GB-NI Traded Goods (Northern Ireland)

Northern Ireland is part of the UK’s Internal Market, and at the same time has access to the EU’s single market for traded goods; a list of EU rules applies to Northern Ireland goods (initially established by the Ireland/Northern Ireland Protocol to the 2018 EU-UK Withdrawal Agreement, and then updated as The Windsor Framework).

Today (31st January 2024), the UK Government has announced further changes – [the document is here]

(1) the UK Internal Market Act 2020 will be amended to copperplate access for Northern Ireland goods into GB –

* to prohibit exit procedures on goods moving from Northern Ireland to GB

* to guarantee unfettered access for all routes into GB (including for example via Dublin)

* to ensure only agrifood goods connected to registered NI food and feed operators will be qualifying Northern Ireland goods for the absence of SPS checks, controls and processes

(2) a new Act of Parliament will bar the UK Government from reaching a future agreement with the EU which has an adverse effect on the operation of the UK’s internal market

(3) section 7a of the EU Withdrawal Act 2018 will be amended to ensure acceptance of new EU rules in Northern Ireland (“dynamic alignment”) will be subject to the Stormont Brake democratic consent and scrutiny envisaged by the Windsor Framework (once the Northern Ireland Executive is up and running)

[update : in addition, when Parliament is considering new legislation, the UK Government will ensure Parliament has the information needed about any impacts on the internal market and measures necessary to protect Northern Ireland’s place in the internal market, to decide how to proceed. The Government will legislate to require that a Minister in charge of a Bill must assess whether or not it has an impact on trade between GB and Northern Ireland and, if so, make a statement to Parliament setting out whether the legislation would have significant adverse implications for Northern Ireland’s place in the UK internal market. Where primary legislation does carry such implications for the internal market, the Government will set out any measures it proposes to take to protect the internal market.]

(4) the “green lane” concept will be replaced by a new UK internal market system, that will sit alongside the “red lane” concept of goods at risk of moving onwards to the EU. Membership of the UK Internal Market Scheme, and for agrifood retail goods the Northern Ireland Retail Movement Scheme, will still be required.

(5) the indefinite extension of recognition of CE marking across 18 existing regulatory categories for products across the UK already in place, will be extended to other product categories.

Note : these announcements do not extend to chemicals per se – the trader is advised to look closely at the goods moved under the UK Internal Market Scheme. An agreement is in place for medicines, but not veterinary medicines (the grace period runs out shortly).

F-Gases & Ozone Depleters (EU)

On 29th January 2024, the EU adopted new Regulations on Fluorinated Gases (F-Gases) and Ozone Depleters. These will be published shortly and enter into force. The existing rules will be repealed. Further information is here.

We will add these documents shortly to Cardinal Environment EHS Legislation Registers & Checklists, and update the Law Summaries and Checklists,

Northern Ireland: existing EU rules are retained under the Windsor Framework (formerly the Ireland/Northern Ireland Protocol) in a process of “dynamic alignment” (which means EU amendments and replacements apply in Northern Ireland). The existing EU F-gas and ozone depleters documents are subject to this dynamic alignment.

The UK will issue today (31st January 2024) it’s Command Paper on changes to the UK’s Windsor Framework legislation to adjust “dynamic alignment”. The Windsor Framework already includes an internal Northern Ireland Executive voting mechanism.

Britain (GB): the UK is not part of the EU or EFTA; on 31st December 2023 existing EU rules on F-gases and ozone depleters were assimilated (retained was the earlier term); albeit subject to amendment or deletion by means of the REUL Act until June 2026.

The EU’s new rules will not be assimilated, GB may amend its domestic law anyway, since it has ratified International Law in this area.

EU and EFTA: the new EU rules on F-gases and ozone depleters will apply.

Border Target Operating Model (UK)

The UK’s Border Target Operating Model puts in place customs and SPS (sanitary and phytosanitary) controls applicable to goods moving from the EU to Great Britain (GB). These were already in place from 1st Jan 2021 for goods moving from GB to the EU. The Windsor Framework governs goods moving from GB to Northern Ireland. There is no “hard border” between Northern Ireland and Ireland. Reminder: Northern Ireland is a six counties province of the island of Ireland.

31st January 2024 is the first deadline (EU to GB).

Goods will need to complete import processes if they are being imported directly from the EU, including Ireland, into GB (not moving from or through Northern Ireland).

Goods moving from Northern Ireland to GB through Irish ports will also have to complete import processes if they are:

* non-qualifying Northern Ireland goods

* excise goods (includes energy products)

* goods that do not move directly to an Irish port once they have left Northern Ireland, for example goods that are held in storage in Ireland.

Declarations will no longer be able to be delayed. Ports will be required to control these goods moving from the EU (including Ireland) to GB, meaning that unless they have received customs clearance they will not be released from the port.

Here is information about moving qualifying goods from Northern Ireland to the rest of the UK (ie GB).

Businesses making a full import declaration or simplified frontier declaration on the UK Customs Declaration Service (CDS) for goods moving from the EU, including Ireland, to GB (including for excise goods) will no longer be required to ‘arrive’ their declaration by the end of the next working day after arriving in GB. For goods being entered into excise duty suspense, the entry onto the Excise Movement and Control Systems (EMCS) must be made by the time they arrive in GB.

If a trader is moving goods from Northern Ireland to GB via Ireland, including qualifying Northern Ireland goods, some Irish customs requirements will need to be complied with to exit through a port in Ireland and the trader will need to check Irish customs guidance.

Import declarations will not be needed for qualifying Northern Ireland goods moving directly from Northern Ireland or indirectly through Ireland to GB, in line with the UK Government’s commitment to unfettered access.

Further information (Northern Ireland traders) is here.

Withdrawal Act Section 4 Rights (UK)

The REUL Act (commenced at end Dec 2023) ended the special status of REUL (Retained EU Law) in the UK from that date. It ended the principle of EU law supremacy and general principles of EU laws as ways to interpret EU law.

The REUL Act also repealed section 4 of the European Union (Withdrawal) Act 2018 (EUWA). This means that rights previously preserved by that section (“section 4 rights”) are no longer recognised in domestic law, unless they are restated using powers in the REUL Act.

Section 4 of EUWA provided for legal continuity of certain rights (resulting from the UK’s membership of the EU) at the point of the UK’s exit from the EU.

Certain equality rights were already restated at end Dec 2023 (a previous blog post refers).

The REUL Act’s restatement powers are available until 2026.

Decisions made to date –

(1) section 4 rights related to EIA (environmental impact assessment), relating to rights to public participation in decision-making, and the public’s right to reports: not restated – existing statute domestic law is sufficient

(2) section 4 equality rights: some restated (see earlier blog post)

(3) definition of biocidal products includes products that control harmful organisms in an indirect way (relating to the earlier 1998 European Directive): not restated – HSE will continue as it has done, and the 1998 Directive was anyway replaced by a 2012 European Directive which follows similar principles

NOTE: REUL is from 1st Jan 2024 termed Assimilated Law – Cardinal Environment Limited EHS Legislation Registers & Checklists will be updated; and the Retained EU Law tracking list will be retitled.

Assimilated Law may be updated using REUL Act powers until June 2026.

Re: Northern Ireland, certain EU law is retained by virtue of the Northern Ireland/Ireland Protocol, replaced by The Windsor Framework (The Windsor Framework amended the Protocol and came into effect on 1st Oct 2023) – again Registers & Checklists, and the Retained EU Law tracking list will be updated.

New General Product Safety Regulation (EU)

Regulation (EU) 2023/988 will replace the existing EU General Product Safety Directive and the existing EU Food Imitating Directive from 13 December 2024.

The new Regulation is here.

Changes –

(1) it’s an EU Regulation not an EU Directive – directly applicable in Member States (and EFTA countries)

(2) Precautionary principle to be widely applied by all stakeholders for product safety

(3) Specific product safety obligations for both economic operators and providers of online marketplaces

(4) Additional product traceability requirements

(5) List of aspects to be taken into account when assessing the safety of products, including for new technologies

(6) Accident reporting to authorities by businesses

(7) Reinforced market surveillance rules

(8) Specific rules on how to handle product safety recalls, including a mandatory recall notice template, and right to remedy for consumers

The existing EU General Product Safety Directive applies in Northern Ireland. The action to be taken by the UK Government (if any) on the matter is as yet unclear.

New EU Machinery Regulation (EU)

Regulation (EU) 2023/1230 replaces the existing EU Machinery Directive 2006/42/EC from 14 January 2027. Some rules apply on earlier dates such as the requirements for notified bodies (14 January 2024).

The Regulation is here.

Key changes are :

(1) it’s an EU Regulation (not a Directive) – directly applicable in Member States (and EFTA countries)

(2) the scope is widened to encompass software

(3) specific conformity assessment is required for certain products

(4) penalties are expected for non-compliance

The Regulation applies not only to new machines, but also to machines that have undergone modifications that were not planned by the manufacturer, or modifications that might affect the safety of the machine.

The existing EU Machinery Directive applies in Northern Ireland. The action to be taken by the UK Government on the matter is as yet unclear.

New Deforestation-free Products Rules (EU)

On 29 June 2023, the EU’s Regulation on deforestation-free products entered into force. The document is here. The new Regulation repeals the EU Timber Regulation.

Under the EU Deforestation-free Products Regulation, any operator or trader who places products that might be derived from deforestation on the EU market, or exports from it, must be able to prove that the products do not originate from recently deforested land or have contributed to forest degradation.

The products involved include commodities like cattle, wood, cocoa, soy, palm oil, coffee, rubber, and some of their derived products, such as leather, chocolate, tyres, or furniture.

Operators and traders have 18 months from 29 June 2023 to implement the new rules. A longer adaptation period applies to micro and small enterprises.

FAQs is here. The new rules apply to exporters to the EU.

The EU Timber Regulation applies in Northern Ireland; but the action to be taken by the UK Government on the matter is as yet unclear.

New UK CBAM (UK)

Happy New Year!

On 18th December 2023, the UK government announced it would bring in a UK carbon border adjustment mechanism (CBAM) by 2027, one year later than the EU.

The announcement is here. Further detail is here.

There is little detail so far, save that the UK CBAM looks to be an EU-style carbon levy, applying to similar industries.

The design and delivery of the UK CBAM will be subject to further consultation in 2024.

Exporters to the EU will already be providing data to the EU; the transition phase of EU CBAM came into force on 1st October 2023.

The situation in Northern Ireland is as yet unclear. EU CBAM will be ‘new legislation’ as respects the Northern Ireland/Ireland Protocol. It would need to be formally notified to the UK, if the EU wishes to apply its CBAM in that jurisdiction to ‘red list’ goods (goods at risk of entering the EU).

Worker Rights Changes (UK)

We don’t advise on Employment Law, however the UK Government has made the following announcements that are tangential to the EHS law documents we supply to clients., and of interest.

(1) Workers (Predictable Terms and Conditions) Act 2023 – this document will amend the Employment Rights Act 1996 to give workers and agency workers the right to request more predictable terms and conditions of work. The document is here.

Note the EU has a 2019 Directive conferring similar rights. Member states were required to implement this Directive by 1 August 2022. More details are here.

Royal Assent for the UK Act was given on 19th September 2023, but the provisions are not expected to be commenced for another year.

(2) Changes to the Working Time Regulations and TUPE – the Government had earlier in 2023 consulted on three areas for change –

• Record keeping requirements under the Working Time Regulations
• Simplifying annual leave and holiday pay calculations in the Working Time Regulations
• Consultation requirements under the Transfer of Undertakings (Protection of Employment), or ‘TUPE’, Regulations

The Government also launched a consultation in January 2023 on calculating annual leave entitlement for part-year and irregular hours workers.

Announcement today 8th November confirms these proposals will be taken forward. We supply the Working Time Regulations in client systems, and will supply the updated text once the relevant Statutory Instruments are issued.

(3) Sky (news) reported yesterday “The government has announced plans to reinstate EU equality laws before they expire at the end of the year”

According to Sky – the protections being retained include the ‘single source test’ test, which gives women the right to equal pay with men for doing work of equal value, and preventing women from experiencing less favourable treatment at work because they are breastfeeding.

Other laws being retained include:

• Protecting women from unfavourable treatment after they return from maternity leave, where that treatment is in connection with a pregnancy or a pregnancy-related illness occurring before their return;

• Ensuring that women can continue to receive special treatment from their employer in connection with maternity, for example through enhanced occupational maternity schemes;

• Confirming that the definition of disability in the context of employment will explicitly cover working life;

• Holding employers accountable if they create or allow discriminatory recruitment conditions, such as if they make public discriminatory statements about access to employment in their organisation;

• Providing explicit protections from indirect discrimination by association, so that those who may be caught up and disadvantaged by discrimination against others are also protected.

These are currently EU Treaty equality rights. Unless retained by Statutory Instrument (SI), all EU Treaty rights are extinguished at the end of this year (the REUL Act).

Once the SI has been published, we will note it on the Removal of EU-Era Law tracker list on client systems.

Environmental Outcomes Reports (UK)

In March 2023 DLUHC (the Levelling Up Government Department) issued a document (for consultation) on its proposed new Environmental Outcomes Reports regime (England). The document is here.

The March 2023 document identified that the Levelling Up and Regeneration Bill would be seeking powers to replace the current processes set out in EIA and SEA Directives (EU-era laws) with a new system of Environmental Outcomes Reports (EORs).

The Levelling-up and Regeneration Act 2023 is now enacted, and includes the powers to create the Environmental Outcomes Reports regime (Part 6, ss 152-167).

Note, the sections are not commenced.

Section 158 and Schedule 13 contains restrictions on the exercise of powers under Part 6 by devolved authorities.

Section 164 deals with the interaction between the EOR Regulations that may be made under Part 6 and the existing EIA and SEA Regulations and the Habitats Regulations.

Section 164(1) – EOR Regulations may make provision about, or in connection with, the interaction of Part 6 with existing environmental assessment legislation or the Habitats Regulations.

Section 164(3) – EOR Regulations may amend, repeal or revoke relevant existing environmental assessment legislation.

Note section 164(3) does not mention the Habitats Regulations. As identified in the DLUHC document “The Bill does not include powers to reform assessment under the Habitats Regulations. The powers in Clause 149 (Interaction with existing environmental assessment legislation and the Habitats Regulations) mirror the position under the current system to allow for co-ordination between the processes and joint working, with a view to avoiding duplication.”

Clause 149 became Section 164 in the Act.

EOR Regulations will be added to client systems, when Part 6 is commenced and the Regulations are issued. It is expected further consultation will take place, as there is little information in the public domain on the shape of the EOR Regulations.