Environmental Protection (Plastic Plates etc. and Polystyrene Containers etc.) (England) Regulations 2023

Lord Harlech Excerpts

Tuesday 20th June 2023 Grand Committee

Moved by

[Lord Harlech]

That the Grand Committee do consider the Environmental Protection (Plastic Plates etc. and Polystyrene Containers etc.) (England) Regulations 2023.

Relevant document: 43rd Report from the Secondary Legislation Scrutiny Committee

[Lord Harlech (Con)]

My Lords, I declare my farming and land management interests as set out in the register. These regulations were laid before the House on 23 May.

The purpose of this instrument is to restrict the supply of single-use plastic plates, bowls and trays and to ban the supply of single-use plastic cutlery, balloon sticks and expanded and extruded polystyrene food and drink containers, including cups. The instrument applies to England only, as environmental protection is a devolved matter. I will cover both the purpose and the impact of the instrument, starting with the former.

It is the Government’s ambition to leave the environment in a better state for the next generation. The Government’s 25-year environment plan and the resources and waste strategy outline the steps that we will take to eliminate all avoidable plastic waste by 2042. Government measures focus on extracting maximum value from plastic materials by making sure that we keep it in circulation for longer, moving away from a “take, make, throw” model and shifting towards a circular economy. Single-use plastic items are especially problematic, as they are typically littered or discarded to general waste, rather than recycled. This is due to the difficulties involved in segregating, cleaning and processing them.

The instrument will restrict and ban commonly littered single-use plastic items that we so often see polluting our environment and are frequently reported in beach litter surveys. These items can endanger wildlife and damage habitats. As well as causing damage to biodiversity, there are also costs associated with their clean-up. It is estimated that the UK spends more than £15 million a year removing beach litter. This does not include the costs imposed on our tourism and fishing industries, which are also impacted.

As is well understood, plastic eventually breaks down into microplastics, ending up in our soils and seas and eventually permeating our food chains. The full impact of microplastics is still being uncovered, especially the impacts on human health. Therefore, to build on the success of other single-use plastic item bans and our carrier bag charge, further action is needed to curtail the use of problematic single-use plastic items and their release into the environment.

Turning to the impact of the statutory instrument, we acknowledge the ongoing voluntary action being taken by industry to reduce the use of these items, led by the UK Plastics Pact. These new regulations will support that and ensure that all businesses move to more sustainable alternatives.

To inform the regulations, we gathered key stakeholder views by running a public consultation on these measures between November 2021 and February 2022. This showed overwhelming support for the regulations, with more than 80% of respondents supporting their introduction. We also consulted businesses, the NHS and charities to determine the scope of the regulations. To minimise the impact on small businesses, we have given a nine-month lead-time since the announcement of the ban.

It is intended that this instrument will come into force on 1 October this year. From then, it will make it an offence to supply single-use plastic cutlery, balloon sticks and certain types of polystyrene, with no exemptions. The ban on the supply of single-use plastic plates, trays and bowls applies only when supplied to the end user —typically a consumer, who will use them for their intended purpose. Businesses can continue to supply these items to other businesses. This allows single-use plastic plates, trays and bowls to continue to be used for packaging, as defined in Regulation 3 of the Packaging (Essential Requirements) Regulations 2015. This is to avoid confusion with the Government’s proposals for extended producer responsibility for packaging, which will give producers responsibility for the costs of their packaging throughout its lifecycle. However, it is important to stress in all cases that we encourage businesses to use reusable alternatives where practical.

We are determined to get this right, and it is vital that businesses and the public are informed about what they can and cannot do. We have recently published guidance for businesses and will publish our guidance for local authorities in advance of this instrument coming into force. The guidance will assist manufacturers, suppliers, retailers and the public in understanding the enforcement and sanctions regime. Defra intends to further raise awareness by meeting local authority representatives to provide further clarity and support on the restrictions and exemptions, and to empower trading standards officers to carry out effective enforcement.

This instrument also makes amendments to the Environmental Protection (Plastic Straws, Cotton Buds and Stirrers) (England) Regulations 2020 and the Environmental Protection (Microbeads) (England) Regulations 2017. These are to amend the civil sanctions provisions in those instruments to provide for fixed monetary penalties, instead of variable monetary penalties. This will ensure consistency with the civil sanctions provisions in this instrument and make enforcement easier for local authorities. The amendments to the 2020 regulations also omit a transitional provision relating to medical devices, which is no longer needed. Finally, I should mention a typographical error in the instrument as laid in draft. The heading preceding Regulation 14, “Part 1—Amendments”, should read “Part 6”. I confirm that our intention is to have this corrected in the draft instrument before it is made.

To conclude, these new regulations send a strong signal to industry and the public that we need to think carefully about the products we buy and the materials from which they are made. This instrument will bring us a step closer to protecting the environment and reducing the risk of harm to human health and marine life. I commend the draft regulations to the House.

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank my noble friend and welcome him to a speaking role on the Government Bench this afternoon.

I broadly welcome the regulations before us—I just have some queries, which I shall address. In so far as it goes, the ban is very welcome. We are told that the instrument

“bans the supply of single-use of plastic cutlery and balloon sticks and EPS/XPS food and drink containers in England”.

But at paragraph 7.4, the Explanatory Memorandum goes on to say that the,

“ban does not apply to the supply of a single-use plastic plate, tray, or bowl that is packaging as defined in regulation 3 of the Packaging (Essential Requirements) Regulations 2015”.

Apparently, that is to do with extended producer responsibility. Would it not have been better if it had been absorbed in these regulations? From the point of view of producers and users, it would be clearer what is being banned under the instrument and what is not.

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I think we all prefer to eat off a ceramic plate—or at least we all should—but sometimes convenience wins out and disposal alternatives are necessary. In those instances, we have a responsibility to make sure that convenience is delivered with the least harm to our natural environment.

[Lord Harlech (Con)]

I am grateful to all noble Lords for their important contributions to this debate. These measures do not seek to solve the problem of single-use plastic in one go. However, they are an important part of a wider strategy to tackle plastic pollution and serve as an important marker that our reliance on single-use plastics must be reduced. I will address some of the points raised in the debate.

All Peers raised the consultation period. A public consultation around the policy area was carried out from November 2021 to February 2022. I understand that the consultation period on the SI itself was shorter. However, given the correlation between the two themes, it is our view that the public consultation period was long enough to address this SI. Responses from members of the public and non-governmental organisations demonstrated overwhelming support for our proposals, with 95% in favour of all bans. However, responses from businesses were varied, understandably, with approximately 20% opposing all bans, while others were supportive of the proposals but highlighted areas for further consideration to make sure that bans do not have unintended consequences.

We also engaged with relevant sectors, such as the NHS and disability charities, to determine whether any exemptions were needed. Our determination was that no medical exemptions were needed for these bans. We conducted an impact assessment, which covered banning the supply of single-use food and beverage containers made from expanded or extruded polystyrene, or EPS, in England, and banning the supply of single-use plastic plates and cutlery to the end-user in England. A de minimis assessment was carried out for the ban on single-use plastic balloon sticks in line with better regulation guidance, as the annual net direct cost to businesses was estimated to be less than £5 million. All received green ratings from the Regulatory Policy Committee.

The noble Baroness, Lady Anderson of Stoke-on-Trent, talked about costs to businesses and consumers. This is very much about reducing the cost to the environment, so this one SI is not meant to tackle all costs in society.

[Baroness Anderson of Stoke-on-Trent (Lab)]

My Lords, I was asking about additional costs on food-related products during a cost of living crisis, especially given evidence today suggesting that more people are having to use microwaves rather than ovens. This would potentially be covered by this SI, meaning that there will be an additional cost to the consumer. I asked specifically what debate and discussions the Minister and the department are having with retailers to mitigate the costs being passed on at this time.

[Lord Harlech (Con)]

I absolutely take the point and I am not downplaying it; I am just saying that this SI is focused on single-use plastics. However, I would like to reassure the noble Baroness that we remain in constant conversation with food retailers and food service providers to make sure that excessive costs are not being put on consumers at this very difficult time.

The noble Baroness, Lady Bakewell of Hardington Mandeville, raised the important issue of who will pay the charge. The supplier of the product will pay, not the end-user; I hope that provides some clarity. She also spoke about Scotland and Wales, the devolved nations. I think we are having a Division.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, there is indeed now a Division in the Chamber. The Committee will need to adjourn for 10 minutes. Does the Minister have much more to say? If not, we might be able to clear this instrument and start fresh after the Division with a new one. Otherwise, we will adjourn and pick up with him later.

[Lord Harlech (Con)]

I was asked a great many questions and I would like the opportunity to answer.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, in that case we will adjourn the Committee for 10 minutes and return to the Minister afterwards.

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[Lord Harlech (Con)]

My Lords, we were getting on to the topic of how some of the devolved nations are dealing with plastics and recycling. The Government’s view is that plastic pollution is a global challenge and, as such, we welcome ambitious actions from all Governments. All nations across the UK are making good progress on tackling these challenges. However, where areas are devolved, nations are able to act in ways that reflect their circumstances. For instance, the Government moved to introduce restrictions to the supply of single-use plastic straws, stirrers and cotton buds in October 2022, ahead of the Scottish Government. We delayed those restrictions from earlier in 2020 to avoid additional burdens being faced by businesses on top of the challenges already posed by the impact of the coronavirus pandemic. We have to move at pace, but we also think it is right that each of the nations has the flexibility to address its most pressing problems in the timescale it wants.

The noble Baroness, Lady Bakewell of Hardington Mandeville, mentioned how the ban will be affected by the UK internal market Act. The United Kingdom Internal Market Act 2020 (Exclusions from Market Access Principles: Single-Use Plastics) Regulations 2022 created an exclusion from the market access principles in Part 1 of that Act for legislation, so far as it prohibits the sale of single-use plastic plates, straws, drinks stirrers, stemmed cotton buds, cutlery, chopsticks and balloon sticks, and expanded and extruded polystyrene food and drinks containers, including cups. This follows an agreement reached under the then provisional resources and waste common framework. This exclusion does not encompass single-use plastic bowls and trays. Therefore, the market access principles of the UK internal market Act will apply to this legislation in respect of those items.

My noble friend Lady McIntosh of Pickering asked why there are no exemptions, as with plastic straws. Throughout our consultation and post-consultation engagement, we were able to determine that no exemptions were needed in any potential settings. This will give the SI the greatest positive environmental impact.

My noble friend and the noble Baroness, Lady Bakewell of Hardington Mandeville, also mentioned oxo-degradable plastics. We have prioritised work on introducing restrictions on single-use plastic plates, cutlery and balloon sticks and polystyrene food and drinks containers because, at this moment in time, that will have the greater impact on reducing plastic pollution. However, we are aware of oxo-degradable plastics.

I turn to the issue that my noble friend raised about wet wipes. In the Plan for Water published in April 2023, the Government announced their intention to ban wet wipes containing plastic, subject to a public consultation, which will be published in due course. Some 96% of respondents to our 2021 call for evidence supported a ban on wet wipes containing plastics. Therefore, we are keen to deliver this at pace, just not in this particular SI. More information on the proposed timings of any ban will be announced following the consultation.

We are working with local authorities and trading standards to ensure that any breaches of legislation are being enforced. If breaches are identified, it will be the responsibility of local authorities as regulators of the legislation to enforce it and tackle the pollution appropriately.

[Baroness Anderson of Stoke-on-Trent (Lab)]

Just to clarify, on the trading standards point—we have seen something like 170 fewer trading standards officers in the past 12 years. They are spread in different areas; some local authorities now spend only 50p per resident, while others spend £4.50 per resident on their trading standards function. Can the Minister let me know either now or in writing how we are ensuring that this is being applied equally across all local authorities in the UK, given the varying regulatory framework that will exist and given the enforcement action—as in, the number of people that can enforce?

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[Lord Harlech (Con)]

That is a fair question, although it is slightly out of Defra’s remit, so I think that the best thing to do would be to write to the noble Baroness in response to her question about trading standards officers.

To avoid duplication or confusion with our proposals for our extended producer responsibility scheme, bowls, plates and trays used as packaging by businesses will not be included in the ban. However, we strongly encourage businesses to explore how they can reduce the use of single-use items and move to reusable alternatives instead.

My noble friend Lady McIntosh of Pickering rightly brought up the potential impact on businesses through the introduction of this SI. The largest cost is due to capital investment costs incurred by producers for adapting their production processes. Producers may also incur a loss of profits. Another large cost is due to wholesale prices of wooden cutlery and paper, and food and beverage containers, usually being larger than their plastic equivalents. Businesses will also incur familiarisation costs, additional waste management costs and additional fuel costs. On the question about single-use plastic cotton buds used for medical purposes, there are exemptions for use for forensic and scientific purposes—otherwise, they are totally banned.

If I have neglected to answer any questions, I shall consult Hansard, and do my best to write with an answer. Not wishing to detain the Grand Committee further, I conclude by thanking noble Lords for their contributions.

[Baroness McIntosh of Pickering (Con)]

If my noble friend is unable to answer today, can he write to us on substituting wood for plastics and the knock-on effect that that would have on the environment and deforestation? I understand that that might be the responsibility of a different part of the department, but the noble Baroness, Lady Bakewell of Hardington Mandeville, and I both asked about that. I understand that it is quite technical, so he could write to us.

[Lord Harlech (Con)]

I think that I just said that I shall answer in writing any questions that I have not answered now.

Motion agreed.