On 1 June 2022, a ban on certain single-use plastic products in Scotland came into force. However, initially, the ban was not fully effective. This is because of the UK Internal Market Act 2020 (legislation made in the UK Parliament).
This blog explains the Scottish regulations providing for the ban on single-use plastic items, and the impact the UK Internal Market Act 2020 had on the effectiveness of the ban.
What are the Scottish regulations and what do they ban?
The Environmental Protection (Single-use Plastic Products) (Scotland) Regulations 2021 (“the Scottish Regulations”) ban the manufacture and supply of many single-use plastic items in Scotland. The Scottish Regulations came into force on 1 June 2022. The diagram below shows the items banned by the Scottish Regulations.
Local authorities are responsible for enforcing the ban and failure to comply carries a maximum fine of £5,000.
Exemptions to the ban
The ban provides some exemptions. For example, single-use plastic straws can be supplied if:
- they are a medical device, or
- used for medical purposes, or
- in a care home, school, childcare premises, or prison, or
- used in personal care or support service.
They can also be supplied in a pharmacy or in a catering establishment such as cafés and restaurants if requested, but they can’t be kept in a place that is accessible or visible to customers. This allows continued access to plastic straws for people with a disability who need them to eat or drink.
What is the UK Internal Market Act 2020?
The United Kingdom Internal Market Act 2020 (UKIMA) established an internal market regime for the UK. The UK Government introduced this legislation following the UK’s departure from the EU single market to “preserve the UK internal market, providing continued certainty for people and businesses to work and trade freely across the whole of the UK”. SPICe has written about the UKIMA in previous blogs.
Some stakeholders such as the Confederation of British Industry view maintaining similar regulatory standards across the UK as important for preventing negative impacts such as distortions of competition and barriers to trade. However, there could be benefits to policy divergence.
For example, the Institute for Government explained to the Scottish Parliament’s Constitution, Europe, External Affairs and Culture (CEEAC) Committee that divergence “can also act as a ‘policy laboratory’, allowing different parts of the UK to introduce different policies, evaluate their successes and learn from each other.”
The UKIMA establishes two market access principles to protect the flow of goods and services in the UK’s internal market. In relation to goods:
- The mutual recognition principle provides that goods that have been produced in, or imported into, one part of the UK and comply with relevant requirements there, can then be sold in any other part of the UK without adhering to different regulatory requirements in that part.
- The non-discrimination principle sets out that the sale of goods in one part of the United Kingdom should not be affected by restrictions that discriminate against goods from another part of the United Kingdom.
In the case of single-use plastics, the mutual recognition principle for goods is relevant. This principle means that single-use plastic products which are lawfully produced in or first imported into other parts of the UK can legally be sold in Scotland.
The UKIMA contains some exclusions, for example, the mutual recognition principle for goods does not apply to certain fertilisers and pesticides. It also does not apply to pre-existing rules which were already in place and unique to one part of the UK before UKIMA came into force.
UK Government Ministers can make further changes to the exclusions from the application of the market access principle for goods by making a statutory instrument (a form of secondary legislation) to create a new exclusion.
A special process was agreed between the UK Government and devolved administrations for considering new exclusions to the market access principles in policy areas covered by common frameworks (you can read more about Common Frameworks via this link).
How did this affect the Scottish single-use plastics ban?
Without an exclusion, the UKIMA would (as explained above) have the effect of allowing single-use plastic products which are lawfully produced in or first imported into other parts of the UK to be sold in Scotland.
This meant that when the Scottish Regulations came into force on 1 June 2022, they only automatically applied to single-use plastic items manufactured in or first imported into Scotland from outside the UK. Whether single-use plastic items which were produced elsewhere in the UK (or were first imported into another part of the UK) could still be sold on the Scottish market depended on whether they were also banned in that part of the UK. It was a complicated picture given that some single-use plastic products were already banned in England.
The Scottish Government therefore sought an exclusion from the market access principles, a move which was supported by the Welsh Government. The single-use plastics exclusion was the first use of the UKIMA exclusion process.
Creating an exclusion required secondary legislation in the form of a UK statutory instrument to be made by UK Government Ministers. On 9 June 2022, UK Government Ministers laid The United Kingdom Internal Market Act 2020 (Exclusions from Market Access Principles: Single-Use Plastics) Regulations 2022. This instrument was approved by both houses of the UK Parliament on 18 July 2022 and came into force on 11 August 2022. The efficacy of the Scottish ban was briefly limited until this instrument came into force.
The exclusion provided in the UK instrument adds the following single-use plastic items to the list of exclusions to the market access principles:
- plastic straws
- plastic stemmed cotton buds
- plastic drink stirrers
- plastic plates
plastic cutlery or chopsticks
- plastic balloon sticks
- food containers, drink containers or cups made wholly or partly from expanded or extruded polystyrene.
These exclusions cover all the items included in the Scottish ban or previously banned (such as plastic stemmed cotton buds) and some additional items not currently banned in Scotland (such as single-use plastic bowls and trays). This means that future legislation by the Scottish Government which bans those items will be effective in banning their supply in Scotland regardless of which part of the UK the items came from. The same applies to future legislation made by any of the other UK nations.
The diagram below shows how the UKIMA affected what single-use plastic products could be sold in Scotland and how this changed after the UK Parliament passed legislation creating the new exclusions.
This case demonstrated that even with the special exclusions process, agreeing an exclusion can take time. As a consequence, this caused some confusion for businesses in Scotland who supply single-use plastics.
It is at the discretion of the UK Government whether to agree to a request from a devolved administration to make a new exclusion. This raises the possibility of the effective implementation of devolved policy being delayed or prevented. In this case, there was disagreement between the Scottish Government and UK Government over the scope of the exclusion with the Scottish Government saying that UK Ministers “appear to have conducted a wholesale re-examination of the issues over a number of months”.
The result being that “policy delivery in Scotland could be slowed while UK ministers determine devolved policy for England”, a possibility raised when Professor Nicola McEwen told a CEEAC Committee inquiry that UKIMA could introduce “delays in the policy-making process, if not putting things into a long-term chill.”
In January 2021, the Welsh Government issued a legal challenge over concerns about the impact of UKIMA on its ability to legislate on devolved matters. This legal challenge was rejected by the Divisional Court (later upheld by the Court of Appeal and Supreme Court) on the basis that it was premature and required a specific legislative context to test the Welsh Government’s arguments.
The Welsh Government has since introduced the Draft Environmental Protection (Single-use Plastic Products) (Wales) Bill. This Bill, as drafted, would ban some items which are not currently covered by the exclusions provided in the UK instrument. It appears that this Bill may have been drafted in such a way to provide the specific legislative context necessary to test the Welsh Government’s arguments in a further legal challenge against the UK Government over the impact of UKIMA.
This example, and potential future legal challenges to UKIMA may have implications for forthcoming legislation in Scotland such as the Circular Economy Bill which may place further requirements on producers to reduce waste and encourage reuse, repair and recycling.
Damon Davies, Senior Researcher, SPICe