A draft version of England’s Single Use Carrier Bag Charges (England) Order 2015 has been published, clarifying which bags will fall under the charge from 5 October 2015.

The draft law, which was published on Wednesday (17 December), outlines that a single use carrier bag (SUCB) means ‘an unused bag made of lightweight plastic material with handles, other than an excluded bag’, such as ‘prescription-only medicine bags’ or ‘returnable multiple reuse bag’(made from material 'the thickness of which is not less than 50 microns but not greater than 70 microns').

It further details that ‘lightweight plastic material’ means ‘synthetic or semi-synthetic material made from polyamide, polyethylene, polylactic acid, polyvinyl chloride or other polymer, or any combination of polymers, the thickness of which is not greater than 70 microns’.

As such, any business (employing more than 250 employees) seeking to sell these bags ‘at the place in England where the goods are sold, for the purpose of enabling the goods to be taken away’ or ‘for the purpose of enabling the goods to be delivered to persons in England’, must charge a minimum of five pence (including any VAT) for each SUCB supplied in the reporting year (the period running 5 October 2015 - 6 April 2016 in the first year, changing to 7 April – 6 April thereafter).

There is no mention of what the VAT will be used for, however last month, Resource Minister Dan Rogerson wrote to the Chair of the Environmental Audit Committee, Joan Walley MP, (on the back of calls for it to spend VAT raised from the charge on new environmental programmes, and to cover the costs of monitoring the effectiveness of the scheme), stating that ‘allocating revenues to particular spending programmes makes spending decisions inflexible and can lead to a misallocation of resources, with reduced value for money for taxpayers’.

Record keeping

The draft law stipulates that sellers must keep a record in relation to the relevant reporting year, including the following information:

• the number of SUCBs supplied by the seller during the reporting year;
• the gross proceeds of the charge;
• the amount of any VAT received by way of the gross proceeds of the charge;
• the amount of any reasonable costs (costs ‘reasonably incurred’ completing transactions, communicating information, obtaining expert advice or carrying on similar activities to enable the seller to comply with the law);
• the apportionment between any different kinds of reasonable costs;
• the net proceeds of the charge; and
• the uses to which the net proceeds of the charge have been put.

The seller must keep the record for a period of three years beginning on 31 May in the reporting year following that to which the record relates.

The seller must then supply a copy of the record to the Secretary of State for Environment (currently Liz Truss) on or before 31st May in the reporting year following that to which the record relates; and ‘in an electronic or other format reasonably required by the Secretary of State for the purposes of publishing the records or producing statistics’.

The Secretary of State must also publish every record supplied ‘on or before 31st July in the reporting year following that to which the record relates’.

Sellers could be fined up to £20,000

The law stipulates that local authorities (LAs) will be the administrator of the charge, and may, ‘for the purpose of enforcing this Order’:

• enter a seller’s premises at any reasonable time;
• inspect a seller’s goods;
• make test purchases of a seller’s goods;
• require a seller to produce documents or to provide information; and
• question a seller or officers or employees of a seller.

However, these powers may only be exercised if the administrator ‘reasonably believes that a breach has occurred’.

If the LA finds that, ‘on the balance of probabilities’ a breach has occurred, it may by notice impose a fixed monetary penalty on a seller. This would be:

• £200 if the seller failed to comply with the requirement to charge for SUCBs; £100 if it failed to supply records; and
• £100 if it failed to keep records.

The seller must pay half of the penalty within 28 days of the notice. The remainder must be paid in the following 28 days. In the case of early/late payment, the penalty will be decreased/increased by 50 per cent.

An administrator may also, by notice, impose one or more ‘discretionary requirement’s on a seller if they think a breach has occurred. This may only be exercised if a discretionary requirement has not been imposed on the seller on a previous occasion in relation to the same act or omission.

In these cases, the maximum penalties that can be issued are:

• £5,000 for failure to comply with the requirement to charge for SUCBs;
• £5,000 for failure to keep records;
• £5,000 for failure to supply records; and
• £20,000 if a seller ‘gives false or misleading information to, or otherwise obstructs or fails to assist, an administrator’.

A variable monetary penalty must be paid by a seller within 56 days ‘beginning with the day on which the final notice imposing it was received’. A 50 per cent discount/increase may be applied for early/late payment.

If a seller fails to comply with a non-monetary discretionary requirement, an administrator may, by notice, impose a ‘non-compliance’ penalty on the seller, irrespective of whether a variable monetary penalty has also been imposed.

The maximum amount that may be imposed in any case is £5,000.

Again, this must be paid within 56 days. However, if the requirements of the non-monetary discretionary requirement are complied with before the 56 days expire, the liability to pay the non-compliance penalty will be discharged.

Reporting

All administrators would need to publish reports ‘in a prominent position’ on their websites relating to the cases in which a civil sanction has been imposed, and the cases in which liability to the penalty has been discharged.

The reports must cover:

• the two-year period beginning on 5 October 2015 and ending on 4 October 2017; and
• each consecutive three-year period starting with the period beginning on 5 October 2017 and ending on 4th October 2020.

These must be published on or before 31 May in the year following the period to which the information relates and, until 30 May in the year following the next period, must remain on the administrator’s website; and be available for inspection at the administrator’s office.

Future steps

The Order also outlines that by 5 October 2015, Defra’s Secretary of State needs to:

• complete a review of industry standards for the biodegradability of lightweight plastic material; and
• lay a copy of a report before Parliament setting out the conclusions of the review, in particular—
• whether it appears to the Secretary of State that there exists an industry standard appropriate for the purposes of an exclusion from the obligations specified in Part 2 on grounds of biodegradability; and
• if so, how that exclusion would be implemented.

The Secretary of State would then need to review the order and publish the conclusions of the review in a report ‘before 5 October 2020’. This would need to include:

• the objectives intended to be achieved by the regulatory system established by this Order;
• the extent to which those objectives are achieved; and
• whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

The Order would cease to have effect from 5 October 2022.

Read the draft version of England’s Single Use Carrier Bag Charges (England) Order 2015.