Chamber and committees

Everything that you have said is completely legitimate, and I totally understand why you have lodged the amendment. I want to work with you to get this right, because you are right: this would deter people who purport to be legitimate waste collectors but are not. It is about empowering the public to know that they can ask for proof that someone is a waste collector. Let us work together ahead of stage 3 on something that I can support that will have that effect.

I also understand the intention behind amendment 36, in the name of Maurice Golden, but it is unnecessary, as mechanisms exist to ensure that comprehensive information and practical guidance are available in relation to the duty of care obligations. That said, I go back to my earlier point: is that information good enough? Is it clear enough? Is it accessible enough? Is it buried? I think that everyone gets my point; indeed, everyone has probably looked at the issue for themselves and has seen how accessible the information is.

I want to avoid placing unnecessary burdens on local authorities. Indeed, it was a prominent concern of the committee when it took evidence at stage 1, and I am keen not to impose any additional unnecessary statutory responsibilities on them. Again, it is all about sharing best practice, with, for example, local authorities reviewing how they display information and how they communicate with people in their areas. I therefore urge the committee not to support amendment 36, but I also reassure the committee that we will continue to work with key partners to consider implementation plans, including communication and awareness-raising activities, and to ensure that the code of practice is updated as required.

Amendment 37 seeks to amend section 10 so that it would not apply to households using communal waste bins, but, again, I do not believe that it is necessary. The obligation to “take reasonable steps”, such as confirming registration details, applies only when a householder has organised an independent waste service to collect household waste. The work that we will do ahead of stage 3, particularly with Ms Dunbar, will provide a vehicle for improving householders’ knowledge of their rights in that regard. As there is no reason to exempt householders who use shared or communal bins, I cannot support the amendment.

As for amendment 38, I understand Mr Golden’s intention to ensure that provisions are fairly applied. It might be that, in certain cases, an enforcement officer would meet a householder to determine whether there had been a breach of the duty of care without reasonable excuse, but that would not be practical, appropriate or necessary in every case. Indeed, there might be occasions when householders would not participate in a meeting with an enforcement officer, and I do not think it appropriate to compel them to do so in relation to a suspected criminal offence. I therefore cannot support that amendment and urge the committee not to do so either, but, again, I take on board the wider point that has been made.

Amendment 39 would allow local authorities to seek recompense from ministers for any unpaid fixed penalties issued under section 10. I do not support the amendment, because it fails to recognise that payment of fixed-penalty notices is not mandatory. Instead, they provide a person with an opportunity to discharge any liability to criminal conviction by paying the penalty. I think that everyone understands that: you pay the FPN and the matter goes no further. It is a choice. The person is perfectly entitled to refuse the offer made by the FPN, with the result that the enforcement officer may choose to report the offence to the procurator fiscal. An unpaid fixed penalty under this provision is not a civil debt that needs to be recovered in any way; it is just a way in which the person who is liable can stop the action. In other words, they can pay the fine and just move on.

Finally, I understand the intentions behind amendment 44, but I cannot support it as it is drafted. As I have indicated, the Scottish Government’s intention is to work with local authorities and other enforcement bodies on guidance on the enforcement of the householder’s duty and the use of FPN procedure in relation to the breaches of that duty. Although it is not essential, I agree that including a requirement to that effect in section 10 could be useful. The effect of subsection (3) of the amendment would be to call into doubt whether the inserted new section 34ZC of the 1990 act had come into force, which would occur when section 10 of the bill was commenced under the power in section 19. Obviously, we are still to come to section 19, and I can give more information on that when we do so. However, I urge the committee not to support amendment 44.

I will leave it there, convener.

I understand Ms Webber’s intention in lodging the amendments in the group, but I cannot support them and I will outline why. The amendments would require the Scottish Government not only to consult with COSLA, which we do regularly, but to seek its approval for any draft regulations under those powers. I want to be clear that the approval of the regulations lies with Parliament.

The Verity house agreement already underpins the approach to engagement between the Scottish Government and COSLA and the Scottish Government remains committed to that agreement. I do not see the provisions as necessary for the continued joint working that COSLA has described. It is not my understanding that COSLA had asked my predecessor for that and I certainly have not been asked for that. In fact, COSLA has said that the collaboration in the bill is

“an excellent and leading example of working in the spirit of and implementing the Verity House Agreement”.

Full kudos goes to my predecessor for her engagement with COSLA leaders.

We will continue to take that approach to the co-production and development of the regulations to support the bill. In many cases, there is already a requirement to consult local government in the bill. For example, section 12, which relates to the code of practice, and section 13, which relates to targets, already set out that Scottish ministers must consult publicly and seek the views of local authorities.

Amendment 160, in the name of Jackie Dunbar, is a requirement to consult local government on the development of guidance relating to section 11 and new enforcement powers for waste contamination. We will support that amendment. More generally, our approach would be to consult local government on any regulations and we expect that that would involve COSLA.

However, for all the amendments in the group, there is a technical concern about naming COSLA in the bill. It is not common practice. Typically, when outlining consultation duties in legislation, the phrase “local authorities” is used. Although, in practice, that often leads to COSLA being consulted, it also allows for consultation with individual local authorities or with any other organisation that is representative of local authority interests. In the past, COSLA has not been the only body that has been representative of local authorities, so it would not be correct to name it.

Thank you, convener, and good morning, everyone. I want to start by addressing some general points that have been made about the regulations that would be introduced under the bill.

Regulations made under section 9 will already be subject to the super-affirmative procedure, which was welcomed by the committee, and will therefore be subject to a high level of scrutiny before they are laid. The Government will make proposals for everything that it would apply a charge to through a Scottish statutory instrument, and those proposals would be subject to the parliamentary scrutiny that would come with that. Any Government would allow for that scrutiny.

I will make a start on this point and then let Mr Lumsden in.

The Scottish Government cannot support any of Graham Simpson’s amendments in this group, but I am, as ever, happy to speak to him about some of his concerns. I will lay out my reasons for not supporting the amendments, starting with amendments 24 to 26, which seek to exempt items from future regulations made under the proposed new power in the bill.

Amendment 24 seeks to prevent the use of the power to charge for single-use items if they fall within the scope of a deposit return scheme or “any ... re-use scheme”. Without a specific definition, it is not clear exactly what the term “re-use scheme” means here and, therefore, what the impact would be of exempting those schemes from future charges. The committee will be aware that, at the moment, the Scottish Government is in discussion with the United Kingdom Government and the Welsh and Northern Irish Governments about a future United Kingdom-wide DRS.

It would be great if I could actually get through a point.

As ministers already have the power to give financial assistance to any person, including small businesses and microbusinesses, for any scheme or programme with the purpose of preventing or reducing waste, I do not believe that amendment 29 is necessary.

I will take Mr Lumsden’s intervention.

So—

Mr Simpson is making the same points that many people have made about the scourge of fly-tipping and the unfairness that exists when landowners have to clear it up.

It is not fair to say that nothing has been done. There is a fly-tipping forum and the national litter and fly-tipping strategy has been delivered, as have the year 1 action plan and a number of activities that are aimed at tackling fly-tipping on private land. However, I think that I have been clear that I want to work with Mr Fraser on the sentiment behind amendment 203.

I do not want to give any impression that we are working with Mr Fraser on repealing section 59 of the Environmental Protection Act 1990. We are working to deal with the reasons why Mr Fraser lodged amendment 202; we want to ensure better communication and to allow scope for further guidance so as to achieve what he wanted to with his amendment.

Thank you, convener. I want to quote Ms Lennon back. When we have good practice, how can we support local authorities to replicate it? That gets to the nub of the amendments and the debate that we have just had.

I think that we all agree that the substance behind Ms Lennon’s amendments is laudable. I am supportive of their intent, but we have had a conversation and she knows that I will not be able to support them as they are written because I want the co-design process to be the vehicle for such decisions at local authority level.

Sharing that good practice is absolutely vital. There is an improvement programme under development with COSLA and local government, which will offer a practical route to share best practice on waste prevention measures, including reuse, alongside recycling. The fact that we have had this debate today, and Ms Lennon’s efforts in bringing attention to the issue, will mean that any co-design will have to look at the issue, particularly on reusable nappies. As someone who has raised two babies, I have been reflecting on why I did not go down that route—what stopped me. Of course, the Government has commissioned research to look at the barriers, because that is also at the nub of the issue. Is there a perception that such nappies are too expensive, or that there will be an increased workload for an already struggling young mum? Whatever that research finds—it will come out in the next couple of weeks, as has been mentioned—we have had a really good debate.

The question is how to engender knowledge sharing and prompt similar schemes to happen across Scotland without taking empowerment away from local authorities through a top-down approach. I would be delighted if local authorities across Scotland replicated the North Ayrshire scheme. It sounds incredible, and I pay tribute to those involved. I am happy to consider how we can support and encourage behaviour change in the area and the roll-out of that type of scheme, and how we can encourage that co-design. However, it must be for local authorities to make those decisions—as Ms Lennon has said.

We have already included in our draft route map a commitment to facilitate the sharing of best practice in reusable nappy schemes and to support take-up across Scotland. It is good to hear that Ms Lennon is also speaking to Shirley-Anne Somerville about what more can be done with the baby box. The committee also agreed to amendment 138, which requires having regard to behavioural change in the development of the circular economy strategy. If there is anything that can strengthen that aspect of the strategy or the co-design process, I am happy to work with Ms Lennon on it. I have made that offer to her.

We need to ask what has to be taken into account in the co-design process. Ms Lennon made an interesting point about the voices of those in communities that will be taken into account in the co-design process. Will the voices of new parents be included in that? Is there an unconscious bias in the decisions that are being made around policies? We had an interesting conversation on that in private last week.

On amendment 158, we do not need legislation to prepare the report that Ms Lennon proposes. The committee is aware that we are shortly due to publish baseline research into barriers to the uptake of reusable nappies in Scotland.

I understand why members have proposed the amendments. As set out in the response to the committee’s stage 1 report, we are committed to ensuring that the use of the new fixed-penalty notice powers is both effective and fair. We want to ensure that householders are fully aware of their obligations and that local authorities have appropriate and accessible guidance about how they use the power.

I agree on the importance of raising awareness of a householder’s responsibility through education, engagement, communications and the provision of further guidance. In that respect, I would highlight two relevant key points. First, householders are already required to comply with the householder’s duty of care. They can—and should—already check a waste carrier’s registration details, and they can confirm those details on SEPA’s website to ensure that they are using a legitimate service.

Maurice Golden made a point about awareness raising. In week 1 of stage 2, we said that the right information on websites can be buried under layers and layers of clicks, and there is perhaps a lot to be said for updating and reviewing how user friendly some of those communication methods are.

Secondly, ministers are required under section 34(7) of the Environmental Protection Act 1990 to prepare and issue a code of practice for the purpose of providing practical guidance on how to discharge the duty of care. The existing code of practice provides guidance to householders on how to meet their duty of care, but it will be amended to take into account the changes made through section 10 of the bill—namely, that a breach of that duty will now be an offence that might be addressed by way of a fixed-penalty notice.

I understand why Jackie Dunbar has lodged amendments 129 and 130, and I thank her for raising the issues. Ensuring that householders are aware of their responsibility to ask for confirmation of a waste carrier’s authorisation or registration to carry waste can be addressed by way of communication and will be included in the updated duty of care code of practice. However, the points that have been made in the debate about displaying that information on waste carriers’ vehicles was helpful. Again, it comes down to the clarity and accessibility of that information.