UK Border 2020 : preparedness (UK)

Civil service evidence given to MPs (select committee) yesterday expresses growing confidence that — contrary to recent predictions from industry groups — preparations would be completed on time for the new UK-EU trade border that will come into force on January 1, including computer systems, lorry parks, customs agents and vets required to complete export declarations to the EU.

The link is here.

Alex Chisholm, the permanent secretary at the Cabinet Office said that “huge advances” had been made in preparations since research was conducted for a damning National Audit Office report published earlier this month which predicted the UK was likely to face “widespread disruption”.

The sole Red designation is “Trader Readiness”, particularly amongst small traders.

Nonetheless, Export Health Certificates are an acknowledged cost, for GB to NI agrifood movement, and some items (bans) remain “in conversation with the EU”, as does “At Risk” tariff bearing goods, for those movements.

Chemicals firms trading in the GB market also face costs with reregistration in UK REACH, and further time (up to 6 yrs for small tonnages) is being given by government for data extract from EU database (see the Chemicals section of the Brexit Guidance List in subscriber’s EHS Legislation Registers & Checklists).

We (at Cardinal Environment Limited) have now commenced populating the new EHS Legislation Registers & Checklists that will go live on 1st January 2021. A further update will be in the November Email Alert.

Office for Product Safety and Standards (UK from 1st Jan)

The Office for Product Safety and Standards (OPSS) has published guidance for businesses in Great Britain (GB) and separately in Northern Ireland (NI).

The guidance is issued separately (for GB and NI) – here – for the following –

(1) General Product Safety

(2) ATEX

(3) Cosmetics

(4) Electrics and electronics

(5) Gas appliances

(6) Lifts

(7) Machinery

(8) Metrology (weights and measures)

(9) Outdoor equipment

(10) Pressure equipment

(11) Recreational craft

(13) Toys

Guidance (Brexit) in these areas was issued in earlier years, but these documents are a fresh issue, and will be added imminently to the Brexit Guidance List in subscribers’ EHS Legislation Registers & Checklists online.

The Implementation or Transition Period officially ends at 11pm on 31 December 2020; therefore references to 1 January 2021 should be read as meaning 11pm on 31st December 2020.

Great Britain

The Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019, and other Brexit Law, that are being consolidated into domestic law – the Brexit Consolidated Law List in subscribers’ EHS Legislation Registers & Checklists) are also amended by the Product Safety and Metrology etc. (Amendment etc.) (UK(NI) Indication) (EU Exit) Regulations 2020 – which are not yet approved by Parliament.

This (as yet not approved amendment) provides for a 24 month transition period for importer labelling (for goods from the EEA), and the UKCA marking. It also amends the definition of “authorised representative” as well as introduces an end (in 12 months from the end of the Transition Period) to the recognition of goods meeting EU requirements, as well as introduces provisions for qualifying Northern Ireland goods.

Northern Ireland

Only a few of these guides are yet published.

Office for Environmental Protection (England & UK)

I Blog posted before about the new environmental regulator that will be set up, operating in England and possibly also in Northern Ireland. This regulator is termed the Office for Environmental Protection (OEP – see the OEP category in the Blog subject archive online) and is provided for by the Environment Bill, that has restarted its progress.

Since it is not expected the Environment Bill will become law by the 1st January 2021, yet the new regulator is required then, an Interim Environmental Governance Secretariat will be set up by DEFRA to be hosted within DEFRA. This Secretariat will operate from 1st January 2021 until the OEP can begin its statutory functions following the passage and Royal Assent of the Environment Bill. The interim arrangements will support the Chair of the OEP once he/she has been engaged following the regulated public appointments process which is already at an advanced stage. The interim Secretariat will operate under the guidance of both the Chair and the other Board members when they have been confirmed in post, initially on a designate basis if needed ahead of Royal Assent of the Bill.

The Office for Environmental Protection (OEP) is established through the Bill as a new, independent, public body which will be legally separate from the Crown. The interim arrangements, are non-statutory, are introduced because of the delay in the Bill’s passage. The DEFRA Secretary of State asserts the interim arrangements need only to operate for a limited time period. The interim Secretariat will operate as a specific, dedicated team within the Environmental Governance Division in DEFRA. While the Secretariat is not legally the same as the Office for Environmental Protection, it is intended to be a precursor to it, exercising some functions on a non-statutory basis in the interim period, and transitioning to and paving the way for the permanent body to deliver its full, statutory functions.

In its preparatory role, the Secretariat will create draft documents and processes to hand over for further development and adoption by the OEP, for example in relation to its strategy and working framework.

As regards its interim delivery function, the Secretariat will have two main areas of responsibility.

(1) it will receive and assess complaints submitted by members of the public about alleged failures of public authorities to comply with environmental law. The Secretariat will check the complaints against the criteria specified in the Environment Bill to determine if they will fall within the remit of possible investigation by the OEP, interacting with the relevant complainants and public authorities to gather further information where necessary to determine these facts. It will assess the information received and pass it on to the OEP once established, so that the permanent body can determine which complaints to consider further through the exercise of its legal functions including formal investigations and enforcement.

(2) the interim arrangements will provide for continuity and handover of the technical work currently undertaken by the Natural Capital Committee and its Secretariat in relation to monitoring progress in implementing the 25 Year Environment Plan, which will become the first statutory Environmental Improvement Plan under the Bill.

The interim Secretariat derives its non-statutory ability and remit to act from the Secretary of State, and the team will be formally managed and governed within DEFRA.

The government plan is to identify and announce the DEFRA Secretary of State’s preferred candidate for the Chair of the Office for Environmental Protection before the end of 2020, for appointment as Chair-designate (before the Bill’s Royal Assent) after the joint EFRA and EAC (select committee) hearing in December. Once the Chair-designate is in post, he/she will be supported by and provide leadership to the interim Secretariat. The Secretariat will report to the Chair-designate on matters such as the numbers and subject areas of complaints received, including any significant issues that emerge and any lessons learned for the OEP.

An interim Board will not be appointed to support the Chair-designate. As well as being at an advanced stage of the public appointments process for the Chair campaign, DEFRA is also currently moving ahead with plans to identify the OEP’s other Non-Executive Directors and additionally to recruit an Interim Chief Executive Officer. These will allow the Board of the Office for Environmental Protection to become quorate soon after the Bill receives Royal Assent.

The OEP’s remit will cover England and matters that are not devolved (termed reserved matters). It will be able to investigate and enforce potential breaches of English environmental law and of reserved areas of environmental law. The interim Secretariat will have the same remit in respect of its initial, non-statutory functions.

If the Secretariat receives a complaint that is about another part of the United Kingdom and is not concerned with a reserved matter, they will refer it to the relevant devolved government for consideration.

This means that remit of the Secretariat (and the OEP) in Scotland and Wales will be limited, triggered when the UK Government or public bodies are exercising reserved functions in those locations. The Secretariat (and the OEP) will operate in Northern Ireland if Northern Ireland’s Ministers agree.

DEFRA officials are in contact with their counterparts in Northern Ireland as they consider whether and how any similar interim arrangements might operate there. This is a matter for Northern Ireland’s Ministers to determine.

DEFRA officials plan to discuss the interim arrangements with Welsh Government and would be pleased to do likewise with colleagues in Scottish Government.

A new Scottish watchdog, Environmental Standards Scotland, will be set up (posts are advertised).

Further information on the OEP is here.

Details of Scotland’s Advertisement are found here.

Environment Bill (UK)

The Environment Bill has come out of hibernation and is scheduled to have its House of Commons Committee Stage today, 3rd November.

This very wide reaching and important Bill is a re-introduction (with some changes) of the Environment Bill introduced by the previous administration, but not enacted.

I Blog posted in 2019 about it. To reprise – the Environment Bill comprises two thematic halves. The first provides a legal framework for environmental governance, including setting up the Office for Environmental Protection – the OEP (the new additional regulator in England, and Northern Ireland). The second makes provision for specific improvement of the environment, including measures on waste and resource efficiency, air quality and environmental recall, water, nature and biodiversity, and conservation covenants.

The Bill also makes further Brexit changes to REACH Legislation.

The Bill is a very lengthy document – an unofficial version of tracked changes (from the earlier Bill) is here.

Re the OEP – the government has tabled its own amendment to the bill to enable it to guide the OEP how to use its enforcement powers. Note, with the current Bill drafting, the government will itself choose the people in charge of the OEP – the chair and the board.

Depending on the rate of progress, I will commence reprising the earlier Blog posts I wrote, and adding new ones.