Freedom of Information (FOI) applied to RSLs as of 11th November 2019 — but did you know that the Climate Change (Scotland) Act 2009 now also applies?
As you will be aware, RSLs are now defined as a Scottish public authority under the new FOI provisions. As the Climate Change (Scotland) Act 2009 applies to a Scottish public authority by way of the definition in the FOI Act of 2002, RSLs will now fall under the scope of the Climate Change Act. The Act sets out Scotland’s targets for reductions to emissions, and whilst Scottish public authorities do not have their own targets, they are expected to work in a way which contributes to the national targets.
Having regards to the Climate Change Act, Scottish public authorities have certain duties as set out in s44. Guidance from the Scottish Government sets outs how a Scottish public authority should meet these duties, and is available here. Broadly, the guidance can be summarised as follows:
Duties
The duties set out in the 2009 Act provide that Scottish public authorities must act:
- in the way best calculated to contribute to the delivery of the targets set in or under Part 1 of the Act;
- in the way best calculated to help deliver any programme laid before the Scottish Parliament under section 53 of the Act;
- in a way that it considers is most sustainable.
These duties are not prescriptive, and the guidance does not specify what exactly the duties entail. The guidance does however break down the approach to these duties into three categories: Mitigation, Adaption, and Acting Sustainably.
Mitigation
Mitigation is the implementation of policies which aim to reduce emissions.
The guidance here advises that, “in exercising their functions, public bodies must act in the way best calculated to contribute to delivery of the Act's greenhouse gas emissions reduction targets.”
It is up to the individual public body to decide how best to interpret this, but it is advisable to use a broad approach. RSLs contribute both directly and indirectly to emissions, and both of these factors need to be considered in the context of policy making and service delivery. An example used in the guidance is encouraging staff to walk/cycle to work rather than driving, which lowers emissions and is beneficial to staff wellbeing.
Adaptation
Adaptation is the adjustment of “economic, social or natural systems”, to actual or expected changes in our climate.
All public bodies will be affected by climate change and it is important to consider how this may affect you. For example, rising water levels in flood plains — has the RSL considered how this will affect its stock (if at all), and what policies have been implemented to adapt to this risk. At the same time, consideration must be given to what course of action will have the least environmental impact going forward and mitigating potential future risk.
Acting Sustainably
Acting Sustainably is where future development considers the quality of life of future generations when developing for current needs.
This part of the duties is set around taking a balanced approach to decision making. Not only the environmental impact, but social and economic aspects should be considered as well. The guidance advises that RSLs should integrate sustainability into their decision making, and be able to show this in their policies and strategies.
A common theme in the guidance is the consideration that the larger the organisation, the bigger the part they are obliged to play in contributing to the targets. Scottish Water for example, are considered a “Major Player.”
There has been some concern about the reporting duties under the Climate Change Act however, RSLs will not be required to report to Scottish Ministers in terms of how they meet their duties, unless an order is made under s46 of the Act. Although we are not aware of any plans by Scottish Ministers to make such an order it may be in the future that an order is made, therefore it is advisable that RSLs are familiar with the Scottish Ministers guidance.
Beneficially, it is likely that the activities undertaken by RSLs are already compatible with their new duties under s44; for example under the sustainable procurement duty set out in the Procurement Reform (Scotland) Act 2014.
If you have any further questions in connection with how the Climate Change Act affects RSLs, don’t hesitate to get in touch with a member of the Social Housing Team.
