This is the APRS response to the Scottish Government’s consultation on the proposed Circular Economy Bill, September 2023. Our accompanying blog post can be read here.

Circular economy strategy

• Is a statutory requirement needed for a circular economy strategy?

Yes, but it will only be effective if it sets clear, consistent and effective requirements on how Ministers must prepare that strategy. 

• Is there anything else you would like to say about a circular economy strategy? (Section 1 – 5)

In developing a circular economy strategy, Ministers must be required to introduce a range of appropriate targets, prioritising the need to reduce emissions, waste, litter, and demand for virgin materials. These should include, where appropriate, consumption-based targets and targets for the reuse of materials. 

In S1(1)(3), the bill reads: “In preparing the circular economy strategy, the Scottish Ministers must have regard to the desirability of the economy being one in which—”. We believe this wording to give a weak duty to ministers. In its place, we suggest something along the lines of “In preparing the circular economy strategy, the Scottish Ministers must ensure their strategy works towards the economy being one in which…”

In (or ahead of) this section, we also believe the bill should include a purpose statement, setting out durable definitions of the terms “circular economy” and “circularity”. A circular economy is one where waste is reduced and ultimately prevented at both a production and consumption level, where reuse is promoted, where product design seeks to minimise the use of virgin materials and to allow the recovery of materials used as far as possible, where materials are kept in use for as long as possible, and one which ensures high rates of capture of used products and packaging. It is also one which ensures that the products made from materials recycled in this way are – as far as possible – of similar quality and functionality as the original material. 

For this, we would propose:

“The purpose of this bill is to further a transition to a circular economy in Scotland, ensuring as many products and materials as possible are dealt with as far up the waste hierarchy as possible, while aiming to reduce our consumption of raw materials to sustainable levels and to phase out polluting and harmful materials and products.”

A definition of this sort, although it may be difficult to find perfect wording for it, is important to clarify the purpose of the Act and its key terms. For example, even S1(1)(3) does not make that hierarchy explicit (although it is to some extent implicit in the ordering of subsections a-e.

In addition to a purpose/definition of that sort, Section 1 (3), we suggest the addition of “(f) applies the waste hierarchy, as defined in Section 34 of the Environmental Protection Act 1990”.

In 1. 1(6), where the bill says “The Scottish Ministers must have regard to the circular economy strategy in making policies (including proposals for legislation)”, we would propose the following more direct and binding wording: “In making policies (including proposals for legislation), the Scottish Ministers must ensure that the proposed policies align with the objectives and policies set out in the circular economy strategy”. 

We also support the Just Transition strand in this part of Scottish Environment Link’s submission.

• How should circular economy strategies be aligned with climate change plans and other environmental targets (including biodiversity goals)?

This Bill should help deliver reduction for materials and energy by requiring and promoting circular economy practices. It should be used to: 

1. Reduce material and energy input through identifying where such materials are not necessary/beneficial to society; and 

2. Keep materials in use for as long as possible. This should be with an aim to reduce the input of virgin materials into our society and economy, thus placing less strain on our finite resources.

Circular economy targets

• Are statutory circular economy targets needed?

Yes. These should include measures to address the embodied carbon associated with imports into Scotland, currently missing from the scope of the Climate Change (Scotland) Act 2009 and the Climate Change (Emissions Reduction Targets) (Scotland) Bill 2019, as set out in the section of Friends of the Earth Scotland’s submission to you on carbon consumption reduction targets, these elements of which APRS supports.

• Is there anything else you would like to say about powers to introduce circular economy targets? (Sections 6 and 7)

Where the bill reads “The Scottish Ministers may by regulations make provision imposing targets on the Scottish Ministers relating to developing a circular economy”, “may” should be replaced by “must”, and it should specify the date by which this must be done.

Next, where the bill reads “ In considering the imposition of targets under subsection (1), the Scottish Ministers must have regard to the desirability of the economy being one in which…” we would recommend  “In considering the imposition of targets under subsection (1), the Scottish Ministers must seek to achieve an economy in which..” to strengthen the duties on Ministers to work towards a circular economy.

Restrictions on the disposal of unsold consumer goods

• Do you think there is a need for additional regulation restricting the disposal of unsold consumer goods?

Yes.

• Is there anything else you would like to say about the disposal of unsold consumer goods? (Section 8)

Where it says “The Scottish Ministers may, by regulations, make provision prohibiting or restricting the disposal of unsold consumer goods if they consider it appropriate to do so for the purpose of reducing waste”, the word “may” should be changed to “must”, as this signifies a weak responsibility to introduce such provisions. 

We would also like clarification on what is meant by the term “disposal” for the purposes of the bill, in particular to prevent landfill, incineration, or export for either of these purposes. 

Here we also endorse Scottish Environment Link’s comments on the ban being applied as widely as possible, and on the definition of “consumer goods” being expanded to include goods in the supply chain, i.e. covering wholesalers.

Charges for single-use items

• Should Scottish Ministers have powers to make regulations that require suppliers of goods to apply charges to single-use items?

Yes, and these should be as ambitious as possible despite the possible impact of the Internal Market Act 2020. We also support Scottish Environment Link’s calls for a charge on single use takeaway food containers, or this could be implemented via a deposit and a takeback requirement.

• Is there anything else you would like to say about charges for the supply of single-use items? (Section 9)

Where there is an onus on the public to reduce use of single-use items, it should be incentivised and made as easy as possible for the public to ‘do the right thing’. This can be done through deposit-refund systems and with clear communication to the public of the purposes of charges to ensure that charges for single-use items truly work to decrease (and eventually eliminate) unnecessary single-use items, rather than becoming a tax. 

We would also like to see such provisions being applied to all types of packaging, including those which are oxydegradable or only compostable under industrial conditions. This should be done to ensure that Scotland moves towards circular packaging, rather than replacement for materials which will still contribute to litter and waste. 

Money raised by such charges should be applied to environmental protection or reinvested into recycling and waste management services, rather than businesses profiting from the introduction of such charges. 

• How do you think Scottish Ministers should use their powers to have the greatest impact in transitioning to a circular economy?

Each Minister should be required to publish a circular economy strategy with a long-term focus for their respective remit, just as Section 94 of the Climate Change (Scotland) Act 2009 requires reporting on the emissions impact of all departmental spending. 

Household waste

• Should it be a criminal offence for a householder to breach their duty of care in relation to waste under the Environmental Protection Act 1990 (e.g. to fail to ensure that waste is disposed of to an authorised person)?

Waste and litter are a systemic problem, not a consequence of individual responsibility or irresponsibility. These proposals keep the focus on the individual member of the public, whereas they should instead be on the companies producing products and packaging. 

• Is there anything else you would like to say about household waste and enforcement of household waste requirements? (Sections 10 & 11)

We believe that enforcement of household waste requirements has the potential to disproportionately impact marginalised groups and those already experiencing economic hardship. We believe that approaches to household waste should focus further upstream, as above, looking primarily at producer responsibility, and then secondarily on local authority collection arrangements, and, overall, prioritising accessible, affordable, and convenient opportunities to recycle and reduce waste. 

• Is further action needed, either within or outwith the Bill, to tackle flytipping effectively? If so, what action is needed?

Instances of flytipping should be monitored to determine whether the recent increase in fines has had an impact in reducing instances of flytipping, and that should they not be sufficiently reduced, alternative measures should be considered.

Household waste recycling – Code of Practice and local targets

• Should the Code of Practice on household waste recycling (currently a voluntary code) be put on a statutory footing?
• Is there anything else you would like to say about a Code of Practice on household waste recycling? (Section 12)
• Should Scottish Ministers have powers to set targets for local authorities relating to household waste recycling?

As above, the priority here should be, through amendments to this Bill or through other existing powers, to move towards extended producer responsibility as widely and rapidly as possible, which may, for certain products and market segments,  be delivered through local authority collection.

• Is there anything else you would like to say about targets for local authorities relating to household waste recycling? (Section 13)
• Is further action needed, either within or outwith the Bill, to support local authorities to achieve higher household recycling rates? If so, what action is needed?

If more “linear products” become local authorities’ problem, there is little they can do to manage that problem by that point. The priority is, as set out above, to promote product design, use, capture, reuse and recycling approaches to push each market segment as far up the waste hierarchy as possible – meaning any such contributions from local authorities can then actually help deliver greater circularity.

Littering from vehicles

• Should civil penalties for littering from vehicles be introduced?

No, or at least not through a Circular Economy Bill – much as APRS is opposed to littering from vehicles, this approach would do nothing to make it easier for (in this case) motorists to recycle appropriately.

• Is there anything else you would like to say about civil penalties for littering from vehicles? (Section 14)

Enforcement powers in respect of certain environmental offences

• Should enforcement authorities in Scotland be given powers to seize vehicles linked to waste crime?
• Is there anything else you would like to say about enforcement powers? (Sections 15 and 16)

Reporting on waste and surpluses

• Should Scottish Ministers have powers to require persons to publish information on anything they store or dispose of (except in relation to domestic activities)?

Yes.

• Is there anything else you would like to say on reporting? (Section 17)

Information and assistance on these requirements should be given to SMEs, who should also be involved in the process of the development of these requirements, to ensure that smaller businesses are not disproportionately affected by this measure.

• How should Scottish Ministers go about identifying which types of waste and surpluses should be subject to mandatory public reporting?

We believe that priority for mandatory public reporting should be given to those materials that:

• Have the highest environmental costs, including as measured by a life cycle assessment (LCA);
• Have an adverse effect on human health or the natural environment through pollution, leakages etc; 
• Are comprised of materials with which are difficult to source and/or have a high environmental impact when raw materials are being sourced, eg. lithium; and
• Have the highest potential for being reused.

However, as a circular economy aims to make waste truly minimal, this requirement should be extended to apply to all waste going forward. 

Net zero

The Scottish Government is committed to reaching an interim target of reducing greenhouse gas emissions by 75% (from a 1990 baseline) by 2030 and of making Scotland a “net-zero nation” in emissions by 2045.

• Do you think the Bill will play a significant role in achieving these net zero targets? Please give your reasons.

As discussed above, a global justice element should be crucial to the aims of this Bill. We believe the Bill should explicitly aim to reduce the consumption of resources, thereby reducing demand for raw material imports and eliminating waste exports. More than half of Scotland’s carbon emissions footprint comes from products and materials which we import, which are not accounted for in the Scottish greenhouse gas inventory [1]. Therefore, it is critical that this bill includes carbon consumption reduction targets to account for the global impacts of Scotland’s consumption rather than merely domestic emissions (the 2009 and 2019 Acts, by ignoring this element, actively promote the offshoring of manufacturing in particular). 

• There is a Policy Memorandum accompanying the Bill. This aims to set out the underlying reasons why the Scottish Government thinks the Bill is necessary. Did you find the discussion under “Sustainable Development” in the Policy Memorandum helpful or unhelpful in terms of understanding what impact the Bill would have in terms of reaching these net zero targets?

General/aspects not in the Bill

• Are there any areas not addressed (for example on waste reduction and reuse) by the Bill that you believe should be included? If so, what are they?

APRS believes that this Bill, as drafted, will do little to promote circularity directly, and is in urgent need of radical change in order to be fit for purpose. We propose the following additions, beyond those already discussed above.

1. A strong refill system for drinks containers, especially glass bottles, is central to working towards a circular economy whilst reducing our carbon emissions, alongside a deposit return system. This can also be appropriate for other containers, such as food or cosmetics.. A recent report by Eunomia and Zero Waste Europe (Decarbonisation of Single Use Beverage Packaging, 2023) shows single-use glass has the highest associated greenhouse gas emissions when compared to other materials commonly used in beverage packaging, and that the full decarbonisation of single use glass drinks containers is not possible even where they are covered, as they should be, by deposit return. In addition, 2021 polling by Friends of the Earth and City to Sea shows that 81% of people in the UK would like to see refillable products be a top government priority in addressing waste. While this statistic is focused on plastic, it does show the public demand for refillable products. We therefore recommend the Bill be amended to give Ministers the power to introduce targets for refillables by regulation, ideally by requiring that retailers over a certain size must stock a target percentage of glass drinks containers as refillables by a given date, with an aim of increasing this target going forward. 
2. As part of the extended producer responsibility agenda, the Bill should also set criteria by which Ministers can require producers to accept returns of certain items, ideally as broadly as possible, to encourage the sale of products that can be managed further up the waste hierarchy, and where efficient collection and reuse or recycling infrastructure exists or can readily be developed, with lessons learnt from the implementation of the WEEE Directive. Take-back requirements of this sort should be accompanied by binding and well-monitored targets on, as appropriate, and as examples, capture rates, true reuse or recycling rates, or levels of virgin materials used per product category. Under this heading Ministers should prioritise takeback requirements for:
   1. widely used and fast-moving items, such as food, drinks and cosmetics containers, including cartons, or rechargeable vapes;
   2. items where the carbon impact of greater circularity would be most significant, such as consumer textiles, including clothes;
   3. awkward items for the public to manage at the end of their life, such as mattresses and furniture; 
   4. items where recycling is feasible and already best practice (but where less scrupulous producers prefer to externalise their end of life costs onto the public and local authorities) – this also includes mattresses and furniture; and
   5. products where producers often fail to consider their end of life, such as toys.
3. The issue of circularity with relation to housing and the planning system is crucial in ensuring a more circular economy in Scotland. According to the Circularity Gap Report Scotland, a more circular built environment can reduce our material footprint by 11.2% and our carbon footprint by 11.5%. As such, integrating circular economy measures and targets into the planning system is crucial. As per the National Planning Framework 4, priority should be given to the refurbishment and repair of existing buildings rather than demolition and new builds to reduce material demand and carbon emissions from this sector. Planning authorities should be required to ensure circular practices are in place where possible, and reduce their material footprint through targets. Raw material usage should be minimised in construction and planning, and targets should be introduced to recover and regenerate materials at the end of use. 
4. The Scottish Government should be required to lead by example and set circular economy targets for its own operations, including its buildings and hospitality premises. 
5. Any company or businesses in receipt of public funds should have a necessary condition of circularity, in which they must be required to  set out how they would work to maximise circularity (this would require the robust definition of what is meant by ‘circularity’, similar to the one proposed above). 
6. We also support Scottish Environment Link’s call here for urgent bans on other problematic single use items by a certain date.

• Are there international examples of best practice in legislation supporting the transition to a circular economy?

German legislation calls for 70% market share of beverage containers to be sold as refillables. According to the German Department for Environment, most glass bottles can be used up to 50 times without losing quality, and both glass and refillable PET bottles are used for refill in Germany. 

In Germany, drinks producers have two options for their return systems; 

• individually designed bottles, where producers or brands specify their own bottle shape, colour etc. This is associated with higher transport emissions if the bottles are distributed nationwide, as they have to return to a particular wash and refill station; or
• pool systems, which are formed by multiple producers who use a standard bottle that can be used by all the brands in the pool. This also ensures fair distribution of costs and benefits, fair conditions, and agreed quality standards. This allows for optimisation of transport from retail to washing and refilling stations, lowering transport-related emissions. 

Similarly, France also has a law on the reuse of packaging, requiring 10% of packaging placed on the market to be reusable by 2027. 

One of the most important aspects of best practice legislation around waste reduction is the polluter pays principle and extended producer responsibility . In France, EPR has been in legislation since 1975 and implemented in 1992 for household waste. From 1992 to 2012, the collection of batteries has increased by 80% under the relevant legislation, which obliges producers, importers, and distributors of certain materials to pay or contribute to the disposal of waste they generate. France have also recently committed to extending the scope of their EPR legislation, something which any legislation around EPR in Scotland should also aim to do. Through this legislation, producers can manage the waste they generate individually, or provide an eco-contribution to an Producer Responsibility Organsiation to manage their waste and foster the eco-design of products, encouraging consideration of the entire life cycle of each product. 

Resources and Waste Common Framework

The Committee is also seeking your views around how the Bill sits within a wider context of:

1. a mixture of devolved and reserved powers in relation to tackling consumption and areas such as product standards

Improving product standards can be done directly, via regulation, but then (depending on implementation) that might be vulnerable to challenges under the Internal Market Act. However, requirements to take products back and then manage those recovered products in a more circular manner can be an effective and indirect way of promoting higher standards and more circular product design (as the costs of awkward materials recovered would no longer be externalised onto the environment, the public, and local authorities, and would instead correctly become the responsibility of their producers).

2. existing UK-wide schemes such as developments with Extended Producer Responsibility

It is reasonable for producers to not wish to pay twice for putting the same product onto the market, or for the same packaging. Systems of takeback should be prioritised over systems compensating local authorities for the costs of recovery and recycling where possible, and producers governed by a takeback system should be exempt from EPR costs on items they actually collect back. 

3. how circular economy and waste policy is influenced by the UK Internal Market Act 2020 and relevant Common Frameworks.

Part 1 of the UK Internal Market Act, especially as it concerns mutual recognition, does complicate the implementation of certain circular economy principles, in particular that “goods should be able to be sold … free from any relevant requirements”, which clearly would cover charges on single use items where set in regulation. However, APRS believes the Scottish Government and Scottish Parliament should act as if exemptions would be granted, where required, and then make the case for those exemptions through the Common Frameworks where those apply. We would also urge the Committee to make representations to HMG to the effect that a qualified automatic exemption be granted to the devolved institutions where a policy has environmental or public health benefits.

Finally, there are many areas of circular economy policy where the Internal Market Act simply does not apply. Its focus is on the sale, most notably, allowing much more flexibility about takeback requirements and binding targets of the sort discussed above. The Act is also silent on the question of bans on the use of linear products, much as such bans would in many cases be less effective without a ban on the sale in Scotland.

4. Do you have comments on how this wider framework should function to support Scotland’s transition to a circular economy, in particular on the provisional Resources and Waste Common Framework?