Chamber and committees

Scottish Government submission of 22 October 2021

PE1895/A: Mandatory accountability for Naturescot’s decision making procedures

Background

Formed in 1992 as Scottish Natural Heritage (SNH) (which remains its legal identity), NatureScot is Scotland’s statutory nature conservation body and advisor to the Scottish Government on all aspects of nature, wildlife management and landscape across Scotland. It seeks to inspire and influence others in managing our natural resources sustainably. It is a statutory consultee in relation to appropriate planning applications, all marine license applications and environmental statements providing advice on the effects of plans, policies and development proposals.

NatureScot works in partnership with local authorities, other government agencies, voluntary environmental bodies, community groups, farmers and land managers. NatureScot works closely with the Joint Nature Conservation Committee (JNCC) and the equivalent bodies for England, Wales, and Northern Ireland to ensure a consistent approach to nature conservation throughout the United Kingdom and towards fulfilling its international obligations.

NatureScot rebranded from Scottish Natural Heritage in August 2020, NatureScot play a key role in supporting delivery of Ministerial environmental priorities, including climate change, biodiversity, wildlife, species and land management.

NatureScot’s statutory functions, are contained in the Natural Heritage (Scotland) Act 1991 and a range of other key corporate documentation including its Framework Document, corporate and business plans. Agreed conservation priorities lie at the heart of NatureScot’s decision making processes and are taken via its Board, sub-committees structures and appropriate license application process. All licensing applications are subject to rigorous process and the granting of licences, is underpinned by legislation setting out the specific purposes for which licences can be granted.

All decisions by NatureScot are subject to challenge via the established public sector complaints handling system which includes recourse to the Scottish Public Sector Ombudsman (SPSO), where appropriate.

Further detail is provided in the following paragraphs.

Accountability and Governance

NatureScot is classified as a Non Departmental Public Body (NDPB). Like all NDPB’s in Scotland, they operate at ‘arm’s length’ from Government but within an established framework of accountability and governance to Scottish Ministers and through them to the Scottish Parliament.

Key elements of the NDPB accountability and governance framework include:

• The Public Finance and Accountability (Scotland) Act 2000, including appointment of statutory of Accountable Officer;
• The Scottish Public Finance Manual (SPFM), which includes detailed governance, accounting and reporting requirements;
• Individual public body founding legislation, which sets out delivery of statutory functions;
• The duty to lay audited annual reports and accounts before the Scottish Parliament
• Framework Documents
• Delivery of agreed corporate and operational plans;
• Monitoring and reporting arrangements agreed with the Scottish Government Sponsorship Team

Role of the NatureScot Board and Senior Management Team

As an ‘arm’s length’ body the NatureScot Board plays a crucial role in the running of the organisation. The role of the board is to provide leadership, direction, support, guidance and challenge to ensure the Body delivers and is committed to delivering its functions effectively and efficiently and in accordance with the aims, policies and priorities of the Scottish Ministers and founding legislation. Specifically:

• taking forward the strategic aims and objectives for the body agreed by the Scottish Ministers
• promoting the efficient, economic and effective use of staff and other resources by the NDPB consistent with the principles of Best Value, including, where appropriate, participation in shared services arrangements
• ensuring that effective arrangements are in place to provide assurance on risk management , governance and internal control.
• (in reaching decisions) taking into account relevant guidance issued by the Scottish Ministers

NatureScot operates by delegating decision-making and delivery of functions and responsibilities to the local level to ensure that they reflect local circumstances. Casework brought to the Board will, therefore, be kept to the minimum necessary to ensure proper accountability and the effective operation of NatureScot.

The Senior Management Team is the strategic and operational management group in NatureScot. It is at the centre of the whole organisation, operating between the Board and the staff. It is responsible for the operational management of NatureScot and for developing, in partnership with the Board, the policies and strategies of NatureScot. It is responsible for the resources of staff and finance are managed in an effective and efficient way to achieve the aims of NatureScot, as set out in the Corporate and Business Plans, through performance review and monitoring systems, by developing a flexible organisational structure within a system of delegated resource management responsibilities. Specifically:

• To provide strategic leadership
• To develop key policies
• To lead continuous improvement within the organisation and promote best value.
• To effectively manage business change
• To agree priorities in line with Scottish Governments’ key targets and effectively manage resources to deliver the organisation’s performance.
• Effective governance of spend against outcomes at an organisational level.

Set out NatureScot decision-making procedure generally and specifically in the case of licensing (governed by Wildlife and Countryside Act and by Habitats Regulations and other relevant legislation). No appeal procedure for licensing decisions provided for in the legislation.

Licence Decisions

Scottish Ministers delegated licensing functions under the Wildlife and Countryside Act 1981 and the Conservation (Natural Habitats, &c.) Regulations 1994 to SNH in 2011. Licensing decisions are now a core operational element of NatureScot’s work.

NatureScot assess licence applications against three licensing tests:

• Test 1, there must be a legal purpose
• Test 2, there must be no satisfactory alternative
• Test 3, the proposed action must not be detrimental to the maintenance of the species at ‘favourable conservation status’ in relation to European Protected Species, or conservation and/or welfare in relation to other birds, plants and animals.

In relation to the Wildlife and Countryside Act 1981, tests 1 and 2 are statutory for wild birds – with test 3 compliance (conservation and/or welfare) being a policy decision to reflect the reality that ‘conservation’ issues can sometimes be more, or indeed less, important than ‘welfare’ issues’.

Licensing Officers assess and grant licences. Refusals and novel/contentious licensing cases are first discussed with the Licensing Manager, who will also inform the Unit Manager. Applicants who have had applications refused must be clearly informed of the reasons for refusal. Scottish Government are also informed of any novel or contentious licensing cases that we receive.

While there is no appeal procedure for licensing decisions provided for in the relevant legislation, all decisions by NatureScot are subject to their complaints handling process. In line with public sector complaints handling arrangements, any outstanding issues can be referred to the Scottish Public Sector Ombudsman (SPSO) for final adjudication if necessary. Details of the NatureScot complaints handling system are available at NatureScot website

Conclusion

NatureScot ensures its decision making complies with the Regulatory Reform (Scotland) Act 2014, Scottish Regulators Strategic Code of Practice and Scottish Government’s guidance, 'Right First Time' through application of transparent, proportionate and consistent processes which are set out in relevant guidance for their staff. This approach is summarised in the NatureScot guidance – Applying NatureScot’s Balancing Duties.  NatureScot worked closely with Scottish Government colleagues during the drafting of Scottish Regulators Strategic Code of Practice and it has been part of their way of working since it was introduced.

The overall purpose of the established accountability and governance framework within which all NDPBs in Scotland operate, including NatureScot is to ensure effectiveness, efficiency, openness and transparency in the discharge of public functions. Taken together as a package, there are substantial requirements placed on all NDPBs to account for their performance and delivery of functions, including any statutory decision making processes. In addition, established public sector complaints handling arrangements, including the role of the Scottish Public Sector Ombudsman (SPSO) ensure that there can be independent scrutiny where appropriate.

We do not consider that additional accountability measures are required over and above those already in place for NatureScot, as part of the established NDPB Accountability and Governance Framework.