- Senior Solicitor
Consultation has recently concluded on a proposed Wellbeing and Sustainable Development (Scotland) Bill, a Member’s Bill, brought by Labour MSP Sarah Boyack. If introduced, it could have a significant impact on Scottish public authorities.
The aims of the Bill are to introduce definitions for ‘sustainable development’ and ‘wellbeing’, to establish a Wellbeing and Sustainable Development Commissioner, and to introduce a new duty for public authorities to promote these principles by ensuring that consideration of both is given during policy development, decision making and implementation, in a similar way to the existing public sector equality duty.
It is acknowledged within the consultation document that settling on a definition of wellbeing may prove difficult as the idea of wellbeing in this sense is complex – it’s more than the objective definition of people feeling ‘happy’ or ‘satisfied’. Sustainable development is a term which means, broadly, developing as a society in a way which does not exceed the environment capabilities of the planet.
The introduction of the proposed bill is based on a desire to move away from short termism and move towards a coherent approach to make positive changes for future generations. The idea has been building in momentum recently – the bill draws on research previously carried out by the Scottish International Development Alliance, and the Scottish Government had indicated an intention to implement legislation of this nature in its programme for government 2021-22, but there hasn’t yet been a Government Bill put forward.
There are also existing legislative provisions imposing duties on public and other bodies in relation to sustainability, for example reporting requirements (Scottish National Investment Bank Act 2020) and requirements to act in a sustainable way (Climate Change (Scotland) Act 2009). However, these have developed piecemeal and are not considered to be as cohesive as they could be, at least in part because a lack of definition of the term ‘sustainable development’ means the concept is open to different interpretations, which can lead to a lack of policy coherence. Legislation with similar intent to the proposed Bill is in force in Wales, and under consideration in the House of Lords.
One of the issues the Bill seeks to address is the view that sustainability and wellbeing are not considered sufficiently in policy delivery. It is hoped that defining the terms will assist with that.
The Community Empowerment (Scotland) Act 2015 provided a starting point here, by establishing the National Performance Framework which embedded the UN sustainable development goals domestically by way of the National Outcomes, with which those working with public authorities will be familiar. The bill seeks to build on this and increase clarity for public authorities by setting out definitions of ‘sustainable development’ and ‘wellbeing’, and conferring a specific duty on public authorities to facilitate implementation of that definition.
While there are some existing duties for public bodies in relation to sustainable development, these generally come from a climate change or emissions reduction angle. The proposed bill will focus on sustainable development and so the intention is for that narrative to carry through all areas of public policy. The consultation sought views on how the existing uses of the term ‘sustainable development’ in the 35 Acts where it currently appears could be amended to ensure that a new duty imposed on public bodies will have a clear legislative framework within which to operate.
Importantly for public authorities, the consultation document recognises that an increasing number of duties on public bodies may be problematic because as the number of duties increases, the ability to carry them out effectively may decrease – the consultation document states that the intention of any new duties imposed by the Bill would be to simplify existing duties rather than increase the burden on public bodies. It is envisaged that the role of a Wellbeing and Sustainable Development Commissioner would be to support public bodies at an organisational level, as well as hold them to account, in their delivery of the new duty. The intention is that the Commissioner would be independent of the Scottish Government, and accountable to the Scottish Parliament.
A summary of the responses will be published, and a draft version of the bill will follow. Once the draft is available, the Member will need to seek, and obtain, a certain level of support across Parliament. Only once the threshold for support is obtained will the draft bill be introduced to Parliament.
Anderson Strathern will be monitoring progress and will draw your attention to any significant developments.
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