Climate change duties - draft statutory guidance for public bodies: consultation

1. Context

This section outlines the legal context, the purpose of this guidance, who should have regard to it and how it should be used.

1.1 The climate change duties – legal basis

This statutory guidance is issued by the Scottish Ministers to Scottish public bodies under the Climate Change (Scotland) Act 2009 ('the 2009 Act').

The 2009 Act places a legal responsibility on relevant public bodies in Scotland to meet the climate change duties. Section 44(2) defines a "public body" as a Scottish public authority within the meaning of section 3(1)(a) of the Freedom of Information (Scotland) Act 2002 (asp 13). Public bodies must check whether they fall within the definition and act accordingly.

The duties are set out in section 44(1) of the 2009 Act and require that a public body must, in exercising its functions, act –

(a) in the way best calculated to contribute to the delivery of emissions reduction targets (i.e. mitigation)

(b) in the way best calculated to help deliver the Adaptation Programme

(c) in a way that it considers most sustainable.

The purpose of this statutory guidance is to support public bodies in performing their climate change duties. It aims to help public bodies to minimise their operational emissions, adapt and become resilient to the current and future impacts of the changing climate, live within environmental limits and ensure a strong, healthy and just society.

Section 45 of the 2009 Act requires Scottish Ministers to give guidance to public bodies in relation to the duties. When deciding how best to fulfil their duties, public bodies are required to take this statutory guidance into account – under the Act they must have regard to such guidance.

Statutory guidance for public bodies under section 45 was first published in 2011 ('the 2011 guidance'). Since the 2011 guidance was published, related legislation covering areas including emission reduction targets and reporting on compliance with the climate change duties has come into force. In addition, the fields of knowledge around carbon reporting, mitigation, adaptation and sustainable development have moved forward significantly. This guidance replaces and supersedes the 2011 guidance in full.

Interim, non-statutory guidance Public Sector Leadership on the Global Climate Emergency was published in 2021 ('the 2021 interim guidance'). It was supplementary to the 2011 guidance, and aimed to provide more up to date advice for public bodies on certain key areas. This statutory guidance supersedes the 2021 interim guidance.

The climate change duties require public bodies, in exercising their functions, to act in the way best calculated to contribute to emissions reductions (climate change mitigation), climate change adaptation, and to act sustainably. It is important that the three duties are considered together in an integrated and holistic way, and that they are given equal weight or importance in decision making.

This guidance is intended to be useful to all public bodies, not just those legally subject to the duties. The guidance aims to be a potential source of information, tools and support for any public body aiming to contribute to Scotland's national climate change targets and plans.

1.2 Proportionality

What is required in compliance with the climate change duties will vary between bodies, depending upon various factors including the size of body, its functions, budget and wider influence. It is considered appropriate that actions taken by individual bodies are proportionate to that body's nature and function.

Actions taken by a small public body with limited influence on emissions, and a small estate or staff numbers and budget should reflect their resources and the nature of what they do. Equally, there are a number of public bodies that Scottish Ministers consider to be 'major players' as they have a larger influence or impact on climate change than others, for example local authorities, NHS health boards, colleges and universities, transport partnerships and executive agencies. The major players are expected to show leadership in climate action.

The major players are listed in Schedule 1 of The Climate Change (Duties of Public Bodies: Reporting Requirements) (Scotland) Order 2015.

1.3 Development of the guidance

This guidance was co-developed in discussion with the Sustainable Scotland Network (SSN) Steering Group, and through a series of pre-consultation stakeholder engagement workshops and events held to inform the preparation of the guidance and the supplements. Content and case studies have been contributed by bodies from across the public sector.

This draft guidance was issued for public consultation in February 2025 for a 12 week period, seeking views to inform development of the final guidance. A copy of the consultation document can be accessed via Scottish Government's consultation website. In due course, where respondents have supplied the appropriate permissions, their responses will be made available, along with the consultation analysis report.

1.4 Structure of the guidance

This document forms the statutory core of the guidance to public bodies, and is intended to provide guidance on the overarching principles and the high level actions that all public bodies are expected to undertake. This core statutory guidance will be accompanied by a series of non-statutory topic supplements, which are intended to provide more detailed guidance to practitioners working in each area, and some of which may be more relevant to some public bodies than others. The intended content of these supplements is outlined below. Additional supplements may be added in the future as required.

Built Estate – estate decarbonisation, heat in buildings, energy and renewables, heat networks, social housing, whole life carbon.

Travel and Transport – the sustainable travel hierarchy, active travel, public transport, fleet decarbonisation, sustainable travel planning.

Land and Nature – nature based solutions, biodiversity, regenerative agriculture, coastal change adaptation planning, estimating land-based emissions.

Sustainable Places – place based approaches, planning, National Planning Framework 4 (NPF4), community wealth building and community planning partnerships, sustainable development impact assessments.

Health and Wellbeing – the NHS sector, public health, guidance for Integration Joint Boards (IJBs).

Finance – ethical investing, adaptation finance, reporting on emissions associated with investments, writing an effective business case.

Working Together - collaboration, behaviour change and engagement, community climate hubs.

Sustainable Procurement - sustainable procurement, the circular economy, supplier and contract management, estimating Scope 3 emissions from purchased goods and services.

Public bodies must ensure that they familiarise themselves with the content of this core statutory guidance before referring to the supplements. Although the supplements are arranged by topic, public bodies are likely to find that relevant information may be covered by several supplements. The case studies included are intended to be useful on a number of levels and illustrate various aspects of best practice. For example, a case study in the Travel and Transport supplement may also talk about finance, procurement, health and wellbeing and working together.

The core guidance and the topic supplements will be kept under review to ensure that they remain an effective tool for assisting public bodies in their action on climate change. Further materials which support this guidance will also be made available through the Scottish Government, and through the Sustainable Scotland Network (SSN), Scotland's public sector network on sustainability and climate change.

1.5 How the guidance should be used

This guidance should be used by public bodies to assist them in fulfilling their duties under section 44 of the 2009 Act. Public bodies are reminded that it is an advisory document only, not a definitive statement of the law, and that responsibility for compliance with the climate change duties rests with public bodies themselves.

Following this guidance will assist public bodies in considering how they mainstream climate action into their strategic and corporate processes. It does not constitute legal advice to public bodies on compliance, nor does it absolve them of the duties placed upon them in legislation. In all matters of interpretation of the duties set out in the 2009 Act, public bodies must satisfy themselves that they are compliant, seeking their own legal advice if required.

Public bodies operate in a complex landscape of policy, legislation and statutory obligations, often dependent upon the sector in which they function. In following this guidance, bodies must ensure that they take the wider context into account, as appropriate to their role and sector. It is the responsibility of the public body itself to ensure that it follows all current and relevant legislation and regulation as it develops its corporate policies and plans to fulfil its climate change duties.

The Scottish Government strategies, policies, plans and guidance referred to in this guidance will change over time – many of them require to be updated at five yearly intervals, for example. Bodies should be aware of this and ensure that they refer to the current versions, which may supersede those referenced by name in this guidance.