Seòmar agus comataidhean

Will the minister take an intervention?

Will the minister take an intervention?

Okay. Thank you.

Thank you, convener. I remind members of my entry in the register of members’ interests: I was a local councillor at the start of this session of Parliament.

I will move amendment 201 and speak to the other amendments in the group and specifically 202, 203 and 204, which are in the name of my colleague Murdo Fraser. Murdo Fraser cannot be at the committee this morning due to a medical appointment, so I will put forward those amendments and speak to them on his behalf.

As colleagues will be aware, Murdo Fraser has taken a keen interest in the bill’s provisions on littering and fly-tipping and has been preparing a member’s bill on the issue, which seeks to improve data collection and publication; adjust the liability both on generators of waste and on the innocent owners of land on which waste is dumped; and increase the penalties for offenders. The consultation responses to the member’s bill proposal showed very strong support for each of those measures.

I understand that Mr Fraser engaged with the Scottish Government and specifically Lorna Slater, who was the minister previously in charge of the bill, around those issues. He asked me to put on record his thanks to the minister for the constructive engagement that he had with her.

I turn to the detail of the amendment. Amendment 201 deals with the issue of

“fixed penalty notices for fly-tipping offences.”

It would modify section 33A of the Environmental Protection Act 1990 to increase the maximum amount at which the fixed penalty for a fly-tipping offence can be set by ministers from level 2 to level 3 on the standard scale, thereby increasing the maximum fixed penalty that might be set by secondary legislation from £500 to £1,000.

In addition, it would give ministers the ability to provide for different penalty amounts in different cases—for example, a higher penalty amount where a previous fixed-penalty notice had been issued to the same person—with the maximum amount not to exceed level 3 on the standard scale, which is £1,000. Previously, the maximum fixed penalty that could be charged was £200, although it was recently increased by secondary legislation to £500. However, it is my view, and that of Mr Fraser, that that increase does not go far enough. There should be discretion to issue penalty notices up to a higher amount of £1,000. That would provide a stronger deterrent for people who are involved in fly-tipping, in particular where it is part of wider criminal activity.

Amendment 202 addresses the question of liability on the part of an innocent landowner on whose property waste has been dumped, where they did not generate the waste or give permission for it to be deposited. Under section 59(1) of the Environmental Protection Act 1990, liability for removal of the waste lies with the occupier of the land, who could face fines if it is not removed. In addition, when an appropriate statutory body, such as the local authority or the Scottish Environment Protection Agency, steps in to remove such waste, the cost of removal can be levied on the owner of the land. That is clearly an unfair practice: it is contrary to natural justice and goes against the “polluter pays” principle. I can think of no other area of public policy in which the victim of a crime is held responsible for it or for paying the costs of another’s actions.

When Mr Fraser consulted on his member’s bill proposal there was strong support, particularly from the farming and landowning communities, for a change in the law in that area. Some 85 per cent of respondents to the consultation were fully supportive of the proposal that legal liability should be removed from the person who has waste deposited on their land, with a further 9 per cent being partially supportive. The proposal had particular support from NFU Scotland and Scottish Land & Estates, alongside a broad range of other respondents.

Paragraph 79 of the policy memorandum that accompanies the bill specifically addresses the issue, in stating that the Scottish Government

“does not believe it is appropriate to remove liability from occupiers of land. Existing legislation does not place immediate legal liability upon the occupier of the land but does provide a means of compelling the occupier to remove waste in circumstances where there is substantial evidence that the landowner bears some responsibility for the deposited waste.”

However, evidence suggests that that statement does not reflect practice. Cases have been brought to us where the innocent landowner is compelled to remove waste under threat of penalty, despite there being no evidence that they had responsibility for it having been deposited.

The effect of amendment 202 would, therefore, be to remove the liability from the innocent landowner and instead place an obligation on SEPA, in such cases, to clear up waste that has been illegally deposited on an innocent person’s land. That seems to me to be a fair and reasonable proposal, which I know would be enthusiastically supported by a wide range of stakeholders.

Amendment 203 addresses the question of data collection on fly-tipping. The Scottish Government acknowledges that, currently, the collection of such data has a number of weaknesses. Amendment 203 would modify the 1990 act by granting powers to the Scottish ministers to require information from local authorities and the Loch Lomond and the Trossachs National Park Authority on the reporting of incidents of unlawful depositing of waste, to allow for collation and analysis of data on fly-tipping, with the purpose of improving public access to data. That would also include cases where local authorities had used their powers under section 59 of the 1990 act to remove unlawfully deposited waste. In addition, amendment 203 specifies a non-exhaustive list of the types of information that can be requested, as well as stipulating that the Scottish ministers may not exercise that power more than once in a 12-month period per authority. The effect of the amendment would be to allow for the better collection of data, so that we would know the extent of fly-tipping.

Amendment 204 is consequential to amendment 203. It would require the Scottish ministers to report annually to the Parliament on the number of incidents of fly-tipping on which they have collected information and on a number of other matters, including the number of fixed-penalty notices that have been issued, the number of prosecutions, the number of convictions and the total number of fines.

I move amendment 201.

Of course.

Absolutely—I accept that.

Will the member take an intervention?

I am not aware of any agreement with COSLA, but I am sure that it would be open to being part of the process, as opposed to just being consulted.

I move amendment 106.

I accept that. Mr Doris knows my position on framework bills. The reason why I am so much against their use is that we could end up approving legislation even though it still does not have the detail that we need in order to do our jobs properly. That sums up the problem that we have.

One issue is what will be covered by a charge. VAT is another issue. Graham Simpson mentioned unintended consequences. Section 9 might make ordering a cup of coffee less affordable.

We are serious about having a circular economy, but the Government could have tackled the issue differently. We discussed in committee the use of reusable coffee cups, with each vendor handing out and taking back the same cups. That is something that would give us a real circular economy, but no proposal on that has come forward. Just having a tax on things is probably not the right way of doing it.

So it is not the person who supplies the coffee shop with the cups. The point of the amendment is to clarify how far down the chain this goes.