Chamber and committees

I will just finish my point. Furthermore, the deadlines that have been proposed for making regulations, whether one or two years, do not take account of the time that is required to carry out meaningful consultation, which the Parliament would expect in advance of the finalising of any draft regulations.

Graham Simpson talked about public acceptance. I go back to the point that I have been making ever since I have been in this chair—public and stakeholder acceptance is absolutely dependent on that meaningful consultation. The consultation periods that are required for a strategic environmental assessment alone can take up to six months.

That brings me to my final point. With regard to any action following the bill that relates directly to the circular economy, the consultation that we are carrying out on the route maps and the strategy will inform quite a lot of the work that we do, and obviously, all of that will feed into the climate action plan. The cabinet secretary will be taking that forward, and I do not want to put words into her mouth, but what I will say is that a lot of these pieces of legislation, plans and strategies dovetail into one another to provide a cohesive approach not just for one portfolio of Government but across many. That is where these actions will exist; they will not necessarily exist in my portfolio, which is all about setting out the strategy, but across a lot of sectors outwith my portfolio.

Finally, Maurice Golden’s amendment 152 risks creating burdensome additional duties on public bodies not only to develop specific plans but to submit them to ministers. However, there might be some merit in considering what we might expect from public bodies, particularly those that have a delivery function in relation to key aspects of a circular economy, in helping to deliver the bill’s aims and the route map. That might involve putting some provision in the bill. I therefore ask Mr Golden not to move the amendment but to allow me to consider the matter and to come and speak to me ahead of stage 3 about how we might strengthen the proposal and put it in the bill. However, if the amendment is moved, I encourage members not to support it.

I will speak generally to that point. Our mission in the Scottish Government is to continue alignment with the European Union in those areas. I do not have to hand an indication of what will be coming forward, but we have stated on many occasions that we wish to be aligned with the EU.

Many regulations will be put forward. I will not be tied to a timeline that requires me to have them all delivered within two years. Undertaking the consultation will take longer for some regulations than for others. That is the point that I have been making while I have been sitting in this chair.

On amendments 19 and 20, which relate to the regulations for the prohibition or restriction of the disposal of unsold goods, the draft circular economy and waste route map sets out that we will commission research in 2024 into potential products in order to inform consultation on regulations in 2026. The amendments do not provide sufficient time to undertake that vital work, which should come first to ensure that we take an informed approach, which the Parliament would expect, with the fullest data and analysis available.

Regulations under the powers in new section 34ZC, which will be inserted into the Environmental Protection Act 1990 by section 10 of the bill, would enable important future changes in relation to the fixed-penalty notice procedure for failure to comply with the householder duty of care. Those powers are not for the purpose of implementation but to ensure that the penalty amount can be adjusted in the future and to accommodate any changes to enforcement authorities that are necessary, for example, as a result of the establishment of a new national park. Those regulations are not likely to be made within the first year, or the first two years, of the coming into force of the new section 34ZC. Amendments 40 and 41, which would require ministers to use those powers within the next one or two years, simply do not make sense.

A similar problem arises with amendments 73 and 74. Section 15 will provide SEPA and local authority officers with additional enforcement powers, including a power to search and seize in relation to vehicles that are believed to have been used in the commission of certain waste offences. Ministers have been given the power to make regulations to allow offences in other acts, including future acts passed by the Parliament, to be designated as offences for which those additional enforcement powers can be used if a vehicle is believed to have been used in waste crime. That is a specific power to ensure that the legislation can be adjusted for any new waste offences that are created in the future. It might well not need to be used within one or two years following its coming into force. Therefore, amendments 73 and 74, which would require ministers to use those powers within one or two years, do not make sense.

I will now talk to Graham Simpson’s related amendments that seek to impose expiry dates on various regulation-making powers in the bill if they have not been used within the next one or two years. Those expiry dates, or sunset clauses, which Graham Simpson is seeking to impose in relation to many sections of the bill, are sometimes used in legislation that confers on the Government particularly intrusive, or what people might call “draconian”, powers. We saw a lot of them being used during Covid, but we are very far from that here.

The Scottish Government could not support the precedent of imposing a range of unnecessary sunset clauses on what are, in some cases, ordinary policy-making powers to make regulations and, in other cases, necessary regulation-making powers that will allow changes to be made, such as changes to the level of fixed penalties, or to ensure the application of enforcement powers without the need for primary legislation. The sunsetting of all those powers surely cannot be something that the Parliament would want either, particularly in relation to powers to make small adjustments as a result of future legislative changes.

A whole series of amendments from Graham Simpson and a couple from Maurice Golden seek to ensure early commencement of various sections of the bill. Apart from the final sections, 18 to 20, the sections of the bill will come into force on such date

“as the Scottish Ministers may by regulations appoint”

by virtue of the commencement provision in section 19. That will allow for appropriate preparation to be undertaken before implementing regulations are made.

As regards amendments 175 to 179 and amendments 78 and 79, which all relate to the circular economy strategy and targets, I appreciate that there is the need to make swift progress in that area and that timelines are important. However, it is standard practice that sections are commenced no sooner than two months after royal assent, so I cannot support those amendments.

Other amendments from Graham Simpson purport to insert early commencement provisions into acts that are being amended by the bill, such as the Environmental Protection Act 1990. Those amendments are not legally effective given that sections of the bill can be brought into force only by commencement regulations made under section 19. For all those reasons, I urge the committee not to support any of those amendments.

I imagine that everything that we want to see in the hierarchy will be discussed as part of the development process. Ben Macpherson has mentioned particular repair facilities, for example—and that brings me on to some of the issues that have been mentioned in relation to third sector organisations and what part they play in that.

A variety of sources of Government funding supports other bodies that contribute to the development of a circular economy, such as the Circular Communities Scotland share and repair network, Social Enterprise Scotland and the just transition fund in my constituency in the north-east area, which I share with some of my colleagues here. I have been able to assist quite a lot of third sector organisations in applying for just transition funding, including Ellon men’s shed, other men’s sheds in my constituency and, indeed, other third sector organisations that are doing a great deal of work on the circular economy. There are a lot of other funding streams, and all new policy commitments as well as changes to existing policy are discussed with our colleagues in COSLA and have agreement from Scottish ministers and COSLA political leaders, as everyone here knows.

As Mr Macpherson knows, I am happy to discuss with him how we can better signpost the many funding streams that are available to third sector organisations. It should not be for MSPs to pick up the phone and ask people whether they are applying for funds—that knowledge should be readily available.

Yes.

It was very subtle but effective.

I have a whole speech about the issue, which very much alights on what Monica Lennon, Mark Ruskell and Bob Doris have said. The amendments are unacceptable because they undermine the basic principles of devolution. We would be under an obligation to consult the secretary of state, but the secretary of state would be under no obligation to respond to us.

The vehicles for discussion and agreement on the United Kingdom Internal Market Act 2020 are set out through the common frameworks, as colleagues have said. Monica Lennon asked about the Office for the Internal Market. We engage with it regularly. My officials have been speaking to that office throughout the process, and we will continue to do so. The Circular Economy (Scotland) Bill has been discussed with other UK nations through the common frameworks process. Other nations have been aware of the bill throughout its development and were informed of its contents when it was introduced to Parliament last year.

There have been discussions on the potential interaction between the bill and the internal market act at the resources and waste common framework working group and, at senior level, the senior officials programme board. Both groups noted that there were no provisions in the bill that would trigger the application of the IMA. Therefore, members will not be surprised to hear that I will not support the amendments, for the reasons that have been outlined by my colleagues, which I will not go over.

We are required to report at the halfway point, and I think that that is sufficient. Members are always welcome to write to ministers asking for updates on whether targets are being met in the intervening period, but the proposed approach strikes the right balance.

On amendment 190, in the name of Maurice Golden, the circular economy sits at the heart of the Scottish Environment Protection Agency’s published “One Planet Prosperity: A Waste to Resources Framework”, which recognises that the organisation has a clear role in helping Scotland to move to a more circular economy and that it is in a unique position for protecting Scotland’s environment while helping to create prosperity through greater resource efficiency. The framework already guides SEPA’s work on waste and resources, and SEPA guidance already takes account of a circular economy in which resources are recirculated in the context of there being high levels of environmental protection.

More than 100 individual pieces of SEPA guidance relate to waste management activities and are generally on legal, technical or pollution issues—for example, interpretation of legal definitions, practical guidance on consigning special waste, landfill waste acceptance criteria, odour abatement and when a recycled product such as compost ceases to be waste. It also includes guidance on UK schemes, such as the scheme on producer responsibility.

Mr Golden said that amendment 190 is a “nudge” in a certain direction, but I hope that I have demonstrated that SEPA has already embedded such action in all its activities. All the guidance already takes into account the regulators code of practice, SEPA’s statutory purpose and its waste to resources framework, so requiring that all waste guidance be reviewed would be a significant undertaking with the prospect of there being no significant change, given that SEPA guidance is already in line with that framework. SEPA will also be involved in, and consulted on, development of the strategy.

In short, therefore, I believe that amendment 190 is unnecessary and could be overly burdensome on SEPA. On that basis, I cannot support it.

Although I understand the sentiments behind amendments 92 and 131, I am afraid that I cannot support them. In the first place, both amendments claim to set out a purpose for a circular economy for the whole bill, but in reality they simply attempt to describe a circular economy. Specifically, amendment 92 describes a circular economy with reference to the waste hierarchy and both amendments refer to just transition principles under the Climate Change (Scotland) Act 2009. I strongly agree that the waste hierarchy and just transition principles are important considerations, which is why the Scottish Government has lodged amendments 136 and 137, which require that the Scottish ministers have specific regard to both of those when preparing a circular economy strategy.

Amendments 136 and 137 have direct legal effect and will allow the Parliament to hold ministers to account for the content of the strategy that will provide an overall framework for wider policy in this area. In contrast, amendments 92 and 131 are not linked to the substantive sections of the bill, nor do they impose any duties or obligations, so they would have no legal effect.

The term “circular economy” appears only in sections 1 to 7 of the bill, and the remaining sections of the bill mostly amend other legislation. In the bill as introduced, sections 1 and 6 set out a list of criteria for what constitutes a circular economy that ministers must have regard to when preparing the strategy and making regulations to set targets. Unlike the proposed purpose clauses in amendments 92 and 131, the list of criteria for what constitutes a circular economy has legal effect because ministers must have regard to those matters when preparing the strategy and making regulations to set targets.

In addition—this was one of Mark Ruskell’s points—there is no accepted international definition of a circular economy and including one in the bill would risk the terminology becoming outdated. In short, the Scottish Government’s view is that the amendments do not work legally and therefore would not add value to what is already in the bill. On that basis, I am afraid that I cannot support them.

Okay—apologies to Clare Adamson. Again, she knows very well the regimes that exist across the whole of the UK.