Public Audit and Post-legislative Scrutiny Committee

Meeting date: Thursday, June 7, 2018

Official Report 715KB pdf

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Biodiversity and Biodiversity Reporting Duties: Post-legislative Scrutiny

Agenda item 2 is post-legislative scrutiny of the biodiversity and biodiversity reporting duties. I welcome our witnesses: Roseanna Cunningham is the Cabinet Secretary for Environment, Climate Change and Land Reform; Hugh Dignon is the head of wildlife management and protected areas in the Scottish Government; and Sally Thomas is the director of policy and advice at Scottish Natural Heritage. I understand that the cabinet secretary will not be making an opening statement, so we will move straight to questions.

Cabinet secretary, do you feel that the reporting duty on biodiversity is working?

I think that there is room for immense progress. We are in only the second round of the reporting duty being live—the first round was in 2015, of course—and it is fair to say that it is taking a while for public bodies to become alive to it. I would say that the reporting duty is working, but I suspect that we are nowhere near what the movers of the original amendment to the Wildlife and Natural Environment (Scotland) Bill wanted to see. It is work in progress.

Following on from that point, in the first reporting cycle there was a 44 per cent compliance rate with the reporting requirement. The second reporting cycle finished in January. What was the figure for that? Has there been an improvement?

It is still being compiled. At this point, we are at 41 per cent, so the expectation is that, by the end of the year, the figure will be higher than it was in 2015, but there are still a lot of public bodies that are not engaged in the reporting process.

I pulled down a long list of the public bodies that are covered by the duty, and I suspect that those bodies that are quite far away from this area in their functions and what they do are probably finding it difficult to engage. It might be more understandable why the Accountant in Bankruptcy, for example, might have a challenge there. I have no idea whether the Accountant in Bankruptcy has reported, but I use that example to make the point that, of that enormous list of public bodies, there are some that are quite a long way away from biodiversity in their jobs and functions. It is clearly a task to engage them all in understanding that, no matter how far away they are from biodiversity in what they do, there is still a duty on them. As members will understand, SNH is not going to have a difficulty in making such a report, but some of the other bodies might not have registered at this stage that they have a duty to do so.

That said, we write out to every one of the public bodies when we are coming up to the reporting date to remind them of the duty. We are trying to engender that understanding, but it is still the case that there are a number of the public bodies that are not really getting it or perhaps do not quite understand what it is that they are being asked to do.

When we took evidence on the issue previously, there seemed to be a consensus that more guidance was needed to provide more clarity on the duties that required to be met and even on the reporting format. Is it recognised that there might be some room for improvement on that?

There is quite a lot of guidance. One of the questions that I might have of public bodies is whether they are availing themselves of what information is already available. There are three different template forms, which are tailored to the size or nature of an organisation. There is already some nuancing, and quite a lot of guidance is available. I am not sure what extra information could be provided. The problem might be that organisations are not finding what is there in the first place rather than it not being sufficient when they find it.

Do you feel that that is perhaps because many of the public bodies are stretched financially and are under a lot of pressure to deliver their core services? Is the biodiversity reporting duty just a step too far for organisations for which biodiversity is outwith their core functions, which you mentioned in one of your responses?

The duty has been legislated for in terms of function. When I talked about it being outwith organisations’ core functions, I was talking about those public bodies whose activities, by definition, do not relate to nature or biodiversity. Given that the issue is perhaps not at the forefront of their minds, it might be quite hard for them to envisage how to achieve what is required.

The original legislative provision on the duty to have regard to biodiversity dates back to 2004. I am guessing, because of what happened with the Wildlife and Natural Environment (Scotland) Bill in 2010, that there was a feeling that that did not really achieve anything and that having to report on it might help to achieve more. Perhaps it has done that to some extent.

Our view is that the reporting function is not a huge resource issue. It might be the case that different public bodies are prepared to expend more of their time and resource on the function, but we find it difficult to see that the reporting part of the process is resource intensive per se. To be honest, I am not sure that that is what the problem is with the reporting.

That is useful—thank you.

On the issue of resource and data, one of the organisations that gave evidence last week talked about the information that was available to it in a condensed urban area. Because it is part of a larger region, it was difficult to put its report in context because there was no form of hub that collected information for the whole area. Could the Scottish biodiversity information forum get more support from the Government to encourage the holding of information in a form that would be searchable, which would give individual preparers more localised data?

The SBIF is in the middle of undertaking a piece of work that may or may not include recommendations that relate to that, so perhaps we should wait and see what it has to say. The SBIF was formed at the same time as the provision in question was incorporated in the bill, and it is currently doing a costed business case. I expect that some more concrete suggestions and proposals will be made on the area that Mr Bowman asked about. As I understand it, the SBIF is looking for support to build a better recording infrastructure.

The difficulty with all of this is that we are talking about the reporting and recording bit of the process, not the doing part of it. My feeling is that I would want there to be some focus on the doing part, not just the reporting part. I am a bit wary of putting an enormous amount of time and effort into a reporting infrastructure, which might run the risk of becoming slightly top heavy and becoming more of a resource issue, thereby detracting from the activity of having regard to biodiversity.

The regional reporting idea was interesting, but we think that that would become very difficult to manage. Apart from anything else, there are national bodies, the information from which would have to somehow be disaggregated into regional figures. If a regional hub were created, how would that get hosted and run? We would be ramping up the infrastructure of reporting, and I am not sure that bodies that are not reporting now would necessarily report any more frequently to a regional hub. I am not certain that the regional hub idea would really solve the issue here.

09:15  

I think that the idea was partly to give bodies information to help them to decide how to deal with biodiversity; it was not just to help with reporting.

That is interesting, because that is not what the provision in question is about. It is about the reporting. That is why I made the distinction between the two aspects in my earlier answer. I think that there is perhaps more of an issue with bodies fulfilling the function of having regard to biodiversity. It will undoubtedly be tougher for some bodies to identify how they can do that than it will be for others. For organisations other than the landholding agencies, there are not the obvious opportunities that there might be. It sounds a bit nursery to talk about the doing part, but I want to distinguish between the activity that was legislated for in 2004 and the reporting part, which was legislated for in 2010. If the reporting part is—

You have been very clear about that, which is useful.

It would be nice if the two aspects were joined up.

In a sense, they are meant to be, but the reporting is about the doing. If a body is not engaged in the doing, it might feel that there is nothing to report, if it is even aware that it should be reporting.

That leads me nicely on to the subject of my question—I want to scratch below the surface of the reporting and see who is doing what. We had some good examples last week, particularly from the East Ayrshire Leisure Trust submission. It embeds its duties in a number of the engagements that it carries out in East Ayrshire. For example, it has a species survey that it creates when it is thinking about maintenance of buildings and capital programmes; it has a local records centre; and it has enhanced species protection when it is thinking about planning and building standards. Despite the fact that we have heard about a lack of reporting, when we looked below that to see who was doing what, we found that quite a lot of good work was being done.

Have you had any similar evidence from the other public bodies that have a land interest about whether they are actually doing the doing, as you said?

There will be a lot of public bodies in that position. I would hazard a guess and say that most local authorities are having regard to that function. There is a lot that can be done. It can be easier for organisations that are landholders. For example, health boards are beginning to look much more closely at what is happening on their estates. A number of other public bodies work very hard at this; Scottish Water would probably have an incredibly good story to tell about everything that it is doing. It is true that there are some extremely good examples.

The lack of reporting does not mean that there is a lack of action or that good work is not being done. The question is about our ability to gather that information in and to show it in one place across the whole of Scotland, and that is the bit that we are finding difficult.

We also asked about how such processes embrace and engage the wider public. They tend to happen anyway in places such as East Ayrshire. For example, as I understand it, there is no formal requirement to engage the public in a new plan from a biodiversity perspective, but it does happen. At last week’s meeting, we tested the water on that, and the picture seemed to be piecemeal when it came to whether the public bodies proactively engage with the public when they consider any new piece of work in their area. How could we strengthen the engagement process with the public in this area?

Public engagement is really important. In some cases, it is simply a question of bodies being clear and explaining why they are doing what they are doing, although, in some cases, it is a question of local authorities explaining why they are not doing something. There is a big debate about things such as road verges and roundabouts. Local authorities are taking decisions about what the planting looks like, whether to mow, when to do it and all the rest of it. Members of the public can be mystified about why something that used to happen is not happening, but there might be a very good reason for that. That is about communication. Each public body will have its own way of operating, and some public bodies will be a lot better than others at such direct communication.

When it comes to local authorities, my experience is that there is quite a lot of engagement with people, because a lot of the activity that goes on in the area of delivering the biodiversity function involves vast numbers of volunteers. I think that we are still in volunteers week. A huge amount of the activity that public bodies undertake will involve volunteers, and I would be amazed if East Ayrshire Council was not harnessing an army of volunteers to do that. There is a very strong level of engagement in that regard.

Again, we are talking about performing the function part of the duty rather than the reporting part. The question is how we make sure that we get all those public bodies that are doing such work to report it—I would be surprised if they are not doing so—and how we get those that do not have the issue at the forefront of their minds to understand that they should be thinking about it in the course of their business. That was what was asked of them. The aim was not to turn them all into mini-SNHs. We asked them to have regard to biodiversity in the course of their normal functions and, some years later, we asked them to report on what that looked like. I suspect that there might be a bit of confusion about what exactly public bodies are supposed to be doing, and in some cases I suspect that they do not have much of a notion.

On exactly that line of questioning, I am not aware of there being any sanction if a report does not come in. Is that correct?

There are no sanctions if a report does not come in. I indicated that we write out to all the public bodies in the run-up to a reporting deadline. Somewhere on somebody’s desk in every single one of those public bodies there will be a letter saying, “By the way, you need to think about this.” However, there are not sanctions. That was not part of the debate in 2010.

To be honest, there is not always a relationship between sanctions and more effective reporting. With public bodies, it is difficult to see how we would build in a sanctions regime. That would be a curious conversation to be required to have. For example, there are no sanctions for a failure to report on climate change duties, but we get 100 per cent reporting on those. The issue is more about people’s understanding of the importance or relevance of reporting, rather than that people are deliberately setting their face against it. I am not sure that sanctions would necessarily help. I am just trying to be honest about that. It is more about getting public bodies to understand what the 2004 duty is and how they have to report on it.

Given that we wrote out to all the public bodies in the run-up to the deadline, perhaps we could now undertake an exercise of writing out to them again, flagging up that we are now halfway through the year and pointing out that there is now parliamentary interest in the lack of reporting. That might generate a bit more engagement.

That makes perfect sense to me. I was wondering whether we could end up in a situation where a public body does not have sufficient resource or knowledge, but I suppose that you would say, “We are writing out to them, so they are going to comply.”

In every single public body, there is a letter sitting on somebody’s desk. One could ask why that does not trigger at least some response, and I do not know the answer to that. As far as I am aware, meeting the reporting duty is a matter of going on to the website and downloading some templates. I do not think that there is a resource issue with the reporting part. I suspect that what is happening is that public bodies that have not really paid any attention to the original 2004 duty do not report because they have nothing to report. I am looking at officials for confirmation, but I suspect that people see the letter and think, “We do not really have anything to say.”

Would Hugh Dignon or Sally Thomas like to come in on that? Sally, you heard some of the evidence last week. Would you like to add to that?

As the cabinet secretary said, there is a lot of really good and detailed guidance. It is about raising awareness either through that guidance or maybe through a more tailored approach with some of the public bodies that find it difficult to report. The guidance includes a number of case studies that were worked up in conjunction with public bodies after the 2015 round of reporting to illustrate to public bodies of different sizes and with different ranges of functions what they could do to fulfil their duty. Those case studies show that bodies do not need to have large areas of land at their disposal to comply with the duty and that even small activities in the way that a body exercises its functions can contribute. The case studies are very useful, and we can recirculate them to add to the general levels of awareness.

Is there any value in that? From what we heard last week, it was clear that, as the cabinet secretary rightly pointed out, different bodies have different levels of engagement and requirements to engage. Should we make the duties to comply and to report proportionate to the size and the core business of the public body in question?

Proportionality is important, and we all have to understand that. As I indicated, the guidance on the SNH website already builds in a level of proportionality. Clearly, for a landholding public body, there is a greater expectation in relation to the function and potentially the reporting, because it ought to have far more to report. There is a different level of engagement. A public body whose main responsibilities have a direct link to or involve biodiversity is in a different position from public bodies that are a long way from that in their functions and capacity to do anything. In some cases, we would be talking about simply getting folk to put in window boxes or something. If all a body has is a building and not much else, it may simply be looking at something like that. However, I am not sure whether folk are thinking along those lines.

Proportionality is really important, but the guidance already recognises that. There are three levels, with three different templates, so public bodies ought to be able to find something that fits their core function, size and all the rest of it. We have very small public bodies as well as large ones but, if they have a look at what is available, they will find that there is inbuilt variation. I suspect that they are not even getting as far as looking. It is not as if they are looking and saying, “I don’t know what that all means, so I’m not going to do anything.” I am not sure that they are finding it in the first place.

I have a quick final question. I am going to stay on reporting, although I accept your point that that is actually the second stage. We heard last week that the publication date for reporting on the previous three years is 1 January, and a concern was raised that the timing is not ideal, given the holidays. We end up producing a report that does not take us right up to 1 January. In light of those facts, would you support a change to the timing of the reporting cycle?

09:30  

I personally do not have incredibly strong views about that. My suspicion is that there will be similar issues with almost any reporting date. There will always be a bit of a time lag and issues with that. From the point of view of this conversation, the important thing is that we would need to amend the primary legislation to change the reporting date. That is quite a big hammer to crack what is perhaps not a very big nut.

We can certainly consider the issue, if it really seems to be an issue. As I said, I do not have a strong view about it, but it is not clear that it is an issue. We accept late reporting. It is not as if we say, “Get it in by the deadline or forever hold your peace.” As reports come in, we will take them. The reporting deadline is not as big an issue as it might be. I note that the evaluation of the 2015 reporting round did not say anything about the reporting date, so the issue was not flagged up in that first round. However, the key thing from our perspective is that changing the date would require amending primary legislation.

At the evidence session last week, one of the key issues was the absence of information on outcomes. Is there any evidence that all this reporting activity is actually adding any value to biodiversity?

I suppose that that is a fair question. I suspect that all of the public bodies that are actively furthering biodiversity would be doing so whether or not there was a reporting duty. Slightly ramping up the communication on the reporting duty and trying to be more proactive with the public bodies that are not reporting may engender increased activity, even if it is quite small. Some public bodies will not really have a huge opportunity to do so. That would make a difference, but we would have to ensure that we pulled in not just those who are not reporting but those who are not carrying out any of the function, which would be a huge undertaking.

I downloaded a list of all the public bodies—we are at about 180 at the moment. There is an enormous range, so it would be a huge undertaking to ensure that each and every one of them was actively doing something on biodiversity and then actively reporting it. That is not to say that it cannot be done; it is just taking a while to get that out there. It is a three-year cycle, and we are only in the second reporting cycle.

I have to say that the mind boggles at what the Accountant in Bankruptcy could do to add any real value to biodiversity.

I am not saying that there is not something that can be done. I spoke about biodiversity at a completely different event yesterday, and I said that it is for all of us to ensure that people understand that biodiversity is not something sitting up so high that they have no part in it. There could be a vision of having a window box in every window in every tenement in Edinburgh, which would create a massive plus for biodiversity in the city. That could also apply to offices, including those of public bodies, as much as to everybody else. There is always something that people can do. The issue is that, because of the small scale, it simply may not register in people’s minds as something valuable that they could do.

These things often have multiple functions. I do not want to sound trite, but it is a lot better to have window boxes in a workplace environment than it is not to have them, so there is a plus for the working environment and for biodiversity, and we begin to get engagement. It is still very much a work in progress.

As members have no more questions, I will ask a final one. Does the provision in the legislation need to change, or is there perhaps a wee bit of a challenge for your department in raising awareness among public bodies about complying with the duty?

The challenge is in trying to increase the level of compliance on reporting. Behind that challenge is the challenge of getting a number of public bodies to understand that, however little can be done, it is still valuable and contributes. That is where the gap is, but that applies not just to public bodies. I suspect that, right across society, there is an issue with people understanding that even a small amount multiplied by a huge number makes a big difference.

Thank you very much for your evidence, cabinet secretary. I suspend the meeting briefly to allow a changeover of witnesses.

09:36 Meeting suspended.  

09:37 On resuming—