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.
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