Regulatory Reform (Scotland) Bill
Agenda item 3 concerns the Regulatory Reform (Scotland) Bill, on which the committee undertook a number of fact-finding meetings yesterday. We broke into three groups and it would be useful to get reports from those groups on the key points that they discussed. I remind members to bear it in mind that the meetings were held in private and that people participated in them on the basis that their contributions would be kept private, so names will not be revealed.
I ask Alison Johnstone to report on what the first group found.
Dennis Robertson and I met an officer with a great deal of experience of environmental health and trading standards, who was absolutely fascinating. We could have talked to him for twice as long.
Among the main points that came up was the inclusion of the economic duty in the bill. He did not believe that there was any point in that. He believed that it would create a conflict with the responsibility to protect public health and safety. He agreed that the national standards could create clear expectations but said that guidance on the operation of such standards would have to take account of local circumstances.
I will briefly go through the main points. The officer believed that the economic duty should be removed from the bill, because its purpose was unclear and it would create a conflict. He believed that other approaches, such as the existing enforcement concordat, seemed to serve the same purpose. He also questioned whether there is a shared understanding or a clear definition of what is meant by “sustainable economic growth”. He believed that existing professional standards apply and are promoted well by relevant professional bodies, that provisions already exist that make it the regulator’s role to be a facilitator who creates a level playing field and that effective regulation helps legitimate business to prosper.
The officer gave examples. He said that a restaurant would rarely be closed for any longer than was absolutely necessary and that officers understand that people’s livelihoods are at stake. They try to improve matters and sort things out as quickly as possible, so they contribute to economic growth.
He gave the example of a business with a significant share in a large city’s leisure sector diluting or short-measuring alcoholic beverages across all outlets, which would have an impact on public assurance of the quality of what they purchase and on other businesses’ ability to compete on an equal basis. Given the impact of that business’s market share, how would the economic duty balance against public safety considerations?
He thought that there would be value in having a national standard and that it was important that all who are involved across the country in regulatory work understand what is expected of them. There was concern about the level at which standards would be set. Large cities such as Glasgow, Edinburgh and Aberdeen have high standards, which he would not want to be reduced.
He had concerns about whether standards would reflect practical experience of effective regulation in different areas. He said that an inspector in Glasgow might see four or five burger vans in an afternoon, whereas the number could be one or two a year in Clackmannanshire. Some people would have great experience and be able to operate more efficiently, which might have an impact on the standard. He was concerned that what might be appropriate in Glasgow would not be appropriate in the Highlands.
He commented quite strongly on the need for a holistic approach that combines food hygiene and health and safety inspections, as in larger urban areas. He gave an example of where that does not happen. He told us of a quite harrowing incident in which someone had ended up with their foot in a frying pan.
Do you mean a deep-fat fryer?
Yes—a deep-fat fryer. Someone who was attempting to clean a kitchen oven had found himself standing on top of an oven and had had a dreadful accident.
Oh no!
That person had been trying to comply with one set of regulations and had failed to comply with another.
The officer believed that environmental health officers would naturally be able to have a more direct relationship with the businesses that they inspect and to demonstrate more clearly the benefits of compliance to those whom they deal with. When enforcement action is required, those officers are more likely to have a good relationship with their local procurator fiscal, through which appropriate measures can be imposed. In a larger area, those relationships might be less likely to exist, but there is more scope to combine inspections for different parts of the licensing regime, which could aid compliance and operation.
Finally, the officer was surprised that street-trader licensing, which is a relatively small area of regulation, is seen as being of such importance. However, he noted that it is the area in which environmental health officers are most involved. He has a concern, which I think has been mentioned to the committee previously, that the proposals might lead to street traders shopping around so that they are inspected by authorities that are viewed as having less stringent standards. For example, a small local authority that employs four or five environmental health officers might cover an area that is geographically convenient as a winter base for people who operate travelling shows. At present, the major urban centres have inspection regimes that have higher standards and more officers who are dedicated to particular areas for inspection and compliance. Under the bill, one small authority could be responsible for licensing 20 per cent of such traders in Scotland.
The officer felt that appropriate resourcing is needed to deliver effective regulation. The current funding model works on a per capita or head-count basis, but that might need to be rebalanced to take into account the burden of work—he pointed to the fact that Edinburgh has a phenomenally high number of fast-food restaurants and so on.
Dennis Robertson might want to make other points. We had an interesting and helpful meeting.
I emphasise only that there was some concern about the potential for dilution of standards, which the officer did not want. We should aim to bring other authorities up to the level of, for example, the City of Edinburgh Council, Glasgow City Council or Aberdeen City Council on good practice.
I ask Margaret McDougall to report back on her group.
We met two planning officers, who were very knowledgeable about what they do. In summary, they felt that local authorities are too diverse for national standards to be applied to them. For example, Edinburgh has lots of listed buildings, whereas Glasgow has more industrial issues and dispersed problems. The planning officers were very clear that they have sustainable economic growth as a key objective.
On planning fees, there were many concerns about how satisfactory performance might be measured, given that the focus will likely be on timescales rather than on good partnership working and decision making. How will we measure the quality of planning decisions? It seems that there is no clear way of measuring that.
A concern was expressed that, whereas a local development plan can reflect the diversity of a local authority area, imposing national standards could mean that local issues were not tackled as effectively. In effect, local authority planners would be removed from the process and planning would be delivered by the Scottish Government.
On the economic duty, planners recognise that their job is to encourage economic regeneration and growth, as I said. However, planners serve the local authority population, and communities need to have a say in the process, including times when a development is not palatable. In addition, when there are time constraints, planners might still need to consult and rely on information from other organisations, such as Scottish Natural Heritage, but other organisations might not always conform to the timescales.
Partnership working with other regulators is good, but planners have expertise in heritage or the environment rather than in economic growth, although that may be a higher priority now within the context of the national planning framework. Basically, that is what the planning officers felt.
On sustainable economic growth, the planning officers mentioned several times how performance will be measured and how it will be reflected accurately. Will that be a tick-box exercise? The priority could be meeting timescales rather than the quality of the planning application and how a decision comes about, particularly in relation to larger developments.
11:45
On planning fees and the sanctions that have been mentioned, there was concern about what will happen if a planning authority is not performing and its fees are reduced. If the fees do not go into the larger pool of the local authority, how will the planning authority improve the service that it provides, given that its funds will be reduced?
We heard that the in-house services that local authorities provide are not consistent. Large local authorities have ecology and heritage experts in house, but smaller ones have to get consultants in to do that work, which takes time.
The planning officers were not at all keen on the financial sanctions. They believe that the sanctions might result in local authorities prioritising and targeting funding in areas that will impact on the agreed planning targets rather than focusing on providing a good overall service. We heard that making good decisions is as important as efficiency and that the bill is too focused on efficiency.
I presume that all committee members will get a copy of the notes from the meeting, so I will not go through them all. The view was that the section of the bill on planning fees should be removed as it is unlikely that it will be possible to implement it effectively, given the diverse economies, climates and priorities of communities. Local authorities need to be able to respond to their development plans, which might differ from the Scottish Government’s view of national consistency or local authority performance.
I will leave it at that. Chic Brodie might well want to add something.
Does Chic Brodie want to add anything?
No. Planning fees and localism were the two main concerns.
I will report back briefly from the group that I was in. Mike MacKenzie, Rhoda Grant and I met a cross-section of the business community, ranging from quite substantial house builders down to very small microbusinesses. We had a broad-ranging discussion that inevitably went on to subjects that were not really relevant to the bill, but nevertheless it was interesting and it was good that they engaged.
The themes that came out of the discussion were pretty consistent. On national standards, there was concern about local authorities inconsistently applying national policies and regulations. The businesses would prefer more consistency. An example was given of somebody running a taxi firm. It seems that different local authorities apply different standards, and people who operate in different areas have to comply with the different standards, which adds to costs.
Perhaps unsurprisingly, there was general support for the economic duty, which the businesses feel would be helpful. Crucially, they want regulators, including local authorities, to be seen as facilitators and enablers who are there to assist people in business rather than just to put obstacles in their way, which is how they are perceived at present. Probably the strongest message that came out from the businesses was that they want a change of culture among regulators and local authorities, which should be much more business friendly and should try to help them through regulation rather than stand in their way.
The point was made that planning fees are a small part of the total cost of a planning application. We heard that the changes might not make a huge difference to other planning issues.
We were given quite a few specific examples of legislation in which the businesses believe that there is duplication. One concerns building standards and the interplay with the requirement on local authorities to require carbon reductions under the Climate Change (Scotland) Act 2009. Some local authorities are using that to enhance building standards, in effect, which is making it more difficult for house builders to get on and do what they want.
I do not think that the messages from businesses surprised any of us who were there. They were focused on making it easier to do business and on the need for regulators to be more helpful, rather than just to strictly apply the rules.
Do Mike MacKenzie and Rhoda Grant want to add anything?
A couple of people in the group were from very small businesses. There is a difference between bigger businesses, which can engage more effectively with regulators and whose primary concerns tend to focus on technical issues that relate to the efficiency of regulation, and smaller businesses, which are bewildered by the complexity and cannot negotiate their way through what can be a complex minefield.
I echo that. Another thing that came across clearly was that legislation and regulation really matter. The businesses said that there is no legislation on things such as surface water and who is responsible for it, but carbon reduction is overlegislated, with different pieces of legislation doing the same thing or even fighting against each other.
There are also problems with organisations making legislation come to life. Some departments have no view of what other departments are doing, so people get different messages from a single organisation. As Mike MacKenzie said, there is confusion because people are not speaking to each other and there is no understanding of what is going on.
We will circulate the notes from the various meetings to all members so that they can see what the people at the other meetings said. We will bear all the issues in mind in the formal witness sessions as we scrutinise the bill.
Last week, I went to the David Hume Institute presentation on competition, at which regulation came up. I know that we will address competition after September 2014, but it is clear that in the bill there is an overtone of competition regulation and how that applies.
Okay. Thank you. We now move into private session.
11:52
Meeting continued in private until 12:13.