UK Internal Market Bill (Scotland 1st Jan 2021)

The UK Internal Market Bill is not yet published. Accounts of it suggest it’s purpose is to put into law the common approaches that subsist across the UK and the Devolved Governments to food, environment and animal welfare, in the context of international trade agreements.

Presently, a concept of ‘common frameworks’ is agreed between the UK and the Devolved Governments to enable the functioning of the UK internal market (in areas that are currently governed by the European Union) from the 1st January 2021, while acknowledging policy divergence.

The Finance and Constitutional Committee (FCC) of the Scottish Parliament has been consulting on views about how the UK Internal Market might operate from 1st January 2021. This consultation closed 28th February 2020.

More details are here.

Further Blog posts will be issued in the event that the UK Internal Market Bill is progressed.

Scotland EU Continuity Bill (Scotland 1st Jan 2021)

On 18 June 2020, the Scottish Government introduced the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. Details are here.

The purpose of the Bill is to:

a. enable the Scottish Ministers to make provision in secondary legislation to allow Scots law to be able to ‘keep pace’ with EU law in devolved areas, where appropriate;

b. ensure that there continue to be guiding principles on the environment in Scotland;

c. establish an environmental governance body, Environmental Standards Scotland;

[The UK Environment Bill at Westminster seeks to establish, amongst other matters, an environmental governance body, the Office for Environmental Protection, in England]

d. continue the role and functions of the European institutions in ensuring the complete and effective implementation of environmental law.

Environment is a devolved area.

In the Scottish Parliament, the Finance and Constitution Committee (FCC) is the lead Committee for considering this Bill and focuses on the constitutional aspects of the Bill. 

The Environment, Climate Change and Land Reform Committee (ECCLRC) is a secondary committee and focuses on the environmental policy aspects of the Bill. 

The FCC is currently conducting a consultation (ends 7th August 2020). This seeks views on questions – including –

The policy memorandum states that “the Scottish Government considers it necessary to give Scottish Ministers the power to ensure that Scotland’s laws may keep pace with changes to EU law, where appropriate and practicable.”

The Committee would welcome your views on how wide-ranging this power is likely to be given the following statutory and non-statutory constraints –

* Compliance with UK international obligations including future trade deals and other international agreements;

* Statutory and non-statutory common frameworks;

* The functioning of a UK internal market;

* The replacement of EU funding.

More details are here.

The ECCLR has its own consultation (ends 31st July 2020). This seeks views on questions – including –

• The extent to which the proposals will address the governance issues arising from EU exit

• The limit of the obligations of ‘public authorities’ and the exclusions

• How the proposed model will align with that proposed for functions in the rest of the UK, and for reserved matters in Scotland, through the UK Environment Bill and any potential for gaps in the oversight arrangements; and the ability to co-operate and share data

More details are here.

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.

UK-US Free Trade Agreement (UK)

The UK government has this morning set out its long awaited objectives for its proposed trade agreement with the United States.

The policy paper is here.

The objectives are set out on pages 9 to 12.

Of relevance to this Blog are the following objectives – to

• remove and prevent trade-restrictive measures in goods markets, while upholding the safety and quality of products on the UK market,

• seek arrangements to make it easier for UK manufacturers to have their products tested against US rules in the UK before export,

• promote the use of international standards, to further facilitate trade between the parties,

• uphold the UK’s high levels of public, animal, and plant health, including food safety,

• enhance access for UK agri-food goods to the US market by seeking commitments to improve the timeliness and transparency of US approval processes for UK goods,

• improve trade flows by ensuring a transparent, predictable, and stable regulatory framework to give con dence and stability to UK exporting businesses and investors,

• secure commitments to key provisions such as public consultation, use of regulatory
impact assessment, retrospective review, and transparency, as well as regulatory co-operation.