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Water Environment (Controlled Activities) (Scotland) Regulations 2011 (Draft)
Item 3 is the first of a number of pieces of subordinate legislation. The minister has remained with us for this item. I also welcome the officials who are supporting her: Derek Wilson is a policy officer on the water environment team; Stuart Foubister is a divisional solicitor from the solicitors economy and transport division; and Neil Ritchie is branch head of natural assets and flooding. This agenda item enables members to ask questions about the content of the instrument before we move to the formal debate on it. Officials can speak under this item but cannot participate in the debate.
Scotland's rivers, lochs, estuaries and seas are an invaluable resource. They are key to our health and wellbeing, provide a water supply for drinking water and hydro power generation and support key industries including salmon farming, angling, tourism and whisky production. In the previous session, Parliament approved the Water Environment (Controlled Activities) (Scotland) Regulations 2005, which are colloquially known as CAR. Through CAR, the Scottish Environment Protection Agency can control activities that are likely to have an adverse impact on our water environment.
What will be the costs of the regulations? You may have dealt with that—if so, I apologise for not being here to hear all of your opening remarks.
There is a schedule of cost implications.
We are told that the costs were looked at before, which implies that one should know, but I am not entirely sure what they are.
Which specific costs are you looking for? I can give you the average cost of an authorisation by SEPA.
Paragraph 9 of the Executive note states that a regulatory impact assessment
We have information on the average cost per application. The cost will depend on the complexity of the application. We have some other figures, but perhaps Neil Ritchie can say something on that.
There are no costs associated with the proposed amendments because they are in a deregulatory framework. That is why we have not seen it as appropriate to undertake a business and regulatory impact assessment. They will reduce the costs of compliance with the requirements of the water framework directive rather than introduce a new burden on producers beyond the requirements in CAR, which Parliament previously agreed.
Okay, I will leave it at that.
No other members have questions, so we move to the formal debate on the draft regulations. I remind everyone that officials cannot participate in the debate. I invite the minister to move motion S3M-7873.
I suspend the meeting for no more than five minutes to allow the Cabinet Secretary for Rural Affairs and the Environment and his officials to take their seats. I thank the minister and her officials.
Marine (Scotland) Act 2010 (Transitional and Consequential Provisions) Order 2011 (Draft)
Marine Licensing (Exempted Activities) (Scottish Inshore Region) Order 2011 (Draft)
Marine Licensing Appeals (Scotland) Regulations 2011 (Draft)
We resume with consideration of more subordinate legislation. We will take evidence on three instruments that are subject to the affirmative procedure and a single question will be put on each of the instruments in turn. I welcome to the committee Richard Lochhead MSP, the Cabinet Secretary for Rural Affairs and the Environment; Matt Cartney, from the marine planning and policy division; David Palmer, branch head from the marine planning and policy division and the acting deputy director of marine planning; and Stuart Foubister. As before, this agenda item enables members to ask questions about the content of the instruments before we move to the formal debates on them. The Subordinate Legislation Committee has made no comments on any of the instruments. I invite the cabinet secretary to make a brief opening statement.
Thank you, convener. I will speak to the first instrument, which is the draft Marine (Scotland) Act 2010 (Transitional and Consequential Provisions) Order 2011.
Do committee members have any questions?
I take it that you have spoken to just one of the instruments, cabinet secretary.
Yes.
Would you like to go on to the second one, as there are no questions on the first one?
Sure.
This is not so much a question as an observation. The cabinet secretary will recall the objective of putting in place a proportionate and appropriate system of regulation, which took up a fair amount of our time during consideration of the bill. My observation is simply that there has been further discussion on the detail. I welcome the further modifications that have been made. The broad consensus that exists and the way in which much of the detail around the legislation has been brought together under the stewardship of the present Government and the previous Executive can only bode well for the operability of the provisions.
Could the cabinet secretary confirm that what he said about the relocation of moorings in no way relieves harbour authorities or anyone else from any environmental designations that may exist for areas where moorings are located? I am referring to sites of special scientific interest, Ramsar sites and so on.
No—such sites still come under the remit of existing environmental legislation. The exemption lies with the licensing regulations under the Marine (Scotland) Act 2010.
I invite the minister to move on to the draft Marine Licensing Appeals (Scotland) Regulations 2011.
The Marine (Scotland) Act 2010 and the Marine and Coastal Access Act 2009, a UK act of Parliament, provide a range of statutory notices, which Scottish ministers can use to regulate licensable activities. Those notices allow action to be taken where an operator is in breach of their licence, or where there is a risk to human health, the environment or other legitimate uses of the sea.
There are no questions from members on the regulations.
I thank the cabinet secretary and his officials for their time.
Radioactive Substances Act 1993 Amendment (Scotland) Regulations 2011 (Draft)
Item 9 is consideration of an affirmative Scottish statutory instrument. Again, the Subordinate Legislation Committee has made no comment on the draft regulations. The Cabinet Secretary for Rural Affairs and the Environment is still with us, but with a different set of officials. They are Louise Miller from the legal directorate; Helen Gordon-Smith, who is a policy officer on radioactive waste; Elizabeth Gray, who is the team leader on radioactive waste; and Stuart Hudson, who is a specialist adviser on radioactive waste.
Thank you, convener.
This is all clearly part of a UK-wide consultation. You might have implied the answer to my question in your concluding remarks, but I note that paragraph 5.5 on page 11 of the business and regulatory impact assessment says:
I can confirm that a UK-wide approach is being taken in order both to ensure that we have regulations that people can better understand and that have been simplified and written in modern English, and to identify very low-risk substances for exemption. As far as I am aware, a very similar approach is being taken across the whole of the UK.
Broadly speaking, we have not seen any significant differences. You might, for example, highlight the oil and gas industry, which is a significant industry that is primarily based in and more unique to Scotland, but such work is also carried out in England and Wales.
So, it is more a matter of emphasis with regard to industries that are more prevalent in Scotland than elsewhere than of a pattern of usage or impact that is different in Scotland for some other reason.
That is right.
That is helpful.
I take it that the reference to clocks and watches is to do with luminous paint, which is also widely used on the compasses that are used by hillwalkers and others, and on the instrumentation for certain modes of transport. Do the provisions as they now stand extend in an even way to all these different but basically very similar uses?
I will ask Stuart Hudson to comment in a moment, but you are right to pinpoint the use of luminous paint on clocks and watches.
As the 1993 act applies only to industry, it does not affect the use of, say, compasses by individuals. I also point out that luminous articles are already exempt and where possible we have carried them over into the new regime.
If the act applies only to industry, is it possible for certain restoration projects seeking to restore to their original state instruments or compasses in vessels or yachts of one sort or another using luminous paint to continue or are they now excluded?
There will be no change to the impact on that kind of project, to my knowledge.
You said that the regulations cover hospitals and universities. Do they cover the Ministry of Defence?
I would not expect so, but I will ask Stuart Hudson to give you an exact answer.
The changes that we are making do not make any change to the coverage of the Radioactive Substances Act 1993 with respect to the Ministry of Defence, which is exempt under section 40, or thereabouts, of the 1993 act.
Just so that I can be absolutely clear, are you saying that when the Ministry of Defence decides to dispose of depleted uranium shells in Scottish waters—they dishonestly claim that they are harmless when there is solid evidence that they are harmful—no one regulates that, and the Ministry of Defence is a law unto itself when it comes to disposing of radioactive material in Scottish waters?
There are no formal powers under the Radioactive Substances Act 1993 for SEPA to authorise the disposal of radioactive waste or the use of radioactive materials by the Ministry of Defence. There are letters of agreement under which, for example, Faslane operates.
The main point is that the MOD has Crown immunity from all the regulations. As you know, the Scottish Government strongly opposes the Ministry of Defence’s testing of depleted uranium shells on Scottish soil. That is our policy. However, the regulations will not affect that activity because of Crown immunity.
The MOD continues to be a law unto itself. Thank you, cabinet secretary.
I think that a political point was being made there. I will resist the temptation to rise to it. An election is coming; that is what it is about.
Clearly, special arrangements have to be made for the collection and disposal of materials or waste that are classified as radioactive under the 1993 act and are not exempt. The changes are that those materials and waste that are exempt, such as those that might be found in hospitals and universities, can be disposed of using conventional routes because they will not be classified as radioactive substances under the regulations. The radioactivity can decay in a matter of hours in these substances, so they just become the same as any other waste.
So, was one hitherto meant to dispose of a watch or clock that had a luminous face in a different way?
The history of such items is that they were exempt.
The act was in place for businesses and their undertakings. It did not apply to individuals anyway, and that has not changed.
As there are no more questions, we will move to the formal debate on the regulations. I invite the cabinet secretary to move the motion.
The next item is a vote on the Waste Management Licensing (Scotland) Regulations 2011. Cabinet secretary, would you like to move the motion? [Interruption.]
Waste Management Licensing (Scotland) Regulations 2011 (Draft)
Waste (Scotland) Regulations 2011 (Draft)
Agenda item 11 is consideration of a further two affirmative instruments. The cabinet secretary will give evidence on both of them, alongside his third set of officials for the day. Louise Miller is still with us. She is joined by Chris Graham and Gary Gray, both of whom are from the Scottish Government’s zero waste delivery team. The Subordinate Legislation Committee made no comments on the regulations.
I will speak to both sets of regulations. There are two main policy drivers for the changes that are introduced through the regulations. The changes are intended to improve the effectiveness and accessibility of the legislation and to implement amendments that are required by the European Commission and the European Court of Justice.
I have a procedural point for the committee. The SSI designation forms that are in front of us show—in error, I think—the Justice Committee as the lead committee. It seems to make sense for the SSIs to be before the Rural Affairs and Environment Committee. Perhaps we should confirm that they should be before this committee. That would seem to be proper.
Yes. That is correct. Thank you.
Cabinet secretary, you touched on the importance of the hierarchy of waste treatment activities. I think that everybody would subscribe to the notion that we need to direct more effort to reducing the overall amount of waste that we create, but it is inevitable that waste will be created. It is also fair to say that, historically, the ways in which we have introduced, implemented or enforced waste regulations have not always been helpful in maximising the opportunities for businesses, for example, to innovate in using waste as a resource and attaching a value to it. I took from your comments—certainly on the first set of regulations—that you are looking at a more flexible and efficient approach. What reassurance can you offer the committee that the way in which the regulations will be enforced will address the issue of waste without shutting off opportunities for markets to develop to deal with waste and reduce the overall cost to the taxpayer?
You make a fair point. We have made the argument, as all the parties that are represented in the Parliament have, that it is in the interests of businesses to address Scotland’s waste and the waste that they produce. It is clear that businesses can cut their costs. They can recycle and recover value from what they have previously regarded as simply waste.
From conversations that I have had with the chairman and chief executive of SEPA, I know that they acknowledge that there have been problems with the way in which we have defined waste in the past. That has closed off options for dealing with waste in the way in which other member states appear to have been able to do, entirely in keeping with the spirit and letter of the law, which has enabled them to develop industry sectors that, as you said, allow value to be extracted from the waste while still meeting the other objectives. In your view, have lessons been learned from what has happened in the past? Will the way in which these regulations and others will be taken forward allow us to maximise opportunities?
The feedback that I have received from the business community and other organisations such as the National Farmers Union Scotland suggests that, in the past four years, there has been a sea change in attitudes in SEPA and other agencies. We all welcome that. However, I will not say that everything is completely fine, because I am aware that there are some on-going issues that we must continue to investigate. Just a few days ago, an individual indicated to me that they felt that they were being prevented from using waste oils to recover value and were having to send them south of the border. Clearly, that is causing me some concern in my role as minister. I am investigating the matter at the moment. I will not say that there is not still some way to go to help businesses to recover value from waste and to ensure that we are not gold plating some European regulations. We must strike a balance, but I will not say that there is not a lot more to be done.
We have had correspondence in the past on the impact of separation rules, especially on the catering sector. Waste disposal units have been introduced in cafes, restaurants, hotels and so on that may no longer comply with rules on separation. If that is the case, the impact on those businesses could be significant. Can you offer us reassurances about how any change in the rules might be introduced to mitigate that impact or to allow it to be spread over a period?
I can give you an assurance that we are determined to be proportionate and to take into account the need for a transition period. The separate collection of different wastes is one area in which we must be flexible and take our time, but it is really important that we go down that road—and not just because the European directive obliges us to look at the options. I remind the committee that Scotland produces 2 million tonnes of food waste a year, 500,000 tonnes of which goes straight into landfill. That is not good for the environment and it is a waste of a valuable resource. We are losing the opportunity to recover heat or electricity from that through the use of anaerobic digestion or whatever. It is important that we move as quickly as we can, but I take on board your point that we must work with the business community on a transition period.
You will be aware of the public concern around some of these issues. We must balance the business interest with that public concern and ensure that we are getting people the right information. The note that accompanies the regulations states:
The impact on public health is always a primary consideration for all these treatment processes. You are right that there is public concern about that. We all know that from media coverage of particular issues in Scotland at the moment. I spoke to an individual last night from the waste sector who said that, in some Scandinavian countries, the dirtiest word that you can use is landfill; everything is fine as long as it does not go to landfill or waste. Of course, we have a slightly different debate in this country, where other forms of treatment are perhaps viewed as not as palatable. However, I believe that most rational people think that we must avoid landfill for waste treatment. My officials can give more examples of what has been exempted, to give you some comfort in that regard.
There are a couple of examples. The activities might not necessarily be particularly new; it might be a refinement of the definition of the scale of activities that makes the change in the legislation. At the bottom of page 64 of the Waste Management Licensing (Scotland) Regulations 2011, a few items are listed:
Thank you. I suppose that my second question, which is about the removal of the legal requirement for a certificate of technical competence, follows on from that. It seems quite strange that we would want to remove from an operator, particularly one that is operating an incinerator, the requirement for a certificate of technical competence. I understand that you believe that that system exceeds the requirements of the revised waste framework directive, but why would you not want someone to have a certificate of technical competence?
That is one of the issues that arose during the consultation. Our view is that while the certificate is clearly a valuable and valid indicator of an individual’s competence, or of his or her employer’s commitment to training and development, it is not in itself a guarantee that the terms of a waste management licence will always be complied with. The revised framework does not oblige us to retain the certificate as a legal requirement, so we felt that to do so in all cases would be gold plating and that it would place an unnecessary administrative and financial burden on operators.
So it enhances the training that a company gives to an individual and their competence, but we do not think that it is worth while for companies that operate serious pieces of kit. That is not gold plating, minister—it is good practice.
The question is simply whether the certificate should be a legal requirement. I think that the committee would criticise me for gold plating European regulations, if I proposed to do so. We always pay attention to that issue.
Someone would still be unable to get a licence to operate an incinerator or any other comparable facility without first satisfying SEPA of their competence. We are saying that the certificate is not the only way in which to guarantee competence.
I asked SEPA on Monday what checks would have to be undertaken before a company was considered to be fit in that regard: the checks are very basic. The certificate of technical competence is not gold plating. In Scotland, we must decide whether to remove the requirement for the certificate because it is an undue burden or whether to retain it because it enhances a company’s training provision and the management of a facility—I think that it enhances those areas.
I do not think that anybody is arguing with that.
But we are taking it away, minister.
No. Officials can correct me if I am wrong, but I think that SEPA can make it part of its conditions that it wants that requirement to be satisfied.
But why would we transfer the burden from an elected minister to an unelected quango? We have the legislation and regulation from an accountable Parliament and committee, so why would we transfer the burden to an unelected quango?
At the moment, we have a regulator in SEPA.
But we have the provision in legislation. As an elected parliamentarian who has regulations before me, why would I want to transfer the responsibility from Parliament to an unelected regulator?
That is your interpretation of what is happening. We are simply saying—
But that is what is happening; it is not my interpretation.
In transposing a directive into Scots law, we took the view not to gold plate. That does not mean that SEPA cannot take into account the factors that we are talking about in issuing licences to any operator. SEPA has a very good record in being stringent about whom it issues licences to. Anyone who operates any major waste infrastructure project in Scotland will have to adhere to the highest standards. SEPA will take all that into account before it awards a licence to operate. I am not aware of any examples where it has not done so.
But those operators are operating under the current licensing regime, in which they would be required to have a certificate of technical competence. If we pass the regulations, they would be operating under a different licensing regime, in which they would not be required to have a certificate of technical competence.
But they would still be required to demonstrate that competence to SEPA.
Yes, but they would not be required to have a certificate of technical competence.
No, but the certificate is only one possible way of demonstrating technical competence to SEPA.
You said that operators would be required to demonstrate competence to SEPA. Would they be required to do so by law or it is just that SEPA would expect to have competence demonstrated to it? Is there a legislative requirement to demonstrate competence to SEPA?
Yes. Any applicant for a licence has to satisfy SEPA that it is technically competent. The regulations really just affect what SEPA is able to take into account as evidence of technical competence or otherwise. They get rid of one prescribed list of purely national qualifications and allow SEPA to consider whatever it thinks appropriate as evidence of competence. One obvious example might be an equivalent qualification obtained outside the UK, in the case of an operator that was not necessarily based here. That is just one example.
I move on to the revised waste framework directive, which was supposed to come in at the end of last year. It requires separate collection of waste and restricts the amount of energy from waste.
Zero waste Scotland has been working closely with our local authorities and, over the past couple of years, we have put in a great deal of effort to ensure that guidance and expertise are shared between local authorities, the Scottish Government and zero waste Scotland. The submission from the Convention of Scottish Local Authorities to our consultation on waste regulations that has just closed, which was circulated to either members of the committee or party spokespeople, welcomed that close co-operation on these issues.
If you thought that a local authority had passed an application that would be in contravention, would you call it in?
I cannot answer that question, as that is a planning issue. In any case, I would not call that in personally; that would be a matter for ministers with responsibility for planning. It would depend on the circumstances.
The minister will be aware of the growing environmental crime of illegal waste disposal, which is connected to illegal activities such as money laundering and drug dealing. He will also be aware of the need for new regulation in that regard in the next session of Parliament.
That is a good issue to highlight, as it is a huge blight and has an appalling impact on our environment. My view, however, is that this legislation is not directly related to that issue. There are other areas of Government that should be working on environment crime, and Parliament in the next session might wish to consider whether our current legislation is sufficient in terms of deterring it.
From the presentation that was made in Parliament last week by SEPA, it would seem to be evident that it is not—I am sure that you are aware of SEPA’s view.
That is one view. I am saying that I would be sympathetic to Parliament considering reviewing the penalties for environmental crime in Scotland. I think that that would have a lot of public support. Of course, there would need to be a debate over whether that would make any difference to the people who are involved in that kind of crime—in some areas, you are talking about organised crime. You say that the problem is that the legislation is insufficient, but we do not know whether changes to the legislation would change the behaviour of organised criminals. However, that is something that Parliament should investigate.
I am somewhat confused by the answer that you gave with regard to the certificate of technical competence issue. On one hand, you say that SEPA can still require it or its equivalent but, on the other hand, you say that it is gold plating.
I was merely making the point that I can see no reason why SEPA cannot take that into account when considering whether any operator is fit and proper to run a facility, irrespective of whether there is a legal requirement on all operators to hold that particular certificate. SEPA considers a range of factors and is stringent with regard to who gets a licence to operate such facilities.
If your rationale for getting rid of it is that it exceeds the requirements of the waste framework directive, can you say what the requirements of the waste framework directive are in this regard and how the certificate of technical competence exceeds them?
I will ask my officials to give you those details.
It would be very unlikely that any European directive would specifically mandate something like the COTC provisions that we have now, because what we have now is one list of qualifications that are exclusively UK qualifications. It is extremely unlikely that any directive would say to member states, “Go away and create a set of conditions for getting a permit that you can obtain only by training and qualifying within your member state.” There is an obvious—
How can you say definitively that the requirements under the COTC exceed the requirements under the waste framework directive?
The waste framework directive just does not contain any provision like that.
So it does not retain any requirement for staff to be appropriately trained, for them to have continuous training and for the company to have appropriate training mechanisms? That is what exists under the COTC.
The COTC requires operators to demonstrate that they have very specific qualifications, which are named qualifications and which they can get only in the UK. There is a list that refers to a specific set of UK qualifications for waste management. No European directive would ever specifically authorise or mandate a member state to go away and do that.
Does the problem perhaps lie in the wording of the Executive note, which states that
That is still the case. Applicants for a licence will still have to demonstrate to SEPA that they are technically competent to hold that licence. The only change is that SEPA will be able to consider evidence other than named UK-only qualifications on one specific list.
Perhaps the problem is how you framed this piece of advice to the committee.
Perhaps the wording is not perfect, but the key point is that SEPA will issue licences only to those who are competent to operate these facilities in Scotland. We should recognise that a very professional approach is taken to that.
If we were to leave certificates of technical competence as a way of meeting a particular requirement, I wonder whether that would open the door—I think of my own circumstance, as a degree in mathematics that I gained in the 1960s would not sensibly qualify me to be a mathematician today because I have forgotten almost all of it—to people who have qualifications but have not necessarily retained up-to-date knowledge and improved their knowledge seeking judicial review because they have met a certification requirement.
I am happy to speak to SEPA about the general issue that the committee has raised regarding on-going training, skills and qualifications. The committee raises a fair issue. My point is that, in terms of the statutory instrument, it is perhaps a matter that we can discuss separately with SEPA.
As the committee’s questions are exhausted, we move to the formal debates on the Waste Management Licensing (Scotland) Regulations 2011 and the Waste (Scotland) Regulations 2011. I remind everyone that officials cannot participate in the debates. I invite the cabinet secretary to move motions S3M-7834 and S3M-7835.
I thank the cabinet secretary and all his officials for being in attendance throughout our heavy schedule of affirmative instruments. I suspend the meeting briefly while the cabinet secretary and his officials take their leave.
Brucellosis (Scotland) Amendment Order 2011 (SSI 2011/51)
Item 13 is consideration of a negative instrument. The Subordinate Legislation Committee made no comment on the Brucellosis (Scotland) Amendment Order 2011 and no motions to annul have been lodged. Do members have any points to make on the order?
Does the committee agree that it has no recommendations to make on the order?
That concludes the public part of our meeting. I thank everyone for their attendance.