Net Zero, Energy and Transport Committee

Meeting date: Tuesday, February 7, 2023

Official Report 745KB pdf

---

Subordinate Legislation

---

Environmental Regulation (Enforcement Measures) (Scotland) Amendment Order 2023 [Draft]

Item 2 is consideration of a draft statutory instrument. I welcome Lorna Slater, the Minister for Green Skills, Circular Economy and Biodiversity. Thank you for joining us today. I also welcome from the Scottish Government Carolyn Boyd, who is a solicitor; Charles Holmes, who is head of extended producer responsibility; and Tirion Rees Davies, who is senior policy officer for extended producer responsibility.

The instrument is laid under the affirmative procedure, which means that Parliament must approve it before it comes into force. Following the evidence session, the committee will be invited, under the next agenda item, to consider a motion to approve the instrument. I remind everyone that officials can speak under this item but not in the debate that follows.

I invite the minister to make a short opening statement.

Thank you, convener. We want to reduce packaging waste in Scotland and to make sure that the packaging that we need is easier to recycle by introducing extended producer responsibility, or EPR, for packaging. That is a United Kingdom-wide initiative and we are working with the other UK Administrations on it.

You are to consider an order that makes provision for civil sanctions to be used by the Scottish Environment Protection Agency and to consider regulations that will require producers to collect and/or report data. Before I say a few words about those, I want to provide some information and context around EPR.

When packaging EPR is fully in force, local authorities will receive the full net cost of running efficient and effective collection and disposal systems for household packaging waste. That will be paid for by producers. Standardised labelling with a clear “Recycle” or “Do not recycle” message will make it easier for people to dispose of their packaging responsibly, and producers will have an incentive to make their packaging easier to recycle.

I will refer to the Packaging Waste (Data Reporting) (Scotland) Regulations 2023 as “the data regulations”. They will make different producers collect and/or report on data about the amount and types of packaging that they handle. That will apply from March this year. The data will be used to calculate the fees that they will have to pay in 2024, which is when we intend packaging EPR to come fully into force. Producers’ data collection and reporting obligations will depend on the nature of their businesses, their turnover and how much packaging they handle. Most large producers will have to report data twice a year. Smaller producers will not be required to report until 2024, and the smallest will not have any collection or reporting requirements.

Similar instruments are being considered by the other UK Parliaments right now to ensure a consistent approach. The intention is that they will all be revoked at the end of 2023 by a UK statutory instrument that will establish the scheme and make provision for data reporting for future years.

The other matter is the enforcement amendment order. The Environmental Regulation (Enforcement Measures) (Scotland) Amendment Order 2023, which I will refer to as “the order”, is unique to Scotland. It provides SEPA with access to civil enforcement measures such as fixed and monetary penalties for two instruments: the data regulations, which we have just discussed and which you are considering today, and the Deposit and Return Scheme for Scotland Amendment Regulations 2022—the DRS regulations—which added a new offence. That gives SEPA a flexible and proportionate set of tools to enforce the regulations.

In conclusion, packaging EPR will help to reduce greenhouse gas emissions by an estimated 2.2 million tonnes by 2023 and will provide an estimated £1.2 billion across the UK each year to local authorities for managing packaging waste.

Actually, that 2023 date cannot be right. We will have to correct that date.

The instruments are a crucial step in making that a reality, and I urge you to support them.

I am sorry, minister. I missed that aside.

My notes say that the EPR will reduce greenhouse gas emissions by 2.2 million tonnes by 2023, but I do not believe that that can be correct.

I think that it is a typo, minister. It has been established over the 10 years, so it would be from 2024 to 2033, I think. We can check that.

Thank you.

Thank you for clarity on that.

There are questions from the committee.

Good morning, minister. I am trying to understand the order, by which I mean the Environmental Regulation (Enforcement Measures) (Scotland) Amendment Order 2023; you called it “the order”. You are asking the committee to advise Parliament to pass a Scottish statutory instrument that allows penalties to be levied on a scheme that is not yet in place, has been delayed twice, may be further delayed, has changed already and, this week, has been the subject of reports of significant concerns and flaws. If that is all correct, are you therefore comfortable that this is the right way round of doing it? Should the actual scheme not be addressed to get that right before you start bringing in legislation to enforce in the breach?

Is the member referring to the deposit return scheme?

Yes.

When the regulations were passed, the deposit return scheme needed the order to go along with it so that they could be enforced. Parliament has already passed the regulations to make the offence, but SEPA now needs the powers to enforce that. I can go into it in some detail if the member would like.

The committee will recall that, last February, the Parliament passed the Deposit and Return Scheme for Scotland Amendment Regulations 2022. The regulations amended the original DRS regulations to support the delivery and successful operation of the DRS. In particular, they created a new requirement for persons selling drinks in Scotland, which are in in-scope packaging but not intended for sale in Scotland, to a person other than a consumer, to disclose, at the point of sale, that the items are not intended for sale in Scotland and cannot be returned for a deposit. Failure to do so would be an offence.

The new requirement was brought in after the industry raised the possibility of a grey-market operator sourcing products not intended for the Scottish market—therefore, they have not paid the deposit—and selling them to Scottish retailers, fraudulently charging the deposit and pocketing it. In cases where a distinct label is not adopted, that could pose a risk to the finances of the scheme, as well as undercutting honest wholesalers who have declared where their goods would be sold.

Minister, forgive me. You talked about labelling, for example. My understanding is that there is still some ambiguity over what labels might have to look like. My question, therefore, is this: is it not better to deal with things such as those ambiguities, rather than address the fines that will be levied when you have not even done the up-front basics of sorting out ambiguities such as labelling?

The regulations passed by Parliament do not specify labelling in any way; that is entirely for the industry to decide. We have no regulations or legislation about labelling.

Minister, you mentioned labelling. I am simply pointing out that there are ambiguities about the scheme, yet you are giving time to dealing with enforcement and fines. Are you going to respond to that point, or shall I move on to another question?

The members of the scheme may choose to put in labelling that would defeat the fraud. If they do not put in labelling, there is a risk of a grey market developing. When the regulations were passed last year, industry asked us to put the offence into them. It already exists as an offence, but, when you have an offence, you need somebody to enforce that offence. The offence already exists—it has already been passed by Parliament—but it is no good having an offence without having an enforcer. The order gives SEPA the power to enforce the offence.

The reason why we are doing this now instead of at that time is merely efficiency. We are bundling it together with the other order that we are bringing in. When we were creating the regulations, we knew that we would need to make the matching order for SEPA at the same time. We just waited until this moment, when another order was coming through, for the sake of efficiency.

Thank you. The second of my questions is about whether you can help me to understand your projections for the number of businesses that will be caught and potentially fined under this. Do you have any projections for how much money you might raise as a result?

Is the member asking about deposit return or extended producer responsibility?

I am staying with what you called “the order”: the Environmental Regulation (Enforcement Measures) (Scotland) Amendment Order 2023.

I do not have any numbers in front of me for exactly how many businesses we expect to fall foul of the offence. The offence relates quite specifically to the practice of sourcing products that are not intended for the Scottish market, not paying the deposit and then selling those products to Scottish retailers, fraudulently charging for the deposit and pocketing it. It would be people who commit an offence, implementing a grey market in those goods and effectively committing fraud, who would be caught out by it. It is an offence. We very much hope that no businesses will operate fraudulently, but any businesses that do will be guilty of that offence.

This is the final question from me at this stage, convener. The SSI—the order—amends the substantive DRS regulations. I can find nothing in the order about what the penalty will be. In the substantive DRS regulations, the penalty is expressed as being a penalty

“not exceeding the statutory maximum”,

but it does not go on to particularise that statutory maximum. Can you help the committee to understand what the penalty is that cannot be exceeded?

There are two separate things there. The penalty was established by the regulations, which have already been approved by Parliament. That is why the order does not mention it. The order simply gives SEPA the power to enforce those penalties that already exist and that are described in the regulations.

Yes, and what is the figure—the statutory maximum—that the penalty will not exceed, please?

Do we have that data in front of us?

I can help the member with that. I will say two things. The first is that the regulations for DRS set out a criminal penalty. This order allows SEPA to use a civil penalty instead, which is often a more flexible tool than going down the criminal route.

The 2015 order that this order amends sets out the values for the fixed monetary penalties. Those are set at £300, £600 or £1,000, depending on how serious the offence is assessed as being: whether it is low, medium or high seriousness. That is set out in the order. It provides for a variable monetary penalty. SEPA can set the value of that penalty when it imposes it, up to a maximum of £10,000 in this case. There is also the option of accepting an enforcement undertaking, which would be made by the person.

You therefore have the criminal sanctions, a fine of up to £10,000 on summary conviction or an unlimited fine on conviction on indictment, and we are adding the civil penalties, which are those more flexible penalties about which I just spoke.

I understand. Thank you.

Good morning. I think that we all agree that we want to move at pace towards a circular economy, so I welcome the clarification that we have had this morning.

Liam Kerr covered much of this but, in your opening remarks, you talked about SEPA needing a flexible and proportionate set of tools. I listened carefully to your exchange with Liam Kerr. When it comes to the order, what discussions has the Government had with SEPA about how it intends to use the tools in practice? When the word “flexibility” is used, that can often mean uncertainty for businesses, especially when there is a scale, as there is here, of what can be considered non-compliance. How much discretion will SEPA have in making assessments?

SEPA has extensive experience of acting as the regulator for the existing packaging producer responsibility scheme, which has been in place since 1997. The new orders are part of a phased implementation approach to packaging EPR. Only producers with a turnover of £2 million a year that handle more than 50 tonnes of packaging will have reporting obligations. That is not the same threshold as in the existing system. Therefore, there should not be a significant number of additional producers for SEPA to regulate; it is more or less within what it is already doing.

09:15  

As smaller producers will have reporting obligations from 2024, SEPA will step up its operations to prepare for the full system so that it can accommodate the additional numbers. Once the packaging EPR has gone live, SEPA will be able to recover the cost of regulating the scheme from producers so that it will be fully funded to discharge its duties. What we are talking about is more of an extension of what SEPA already does rather than anything particularly new.

I appreciate that, today, we are looking at the order but, as MSPs, we are all getting emails and inquiries from businesses and producers that still feel a bit uncertain about some parts of the wider legislation. They are not entirely sure of what they need to do to fully comply, but here we are today talking about potential fines. What would you say to reassure businesses that they will have clarity, guidance and support so that we are not just talking about punishment? There is a place for enforcement, but how will we make sure that people have the knowledge and the tools to fully comply?

I assume that the member is talking about deposit and return and the EPR for packaging. In both cases, criminal sanctions are already available to us. With the order, we want to put in place civil sanctions—we want to have that other layer of enforcement so that going straight to the criminal sanctions is not our only recourse. Having another layer in between will allow SEPA some discretion around minor fines and will make the process more efficient. For both schemes, extended producer responsibility will come in for businesses in 2024. We will start the data collection this year so that we know what materials they are producing, and they will start to pay the fees on those in 2024.

Further guidance for producers on their reporting requirements will be published in advance of the regulations coming into force, and we are developing a digital platform to allow producers to register and report their data. That is for the EPR scheme. Governments and regulators will continue to engage with key stakeholders to increase awareness of the new reporting requirements so that we can get the EPR off the ground ahead of the regulations coming into force.

With the deposit return scheme, which, as you know, has been accelerated and will come into place this year, on 16 August, extensive engagement is under way with businesses and stakeholders on the retailer side—the collection of scheme articles side—and with producers. I meet stakeholders and businesses regularly, as do my officials, to work through the details of that. The regulations for deposit and return were deliberately made quite broad to allow industry to find its own solutions. That is what industry had requested, and that is what it has done. This is about industry, ourselves and SEPA working together to make sure that we have the operational schemes ready for the new regime coming into place.

I want to be clear that the enforcement orders are providing that middle level of civil enforcement. They are not adding anything new, because the criminal sanctions would always have been there.

Okay. I have a final question. I want to get this on the record. I think that I heard Charles Holmes say that the fines are £300, £600 and £1,000. Is that correct? Can you give an example of the types of non-compliance that would result in fines of those amounts?

I cannot give an example of that. SEPA has the expertise to enforce. I do not know whether Charles has any additional information on that.

To help the member, the order sets out, for each offence, whether the fixed or variable monetary penalties or the ability to accept the enforcement undertaking apply, and it sets out whether the fixed monetary penalty is set at low, medium or high. We consulted SEPA when we set those. It tends to depend on things such as to what extent dishonesty is an element of the offence.

To take an example, the top line on the data reporting regulations in the order refers to

“Regulation 28(1) (contravention of regulation 14(3)”,

which, I think, is the obligation to report to SEPA if a producer becomes incapacitated and cannot do its job any more. Fixed monetary penalties and variable monetary penalties are available, and enforcement undertakings are also available. That gives SEPA a lot of flexibility on how it responds to that, but the fixed monetary penalty is set low because it is something that is maybe more unlikely to carry an element of dishonesty. You might compare that with regulation 28(4)(b), which mentions

“recklessly furnishing false or misleading information to SEPA”.

That comes with a high fixed monetary penalty because such action is more likely to obstruct the functioning of the scheme and to perhaps involve some dishonesty as well. I hope that that is helpful.

It might also be helpful for the member to note that the order is not about the whole DRS or compliance with it. It is specifically about the new requirement on grey-market operation, which was identified when we passed the amendment regulations last year. The order is about that one particular aspect—the new requirement—because industry raised the possibility of the grey market. We have closed the loophole on that, but we now have to pass to SEPA the powers to keep that loophole closed.

That is helpful. Thank you.

Before I bring in Mark Ruskell, I have to ask you a question, minister. When SEPA came to the committee the other day, we talked to it about its role and responsibilities. It is clear to me and, I guess, to many other people that, after the data hack that SEPA suffered, it has never really got back on its feet and is struggling to regulate various parts of the industry and to retain and use its data, because it cannot access that data.

Are you happy giving SEPA a bit more power to do something else? Are you happy that it has the resources to do that, given that its budget has not gone up? I ask that, because it seems that there is no more money and that SEPA is under pressure and cannot do the job that it is doing at the moment, yet you are giving it something else to do. Will that work?

We have already passed the regulations, so these things are offences. If you are going to create an offence, you need to have a body that can enforce the law on that offence, and that body is SEPA. There is a dedicated team at SEPA for the deposit return scheme. As I mentioned, once the extended producer responsibility scheme has gone fully live, SEPA will be able to recover the cost of that. Therefore, it will be able to use that money to resource itself and to fully discharge its duties in that area.

There is a huge amount of supposition about SEPA generating funds to fund the organisation. What you have said is that SEPA has to do that because it is the one that needs to do it, but what I have said to you is that it does not have the resources and the capability to do its current job. You can say one thing, but the fact of the matter is another. Can you clarify that for me, please?

Absolutely. The point of the EPR scheme for packaging is that it will be self-sustaining. It will allow SEPA to fund itself by recovering the cost of enforcing the scheme. That is built into the EPR scheme. I am happy to pass to Charles to provide more detail.

The minister is quite right. I add that we, as the four nations, are taking this opportunity, on behalf of the four regulators, to build a new information technology system for the reporting of data. The national packaging waste database, which has been online for some time, will be replaced with a new system that is, we hope, a bit more state of the art. I hope that that provides some reassurance.

Thank you. I will keep to myself my views about Government IT schemes, having seen them in operation in the six years that I have been in Parliament.

I want to ask about the equivalent UK regulations. The UK Government decided not to go down a civil penalties route. Can you explain why the Scottish Government’s thinking on that is different?

I can explain our thinking. I do not understand why the UK Government has not taken that option, because it makes sense to me. The data regulations create various offences and already provide for criminal penalties, where those can be prosecuted through the court. That is baked into the regulations. Using the enforcement powers in the data regulations alone means that SEPA’s only option would be to go straight for those criminal offences and refer things to the procurator fiscal. That would mean that any person convicted of an offence would be fined up to £10,000 on summary conviction or, if prosecuted by indictment, given an unlimited fine. That is a big jump to those heavy enforcement measures.

Criminal courts are a powerful tool to address serious wrongdoing. However, it can be time consuming and resource consuming to pursue a conviction through them. Moreover, the results are uncertain and, as members have suggested today, possibly disproportionate if you go straight to the criminal prosecution of someone who commits a minor offence. The civil penalties that we are introducing provide an alternative to criminal prosecution. That means that SEPA can take a much more flexible and proportionate approach, reflective of its expertise as Scotland’s environmental regulator.

Right. Has industry fed back on that?

I am happy to pass to Charles Holmes on that. Have we had feedback, Charles?

I do not think that I have had any specific feedback. However, from my experience of working on the deposit return scheme, I know that industry always welcomes that kind of proportionate engagement with SEPA. I cannot speak for my contacts in industry, but I think that industry tends to welcome the idea that SEPA has a more flexible toolkit so that it does not have to jump straight to criminal sanctions and can be a bit more agile in how it responds to non-compliance.

Right—because it reflects the circumstances of how the offence perhaps came to be. It is a very technical regulation, but that brings me to the end of my questions.

A couple of things arise for me, minister. On the civil penalty, what happens to the money that is raised in fines? Did I hear you tell the convener that SEPA retains it to fund itself?

No, that is not correct. I was referring to the fact that the extended producer responsibility for packaging will require that everyone who produces packaging pays a fee into the scheme and that money will go to fund the scheme. It is not the money from penalties.

I see. What happens to the fines?

I do not know.

The fines are paid into the consolidated fund, so they are available for general public spending. There are three parts. There are the fines; there are—

Forgive me, Charles. First of all, minister, did you just say, “I don’t know”, when I asked you what happens to the fines, just to be clear?

I did, yes.

Interesting.

Charles, you said that it goes into the consolidated fund. Can you explain for the committee what that means in terms of where it has gone and who gets to use it, please?

I might have to come back to the committee on that, to be honest, unless Carolyn Boyd, our solicitor, would like to answer the question. I think that it is the same as saying that they are just available as part of the Scottish Government budget, but I would not swear to that.

I can certainly say that the funds go into the Scottish consolidated fund. We may need to come back to you in writing to provide further information.

I will happily write to the member on that.

I would be grateful.

There are the fines; there are the producer fees, which are charged from 2024 and are paid to the local authorities for running their systems; and the third sum of money is the charge that SEPA and the other regulators can levy on producers to fund their operations. That is what the minister was referring to when she talked about funds accruing to SEPA.

I understand. Thank you. The key point, it feels to me—I appreciate that we will go to debate in a minute—is that the fines raised do not come back to the DRS specifically, perhaps to help that scheme or to help producers or whatever.

Who is the arbiter of whether a breach of the order merits a criminal prosecution or requires a civil prosecution? “Prosecution” is the wrong word, but you know what I mean. Will SEPA be the arbiter of that?

Correct.

Thank you.

I guess the question then is how to appeal it, but that will come out, probably, in further legislation.

Let us move on to agenda item 3, which is the formal consideration of motion—

We can address the question of appeal, if the convener is interested.

We will continue with agenda item 2, so you can tell me how to appeal it.

I will make one point quickly, before I pass over to Carolyn Boyd.

SEPA has guidance that is issued by the Lord Advocate, as the head of the prosecution system, on whether to go down a criminal or civil route. That guidance states that, if it is a particularly significant offence, it would be appropriate to report it to the procurator fiscal who can pursue a criminal case.

Carolyn Boyd can answer the question about appeals.

Where SEPA has made the decision to impose a civil sanction, in accordance with the Lord Advocate’s guidance, it would relay that intent to the party, who can then make written representations in relation to that. That goes to SEPA. If, thereafter, SEPA continues down the enforcement route and imposes the penalty, there is then a right of appeal to the Scottish Land Court.

Okay. That is helpful. Thank you.

We will move to agenda item 3, which is the formal consideration of motion S6M-07583, calling for the committee to recommend approval of the Environmental Regulation (Enforcement Measures) (Scotland) Amendment Order 2023.

I invite the minister to move the motion.

Motion moved,

That the Net Zero, Energy and Transport Committee recommends that the Environmental Regulation (Enforcement Measures) (Scotland) Amendment Order 2023 be approved.—[Lorna Slater]

Are there any contributions from members?

09:30  

I find myself pretty uncomfortable with the idea that we might put this forward to Parliament for approval today. I have heard this morning that we seem to have a DRS—I am talking about the order specifically—that has, for whatever reason, been beset with challenges, yet here we are dealing with what happens in a breach before working out the details of the scheme. I am troubled that—I think that I heard this earlier—the minister does not know what specifically the civil penalty attaches to, has not projected how many will be caught by the measure, has not projected how much might be raised by it and, so, does not know the impact of the scheme. I appreciate that this is subject to clarification, but I think that the fines will go to the Scottish Government pot rather than specifically to help improve and amend the scheme to make it better. For all those reasons, I will struggle, subject to the rest of the debate, to vote for the approval of the SSI.

I think that the minister has been helpful in setting out the specific requirements for the order. Fines going to the consolidated fund is not unusual in such circumstances. The explanation about the attachment of the order to legislation that has already gone through Parliament makes sense. With any new scheme or operation, you need to get your powers in place in advance, and that is what the order does, particularly in relation to what the minister helpfully explained were the concerns that industry had about a grey market. The fact is that SEPA will then have civil penalties and, if we do not pass this order, all we have left is the criminal basis. That explanation was very helpful in explaining that the measure is a response to industry.

The points that Monica Lennon raised—the minister no doubt knows this because she has had correspondence from me and others about the wider DRS—are still issues that need to be addressed to give confidence in six months’ time when the scheme goes live. However, where the specifics of the SSI are concerned, they address industry’s needs and are responsive to its needs because the grey market will harm industry.

The other explanation of the applicability of the similar wider scheme to the rest of the UK, in terms of the packaging, was helpfully set out as well. Like Monica Lennon, I had some queries on points of clarification, and the minister, in response to Monica Lennon’s questions, set out those issues very well. Regardless of our views on deposit return more generally, the order is helpful housekeeping legislation that provides powers to SEPA, as the relevant authority, on civil matters, which is very helpful. The fine levels that were described, namely £300, £600 and £1,000, are helpful in terms of the responsiveness and proportionality that we expect from such a scheme. I do not see any problem in supporting the order.

I do not have much to add. We are all aware that we are having this discussion when we know that public perception and confidence are really important. We heard some robust questions and answers there, and that is important, but, as Fiona Hyslop touched on, it is, at the end of the day, quite a technical order. It might seem counterintuitive to be talking about sanctions when we do not have all the later details, but we know that we need to have not only robust enforcement and deterrents but also opportunities for when stakeholders need guidance. The key things are flexibility and proportionality, and we have had some reassurance on those today. The committee will continue to keep a watchful eye on things.

I do not have much more to add to those points. There is a proportionate approach in the regulations. The introduction of civil penalties makes sense and is in line with the approach that industry wants. The critical thing right now is building certainty with the DRS, and, clearly, some of the public narrative is about undermining it and attempting to show that the scheme will perhaps not be introduced, but I have confidence that it will be introduced and will be a success. The order is an important part of putting in place another part of the scheme to ensure that there is that business certainty and that business knows what is coming and what the penalties will be if there is a failure to apply the scheme adequately.

I have some comments to make. I am deeply concerned that we are asking SEPA to take on further responsibilities when it does not have the resource and the staffing to do so. We are also asking it to take on the responsibilities of, in the minister’s words, funding its operations from within the scheme and of becoming the judge, jury and, as it were, implementer of the fine when it is put in place. I have problems with Government agencies being asked to take on all those responsibilities, especially in relation to a criminal offence.

On the regulations, the minister made it clear that the offences will be known and that it is up to producers to work out what to do to avoid them but that there is a regulation to punish them if they do not do so. To me, that is putting the cart before the horse, and I struggle with that. I have real problems understanding how it will work, so trying to legislate on a small part of it is really difficult for me. It puts me in a corner in which I would rather not be.

Those are my comments. If any other members want to make a contribution, I am very happy to take it.

I disagree with what you are saying about SEPA. Yes, SEPA had difficulties in the past—I have my own views on that—but that may be muddying the waters a little over what we are trying to do. From what the minister said today, a small area needs to be tightened—a loophole. I was pleased to hear that the industry has been engaging on that. From what I can gather from the minister, people in industry are a lot happier with what is being suggested. We have a fair way to go for the whole scheme to come into place. Today is just a small part of that. After hearing what the minister has said today, I am more reassured than I was before, so I am happy to support the motion.

Will you take an intervention?

No. I have finished. Sorry, Mr Kerr.

If you want to come in, you can, Liam—it is a debate.

I take your comments, Ms Dunbar. I suppose we are at opposite ends of the spectrum on SEPA, Jackie, but that is where we are.

If there are no other contributions, I ask the minister to sum up and respond to the debate.

Thank you. It may be complicated for all of us to have both orders at the same time. One order is about the enforcement measures for the data-gathering regulations. We have spoken about that today; and the other order matches a loophole that we closed in the DRS regulations—it does not enforce the whole DRS. Amending the DRS regulations last year, which we did at the request of industry, did three things: it changed the date for DRS, pushing it forward to this year; it closed the grey-market loophole; and it changed how we handle crowlers, which is a specific industry issue. Those were industry requests. We implemented the regulations in Parliament last year, and the order merely joins up with them. We chose to bundle them together for efficiency, but I am afraid that our doing so may have added a bit of complication to our discussion today.

On extended producer responsibility and SEPA, there already is a UK-wide extended producer responsibility scheme called packaging recovery notes, which SEPA manages. That has been in place since 1997. As the four nations of the UK, however, we all want to improve our recycling measures and how we fund them so that local authorities do not have to fund picking up the litter and implementing recycling schemes. We want the polluters to pay. The four nations have therefore agreed to improve our extended producer responsibility for packaging. The first step to that with the regulations today is to collect data on what packaging is out there, so that, when the regulations come into force, we know where to start.

The conversations today are about implementing the civil penalties. The criminal penalties are already in the regulations, so we are not adding anything new; we are adding a more proportionate intermediate layer.

Thank you all very much for your time today.

Will the minister take an intervention?

Certainly.

I agree with you: it is unhelpful or unfortunate, perhaps, that we have both of these orders together. This is the intervention that I was going to put to Jackie Dunbar: how do you deal with the convener’s point about SEPA and resourcing and becoming judge and jury? What is your response to the convener’s challenge?

The order today covers two matters of enforcement. One is the very particular loophole that was already closed on DRS. SEPA already has the job of enforcing DRS. All that we are adding today is the closure of that one loophole—one tiny bit of it—because that was added last year with the amendments. SEPA already has that, and it already has enforcement responsibility for the existing EPR scheme, which is called PRN and has been in place since 1997.

We are not adding to SEPA’s burden; all we are doing, because we have to follow the proper procedure, is matching its powers with the new regulations. It has the powers to enforce the old regulations, which it does adequately and well. If we create new regulations, we have to give it the powers to enforce them. It is a very technical process. Parliament has already passed the regulations; we just need to put in place all the pieces to make them work.

The question is, that motion S6M-07583 in the name of Lorna Slater be agreed to. Are we all agreed?

Members: No.

We are not agreed. There will be a division.

For

Dunbar, Jackie (Aberdeen Donside) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Lennon, Monica (Central Scotland) (Lab)
Regan, Ash (Edinburgh Eastern) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)

Against

Kerr, Liam (North East Scotland) (Con)

Abstentions

Mountain, Edward (Highlands and Islands) (Con)

Motion agreed to.

That the Net Zero, Energy and Transport Committee recommends that the Environmental Regulation (Enforcement Measures) (Scotland) Amendment Order 2023 be approved.

The committee will need to report on the outcome of this instrument in due course. I invite the committee to delegate authority to me, as convener, to finalise the report for publication. Are you all happy with that?

It would be helpful to see what that report says before it is published.

Okay, the report will be circulated to all members of the committee once the clerks have drawn it up.

What will the timescale be for the circulation of the draft report?

The aim is to have the report completed by the end of this week.

I would appreciate the opportunity to have a look at that in advance of the next meeting.

I have said that the committee will see the report in draft before it is signed off, and you can pass comment on that.

Thank you very much, minister, and thank you to all of your officials for attending today.

I will now suspend the meeting to allow for a change of witnesses.

09:44 Meeting suspended.  

09:52 On resuming—