Scotland's DRS Debacle: what legal advice did Scottish Ministers receive?
For those familiar with Scotland’s Deposit Return Scheme (DRS) debacle, the following may not prove too enlightening — but of likely interest nonetheless. I chart my efforts to obtain the legal advice that Scottish Ministers received on the risk of the UK Government’s intervention to block the scheme via the Internal Market Act (IMA).
First, a bit of background.1 DRSs are an established policy lever for governments to increase the recycling rates of specified containers (like plastic bottles, glass bottles, and aluminium cans). The systems for these containers’ collection typically operating on the polluter-pays principle, the containers themselves see an additional refundable deposit that consumers receive upon their return. In my home country of Germany, this comes in the form of a coupon that can be spent at the supermarket of return, or redeemed for cash. The success of DRSs is well-evidenced. Again in Germany, PET plastic bottles have a 98% collection rate. Why throw a piece of plastic worth up to €0.25 away? This rate, when a bottle does not have a Pfand, hits a ceiling of 31%. And whether the containers — glass, plastic, or metal — are reused, refilled, or recycled (and there is plenty to say about the intrinsic flaws of plastic recycling), the key strength of any DRS is the optionality it offers in material use for an economy. Instead of material ending up in landfill or in an incinerator, we have the option to choose how to most efficaciously (re)use it.
The ongoing translation of DRSs’ efficacy into the UK legislative landscape is thereby welcome. The UK Government is looking to introduce a DRS focussing on plastic and metal single-use drinks containers — notably excluding glass — in October 2027. This is in collaboration with the Scottish and Northern Irish devolved administrations. Wales is in the process of developing its own DRS including glass after withdrawing from UK-wide efforts in 2024. But it will similarly be launching in October 2027.2 Importantly, Wales’s lone efforts were greenlit by the current UK Government — which, through the post-Brexit IMA, holds what is essentially a veto over any devolved policy that may impact on cross-nation trade. Given the labelling and pricing disparities involved in any DRS, that greenlight was a necessity for Wales to move forward.
And it was a greenlight that Scotland did not receive in its previous attempts to launch a DRS. First passing the Deposit and Return Scheme for Scotland Regulations in 2020, the Scottish Parliament and Government had hoped for a DRS including plastics, metals, and glass to launch by July 2022. These plans hit a snag, so subsequently passed regulations delayed the scheme’s launch date to August 2023. Then came the UK Government’s IMA exclusion in May 2023. The then-Secretary of State for Scotland Alister Jack authorised the scheme’s progression, but only under the condition that glass would be excluded from its scope. This proved controversial, especially given the significant emissions involved in virgin glass bottle production, and deadening. The winds in Scotland’s DRS sails dropped to zero, with investments in processing and logistics systems including glass made by non-profit and private sector partners — Circularity Scotland Ltd, the arm’s-length body set up to manage the scheme, and Biffa, the appointed sole logistics provider for the scheme, in particular — coming to naught.3 Circularity Scotland Ltd went into administration, and so Scotland’s DRS timeline extended once again.
Scotland’s DRS was unduly controversial amongst some parties, individuals, and lobby groups, but the politicking machinations behind this process are not worth delving into here.4 The purpose of this overview is to provide some cursory context for an Environmental Information Regulation (EIR) request I submitted to Scottish Ministers in January of last year. This request related to the legal advice that Scottish Ministers received in relation to the risk of IMA intervention by the UK Government. This is the request in full:
‘I would like a copy of the following information:
Any verbal minuted legal advice Scottish Ministers received on the implementation of a Deposit Return Scheme (DRS) in Scotland between May 2021 and September 2023;
Any written legal advice Scottish Ministers received on the implementation of a DRS in Scotland between May 2021 and September 2023;
In particular, I am looking for any verbal minuted or written legal advice on the potential clash of a Scottish DRS with the Internal Market Act, and the risk of UK government intervention. This advice can take the form of actionable recommendations, an assessment of existing legislation and case law, or any other relevant form.’5
Importantly — and many of you may be aware of this — legal advice is not covered by EIR (or FOI) requests. An exception outlined in Regulation 10(4)(e) of the Environmental Information (Scotland) Regulations 2004 excludes internal communications that breach legal professional privilege. The only way around this is to meet a seriously-hard-to-meet public interest test. So this, after having taken counsel from the venerable Dr. Ben Christman at the Environmental Rights Centre for Scotland (ERCS), is what I attempted to do. My request for an internal review, the next step of the EIR disclosure process, was submitted the following April as follows:
‘I would like to appeal on the basis that public interest overrides legal professional privilege in this case, as per Decision 048/2022 by the Scottish Information Commissioner. Specifically, the publication of this advice is in the public interest because:
The implementation of Scotland’s DRS was delayed by intervention from the UK Government via the Internal Market Act (IMA). Ministers, in receiving legal advice, should or would have been made aware of the risks of this intervention. Three scenarios thus arise:
If Ministers had been made aware that there was significant risk, this should be known to the public as Ministers proceeded regardless: it is in the public interest for our leaders to make policy decisions on evidenced bases, not on ideological constitutional bases that contravene express legal advice and set up clashes between the UK Government and devolved administrations.
If Ministers had been made aware that there was minimal risk, this should be known to the public as that legal advice was likely imprecise and misleading: it is in the public interest for our leaders to receive accurate legal advice as it enables them to make more informed decisions with better outcomes for the public.
If Ministers had not sought legal advice in the first place: disclosure thereof is in the public interest as our leaders should seek or have legal advice made available to them on policy decisions with constitutional ramifications. If this is not the case, those policy decisions would be unsound.6
To encapsulate the above three scenarios, it is clearly in the public interest to enhance scrutiny of Ministers’ decision-making processes and thereby improve accountability and democratic participation. Those processes are inextricably linked with any legal advice that Ministers might have received on this matter.
The delay of Scotland’s DRS has resulted in legal action by Biffa against the Scottish Government, seeking compensation of £166,200,000 for loss of investment, management costs, and profits as the scheme’s planned logistics partner.
It is in the public interest for Ministers to receive proper legal advice if there is a risk of litigation, particularly if that litigation involves compensation claims. It is therefore in the public interest to ascertain whether the legal advice received by Ministers in this case was proper, briefing them on the implications of the IMA and on the likelihood of UK Government intervention, to prevent future losses to the taxpayer. Effective oversight of potential expenditure of public funds due to improper legal advice is clearly in the public interest.
The delay of Scotland’s DRS was and is fundamentally a constitutional issue, given its interface with the IMA. The release of the requested information would significantly enhance public debate as a result, as per Paragraph 41 of Decision 048/2022. Ministers’ accountability is actively harmed by the information’s non-release.
In addition to this, the DRS is a clear example of the IMA’s conflict with prior devolution settlements. It gets to the core of Scotland’s constitutional settlement with Westminster, and taps into ongoing public debate on Scottish devolution and the nation’s integration in the UK post-departure from the EU. Release of the legal advice given to Ministers pertaining to the DRS and by extension pertaining to the IMA’s impacts would, naturally, contribute greatly to this debate.
It is also clearly in the environmental public interest for a DRS scheme to be introduced. At a time of climatic and ecological crises, the introduction of waste management systems like a DRS would mitigate against throwaway culture, encourage recycling, incentivise reuse, and contribute toward the Scottish Government’s goal of achieving a circular economy. Any delay in the implementation of a DRS delays necessary environmental action, thereby contravening the public interest. The disclosure of legal advice that may have hinted at or prevented that delay in the first place would have prevented additional environmental harm, given that the DRS is now slated for introduction in 2027 (a number of years later than originally planned). It is thereby in the public interest for that legal advice to be published, contributing to the discussion of how constitutional barriers limit Holyrood’s environmental action.
To pre-empt one previously cited reason for non-disclosure of legal advice: that of disclosure leading to future advice being more circumspect or not sought in the first place.7 This is not the case in this instance. If anything, the details of this case may reveal that legal advice should be more circumspect, or that legal advice should be sought more frequently and vigorously, to prevent downstream litigation.’
The legal risks I discussed in my appeal were well-established. The Scottish Government had been warned of liability exposure brought about by IMA uncertainties on a number of occasions over the years (for public reporting on this, see here and here). They have now, though, been settled. The legal action taken by Biffa against Scottish Ministers on negligent misrepresentation and duty of care was dismissed in its entirety by the Court of Session in January of this year, with their case centring a May 2022 letter written by Lorna Slater MSP — the Minister whose brief included the circular economy at the time — to their CEO Michael Topham. In it, Slater underlined the Scottish Government’s continued support for DRS and faith in it going forward. Biffa and Topham took this as an assurance on which they continued to invest in logistics capacity. Lord Sandison, the judge overseeing the case, didn’t take this line of argument too kindly — calling the communication little more than a ‘comfort letter’ and an expression of a political rather than legal commitment. Hence his ruling. At the same time, the extent of the Scottish Government’s and Slater’s confidence was — in my view — undue. From the ruling:
‘Ms Slater attempted to downplay the importance of the IMA exclusion, claiming that she had known since 2021 that an exclusion would be required, that steps were being taken as early as 2021 to seek one, and that she had no reason to doubt that the requisite exclusion would be granted. She thought it could be done fairly straightforwardly. There was no material change in that belief until 2023, when Lord [Alister] Jack became involved.’8
‘Her [Slater’s] official Charles Holmes had drafted a letter for Lockton [an insurance broker] dated 6 May 2022. It reinforced the commitment of the defenders to the delivery of the scheme by 16 August 2023 and sought to clarify CSL’s [Circularity Scotland Ltd] role. It did not mention the IMA, VAT or labelling issues. These were issues which the defenders considered could be worked through. There was no reason to expect that an IMA exclusion would not be granted, as it had been in relation to single-use plastics.9 The UK Government was well-disposed to deposit return schemes as a matter of generality and the exclusion would tidy up the legalities around divergences, including in relation to the inclusion or exclusion of glass, to make sure the various schemes would be interoperable.’10
This hints at a confidence kiboshed by the blunt force of the IMA — blunt force that has resulted in a four-year-delay-expressed trauma to get a Scottish DRS across the line. Unfortunately, an analysis of what led to that confidence in the form of information I had sought via an EIR request was not forthcoming. My later appeal to the Scottish Information Commissioner — the next step on the EIR (and FOI) journey — on the same grounds and the below clarifications was rejected. The additional queries from the Commissioner are below; my responses in italics:
‘I note that in your request for review of 15 April 2025, you gave detailed arguments in support of your view that disclosure of the information is in the public interest and that you wish to reply on those.
Firstly, I would be grateful if you could clarify your argument at section 3B of your request for review (15 April 2025). Was your intention to make one or two separate points here? That is,
(a) are you arguing that there is a public interest in legal advice (if any exists) around the delay to the DRS and the consequent environmental impacts/failure to meet targets,
AND
(b) also arguing that there is public interest in scrutiny of the constitutional barriers to environmental action.
Or was your intention to make one argument on the constitutional barriers to the Scottish Parliament’s environmental actions?
Your reading is correct. My intention here was to make two separate points.
If you would like to add anything else to your public interest submissions, please take this opportunity to do so.
A fourth point, elaborating on 1, 2, and 3A.
4. There is a clear divergence between the pathways taken by Scotland and Wales’s DRSs. Wales’s recent decision to exit a UK-wide scheme, and launch one in parallel that includes glass, has yet to face an intervention from the UK Government via the IMA. Whether the reason for this is political or technical, the legal advice Scottish Ministers received in the noted time period in all likelihood influenced the Scottish Government’s strategy of implementing their DRS. Given the current relative success of Wales’s efforts, the integrity of advice received by Scottish Ministers may be in question. It is thereby in the public interest for this legal advice to be published — to learn from past errors, hold government to account, and potentially allow for the eventual inclusion of glass in Scotland’s DRS; the latter being an unalloyed environmental good.’
The Commissioner’s Decision Notice laid out their public interest test weighting clearly, and it can be found in full on their Decisions Database [the uploaded, publicly available, Decision Notice is due to be published shortly — I will hyperlink it here when available]. Most interestingly, apart from rejection, is that the legal advice received in verbal form only occurred in Cabinet meetings — the minutes of which are classified. Because of their being classified, my initial EIR request did not actually result in these minutes being uncovered. My appeal induced Scottish Ministers to conduct a more thorough search, through which they located two documents that fell within the scope of my request. That means, by proxy, that there were only two instances of minuted verbal legal advice on a fundamental constitutional and environmental issue between May 2021 and September 2023. Somewhat of a paucity.
That said, I include one excerpt from Scottish Ministers’ response to the Commissioner — contained in the Decision Notice — below:
‘The Authority [Scottish Ministers] noted that all government decision-making and policy was underpinned by the rule of law and was often informed by complex and nuanced legal advice which evolved throughout the development of the policy and it rarely fell squarely into one of two categories; “significant risk” of [sic] “minimal risk”. The Authority argued that the fact that a legal risk materialised, does not show that it ignored legal advice or that the legal advice was wrong.’11
This is a point I do not disagree on, but its nuance is unfortunately lost in the sphere of public debate. And that is because this issue — considering DRS as a symptom rather than as an aggravator in itself — demonstrates the simple complexity and intersection of devolved relations and environmental priorities today.
The evidence is crystal-clear on DRSs’ efficacy, so much so that little should stand in the way of their implementation and inclusion of glass. This is particularly given that a significant chunk of their economic benefits stem from glass’ inclusion — rising from £3.6bn to £5.9bn in Scotland (albeit with a near-corresponding processing and management cost) — and given that well-designed inclusion has been consistently proven to work in any state or country that adopts it. At the same time, though, pursuit of DRSs as an environmental good has too often been conflated with the pursuit or kiboshing of DRSs as constitutional performance. Ministers in Westminster and Ministers at Holyrood duking it out on their then-Twitter feeds didn’t help anyone — and nor do disagreements on these matters today. The environment cannot be treated as a political, or constitutional, football.
All roads lead back to the IMA.12 With a number of environmental policy interventions like DRSs overlapping with its remit, the Act’s inherently blunt, unilateral, and indiscriminate nature helps no one.13 The previous UK Government was wrong to issue an IMA exclusion which excluded glass, with a different approach — demonstrated by the current UK Government permitting Wales to go forward with its own scheme that includes glass — being possible.14 This different approach, though, underpinned by a weighing of environmental, public health, and economic impacts in IMA considerations, is hardly durable. Its basis being in the voluntarist post-Brexit Common Frameworks — an effort to align legislative and regulatory efforts across the UK’s four nations — is flimsy; as long as the veto powers contained in the IMA remain, Downing Street occupants of any persuasion can chop and change a multitude of environmental policy at will.15 As Emeritus Professor Colin Reid sardonically wrote back in 2024:
‘The scope for devolved administrations to implement their own policy choices effectively seems to be as restricted as critics of the act feared.’
And so — legal advice or not — the limitations of our current system of environmental governance are abundantly clear. The constitutional and legislative frameworks that exist today are designed for the political expediency of the UK Government’s Cabinet, and the political expediencies of devolved governments, more than they are for environmental good. Our environmental governance systems are less reflective of a thoughtful, systemic, approach to managing spatially diffuse challenges than they are of a helter-skelter response to political needs (or rather demands) at any one time — like the need to create a post-Brexit governance architecture for the UK’s internal market; and the need to delineate environmental decision- and policy-making by preexisting national boundaries.
This helter-skelter response is hardly unique to the UK. Environmental and constitutional political structures are, by their very definition, an amalgam of statute-expressed responses to the political demands of any one time. While thoughtfulness can and has been imbued therein, those structures’ spatiotemporal impotence — as I have labelled it previously — is fundamental to their spatiotemporal restrictions and delimitations; fundamental to their binding to their bounded political origins rather than their unbounded environmental purposes. In the UK, the DRS debacle is but one symptom thereof. Think of future instances of spatial political overlap; say, national and food security. National security — a matter reserved to the UK Government — is inherently, and self-admittedly, intertwined with food security. What might transpire if and when a devolved government’s agricultural policy is deemed inadequate, or if the UK Government’s own then-inadequate agricultural policy is imposed on devolved governments on national security grounds? In an age of permacrises where we are repeatedly hitting the ceiling of governance-al suitability, such a scenario feels less than remote.
If you appreciate the effort that goes into EIR and FOI requests of this kind, please consider donating to ERCS. Without the counsel provided by Dr. Ben Christman, their Legal Director, my albeit-failed efforts to obtain the legal advice Scottish Ministers received would have been short(er)-lived. ERCS does fantastic work, including campaigning on sewage and bathing waters in the run-up to this year’s Holyrood election, and the recent launching of its own law firm. Find the link to donate here.
Emphasis on a bit. Better overviews are available, not least ENDS Report’s thorough reporting on this matter.
Although glass will remain out of scope until 2031 — more on this later.
This is an abridged and somewhat reductive retelling. In reality, a number of management mishaps meant that the scheme had been on the rocks prior to IMA intervention. It was more a lack of confidence by private sector participants funding Circularity Scotland that proved the death knell.
For those interested: examples from the SNP and Alister Jack, the latter recollecting IMA wrangling.
In the first instance, I have a habit of making my FOI and EIR requests deliberately broad. This has in the past allowed me to locate useful information I would not have otherwise solicited.
That said, we do know — and did previously know — that Scottish Ministers had sought legal advice on this matter. But not as explicitly as one would have liked. More on this here.
Here I was referencing Scottish Ministers’ response to my initial EIR request.
Pages 7-8 of the Decision Notice [again, I will hyperlink the Decision Notice here when publicly available].
Not necessarily in the literal sense. Other legislation is of course relevant; the IMA simply best demonstrates the wilful weaknesses of present governance arrangements.
Except, perhaps, the fortunes of political (or rather high-brow gossip) commentators.
That said and as previously stated, glass won’t be included until 2031 at the earliest. This was a compromise position.