Strategic Environmental Assessment (SEA)

Environmental Assessment (Scotland) Bill
Briefing for Stage 3 Debate - 9 November 2005

Scottish Environment LINK warmly welcomes this legislation on Strategic Environmental Assessment (SEA) and commends the work of the Environment and Rural Development Committee on their scrutiny of the bill.

An essential tool to ensure that the environment is considered at the beginning of the decision making process, the introduction and application of SEA should help us avoid many long-term costs by having to rectify environmental damage arising from inappropriate policy decisions

This legislation will deliver the Partnership Agreement commitment to:

...legislate to introduce strategic environmental assessment to ensure that the full environmental impacts of all new strategies, programmes and plans developed by the public sector are properly considered.

Key Aim: The SEA process should be transparent, accountable and adequately supported to ensure it works now, and continues to do so in the future.

Pre-screening: The work done by the Committee to consider the issues of pre-screening and ensure it is a transparent process has been important. Amendment 7 tabled by the Executive to ensure that this is an open and accountable process is welcomed and supported by LINK.

The SEA Gateway: It is important that the 'Gateway' will form the central co-ordination and support point for the delivery of SEA across the public sector, as set out by the Scottish Executive from the beginning. It should be able to support the delivery of an efficient and effective SEA process. In order to do this, the Gateway must not only co-ordinate paperwork between bodies and update the website, but should be available to share best practice and provide support and advice.

At Stage 2, the Minister commented that 'the Gateway is here to stay'. It is vital that such support remains in place, and does not falter soon after the passing of the Bill. Therefore, Scottish Environment LINK warmly welcomes the intention to provide Parliament with an Annual Report on progress and delivery and supports the amendments that would do this.

LINK would welcome confirmation that co-ordination, support, advice and guidance will be provided by the Gateway to assist responsible authorities as they being to undertake SEA, to ensure maximum effectiveness and efficiency as well as to assist the development of best practice in the long term.

The Ministers assurances would be welcome, but LINK would support Amendments 8A and 10A which seek to secure the longevity of these functions in legislation. The support for these amendments is based on our awareness that there is a clear need for a co-ordinated provision of support, advice and guidance and it is critical to ensuring that this ground-breaking piece of legislation can actually be delivered. The alternative could be much more costly to the public purse, depending entirely on advice and support from consultants.

LINK would also support Section 2, Amendment 3 which seeks to close a loophole through which private companies undertaking public functions would be exempt from undertaking SEA. This would seem to be contrary to the intentions stated by the Executive and indeed seems counter to stated intentions of the Minister. It would also create a different regime between public and private bodies undertaking public functions, reducing the responsibility for the latter. For example, this could mean that infrastructure improvements by Scottish Water would be subject to SEA while proposals for modifications to the transmission system by energy companies would not.

Section 4, Amendment 5: The application of SEA to financial or budgetary plans was considered by the committee who recommended that Ministers consider whether the bill should allow for the exclusion of these plans on a more flexible or case-by-case basis. The provision of the screening and pre-screening processes mean that only those likely to have a significant effect on the environment will actually be subject to SEA, and that there should not just be an automatic exclusion. For example, a spending announcement about the increase or reduction of funding for energy efficiency support would have an environmental impact but would not be subject to SEA if not attached to a plan.

Scottish Environment LINK commends this bill to Parliament.
This is a hugely welcome and important piece of legislation. Scottish Environment LINK hopes to work closely with the Executive, the Consultation Authorities and the Responsible Authorities to ensure that the implementation of the legislation lives up to the promise of the intention.

For more information contact:
Anne McCall, LINK SEA TF Convener on 0131 311 6500 or 07734 717 019

Scottish Environment LINK evidence to the Environment and Rural Development Committee on the Environmental Assessment (Scotland) Bill

April, 2005

Scottish Environment LINK is the forum for Scotland's voluntary environment organisations comprised of 36 member bodies representing a broad spectrum of environmental interests with the common goal of contributing to a more environmentally sustainable society.

We welcome this bill as a significant step towards putting the environment at the heart of government and note that it is markedly better than the limited scope for SEA introduced by the Regulations and Directive. In seeking to broaden the application of SEA, we should avoid many of the long-term costs of having to rectify environmental damage arising from inappropriate policy decisions.

Ensuring an effective and efficient SEA process
The success or failure of the SEA process in Scotland will be highly dependent on the system which underpins it. Experience from Environmental Impact Assessment (EIA) procedures has shown that EIAs are highly variable in quality and reliability. Inevitably, individual EIAs, produced primarily by private developers result in significant duplication of effort, limited data sharing and poor post-construction verification or monitoring.

The SEA bill applies to the public sector where such a failure to adopt best value approaches which are cost effective and consistent across all sectors will not be acceptable.

An independent body to oversee SEA
Scottish Environment LINK has commissioned a report form the University of Strathclyde to consider the issues surrounding the creation of an independent body to co-ordinate work on SEA. This report has been previously circulated to the committee and is also available from the LINK website (www.scotlink.org).

This research concludes that if Scottish Ministers are to achieve their stated goal of making Scotland a world leader in SEA, and if the system is to operate as effectively as possible there are four key functions which must be considered, namely:

• The creation and management of a publicly available internet-based SEA register which is capable of being searched, which provides copies of relevant reports, scoping and screening decisions, public notices and the results of any monitoring work
• A central access point to co-ordinate activity, and provide guidance and advice in order to ensure consistency and avoid duplication
• A body to act as an arbiter in case of dispute
• A body to audit the quality of environmental reporting and implementation of SEA

The SEA Gateway, as currently proposed, will receive screening and scoping opinions, environmental reports and the plans, programmes and strategies to which they relate. This does not appear to apply to public notices, ministerial directions or any monitoring work, nor is there an obvious requirement to make these documents publicly available via a searchable, web-based register. The obligation to place these documents on the various websites operated by responsible authorities is a welcome first step but will not encourage cross-sector co-operation, data-sharing or aid the identification of cumulative impacts.

Critically the roles, function and future of the SEA Gateway are not fixed in legislation; there is therefore no guarantee that even those critical functions, which the Gateway does currently undertake, will be maintained.

The Gateway will have no arbitration role in the event of disputes nor will it undertake any monitoring or quality control. It would appear that the Gateway will be responsible for recording plans submitted but not necessarily in a format or location which can be accessed by the public. In terms of advice and guidance we understand that each of the Responsible Authorities are currently undertaking their own individual training and development work for SEA which is not necessarily being co-ordinated or run in conjunction with the SEA Gateway. We believe this represents a duplication of effort and not the most effective use of public money. An independent SEA body need not duplicate the expertise of consultation authorities but instead more effectively co-ordinate and support the work they will continue to undertake.

Recommendations:

1. That the Committee consider the many benefits arising from our proposal for the creation of an independent SEA body to undertake the four key functions listed above

2. Should the committee not be minded to create an independent body to oversee the SEA process that statutory provision be made for the SEA Gateway including the identification of key functions as listed above.

PART 1 - ENVIRONMENTAL ASSESSMENT FOR PLANS AND PROGRAMMES

Definitions and Scope
We welcome the inclusion of the term 'strategies' in the bill. However, there remain a number of important definitional gaps in the legislation, in particular:

s.7(1)(b) 'minimal effect' - we have been unable to identify any precedent for this concept in other legislation and have concerns that it could lead to unnecessary debate resolvable only through the courts. If the committee were to adopt our recommendation that pre-screening be dropped there would be no need to define this concept further.
s.12(1) (a)&(b) 'adopted' and 'has been submitted to a legislative procedure for the purposes of its adoption' - many plans, programmes or strategies are never formally adopted or submitted to a legislative procedure, for example the National Planning Framework, or the Agriculture Strategy, both documents we feel are covered by this legislation.

Recommendations
3. We recommend the removal of the term 'minimal effect' and the combination of the screening and pre-screening procedures.
4. That the committee consider how the matter of adoption might be clarified in order to prevent responsible authorities utilising any appropriate plans, programmes or strategies, which have not been produced using SEA.

Responsible Authorities s.2(4) and s.5(4)
We welcome the very broad definition of responsible authorities set out in s.2(1) but it is disappointing that this definition is then significantly narrowed by s.2(4). Section 5(4) then uses this narrower definition to exclude private companies producing strategies which are not covered by the mandatory requirements of the Directive. While this is open to interpretation the extent to which private companies will ever produce documents which 'set the framework for development consents', thereby making SEA a mandatory requirement, is doubtful. Even a strategy setting out options for transmission upgrades, while falling clearly into one of the stated sectoral categories in s.5(3)(a)(i), is likely only to set out a series of proposals for which development consent will be sought, NOT set a framework for those consents.

If this analysis is correct then the legislation as currently drafted appears to exclude almost any document produced by a private company even if those plans, programmes or strategies were about issues of a public character.

Recommendation:
5. That the committee consider the extent to which it wishes to exclude documents produced by private bodies relating to activities of a public character.

Limited range of Consultation Authorities s.3
In s.3 the bill identifies the three Consultation Authorities, a list which was not the subject of a question during the consultation on the bill. While each of these bodies have a significant range of skills it would not be fair to suggest that between them they can adequately address all of the information which is required for the Environmental Reports. In particular, we question the extent to which any of the Consultation Authorities can adequately deal with issues relating to human health or population?

Recommendation
6. That the committee consider the limitations of listing only three Consultation Authorities with remits which clearly do not cover the information required for the Environmental Reports.
7. That the committee consider whether greater flexibility in selecting appropriate Consultation Authorities might be an appropriate function for the SEA Gateway or an independent SEA body.

Exclusions s.4
We are surprised by the exclusion of financial or budgetary plans or programmes from the SEA process (s.4(3)(b)). Given that the Executive has clearly decided to extend the scope of this legislation beyond the requirements of the Directive it is unclear why financial or budgetary plans, programmes or strategies should remain excluded from SEA. The allocation of resources between sectors can have critical environmental implications and should be subject to the same screening provisions as other plans, programmes and strategies. We believe SEA would make the budgetary process more transparent to both Parliament and the public, thereby improving scrutiny and accountability. Such an approach could also ensure that the Executive's commitment to incorporate Sustainable Development principles into its budgeting process is, in practice, delivered using a widely accepted and recognised approach.

Recommendation:
8. That the committee consider the advantages of including financial or budgetary plans within the bill in order to improve transparency and accountability of the budget process.

We welcome the fact that further exclusions can only be made if they have no or minimal effects in relation to the environment, however, we believe that Ministers should be required to apply the criteria listed in Schedule 2 before reaching this decision (s.6).

Pre-screening s.7
We are disappointed that the bill introduces pre-screening for 'non-mandatory' plans, programmes and strategies. There is no requirement to publicise pre-screening decisions, nor is there an opportunity to challenge these decisions.

While this may be an attempt to reduce the potential administrative burden it could result in Responsible Authorities submitting their plans, programmes and strategies to the Consultation Bodies regardless of their pre-screening decision in order to feel secure about the decision reached and thereby not addressing the administrative burden. Alternatively third parties will seek to challenge a system with no transparency or accountability. We believe it has the unfortunate potential to undermine confidence in the process and is neither open nor transparent decision-making.

We are not convinced that all public bodies will have the capacity to make sound pre-screening decisions. We welcome the fact that this legislation seeks to bring an understanding of the environmental consequences of policy making to those areas of the Scottish Administration, which may not previously have appreciated the environmental impact they may have. Consequently they may not be in a position to adequately assess whether their plan, programme or strategy is of no or minimal significance to the environment.

We do not support the introduction of pre-screening but if it is to remain part of the administrative process, it must be done in an open and accountable manner and be subject to challenge.

Recommendation:
9. That the committee consider whether pre-screening offers any real benefits to the SEA process given that it is neither accountable nor challengeable.
10. Should the committee not be minded to remove the opportunity to pre-screen certain plans, programmes and strategies we recommend that the pre-screening process be made transparent and accountable by the requirement to publish screening decisions (potentially on the SEA register) and offer the opportunity for challenge to these decisions.

Screening s. 9
The bill indicates no time limit for Scottish Ministers seeking to determine whether an SEA is required in the event that responsible authorities and Consultation Authorities fail to reach a decision (s.9(6)). The bill also requires Scottish Ministers to act as arbiter in the event of a dispute between the Consultation Authorities and Responsible Authorities, even if Scottish Ministers are the Responsible Authorities.

Recommendation
11. That a timescale be set for decision making by Scottish Ministers on those occasions where responsible authorities and consultation authorities do not agree on whether a plan programme or strategy is likely to have significant environmental effects.
12. That an independent body or a modified version of the SEA Gateway be given the power of arbitration in the event of a dispute.

Relationship with Community law requirements s.13
The requirements in the regulations for transboundary effects to be considered in the SEA process is critical to the delivery of environmental justice. We would therefore wish to see an opportunity for additional consultation bodies and indeed the public, outwith those in Scotland, to be consulted on the environmental impacts of plans, programmes and strategies which are likely to have an environmental impact beyond Scotland.

PART 2 - ENVIRONMENTAL REPORTS AND CONSULTATION

Scoping s.15
We note that s.15(2)(b) requires consultation authorities to send copies of scoping responses to the other consultation authorities, no similar requirement appears to exist for screening, making co-ordination of responses more complicated.

Responsible authorities are able to determine an appropriate consultation period for the environmental report (specified under 16(1)(b)) which Scottish Ministers may then alter should it be deemed inadequate. However, there appears to be no mechanism to modify consultation periods for Environmental Reports from Scottish Ministers.

Recommendation
13. That screening responses be circulated between consultation authorities as well as scoping responses.
14. That a mechanism be adopted to enable the consultation periods identified by Scottish Ministers for their Environmental Reports to be modified.

Consultation s.16
We welcome the fact that responsible authorities are required to place a copy of the relevant documents on their own websites but believe that such information should also be stored and available from a central point.

See recommendation relating to SEA Gateway functions.

Account to be taken of environmental report etc. s. 17
We welcome the fact that in the preparation of a qualifying plan or programme the responsible authority shall 'take account of' the environmental report and the opinions expressed during the consultation period. However, we are concerned that the duty to 'take account of' does little to advise responsible authorities of the level of consideration they are required to give to the environmental report or consultation responses.

Recommendation
15. That s.17 be amended to indicate that responsible authorities must 'consider and take account of' to provide responsible authorities with a clear indication of the level of consideration which should be given to environmental reports and consultation responses.

PART 3 - POST ADOPTION PROCEDURES

Monitoring s.19
Effective monitoring will be a critical quality control mechanism for all plans, programmes and strategies. The draft bill requires it to be carried out and for responsible authorities to take remedial action.

Recommendation
16. That the committee consider whether responsible authorities should provide reports or statements during the lifetime of the plan, programme or strategy.

Schedule 2: Screening Criteria for Environmental Assessments
Schedule 2 provides no reference to the implications of a plan, programme or strategy for national environmental goals and targets, for example renewable targets, emissions targets etc.

Recommendation
17. That the committee consider including national targets and legislation to the criteria included in Schedule 2.

Local Information Schedules 2 & 3: Criteria and Information for Environmental Reports
We appreciate that the listed schedules have been taken from European Directives but believe they could be improved by some minor modifications. In particular, by extending the scope of the criteria and information required for environmental reports to include locally protected sites and local plans, in order to ensure that environmental reports take account of locally developed environmental objectives.

Recommendation
18. That locally protected sites and local plans be incorporated into Schedules 2&3.

Data Issues
We note that the various consultations regarding SEA have emphasised the possibility of using existing data sources in order to inform the SEA process and monitor implementation. We believe this to be sound advice and strongly emphasises the need to make use of information collated by many NGOs. We also understand that a number of local authorities are considering the production of an annual State of the Environment Report which could be used to inform many plans, programmes and strategies. We support this undertaking and any other initiative which will aid the efficient use of existing data.

However, not all environmental issues will be subject to existing data collection and it is imperative that a lack of data does not amount to a tacit assumption that there is no environmental issue.

Recommendation
19. That the SEA Gateway or an independent SEA body be tasked with evaluating and identifying any obvious data gaps, enabling data sharing and advising responsible authorities when additional data collection or monitoring is required.
20. That the Executive issue guidance on appropriate sources and use of data.

This evidence is submitted on behalf of Scottish Environment LINK
Lloyd Austin
Chair, Scottish Environment LINK

Further information: Anne McCall, SEA Task Force Convener, Scottish Environment LINK, anne.mccall@rspb.org.uk, Tel: 0131 311 6500 or 07734 717 019
Jessica Pepper, LINK Parliamentary Officer, jessica@scotlink.org, Tel: 0131 225 4345 or 07980 852 562

Media Release - 10 March 2005

LINK calls for independent body to advise Executive on the environment

Scottish Environment LINK, the umbrella group for Scotland's environmental organisations, is calling for the creation of an independent body to ensure that Scotland is a world leader in Strategic Environmental Assessment (SEA).

The call follows the introduction to the Scottish Parliament last week of the Environmental Assessment (Scotland) Bill, which LINK welcomes as a mechanism to protect and improve the Scottish Environment.

Effective SEA is dependent on creating the right delivery mechanisms and a report published today, commissioned by Scottish Environment LINK and written by Dr. Elsa Joao and Anna McLauchlan of the University of Strathclyde, concludes that creating an independent SEA body will be key to ensuring that Scotland is a world leader in SEA. A number of international comparisons are explored including, Canada, the Netherlands and the Czech Republic.

Lloyd Austin, chair of Scottish Environment LINK said: "This report was commissioned by LINK in order to inform the work of the parliament as it scrutinises this important bill. We hope the committee will consider the author's findings and support our proposal for an independent SEA body with powers which include providing advice, arbitrating in the event of disputes and quality control."

Ends

For more information, please contact Anne McCall, LINK Planning Task Force Convener on 07980 585377 or Dan Barlow at Friends of the Earth Scotland on 0131 554 9977.

1. The report was commissioned by LINK but the findings are the authors own. Dr. Elsa Joao is a Lecturer and Director of Research at the University of Strathclyde.

Response by the Scottish Environment LINK to the Consultation on the Proposed Environmental Assessment (Scotland) Bill

29 October 2004

Scottish Environment LINK is the forum for Scotland's voluntary environment organisations comprised of 36 member bodies representing a broad spectrum of environmental interests with the common goal of contributing to a more environmentally sustainable society. The organisations listed below have expressed support for this response.

We welcome this consultation as a significant step towards meeting the commitment to 'legislate to introduce strategic environmental assessment to ensure that the full environmental impacts of all new strategies, programmes and plans developed by the public sector are properly considered'. It marks an important step towards putting the environment at the heart of government and is markedly better than the limited scope for SEA introduced by the Regulations and Directive. In seeking to broaden the application of SEA, we should avoid many of the long-term costs of having to rectify environmental damage arising from inappropriate policy decisions.

Key points

• The term 'strategies' has not been included in the legislation - this gives cause for concern and does not reflect the Partnership Agreement commitment. While we appreciate that defining the term 'strategies' may be difficult there are no definitions for plans and programmes in the legislation therefore we do not see any valid reason why the term strategies should be excluded. We strongly recommend that the term strategies or policies be included in the bill if the Partnership Agreement is to be fully met;
• We strongly recommend the establishment of an independent body with the ability to ensure quality and consistency in the use of SEA;
• The effective application of the bill will depend on those implementing it understanding exactly what they are being required to do. At this stage the bill is very light on definitions, many of which will be critical to its effective implementation, for example
  - S.6 (2)(a) 'minimal significance'
  - S.5 (1)(a) 'first formal preparatory act'
  - S.11 (1)(c) 'adopted' or 'submitted to a legislative procedure'

Scottish Environment LINK are currently considering undertaking further work on the issue of definitions and we will be happy to advise the Executive of any results in due course.

Consultation Paper Questions

Q1. Should we have pre-screening?
No. Having considered Sections 5 and 6 of the draft Bill it appears that there are three tiers of plans and programmes under this new legislation:

• Those which are subject to exemptions e.g. plans or programmes which relate to individual schools, financial or budgetary plans and programmes etc;
• Those which the responsible authority decide will be of no or minimal significance in relation to the environment; and
• Those which responsible authorities will determine need or do not need SEA. This conclusion will be reached using the criteria set out in Schedule 2, in consultation with the consultation authorities and will be subject to a requirement to publicise the decision.

Those plans and programmes falling into the 2nd tier cause confusion - how does the responsible authority reach the conclusion that their plan or programme will have no or minimal significance for the environment given that there is no requirement to use the criteria in Schedule 2? There is no requirement to publicise the decision so how can the public find out what decision was made and why? We appreciate that this is an attempt to reduce the administrative burden upon the Executive and on the consultation bodies but we believe it undermines confidence in the process and is neither open nor transparent decision-making.

This legislation seeks to bring an understanding of the environmental consequences of policy making to those areas of the Scottish Administration, which may not previously have appreciated the environmental impact they may have. Consequently they may not be in a position to adequately assess whether their plan, programme or strategy is of no or minimal significance to the environment.

We do not recommend pre-screening but instead recommend that as part of the Executive's ongoing monitoring and review process that further exemptions could be added in accordance with the power given to Scottish Minister in Section 5(b) to modify the list of plans and programmes subject to exemptions. In the interim, the process will benefit from all applicable plans, programmes and strategies being subject to the expert scrutiny of the consultation authorities. Alternatively the pre-screening process should be altered to provide transparency and an opportunity to challenge decisions.

Q2. How should we administer screening and other elements of the SEA system?
Effective administration of this process is critical. In order of preference:

Option 2: Offers the greatest range of benefits. We appreciate a free standing body may at first appear to demand additional costs but we believe it offers significant added value and avoids concerns regarding impartiality. Experience of meeting the EIA Directive has shown that many bodies are forced to duplicate expertise, causing unnecessary expense; there has been an absence of any quality control and huge amounts of data have been gathered only to sit on shelves rather than be collated in any sensible way.

Will it really cost more? If it can absorb part or all of the demands on the consultation bodies will it not simply mean that the costs, which would have been met by three separate bodies, will be pooled to create a more effective and less bureaucratic body?

The structures set up to implement the SEA process must provide not only effective and streamlined administration of a new process but ensure that process itself actually delivers. The form this body takes may need further consideration but there is significant merit in establishing a body, which can oversee, direct and support a new and effective process. In the Netherlands, Canada and Poland, for example, bodies of this type have been established to support and oversee SEA or EIA work.

The question of impartiality must arise when Scottish Ministers are acting as judge and jury over their own plans, programmes and strategies - a separate/arms length body will over come public doubts and avoid legal challenges.

Option 5: A specialist team housed together as a single gateway - essentially very similar to Option 2 but suggesting less autonomy.

Option 1: Scottish Administrative gateway with the Scottish Executive. Not an ideal solution but we welcome the indication that this gateway would provide guidance on SEA to those preparing plans. With additional duties relating to quality control and monitoring the SEA Gateway would be significantly improved.

We currently see very limited merit in Options 3 or 4.

Q3. What plans etc should be subject to screening?
We recommend all plans, programmes and strategies should be subject to screening unless the responsible authority has already determined that they will undertake SEA - much like the EIA Regulations there seems little point in seeking a screening opinion if the responsible authority has already determined to undertake SEA. The decision should, of course be publicised in accordance with Section 9 of the draft Bill.

Q4. Should there be a timescale for Screening?
The suggested 28 days seems appropriate, assuming there would be scope to modify this in circumstances where the scale or scope of the plan, programme or strategy meant that a longer time period was necessary.

Q5. Should Scottish Ministers determine in cases of dispute?
Only if the screening process is delegated to an arms-length body as discussed in Question 2. Some form of dispute resolution is necessary, however, for the public to have confidence in the process Scottish Ministers cannot perform every function in the chain of decision making - responsible authority, consultation authority and final arbiter.

Q6. What should be in environmental reports?
The suggestion that each environmental report would be enhanced by the use of a core set of indicators is interesting. We are concerned that SEA will rapidly become devalued as a useful process if those undertaking it feel that they cannot use reliable and appropriate baseline data. The use of a core set of indicators would not only allow a comparison between Environmental Reports but would help ensure that for at least some aspect of the ER sufficient, accurate baseline data is available to encourage informed assessments. Obviously, the indicators produced by the Scottish Executive are intended to cover economic and social issues as well as environmental; therefore, it may be necessary to expand upon some of the environmental indicators listed.

Whatever form of administration is established for the SEA process we strongly recommend that effective co-ordination of data either currently available or generated by future SEAs should be a key role for the administrative body.

Q7. Should environmental reports also include social and economic information?
No. The development of SEA was caused by past policy making processes where economic and social issues dominated decision-making. The SEA Directive establishes a clear process for incorporating environment into decision-making and appropriate methodologies have been developed to support this. While public bodies are obviously free to address economic and social issues should they so wish we do not support any statutory requirement to do so.

Q8. What should be the arrangements for monitoring?
Monitoring is critical to the plan, programme or strategy making process and to evaluating whether the SEA undertaken was of any worth. We recommend that monitoring proposals should be clearly set out in the Environmental Report and evaluated by the arms-length body discussed above.

Q9. Should we have additional exemptions?
We would recommend that exemptions be used rather than pre-screening unless pre-screening is modified to include public notification and an opportunity for challenge.

Q10. How can we improve the administration and operation of SEA?
As noted above either the SEA Gateway or an arms length body should undertake all the actions listed with the addition of the following:

• Quality control (Article 12 of Directive)- random sampling of ER's, guidance, advice, training etc.
• Monitoring - evaluation of monitoring proposals,
• Consistency - ensure consistent approach to screening, reports etc.

Additional Comments on the Draft Bill

• We welcome the power of Scottish Ministers to call for a plan or programme at any time in order to carry out a determination;
• We welcome the fact that Scottish Ministers can also modify the consultation period if they believe it to be inadequate;
• We are disappointed that financial and budgetary plans are still excluded and recommend that this be modified;
• We remain perplexed that there is still no explanation of the relationship with Appropriate Assessment under Habitats Directive (Article 11 of Directive)
• We suggest that an opportunity has been missed under Article 13(4) which asks Member States to communicate to the Commission information on the types of plans and programmes which would be subject to SEA - to be updated on a regular basis. Member States had to do this before 21 July 2004 and will be asked to keep doing so. We believe this presents an opportunity for Scotland to share best practice with the rest of Europe and are surprised that no reference is made to this reporting element in the legislation.

Scottish Environment LINK has 36 member bodies with a joint membership of over 500,000 individuals. Many of these member bodies anticipate that the introduction of a SEA will offer Scotland a significant advantage by identifying potential environmental issues at the earliest possible stage in policy making.

Yours sincerely

Anne McCall
LINK SEA Task Force Convenor

The following LINK member organisations support this statement:
Association of Regional and Island Archaeologists
Biological Recording in Scotland
Butterfly Conservation Scotland
Cairngorms Campaign
Council for Scottish Archaeology
Friends of the Earth Scotland
John Muir Trust
Marine Conservation Society
The National Trust for Scotland
Plantlife Scotland
Ramblers Association Scotland
RSPB Scotland
Scottish Countryside Activities Council
Scottish Countryside Rangers Association
Scottish Native Woods
Scottish Wild Land Group
Scottish Wildlife Trust
Sustrans Scotland
Woodland Trust Scotland
WWF Scotland

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Response by Scottish Environment LINK to the 'Consultation on Proposed Legislative Measures to Introduce Strategic Environmental Assessment in Scotland'

11 March 2004

Scottish Environment LINK is the forum for Scotland's voluntary environment organisations; 36 member bodies representing a broad spectrum of environmental interests with the common goal of contributing to a more environmentally sustainable society. The organisations listed below have expressed support for this response.

Introduction

The members of LINK listed welcome the current consultation and the commitment by the Executive in the Partnership Agreement to legislate to introduce SEA across the range of all new strategies, plans and programmes developed by the public sector in Scotland. We believe that this commitment has the potential to bring environmental consequences to the heart of decision-making, thereby helping to secure a more sustainable environment for Scotland.

Once the Partnership Agreement has been implemented successfully, Scotland will be able to stand at the forefront of SEA activity across Europe. We are pleased and proud to support this but believe that there are key elements in the consultation which must be addressed in order to secure effective delivery and our long-term support.

In this response, we have not addressed each of the 50 Questions of the consultation individually as a number of our member bodies will be doing this in some detail; instead we have highlighted 4 key issues which we believe must be addressed if the introduction of the Regulations and in due course the Bill is to be effective.

Plans, Programmes and Strategies - Annex 1

The consultation asks a number of questions about those plans, programmes and strategies we believe may be subject to the Regulations and the Bill. Attached, as Annex 1 is a draft list of those plans, programmes and strategies that LINK bodies have suggested might be subject to SEA under this legislation. As you will see the Bill promises to significantly extend the range and scope of the Directive to a large number of plans, programmes and strategies which we believe will have significant environmental effects. This incomplete list is a perfect illustration of why we are so supportive of the Partnership Agreement commitment; without it, the SEA Directive promises to be a useful but limited tool.

Key Issues

1. Public Involvement

We welcome the broad definition of the 'public' as contained in the Regulations but are concerned that the exclusion of the public from the screening and scoping stages misses an opportunity for better decision-making. By limiting the number of consultation bodies to Scottish Ministers (Historic Scotland), SNH and SEPA, there is a very real danger that important areas of expertise or knowledge will be untapped. By publicising these stages and seeking public comment, the Executive would be delivering a truly open and transparent system.

2. Administration of the SEA

The current proposals rely upon consensus and communication between the consultation bodies. We believe the process is more likely to deliver results if the suggested option of a separate SEA agency or arms length body (like, for example, the Scottish Executive Inquiry Reporters Unit) is established. This offers multiple benefits including:

• Co-ordination of screening by a central body who is not responsible for producing plans, programmes or strategies thus addressing the issue of impartiality;
• Decisions issued by this body could be subject to an appeal procedure to Scottish Ministers;
• Responsible Authorities could be compelled to undertake SEA when it was deemed necessary (not currently an option);
• The consultation process could be tailored to individual plans, programmes or strategies and co-ordinated centrally;
• Duplication of effort by consultation bodies would be avoided;
• The quality of environmental reports and the SEA process could be routinely monitored;
• Advice and guidance could be produced as the SEA body develops expertise and experience; and
• This body could also undertake a similar role for Environmental Impact Assessments (EIAs) as currently happens in the Netherlands and Poland.

We appreciate that the Executive may be reluctant to consider the establishment of a new body. If this is not pursued under the Regulations we would seek reassurance that the issue be reconsidered during the passage of the Bill based on the experience gathered up to that point.

3. Quality and Monitoring

• We are concerned that the current proposals will not meet the quality or monitoring requirements of the Directive. To address this we recommend the following:
• That mandatory scoping reports are subject to public consultation;
• That the plans or programmes which are not accompanied by an Environmental Report of suitable quality are not adopted or approved;
• Consultation authorities or the SEA body are given powers to compel responsible authorities to provide additional data or revisit their Environmental Reports if they are of a poor quality;
• Name and shame those who regularly produce poor quality SEAs; and
• Put recording systems in place to collect the necessary information to monitor the impacts of plans programmes and strategies, any remedial action taken to remedy unforeseen impacts and the range of plans and programmes subject to SEA.

4. 'Pre-Screening'
The proposals for the Bill introduce a new concept of 'pre-screening', which we are very concerned about. Essentially this would enable responsible authorities to 'opt-out' of undertaking SEA. The current proposals allow these authorities to decide not to undertake SEA following the disclosure of an assessment against the criteria in Annex II of the Directive. There is no role for the consultation authorities, nor is there any scope to challenge the decision other than by judicial review.

Consultation bodies may welcome this proposal as a mechanism to reduce workloads but we strongly recommend that it be dropped.

By providing responsible authorities with an easy opt-out and no means of challenge the Executive will undermine confidence in the Partnership Agreement and create a confusing two tier system.

We believe that the case-by-case evaluation of plans, programmes and strategies, combined with increasing experience, advice and guidance offers the most equitable and manageable solution.

Yours sincerely

Anne McCall
LINK Strategic Environmental Assessment Task Force Convenor

The following LINK member organisations support this statement:
Association of Regional and Islands Archaeologists
British Association of Nature Conservationists Scotland
Biological Recording in Scotland
Butterfly Conservation Scotland
Cairngorms Campaign
Council for Scottish Archaeology
Friends of the Earth Scotland
Marine Conservation Society
The National Trust for Scotland
Plantlife Scotland
Ramblers Association Scotland
Royal Society for the Protection of Birds Scotland
ruralScotland
Scottish Countryside Activities Council
Scottish Countryside Rangers Association
Scottish Wildlife Trust
Sustrans Scotland
Woodland Trust Scotland
WWF Scotland

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