Section 36 — Duties of public bodies relating to climate change

Climate Change (Scotland) Bill: Stage 3 – in the Scottish Parliament at 11:30 am on 24th June 2009.

Alert me about debates like this

Photo of Trish Godman Trish Godman Labour 11:30 am, 24th June 2009

Group 12 is on public bodies—climate change duties. Amendment 38, in the name of the minister, is grouped with amendments 39 to 49, 52, 5, 5A, 91 and 92.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

At stage 2, Cathy Peattie successfully proposed amendments that included within the bill a duty on public bodies

"to contribute to the delivery of the targets set in or under Part 1".

Although I did not agree that such an approach was necessary, I accepted the general principle behind what is now section 36(A1) of the bill. However, while I accept the general principle, I believe that a number of amendments are needed to improve how section 36 works and to take proper account of the amendments that were made at stage 2.

In particular, section 36(A1) is not specific about what will be expected of public bodies to fulfil the duties that it places on them. As members will know from the briefing note that the Convention of Scottish Local Authorities has circulated, it has concerns about that aspect of the duties as they currently stand. Amendment 38 will place on public bodies a duty to reduce greenhouse gas emissions in so far as that is consistent with the exercise of the relevant public body's functions. The language that is proposed in amendment 38 seeks to make it much clearer what is expected from public bodies.

In the proposed new subsection (A2) that amendment 38 will insert into section 36, the sustainable development duty will apply only to public bodies' actions to reduce their emissions. That will ensure that the duty does not cut across other functions that such bodies might have and other sustainability duties to which they might be subject. That will help to avoid the confusion of conflicting and competing sustainability duties on public bodies.

Let me reassure members about duties that relate to adaptation to the effects of climate change. Although a wide spectrum of Scotland's public bodies can, and should, take action to reduce their emissions, taking action to adapt to the effects of climate change tends to be more of a specialist activity. For that reason, it is felt that adaptation duties on public bodies are best suited to secondary legislation. That will allow a more targeted, and therefore more effective, approach to be taken. The Scottish Government intends to introduce carefully considered regulations and guidance, which will also allow the flexibility to improve directions as our approach to adapting to climate change continues to improve. I am content to confirm that I consider that it is important that an adaptation duty be introduced as swiftly as possible once the bill receives royal assent. We anticipate that that will be within about a year.

Another point to make is that, under the provision that was inserted by Cathy Peattie's stage 2 amendment, the climate change duties apply to all the persons and bodies that are listed in schedule 1 to the Freedom of Information (Scotland) Act 2002. Unfortunately, that is unnecessarily wide, as it refers to individuals as well as organisations. Therefore, I propose that we use a different reference source for the list of relevant public bodies: the list of devolved public bodies in schedule 3 to the Ethical Standards in Public Life etc (Scotland) Act 2000. I believe that that will cover all the significant public bodies that should be covered. That will be achieved by amendment 49, which will mean that local authorities will also be included in the definition of "relevant public body".

Amendments 39, 43 to 48, 91 and 92 are consequential on amendment 49.

A significant issue with section 36 as it stands is that it would require public bodies to comply with the new duties when exercising any functions and to do so in the most sustainable manner. That duty would not be restricted to duties under the bill but would apply to those bodies when they carry out any function, even those functions that have no obvious connection to climate change. That could have the effect of causing significant confusion because many public bodies—including the Scottish Environment Protection Agency, Scottish Natural Heritage and local authorities—already have sustainable development duties under other legislation. I do not believe that that was Ms Peattie's intention, which is why I propose to replace the current duties in sections 36(A1) and 36(A2) with better-defined duties. In fact, the proposed duties in amendment 38 could be said to go further than the duty that was inserted at stage 2 because they would require bodies to act

"in a manner which reduces the emissions of greenhouse gases" rather than simply to

"contribute to the delivery of the targets" that are placed on ministers under the bill.

Amendment 41 is consequential on amendment 38.

For the sake of completeness, amendments 40 and 42 will simply tidy up the drafting of section 36.

On amendment 5, in the name of Cathy Peattie, and my amendment 5A, I agree that the more focused list of public bodies that, if amendment 38 is agreed to, will be covered by section 36 should be subject to the equal opportunities duty in section 62. Given the wide range of bodies and persons that are covered by the Freedom of Information (Scotland) Act 2002, there is a difficulty with amendment 5 as lodged, which means that I cannot accept it. Amendment 5A, in my name, which is in a sense consequential on amendment 49, will have the effect of applying the section 62 duty to those relevant public bodies that will be covered by section 36 if amendment 49 is agreed to. If amendment 5A is agreed to, I will be happy to support amendment 5.

At stage 2, John Park lodged amendments on procurement but, after discussion, his principal amendment was not moved because of technical drafting problems that were identified. Amendment 52 deals with that issue and will impose a requirement that will apply when public bodies have to prepare a report on how they are complying with climate change duties. That report must contain information about how the procurement policies and procurement activities of public bodies

"have contributed to compliance with climate change duties."

I move amendment 38.

Photo of Cathy Peattie Cathy Peattie Labour 11:45 am, 24th June 2009

I oppose amendments 38 and 43 to 49. Public bodies should have nothing to fear from the duty that was agreed to at stage 2. Many are already implementing a wide range of climate change measures, and I congratulate them for setting an example to which all public bodies should aspire; the duty exists to ensure that they do.

The current duty is not onerous. It incorporates reducing greenhouse gas emissions, adaptation and sustainable development. It specifies that public bodies must

"contribute to the delivery of the targets" in the bill and must "help deliver" adaptation programmes. It also makes it clear that they can decide what is appropriate for their area.

The minister appeared to agree with that when he promised to work with whatever decision the Transport, Infrastructure and Climate Change Committee made:

"I do not seek to make an argument that we should end up elsewhere, as I genuinely think that local councils are up for this."—[Official Report, Transport, Infrastructure and Climate Change Committee, 2 June 2009; c 1863.]

I, too, think that councils and other public bodies are up for this.

Why lodge amendment 38? It will weaken the public body duty that was agreed to at stage 2. It completely removes adaptations, requires public bodies merely to cut greenhouse gas emissions attributable to their activities, and links sustainable development only to weak greenhouse gas emissions cuts and not to overall functions.

Councils' stated fears about people taking cases to court are not borne out by similar legislative provisions, which have not led to a significant number of cases. I am sure that the Scottish legal system is robust enough to deal with them and, in any event, amendment 38 would not prevent anyone from trying. That being so, why diminish the perfectly good provisions that have been agreed to?

Amendment 43 is linked to other amendments, including amendment 49. The bill, as agreed to at stage 2, defines public bodies according to the Freedom of Information (Scotland) Act 2002. Amendment 49 limits the definition of public bodies to the definition in the Ethical Standards in Public Life etc (Scotland) Act 2000, which is not as wide as the FOI act and does not include the Scottish ministers. Crucially, the FOI act definition is likely to be broadened to cover, for example, private prisons and other organisations that deliver public services. Amendment 49 is minimalist in ambition. We need action, and we need it urgently.

Amendment 5 ensures that equal opportunities requirements in the bill apply to public bodies as well as to ministers and advisory bodies.

Photo of John Park John Park Labour

I want to make a brief contribution on amendment 52. I appreciate that the minister took on board the spirit of my proposal at stage 2 and has tidied up the technical aspects.

It is important to recognise the role of the public sector not just in procurement policy but in procurement activity. The public sector plays an important role in driving behaviour—and, we hope, will provide an exemplar to the private sector. The bill provides an opportunity to promote and publicise the good work that is taking place throughout not only the public sector but the private sector. I hope that we will consider the key roles played by workers, particularly those who are involved in trade union workplace environmental activity. A key role is played by the trade unions in driving the behaviour of trade union members and workers—not just in the workplace but the behaviour that they take back to their homes.

The environmental objectives that are being pursued by the trade union movement are a worthy contribution to the wider climate change challenge that we face. In the past, we have seen health and safety representatives make workplaces safer and learning representatives make workplaces smarter.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

I agree with much of what Mr Park is saying, and we are working closely with the Scottish Trades Union Congress on many of those issues.

Photo of John Park John Park Labour

I thank the minister. I believe that environmental representatives in the workplace will make workplaces greener.

Photo of Alison McInnes Alison McInnes Liberal Democrat

The Liberal Democrats will oppose the changes to what was agreed at stage 2. If we are to achieve the necessary cultural changes, everyone needs to be involved, and the whole of the public sector needs to contribute to achieving the targets that we spoke about earlier. We all need to set off from the starting line at the same time. As it stands, the net is cast as widely as possible. I suggest that we should resist amendments that narrow the definitions and, disappointingly, remove adaptations altogether.

Photo of Patrick Harvie Patrick Harvie Green

I support Cathy Peattie's position on the group of amendments and express some disappointment with COSLA's position in its briefing paper. If that position is based on fear that council decisions could be challenged on the assertion that an alternative approach could be made on the ground of reducing carbon emissions, it seems an implicit acceptance that many council decisions need to be challenged on the basis that alternative approaches should have been considered. I would have hoped that our local government sector would have been more up for this challenge than it appears to be according to the contents of its briefing.

As I said, I support Cathy Peattie's position on this group. Throughout the passage of the bill, she has consistently argued for clear and ambitious public sector duties. I urge her to move her amendments and I look forward to supporting them.

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 38 be agreed to. Are we all agreed?

Members:

No.

Division number 12

For: Adam, Brian, Aitken, Bill, Allan, Alasdair, Brocklebank, Ted, Brown, Gavin, Brown, Keith, Brownlee, Derek, Campbell, Aileen, Carlaw, Jackson, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Don, Nigel, Doris, Bob, Ewing, Fergus, Fabiani, Linda, FitzPatrick, Joe, Fraser, Murdo, Gibson, Kenneth, Gibson, Rob, Goldie, Annabel, Grahame, Christine, Harvie, Christopher, Hepburn, Jamie, Hyslop, Fiona, Ingram, Adam, Johnstone, Alex, Kidd, Bill, Lamont, John, Lochhead, Richard, MacAskill, Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Stewart, McGrigor, Jamie, McKee, Ian, McKelvie, Christina, McLaughlin, Anne, McLetchie, David, McMillan, Stuart, Milne, Nanette, Mitchell, Margaret, Neil, Alex, Paterson, Gil, Robison, Shona, Salmond, Alex, Scanlon, Mary, Scott, John, Smith, Elizabeth, Somerville, Shirley-Anne, Stevenson, Stewart, Swinney, John, Thompson, Dave, Watt, Maureen, Welsh, Andrew, White, Sandra, Wilson, Bill, Wilson, John
Against: Alexander, Ms Wendy, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Margaret, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Foulkes, George, Gillon, Karen, Glen, Marlyn, Gordon, Charlie, Grant, Rhoda, Gray, Iain, Harper, Robin, Harvie, Patrick, Henry, Hugh, Hume, Jim, Kelly, James, Kerr, Andy, Lamont, Johann, Livingstone, Marilyn, Macdonald, Lewis, MacDonald, Margo, Macintosh, Ken, Martin, Paul, McArthur, Liam, McAveety, Mr Frank, McCabe, Tom, McConnell, Jack, McInnes, Alison, McMahon, Michael, McNeil, Duncan, McNeill, Pauline, McNulty, Des, Mulligan, Mary, Munro, John Farquhar, O'Donnell, Hugh, Oldfather, Irene, Park, John, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Rumbles, Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stewart, David, Stone, Jamie, Tolson, Jim, Whitefield, Karen, Whitton, David

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 60, Against 62, Abstentions 0.

Amendment 38 disagreed to.

Amendment 39 moved—[Stewart Stevenson]—and agreed to.

Amendments 40 to 48 not moved.

Amendment 49 moved—[Stewart Stevenson].

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 49 be agreed to. Are we all agreed?

Members:

No.

Division number 13

For: Adam, Brian, Aitken, Bill, Allan, Alasdair, Brocklebank, Ted, Brown, Gavin, Brown, Keith, Brownlee, Derek, Campbell, Aileen, Carlaw, Jackson, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Don, Nigel, Doris, Bob, Ewing, Fergus, Fabiani, Linda, FitzPatrick, Joe, Fraser, Murdo, Gibson, Kenneth, Gibson, Rob, Goldie, Annabel, Grahame, Christine, Harvie, Christopher, Hepburn, Jamie, Hyslop, Fiona, Ingram, Adam, Johnstone, Alex, Kidd, Bill, Lamont, John, Lochhead, Richard, MacAskill, Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Stewart, McGrigor, Jamie, McKee, Ian, McKelvie, Christina, McLaughlin, Anne, McLetchie, David, McMillan, Stuart, Milne, Nanette, Mitchell, Margaret, Munro, John Farquhar, Neil, Alex, Paterson, Gil, Robison, Shona, Salmond, Alex, Scanlon, Mary, Scott, John, Smith, Elizabeth, Somerville, Shirley-Anne, Stevenson, Stewart, Swinney, John, Thompson, Dave, Watt, Maureen, Welsh, Andrew, White, Sandra, Wilson, John
Against: Alexander, Ms Wendy, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Margaret, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Foulkes, George, Gillon, Karen, Glen, Marlyn, Gordon, Charlie, Grant, Rhoda, Gray, Iain, Harper, Robin, Harvie, Patrick, Henry, Hugh, Hume, Jim, Kelly, James, Kerr, Andy, Lamont, Johann, Livingstone, Marilyn, Macdonald, Lewis, MacDonald, Margo, Macintosh, Ken, Martin, Paul, McArthur, Liam, McAveety, Mr Frank, McCabe, Tom, McConnell, Jack, McInnes, Alison, McMahon, Michael, McNeil, Duncan, McNeill, Pauline, McNulty, Des, Mulligan, Mary, O'Donnell, Hugh, Oldfather, Irene, Park, John, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Rumbles, Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stewart, David, Stone, Jamie, Tolson, Jim, Whitefield, Karen, Whitton, David, Wilson, Bill

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 60, Against 62, Abstentions 0.

Amendment 49 disagreed to.