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.

EU Law Revocation (Britain)

Yesterday 22 September ’22, the UK government introduced its bill to revoke and reform en masse (by 31 Dec 2023) retained EU law and domestic subordinate law documents (statutory instruments – Regulations) that draw their power from sections of the 1972 European Communities Act (specifically section 2(2) or paragraph 1A of Schedule 2).

The revocation and reform bill is here.

I will be outlining in the next (September) Email Alert how we will deal with this in Cardinal Environment EHS Legislation Registers & Checklists (Britain, England, Wales and Scotland).

Re OHS – the impact will be felt on Equipment Regulations (not LOLER), and Product Regulations (including obviously UK REACH and safety data sheets). Also the Working Time Regulations.

But Equipment Use Regulations, COSHH, DSEAR, Carriage of Dangerous Goods, the Management Regulations and the Workplace Regulations will be unaffected.

Re ENV – the impact will be substantial in Waste. Also EIA and Habitats and Species Regulations will be re-written (I had already written about this in the blog). Note the Office for Environmental Protection (England) has an investigation underway into the EIA, SEA and Habitats Regulations. This link gives access to written evidence to the Levelling Up and Regeneration Bill Committee, which gives further information.

ODS and F-Gas similarly will require new domestic law.

31st December 2023 is the sunset date written into the Bill.

We will set up a document tracking list, with traffic light colours, as we did with the Brexit law changes that operated from 1st Jan 2021 (the Brexit Consolidated Law list).

It is expected that the relevant government departments will commence review of each affected instrument, and that “reformed” domestic law will be enacted. The new document tracking list will identify progress, to customers of our Cardinal Environment EHS Legislation Registers & Checklists. The Email Alerts will Alert of enactment of new instruments.

This is a complex area. If there are further developments, for example to the sunset date, then I will issue further blog posts.

The EU Law revocation extends to all parts of Britain, but ENV legislation is delegated, so variations might emerge (particularly on timescales).

If you have questions, and you are a client, please send your questions to me by email. Questions asked on this blog post will not be answered.

The above is NOT a full description of the instruments affected. Clients will have the document tracking list inserted in their systems in Jan 2023. The specifics of how we will handle this will be in the September Email Alert (as mentioned above).

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 2018specifically –

“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.

Live Animal Exports Ban (Britain)

Being able to ban live animal exports is considered a Brexit win (although note EU Animal Health rules also moved on since 31st Dec 2020). Animal welfare is a devolved policy area. The UK and Welsh governments consulted on the matter, and the Scottish government consulted separately. The UK and Welsh governments now publish their consultation response, and this is in line with proposals by the Scottish government – here.

The proposals will not apply to journeys under 65km. The proposals are –

* A ban on the export of livestock (cattle, sheep, goats and pigs) and horses from England, Wales and Scotland for slaughter and fattening. Exports for slaughter and fattening from England, Wales and Scotland will be prohibited whether the animals originate from or are travelling through England, Wales and Scotland.

The ban will apply to all exports of livestock and horses where an animal is exported to the place of destination in order to be fattened for subsequent slaughter.

The ban will be achieved via the Animal Welfare (Kept Animals) Bill (Clause 42) – here.

The proposals also cover maximum journey times, temperature and comfort during travel and other matters. These proposals could be achieved via Statutory Instruments or guidance, or both.

Framework for Better Regulation (UK)

The government yesterday initiated a consultation on its plans to reform its Framework for Better Regulation. The consultation is here.

Better Regulation is a principles-led process of evaluating legislation before it’s proposed and enacted, and then after it is enacted. Better Regulation also exists at EU level.

In the UK, (per the explanation in the document) –

Better Regulation is designed to ensure that government regulation is proportionate and is only used where alternative non-regulatory approaches would not achieve the desired policy outcomes. The framework enables ministerial decisions to be based on robust analysis of the costs and benefits of different options, including the direct costs on businesses, and means that decision making is clear and transparent. The framework helps ensure that new burdens are only imposed where there is clear evidence they will generate sufficient benefits for society, and that measures are implemented and enforced in a way that is easier for businesses to deal with.

The revisions propose increasing the outcomes orientation of regulation –

(1) delegating more power and discretion to the UK’s regulatory bodies, removing many of the detailed rules in the existing statutory frameworks to make them less prescriptive (replacing them with outcomes to be achieved), and allowing the regulatory regime to be shaped more by case law.

(2) Parliament should set out only what is prohibited or the outcomes to be achieved, in plain English, and set out any parameters within which regulators would need to operate to meet these outcomes, but then giving regulators appropriate powers and discretion over how to do so, rather than legislation setting out all of the rules that businesses have to comply with in detail.

(3) regulators would still set out some detail in rules and guidance but would have flexibility to change these without having to petition the Government to introduce further legislation. This would give regulators the freedom to regulate based on whether the outcomes set by Parliament are being achieved rather than whether a particular rule has been followed. Where regulators provide for detailed rules or processes, they would also be able to provide for exemptions and waivers to reach the outcomes set out by Parliament in the most sensible way.

The Government wants to identify areas where the envisaged benefits of a move to a less codified, more common law focused approach are likely to be the greatest, and areas where the Government should be more cautious about adopting such an approach.

The government is also seeking responses on its proposals to replace the Precautionary Principle with a Principle of Proportionality. Pages 21 and 22 in the consultation document set this out. This would be a major departure.

Please read the other sections of the document for further questions.

Consultation ends 1st October 2021.

[if the focus changes to a more outcomes-led Regulation in the UK (Britain) in this manner, then we would, in Cardinal Environment, need to start analysing and reporting on case law (i.e. the common law as this document puts it) in this jurisdiction]

European Union (Future Relationship) Act (UK)

This 31 Dec 2020 dated Act (a Brexit Law) implements the Trade and Cooperation Agreement (TCA – a free trade deal) that was agreed with the European Union (EU) in the closing days of 2020. Here

I wrote blog posts earlier on the content of the TCA. The primary purpose of the TCA is to reduce tariffs and to deal with Customs and VAT in relation to GB-EU trade from 1st Jan 2021.

The Future Relationship Act 2020 also implements the Agreement on Nuclear Cooperation and the Agreement on Security Procedures for Exchanging and Protecting Classified Information, as agreed between the UK and the EU.

S.29 gives the general implementation –

Existing domestic law has effect on and after the relevant day with such modifications as are required for the purposes of implementing in that law the Trade and Cooperation Agreement or the Security of Classified Information Agreement so far as the agreement concerned is not otherwise so implemented and so far as such implementation is necessary for the purposes of complying with the international obligations of the United Kingdom under the agreement.

S.31 gives the implementing power –

(1) A relevant national authority may by regulations make such provision as the relevant national authority considers appropriate—

(a) to implement the Trade and Cooperation Agreement, the Nuclear Cooperation Agreement, the Security of Classified Information Agreement or any relevant agreement, or

(b) otherwise for the purposes of dealing with matters arising out of, or related to, the Trade and Cooperation Agreement, the Nuclear Cooperation Agreement, the Security of Classified Information Agreement or any relevant agreement.

(2) Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).

(3) Regulations under this section may (among other things and whether with the same or a different effect) re-implement any aspect of—

(a) the Trade and Cooperation Agreement,

(b) the Nuclear Cooperation Agreement,

(c) the Security of Classified Information Agreement, or

(d) any relevant agreement,

which has already been implemented (whether by virtue of this Act or otherwise).

(4) But regulations under this section may not—

(a) impose or increase taxation or fees,

(b) make retrospective provision,

(c) create a relevant criminal offence,

(d) amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or

(e) amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998 (unless the regulations are made by virtue of paragraph 27(b) of Schedule 5 to this Act or are amending or repealing any provision of those Acts which modifies another enactment).

(5) Subsection (4)(b) does not apply in relation to any regulations under this section which are for the purposes of replacing or otherwise modifying, or of otherwise making provision in connection with, the provision made by section 37(4) and (5).

Schedule 5 sets out the rules for regulations made under this Act (including specifics about the procedure to be followed).

Additionally, there are –

(1) powers re information exchange on non-food Product Safety

As part of the TCA, the UK and the EU agreed a Chapter on Technical Barriers to Trade (‘TBT’) and related annexes, including on medicinal products; motor vehicles, equipment and parts; and chemicals, as well as for organic products and wine.

The TBT chapter applies to the preparation, adoption and application of technical regulations, standards, conformity assessment procedures, and market surveillance, while the annexes make provisions for more detailed arrangements in the relevant sectors. The TBT chapter and annexes include, amongst other things, provision relating to international standards and provision for the UK and EU to share information on non-food product safety.

The Act creates two gateways: one for the UK to share this data with the EU, and another to share information received from the EU in the UK.

The Act permits the sharing of non-food Product Safety information that is not in the public domain, for a permitted purpose, such as traceability information about businesses in the supply chain. A permitted purpose is where the sharing of the information is to ensure the protection of consumers, health, safety, or the environment.

(2) powers re international standards

The TBT Chapter covers international standards. For the purposes of the TBT Chapter (and the World Trade Organization (‘WTO’) TBT Agreement), standards are documents approved by bodies recognised for standardisation, which provide rules, guidelines or characteristics for products or related processes, with which compliance is voluntary. International standards are approved by international standardising bodies.

On 31st Dec 2020, most areas of UK product legislation are retained EU law (subject to Brexit amendments – we term this ‘Brexitised’). Retained EU law enables the Secretary of State to designate certain standards in respect of Britain (Northern Ireland continues to follow EU Law) so that they give rise to the rebuttable presumption of conformity with requirements set regulations.

Article TBT .4(3) of the TCA requires the UK and the EU to use international standards as the basis for their technical regulations, except where these would be ineffective or inappropriate to meet the legitimate objectives pursued. A similar requirement applies in the WTO Agreement on TBT. Article TBT.4(4)-(5) defines relevant international standards for the purposes of the TBT Chapter of the TCA.

The Act amends retained EU law to enable this commitment to be met, by providing extra clarity that international standards can be used among the standards which the Secretary of State may designate for the presumption of conformity with manufactured goods regulation in Great Britain.

The Act enables UK Ministers to designate an international standard directly where that is in the UK’s interests.

[the result of this is to add the Future Partnership Act to the list of instruments amending domestic law and retained EU Law – please consult the Cardinal Environment Brexit Consolidated Law list for progress – this is in subscribers’ EHS Legislation Registers & Checklists]

(3) powers re control of goods movement

Customs authorities control the movement of goods across borders for purposes other than tax, including the protection of public health and safety, national security and the protection of the environment, including plant and animal health. Standards in the area of safety and security can be set both domestically and at international level. This is reflected in the objectives of the Customs and Trade Facilitation chapter of the TCA, which commit the parties to cooperate to achieve public policy objectives, and commit the UK and the EU to maintain consistency with international instruments and standards applicable in the area of customs and trade.

The Act gives HMRC the power to amend retained EU law in the area of safety and security, to ensure the UK can keep pace with international standards governing the movement of goods and meet TCA commitments.

Trade Bill (UK)

This is a Brexit bill (a bill that results from the UK’s departure from the EU). The bill describes itself as an instrument – to make provision about the implementation of international trade agreements; to make provision establishing the Trade Remedies Authority and conferring functions on it; and to make provision about the collection and disclosure of information relating to trade.

The bill is nearing Royal Assent (passage into law as an Act). As an Act, it will –

(1) give Ministers the power to ensure that the UK can implement procurement obligations that will arise from the UK acceding to the Agreement on Government Procurement (GPA). The GPA is a plurilateral agreement within the World Trade Organization (WTO) framework.

This power will allow the Government and the devolved authorities to use the negative resolution procedure (a procedure that allows a Minister to sign an instrument into law immediately without debate) to implement changes to domestic law to meet and enforce obligations arising from its independent membership of the GPA.

(2) give Ministers the power to implement continuity UK trade agreements with partner countries with which the EU has existing trade agreements as at 31 January 2020.

This power will allow the Government and devolved authorities to use the affirmative resolution procedure (a procedure that allows a Minister to sign an instrument into law after a short debate that cannot amend the instrument) to implement the changes to domestic law which will be necessary for the UK to meet obligations flowing from these agreements.

The power cannot be used to implement a free trade agreement with the USA or China.

The current state of agreed UK continuity trade agreements is here.

[in addition, the UK has agreed a Free Trade Deal with the EU, given effect by the European Union (Future Relationship) Act 2020 – implementing instruments also flow from it – as they do from the pre-existing Withdrawal Acts 2018 and 2020 – we term this Brexit law]

(3) establish the Trade Remedies Authority (TRA), a new organisation to be set up to deliver a UK trade remedies framework, and to enable the TRA to provide advice, support and assistance to the Secretary of State in connection with the conduct of international disputes, other functions of the Secretary of State relating to trade and functions of the TRA.

The TRA may also provide advice, support and assistance in relation to international trade and trade remedies to others as it considers appropriate.

(4) give a power to HM Revenue and Customs (HMRC) to enable HMRC to collect information on behalf of the Government to confirm the number of exporters of goods and services there are in the UK, and to enable the Government to identify those exporters for trade promotion purposes.

(5) create a power to establish a data sharing gateway between HMRC and other public and private bodies, so that those bodies, including the Department for International Trade, can discharge their public functions and access relevant data for research, monitoring and evaluation.

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.