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

Lord Goldsmith of Richmond Park Excerpts

Tuesday 12th July 2022 Grand Committee

Moved by

[Lord Goldsmith of Richmond Park]

That the Grand Committee do consider the United Kingdom Internal Market Act 2020 (Exclusions from Market Access Principles: Single-Use Plastics) Regulations 2022.

Relevant document: 5th Report from the Secondary Legislation Scrutiny 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.

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Finally, what are the implications of the Government’s proposed legislation to repeal the Northern Ireland protocol? Although this instrument does not directly relate to the implementation of the protocol, would the passage of that controversial Bill impact on the controls on relevant goods in Northern Ireland? What would happen if the EU-derived ban on these products fell away? Is there other legislative underpinning for such bans, or would new legislation be required? I hope the Minister could enlighten us a little more on the implications of the desire of some of the candidates in the prime ministerial elections to rip up the Northern Ireland protocol and what that would mean for us. I look forward to his response.

[Lord Goldsmith of Richmond Park (Con)]

I thank noble Lords for their contributions to this debate. Although the instrument that we are discussing is fairly narrow, the topics covered have been very broad, and rightly so. Pollution does not recognise borders, and co-operation between the four nations is key.

There was some criticism that the SI does not go far enough. I would make the point that it is specifically focused on the Scottish regulations; that is its purpose. A broader, very valid question was raised about whether the policy package on plastic itself goes far enough. I do not think that is directly relevant to this SI, which does a particular job. I think most people have agreed in their speeches that the job is necessary and that this needs to happen.

Before I come to that broader question, I will try to address a few specifics. The noble and learned Lord, Lord Hope, made the point that Scotland is in many ways leading the way on plastic pollution. Although I do not think it goes nearly far enough, it is leading the way among the four nations and it can be proud of the trail that it is blazing. However, we work incredibly closely across the four nations on these issues. Maybe every now and again there is a bit of competition, but that is a good thing as long as the competition is upwards, not downwards, which is always a risk in politics, as we have seen today in some of the interventions that have been made by potential leaders of the Conservative Party. I will come to that point too in a few moments.

I will rise to the challenge from the noble Lord, Lord Jones, who asked me the Minister’s name, which is, of course, Lesley Griffiths. However, we have our own Welsh Minister in the environment department, Victoria Prentis. I think she is Welsh.

[Baroness Bloomfield of Hinton Waldrist (Con)]

Yes, from the Gower.

[Lord Goldsmith of Richmond Park (Con)]

Very good, thank you. She works very closely on the issue we are discussing. I am merely her mouthpiece in this Room, because the domestic part of this is not directly part of my remit.

The noble Baroness, Lady McIntosh, asked about wet wipes, and she could have named any number of other products that have come under the spotlight. This goes to the broader question from the noble Lord, Lord Teverson, and the noble Baroness, Lady Jones, about whether the policy goes far enough. I can tell the noble Baroness, Lady McIntosh, that there was a call for evidence in relation to wet wipes and we are analysing its results. It seems inconceivable to me that at the end of this process we would not take the view that the noble Baroness and pretty much everyone who has spoken has taken on the issue of plastic waste over the few years that I have been here debating these issues. We recognise that this is a very serious environmental problem that needs to be resolved and can be resolved only as a consequence of government intervention. That is true in relation to a lot of other single-use plastic items.

The frustration that I have felt many times in exchanges with the noble Baroness, Lady Jones, on the piecemeal approach is one that a number of my colleagues share. It is necessary for us to go through a certain process; you cannot just, at the stroke of a pen, destroy a particular business model by banning something that is key to it. However, we do need to get to a point where we are simply not using, and where it is not permissible to use, single-use plastics when alternatives are there. There will be medical exemptions and certain other uses where single-use plastics are unavoidable, but as a rule it should be our intention to move as quickly as possible to the wholesale removal of avoidable single-use plastics. There are countries around the world—including Rwanda, which has been in the news a lot recently—which are ahead of us in relation to adopting a more comprehensive approach to tackling single-use plastics. The UK has done a lot of the running on this internationally, but we have a long way to go.

In answer to the noble Baroness’s specific question, yes, we would need separate SIs for additional bans that come after the bans that have already been announced, but I hope that we would be able to cluster as much as possible to avoid endless debates about specific things and, instead, to get on and really take a bite out of this problem in the limited time we have in Parliament. I very much share her concern about that, but this is not a consequence of reluctance on the part of Defra. I hope she understands that.

At both ministerial and official level, this is something that we are very keen to do, not least because getting our own house in order allows us to have a bigger voice internationally, as UK negotiators. I would like to take the credit as a Minister, but it is UK negotiators, who are always nameless in these things, who are responsible, more than those of any other country, for negotiating an agreement at UNEA for a global treaty on plastic pollution. They worked 24 hours a day. I spoke to the negotiators from many other countries who made a point of thanking me for the UK’s contribution. I cannot name them—you are not meant to do that; it breaks protocol—but it was UK negotiators who did that and we are now part of the process of pushing for the highest possible ambition.

If noble Lords do not mind, I shall branch out a little to address the questions on leadership, because this matters so much. The noble Lord, Lord Teverson, the noble Baroness, Lady Jones, and others expressed concerns about where we are going. I share those concerns and have expressed them, probably a little too noisily, in recent days. My appeal to anyone who might happen to be listening to this debate and to friends at the other end of the building is that we should not be focusing just on net zero.

There is so much focus on whether candidates are saying the right stuff on net zero, but it is a bit of a red herring. That is not because climate change is not an issue—clearly, that is not my view—but because we are already seeing the wheels spinning in terms of market action driving us towards a low-carbon future. We know that more money is flowing into clean energy today than into fossil fuels; that has been true for about six years. We know that the market has made that decision and that it is miles ahead of the politics. The United States under Donald Trump poured billions into trying to keep coal use going, but it fell faster on his watch than under President Obama, who was very keen to see the back of coal.

It is almost irrelevant what the next leader does in relation to net zero over the next 18 months. We have a law. Parliament is not going to delegislate net zero; we all know that. It is simply not going to happen. It will remain our law until the next election. Were a party to enter that election promising to scrap the net-zero laws, that party would not and should not be elected. I do not think anyone would argue with that. The risks around net zero have been massively exaggerated by commentators. The real risk—it is huge—relates to the natural environment. There is no momentum behind protecting the natural environment. There is no market driving the reparation, restoration and protection of nature. That will happen only if Governments intervene; there is no other dynamic there. Yes, communities around the world are fighting to protect their environments, often against evil forces, but the pressure is one way and it is not the right way. Unless Governments write the rules and intervene, we will see absolute devastation.

To those who are tempted to see these as peripheral issues—as I know that some people in politics, perhaps including even some who are standing to be leader of the Conservative Party, do—I say that that is an absurd proposition. I have just come back from the Congo Basin. Science does not really know the value of the Congo Basin. We know some of the value—we know about its biodiversity, its carbon storage and all that kind of stuff—but we also know that it provides rainfall for most of the continent of Africa. We do not know exactly how much but we know it is pretty blooming important in terms of rainfall. Wipe out the Congo Basin—this peripheral thing, according to some of my colleagues—and you lose rainfall across the entire continent of Africa, or at least a very large proportion of it; you have hunger on a scale never seen before; you have a humanitarian crisis that we simply could not deal with in Europe. Look at the problems we have with a few regional areas sending their refugees our way—this would be on a scale the likes of which we have never seen before.

Look at the ocean: 250 million families depend on fish for their survival. What happens if we continue to deplete the world’s oceans in the way that we will if we do not see Governments intervening? We will have 250 million destitute families; we will have 1 billion people losing the fish on which they depend for their sustenance. These are really not peripheral issues. They are absolutely central.

[Lord Teverson (LD)]

I thank the Minister for his speech, because most of us would absolutely agree with it. I would have made the same speech during the passage of the UK Infrastructure Bank Bill, when the Government rejected including natural capital and biodiversity in the objectives of the UK Infrastructure Bank. That was a great shame, because that would have given equality to climate change, just as he is demanding.

[Lord Goldsmith of Richmond Park (Con)]

The truth is that this fairly crude speech that I am delivering, which the noble Lord could deliver more eloquently, could apply to most of the topics that we debate, and that is the whole point. Nature is the source of everything, and it is astonishing to me sometimes that we have to make that argument.

Perhaps where I will part company with one or two people in the Room is in saying that over the last few years the UK has been a global leader on these issues. I would say it has been the global leader on many of these issues. It was the UK that created the coalition of 100 countries calling for 30% protection of land and sea by the end of the decade. It is the UK that is doing all the running in creating a coalition on illegal fishing. It was the UK negotiators, as I said, who helped get countries over the line in relation to the plastics treaty. There is no country in the world pushing harder for high ambition at the CBD Convention that is being held in Montreal. It was the UK that delivered the biggest-ever package of commitments around deforestation at COP 26. Subsequently, it is the UK that is leading the global dialogue to break the link between commodities and deforestation.

I really could go on and on with areas where it is the UK that is corralling the world into action and ambition on these issues. That is why the anxiety that has been expressed in this Room today about the leadership election has been expressed by leaders all around the world. I do not know who else they are talking to, but in my dealings as an Environment Minister negotiating a lot of these points, I have a lot of them on WhatsApp and I have had messages from countries big and small —from G7 countries to tiny little dots on the map in the Pacific—terrified about the prospect that the UK is going to crawl away from its international leadership position and go back in on itself and ignore and abandon the concerns I have been talking about today and which I know are shared around this Room.

[Baroness Jones of Whitchurch (Lab)]

I am sorry, I know the Whip is saying that we need to move on. I will just say quickly that I do not doubt the work that the Minister has been doing on an international level. I pay tribute to that. But back here, we have increasing frustrations about the implementation of the Environment Act and other domestic legislation that we have all worked very hard to craft. There are a lot of things that just are not happening at a domestic level. Coming back and driving that same agenda here in the UK—that is what we really need.

[Lord Goldsmith of Richmond Park (Con)]

I do not doubt what the noble Baroness has said. There are lots of things internationally we could be doing. We should be taking a stronger position, in my view, on deep sea mining. None of the big countries is taking this seriously, but it is a threat to the seabed that is probably unmatched. There are lots of areas where I would like to see us toughen our position and take a more proactive approach.

There are domestic problems. We debated for hours the effects of sewage in our waters. It is not true to say that we have gone backwards. The laws today are stronger than they were when Boris Johnson became Prime Minister. That is an objective fact. You could argue that they have not gone far enough, but we have not gone backwards—and likewise on a whole range of the issues we are talking about today. I am not pretending that this Government are a paragon when it comes to the environment; no Government in the world are. I am saying merely that our Government have earned a global reputation for leadership on the environment which is, I think, unmatched around the world, and it is precious.