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Board meeting - 26 September 2023

The one hundred and eighty-eighth meeting of the Agency Board will take place at 1.00 pm on Tuesday 26 September 2023 via MS Teams

The following items will be considered by the Board members and Officers in private session.

Chair's opening remarks

The Chair welcomed everyone to the meeting. It was noted that the session with the Cabinet Secretary tabled as item 2 on the agenda was cancelled and that this private session was to focus on the Programme for Government and Corporate Plan.

Visit to the Board by the Cabinet Secretary

This item was cancelled due to the unavailability of the Cabinet Secretary.

Programme for Government (SEPA 40/23)

The Acting Chief Officer, Circular Economy introduced the report, highlighting the shift away from environmental issues to social justice and the economy in this Programme. The strong alignment with this Programme for Government (PfG) and SEPA’s emerging Corporate Plan was also highlighted.

Comments from the Board on the PfG included that it seemed a “bit light in detail” in some areas. In response to a question, it was confirmed that there are no “surprises” for SEPA in the PfG.

In response to a query raised on Scottish Government’s Water policy development, the Board noted that SEPA is contributing to this, as presented to the Board at its Strategy meeting on 27 June 2023, and that a Scottish Government consultation is due to go out in October 2023. The Board will be kept up to date on progress with this.

Action: Acting Chief Officer, Circular Economy

Questions were raised in respect of the Agriculture Bill, SEPA resource to this, and its applicability to the water environment. The Board noted the update that it had been a struggle to resource Agriculture related work as decisions had been made in SEPA in recent years to not backfill certain posts in order to meet savings targets. However, the organisation is now thinking alternatively on this and looking at win/win approaches to incorporate biodiversity, amenity, soils and flooding, recognising also that diffuse pollution from agriculture is the biggest pressure on the water environment.

In response to a question on how to handle the biodiversity challenge with respect to Agriculture, the Acting Chief Officer Circular Economy explained that work here is struggling as there are many conflicting agendas wanting many things from the agri-payment process, and that tough decisions require to be made by Scottish Government. One area particularly impacted is NetZero, as a major portion of Scotland’s emissions come from land use.

Following a question on RAAC (Reinforced Autoclaved Aerated Concrete) and whether this will have implications for SEPA, the Acting Chief Officer Compliance advised that it should be similar to dealing with demolition waste, but that an update will come back to the Board on this.

Action: Acting Chief Officer Compliance

A question was also raised on reducing costs and making efficiencies, and if there are any areas SEPA should be worried about in terms of resourcing. The Acting Chief Officer Circular Economy explained that there were no concerns, and that the SEPA Executive team will continue to work with Scottish Government on rationalising going forward.

The Board noted the programme and the update provided.

Corporate Plan Strategic Direction (SEPA 41/23)

The Chief Executive introduced the report and passed to the Head of Governance (and Acting Chief Officer for Performance & Innovation (P&I)). The Business Strategy Manager was also in attendance.

The Board noted that this paper follows on from a session led by the Acting Chief Officer P&I at the Board Planning Day on 6 September 2023. The CLT has since reflected on the comments received from the Board, resulting in what is being presented today, including an updated diagram and a new area of focus - Business Environmental Performance, - to reflect SEPA’s core work on regulation and supporting businesses. The Board was asked to review and comment on the paper.

The following points were noted during the discussion:

• The new diagram still feels a bit “busy” and language like Avoid and Warn might make it difficult for an external audience to understand.
• Changing the colour of each segment of the circle and having a key at the side that identifies what the colours mean might make it clearer (e.g. to show what are priorities, measures etc). Other inconsistencies were also noted in the diagram, e.g. some of the text is upside down making it difficult to read.
• Suggestions were made to make the diagram interactive on the website, as a tool to click on for further information.
• Business Environmental Performance was felt to be too long, and the Executive team was asked to look at shortening this down, if possible, e.g. to Business Sustainability.
• Economy and Prosperity are closely linked, a query was raised as to why there are two words here and no mention of Health.

The CLT will consider these comments and ensure there are no ambiguities in the wording, and that it clearly explains what SEPA is about, using key words to reflect SEPA’s statutory purpose and Scottish Government language. The Corporate Plan is at an important stage now as CLT is looking at the detail, including the tangible actions behind the priority areas.

It was noted that the Board will see the next iteration of the Corporate Plan at the October Strategy session with stakeholders and the first draft of the Plan at the November Agency Board meeting.

The Board noted the paper and update.

The following items were taken in the Public Session of the Board.

Safe SEPA @ Board

The Clerk to the Board advised that there was nothing explicit to update the Board on for this meeting, but reminded the Board that this is a “two-way process” and if any of the Board come across best practice or good examples elsewhere, they should make the Clerk to the Board aware.

Chair’s opening remarks to public session

The Chair welcomed everyone to the public meeting, including Kieron Gallagher, deputising for Bridget Marshall, the Acting Chief Officer for Performance & Innovation (P&I), and Sheri Dick, the newly appointed Senior Administrator.

The Chair welcomed Stacey Ann Burge in attendance as a member of the public observing the Agency Board Meeting.

Matters arising

The Clerk to the Board provided an update. The following updates to the actions were noted:

Action 754 - The Clerk to the Board received a request from the Executive Director Evidence & Flooding to move the flooding update from the November 2023 Board agenda to the next Board meeting in February 2024. This is to increase the time between updates to the Board on this topic and for the team to prioritise flood warning activity in Nov/Dec given the possible bad weather during this period. The Board agreed the proposal to move the Flooding update to February 2024.

Action 755 - An IS and Digital Development update will be scheduled in the Agency Board Planner for the Board meeting on 27 February 2024. Ongoing.

Action 756 – Environmental Standards Scotland (ESS)’ CEO and a number of ESS Board members have been invited to the Strategy Board meeting on 24 October 2023 to discuss SEPA’s emerging Corporate Plan. Annual seminars with ESS will continue to be tabled for the Board. To ensure the Board remains sighted on SEPA’s work with ESS, ESS/SEPA relations will also be reported through the CEO’s Board report, as required. Proposed Closed.

Action 757 - arrangements have been made including that a member of the CLT & Board Support team will attend all Risk Management Group meetings to ensure risks are going to the right place and that everything is joined up. Proposed Closed.

Action 758 - A briefing paper on the Programme for Government has been provided. The Board seminar session in the morning of 26 September will cover a briefing on Public Sector Reform. These both provide context for the meeting with the Cabinet Secretary. Proposed Closed.

A new action was proposed for the Clerk to the Board to keep the Board updated on when the Cabinet Secretary will be able to meet with the Board. This will be in liaison with the Scottish Government Sponsor team.

Action: Clerk to the Board

Action 759 - Suggestions as to how the annual complaints report could be improved will be considered in the drafting of the next annual report. Proposed Closed.

Action 760 - Discussion took place on 6 Sept 2023 at the Board Planning Day and will be homologated in this minute of the Board. It was also noted that the Audit & Risk Committee agreed on 12 September 2023 at their meeting that going forward the committee will receive a summary of Risk with appendices; detailed risk cards will only be presented for new risks or where risks have worsened. Annual and Biannual Risk reports will continue to be presented in full. Proposed Closed.

Chair's report

The Chair provided a verbal update on his activities since the last Agency Board meeting in July 2023. Highlights noted included:

• The first meeting of the Scottish Government Public Bodies Chairs Clusters Group to take forward the Public Sector Reform agenda. It was noted that the Chair is working with the Chief Executive and Chief Finance Officer to tie this in with the operational end of the Public Service Reform agenda.
• Work is underway on SEPA Board member recruitment; the Engagement and Planning meetings have taken place, and the recruitment campaign has been launched. It was confirmed that the Chair will be on the interview panel for the Board member positions. An online recruitment event was held on 25 September 2023 led by the Institute of Directors which went well and generated good discussion with prospective applicants. Board member Julie Hutchison also participated in this.
• A meeting, also attended by the Chief Executive, with the Cabinet Secretary.
• A formal appraisal meeting with the Interim Director of Environment & Forestry, Scottish Government, where discussion focused on the Board recruitment process, and public service reform and the role that SEPA can play in that.
• A meeting with the Liberal Democrats Leader, Alex Cole-Hamilton MSP, which included a visit to wastewater treatment works to discuss combined Sewer Overflows (CSOs) and associated problems.
• As visit to VIBES winner, Innovatium Group Ltd in East Kilbride.

The Board noted that the VIBES Awards ceremony is due to take place on 8 November 2023 in Glasgow. This was due to be attended by Fran van Dijk, as a VIBES Judge, but she is now not able to attend. Board members were asked to let the Clerk to the Board know if anyone was able to attend the ceremony in her place. It was further noted that the Chief Executive is also attending the Awards Ceremony.

Action: Clerk to the Board

The Board noted the update.

Management Reports

Chief Executive's Report (SEPA 46/23)

Report: Chief Executive's Report

The Chief Executive introduced the report, focusing on the period over the last two months but also taking the opportunity to reflect across the first six months of the financial year 2023-24. She explained that the organisational reset is continuing at pace, with “a great deal going on” with both internal and external work. Work includes finalising SEPA’s Annual Report which has taken on a new format which will be carried over into the Corporate Plan.

The Chief Executive drew attention to the Climate and Nature dual crisis impact becoming much more evident, and that as an Agency SEPA has taken part in a number of evidence sessions. She also drew attention to the Board Chair and Member recruitment underway, and the following items within the report:

Paragraph 2.1, the conclusion of the work at Dalgety Bay; the staff lead for this work will be invited to attend a future Board meeting to share a presentation he gave at a recent all-managers meeting. During discussion, it was confirmed that the presentation will include an opportunity to discuss with the Board wider lessons learned on how SEPA regulates another public body in challenging situations.

Action: Clerk to the Board/Acting Chief Officer Circular Economy

Paragraph 2.11, giving further focus to work on waste crime and sharing tools and techniques to help the waste sector with reference made to the fact that the Chief Executive is speaking at the Scottish Resources Conference in Perth on 3 October 2023.

In response to the Board seeking clarification on paragraph 2.5 - Water Scarcity, it was agreed that the text in that section would be revised prior to the report being published to ensure clarity of what was meant by the “2023 incident”.

Action: Clerk to the Board/Acting Chief Officer Circular Economy

Following a query on paragraph 2.7, it was agreed that the Grangemouth Regulatory Hub would be a suitable topic for a future Board seminar and would be added to the Board planner.

Action: Clerk to the Board/Acting Chief Officer Compliance

Following a query on paragraph 2.13, it was confirmed that the Board will have an opportunity to discuss the outcome of the sea lice consultation and meetings around this, at its October 2023 Strategy meeting.

In response to a query on how the Chief Executive’s Report is used more generally, the Chief Executive advised that it is used in other forums, highlighting that the next iteration of the report which will come into alignment with the new Corporate Plan. This will provide more benefit to the Board, Agency, and stakeholders. It will become more outcome focused and clearly map the delivery.

Discussion also took place on paragraph 2.11.2 -the Digital Intervention Project and the registration of waste carriers. The Acting Chief Officer for Compliance advised that SEPA will consider greater public engagement to encourage reporting of illegal activities and also consider the introduction of standards of waste carriers when looking at performance assessments and encouraging best practice in the industry.

The Board noted the update.

Quarter 1 Performance Report (SEPA 42/23)

Report: Quarter 1 Performance Report

The Head of Governance (as delegated for the Acting Chief Officer P&I) introduced the report highlighting that the report included the nine measures in the Annual Operating Plan, and that seven of the measures are reporting as Green and two are tracking as Amber. He drew attention to an amendment to be made to measure 8, on Complaints response; a line will be added to the published report to reflect that SEPA closed 80% of complaints received within the timescales.

In response to a question on the classification of Regenerative SEPA being Amber and whether SEPA is where it needs to be, the Head of Governance advised that there is a route map that the SEPA team is tracking against, however he will take the question away and provide further clarity to the Board.

Action: Head of Governance/Acting Chief Officer P&I

In response to a question on measure 3 and wording on the number of illegal sites, the Acting Chief Officer Compliance agreed to have an offline conversation with the Board member who raised this to discuss how the measure works and to better understand what would be of value to the Board to report.

Action: Acting Chief Officer Compliance

The Board also commented on the new layout and design of the report which they found to be more accessible and readable.

The Board noted the report.

Charging Scheme Consultation (SEPA 43/23)

Report: Charging Scheme Consultations

The Chief Finance Officer introduced the paper and highlighted the context of the consultations, making changes to three of the charging schemes (Reservoirs, Transfrontier Shipments (TFS), and Emission Trading Scheme (ETS)) to enable full cost recovery and implementation of revised charges before 1 April 2024. SEPA is required to do this before making price rises above inflation.

The Chief Finance Officer reminded the Board that under the Scottish Public Finances Manual SEPA is not permitted to profit from charging; it is about recovering costs. There was one legal amendment under ETS which will not generate any further income and the charges for TFS will increase in line with changes required under legislation and the amount of work that needs to be carried out under that scheme.

In response to a question on recovering costs, the Chief Finance Officer explained that there is a lot of modelling undertaken before these charges are put out for consultation which is subject to audit and approval from Ministers and Scottish Government scrutiny. Following discussion, it was agreed that a Board Buddy session would be useful for members of the Audit & Risk Committee to get a better understanding of the modelling behind the Charging Scheme.

Action: Clerk to the Board/Chief Finance Officer

Following a query on the language used in paragraph 1.8, it was agreed that the wording here would be revised before the report is published.

The Board noted the update.

Right to a Healthy Environment (Human Rights Bill) Consultation (SEPA 44/23)

Report: Right to a healthy environment

The Head of Governance (and Acting Chief Officer P&I) advised that Scottish Government is currently consulting on the Human Rights Bill for Scotland. The Bill recognises and includes the rights to a Healthy Environment and this item is intended to explore this aspect in more detail with the Board. He then invited the International Services Manager to talk through the presentation.

The following points were noted:

• The consultation contains 44 questions and closes on 5 October 2023. The Bill will have significant implications for SEPA, and the issue will return to the Board at an appropriate time. Use will also be made of the Board Buddy group; with SEPA’s draft consultation response being shared imminently with the group for views/contributions.
• Embedded in the consultation are three broad areas, The Human Rights, defining that into Scots Law, Duty Bearer, and access to justice, which will have implications for SEPA in terms of service complaints.
• The right to a healthy environment will be made up of both substantive and procedural elements and reflect underpinning international framework.
• After a specified implementation period, a duty to comply will come into play and apply to the right to a healthy environment, as well as rights in the International Covenant on Economic, Social and Cultural rights. The duty to comply will be demonstrated via progressive realisation and minimum core obligations.

Following a query on resource implications for responsible authorities, the International Services Manager advised that SEPA will have a responsibility as a duty bearer and will need to ensure active consideration of the rights in decision-making. SEPA is discussing resource implications and training with Scottish Government and other public bodies impacted.

In response to a question on how SEPA responds to the consultation when it does not fully know the details and implications, the International Services Manager advised that from the consultation perspective SEPA’s response will focus on where it has a remit, and on where it considers further clarification and detail is needed, including on definitions.

The Board noted the paper and presentation.

Board Work Programme

Report on Seminars on 26 September 2023 – annotated agenda

The Clerk to the Board advised that the Board seminar session focussed on three elements.

The first session was on Scottish Government consultations on Environmental Governance and Right to a Healthy Environment (Human Rights Bill) with a presentation from the Head of Environment Strategy and Governance Unit at Scottish Government, who highlighted environmental governance arrangements, access to environmental justice, consideration of an environmental court and wider issues. He then went on to speak about the development of the Human Rights Bill highlighting what is trying to be achieved, the context and overview of the right to a heathy environment, the duties in the bill and the implementation of the new Act. The Board actively discussed the issues raised and asked questions.

This was followed by a session led by SEPA’s Head of Environment & Regulatory Legal on SEPA’s response to the Scottish Government consultation on Environmental Governance which the Board then discussed and contributed to.

The seminar session finished with a Public Sector Reform update from the Chief Finance Officer providing background context and examples to explain the approach being taken by the Scottish Government’s Environment & Economy Leaders’ Group. The Board asked for more information on the Audit Scotland Briefing “Scotland’s public finances – Challenges & Risk” November 2022 report to be circulated.

Action: Clerk to the Board/Chief Finance Officer

The Board thanked all those involved in the seminar session for the interesting and thought-provoking presentations.

Board Member Engagement

The Board noted that it held a Planning Day on 6 September 2023 where it agreed the Corporate Plan Priorities.

Julie Hutchison asked that the Board note her involvement in the IoD recruitment seminar on 25 September 2023, as referred to in the Chair’s report, and an online meeting on 30 August 2023 with Scottish Government and SEPA staff on the framing of potential legislation on Human Rights, as referred to in the Board Buddy register.

Board Buddy Register

The Clerk to the Board advised that there had been a push to update the register for today’s meeting as requested at the July 2023 Agency Board meeting.

The following updates were noted:

• There was a proposal from CLT to close the NetZero Board Buddy Group as updates on this work will instead be included in the performance reports and the Chief Executive’s report, as appropriate. It was noted that a standalone group on this topic was not required, and offline conversations will take place as necessary. The Board agreed to close this group.
• The Water Scarcity group Terms of Reference will follow shortly and will be added to Diligent Boards.

The Equality and Board Succession group has not commenced active work as Board recruitment has been handled through a separate process. It was proposed to revisit this group in January 2024 with the new Board as it is not fulfilling its original intent. 

The Board was also made aware that the CLT is actively looking at all the Board Buddy groups and at what is appropriate to continue with, given the change ahead with the Board membership and the need to align any new groups with the Corporate Plan going forward.

Board Committee Reports

Audit & Risk Committee verbal update of meeting on 12 September 2023

Nicola Gordon as Chair of the Audit & Risk Committee advised on what was discussed at the meeting on 12 September 2023, highlighting that ToRs had been agreed for upcoming audits and that SEPA is entering a new internal audit contract. The Committee is heavily involved in this latter process and more information will follow to the Board in future Committee updates.

People & Remuneration Committee verbal update of meeting on 12 September 2023

Martin Hill as Chair of the People & Remuneration Committee advised that the Chief People Officer had provided a paper and brief presentation at the meeting on 12 September 2023 on resetting the strategic direction of the People work into a more manageable plan. The Committee was impressed with the approach taken to make this work more cohesive and strategic. The Chief People Officer will map out a project plan, working with the Committee. In time, a draft People Strategy will be tabled for the Board to consider.

Other issues discussed at the meeting included organisational culture and values and the visibility of the Board. A review of Committee membership was also briefly discussed, and it was highlighted that of the three remaining members of the Committee, two are retiring from the Board in December 2023, including the Committee Chair. The Board agreed that interim arrangements will be put in place this year with a full review of the membership in February 2024 when presenting the Official documents paper.

Action: Clerk to the Board

Update to Standing Orders (SEPA 45/23)

Report: Revision of the standing orders

The Clerk to the Board introduced the paper and asked the Board to approve the changes highlighted to the Standing Orders, explaining also why the changes were now necessary to review the quorum of meetings. The Board noted that this was an interim update, and that the matter will return to the Board in February 2024 when looking at the Official papers and procedures with the new Board.

The Board approved the paper.