Single-use plastic is the most dominant source of litter in our oceans. This issue is being tackled in the recently introduced Environmental Protection (Single-use Plastic Products) (Wales) Bill.
The Bill will make it an offence for a person to supply or offer to supply (including for free) unnecessary, commonly littered single-use plastic products, to a consumer in Wales. The products targeted in the Bill are:
- drinks stirrers;
- drinking straws (including attached straws);
- cups made of polystyrene;
- takeaway food containers made of polystyrene;
- cup and takeaway food container lids made of polystyrene;
- plastic-stemmed cotton buds;
- sticks for balloons;
- oxo-degradable products; and
- plastic single-use carrier bags (SUCBs).
Our recent Bill Summary outlines the intended effect of the Bill,and summarises its main provisions. This article looks at the response to the Bill so far, and the implications of the UK Internal Market Act.
What stakeholders are saying
The Welsh Government consulted on proposals to ban nine single-use plastic products in 2020 - polystyrene lids for cups and take away containers, and single-use carrier bags were not part of the consultation. The responses showed a considerable level of support for a ban, primarily on environmental grounds.
The Senedd’s Climate Change, Environment and Infrastructure (CCEI) Committee consulted on the draft Bill over the summer. This gave stakeholders the opportunity to provide written evidence on the draft Bill, however the accompanying Explanatory Memorandum was not available to stakeholders at that time; it was published alongside the Bill (as introduced) on 20 September.
The Committee found widespread support for the Bill, but that it’s only one part of a jigsaw of interventions:
… this Bill alone will not affect the serious levels of plastic pollution and littering we see all around us, but it is a starting point and a necessary, if belated, step in the right direction.
The Minister told the Committee the primary purpose of the Bill is to “encourage a change in behaviour”, meaning a change in the way products are made and supplied, but also the way in which they're used and eventually disposed of. Stakeholders said the Bill will only be successful if its purpose is clearly understood and accompanied by concerted efforts at public education to drive behaviour change.
The Committee makes a number of recommendations around guidance, education, publicity and awareness raising. It cautions that without sufficient efforts in these areas, littering may continue, but of a different material. It’s also highlighted that many of the proposed prohibited products don’t feature in litter survey data, while those most featured are not included, such as cigarette/e-cigarette litter.
The risk that single-use plastics might be replaced by other environmentally damaging products was also a concern. The Committee recommends that information on ‘acceptable alternatives’ be set out in statutory guidance and reviewed regularly, as a sensible way of addressing this risk.
If the Bill is passed, the Welsh Ministers will have powers to amend the list of prohibited products. Environmental groups said this will ensure Ministers can react to emerging issues and make future changes efficiently. However, other stakeholders highlighted there is no requirement for Ministers to seek advice or consult when exercising these powers. The Committee recommends the Bill is amended to ensure a full and public consultation takes place ahead of any amendments.
The Bill grants local authorities enforcement powers, but there is widespread concern about the capacity of local authorities to effectively enforce the ban. The Minister said there is no plan to provide additional financial support for enforcement action. The Committee has asked the Minister to explain what support, financial or otherwise, will be made available to local authorities.
UK Internal Market Act
The UK Internal Market Act 2020 introduced uncertainty about whether devolved administrations are able to introduce effective bans on products permitted to be sold in other parts of the UK.
The Act sets new ‘market access principles’ of mutual recognition and non-discrimination. These principles presume that (in general) goods, services and professional qualifications that can be sold or recognised in one part of the UK should be able to be sold or recognised in any other part, regardless of what the law in that other part of the UK says.
Most of the single-use plastics products in the Bill have been excluded from the market access principles following a request from the Scottish Government. The Bill goes beyond the list of agreed exclusions so the principles continue to apply to single-use carrier bags and oxo-degradable products.
Example: Single Use carrier bags
The Senedd can legislate to ban carrier bags made with certain types of single- use plastic in Wales. It is within its competence to do so. It could enforce this ban on any Welsh producers or supplier of these types of bags.
UK Internal Market Act effect
If the production, sale and import of these kinds of bags is permitted in England, Northern Ireland and/or Scotland then the mutual recognition principle set out in the Act means that producers or importers in those countries would retain an automatic right to sell these types of bags in Wales or to supply them to Welsh businesses. This is because they meet the legal standards in another part of the UK. This right remains even though the standards in Wales have changed.
The non-discrimination principles mean the Senedd is not permitted to avoid the effects of the mutual recognition principle by discriminating directly or indirectly against producers from these countries. For example, a law providing that only carrier bags produced in Wales or imported directly to Wales can be sold or used here would breach the Act.
If the majority of single-use plastic carrier bags used or sold in Wales are produced elsewhere or imported into other parts of the UK before being sold here, then the impact of the Senedd legislating for a ban could be minimal.
The Act says where these principles apply in relation to a sale of goods in a part of the UK “any relevant requirements there do not apply in relation to the sale”.
It’s for this reason that the practical effect of the Bill is questioned. In short, the Bill says it’s an offence to supply (including from outside Wales) a prohibited single-use plastic product to a consumer who is in Wales. But the UK Internal Market Act says that it’s allowed to be sold in Wales by a supplier outside of Wales, if it’s permitted to be sold in other parts of the UK.
An article for the Institute of Welsh Affairs explained that the Act does not stop devolved legislatures enacting relevant requirements if it is within their competence to do so, it simply stops them being effective or applicable in certain limited contexts. It questions:
If devolved legislation is of no effect in certain circumstances, then is the legislature’s ‘competence’ over that area itself altered or impaired?
The Welsh Government had mounted a legal challenge against the UK Internal Market Act on the grounds that it:
- impliedly repeals part of the Government of Wales Act 2006 in a way that diminishes the Senedd’s legislative competence; and
- confers wide powers on the UK Government which could be used by UK Ministers to amend the Government of Wales Act 2006 in a way that cuts down the devolution settlement.
In his July legislative statement, the First Minister outlined his intention to use the single-use plastic legislation as a test case as part of the Welsh Government’s legal challenge to the Act. He added that the Welsh Government would therefore be seeking to introduce the Bill through an ‘expedited’ process, to make it available to use in the legal case as quickly as possible.
The Welsh Government sought to bypass formal Stage 1 committee scrutiny for the Bill on this basis. The CCEI Committee undertook work to “avoid a scrutiny deficit”, otherwise:
… there would be no public consultation on the detailed provisions of the Bill and no opportunity for those affected by the proposals to have their say.
However, giving evidence to the Senedd’s Legislation, Justice and Constitution Committee, the Minister for Climate Change said the reason for the expedited procedure was the need to prioritise the environment and act fast on plastic, rather than to support its legal challenge.
It is unclear whether the Welsh Government still intends to use the Bill as a test-case as part of a legal challenge to the UK Internal Market Act.
The general principles of the Bill will be debated in the Senedd on 11 October. If Members agree the general principles of the Bill, it progresses to Stage 2, the amending stage in committee.
You can watch the debate live on Senedd TV.