Holiday Entitlement Consultation (Britain)

The UK government is consulting on changes to holiday entitlement for part year and irregular hours workers. The proposal is to amend the Working Time Regulations 1998, which give effect to pre-31 Dec 2020 EU law, to remove the effect of a recent Supreme Court judgment, and in effect to move away from EU law in this respect.

In July 2022, the Supreme Court handed down its judgment on Harpur Trust v Brazel. This case concerned the calculation of holiday pay and entitlement of a permanent part-year worker on a zero-hours contract.

The judgment held that the correct interpretation of the Working Time Regulations 1998 is that holiday entitlement for part-year workers should not be pro-rated so that it is proportionate to the amount of work that they actually perform each year.

Part-year workers are entitled to 5.6 weeks of statutory annual leave calculated using a holiday entitlement reference period to determine their average weekly pay, ignoring any weeks in which they did not work. As a result of the judgment, part-year workers are now entitled to a larger holiday entitlement than part-time workers who work the same total number of hours across the year.

The UK government disagrees with this approach, and proposes amending the Working Time Regulations to ensure that holiday entitlement reflect hours worked. The consultation is here.

The consultation closes on 9 March 2023.

EU Law Revocation (Britain) Update

The Financial Times is reporting this morning that a further large number of EU laws has been located by the National Archives. The report is that the end 2023 deadline for revocation of REUL (retained EU law) is now likely to slip, as the scale of the work challenge to replace or reform each instrument builds.

The Bill is currently in Committee stage, as currently drafted Ministers could delay until June 2026, but both dates of December 2023 and June 2026 could now change.

We will nonetheless, list the instruments that will be affected, and load this onto Cardinal Environment Limited EHS Legislation Registers & Checklists in January 2023. We will track the changes to this list and the development of replacement or reformed instruments by using the traffic light system, the same approach we used for the Brexit Consolidated Law project (which is concluded).

I will write further Updates (Blog posts) as more information becomes available on the revocation of REUL.

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.

EU Law Revocation (Britain)

Yesterday 22 September ’22, the UK government introduced its bill to revoke and reform en masse (by 31 Dec 2023) retained EU law and domestic subordinate law documents (statutory instruments – Regulations) that draw their power from sections of the 1972 European Communities Act (specifically section 2(2) or paragraph 1A of Schedule 2).

The revocation and reform bill is here.

I will be outlining in the next (September) Email Alert how we will deal with this in Cardinal Environment EHS Legislation Registers & Checklists (Britain, England, Wales and Scotland).

Re OHS – the impact will be felt on Equipment Regulations (not LOLER), and Product Regulations (including obviously UK REACH and safety data sheets). Also the Working Time Regulations.

But Equipment Use Regulations, COSHH, DSEAR, Carriage of Dangerous Goods, the Management Regulations and the Workplace Regulations will be unaffected.

Re ENV – the impact will be substantial in Waste. Also EIA and Habitats and Species Regulations will be re-written (I had already written about this in the blog). Note the Office for Environmental Protection (England) has an investigation underway into the EIA, SEA and Habitats Regulations. This link gives access to written evidence to the Levelling Up and Regeneration Bill Committee, which gives further information.

ODS and F-Gas similarly will require new domestic law.

31st December 2023 is the sunset date written into the Bill.

We will set up a document tracking list, with traffic light colours, as we did with the Brexit law changes that operated from 1st Jan 2021 (the Brexit Consolidated Law list).

It is expected that the relevant government departments will commence review of each affected instrument, and that “reformed” domestic law will be enacted. The new document tracking list will identify progress, to customers of our Cardinal Environment EHS Legislation Registers & Checklists. The Email Alerts will Alert of enactment of new instruments.

This is a complex area. If there are further developments, for example to the sunset date, then I will issue further blog posts.

The EU Law revocation extends to all parts of Britain, but ENV legislation is delegated, so variations might emerge (particularly on timescales).

If you have questions, and you are a client, please send your questions to me by email. Questions asked on this blog post will not be answered.

The above is NOT a full description of the instruments affected. Clients will have the document tracking list inserted in their systems in Jan 2023. The specifics of how we will handle this will be in the September Email Alert (as mentioned above).

EU NIP announcements (Northern Ireland)

On 13 October, the EU announced its October 2021 package of proposed measures to amend the Northern Ireland Protocol (to the UK-EU Withdrawal Agreement). This October 2021 package is here. (scroll down)

The October 2021 package is a series of “non papers”, these are not binding. The UK has it’s similar not binding “command paper” issued July – here. Both sets of documents contain a certain amount of spin.

UKG (UK Government) and the EU will discuss the documents over the next weeks. In the meantime, UKG had already extended indefinitely existing NIP grace periods and this is reflected in UKG Brexit Guidance (instructions) found collated in Cardinal Environment EHS Legislation Registers and Checklists.

The Northern Ireland Protocol regulates Northern Ireland’s access to the EU single market, but also affects it’s arrangements with the rest of the UK. This has since 1 Jan 2021 impacted on goods movements from Britain (GB) to Northern Ireland (UKG itself relaxed NIP rules for movement from Northern Ireland to GB); and it’s state aid rules.

Governance of the Northern Ireland Protocol arrangements is currently by the ECJ or CJEU as the court is known as in the EU. It is also an ask of UKG that this governance be altered and the role of the ECJ removed. This was a UKG ask at the time of negotiation of the Withdrawal Agreement.

In the event that agreement is not reached between the parties (UKG unilateral extension of grace periods is itself not agreed), it is open to one or the other to take unilateral action.

Further announcements are awaited.

Further Border Control Delays (UK)

The UK government recently announced that movement of goods from GB to Northern Ireland (occurring under the grace arrangements in the Northern Ireland Protocol – NIP) would continue in the current manner indefinitely.

The UK government also recently announced that CE marked goods would continue to circulate in GB for the entire 2022. CE marked goods circulate in Northern Ireland by virtue of the NIP. This was included in the August Email Alert.

This morning, the UK government confirmed – here

• The requirement for pre-notification of agri-food imports will be introduced on 1 January 2022 as opposed to 1 October 2021.

• The new requirements for Export Health Certificates, which were due to be introduced on 1 October 2021, will now be introduced on 1 July 2022.

• Phytosanitary Certificates and physical checks on SPS goods at Border Control Posts, due to be introduced on 1 January 2022, will now be introduced on 1 July 2022.

• The requirement for Safety and Security declarations on imports will be introduced as of 1 July 2022 as opposed to 1 January 2022.

The timetable for the removal of the current easements in relation to full customs controls and the introduction of customs checks remains unchanged from the planned 1 January 2022.

FTA UK & Iceland, Liechtenstein, Norway (UK)

Thursday 8th July, trade ministers from Iceland, Liechtenstein and Norway signed a free trade agreement (FTA) with the UK. Conclusion of negotiations on an FTA had been announced on 4th June, and Norway had published the text (English language starts at page 105).

The UK trade minister made a statement to Parliament (8th July) – here.

Norway’s minister of trade and industry remarks at 4th June press conference on the matter – here, Norway’s press release (4th June) here.

The signed legal text will be published in the UK shortly, along with the Explanatory Memorandum that is a statutory requirement under the Constitutional Reform and Governance (CRaG) Act.

The Explanatory Memorandum provides the context, explaining what the new treaty is meant to achieve, what legislation (if any) will be needed to implement it, when it will take effect, the financial implications, and the territorial application of the agreement.

I will blog post again when the further documents are published.

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.

Freeports Consultation (UK Brexit)

Yesterday (10th Feb) the UK government announced the start of its consultation on its plan to create 10 freeports in locations across the UK.

The consultation deadline is 20th April.

The Freeports consultation document (UK’s Freeports policy) is here.

The consultation includes policies which relate to the whole of the UK, as well as some which are devolved. Where a policy is devolved, the proposals in the consultation apply to England; responsibility for policy development and implementation in Scotland, Wales and Northern Ireland lies with the devolved administrations. The document states the –

UK Government intends to work in partnership with the devolved administrations to develop proposals which enable the creation of Freeports in all nations of the UK.

(1) Tariffs and Customs – Customs and tariffs policy is reserved to the UK Government. The opportunity for customs and tariff benefits would be available UK-wide.

(2) Tax – Some aspects of tax policy are devolved in Scotland, Wales and Northern Ireland. This section consults on tax policies which vary in scope, with some applying UK wide, some in England and Northern Ireland, and others in England only.

(3) Planning – Proposals on permitted development rights and zonal planning relate to England only. Proposals on the National Policy Statement for Ports relate to England and Wales.

(4) Regeneration – Infrastructure, skills and housing are devolved matters and the proposals cover England only. Trade and investment promotion is a “concurrent” power. This means that whilst the UK Government has primacy over trade and investment promotion in the UK, the devolved administrations also pursue promotion activity on behalf of businesses in their nations.

(5) Innovation – Innovation policy is UK wide; although some aspects of university funding are devolved matters, we hope to hear from stakeholders across the UK on these proposals.

The summary of questions is on page 40 of the document’s 48 pages.

For example, Q1 asks To what extent do you agree/disagree that the reduced declaration requirements for moving goods into a Freeport represent a useful simplification of the administration of customs processes?

Note the UK government announcement yesterday of the return of physical border checks and paperwork for EU goods imports from 1st Jan 2021 (Blog post yesterday).

Q8 asks What do you see as the advantages and/or disadvantages of an inland Freeport site compared to a Freeport site which is adjacent to a port?

Q11 asks To what extent would the suspension of import VAT be of value to your business?

Note yesterday’s UK government press release did not confirm the VAT deferral scheme.

Import Controls (UK Brexit)

From 1st January 2021, import controls will apply for EU goods entering Britain.

The Withdrawal Agreement Protocol will apply to trade between Britain and Northern Ireland, and between Northern Ireland and Ireland.

Business is directed to prepare for border controls by making sure it has an Economic Operator Registration and Identification (EORI) number, and also looking into how declarations should be made, such as by using a customs agent.

The UK Government will ensure facilitations currently available to rest of the world traders will also be open to those trading between GB and EU.

The press announcement is here.