Wellbeing and Sustainable Development Bill: consultation analysis

Executive summary

Introduction

The Scottish Government launched the consultation on the Wellbeing and Sustainable Development (Scotland) Bill on 6 December 2023. The consultation ran for 10 weeks to 14 February 2024. EKOS, an independent research consultancy, was commissioned by Scottish Government to analyse the responses received. This summary presents a high-level overview of the analysis.

The consultation on the Wellbeing and Sustainable Development (Scotland) Bill sought views from people and organisations across Scotland on several specific legislative measures to: help inform the scope of any legislation required; and ensure that all decision-making is focused on achieving the National Outcomes for current and future generations.

There are 180 validated responses to the consultation. Around two-thirds of all responses are from organisations with the remainder from individual respondents. A wide range of public sector, third sector, and membership organisations submitted a response. Fewer responses are from the private sector.

The consultation included a mix of closed and open-ended questions. A sizeable portion of organisation respondents, in particular public, third, and membership organisations responded ‘don’t know’ or chose to leave closed questions unanswered.

Summary tables for all closed questions are presented in the main report. For open-ended questions, we have undertaken an approach to help readers get a sense of the strength and frequency of themes and issues raised by respondents. This means that:

• most chapters in the report contain numbered themes (for example, Theme 1, Theme 2, Theme 3) - these have been set out in order of relative importance with Theme 1 noted by the greatest number of respondents
• points raised have been quantified in some way to articulate the strength of opinion - for example, we use the terms ‘all’ (100% of respondents), ‘almost all’ (between 91% to 99% of respondents), ‘most’ (between 75% and 89% of respondents), ‘many’ (between 41% and 74% respondents), ‘some’ (between 11% and 40% respondents), and ‘few’ (10% or less of respondents)

The consultation was supplemented by 17 stakeholder events which attracted a public and third sector audience. The feedback from those who attended an event largely mirrors the consultation responses. Some organisations who attended an event also submitted a formal consultation response.

A summary of findings from the six themes of the consultation are presented below. The analysis contained in the main report provides further detail.

Defining ‘wellbeing’

A majority of consultation respondents (61%) agree that a statutory definition of ‘wellbeing’ is required. These respondents feel that a statutory definition would provide clarity and consistency in how the concept of wellbeing is applied in legislation, policy making, and decision-making. As wellbeing is a broad and multi-faceted concept this would provide greater specificity around public sector duties. In turn, this would help to improve accountability and reporting.

Some consultation respondents acknowledge that it may be difficult to provide a statutory definition of ‘wellbeing’ that has universal applicability and understanding – wellbeing is said to be a relative or subjective term, and its meaning can change over time and depending on context.

Some consultation respondents point to existing definitions of wellbeing from policy and/or legislation which could be considered or used as a statutory definition of ‘wellbeing’ in Scotland. Examples include those from: World Health Organization (WHO), Organisation for Economic Co-operation and Development (OECD), Welsh Government, Wellbeing Economy Alliance and Carnegie UK, and Getting it right for every child (GIRFEC).

A sizable proportion of consultation respondents ‘don’t know’ if a statutory definition of ‘wellbeing’ is required or left the question unanswered (26% combined). These respondents highlight similar issues to those outlined above (for example, challenges in developing a statutory definition of wellbeing, alignment with globally accepted and understood definitions).

Consultation respondents who feel that a statutory definition of ‘wellbeing’ is not required (13%) also highlight the inherent challenges in defining wellbeing. Other points raised include that a statutory definition of ‘wellbeing’ could be constrained by that definition and risks becoming outdated or irrelevant to certain communities and demographic groups. It is also suggested that non-statutory approaches may be more appropriate.

Defining ‘sustainable development’

Two-thirds of consultation respondents (67%) agree that a statutory definition of ‘sustainable development’ is required. Several benefits are identified, including that this would: provide clarity on what the term, which is widely used in existing legislation and policy, means in practice; embed sustainable development principles into legislation and decision-making processes; and would help to ensure public sector duties are clearly defined, actionable, and accountable.

A sizable proportion of consultation respondents either ‘don’t know’ whether a statutory definition of ‘sustainable development’ is required or left the question unanswered (22% combined).

The remainder of consultation respondents said that a statutory definition of ‘sustainable development’ is not required (11%). Feedback from these respondents includes that: the value and benefit of defining sustainable development in legislation are not clear; non-statutory measures may be more appropriate; and statutory requirements for public authorities may have unintended consequences for the third sector.

Around half of consultation respondents agree (53%) with the Scottish Government proposal that any definition of sustainable development should be aligned with the common definition: ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’. Relatively similar proportions of remaining consultation respondents either responded ‘no’, selected ‘don’t know’, or left the question unanswered.

The main themes from the qualitative feedback provided by those respondents who express agreement to the two closed questions (outlined above), or who responded ‘don’t know’, or who left the closed questions unanswered, include that:

• a statutory definition of sustainable development in Scotland should align with globally accepted and understood definitions of the term
• existing definitions of sustainable development could be strengthened, most notably to ensure the primacy of ecological sustainability or living within ‘planetary boundaries’ is captured
• a set of ‘guiding principles’ could help to provide further clarity on how sustainable development should be implemented in practice

Possible wording or phasing extensions to the Scottish Government proposed definition of sustainable development or alternative definitions are also provided by respondents.

Most consultation respondents feel that the legislation has the potential to help Scotland tackle future wellbeing issues and challenges. Challenges in answering this question are also highlighted – wellbeing means different things to people. A wide range of wellbeing issues and challenges are identified in consultation responses, including but not limited to, tackling poverty, improving health and wellbeing, protecting the environment, and supporting thriving and vibrant communities.

In considering what impact, if any, the proposed definition of sustainable development could have on other areas of legislation, points raised by respondents include that: there is no single definition of sustainable development set out in Scottish legislation, and so there is the potential for conflict (for example, with land reform); a review of existing legislation alongside consultation with stakeholders could help to identify where there is the potential for conflict; and that while having a clear definition of ‘sustainable development’ would be helpful, this does not necessarily call for a new duty or legislation.

Strengthening duties for National outcomes and sustainable development

The Community Empowerment (Scotland) Act 2015 requires all public authorities to ‘have regard to’ the National Outcomes in carrying out their work. Some respondents consider the wording of the existing duty ‘not clear,’ ‘strong,’ or ‘sufficient’ enough for public authorities to deliver on the ambition set out in the National Outcomes. Further, the current wording is considered too ‘subjective’ which then makes it difficult to know if wellbeing and sustainable development have been fully considered in decision-making processes.

It is suggested that clearer and stronger wording in the duty or having a more explicit requirement to work towards the National Outcomes and sustainable development would provide greater clarity, consistency, and accountability in delivery of public services across Scotland. Wording or phrasing changes are also put forward by respondents.

Some consultation respondents acknowledge that there are challenges and complexities if duties are strengthened for National Outcomes and sustainable development. Points raised include that:

• a legal duty to ensure that public authorities uphold sustainable development and the interests of future generations should not be overly ‘prescriptive’ – rather, support is expressed for a more ‘flexible’ framework
• the varying size, resources, capability, and capacity of public bodies should be considered if a legal duty is introduced
• implementing a legal duty to ensure that public authorities uphold sustainable development and the interests of future generations should be accompanied by supplementary guidance to public authorities
• implementing a legal duty may also require additional investment and support for effective implementation

Some organisation respondents suggest that there could be value in Scottish Government undertaking a review and streamlining of existing duties placed on public authorities – as there are a range of existing and emerging policy and legislation related to sustainable development. There is a call for greater clarity from Scottish Government on how the proposal to have a defined legal duty to ensure that public authorities uphold sustainable development and the interests of future generations would align with and complement existing requirements placed on public authorities.

When asked whether any specific areas of decision-making should be included or excluded in the Bill, many respondents suggest that all areas of decision-making should be included within scope of the Wellbeing and Sustainable Development Bill. It is said this would be consistent with the main aim of the Bill to “ensure wellbeing and sustainable development are at the heart of all policy and delivery decision-making.”

Further, it is suggested that any exclusions could undermine the Bill, threaten the coherence and clarity of the policy, and impede effective implementation.

A few individual respondents do not support the introduction of new legislation, and simply say that all areas of decision-making should be excluded from the Bill. A few organisation respondents also identify specific areas of decision-making that could be excluded. No common themes emerged from the feedback. Rather, individual points are raised, including: matters that are reserved to the UK Government; anything to do with religion; third parties receiving funding; and regulators and potentially other public bodies set up with a function that involves a relatively narrow policy area.

Clarifying to whom the duties apply

Most consultation respondents’ express agreement that any duty should apply widely - all public authorities as well as Scottish Government and Scottish Ministers. Qualitative feedback in support of this viewpoint includes that:

• public authorities have a direct relationship with Scottish Government and play an important influencing role in the delivery of the National Outcomes
• the Scottish Government should ‘lead by example’ and set the standard
• it is difficult to justify placing duties on public bodies without holding Scottish Government and Scottish Ministers to account - this would increase transparency and ensure effective accountability for delivery of the National Outcomes

Some respondents feel that duties should extend beyond public bodies and apply to the private and third sectors – these sectors are said to also influence delivery of the National Outcomes and receive public funding to deliver services and contracts on behalf of public authorities.

Few respondents feel that duties should not apply to any organisation. There is limited qualitative feedback relating to this viewpoint, though points raised include that: no organisation should be obligated by this type of duty; and duties set out in this consultation should not be applied.

Defining ways of working

Some respondents note in their consultation response that it is important for Scottish Government to explore ways to better report the achievement of wellbeing objectives. A common point raised is that this would help to hold public bodies, including Scottish Government, to account, and aid learning.

Common points raised by these respondents include that:

• clear and robust definitions of ‘wellbeing’ and ‘sustainable development’ are required to ensure a shared understanding and clarity of focus
• comprehensive and detailed guidance could help ensure a ‘consistent’ and ‘standardised’ approach to reporting the achievement of wellbeing objectives among public bodies
• enhanced capacity building support to public bodies could enable better reporting on the achievement of wellbeing objectives, and help public bodies comply with reporting requirements
• further stakeholder engagement, including with the third sector and communities, may be required to seek ‘consensus’ on the most appropriate indicators for reporting the achievement of wellbeing objectives
• improvements could be made to the accessibility and availability of national and local data
• public authorities could be required to consult with people as part of their reporting process

Another common theme is that improved reporting on the achievement of wellbeing objectives should not become ‘unduly onerous’ or ‘bureaucratic,’ particularly in the context of public bodies existing statutory reporting requirements, and to reduce ‘duplication’ of processes and effort. A proportionate approach to reporting achievement of wellbeing outcomes could minimise the administrative and reporting burden placed on public bodies, and ensure resources are targeted at supporting effective implementation of the duties.

In terms of what additional steps are needed to ensure collaboration and working across boundaries, the main points raised by consultation respondents are around guidance, resources, and support. For example, suggestions include that:

• legislation could define what is meant by ‘ways of working’ at a high level, and be supported by detailed guidance relating to what is expected by public bodies
• guidance could be provided to public bodies on developing collaboration relationships and working across boundaries – clear overarching goals and principles
• examples of good practice and action relating to collaboration and working across boundaries could be better promoted and celebrated
• capacity building support for public bodies would be beneficial, including the provision of continuing professional development, tools, and training

Respondents also propose that Scottish Government has a leadership role to play in encouraging collaboration and cross-boundary working.

Consultation respondents highlight the range of collaboration and cross-boundary working that already happens in Scotland. For example, Community Planning Partnerships, Regional Economic Partnerships, City and Region Growth Deals, Health and Social Care Partnerships, the Sustainable Scotland Network, and the development of Regional Intelligence Hubs are all referenced.

A suggestion is that there would be a requirement for continued support for, and involvement of, existing partnership structures at a local, regional, and national level to support enhanced collaboration and working across boundaries.

Determining an approach for future generations

Views are mixed in relation to whether Scotland should establish an independent Commissioner for Future Generations. Less than half of consultation respondents (43%) agree with this proposal, 39% either ‘don’t know’ or left the question unanswered (including public sector organisations), while 18% do not think a Commissioner for Future Generations is required (mainly individual respondents).

Should a Commissioner for Future Generations be established, consultation respondents identify several issues that may require further consideration. Further clarity and detail are asked for in relation to:

• the defined role, remit, purpose, and function of a Commissioner for Future Generations
• what powers a Commissioner for Future Generations would have – support is expressed for the post/team to be independent from government and have sufficient authority
• whether a Commissioner for Future Generations would be equipped with adequate staffing and resources to undertake the role and remit effectively
• how a Commissioner for Future Generations would integrate with, complement, and add value to existing activity, and not duplicate activity of existing commissioners or other proposed mechanisms (for example, such as under the Human Rights Bill)

In the context of reducing public sector budgets, a crowded commissioner landscape in Scotland, and an ongoing Scottish Parliament Finance and Public Administration Committee inquiry, some respondents ask whether there is a middle ground in order to achieve a more proportionate and cost-effective approach. These respondents are more open to how increased accountability, scrutiny, and support for decision-making is achieved. They suggest that alternative, including non-statutory measures, should be identified and assessed by Scottish Government prior to finalising an approach. Points raised by respondents who express support for a middle ground include that:

• Scotland has a number of existing commissioners (as well as ombudsman, tsars, regulatory bodies, and inspectorates) and the same objectives could be achieved by strengthening and resourcing existing bodies or commissioners and using existing frameworks
• the role and remit of an existing commissioner could be extended to fulfil the purpose of the proposed independent Commissioner for Future Generations - for example, Scotland’s Commissioner for Children and Young People, Auditor General in Scotland, Audit Scotland, Scottish Human Rights Commission, and Scottish Public Services Ombudsman are mentioned in consultation respondents
• an expert panel of children and young people could be established

Regardless of the approach taken by Scottish Government, these respondents also express support for any mechanism/body to be independent of government, adequately resourced, and their duties and powers clearly laid out.

Consultation respondents who feel that there is not a requirement for a Commissioner for Future Generations or who said that the case for such an appointment has not (yet) been made by Scottish Government, raise several concerns including that:

• the existing commissioner and scrutiny body landscape is set up in different ways, and have different remits and powers – there is a risk of under-funding, dilution, and fragmentation
• the current Scottish Parliament Finance and Public Administration Committee inquiry may influence the final decision
• alternative options could be identified and assessed
• a new Commissioner could create an additional layer of bureaucracy for public bodies, including an additional reporting burden
• the cost of establishing and maintaining a Commissioner for Future Generations, including a team of staff to support the Commissioner, could be significant