The head of Scotland's deposit return scheme has expressed
concerns over liability, saying the non-profit company wasn't in 'full possession
of the facts'.
On Wednesday, David Harris, the CEO of Circularity Scotland, told the Court of Session in Edinburgh that he believed "the material facts were kept from us."
After seeing a report from a January 2022 committee meeting of the Scottish Parliament, he made the remark.
Due to the Scottish Government's decision to postpone the DRS until 2023, Biffa Waste Services is suing the government and demanding £166 million in compensation.
The study presented in court made clear that the Internal Market Act's regulations could cause the DRS to be "disapplied."
"Good reasons to believe that core aspects of the regime could be disapplied as consequence of the Act,"
the memo stated.
According to Mr. Harris, he had never seen the document previously and had not had "full possession" of the information.
He said:
“On the basis of what is presented to me today, I feel the material facts were kept from us and that would have had a significant bearing on our ability to proceed.”
When UK ministers ruled that glass bottles could not be included under the Internal Market Act, the Scottish Government modified its original intentions for the program.
Although a DRS for the entire UK is planned, it is not anticipated to start until 2027.
Mr. Harris testified in court on Wednesday that he was not informed of the UK government's stance on internal market regulations that would have affected the plan's future.
On behalf of Biffa, Roddy Dunlop KC inquired as to whether Mr. Harris felt deceived.
He responded
“I could say that, yes.”
The beverage industry provides funding for Circularity Scotland. According to Companies House documents, its liabilities were about £86.2 million.
With a £65 million obligation, Biffa, a waste management company in charge of collecting and recycling bottles and cans for the program, is the biggest creditor.
Mr. Harris claimed that if he had realized sooner that the DRS may be "disapplied" because of internal market regulations, he would have informed Biffa.
What impact could the Internal Market Act have on the DRS implementation?
The UK Internal Market Act (UKIMA) affects the
implementation of Scotland's Deposit Return Scheme (DRS) by requiring
"market access principles", which provide that goods made in one part
of the UK have the right to be allowed into markets anywhere in the UK, free
from barriers to trade such as additional regulation.
This means that Scotland cannot unilaterally apply DRS requirements such as mandated markings on the containers, or deposits unless similar requirements apply to goods made in other parts of the UK.
To operate effectively, Scotland requested that UKIMA exclude it for a temporary and conditional basis so its DRS can launch with its specifications, recognizing that these exclusions would have to be negotiated and agreed with the UK Government.