Date laid: 28 November 2017
Parliamentary procedure: affirmative
Summary: These draft Regulations ban the manufacture and sale of rinse-off personal care products containing microbeads (very small water-insoluble solid plastic particles). Microplastics ingested by marine organisms can cause harm either directly or by transporting other chemical contaminants into their systems: microbeads contribute to this pollution.
We draw these Regulations to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
1.In the Explanatory Memorandum (EM) to these draft Regulations, the Department for Environment, Food and Rural Affairs (Defra) says that the small but avoidable contribution of microbeads to marine microplastic pollution has long been recognised. Defra explains for example that, in 2016, a five-year study conducted by the University of Plymouth showed that microplastics ingested by marine organisms can cause harm either directly or by transporting other chemical contaminants into their systems. Microbeads, namely, water-insoluble solid plastic particles that measure less than, or equal to, 5mm in any dimension, contribute to this pollution.
2.The Departments says that, in January 2016, Greenpeace launched a petition calling for the UK Government to ban microbeads from cosmetics, which received over 385,000 signatures; and that, in August 2016, the Environmental Audit Committee (EAC) of the House of Commons published its inquiry into the environmental impact of microplastics,1 which included a recommendation to introduce legislation to ban the use of microbeads in cosmetic and personal care products.
3.These draft Regulations ban the manufacture and sale of rinse-off personal care products containing microbeads in England. In its Report, the EAC referred to expert estimates that around 680 tonnes of plastic microbeads are used in the UK every year: a single shower can result in 100,000 plastic particles entering the sewerage system. “Microplastics from cosmetic products are believed to make up 0.01% to 4.1% of the total microplastics entering the marine environment. The fact that this accounts for a small percentage of total microplastic pollution in the sea does not stop it being a significant and avoidable environmental problem, and possibly a low-hanging fruit in the context of tackling wider plastic pollution.”2
4.Defra says that voluntary action by the cosmetics industry, as well as pressure from consumers, has meant that more than 70% of producers have already removed microbeads from their products. However, it considers that a legislative ban will ensure consistency in understanding of what is meant by “microbead” and as a result will ensure that all relevant products are free from microbeads.
5.A Government consultation on proposals to ban the use of plastic microbeads in cosmetics and personal care products in the UK was held between 20 December 2016 and 28 February 2017. Defra says that there were 437 responses, mostly from individuals, but also from a wide range of organisations including cosmetics companies and associations, environmental charities and campaign groups, academic institutions, local authorities and fishing organisations; most respondents welcomed the proposed ban. A summary of responses was published in July 2017.3
6.In the December 2016 consultation paper, the Government said that, in England, the legislation was expected to come into force by 1 October 2017; by the time that the summary of consultation responses was published in July 2017, however, Defra had revised its plans, with a view to bringing the legislation into force by 1 January 2018. Defra has told us that the timing set out in the consultation document was agreed before the June General Election was called, and that the impact of the Election meant that the Regulations were laid later than originally expected. The Devolved Administrations hope to bring their legislation into force in May 2018 with a ban coming into effect by the end of June 2018.
Date laid: 29 November 2017
Parliamentary procedure: affirmative
Summary: These draft Regulations, laid under the Housing and Planning Act 2016, specify “banning order offences”: where someone has been convicted of a banning order offence, the local authority will be able to apply to a First-tier Tribunal for an order banning that landlord or property agent from being involved in the management of property. When the Housing and Planning Bill was before the House, the Delegated Powers and Regulatory Reform Committee commented that leaving the specification of these offences to a statutory instrument was an example of legislation being presented to Parliament before the underlying policy had been properly formulated. The fact that the Government consulted on these offences seven months after the 2016 Act gained Royal Assent bears out the accuracy of this comment.
We draw these Regulations to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
7.In the Explanatory Memorandum (EM) to these draft Regulations, the Department for Communities and Local Government (DCLG) says that the Housing and Planning Act 2016 (“the 2016 Act”) introduced a package of measures designed to help local authorities take effective action against rogue landlords and property agents. The 2016 Act (at section 14(3)) confers a power on the Secretary of State to specify in regulations what constitutes a “banning order offence”.
8.Where someone has been convicted of a banning order offence, the local authority can apply to a First-tier Tribunal for an order banning that landlord or property agent from being involved in the management of property. DCLG says that the purpose of a banning order is to enable local authorities to tackle the most serious and prolific offenders by preventing them from being involved in the renting out or management of housing in the private rented sector. Regulation 3 and the Schedule to these draft Regulations specify banning order offences. The Schedule lists 14 separate Acts and the relevant provisions in them which specify the offences.
9.When the Housing and Planning Bill was initially under consideration in this House, the power to specify banning order offences (then in clause 13(3)) was proposed to be subject to negative resolution. In its 20th Report of Session 2015–16,4 the Delegated Powers and Regulatory Reform Committee (DPRRC) commented that it was inappropriate that the determination of these offences should be left entirely to the discretion of the Secretary of State, with only a modest level of Parliamentary scrutiny. It recommended that clause 13(3) should be removed from the Bill and replaced with a provision listing the offences that constituted “banning order offences”, coupled with a delegated power to amend the list by affirmative procedure regulations. Its recommendation was mentioned by several members during this House’s Committee stage on the Bill.5
10.The DPRRC published the Government response to the recommendation in its 26th Report of Session 2015-16.6 The response indicated that the Government would amend the Bill to provide that the regulations prescribing banning order offences should be subject to the affirmative procedure. In its 27th Report of the same Session,7 commenting on Government amendments to the Bill, the DPRRC expressed its disappointment that the relevant amendment did “no more than require the affirmative procedure for regulations under clause 13(3), without including more on the face of the Bill about the ‘banning order offences’ themselves. In her response to our recommendation, the Minister gave as a reason for not including more in the Bill her intention to consult on draft regulations in order ‘…to get the details of these offences right…’ However, we regard this as a further example of legislation being presented to Parliament before the underlying policy is properly formulated. We repeat our earlier conclusion that it is inappropriate to delegate to secondary legislation the entire definition of a key element in the conditions that may lead to a banning order being made.”
11.In the EM, DCLG says that it carried out a consultation process on the banning order offences specified in this instrument over an eight-week period between 13 December 2016 and 10 February 2017:8 consultees included local authorities, landlord organisations, tenant groups, housing charities and representatives of letting agents. 223 responses were received; 84% of respondents agreed that the proposed banning order offences were the right ones.
12.DCLG states that a range of further offences were suggested by respondents because they were considered likely to be committed by a rogue landlord against their tenants; and that, as a result, additional offences have been included at items 7 to 14 in the Schedule to the Regulations. We take the view that the fact that the Department consulted on these offences seven months after the 2016 Act gained Royal Assent demonstrates only too clearly the accuracy of the DPRRC’s comment that the primary legislation was presented before the underlying policy had been properly formulated.
13.We note as well that DCLG failed to publish the Government response to the consultation at the same time as laying the draft Regulations, even though the latter were laid more than nine months after the end of the consultation period. While we understand that the Department aims to make the response available soon, non-simultaneous publication is at odds with the Government’s own Consultation Principles.9
14.The consultation paper stated that the 2016 Act also provided for a national database of rogue landlords and property agents to be set up and maintained. We understand that DCLG intends to bring forward a further instrument (subject to negative resolution) which will specify the information that will need to be recorded by local authorities on the database, and which will provide for the database to be introduced at the same time as the banning order Regulations are proposed to come into force, namely, 6 April 2018.
15.Given concern expressed when the Bill was under consideration, the House will be interested to see the banning order offences which the Department now proposes should be specified under the 2016 Act.
2 Ibid, para. 39.
3 See DEFRA, Proposals to ban the use of plastic microbeads… and call for evidence on other sources of microplastics entering the marine environment. Summary of responses, July 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/630863/microbeads-consult-sum-resp.pdf [accessed 5 December 2017]
4 20th Report, Session 2015–16 (HL Paper 90).
5 HL Deb, 9 February 2016. See; http://hansard.parliament.uk/lords/2016-02-09/debates/16020973000406/HousingAndPlanningBill
6 26th Report, Session 2015–16 (HL Paper 125).
7 27th Report, Session 2015–16 (HL Paper 132).
8 See DCLG, Proposed banning order offences under the Housing and Planning Act 2016: A consultation paper, December 2016: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/576799/161212_consultation_on_banning_order_offences.pdf [accessed 5 December 2017]
9 See Appendix 3 to the Committee’s 23rd Report, Session 2015–16 (HL Paper 89).