What’s SUP? Single-Use Plastics, the Internal Market Act and the Marine Environment of Wales
Since the mellifluous narration of Sir David Attenborough in Blue Planet II alerted millions of horrified viewers to the shocking ubiquity of plastic pollution in the global oceans, there has been a vociferous popular demand for regulators to tackle the rising tide of marine litter. In recent years the global community has become ever more receptive to the possibility of further multilateral rules governing plastic, albeit that international law has an already well-stocked – if not necessarily well-deployed – arsenal of measures on this front, while a number of jurisdictions have adopted new standards to reduce their plastic footprints. In the UK, this issue has given rise to a number of intriguing legal developments, not least in the context of withdrawal from the European Union (and its extensive legislation on marine litter and ecological targets), alongside the further sub-plots encountered through devolved marine governance and the environmental ambitions of individual national administrations.
In this respect, Wales provides an interesting and often-overlooked backdrop to these legislative and policy developments. A diminutive coastal jurisdiction, Wales has nonetheless demonstrated outsize ambitions and achievements in waste management policy. The pursuit of sustainable development lies at the very heart of its devolved powers and is expressly mandated as a core aspiration of the Welsh Ministers under section 79 of the Government of Wales Act 2006. Wales is also subject to pioneering commitments towards promoting the wellbeing of future generations, for which environmental standards constitute a key element of this mandate. A demanding ‘Zero-Waste’ target has been set by the Welsh Government for 2050, with demonstrable progress required by 2025, targets that have been aggressively pursued to the point at which Wales has been ranked as high as third in the world for its recycling rates.
Plastic has long been in the regulatory crosshairs of the Senedd. Wales was the first of the devolved administrations of the UK to levy charges on plastic bags in a bid to reduce plastic pollution, with further constraints entrenched within the Environment (Wales) Act 2016, with microbeads having also been assertively targeted as a problematic presence in Welsh waters. In December 2019, the Welsh Government issued its Beyond Recycling consultation, with the ambitious objective of phasing out single-use plastic and becoming the first nation not to send any such items to landfill, supported by a Marine Litter Action Plan for Wales inaugurated in 2017 and revised triennially. Between July and October 2020, the Senedd conducted an open Consultation on reducing single-use plastics in Wales with a similar initiative subsequently launched in Scotland. The broad regulatory intention has been to ‘align with’ the EU’s Single-Use Plastic (SUP) Directive adopted post-Brexit in July 2019.
Progress has nevertheless stalled somewhat since then, with the post-consultation legislative agenda initially hampered by the twin impacts of the Covid-19 pandemic and the imminent national elections in May 2021. Definitional shortcomings have greatly hindered the application of the SUP Directive that the Welsh measures will seek to align with – the Directive was adopted in comparative haste and was intended be supported by a more nuanced set of Guidelines developed prior to the national transposition deadlines, which remain under development – and the painstaking work on elaborating the precise materials that are to be restricted (and the extent of such restrictions) will occupy a prominent position on the ‘to do’ list of the incoming administration in Cardiff Bay. A degree of accommodation will also have to be found between the aim of reducing disposable items generally and the need to address the ongoing public health crisis, hence the status of items such as wet wipes and PPE will be subject to considerable regulatory thought. At this stage, however, it is clear that the Senedd intends to err on the side of ambition and to seek to phase out as many of the items considered within the SUP Directive as possible from manufacture and sale within Wales.
This has provoked a collision with a third – and potentially less surmountable – obstacle to the advancement of ambitious policies against SUPs, in the guise of the contentious UK Internal Market Act 2020. At the Bill stage, the legislation attracted considerable criticism in its purported application to Northern Ireland through its now infamous description as breaking international law ‘in a very specific and limited way’. Its impact on the day-to-day work of the devolved administrations may yet prove to be anything but limited, however. At the heart of the legislation lies a recognition of the twin principles of Mutual Recognition and Non-Discrimination – once goods have been made in or imported into one part of the United Kingdom, they may be freely sold within all other parts of the country. While portrayed as prosaic, it has caused great alarm among the devolved administrations, which have argued that the Act serves to restrict the exercise of – and even roll back – powers that have been transferred from Westminster in the devolution settlement. This has been particularly acute in the context of the nascent Welsh legislation towards SUPs: with Wales poised to place restrictions on a wide range of such items as envisaged under the Directive, but neighbouring England currently contemplating rather less extensive constraints (applying only to straws, stirrers and cotton buds), the practical impact of the Act places a ceiling on the ecological ambitions of the Welsh Government.
In January 2021, the Counsel General of Wales sought permission for a judicial review of this position, albeit without the express cooperation of his counterparts in Scotland and Northern Ireland, who would nonetheless have been interested observers in the trajectory of any challenge to the 2020 Act. Much of the application concerned the precise nature of legislative competence exercised by the Welsh Government given that the ‘conferred powers’ model of devolution (whereby Wales could only regulate matters that have been expressly granted to it by the overarching enabling legislation) has been replaced under the Wales Act 2017 with a ‘reserved powers’ model, whereby Wales may legislate on any matters that have not been expressly retained by Westminster. Accordingly, the Counsel General sought to challenge the impact of the UK Internal Market Act as having impliedly repealed devolved competence on particular issues (in this case food standards and environmental protection, which sat at the nexus of regulatory intent behind addressing single-use packaging) or directly restricting Welsh legislative competence through subsequent secondary legislation. Situated prominently within the application was the issue of prospective legislation on SUPs and the potential ramifications of the 2020 Act for the ability of the Welsh Government to adopt far-reaching policies on an issue that has raised widespread public concern.
On 21 April 2021, just as electioneering was entering into full swing, the Counsel General’s application was rejected. In R (Counsel General) v. BEIS  EWHC 90 the application was denied on the basis of prematurity: in the absence of a factual context, such as specific piece of legislation that appeared to conflict with the UK Internal Market Act, the challenge was deemed hypothetical and abstract. This approach echoes that taken in previous applications that have involved pre-emptive objections to contested policy decisions of prospective constitutional significance, notably Yalland v. Secretary of State for Leaving the European Union  EWHC 630 (Admin) and Keatings v. HM Advocate General for Scotland and the Lord Advocate  CSOH 16. With the (presumably multi-use and non-plastic) cart considered to have been placed before the horse in this instance, Lewis LJ considered that:
‘[I]n relation to proposed environmental legislation, such as restrictions on the use of single use plastic, the issues that arise are likely to be influenced by the precise terms of the legislation and the context in which it is made … it is better and more appropriate for the issues concerning the effect of the provisions of the 2020 Act on the legislative competence of the Senedd, and the appropriate means of resolving any conflict between the two, to be considered in the specific legal and factual context of particular provisions of proposed Senedd legislation rather than by making abstract rulings shorn of any legal or factual context’ [at 31-32].
It remains to be seen, once the dust has settled on the present election season, whether the decision is appealed prior to the development of specific SUP legislation by the Welsh Government. Otherwise, a challenge may only be entertained after the legislative process has been completed and the constraints envisaged through the operation of the 2020 Act become a reality, an exercise in regulatory inefficiency that, if not quite meeting the bureaucratic standards of Kafka, nevertheless has frustrating implications for the development of what is envisaged as a cornerstone piece of Welsh environmental law. On a more existential level, the SUP issue appears to be a generous political gift for those across the UK that are seeking looser ties with Westminster. The widespread concern over marine plastics is likely to politically stress-test the philosophies underpinning the UK Internal Market Act in a way that the old Brexit-related battles will not – or, more constructively, may potentially persuade some UK regulators to upscale their environmental ambitions to meet those of other devolved actors, in order to stave off this particular constitutional conundrum.