Changes to Energy Labels and Ecodesign (UK)

UK guidance changed to confirm that (effective 1st March) EU type re-scaled energy labels would apply throughout the UK, not only in Northern Ireland (via the IRL/NI Protocol). This was in yesterday’s monthly email alert.

The law has still to catch up, but today the BBC confirms (1 March) EU repairability and spare parts obligations will be applied in Britain. They anyway applied in Northern Ireland (Protocol).

The specific product EU Law in this area is in the form of EU Regulations directly applicable in member states (and Northern Ireland via the Protocol).

The BBC link is here.

A consultation was held (closing date November 2020) – here.

Energy labels apply to a list of mainly white household goods, but also computer screens. Ecodesign stipulations apply to a wider list of electric and electronic products.

Plastic Packaging Tax 2021 (UK)

A new tax will apply to plastic packaging manufactured in, or imported into the UK, that does not contain at least 30% recycled plastic. Plastic packaging is packaging that is predominantly plastic by weight.

It will not apply to any plastic packaging which contains at least 30% recycled plastic, or any packaging which is not predominantly plastic by weight.

Imported plastic packaging will be liable to the tax, whether the packaging is unfilled or filled.

Manufacturers and importers of less than 10 tonnes of plastic packaging per year will be exempt.

The tax will take effect on 1 April 2022.

Legislation will be introduced in Finance Bill 2021 to establish the Plastic Packaging Tax.

The key features of the tax, will include:

• £200 per tonne tax rate for packaging with less than 30% recycled plastic

• a registration threshold of 10 tonnes of plastic packaging manufactured in or imported into the UK per annum

• the scope of the tax by definition of the type of taxable product and recycled content

• the exemption for manufacturers and importers of small quantities of plastic packaging

• who will be liable to pay the tax and need to register with HMRC

• how the tax will be collected, recovered and enforced

• how the tax will be relieved on exports

The relevant extracts of the Finance Bill 2021 when enacted, will be added to EHS Legislation Registers and Checklists.

The policy paper is here.

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.

Energy White Paper (UK)

I Blog posted this morning re the UK ETS. Publication of the UK ETS (which was already provided for in Law) is contained in the Energy White Paper (published today).

The Energy White Paper (CP 337) “Powering our Net Zero Future” is here.

It is a long document (170 pages) with many promises for consultations and targets.

A few I have singled out –

(1) significant strengthening of the Energy Performance Certificates system with an EPC target of C for domestic buildings by 2035 (and B for rented non-domestic buildings by 2030). Since most domestic properties are D or below, this is huge and will necessitate new law. Involvement of mortgage lenders is also being consulted on.

(2) re the UK ETS no further detail is given (other than is set out in my blog post this morning)

(3) an Industrial Decarbonisation Strategy to be published in Spring 2021

(4) targeting 40GW offshore wind by 2030, including 1GW floating wind, plus growing the installation of electric heat pumps from 30,000 per year to 600,000 per year by 2028

(5) commitment to make the UK continental shelf a net zero basin by 2050. This will necessitate a new legal approach

(6) commitment to join the UK to the World Bank’s ‘Zero Routine Flaring by 2030’

(7) a new strategy for the Oil & Gas Authority by end of 2020

(8) review of the Offshore Petroleum Regulator for Environment and Decommissioning

UK Internal Market Bill (UK)

A highly complex bill was introduced yesterday at First Reading. This bill is here.

Explanatory Notes for the bill are here.

The Institute for Government has a useful explainer here.

I Blog posted about the possibility of an Internal Market Bill earlier this year. In the meantime, the UK Government published a policy paper and conducted a short consultation.

From 1 Jan 2021, the UK government and the devolved administrations will no longer be collectively bound by EU law. As powers over key policy areas return to the UK government and the devolved administrations, there is a possibility that different parts of the UK may in future make different rules. This could create barriers to trade between constituent parts of the UK.

The UK Internal Market (UKIM) Bill would rely on the principles of mutual recognition and non-discrimination to ensure there are no new barriers for businesses trading across the UK.

The UK government argues that this bill will be necessary to underpin the functioning of the UK internal market after the end of the transition period – but the Scottish and Welsh governments are opposed to this approach. Instead, they would prefer to manage any possible new barriers to trade through mutually-agreed common frameworks in specific policy areas.

The government is also using this bill to give ministers powers to amend how the UK could implement the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement – if it can’t reach key decisions with the EU. The government has said that it will use the forthcoming Finance Bill (not yet published) to give ministers further powers with relation to the Northern Ireland protocol.

Clauses set out new monitoring responsibilities of the internal market for the Competition and Markets Authority (CMA), which will be exercised through an Office for the Internal Market (OIM).

The CMA will have powers to monitor and report on the effectiveness of the internal market, under its own initiative or at the request of the UK or devolved governments. Although its remit will be limited to regulations which fall within the scope of the earlier parts of the bill (and will exclude anything giving effect to the Northern Ireland protocol).

The government plans to pass the UK Internal Market Bill before the UK leaves the transition period at 11pm on 31 December – this means there will be limited time for parliament to scrutinise this constitutionally significant piece of legislation.

It will need to pass both the Commons and the Lords before it can become law, and both Houses will be able to table amendments.

The Future of Carbon Pricing (UK)

UK CRC (carbon trading based on electricity through half hourly meters) is closed. The final compliance year for participants in CRC was 2018 to 2019. A participant’s CRC registry account must be maintained until 31 March 2022 and evidence packs until 31 March 2025. The CRC regulators will continue to do compliance audits and take enforcement action where necessary until 31 March 2025.

From 1 April 2019 SECR requires many companies formerly within the scope of the CRC to report energy consumption and energy efficiency actions. They must do this as part of their annual director’s report. Subscribers with Law Checklists have a line entry for SECR, which I have asked on a number of occasions should be completed, as evidence you are on top of this requirement.

The UK Government and Devolved Administrations consulted on the future of carbon pricing in the UK after EU Exit, receiving over 130 responses from a range of stakeholders, with the majority supporting most of the proposals on the design of a UK ETS.

As a result, the UK intends to establish a UK Emissions Trading System with Phase I running from 2021- 2030, which could operate as either a linked or standalone system.

As stated in ‘The UK’s Approach to Negotiations’ the UK would be open to considering a link between any future UK Emissions Trading System (ETS) and the EU ETS (as Switzerland has done with its ETS), if it suited both sides’ interests.

As announced at Budget 2020, the UK Government will publish a consultation later this year on the design of a Carbon Emission Tax as an alternative to a UK ETS, to ensure a carbon price remains in place in all scenarios. I blog posted some time ago, that provision for a Carbon Emissions Tax is already on the statute books in a UK Finance Act.

The UK ETS will apply to energy intensive industries (EIIs), the power generation sector and aviation – covering activities involving combustion of fuels in installations with a total rated thermal input exceeding 20MW (except in installations for the incineration of hazardous or municipal waste) and sectors like refining, heavy industry and manufacturing. The proposed aviation routes include UK domestic flights, flights between the UK and Gibraltar, flights from the UK to EEA states, and flights from the UK to Switzerland once an agreement is reached.

In light of the UK’s commitment to reaching net-zero emissions by 2050, the UK ETS will show greater climate ambition from the start. As such, the cap will initially be set 5% below the UK’s notional share of the EU ETS cap for Phase IV of the EU ETS.

The Committee on Climate Change (CCC) will advise later this year on a cost-effective pathway to net-zero, as part of their advice on the Sixth Carbon Budget. The state will consult again on what an appropriate trajectory for the UK ETS cap is for the remainder of the first phase within nine months of this advice being published.

The aim is that any changes to the policy to appropriately align the cap with a net zero trajectory will be implemented by 2023 if possible and no later than January 2024, although the aim is also to give industry at least one year’s notice to provide the market with appropriate forewarning.

Auctioning will continue to be the primary means of introducing allowances into the market. To safeguard competitiveness in the UK ETS and reduce the risk of carbon leakage, a proportion of allowances will be allocated for free. Some free allowances will also be made available for new stationary entrants to the UK ETS as well as existing operators who increase their activity – these allowances will be accessible through the New Entrants Reserve. The initial UK ETS free allocation approach will be similar to that of Phase IV in order to ensure a smooth transition for participants for the 2021 launch.

In a standalone UK ETS the state will introduce a transitional Auction Reserve Price (ARP) of £15 (nominal) to ensure a minimum level of ambition and price continuity during the initial years.

A Small Emitter and Hospital Opt-Out will be implemented for installations with emissions lower than 25,000t CO2e per annum and a net-rated thermal capacity below 35MW. An Ultra-Small Emitter Exemption will be implemented for installations with emissions lower than 2,500t CO2e per annum.

International credits will not be permitted in a UK ETS at this time. This is without prejudice to ongoing reviews on how best to implement the UN global offsetting scheme, CORSIA, alongside a UK ETS.

The sections above re the UK ETS are abridged (with highlights) from the summary in the Responses Document – the document itself is here.

COVID-19 Restrictions Changes (UK)

In the past days, a number of UK jurisdictions have changed their Restrictions law. This is in order to relax some of the lockdown measures.

The new amendments will be loaded today into the COVID-19 Law List in Cardinal Environment EHS Legislation Registers & Checklists – the COVID-19 Law List is found on the top right accessed from the OHS topic page. [UK and Ireland systems]

As this emergency situation continues, we will be bringing forward COVID-19 Law Checklists (UK jurisdictions). I will advise nearer the time when these will be available.

Brexit and COVID-19 measures (UK)

The UK left the EU at end of January 2020, and will leave the transition period at end of December 2020.

The World Health Organisation (WHO) declared COVID-19 a pandemic on 11th March 2020.

These two events are prompting substantive changes in many occupational, health and safety, and environment related measures in the UK (substantive measures are also being taken in other countries, and at EU level).

The UK’s Brexit measures are found here.

[the vast majority of the UK’s Brexit measures are unchanged since any update made in February 2020]

The UK’s COVID-19 measures are found here.

[the vast majority of the UK’s COVID-19 measures date March 2020]

The UK’s Brexit and the COVID-19 measures are rooted in law. Cardinal Environment Limited advises on occupational health and safety law and environmental law via Email Alert to subscribers to Cardinal Environment EHS Legislation Registers & Checklists. The next Email Alert on UK Registers & Checklists will be at end March (the monthly UK Email Alert as usual).

Subscribers are reminded that they can request Annual Review (a teleconference) on renewal of annual subscriptions.

Of particular note are –

(1) changes around borders

(2) changes around goods transport

(3) changes around people mobility, including across borders

(4) changes around workplace organisation, particularly additional requirements to keep the workplace safe and provide for home working

(5) temporary bans on the opening of some business premises on health grounds

(6) changes around worker employment (this Blog does not address detailed matters of Employment Law)

Coronavirus/COVID-19 measures (UK)

UPDATE : the general guidance for employers, employees and business includes these additional stipulations –

• businesses and workplaces should encourage their employees to work at home, wherever possible

• if someone becomes unwell in the workplace with a new, continuous cough or a high temperature, they should be sent home and advised to follow the advice to stay at home

• employees should be reminded to wash their hands for 20 seconds more frequently and catch coughs and sneezes in tissues

• frequently clean and disinfect objects and surfaces that are touched regularly, using your standard cleaning products

• employees will need your support to adhere to the recommendation to stay at home to reduce the spread of coronavirus (COVID-19) to others

Last week saw a raft of measures and the first legislation compelling action. These are compiled online – here.

Of particular note to this Blog are –

(1) the mandated closure of some workplaces and all workplace canteens where food is sold – here plus law on the matter here (England) and here (Wales)

[note the workplace canteen exceptions in the law]

(2) the definition of key worker – found in the guidance for schools closure – here

(3) the definitions of “self-isolating”, “social distancing” and “shielding” and the cohorts these apply to

“Self-isolating” – here

“Social distancing” – here

“Shielding” – here

(4) the relaxation of drivers’ hours (I blog posted about this last week) – here

(5) changes to Planning Inspectorate site visits, appeals, inquiries and events – here

(6) changes to Courts and tribunals planning and preparation – here

[note there are also changes to HSE and Environment Agency, and other regulator, site visits etc which are published in their own online web resources]

(7) general guidance for employers, employees and businesses – here

(8) guidance on the cleaning of workplace surfaces – here

(9) shipping and sea ports guidance – here

(10) restriction of non-essential rail travel – here

[note the London Mayor has announced reductions in TFL transport and transport in London, including by driving, should be for essential travel only]

[transport by driving outside of London should also be essential travel only]

The advice for anyone in any setting is to follow these main guidelines.

1 The most common symptoms of coronavirus (COVID-19) are recent onset of a new continuous cough and/or high temperature. If you have these symptoms, however mild, stay at home and do not leave your house for 7 days from when your symptoms started. You do not need to call NHS 111 to go into self-isolation. If your symptoms worsen during home isolation or are no better after 7 days, contact NHS 111 online. If you have no internet access, you should call NHS 111. For a medical emergency dial 999.

2 Wash your hands more often than usual, for 20 seconds using soap and hot water, particularly after coughing, sneezing and blowing your nose, or after being in public areas where other people are doing so. Use hand sanitiser if that’s all you have access to.

3 To reduce the spread of germs when you cough or sneeze, cover your mouth and nose with a tissue, or your sleeve (not your hands) if you don’t have a tissue, and throw the tissue in a bin immediately. Then wash your hands or use a hand sanitising gel.

4 Clean and disinfect regularly touched objects and surfaces using your regular cleaning products to reduce the risk of passing the infection on to other people.