Scottish Government

Link to Final Response

Dear Sir or Madam

THE SCOTTISH EXECUTIVE'S INTERIM RESPONSE TO THE FINDINGS OF THE PHILLIPS REPORT

Introduction

1. The Government's interim response to the Phillips Report is attached. It sets out the action taken by Government to deal with the problems that contributed to the BSE crisis and its tragic effect on human health. It also considers and asks for views on how policy development may be conducted now and in future to ensure the broader aspects of the Inquiry's findings properly influence the business of government. This forward-looking aspect of the response focuses on the Inquiry's 5 key themes:

• Science and Government;
• Openness;
• Risk, and Uncertainty;
• Good Government; and
• Legislative Framework.

2. The Scottish Executive is committed to providing government in Scotland which is open, accessible and more accountable, to the Parliament and to the people of Scotland. While the events investigated by the Inquiry pre-date devolution, the Scottish Executive has welcomed the Phillips Report. It recognises the need to learn from the Inquiry's findings both to prevent any recurrence and to reduce the risk of any similar problem arising in another policy context. The Scottish Executive has therefore been fully involved in the UK wide exercise to respond to the challenges and recommendations of Phillips. It is also considering how the Inquiry's findings may be built on within Scotland.

3. Human health, animal health and agriculture are devolved matters, albeit within a common EU framework. There is nevertheless considerable overlap between the position in Scotland and the UK approach to the broader issues on which the Inquiry has focussed. This is to be expected where policy approaches are informed by a common understanding of best practice and a common intellectual and analytical framework as in the case of risk, precaution and uncertainty. In other areas particular Scottish requirements mean that policy developments will be distinctively Scottish. To ensure that interests in Scotland have the opportunity to measure progress where such issues arise further information on how each area is being taken forward in Scotland is set out below. The Scottish Executive would welcome views on both the UK wide response document and the matters set out in further detail below

SCIENCE AND GOVERNMENT

4. The issues raised by Phillips under this theme fall under two broad headings:

• the way government, and government departments, obtain and use scientific advice and manage their research activities; and
• the management of scientific advisory committees

Relevant issues were previously explored in the Report of the Science Strategy Review Group (April 2000), which initiated a consultation exercise intended to underpin the development of a science strategy for Scotland. The strategy will be published later this year.

Research

5. Within the Executive, departments are responsible for carrying out research to support their policy and regulatory activities. They prioritise and fund research from within their overall budgets . There is currently no consolidated mechanism for reviewing the appropriateness of departments' research expenditure plans in the context of the Executive's overarching priorities. The science strategy consultation document identified that this key deliverable for the strategy proper needs to be strengthened. On matters which have both an UK and a Scottish relevance, Executive Departments have well-established consultation mechanisms for co-ordinating their research activities with UK Departments. Post-devolution it is even more important that these consultation mechanisms continue, and Concordat arrangements have been put in place to ensure this.

Advisory Committees

6. At the UK level the Council for Science and Technology (CST) acts as the Prime Minister's top level advisory body on medium to longer-term strategic S&T issues. There is currently no Scottish equivalent, but in April 2000, when publishing the science strategy consultation document, Scottish Ministers agreed to establish a new strategic scientific advisory body.

7. The Executive has full membership of the Chief Scientific Adviser's Committee (CSAC) and the Ministerial Science Group (MSG), chaired by the UK Minister for Science and Innovation. More generally liaison and co-ordination arrangements are set out in the Memorandum of Understanding agreed with the UK Government, and underpinning Concordats with individual departments and Research Councils. The Science and Technology Unit in the Enterprise and Lifelong Learning Department, co-ordinate science policy within the Executive.

8. The White Paper "Excellence and Opportunity" set out the UK Government's commitment to an independent and transparent advisory framework for science. The launch of the White Paper was accompanied by publication of "Guidelines 2000" on Scientific Advice and Policy-Making and the launch of a consultation exercise on a new Code of Practice for scientific advisory committees. Post-devolution the Executive is not bound to adopt Guidelines 2000 (or the Code of Practice when finalised) but Scottish Ministers have decided to do so .

OPENNESS

9. The issues raised by Phillips under openness go wider than general access to information matters and deal with 'communication', 'trusting the public with uncertainty', and 'engaging interests outside Government'. At both the Scottish and the UK level the Food Standards Agency by its very existence is the main response to the openness issues raised by the Phillips report. Nevertheless, relevant departments in the Executive are taking forward the specific openness issues raised in the Phillips report, for example, health issues by the Health Department and animal disease issues by the Rural Affairs Department.

10. In terms of specific openness arrangements operated by the Scottish Executive, at present these are based on the Code of Practice on Access to Scottish Executive Information.

11. The Code came into operation on 1 July 1999, and replaced the very similar Code of Practice on Access to Government Information introduced in 1994, which remains in operation by the UK Government. The Code applies to the Scottish Executive and to other Scottish public authorities subject to the jurisdiction of the Scottish Parliamentary Commissioner for Administration. The Scottish Commissioner can investigate complaints, raised to him through an MSP, that Scottish public authorities have not complied with the terms of the Code.

12. The Code is based on the presumption that information should be released except where disclosure would not be in the public interest, as specified in the exemptions described in Part II of the Code. Subject to the exemptions, the Code commits the following information to be disclosed:

• (in response to specific requests) information relating to policies, actions and decisions;
• the facts and analysis of the facts which Scottish Ministers consider relevant and important in framing major policy proposals;
• explanatory material on the Scottish Executive's and other public bodies dealings with the public (internal guidance, rules etc);
• reasons for administrative decisions to those affected; and
• full information on how public services are run, what services are provided, what targets are set and results achieved.

The Code will continue to be operated by the Executive and specified Scottish public authorities until it is replaced by the proposed Scottish freedom of information legislation.

Freedom of Information

13. The Partnership agreement and the Scottish Executive's Programme for Government commit the Executive to introduce an effective freedom of information (FOI) regime. The proposed Scottish FOI legislation will build upon the Code and provide the statutory framework within which a culture of greater openness across the Scottish public sector will be fostered. The proposed legislation will provide a general right of access to information held by a wide range of Scottish public authorities. It will also place a duty on these authorities to take a proactive approach to the disclosure of information, by specifying which information the public authority intends to publish or otherwise make available.

14. The Executive published a consultation document, An Open Scotland, on 25 November 1999 setting out proposals for a statutory FOI regime. A draft Bill will be published early this year for consultation and pre-legislative scrutiny, and the Executive is committed to introducing the Bill during 2001.

15. The features of the draft FOI Bill will include:

• A statutory right of access to information held by a wide range of Scottish public bodies;
• Exemptions to allow for sensitive information to be withheld from disclosure;
• A requirement to consider the public interest in disclosure;
• An independent Scottish Information Commissioner, to promote and enforce the legislation; and
• A duty on public authorities to specify categories of information which they intend to publish.

16. The UK Freedom of Information Act 2000 received its Royal assent on Friday 30 November. It is understood that this Act will be phased in over a period of up to 5 years and that Government Departments will be in the first phase, probably in June 2002. UK Departments operating in Scotland will be subject to the UK FOI Act, along with other reserved bodies including cross-border bodies.

RISK AND UNCERTAINTY

17. The Phillips Report recommends the need for a framework for handling risk and uncertainty. Guidance on risk is being prepared for all Scottish Executive Departments. It will outline the key principles for risk assessment, management and communication, and the Executive's approach to each.

18. Phillips identified a need to audit the effectiveness of risk reduction measures. The Executive will consider how best to achieve that, taking account of responses to this consultation and the guidance described above. That said, the Executive recognises the need to actively consider how we should:

• strengthen arrangements for training staff;
• disseminate further guidance on risk management and communication to health, local authority and other agencies;
• improve methods for public participation in risk processes; and
• review the scope for education to improve understanding of risk among the public in general.

19. The Executive will also continue to contribute to and benefit from the Inter-Governmental Liaison Group on Risk Assessment, as it helps take forward some of the actions set out in the UK Government's interim response. And the commissioning of the new Public Health Institute for Scotland to develop the scientific evidence for public health will help to improve risk assessments. Early identification of potential hazards to human health through surveillance of emerging zoonotic infections will be improved through the Executive's participation in the UK Zoonosis Group.

GOOD GOVERNMENT

20. A large number of the Phillips recommendations relate broadly to good government. Most of these relate to specific issues that fall within the remit of the agriculture and health departments and their agencies. Taken together they highlight aspects of the Modernising Government and Civil Service Reform agendas, which are being actively pursued in Scotland, and which are consistent with the principles of openness, accessibility and accountability underpinning devolution..

21. Key features where the Executive's approach matches the UK wide agenda are:

• Better policy making - the Executive is building on work to improve the policy making and evaluation processes that has been done by the Whitehall Performance and Innovation Unit (PIU) and Centre for Management and Policy Studies (CMPS) and by the Executive's own Policy Unit. In particular work is in hand to ensure that more systematic use is made of objective evidence in policy making and that professionals and administrators are able to work together closely;
• Better business planning and performance management and monitoring - a major thrust within the Executive during 2001, in tandem with reforms to the pay arrangements, will be to ensure that there are clear links between individuals' personal objectives and the Executive's higher level objectives, and that every individual is accountable for achieving their objectives;
• Cross-cutting policy making and effective implementation - a great deal of work has been done in taking forward the Executive's 11 priority cross-cutting areas, and others, since May 1999 and in continuing the drive to change the culture so that cross-cutting thinking and working becomes the norm. The recommendations of the Report by the Executive's Policy Unit on Effective Implementation are being implemented across the organisation. This effectively signals a drive towards more joined up delivery, including bringing local delivery agents into policy formulation at a much earlier stage ;
• Working with other administrations - the Executive is working closely with the UK Government and the other devolved administrations to enhance joint working on the basis of the Memorandum of Understanding, concordats and progress to date with the Joint Ministerial Committee arrangements.

22. The Executive is taking the following additional action which will have an impact on its ability to implement the Phillips recommendations:

• The Departments of the Scottish Executive have continued to be bound together since devolution in terms of common systems and procedures, and interchange of staff. The new arrangements for collective-decision making and cross-cutting working have joined up government in Scotland still further by enabling Ministers to work together closely;
• The process of drawing up the Executive's Programme for Government - in both 1999 and 2000 - has helped Ministers and officials alike to focus on and shift resources towards priority areas and systematically monitor progress towards key objectives. The concept of an audit of deliverability - checking exhaustively that commitments are achievable before they are published - is now embedded in the process;
• The Executive is taking civic participation extremely seriously, ensuring that policy making takes account of both the views and the expertise of interest groups. The Executive has reviewed its own consultation processes. This has led to moves to make consultations more systematic and productive. The Executive has also undertaken to provide the Civic Forum - an umbrella body representing Civic Scotland generally - with pump-priming money.
• The Executive has recognised that the network of centrally sponsored advisory bodies, task forces and agencies in Scotland needs to be reviewed. Difficulties can sometimes arise because of overlaps between bodies, the lack of clarity about accountability, and confusion about how an arm's-length relationship with Ministers and Parliament should operate. Therefore on 18 January 2001, the Executive announced a major review of the network of sub-Executive bodies with a view to streamlining and clarifying relationships and thus modernising government and improving the policy-making and delivery processes.

23. All of the above work is ongoing and is being taken forward as a matter of priority in 2001. None of it has been triggered specifically by the Phillips report, but all of the strands will take account of Phillips as they are taken forward. Most of the action is part of a wider long-term, strategy intended to continue to change the culture and habits that prevail within the government machinery - in the Scottish Executive as well as in Whitehall. As such all of the activity described above should have a significant impact over time contributing to the implementation of the Phillips recommendations

LEGISLATIVE FRAMEWORK

24. The main recommendations on the legislative framework relate to Phillips' concern that a multiplicity of legislative vehicles sometimes got in the way of consistent and prompt action to protect public or animal health. This suggested a need to learn the lessons of Phillips regarding emergency powers together with a need for greater clarity regarding the relationship between domestic and EU law.

25. The legislative issues raised by Phillips', although few in number compared to other aspects of his findings, are among the most difficult to deal with. The legal implications of those findings are under consideration. The Scottish Executive will consider the issues raised but there are obvious constraints in terms of proportionality and reasonableness that cannot be breached.

26. As with Whitehall Departments, the Scottish Executive recognises that some of the issues can be more easily dealt with on a pro-active rather than a reactive basis. This implies advance planning wherever feasible, such as the current approach to contingency planning on BSE and sheep.

• The Executive also recognises that devolution has brought many changes, some of them with an immediate and obvious bearing on legislation. The Scotland Act for example expressly requires the Scottish Ministers to carry out full implementation of EU obligations. This needs to be borne in mind when considering the relationship between domestic and EU law. In relation to EU obligations, the Scotland Act does allow for implementation on an UK wide basis by the Westminster Parliament instead of by the Scottish Parliament. This is not the preferred course of action of the Executive and would require the consent of the Scottish Parliament, which will quite properly decide what it approves and when. Delivery of primary legislation is of course dependent in part on other pressures on the legislative programme. The Executive is however, confident that, when necessary, a high level of consistency can be achieved through communication and properly following the consultation arrangements with Whitehall Departments reflected in Concordat Agreements.

Responses

28. Responses this consultation should be sent to Michael Garden at the above address, to reach here no later than Friday 4 May.

29. In order to inform public debate on the issues raised by this consultation, we intend to make copies of the comments received publicly available when the consultation is complete. We will assume that your reply may be made available unless you indicate clearly that you wish all or part of it to be excluded from this arrangement. The main Scottish Executive library at K Spur, Saughton House, Broomhouse Drive, Edinburgh EH11 3XD (Telephone 0131 244 8455) will supply, on request, copies of the responses to the consultation to personal callers or telephone enquiries.

30. For those wishing to obtain copies of comments, an administrative charge to cover copying and posting will be made. To enable requests to be dealt with efficiently and to avoid undue delay for those calling at the library in person, it would be appreciated if personal callers could give the library at least 24 hours notice of their requirements.

MICHAEL GARDEN

Beef Exports, Animal Waste and BSE Branch