Community Empowerment Bill

Our response

SCVO welcomes the opportunity to respond to this consultation. Our response draws from a number of discussions held with our members, third sector intermediary bodies and our Policy Committee. We are clear that the primary role for government and the public sector in this agenda is a supportive one which enables community empowerment but does not direct or control it. This means the public sector must adjust its culture, strategies, and processes to accommodate community needs and views. Supporting further independent community action will build on the progress already made by communities across Scotland. Many have achieved improvements by taking control of their own future and the decisions that affect them. The role of legislation should be to remove the barriers that prevent communities from undertaking projects and initiatives, and to ensure they have the tools needed to realise their ambitions. This bill should be part of a wider reform agenda which looks to build on the capacity which exists in individuals and communities. It is important to recognise that the core asset in communities is people and their networks. Alongside the work on physical assets the bill should seek to utilise the untapped potential for empowerment which can be unlocked by asset based approaches.

Regulations and guidance

The draft legislation outlined in the consultation document leaves a lot of the important detail on process to regulations and guidance. It is therefore essential that further open consultation is conducted. The regulations and guidance will greatly affect the way communities can effectively utilise the legislation, so it is important that they have the opportunity to contribute to them. Adopting a co-produced approach which involves community groups, intermediaries and public bodies in the production of regulations will ensure they meet the need of all parties.

Resources and support

If communities are to make use of any new powers granted by the bill they will need resources to help finance projects and support to carry out their ideas. Funding programmes must have open outcomes which allow communities to set their own priorities rather than simply conforming to government objectives. The community right to buy legislation was effective in part because the Land Fund and other funding programmes helped provide the means for communities to purchase their land. It is vital that this bill is also backed up by significant resources to help communities achieve their ambitions. Expertise must be made available to support communities to tackle the more complex financial and legal issues that will inevitably arise. However, we would not wish to see a rash of new consultants or ‘experts’ imposed on communities at vast expense. Existing third sector organisations that support communities should be strengthened with well-targeted capacity-building based on the needs identified by communities. In addition, networking between communities should be encouraged and supported to facilitate sharing of expertise, ideas and good practice. Schemes such as Community Powerdown [1] and the Scottish National Rural Network Project Visits [2] show the value of this approach and provide models for future programmes.

Inequality

The bill must tackle the inequalities which exist across communities, particularly in areas such as health, employment, education and access to services. There is a real risk that the bill could widen inequalities by favouring those communities who already have the capacity to take action. Ensuring that people in the most deprived and marginalised communities have the same opportunities and can exercise their rights effectively will be a significant challenge for the bill, but not one it should shy away from. Some communities will need additional support and guidance to progress their ideas and develop projects.

‘Careful attention must be paid to equalities and inclusion when developing strategies for community empowerment to ensure that it is not just the ‘trained voice’ which is heard, but that all members of a community are able and encouraged to participate and contribute.’ [i] Christie Commission (2011)

Community Right to Request Rights in Relation to Property

SCVO supports the transfer of assets to communities, provided that the community has an active desire to take ownership of them. Whilst recognising the benefits of asset ownership, we welcome the bill’s support for management of assets, which will hopefully ensure the most appropriate model is available to each community. We support the introduction of a single, clear process for the transfer of public sector assets to communities that has been outlined in draft legislation. It is vital that communities have as much information as possible prior to taking control of an asset. Knowing the yearly running costs and potential rental value as well as details of impending repairs or maintenance costs would all be vital information to a community’s assessment of whether to obtain an asset and should therefore be easily accessible. Legislation or regulations must ensure that this type of detail is made available to communities prior to any asset transfer so they can make an informed decision. We are disappointed that the draft legislation does not provide a duty for public bodies to maintain and publish an asset register. Knowing what assets a public body holds which could be made available for community use would be a significant resource for communities. It would allow them to look at all the assets in their area and identify those which would suit their purpose. There should be a duty on public bodies to make this information easily accessible in a public asset register. As well as maintaining a public asset register we would like to see a duty on public bodies to publish asset management plans. As communities play an increased role in delivering public services and owning and managing assets, they should also have the opportunity to contribute to the development of these plans. Q1 Do you agree with the definition of community body at section 1? Do you have any changes to suggest? We disagree with the definition of community body outlined in section 1. The legislation uses the term ‘company’ for its description of community body which would restrict the ability of organisations to access the asset transfer rights to organisations which adopt a company structure. Instead, the term ‘Incorporated body’ should be used to ensure that Scottish Charitable Incorporated Organisations (SCIOs) are included. SCIOs offer a structure which brings the benefits of incorporation and charitable status but with a single regulator and are increasingly being used by the third sector. Industrial Provident Societies, Community Interest Companies (CICs) and other legal structures which have an asset lock may also want to take on an asset and provided they meet the other criteria we see no reason why they shouldn’t have that option. Q2 Do you agree with the list of public bodies to be covered in this Part at Schedule 1 (Annex C page 21)? What other bodies should be added, or removed? Yes. The public bodies covered are sufficient if including Scottish Ministers covers the Forestry Commission trees and land. Q3 What do you think would be reasonable timescales for dealing with requests, making an offer and concluding a contract, in relation to sections 5(6), 6(2)(c) and 6(6)? There should also be a duty which is either outlined in legislation or covered in regulations that compels the public body to acknowledge receipt of any application within a short timescale – maximum of 14 days. This will give reassurance to organisations that their request has been received and is being considered. Q4 Do you agree that community bodies should have a right of appeal to Ministers as set out in section 8? Are there other appeal or review procedures that you feel would be more appropriate? Yes. Community bodies should have the right of appeal against decisions made. Q5 What form of appeal or review processes would be appropriate in relation to decisions made by local authorities and by Scottish Ministers? There should still be an appeals process in place for decisions made by local authorities and Scottish Ministers. For local authorities this could involve a board of opposition or cross-party Councillors. This would satisfy democratic accountability and also provide an independent appeals process. Q7 What costs and savings do you think would come about as a result of these draft provisions? Please be as specific as you can. The transfer of assets to communities should not be driven by public sector cost saving exercises. The basis for asset transfers should be that communities are able to better utilise a public sector asset for their own purposes.

Community Right to Request to Participate in Processes to Improve Outcomes of Service Delivery

SCVO supports the view that community organisations should have a greater role in the design and delivery of public services. As well as the added socio-economic value these organisations bring, they are best placed to build on the assets of a community and deliver solutions tailored to the community’s needs. This proposal should build on the recommendation from the Christie Commission that ‘services are built around people and communities’ and recognise the vital role communities have to play in the reform of public services. There may be some value in legislating for this process. Allowing organisations to initiate a process to improve services could open up discussions between the third sector and public bodies. However, its effectiveness will depend on the culture and attitudes within the relevant public body. Improving the culture within public bodies to increase acceptance of the value of participative approaches is more likely to achieve success than bringing forward legislation that could be ignored or regarded as a nuisance. Legislation can contribute to culture change but won’t be successful on its own. We are also concerned that introducing this process might disrupt the positive ways that third sector organisations and public bodies already work together. Good interactions between the third sector and public bodies are often dependent on good relationships between individuals. The formal process that has been proposed might disrupt positive interactions which already take place if it becomes the main route for engaging the sector in improving public services. We would also like to have seen the bill bring forward proposals for Participatory Budgeting which can have a significant impact on the empowerment of communities by providing communities with a greater say in spending decisions. Q9 Do you agree with the list of public bodies to be covered in this Part at Schedule 2 (Annex C page 21)? What other bodies should be added, or removed? We are unsure why a number of bodies have been excluded from this list. Scottish Water, the Crofting Commission and the Care Inspectorate are all public bodies that deliver services, so it is not clear why they have been excluded whilst others such as SNH or Scottish Enterprise will be covered. Q11 Do you agree with the criteria at section 15 that a public service authority should use when deciding whether to agree or refuse a participation request? Are there any other criteria that should be considered? Defining additional criteria such as ‘improving inequality’, promoting ‘human rights’ or ‘promoting sustainability’ could send a message about the importance of these areas. However, empowering communities should not be about setting limits for communities conform to. Introducing an additional ‘public benefit’ clause here would ensure that the breadth of community interest would be covered.

Increasing Transparency about Common Good

Q14 Do you think the draft provisions will meet our goal to increase transparency about the existence, use and disposal of common good assets and to increase community involvement in decisions taken about their identification, use and disposal? What other measures would help to achieve that? We support the introduction of an asset register and proposals to consult on the disposal and use of common goods assets. These assets are valuable to communities so we support provisions which would involve communities in the decisions made about these assets. As stated above, we would also like to see a duty on public bodies to publish asset management plans – including common good assets. As communities play an increased role in delivering public services and owning and managing assets, they should also have the opportunity to contribute to the development of these plans.

Improve and extend Community Right to Buy

The importance of community empowerment and local control of assets is now well established in Scottish public policy, and the push to allow more communities the opportunity to own their land and land-based assets could represent a significant advance in this agenda. Q17 The Scottish Government proposes to extend right to buy to communities in all parts of Scotland, where the Scottish Government is satisfied that it is in the public interest. Do you agree with this proposal, and are there any additional measures that would help our proposals for a streamlined community right to buy to apply across Scotland? We support changes to the Land Reform legislation which would extend the Community Right to Buy to all communities in Scotland. We appreciate that there will be different opportunities and challenges in urban communities that require further investigation but we see no reason why they should not enjoy the same rights as rural areas. Beyond its direct application, the introduction of the Land Reform Act brought about an improved confidence in rural communities about what could be achieved and we would like to see a similar change in urban communities. To help facilitate purchases (particularly in urban areas) ways will need to be found to tackle the issue of high market values for land. We would like to see many communities taking ownership of land but with the current high valuations and limited funding available it seems unlikely that this will happen on a significant scale without change in this area. The renewal of the Land Fund until 2015 is a welcome step and will provide a vital source of finance for community purchases. To ensure the momentum is maintained a permanent fund should be established which ensures regular funding is made available for communities to facilitate purchases. Q19 Do you think that there should be a compulsory power for communities to buy neglected or abandoned land in certain circumstances? What should these circumstances be? We would like to see the removal of the absolute reliance on a willing seller, so that communities will have the right to buy land if it can be shown to be in the public interest and important for sustainable development. This is currently the case in parts of Scotland, so the principle has already been conceded in legislation. This would simply be an extension of that principle to all land in private ownership, removing the privilege extended to crofting communities. While we support this radical change in the underpinning presumptions about ownership, there would be a responsibility on the community to establish that they have the will and capacity to take on the responsibilities of ownership, and that they have pursued other avenues before seeking to exercise this right. Q20 How do you think this should work in practice? How do you think that the terms “neglected” and “abandoned” should be defined? The term ‘neglected and abandoned land’ could be problematic and may prove difficult to define, particularly in rural areas where landlords wishing to avoid coming under the scope of legislation could underuse land but claim that it was being returned to a more natural state. Q35 Do you agree that SCIOs should be able to apply under the provisions? Yes. SCIOs are an increasingly popular model for organisations to adopt and they should be included in the provisions.

Strengthening Community Planning

We question the relationship between these proposals and community empowerment. It is difficult to see how the proposals for community planning outlined for this bill will empower communities as they mainly concentrate on tightening up and enshrining in legislation processes which have proven to be unsuccessful in improving outcomes or engaging communities. The Local Government and Regeneration Committee are also sceptical about a statutory approach:

COSLA argued that the proposed statutory duty on all public bodies to participate fully in community planning will bring a ―paradigm shift in community planning. We are sceptical whether the proposed statutory duty will be enough to ensure that all participate effectively in community planning and deliver the kind of public services in communities we want to see. The evidence we heard and received reveals some very deep-seated attitudes and behaviours that will take time to change, even with a new statutory duty.[ii]

Q53 What are your views on the core duties for CPPs set out above, and in particular the proposal that CPPs must develop and ensure delivery of a shared plan for outcomes (i.e., something similar to a Single Outcome Agreement) in the CPP area? We support proposals to consult and engage communities in identifying outcomes. Currently outcomes often don’t focus on the local issues that matter most and there is poor priority setting processes in place. These outcomes are largely set to meet the public partners priorities, can be unambitious and still driven by output based thinking and targets. To ensure the right outcomes are being identified it is crucial that there is more involvement from communities and the third sector in the setting and prioritising of outcomes from the earliest possible opportunity and throughout the process. The third sector’s connections with communities must be better utilised to identify local needs and aspirations. This should be a participative process which can show clear links between the areas identified by communities and the outcomes that are developed and prioritised. Q54 Do the proposed duties of the CPP support effective community engagement and the involvement of the third and business sectors? What other changes may be required to make this more effective? Community planning to date has been largely a top down exercise with poor links to the community. Effective engagement can take place at the local partnership level but the relationships with the strategic boards are not sufficient to influence decision making. Third sector representatives on community planning structures are often seen as substitutes for participative approaches, proper community engagement or co-production of services involving people and their communities. The third sector can offer solutions which address these failures and ensure that there is more opportunity for communities to influence the setting of outcomes and to showcase innovative solutions. They can help to develop participative democratic approaches which bring people back into contact with the public sector and help people have real influence over the decision making processes that affect them. To improve community planning we must build on good practice examples of partnership working which can be replicated across CPPs. Both third sector and statutory agencies are often at the forefront of producing exemplar projects, responding quickly to change and working closely with the people they support to deliver positive outcomes.  We must learn from what made these projects successful, particularly where they involve partnerships between third sector and statutory agencies. We can then use this learning to nurture similar initiatives in other areas; up-scaling, replicating and adapting where needed. Q58 Local authorities are currently responsible for initiating, facilitating and maintaining community planning. How might the legislation best capture the community leadership role of Councils without the CPP being perceived as an extension of the local authority? Currently the chair of a CPP is often the chief officer at the local authority which can make it difficult for the CPP to properly hold the local authority to account. To remedy this problem, legislation should seek to ensure that the chair of the CPP is not a member of the local authority’s senior executive. Q59 How can the external scrutiny regime and the roles of organisations such as the Accounts Commission and Auditor General support the proposed changes? Does this require changes to their powers or functions? Audit Scotland could examine in more detail the relationship between community engagement and outcome setting and strategic decision making. Assessing the effect of engagement on decision making would give a clearer picture of how influential community engagement is.

Allotments

We support the proposals outlined for the provision of allotments by local authorities. Underused and unused land is one way of meeting the demand for growing spaces but sites must be suitable and free from contamination to be viable. This means prioritising and setting aside uncontaminated sites for use as allotments or community growing spaces. The use of land for therapeutic projects, such as the models developed by the care farming, therapeutic gardening or the men’s sheds movements should also be supported by local authorities, both as a way of making better use of assets and also as a part of a support for wellbeing and early intervention strategy in partnership with NHS and other agencies.

Scotland Performs – embedding the outcomes approach in legislation

Q70 We invite your views on this proposal. We are supportive of the proposal to embed Scotland Performs and the National Performance Framework in legislation. This could improve accountability of reporting mechanisms while offering greater opportunity for more people to become involved in the process.

Subsidiarity and local decision-making

Q71 Given the actions that the Government and others already take to enable and support local democracy, together with the additional measures proposed in this consultation, are there any other actions we could take to reflect local democracy principles that would benefit communities? It is important to recognise that local democracy is not the same as local government. Local representative democracy and participative democracy, where people associate directly to making change happen, act in concert to check and balance each other. Elected representatives need to nourish and support the role of community organisations – not see them as a rival. The third sector in many ways, in many forms and at many levels is an expression of communities in action. For the third sector, people who come together to work on a shared cause for the benefit of others are the lifeblood of a modern participative democracy. This 'civil society' is one of the key foundation pillars of a modern fully functioning democracy. By far the biggest share of this activity takes place at a geographically local level. Therefore participation in all its forms is a core element of any local democracy. It is essential therefore that the other pillar of a modern democracy, the electoral system, plays a supportive role in protecting, nurturing and fostering participation. This is not about engaging communities in the agendas of the politicians. It is about creating the right conditions within which community action and the participative democracy that goes along with it can flourish. In Scotland, this also means that our representative democracy, particularly at the local level, needs to organise itself in a way which best supports this participative element.

Conclusion

To enable the empowerment of more people and communities we need to dismantle barriers and promote a culture where community initiatives are welcome and supported. We are supportive of the introduction of proposals for transferring assets to communities from public bodies but are disappointed that an asset register has not been legislated for. Bringing Community Right to Buy legislation to all communities and improving the processes involved in the Land Reform Act will be an important step towards greater community ownership and empowerment. We are disappointed that Participatory Budgeting has not been included as this could give communities a direct say in decisions that affect them.  Empowered communities are vital to improving wellbeing, reducing inequality and tackling the financial and demographic challenges ahead. For this to be successful, it must be owned and led by communities with the public sector and government in a supporting and enabling role.

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