Developing Scotland's circular economy: consultation on proposals for legislation

4. Improving enforcement

The Scottish Environment Protection Agency (SEPA) is the environmental regulator in Scotland. Its ‘‘One Planet Prosperity – A Waste to Resources Framework’^[33] outlines how it intends to drive down waste production and keep valuable materials circulating for as long as possible, whilst preventing and tackling the harms associated with waste management and waste crime. These guiding principles define SEPA’s approach to waste and resource management across all sectors of the economy.

SEPA is developing a sector plan for every environmentally regulated business. The sector plans will help drive business compliance with environmental regulations to create a level playing field and a platform to innovate. The plans also encourage businesses to go ‘beyond compliance’ and work collaboratively on a voluntary basis to reduce energy efficiency and the use of material and water resources.

SEPA has worked with businesses to support secondary material use, particularly in the food & drink, oil & gas, chemicals and construction sectors. Using a range of regulatory approaches, SEPA has supported the development of new fuels, fertilisers and construction products while ensuring a high level of environmental protection.

While Scotland must take all opportunities to use resources more sustainably, there are threats, not least from the vulnerability of the waste industry to criminal behaviours and infiltration by serious organised crime groups. Waste crime is a direct threat to the principles and ambitions of a circular economy and for our aspirations of becoming a resilient, resource efficient economy.

Measures have already been implemented to tackle waste crime. New fixed penalty powers granted to SEPA in 2015 are used, in a targeted way, to tackle low-level non-compliance with waste legislation. As part of broader campaigns, SEPA has used fixed monetary penalties in areas including food waste recycling, open burning, unlicensed waste carriers, incomplete special waste consignment notes and landfill data returns.

Since 2016, SEPA has responded to around 8,000 waste and resource management related environment incidents. The Scottish Government is committed to ensuring that SEPA has the necessary powers to enforce environmental law properly and to restrict those illegal waste activities that hinder and damage the rest of the waste industry in Scotland.

We have identified two improvements to enforcement that we intend to include in the proposals for the circular economy bill. The first is to address a gap in the powers available to enforcement authorities in relation to vehicle seizures linked to waste crime.

The second is an enabling power to allow the Scottish Ministers to create a fixed penalty regime in relation to littering from vehicles, to help reduce the tonnes of litter that need to be cleared from our roads each month.

Both proposals will make the same powers available to SEPA and Scottish local authorities as are available to the enforcement authorities in England and Wales, ensuring that Scotland is not seen as a “soft option” when restrictions are tighter elsewhere in the UK.

Proposals
(i) Vehicle seizures in relation to waste crime

The vehicle seizure powers in Scotland are under Section 6 of the Control of Pollution (Amendment) Act 1989 (COPA 89).^[34]

In 2005, environmental regulators in England and Wales were given new and more flexible powers in relation to vehicle seizures in relation to waste crime. These amendments, and subsequent secondary legislation in 2015, enabled environmental regulators in England and Wales to seize vehicles in relation to contraventions of specified waste crime involving the use of a vehicle. For example, it is not necessary for them to obtain a warrant to seize a vehicle in relation to a specified waste crime involving a vehicle, provided certain conditions are met.

The Clean Neighbourhoods and Environment Act 2005 (which repealed Section 6 of COPA 89 for England and Wales only) enables enforcement authorities in England and Wales to seize vehicles for a wider range of suspected offences, if they have ‘reasonable grounds’ to believe or suspect that an offence has been committed and the vehicle was used in the commission of the offence.

The offences covered include:

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

The 2005 Act also provides power for the courts to order the forfeiture of a vehicle used in the commission of an offence and for possession to revert to the relevant enforcement authority after a person is convicted of the offence.

Also introduced were the Control of Waste (Dealing with Seized Property) (England and Wales) Regulations 2015, which remove the requirement for the enforcement authority in England and Wales to obtain a warrant from a magistrate prior to seizing, if a vehicle is suspected to have been used in the commission of the above offences.^[35]

The legislation also sets out:

• what a seizure authority must do to ensure the safe custody and determine the rightful owner of any seized vehicle or other property;
• the circumstances in which the authority must return the property to its owner; and
• the circumstances in which it can sell, destroy or otherwise dispose of the property.

As part of this consultation, we are seeking views on whether, as part of overall efforts to minimise waste crime, enforcement authorities in Scotland should be given similar powers to seize vehicles linked to waste crime.

(ii) New penalty for littering from vehicles

The National Litter Strategy Towards a litter-free Scotland (2014) recognises the important role of enforcement alongside a focus on prevention in changing littering behaviours. Although progress has been made, there is recognition that the transition to prevention is ongoing and there are significant concerns about the volume of litter and its impact on terrestrial and marine environments and associated wildlife. Many littered items, if disposed of properly, can be recycled, contributing to our circular economy approach.

Clearing up litter is also a burden for the public sector and landowners. Approximately £1 million of public funds a week is spent clearing litter, funds that could be better used on other essential services. On Scotland’s main road network, approximately 7 tonnes of litter is collected per month from the M8 and M9 alone. According to information from Keep Scotland Beautiful, in 2018-9 the presence of litter was recorded on around 86% of motorways and class A roads. This resonates with public attitudes relating to roadside litter: survey results from 2018 show 86% of respondents thought there is a problem with the amount of roadside litter in Scotland, and 91% thought litter creates a negative impression of Scotland.

Under the Environmental Protection Act 1990, littering is an offence in Scotland. This includes litter that is dropped from a vehicle. The 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.

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, whether or not 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.

Questions

Please note that there is a general question at the end of the consultation where you can provide further information, if required.

13. Do you agree that Scotland should have the power to seize vehicles suspected of waste crime, similar to the rest of the UK?

A) Yes
B) No
C) Neither agree nor disagree

14. Do you agree Scottish Ministers should have powers to introduce a new fixed penalty regime for littering from vehicles?

A) Yes
B) No
C) Neither agree nor disagree

15. Do you agree with the introduction of a new system that stipulates that the registered keeper of a vehicle is ultimately responsible for criminal offences such as littering from or in relation to their vehicle (for example by passengers or people using that vehicle at that time)?

A) Yes
B) No
C) Neither agree nor disagree