Public bodies climate change duties: putting them into practice, guidance required by part four of the Climate Change (Scotland) Act 2009

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 guidance is issued by the Scottish Ministers to Scottish public bodies under powers contained in the Climate Change (Scotland) Act 2009. Its purpose is to give public bodies in Scotland guidance to assist in the implementation of the duties imposed on them as set out below.

Part 4 of the Climate Change (Scotland) Act 2009 ¹ (hereafter referred to as 'the Act') places duties on public bodies relating to climate change. In accordance with the Climate Change (Scotland) Act 2009 (Commencement No. 1) Order 2009 ² , these duties came into force on 1 January 2011.

The duties on the face of the Act require that a public body must, in exercising its functions, act:

(a) in the way best calculated to contribute to the delivery of the targets set in or under Part 1 of this Act;

(b) in the way best calculated to help deliver any programme laid before the Scottish Parliament under section 53;

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

In doing so, public bodies must have regard to this guidance.

The duties require public bodies to contribute to climate change mitigation and to climate change adaptation, and to act sustainably. Mitigation can be defined as the implementation of policies and actions to reduce greenhouse gas emissions or, where possible, enhance carbon storage. Adaptation can be defined as the adjustment in economic, social or natural systems in response to actual or expected climatic change, to limit harmful consequences and exploit beneficial opportunities. Sustainable development can be defined as development that aims to allow everyone to satisfy their basic needs and enjoy a better quality of life without compromising the quality of life of future generations.

1.2 WHO ARE THE 'PUBLIC BODIES'?

The duties apply to 'public bodies' defined as a Scottish public authority within the meaning of Section 3(1)(a) of the Freedom of Information (Scotland) Act 2002 (as amended). This definition does not cover all public authorities in Scotland, for example it excludes cross-border public authorities. However, the guidance is intended to be generic enough to be useful to all public bodies, and those outwith the formal definition of the climate change duties are in no way prevented from considering it as a potential source of information, tools and support.

All public bodies within the definition of the climate change duties are required, by the Act, to comply with the duties. Public bodies should check whether they fall within the definition and act accordingly.

Other public bodies in Scotland which are outwith the definition of the climate change duties may wish to consider this guidance as a source of information, tools and support in whatever climate change action they choose to take.

1.3 DEVELOPMENT OF THE GUIDANCE

Draft guidance was prepared in discussion with the Public Bodies Duties Advisory Group ³ and through a series of pre-consultation stakeholder workshops held to inform the Advisory Group and the preparation of the guidance. A summary of the conclusions of these workshops is available on the Sustainable Development Commission website ⁴ .

The draft guidance was issued in public consultation in September 2010 seeking views to inform development of the final guidance. A copy of this consultation document and associated documentation can be accessed via the consultation pages ⁵ of the Scottish Government website and, where respondents supplied the appropriate permissions, their responses are available on the Scottish Government website ⁶ , along with the consultation analysis report ⁷ .

1.4 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 Climate Change (Scotland) Act 2009. Public bodies are reminded 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 thinking about how they mainstream climate change action into their strategic and corporate processes, but it does not constitute legal advice to public bodies on compliance, nor absolve them of the duties placed upon them in the legislation. In all matters of interpretation of their climate change duties as set out in the Climate Change (Scotland) Act 2009, public bodies must seek their own legal advice if required, and must satisfy themselves that they are compliant.

Where following the guidance in application of their public bodies duties results in new or substantial change of policy, public bodies should be aware of their statutory obligation to carry out a Strategic Environmental Assessment ( SEA) ⁸ , Equality Impact Assessment ( EQIA) ⁹ and other assessments where required.

The guidance will be kept under review as understanding of climate change and associated methodologies develops to ensure it remains an effective tool for assisting public bodies in their action on climate change. Further material which supports the guidance will also be made available through the Scottish Government from time to time.