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Strategic Environmental Assessment
A Consultation on Proposed Legislative Measures to
Introduce Strategic Environmental Assessment in Scotland
4. SPECIFIC ISSUES AND QUESTIONS ON WHICH THE SCOTTISH EXECUTIVE INVITES VIEWS
4.1 The Scottish Executive welcomes comments and views on any aspect of the proposals in this consultation document. We would, however, particularly invite comments and views on the following aspects of both the draft Regulations at Annex A and the principles of the proposed Bill. For ease of reference, all of the specific questions raised under the various headings below are listed in order in section 5 of this consultation document.
The Proposed Regulations
Scope
a) The definition of "authority" and the inclusion of private companies
4.2 The Directive refers to plans and programmes 'subject to preparation by an authority at national, regional or local level or which are prepared by an authority for adoption'. There is no doubt that central government (the Scottish Executive & UK Government), local authorities, non-departmental public bodies (such as Scottish Natural Heritage and the Scottish Environment Protection Agency), the National Health Service Scotland, and Scottish Water (a publicly-owned company), fall into the category of "authority".
4.3 However, EC guidance indicates that the concept of an 'authority' has been given a large scope in the case law of the ECJ and can be defined as a body, whatever its legal form and regardless of the extent (national, regional or local) of its powers, which has been made responsible by the State for providing a public service under the control of the State. Privatised utility companies required to carry out some tasks or duties (such as preparing long-term plans for ensuring water resources) which in non-privatised regimes would be carried out by public authorities are given as examples of private bodies which may be regarded as an "authority" for some of the Directive's purposes. The Scottish Executive accepts that view.
4.4 Voluntary organisations which may be regarded as carrying out functions of a public nature are not subject to the Directive unless they are carrying out functions directly under the control or direction of the Government. It is important to note that a private company would be subject to the draft Regulations only in respect of plans or programmes that relate, in whole or in part, to the company's public functions - plans and programmes wholly relevant to private business would not be subject to the draft Regulations. We would welcome comments on:
4.5 The responsibilities of private companies carrying out public functions will be significantly widened by the proposed Bill. The implications of that are covered in paragraph 4.64 below.
b) The definition of plans and programmes
4.6 The terms "plan" and "programme" may be interchangeable. The type of document regarded in some Member States as a "plan" is one which sets out how it is proposed to carry out or implement a scheme or a policy. This could include, for example, land use plans setting out how land is to be developed or laying down rules or guidance on the type of development permitted in particular areas, or establishing criteria for designing new development. Waste management plans and water resource plans would also fall within the scope of the Directive (insofar as they are required by legislative, regulatory or administrative means and set a framework for future development consent of projects).
4.7 A programme is usually considered as a wider plan, covering a set of projects in a given area, for example an urban regeneration scheme comprising a number of separate construction projects. However, some Member States regard a programme as the way in which it is proposed to carry out a policy - the same meaning that others give to "plan". EC guidance makes clear that documents displaying the characteristics of a plan or programme may be found under a variety of names and that, while not synonymous, no clear distinction between a plan and a programme is possible as both have a broad range of meanings which may overlap.
4.8 This potential interchangeability raises a question of whether it is sensible to seek to define "plan" and "programme". The draft Regulations use the Directive's definition of plans and programmes, effectively relying on the self-assessment element of the screening process to identify what needs to be subject to SEA. The Scottish Executive regards the definition of plans or programmes in the Directive as already sufficiently robust for the Regulations, given that the definition is qualified by the need for such plans or programmes to be both (a) required by legislative, regulatory or administrative means and (b) to set a framework for future development consents of projects. However, we would welcome comments on this, in particular:
Q2: are you content with the definition of plan or programme and with our view that it is sufficiently robust to close a potential loophole in the Regulations, that might otherwise allow responsible authorities to by-pass SEA for certain activities they do not regard as either a plan or a programme even if that activity is required by legislative, regulatory or administrative means and sets a framework for future development consents?
4.9 Broadening the scope of the Directive to include "strategies" (as envisaged by the proposed Bill) may further reduce the potential for authorities to contrive to fall outside the scope of the SEA process but may have other impacts on the screening process. This is explored further at paragraphs 4.54 to 4.58 below.
c) Handling plans and programmes prepared by groups of authorities
4.10 Certain plans or programmes required by legislative provisions are developed by groupings of responsible authorities in which no single authority has sole "ownership" (for example, structure plans are commonly prepared by groups of neighbouring local authorities). Draft Regulation 2 allows such grouping of authorities to determine among themselves a lead authority responsible for compliance with the Regulations and for the Scottish Ministers to make a determination in cases where there is disagreement among the authorities concerned. The Scottish Executive would welcome views on:
The Screening Process
The Process
a) The proposed process and possible alternatives
4.11 Screening is a key element of the SEA process and features, in different forms and for different forms of plans or programmes, in all of the current international examples of SEA implementation. In all cases SEA starts early in the development cycle of plans and programmes. The purpose of screening within the terms of the Directive is to ensure that, for plans and programmes not automatically required to undergo SEA by virtue of their relationship to Directive 85/337/EEC (the Environmental Impact Assessment Directive) http://europa.eu.int/comm/environment/eia/full-legal-text/85337.htm or Directive 92/43/EEC (the Habitats Directive) http://europa.eu.int/comm/environment/nature/habdir.htm :
those with likely significant environmental effects are identified at an early stage in their preparation and are subject to SEA
those with no likely significant effects are identified and are not subject to SEA
they enter the screening process at an early stage to allow, where it is necessary, for SEA that is rigorous but relatively straightforward and in a way which avoids delay in the plan or programme development process
4.12 Against that background, draft Regulation 11 provides for a screening process that would be largely driven by the body responsible for the plan or programme (the "responsible authority"). The responsible authority would be required to consider the proposed plan or programme against the criteria in Annex II to the Directive, which are intended to help determine the likely significant environmental effects. On the basis of a short report against those criteria, the responsible authority would consult the consultation authorities (see paragraphs 4.35 to 4.41 below). If the responsible authority and the consultation authorities agree that there are no significant environmental effects, that would be the end of the process, except for the publication of the decision and the reasons for it. If all agree that there are likely significant environmental effects, a full SEA would be required involving the preparation of an environmental report (see paragraphs 4.24 to 4.27 below). If there is disagreement, the matter would be referred to the Scottish Ministers for a determination (see paragraph 4.23 below).
4.13 This process would allow the responsible authority to manage the consultation with the consultation authorities and then act on their collective decision (or on a determination of the Scottish Ministers in the event of a disagreement). This provides a relatively light-touch, and fully transparent, approach with an in-built dispute settlement mechanism.
4.14 There are alternative approaches:
the Scottish Executive could operate as a secretariat to provide a single gateway for all cases. In other words, the responsible authority would submit its outline plan or programme to the secretariat which would then arrange circulation to and consultation with the consultation authorities. The decision would remain a joint one for the consultation authorities (with disputes settled by the Scottish Ministers); or
the responsible authority could submit its outline plan or programme to the Scottish Ministers for a decision on whether SEA is required. The Scottish Ministers alone would reach a decision following consultation with the consultation authorities. This is the model the UK Government intends to adopt for plans and programmes relevant solely to England or to England and any other part of the UK; or
a separate screening authority/agency could be established with a duty to reach decisions on whether SEA is required, taking into account consultation with the consultation authorities. The Scottish Ministers could be the appellate authority in cases where the decisions of the screening authority were challenged.
4.15 The Scottish Executive has a preference for the approach proposed in draft Regulation because it would appear to offer the least bureaucratic and most expeditious route to screening, keeping downward pressure on administrative costs. However, we would welcome views on:
Types of plans and programmes to be subject to screening
4.16 Article 3(4) of the Directive allows for the screening process to be applied on a case-by-case basis or by specifying the types of plans and programmes to be subject to screening, or a combination of both approaches.
4.17 The screening process in draft Regulation 11 (and described in paragraphs 4.11 to 4.13 above) is based on a case-by-case approach. The Scottish Executive has a preference for that approach because it avoids potential loopholes being inadvertently created by a deficient pre-determined list. We recognise, however, that applying screening to all plans and programmes (which are not automatically subject to SEA by virtue of their relationship to the Environmental Impact Assessment and Habitats Directives) places more of a burden on the responsible authorities and on the consultation authorities. We would therefore welcome views on:
Engaging with the Process
4.18 The most effective, and most useful, SEAs are likely to be those prepared in parallel to developing a plan or programme itself, and Article 4(1) of the Directive accordingly requires environmental assessment to be carried out during the preparatory stage. The responsible authority should therefore seek the views of the consultation authorities at an early stage in the preparation of plans or programmes, preferably as soon as the likely scope of the plan or programme is known. Plans or programmes which clearly do not create likely significant environmental effects could quickly be ruled out of needing an environmental assessment at that stage. For other plans or programmes, where likely significant environmental effect can only be determined once the precise content of the plan or programme is clearer, the consultation authorities should still be consulted from an early stage so that a decision on whether an environmental assessment is needed can be made as quickly as practicable. In practice, the process will work best if it involves early and frequent discussion between the responsible authority and the consultation authorities, seeking to achieve consensus.
4.19 This approach should mean that the screening process, and any necessary SEA, need not introduce delay into the preparation of plans and programmes. Moreover, introducing SEA at an early stage and in parallel to the development of plans and programmes can make any subsequent specific environmental impact assessment at project level more efficient and less likely to produce unexpected results.
4.20 The Scottish Executive would welcome comments on this approach. (See question 12 in section 5).
Timescales for screening
4.21 Screening can be carried out in parallel with the development of plans or programmes and the Directive does not suggest any time limits for it. However, the Scottish Executive considers that it might be useful to set a deadline and draft Regulation 3 proposes 28 days (for consistency with the minimum period of consultation on plans, programmes and environmental reports outline at paragraph 4.48 below). The draft Regulations do not make any provision on the timescales within which the responsible authority must proceed with its plan or programme after a decision has been made by the screening process. The Scottish Executive would welcome views on:
4.22 It is not proposed that the screening process itself will be significantly modified by the proposed Bill. Its scope will be widened to include strategies and to remove the qualification about plans and programmes having to be required and having to set a framework for future development consent of projects; it may require modifications to allow for a pre-screening of strategies, plans or programmes not covered by the Directive. These aspects are explored further at paragraphs 4.59 to 4.63 below.
b) The role of the Scottish Ministers
4.23 The draft Regulations, which at this stage assume a screening process based on the approach outlined in paragraphs 4.11 to 4.13 above, provide for the Scottish Ministers to make a determination about the need, or otherwise, for an SEA in circumstances where the consultation authorities and the responsible authority cannot agree. This is expected generally to be a workable proposition, and it is expected that the nature of the screening process described in paragraphs 4.11 to 4.13 above would result in very few instances where the Scottish Ministers would be required to make a determination. The Scottish Executive would welcome views on:
Environmental Assessment
a) The form and contents of the environmental report
4.24 The environmental report does not have to be a physically separate document from that containing the programme or plan, as long as it forms a distinct and easily identifiable section within it, on which consultees' comments are to be explicitly sought. Its length will be dependent on the amount of environmental information available, and the complexity of likely environmental effects of the plan or programme. It must, however, include "information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process to avoid duplication of the assessment". Annex I to the Directive specifies the information to be provided in the report (see paragraph 2.10 above).
4.25 EC guidance indicates that the reference in Annex I to 'contents and level of detail in the plan or programme' is a recognition that, in the environmental report for a broad-brush plan or programme, very detailed information and analysis may not be necessary, (for example, a plan or programme at the top of a hierarchy which descends from the general to the particular), whereas much more detail would be expected for a plan or programme that itself contained a higher level of detail. So the environmental report for a national plan might not need to assess the effects of the plan on, say, every river in the country; but the environmental report underpinning a local plan would certainly be expected to address its implications for rivers or other water-bodies in or near the town.
4.26 Article 12 of the Directive requires environmental reports to be of sufficient quality to meet the requirements of the Directive.
4.27 Draft Regulation 13 will give effect to the requirement in the Directive that the consultation authorities must be consulted on the scope and level of detail of the environmental report. The Scottish Executive regard that requirement as a sufficient check on the content of the environmental report and it is not the intention to provide further elaboration of the content of the environmental report in the Regulations. The Scottish Executive also regard the consultation mechanisms to be put in place in respect of the Directive as sufficient to ensure quality of environmental reports without any need for additional legislative measures. However, the Executive would welcome views on:
b) The point by which assessment should be carried out
4.28 Article 4.1 of the Directive states that
'The environmental assessment…shall be carried out during the preparation of a plan or programme and before its adoption or submission to the legislative procedure'.
4.29 Article 8 provides that the environmental report and the opinions expressed during consultation are also to be taken into account during the preparation of a plan or programme and before its adoption or submission to the legislative procedure. This raises some questions about when a plan or programme can be said to have been adopted/submitted and therefore by which point SEA should be complete.
4.30 EC guidance does not specify what is meant by 'adoption' but emphasises that it is important that the assessment informs the way plans and programmes are drawn up and is done while they are at a relatively fluid stage. It also says that the preparation of a plan or programme covers a process which lasts right through to its adoption (adoption through a legislative procedure is one method in some Member States). The Scottish Executive considers both the Directive and the EC guidance to mean that, in the case of plans or programmes submitted to a legislative procedure, the environmental report should be completed prior to the date of submission and that the provisions of Article 8 therefore do not apply during the course of the legislative procedure itself (ie the environmental report does not have to take account of opinions expressed during the legislative procedure). This is not to devalue the importance of legislative scrutiny. It simply recognises that the legislative procedure would either endorse a plan or programme put to it, throw out a plan or programme in its entirety, or require modifications to be made. In the latter case, if those modifications were likely to create significant environmental impacts, the revised plan or programme would be subject to a new SEA.
4.31 The Scottish Executive would welcome views on:
Q20: whether the Regulations should specify that the consideration of plans and programmes, and the opinions expressed on them, during the legislative process are not subject Article 8 of the Directive
c) Avoiding duplication of assessment
4.32 Article 4.3 of the Directive provides that:
'where plans and programmes form part of a hierarchy, Member States shall, with a view to avoiding duplication of the assessment, take into account the fact that the assessment will be carried out, in accordance with the Directive, at different levels of the hierarchy. For the purpose of, inter alia, avoiding duplication of assessment, Member States shall apply Articles 5.2. and 5.3'.
4.33 These latter articles are respectively a provision that the environmental report 'shall include the information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process to avoid duplication of the assessment', and a provision that information gathered at other levels of the decision-making process may be included in an environmental report.
4.34 It is clearly desirable for unnecessary duplication to be avoided. However, a potential difficulty with using SEA at one level to inform SEA at another is that information quickly goes out of date. The Scottish Executive would welcome views on:
Consultations and Decision Making
a) The list of consultation authorities
4.35 An important element of SEA is consultation with consultation authorities. Those authorities are to be consulted at the following stages:
and must also be informed when the plan or programme is adopted and given details of results of consultations, how environmental considerations have been integrated into the plan or programme, how the final decision was reached and what the arrangements for monitoring are.
4.36 It is clear that consultation authorities must be public sector authorities of some sort. EC guidance defines environmental authorities as 'formal governmental or public authorities, defined by administrative or legal requirements…'.
4.37 One of the aspects that the environmental report must address is 'the likely significant effects on the environment, including on issues such as biodiversity, population, human health, fauna, flora, soil, water, air, climatic factors, material assets, cultural heritage including architectural and archaeological heritage, landscape and the interrelationship between those factors'. This combines with assessment of the current state of the environment and what would be likely to happen to it if the plan or programme were never implemented, to build up a picture of the consequences of the proposed action or policy.
4.38 The consultation authorities therefore need to be capable between them of judging and advising on all these issues. The two most obvious bodies with environmental responsibilities in Scotland are Scottish Natural Heritage (SNH) and the Scottish Environment Protection Agency (SEPA).
4.39 The body primarily dealing with 'cultural heritage including architectural and archaeological heritage' is Historic Scotland. This is an agency of the Scottish Executive rather than an independent body, but as its function is so distinct, it would be possible to designate it in its own right. However, a general designation of Scottish Ministers/the Scottish Executive is regarded as essential, so specific designation of Historic Scotland might not be necessary.
4.40 The Directive clearly includes non-governmental organisations, such as those promoting environmental protection, as the "public" (Article 6(4)). It would therefore not be appropriate to designate such organisation as consultation authorities for the purposes of the Directive.
4.41 Against this background, the Scottish Executive would welcome views on:
Q26: whether all those on any list should be involved in every case, or whether the Regulations should provide for relevant environmental authorities to be consulted - if the latter, how should relevant environmental authorities be selected; should there be a requirement to consult the Scottish Ministers and SEPA in all cases?
b) The definition of the "public"
4.42 Involving the public and non-governmental organisations is a key component of SEA. Like other measures such as the Freedom of Information (Scotland) Act 2002 and the Aarhus Convention, the Directive seeks to make environmental information more accessible and facilitate involvement in decision-making.
4.43 In the Directive (and in the Aarhus Convention), there are two levels of 'public' (in Aarhus, 'the public' and 'the public concerned') and there is a possibility that the right to participate in the SEA process may not be unrestricted. The Directive includes a provision for Member States to identify 'the public affected, or likely to be affected by, or having an interest in, the decision-making subject to this Directive, including relevant non-governmental organisations, such as those promoting environmental protection and other organisations concerned' (Article 6.4). It is this 'public' who are to be given 'an early and effective opportunity within appropriate time frames' to express their opinion on a draft plan or programme and accompanying environmental report.
4.44 This suggests that it would be possible to exclude some members of the public, not from having access to the draft plan or programme and the environmental report, but from making comments that would require to be taken into account when a decision is being made. That would go against Scottish Executive policy on consultation. It would also seem to contravene the provisions of the Aarhus Convention.
4.45 We therefore anticipate that all comments on environmental reports and accompanying documents will be able to be taken into account. These comments would not necessarily have to come from persons resident in Scotland or having UK citizenship, as the Aarhus Convention states that
…the public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities.
4.46 Detailed arrangements regarding how consultation is to be carried out are not specified in the Directive but may be made by the Member State. EC guidance says:
There are many different methods and techniques for public consultation. These range through seeking written comments on draft proposals, public hearings, steering groups, focus groups, advisory committees or interviews. It will be important to select the most appropriate form of consultation for any given plan or programme.
4.47 The Scottish Executive would welcome views on:
c) Timescales for consultation
4.48 The Directive requires the consultation authorities and the public to have the opportunity "within appropriate time frames" to express opinions on draft plans and programmes and on environmental reports before adoption of plans or programmes Member States are required to lay down the timeframes in legislation. There are various precedents in existing legislation for setting timeframes for consultation, ranging from 4 weeks to 6 months. As a general rule, consultations undertaken by the Scottish Executive have a 12 week consultation window. However, given the scope of the Directive and the potential nature of the plans and programmes that might fall within it, the Scottish Executive would prefer not to set a blanket consultation period but instead to provide for a minimum period of 28 days and of sufficient length to allow consultees to express their opinions. The Scottish Executive would welcome views on this proposal. (See question 30 in section 5).
Monitoring
a) Responsibility for monitoring
4.49 The Directive makes clear the Member State must ensure that once a plan or programme has been adopted a range of information, including how the significant environmental effects will be monitored, is to be made available to the consultation authorities and to the public. It also requires information on the monitoring measures to be made available by the responsible authority once a plan or programme has been adopted.
4.50 Draft Regulation 17 gives effect to the Scottish Executive's obligation under the Directive by requiring the responsible authorities to specify the monitoring methods to be used for each plan or programme. We would welcome views on whether:
Implementation and Entry into Force
a) The definition of "first formal preparatory act"
4.51 The Directive applies to plans and programmes from the point of their "first formal preparatory act". The draft Regulations do not define this term.
4.52 The Scottish Executive would welcome views on whether a definition of the term is necessary and, if so, how it might be constructed. (See question 33 in section 5).
The Proposed Bill
4.53 In addition to the above considerations for the proposed Regulations (which will in due course be incorporated into the Bill) the Scottish Executive would welcome comments and views on the following aspects of the proposed Bill.
a) The definition of "strategies"
4.54 'Strategies' are not altogether separate from 'policies': the terms are often used interchangeably. For example, in statute, the National Waste Strategy is described as a 'statement' containing 'policies'. 'Strategies' are generally understood to refer to higher level, more important policy, in distinction from lower level policy-making that happens on a daily basis in the exercise of Ministerial etc functions. A strategy could also be described as a coherent collection of policies operating in conjunction with each other and presented as such.
4.55 In practice, there may be little difficulty in separating strategies from routine business, but expressing this in legislation is more difficult. The Scottish Executive has considered whether strategies might be limited only to those high level policies which are subject to public consultation prior to adoption, but have concluded that this could exclude certain strategies that it might be preferable to subject to SEA. We therefore propose that the Bill should adopt a fairly broad definition of strategies as those which are:
subject to preparation by an authority at national, regional or local level or which are prepared by an authority for adoption through a legislative procedure by Parliament or Government
this follows the pattern of the draft Regulation's definition of plan or programme for the purposes of the Directive, but removes the qualification about being required by legislative, regulatory or administrative means. It also excluded any requirement that such voluntary strategies should set a framework for future development consent of projects. As with the draft Regulations giving effect to the Directive, "authority" would include private companies carrying out public functions under the control or direction of the Government (see paragraph 4.64 below).
4.56 A further consideration arising from the application of SEA to strategies and to plans and programmes outwith the scope of the Directive is the application of the screening process. The Directive's screening process is intended for the assessment of plans and programmes required by legislative, regulatory or administrative means and which set the framework for future development consent or projects. Under the terms of the Partnership Agreement commitment, the qualifications about being required by legislative etc means and setting the framework for future development consent will be removed by the Bill, and SEA will be applied to strategies (voluntary or obligatory and regardless of whether they set the framework for future development consent or projects).
4.57 This raises two broad issues:
(a) extending the range of plans and programmes may not in itself be problematic in respect of the screening process (in particular applying the criteria in Annex II to the Directive) but it will increase the number of plans and programmes to be screened;
(b) applying the screening process to strategies (voluntary and obligatory) may, by virtue of a strategy's broader nature, mean that the consideration of environmental affects will have to be at a more general level (perhaps making it more difficult to apply all of the criteria, eg those in paragraph 2, of Annex II to the Directive).
4.58 The Scottish Executive would welcome comments on:
b) The application of the screening process: pre-screening
4.59 For strategies, and for plans and programmes not covered by the Directive, it is open to the Scottish Executive to devise a different screening process. We take the view that the process set out in paragraphs 4.11 to 4.13 above and in draft Regulation 11 is generally applicable to the wider range of strategies, plans and programmes to be covered in the Bill but that it could be supplemented by a prior stage allowing those strategies, plans and programmes with no possible significant environmental effects to be exempted even from the screening process. This decision could be taken by the responsible authority itself, which might raise the risk that it would be taken without due process.
4.60 The Scottish Executive therefore proposes that the Bill should provide for a pre-screening mechanism as described in paragraph 4.59 above, but that it should be qualified in such a way as to require the responsible authority to take the decision having regard to the factors in Annex II to the Directive (as it would do in the full screening process). The responsible authority would be required to disclose its assessment against Annex II factors.
4.61 There would be no role in this process for the consultation authorities, or any scope to challenge the decision made by the responsible authority other than through judicial review. Putting in a role for the consultation authorities, eg to challenge the responsible authority's decision, would only lead to uncertainty and would have no advantage over the normal screening process.
4.62 This proposal would have some advantages in reducing the burden on the responsible authorities and on the consultation authorities. But it may create difficulties insofar as it would establish a separate regime for plans and programmes within the scope of the Directive (to which pre-screening could not apply) and for strategies, plans and programmes within the scope of the wider provisions of the Bill.
4.63 The Scottish Executive would welcome views on:
c) The impact on private companies carrying out public functions
4.64 The Bill would apply to voluntary and obligatory strategies, plans and programmes prepared by private companies that refer in whole or in part to the carrying out of their public functions. Voluntary and obligatory strategies, plans and programmes relating wholly to private business would not be subject to the Bill. The Scottish Executive would welcome views on:
d) Whether to modify Annex I and II to the Directive
4.65 The Scottish Executive does not propose to modify Annex I (information required for inclusion in the environmental report) or Annex II (screening criteria) when they are subsumed into the Bill, other than to broaden their scope to apply to strategies. However, we intend for the Bill to contain an enabling provision giving the Scottish Ministers the ability to add to the information required by Annex I if they determine that this is necessary in specific circumstances. We would welcome comments on these proposals. (See question 42 in section 5).
e) Whether socio-economic factors should be taken into account in the preparation of environmental reports
4.66 The Directive clearly intends that SEA should be predicated solely on environmental considerations and there is no scope for allowing environmental reports, prepared for plans or programmes within the scope of the Directive, to include socio-economic factors. In extending the scope of the Directive in the proposed Bill, it would be possible to provide for factors other than purely environmental ones to be included in environmental reports prepared for strategies and for the wider range of plans or programmes. However, as with the Directive, the Scottish Executive intends for the Bill to have a clear environmental focus. We do not, therefore, propose to include a provision in the Bill to allow for socio-economic factors to be included in the environmental report as part of the SEA process. As a key element of sustainable development, socio-economic factors should continue to be taken fully into account in reaching decisions on whether and how a strategy, plan or programme is implemented and the Bill will not change that. The Scottish Executive would welcome views on this approach. (See question 43 in section 5).
f) Possible additional exemptions
4.67 The Directive contains certain explicit exemptions which, for the purposes of plans and programmes within the scope of the Directive, it is not possible to extend. However, the Scottish Executive would be able to include further exemptions, if appropriate, from the additional requirements of the Bill (ie from the requirements in respect of strategies and of plans and programmes outwith the scope of the Directive). There may be arguments in favour of exempting strategies, plans and programmes drawn up by small individual bodies (eg schools, hospitals). The Bill would therefore contain a provision allowing the Scottish Ministers to make such exemptions if they considered them appropriate. The Scottish Executive would welcome views on:
Likely numbers of strategies, plans and programmes to be subject to SEA and the likely costs
4.68 Although many public bodies already consult on their strategies, plans and programmes and a variety of mechanisms for taking into account likely effects on the environment already exist, the systematic demands of SEA will inevitably place some new demands on the public sector and on the privatised utilities. Those most strongly affected will be Scottish Executive, local authorities and the consultation authorities. The additional demands as a result of the Directive will increase in numbers terms under the wider scope of the Bill, but by the time the Bill's provisions come into effect there should be should be a good deal of experience of the process established by the Directive which might help to limit the additional impact.
4.69 It is only possible at this stage to make a general estimate in monetary terms of the impact of the Directive and then of the Bill. Our current estimate is that an annual impact on the Scottish Executive could be in the order of 2.6 million to 5.5 million, depending on the methods adopted to carry out assessment (eg in-house or contracted out). We estimate that the cost including the rest of the public sector could be at least double that, although we accept that much more detailed work is required in order to establish a more precise figure. A full Regulatory Impact Assessment will be produced by the Scottish Executive once some of these issues are clearer following responses to this consultation document, and following more detailed discussions with public sector bodies. The Scottish Executive would however welcome views at this stage on:
Q48: the likely additional annual numbers of strategies, plans and programmes within the scope of the Bill that might require SEA, and the associated costs to the responsible authorities (including private companies carrying out public functions) of preparing such SEAs
Q50: the likely costs, for each non-governmental organisation with a particular interest in environmental protection, of the public consultation process under the provisions of the Directive and the Bill
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