Meeting of the Parliament [Draft]

Meeting date: Wednesday, March 1, 2023

Official Report 1155KB pdf

---

Parliamentary Bureau Motions

The next item of business is consideration of Parliamentary Bureau motion S6M-08065, on approval of a Scottish statutory instrument. I ask George Adam, on behalf of the Parliamentary Bureau, to move the motion.

Motion moved,

That the Parliament agrees that the Environmental Regulation (Enforcement Measures) (Scotland) Amendment Order 2023 [draft] be approved.—[George Adam]

17:48  

I would like to make it clear at the outset that, although I am a member of the Net Zero, Energy and Transport Committee, I am speaking on behalf of my party.

I begin by stating the obvious: the drinks industry is watching the actions of this Government with absolute despair. At the same time as the outgoing First Minister is urging drinks producers to sign up to the deposit return scheme, her three potential replacements are already promising to make changes to it, and Kate Forbes has even warned that the scheme could cause “economic carnage”. However, that does not seem to have discouraged Lorna Slater. The Greens are pressing ahead with the SSI, whether the Scottish National Party likes it or not, which makes one wonder whether the tail is now wagging the dog in this coalition Government.

Parliament is being asked to support an SSI that allows penalties to be levied in a scheme that is not yet in place, that has already suffered two delays, and with which only 16 per cent of producers across Scotland have registered.

At the weekend, the minister did not even know whether the small drinks producers would be exempt for a further year but, today, she appears to want to set up a police force to enforce the scheme. That sounds a lot like putting the cart before the horse—a logistical nightmare that the minister seems to be drawing inspiration from.

I turn to the nuts and bolts of the SSI.

I recognise that the SSI covers more than the deposit return scheme but, since it was agreed by the net zero committee, it has become increasingly clear, as Edward Mountain has highlighted—and no more so than in today’s statement—that more questions than answers remain around the current plans for the DRS. Today, for example, we heard that fewer than 16 per cent of producers have signed up to it.

Will Colin Smyth take an intervention?

No—the member cannot make an intervention on an intervention.

Like the deposit return scheme, the Greens are making the standing orders up as they go along.

We do not yet know whether there will be the delay for small producers that Labour has called for and we do not even know whether there will be an exemption from the United Kingdom Internal Market Act 2020.

Does Edward Mountain agree that the Government should pause the SSI and bring it back when it has the confidence of Scotland’s small producers, with a scheme that will deliver our environmental commitments and—if we are serious about a just transition, which the Greens used to be—will deliver for Scotland’s consumers and small businesses?

I thank Colin Smyth for that intervention, because I clearly agree with him. The deposit return scheme is something that we should encourage, provided that it works properly. That is why, when the SSI came before the committee—and I had a chance to consider its contents—I abstained in the vote on it.

Will the member take an intervention?

If I can finish this sentence, I will take an intervention.

Now, in the cool light of day and having had a further chance to consider it, I no longer consider it appropriate to move on with the proposal.

I thank Edward Mountain for taking an intervention. In his capacity as convener of the committee, can he confirm to the chamber that the Labour Party voted for that SSI when it came to the committee?

I ask Mr Mountain to wind up in his response to that intervention.

I will try and wind up but, as I said at the outset, I am not going to speak in this debate as the convener of the committee; I will speak as an individual with serious concerns.

To be clear, the SSI is making sure that the Scottish Environment Protection Agency has the power to impose penalties and that there is no option for anyone to appeal that process. As I said at the committee, I really question whether it is appropriate to give SEPA the responsibility. Ever since SEPA suffered the data hack, it has struggled to get back on its feet. That impacted the agency’s ability to regulate the industries that, effectively, it should be regulating at the moment. Given that SEPA is under serious pressure, giving it more powers and responsibilities for a scheme that already appears to be a disaster would further compound that disaster.

Next month, this Parliament will have a new First Minister, so Lorna Slater and the Greens might or might not be in government, and the deposit return scheme might be delayed or go through a revamp.

Mr Mountain, I must ask you to conclude at this point, because we are already two minutes over the allotted time.

To conclude, that is why I am not supporting the SSI and nor is my party.

17:53  

The Environmental Regulation (Enforcement Measures) (Scotland) Amendment Order 2023 provides SEPA with access to civil enforcement measures for offences in two existing pieces of legislation—data reporting regulations that enable upcoming reforms to extended producer responsibility for packaging, and the amending DRS regulations that were passed by this Parliament last year, which added one new offence in response to calls from industry. SEPA is already responsible for the enforcement of both EPR and DRS regulations but, currently, when an offence is committed under either set of regulations, the agency’s only option is to report the matter to the procurator fiscal for criminal prosecution.

This technical instrument provides more flexibility to SEPA. It adds those offences to the existing list in the 2015 enforcement order, meaning that SEPA can turn to civil sanctions where appropriate. This makes a substantial difference to SEPA’s enforcement options. Criminal prosecution through the courts takes time and the results are uncertain. Upon conviction for these offences, a court can impose a fine of up to £10,000 on summary conviction, or an unlimited fine on conviction on indictment.

In contrast, the values for fixed monetary policies associated with the civil sanctions—

Will the member give way?

I am going to finish my speech.

The values for fixed monetary policies associated with the civil sanctions are £300, £600 or £1,000, with the amounts of the penalty linked to the seriousness of the offence. Therefore, opposing this instrument means calling for stricter enforcement approaches for businesses than we are aiming to bring in.

I will give members an example. Regulation 23(3) of the Packaging Waste (Data Reporting) (Scotland) Regulations 2023 says that SEPA may give an information notice requiring a person with data collection or reporting obligations to supply data within a set period of time. Regulation 28(5) makes it an offence for the person not to comply with the written notice unless they have a “reasonable excuse”.

With that enforcement measure instrument in place, SEPA has the option of imposing a fixed monetary penalty of £600. Without it, SEPA’s only option to enforce compliance would be to submit a report to the procurator fiscal in anticipation of criminal prosecution. I made that clear to the committee on 7 February, and I welcomed Monica Lennon’s comments, which supported the flexibility and proportionality that is being provided by this approach.

Amending the 2015 enforcement order does not change the obligations that are placed on producers for either the DRS or EPR. It provides a flexible and proportionate option for enforcing those obligations, which will benefit businesses. Opposing the instrument is illogical and would result in businesses that fall foul of the regulations facing criminal sanctions. I cannot believe that that is the outcome that members seriously want, and I encourage them to support the motion.

Thank you. The question on the motion will be put at decision time.

The next item of business is consideration—[Interruption.]. Excuse me, I cannot hear myself speak because of other conversations that are on-going.

The next item of business is consideration of Parliamentary Bureau motion S6M-08066, on approval of an SSI. I ask George Adam, on behalf of the Parliamentary Bureau, to move the motion.

Motion moved,

That the Parliament agrees that the Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) (Amendment) Order 2023 [draft] be approved.—[George Adam]

The question on the motion will be put at decision time.