Official Report 682KB pdf
Our next item of business is the final stage 1 evidence session on the Wellbeing and Sustainable Development (Scotland) Bill. I welcome to the meeting Sarah Boyack MSP, who is the member in charge of the bill; Sean Taheny and Roz Thomson, who are from the non-Government bills unit; and Caroline Mair, who is a solicitor from legal services at the Scottish Parliament. Thank you all for joining us.
I invite Sarah Boyack to make some brief opening remarks.
Thank you, convener, and good morning to colleagues on the committee. As the member in charge of the Wellbeing and Sustainable Development (Scotland) Bill, I am looking forward to answering your questions.
The bill is about putting wellbeing and sustainable development at the heart of public sector decision-making. It seeks to create a clear legal framework to help public bodies to think long term, act sustainably and promote the wellbeing of current and future generations. Committee members will be aware that I feel passionately that we have to do more to further embed wellbeing and sustainable development as the key drivers that inform policies, decisions and actions that are taken across the public sector.
Scotland faces major challenges, and they are interconnected. They include the climate and nature emergencies, poverty and inequality, and they threaten the wellbeing of people today, including our constituents, and future generations. Too often, short-term priorities have driven decisions over long-term sustainability. That is understandable, but it has led to decades of decisions that harm the environment, entrench inequalities and will make the lives of future generations worse. To fix that problem, we need to embed wellbeing and sustainable development as core considerations in decision making in order to get policy coherence. We need to support public authorities to do that—to think long term, act sustainably and put wellbeing at the heart of their work.
Attempts by the Scottish Government to embed wellbeing and sustainable development at the heart of public sector decision making have not gone far enough. Committee members will recall that, before the last election, there were more than 150 organisations campaigning for us to put those ambitions into legislation. Without a clear legal framework, public bodies are left without the tools, the guidance or the accountability to make meaningful progress and deliver joined-up thinking. We need a different approach.
My bill does three things. It places a statutory duty on public bodies to have due regard to the need to promote wellbeing and sustainable development. It defines those terms in law, to provide clarity and consistency. I am conscious that, over the years, we have had numerous references to sustainable development in law, but we do not have a definition of it. Finally, my bill establishes an independent future generations commissioner, drawing on the successful Welsh model, to provide guidance, share best practice and hold public bodies to account.
Public bodies face real challenges and pressures, and that is why the commissioner’s role is not only about oversight, but about support. That is critical. The commissioner would help public bodies to meet their responsibilities and improve outcomes over time. There is a challenge in that Governments and Parliaments change too often for us to get that consistent focus on long-term issues. That makes it even more challenging to tackle those issues. I have been looking at different pieces of legislation, reviews and reports that have been produced over the time of our Parliament, and we do not have that consistent, joined-up thinking and accountability. That makes it even more challenging to tackle the issues that are in front of us, and stakeholders with deep expertise in the area have made it clear that we need to do more. It is not just a campaigning issue; it is an issue of policy coherence, joined-up thinking and action.
I worry that, without an independent body to offer continuous and dedicated oversight, Scotland will continue to fall behind on the United Nations sustainable development goals and we will see a cycle of short-term fixes. The bill is a chance to change that.
I have found it constructive to hear the questions that the committee has asked and the discussions that you have had thus far. I thank all those who have given evidence in Parliament or provided written evidence for their helpful insights. I have been reflecting on the issues that have been raised and I look forward to discussing them with the committee this morning.
Thank you. We move to questions.
In taking evidence, the committee has heard overwhelming support for the policy objectives that are set out in the bill, including the one about policy coherence for sustainable development. We have also heard some witnesses say that those objectives could be met without a change in the law. How do you respond to that assertion?
Having looked at the frameworks that are in place, I am very conscious that I want to get that joined-up thinking, which has not happened thus far. It is not about a lack of ambition or support—it has just not been happening, and the challenge lies in being able to deliver it.
The national performance framework was introduced in 2007. There are regular thoughts about the issues in Parliament, but they are not joined up. We need both policy coherence and accountability. It has been interesting to look at how other legislatures across the world are joining up their decision making and holding organisations to account. The key is to have support, policy guidance and a backstop that says that this is a duty and we need to be doing it now.
You mentioned the national performance framework. The committee has heard views that the existing duties that are placed on public bodies through the NPF and related legislation are too weak. Do you agree with that assertion?
I have looked at the reports that have been produced by different committees over the years, including those on the national performance framework and the Community Empowerment (Scotland) Act 2015. There are occasionally reviews in Parliament, but the legislation that we have at the moment is not delivering. The Finance and Public Administration Committee’s 2024 review of the national outcomes highlighted that we are not making the progress that we need to make. It also talked about the need for wellbeing and sustainable development legislation, which helped to push me forward.
There is a need to strengthen the legislation, because having a public duty pushes things up people’s agendas. If something is just seen as being nice to have, it will not happen. Some of the reports that have been produced show that we are not getting the reviews that we need. You mentioned the national performance framework and the national outcomes. It is striking that reviews of the national outcomes are done every five years—that is in the Community Empowerment (Scotland) Act 2015. The Scottish Parliament information centre blog shows the work that has been done, but we are not getting implementation on the national performance framework and the national outcomes.
We need to pull this together and push it up the agenda. Until we do that, we will not get the action that people agree that we need but which is not being implemented across public bodies and the Government.
We heard in evidence from the Scottish Government that it is reviewing the national outcomes and the national performance framework. It believes that what it will set out will help to deliver what you are trying to deliver with your bill. Is it possible that the Government will be able to achieve those aims with a review of the national performance framework and the national outcomes?
The evidence has been fascinating to me. I got permission to introduce my bill when there was enough support from colleagues, and that was when the Scottish Government announced its bill on wellbeing and sustainable development. I have been looking at the issue because the Government is now talking about reviewing the national performance framework, but that will not happen until next year and it will be a long time before we see the proposals. A potential piece of legislation is before you that could address those issues.
I am keen that we get that joined-up thinking. We are looking at NPF reform in early 2026, but we will then go into an election and we will have new ministers and people will move on. Retaining on-going and consistent oversight and accountability is a real issue. The wellbeing and sustainable development principles in the bill would assist the national performance framework—I am also thinking about the wellbeing outcomes—because they totally complement each other. The bill pushes all those things up the agenda. We should not keep delaying.
I reiterate that there was huge push for such a bill before the 2021 election. We are now at the end of 2025, so we need to get on with it. Passing the bill would support the Government’s ambitions and mean that more of the focus was on implementation rather than just targets, which is critical.
When you developed your bill, what lessons from the experience in Wales did you draw on?
I met the previous and current commissioners and it was really helpful to get their insights. The fact that the Welsh commissioner can produce policy guidance has been critical. Independent reports have shown that their work has changed the culture in public bodies in Wales and pushed wellbeing and sustainable development up the agenda. Lots of work has been done in Wales that we can learn from.
I am sure that you will come on to the discussions that you have had about shared knowledge and information. I remember that, in one of your evidence sessions, a witness spoke about the joined-up working in Wales and the fact that somebody from the Children’s Commissioner for Wales’s team worked for a short time in the Future Generations Commissioner for Wales’s team in order to share knowledge and best practice so that their work did not overlap, which is really important.
Another interesting thing is that those who are working on wellbeing and sustainable development in Wales have a body that pulls together organisations such as businesses, trade unions and public sector representatives, which enables them to ensure that the approach is coherent. It strengthens accountability and opens things up.
A concern was raised at a previous evidence session about overlap with existing organisations such as Environmental Standards Scotland. In Wales, interestingly, Natural Resources Wales sits on the statutory advisory committee. The joined-up approach to thinking brings stakeholders together, but also pushes the principles into the heart of Government. They work in partnership, and the reports to the Senedd’s Equality and Social Justice Committee and Public Accounts and Public Administration Committee have raised the profile of the commissioner, held them to account on their work and helped to move the Government and public bodies further ahead. There is public transparency, and those bodies know that, if progress is not being made, the Senedd committees and the commissioner will raise the issue up the agenda, which has been really helpful.
The commissioner partners and shares resources with the Welsh Language Commissioner and works with the Public Services Ombudsman for Wales, so the approach is much more joined up, even when it comes to considering how the commissioner works. That has been very successful, and there is good evidence in the reports that have been made to the Senedd, which Carnegie UK picked up on in its report on the commissioner’s work.
Since your bill was introduced, Audit Wales has assessed that the Well-being of Future Generations (Wales) Act 2015—we are now a decade down the line—has been
“changing conversations, influencing longer-term planning, and impacting day-to-day decision-making and working practices”,
but has not yet driven
“the system-wide change that was intended”.
We are looking for the golden thread of how to get policy coherence and deliver on wellbeing and sustainable development. How would your bill achieve the system-wide changes that we are looking for?
That report highlights that the joined-up thinking and support for organisations have been critical and have started to change outcomes. I can give some practical examples of where there has been change. A new hospital was being built in Swansea, and the then Future Generations Commissioner for Wales asked what was being done about environmental impact. The response was, “We’re NHS Wales—that’s not our job.” The commissioner pushed hard on the matter, and a solar farm was built at the hospital that generates £1 million a year, which goes straight into NHS Wales.
09:15Another practical example is the metro work that has been done in Wales. That has made significant changes to public transport, with increased passenger use, and it too was a direct result of the work of the commissioner. The approach has also involved reducing fares in areas of deprivation.
I am not saying that those things are happening everywhere or that such initiatives account for every single change that has been made, but those are practical examples of policy changes that have been made as a result of the commissioner’s reports and engagement with significant public sector bodies in Wales. The public sector investment that is being made now will deliver both short-term and longer-term benefits to people in Wales.
We have pockets of really good practice in Scotland, too. We might think of the moves that have been made in North Ayrshire with community solar farms and energy generation, for example. In the absence of a commissioner and legislation, would we just continue to have some pockets of good practice where public bodies have regard to sustainability and wellbeing in their local area? Could a revised national performance framework and revised national outcomes drive that change? Do you really believe that we need to have it in legislation?
I absolutely believe that we need to have both legislative change and the commissioner in place to push that forward. It is partly a matter of raising awareness across the public sector. There are lots of pressures, and people have to make short-term decisions. That is a reality of public sector life. The important thing is to push wellbeing and sustainable development up the agenda and share best practice.
Some excellent work is being done in different areas of Scotland, but it has not been replicated. You mentioned the excellent work that has been done in North Ayrshire, and I note that Aberdeen Heat & Power has existed for more than 20 years. There are some really good organisations. However, there is also risk. A commissioner would help public sector organisations to avoid taking risky decisions that could result in bad outcomes. Given the risk-averse nature of decision making, we need to share both best practice for what works and challenges that need to be overcome. That is really important.
Having a clear public duty pushes wellbeing and sustainable development up the agenda, and having definitions puts them centre stage. That approach means that, when public sector organisations make decisions—when a new building is being planned or new infrastructure is being put in place—wellbeing and sustainable development can be on the agenda. That is not the case at the moment. It is a question of building on and sharing best practice and enabling public sector organisations across the country to deliver wellbeing and sustainable development. The critical change is to have the definitions, the duty and the advice and guidance.
Good morning, Sarah. In your opening remarks you mentioned issues around public bodies, and we have heard quite a lot of evidence on that. Your bill includes references to public bodies promoting wellbeing and sustainable development. Should the bill require “delivery” rather than “promotion”?
I have been thinking quite a lot about terminology, and a few suggestions have been made about how to strengthen some of the terminology in the bill. When we were considering the aspect of advice and guidance—with my excellent team here on this front bench—we discussed terminology and how to legislatively frame issues. For instance, we considered whether the bill should mention “having due regard to” the public duty. Perhaps Caroline Mair might wish to come in on this. We discussed using terms that are well understood and that actually mean something to public bodies.
Good morning. I am happy to come in on that.
We think that the use of the word “promote” in this context delivers on the policy intention. The bill deliberately does not mandate the delivery of particular outcomes. That is intentional, because the intention is that public bodies would be required to take account of wellbeing and sustainable development when they are exercising all their functions, and what that looks like will vary depending on the public body. To answer your question, therefore, we think that “promote” is the correct terminology to use.
That is helpful.
As you said, Sarah, there has been quite a lot of discussion around terminology and words. The bill, as you have drafted it, refers to the need for public bodies to
“have due regard for the need to promote wellbeing and sustainable development.”
We have heard in evidence that that could be strengthened. Do you agree that it needs to be strengthened? If so, how would you envisage that being done through an amendment at stage 2 or stage 3?
Those issues go together. The issue of how we ensure that the principles of the bill and the public duty are actually delivered is critical, so that question is important.
Some people think that the “have due regard” wording is not sufficiently strong. However, if we look at the framing of the duty, we see that it is based on the public sector equality duty, which has been very impactful since it was introduced in 2010. It is not a new framing—it is something that public sector organisations are well experienced in doing. It is about ensuring that, when guidance on sustainable development principles is produced, organisations are accountable for making the principles deliverable. That is the critical point. We all love the principles of sustainable development, but there is currently a critical gap in terms of implementing them.
Having evidence from the commissioner will be important, so that aspect is critical.
I will let Caroline Mair come in on that.
The phrase “have due regard” is a formula that is commonly encountered in legislation. We considered placing a stronger duty in the bill at the start of its development, but that would have required the creation of a novel statutory formulation—a novel duty. That would have run the risk of creating a great deal of uncertainty, which might in turn have led to litigation. In the interests of clarity and legal certainty, therefore, we decided to use an existing and well-understood legal standard in the form of the “must have due regard” to duty.
Again, my questions are nerdy but important, so I will go further. The bill also includes the phrase “have regard to” in respect of guidance that is to be produced by the future generations commissioner.
Caroline Mair may give the same answer, but could that wording be strengthened, or is the terminology understood by the public bodies and by courts?
It is a common formulation of words, in particular in relation to guidance. It means that public bodies have to consider the guidance and apply their minds to it. It still allows them to depart from it, but they must be able to justify any departure.
In order to strengthen that, you might be looking at requiring public bodies to comply with the guidance, and that is not the role of guidance—it does not require compliance. If you want to create legally binding obligations in law, you should be placing those obligations in law. At the end of the day, guidance can only guide.
I suppose that my concern is this. Let us say that it is a Friday afternoon and somebody is sitting in an office, and they say, “Oh—we’ve got to do this”. It is a tick-box exercise, and they just tick a box to say, “Yes, we’ve looked at it.” Given that, as you say, guidance is not legally enforceable, the bill may not actually bring about any change. How do we avoid that and give the duty more teeth?
It is partly about having the commissioner there to hold those organisations to account. The commissioner will have powers of investigation, so if somebody thinks that they can just tick a box and say, “We’re doing this”, and that was a significant issue and the particular public sector organisation could be doing significantly more, the commissioner could hold an investigation and hold that organisation to account.
There is a combination of the duty to “have regard to” guidance, advice and support and a backstop in the form of the commissioner, who could say, “I am looking into your organisation—at the moment, you’re just ticking the box. Where is the significant change that your organisation could deliver in terms of the sustainable development principles to which you are supposed to have due regard?” That combination is important.
From looking at the experience in Wales, we can see that there have not been dozens of investigations, because no public sector authority wants to be investigated. We can also look at the experience with Audit Scotland, which looks at decisions after they have been made. That is another way of holding public bodies to account, and it has a big impact on organisations. It creates public awareness, and it makes the Government aware of issues with a public sector organisation. There is a whole raft of ways in which to hold people to account.
The duty would also empower those staff members, in public sector bodies that are signed up to the principles, who know that more can be done. It would also assist organisations in which—as Elena Whitham mentioned—there are people leading the way. More people would feel comfortable with that, because that would be what was expected under the legislation.
We have received evidence that obligations on sustainable development
“must be fulfilled before and at the time when a particular policy is being considered or decision taken.”
How will the legislation ensure that, in practice, obligations will be met at the point of delivery?
It comes back to sharing best practice, and to guidance. Having effective guidance is important, because we cannot put it all in legislation, and things change over time. It is about making sure that functions are actually implemented; it is also about what more public bodies could do.
One or two of the organisations that submitted evidence to me when I was looking at introducing the bill and which have given evidence to the committee talked about examples such as how procurement decisions are taken, which could potentially ignore sustainable development principles. The bill pushes that further up the agenda, so that it becomes about what public sector organisations do and how they invest their money—for example, if they are contracting functions out to somebody else to do that work for them.
Some people have suggested that I should amend the bill. However, I have kept it tight; we cannot have a member’s bill that is extensive and goes on forever, so I focused on three elements. If the committee feels that the aspect that you mention is important, I could certainly look at that before stage 2, if the bill was to get to that point.
I have a brief question. Did you think of using regulations, which obviously have greater legal standing, rather than guidance, or did guidance seem the best way to do it?
In the bill, it should be guidance, because it is about a public duty to implement the public duty. It would be up to the Scottish Government of the day to think about secondary legislation, and that would be months, or years, away, so I did not go into that area.
I was thinking about the framework of having regard to a public duty and to guidance, and the backstop of investigation. The combination of those things would push the issue significantly up the public sector agenda. If we think about bringing local authorities and major public organisations together, it helps if we explain to them, with good examples, how their organisations need to think about changing what they are doing. That would be a very practical way to change outcomes.
You mentioned public procurement, which is a hobby-horse of mine, so I want to explore that aspect a bit further. If we think about the landscape just now, we have pockets of really good work that has been done to push the envelope on public procurement in thinking about community empowerment and community wealth building; indeed, we will be debating the Community Wealth Building (Scotland) Bill at stage 1 later today. However, while we see those pockets of good work, we also see that things can change on a dime when a tendering package has been put forward: the cost is what wins it, rather than the idea of having due regard to sustainable development and wellbeing.
Is it your intention to ensure that public procurement also reflects the aims of the bill, so that, where we see progress being made—with positive proactive decisions supporting local businesses and creating a thriving economy in an area—we do not start to slip back because, for example, a big multinational that is not thinking about sustainability can undercut those businesses?
09:30
Part of the guidance could be to get people to think about how they frame the procurement process—what their ambitions are and what criteria lead them to award contracts. Guidance could be useful for that kind of thing. That function and the decision making by public bodies are part of the duty. Good guidance, collective and shared knowledge, and good practice could start to change views. You are right that stage 1 of the Community Wealth Building (Scotland) Bill is coming up this afternoon and that we have the Community Empowerment (Scotland) Act 2015. We need to think about pulling together best practice and pushing that further up the agenda. Just the guidance and wider support could help local authorities or public sector organisations. As I mentioned, if they are under pressure, practical support could be critical.
Good morning. A key argument for the inclusion in the bill of a definition of the term “sustainable development” is that there is no statutory definition of it, but, as we have heard, there are multiple references to the term in law. How would a new definition simplify the landscape?
It is absolutely critical. As somebody who has been very supportive of sustainable development activities, I have seen the term “sustainable development” mentioned in lots of pieces of legislation without actually being defined, so I think that a definition would be very helpful to public sector organisations in making them think through the details. It would help to provide clarity and would help people with decision making, because they would know what they should be focusing on, which is important. It has been good to get stakeholders’ views on that. It is critical that a definition is provided, because that puts the issue centre stage for public sector organisations.
We have gathered lots of evidence. Basically, I used the Brundtland definition, because it has existed for years and countries across the world use it. We have the sustainable development goals, but the Brundtland definition provides clarity, and including it in the bill makes it not just a nice thing to have but a clear requirement that public sector organisations would be able to understand and then implement.
I get the need for the term to be understandable. The committee has heard evidence that the definition could be strengthened—in particular, by referring explicitly to environmental limits and planetary boundaries. Do you have a view on that?
I referred to the planetary boundaries in the policy memorandum. We certainly do not want to transgress environmental limits or planetary boundaries. That is a key part of sustainable development and collective wellbeing. I would be up for looking at that aspect in advance of stage 2, but I would not want to change the definition and get it wrong. We would have to get the definition right, and I thought that the way forward was to use the Brundtland definition and the past experience with regard to the sustainable development goals. As that definition is clearly—and internationally—understood, I do not think that there would be a challenge in that regard. The bill is intended to strengthen and accelerate our progress towards meeting the United Nations sustainable development goals. That is the overarching ambition.
You might have answered this question in your opening remarks, but, to be clear, what is behind the decision to align the definition of sustainable development with the concept of wellbeing? Do you have a few words to describe that?
It is critical to bring those together, because wellbeing is the outcome of implementing sustainable development, but it means thinking about people now and about future generations. I was thinking back to the Campbell Christie commission, which was well over a decade ago, and the need to invest to prevent, not to cure. With regard to sustainable development and wellbeing, there is a need for investment now that will support not just our constituents but future generations. I thought that that definition was really important.
As a lawyer, Caroline Mair might want to say more about the issue of definitions. We looked at that, because it must be clear and it must be understandable for public sector bodies, so that it helps them when they implement the public duty.
In essence, linking the two terms was a legislative drafting decision, because they are inextricably linked. Because wellbeing is expressed as an outcome of the practice of sustainable development, that avoids creating competing duties in the bill and keeps the framework coherent. The idea is that the practice of sustainable development leads to increased wellbeing, so that is why it has been drafted in that way.
I want to ask you a couple of questions on that area, Sarah. They always say, “Don’t ask a question if you’re not quite sure what the answer will be,” but I will ask this anyway. I think that you said that the term “sustainable development” is mentioned in law across the board but that it is not defined. Can you give me an example of where that has caused an issue—where sustainable development has been interpreted and acted on in a way that is different from the definition in your bill?
That was not a concern to me. It is more a question of pushing the issue further up the agenda and providing clarity. People can see what the Brundtland definition has meant over the years, and they can see the sustainable development goals, but explaining that in the bill—setting it out in detail—pushes it up the list of priorities of public sector organisations. That is the aim of the bill—to give sustainable development more focus and clarity. There are definitions out there, but the bill is about saying, “If you are implementing sustainable development, this is the definition that you should be using.” We are allowed to modernise legislation. Doing so in the way that I propose would not rewrite all the previous legislation that we have passed; it would say, “Here is the definition that public sector organisations should now be using.”
I have just been given some very helpful advice by Sean Taheny, which is that it was the view of Scotland’s International Development Alliance, the Wellbeing Economy Alliance Scotland, Carnegie UK and Oxfam that the lack of consistency and clarity in definitions has diluted the effectiveness of measures. Clearly defining sustainable development in the bill will mean that public sector organisations know what they are legally expected to do, because it is a requirement. It is not simply a case of having a look at things and referring to sustainable development; it is about implementing sustainable development. The view of those organisations was very clearly that, without such clarity and without ensuring that all our decisions are aligned with sustainable development and wellbeing, we will not get the long-term decision making that is absolutely critical.
I understand and appreciate that, but I just wondered whether you had an example of a public body saying that it was working on sustainable development in what it does, whereas your view was that what it was doing was actually contrary to the definition in the bill. I am genuinely not trying to put words in your mouth, but I think that what you are saying is that it is more about pushing the issue up the political agenda than about the definition itself.
The other aspect is the guidance on how to implement sustainable development and the investigatory power. Yes, I have been looking at public sector authorities and thinking about how they might improve and about the lobbying that I might do in my region with my health board and my local authority to push sustainable development further up the agenda. Should the bill be passed, those organisations will have a public duty to implement sustainable development, as defined in the bill. That might help when, for example, the health board is thinking about planning a new hospital, because I will be able to lobby the board on that. If the bill is passed, it will have a public duty in that regard, rather than it being something that is nice to have.
There is an issue to do with changing the way in which public sector organisations invest now so that it will deliver savings. I gave you the example of the hospital in Swansea that built a solar farm that makes £1 million a year. That is the kind of different thinking that I am seeking to encourage. Think about the challenges that the public sector is facing. Getting to the point of embedding sustainable development is difficult, but introducing a legal obligation will push the issue up the agenda. Sustainable development is an opportunity that is not being seized currently.
Okay—that is helpful. I have to admit that I had not spotted this in the policy memorandum—
Can you speak up slightly, convener? I do not know whether it is just because I have a bad cold or whether it is to do with the sound levels in the room, but I am struggling to hear.
Of course. I am not known for speaking quietly—[Interruption.] There is no need to laugh at that, Mr Stewart, thank you very much.
It was pointed out to me that the policy memorandum refers to the definition of “sustainable development” as an overarching definition. I am wondering what that would apply to. Would it apply to individual public bodies, which would have to have due regard to it, or would it apply to all public policy and to every piece of legislation that goes through the Parliament? What is meant by “overarching”?
Is that a legal question that you would like to come in on, Caroline?
Yes.
Good.
The definition is overarching for the purposes of this bill. We should be clear that the term “sustainable development” is being defined for the purposes of this bill only; we are not attempting to define it as it appears in other pieces of legislation.
Thank you—although that confuses me further. There are references to sustainable development in other pieces of legislation, but the term is not defined in those other pieces of legislation. However, it is defined in the bill, which would cut across all other pieces of legislation. Caroline, did you say something different?
I believe that there are several hundred references to sustainable development in Scottish legislation and legislation that applies to Scotland, but it has not been statutorily defined. The bill defines it for the purposes of the bill. It does not gloss, or seek to amend, references as they appear in other legislation.
Okay. In no way am I trying to be awkward; I am genuinely trying to work out what would happen if the Scottish Government were to introduce another piece of legislation that some people did not consider fell within the ambit of this bill but others thought that its provisions went against the definition of sustainable development in this bill and were therefore breaching that statutory definition.
I am not trying to overplay this. I am trying to work out what the crossover from the definition in this bill would be to any future legislation that any Government of any persuasion might introduce, or to any other piece of legislation in which sustainable development is mentioned. Does the term “overarching” mean that it counts for the purposes of this bill, or does the bill say that it should count for everything?
That is a very good question. I ask Roz Thomson to respond to that. Roz, who is part of the team, has been very helpful in pulling this together.
Good morning, everybody. We looked at the issue at the very beginning of policy development. A number of references to sustainable development already exist in legislation—there is a long list of existing references at the end of Sarah Boyack’s initial consultation. It may be that, if this bill is passed, some form of consolidation work could be done in relation to those references. That is not something that a member’s bill could reasonably support.
That said, although it is an overarching definition for this bill, there is no reason why a public body could not use the definition in this bill in considering its functions under existing legislation.
On the point about future legislation, you would expect the Government or any other member who introduced legislation in this area to look at the existing definition and to think about how their bill would interact with existing law, which is what Sarah Boyack did at the outset of hers.
That is very helpful. It may not be an issue, but we are trying to tease out what the situation is.
Good morning. I want to tease out some answers from you on the alignment of the definitions. Why was a choice made to align the definition of wellbeing in the bill with
“individuals, families and other groups within society”?
09:45
We were thinking about implementation. This is about real people and the fact that we need to think through what the impact of legislation will be. That is why we went for it. I looked at Scotland’s national outcomes and the national performance framework, and I thought about the opportunities for people’s lives from implementing wellbeing goals. I mentioned earlier that we have both sustainable development goals and wellbeing outcomes; the bill joins the two together. It is about the impact on real people of the decisions that we make.
Could the detailed components of the wellbeing definition be considered as being covered through existing human rights laws and frameworks? There are already frameworks. Do we need different ones, because we are marrying the two together?
The bill certainly does not replicate what is already there. There is a degree of overlap between wellbeing and human rights, because both are about protecting and enhancing quality of life, but it does not duplicate existing equalities rights or enforcement mechanisms. I would argue that it complements existing rights.
The bill would require public bodies to take a broader, proactive approach to wellbeing and sustainable development in all their decisions, not just in areas where there are rights. That is important.
I mentioned earlier the interaction that we have seen working in Wales, where responsibilities intersect, and we can see that in Scotland, too. There are now ways of working together, such as through memorandums of understanding. To avoid duplication, we must ensure clarity. My expectation and hope is that that is exactly what we would do here. The guidance must not be repetitive; it must add value and take us to another stage.
Could a definition of sustainable development stand in the bill without a reference to wellbeing?
It could, but that would not be my preference. One of the decisions that I had to take was on the name of the commissioner. I thought that calling them the future generations commissioner would be more relatable than if the name was about wellbeing and sustainable development, because this is about people and the planet. That is why I went for a clear definition that uses the Brundtland definition but which also brings in wellbeing, because we need to ensure that we join it up.
Something that came through strongly in the evidence on my proposal for the bill, evidence to the Scottish Government and, indeed, some of the evidence to the committee is the importance of stakeholder support for defining both terms—it is really important to raise both terms up the agenda through the bill.
I am sorry if my memory is failing me, but I think that the Children and Young People’s Commissioner Scotland’s office said that it did not agree with the definition of wellbeing. I think that I have got that right. How would you reflect on that?
It considered the definition to overlap with existing human rights protections. I go back to the point that I made earlier. It does not duplicate existing rights or enforcement mechanisms, and it does not go into the specific human rights of key groups in society. It is about a general wellbeing approach, which affects us all. That is the distinction.
The key issue is having work done jointly by different commissioners, so that they do not try to do the same thing. The work that is being done by the children’s commissioner is fantastic, but it does not think about 2050, because that is for future generations. A huge amount of work needs to be done in this area, and that is not currently happening. I have absolutely no worry about overlap, because the experience in Wales is that joint work is really good.
I do not know whether you are suggesting that we should strengthen the definition of wellbeing in the bill.
I genuinely was not suggesting anything, Sarah. I was only reflecting that I think we have heard evidence that a rigid definition of wellbeing might not be desirable. I will correct the record if I am getting wrong what the office of the Children and Young People’s Commissioner Scotland said, but is the concern about the definition valid?
The issue is not at the top of my agenda. Joint working and collaboration are the way to move forward. If people think that I can strengthen the definition in some way, I am happy to look at that, but it was not the overarching issue that was raised in the evidence or stakeholder feedback when I introduced my bill.
We will check the evidence, just in case I have reflected that inaccurately, which is certainly not my intention. We will reflect on your comments.
I am not suggesting that. I am just saying that it was not raised as a big concern in the breadth of feedback that I received.
I apologise. Was it a concern for some but, by and large, not for most?
Yes.
However, am I correct in saying that one of the concerned individuals was the Children and Young People’s Commissioner?
Yes. That is why I said that we already have human rights protections, which the bill does not duplicate or attempt to change in any way. The bill has a broader definition.
I absolutely get that. I was not even making an issue of it, but we had to consider whether that was the position of the Children and Young People’s Commissioner—that is all. I just wanted you to respond to that.
I just want to double-check whether any of my team wants to come in and add to that or say anything else. Have I said enough on that or is there anything helpful that I could say? Sean, do you want to come in?
Yes, I can come in. Another approach that was considered was the one that is taken in the Welsh act, whereby public bodies create wellbeing objectives, which, in theory, could allow for a more localised approach to defining wellbeing in different contexts.
The bill is inspired by the Welsh act, but it is very different. When the policy was being developed, Sarah Boyack did not consider that the Welsh model would translate as well in Scotland. For example, Scotland’s public sector is significantly bigger than Wales’s public sector. Essentially, that model would require a lot more resource because it would also require the commissioner to consider the wellbeing objectives.
That is very informative, and I do not think that the committee has heard about that until today. Thank you for that, Sean.
Carnegie UK said that other models could deliver a lot of the bill’s aims, particularly around accountability and best practice for public bodies. For example, one alternative model could be a committee in the Scottish Parliament that scrutinises all that. Other Scottish Parliamentary Corporate Body-supported bodies, such as the Children and Young People’s Commissioner, or bodies such as Environmental Standards Scotland and Audit Scotland, could each have a role to play. Carnegie UK set out a variety of models, so why did you land on the establishment of a new commissioner given that the Parliament is very resistant to establishing any new commissioners?
I found the Carnegie UK report really helpful. I had looked at other countries’ models, which include the option of having a parliamentary committee play the role of the future generations commissioner. You could do that, but you still have to resource it, because the issue is that the role involves giving advice and guidance right across the public sector. The bill would impact more than 130 public bodies in Scotland, and somebody could invent more public bodies, so capacity is an issue here.
I looked at the range of options that Carnegie UK set out, and it is fair to say that it saw the future generations commissioner as the most effective option because it was at the top of its hierarchy when it came to impact and effectiveness. Carnegie UK looked at the option of sharing responsibilities across multiple SPCB-supported bodies to leverage the impact of existing bodies and collaboratively advance wellbeing and future generation and sustainable development goals without establishing a new commissioner. However, you would still have to resource those bodies because it is new work. If you are preparing policy and guidance and you have investigatory powers, that has to be done. It needs staff, it needs people and it needs resources.
I absolutely considered the Audit Scotland option and I spoke to the Auditor General for Scotland when I was working through my own process on this. Audit Scotland looks at what has happened and audits what organisations have done; it would need more resources and more staff to do this. We discussed the possibility of having a memorandum of understanding so that you do not cut across public sector bodies; instead, they would complement each other. That is what has happened in Wales.
The relationships with other commissioners that I have mentioned, including the children’s commissioner, and the work of Audit Scotland would definitely be critical, but this is not about replicating that work. It involves much more work, and it would be an addition.
The parliamentary representation issue is a good point. I would envisage the future generations commissioner reporting to Parliament. That is what the Welsh commissioner does; they report back to two committees regularly.
Another issue to consider is the capacity in this Parliament. When my bill was introduced, I could have listed a raft of committees to scrutinise it, and they were all busy. This was the lucky committee that got to scrutinise my bill. In terms of wellbeing and sustainable development and policy coherence, I think that it is important that all committees think about these issues, but whose day job is it? Who will do the overarching work on a regular basis? There are capacity issues.
On the Government-appointed advisory council that could report to the First Minister, I thought that the approach in Wales, where they have their advisory committee working with a commissioner, brings a range of bodies together and avoids overlap. I mentioned the organisation that was involved in Wales. I could see that happening in Scotland as well, and I think that it would be a good way to do it. You would bring people together without replicating or overlapping, and it would raise awareness. You could have a wellbeing round table or an independent advisory board. Again, it is a nice thing to do, but who would do the policy guidance? Who would have the investigatory powers? I thought that the Carnegie UK report was good, because it captured the different options. Different countries across the globe have looked at these things. Big Parliaments could potentially take that approach, but I think that the capacity of our Parliament and the independent function are critical issues.
If you look at the work of the Poverty and Inequality Commission, the Scottish Commission on Social Security and the Scottish Law Commission, you see that there are lots of pieces of work out there that support what the Parliament does, enable accountability and enable detailed work to be done. However, having looked at the Carnegie options paper, I genuinely think that, without a commissioner to hold public bodies to account and work collaboratively with the Government, we will not see this being accelerated. It is not enough just to have a duty and a definition; we need the implementation. That is critical.
That is very helpful. I think that you mentioned how many public bodies there are in Scotland. I cannot recall what number you gave for that—
The number that I gave was 130. I will check with the team that I am correct—it is 131.
I was not going to say, “That’s outrageous, it is actually 132—how dare you mislead the committee?” That is not why I asked what the number was. I asked because that is a lot of bodies for a commissioner to scrutinise, hold to account, investigate, look at, monitor and so on. If this is not mainstreamed and made part of the day job of those bodies with an existing oversight role—I know that you think that there is a gap there—we could create quite a substantial bureaucracy in relation to a new commissioner. Can you see that that might be a concern?
No, actually—I am hoping that it would be the opposite, because it would involve both support and guidance. Rather than repeating what is being done, this is about looking at what is not being done at the moment. I think that it would support organisations, and it would lead to a constructive relationship. That is certainly the experience in Wales—and I have already mentioned the culture change that has taken place in the decade since the commissioner there was appointed.
10:00There would have to be respect between public authorities and a new commissioner, if they were to be established, just as there is respect when the Parliament holds public bodies to account. Of course, that does not mean that you do not ask difficult questions. I think that the combination of advice and guidance will support the proposed approach, with that backstop of the knowledge that an inquiry could be carried out. This is absolutely about empowering and supporting organisations to do what we would like them to do and what we have talked about as the ambition.
Do you expect a new commissioner to be able to keep a watching eye on all 131 public bodies?
The commissioner would have to prioritise. They would not be able to do absolutely everything, every day of the week, but one of the points about having a commissioner is that they can prioritise. They would be able to take feedback from organisations that are looking for support, and the ability to have round-table discussions would raise matters up the agenda. Furthermore, as with other commissioners, members of the public would be able to write in and ask, “Are you aware of X, Y or Z?” The commissioner would not have to pick up every piece of correspondence, but they would be able to look at issues that have been raised.
The key thing is to have themes across public sector bodies. As we have said, there is a raft of such bodies, and the support provided could take the form of themes for different organisations and covering different topics. You could explore, say, different elements of sustainable development goals, or the fact that different types of public sector bodies would need different types of guidance. That sort of prioritisation would be a key issue for a future generations commissioner, just as it is for other organisations. How can a commissioner, an auditor and so on investigate everything all of the time? They have to prioritise, and that would be a key role of this commissioner.
That was helpful.
You have been following and, indeed, participating in the committee’s evidence-taking sessions, so none of the questions that we will ask is likely to be surprising. I would suggest that, whether we are talking about a commissioner or a new person within an existing commissioner’s office, one way of dealing with some of the bureaucracy around this might be to embed a new commissioner, or an individual with lead responsibility for all of this, within an existing commissioner’s office to make the process much more efficient. I am thinking, for example, of the land reform legislation that has just been passed, in which will see the land and communities commissioner being embedded in the Scottish Land Commission. Have you given any thought to that sort of approach?
Yes. The fact that the SPCB-supported bodies landscape review was being carried out at the same time meant that I had to focus quite carefully on the issue. I believe that it is important that we have a commissioner with this title, supported by staff with experience and knowledge.
In your previous question, convener, you referred to the fact that there are more than 130 public authorities in Scotland, so what is proposed will mean adding a lot of work on to that of another commissioner. You would still have to resource that commissioner or some other public sector body to do the work that needs to be done if we are going to implement sustainable development goals and deliver the wellbeing aspects. Therefore, this approach is critical. If we are to deliver policy coherence and accountability, that will need investment and, as I have said, this is work that needs to be done.
I am sorry, but I am not clear about this. I appreciate what you have said, and I agree with some of it, too, but does that mean that you are minded to consider embedding a new commissioner or individual within an existing commissioner’s office to save precious resource that we would not want to spend needlessly?
No, my point is that we have to spend this resource if we are going to implement the bill’s ambitions. The SPCB-supported bodies landscape review very helpfully looked at, for example, the sharing of back-office resources, the location of commissioners and so on, and you could look at sharing back-office capacity for, say, human resources or finance. My point, though, is that we need new resource, and a focus on this issue.
My preference would be for there to be a new commissioner, with the title of future generations commissioner, to raise the issue up the agenda, provide the capacity to implement the legislation and make the change that we have all talked about for years but which has not happened. That would align with what is being done by the Scottish Government through the national performance framework, and it would help in terms of outcomes.
As I said, my strong preference is for there to be a commissioner, but the lesson of the work that has been done is that you can share resources. Experience in Wales shows that you can share back-office resources as well. However, we must invest in the area now, because, if we do not have that officer capacity and the powers of investigation, following on from the work on sharing best practice, advice and guidance and a consideration of the themes that are key priorities across the public sector, the ambitions of this legislation will not be fulfilled.
The general function of the commissioner is described as being
“to promote the wellbeing of future generations by promoting sustainable development by public bodies in all aspects of their decisions, policies and actions”.
Is that enough to deliver the systemic change that you have passionately discussed this morning?
Absolutely. The point of the bill—the point of having the combination of the duty, the definition and the commissioner—is to get on with delivering that systemic change. The support, oversight and scrutiny functions are critically important. You can see that if you look at the experience of the Future Generations Commissioner for Wales, which has carried out two major reviews: one into how the Welsh Government has implemented the Well-being of Future Generations (Wales) Act 2015, and one into how that act has informed public bodies’ procurement decisions. We can learn lessons from what has been done in Wales.
Having a commissioner in Scotland with teeth is critically important, because that is how we would bring about that systemic change. You need the oversight to be in place, you need the work that is done by public bodies to be supported and you need to have that scrutiny function.
You have said several times, understandably, that the proposal is not all about investigations but is also about the softer powers and influence that a commissioner could have. The bill allows the commissioner to
“take such steps as the Commissioner considers appropriate”
when seeking to resolve a matter without recourse to an investigation. What kinds of steps were you thinking about?
I was thinking about the fact that there would be an opportunity to take different kinds of steps. The commissioner could be contacted by public sector bodies for advice and could provide tailored advice and support to them. That would add expertise to decision making, and it would avoid getting to the stage where the commissioner would need to conduct an investigation. That early oversight is critically important.
In a situation in which a public sector authority knows that it needs to do more, but doing so is a challenge, and it has looked at the bill and is worried that there is going to be an investigation, there is absolutely a space before that stage where there could be engagement that involves constructive support, advice and guidance. That is the opportunity that would be there as a result of the bill. The commissioner could support the body by enabling the sharing of best practice and having roundtable discussions. That sharing of best practice could involve written guidance or it could involve having people in the room. In the example of solar farms that I mentioned earlier, people from other health boards could discuss how a solar farm could be established, what the risks are, how to avoid those risks and what the opportunities are in terms of funding and innovative approaches. That same approach could be used in relation to heat recovery technology. Some innovative work is going on in those areas, and there should be a way to share that innovation and best practice. The commissioner could play a key role in that regard. It would have a set of priorities of its own, but it would also be informed by the views of the public sector.
One of the first things that a new commissioner would do is reach out to public sector authorities and say, “Here is the legislation. Here are your new duties. Here are the definitions. I am here to help. What would be your top priorities where support is needed?” That could be the work of a commissioner. There has to be engagement. It is not a top-down, you-will-do approach; it is a consultation approach that involves support.
Telling people what to do is not as effective as working with people to support them. That is the way that they have done it in Wales—it has been a culture shift, but it has also been about ensuring best practice, which is critical.
My question is about the financial implications that are associated with introducing another commissioner. The convener has covered that, but I will spin it on its head.
You touched on this earlier, Sarah, but can you give examples of how the bill could ultimately lead to long-term cost savings and how those would be measured? Could you expand on your earlier comments?
Yes. You raise a really important question, given the issue of how to spend public resource effectively. The Christie commission of 2011 had a fascinating stat. It said that
“as much as 40 per cent of all spending on public services is accounted for by interventions that could have been avoided by prioritising a preventative approach.”
That statistic is quite stark. I have focused on that and thought about the practical changes that could be made.
Legislative underpinning makes it easier for public bodies to prioritise policy and decision-making approaches that will contribute to sustainable development and wellbeing for future generations, as well as having a benefit now, which is key. A lot of responses to my consultation and the call for views highlighted the cost-effectiveness of preventative policies in certain sectors, which would reduce demands on public services over time and deliver better outcomes for Scotland’s communities.
There are lots of difficult issues. The on-going Covid inquiry, which is very difficult, benefits from hindsight. I am also thinking about other issues, such as mental health support. Providing better mental health support now enables children to be children and takes pressure off families and the public sector. If young people get support now, they perform way better. I am a bit nervous about giving too many examples of such preventative investment, but that is an example that I have seen in my constituency.
Other issues can be tackled through spend to save, which means investing in sustainable policies that will save money further down the line. If you spend to save now, you will not waste money and you will get income back. One good example is energy efficiency and how to be energy efficient, about which there is a lot of discussion in the Parliament. It is not about saying that you have to do X, Y and Z; it is about having a collaborative conversation with public sector organisations.
We can spend to save and make prevention a higher priority, and we can share best practice about how to do those things. On that point, I have had some really interesting discussions with the Future Generations Commissioner for Wales about the office’s day-to-day discussions with organisations. Some good examples were given to me about how the preventative approach has been used in NHS and transport investment. Some third sector organisations also gave some good examples in evidence.
I very much agree with your comments. We need to have more preventative spend and look at how we can save money going forward.
The clerks have passed me a wee note, given that I was unsure about what the evidence from the office of the Children and Young People’s Commissioner said and did not want to misrepresent it.
The evidence said:
“’Wellbeing’ is a relative concept ... and challenging to define in law.”
The commissioner recommends
“embedding a human rights-based approach across public authorities.”
I make no comment on that; I just put it on the record because I cast a bit of doubt about what the commissioner had said.
We also have the Equality and Human Rights Commission, and we have rights embedded in law, but the bill brings a broader approach in terms of sustainable development and wellbeing. There are also the outcomes that are defined by the Scottish Government in the national performance framework. I think that there is scope for more discussion, and part of that is about collaborative work.
10:15One of the things that I have recognised from the outset is the challenge of getting the definition perfect for now and for five or 10 years down the line. I wanted to have a focus on this so that we raised it up the agenda and enabled organisations to focus on it, too. The collaborative work is critical.
Sarah, thank you and your team for coming along this morning.
Is there another question that you would like to ask me?
No.
There is one thing that I thought you might ask me about. You mentioned the Carnegie UK report and best practice from other countries. I have been quite focused on that so that we can learn from other countries. Scotland has led on things such as the climate emergency and legislation, but, with this bill, we are following other states. I went to a conference two and a half years ago at which there was a link to the Carnegie UK report about what the other opportunities are. I hope that the committee will look at what the choices are if we want to do what the bill proposes. Although I looked at the Future Generations Commissioner for Wales, I have also engaged with and looked at other experiences globally. I have been very conscious of the fact that I do not want us to be left behind on sustainable development and wellbeing ambitions.
We all know about the challenge of implementing the climate legislation. These are not simple things; they require advice, guidance and support. Australia and Norway are looking at what they can do on sustainable development and increasing accountability on wellbeing issues. The Italian Parliament is looking at embedding action. The Kenyan Senate is looking at a committee of the future. Norway, Denmark, Spain, Portugal and Ireland are all looking at joining up investment now to deliver for future generations. Cameroon has just appointed its first future generations commissioner, and the European Union has created its first intergenerational fairness commissioner. This is a live issue in other countries.
We have capacity issues in the Parliament, and there is an issue with investment—I totally get that in terms of the SPCB-supported bodies landscape review. I am looking forward to having discussions with the Scottish Government over the next few weeks. However, I am concerned that we are now towards the end of this parliamentary session, and I do not want us to kick this into touch. There will be a huge change in who is elected to the Parliament next time, and in future elections. I do not want the Parliament in the next session to have to start again on looking at what will happen next. This is an opportunity for us to legislate now and make the change that our constituents need.
I will end on that point, convener, because you are looking at me. I do not want to go beyond the time that you have allocated and cut across the opportunities to be constructive and positive.
I am just smiling, Ms Boyack. I have inadvertently afforded you the opportunity to make a closing statement, which might be no bad thing. I think that the committee will fully take on board all the points that you have made.
It is worth noting that the committee has not had any opportunity to scrutinise what is or is not happening in other countries, so we cannot really make any judgment on whether those initiatives are effective. We were able to take a very small amount of evidence that was indirect, via Scottish organisations, on what is happening in Wales. One thing that came through from that—members of the committee will have their own views on this—is that the new commissioner in Wales focused minds rather than having any particular direct impact. There was a cultural change; that came through quite strongly in evidence. We have to deliberate on that as a committee—it is important to say that. We also have to deliberate on whether the reform of the national performance framework and embedding the national outcomes across public bodies will be an effective way to push all this forward.
However, irrespective of whether the bill progresses, your passionate delivery this morning has already dramatically raised the issues up the agenda in Scotland, and I think that the committee would like to thank you for that.
I appreciate that, convener. The Welsh commissioner has been in place since the legislation there came into force. It is a seven-year term—the postholder does not change every time that there is an election.
I have had very constructive discussions with a variety of ministers in the Scottish Government. I think that we need somebody who is there full time, who is appointed and who is held to public account, because ministers and Governments come and go. We can have ambitions, but the key thing is to implement them, whether we agree with them or not, and to support the public sector to deliver on ambitions that are not nice to have but are absolutely critical for the wellbeing of our constituents now and that of future generations. That is tough, but the bill provides a solution that would help us, whichever party we represent, to implement ambitions that can transform people’s lives now and in the future.
I appreciate being invited to speak to the committee. I thank the non-Government bills unit, because, as an individual member of Parliament, you cannot do this without its support. It has been fantastic.
That is a perfect final comment. I again thank you and the team that has supported you for your evidence this morning. We move into private session.
10:21 Meeting continued in private until 11:09.