Wellbeing and Sustainable Development Bill: consultation analysis

6. Clarifying to whom the duties apply

Introduction

This chapter presents analysis of the consultation responses to the two questions asked within the ‘Clarifying to whom the duties apply’ section of the consultation.

Question 11

A total of 81% consultation respondents answered Question 11 which asked, ‘Should any duty apply to Scottish Government?’.

Theme 1: Duties should apply to Scottish Government

Most respondents (including individuals and across organisation sub-groups) reply ‘yes’ (or used similar positive terms) to express agreement that any duty should apply widely, including to Scottish Government.

While not all of these respondents further elaborate on why they hold this view, the main points raised across consultation responses include that:

• it is appropriate that Scottish Government ‘leads by example’ and provides ‘strategic leadership.’ - it is suggested this could ‘generate buy-in across Directorates,’ help to ‘set the standard’ for other public bodies to follow, uphold ‘collective responsibility,’ and ultimately achieve ‘meaningful structural change’ and maximise ‘impact’
• any duty should apply to Scottish Government in order to ‘build on, and strengthen, current duties on Scottish Ministers to take account of, and effectively work towards, wellbeing, sustainable development, and the delivery of the National Outcomes’
• it is appropriate that any duty should also apply to Scottish Government –this recognises that ‘the prime responsibility for delivering Scotland’s National Outcomes resides with Scottish Ministers,’ that Scottish Government sets the national policy direction, and it could help shape policy and delivery decision-making
• the duty should apply to any public body which has a direct relationship with Scottish Government or Scottish Parliament and for which they are responsible (and in part may be funded by national and/or local government)
• it could increase transparency and ensure more effective accountability for the National Outcomes across all areas of government policy and would clearly ‘demonstrate the Scottish Government’s commitment to wellbeing and sustainable development’ - for example, support is expressed for Scottish Government to: publish and review delivery plans; publish regular reports on how they will work towards the National Outcomes; and share good practice
• it could increase the general public’s trust in Scottish Government and public bodies

The following (selected) organisation quotes reflect points raised by these consultation respondents.

“Yes. If the duty is to be meaningful it must apply to the Scottish Government.” Professor Colin T Reid (Individual respondent)

“Most definitely but would need effective accountability mechanisms.” Peoples Health Movement Scotland

“Yes…If the Scottish Government were exempt from such a duty, that would significantly increase the risk of the government taking the wrong decisions or implementing the wrong policies. It is also important for accountability that the duty explicitly apply to the Scottish Government, as otherwise it will limit the ability of people to seek legal remedy on the basis the government has not accounted for wellbeing, sustainability or future generations when exercising its powers.” Health and Social Care Alliance Scotland

“Yes, the duties within the Bill should apply to the Scottish Government. It is important they are seen as an exemplar for the Bill and set the standard for others to follow. It is also important for the duties of the Bill to apply to the Scottish Government in order to also cover private sector actors. In order to protect citizens from the actions of commercial actors that damage wellbeing, the government should introduce legislation to regulate these private actors to protect citizens and ensure wellbeing.” Obesity Action Scotland

“Yes. We consider that it was the clear intention of the Community Empowerment (Scotland) Act 2015 that the duty to “have regard to the National Outcomes” applied to all Scottish public authorities including Scottish Ministers.” Community Land Scotland

“This would be a good way of encouraging wider compliance, particularly if the government were to share the guidance and resources that it creates for the purpose. Once the duties are more clearly defined, we would welcome clarification on whether the duties would apply universally or vary dependent upon the nature of who it is to be applied to. We are an independent regulatory body established by statute. We are therefore not a public body, but we share some of the obligations placed public authorities.” General Teaching Council for Scotland

“It is important that duties apply to the Scottish Government as well as public bodies…Duties on the Scottish Government should help ensure that the National Outcomes, and broader ‘National Wellbeing Framework’ in which they sit, becomes a roadmap, rather than a vision, for the Scotland we want to see. When Scottish Ministers are setting new National Outcomes, or revising existing ones, they will have to support meaningful public participation.” International Development Education Association of Scotland

Other points raised by a few consultation respondents regarding the Scottish Government publishing regular reports on how they will work towards the National Outcomes include that:

• this should be done ‘in a way which is accessible for all the people of Scotland’ (Scottish Children's Reporter Administration)
• rather than a specific report or statement to Parliament on the achievement of the National Outcomes, ‘which would necessarily fall to a single minister to deliver,’ the Scottish Government may wish to consider how reporting on National Outcomes could be integrated within any and all existing reports or statements (Institute for European Environmental Policy UK)
• there is an opportunity to streamline existing reporting (see full quote below)
• a proportionate approach to reporting on any duty for public bodies is vitally important, in particular for smaller public bodies

“There is a risk, at local authority level, of adding an additional layer of bureaucracy and compliance during a period of budget cuts and reduction in capacity across the public and third sectors and this bill and subsequent secondary legislation must streamline reporting and act as a strategic framework for the different pieces of legislation relevant to one or more pillars of CWB. There must be clear alignment with a future Wellbeing and Sustainability Bill if CWB is presented as the practical means of implementation of a Wellbeing Economy.” Development Trusts Association Scotland

A wider point raised, but not to any great extent, relates to a call for Scottish Government to consider how any duty could also apply more widely to non-public bodies, as appropriate. The following organisation quote highlights this point.

“Consideration should also be given to how the legislation could be expanded to encourage a meaningful contribution from the private sector to help make this a truly national approach.” Public Health Scotland

Theme 2: Duties should not apply to Scottish Government

A few individual respondents feel that any duty should not apply to Scottish Government.

No common themes emerged from the qualitative feedback where this is provided.

A few quotes are provided below.

“There is serious confusion in government and ministers about what accountability means and how it works. For instance, it is not clear, in terms of accountability, what will be the result of any failure to achieve National Outcomes. In the absence of this, the concept of accountability is rendered meaningless.” Wladyslaw Mejka (individual respondent)

“The Scottish Government should ideally opt out of it.” Jonathan Rainey (individual respondent)

“Scottish Government already aligns to the national outcomes. That must suffice.” Individual respondent

Other points raised in consultation responses are outlined below.

A few respondents (predominantly individuals and some public sector organisations) do not provide an explicit ‘yes’ or ‘no’ response to Question 11. Rather they provide other suggestions for consideration by Scottish Government, including, for example:

• it could be of greater benefit for Scottish Government to adopt a stronger role in supporting skill and capacity development at a local and national level to develop a greater understanding of what the data is saying and the evolution of good practice (Scottish Futures Trust)
• it could be of greater benefit for Scottish Government to adopt a stronger role in demonstrating the use of key national policies (for example, NPF and Programme for Government), taking a leading role in national practices (Scottish Futures Trust)
• the Scottish Government should be monitoring national progress (individual respondent)

Question 12

A total of 77% consultation respondents answered Question 12 which asked, ‘Do you have any views on the range and type of organisations that any duty should apply to?’.

Theme 1: Any duty should apply to all public bodies

Many respondents (all organisation sub-groups and individual respondents) reiterate points raised earlier at Question 11.

That is, strong support is expressed across these consultation responses for any duty to be applied across a wide range of public sector organisations, including Scottish Ministers, government departments and agencies, local authorities, and other public bodies to ensure they are accountable for promoting wellbeing and sustainable development.

The main messages from the qualitative feedback provided at Question 12 include that:

• any duty should apply to Scottish Government, Scottish Ministers, and all public bodies – there should be no exemptions to ensure transparency and accountability, and to increase trust
• any duty should apply to all public bodies – as they have a direct relationship with Scottish Government or Scottish Parliament and receive funding from public sources
• any duty should apply to all public bodies – as they play an important role and make an important contribution towards delivery of the National Outcomes

The following quotes provide further insight into the points raised on applying duties to all public bodies.

“If we want wellbeing and sustainable development to be at the heart of decision-making, then the duty should apply to all public bodies and Scottish Ministers. It would be useful to provide a definition of ‘public bodies,’ as per the 'Public bodies in Scotland: guide', so that it is clear what is meant by a public body.” National Trust for Scotland

“The purpose of the Bill is to define wellbeing and sustainable development, as expressed in the National Outcomes, as overarching goals of decision-making in Scotland, so it is important the duty should apply across all public bodies in Scotland including Scottish ministers.” Edinburgh Voluntary Organisations’ Council

“It is expected that the duty would apply to all public bodies who are already delivering intervention and investment aligned with the National Outcomes and in accordance with their devolved duties. However, it would be expected that the duties would need to be applied proportionally to enable flexibility in delivery.” South of Scotland Enterprise

“We propose that the Bill should follow the definitions of public bodies as laid out in Part 2 Paragraph 6 of the Welsh Wellbeing of Future Generations Act. The duty should give all public bodies the permission, obligation and framework to consider the wellbeing of the young and future generations in all decision-making processes.” Intergenerational Foundation

Theme 2: Any duty could apply more widely beyond public authorities

Some consultation respondents (a mix of individual respondents and organisations, including but not limited to the public and third sector) feel that consideration could be given by Scottish Government to how any duty could extend beyond public bodies (including Scottish Government and Scottish Parliament) and apply to the third/non-commercial sector and private sector.

While a few individual respondents note in their response that there should be no exemptions, a few third sector organisations are of the view that any duty should not apply to all charities, and that a “voluntary” or “opt-in” approach could be considered to “help leverage expertise, resources, and networks to advance shared goals.”

Points raised in support of any duty extending beyond public bodies to apply to the third and private sectors, include that:

• any duty should apply to all third and private sector organisations that receive public funding and/or who deliver contracts or services on behalf of Scottish Government, its agencies, and local government
• applying the duty only to public bodies may be less effective, as the third and private sectors also influence the achievement of wellbeing and sustainable development outcomes – it is suggested that progress towards achievement of National Outcomes could be slower and more fragmented as a result, not least as “collaboration, partnership, and collective action across different sectors and stakeholders are essential for achieving meaningful and lasting impact in advancing these shared goals”

Limited feedback is provided in relation to size of organisation that any duty could possibly apply to, however, in its response EAUC note that the duty “should also be applied to non-SME businesses as a minimum.”

A few organisation quotes are presented below.

“I think that a duty should apply to the Scottish Government, and all public bodies. I would also like to see some ideas around how it applies to the private sector. In previous Government reports, e.g. the National Strategy for Economic Transformation, there has been some stipulations around working together in Scotland towards creating a wellbeing economy, but this has not been supported with any direction for non-governmental bodies (private and third sector). Even if there were softer measures for the private and third sector, such as simple guidelines or encouragement, this would be helpful.” Christopher Boyce (individual respondent)

“Placing a duty on public bodies represents only one small part of the whole societal action that will be needed to achieve the desired outcomes…thought needs to be given to a wider application of economic, social, and environmental responsibility across society. For example, is a wellbeing economy simply a product of the conditions created by public bodies, or does it depend on the actions of private businesses and entities, voluntary and third sector bodies, communities etc as well as the public sector? This is not to say that the private or voluntary sectors should be subject to a similar duty, but dealing with broad societal problems must be holistic by definition, supporting the drivers and implementation of desired outcomes across different sectors according to the evidence and policy approaches best suited to those sectors.” Scottish Borders Council

“Government departments, arms lengths bodies and non-departmental public bodies. Local authorities and health boards and education board -essentially all public bodies, given the scope of the Bill…Opt-in option for relevant national-level charities with a wellbeing or sustainability focus.” Historic Environment Scotland

“Where possible, the duty should also extend to private and third sector organisations contracted to deliver devolved public functions when carrying out those functions. This could follow a similar approach to Fair Work, whereby tendering and procurement processes are made conditional on adherence to the duty, but where responsibility and accountability for ensuring compliance ultimately lies with the commissioning body.” Health and Social Care Alliance

“Non-profit organisations, charities, and other groups often play a vital role in promoting well-being and sustainable development through advocacy, service delivery, and community engagement. Encouraging voluntary compliance could help leverage expertise, resources, and networks to advance shared goals.” Culture Counts

“Care will need to be taken with regard to public authorities/bodies which are charities.” National Library of Scotland

“Businesses play a significant role in supporting, enabling and delivering on the ambitions of the National Performance Framework, particularly regarding fair work and environmental sustainability. Similarly, as suppliers of products and services to public bodies including Scotland’s colleges and universities, businesses can be supporters and enablers of helping Scotland’s public bodies meeting their wellbeing and sustainable development objectives. Without hard and soft powers to pivot businesses towards fulfilling their potential as actors of the National Performance Framework and supporting public bodies with their objectives, the realisation of Scotland’s ambitions will be slower and more fragmented.” EAUC

“Given that the duty related to the use of National Outcomes applies to organisations carrying out public functions, clarity should be given on whether a duty to uphold sustainable development also applies to private businesses that are providing public functions. This is especially relevant in STEM sectors that may be providing public works such as civil engineering, construction, or forestry, that are providing relevant services for a net zero economy and just transition and have existing inequities including gender inequalities in their workforce.” Equate Scotland

Theme 3: Additional duties should not cause an additional burden

A few public sector organisations consider it important that any duty applied to public and/or other bodies or organisations should not result in an additional financial or reporting burden on those organisations. Some support is expressed for a pragmatic and proportionate approach, in particular for smaller organisations.

A couple of organisation quotes which reflect points raised are presented below.

“It is important that any changes do not result in a disproportionate governance implication for some of the smaller public bodies.” Scottish Road Works Commissioner

“As far as possible any new duty should not add to reporting, but should be integrated into, or replace, existing requirements.” NatureScot

“Acknowledgement needs to be given to the resource and capacity of public sector bodies to deliver.” Creative Scotland

“We would agree that it is important for public bodies, and other bodies delivering public services including many third sector organisations, to be accountable to any new duty that arises. However, the success of this in practice will be reliant on the reflection of such duties within existing and future policy and strategic plans, and the provision of sustainable resource to meet said duties…the third sector is not currently being sustainably funded and requires fair funding arrangements to be put in place.” Volunteer Scotland

“Considering sustainable development all relevant decision-making may not be possible unless public bodies had a clearer understanding of budgets for several years in advance.” Office of the Scottish Charity Regulator

Theme 4: Do not apply the duty to any organisation

A few individual respondents feel that the duty should not apply to any organisation. Limited qualitative feedback is provided, but points raised include that:

• no organisation should be obligated by this type of duty
• duties set out in this consultation should not be applied

Other points

An alternative viewpoint is expressed by, for example, Scottish Children's Reporter Administration, who say:

“No, that would be for Government to determine based on an assessment of what will be needed in order for them to report accurately against the National Outcomes.” Scottish Children's Reporter Administration

Some consultation responses highlight the importance of collaboration and partnership working in delivering against the National Outcomes (as outlined above), with a wider point made that:

“Further guidance may be of use in terms of lead agencies/bodies within partnerships in terms of which body takes responsibility in ensuring the duties are met.” NHS Ayrshire and Arran, Public Health Department

“It may be worth teasing out whether and how individual organisations are responsible for implementing the duty and whether or how these organisations have responsibility when in partnerships, for example, Community Planning or health and social care integration.” UK Environmental Law Association

Event summary - Clarifying to whom the duties apply

The duties should apply to public bodies, including Scottish Government and Scottish Ministers

There is broad consensus among event attendees that the duties should apply to public authorities in Scotland, including Scottish Government and Scottish Ministers. Views expressed include that:

• this would help to bridge the ‘implementation gap’ in delivery of the National Outcomes - any duties should be supported by regular engagement and reporting on delivery of the National Outcomes (at least biennial) to increase accountability and transparency to stakeholders and the general public
• this would ensure that Scottish Government and Scottish Ministers play a leadership role - legislation on public bodies is difficult to justify if it excludes holding Scottish Government and Scottish Ministers to account

Other organisations to whom the duties could apply to

Different viewpoints are expressed by event attendees in relation to whether the duties could apply beyond public authorities.

On the one hand there is feedback that is supportive of the duties applying to the private and third sectors – for completeness (for full societal representation), and in recognition that other sectors influence and contribute towards the delivery of National Outcomes. For example, private and third sector organisations that receive public funding or who deliver contracts and services on behalf of public authorities. Another example is that parts of the private sector can, through their activities, have a negative impact on collective wellbeing and sustainable development, and should therefore be held to account. Some support is expressed for a fair and proportionate approach to any reporting requirements.

Other event attendees acknowledge that the duties may not apply to the private and third sector, but that it would still be important for Scottish Government to engage these sectors in dialogue at an early stage and on an ongoing basis. Not least, as noted above, these sectors influence and contribute towards delivery of the National Outcomes and provide services on behalf of, or directly to, public authorities. It is important to consider that there may be varying levels of understanding of the NPF and National Outcomes, and some organisations may require additional support should the duties impact on their planning and reporting structures.

Conversely, some event attendees are unsure whether the duties should apply to private and third sector organisations. Feedback includes that:

• a ‘catch-all approach’ may be difficult to implement, particularly where services are delivered by non-Scottish owned or non-indigenous organisations
• it may be better to focus on ‘making it work’ among public authorities before widening the scope of who the duties apply to
• extending the duties to other sectors could be challenging – there may be constrained financial resources and capacity to comply with any additional reporting requirements, in particular among smaller organisations