Climate change, culture change

The Climate Change (Scotland) Act 2009 sets out the legislative framework to develop a low-carbon economy for Scotland. Part 4, which comes into force on 1 January 2011, imposes climate change duties on public bodies to ensure that Scotland’s carbon reduction targets are met.

Who are public bodies?

The Act defines “public bodies” as those listed in sched 1 to the Freedom of Information (Scotland) Act 2002 and so includes the Scottish Government, its administration and devolved bodies, local authorities, education institutions, police forces, health boards, the national parks authorities and the regional transport partnerships.

What are the duties?

Section 44 of the Act states that a public body must, in exercising its functions, act:

• in the way best calculated to contribute to the delivery of the targets set in or under Part 1 of the Act;
• in the way best calculated to help deliver any programme laid before the Scottish Parliament under s 53 (this refers to any report on the impact of climate change that is passed to Scottish Government under the terms of s 56 of the Climate Change Act 2008); and
• in a way that it considers is most sustainable.

The duties are broad and overarching rather than specific and direct, and so are analogous to the duties imposed by human rights, freedom of information and equality legislation. Accordingly, it can be inferred that the intention is that climate change awareness should be at the forefront of public sector activity and should permeate all that public bodies do.

What is expected of public bodies?

Section 45(1) provides that the Scottish Government must give guidance in relation to these duties, and this guidance is likely to reinforce the Government’s view that the public sector is best placed to influence and encourage climate change action by ensuring that sustainability is mainstreamed into partnership working, policy development, service delivery and operations.

The draft guidance, on which the Scottish Government recently consulted and on which the final guidance is likely to be based, lists 11 key principles to underpin the way in which public bodies are expected to undertake their duties. These can be summarised as focusing on outcomes and promoting cultural change through leadership, empowerment and partnership working, whilst taking into account proportionality and cost, so that climate change is an overarching goal in all strategic and corporate processes and actions.

Public bodies will be expected to address mitigation, adaptation and acting sustainably in all that they do, to set annual targets and, until a regulatory body is appointed, to self-monitor both direct and indirect emissions over which they have significant influence.

Unless the guidance states otherwise, the level of response needed to comply with the Act will be a matter for each public body to consider and justify for themselves. Accordingly local authorities, whose functions and statutory duties cover all areas of public life, will have a prominent role.

Actions which a public body can take in respect of targets and monitoring the mitigation of direct emissions are fairly straightforward: estate management, staff education, “green” procurement of goods and services, and policy making are all areas which public bodies can routinely address with direct actions.

Setting targets and monitoring indirect emissions, while more challenging, should still be achievable. Local planning authorities in particular are well placed to make use of the planning system to contribute to their indirect targets. The Planning Etc (Scotland) Act 2006 introduced a requirement that, when preparing development plans, planning authorities must have regard to sustainable development.

Scottish Planning Policy, the Scottish Government’s policy statement on land use, has sustainable development as one of its core principles, and states that planners have a significant role in promoting a pattern of development to reduce carbon and to help achieve the Scottish Government’s zero waste management targets.

Local authorities have a statutory duty to dispose of land at best consideration. While previously a carbon reduction marketing strategy may have restricted the authority’s ability to achieve best price for a property asset on the open market, the introduction of the Disposal of Land by Local Authorities (Scotland) Regulations 2010 allows local authorities a discretion to take factors including “environmental wellbeing” into account when determining best consideration. Coupled with the ability to impose climate change burdens (see further Journal, November 2010, 54), there is scope for local authorities as landowners to have a very real influence in sustainable land use. Further, as “disposal” includes any alienation of assets, local authorities have the opportunity to develop both green marketing and green leasing policies to encourage and influence sustainable development in their areas.

Policy questions

Policies which promote adaptation and acting sustainably in respect of both direct and indirect emissions are less tangible and, in order to understand fully their role in these areas, public bodies will need to give thought to how climate change projections will impact on their statutory duties and policies and to anticipate and address future change. By their very nature, the information, technology and adaptation strategies which assist in the climate change agenda are rapidly changing and it will be a challenge for public bodies to ensure they have the knowledge base and the funding to keep up with these changes.

The subjective and discretionary nature of the targets may also cause issues in practical implementation. As each public body is to determine its own level of compliance, it may be that if strict climate change policies are undertaken in one local authority area but are not mirrored in a neighbouring area, inward investment gravitates to the more relaxed and less green policy makers. Although each public body could justify its position under the proportionality test, the underlying function of the Act would be subverted.

Regulation and reporting

The Act allows the designation of a regulator to monitor and investigate public bodies’ compliance with these duties. It appears that Audit Scotland will carry out a monitoring role as a key theme in its usual business until the Scottish Ministers make an order in this respect. While public bodies are experienced and accustomed to partnership working in the community, unless there is clear guidance on how to deal with an overlap of functions, cross-border issues, and consistency of monitoring and performance reporting, actual compliance may be difficult to determine.

Action now

With this in mind, public bodies need to put processes and procedures in place now to ensure that they can deliver on their climate change duties effectively and to ensure that they have a good understanding of the legislative and policy context influencing action on climate change in Scotland. Public bodies also need to be mindful of key drivers in mitigating greenhouse gas emissions, to adapt to climate change, and to act sustainably as the climate change context is continually evolving.

Karen Moore and Claire Canning are solicitors with South Lanarkshire Council