Chamber and committees

Finally, convener, the Scottish Government cannot support amendments 9 and 10, which are in the name of Maurice Golden. In the stage 1 report, the committee said that it understands the need for a robust approach to setting targets. I agree with that, because targets would have significant implications across policy and for stakeholders, so they should be informed by further consultation in all parts of society.

That is why I have set out an approach to setting targets that is based on development of a monitoring and indicator framework, as I have said many times and will not rehearse. Amendments 9 and 10 would replace the ability for Scottish ministers to set targets by regulations following that robust analysis and consultation. For the reasons that I have rehearsed many times, I do not want to do that, so I urge the committee not to support amendments 9 and 10.

I will not take Mr Lumsden’s intervention. In the interests of time, I should probably wind up.

Recent statistics show that the recycling rate in Scotland is 62.3 per cent, which is the highest level since recording began in 2011. There is a mixed picture across Scotland, and it is important to reflect in the co-design process that there must be a local approach with local partners, so that those who feel that they can go well above a target have the ability and are empowered to put their strategies in place, and so that we can support those who are not doing well enough to do better.

For similar reasons to those that I have given previously, I will not support Ms Boyack’s amendment 205. Sections 6 and 7 of the bill already provide the means to set national

“targets ... relating to”

the

“circular economy,”

which might include targets in relation to increasing reuse and recycling. Section 13 provides a power to set local authority targets for household recycling, including the power to set different targets for different local authority areas, if that is what comes out of the co-design process. Work is under way to establish an agreed monitoring and indicator framework that can be used to track different aspects of the circular economy.

I therefore encourage members not to support amendment 2,005—I mean amendment 205; thank goodness it is not amendment 2,005.

I am happy to meet Mr Doris to discuss the matter ahead of stage 3.

Amendment 72 concerns the app that Graham Simpson would like to be in place nationally. First, I commend Mr Simpson on changing his mind in real time, based on the debate—as he says, there is probably not enough of that. However, I agree with Monica Lennon’s points on the issue more than I agree with the need for an app. Local authorities already provide information. I do not know whether the way in which various local authorities do that is good enough. The fact that Mr Simpson has lodged the amendment suggests that he does not think that it is, and I am not sure that I do, either. We all know of instances where we think that local authorities could improve the information that they provide and, in particular, the way in which the public is able to engage with them. I will not single out any council in particular, but I take Mr Simpson’s point and I note that, a couple of years ago, when I witnessed tyres being burned in my constituency, I struggled to find where I could report it on the local authority’s website. However, it is up to each local authority to decide its approach and I am sure that they will listen to the criticisms that have been made today.

Again, Ms Lennon’s point about digital inclusion is important.

That is where the co-design and the strategy almost engender that kind of sharing of good practice.

A survey on fly-tipping was carried out by Zero Waste Scotland, and 3 per cent of respondents said that they would prefer an app, 45 per cent preferred online reporting, and 26 per cent preferred to use email. There is something about the online reporting aspect that councils might need to consider. How deep into a council’s website is that function? That is an important point.

I must move on, as the convener is giving me a raised eyebrow.

Absolutely. Given all the comments that have been made, it is obvious that we are all agreed that the process needs to be accessible, user friendly and known about by the public.

I understand the intentions behind amendments 171 to 173, and I agree with the aims to update the existing powers in paragraph 14 of schedule 2 to the Regulatory Reform (Scotland) Act 2014. I agree that it could be helpful for reporting to include details of the origin and destination of food items, building awareness of the ways in which food surplus and waste could be used.

I also support the desire to understand more about the end destination of material that has been collected for recycling, and the consultation on the draft circular economy and waste route map sets out our intention to develop options and to consult on the introduction of end-destination public reporting. Similarly, there might be a benefit to considering the storage and disposal of textiles, as per amendment 173. However, those aims can already be achieved by means of section 17 of the bill.

In respect of recycling, existing powers include the electronic waste tracking powers under the Environmental Protection Act 1990 and the power in paragraph 14 of schedule 2 to the 2014 act.

The enabling power under new paragraph 14A, which is being inserted in schedule 2 to the 2014 act under section 17 of the bill, does not specify any particular sectors or types of waste, as it is an enabling power that is intended to provide flexibility to determine what kinds of waste and surplus are suitable for public reporting. However, that would include the items indicated in the three amendments. For example, food waste may be the first candidate for the use of the power, which also enables the making of regulations requiring the publication of information, in contrast to the power in paragraph 14 of schedule 2 to the 2014 act.

The committee expressed concerns about the impact of the reporting requirements on small and medium-sized businesses, so providing a power in addition to what is already included would be duplicative and could risk creating additional burdens.

In summary, I believe that some of the amendments in this group are unnecessary, and they are also potentially burdensome. For those reasons, I urge the committee not to support them. However, I do agree with the sentiment behind them.

The Scottish Government cannot support any of the amendments from Graham Simpson or Maurice Golden in this group. I understand that people want action to happen quickly, but I will deal with the practical reasons why the amendments will not work.

I will deal first with the many amendments that seek to impose time limits of one or two years, although I thank Graham Simpson for saying that he will not move the amendments pertaining to one year. The arguments relating to the amendments for two years are similar. Many amendments relate to regulation-making powers that are subject to the affirmative procedure, such as those relating to the circular economy targets and household recycling targets for local authorities. Others, such as regulations to impose charges for single-use items, are even subject to the super-affirmative procedure. Making those regulations depends on parliamentary approval and the scheduling of parliamentary business, so the amendments are at risk of not being workable, as the timing of parliamentary procedure is outwith Scottish Government or ministers’ control. [Interruption.]

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.