REUL Bill Further Update (UK)

I refer readers to my earlier blog post of this morning. The Report Stage debate is ongoing at the House of Lords – a number of aspects are being clarified –

(1) The Schedule (Revocation Schedule) is the list of those items that will be removed from the statute book at the end of this year. The Clause introducing this Schedule and removing the sunset clause and its extension is not yet voted on, but it has already been amended by vote to ensure each item on the said Revocation Schedule is referred to the Joint Committee of both Houses of Parliament for scrutiny, and if found to be a substantive deletion, is then debated on the floor of each House and if not approved for deletion, is then kept.

(2) All EU-era law will have its attribution context and it’s interpretative referencing to EU rights removed at the end of the year, regardless, so to that extent the sunset clause persists. Further amendment of this Clause 4 agreed by vote of the House of Lords will require the relevant minister to make a statement before the end of October 2023 to, as the case may be, each House of Parliament, the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly, identifying any rights, powers, liabilities, obligations, restrictions, remedies or procedures that the relevant national authority has decided not to restate, reproduce or replace before the end of 2023 and that it wishes to be revoked at the end of 2023. In this manner, Parliament & devolved legislatures rather than the Executive would have final say on revocation of rights, powers & liabilities of remaining retained law (assimilated law) at end of 2023.

(3) Any EU-era law not listed in the Revocation Schedule will be assimilated. And this assimilated EU-era law will be able to be changed, modified, including having its title changed and will certainly undergo minor amendment to remove its attribution/interpretative context up to 23rd June 2026 (listed in other clauses to the Bill). This date is not sunsetted. But the intention (as stated by Lord Callanan for the Government) is that the principle and the policy covered by the assimilated EU-era document is kept.

I may amend this Post further online. If I do, the reader must return to check the online version, as it will not be posted out to inboxes.

REUL Bill Update (UK)

This Bill (in my blog before) is now before the House of Lords, today and on Wednesday, for its Report Stage (one of the last stages before Royal Assent).

The UK Government recently confirmed it would delete the 31st December 2023 sunset clause, and its extension date in 2026, except for a list of EU-era documents. This list is now published – it would be an inserted Schedule to the Bill.

Find here, the collated amendments to the Report Stage of the REUL Bill, including the contents of the proposed new Schedule (of deletions by 31st Dec 2023). Note: the UK Government (Lord Callanan) has also proposed to enable devolved governments to remove items from his proposed Schedule.

On this Schedule (list of deletions by 31st Dec 2023) – (assuming Royal Assent of the list as is) –

(1) Removal of Annex 8 to the UK CLP document – here is a link to EU ECHA on the purpose of Annex 8. The UK CLP document is a version of the EU-era CLP (Classification, Labelling and Packaging) Regulation.

(2) Deletion of recent changes to Annex 1 of the EU-era PIC Regulation – a 2019 local instrument made changes to Annex 1 but these are not showing on the legislation dot gov dot uk website, and so we will need to produce a Cardinal Environment text consolidation for this PIC document. Annex 1 lists the chemicals covered by the EU-era PIC Regulation.

(3) Deletion of various EU-era instruments regulating establishing standardised application information when GMOs are to be deliberately released to the market or the environment. The UK now has a Precision Breeding Act regulating PBOs (Precision Bred Organisms) as distinct from GMOs (Genetically Modified Organisms). Under the new Act, the developer no longer “applies” but “notifies”. But developers still must “apply” under EU-era rules for the deliberate release of GMOs into the market/into the environment. It would appear DEFRA intends (by deleting the EU-era rules in this area) to change this to a “notification” process. The GMO register (of genetic modifications in GMOs) being lost in the REUL deletion process would be replaced by the PBO register under the Act. PBOs and GMOs would seemingly co-exist, in regulation terms.

The above would need to be achieved by issue of Statutory Instrument. Hopefully, further information will be available at that point.

We will amend the REUL List showing on client systems. and we will change the colour coding. However, we will retain the REUL List as a whole, since changes may occur to these EU-era rules over time, but not subject to a deadline.

Also note – the UK Government made two additional announcements (at the time of announcing the removal of the 31st Dec 2023 sunset deadline and it’s extension) –

(A) (EU-era) Working Time Regulations – these would be amended a bit, but the 48 hour week would be retained and also the combined leave provisions would still exceed the minimum in the EU.

(B) (EU-era) TUPE Regulations – these would be adjusted a bit. These rules are outside our remit.

UK REACH Extension (UK)

Last year (2022) the UK Government consulted on extending the registration deadlines, from the current deadlines, the first of which is as soon as October 2023.

The UK REACH Regulation contains transitional provisions that allow companies to submit initial ‘notification’ data in order to continue trading and then subsequently provide the full registration data. The transitional provisions apply to those that were registrants, downstream users or distributors under EU REACH before UK REACH came into effect. The current deadlines for completing this transitional registration process, depending on tonnage and hazard profile of the substance, are set down in Article 127P of UK REACH, and the first of these is 27 October 2023.

The UK Government published its consultation response in November 2022. It did agree to extend the deadlines. But the legislation to put this into effect is not yet issued.

We will notify subscribers to Cardinal Environment EHS Legislation Registers & Checklists, in the monthly Email Alert, as soon as this legislation has been enacted. In the meantime, questions about the deadlines should be addressed to the HSE.

The November 2022 UK Government consultation response is here.

Please note: the UK REACH legislative instrument (a Brexit amended EU-era document) is currently on the list for deletion in the REUL Project. However, we now understand that the REUL Project will remove a smaller number of EU-era documents than the current Bill wording requires, and possibly the sunset clause could itself be removed. We await the UK Governments tabled amendments to the REUL Bill, which will return to the Lords 15/17 May for its Report stage, for the detail on this.

REUL Bill Update (UK)

The FT is reporting this morning that the (government’s) BEIS Secretary of State has told Brexiter Tory MPs the sunset clause will be removed from the bill: approx 800 EU-era laws will be removed by 31st Dec with the majority retained.

We await publication of the government’s bill amendments for the detail. Subscribers to Cardinal Environment Legislation Registers & Checklists can see a working list of the large number of EU-era laws that would be deleted if the current REUL bill wording is not changed. We will update this list when further detail is available.

The REUL bill is due back in the Lords 15/17 May for the Report stage (the last stage before returning to the Commons and bill assent). Note: these dates are not published.

REUL Bill UPDATE (UK)

UPDATE : this bill (report stage) is back in the House of Lords list for 15/17th May 2023

*** the REUL bill has been removed from the list of House of Lords forthcoming business.

Next stage to be confirmed, but likely not before mid May.

Windsor Framework (Northern Ireland)

27th February 2023 saw political agreement reached between the EU and the UK on the Windsor Framework. The Windsor Framework is a set of new arrangements for agri-foods and medicines (and seeds, plants, trees and agri machinery; customs; VAT; and state aid) presently regulated by the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement. Further information is in this UK command paper here.

The Ireland/Northern Ireland Protocol (known as the Northern Ireland Protocol or NIP in the UK) entered into force on 1st February 2020, and its provisions applied from 1st January 2021.

Agri-foods

A general single certificate will be used for mixed loads of agri-food goods consumed in Northern Ireland.

Identity checks will be reduced to 5% (for agri-foods consumed in Northern Ireland) – specifically – from 1 October 2023, the frequency rate of identity checks will be 10% of all consignments of retail goods for consumption in Northern Ireland), and 8% by 1 October 2024 when all milk and dairy products are individually marked. From 1 July 2025, the frequency rate will be 5% of all consignments of retail goods, when all retail goods are individually marked.

Physical checks (as respects agri-foods consumed in Northern Ireland) will be carried out in conjunction with identity checks using a risk-based and intelligence-led approach.

Documentary checks will be carried out on all the general certificates accompanying the consignments of retail goods for consumption in Northern Ireland. These checks can be performed remotely and electronically.

UK public health standards (e.g. level of additives in food) will apply to goods moved for end consumption in Northern Ireland. Previously prohibited chilled meats, such as sausages, will be allowed.

Certificates will not be needed for organics and wine (consumed in Northern Ireland).

Agri-foods originating in the rest of the world may enter Northern Ireland (for consumption in Northern Ireland) through Britain when UK conditions are identical to EU ones (specific list of products, including New Zealand lamb and vegetables).

The UK will provide EU representatives with access to relevant UK IT databases.

Labelling “not for EU” will be deployed for agri-foods consumed in Northern Ireland.

The movement of retail goods will be monitored, with traceability and listing of the dispatching and receiving authorised establishments.

Facilitations will be suspended to address specific problems or systematic failures of compliance with the new arrangements.

It will not be a dual regulatory regime. UK public health standards will apply to agri-foods entering Northern Ireland from Britain for consumption in Northern Ireland. But EU requirements for animal health and plant health in Northern Ireland will remain fully in place.

The UK announced in December that it will construct permanent SPS Inspection Facilities. Deployment of SPS Inspection Facilities will be gradual – 1 October 2023 for the delivery of enhanced facilities and 1 July 2025 for the delivery of final facilities.

Re “not for EU” labeling – from 1 October 2023, prepacked meat and fresh milk will be individually labelled. Goods sold loose need only to be labelled at box level (e.g. apples) and easily visible signs would need to be placed next to the price tag on the shelves in the supermarkets. Posters would also be needed, placed in the supermarkets so that consumers know that the goods are not for EU. As of 1 July 2025, all retail goods (other than goods sold loose) will be individually labelled except those not subjected to official controls at border control posts in the EU (e.g.: confectionery, chocolate, pasta, biscuits, coffee, tea, liqueurs, canned fruit and vegetables, ketchup and similar shelf-stable products).

Medicines

In April 2022, the EU amended its legislation to ensure the uninterrupted supply of generic medicines from Britain to Northern Ireland.

Novel medicines will be authorised and placed on the market in Northern Ireland in accordance with UK rules and UK authorisation procedures only. EU rules and authorisations will not apply to these medicines anymore. In addition, prescription medicines placed on the Northern Ireland market will not carry the EU required unique identifier/barcode to distinguish them from those placed on the EU market.

Individual packs of all medicines placed on the Northern Ireland market will be labeled “UK only”.

Stormont Brake

This is a new mechanism that will allow the UK government, at the request of 30 Members of the Legislative Assembly in Northern Ireland (Stormont), in the most exceptional circumstances, as a last resort as set out in a unilateral UK Declaration (statutory instrument to be debated next Wednesday in Parliament) to stop the application of amended or replacing provisions of NIP Retained EU law, that may have a significant and lasting impact specific to the everyday lives of communities in Northern Ireland.

The Stormont Brake is wider than Agri-foods and Medicines.

The UK Institute for Government has an explainer here.

Next Steps

A meeting of the Withdrawal Agreement Joint Committee will take place to adopt the necessary measures, translating the relevant joint solutions into legally binding commitments by making full use of its powers under the Withdrawal Agreement.

The European Commission has already made proposals to the Council for a Union position as regards, amongst other things, the decisions that need to be adopted in that meeting.

In addition, the Commission has also tabled three legislative proposals laying down, respectively, new rules for the movement of retail SPS goods, pets, seed potatoes, plants for planting and agricultural machinery from Great Britain to Northern Ireland, and rules giving effect to the solution found in the area of human medicines as well as certain categories of steel subject to tariff rate quotas. Once all translations are finalised, they will be transmitted to the European Parliament and Council. Once adopted and entered into force, the Commission will adopt any necessary implementing acts.

As identified earlier, the UK will debate next Wednesday in Parliament, a statutory instrument to give effect to the Stormont Brake.

EU Law Revocation (UK)

Yesterday the REUL bill had its Third Reading in the House of Commons, and now goes to the House of Lords. To remind, it’s a UK bill extending to all parts of the UK. It’s unamended, save for a government amendment that will make any document surviving the process to be known as an “assimilated” instrument.

At Third Reading, the government confirmed the following –

(1) up to 4,000 existing instruments on the UK statute base could be affected by the REUL bill project, they said 3,200 instruments had already been verified as within the scope of the project (the government accepted its (public) dashboard shows 2,400, some already revoked)

(2) the (above) dashboard (here) hitherto moribund, would be updated possibly by the end of this month

(3) standards could rise, despite the REUL bill regulatory burden stipulations

(4) devolved governments could reissue the sunsetted laws themselves within their capacities (no announcement re Northern Ireland which has no current government)

Reminder: the REUL bill will sunset (revoke) in scope existing instruments by 31st December 2023. The bill enables a Minister or a devolved administration to exempt an instrument or a part of an instrument from sunset before that date, and thereby preserve it.

The bill gives an extension possibility, by regulation of a Minister (not a devolved administration) and only for an instrument or category of instrument specified in that regulation (not a general extension), and only to 23 June 2026.

The bill applies UK wide, but “Northern Ireland law” is out of scope.

It’s now accepted that 4,000 existing instruments are in scope.

As I posted yesterday, the Britain list (of in scope REUL bill affected instruments) is already loaded onto subscribers’ systems. I will now compile the Northern Ireland list, and it will show on subscribers’ systems shortly.

EU Law Revocation (Northern Ireland)

I had earlier written that the REUL Bill does not apply to Northern Ireland. This is incorrect. As currently drafted, the Bill applies to Northern Ireland, and so it’s accommodation of the pre-existing Northern Ireland Protocol is not presently understood.

The Bill is back in Parliament today for its Third Reading in the House of Commons.

I will commence compiling the list of laws pertaining to Northern Ireland affected by the Bill. This will load onto subscribers Northern Ireland systems shortly, and updates included in the monthly Email Alerts. This list will also identify those of the cohort also listed in the Northern Ireland Protocol. If a document is listed in the Northern Ireland Protocol, it also applies in Northern Ireland, even if identified for deletion under the Bill.

Note: the list pertaining to Britain and the devolved administrations in Britain (Scotland and Wales) is already loaded onto subscribers systems for these jurisdictions.

I will Blog post again, if the Government accepts any amendments arising from the Report stage, being debated later today.

The later stages in the Lords (of enactment of this Bill) could also make amendments, that may or may not be accepted by the Government. Further Blogs on the matter can be expected.

EU Law Revocation (Britain) UPDATE

The Retained EU Law (Revocation and Reform) Bill (I posted about recently) is in Committee stage, and the Public Bill Committee (the relevant Committee) yesterday has asked for submissions to it – here.

You can see from the link, the purpose of the Bill is to sunset (remove from the statute book) certain types of law by end 2023. In particular, the Bill will completely overhaul a body of UK domestic law known as “retained EU law” (REUL). This is a category of law that came into being as a result of the UK exit from the EU. It includes both Retained EU instruments, and certain domestic laws that gain their authority in a particular way.

Note: when the Committee concludes its consideration of the Bill it is no longer able to receive written evidence and it can conclude earlier than the expected deadline of 5.00pm on Tuesday 22 November.

As I have written in the last Email Alert to clients, we will commence listing the laws to be affected shortly, and this list will display on Cardinal Environment Limited EHS Legislation Registers and Checklists from Jan 2023 (earlier drafts will display earlier) and be subject to tracking through 2023.

A very considerable number of laws will be affected.

We expect most affected laws to be replaced with new laws, covering the same obligations. The tracking evident on Legislation Registers and Checklists will identify progress.

We do not expect that obligations will be removed altogether. If a law is removed without a replacement, we expect the obligations to be inserted by amendment into other pre-existing law, and the tracking will identify this.

Nonetheless, this is a complex process.

Habitats and Water Abstraction Court Case (UK)

On 6th September ’22, the High Court granted judicial review of an Environment Agency decision in 2021 to restrict their investigation of water abstraction impacts on Sites of Special Scientific Interest (SSSI) in Norfolk. The judgment is here. Local press is here.

The claimants were private citizens, farmers, living in the Norfolk Broads, freehold owners of a fen and other land, and concerned that water abstraction (for food production primarily) is causing irremediable damage to the environment, their own land, including ecosystems that are legally protected. Their intervention had been on going for 14 years, and had already been instrumental in the decision of the defendant, the Environment Agency, not to renew two abstraction licences. They successfully supported the Environment Agency’s decision to vary the two licences when that decision was challenged on appeal.

The Environment Agency was established by section 1 of the Environment Act 1995. By section 6(1)(b) of the 1995 Act, its duties include the promotion of the conservation of flora and fauna which are dependent on an aquatic environment. It is responsible for the grant (and variation and revocation) of licences for the abstraction of water.

Groundwater is water that is present in the ground. Many ecosystems (habitats and species) are dependent on a supply of groundwater. Groundwater may be abstracted (in the Norfolk Broads, from either the chalk, the crag, or the Sandringham sands) for use by the public water supply, industry, and agriculture. A licence is required to extract groundwater. Such licences may either be permanent (with no requirement to renew) or time limited (with the possibility of periodic renewal). The Environment Agency has power to revoke abstraction licences: sections 52 and 53 of the Water Resources Act 1991.

Once changes to an ecosystem are apparent, it may be too late to put matters right; by that stage, irremediable damage may have occurred. For this reason, Natural England (which has statutory responsibility for providing advice to the Environment Agency and others) is an interested party and had advised the Environment Agency in October 2020 that it was necessary to consider water supply in the Broads and to take any necessary action to restore ground and surface water levels. For the same reason, the Environment Agency itself recognises an obligation to apply a “precautionary approach to dealing with adverse effects” such that it must take appropriate and proportionate action to ensure that licenced water abstraction does not lead to adverse effects.

The Norfolk Broads is, in terms of rainfall, one of the driest parts of the country. Long- term average annual rainfall is between 600mm and 730mm. The low rainfall is exacerbated by periods of drought. The Broads also lie within an area where a great deal of irrigated fruit and vegetable production takes place. This is reliant on water abstraction. In the Bure and Thurne Reporting Area alone, more than 60 million litres of ground water and surface water are abstracted each day. So, there is a relatively small amount of rainfall, but a considerable amount of water is taken from the ground.

The claimants believe that the Environment Agency ought to review more broadly the impact of water abstraction to decide whether other licences should also be withdrawn or altered. The court case is the claimants challenge, seeking judicial review, of the Environment Agency’s refusal to expand the scope of an investigation that it had conducted in 2021 into the effect of 240 abstraction licences. That investigation concerned the impact of abstraction on just three Sites of Special Scientific Interest (SSSIs).

The Environment Agency accepts that it must have regard to article 6(2) of the pre-Dec 2020 European Habitats Directive. It maintained that it had done so and that it had, after taking it into account, reasonably decided to limit its investigation of the impact of the 240 licences to the three SSSIs. It disputed that article 6(2) has direct effect in domestic law beyond the obligation to “have regard” to it. Irrespective, it maintained that it was acting compatibly with the requirements of article 6(2).

The High Court determined that the GB Habitats Regulations (2017) continue to have effect in domestic law even though they are EU-derived domestic legislation: by means of sections 1B(7) and 2(1) of the European Union (Withdrawal) Act 2018 – specifically –

“The Habitats Regulations are thus retained EU Law: section 6(7) of the 2018 Act. It follows that they must be interpreted in accordance with retained EU case law and retained principles of EU law: section 6(3) of the 2018 Act.”

” Questions as to the meaning and effect of retained EU law (so, including the Habitats Regulations, and the obligation under article 6(2) which continues to have effect under section 4) must be decided in accordance with retained general principles of EU law: section 6(3)(a). The precautionary principle is a retained general principle of EU law: section 6(7).

The High Court decided on 4 matters –

(1) The ambit of the obligation, under regulation 9(3) of the GB Habitats Regulations (2017), to “have regard” to the requirements of the pre-Dec European Habitats Directive, including whether that mandates compliance with article 6(2) of that Habitats Directive.

Decision – “…. the duty to “have regard” here does not implicitly permit the Environment Agency to act in a way that is inconsistent with the Habitats Directive (in other words to have regard to the requirements of the Directive but then deliberately decide to act in a way that is inconsistent with those requirements). Rather, it recognises that the Environment Agency is one part of a complex regulatory structure and, depending on the issue, it may have a greater or lesser role to play.”

“The duty on the Environment Agency to have regard to the requirements of the Habitats Directive means that the Environment Agency must take those requirements into account, and, insofar as it is (in a particular context) the relevant public body with responsibility for fulfilling those requirements, then it must discharge those requirements. In other words, the scope for departure that is ordinarily inherent in the words “have regard to” is considerably narrowed.”

“It is clear from all of the contemporaneous evidence (including internal emails) that the Environment Agency has regarded itself as bound by the Habitats Directive and has sought to act in compliance with its requirements”

(2) Whether article 6(2) of the pre-Dec 2020 Habitats Directive imposes an obligation of a kind recognised by the Court of Justice of the European Union (“CJEU”) or any court or tribunal in the United Kingdom in a case decided before 2021.

Decision – “…. by reason of section 4 of the 2018 Act, article 6(2) continues to be recognised and available in domestic law and is to be enforced accordingly.”

Detail – “The parties agree that the question of whether article 6(2) is enforceable by a UK court (irrespective of regulation 9(3) of the Habitats Regulations) turns on the application of section 4(2)(b) of the 2018 Act, namely whether the obligations under article 6(2) are of a kind recognised by the CJEU, or any court or tribunal in the United Kingdom, in a case decided before 11pm on 31 December 2020.”

“… That test is satisfied once a case is identified that recognises article 6(2) as being enforceable in domestic proceedings. The statute expressly provides that it is not necessary for that to be an essential part of the court’s decision. It is not relevant to the section 4(2) test to enquire as to whether the case was correctly decided or was decided per incuriam. The position might be different if the decision had been overturned on appeal, or later overruled, but that is not the case here.”

(3) Whether the Environment Agency has breached article 6(2) of the pre-Dec 2020 Habitats Directive by limiting its investigation of water abstraction to the three SSSIs.

Decision – “The claimants have demonstrated a breach of article 6(2) of the Habitats Directive and a breach of regulation 9(3) of the Habitats Regulations.”

4) Whether the Environment Agency acted irrationally by limiting its investigation of water abstraction to the three SSSIs.

Decision – “Having committed itself to discharge that obligation, it was irrational for the Environment Agency not to expand the RSA programme without having any alternative mechanism in place that could ensure compliance with article 6(2). It follows that even if (contrary to the findings I have made in respect of issues (1) and (2)) article 6(2) is not enforceable by the High Court, the Environment Agency’s decision is flawed on common law grounds. On this basis, the claimants’ rationality challenge also succeeds.”

Summary

(A) The claimants showed that water abstraction may be causing deterioration of protected habitats or significant disturbance of protected species within The Broads Special Area of Conservation.

(B) The Environment Agency must (by reason of regulation 9(3) of the Habitats Regulations) have regard to the requirements of article 6(2) of the pre-Dec 2020 Habitats Directive. It must therefore be in a position to justify any departure from those requirements. The Environment Agency’s obligation under article 6(2) continues to be enforceable in domestic law: section 4 of the 2018 Act. That obligation must continue to be interpreted in accordance with the precautionary principle: section 6 of the 2018 Act.

(C) The Environment Agency must take appropriate steps to ensure that, in the SAC (pre-Dec 2020 European Habitat designation adopted in UK law and applied to areas of Norfolk, including SSSIs), there is no possibility of the deterioration of protected habitats or the significant disturbance of protected species as a result of licensed water abstraction. The Environment Agency has discharged that obligation in respect of three sites of special scientific interest. But it has not done so in respect of all sites within the SAC. That is because its review of abstraction licences was flawed and (at least in relation to permanent licences) it has not conducted a sufficient further review to address those flaws. It is therefore in breach of regulation 9(3) of the Habitats Regulations and article 6(2) of the Habitats Directive.

(D) Having decided to comply with article 6(2), it was not rational for the Environment Agency to limit its investigation to just three sites without undertaking further work to ensure compliance with article 6(2) across the entire SAC.

The High Court will issue Directions.

This was a court case in which the claimants relied on a pre-Dec 2020 EU Directive to gain relief. The judgment confirmed the direct influence of EU Law if, prior to 1st Jan 2021, those rules had been found by a court (the CJEU or a local UK court) to be directly enforceable against public authorities.

The Prime Minister has promised to remove the influence of EU Law by end 2023. Please note my Blog post of some days ago re the forthcoming EOR Regulations (which when enacted may alter or revoke the 2017 Habitats Regulations).

The new DEFRA Secretary has cited water security as a key objective, along with food supplies.