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Net Zero, Energy and Transport Committee [Draft]

Meeting date: Tuesday, December 5, 2023


Subordinate Legislation

Fly-tipping (Fixed Penalty) (Scotland) Order 2023 (SSI 2023/335)

The Convener

Our next agenda item is an evidence-taking session on an order subject to the negative procedure, which means that it will come into force unless the Parliament agrees to a motion to annul it.

Yesterday, Murdo Fraser lodged a motion to recommend annulling the order. Before we formally debate that, I thought that it might be helpful to have a brief evidence session with the minister and her officials, which will give us the opportunity to ask questions and seek clarification.

I welcome back Lorna Slater, the Minister for Green Skills, Circular Economy and Biodiversity; Ailsa Heine, a solicitor in the Scottish Government; and Janet McVea, head of Zero Waste Scotland. The minister will make a brief opening statement.

Lorna Slater

Thank you for the opportunity to discuss the order, which will change the amount that is payable under a fixed-penalty notice for fly-tipping offences from £200 to £500. That is the maximum level that the fixed-penalty amount can be set at by order under section 33A(10) of the Environmental Protection Act 1990.

We are taking this action to show that we are serious about tackling waste crime. Updating the amount of the FPN for fly-tipping is a commitment made in the national litter and fly-tipping strategy and in the year 1 action plan, which was published in June 2023. It will strengthen the existing enforcement regime for fly-tipping so that the fine issued by a fixed-penalty notice will now be a flat rate of £500.

The increase has broad support from the public and relevant organisations. The response to the public consultation on the national litter and fly-tipping strategy, which concluded in March 2022, showed strong support. The analysis of responses showed that 84 per cent of the 925 responses supported the increase, and 90 per cent of the 79 organisations that responded supported the increase to £500.

There are small financial implications for enforcement bodies such as local authorities, Loch Lomond and Trossachs National Park and Police Scotland, which will, as a result of the increase, incur minor administration costs in changing notices and internal procedures, although I note that those organisations were among those who responded positively to the increase during the consultation process.

Increasing the FPN is not the only action that we will take. It sits alongside a range of other measures that are set out in the national litter and fly-tipping strategy and year 1 action plan, such as publishing research into the enforcement of littering and fly-tipping, working to develop more effective collaborative working across organisations such as SEPA and local authorities, and supporting SEPA in offering a grant scheme to private landowners so that they can find ways to deter and deal with fly-tipping.

The Convener

At this point, I remind members of my entry in the register of members’ interests. I am a landowner and have been subjected to fly-tipping, as I guess most landowners in Scotland have.

During the evidence session on the Circular Economy (Scotland) Bill, we heard that £500 would barely scratch the surface of the costs of clearing things up. You have said that this is covered by legislation. Is there no way that the fine could be higher?

Lorna Slater

Ailsa Heine has the full details on that, but this is only one part of the enforcement regime around fly-tipping. SEPA has a separate range of civil penalties that it can issue for offences under section 33(6) of the 1990 act, including fly-tipping. Those penalties include monetary penalties of £600 and variable monetary penalties of up to £40,000, which is the maximum fine upon summary conviction for these offences. Those remain unchanged. Criminal proceedings are also possible, including conviction on indictment through a jury trial, imprisonment of up to five years and an unlimited fine.

However, fixed-penalty notices are intended for small-scale crime. A £1,000 or higher penalty would not be proportionate for the dumping of a sofa. If we are getting into serious waste crime, however, there are much more punitive measures.

At this point, I will hand over to Ailsa Heine.

I do not know whether the minister knows this detail, but what if no one has ever been charged with fly-tipping? I am not sure whether Moray Council has ever raised a fly-tipping fine. Do other councils do it?

Ailsa Heine

I cannot answer the question whether councils are raising the fines. They are responsible for enforcing fly-tipping offences, as is SEPA, which would be involved when the crime was perhaps more than just an isolated incident in one local authority. Councils are responsible for enforcing the regulations, but I do not have the detail on how many fines they are issuing. The fine is not intended to compensate the council for the costs—it is a penalty charge, and it is imposed for the commission of the offence.

The Convener

Okay, but I just remember when a deep freeze full of food appeared, along with its wrappings and the name of the person who had bought it. No one was going to impose a fine for that for the simple reason that they did not know who put it there. A fine is fairly meaningless if it requires evidence of who put it there, because the person who threw it away was probably not the person whose deep freeze it was. It might have been a white van man.

Lorna Slater

That is a specific example, but when waste that has been fly-tipped can be identified, the provision in the Circular Economy (Scotland) Bill would allow a fixed-penalty notice of £200 to be charged against the homeowner.

I will throw it open to the committee. Douglas Lumsden, do you have a question?

Douglas Lumsden

I was going to ask the same question that you asked, convener, about how many fixed-penalty notices have been issued in the past 12 months. Is the issue that we do not have that data to hand today, or do we just not have the data at all?

Janet McVea

The Scottish Government does not hold that data—it would be available from local authorities. That is also relevant to the discussion on the Circular Economy (Scotland) Bill.

So, to find out, the committee would have to write to every local authority to get that data.

Janet McVea

I think that that would be the case. Certainly, we do not hold the payment data.

Douglas Lumsden

Minister, you mentioned that SEPA can take action. Do we know how many actions it has taken in the past 12 months? You quoted fines of up to £40,000. How many people have, for example, been taken to court in the past 12 months?

I do not have the data on that but, if the information is with SEPA, I presume that we can write to the committee with it.

Janet McVea

We could certainly undertake to provide what we have. We will recheck all the available data, and we can provide what we have, but there are limitations to what the Scottish Government holds.

For the record, I should say that I am not head of Zero Waste Scotland—I have not usurped Iain Gulland. Just for clarification, I am head of the zero waste unit at the Scottish Government.

The minister positioned the SSI in the context of wider work and noted the range of agencies that are involved. A big focus of the new national litter and fly-tipping strategy that we published a few months ago is on supporting more effective collaboration between the range of agencies that are involved in enforcement. We are looking at getting clarification, including for the public, of who is involved and how the different agencies can collaborate better to maximise the totality of the tools that are available to them.

Mark Ruskell

We have a motion to recommend that the Parliament annul the instrument. This might seem an obvious question, but what would be the impact if the motion were agreed to? Would it just mean that fines would stay at £200 and would not go up, or are there wider implications?

That is my understanding—that the fines would stay at £200.

Murdo, are there any questions that you would like to ask?

Murdo Fraser

Thank you, convener.

I have lodged a motion to annul, but that was largely a device to ensure that the convener would allow me time to ask questions, which I hope has had an appropriate impact.

That just shows how effectively you can scrutinise secondary legislation using the negative procedure. Well done.

Murdo Fraser

Thank you, minister.

I actually welcome the increase—my concern is that it might not go far enough. Perhaps I can give a small anecdote to illustrate that. When I was doing research on fly-tipping, I spoke to a local authority environment officer in Edinburgh who said that he and a colleague had caught in the act an individual with a white van who was dumping mattresses by the roadside. He challenged that person and said that they would get a fixed-penalty notice. When that individual was told that the fixed-penalty notice would be £200, they said, “Well, just give it to me, because that’s less than it would cost to dispose of these legally.”

Clearly, there is a need to increase the charges, because they are not at a level where they are acting as a deterrent. We also know that, increasingly, people involved in illegal fly-tipping come from an organised crime background. Therefore, penalties need to be at a level where they are a deterrent. I think that £500 is helpful, but I urge the Scottish Government to consider whether it should go further and increase the level.

Another point that I want to raise came out of the session that the committee had two or three weeks ago with COSLA and local government representatives. It is about whether fixed penalties could help create an additional revenue stream for local councils and whether the money could be ring fenced in council budgets to support better enforcement. We have heard that local government has real issues with being able to devote resources to the issue. We can have as many fixed penalties as we want but, if we do not have people on the ground who can enforce them and issue notices, that will have little impact.

We also know that, due to budget pressures, councils across the country are having to reduce access to recycling centres. Based on the feedback that I got from my members’ bill consultation, that is the issue that most people raised as a contributory factor to fly-tipping. That a person cannot dispose of the goods legally is never an excuse for fly-tipping, but clearly, the more barriers that are put in the way of legal disposal, the more likely we are to drive up the number of cases. Do you have any view on the extent to which revenues from fixed-penalty notices might be helpful in supporting enforcement action by local councils?


Lorna Slater

I will go through all those matters in turn. First, I make it very clear that fixed-penalty notices are only part of the enforcement regime. As I have said, SEPA has a range of civil penalties available to it, including variable monetary penalties of up to £40,000. A fixed-penalty notice is just that—a fixed-penalty notice—and increasing the fine above £500 is getting into territory where it becomes disproportionate. As Ben Macpherson has highlighted, we sometimes get a little bit of fly-tipping next to the bins in Leith, and slapping someone with a £1,000 fine for that would be disproportionate. A fixed-penalty notice does not allow for variability—its intention is to deal with low-level offences.

You are absolutely right that organised waste crime is a serious concern, but that is why the higher penalties and offences exist. Ailsa Heine has more detail on that, so I will hand over to her in a moment to tell you how the hierarchy of enforcement works.

I am not supportive of ring fencing, because that would not be in line with the Verity house agreement. However, as discussed in the context of the Circular Economy (Scotland) Bill, councils can make decisions on their enforcement choices based on what revenue they might get or what cost savings they might make through enforcement that could, for example, prevent them from having to take on clean-up costs.

I am aware that access to recycling centres has been restricted, partly due to Covid and other concerns. We are concerned about that and will be looking at it.

Ailsa Heine

In relation to the example that you gave of the white van man dumping mattresses and saying, “Well, it will cost less to pay the fine,” determining how an offence should be enforced is a matter for local authorities, and in a situation of that kind, a fixed-penalty notice would perhaps not be the most appropriate sanction, so the council could consider reporting for prosecution. The fines for fly-tipping that a court could impose on prosecution would be considerably higher and would potentially take into account the gains that the person is making from the crime.

The fixed-penalty notice has its place in dealing with low-level offending, but the case that you have highlighted does not sound like that; the person in question could be a repeat offender who is making a lot of money out of that activity. That is not really what a fixed-penalty notice is designed to deal with. If we put the fixed-penalty amount up to £1,000, we risk local authorities having no means of dealing with low-level offending, because it would be disproportionate for somebody to get a fixed-penalty notice of £1,000 just for dumping a small amount of waste.

A hierarchy of sanctions is available. Local authorities can also call in SEPA to help deal with enforcement in cases of larger-scale fly-tipping. It can impose a wider range of civil penalties, including variable and fixed monetary penalties, and it can also report for prosecution. However, it is subject to guidance from the Lord Advocate in deciding whether to impose civil sanctions or whether to report for prosecution. One of the matters that SEPA has to take into account in considering whether to report for prosecution is the level of financial gain that the person has made from the crime, along with the level of environmental damage and the seriousness of the crime.

A lot of things come into play in dealing with such offences. The fixed-penalty notice is meant to allow local authorities to deal with very straightforward, low-level offending efficiently and effectively—it is not there to deal with higher levels of offending. That is why, under the original power, ministers are restricted to setting a fixed penalty of up to level 2 on the standard scale, which is £500. The provision is meant to deal with low-level offending, so it would not necessarily be appropriate to have powers to impose vast amounts for fixed-penalty notices. As I have said, however, the levels of fines with prosecution, and penalties that are issued via SEPA, are considerably higher.

Murdo Fraser

Thank you for that response. I have a couple of points on what you have raised. One issue that came out strongly in the consultation on my member’s bill was frustration from local authorities that they would report people for prosecution but those people were not then prosecuted. I do not have the figures with me, but we did some research into the number of prosecutions that were taken forward, as opposed to the number of people who were reported to the procurator fiscal. The number of prosecutions was tiny—it was in the low teens, if I remember correctly.

We know that, as with all other areas of public policy, the Crown Office and Procurator Fiscal Service is under huge pressure. If you are a procurator fiscal looking at your casework, you have all sorts of crimes against individuals to deal with, and tackling fly-tipping crimes is not a priority. A very small proportion of the incidents that were reported to COPFS, therefore, were actually taken forward. That is a great frustration for local authority environmental staff, because they pass the papers through and nothing happens, and people get off scot free.

That is why the fixed-penalty notices are important—they are a practical step that can be taken at local level. I hear what you have to say about the levels. Could we create a new legislative framework—as my bill is looking at doing—whereby there would, in effect, be a sliding scale of fixed-penalty notices that could be issued by local authorities? For very low-level offences, such as dumping a sofa, the penalty might be £500, but where an offence was more serious, the penalty could be increased to a higher level. That would be at the discretion of the local authority.

I am happy to explore that with you separately, minister.

The Convener

Minister, I give you a gentle nudge that perhaps a meeting with Murdo Fraser afterwards might avoid a long discussion in the committee room, as I am struggling to find time to fit everything in. I am sorry—I do not want to put words in your mouth.

No, no—that is a good suggestion, convener. If the member would be content with that, we can certainly take the discussion out of this space, if that would be convenient.

A few committee members would like to come in. I will go to Bob Doris and then Monica Lennon.

Bob Doris

I will try to be brief, convener.

Minister, I think that Mr Fraser is using parliamentary process to promote his member’s bill, which I appreciate, but I suspect that he also supports the order. I will certainly not be supporting the motion to recommend annulment.

I have three questions on the specifics of the order that is before us. It is my understanding that, if the legislation is passed by the Parliament, the powers will be in force by January next year. Is that correct?

I will roll my questions together, as I think that that would be helpful, given the time constraints. Secondly, is there any distinction between commercial and household waste in relation to these fixed-penalty notices? I sympathise with Mr Fraser’s point about a sliding scale of fixed-penalty notices, and the question whether we can evidence a repeat offender, perhaps commercial. Is there any distinction between a householder and a commercial offender?

Finally, I think that there is a feeling in the committee that there needs to be better, more robust data collection across the whole area. Data has to be collected consistently across 32 local authorities, and the courts as well, and it all has to sit in one place.

I have tried to roll up all three questions, convener, so I do not have to come back in. I hope that you got a note of those, minister.

Lorna Slater

Absolutely. On the data collection point, I said in my response to Mr Fraser that we are working on creating a national database and ensuring that we are pulling that data together. We agree that the work needs done; I just do not think that legislation is required to do it. That is fine.

With regard to changing the fixed-penalty notice in the SSI that is in front of us, we are not seeking to change the crime at all—we are not changing who will be fined. I clarify that, in relation to the householder’s duty of care in the Circular Economy (Scotland) Bill, which were talking about earlier, the fine for the householder is £200 and will remain at that level. This SSI is different and is to do with existing fly-tipping offences under section 33A(9) of the 1990 act. It is those offences for which the fixed penalty will be going from £200 to £500. The fixed penalty in relation to the householder’s duty of care will remain at £200.

Monica Lennon

It is probably quite timely that the Scottish litter survey for 2023 was published last month. It will not surprise colleagues that nine out of 10 people believe that litter is a problem in Scotland; that opinion has grown over the past three years. There have been questions about data on what local authorities and SEPA are doing. Minister, I know that you do not hold all that information, but you are able to access it and to have those conversations.

One of the things that came out in the litter survey—and in another report that I think that Diffley Partnership consultants were involved in—is that there is quite a bit of inequality between the most and least affluent communities. If you live in a less affluent area, you are more likely to have litter problems. It looks as though that is not being tackled as robustly as it is in wealthier areas.

I wonder whether I can get a commitment from you, minister: when you look at the data on how much discretion has been applied to taking action, can you look at the equality impact of that as well? There was an equality impact assessment for the fly-tipping strategy, but I hope that the Government agrees that it is not fair that, just because you live in a less wealthy area, you have to put up with litter and fly-tipping and it is not seen as a priority compared with areas that are better resourced and where people have more power and wealth. I am keen to get your views on that.

Lorna Slater

Of course I am concerned about the equality impact of these matters. It is absolutely true that improved enforcement can benefit deprived communities because, in many cases, they are the ones that are suffering most from the impacts of litter. Wherever we take action on litter prevention and give local authorities and SEPA more powers on litter prevention, we intend to benefit deprived communities.

Douglas Lumsden

The committee heard evidence from the waste industry about sofas that contain POPs, or persistent organic pollutants, being banned from going to landfill. So many recycling centres across Scotland are no longer going to accept them. Are you concerned that that will feed into more fly-tipping—that people who go to a recycling centre with a sofa and are told that the site will not accept it might decide to dump it elsewhere instead, perhaps on the drive home?

Lorna Slater

Yes, we absolutely share that concern. Dealing with POPs waste is a regulatory requirement; it needs to be incinerated safely. However, I would note that sofas that have fire-retardant chemicals on them are perfectly safe to use and reuse. We need to look at how we get those items into the reuse stream and not consider them to be waste when they are still perfectly good to use. It is only when they come to the end of their life that we need to ensure that they are disposed of properly.

Douglas Lumsden

The information about POPs took the committee by surprise, so do you think that people are aware that they cannot take those sofas to recycling centres and that they need to make alternative arrangements to get rid of them?

That is a very good point. The guidance for local authorities has been published only recently, so it is probably not in the wider public domain. Therefore, yes, absolutely, we can have a think about that.

Janet McVea

As the minister said, we are very alive to that, and that is certainly a key consideration for SEPA and local authorities. There is work in train, involving Zero Waste Scotland and SEPA, to support clear and consistent communication by local authorities. We have seen some good examples of that communication.

However, we have heard that some local authorities have already stopped taking such items, so that could lead to a big problem with fly-tipping down the line.

Janet McVea

Yes, it is a key aspect of the work that is in train; it is really important.


The Convener

Thank you. As I do not see anyone wanting to ask any more questions, that concludes our evidence-taking session on the instrument.

Item 4 is the formal debate on motion S6M-11534, in the name of Murdo Fraser, calling on the committee to recommend to the Scottish Parliament that the Fly-tipping (Fixed Penalty) (Scotland) Order 2023 (2023/335) be annulled.

Now, Murdo, I am going to ask you at the outset whether you are going to move or not move the motion. If you do not move it, you will not be able to speak to it. Would you like to move the motion?

Murdo Fraser

I will move it, before withdrawing it, convener, as I want to make a very brief point.

Motion moved,

That the Net Zero, Energy and Transport Committee recommends that the Fly-tipping (Fixed Penalty) (Scotland) Order 2023 (2023/335) be annulled.—[Murdo Fraser]

Murdo Fraser

Thank you for the opportunity to come to the committee in order to raise these important matters. I welcome the fact that penalties are to increase to £500—it is a helpful step in the right direction. However, I think that more needs to be done in this area, and I look forward to meeting the minister separately to discuss some ideas that I might have about how we might bring that into effect.

With that, I will withdraw my motion.

The Convener

You might have moved it and withdrawn it, but I still have to take comments from other members. I will take Mark Ruskell, Bob Doris and then Ben Macpherson, and then I will make a proposal. We are going to be busy.

Mark Ruskell

I sort of understand the method that Mr Fraser has used today in order to provoke a debate on the matter but, given the context of the debate, I just want to ask him about his member’s bill. I am aware that a consultation on the bill took place last year, and that a final proposal was lodged in November 2022, but where is the bill sitting at the moment? Clearly, the Scottish Government has gone to the limits of its powers under primary legislation, and we have heard from the minister about the thinking behind setting fixed-penalty notices at £500, and about the wider legal framework with regard to penalties and enforcement. That discussion has been useful.

However, Mr Fraser has a very clear set of legislative proposals that have been consulted on; indeed, I believe that a level of £2,000 for fixed-penalty notices was part of that consultation. It would be good to know when that member’s bill will be presented to this committee, because, given that we are dealing with the Scottish Government’s Circular Economy (Scotland) Bill, the timescale for which has been well understood for a while now, it might have been opportune for Mr Fraser to have presented his bill at the very point at which we are considering whether primary legislation is adequate to deal with fly-tipping and a whole range of other issues.

I therefore ask Mr Fraser when he winds up this debate, such as it is, to reflect a bit on his own member’s bill proposal. Having done a number of such bills myself, I am well aware of the process and the constraints, perhaps, on parliamentary support. However, Mr Fraser has a clear proposal. When are we going to see it?

The Convener

Murdo Fraser will get a chance to answer that question when he sums up at the end. Having failed to finesse things in quite the way that I had hoped to, I will go to Bob Doris and ask whether he has any questions that he wants Mr Fraser to clear up when he sums up.

There are probably lots of questions, convener, but I have to say that you merely caught my eye. I do not wish to comment.

You do not?

I do not wish to comment.

Ah. I call Ben Macpherson.

Ben Macpherson

I will be brief.

This comment might be as much for the minister as it is for Mr Fraser—perhaps more so—-but I just want to highlight on the record the helpful commitment from Mr Fraser and the minister to having a follow-up meeting and to say that it would be useful and good if the committee could see a note of that meeting in due course.

I will let Sarah Boyack make a brief comment, too, before I come to Murdo Fraser for his summing up.

Sarah Boyack

This has been a really useful debate and, like others, I was interested to see it coming forward. Again, a lot of this comes back to the issue of finance for local authorities not just to ensure that facilities are available but to communicate with our constituents so that they take the right route and we do not see any more fly-tipping. After all, it damages our communities, and we need to get rid of it.

The clerks have just reminded me that I was trying to finesse this almost too cleverly. The minister now gets an opportunity to comment on the points that have been raised before I come to Murdo Fraser.

The only comment that I think pertains to me came from the deputy convener. What he has asked for is not a problem at all.

I now ask Murdo Fraser to sum up and to move or withdraw the motion.

Murdo Fraser

Thank you very much, convener, and thanks to colleagues who have commented.

The only substantive question that I think that I need to respond to was from Mark Ruskell on timing. He is probably as frustrated as I am at the lack of progress on the bill, but that has nothing to do with me. I am afraid that it is simply to do with the time pressures on the non-Government bills unit.

That said, I have now seen an initial draft of the bill, which—from memory—was submitted to me about three or four weeks ago. A draftsman was appointed, a lot of work has been done and we are now tweaking that draft. I am in the hands of the parliamentary authorities and, as Mr Ruskell has rightly acknowledged, there are major resourcing issues when it comes to supporting members who bring forward bills. However, I hope, at the very least, to be in a position to publish a final version of the bill within the next few weeks. Indeed, depending on my conversation with the minister, I might well be able to bring forward some of my proposed bill as amendments at stage 2 of the Circular Economy (Scotland) Bill instead of presenting a stand-alone piece of legislation. That might be helpful to the committee.

That is the only substantive point that I had to deal with, convener. Given the undertaking that I have had from the minister, it is not my intention to press the motion.

As the member is not pressing the motion, does any other committee member wish to do so? If the answer to that question is no, which it appears to be—

I am sorry to be a stickler for process, but Mr Fraser has already moved the motion. He now needs to seek permission to withdraw it. That is the process.

Say that again, Bob.

Bob Doris

Mr Fraser has already moved the motion—speculatively, so that he can have more airtime in the committee. I commend him for his opportunism, but the process now is that he should seek permission to withdraw the motion.

Do you seek permission to withdraw your motion, Mr Fraser?

I do.

Does the committee agree to the motion being withdrawn?

Members indicated agreement.

The Convener

I now invite the committee to agree that it does not wish to make any recommendations in relation to the instrument. Are we agreed?

Members indicated agreement.

The Convener

We will report on the outcome of the instrument in due course and I invite the committee to delegate authority to me as convener to finalise that report for publication. Is the committee happy to do so?

Members indicated agreement.

I thank the minister and her officials for attending. I will push on with the next item and ask the minister to leave quietly.

Producer Responsibility Obligations (Packaging Waste) Amendment (Scotland) Regulations 2023 (SSI 2023/336)

The Convener

Item 5 is consideration of another negative instrument. As the instrument has been laid under the negative procedure, its provisions will come into force unless the Parliament agrees to a motion to annul. I am very pleased to say that no motions to annul have been lodged.

If members have no comments, I invite the committee to agree that it does not wish to make any recommendations in relation to the instrument. Are we agreed?

Members indicated agreement.

Thank you. That concludes the public part of our meeting, and we will now go into private session.

12:38 Meeting continued in private until 12:56.