Circular Economy (Scotland) Bill

SEPA welcomes proposals to strengthen the existing approach by placing a duty on Scottish Ministers to publish or refresh a circular economy strategy.

A statutory Circular Economy strategy can stretch beyond ‘waste management’ and provide a platform from which to embed circular economy principles throughout the whole economy and across Scottish Government policy areas in a similar way to the Climate Change Plan.

Everything we do, everything we buy, and everything we use has an impact on our planet. Around 80% of Scotland’s carbon footprint comes from products and services we manufacture, use and throw away – our consumption. Scotland has a material-intensive economy. In 2018, Scotland’s raw material consumption per capita, also known as a material footprint, is 19.3 tonnes(1), double the world average.

This is unsustainable. In our Waste to Resources Framework(2), we describe the Circular Economy as a game-changing opportunity to –

• Manage resources within planetary limits;
• Meet Scotland’s climate change targets and ambitions;
• Create new industries and economic opportunities;
• Reduce the harms associated with waste management.

We must reconfigure our economy to bring our material footprint down, dramatically cut waste production, recover more and dispose of only the very minimum. Action is required across the economy and putting a CE Strategy on a statutory footing is a crucial step on that journey.

1 https://cdn.zerowastescotland.org.uk/managed-downloads/mf-qrrfa3ry-1679488452d
2 https://www.sepa.org.uk/media/219528/one-planet-prosperity-a-waste-to-resources-framework.pdf

SEPA welcomes the strong focus in Section 1(3) of the Bill on sustainable production and consumption.

We consider that the strategy should provide:

• A vision for Scotland’s Circular Economy and its role in achieving Net Zero and delivering well-being for citizens, with clear outcomes, targets and indicators.

• A platform for action across all government policy areas to ensure maximum environmental, economic and social benefit for Scotland.

• Mechanisms to incentivise new products and business models aligned to circular economy principles.

• Alignment with EU policy such as the Sustainable Products Initiative, which aims to make products more durable, repairable, recyclable and energy-efficient.

SEPA welcomes the provisions in Section 2 regarding consultation. Such consultation must go beyond waste management audiences if the strategy is going to be meaningful to the energy, food and drink, construction, and services industries.

SEPA welcomes the provisions in Section 4 requiring regular review. We are mindful there is a balance to strike between keeping the strategy up-to-date and providing sufficient long-term certainty for investors.

SEPA welcomes the provisions in Section 5 regarding reporting on the strategy. Regular reporting on progress will support transparency and enable Parliament and Environmental Services Scotland to hold Ministers to account for delivery.

SEPA notes there is no specific proposal for an independent advisory body like the Scottish Committee on Climate Change (CCC). SEPA considers the CCC model to have provided significant value to progress towards climate change targets and would anticipate a similar role could be performed by Environmental Standards Scotland.

A Scottish circular economy strategy is part of a boarder context. Circular economy and waste policy is now a complex landscape, with Scottish, UK, European and global dimensions to consider. Many areas are reserved and would require action from UK Government. SEPA would like to see movement at UK level on taxation (e.g. reducing VAT on repair services and repaired products), an enhanced consumer right to repair, product passports and eco-labelling (e.g. reparability indexing) and minimum recycled content of products.

There will remain an ongoing need for a National Waste Management Plan for Scotland, aligned to Articles 28 and 29 of the EU Waste Framework Directive . It will be important to be clear how this new legislation interacts with the National Waste Management Plan for Scotland Regulations 2007 (as amended) .

SEPA supports the proposal to enable Ministers to set statutory circular economy targets.

A new statutory Circular Economy Strategy would benefit from a broad and well considered set of economic, environmental, social and governance indicators that measure the decoupling of economic growth from resource use and environmental impact. It is unlikely that any single metric could be used to measure Scotland’s progress on adopting a circular economy.

While we recognise the need for urgency, SEPA recommends developing and testing new indicators via a Circular Economy Monitoring Framework before creating statutory targets. This can draw together the current range of publications and act as a test bed for new and innovative indicators allowing for robust data collection and handling processes to be developed.

We have come a long way in developing our indicators but must keep pushing past end-of-life measures. SEPA produces a range of Official Statistics publications(1) and visualisation tools to support existing waste management targets.

Building on this, Scotland was the first country in the UK to develop a carbon metric(2) for waste management to complement the tonnage-based targets and indicators. More recently, Zero Waste Scotland published a Material Flow Account for Scotland(3) going beyond waste management to quantify the material footprint of Scotland’s economy. The Office for National Statistics(4) is also now producing material footprint data for the whole of the UK .

CE indicators and targets are an emerging area of policy. Research commissioned by Zero Waste Scotland(5) highlighted that there is currently no consistent approach to measuring consumption in other countries and consumption-based targets are rare. We therefore support the approach proposed in Section 6(3) to define this power broadly,

We also need to improve the underlying data quality, frequency, and granularity around material consumption and carbon impacts. As that underlying data improves, it will become easier to calculate a range of indicators of circularity.

(1) https://www.environment.gov.scot/our-environment/people-and-the-environment/waste-and-resources/
(2) https://www.zerowastescotland.org.uk/resources/carbon-metric-publications
(3) https://www.zerowastescotland.org.uk/resources/material-flow-accounts-mfa
(4)https://www.ons.gov.uk/economy/environmentalaccounts/articles/materialfootprintintheuk/latest
(5) https://www.zerowastescotland.org.uk/resources/consumption-reduction-targets-legal-status-research

SEPA supports placing restrictions on the destruction of unsold consumer goods.

The destruction of unsold consumer products is a loss of valuable economic resources as goods are produced, transported, and destroyed without ever being used. This provision will reduce the environmental impact of those products by reducing the generation of waste and disincentivise overproduction of products.

SEPA considers this measure should form part of an overarching approach to product stewardship which influences product design and retail models, while increasing transparency and the diversion of materials from recycling and disposal back into reuse, repair, or remanufacturing.

We also recommend that in designing this measure care is taken to avoid unintended consequences.

France(1) introduced such a ban to encourage companies to rethink their stock management and production. Rather than landfill or incinerate unsold goods, companies must reuse, donate, or recycle their unsold products.

While we generally support the free trade in good quality reusable clothing, care must be taken to avoid unintended consequences. In 2023, the Changing Markets Foundation(2) tracked 21 articles of clothing returned in good condition through ten different fashion brands' take-back schemes. Out of the 21:

• Seven were destroyed, landfilled, or downcycled;
• Five never left their original destinations or ended up in a warehouse;
• Five were resold within Europe;
• Four were shipped to African second-hand markets.

A second report(3) estimated that up to 50% of the ‘second-hand’ clothing received by Kenyan traders from EU or UK sellers is unsellable and would be either dumped or burned.

It is important therefore that this measure does not incentivise movement of unsold goods on to unsuitable markets but prioritises further use within Scotland / UK.

If taken forward, this ban would require a regulatory authority to raise awareness, ensure compliance, and take enforcement where appropriate. Resourcing, guided by the polluter pays principle would be required to make this an effective policy.

(1) https://circulareconomy.europa.eu/platform/sites/default/files/case_studies_-_french_anti_waste_law_aug21.pdf.pdf
(2) https://changingmarkets.org/take-back-trickery/
(3) http://changingmarkets.org/wp-content/uploads/2023/02/Trashion-Report-Web-Final.pdf

SEPA supports the use of economic measures to tackle the consumption of single use items. We would also highlight the potential to align with existing powers to restrict or ban environmentally harmful products.

SEPA would also like to see these powers used as part of a proactive approach to approach to product stewardship. It will be important to embed circular economy principles at the design stage of all products so we do not simply switch from one single use product to another. Success will be when we no longer have to ban or charge levies on unsustainable products.

SEPA supported the carrier bag charge(1) which significantly reduced the number of single use carrier bags and the recent bans on certain single-use plastics.

SEPA supports the Expert Panel on Environmental Charging and Other Measures (EPECOM) recommendation(2) to implement a charge on single-use disposable beverage cups as part of a package of measures to influence consumers to switch to re-usable alternatives and Scottish Water's campaign to ban plastic wet wipes which contain plastic.

Problematic products may be suitable for either bans or charges depending on the item in question and the policy outcomes sought. However, the powers available to Ministers for restricting or banning an item in Section 140 of the Environmental Protection Act 1990 (“EPA90”)(3) are different to the Bill proposals for implementing a charge. This may limit Ministers ability to choose the right approach in any given circumstance.

• The proposed new power for charges is limited to ‘containers or packaging for goods’ and items to be ‘used in connection with the consumption or use of goods’. On the other hand, the EPA90 power is broader not and can any ‘substance or article’ can potentially be subject to a ban or restriction.

• The EPA90 power can only be used to ban or restrict a substance or article for the purpose of preventing pollution of the environment or harm to human health or to the health of animals or plants. It is not possible to ban or restrict a product based on carbon impact, life-cycle analysis or the fact is 'single-use'.

• Conversely, the proposed new power enables the introduction of charges on items which are likely to be used ‘once, or for a short period’. It would not be possible to introduce charges for the purpose of preventing pollution or harm.

These differences mean that the powers used to ban or introduce charges for problematic products have different scopes and are subject to different tests.

SEPA would like to see Ministers provided with a wider power to prohibit, restrict, or levy charges on the sale of any substance or article where necessary to prevent pollution or to support a transition from single use / high lifecycle impact products to more sustainable alternatives.

(1) https://www.mygov.scot/carrier-bag-charge
(2) https://www.gov.scot/groups/expert-panel-on-environmental-charging-and-other-measures/
(3) https://www.legislation.gov.uk/ukpga/1990/43/section/140

SEPA would like to see these powers used as part of a proactive approach to approach to product stewardship. It will be important to embed circular economy principles at the design stage of all products. Success will be when we no longer have to reactively ban or charge levies on unsustainable products.

SEPA supports the proposal to strengthen the householder Duty of Care and create an associated Fixed Penalty Notice for Local Authorities and would like to highlight further opportunities to improve Local Authority enforcement powers related to fly-tipping.

SEPA supports making failure to comply with the householder Duty of Care a criminal offence.

Placing a clear obligation on all waste producers, whether a householder or a business, to manage their waste properly is an important tool in the fight against fly-tipping.

SEPA also supports the creation of a Fixed Penalty Notice in support of this duty. However, we note there is no equivalent Fixed Penalty Notice proposed in the Bill for Local Authorities to serve on a business waste producer. SEPA believes Local Authorities should have the ability to serve a notice on any waste producer implicated in fly-tipping offences, whether a householder or a business.

SEPA recommends expanding the scope of the proposed Fixed Penalty Notice to cover all Section 34(6) offences which would allow Local Authorities to take more effective action in the following example circumstances -

• Where a business has passed their waste to a person who is not authorised to accept it and that was is subsequently fly-tipped.

• Where a business fails to furnish a waste transfer note on request to prove they have an appropriate waste service in place. This is an important investigatory tool in burning and fly-tipping cases and is a power already available to Local Authorities in England.

• Where a business is not complying with their duty to segregate waste for recycling. Local Authorities are an enforcement authority for these requirements but, unlike SEPA, do not have a proportionate enforcement tool at their disposal. In the recycling route map consultation, stakeholders called for more enforcement of those provisions and introducing a FPN would support enforcement and contribute to the delivery of the recycling aims of the regulations and our broader circular economy ambitions.

SEPA is committed to working with Scottish Government to deliver the new Litter and Fly-tipping Strategy. This is an opportunity to improve flytipping data, clarify roles and responsibilities and strengthen the partnership between the enforcement authorities (local authorities, SEPA and Police Scotland) and landowners as the victims of fly-tipping.

SEPA is working with Scottish Government to reform the environmental permitting system, to make it easier for SEPA to refuse and revoke waste carrier’s authorisations where there is evidence of fly-tipping. This further supports efforts to ensure only the right people are offering waste services.

SEPA and Scottish Government is working with the four UK nations to develop Digital Waste Tracking service which will result in a step change in transparency and accountability around the movement of Scottish waste from start to finish. The improved information this provides will allow us to prioritise and target our interventions much more effectively.

In addition to our recommendation to expand the scope of the proposed Local Authority FPN to all Duty of Care offences, the bill also provides an opportunity to improve powers under Section 59 of the Environmental Protection Act 1990(1) . This provision allows SEPA and Local Authorities to serve a notice requiring the removal of unlawfully deposited waste (e.g. fly-tipped waste). However, this notice can only be served on the occupier of the land who in most cases is not the fly-tipper. While SEPA will take advantage of a more flexible notice in future via the Environmental Authorisations (Scotland) Regulations 2018(2) , Local Authorities will still rely on Section 59. We recommend that Section 59 is amended such that Local Authorities can require those responsible for fly-tipping to take steps to remove the waste and for failure to comply with such a notice to be a criminal offence backed by an appropriate Fixed Penalty Notice.

(1) https://www.legislation.gov.uk/ukpga/1990/43/section/59?view=extent
(2) https://www.legislation.gov.uk/ssi/2018/219/regulation/46/made

SEPA supports the proposal to update and put the Code on a statutory footing continuing the journey towards consistent collections.

SEPA supports this proposal as part of a wider package of measures to improve household recycling rates as set out in the Recycling Route Map.

Targets should only be used as part of a wider package of measures. Local Authorities are only partially in control of recycling rates. They do not design or sell the products which householders use and dispose of, determine the consumption or recycling behaviours of citizens or control the markets for recyclable material. A range of support and measures will be required across supply chains to support target attainment.

SEPA publishes the Official Statistics(1) for household waste management in Scotland. It is clear household recycling rates had begun to plateau at around 45% in the three years leading up to the COVID-19 pandemic. Household waste makes up approximately 21% of Scotland's waste by weight, but 55% of the total waste carbon emissions(2).

The most recent compositional analysis of household waste(3) shows that up to 60% of what households put into their residual waste bins could have been recycled using existing recycling services.

Analysis(4) of high performing recycling systems around the world suggests that no single policy or practice is sufficient on its own to produce high household recycling rates. The highest performing systems combine targets, comprehensive collections, steps to disincentivise residual waste production (pay-as-you-throw), deposit return and extended producer responsibility schemes.

This Bill proposals must be seen in the context of other actions, particularly the ongoing reforms to the producer responsibility schemes for packaging, implementation of deposit return and the Government’s recycling route map. No single provision will work on its own but the package of measures, combined with actions underway elsewhere may combine to move the dial.

• Reforms to the packaging producer responsibility scheme aim to increase the recyclability of products and increase capture at end-of-life. It will require producers to cover the full net cost of managing their packaging when it becomes waste. Funding will go directly to local authorities to fund effective and efficient collection systems for household packaging waste.

• Improvements in product labelling to reduce confusion and contamination in recycling collections. In 2020, On-Pack Recycling Label (ORPL) created a binary labelling system which should become mandatory.

• Expansion of separate collections in line with the Waste Framework Directive (textiles, and hazardous household waste) and continued investment through the Recycling Infrastructure Fund will improve services for householders.

• Evidence from across Europe shows that services supported by direct charging for residual waste (whether on a volume or weight basis) produce higher recycling rates.

• Improving the powers available to local authorities to ensure that households are properly using their recycling containers or to prevent recycling being placed in the residual waste bin. Implementation should be accompanied by long term national communications campaigns to encourage and support the right behaviours and practices and drive participation rates.

• The 2022 plastics tax is a clear ‘pull’ measure increasing demand for recycled material in the UK. The European Parliament has voted in favour of developing the concept of minimum recycled content further. While these tax powers are reserved, it is important to keep up-to-date with developments in the area and provide incentives to use recycled material in Scotland rather than rely on exports.

(1) https://informatics.sepa.org.uk/HouseholdWaste/
(2) https://cdn.zerowastescotland.org.uk/managed-downloads/mf-reemzjho-1681985129d
(3) https://cdn.zerowastescotland.org.uk/managed-downloads/mf-jk1pxc2e-1677510625d
(4) https://cdn.zerowastescotland.org.uk/managed-downloads/mf-2iligqdj-1678697215d

SEPA welcomes the proposal to improve Local Authority powers to tackle littering from vehicles.

In Scotland, assessments indicate a persistent presence of organised crime with business connections in the environmental sector, and that the number of crime groups is in the high teens at any one time.

SEPA supports the proposal to bring forward new powers for SEPA and Local Authorities to seize vehicles involved in waste crime. This has been used to good effect by the EA and Local Authorities in England and will be a welcome addition to the toolkit in Scotland.

Section 16 of the Bill sets out the offences in respect of which this power can be exercised. SEPA is reforming its environmental permitting framework and would request that operating a waste management activity without an authorisation under the Environmental Authorisations (Scotland) Regulations 2018 is also included in this section.

The costs of organised waste crime in England alone are estimated at nearly £1 billion per annum(1). In Scotland, there is a persistent presence of organised crime in the environmental sector, with the number of crime groups in the high teens at any one time. Those involved in waste crime are also linked to additional criminality including money laundering, human trafficking, fraud, and firearms/drug supply.

• SEPA and Scottish Government are working to reform the environmental permitting framework. This will reform the system for waste carriers and site permits making it easier to keep criminals out of the waste business and enable SEPA to revoke authorisations.

• SEPA and Scottish Government is working with the four UK nations to develop Digital Waste Tracking service which will result in a step change in transparency and accountability around the movement of Scottish waste from start to finish. The improved information this provides will allow us to prioritise and target our interventions much more effectively.

• SEPA would benefit from an improved investigatory toolkit by enabling access to communications data (e.g. mobile phone data) via the Investigatory Powers Act 2016. Our counterparts in England have those powers.

• SEPA would support the continued development of Scottish Sentencing Guidelines for environmental offences.

(1)https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915937/waste-crime-review-2018-final-report.pdf

SEPA welcomes actions to increase transparency surrounding wasteful practices.

This policy will require an enforcement authority. There may be mechanisms by which the reporting businesses can pay for this directly in line with the polluter pays principle.

Discussion to date has focussed on food as it has a high carbon and material footprint. The policy statement and the consultation response highlighted food waste as the most appropriate priority for regulation. Food waste reduction has far-reaching consequences. Not only does it cost Scottish householder around £440 per year on average, it contributes nearly 4% of Scotland’s carbon footprint(1).

SEPA welcomes moves to make food waste and surplus more transparent. This measure must be seen as part of a package of measures and as over 60% of food waste is produced in the home, business reporting is unlikely to make a significant contribution to the target on its own.

SEPA acknowledges the achievements of the voluntary scheme run under the Courtauld Commitment. The voluntary approach resulted in 221 business reporting food waste and surplus in 2022. We note that DEFRA has now put mandatory food waste and surplus reporting on hold subject to a further review in mid-2025.

It is important recognise that the proposed Digital Waste Tracking system will significantly improve data availability and we should be careful not to introduce duplicate reporting systems. If data is being recorded at each collection from individual sites, then that could make a significant contribution towards mandatory food waste reporting.

(1) https://www.gov.scot/publications/consultation-delivering-scotlands-circular-economy-route-map-2025-beyond/pages/16/

The carbon metric provides a helpful lens through which to identify material / product types with the highest carbon and material footprints.

This Bill as an important step towards a Circular Economy and our net zero targets, in particular the proposal to put a the production of a Circular Economy Strategy on a statutory footing.

Everything we do, everything we buy, and everything we use has an impact on our planet. Around 80% of Scotland’s carbon footprint comes from products and services we manufacture, use and throw away – our consumption. Scotland has a material-intensive economy. Put simply, we use far too much ‘stuff’ and that is contributing to the climate crisis. In 2018, Scotland’s raw material consumption per capita, also known as a material footprint, is 19.3 tonnes , double the world average.

To be truly Net Zero we need to address this material footprint and the carbon emissions associated with it.

We must reconfigure our economy to bring our material footprint within planetary limits, dramatically cut waste production, recover more and dispose of only the very minimum. To achieve this, action is required across the whole economy. This Bill is one part of that wider landscape of reform, innovation and investment.

SEPA views this Bill alongside other significant policies and reforms at Scottish, UK, EU and global levels which will support progress towards a Circular Economy and improve the way we manage our waste. For example:

• The Scottish Government’s Recycling Route Map set out a range of non-legislative measures to engage with consumers, support circular business models and improve waste management systems.

• Legislative reforms outside of the Bill such as to the packaging producer responsibility system and the inclusion of waste incineration within the UK Emissions Trading Scheme.

• Work at international level to phase out harmful chemicals such as persistent organic pollutants and update the rules concerning the export of plastic waste.

• The four UK nation Digital Waste Tracking project will help us to identify circular economy opportunities that are currently being missed and provide information which will help businesses innovate in the circular economy space.

Many areas are reserved and would require action from UK Government. SEPA would like to see movement at UK level on taxation (e.g. reducing VAT on repair services and repaired products), an enhanced consumer right to repair, product passports and eco-labelling (e.g. repairability indexing) and minimum recycled content of products.

We must keep stretching further, beyond ‘waste management’ towards sustainable production and consumption. The proposals in this Bill move in that direction and can provide a platform from which to embed circular economy principles throughout the whole economy