SNP raised DRS concerns three years ago despite '11th hour' claim

The UK Government has made glass exclusion one of the conditions of an exemption under the internal market act, legislation agreed at Westminster in 2020 to ensure a post-Brexit level playing field across the UK, despite repeated calls by the SNP that it undermined devolution.

Read more: Calling the UK Government's bluff on glass has spectacularly failed

It has now emerged that the Holyrood committee which scrutinised the internal market act, including current Scottish Government ministers Angela Constance, Patrick Harvie and Tom Arthur, raised concerns the legislation could put the DRS at risk and could even result in court action.

This is despite Greens Circular Economy Minister Lorna Slater, who is responsible for the DRS, pointing to an “11th hour” intervention by the UK Government.

In a letter to Michel Gove in October 2020, seen by The Herald on Sunday, Holyrood’s now-defunct finance and constitution committee, told the UK minister that the deposit return scheme shows “the complexities and legal difficulties which are likely to result” from the legislation.

The letter added: “As noted by our adviser this is likely to lead in some cases to protracted litigation through the court system.

“It is clear to the committee therefore that this will undermine the UK Government’s stated intention to provide certainty for businesses and will risk placing important public policy decisions outside the scope of democratic accountability.”

In another piece of correspondence from 2020, the then SNP constitution secretary Mike Russell, told the committee that “the Scottish Government agrees” with the concern.

Mike Russell

He added: “The non-discrimination principle, as with the bill as a whole, will have precisely the opposite effect from introducing clarity and certainty for businesses and consumers.

“As the committee notes, the interaction of the mutual recognition and non-discrimination principles could present future difficulties for devolved policies such as the deposit return scheme.”

Ms Slater has pushed back the rollout date to October 2025, to align with a UK-wide scheme.

Paperwork shows that Michael Gove raised the UK Government’s ambition for an aligned DRS with then SNP environment secretary Roseanna Cunningham as early as 2018, more than two years before the internal market act was introduced.

Michael Gove

In March 2018, Mr Gove approached Ms Cunningham, stating the UK Government was “keen to explore with you whether we can develop a system that works across the different parts of the United Kingdom”.

The next year, Mr Gove told Ms Cunningham that the DRS was “an area of environmental policy where we can maximise benefits through the UK nations working together”.

However, in October 2020, Mr Gove wrote to MSPs stressing that he was “confident the deposit return scheme can be brought into effect in compliance with the market access principles”.

Conservative MSP Maurice Golden said that the previous warnings “makes a mockery of Lorna Slater’s pretence that her botched deposit return scheme was wrecked by the Westminster government in a last-minute ambush”.

Read more: Lorna Slater is playing the scapegoat for SNP's return scheme mess

He added: “She’s known, or should have known, for years that she would have to take the internal market act into account when drawing up her plans – especially since her co-leader in the Greens and two other ministerial colleagues sat on the committee that pointed it out.

“She should drop her grievance-mongering and accept that the responsibility for the scheme being abandoned is hers, and hers alone.”

Labour MSP Sarah Boyack, said: “This shocking revelation confirms that key problems with the DRS have been known from the start.

“Whatever Lorna Slater may say to the contrary, SNP and Green MSPs appear to have deliberately ignored concerns that were raised for years on end.

Read more: Deposit Return Scheme delayed until October 2025 at the earliest

“This shambolic scheme has run its course. We need a DRS that works for everyone.”

Scottish LibDem climate emergency spokesperson Liam McArthur, said: “It is abundantly clear that there have been significant failings on the part of both governments in planning for the deposit return scheme.

“To make matters worse, both the SNP-Green coalition and the UK Tory government seem determined to turn DRS into a constitutional pantomime than agree on a way forward. In the meantime, businesses are left stuck in the middle and counting the cost.

“We have seen deposit return schemes work successfully in countries around the world. It is time that both Scotland’s governments found a way of ensuring that Scotland can follow suit.”

But Humza Yousaf has insisted that the actions of the UK Government shows “the grim reality that under Westminster control, even the limited measure of self-government that devolution provides is no longer guaranteed”.

Humza Yousaf (Image: PA)

He added: “It is the case that this Tory Government has ensured that devolution in Scotland is becoming unworkable.

“We are facing a steady erosion of the powers of our Parliament, the routine undermining of the Sewel convention, UK Government ministers blocking laws passed by a majority of MSPs in explicitly devolved areas, and senior Tories interfering in the Scottish Government’s vital work abroad.

“All of this amounts to a pattern of unprecedented assaults on the Scottish Parliament – putting the entire devolution settlement at risk.

"Addressing this effectively requires urgent and meaningful action from all political parties which supported the establishment of Holyrood almost 25 years ago.”