Delivering Scotland's circular economy - proposed Circular Economy Bill: consultation

4) Littering and Improving Enforcement

Littering and flytipping is a blight on local communities, damaging to the environment and a cost to taxpayers and businesses.

Ongoing Activity

The National Litter and Flytipping strategy consultation^[45] asked respondents if they supported further measures to use civil penalties to enforce flytipping offences and bring powers for local authorities in line with those available to SEPA. It also outlined proposals to explore raising fixed penalty notices beyond the current maximum (£500 for local authorities and £1000 for SEPA). These measures will be pursued under the Circular Economy Bill, subject to the outcome of the Litter and Flytipping consultation which closed on 31 March 2022.

The Scottish Government also has policies and legislation in place and planned to prevent marine plastic pollution which are implemented through the Marine Litter Strategy Action Plan^[46], in conjunction with the terrestrial Litter and Flytipping Strategy. There is a focus on prevention of marine litter as well as its removal, supporting the inclusion of plastics within a circular economy which may otherwise be lost to landfill, as degraded material, or sadly to the marine environment. The Strategy's Action Plan covers many plastic items, whether large, such as fishing gear, or small, such as plastic pellets, powders or flakes (nurdles).

Actions include working with the fishing and aquaculture industries to improve waste management of end of life gear, developing a system with other UK administrations that will support the collection and recycling of these items. To enable easier recycling, the Scottish Government is also working internationally on the development of a European Committee for Standardization (CEN) standard^[47] for the circular design of fishing and aquaculture gear. This aligns with the EU SUP Directive, and both will be subject to public consultation.

With regard to nurdles, the Scottish Government has led and will continue to progress international efforts to reduce this form of microplastic pollution, the second largest globally. Previous work initiated the publishing of an internationally recognised standardisation document, the PAS510^[48], which sets the first formalised requirements for businesses managing and handling this material to prevent their loss to the environment. These fundamental requirements, and those developed through the Scottish Government approach are reflected in the OSPAR Recommendation^[49] which also includes the minimal asks of any certification scheme to verify responsible nurdle handling and management by businesses. The international plastics industry is in the process of developing a certification scheme, and the Scottish Government continues to work with them to strive for high ambition levels to end this form of avoidable marine pollution, and prevent the loss of this material from our circular economy. As part of these discussions we will consider whether further regulation or legislation is needed in this area.

Proposal 12: New penalty for littering from vehicles

Context

A review of the previous litter strategy Towards a litter-free Scotland (2014), recognised that road litter still poses significant challenges and recommended that there needs to be future actions focused on reducing roadside litter. Enforcement is one of three themes that is the focus of the new National Litter and Flytipping Strategy, which was consulted on between 13 December 2021 and 31 March 2022.

Under the Environmental Protection Act 1990, littering is an offence in Scotland. This includes litter that is dropped from a vehicle. Current legislation requires the person leaving the litter to be identified before enforcement action can be taken. Feedback from litter authorities and key stakeholders suggests that this is often difficult to ascertain when the littering offence occurs in relation to a vehicle, creating a gap in current enforcement and weakening the deterrent power of the fixed penalty notice.

There is a separate enforcement regime for flytipping offences which are waste crimes. Section 33 of the Environmental Protection Act 1990 defines the criminal offence of flytipping and provides for criminal penalties, as well as fixed penalty notices. There is also a presumption of responsibility for those in control of vehicles used in flytipping offences. Furthermore, SEPA has civil enforcement powers under the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015. Our recent consultation on a National Litter and Flytipping Strategy included proposals to review existing legislative powers for enforcing flytipping offences, and raise the current fixed penalties that can be issued for flytipping offences. A finalised strategy will be published later this year.

Example

To strengthen the current enforcement regime, we are proposing a new enabling power that will allow a fixed penalty notice to be issued to the registered keeper of a vehicle when a littering offence has been committed from that vehicle. This will both increase the deterrent effect and the options available to enforcement officers in tackling roadside littering.

The proposed power will allow Scottish Ministers to introduce secondary legislation to implement a fixed penalty regime designed to complement existing offences, which can still be used where the person who dropped the litter can be identified. The intention behind this new power is to allow a vehicle's registered keeper to be issued with a fixed penalty notice when a litter authority has reason to believe that a littering offence has been committed from their vehicle, regardless of whether or not it can be established that the litter was dropped/deposited by the registered keeper.

The introduction of this fixed penalty regime will bring Scotland into line with England and Wales where such a fixed penalty regime was introduced by the Anti-social Behaviour, Crime and Policing Act 2014 and subsequent regulations. It also delivers on the Scottish Government commitment made within the National Litter Strategy to look for a suitable opportunity to legislate to remove barriers to enforcement in littering from vehicles.

There was support for this proposal under the previous Circular Economy Bill consultation in 2019. 93% respondents said they agreed that Scottish Ministers should have powers to introduce a new fixed penalty regime for littering from vehicles; and 73% of respondents agreed that the registered keeper of a vehicle is responsible for offences such as littering from or in relation to their vehicle.

Questions

31. The previous consultation showed broad support for the proposal that Scottish Ministers should have the powers to introduce a new fixed penalty regime for littering from vehicles. Is there any new context or evidence that needs to be taken into account?

32. The previous consultation showed broad support for the principle that the registered keeper of a vehicle bears primary responsible for offences such as littering from or in relation to their vehicle (for example by passengers or people using that vehicle at that time). Is there any new context or evidence that needs to be taken into account?

Proposal 13: Seizure of vehicles

Context:

The vehicle seizure powers in Scotland are under Section 6 of the Control of Pollution (Amendment) Act 1989 (COPA 89) and require that an enforcement authority obtains a warrant from the sheriff.

The Clean Neighbourhoods and Environment Act 2005 provided environmental regulators in England and Wales with new and more flexible powers to search and seize vehicles in relation to waste crime. Amendments were made to COPA 89, as well as to the Environmental Protection Act 1990 enabling environmental regulators in England and Wales to search and seize vehicles used in the commission of specified waste crimes where there are 'reasonable grounds' to believe or suspect that an offence has been committed and the vehicle was used in the commission of the offence. Changes also provided for the court to order the forfeiture of a vehicle used in the commission of an offence.

The offences covered include:

• unauthorised or harmful depositing (including flytipping), treatment or disposal, etc. of waste;
• breaches in duty of care, as respects waste; and
• handling or storing waste without an environmental permit.

Example

As part of the previous consultation in November 2019, it was proposed that enforcement authorities (such as SEPA and local authorities) in Scotland should be given powers to seize vehicles linked to waste crime. This is part of the overall efforts to minimise waste crime in Scotland and also bring us into line with the powers that are available in the rest of the UK.

The vast majority of respondents (91%) were in favour of these powers being provided and so Scottish Ministers intend to take powers as part of the Circular Economy Bill.

Question

33. The previous consultation showed broad support for the principle that enforcement authorities should be given powers to seize vehicles linked to waste crime. Is there any new context or evidence that should be taken into account?