Carbon Emissions Tax (UK Brexit)

I posted before about a carbon emissions tax being introduced in the event the UK access to the EUETS (the EU Emissions Trading System) is discontinued following Brexit.

The Finance (No. 3) Bill, out for Royal Assent, makes provision for this. Once enacted, the Act will be added to the Brexit Law List (in subscribers to Cardinal Environment EHS Legislation Registers & Checklists systems).

An information note is also published, here.

This note identifies that a Carbon Emissions Tax is one option being pursued by the UK Government.

The note sets out how the new Carbon Emissions Tax would operate.

The existing CCL is unaffected.

The new Carbon Emissions Tax will come into force via separate statutory instrument.

Brexit Status – next steps (UK Brexit)

Exit day is currently set as 12pm CET 29th March 2019.

Yesterday, the UK Parliament voted down the Withdrawal Agreement and Political Declaration package that had been agreed between the EU and UK to provide for an orderly exit.

On the UK side, although some laws are on the statute book, there is still substantive Brexit legislation that only exists in draft form, or not at all. But UK Technical Notices are published, and some Government ministries have issued more detailed information, notably HMRC, the Department for Transport, and the Home Office. Blog posts set these out (category UK Brexit Notices).

Subscribers to Cardinal Environment EHS Legislation Registers & Checklists have a continually updating Brexit Law List loaded to their UK systems (or jurisdictional UK variants).

On the EU side, EU Brexit Preparedness Notices are issued, and a Contingency Plan is in place, with a useful Q&A. Blog posts set these out (category EU Brexit Notices).

The international EU-UK land border is on the island of Ireland. I posted recently on Ireland’s Brexit Preparedness. An omnibus bill of measures will be introduced shortly. I updated my Blog post online, please scroll down the latest posts.

Next steps :

(1) today, the UK Government faces a no confidence motion, which it is expected to win

(2) Monday will see the UK Prime Minister give a statement to Parliament

(3) the next days will see the UK Government explore other sorts of arrangements for an orderly exit, and it is possible the exit day could be put back to give more time.

I will issue a new Blog post next week, with any progress made.

As I said in recent Blog posts, if subscribers to the Cardinal systems wish to set up a Brexit telecon with me, to run through specifics, please email me. At the moment, I am holding these telecoms at no extra charge.

New Waste Strategy (England)

Waste legislation and policy is a devolved matter in the UK. Today, DEFRA published its Waste Strategy for England, replacing the 2011 waste review and 2013 waste prevention programme. The document “Our Waste, Our Resources: A Strategy for England” is here.

This 2018 strategy has the stated aim to contribute to the delivery of five strategic ambitions:

1  To work towards all plastic packaging placed on the market being recyclable, reusable or compostable by 2025;

2  To work towards eliminating food waste to landfill by 2030;

3  To eliminate avoidable plastic waste over the lifetime of the 25 Year Environment Plan;

4  To double resource productivity by 2050; and

5  To eliminate avoidable waste of all kinds by 2050.

The document states –

As most of our existing waste legislation is EU-derived, this will be retained in UK law through the European Union Withdrawal Act 2018. And proposals which follow from this Strategy will take account of the future relationship we negotiate with the EU on environmental matters. Where existing legislation is insufficient to deliver our ambition we will take new powers to do so, including through our Environment Bill. And we will work with the devolved administrations to co- ordinate policy on resources and waste, to ensure that approaches are aligned and impacts on the UK Internal Market are minimised.

F-Gases & ODS (Brexit UK)

The UK Government has today issued a Technical Notice of instructions on using and trading F-Gases and ODS. This notice is here.

If there is no deal :

(1) The UK will regulate fluorinated greenhouse gases (F gas) and ozone-depleting substances (ODS) from 30 March 2019.

(2) The EU F gas and ODS regulations will no longer apply in the UK from 30 March 2019.

(3) New UK regulations will transfer most of the requirements of the EU regulations into UK law. [these are not yet published in draft, when they are published, I will add to the Brexit Law List in Cardinal Environment EHS Legislation Registers & Checklists]

(4) The UK will continue to:

• restrict ODS

• use the same schedule as the EU to phase down HFCs (hydrofluorocarbons, the most common type of F gas) by 79% by 2030 relative to a 2009 to 2012 baseline

That means UK F gas quotas will follow the same phase down steps as the EU:

• limited to 63% of the baseline in 2019 and 2020

• reducing to 45% of the baseline in 2021

(5) The UK will manage its own quota systems, and UK companies will need to register for a UK quota.

Where a company produces, imports or exports HFCs (the main class of F gases) or ODS, or products containing HFCs or ODS, it will need to apply for a:

• UK quota to place them on the UK market

• EU quota to place them on the EU market

If the company imports or exports ODS, including to and from the EU, it will need to apply for a UK import or export licence.

(6) The Environment Agency will administer the systems for the whole of the UK.

(7) After 30 March 2019 a company will need a UK HFC quota if it places on the UK market HFCs equivalent to 100 tonnes or more of carbon dioxide (CO2 ) per year. This total includes any imports to the UK from the EU.

(8) The Environment Agency will manage a new UK F gas system, including UK HFC quota allocation.

Companies will need to register on the new UK F gas system to:

• apply for a UK quota

• report on activities

If the Environment Agency has company data, it may register details for you.

The Environment Agency will publish details of how to use the UK F gas systems in early 2019. [I will update this post, or issue a separate post, at that time]

(9) Leak detection and other obligations will not change.

(10) Further rules are set out in the Notice, this post is not a full summary. Please read the Notice.

Chemicals Regulation – CLP (Brexit UK)

The UK has today updated its Technical Notice on CLP, and this now gives further instructions, here.

If there is no deal :

(1) The UK would establish an independent standalone chemicals regime. [this is looking increasingly likely in any event, deal or no deal]

(2) At the time of exit, as the UK would effectively adopt the GHS in the same way as the EU, the UK classification and labelling regime would be based on the existing EU regulatory regime in order to provide continuity for businesses, with amendments to enable functions presently carried out by the EU (including those performed by ECHA), instead being carried out in the UK by the Health and Safety Executive (HSE).

(3) Companies operating in the UK will deal with HSE in place of ECHA.

(4) The main duties and obligations on suppliers to classify, label and package hazardous chemicals placed on the market will remain in place.

This means the duties on UK manufacturers, importers and downstream users to classify, label and package the substances and mixtures they place on the UK market will remain.

This would also be the case for the obligations on those suppliers to identify, examine and evaluate available scientific and information on substances and mixtures where it relates to the possible physical, health or environmental hazardous properties of those chemicals to ensure all the requirements of classification are fulfilled.

Suppliers must also comply with mandatory classification and labelling.

[please note, it’s still unclear if current downstream user obligations under REACH will be continue, I posted about this the other day]

(5) Companies importing chemicals into the UK from EU countries would become importers under CLP and would need to be sufficiently competent to comply with the duties and obligations on an importer, just as they would if importing chemicals into the UK from a non-EU country.

(6) HSE would have the ability to put in place new arrangements for mandatory classification and labelling. These arrangements would allow new and revised classification and labelling to be proposed, considered in liaison with the devolved authorities and adopted for the UK.

(7) Companies would be required to use new UK arrangements and IT tools provided by HSE. These IT tools would be a UK mandatory classification and labelling list (of substances) and a UK notification database. The new arrangements will be operational after 29 March 2019.

(8) Responsibility for chemicals being imported into the EU from the UK would rest with whoever is the EU-based importer (remember, a third country importing into the EU will require the use of an EU-based legal entity) – the importer may therefore need details of the chemicals involved from the UK-based company.

Data Protection Law (Brexit UK)

The UK has today issued Guidance on how UK Brexit Data Protection Law will operate. This guidance is here. There is already a UK Technical Notice on the subject.

The EU (Withdrawal) Act 2018 (EUWA) retains the GDPR in UK law. The fundamental principles, obligations and rights that organisations and data subjects have become familiar with will stay the same.

To ensure the UK data protection framework continues to operate effectively when the UK is no longer an EU Member State the Government will make appropriate changes to the GDPR and the Data Protection Act 2018 using regulation-making powers under the EUWA.

The regulations and more detailed guidance will be published in the next few weeks.

These regulations would:

• Preserve EU GDPR standards in domestic law

• Transitionally recognise all EEA countries (including EU Member States) and Gibraltar as ‘adequate’ to allow data flows from the UK to Europe to continue

• Preserve the effect of existing EU adequacy decisions on a transitional basis

• Recognise EU Standard Contractual Clauses (SCCs) in UK law and give the ICO the power to issue new clauses

• Recognise Binding Corporate Rules (BCRs) authorised before Exit day

• Maintain the extraterritorial scope of the UK data protection framework

• Oblige non-UK controllers who are subject to the UK data protection framework to appoint representatives in the UK if they are processing UK data on a large scale

I will add this legislation to the Global OHS and ENV Brexit Law List, in subscription Cardinal Environment EHS Legislation Registers & Checklists.

The Government has also issued 6 Steps for Business to take – here.

Six steps

1 Continue to comply Continue to apply GDPR standards and follow current ICO guidance. If you have a Data Protection Officer, they can continue in the same role for both the UK and Europe.

2 Transfers to the UK Review your data flows and identify where you receive data into the UK from the European Economic Area (EEA). Think about what GDPR safeguards you can put in place to ensure that data can continue to flow once we are outside the EU.

3 Transfers from the UK Review your data flows and identify where you transfer data from the UK to any country outside the UK, as these will fall under new UK transfer and documentation provisions.

4 European operations If you operate across Europe, review your structure, processing operations and data flows to assess how the UK’s exit from the EU will affect the data protection regimes that apply to you.

5 Documentation Review your privacy information and your internal documentation to identify any details that will need updating when the UK leaves the EU.

6 Organisational awareness Make sure key people in your organisation are aware of these key issues. Include these steps in any planning for leaving the EU, and keep up to date with the latest information and guidance.

Brexit Bill Tracker (UK)

The current state of Brexit Bills (Dec 5th 2018) is in the Institute for Government diagram depicted.

– Fisheries bill entered Committee stage yesterday

– Trade bill still missing in action in the Lords

– First bill *only* needed for no deal exit

– No sign of the Immigration bill (or white paper)

IF the UK Government loses the 11th December vote, the No Deal exit emergency legislation and instructions are published. I will post a new post then.