Environment - guiding principles consultation: statutory guidance – Parliamentary statement and analysis report

Annex A Summary of consultation workshops

Three consultation workshops were held online in mid-January 2022. The purpose of the workshops was to;

• Provide an overview of the relevant provisions of the Continuity Act;
• Provide an overview of the purpose and contents of the draft statutory guidance;
• Answer any questions participants may have had regarding the draft statutory guidance and the new duties;
• Ensure the final version of the guidance is clear, comprehensive and useful; and
• Raise awareness of the forthcoming introduction of the duties.

A presentation from Scottish Government officials was given, followed by an open question and answer session. A summary of the main issues and topics raised at each event follows below. Informal feedback provided at these events has also been used to shape the final version of the guidance.

The workshop sessions were primarily organised into three sectors; public bodies, environmental NGOs and regulated sectors, however, stakeholders were free to attend whichever session(s) best suited their availability. Due to the COVID-19 regulations and guidance in place at the time it was not possible to host face-to-face workshops.

4.1 Workshop One - Tuesday 18 January 2022

Twenty-eight (28) attendees joined the workshop, comprised of representatives from local authorities, public bodies, Scottish Government, civic society organisations and UK Government.

Questions raised by attendees covered the following topics/areas;

• Will the duty also apply to the environmental impact assessment regime, as well as the Strategic Environmental Assessment regime?
• Will further advice be provided to the consultation authorities regarding the new duty and the information they will receive? What will the role of the consultation authorities be in relation to this new duty?
• When will the Scottish Government's updated Strategic Environmental Assessment ("SEA") guidance be released? Will any further changes be made to the SEA guidance?
• How will consideration of the duties be included in the forthcoming fourth National Planning Framework ("NPF4")?
• Will the duties apply retrospectively? How will the duties apply to areas where the principles have not been considered, but where application of the principles would have resulted in different policy/legislative decisions?
• Will the introduction of the duties introduce a new stream (or open door) for challenge to decision making?
• Questions regarding the establishment of Environmental Standards Scotland, its remit and its role in the enforcement of the new duties.

4.2 Workshop Two - Wednesday 19 January 2022

Nine (9) attendees joined the workshop, comprised of representatives from environment NGOs, local authorities and other sectors.

Questions raised and comments provided by attendees covered the following topics/areas;

• Is the duty being implemented within Scottish Government before the provisions are commenced and brought into force? If so, how is this operating in practice? What dialogue is happening internally regarding these new provisions?
• Discussion as to how the principles can be reflected within existing plans/programmes, which will be finalised before the duties are brought into force.
• How have the principles shaped the development of the NPF4 and how has this been reflected within the documentation?
• Further emphasis could be placed on the importance of early consideration of the application of the principles early within the decision-making process (in all circumstances where the duty applies).
• How will consideration of the duties be recorded by Scottish Ministers where the 2005 Act applies? How can this information be accessed, to ensure transparency, in circumstances where a consultation report or other public document is not produced and published?
• Will consideration of the guiding principles shape the development of the new Human Rights (Scotland) Bill?
• Could an additional case study be provided which demonstrates the application of all five principles within a single policy/legislation?
• Could an additional case study be provided which demonstrates how the duty could apply to individual regulatory decisions?
• Could a single page short summary be provided within the guidance which sets out all five principles, the legal definition and the interpretation?
• Further detail regarding reserved matters, where the UK Policy Statement will apply, would be useful.
• Comments were provided on the specific wording of paragraph 2.9 and 5.3 and how these paragraphs could usefully be reframed to support duty holders.

4.3 Workshop Three - Thursday 20 January 2022

Twenty-six (26) attendees joined the workshop, comprised of representatives from regulated sectors, eNGOs, academia and public bodies.

Questions raised and comments provided by attendees covered the following topics/areas;

• Could an additional case study be provided which covers a policy area less directly connected to environmental concerns?
• Could additional information be provided regarding the other duties which public authorities are subject to and will need to consider alongside the guiding principles?
• The interpretation provided of the 'polluter pays principle' focusses more on a reactive application of the principle, as opposed to encouraging duty holders to focus on 'potential polluters' (i.e. via decommissioning bonds or similar). Could the interpretation provide further information regarding these considerations?
• The guidance could provide stronger encouragement for duty holders to consider the guiding principles from the start of the policy development process.
• Will the guiding principles shape the process of developing the new agricultural subsidies regime?
• The strength of the duty and how that is expressed and whether there is any scope for a stronger duty to comply to be introduced.
• The scope of the financial and budgetary exclusions on the duty for Ministers and whether this would apply to matters such as subsidies or fiscal incentive policies.
• Whether the guidance could provide further information regarding how consideration of the principles could be recorded in circumstances where an Environmental Report is not required and how this information could be made publicly available. Examples of possible recording mechanisms may be helpful.
• Whether the current wording around balancing the duty with other considerations/obligations could be reframed to more positively encourage compliance, as opposed to highlighting the limits of the scope of the duty.