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

Volume 831: debated on Tuesday 20 June 2023

Considered in Grand Committee

Moved by

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

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.

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.

The Explanatory Memorandum goes on, at paragraph 7.7, to state that

“there are exemptions to the restriction on the supply to the end user of single-use plastic stemmed cotton buds and single-use plastic straws for single-use plastic-stemmed buds and single-use plastic straws”.

Are they totally exempt? My concern, particularly with single-use plastic buds, is that people often do not know how to dispose of them and regrettably put them down the loo. They then end up in rivers, seas and places that they should not, which is why they get washed up on the beach. Unless they are specifically for medical purposes, as paragraph 7.7 says, I would be interested to know what categories are exempt.

I am struggling to understand what has happened with wet wipes. Have we already banned them? If not, why not? I remember that a lot was said about that during the passage of the Environment Act. The reason I ask about it is because I was with someone from the National Infrastructure Commission yesterday who seemed to think that they had not been banned. I am not completely up to date on that, and I would be interested to know.

The cost of the instrument is not insignificant. We are told that in 2019 prices, 2020 present value, the net cost to business per year will be £10.2 million. How has that figure been reached? It is quite sizable.

The Green Alliance has expressed concerns in its very helpful briefing, which it shared with me in preparation for this afternoon. It asks for reassurance from the Government that the regulations will not simply lead to switching from one use of an unnecessary single-use item to other unnecessary uses of non-plastic items that might be equally difficult to dispose of. It begs the question as to whether the Government or the department are going to give any advice as to which alternative materials to plastic might be used, and what assessment they have made, whether they are made from wood or alternatives—possibly compacted paper, I do not know—of the impact they might have on the environment.

My noble friend said at the outset that this is a devolved matter. It is interesting to see that Wales, Scotland and parts of the EU such as France have gone further. France, I understand, is banning disposable cutlery altogether, and the EU is considering targets for the reuse and reduction of some materials. Given the Government’s commitment, which my noble friend stated at the outset, to leaving the environment in a good or better state, should we not be going as far as we possibly can? I understand also that Wales, in line with the EU, is intending to ban highly damaging oxo-degradable plastics; apparently the Government are not minded to do that at the moment.

If we are going to go for wooden cutlery and wooden materials, we should be very conscious of the fact that many of these materials come from third countries such as Brazil. In the Amazon area, there is a deforestation programme with which I think the Government themselves are very unhappy. Where will these alternative wooden materials be sourced from to ensure that we are indeed leaving the environment in a better state? With those few remarks, overall I applaud and welcome the regulations.

My Lords, I thank the Minister for his introduction to this statutory instrument. Having been around for the previous SI on the banning of microbeads in washable products and plastic straws and stirrers, there are familiar elements. Although single-use plastic straws are already banned, reusable plastic straws are readily available in some bigger supermarkets. Having bought a packet of these for my granddaughter, I can see that they are not reusable due to the difficulty in cleaning them, and that they have a very limited shelf life.

I regret to say that I found the Explanatory Memorandum contradictory and confusing. I am afraid that the Minister has already read paragraph 2.1 out, but I am going to do so again. It says:

“This instrument is being made to restrict the supply of single-use plastic plates, bowls, and trays and ban the supply of single-use plastic cutlery and balloon sticks and expanded and foamed extruded polystyrene … food and drink containers, including cups”.

That is quite clear and understandable. However, if we move to paragraph 6.5, the EM states that

“the market access principles of the UKIM Act will only apply to this instrument in respect of the restriction it introduces to the supply of single-use plastic bowls and trays”.

That may not be contradictory to those who wrote this SI, but I fear it certainly is to me. It also seems that paragraphs 6.4 and 6.5 are something of a “get out of jail free” option. The issue about clarity is one I will return to later.

Single-use plastic bowls and trays, although banned in England, can still be produced in Scotland, Wales and Northern Ireland. Since there is no border between the devolved Administrations, these items will be brought into England. As the supply of all the items listed in paragraph 2.1 to the end-user are banned, this will cause some confusion.

However, it does not apply to single-use plastic bowls and trays if they are used as containers for food at the point of sale in a takeaway. One of the most pernicious forms of litter containing plastic is that which not only occurs around fast-food outlets such as McDonald’s, Kentucky Fried Chicken and Burger King but is strewn around the countryside, where it has been thrown out of car windows or left littering roadside lay-bys. I am struggling to see why these exemptions are being allowed. Can the Minister explain why this is to be permitted into the future? Are the Government relying solely on the extended producer responsibility legislation to sort this issue out?

I turn to the consultation which Defra conducted; the Minister has referred to this. From 20 November 2021 to 12 February 2022, an extensive consultation took place. A good response from all sides was received, with 95% of the public and non-governmental organisations supporting all the bans. However, businesses were less enthusiastic, with 20% opposing any kind of a ban on single-use plastic. On 16 January this year, a further consultation took place by way of a notice in the London Gazette, plus a weblink to the GOV.UK website and Defra’s “relevant” stakeholders, as the department put it. The timeframe for response was 15 days; not surprisingly, there was a small response. Can the Minister say just how small that response was?

I was interested to see that the Association of Chief Trading Standards Officers responded on the enforcement issues; I should declare my interest as a vice-president of the LGA. It is generally accepted that trading standards officers are under enormous pressure already. They are now being asked to enforce this SI and collect the fixed penalty fines, in accordance with the future published guidance.

The regulations will come into force on the 24th day after they have been made. We are debating them today, 20 June; they will doubtless be on the Order Paper tomorrow, 21 June, for agreement in the Chamber. This means that they will come into force on 15 July. Can the Minister assure us that the guidance will be published before 15 July so that trading standards officers know exactly what they are expected to do and how to execute their functions successfully?

Small businesses employing up to 50 people will have over nine months’ grace in which to implement these regulations from the date of the consultation. Can the Minister say whether this is the consultation which ended in February 2022 or the one from January this year, which was somewhat limited?

I turn now to the penalty, or fine. This is fixed at £200 and is a one-off, no matter how many offences there are. It can be reduced to £100 if it is paid within 28 days—a bit like a parking fine. Having looked at the SI—I may have missed it—I cannot see who exactly will be charged with the penalty. Is it the manufacturer, the retailer or the end-user? The level of fine appears to indicate that it is the end-user who will pay. Can the Minister provide clarification, please?

The extensive section in the SI on non-compliance gives the opposite impression. Here the inference is that the manufacturer will be liable for up to 100% of the cost of the compliance notice if they do not comply. As I said earlier, this SI is not transparent but confusing and contradictory.

Nor does the SI go far enough, and I am concerned about the plastics that it does not cover. Oxo-degradable plastics are designed to fragment in the presence of oxygen, but will not break down at all, or only extremely slowly, in environments with relatively low concentrations of oxygen, such as marine environments, or if covered by soil or buried in a compost bin. Wales, which has an international reputation for recycling and waste management, has banned the use of oxo-degradable plastics as they are regarded as one of the most pernicious types of plastic and a source of damaging microplastics. The EU has also banned them. Do the Government have any plans to ban the use of oxo-degradable plastics in England?

There is also the issue of substitution, as referred to by the noble Baroness, Lady McIntosh of Pickering. If single-use plastics are banned, what other unnecessary non-plastic single-use materials are likely to be used as a replacement? The Environment Act 2021 gives powers to implement charges for single-use items, which have so far not been used. What plans do the Government have to begin charging for non-plastic single-use items?

Lastly, the UK internal market is referred to in the SI. What plans do the Government have to conduct a post-implementation review of the 2020 Act? The Act has implications for the Government’s environmental ambitions to leave the environment in a better state than they found it, to which the Minister referred in his opening remarks. I am not convinced that the SI moves us much closer to the Government’s goal.

My Lords, I fear that I will shortly be interrupted by a Division. I, too, welcome the noble Lord, Lord Harlech, to his place. As Defra will be a recurring theme in his diary, I look forward to working with him in the months ahead.

I am a proud resident of the Potteries, which means that I am not sure why anybody would want to eat or drink from anything other than Stoke-on-Trent-made ceramic plates and mugs—the most sustainable containers from which to eat and drink—yet we find ourselves here to discuss far less sustainable alternatives. It should therefore come as no surprise to the Minister that His Majesty’s Opposition will support this SI. The Labour Party is committed to removing single-use plastics as quickly as possible and moving on to sustainable and, I hope, ceramic alternatives.

However, I am sure it will not surprise the Minister, especially following the interventions so far, that I have a few questions on the detail of the SI and the consultation, implementation and next steps. As the noble Baroness, Lady Bakewell, highlighted, does the Minister really think that 15 days was an appropriate timescale to consult business, local authorities and key stakeholders on the implementation plan and detail of this significant change in regulation and permissible products that are used extensively in nearly every community in the country?

Paragraph 10.8 of the Explanatory Memorandum notes that His Majesty’s Government notified the World Trade Organization of the draft instrument on 21 March 2023 and that:

“No objections have been made pursuant to notification”.

Given that WTO processes are incredibly slow, would we have expected objections within that timeframe? Were any representations made by the WTO which stopped short of being formal objections?

Paragraphs 6.4 and 6.5 of the EM outline the exemption under the United Kingdom Internal Market Act that means that single-use bowls and trays legally produced in or imported into other parts of the UK can be sold in England, irrespective of this ban. Can the Minister inform the Committee whether Defra has done any modelling on how many items are likely to make use of this exemption? What are the process and timescale for conducting the post-implementation review of the United Kingdom Internal Market Act 2020, in which the implications for the environmental ambition of the UK Government should be considered?

Paragraph 11.1 confirms that the policy will be enforced by local authorities and their trading standards officers. There has been a 56% reduction in the collective budgets for trading standards since 2009. Given the direct impact that these austerity cuts have had on the capacity of trading standards teams, what assessment, if any, have His Majesty’s Government undertaken of their ability to take on this additional task? These cuts have not been universal in their application, so what efforts is the Minister making to mitigate potential differentiation of enforcement across local authority areas, and how is this being kept under review?

Paragraph 12.2 talks about potential extra costs for consumers, with 60% of the total costs for retailers likely to be passed on. Given that the current rate of food inflation is running at 16.5% as of today and that we are living through an associated cost of living crisis, what discussions is Defra having with retailers to mitigate the costs being passed on?

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.

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.

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.

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.

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.

Sitting suspended for a Division in the House.

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.

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?

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.

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.

Motion agreed.