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Environmental Levy on Plastic Bags (Scotland) Bill: Stage 1
I welcome members to the 24th meeting this year of the Subordinate Legislation Committee. I have received apologies from Adam Ingram.
The bill contains several delegated powers. The first is in section 1(2); it establishes a levy on the provision of plastic bags and is subject to the affirmative procedure. The supporting argument is that increases in the plastic bag levy should be made without resorting to primary legislation. In addition, use of the affirmative procedure will ensure extra parliamentary scrutiny. Are we happy with that?
The second power is in section 2(4) and is about changing which bags are exempt from the levy. Section 2 identifies those bags that are subject to the levy and those that are exempt. The powers in sections 2(4)(b) and 2(4)(c) allow ministers to amend the scope of the exemptions. Given the fairly restricted manner in which the powers can be exercised, and given that they are exercisable subject to the affirmative procedure, there appears to be no need for concern, but I ask members for any other points.
I have a general point. The bill uses what I believe are described as Henry VIII powers, which would allow the bill to be amended by subordinate legislation. Why was the bill drafted in that way? The bill provides for eight different subordinate legislation powers, which implies that it contains a large number of provisions that may require to be changed over time. If that is the case, logic implies that perhaps the bill should be an enabling bill, and that all the provisions should be changed annually—for example in line with inflation—by Executive direction. I query why the bill has been drafted in this way, rather than as an enabling bill, with all the prescriptive measures and detail being included in subordinate legislation, rather than in the bill.
That is a good point, and there is no problem with putting it in the letter to Mike Pringle. Obviously, more specific questions might be answered by the memorandum, to which I am sure Mike Pringle will allude. However, it is perfectly acceptable to ask your question.
I have a point on section 2(4), which allows only for removals from the list of exemptions. We should get clarification from Mike Pringle as to why the power goes in only one direction and not both. I presume that it is a policy matter, but we should seek clarification from him.
That was the other point that I was going to raise. If there are no further points, we move on to section 4, on registration with local authorities, which obliges a prospective supplier to register with the local authority for the area in which the bags are supplied. It sets out the information that the supplier must give when registering under section 4(1). Section 4(3) confers a power on ministers, by regulation subject to the negative procedure, to make further provisions for registration. Are there any questions? If not, are we content with that?
Section 5 is on provision for returns and payments, and states the requirements that are to be placed on suppliers when submitting their returns and payments of the levy to the local authority in their area. Section 5(5) confers powers on ministers to make further provisions by regulation in relation to the returns that are to be made and the times and methods of payment. The power is subject to the negative procedure. Are there any further points? If not, are we content?
Section 6 details provisions for record keeping, and confers a duty on suppliers to keep accurate records of the number of non-exempt bags that are provided to customers and the amounts of levy collected. The mind boggles as to how they will do that. Section 6(3) allows ministers, by regulation subject to the negative procedure, to make further provisions as to the records that are to be kept and the form and manner in which they are to be kept. Are we happy with that, or are there any further questions?
We should ask why the period of five years was chosen. It might be helpful for that provision to be further explained, because on the face of it keeping all that information for a minimum of five years would be an onerous and bureaucratic task for businesses. Maybe Mike Pringle could explain the reasons for that provision and what exactly he expects businesses to keep.
If there are no other points to raise, that course of action is agreed.
Section 8, on the power to issue guidelines on the allocation of the levy, provides that local authorities must spend the money that is raised by the levy only on environmental projects, meeting criteria that are set out in guidance that is to be issued by ministers. Ministers will be required to issue such guidance, as the local authority obligation to allocate the levy to environmental projects will be unworkable in the absence of such guidance; therefore the section creates a power to issue guidance, but also an obligation to do so. The question is whether the power to issue the guidance might more appropriately be set out in a statutory instrument. The committee will remember that normally one can have regard to guidance, whereas the bill sets out that the guidance will be more or less mandatory. Is the bill the most appropriate method of doing that?
We should ask about that, and ask for the reasoning behind choosing this particular method, rather than setting out the provision in an instrument.
We could also tack on to that the observation that if a statutory instrument was used it would be subject to parliamentary scrutiny.
We move to section 14, which enables local authorities to issue civil penalties when a person fails to do the things listed in section 14(1). Section 14(3) states that the penalty will be £100. Section 14(7) confers on ministers a power, by order subject to the affirmative procedure, to increase the amount of the penalty. The memorandum argues that the power to increase the penalty is likely to be exercised to reflect inflationary increases, which is an issue that Ken Macintosh raised earlier. As it is a Henry VIII power, it ought to be subject to the affirmative procedure. That seems reasonable. I take on board what Ken said originally about the general question. Are we agreed?
That brings us to the end of agenda item 1. We look forward to your responses, Mike.
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