Wellbeing and Sustainable Development Bill: consultation analysis

8. Determining an approach for future generations

Introduction

This chapter presents analysis of consultation responses to the three questions asked within the ‘Determining an approach for future generations’ section of the consultation.

Question 17

Table 8.1 presents the quantitative response to Question 17 which asked, ‘Should Scotland establish an independent Commissioner for Future Generations?’.

Feedback is mixed, and points to note include that:

• less than half of all consultation respondents (43%) consider that Scotland should establish an independent Commissioner for Future Generations - more organisations than individuals express this view
• 39% of all consultation respondents either ‘don’t know’ or left the question unanswered - this is most prominent among organisation respondents, in particular public sector bodies
• the remainder of all consultation respondents (18%) are of the opinion that Scotland should not establish an independent Commissioner for Future Generations - more individuals express this view

N=180 (117 organisations and 63 individuals)

Percentages may not total 100% due to rounding

Question 18

Around 70% of consultation respondents provide a response to Question 18 which asks the question ‘In what ways could an independent Commissioner for Future Generations increase the accountability, scrutiny, and support for decision-making.”

Responses do not all directly relate to Question 18.

Rather, many respondents provide a rationale for how they answered the previous question (Question 17). As an example, these respondents often provide further explanation as to why they consider that Scotland should or should not establish an independent Commissioner for Future Generations or why they are unsure.

From a review of the consultation responses to Question 18 there are four broad themes, and these are considered further below.

Some points raised in consultation responses are cross-cutting and relate to all four themes. An example is that almost all respondents emphasise that existing arrangements and structures could be used (even if a Commissioner for Future Generations is established) for implementation of the Wellbeing and Sustainable Development Bill to be effective.

Theme 1: Establishing a Commissioner for Future Generations is the correct approach

Some respondents reiterate their support for establishing a Commissioner for Future Generations, for the rationale that underpins the introduction of a new Commissioner, and/or identify the benefits that an independent Commissioner for Future Generations could offer Scotland.

This support is reflected in a variety of points raised by these respondents, such as:

• a Commissioner for Future Generations could help ensure government and public bodies take a preventative and longer-term perspective to decision-making (rather than a short-term reactive approach) that keeps the interests of current and future generations at the forefront of policy making
• the interests of future generations are currently not well represented in Scottish democratic processes, and a Commissioner for Future Generations could give a stronger voice to both current/existing and future generations
• a Commissioner for Future Generations could help to hold government and public bodies to account by ensuring they consider the long-term impact their decisions have
• a Commissioner for Future Generations could help facilitate collaboration, joint working, and coherence across the public sector at a national and regional level, including support to multi-stakeholder, cross-sector, and intergenerational partnerships
• the perceived success of the broadly similar approach and role adopted in Wales (and other countries), including the establishment of a highly visible ‘champion,’ ‘guardian,’ or ‘ambassador’ for future generations

Learning from other countries or models (for example, Environmental Standards Scotland and the previous UK Sustainable Development Commission) is considered a sensible approach. Albeit a few respondents highlight some differences that may need further consideration. An example provided is that the title of the legislation in Wales is reflected in the title of the commissioner (that is, Future Generations appears in both), whereas this is not the case for the proposed approach in Scotland (and therefore the title of the proposed Commissioner is questioned).

Many respondents set out the different ways in which an independent Commissioner for Future Generations could increase the accountability, scrutiny, and support for decision-making. These responses are typically framed or caveated in terms of current ‘unknowns’ including:

• what the remit of an independent Commissioner for Future Generations would be?
• whether the mandate for a Commissioner for Future Generations is wider than future generations?
• what powers an independent Commissioner for Future Generations would have?
• the extent to which a Commissioner for Future Generations would be able to hold government and public authorities to account?
• whether a Commissioner for Future Generations would be equipped with adequate staffing and resources to undertake the role effectively?
• how to minimise overlap and/or duplication with existing commissioners?
• how a Commissioner for Future Generations would interact and work together with existing and proposed commissioners and other relevant stakeholders (for example, Scottish Youth Parliament is mentioned in consultation responses)?

Where feedback is provided, respondents suggest that an independent Commissioner for Future Generations could increase the accountability, scrutiny, and support for decision-making, by undertaking a variety of roles such as:

• informing, promoting, and sharing good and innovative practice and lessons learned among public bodies
• knowledge sharing
• an advocacy and influencing role
• thought leadership
• setting and upholding standards
• championing sustainability appraisals
• education and awareness raising of the most pressing issues and challenges, and on the areas of greatest importance and impact
• providing advice, assistance, guidance, templates, tools, and other resources to help public bodies with implementation of any new duties
• carrying out research and supporting policy development
• developing mechanisms to ensure the voices of children and young people are heard and/or to support public bodies to better include these voices in meaningful and participatory decision-making
• complaints handling
• having an auditing or independent scrutiny role or function
• carrying out investigations of public authorities’ compliance with the duties, and providing recommendations to public bodies on areas for improvement
• enforcement and intervention
• monitoring, evaluating, and reporting of progress to the Scottish Parliament

Theme 2: Issues for further consideration should a Commissioner for Future Generations be established

Most respondents who answered ‘don’t know’ to Question 17 or who left the question unanswered (as well as those respondents in Theme 1 above) identify a range of issues that may require further consideration by the Scottish Government should a Commissioner for Future Generations be established.

These consultation respondents are in broad agreement, that to be effective and agile, an independent Commissioner for Future Generations would require to have sufficient powers, resources, and independence.

Specific points raised by these respondents are that an independent Commissioner for Future Generations should:

• have a clearly defined role, remit, purpose, and function
• 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) - it should be clear where a Commissioner for Future Generations fits into the landscape to ensure a coherent and joined-up approach
• not result in overly burdensome scrutiny, inspection, and regulation of public bodies - for example, broad support is expressed for utilising existing reporting mechanisms where possible (Public Bodies Climate Change Reporting and reporting mechanisms which will be established through the forthcoming Human Rights Bill are mentioned)
• have adequate resources and powers to fulfil its role and remit
• be independent from government and have sufficient authority

A further comment raised by some of these respondents is that public bodies would require additional support to:

• understand and implement the new duties imposed on them by the Wellbeing and Sustainable Development Bill
• equip people working within public bodies with the skills to think long-term
• ensure a consistent approach to monitoring and reporting on progress
• undertake regular reviews of progress to encourage a culture of learning and continuous assessment, as well as to support improvement

Training and other capacity building support is specifically mentioned in these consultation responses as a potential way to help public bodies (that is, staff, elected members) implement any new duties and to embed the longer-term cultural change required to ultimately ‘mainstream’ wellbeing and sustainable development across all public authorities in Scotland.

Theme 3: Is there a middle ground?

Some respondents are unsure about the need for a Commissioner for Future Generations and raise points related to whether a commissioner is the best way to address issues such as increasing the accountability, scrutiny, and support for decision-making.

These respondents are more open to how this could be achieved.

The main points raised by these respondents 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 - where existing commissioners/bodies are mentioned in consultation responses, this includes Scotland’s Commissioner for Children and Young People, Auditor General in Scotland, Audit Scotland, Scottish Human Rights Commission, and Scottish Public Services Ombudsman
• an expert panel of children and young people could be established
• alternatives could be identified and assessed by Scottish Government prior to finalising an approach
• should an alternative route to a Commissioner for Future Generations be taken forward to provide oversight, the body should be independent of government, adequately resourced, and their duties and powers clearly laid out

A few respondents suggest that further consideration of a ‘middle ground’ may be appropriate in the context of ensuring a proportionate and cost-effective approach.

Theme 4: There is no requirement for a Commissioner for Future Generations or the case for such an appointment has not been made

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 the Scottish Government raise several concerns including that:

• Scotland has several existing commissioners and scrutiny bodies – these respondents suggest that the same objectives and functions could be achieved using existing structures and processes (with due regard for any significant changes to their remit and additional demands on skills, capacity, and resources)
• establishing a Commissioner for Future Generations could create an additional layer of bureaucracy for public bodies, including an additional reporting burden - at a time when public bodies are already experiencing capacity constraints
• a new Commissioner for Future Generations could complicate and confuse the existing scrutiny, inspection, and regulation landscape - these respondents highlight issues such as commissioners being set up in different ways, as well as having different remits and power
• the recent and proposed expansion of commissioners in Scotland is said to have led to ‘under-funding,’ ‘fragmentation,’ ‘duplication,’ and diluting the ‘special’ attention paid to a particular group or issue resulting from - it is felt that these issues can inhibit the ability of commissioners to work effectively
• the cost of establishing and maintaining a Commissioner for Future Generations, including a team of staff to support the Commissioner, is likely to be significant, may not represent best value in the context of reduced public sector resources, and/or may direct limited financial resources away from direct action, from funding other things, or from delivery of front-line services

Further, some of these respondents mention the Scottish Parliament Finance and Public Administration Committee current inquiry – Scotland’s Commissioner Landscape: A Strategic Approach – in their consultation response. Points made include that respondents are responding to this consultation, and that it may be prudent for Scottish Government to carefully consider the findings of this inquiry before reaching a final decision regarding whether Scotland should establish a Commissioner for Future Generations.

Question 19

Around 60% of all consultation respondents provide a response to Question 19 which asked, ‘Are there alternative ways Scottish Government can increase the accountability, scrutiny, and support for decision-making’?

Theme 1: A repeat of views raised earlier

Respondents agree that it is important to ensure clear accountability and scrutiny of public bodies, and to ensure high standards in published reporting.

Where differences in opinion arise within consultation responses is around the best way to achieve this and how to increase the accountability, scrutiny, and support for decision-making.

Many consultation respondents simply reiterate points raised at Question 18 and this is often dependent on how they have answered Question 17. For example:

• respondents who support the establishment an independent Commissioner for Future Generations suggest that: such a role would be an effective and appropriate use of resources; it would help to raise awareness of accountability, scrutiny, and support of Scotland’s sustainable development and wellbeing objectives; and legislation is the most effective way to achieve the Bill’s aims to strengthen accountability to National Outcomes and deliver better outcomes for people and planet
• respondents who are unsure note that the existing landscape of commissioners and scrutiny bodies could be considered by Scottish Government when developing proposals for a new commissioner, body, or function to ensure any potential synergies, overlaps, or conflicts of functions are taken into account
• respondents who do not think an independent Commissioner for Future Generations is needed (or case not made) suggest that the same objectives could be achieved through existing structures and through existing/ forthcoming reporting mechanisms

Theme 2: Alternative approaches to increasing the accountability, scrutiny, and support for decision-making

As described above, some consultation respondents consider it important that Scottish Government review and consider alternative approaches or models to that of a Commissioner for Future Generations prior to making a final decision. This includes some respondents who express support for the establishment of an independent Commissioner for Future Generations at Question 17.

These respondents typically suggest that Scottish Government could consider both statutory and non-statutory approaches.

Suggestions include that the Scottish Government could:

• draw on lessons from previous commissioner roles to improve collaboration and sharing of best practice
• consider the experience from Wales and other relevant countries - as an example, a point raised is other countries do not rely on commissioners alone to achieve these functions, and that advisory councils and commissions representing a wide spectrum of civil society actors, and parliamentary groups and committees are widely employed alongside commissioners or ombudsmen as part of wellbeing and sustainable development governance ecosystems
• explore ways to develop stronger systems – suggestions include: establishing a framework to guide sustainability appraisals undertaken by public bodies; improved impact assessment processes; revised cost/benefit analysis that gives greater weight to environment, equity and future people’s wellbeing accompanied by increased, specific ‘watchdog’ responsibilities for relevant bodies; an intergenerational fairness framework that measures how policy proposals might impact upon future generations in a range of ways; and application of strategic foresight techniques

Another suggestion is that Scottish Government could review the existing evidence base to identify issues, lessons learned, and other possible approaches. The following reports are mentioned in consultation responses:

• The Crerar Review: the report of the independent review of regulation, audit, inspection, and complaints handling of public services in Scotland (2007)
• Christie Commission on the future delivery of public services report (2011)
• Locality report Saving Money by doing the right thing (2014)
• Carnegie UK, Children’s Wellbeing and the Scottish Budget (2020)
• Scottish Parliament, Tackling Health Inequalities in Scotland (2022)
• the outcome of the Democracy Matters consultation (2023)
• Scottish Human Rights Commission, At a Crossroads - which way now for the human rights system in Scotland (2023)
• Wellbeing Economy Alliance, Failure Demand

The most commonly identified alternative approach identified by these respondents is that Scottish Government could consider:

• using, adapting, or extending the remit of existing structures and reporting mechanisms with due regard for the additional demands on skills, capacity, and resources
• whether an existing public body could take on the duties of the proposed Commissioner as a way to reduce the potential for duplication and create efficiencies

A couple of respondent quotes which reflect points raised are set out below.

“It is important to note, however, that all of these approaches themselves involve resourcing demands. The capacity to undertake scrutiny; support and learning resource development; promotion or voice for this agenda, all come with resource implications regardless of the institutional form they take.” Wellbeing Economy Alliance Scotland

“While levying duties through the Act on these bodies would avoid the upfront cost of establishing a Commissioner for Future Generations, it would simply pass the financial burden of managing and enforcing new duties to these institutions. Investment will be needed either way.” Individual respondent

Suggestions proposed by these consultation respondents include that Scottish Government could consider:

• extending and strengthening the duties of Audit Scotland
• how the Auditor General for Scotland role could help with evaluating and encouraging good practice and impact in achieving wellbeing objectives
• the role of the Scottish Public Services Ombudsman
• extending the remit of the Children and Young People's Commissioner Scotland to incorporate the interests of future generations
• mandating accountability to citizens’ bodies - for example, citizens’ assemblies such as periodic citizens’ assemblies or citizen panels
• a formalised Parliamentary process, for example:
  • a specific Minister to ensure integration across government
  • establishing formal links to the Prime/First Minister as a way to guarantee a role in promoting, establishing, and safeguarding wellbeing and sustainable development concerns
  • enhanced scrutiny though the Scottish Parliament committee system (either though a dedicated committee, or a requirement that applies to all committees) - renewed use of parliamentary, cabinet, and official committees could improve collaboration, sharing of good practice and scrutiny
• rationalising existing related planning, monitoring, and reporting duties in order to provide public bodies with clarity of focus and encourage holistic approaches to generating impact - for example, reporting of wellbeing alongside other related policy areas such as corporate parenting, equality, fair work, and children’s rights

A few respondents suggest that other public sector bodies could be encouraged to have a similar role within their organisations.

Other alternative approaches identified in consultation responses, but to a lesser extent, can be grouped under the following headings:

Information, data, and reporting, including:

• ensuring availability of quality local and national data to help public bodies appraise activity against National Outcomes and support evidence-based decision-making
• strengthening Freedom of Information legislation in support of more open democracy
• increasing transparency by holding government and public bodies to account through improved monitoring and public reporting of information and data
• establishing mechanisms for evaluating and learning from past decisions and experiences to improve future decision-making processes

Capacity building support, including:

• Scottish Government could explore how it could help support sustained capacity building and resourcing, facilitating collaboration and partnerships to collectively address complex challenges and opportunities - for example, among government agencies, organisations, businesses, academia, and community groups

Other, including:

• providing greater cohesion across activities such as the Regional Economic Partnership Networks, in particular Regional Intelligence Hubs, to create greater impact and value for money

Event summary - Determining an approach for future generations

Support for a Commissioner for Future Generations

Event attendees who express support for the establishment of a Commissioner for Future Generations highlight several benefits of this approach, including:

• improved focus on the future/long-term and delivering against outcomes rather than short-term policy making and decision-making
• leadership and influence – a figurehead who has a ‘helicopter view’ of what is going on
• shaping thinking and showing that the public sector takes these issues seriously
• greater coherence and unity

Common points raised include that a Commissioner for Future Generations should:

• be independent from, and accountable to, Scottish Ministers
• be held accountable through citizens assemblies or similar
• be appropriately resourced
• have sufficient powers to make a difference (some ‘teeth’) – education, providing challenge, encouragement, support, scrutiny, intervention, enforcement, impartial reporting
• facilitate better public engagement, including conversations with young people

Wider points raised about a Commissioner for Future Generations include that:

• further clarity and detail is required on aspects such as: definition (are they enforcers, advisory, non-departmental public body, parliamentary); scope of the role and duties (important to avoid having to make subsequent changes in legislation to expand the powers); how the person would be selected; number of years the person would be in post (needs to be long enough to make an impact); and cost
• consideration could be given to changing the name to a Commissioner for Wellbeing and Sustainable Development
• Scottish Government could draw on lessons learned from Wales, including guidance, toolkits, horizon scanning, and from other commissioner roles (for example, Active Travel Commissioner, previous Sustainable Development Commissioner)
• a like-for-like approach to that of other countries, such as Wales, may not be what is needed - the commissioner would need to link in with what already exists as Scotland is further on than Wales, and the existing commissioner and public authority landscape in Scotland is also different
• the person would need to follow the agenda of both people and planet, not just human needs
• Public Health Scotland could work to support a commissioner given its reporting requirements

Is there an alternative approach?

Alternative approaches to a Commissioner for Future Generations are suggested, including that:

• the role and remit of an existing commissioner or body could be extended – ‘adding a Future Generations angle to others work’? – Audit Scotland and Scottish Human Rights Commission are mentioned but there may be capacity and authority constraints to oversee wellbeing and sustainable development effectively within existing remits
• Scottish Government could explore other alternative approaches and structures that might not need a figurehead role – for example, Environmental Standards Scotland is mentioned
• there could be a role for existing Parliamentary Committees
• such a role could sit within auditors or parliament – but there are mixed views on this
• the role could be carried out by other leaders across the public sector
• the role could be wrapped up in a Human Rights Commissioner as part of the Human Rights Bill

Proliferation of commissioners is widespread in Scotland - but they are not the only answer to these requirements. There is a need for simplification. It is an expensive model even for small offices for commissioners. A concern raised is that we have said ‘do we need a commissioner’ before fully examining the need and scrutiny in full. Important to consider innovative approaches to provide scrutiny and support, beyond just the commissioner approach. Would the role deliver value for money, is it needed, and is it affordable in the current climate?

Could we turn this on its head and the commissioner is the starting point – could they help us get off the ground, could they be the one to figure out how we move this forward before we get to implementation and delivery. The Commissioner is outside of the system, gets under the skin of it but is our starting not end point.

Another suggestion is to consider ‘doing something incrementally’ – in recognition that ‘the Welsh approach has limitations and challenges, so no response is optimal and guaranteed to be successful.’

Other considerations

Other considerations identified across the event notes include that:

• the findings of the Scottish Parliament’s Finance and Public Administration Committee inquiry into the commissioner landscape, looking at whether there is a coherent and strategic approach, may influence the decision
• it is important to define what you are aiming to achieve and the best way to deliver that bearing in mind what is already available and what needs introduced
• opportunities for shared approaches/collaborations with other commissioners could be considered
• it is important to avoid conflict or overlap with other duties - for example, Consumer Duty – and to ensure coherence on the reporting on duties
• public authorities are facing tight financial budgets – any duty needs to be seen to operate in this context
• non-executive bodies and parties, as well as ministerially appointed positions within public bodies, may also help strengthen the duties