Net Zero, Energy and Transport Committee

Meeting date: Tuesday, November 30, 2021

Official Report 610KB pdf

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Subordinate Legislation

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Environmental Protection (Single-use Plastic Products) (Scotland) Regulations 2021 (SSI 2021/410)

Welcome back, everyone. The next item is evidence on the Environmental Protection (Single-use Plastic Products) (Scotland) Regulations 2021. The instrument is subject to the negative procedure but, given that it raises issues of public interest, we are having a short evidence session with the Scottish Government before we dispose of it formally, which we will do at a meeting in December.

I welcome Lorna Slater, the Minister for Green Skills, Circular Economy and Biodiversity, and her officials Andrew Forsyth, Ailsa Heine and Janet McVea, who join us remotely. Thank you for making yourselves available to the committee this morning.

Minister, I understand that you want to make some short opening remarks; I hand over to you.

Thank you, convener, and good morning, everyone.

Every year, hundreds of millions of pieces of single-use plastic are wasted in this country. They litter our coasts, pollute our oceans and contribute to the climate emergency. That is why the Scottish Government has laid legislation before the Scottish Parliament that bans some of the most problematic single-use plastic products and helps us to move to a more circular economy, starting from June 2022.

The items that are included in the regulations are: single-use plastic cutlery such as forks, knives, spoons and chopsticks; plates, straws, beverage stirrers and balloon sticks; food containers that are made of expanded polystyrene; and cups and other beverage containers that are made of expanded polystyrene.

The regulations will be the first in the UK to ban such a wide range of single-use plastic items, and they go further than the single-use plastic bans that are currently in force in the rest of the UK. The products account for 86 per cent of all single-use plastic items on European beaches and about half of all plastic marine litter. I was doing some reading last night and came across data from the Marine Conservation Society’s 2020 great British beach clean, which found that plastic and polystyrene pieces are the most common items of litter on beaches, by a large margin.

I recognise that the ban is at risk from the UK Internal Market Act 2020, which, in effect, exempts any items that are produced in or imported via another part of the UK. Officials continue to work with the other Administrations across the UK to try to find a way to ensure that the ban is not undermined.

Extensive consultations were undertaken with stakeholders during the development phase of the regulations, including with industry, non-governmental organisations, equalities groups, users of the products and—of course—the general public. Findings from those consultations were taken into account in the final drafting of the regulations and will also help inform on-going work in that policy area.

Action has been taken to limit the impact on Scottish businesses. The regulations will come into force in June 2022, giving businesses time to take action to prepare for the new measures. A guidance document has also been published on the Scottish Government’s website.

Feedback on the impact on the wider public has also been taken into account. Crucially, the legislation includes exemptions for single-use plastic straws to make sure that those who need them for independent living or medical purposes can still access them. That means that they can be supplied in particular settings and circumstances, as before, and can still be sold under certain conditions in a pharmacy. Enforcement work will be undertaken by local authority enforcement officers, who will be authorised by local authorities to exercise powers in the regulations in order to determine whether an offence has been committed.

In addition to the incredibly important environmental policy aims of the legislation, the Scottish Government continues to be committed to matching or exceeding the standards of the European Union single-use plastics directive. The products covered by the regulations therefore help to align Scottish legislation with article 5 of the EU directive. The measures cover all products in article 5 except oxo-degradable plastic products. Oxo-degradables is an area of significant complexity and rapid change and it is important that we make a decision based on the most up-to-date information. The policy intention remains to ban oxo-degradable products?via?further regulations next year. We are currently collecting that evidence in advance of taking action and will provide an update in due course.

Further work is on-going to match or exceed the standards in the other articles of the EU directive through measures that the committee will already be aware of, such as the deposit return scheme and extended producer responsibility.

The single-use plastics regulations are another important step forward in our efforts to tackle Scotland’s throwaway culture by reducing our reliance on single-use plastics and encouraging more reusable and sustainable alternatives. They are one part of a wide array of policy measures that will help to move Scotland towards a more circular economy. As already noted, further action will follow through key initiatives such as the deposit return scheme.

I hope that I will be able to answer any questions.

Thank you, minister—that was very helpful.

The definitions used in the negative instrument are very technical in relation to the items covered in the ban. Given that, what specific guidance has been given to small businesses that might be affected by the regulations, particularly given that their breach can result in a criminal offence?

Extensive consultation with Scottish businesses was undertaken in the preparation of the regulations, including feedback on the draft regulations, which were made public earlier this year. As I said, the regulations come into force on 1 June 2022, giving Scottish businesses six months to prepare. That followed on from feedback that less than six months would not be enough time for businesses to prepare for significant regulatory changes, given that they are already dealing with the twin headaches of Brexit and Covid-19. For example, some businesses buy stock six months in advance, and so would run the risk of having a lot of stock that they would have to dispose of. However, businesses generally supported the proposals.

The vast majority of the products are imported into the UK and are not produced in Scotland. The move to the circular economy will create many exciting opportunities for innovative Scottish businesses to take advantage of.

I will have to ask officials to help me out on the specific question about penalties.

That is fine. We can come back to penalties later, as some of my colleagues have questions on penalties, too.

I will ask a follow-up question on the consultation process, which a number of individuals and organisations fed into. What did the consultation with the business organisations that you or officials met look like? How many business organisations did you meet in order to discuss the impact of the regulations?

I have more information on that here. Two public consultations were conducted as part of a wide range of stakeholder engagement. The first consultation sought views on the items to be covered by the regulations and how restrictions might be implemented. That consultation received positive feedback from individuals and organisations on the plans. The second public consultation was on the draft regulations themselves. Responses to it were used to fine tune the regulations, and as indicators for which subjects should be included in the online guidance document.

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Extensive stakeholder engagement was undertaken, including with industry in advance of the first public consultation and through open dialogue throughout the process. Internal Scottish Government colleagues had discussions with experts on health, equalities, pharmacy, EU alignment and the constitution. Users of single-use plastic products were consulted through a straws advisory group, which was facilitated by Inclusion Scotland and focused on equalities issues. Zero Waste Scotland provided policy and analytical support throughout the process. We spoke to the other UK Administrations, to NGOs through the consultation process and through direct engagement, and to the general public.

The financial assessment says that there will be a minimal impact from the regulations. What will be the impact in terms of both numbers of businesses and value? What mitigations are being considered for businesses—as producers and users—that will be impacted?

I will need to ask my officials to help me on the specific numbers. There are many benefits to Scotland of having less litter on our beaches. Our tax money is used to collect litter on beaches, so the overall positive effect on the economy will be very strong. I turn to my officials to give details on the businesses that will be affected.

As the minister has communicated clearly, a very small percentage of Scottish businesses manufacture the items involved. As the minister also noted, we will be banning not only the supply of the items but the manufacture of them, which reflects our global ambition.

The directive was published in 2019, and businesses have adapted and moved with the market alongside it. During the consultation process, there was general support. There was also UK-wide directions and policy ambitions to match Scotland in the area.

With respect, I am not sure that that answers my question on the value and the numbers, but I will move on to a related question. What will be the impact on the Scottish supply chain in terms of both numbers and value?

I do not have the numbers for the Scottish supply chain in front of me. Again, my officials might be able to help with that.

A full business impact assessment was conducted and consulted on during the process. The assessment outlines all the key figures and has been published alongside the regulations. We can provide the committee with a copy of it, to answer the member’s question.

I would be very grateful if you would do that.

My final question comes at the issue from a slightly different angle. Part 3 of the regulations, which I have in front of me, potentially fixes corporate liability on directors, managers and even “members”—I presume that that means members of a club or something. Is that usual? What representations have you had from legal or business bodies on that provision?

That is a very technical question, so I will need to go to my officials again.

I can answer that question. In such regulations, it is not unusual to make provisions on offences for corporate bodies. These regulations are similar to regulations that have already been made to ban cotton buds and microbeads; they have similar provisions.

I am very grateful for that answer. I also asked about the representations that you have had. I wonder whether the answer to that, along with the answer to my previous question, might be provided to the committee after the meeting, if that would not be any trouble.

Which kind of organisations did you ask about?

I asked about legal and/or business organisations that might have made representations on part 3.

We can check. Off the top of my head, I do not know what representations we had on that.

I would be very grateful. Thank you.

Good morning to the minister and officials. I was pleased to hear you say, minister, that you were doing some reading last night about the result of the great British beach clean and the Marine Conservation Society’s involvement in organising that. From that reading, you will know that the second most common item to be found, when it comes to the pollution of our beaches and coastline, is wet wipes that contain plastics. Will you give us an update on whether a ban on wet wipes might be the next step? The Plastic (Wet Wipes) Bill was introduced under the 10-minute rule at Westminster, and the Marine Conservation Society has said that

“Banning single-use plastic wet wipes is such an easy step to take in order to help achieve a circular economy”.

I would like your thoughts on that.

You are absolutely correct. Thank you very much for highlighting the very serious problem of wet wipes that contain plastic, which do not biodegrade and end up on our beaches. Scottish beaches are more seriously affected than those anywhere else in the UK. I have the numbers in front of me: there are something like five times more wet wipes on Scottish beaches than anywhere else. We absolutely need to take action on that.

Wet wipes are the largest single component of material that is found in sewage system blockages, as well. Obviously, that costs a lot of money. The vast majority of wet wipes contain plastic.

In the public consultation on the single-use plastic regulations, wet wipes containing plastics were included in a list of potential additional items to be banned in the future, and 94 per cent of the respondents were in favour—when we consulted on the regulations that we are looking at today, we asked about wet wipes, and 94 per cent of people agreed that they should be banned. The Scottish Government is encouraging the UK Government and other Administrations to work with us to bring forward a ban on wet wipes that contain plastic, which we consider unnecessary and environmentally harmful.

We do not consider that the other possible approaches to tackling wet wipes, such as labelling, a design standard or an EPR scheme, will address the growing problem in a timely manner—hence why we are trying to encourage the other UK Administrations to work with us on a ban. We know, through the experience of banning harmful products, such as plastic-stemmed cotton buds in 2019, that that is an effective solution to the problem.

Is it the case, then, that the Scottish Government cannot, at present, add wet wipes to the list? Secondly, how often will the list of restricted items be reviewed?

The regulations relate to article 5 of the EU directive, which has many other articles in it that cover things such as wet wipes, extended producer responsibility and other items. Article 5 is just the first piece of that to come forward. The other articles will come forward in their own time.

Because it is the Scottish Government’s intention to align with that directive, even though we are no longer members of the EU, the idea is that we would continue to introduce regulations on those articles on the original timescales. However, given that wet wipes are such an urgent issue, we are looking at what we can do sooner—ideally, that would be a ban throughout the UK nations. We are actively looking at that.

Minister, you touched on protecting our environment, as a devolved matter. The regulations that we are considering would go a long way in achieving that. However, you also said that that could be undermined by the United Kingdom Internal Market Act 2020. With that in mind, will you set out how the UK Government is engaging with you on the issue? What would the implications be if the exemption was not made?

In line with the programme for government commitments, the regulations were laid before the Scottish Parliament earlier this month, and they will come into force in June, as we have discussed, to ban the manufacture and supply of these problematic plastic products. Alignment with the other UK Administrations on the policy measures of the regulations was not possible due to uncertainty over the final content of the UK and Welsh Governments’ legislation and their inability to legislate as soon as the Scottish Government could do so—basically, we got ahead of them.

To address the first part of the question, I note that that is precisely the scenario that the Scottish Government and environmental organisations warned would arise with the United Kingdom Internal Market Act 2020. We can have democratically accountable Scottish ministers implementing policy and being accountable to the Scottish Parliament or we can have the UK Internal Market Act, but we cannot have both.

Although we still fundamentally oppose the act, officials have been engaging on the preferred option of securing an exclusion in this policy area through a common frameworks process. Agreement has now been reached on the process by which agreements can be reached on the common framework areas that can be excluded, and UK ministers will shortly make a parliamentary statement to that effect. This is an early test of UK ministers’ commitment to acting in a way that respects the framework process. It will not make the 2020 act any more compatible with devolution, but it will allow a degree of protection for policy areas that are covered by common frameworks.

If no exemption is allowed to the impact of the 2020 act, it will still be possible for any products that are produced in or imported by another part of the UK to be sold in Scotland, and hundreds of millions of pieces of plastic will still end up on our beaches. Without an exemption, the act will undermine our ban on these environmentally damaging plastic products. We will continue to work with the other UK Administrations to agree an approach to managing the implications of the act for the ban. Indeed, I will attend an interministerial meeting on the topic next week, with the intention of explaining the Scottish Government’s position and seeking answers from my counterparts.

We look to the UK Government to honour its commitments, which it made during the passage of the 2020 act, to protect frameworks and exclude this policy area from the scope of the act. I will also write to the UK Government to ask it to take the necessary steps to protect our ban’s integrity.

With regard to public procurement, what impact assessment, if any, has been done to determine the implications of the legislation being rolled out? There are a variety of frameworks in place, even at the local authority level. How will you be able to align things in that respect? You talked about bringing in a ban within six months, but what work has been done on that? Could there be a legal challenge from companies that are part of the tender frameworks?

I will talk about the impact assessments that have been carried out. I might then need to hand over to officials to respond in more detail to your question on the legal aspects.

A business and regulatory impact assessment, a strategic environmental assessment, an equality impact assessment, a fairer Scotland duty impact assessment and an island communities screening assessment have all been completed. The work that was done as part of the impact assessment process found that restricting the availability of plastic straws might impact on some people with protected characteristics more than others through a loss of independence and a loss of functions in relation to eating and drinking that other straws do not provide, and targeted exemptions from the ban on single-use plastic straws have been included. That was a key finding of the impact assessments.

Significant findings of the business impact assessment include the fact that the vast majority of the products that are covered are not manufactured in Scotland, but alternative materials are readily available. I know that my chippy uses cardboard straws. It is not that alternatives are hard to get or are expensive.

As for the economy-wide impact of introducing the restrictions, there is a cost compared with business as usual. Under net present value, item costs are generally increasing as there are higher costs associated with some of the alternatives.

I turn to officials to answer the questions on the legal impact and specifically on public procurement, because they are not covered in my notes.

As has been noted, the directive was published in 2019, and since then the Scottish Government has made clear its intention to introduce these regulations. The Government and our partners at Zero Waste Scotland have clearly communicated our intention to bring in these regulations to support those in the public sector in making procurement decisions, and we are encouraging them to take early action ahead of the regulations being laid and coming into force next year. We continue to work with Zero Waste Scotland on messaging and supporting businesses in the transition to new procurement arrangements.

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Fishing gear, alongside wet wipes, has been identified as a particular problem. The MCS survey shows that it often washes up on our beaches, and it is a difficult problem to deal with. What are we doing about fishing gear?

My other question is about the resources and waste common framework. You said that you are entering meetings with the other Administrations, and I presume that alignment on DRS will be included in the conversations, along with extended producer responsibility. Do we have a sensible basis on which to move forward on circular economy decisions across the UK? Is that framework operational?

You are correct to say that the framework process to allow exemptions from the United Kingdom Internal Market Act 2020 will be critical to our ability to tackle litter and implement the circular economy. Progress is being made on that framework, and I will give you an update on how that is going.

There are challenges here, as I am sure you understand. Protecting the Scottish environment is a matter of devolved competence. The EU directive that is the basis of the regulations came into force in 2019, as my official pointed out. At that time, all the nations of the UK were still in the EU and the 2020 act had not been created. The act, which has the potential to undermine Scotland’s ability to protect our environment from damaging pollution, represents an assault on devolution the like of which we have not experienced since the current Scottish Parliament was established. Scottish ministers remain fundamentally opposed to the imposition of the act. However, we are working on the frameworks process.

Our officials have worked closely with officials from the other UK Governments to design the frameworks, where they are necessary, in line with the principles for common frameworks that we agreed in October 2017. They include the agreement that, as part of the process for establishing common frameworks, the devolved institutions’ competences will not normally be adjusted without their consent. The frameworks are supposed to maintain, as a minimum, equivalent flexibility for tailoring the policies to the specific needs of each territory to that which was afforded by the EU rules.

In short, the answer to your question is that the frameworks are under development, but they have not yet been committed to. There is always the worry that the UK Government might not keep its promise to implement the frameworks as we agreed in 2017, so I will ask it next week to continue to work on the frameworks and to allow the exemptions that apply to the important area of single-use plastics and specifically the extended producer responsibility scheme. With regard to that, we and the Welsh Government have much stronger ambitions than the UK Government does for both the timeline and what is involved in the scheme.

It is important that each nation in the UK is able to move on the issues at the pace that works for it. Last week, I spoke to Lord Deben of the UK Climate Change Committee, and he was supportive of that approach. He likes the idea that each nation that steps ahead of the others—as Scotland is doing in relation to the issue that we are discussing—will challenge the others to align with it, which will mean that we have a continual improvement approach whereby we reduce waste and prevent litter.

I think that it was Rhodri Morgan who said that devolution is a great laboratory, and there is definitely an opportunity to innovate. Will you comment on the fishing gear issue?

That is not covered in the regulations that we are talking about today, but fishing gear, along with wet wipes, represents a significant marine litter issue. It is also a safety issue—we see pictures all the time that show animals being affected by it.

I am not aware of which regulations cover that issue. My officials might have that information, or I am more than happy to come back and discuss it with you.

That would be good, because it is an important issue.

Do my officials have any information on fishing gear?

I agree that we can come back with further information on that.

Convener, may I add a couple of comments in relation to earlier questions?

Yes.

I confirm that provisional frameworks have been established to ensure that we have interim arrangements in place following the end of the transition period. The arrangements that have been operationalised at official level have provided us with a good platform to engage with counterparts across the UK to discuss the impacts of the 2020 act.

I did not get a chance to contribute to the discussion on impacts across the supply chain, but we will be happy to provide further information on that. Andrew Forsyth addressed the issue of the full business regulatory impact assessment, and I clarify that the impacts across the supply chain could be identified at three potential levels—the point of producing plastics and manufacturing items, the point of distributing items, and the point of supplying items to end users. The full impact assessment includes a Scottish firms impact test, and we engaged with a number of organisations to inform that. Full details are set out in the BRIA.

As the minister noted, in our consultations to date, businesses have expressed support for the proposals. On the headlines from the BRIA, the expectation is that Scottish polymer producers are likely to experience minimal impact. Manufacturers of some of the items that are affected could experience some impact, although it would be minimal, but there are also opportunities, particularly as some manufacturers develop alternative—[Inaudible.]

We appear to have a technical problem with the connection. Liam Kerr has a supplementary question.

The technical problem is unfortunate as I was interested in what Janet McVea was saying. I hope that we will re-establish the connection shortly.

Minister, I understand that the intention is to publish guidance to help those who are affected by the regulations. What is the current status of that guidance? What is the timeline for its introduction?

My understanding is that the guidance is ready now and has been published on the website. My officials can give me the specific date if I am wrong.

The minister is correct. The guidance has been published in draft form online, and we continue to engage to ensure that it is robust. The final version will be published on 1 June, when the regulations come into force.

Minister, you said that the regulations are part of a wider policy approach for a circular economy and that, as part of that, the deposit return scheme will supplement the regulations. To help the committee with its work planning, can you tell us when we can expect to see the legislation to introduce the deposit return scheme?

I am afraid that I do not have a timeline for that just now. An announcement on that will be made to Parliament imminently. I will do it as soon as I possibly can. We are all aware of the urgency of getting the scheme implemented. I am working very hard on that, but I am afraid that I do not have a timeline today.

I completely understand that you do not have a specific timeline, but do you think that it will be this side of the summer recess—around June next year—or are we looking at a longer wait?

I will make an announcement to Parliament on that. I intend to update Parliament before the Christmas recess. I hope that that will be possible.

As we have no further questions, that brings us to the end of this evidence session. I thank the minister and her colleagues online for joining us today.

We will have a short suspension.

11:23 Meeting suspended.  

11:28 On resuming—  

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Land Reform (Scotland) Act 2016 (Register of Persons Holding a Controlled Interest in Land) Amendment Regulations 2021

Welcome back, everyone. Item 4 is consideration of the Land Reform (Scotland) Act 2016 (Register of Persons Holding a Controlled Interest in Land) Amendment Regulations 2021. I welcome Màiri McAllan, Minister for Environment and Land Reform, and her officials Fiona Taylor, Anna Leslie and Kirsty Slee, who join us remotely. Thank you all for joining us this morning.

The instrument has been laid under the affirmative procedure, which means that the Parliament must approve it before it comes into force. At the next agenda item, after this evidence session, the committee will be invited to consider a motion to approve the instrument.

I invite the minister to make a short opening statement.

Thank you, convener, and good morning, committee. I am pleased to be with you this morning to help to bring the new register of persons holding a controlled interest in land a step closer to its go-live date, which is 1 April 2022.

As members know, the register will represent a huge step forward in delivering transparency by making clear the identity of the people who make decisions about land in Scotland. The register was a commitment in the Land Reform (Scotland) Act 2016, and the principal regulations that implement it—the Land Reform (Scotland) Act 2016 (Register of Persons Holding a Controlled Interest in Land) Regulations 2021—were approved unanimously by the Parliament in February, after consideration in no fewer than eight committee meetings. I take this opportunity to thank your predecessor committee, the Environment, Climate Change and Land Reform Committee, for its commitment to and scrutiny of the regulations.

As a quick reminder of what the register will do, I note that it will complement information that is already available in the land register and the sasines register about the owner of land with information about associates—that is, those who have an influence on the owner and are taking decisions about how the land is used. It will create greater transparency in Scotland than there is in any other part of the United Kingdom and take us to the forefront of Europe in that regard. From my days as a commercial property lawyer, I know just how useful that will be.

The policy has been unanimously agreed. The Scottish statutory instrument that is before the committee addresses a very technical flaw, which has arisen due to the complex interaction between trust law on the one hand and conveyancing law and Registers of Scotland on the other. It concerns the situation in which trustees resign or die. In as simple terms as it is possible to use—and I hope that this is clear—the flaw means that, when a trustee who is named on the trust documentation and registered in the land register or the sasines register as the owner either dies or resigns, there will be no registrable recorded person for the purposes of the new register. That is largely because, for the purposes of the regulations, the recorded person flows from the land register, and the responsibility to identify the associates flows from the recorded person. Those who know trust law will understand that the problem is that a person automatically ceases to be an owner or a trustee on their death or resignation, but that does not correlate with the land register, which requires a conveyance.

It is very difficult to describe the complexity of it. However, the SSI is necessary to give effect to the original policy intent, because tackling the opaqueness of trust law was one of the original intents of the register.

The register has been subject to significant policy development and parliamentary scrutiny, but this small flaw was identified in the workshops that were run with Registers of Scotland to facilitate the information technology build of the register. We have shared the proposed SSI with a multitude of stakeholders, including the Law Society of Scotland, the Scottish Property Federation, the Scottish Land Commission, Community Land Scotland and Scottish Land & Estates, none of which raised any concerns.

It is a small tweak, but it is necessary in order to give effect to a very ambitious piece of land law. I should be very grateful if the committee would propose its approval.

Thank you, minister. We move to questions from members in relation to the instrument.

I remember those eight sessions fondly, and I do not remember this issue coming up. It is interesting that it was identified through the extensive IT build as an issue of due diligence. It seems to be a logical loophole to close.

What is the timescale for the roll-out of the register, and where are we with building in seamlessness of use for the public and users of the multiple registers, such that they can come to a portal and find out—in a way that makes sense to ordinary people, who do not have the benefit of experience of conveyancing and trust law—who owns a piece of land and who is influencing the ownership and management of that land?

I am not sure that I would call that a benefit.

You are absolutely right. Part of the reason why we are bringing the SSI now, and are keen to have this resolved now, is to allow that seamlessness. If we can overcome the issue that has been identified, we will still be on track for the opening of the register in April next year. We could have considered sorting this loophole after the fact, but it is about the deliberate intent to make a smooth transition to the creation of the register. That is why we are bringing it now.

So we are still on track for the original date of April.

Yes.

As there are no more questions, we move to item 5, which is formal consideration of motion S6M-02176, which calls for the committee to recommend approval of the draft Land Reform (Scotland) Act 2016 (Register of Persons Holding a Controlled Interest in Land) Amendment Regulations 2021. I invite the minister to move the motion.

Motion moved,

That the Net Zero, Energy and Transport Committee recommends that the Land Reform (Scotland) Act 2016 (Register of Persons Holding a Controlled Interest in Land) Amendment Regulations 2021 [draft] be approved.—[Màiri McAllan]

Motion agreed to.

Excellent. The committee will report on the outcome of the instrument in due course. I invite members to delegate authority to me as convener to approve a draft of the report for publication.

Members indicated agreement.

Minister, that brings our session with you to an end. I thank you and your officials for appearing before the committee this morning.

Thank you.

11:35 Meeting suspended.  

11:57 On resuming—