Consultation on Primary Authority Arrangements relating to the Devolved Regulatory Responsibilities of Local Authorities in Scotland June 2013 CONSULTATION ON PRIMARY AUTHORITY ARRANGEMENTS RELATING TO THE DEVOLVED REGULATORY RESPONSIBILITIES OF LOCAL AUTHORITIES IN SCOTLAND CONTENTS I - Ministerial Foreword 1 II - Consultation Arrangements 2 III – Introduction 4 IV - Primary Authority 5 V - Questions for Scotland 11 Annex A – The Scottish Government consultation process 13 Annex B – Specified Enactments set out in Schedule 3 to the Regulatory Enforcement and Sanctions Act 14 Annex C – Respondent’s information form and consultation questionnaire 18 I - MINISTERIAL FOREWORD The Purpose of the Scottish Government is to make Scotland a more successful country, with opportunities for all to flourish, through increasing sustainable economic growth. I am convinced that better regulation has an important role to play in achieving a more successful and sustainable Scotland and delivering a favourable business environment in which companies can grow and flourish. That view reflects what I am told when I visit businesses and business organisations across Scotland in my role as Minister for Energy, Enterprise and Tourism – and the way the business community responded to the consultation last year on better regulation options. Indeed this specific consultation is directly connected to the views submitted by members of the business community which favoured consistent regulation predicated on businesses proactively securing compliance through partnership working with local authorities. The model of Primary Authority Partnership was introduced in 2009 by the UK Government and their evidence suggests it has helped some businesses. On that basis I am very keen to understand whether there is broad support for an equivalent approach to local authority regulation in Scotland – and if so, how it should operate in practice. Fergus Ewing MSP Minister for Energy, Enterprise and Tourism 1 II - CONSULTATION ARRANGEMENTS Consultation on Primary Authority Partnerships We are inviting written responses on this consultation by 23 August 2013. Please send your response with the completed Respondent Information Form (see "Handling your response" below) to the Scottish Government's Better Regulation team: By Mail to: Graeme MacLennan Better Regulation and Industry Engagement Scottish Government 6th Floor, 5 Atlantic Quay 150 Broomielaw Glasgow G2 8LU By Telephone: 0300 244 1145 By Email to: [email protected] We would be grateful if you would use the consultation questionnaire contained in Annex B. However, responses in any format are welcome – please clearly indicate in your response which questions or parts of the consultation paper you are responding to, as this will aid collation of the responses received. This consultation, and all other Scottish Government consultation exercises, can be viewed online on the consultation web pages of the Scottish Government website at http://www.scotland.gov.uk/consultations. The Scottish Government now has an email alert system for consultations http://register.scotland.gov.uk. This system allows stakeholder individuals and organisations to register and receive a weekly email containing details of all new consultations (including web links). This system complements, but in no way replaces Scottish Government distribution lists. It is designed to allow stakeholders to keep up to date with all Scottish Government consultation activity, and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register. Handling your response We need to know how you wish your response to be handled and, in particular, whether you are happy for your response to be made public. Please complete and return the Respondent Information Form (Annex C) which forms part of the consultation questionnaire as this will ensure that we treat your response appropriately. If you ask for your response not to be published we will regard it as confidential, and we will treat it accordingly. 2 All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002. We would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise. Where respondents have given permission for their response to be made public (see the attached Respondent Information Form), these will be made available on the Scottish Government consultation web pages by 28 August 2013. What happens next? Following the closing date, all responses will be analysed and considered, along with any other available evidence from individuals, organisations and other interested parties. We aim to issue a report on this consultation by the end of 2013. The report will be posted on the Scottish Government Better Regulation webpages at http://www.scotland.gov.uk/Topics/Business-Industry/support/better-regulation. Comments If you have any comments about how this consultation exercise has been conducted, please send them to the Better Regulation team. We welcome your views on any or all of the issues covered by this paper. 3 III - INTRODUCTION 1. The Scottish Government is committed to using all means possible to support economic and business growth. Making Scotland the best place to do business in Europe requires a regulatory landscape that protects our citizens, our heritage and our environment while concurrently providing a favourable business environment in which companies can grow and flourish. 2. The Economic Strategy continues to recognise the important role of better regulation in delivering a more successful and sustainable Scotland and promoting competitiveness. Where regulation does not meet the principles of better regulation - in legislation or in the way it is applied - it can place unnecessary burdens on business, hindering growth – in employment, and in the economy generally. 3. The Regulatory Reform (Scotland) Bill reflects the Scottish Government’s determination to improve the way regulation is applied in practice across Scotland. It aims to improve the regulatory landscape, and in particular deliver consistency, efficiency and effectiveness – actively supporting local democracy and circumstance, and indeed the quality and professionalism of Scotland’s regulators. The Bill also includes specific measures to further reform planning and deliver a simpler and more effective legislative framework for environmental regulation and enforcement. 4. However, it does not feature a specific and additional proposal which emerged from the consultation in 2012: that some equivalent of Primary Authority Partnerships - which were introduced by the UK Government through the Regulatory Enforcement and Sanctions Act 2008, and are in the process of being amended by the Enterprise and Regulatory Reform Act - should be adopted in Scotland, in the context of Scottish regulation. The UK Government’s Primary Authority initiative allows a business to form a partnership with one local authority in order to receive tailored support in relation to a range of regulation. That “primary” authority is resourced by the business to assist in three ways: by issuing assured advice, co- ordinating enforcement action across all locations used by the business, and developing an inspection plan for the business as a whole. 5. With thanks to the business community in Scotland for highlighting this opportunity, and to COSLA for their on-going commitment to improving regulation, this consultation is focused on establishing whether there is broad support for a Scottish equivalent, what it would involve, and what benefits it might be expected to deliver. 6. The consultation period associated with this paper is less than the standard 12 weeks because a) in broad terms the rationale for and procedures associated with UK Primary Authority arrangements will be widely recognised by many businesses and by local authorities in Scotland, and b) without prejudice, and subject of course to decisions based on stakeholder responses, the Scottish Government is keen to leave open the option of enabling Scottish Primary Authority Partnerships at the earliest opportunity, by bringing forward Stage 2 amendments to the Regulatory Reform (Scotland) Bill. 4 IV - PRIMARY AUTHORITY Background and the UK approach 7. The Scottish Government is keen to use this consultation to consider the ways in which Primary Authority might benefit businesses, across as wide a range of sectors as possible. 8. A key step in considering the case for, and form of, any Scottish Primary Authority approach is to understand the UK model and how it has worked in practice. With thanks to the UK Government’s Better Regulation Delivery Office, the following paragraphs draw on material it has published1 which describes: • The policy/process as originally introduced; • Evaluation evidence; and • Changes now proposed to better support business growth. 9. Primary authority was established by the UK Government under the Regulatory Enforcement and Sanctions Act 20082 and has been in operation in England and Wales (and in Scotland in respect of reserved regulatory functions) since 2009. The stated rationale for the initiative was that Primary Authority would support a fundamental shift in the way regulators and businesses interact. It would allow the development of a transparent and co-operative relationship which would incentivise compliance because business would