The Climate Change Act 2008 Sch.6 granted powers enabling secondary legislation to be made about carrier bags. The Environment (Wales) Act 2016 ("the 2016 Act") replaces for Wales the enabling provisions under which the charging provisions for carrier bags are enacted.
1. The Climate Change Act 2008 Sch.6 enabled secondary legislation to be made controlling the sale of "single use" carrier bags. The Schedule was skeleton legislation - all the details, including key definitions, were to be provided by the regulations. The power was exercised in relation to Wales through the Single Use Carrier Bags Charge (Wales) Regulations 2010/2880, but the power has now been replaced for Wales by Part 3 of the Environment (Wales) Act 2016 (Charges for carrier bags). The 2016 Act is to be commenced by subordinate legislation, and until it is commenced the 2010 regulations will continue to have effect (in England the Single Use Carrier Bags Charges (England) Order 2015/776 came into force on 5 October 2015).
Meaning of carrier bag
2. Section 54 of the 2016 Act defines carrier bag as being a bag "supplied for the purpose of (a) enabling goods to be taken away from the place where they are sold, or (b) enabling goods to be delivered". The Welsh Government's Explanatory Memorandum to the Bill for the Act said: "Generally carrier bags to which a minimum charge may apply would be those which are supplied by retailers to their customers when they buy goods in store or those supplied by companies who are delivering goods such as a supermarket providing an online grocery delivery service."
Requirement to charge
3. Schedule 6 to the Climate Change Act 2008 gave a power to "make provision by regulations about charging by sellers of goods for the supply of single use carrier bags". Section 55 of the 2016 Act imposes a duty to make regulations, but leaves considerable scope for the exercise of discretion as to the effect of the regulations. The essence is that the regulations may "require sellers of goods to charge for the supply of carrier bags of descriptions specified in the regulations" where "the goods are- (a) sold at or from a place in Wales, or (b) intended to be delivered to a person in Wales".
4. The Single Use Carrier Bags Charge (Wales) Regulations 2010/2880 make provision about a minimum amount which sellers of goods must charge for single use carrier bags in Wales (presently £0.05). The Regulations: define "single use carrier bag" and "seller"; and appoint county councils and county borough councils as administrators; set the minimum amount which a seller must charge for a single use carrier bag and the types of single use carrier bags to which the requirement to charge does not apply (the bags in question are set out in Sch.1 to the Regulations); deal with the keeping, supply and publication of records by sellers; impose a regime of civil sanctions; confer other enforcement powers on administrators and allow administrators to recover certain enforcement costs which they have reasonably incurred.
5. The Welsh Government issued Guidance on the Single Use Carrier Bags Charge (Wales) Regulations 2010/2880 in September 2011. The Guidance takes the form of a commentary on the Regulations and elucidates their intention in a number of respects: see, for example: "The term single use carrier bag is defined broadly in the Regulations so that it includes all carrier bags that are commonly supplied with the intention that they are to be used to carry purchased goods on a single occasion. The term is defined in a way that captures some bags which may not immediately fall within most people's perception of a single use carrier bag; small paper bags for example would be subject to the charge. It is for this reason that it is sensible to assume as a starting point that any single use bag may fall within the scope of the charge."
6. The Welsh Government is encouraging sellers to donate the proceeds of the carrier-bag charge to charitable and community causes. The Single Use Carrier Bags Charge (Wales) Regulations 2010 imposed no legal duty to give the proceeds to charity. The 2016 Act requires regulations made under it to "require the net proceeds of the charge to be applied to charitable purposes which- (a) relate to environmental protection or improvement, and (b) directly or indirectly benefit the whole or any part of Wales (whether or not they also benefit any other area)", but subject to various exceptions and qualifications (s.57).
7. The Welsh Government's Explanatory Memorandum to the Bill for the 2016 Act said:
"214. Section 57(1) requires sellers to apply the charges they receive from the sales of carrier bags (less deductions) to charity.
215. The amount that must be applied to charitable purposes will be the net proceeds of the charge. The net proceeds are defined in section 64 to mean the gross proceeds of charge less any amount that the regulations may specify such as, for example, administration costs. The "gross proceeds of the charge" means the amount that the seller receives as a result of the minimum charge. It does not include money received which is over and above the minimum charge so if the seller charges 8p for a bag and the minimum charge is 5p the gross proceeds will be 5p.
216. The net proceeds of sale must be applied to "charitable purposes" as defined in subsection (5). The regulations may also specify the charitable purposes to which the net proceeds must be applied."
8. There are some key questions that may make this legislation impossible to enforce if shopkeepers do not wish to enforce it. In particular, there appears to be nothing to prevent shopkeepers from discounting purchases in order to offset the carrier-bag charge. At present, there seems to be no significant pressure in that direction either from shopkeepers or from consumers.
9. The 2016 Act attempts to strengthen the provision for enforcement of the charging regime: s.58 allows the regulations to "appoint a person (an "administrator") to administer provision made by the regulations"; s.59 provides for record-keeping requirements; and s.60 allows regulations to make provision for enforcement by the administrator. Schedule 1 introduces a regime of civil penalties.