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.

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]

UK-EU Future Dealings (UK)

The parameters of economic and internal security co-operation between the UK and EU are defined by three key documents:

* the Trade and Cooperation Agreement (TCA – the ‘deal’ signed on Christmas Eve 2020);

* the Withdrawal Agreement (WA), which lays out the future relationship for trade in goods between Northern Ireland, Britain and the EU; and

* the UK Internal Market Act, supplemented by ‘common frameworks’, which set out how the UK proposes to maintain internal coherence between the four nations of the UK after the loss of the EU framework within which devolution was originally conceived.

A new unit is established in No.10, under Lord Frost (the 2019-2020 Brexit negotiator). This unit has a strategic role, both on the approach to Europe and the EU as well as wider international policy.

The TCA establishes a complex governance model – at the top political level, the TCA will be overseen by a new Partnership Council. Not dissimilar to the Joint Committee established in the Withdrawal Agreement, it will be co-chaired by a representative from the European Commission (recently confirmed to be Maroš Šefčovič, also co-chair of the Joint Committee) and a minister from the UK government (yet to be announced). Its role includes:

• Oversight: The Partnership Council will be responsible for overseeing the application and implementation of the TCA. As part of this responsibility, it will be able to set up or disband specialised committees, delegating powers where necessary.

• Amendment: For the next four years, the Partnership Council will be able to amend the TCA, or supplement agreements, to correct errors or address omissions. But
the power goes beyond just a tidying up function and has the potential to be quite wide-ranging. For example, the Partnership Council will be able to decide to amend some parts of the agreement by mutual agreement, including parts of the chapters and annexes on rules of origin, customs and energy.

• Dispute settlement: For most parts of the TCA, the first step in the dispute resolution process is for the two sides to enter into ‘consultations’, which can take place either in one of the specialised committees or the Partnership Council. If a dispute cannot be resolved through consultation at the political level, the complaining party will have the option of requesting an arbitration tribunal and go through the resolution process.

NB : This process will not apply to all parts of the TCA. There are separate dispute arrangements in areas such as law enforcement and judicial co-operation, fisheries, and parts of the level playing field (LPF), including subsidies, labour and social standards, and environment and climate standards. Other parts do not have a formal dispute arrangement, including competition, tax, SMEs and cultural property.

The TCA also establishes the Trade Partnership Committee to oversee the trade
part of the agreement, with 10 trade-specialised committees, which will oversee specific aspects of the trading provisions, including on sanitary and phytosanitary (SPS), regulatory co-operation, and the LPF. There will be a further eight specialised committees to oversee other aspects of the TCA, including on social security co-ordination and law enforcement, and judicial co-operation. Together, these amount to nearly double the number of committees included in the EU–Canada Comprehensive Economic and Trade Agreement (CETA).

Four working groups are also established in the TCA to support the work of specific specialised committees. These are on organic products, motor vehicles and parts, medicinal products (supervised by the trade specialised committee on technical barriers to trade) and social security co-ordination (supervised by the Specialised Committee on Social Security Coordination). These groups have been set up where it is already clear that greater co-ordination or discussion will be needed.

The structure is not fixed. The Trade Partnership Committee and eight specialised committees can establish and dissolve working groups where they agree it is necessary to support the functioning of the agreement.

The TCA also allows the EU and UK parliaments to set up a new ‘parliamentary partnership assembly’ to exchange and request information on the implementation of the agreement from the Partnership Council as well as to make recommendations. The two sides will also establish a civil society forum and are expected to set up domestic advisory groups.

The Cabinet Office confirmed this morning (in questions to it, in Parliament) that the Partnership Council and various committees will be stood up next month, June.

UK updates to the TCA (Britain)

A little while ago, the Government announced (unilateral) new dates for the grace periods applying to GB goods movement to Northern Ireland under the IRl/NI Protocol. The Brexit Guidance was then updated.

The Government has now announced (unilateral) new dates for the grace periods applying to EU imports into Britain under the TCA (the UK-EU FTA). The Brexit Guidance will be updated.

We are announcing today a clear revised timetable for the introduction of controls, as follows:

• Pre-notification requirements for Products of Animal Origin (POAO), certain animal by-products (ABP), and High Risk Food Not Of Animal Origin (HRFNAO) will not be required until 1 October 2021. Export Health Certificate requirements for POAO and certain ABP will come into force on the same date.

• Customs import declarations will still be required, but the option to use the deferred declaration scheme, including submitting supplementary declarations up to six months after the goods have been imported, has been extended to 1 January 2022.

• Safety and Security Declarations for imports will not be required until 1 January 2022.

• Physical SPS checks for POAO, certain ABP, and HRFNAO will not be required until 1 January 2022. At that point they will take place at Border Control Posts.

• Physical SPS checks on high risk plants will take place at Border Control Posts, rather than at the place of destination as now, from 1 January 2022.

• Pre-notification requirements and documentary checks, including phytosanitary certificates will be required for low risk plants and plant products, and will be introduced from 1 January 2022.

• From March 2022, checks at Border Control Posts will take place on live animals and low risk plants and plant products.

Traders moving controlled goods into Great Britain will continue to be ineligible for the deferred customs declaration approach. They will therefore be required to complete a full customs declaration when the goods enter Great Britain.

Controls and checks on Sanitary and Phytosanitary goods are of course a devolved matter and we continue to work closely with the Devolved Administrations on their implementation, in particular with the Welsh Government on their timetable for completing supporting Border Control Post infrastructure in Wales.

The written statement is here.

GB goods movement to the EU is unaffected, i.e. the TCA applies in full.

Counting GB divergence from EU law (Britain)

To date (end Feb 2021) divergence (this is not a definitive list) :

(1) international waste shipment – divergent waste transshipment law – EU bans plastics to non-OECD, Britain has enhanced pre-notification

(2) lead shot in fishing/hunting – EU Reach ban in/around wetlands from Feb 2023 (no announcement in Britain)

(3) carcinogen OELs – EU has further 2021 OELs (EH40 unchanged thus far)

(4) medicines licensing – Britain has ILAP launched 1st Jan – further information is here

(5) safety data sheets – EU has new Reach Annex II, one year grace (UK Reach unchanged so far)

There are other minor divergences

Additionally, and off topic, GB will not implement the latest proposed update to the EU motor insurance directive.

UK relations with EU (UK)

The UK government has brought back Lord (David) Frost, its EU-UK Trade and Cooperation Agreement (TCA) negotiator, to lead UK relations with the EU as a Cabinet Minister (scrutinised by Lords select committee). He will be the UK lead (co-chair with the EU) of the two key committees (replacing Michael Gove CDL) –

(1) The Joint Committee of the 2020 EU-UK Withdrawal Agreement (WA) – a key workload is the IRL/NI Protocol functioning

(2) The Partnership Council set up under the 2020 TCA

These two images depict the TCA work ongoing. The various committees and sub-committees of the Partnership Council are not yet announced.

Trade Agreement with Norway and Iceland (UK)

The EU, Norway and Iceland are members of the EEA (European Economic Area) which has its own Agreement in force since 1994. This Agreement means Norway and Iceland adopt EU Law in the areas of Environment and Health and Safety.

The UK signed a trade in goods agreement with Norway (and Iceland) in Dec 2020.

The UK trade in goods agreement includes provisions on:

• trade in goods – including provisions on preferential tariffs, tariff rate quotas, rules of origin and customs and trade facilitation

• geographical indications with Iceland

Information on changes to trade with Norway and Iceland that apply from 1 January 2021 is here. This link also includes access to the trade in goods agreement itself.

As in the UK-EU FTA, there is no equivalence on standards, goods sold into the Norwegian and Iceland markets must the regulatory requirements as set out in EU Law implemented in Norway and Iceland via the EEA Agreement, and be labelled correctly.

From 1 January 2021, regulations for industrial and agricultural products might not be aligned across the UK, Iceland and Norway. This is also the case with regulations across the UK and the EU. But the EU-UK FTA does not cover Norway and Iceland, and so variation may occur not just as respects the EU, but also Norway and Iceland.

From 1 January 2021, the UK will continue to treat most imports from Iceland and Norway no less favourably than imports from the European Union, for a time limited period. This includes requirements for product testing.

Iceland and Norway will also continue to replicate the EU’s treatment of industrial products from the UK. This includes requirements for product testing.

For rules of origin (which are tripping up GB goods movement to the EU and Northern Ireland), please check with BEIS. But simply re-packaging or re-labeling a product from the EU and exporting it to Norway or Iceland as a good originating in the UK is not permitted. Also, check with BEIS re the customs processes for an EU good dispatched to Norway or Iceland from a GB distribution centre.

Trade Continuity Deal with Canada (UK)

The EU has a free trade deal with Canada. The deal is not rolled over.

The UK did sign a continuity trade agreement (TCA) with Canada. But the TCA did not come into force on 1 January 2021. To minimise the impact of this, the UK and Canada signed a Memorandum of Understanding (MoU).

Information on changes to certain aspects of trade that apply from 1 January 2021 until the UK-Canada agreement takes effect is here.

The MoU covers provisions on:

• preferential tariffs

• tariff rate quotas

• rules of origin

• technical barriers to trade particularly in the areas of pharmaceuticals and telecommunications

As in the UK-EU FTA, there is no equivalence on standards, goods sold into the Canadian market must the regulatory requirements as set out in Canadian law, and be labelled correctly.

For rules of origin (which are tripping up GB goods movement to the EU and Northern Ireland), please check with BEIS. But simply re-packaging or re-labeling a product from the EU and exporting it to Canada as a good originating in the UK is not permitted. Also, check with BEIS re the customs processes for an EU good dispatched to Canada from a GB distribution centre.

Role of Parliament in Trade Deals (UK)

This blog does not focus on trade. However, I get asked a lot of questions about how the agreements made by the government under its royal prerogative to make trade deals, are in practice scrutinised.

The UK trade policy observatory has written this useful blog on the subject here.

You can read there that the UK Parliament does not have a formal role. Although, in practice the government has taken to publishing trade objectives, and holding a limited parliamentary debate on them.

UK-US FTA

US – the USTR publishes its trade objectives (Feb 2019) – here.

UK – the UK publishes its trade objectives (April 2020) – here.

In practice, the UK-US FTA has not progressed. Mini-trade deals are also not agreed.

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.