genuinely clean air in Scotland require partnership working, high-functioning, simple and powerful oversight and delegation, re-energised monitoring and reporting, directive and directed delivery, asset renewal, market tools to influence and shape both demand and supply, delivery of existing commitments from various government, local authority, agency and private operator budgets and also a range of actions and behaviour changes from businesses, the public service and the private citizen. Some behaviours involve spending less and differently. Some require spending more and then delivering huge savings in other portfolio and budget areas. A systemic and joined up approach is needed. There is little in what we have described and recommended that does not deliver not only long term substantial savings in health (sickness) costs but delivers countless benefits in terms of economic efficiency, amenity, health (wellness) and quality of life. That is the real benefit of a progressive, integrated and energetic strategy for tackling air pollution and achieving a transformed mobility approach in Scotland.

Journey from here

10.17 Given the findings set out above and the interconnectedness of several aspects of the strategy needed to deliver reduced air pollution alongside the many other policy imperatives currently in play, from addressing climate change issues to tackling inequalities, ill health, obesity, poverty, housing, etc., the review has found that the existing CAFS strategy should continue but needs to be both more integrated and more effective in detail. There are many findings and recommendations contained here and they differ somewhat in size, complexity, possible legislative needs, resource requirements and so on. Several recommendations overlap and come together to describe a suite of proposed actions that should lead, we believe to significant further improvements in air quality and resulting amenity and health benefits.

10.18 If these are accepted, a framework for the new or revised strategy should seek further to prioritise them and to establish very clearly the measures and conditions required to secure them and demonstrate that they have been progressed and the outputs and outcomes sought, delivered. Aspects of those requirements could also be addressed as part of a wider consultation on this report.