Rail Transport (UK from 1st January 2021)

Rules change from 1st January 2021 (as a result of Brexit).

The UK Department for Transport issued on 1st July, text applicable to Rail Transport from 1st January 2021. This text is here.

The UK text also refers the reader to the already existing European Commission Notice, updated 28 April, here.

Note the following (this is not an exhaustive list, please read the text behind the links).

Note the deadlines – 1st January 2021 and 1st January 2022. Note the different rules in Northern Ireland.

(1) EU-based operators must apply to the Office of Rail and Road (ORR) for documentation to run services in Britain – the necessary documentation is required by 31 January 2022.

For Northern Ireland, the UK text says “non-UK operators are currently not subject to a time-limited period”. This flows from the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement.

(2) The UK text says “It is likely that certificates and licences issued in the UK will not be valid in the EU from 1 January 2021”.

If this is the case, operators of cross-border services will be subject to the recognition implications set out in both UK and EU rules.

(3) The UK will continue to recognise certain EU-issued documents until 31 January 2022 for services in Britain. These are operator licences, safety certificates, and train driving licences.

For Northern Ireland, the UK text says “The 2-year time limit from 31 January 2020 on recognition of these categories of EU-issued documents does not currently apply to Northern Ireland.” Again, this flows from the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement.

Any future arrangements with France are expected to deal with the Channel Tunnel itself but not with the routes into continental Europe (beyond Calais-Fréthun). UK operators and train drivers will need to obtain additional licences and safety certificates to operate or work in the EU.

(4) The UK’s formal participation in the EU Agency for Railways (ERA) ended on 31 January 2020 and the UK is not seeking membership of ERA. The UK text says “The UK intends to put in place appropriate arrangements for regulatory co-operation with ERA where this is necessary to secure the safety of international rail services.”

(5) After 31 January 2022, operators with an EU operating licence will need to hold an ORR-issued licence to operate in Britain. Establishment in the UK is not necessary, but the UK ORR licence will need to have been applied for and obtained by 31 January 2022 to continue operating after that date.

Operators holding an ORR-issued licence that run domestic services in the EU will need to re-apply for an operator licence in an EU member state, consulting the relevant guidance and following the requirements from the EU or the relevant member state. The licence must be in place by 1 January 2021.

This is also the case for UK-based operators seeking to run new domestic services in an EU member state.

Operators of cross-border services between the UK and the EU holding an ORR-issued licence will need to re-apply for an operator licence in an EU member state. The licence must be in place by 1 January 2021.

(6) ORR-issued Part A and Part B safety certificates will be valid for UK-based domestic operators operating in Britain until their normal expiry.

EU established operators running a domestic-only service in Britain, with a Part A safety certificate issued in the EU before 31 January 2020, will be able to use these certificates until 31 January 2022 or until they expire – whichever is earlier.

Proposed changes to UK regulations will allow EU established operators running a domestic-only service in Britain with a Part A safety certificate issued in the EU before 31 January 2022 to run services in Britain until 31 January 2022. These changes are to be made in the Railways (Miscellaneous Amendments, Revocations and Transitional Provisions) (EU Exit) Regulations 2020. Subject to Parliamentary process, it is expected they will come into force on 31 December 2020.

This will also apply to operators running services with a single safety certificate issued under Directive (EU) 2016/798, which will be deemed equivalent to a UK Part A safety certificate during the period between 31 December 2020 (subject to the changes to regulations coming into force) and 31 January 2022.

If trains are operated in Britain on the basis of an EU-issued safety certificate, the relevant safety certification issued by the ORR is required by 31 January 2022 at the latest. An ORR-issued Part B certificate associated with an EU-issued Part A safety certificate or a Single Safety Certificate will expire alongside the parent certificate. An operator obtaining new safety certification will also be required to apply for and obtain a new Part B safety certificate.

Establishment in the UK is not required to obtain relevant safety certification issued by the ORR, but a UK address must be supplied in the application.

For Northern Ireland – the UK text says – “non-UK based operators running a domestic-only service with a Part A safety certificate issued in the EU are not currently subject to a time-limited recognition period.” Again, this flows from the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement.

Any EU operator seeking to run domestic services in Britain based on an EU-issued Single Safety Certificate, issued under Directive (EU) 2016/798 until 31 January 2022, will also have to obtain a Part B safety certificate from the ORR before it can do so.

UK-based operators running domestic services in the EU who hold an ORR-issued, or Northern Ireland-issued, Part A safety certificate need to obtain an EU safety certificate by 1 January 2021. This also applies to UK-based operators seeking to run new domestic services in an EU country.

Operators established in the UK who operate cross-border services and hold an ORR-issued Part A safety certificate will need to obtain EU safety certification by 1 January 2021.

(7) Entities in charge of maintenance (ECM) that maintain vehicles in the EU on the basis of an ECM certificate issued in the UK by the ORR or an accredited certification body need to apply for and obtain a new ECM certificate from a certification body in an EU country.

Vehicles used in international traffic between the UK and the EU also have the option of obtaining a certificate according to the legal framework of the Convention concerning International Carriage by Rail (COTIF). The validity of ECM certificates issued in the UK by the ORR or an accredited certification body will be unchanged for freight wagons running purely on the UK mainline railway. ECMs that hold a certificate issued in accordance with COTIF can continue using these certificates in the UK for operations involved in international traffic. ECMs may also rely on certificates issued in the EU in accordance with Commission Regulation 445/2011 to maintain freight wagons for use in domestic operations.

Proposed changes to regulations will allow ECMs to rely on certificates issued in the EU in accordance with the new Commission Implementing Regulation (EU) 2019/779 to maintain freight wagons for use in domestic operations. These changes are included in the Railways (Miscellaneous Amendments, Revocations and Transitional Provisions) (EU Exit) Regulations 2020. Subject to Parliamentary process, it is expected they will come into force on 31 December 2020.

(8) Drivers working on services in Britain, including cross-border services, and using licences and certificates issued in the EU up to the 31 January 2020, are able to drive trains on the basis of those licences until 31 January 2022 or until they expire – whichever is earlier.

Proposed changes to regulations will allow train drivers working on services in Britain, including cross-border services, and using licences and certificates issued in the EU up to the 31 January 2022, to use this documentation until the 31 January 2022. These changes are included in the Railways (Miscellaneous Amendments, Revocations and Transitional Provisions) (EU Exit) Regulations 2020. Subject to Parliamentary process, it is expected they will come into force on 31 December 2020.

From 31 January 2022, train drivers working in Britain will need to have obtained a UK train driving licence from the ORR to continue operating. The validity of train driving certificates is unaffected. However, operators must ensure that certificates held by newly re-licensed drivers (and their registers of those certificates) refer to the correct licence.

This means that, UK train driving licences are required by 31 January 2022.

Train drivers operating international services or driving domestic services in an EU member state on the basis of an ORR-issued train driving licence will need to re-apply for a train driving licence in an EU country. The new licence will need to be in place by 1 January 2021. Train drivers should apply for and obtain this as soon as possible, where they have not already done so.

(9) From 1 January 2021, the placing of interoperability constituents on the UK market will be based on a UK conformity assessment process, requiring compliance with applicable UK National Technical Specification Notices (NTSNs).

For Northern Ireland, the UK text says “Further updates may be provided in relation to Northern Ireland due to a review of obligations under the Northern Ireland Protocol.” This is the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement.

The UK text says “It is currently expected that an interoperability constituent placed on the EU market up to 31 December 2020 with a certificate of conformity from a UK notified body will be able to be used within the EU for the period of validity of that certificate in subsystems or vehicles authorised before 1 January 2021.”

(10) Vehicles first authorised in the UK from 1 January 2021 will need to be authorised in the EU as well before they can be used in the EU. Vehicle authorisations issued in the EU up to 31 December 2020 will remain valid in the UK if the vehicle is already in use here prior to that date.

From 1 January 2021 vehicles first authorised outside the UK will require an additional authorisation before they are first used in the UK. This system will be operated in accordance with the UK’s COTIF international obligations.

Immigration Bill (UK Brexit)

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill (a Brexit Bill) was introduced in the House of Commons today (5 March 2020). This Blog does not focus on immigration or social security policy or law, and this post will be the only one on this matter.

The purpose of the Bill is to end free movement of persons in UK law and make nationals from the European Union (EU), the European Economic Area (EEA) and Switzerland, and their family members, subject to UK immigration control.

The Government’s intention is at the end of the transition period, 31 December 2020, citizens of the EU, the EEA EFTA states of Iceland, Norway and Liechtenstein, and of Switzerland, and their family members, will require permission to enter and remain in the UK under the Immigration Act 1971.

The Bill protects the immigration status of Irish citizens once free movement ends.

It also contains provision for the Government (and/or, where appropriate, a devolved authority) to amend retained direct EU legislation relating to the social security co-ordination regime, which is retained in UK law by the EUWA 2018.

The Bill was first introduced in the Commons in the previous Parliament where, in the 2017-2019 session, it reached Report stage after completing a Public Bill Committee. The Bill fell when Parliament was prorogued before the December 2019 General Election. I posted about it at the time.

There have been no substantial changes to the content of the Bill since it was previously considered in the last Parliament. The only changes made are minor drafting clarifications in places, and updates to the list of retained EU law to be repealed to avoid duplication of changes already made through the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 (2019/745) which come into force on 31 December 2020.

The Government has legislated to protect resident EEA citizens and their family members through the EUWAA 2020, which protects the residence rights of EEA citizens and their family members who are resident in the UK by the end of the transition period.

The Government fully opened the EU Settlement Scheme (EUSS) to all EEA citizens and their family members on 30 March 2019. The Scheme is set out in the Immigration Rules to enable EEA citizens and their family members to apply for UK immigration status, so their current rights continue, and their status is clear when the new global points-based immigration system begins.

The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 made under the EUWAA 2020, provide individuals who apply under the EUSS or for an EUSS family permit or travel permit, after 31 January 2020, with a right of appeal against decisions affecting their entitlement to enter and remain in the UK under the EUSS, and against decisions in relation to applications for EUSS family permits or travel permits.

Those individuals who have a right to apply under the EUSS will have until 30 June 2021 to do so, provided they arrived in the UK by the end of 2020.

This period of six months between the end of the transition period (31 December 2020) and 30 June 2021 is referred to as ‘the grace period’ and is a requirement of Articles 18(1)(b) and 18(2) of the UK-EU Withdrawal Agreement (and equivalent provisions in the EEA EFTA and Swiss citizens’ rights agreements). Statutory instruments to be made under the powers in the EUWAA 2020 will protect EEA citizens and their family members’ existing rights of residence, entry and exit until then. These savings will also extend to those with pending applications to the scheme and those with unresolved appeals.

The Government will also bring forward a statutory instrument to ensure individuals who are in the UK as frontier workers by the end of the transition period can continue working from January 2021 onwards. Frontier workers are individuals who are resident outside the UK, but employed or self-employed in the UK.

Further information may be obtained from these Bill Explanatory Notes – here.

Medicines and Medical Devices Bill (UK Brexit)

The (Brexit) Medicines and Medical Devices Bill 2019-20 was announced in the Queen’s Speech on 19 December 2019. The second reading is taking place today.

A large proportion of the legal framework for medicines and medical devices in the UK derives from EU Directives and has been implemented into domestic legislation through section 2(2) of the European Communities Act 1972 (ECA). This enables EU Directives to be transposed into UK law through secondary legislation and has been used to create a body of regulations that include the:

• Human Medicines Regulations 2012

• Medicines for Human Use (Clinical Trials) Regulations 2004

• Veterinary Medicines Regulations 2013

• Medical Devices Regulations 2002.

At the end of the Transition Period, the European Union (Withdrawal) Act 2018 (see the Brexit Law List in subscribers’ systems) will have preserved these frameworks as “retained EU Law”. Since the ECA is now no longer available (due to the Act that implemented the Withdrawal Agreement), there is no other ‘general power’ for updating these regulations from 1st January 2021, except through the introduction of new primary legislation.

The Medicines and Medical Devices Bill seeks to address this regulatory gap through introducing regulation-making, delegated powers covering the fields of

* human medicines,

* clinical trials of human medicines,

* veterinary medicines, and

* medical devices.

Its purpose is to enable the existing regulatory frameworks to be updated at the end of the Transition Period.

The Bill has been drawn to create ‘targeted’ delegated powers which can only be exercised in relation to a restricted number of matters. The Government states in the Explanatory Notes to the Bill that it intends to use these powers to keep the existing regulatory frameworks updated, while also consolidating the enforcement regime for medical devices. In addition, the Bill will provide the Secretary of State with the ability to impose civil sanctions – as an alternative to criminal prosecution – for breaches of the medical device regime.

Further details are set out in this Commons Briefing – here.

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.

Agriculture & Fisheries Bills (UK Brexit)

Exit day is Friday (11pm UK time)

The Brexit Agriculture Bill is already published and has a its Second Reading in February. The Brexit Fisheries Bill is being published later today.

The Agriculture Bill relates to England predominantly (and some provisions apply in Wales and Northern Ireland). It mainly deals with agriculture supports (phasing in a new changed basis for these supports that rewards nature and environmental protection), and government collection of data from economic actors in the food supply chain, in England. It enables England, Wales and Northern Ireland to set their own food marketing standards. Separate Agriculture Bills are expected in Scotland, Wales and Northern Ireland.

The Fisheries Bill is [update 30th Jan] publicised by the UK Government – it is not yet in the list of Bills. It sets up a new system for marine and coastal fisheries management, gives new powers to Devolved Governments, and includes a set of UK-wide objectives to manage fisheries stocks sustainably (and a new objective to move towards “climate-smart” fishing in UK waters). It gives new powers to the Marine Management Organisation to give advice and assistance on sustainable fisheries, marine planning, licensing and conservation overseas.

Further Blog posts will be issued on these matters in due course.

Withdrawal Agreement Bill (UK Brexit)

Exit day is 31st January (next Friday)

The Withdrawal Agreement Bill is now enacted as the European Union (Withdrawal Agreement) Act 2020 (the UK 2020 Act). It amends the European Union (Withdrawal) Act 2018, and will be added to the Brexit Law List, in the EHS Legislation Registers & Checklists of subscribers systems.

The Bill was enacted unaltered. I already Blog posted about the Bill contents before Christmas. The Bill Explanatory Notes are here.

In brief :

(1) The EU-UK Withdrawal Treaty is now ratified on the UK side.

(2) The EU-UK Withdrawal Treaty is here (ratification is proceeding on the EU side).

(3) The UK must set up an Independent Monitoring Authority to oversee the citizen rights elements of the Withdrawal Treaty.

(4) Both sides must set up the Joint Committee, and its sub-committees, to manage implementation of the Withdrawal Treaty.

(5) A transition period will commence from 1st February and last until 31st December 2020 (the UK 2020 Act terms this an Implementation Period).

(6) The Withdrawal Treaty provides for a single extension of the transition period for up to one or two years, the final date for application for this is end June.

The UK 2020 Act prevents the application. So for an application to be made, a further Act would need to be enacted on this point.

(7) The Northern Ireland/Ireland Protocol to the Withdrawal Treaty commences at the end of the transition period. I blog posted already about this Protocol. The UK 2020 Act stipulates the Protocol will be enacted by Regulations made under the UK 2020 Act.

(8) During the transition period, nothing substantive changes for business or citizens, and the Brexit Law statutory instrument changes to UK domestic law are delayed until 1st Jan 2021.

Hence, subscribers existing EHS Legislation & Registers are relabelled Brexit Transition.

(9) From 1st Feb, the UK is free to make trade deals, these trade deals could alter domestic law.

(10) From 1st Jan 2021, the Brexit Law statutory instrument changes to UK domestic law have legal effect. These freeze UK domestic law implementation of EU law as at 31st Dec 2020. In practice, however, the vast bulk of the UK Brexit Law was enacted in March/April 2019, and so unless reissued, it reflects EU law at that date.

Some EU law will need implementing in 2020.

I wrote separate Blog posts about EU Law in UK 2020 and EU Law in UK 2021.

During 2020, please expect to see further Blog posts on this topic.

EU Law in UK 2021 (UK Brexit)

Exit day is 31st January (end of this month)

Implementation period completion day is 31st December (this is the end of the transition period)

The Chancellor speaking to the Financial Times, confirms there will be no dynamic alignment with EU Law after 2020.

I am not yet clear which laws will diverge, but please note the Brexit laws allow divergence, for example the Brexit Agriculture Bill provides for England, Wales and Northern Ireland to create their own marketing standards (Scotland will need to enact its own Brexit Agriculture Bill).

The EU Exit regulations (statutory instruments) we (Cardinal Environment) are consolidating into domestic law only deal with the pre-Brexit period to end Dec 2020.

It is the FT front page today (Saturday 18th January) and the lead on BBC online.

EU Law per se will not apply anyway. Note, there may be some long tail implementation left over from pre-Brexit that will be implemented.

We (Cardinal Environment) are already consolidating the EU Exit regulations into domestic law, and creating the Retained EU Law (EU Regulations, not Directives, that are adopted). Progress in this project can be seen by clicking the Brexit Consolidated Law List on the top right hand side of EHS Legislation Registers & Checklists homepages (both ENV and OHS).

We are working to the deadline of 31st December 2020 for completion of this project.

In addition, EHS Legislation Registers & Checklists will see the home page choice of ENV or OHS have additional Post-Brexit choices, and the existing links relabelled Pre-Brexit.

The Post-Brexit links will direct to shadow Registers & Checklists that will run from the end of Q1 to hit the end Dec 2020 deadline, for switch over to Post-Brexit.

Post-Brexit shadow Registers & Checklists running in 2020 will have Brexit Consolidated Law loaded (accessibility will stay from the main Brexit Consolidated Law list), and will display a changed Register layout.

Post-Brexit EHS Legislation Registers layout – EU Law will be moved from the top to below Guidance. We will still supply up to date EU Law to UK customers, but this is where it will be found. Retained EU Law will be displayed at the top of the Register.

Withdrawal Agreement Bill (WAB) (UK Brexit)

Exit day is 31st January 2020

The updated Withdrawal Agreement Bill (WAB) is now published – here.

The Explanatory Notes for the updated WAB are here.

Two clauses giving a role for Parliament, including relating to negotiating objectives for the next phase, are removed, these were Clauses 30 and 31.

Clause 34 and Schedule 4 on workers’ rights are also gone. Explanatory notes to the Queen’s Speech identify the government will bring forward an Employment Bill in this legislative period 2019-2020 (this Blog does not focus on employment law, save for health and safety aspects).

Among the 5 new clauses:

Clause 30 on Withdrawal Treaty Joint Committee dispute resolution reporting

Clause 33 banning Ministers from agreeing to an extension to the transition period (termed implementation period in the bill)

Clause 35 banning the use of written procedure in the Withdrawal Treaty Joint Committee

Clause 36 repealing spent enactments

Re: the briefed stories about letting lower courts depart from CJEU judgments, rather than just the Supreme Court and High Court of Justiciary – this seems to be catered for by a new subsection in clause 26(1) that gives Ministers a power to decide when lower courts can do this.

Another change is in clause 20. In October the WAB had what’s called a standing service provision, which authorises expenditure to the EU for sums owed under the WA treaty. It was time limited last time (to March 2021) but a Minister could extend it. No more can it be extended.

Last time the Bill only had provisions about House of Commons scrutiny of developments in EU law during the transition period (the European Scrutiny Committee could force debates in the Commons). It seems there is now the same role in the Lords for its EU Committee in clause 29. During the transition period, the Bill incorporates developments in EU law into UK Law and stays (delays) the effect of Brexit Law changing the UK statute base so it can stand alone.

It also seems like Schedule 2 has been amended a bit. It now looks like the Independent Monitoring Authority can delegate decisions about starting inquiries and legal proceedings (where it couldn’t before) and that its functions can be transferred more easily than before.

There may be other changes that are identified or that are accepted as the Bill is scrutinised.

The Second Reading is scheduled for tomorrow, which will be easily carried. The Bill will then go forward for scrutiny in the usual fashion once Parliament returns from its holidays.

Parliament will take its Christmas holidays at the end of tomorrow, to return again on 6th January.

The WAB will amend the EU (Withdrawal) Act 2018. In addition to bringing in the transition period to 31st December 2020 (known as the Implementation Period completion day) the fact of enactment of the WAB, will delay the deadline for application to the EU Settled Status Scheme to June 2021.

If there are further substantive changes to the WAB, I will post again, otherwise not.

Queens Speech (UK)

Exit day is 31st January 2020 – DExEU government department will close on that day

Of relevance (for this Blog) in the Queen’s Speech today are :

(1) the Environment Bill – this will be brought back with alterations

(2) a new Fire safety and Building safety bill or bills

(3) the withdrawal agreement bill and associated Brexit bills

Please look out for further Blog posts when the bill text is published.

Withdrawal Agreement Bill (WAB) (UK Brexit)

Exit day is 31st January 2020.

Implementation Period (IP) completion day is 31st December 2020 (this is the date of the end of the Withdrawal Treaty Transition Period).

The Queen’s Speech is tomorrow (Thursday), and I will post specifically on that, once the bills for the new legislative period are identified. Some bills will be of relevance, not least the Environment Bill.

The UK government has signalled it will bring back the WAB in an updated form on Friday, so that it can be enacted by the Exit day.

The EU (Withdrawal Agreement) Bill – the WAB – amends the EU (Withdrawal) Act 2018 to give effect to the UK-EU Withdrawal Treaty (Oct 2019 revision). It sets out provisions for an orderly exit, and includes a Transition Period – identified as an Implementation Period (IP) in UK Legislation.

The updated text is not yet published. I will post again on the WAB when the updated text is available.

The UK government has signalled it will insert provision for the Lower Courts to overturn decisions of the European Courts. This will affect the definition of waste, among other matters.

There may be other WAB updates of relevance also. Once I see the updated WAB text, I will include a list of the relevant changes in the Blog post.

Please look out for further Blog posts on the WAB.