Circular Economy (Scotland) Bill: equality impact assessment

Stage 1: Framing

Results of framing exercise

A framing exercise was carried out to determine and identify relevant areas for investigation.

An EQIA has been completed for the Bill, to ensure that:

a. The enabling powers are designed in such a way as to avoid causing issues during the development of secondary legislation

b. Potential issues are identified early, to allow further investigation prior to development of secondary legislation.

Specifically, this EQIA considers impacts on people across the range of protected characteristics based on the three tests it is required to address:

• Does this policy eliminate discrimination for each of the 9 protected Characteristics (PCs). If not is the discrimination justifiable? Can it be mitigated?
• Does this policy advance equality of opportunity for PC groups?
• Does this policy foster good community relations between people of PC groups.

Policy analysts within Zero Waste Scotland made an initial assessment of potential impacts on those with protected characteristics, and this was used as the basis of a workshop session with Scottish Government offcials. Following the workshop session, the following issues were noted as requiring further consideration:

Proposal consulted on: Fixed penalty notices for the registered keeper of a vehicle when a littering offence has been committed from that vehicle

Issue: Ability to understand and pay fines may differ, likelihood of committing a littering offence

Relevant protected characteristics: Age, Disability, Race

Proposal consulted on: Fixed penalty notices for breaching householders' duty of care in relation to disposal of household waste^[5]

Issue: Ability to understand and pay fines may differ, likelihood of committing a flytipping offence

Relevant protected characteristics: Age, Disability, Race

Proposal consulted on: Seizure of vehicles linked to waste crime

Issue: Potential higher impact of a loss of a vehicle if less able to access other forms of transport

Relevant protected characteristics: Disability, Race

Proposal consulted on: Strengthening the approach to household recycling collections

Issue: Accessibility of recycling

Relevant protected characteristics: Disability

Proposal consulted on: Enforcement/fines for household recycling

Issue: Accessibility of recycling

Relevant protected characteristics: Disability, Age

Proposal consulted on: Charges for Single Use Items

Issue: Accessibility, affordability and suitability of alternative items

Relevant protected characteristics: Disability, Age

Key Findings

At the time of this framing exercise in 2019, our evidence did not identify any positive or negative impacts from the introduction of legislation as part of the Circular Economy Bill.

The potential for secondary legislation to have impacts on people with protected characteristics, particularly disabled people and potentially with regard to age, race and sex was identified during this exercise. These include in relation to proposals for charging for single use items, the development of household waste and duty of care measures and proposals relating to littering and flytipping. These will be considered during the design of proposals for secondary legislation.

For this reason a full EQIA is considered necessary.

Extent/Level of EQIA required

As the Circular Economy Bill is intended to introduce a range of mainly enabling powers, it is not, in itself, expected to result in significant impacts on groups with protected characteristics, however where any negative impacts are identified we will seek to mitigate them. It is also possible that secondary legislation, implemented using these powers, may have an impact and further equalities impact assessments will be carried out during the development of any secondary legislation.

At this stage of the CE Bill process, it is considered appropriate to conduct a high-level EQIA. This EQIA will be completed using desktop research to identify any key evidence relevant to the issues noted above. The EQIA will be used to determine the extent of further evidence gathering, or external engagement required. In order to ensure that we are able to any impacts of applying this policy against the three needs of the public sector equality duty. For example this may involve consultation with groups representing people with one or more of the protected characteristics. Analysis of the findings from that consultation will in turn be used to shape the policy.

This iteration of the EQIA record has been updated following the public CE Bill consultation, which provided an opportunity for affected groups to contribute views or evidence. While no further evidence was provided, in general views aligned well with the conclusions as laid out in the initial iteration of the EQIA.

Further EQIAs will be carried out, as needed, when secondary legislation is being considered. This will allow for more detailed consideration of any issues, and for recommendations to be made about any amendments or mitigating measures needed in line with the three requirements of the general equality duty.

For the proposal to amend householder's duty of care in relation to household waste, which does not require secondary legislation, further assessment needs have been considered as being unrequired as the Bill provisions update an existing duty on householders. Householders are already subject to the duty of care in relation to disposal of household waste and must take reasonable steps to ensure that waste produced on their property is only transferred to an authorised person or to a person who is authorised for the purposes of transport though a breach of this obligation is not itself a criminal offence. However, at present, where household waste transferred in breach of the duty of care is subsequently fly-tipped, the householder can be the subject of enforcement action and be considered jointly liable with the fly-tipper under section 33 of the 1990 Environment Protection Act (EPA) (as amended).

This proposal makes a breach of the existing householder duty of care a criminal offence, and will also provide for enforcement by means of a fixed penalty notice procedure for local authorities. The proposal will also mean that SEPA can use its existing enforcement powers in relation to this offence. It is anticipated that the bulk of enforcement action will be by way of fixed penalty notice or, in the case of SEPA, fixed monetary penalty, rather than criminal prosecution. This proposal will also bring Scottish duty of care provisions in line with those in England and Wales.

Updated guidance for local authorities will be developed to ensure a greater understanding of enforcement responsibilities and will include clear guidelines on when enforcement action, including use of Fixed Penalty Notices would be considered reasonable. There is an existing Code of Practice in relation to the Duty of Care^[6] as provided for by section 34 (7), which will be updated to reflect the changes to the householder duty of care as a result of this proposal.