Chamber and committees

We will endeavour to provide as much information as we can to reflect the committee’s asks.

Is that in terms of capital projects?

Thank you, convener. Good morning, committee. The draft regulations are extremely straightforward, in that they list the public authorities that have to adhere to the consumer duty. As such, this Scottish statutory instrument plays an essential part in confirming to public authorities whether they must adhere to the duty.

The consumer duty and Consumer Scotland go hand in hand. When Consumer Scotland was established, stakeholder feedback identified the need for comprehensive change in how consumers are considered and integrated into policy and decision making. It was that feedback that paved the way for the idea of the consumer duty. The duty will require “relevant public authorities”, as listed in the SSI, to

“have regard to the impact of strategic decisions on consumers in Scotland and the desirability of reducing harm to them.”

The 2020 act states that

“Consumer Scotland may ... issue guidance about the duty”.

Consumer Scotland has, helpfully, agreed to that, as it can see the opportunity that the duty provides. Consumer Scotland will be able not only to highlight good practice by local authorities in that area but to highlight to the Parliament any detriment to consumers.

My officials carried out stakeholder engagement before and during the consultation period as part of the consumer duty for public bodies consultation. Although there was broad support for the duty, concerns were raised that it would be an additional administrative burden, and about the need for clear guidance. In addition, some stakeholders disagreed that the duty should apply to their organisation or body.

In the light of those responses, my officials undertook further engagement, emphasising that the duty was to be applied in a proportionate and targeted way and only to strategic, rather than to daily or operational, decisions. Those further engagements and reassurances have been positively received by the organisations concerned, and they have fully addressed the concerns that were raised.

My officials looked again at the authorities that were named in the consultation, and they decided that the duty should not apply to them all. As a result, some authorities have been removed from the final list.

As minister for public finance, I am well aware of the pressures that the relevant authorities already face, and I am determined to ensure that the duty is not, either in perception or in practice, an unnecessary burden.

The guidance that is being prepared by Consumer Scotland will ensure that public authorities know how to apply the consumer duty to their strategic decisions. Ensuring that the guidance captures all the information that those authorities need will, therefore, be vital. That is why I have agreed to an implementation year to allow Consumer Scotland the necessary time in which to consult and engage with stakeholders on the draft guidance before it is finalised in advance of 1 April 2025.

Consumers are the lifeblood of our economy, and the establishment of Consumer Scotland recognised that simple truth. The legislation that is before the committee today is an essential part of a process that is designed to ensure that public authorities put consumers at the heart of their strategic decision making and thinking. I hope that members will support the draft instrument.

I will ask Neal Rafferty to come in, because officials have engaged extensively with public authorities and, as I touched on in my opening remarks, that has gone some way towards addressing the concerns that those authorities expressed.

I reiterate and make it clear that the duty applies to strategic decision making at executive and board level, not to day-to-day operational matters. In addition, Consumer Scotland will prepare guidance. Draft guidance will be published ahead of the commencement of the duty, and Consumer Scotland will undertake a public consultation that will capture the views of the various bodies to which the duty will apply. We are working collaboratively to ensure that the guidance is appropriate.

Neal Rafferty might want to comment on the engagement that has taken place with public authorities to provide reassurance and address concerns.

I cannot give a direct example. Public bodies might currently be doing things that have a positive impact, but they might not necessarily recognise or identify that. The duty will introduce the requirement

“to have regard to consumer interests”

in strategic decision making—again, I note that that refers to decisions at executive and board level. That will certainly be of assistance to Consumer Scotland, given its strategic leadership role, but it will also help public bodies in considering their future work, when issues of detriment might arise. As I referred to in my response to Mr Whittle, the way in which that manifests could vary, given the diverse range of public bodies across Scotland.

The duty will provide a significant opportunity for learning. It will support Consumer Scotland’s work, particularly its strategic role, and it will support the Parliament in its scrutiny of Consumer Scotland and the wider devolved consumer policy landscape.

I do not know whether Neal Rafferty wants to add to that or to reflect on the engagement with public authorities about how they might apply the duty.

I think that we covered that in our letter to the committee. Local authorities, which are part of regional transport partnerships, will be covered by the duty.

Yes, sorry—that was the point of confusion. As Transport Scotland and local authorities will both be subject to the duty, it was felt that that was sufficient. I do not know whether Neal Rafferty wants to add any further commentary.

Given the role of Transport Scotland and local authorities as delivery partners, they would, in their work and strategic decision making, have to have regard to the consumer duty. In effect, it avoids duplication.

That is an important question. On the point about enforcement, competence with regard to consumer policies is split—advice and advocacy are devolved, but enforcement is reserved, so we do not have the means to legislate for enforcement around consumer issues.

The question of how individual public bodies interpret and respond to the legislation is important. That is why we have taken an approach that not only focuses on the strategic level but is not overly prescriptive. We recognise that, given the broad and diverse landscape of public bodies, the way in which they will be able to apply, take on board and have regard to the duty will vary depending on the particular functions and duties that they discharge. That is why it is important to provide flexibility for public authorities to “have regard to” the duty in a way that is consistent with their functions and responsibilities.

Reporting will be one of the requirements, but that can be incorporated into the existing reporting that local authorities do—for example, through an annual report. Alongside that, there will be the guidance that is developed by Consumer Scotland. As a non-ministerial office and statutory body, Consumer Scotland has a statutory responsibility to provide coherence and strategic leadership in the consumer landscape in Scotland. Consumer Scotland, which is directly accountable to the Parliament, has an important role to play in that regard.

In recognition of the limitations on what we can do around enforcement, we want to work constructively in a collaborative process, and Consumer Scotland has an important leadership role to play in that respect. Nevertheless, we recognise that the way in which public bodies “have regard to” the duty will vary between bodies, reflecting their specific duties and functions.

Is that with regard to—