United Kingdom Internal Market Act 2020 (Exclusions from Market Access Principles: Single-Use Plastics) Regulations 2022

Baroness McIntosh of Pickering Excerpts

Tuesday 12th July 2022 Grand Committee

[The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

My Lords, this instrument was laid in draft before this House on 9 June. It makes an exclusion from the market access principles of the UK Internal Market Act, or UKIM Act, for legislation so far as it prohibits the sale of single-use plastic straws, stemmed cotton buds, drinks stirrers, plates, cutlery or chopsticks, balloon sticks, food containers, drinks containers or cups made wholly or partly from expanded or extruded polystyrene. I will cover both the reasons for and the impact of this instrument, starting with the former.

This instrument is being brought forward following an agreement under the provisional Resources and Waste Common Framework. The exclusion made in the instrument is necessary because all four nations share an ambition to tackle plastic pollution. This instrument furthers that ambition while recognising the need to protect the integrity of the UK internal market against future barriers to intra-UK trade.

Legislation banning the sale of the single-use plastic items covered by this exclusion has been introduced, will be introduced or has been consulted on being introduced in all four nations. However, there is a difference in the timing of these bans, which means the UKIM Act has an impact on the ability to implement such legislation.

The UKIM Act contains two market access principles: mutual recognition and non-discrimination. The principle of mutual recognition introduced by the Act means that a good that can be lawfully sold in the part of the UK in which it has been produced, or into which it has been imported, may be sold in any other part of the UK without needing to comply with any relevant requirements applying to the sale in that other part of the UK. The principle of non-discrimination means that the sale of goods in one part of the UK should not be affected by directly or indirectly discriminatory relevant requirements towards goods that have a relevant connection with another part of the UK.

I will now briefly outline the impact of this statutory instrument. The exclusion from the market access principles created by it means that the principles will not apply to legislation so far as it prohibits the sale of single-use plastic straws, stemmed cotton buds, drinks stirrers, plates, cutlery or chopsticks, balloon sticks, food containers, drinks containers or cups made wholly or partly from expanded or extruded polystyrene. For example, from 1 June 2022 it has been illegal to sell a single-use plastic plate in Scotland. The exclusion introduced by this instrument will mean that single-use plastic plates produced in or imported into other parts of the UK cannot be sold in Scotland, regardless of whether there is an equivalent ban in place in other parts of the UK.

The requirement in Section 10(7) of the UKIM Act for the Secretary of State to have regard to the importance of facilitating the access to the market within GB of qualifying Northern Ireland goods has been considered. The supply of the items covered by this exclusion is banned in Scotland and the Welsh and UK Governments have consulted on banning the supply of these items where it is not already banned. The relevant EU directive—article 5 of the single-use plastics directive—under annexe 2 of the Northern Ireland protocol, once implemented, will have equivalent effect to the proposed and existing legislation in Scotland, England and Wales, with the exception that legislation in Scotland, England and Wales will not encompass items made from oxodegradable plastic. As such, it is not thought that there is a need to make additional or separate provision to maintain access to the market within Great Britain for these single-use plastic items.

A full impact assessment has not been prepared for this instrument because it does not impose any new requirements. This instrument will affect the application of the Environmental Protection (Single-use Plastic Products) (Scotland) Regulations 2021 and any forthcoming regulations in England and Wales that ban the supply of the items covered by the exclusion. Any impacts on those regulations have been considered in the case of the Scottish regulations and will be considered in the case of any forthcoming regulations in England and Wales. Ministers from the Welsh and Scottish Governments have consented to the making of these regulations.

The Secretary of State will publish a statement in accordance with Section 10(11) of the UKIM Act explaining why these regulations will be made without consent from the Department for the Economy in Northern Ireland. To summarise, as this legislation is of a cross-cutting nature, it would normally require referral to the Northern Ireland Executive as per Northern Ireland’s Ministerial Code. This has obviously not been possible due to the ongoing absence of a First and Deputy First Minister in Northern Ireland, meaning the Executive cannot meet. My officials have however continued to engage at official level with the relevant Northern Ireland departments in the development of this legislation and there has been engagement with the Minister for Agriculture, Environment and Rural Affairs, Edwin Poots MLA, and the Minister for the Economy, Minister Lyons MLA, who have not raised any objections to the proposal.

The exclusion introduced by this instrument recognises our shared ambition across the UK to tackle plastic pollution while recognising the need to protect the integrity of the UK internal market against future barriers to intra-UK trade. I believe this shows that the process for considering UK Internal Market Act exclusions in common framework areas is working as intended. I commend these regulations to the Committee and I beg to move.

[Baroness McIntosh of Pickering (Con)]

I welcome, for the most part, the instrument which is before us this afternoon. I have a number of questions to put to my noble friend.

First, there seems to be an obvious exclusion from the list that has been given: wet wipes. I am sure my noble friend will agree that wet wipes, although they are sold in a pack, are causing huge damage, and it is something that we have looked at in other statutory instruments. I am looking at a report called Bricks and Mortar 3 about how to prevent flooding, and one of the issues that causes flooding, as we remember from debate on what became the Environment Act, is wet wipes mixing with fats, oils and grease in the water courses, causing flooding and a blockage in the system. I know we discussed cotton buds as well—I do not know whether they are here—but I would ask why cotton buds and wet wipes are not included since they do enormous damage.

I commend Scotland, which I see has already banned the sale of single-use plastic plates, and I wonder whether we are going to follow suit. My noble friend has said on a number of occasions that we are going to ban single-use plastics, and I was rather expecting a whole raft of statutory instruments in this regard. I know the noble Baroness, Lady Jones of Whitchurch, has held the Government’s feet to the fire over this, and has never missed an opportunity to do so, but we have not seen any of those statutory instruments.

A report published today shows that 96.5 billion items of plastic are thrown away by UK households every year, and only 12% of that plastic is recycled. As to why there is such a low percentage, could my noble friend tell us what is happening while these items remain in circulation, in whichever part of the internal market of the United Kingdom we are talking about? When are we going to have clear advice to each household, irrespective of where in the country you live, as to how to dispose of single-use plastic? For example, if you had a single-use plastic plate at a picnic and it has tomato sauce or oil all over it, if you put that in a recycling bin, is it not the case that you are contaminating the whole content of the bin? So where are we today on ensuring that the best advice is being given across the piece, so that there is uniform advice, even if it is just in England—although I would prefer it to be across the whole of the internal market of the United Kingdom—to prevent cross-contamination leading to less plastic going to recycling than would otherwise be the case?

I understand that no exemption has been extended to the ban on the supply of single-use plastic items in the UK. If I am correct in my assumption that we are allowed to use these on board aircraft, that seems bizarre. Could my noble friend explain why that has been extended?

In so far as this seems to relate to non-discrimination and having the same rules of circulation apply, I welcome what is in the statutory instrument. I just regret that it does not go nearly as far as I would have hoped, and when might we get the other statutory instruments which we were promised under the Environment Act? I would welcome answers to my questions from my noble friend.

[Lord Jones (Lab)]

My Lords, I thank the Minister for his efficient explanation. I too read the report to which the noble Baroness, Lady McIntosh, referred. I saw it in the Times and the Daily Mail.

In the helpful Explanatory Memorandum, reference is made in paragraph 13.1 to regulating small business. Has the Federation of Small Businesses been consulted? At this point it seems to be central, although I should say that I hold no personal brief for the FSB in any way.

Paragraphs 12.1 and 12.2 refer to impact. It is early days, but have Scotland and Wales yet set out their impact assessments? It is also clear that in all of this Scotland has been ahead of the game since June. Is there any intelligence yet as to how things are moving in Scotland? How was Scotland consulted? Was it simply by Zoom or was it between officials? Was it done personally by Ministers or was it done by phone? “Consultation” can mean many things.

Similarly, at paragraph 7.1, how was Wales consulted? To whom did the Minister talk? Did he talk to the Cabinet Minister for agriculture in the Senedd? If I may set him and his excellent officials in the department a challenge, can he tell me the name of the Welsh Minister for agriculture sitting in the Cabinet?