Executive Summary

1. The Report commences with an Introductory Chapter that summarises the problems with the current arrangements identified during Stage 1. It explains how the search for solutions has, for the purposes of Stage 2, moved away from the ideas for radical change outlined in the earlier Report towards a concentration on ideas for improving the current arrangements. This provides the context for the Terms of Reference. Options to change the concept of the JNCC as a committee of the country agencies were not to be examined for the purposes of this Stage, but more minor legislative changes could be considered.

Chapter 1: Improved Interpretation of Special Functions

1. This covers the first set of terms of reference, which are:
   
   
   "To develop an interpretation of the special functions of the Councils set out in S 133 of the Environmental Protection Act in the light of the devolution, that commands a consensus among the relevant components of Government.
   "This needs to take account of the JNCC's Agreed Statement of Strategic Direction"
   
2. The conclusions are that:

• the special functions are drawn widely enough to cover all the advisory services which the UK Government and other customers might require across the whole range of its nature conservation responsibilities

• they are, in particular, wide enough to enable the JNCC (as a GB organisation) to advise on matters affecting Northern Ireland without legislative change (although making the JNCC into a UK-wide organisation would require primary legislation)

• there is no evidence to suggest that the JNCC is carrying out functions which might better be carried out by someone else, although Scotland and Wales may well seek advice from their own country agencies on some of the matters on which the JNCC advises the UK Government

• the JNCC may lack the experience or competence to carry out certain roles, although this might be remediable if the UK Government wanted them to develop a wider expertise

• even if the JNCC were not the appropriate body to provide advice on some matters, it may have a role in commissioning or co-ordinating input from others

• the prime focus of the JNCC has been, and should remain, to help Government with the development of policy through the provision of underpinning scientific advice based on its essential work of gathering information

• it also has a vital role to play in gathering intelligence about the development of nature conservation policy across Europe and of playing an active part in identifying and keeping Government abreast of emerging issues

• the Committee undoubtedly has the potential to contribute significantly to Government thinking by developing its own ideas, making use of its independent membership to help broaden the scope of its strategic deliberations. It also has a potential role as the ambassador in Europe for new ideas that are relevant to its role, once Government has agreed these.
  

1. The Report suggests, however, there are potential constraints on the ability of the Committee to fulfil all the roles that the UK Government might require. In particular, the role of the country agencies in providing advice both to the UK Government and to their respective sponsor administrations could create possible conflicts of interest following devolution. Although Scottish Executive and NAfW officials suggest that few difficulties have arisen so far, Northern Ireland officials are not so sanguine. Since the risks flow from the fact that the JNCC is a committee of the three GB country agencies rather than an NDPB, no recommendation can be made for addressing this problem within the constraints of the terms of reference.
   

1. It is recommended that the JNCC should draw up a revised version of its Statement of Strategic Direction to address points of minor concern noted in Annex A. It should then seek final endorsement from Government customers (including the devolved administrations). In the light of this, it should consider drawing up an overall mission statement and agreeing this with Government also.

Chapter 2: Staffing Arrangements

1. The terms of reference here are:
   
   "To develop, in consultation with the country councils, proposals for arrangements enabling common terms and conditions and security of employment for JNCC staff.
   "In particular, to report on work being undertaken by the country councils to provide common terms and conditions for the staff they make available to carry out the work of the JNCC within its Support Unit, on a basis which is fair to other country council staff, particularly those carrying out the same functions on a 'lead agency' basis.
   "To make recommendations which take into account the legal implications of any change and the impact it might have on the delivery of functions and the cost of carrying them out."
   
2. The options for harmonising the terms of staff working within the Support Unit are:
   

• Option 1: staff continue to be employed by the three country agencies separately, in accordance with their own terms and conditions, but receive ad-hoc allowances to achieve harmonisation with terms and conditions negotiated by the JNCC for Support Unit Staff

• Option 2: staff continue to be employed by the three country agencies separately, but are employed by them directly on terms and conditions negotiated separately by the JNCC for Support Unit staff

• Option 3: all staff are transferred to one of the three country agencies (if not already employed by it) and employed on the same terms and conditions as other staff working for that agency

• Option 4: all staff are transferred to one of the three country agencies (if not already employed by it) and employed by that agency on terms and conditions negotiated separately by the JNCC for Support Unit staff

• Option 5: all staff are transferred to a new company limited by guarantee and employed by that company on terms and conditions which it negotiates separately for its staff

• Option 6: all staff are transferred to a new corporate body, established by statute to employ staff on its own terms and conditions, which supports the JNCC.

1. Option 6 is considered the most likely to resolve the staffing issues, and it is recommended that this option is explored further between the country agencies, the JNCC and the Support Unit staff. However, it would require primary legislation.
   

1. In relation to options 1 - 5, a number of barriers to harmonisation are identified. These include problems, which might otherwise arise if, as a result of harmonisation within JNCC, unjustifiable differences arose between JNCC and country agency staff. Options 4 and 5 appear to have the most merit, but neither would avoid all risks. Although arguments might be mounted to successfully defend any legal challenge, the JNCC would be still a committee of the country agencies and, even under option 5, the country agencies would remain responsible in law for providing it with staff and financial resources. Staff would therefore inevitably make comparisons, and the country agencies would need to continually have regard to the position of JNCC staff whenever they renegotiated their own staff terms and conditions. This might prove an unwelcome restriction on their autonomy.
   

1. The Report sees more advantages in option 4 than option 5, assuming that the latter can be achieved at all under existing powers. If primary legislation were needed, option 6 is considered clearly preferable to option 5. It is recommended that both options 4 and 5, as well as option 6, are explored further by the country agencies and the JNCC.
   

1. In view of JNCC staff's concerns about the urgency of change, and the potential disruption for management of adopting interim solutions, it is recommended that the Government makes clear its intentions in relation to the possibility of legislation to create a corporate body (either under option 6, or by creating an independent NDPB to replace the JNCC entirely, as recommended in the Stage 1 Report) if and when a suitable opportunity arises. The Government is urged to consider all the arguments in this Report before coming to a final conclusion.

Chapter 3: JNCC Funding: Reserved and Devolved Functions

1. The terms of reference here are:
   
   "To consider what services are to be provided by the JNCC primarily on behalf of UK Government Departments in respect of their reserved functions, rather than jointly on behalf of the UK Government and the devolved administrations.
   
   To make recommendation on who should pay for these and through what mechanism"
   
2. The Chapter sets out arguments for and against treating funding for JNCC services relating to the UK Government's reserved functions on the same basis as that relating to devolved matters. It suggests that, even if it were considered that JNCC core costs in respect of devolved functions should be shared, it is difficult to see why costs attributable to the UK Government's reserved functions should be. This would make the UK Government reliant on the funding decisions of the devolved administrations for the independent advisory services it requires, and there might be legal or constitutional problems. The option of funding reserved functions separately is not favoured because of the difficulty of distinguishing between the two sets of functions and to assign costs to each.
   

1. In view of this, recommendations are that:
   

• all JNCC services should be funded by the UK Government on behalf of all three GB administrations jointly. This would remove any need to draw distinctions between reserved and devolved functions

• if that is not acceptable, and funding must be shared, it should be for UK Ministers to decide in the first instance whether they are content for services which relate to their reserved functions to be shared too, given the possible risks, assuming that this is what Ministers for the devolved administrations want and that there are no legal objections.

• if such costs in relation to reserved functions are to be shared, all payments to the JNCC should be made through ring-fenced grant-in-aid paid via the individual country agencies

• if costs in relation to reserved functions are to be funded by the UK Government alone, but other costs are to be shared, the former should be paid via English Nature's grant-in-aid in addition to any funding required by English Nature

• in these latter circumstances, any formula for sharing costs between the three GB administrations should be applied after taking account of the separate contribution

• if any costs which are currently shared are now to be funded by the UK Government alone, an appropriate transfer of resources should be made by the devolved administrations to the UK Government. The amount should reflect the broad balance between the cost of services in respect of reserved and devolved functions.

Chapter 4: Northern Ireland

1. Two terms of reference are relevant to the position of Northern Ireland within the special arrangements. Since they are inter-related, they are dealt with together:
   
   
   "To identify what legislative change would need to be made to provide full voting status for Northern Ireland representatives"
   
   "To consider what services can, and should, be provided by the JNCC on behalf of Northern Ireland Ministers within the ambit of the special functions, and to make recommendations on who should pay for these and through what mechanism."
   
2. This Chapter suggests that the UK Government stands to gain a lot from any strengthening of the position of Northern Ireland members within the JNCC. Voting rights could only be granted if NI appointees were independent of NI Ministers. The Council for Nature Conservation and the Countryside (CNCC) might be asked to put forward members. However, giving them voting status would require primary legislation. This is not considered worthwhile unless it was part of a package of reforms that also strengthened the representation and role of independent members on the Committee. This is considered further in Chapter 9.
   

1. The Chapter suggests that it would be counter-productive to impose a significant additional cost on Northern Ireland in order to secure its greater participation in the work of the JNCC. For this and other reasons concerning the practical implications of formulaic sharing options outlined in Chapter 6, it is not recommended that NI should be brought into any formula for sharing the costs of JNCC functions. Unless the UK Government agrees to take over all JNCC funding of core services, NI should instead continue to contribute separately to the marginal costs of common services that are of particular benefit to the Province.

Chapter 5: Grant-in-aid or Direct Charging?

1. The relevant terms of reference here are:
   
   
   "To consider whether the costs of services provided by the JNCC should be channelled through allocations of grant to the respective country councils in respect of those functions, or whether there are ways that funding could be direct"
   
2. The Chapter considers the arguments for and against the JNCC charging particular Government Departments directly for services rather than receiving the bulk of costs through grant-in-aid. It recommends that:
   

• any need for funding in respect of the mainstream JNCC services required by the UK Government should be met by DEFRA through grant-in-aid rather than through ad hoc direct funding arrangements with other UK Government Departments

• all demands for JNCC services should be considered alongside each other as part of the JNCC's corporate planning cycle

• any significant demands by other Government departments or other customers for ad hoc work which arise outside the main programme should be carefully co-ordinated by the JNCC so as not to affect the achievement of core objectives

• DEFRA should be consulted and take the lead in agreeing with the customer departments and the JNCC how the costs of such ad hoc services should be met.
  

1. It is suggested that, although DEFRA might wish to consider the scope for internally re-charging other Government departments for the costs of services it funds through grant-in-aid, this would simply add to the administrative complexity of the arrangements for DEFRA for no clear reason.
   

1. Although direct charging for core services is not recommended, it is suggested that the possibility of direct charging of Government departments by JNCC for unplanned services outside the agreed core programme should not be ruled out. However, there need be no presumption in favour of this option, especially if the service is likely to become an ongoing core function.

Chapter 6: JNCC funding: Main Programme

1. The relevant terms of reference here are:
   
   
   "To consider what services are to be provided by the JNCC jointly on behalf of the UK Government and the devolved GB administrations. To make recommendation on how the cost of these should be divided up amongst the three countries of GB.
   
   " To take account of any contribution payable by NI Ministers or otherwise in respect of services which are common across the UK."
   
2. This key Chapter on mainstream funding for the JNCC explores a number of options for sharing the costs of its core functions between the UK Government and the devolved administrations. The position is complicated by the need to take into account the possibility of certain services being paid for in different ways from others, in particular:
   

1. The Chapter assumes that, if recommendations in the other Chapters dealing with these matters were followed, there would still be a significant number of core functions remaining which would continue to be met through grant-in-aid. It therefore explores whether and how funding for these functions might be shared between the UK Government and the devolved administrations and chanelled to the JNCC.
   

1. The options considered are:
   

1. The recommendations are that:

• core funding for the main programme of JNCC functions should continue to be provided through grant-in-aid rather than direct charging

• the UK Government should take full responsibility for funding all the JNCC's core functions, as agreed with the JNCC and the devolved administrations, in order to ensure that it gets the advisory services it needs (Option 2)

• In order to allow this, Scotland and Wales should make an appropriate transfer to DEFRA of the resources they currently pay to JNCC for these core services

• payment of grant should be ring-fenced for the credit of the JNCC and paid via English Nature (whose Chief Executive acts as Accounting Officer for the JNCC on behalf of the three GB country agencies)
  

1. The Chapter suggests that the options for sharing costs would all seem to have significant weaknesses. A rigid formula could impact adversely on the UK Government's ability to obtain the services it requires, yet allowing flexibility could result in disputes and problems of resource allocation. Of the sharing options, sub-option 1(d), whereby the country agencies would only pay the marginal costs of services identified as especially benefiting them (as in the case of NI's contribution towards common core programme costs) is the only one considered worth pursuing further.

1. If a formulaic sharing approach is favoured, it is recommended that the current funding ratio of 4:2:1 is retained for the GB agencies, with NI continuing to pay the marginal costs of any common services that it benefits from through a separate service level agreement.

Chapter 7: JNCC funding: Direct charging of non-government customers

1. The terms of reference here are:
   
   
   "To consider how any services provided by the JNCC outside its main work programme, on behalf of individual country agencies or other non-governmental customers, might be funded if charging for such services were considered appropriate, and to make recommendations"
   

1. This Chapter suggests there is no strong case for direct charging by the JNCC in respect of any of the core services it provides for the country agencies, the NGOs or the general public. The costs of essential work that the JNCC carries out for the public as a whole, in furtherance of Government policy objectives, should be met through grant-in-aid funded through general taxation.
   

1. In the light of this, it therefore recommends that direct charging should only be considered:
   

• in the case of the country agencies, for funding outside the core JNCC programme

• for the NGOs and the public, in cases where the individual demand for services is significant, especially where it is not meeting any clear policy need of the JNCC's main customers.
  

1. It suggests that reasonable charges should also continue to be made for publications and similar outputs which are costly to produce. These should be levied at a rate that is sufficient to avoid profligate and wasteful use but not so high as to discourage dissemination to a wide public audience.

Chapter 8: JNCC funding: Corporate Planning

1. The relevant terms of reference are:
   
   
   "To investigate and make recommendations for putting funding and planning on a better footing by agreeing a 3-year rolling programme, and of strengthening the link between the service provided and funding
   
   "To take forward the proposals in the Stage 1 report for a Corporate planning process, which includes an annual forum of Government customers, including the devolved administrations.
   
   "In particular, to draw up a timetable for action by the JNCC and the country agencies in developing their work programs and for submitting these to the relevant administrations in time for proper consideration of priorities and overall funding implications before plans are finalised"
   
2. This Chapter sets out in broad terms a suggested timetable for agreeing the JNCC's corporate plan under the main funding options considered in Chapter 6. This demonstrates the way in which JNCC funding would be determined under a three-year rolling programme in the same way that the corporate plans of individual country agencies are now, so strengthening the link between Government and the JNCC and improving service delivery for Government customers. This process would be further enhanced by adoption of the Stage 1 recommendation for a cross-cutting Government committee to scrutinise and prioritise expenditure which the Report re-iterates.
   

1. The Chapter also shows that funding under a formulaic sharing approach would be more likely to give rise to disputes in the determination of allocations under each Comprehensive Spending Review and hence make the process more complex. Although funding under option 1(d) of Chapter 6 would be better, this option would have other drawbacks as mentioned in that Chapter.
   

1. In the light of this, funding option 2 is recommended as the one which would best put JNCC funding on a sound footing.

Chapter 9: JNCC constitution: role of independent members

1. The role of Northern Ireland representatives on the Committee is considered in Chapter 4 as outlined above. The relevant terms of reference for this Chapter are:
   
   "Building on work already done on this within the JNCC, to produce an agreed definition of the role of the independent members."
   
2. In summary, I recommend the following changes:
   

• the Chairman of the JNCC should have the same status as the individual country agency chairmen. In particular, he should have the same degree of access to Ministers and senior Government officials

• the JNCC Committee should urgently address the potential role of its independent members and how they might be brought more firmly within the JNCC's decision-making process, eg through involvement in working-party groups

• Government should discuss with the Chairman the potential for independent members to meet key Government officials (especially scientific advisors) and to participate in high-level meetings and working groups both to enable Government to tap their expertise and to help them develop their own knowledge and networks of contacts

• consideration should be given to enhancing expertise on the land use policy implications of nature conservation when future appointments to the JNCC Committee are made, so that Government receives advice on this which is independent of that of the individual country agencies

• the Committee should encourage independent members to gather intelligence from other sources such as the Research Councils, academic bodies, NGOs and through the development of contacts within Europe

• Government should ensure that the country agencies make full use of the independent JNCC members to provide a wider perspective and discourage the agencies from duplicating this resource within their own individual agencies

• Committee meetings should continue to be held at least quarterly in order properly to consider progress on the work programme and to ensure that sufficient time is given to the discussion of issues before they are finalised

• systems of delegation should be put in place to ensure that the Committee sees and approves outputs submitted to Government in its name

• the Committee should consider how it can improve the sense of corporate identity of the Support Unit Staff, encouraging a position where the Committee is seen as the employing body with overall responsibility for their terms and conditions, even though formal responsibility for these under the current arrangements rests with the three country agencies jointly

• if the opportunity for legislation arises, the balance of the Committee should be altered to give the independent members an overall majority
  

1. The Chapter sets out a number of reasons why the in-built majority of the three GB country agencies on the Committee might be considered unhealthy. However, it notes that any change which removed this majority would call into question the extent to which the Committee could still be regarded as a joint committee of those agencies (other than in name). This might make it unacceptable to the country agencies, although it was difficult to see what arguments they might have against it in principle.

Chapter 10: Conclusions and summary of recommendations

1. In view of the disparate nature of the issues considered in the Report, this Chapter brings the conclusions together in one place with a final commentary. In a final summary it picks up on the issue mentioned at the end of Chapter 9 (see previous paragraph) which illustrates the tension at the heart of the current arrangements. It suggests that if the UK Government wants an advisory body that is more than just the sum of the country agencies, it is difficult to see why, if the opportunity for legislation arose, it would want to keep the JNCC as a joint committee of the three agencies. If it does not want such a body, then it is difficult to see why it would want to keep the independent Chairman and members, whose role is likely to remain marginalised unless their voice can clearly be heard.
   

1. It suggests that the JNCC is, in fact, neither one thing nor another but sits uneasily on the fence between two quite different models. Many of the changes recommended in this Report would, if adopted, push it firmly in the direction of becoming an NDPB in all but name, without altering the relationships between the JNCC and the country agencies any more than is strictly necessary. As the Stage 1 report suggested, it is the fact that the JNCC is a committee of the country agencies that lies at the root of many of the problems that have been identified. However, with the goodwill of all concerned, many of these weaknesses can be mitigated, even if not removed entirely. It is hoped that the above package of reforms would achieve this.

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