Joan Ruddock, Parliamentary Under Secretary of State, Department for Environment, Food and Rural Affairs, has made the following report:
1. Standing Order no.169A of the House of Commons requires me to report on the statement of opinion made by or on behalf of the promoters of this Bill as to the compatibility of their proposals with the European Convention on Human Rights.
2. In my opinion the promoters have not fully considered all aspects of the compatibility of their proposals with the European Convention on Human Rights in respect of clause 4. I also note the promoters’ own view that their proposals are not compatible in respect of clause 8 and paragraph 1(a).
Clause 4 (the shopping bag prohibition)
3. The Bill at clause 4 prohibits the provision of “shopping bags” by retailers to customers, other than bags exempted under the Bill. Shopping bags are defined in clause 2, and the exemptions (such as small bags used to contain unpackaged food) are set out in clause 5. The prohibition is enforced by the penalty charge notice regime in the London Local Authorities Act 2007.
4. The promoters consider that the Bill engages Article 1 Protocol 1 (right to peaceful enjoyment of property). The promoters consider that the Bill interferes with the Article 1 Protocol 1 rights of bag manufacturers and wholesalers, and may interfere with retailers’ Article 1 Protocol 1 rights. They conclude that the interference is justified, because it is in accordance with the law, which is set out with sufficient clarity in the Bill itself it aims to protect the environment, and is therefore in the public interest; and it is proportionate. On the question of proportionality the promoters consider that the interference is justified because the effect of the Bill is to avoid the significant environmental damage caused by shopping bags; the prohibition is rationally connected to the aim of avoiding such damages; and the interference is no greater than necessary.
5. In order to demonstrate that the proposed measures are proportionate, in my view the promoters may need to consider further whether their aims could be achieved through alternative means which constitute a lesser interference.
6. For instance, the promoters in their statement of opinion do not appear to have considered introducing a requirement on retailers to charge for shopping bags. Evidence shows that a trial run by Marks and Spencer in Northern Ireland, charging 5 pence for standard food bags, achieved a 66% reduction in the number of carrier bags used. The promoters in their statement of opinion also do not appear to have explored the proportionality of a tax on shopping bags, whether imposed by themselves or another body with the relevant tax raising powers. Evidence from Ireland, where a levy was introduced on 14 March 2002, shows that the use of disposable plastic bags has been reduced by approximately 93% since the levy’s introduction. It is conceivable that these alternative measures might achieve the Bill’s stated aim but with less interference in Article 1 Protocol 1 rights.
Clause 8 and paragraph 1(a) of the Schedule
7. Clause 8, read with paragraph 1(a) of the Schedule, makes it an offence wilfully to fail to comply with the requirements of an authorised officer to give all reasonable assistance about the acquisition, retention, supply and disposal of non-exempt shopping bags
8. The promoters’ statement of opinion considers that the second of these offences raises an issue under Article 6 (privilege against self-incrimination). The Bill requires retailers and their employees to provide information which may be used for the imposition of a penalty charge, and provides that if they fail to do so, they shall be guilty of a criminal offence. The Bill contemplates that information obtained under the powers in the Bill will be used for imposing penalty charges.
9. The promoters’ statement of opinion notes that the interference with the privilege against self-incrimination requires justification, and concludes that there is no particular reason why the interference is necessary. I agree with the statement of opinion here. I also note that the promoters’ report suggests that this incompatibility could be rectified by including in the Bill a provision that information obtained under paragraph 1(a) of the Schedule shall not be used for the purpose of imposing a penalty charge on the particular individual who provided the information, and that the Bill promoters have provided a further opinion examining an amendment to address the point.
10. Save for the clauses mentioned above, I agree with the conclusions reached in the statement of opinion made by the promoters as to the compatibility of their proposals with the European Convention on Human Rights.’.