New Fisheries Bill (UK)

The UK Government lodged its Brexit Fisheries Bill at First Reading on 25th October 2018. The Bill and its Explanatory Notes are here.

The Fisheries Bill (the Bill) will provide the legal framework for the United Kingdom to operate as an independent coastal state under the United Nations Convention on the Law of the Sea 1982 (UNCLOS) after the UK has left the European Union (EU) and the Common Fisheries Policy (the CFP). The Bill creates common approaches to fisheries management between the UK government and the Devolved Administrations, known collectively as the Fisheries Administrations, and makes reforms to fisheries management in England.

A couple of aspects to note :

(1) The Bill replaces the sustainability objectives currently in Art. 2 of the Basic Regulation of the Common Fisheries Policy (Regulation (EU) 1380/2013), making them objectives for the Fisheries Administrations or the Secretary of State.

(2) The objectives include the objective of securing that all UK fishing boats have equal access to UK waters. This is new.

(3) The Fisheries Administrations are required to publish a statement setting out the policies which would achieve or contribute to the achievement of those objectives. In addition, the Secretary of State is required to publish a statement setting out the policies that apply to England that achieve or contribute to the achievement of a number of objectives that apply only to the Secretary of State.

(4) The Fisheries Administrations are required to pursue the policies contained in the statements unless relevant considerations indicate otherwise.

(5) As expected for a Brexit Bill, when the UK leaves the EU, any access for EU and other foreign vessels to UK waters will be a matter for negotiation. The Bill revokes the EU legislation which currently provides for automatic rights for vessels registered in the EU to access UK waters. By revoking provisions in the Fishery Limits Act 1976, it removes the need to designate which countries’ vessels are able to fish in UK waters and introduces a new requirement that foreign vessels fishing in UK waters must be authorised to be in UK waters under international agreements or arrangements or must have a licence issued by a Fisheries Administration.

(6) The Bill revokes, replaces and clarifies existing powers for the Fisheries Administrations to license fishing in UK waters. For the most part, this is a consolidation of existing powers but the Bill makes several significant changes. It provides for equal access for UK vessels in UK waters by clarifying that licences issued by any Fisheries Administration are effective throughout UK waters. It also requires for the first time that foreign vessels are prohibited from fishing in UK waters unless they have a licence issued by a Fisheries Administration.

(7) As expected for a Brexit Bill, the Bill revokes EU legislation which currently sets UK fishing opportunities (quotas) and gives the Secretary of State powers to determine the UK’s fishing opportunities. Before doing so he must consult the other Fisheries Administrations. He must also make certain notifications, including a notification to Parliament.

(8) The Bill also introduces powers to enable annual fishing opportunities (quotas), which the Secretary of State can allocate to the English industry, to be sold to those in the English industry (attached to named English ports). This is new.

Agriculture Bill 2017-19 (UK)

UPDATE : initial reaction from Scottish Ministers – here.

The Brexit bill – the Agriculture Bill 2017-19 was published today, its second reading is tomorrow. The document is here.

The Agriculture Bill (“the Bill”) will provide the legal framework for the United Kingdom (UK) to leave the Common Agricultural Policy (CAP) and establish a new system based on public money for public goods for the next generation of farmers and land managers. It is the first Agriculture Bill to be published in 70 years.

The Agriculture Bill includes the following:

(1) Powers to give financial assistance and move towards a new system based on paying public money for public goods. Such payments may encompass (but are not limited to) environmental protection, public access to the countryside and measures to reduce flooding.

(2) Powers to collect and share data from those within or closely connected to the agri- food supply chain. The data collected and shared under these provisions will help farmers and producers increase productivity, help producers to manage risk and market volatility, and support animal and plant health and traceability.

(3) Powers to make regulations setting and amending marketing standards for agricultural products and to make provision about the classification of carcasses by slaughterhouses.

(4) Provisions to create a domestic system of recognition of Producer Organisations to encourage collaboration amongst growers. These provisions will provide for exemptions from competition law for recognised organisations.

(5) Provisions for the Secretary of State to make regulations imposing obligations on first purchasers of agricultural products in relation to contracts with producers. This is aimed at protecting producers and consumers from unfair trading practices.

Once the Bill becomes an Act of Parliament the following provisions will extend to England and Wales only:

(1) Part 1 which relates to new financial assistance powers
(2) Part 3 which relates to the collection and sharing of data
(3) Clause 20 which relates to the power to make regulations for marketing standards and carcass classification.

Schedule 3 extends mostly identical powers to the Welsh Ministers as those conferred on the Secretary of State in Parts 1-5 of the Bill.

Schedule 4 extends similar powers to DAERA (Northern Ireland) as those conferred on the Secretary of State in Parts 2-5 of the Bill.

The rest of the Act will extend to the UK. This is because the relevant provisions:

(a) Relate to a reserved matter; or
(b) Amend, or give powers to amend retained EU legislation which will extend to the UK. Such provisions may, however, apply more narrowly to a particular jurisdiction.

Annex A gives more information. Please refer to it for details re Scotland.

Technical Notices (UK Brexit Preparedness)

UPDATE : government letter to the health care sector (this calls for stockpiling to ensure continuity of supply) – here.

The UK government has today issued its first tranche of Technical Notices in the subject area of UK Brexit Preparedness. These Technical Notices create requirements for Government to have online portals and other IT in place, and for stakeholders to use these, and make other arrangements.

The Technical Notices are here.

Please read the Notices carefully, any questions, please email them directly to me.

European Union (Withdrawal) Act 2018 (UK)

This is my second post in a few days. I updated my earlier post online. I’m posting again, because this post will be emailed to you (and it contains additional information).

The Act received Royal Assent on 26th June 2018, and today (27th June) the Explanatory Notes are published – here.

In due course, I will compile this Act, together with the other Brexit Acts, as Brexit Acts (not Brexit Bills) and Statutory Instruments, linked on the top right of the index page to the Cardinal Environment ENV Legislation Registers, and also on the top right of the index page of the Cardinal Environment OHS Legislation Registers.

Only when the many Brexit Acts and Statutory Instruments are enacted, and it’s clear how the statute base is being affected, will the laws be input into the Registers.

A couple of things to note :

(1) the 1972 European Communities Act (that gives authority for EU law in the UK) is repealed on exit day – exit day is 29th March 2019 at 11pm – the section providing for this repeal is not commenced on Royal Assent – a further Commencement Order is required (this will be published),

(2) existing domestic legislation (what I call local legislation) which implements EU law obligations is termed ‘EU-derived domestic legislation’, and is also referred to in the Explanatory Notes as ‘preserved legislation’,

[I had a plan to denote EU-derived domestic legislation in the Cardinal Environment EHS Registers, but this will clutter the Registers]

EU-derived domestic legislation will remain on the statute base after the UK leaves the EU. This includes legislation that is passed or made but not yet in force on exit day.

(3) EU legislation in force before exit day that sets out forward dates, is incorporated into domestic law, and those dates stand. This is section 3 of the Act.

Per the Explanatory Notes –

87  Under section 3, direct EU legislation is only converted and incorporated into domestic law “so far as operative immediately before exit day”. Subsection (3) clarifies what this means. The default position in section 3(3)(c) is that direct EU legislation is operative if it is in force immediately before exit day. However, some EU legislation applies in a staggered way over time, and the Act ensures that, so far as a relevant instrument has entered into force and applies before exit day, it will be converted into domestic legislation. It is only if the provision is “stated to apply” from a later time (see section 3(3)(a)), and that time falls on or after exit day, that the provision would not fall within the ambit of the section. So, where there is a stated date of application, and this date falls after exit day, the provision is not converted. This means that, provided it is not expressly stated to apply from a date falling on or after exit day, EU legislation which is in force before exit day will be converted even if it has some effect which crystallises after exit day.

(4) section 8 enables deficiencies to be corrected, I do expect a raft of new statutory instruments, and this is why I am corralling the Brexit Acts and Statutory Instruments into a single link until I understand how the existing statute base in the Registers is affected,

(5) section 16 obliges the DEFRA Secretary to publish draft legislation setting out listed environmental principles,

Per the Explanatory Notes –

171  This section requires that, six months after Royal Assent of this Act, the Secretary of State must publish draft legislation which sets out a list of environmental principles (which are listed in subsection (2)). The draft legislation must place a duty on the Secretary of State to publish a policy statement in relation to the application and interpretation of those principles which, when circumstances to be set out under the legislation apply, ministers of the Crown must have regard to in making and developing policy.

172  The draft legislation must also define environmental law and make provision for the establishment of a public authority with functions for taking proportionate enforcement action (including legal proceedings if necessary) where the authority considers that a minister of the Crown is not complying with that environmental law.

173  The duty on the Secretary of State to publish a draft Bill applies in relation to England, and to reserved matters across the rest of the UK.

UK exits the EU (DEFRA preparations)

Ministerial approval is given [prior to the EU (Withdrawal) Bill Royal Assent] to the following projects – to ensure preparation for all negotiation outcomes :

(1) Delivery of a new national import control system for animals, animal products and high risk food and feed. Scheduled to commence building: mid-January 2018. Estimated cost before Royal Assent: £7m.

(2) Delivery of new IT capability to enable registration and regulation of chemical substances placed on the UK market. Scheduled to commence building: February 2018. Estimated cost before Royal Assent: £5.8m.

(3) Delivery of systems for the licensing and marketing of veterinary medicines. Scheduled to commence building: end-January 2018. Estimated cost before Royal Assent: £1.6m.

(4) Development of a new catch certificate system for UK fish and fish products being exported to the EU on Exit. Scheduled to commence: building end-January 2018. Estimated cost before Royal Assent: £1.0m.

(5) Development of a UK system to manage the quota of fluorinated gases and ozone depleting substances required under the UN Montreal Protocol. Scheduled to commence: March 2018. Estimated cost before Royal Assent: £0.5m.

(6) Development of data exchange arrangements to identify the movement of EU and third country vessels in UK waters and the movement of UK vessels in EU or third country waters. Scheduled to commence: April 2018. Estimated cost before Royal Assent: £0.1m

Note : regarding start dates – the Permanent Secretary letter is dated 18 January 2018 – here.

The Civil Service World article dated the next day confirms approval was given on the 18 January 2018 for these projects. The CSW article is here.

DEFRA announcements (England)

(1) DEFRA is consulting on a new air quality strategy – the consultation is here.

Note : House of Commons Briefing Paper (March 2018) entitled Brexit and Air Quality – here.

And European Commission refers (17 May 2018) the UK (and others) to the CJEU for infringement of EU air quality law – the press release is here.

(2) a new Tree health resilience strategy 2018 is launched – this is here.

(3) a National Parks review is announced – the press release (which links to the terms of reference) is here.

UK exits EU (environmental principles & governance)

A major role carried out by the European Court is oversight of the enforcement of European Union Treaty principles embodied in EU environmental law.

The UK authorities had announced a new body would be set up to replace the role of the European Court in this respect.

This morning, the consultation document is announced for this new body (applicable to England only). This document is here. Consultation lasts until 2 August.

The new body will be established by the Environmental Principles and Governance Bill (a Brexit bill – England) that will be brought forward in the Autumn. The consultation addresses the development of this Bill.

The consultation seeks input on some of the key questions around how environmental principles should be embedded into law, public policy-making and delivery, and what functions and powers the new environmental watchdog should have to oversee environmental law and policy.  The consultation document is set out in three parts:

Part 1 – Environmental Principles

Part 2 – Accountability for the Environment

Part 3 – Overall Environmental Governance

NOTE : this post will be UPDATED when the UK authorities respond to the consultation. If you are interested in developments, please make a note to return to this post in the Blog, a separate alert will not be sent out.