UK-EU Comprehensive Trade Deal (UK Brexit)

Today the UK Government published its policy paper setting out its approach to negotiations for a Comprehensive Free Trade Agreement (CFTA) with its neighbours, the EU27 bloc. The document is here.

Key aspects –

* It is a vision of a relationship based on friendly cooperation between sovereign equals, with both parties respecting one another’s legal autonomy and right to manage their own resources as they see fit. Whatever happens, the Government will not negotiate any arrangement in which the UK does not have control of its own laws and political life. That means that we will not agree to any obligations for our laws to be aligned with the EU’s, or for the EU’s institutions, including the Court of Justice, to have any jurisdiction in the UK.

* The Comprehensive Free Trade Agreement (CFTA) should be – on the lines of the FTAs already agreed by the EU in recent years with Canada and with other friendly countries.

* The CFTA should be supplemented by a range of other international agreements covering, principally, fisheries, law enforcement and judicial cooperation in criminal matters, transport, and energy.

* All these agreements should have their own appropriate and precedented governance arrangements, with no role for the Court of Justice.

The EU27 and the UK confirm a progress review will take place in June (this was in the Withdrawal Agreement). In the event that progress is not made, the EU27 and the UK will revert to No Deal. [The Withdrawal Agreement includes an option to extend the transition period for 1-2 years.]

Please note, the Brexit Notices issued by the EU27 and the UK in 2018 and 2019 set out the arrangements that would have applied in 2019 if the Withdrawal Agreement was not agreed (No Deal). The Withdrawal Agreement having been agreed, connectivity, on for the most part the same basis as before, is provided to the end of the transition period (Dec 2020) – the period we are in at the moment.

The 2018/2019 Brexit Notices now apply to No (EU-UK relations) Deal from 1st January 2021. Some updates, notably to processes, documents and dates, are included (as you will have been noticing as I have been posting on this blog).

Whilst it is envisaged that a basic level of travel connectivity will continue after end Dec, organisations and individuals wherever located should now prepare for the new arrangements, tariffs etc, between the EU27 and the UK, that will apply from 1st January 2021. This Blog does not notify on customs, VAT or tariffs, it is focused on ENV and OHS related regulatory matters.

Please keep following this Blog, as further details of the arrangements that will apply for ENV and OHS related regulatory matters from 1st January 2021, are published.

Please note, we expect to meet the deadline for supply of the necessary new UK Registers & Checklists (in all regional variants) by 1st January 2021.

Subscribers will note that provision is already starting to appear on their existing websites.

Environment Bill (England & UK Brexit)

The Environment Bill returns to the Commons for Second Reading today. It is a slightly different Bill to 2019. Please reprise the posts I wrote in 2019, I summarise the changes (from those posts) below – I had got as far as Water – please find those posts in the Environment Bill category on this blog.

Targets (unchanged from 2019 Bill) – reprising because I didn’t set these out before – England only (targets are within the competencies of devolved legislatures)

– allow government to set long-term targets (of at least 15 years duration) in relation to the natural environment and people’s enjoyment of the natural environment via statutory instrument;

– require government to meet long-term targets, and to prepare remedial plans where long-term targets are not met;

– require government to set, by October 2022, at least one long-term target in each of the priority areas of air quality, water, biodiversity, and resource efficiency and waste reduction;

– require government to set and meet an air quality target for fine particulate matter in ambient air (PM2.5);

– require government to periodically review all environmental targets to assess whether meeting them would significantly improve the natural environment in England.

Note Clause 20 – Clause 20: Reports on international environmental protection legislation (this is unchanged from 2019 Bill, but I did not spell it out before) – this clause places an obligation on the Secretary of State to produce a report on significant developments in international environmental protection legislation, every two years, and lay it before Parliament. England only (competencies are within the competencies of devolved legislatures).

The scope and content of the report will be determined by the Secretary of State – see subsection (5). However, in a given reporting period it could cover: significant developments in the legislation of other countries that are mainly concerned with seeking to protect the natural environment from the effects of human activity or protecting people from the effects of human activity on the environment; legislation on the maintenance, restoration or enhancement of the natural environment; or legislative provisions around monitoring, assessing, considering and reporting and monitoring on these matters. The report will not extend to reviewing or considering the planning systems of other countries.

OEP (Office for Environmental Protection) – unchanged from 2019 Bill – see Blog posts on this – England only (establishing an OEP is within the competencies of devolved legislatures – Scotland indicated it would go this direction see its Environmental Strategy – see my post of yesterday).

Changes to UK REACH – unchanged from 2019 Bill

Waste, Air and Water appear unchanged from the 2019 Bill, and I have Blog posted before about these topics. Nonetheless, I will Blog again re Waste, because this is highly complex and a lot of new processes are announced. Please read the Explanatory Notes – here.

New Blog posts will be made about the rest of the Bill, please look out for those.

EU-UK Relations from 1st Jan 2021 (Brexit)

The EU today adopted a decision authorising the opening of negotiations for a new partnership with the UK, and formally nominating the European Commission as EU negotiator. The EU also adopted negotiating directives which constitute a mandate to the European Commission for the negotiations.

Per EU Press Release – here –

The EU wishes to establish an ambitious, wide-ranging and balanced economic partnership with the UK. The mandate stresses that the future partnership should be underpinned by robust commitments to ensure a level playing field for open and fair competition, given the EU and the UK’s geographic proximity and economic interdependence.

The EU intends to establish a free trade agreement with the UK which ensures that zero tariffs and quotas apply to trade in goods. This agreement should provide for cooperation on customs and regulatory aspects. It should also include effective management and supervision, dispute settlement and enforcement arrangements.

On fisheries, the mandate outlines that the future partnership should uphold the existing reciprocal access to waters as well as stable quota shares. The agreement on fisheries should be established by 1 July 2020, to give time for determining fishing opportunities after the end of the transition period.

The mandate also contains provisions for future cooperation in areas such as digital trade, intellectual property, public procurement, mobility, transport, and energy.

The EU will seek to establish a comprehensive security partnership with the UK. The partnership should comprise law enforcement and judicial cooperation in criminal matters, as well as foreign policy, security and defence. The mandate foresees that the future partnership should be embedded in an overall governance framework covering all areas of cooperation.

Link to EU negotiating directives.

Environmental Strategy (Scotland Brexit)

The Scottish Government has today published its Environmental Strategy.

The Link is here.

The Strategy confirms the Scottish Government will enact legislation to ensure that the four EU environmental principles continue to influence the development of policy in Scotland.

o Precautionary principle. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing cost- effective measures to prevent environmental degradation.

o Polluter pays principle. The polluter should bear the cost of pollution control and remediation.

o Prevention principle. Preventative action should be taken to avoid environmental damage.

o Rectification at source principle. Environmental damage should, as a priority, be rectified at source.

The Strategy confirms the Scottish Government will develop a system of environmental governance, to ensure the continued effective implementation of environmental law.

[England is setting up an Office for Environmental Protection.]

The Strategy confirms the Scottish Government will develop a monitoring framework to track progress in delivering the Environment Strategy.

Explosives Precursors from 1 Jan (UK Brexit)

The UK has not confirmed that it’s explosives precursors regulation system will continue in its current form after 1 January 2021. No notice is yet issued.

The matter is presently addressed (for the EU27) by a 98/2013 EU Marketing and Use Regulation, that will be replaced on 1st February 2021 by a 2019/1148 EU Explosives Precursors Regulation.

In the UK, this 2013 EU Regulation is retained as Retained EU Law, and a 2019 enacted Brexit EU Exit instrument makes the Retained EU document operate in the UK (see the Brexit Consolidated Law List in Subscribers systems). There is also domestic law.

The current UK explosive precursors regulation system is explained (2018) here.

The 2019 EU Regulation tightens controls (for the EU27 from 1st Feb 2021) on “explosives precursors”—chemical substances that have a legitimate purpose but can also can be used in home-made explosives—to keep pace with the evolving security threat.

The changes will further restrict access to explosives precursors and clarify the rights and obligations of those involved in the supply chain. It will distinguish between ordinary members of the public, who would require a licence to purchase restricted explosives precursors above a specified concentration limit, “professional users” who need the substances for their own trade, business or profession, and “economic operators” who trade in them. Professional users will not require a licence but will have to explain the purpose for which restricted explosives precursors were to be used. This information will then be available to EU27 national law enforcement and inspection authorities.

Until a UK notice is issued on the matter, subscribers to Cardinal Environment EHS Legislation Registers and Checklists – UK systems – that have explosives precursors included in their systems – will have the 2013 EU Regulation (repealed in EU27 on 1 Feb 2021) in the Retained EU Law section of the Registers. The 2019 EU Regulation (applicable in the EU27) will appear below Guidance, with other supplied EU Law (applicable in EU27). They will also have the domestic law.

Persistent Organic Pollutants from 1st Jan (UK Brexit)

The UK has confirmed that it’s persistent organic pollutants (POPs) regulation system will continue in its current form after 1 January 2021.

The matter is presently addressed (for the EU27) by a 2019/1021 recast EU POPs Regulation that came into force in 2019. In the UK, this 2019 EU Regulation is retained as Retained EU Law, and a 2019 enacted Brexit EU Exit instrument makes the Retained EU document operate in the UK (see the Brexit Consolidated Law List in Subscribers systems).

The UK confirmation is here.

The UK notice confirms all existing obligation and protections will continue because the UK is a signatory to both the Stockholm Convention and the Convention on Long-Range Transboundary Air Pollution. These Conventions are UNECE Conventions. The UK did not leave the UNECE (UN Economic Commission for Europe).

There is no change to the UK competent authorities.

Future updates will reflect Stockholm Convention decisions and agreed scientific and technical progress, and not necessarily changes to the EU POPs Regulation if it diverges.

Accordingly, subscribers to Cardinal Environment EHS Legislation Registers and Checklists – UK systems – will have both conventions added, where POPs are included in their UK systems. This is in addition to the necessary Retained EU Law.

The list of restricted, banned and monitored substances, with the exemptions, set out in the annexes to the current EU POPs Regulation will be amended this year (2020) to reflect decisions made at the last Stockholm Convention conference.

The Environment Agency is accordingly addressing changes pertinent to Perfluorooctane sulfonate (PFOS). The EA document is here.

These changes can be expected in amendments to existing domestic law.

The UK notice confirms identification of potential new POPs substances, with the exception of pesticides, will be managed initially through the UK chemicals regulatory regime that will replace EU REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) in the UK.

The UK notice confirms if all the characteristics of a POP emerge from the evidence gathering, the UK will develop a dossier for the Stockholm Convention’s POP Review Committee to assess.

Now that the UK has left the EU, this UK POPs notice confirms further changes to UK regulation of POPs will result from the review processes set up under UNECE Conventions.

Importing Animal Products etc from 1st Jan 2021 (UK Brexit)

The UK is in the Brexit Transition Period. From 1st January 2021, (it is expected) access is denied to the EU’s import system TRACES (Trade Control and Expert System).

Importers from non-EU should use the UK’s new Import of Products, Animals, Food and Feed System (IPAFFS) for imports of:

• live animals

• products of animal origin (POAO) subject to veterinary checks

• high-risk food and feed not of non-animal origin

• germplasm (also called germinal products)

• animal by-products not intended for human consumption (ABP) subject to veterinary checks

(non-EU) Health certificates and other documentation currently used for imports will be accepted by the UK for 6 months from 1 January 2021. Importers will then need to use a new UK health certificate.

(non-EU) Imports of high-risk food or feed of non-animal origin into the UK must continue to be made through a border control post (BCP), previously called a border inspection post (BIP) or designated point of entry (DPE).

(non-EU) Live animals, germplasm, POAOs and ABP that are subject to vet checks must continue into the UK through a UK border control post (BCP).

Further information is here. Note the IV66 form. This is to be used initially for imports from the EU, because the IPAFFS will not be used initially.

Products of animal origin (POAO) arriving in the UK from the EU will not need to notify using IV66 unless the consignment is coming from an EU member state with disease outbreak safeguard measures in place.

Imports from the EU of POAO will not need to be accompanied by a health certificate, unless a health certificate was required on the commodity before 31 January 2020.

The process for importing feed and food from the EU to the UK won’t change from 1 January 2021. There will be no additional controls or checks – if you did not use TRACES, you will not need to use IPAFFS or IV66.

Please read the attached information here, this Blog post is not a complete summary.

The UK also updated its list of Border Control Posts – here.

The UK also updated its guidance on trade agreements with non-EU countries (this is important for imports from non-EU) – here.

EU Law in UK 2021 (UK Brexit)

I am being asked about 2019 dated EU Law and its application to or implementation in the UK from 1st January 2021. For example,

* 2019 amendments to the Carcinogens Directive

* 2019 Single-Use Plastics Directive

* 2019 Explosives Precursors Regulation

UK (EU Exit) Statutory Instruments (regulations) and sections of Brexit Bills make changes to the existing statute base, and adopt EU Regulations (not Directives), to enable a standalone statute base as at the end of the Transition Period. This work project can be followed in the supplied Brexit Law List and the Brexit Consolidated Law List.

From 1st January 2021, we will reflect this in the content and the changed structure of the Cardinal Environment EHS Legislation Registers & Checklists for GB systems. Retained EU Law (labelled Brexit Retained EU Law) will replace EU Law at the head of the Registers.

EU Law (applying in EU27) will still be supplied, but it will be found at the base of the Registers, below Regulatory Guidance.

The Checklists and Summaries will be adjusted.

The systems for individual EU27 countries are unaffected, obviously, their content and Register layout will stay as is.

Northern Ireland is a special case, some EU laws (covered by the Withdrawal Agreement) will continue to show at the head of the Registers (a second category labelled Withdrawal Agreement EU Law), the rest will show, as for GB Registers, at the base of the Registers. The Checklists and Summaries will be adjusted.

We are working to a deadline of 31st December 2020 for this system content and Register layout change, and the system navigation is already altered to provide for it.

From 1st January 2021, if a 2019 EU Law is mirrored in GB (Withdrawal Agreement listed Goods EU Law will be mirrored in Northern Ireland), this will be via enactment of new UK/GB Law. Such new UK/GB law will appear in the normal centre of the Registers, and be Email Alerted in the normal way.

From 1st January 2021, GB system Email Alerts will focus on UK/GB Law.

Northern Ireland system Email Alerts will include Listed Withdrawal Agreement Goods EU Law.

EU27 system Email Alerts will continue as is.

This Blog will continue to be used for heads-up, including EU Law more widely, as it is used by all subscribers.

Regulatory Support will continue to handle all enquiries, irrespective of the category of law.

International Road Haulage (UK Brexit)

The UK Road Haulage Association (RHA) expects no cabotage from 1st January 2021. It recommends UK firms start preparing for the ending of cabotage from January 2021.

The RHA has updated its Brexit Operator Checklist – here. Please review.

Whilst some aspects are listed as “subject to negotiation”, a number of line entries in the Checklist are now more specific. This reflects announcements made by the UK Government and the EU Commission.

Freeports Consultation (UK Brexit)

Yesterday (10th Feb) the UK government announced the start of its consultation on its plan to create 10 freeports in locations across the UK.

The consultation deadline is 20th April.

The Freeports consultation document (UK’s Freeports policy) is here.

The consultation includes policies which relate to the whole of the UK, as well as some which are devolved. Where a policy is devolved, the proposals in the consultation apply to England; responsibility for policy development and implementation in Scotland, Wales and Northern Ireland lies with the devolved administrations. The document states the –

UK Government intends to work in partnership with the devolved administrations to develop proposals which enable the creation of Freeports in all nations of the UK.

(1) Tariffs and Customs – Customs and tariffs policy is reserved to the UK Government. The opportunity for customs and tariff benefits would be available UK-wide.

(2) Tax – Some aspects of tax policy are devolved in Scotland, Wales and Northern Ireland. This section consults on tax policies which vary in scope, with some applying UK wide, some in England and Northern Ireland, and others in England only.

(3) Planning – Proposals on permitted development rights and zonal planning relate to England only. Proposals on the National Policy Statement for Ports relate to England and Wales.

(4) Regeneration – Infrastructure, skills and housing are devolved matters and the proposals cover England only. Trade and investment promotion is a “concurrent” power. This means that whilst the UK Government has primacy over trade and investment promotion in the UK, the devolved administrations also pursue promotion activity on behalf of businesses in their nations.

(5) Innovation – Innovation policy is UK wide; although some aspects of university funding are devolved matters, we hope to hear from stakeholders across the UK on these proposals.

The summary of questions is on page 40 of the document’s 48 pages.

For example, Q1 asks To what extent do you agree/disagree that the reduced declaration requirements for moving goods into a Freeport represent a useful simplification of the administration of customs processes?

Note the UK government announcement yesterday of the return of physical border checks and paperwork for EU goods imports from 1st Jan 2021 (Blog post yesterday).

Q8 asks What do you see as the advantages and/or disadvantages of an inland Freeport site compared to a Freeport site which is adjacent to a port?

Q11 asks To what extent would the suspension of import VAT be of value to your business?

Note yesterday’s UK government press release did not confirm the VAT deferral scheme.