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The first batch of proposed legislation for the Secondary Legislation Scrutiny Committee to consider have been published.

These proposed Statutory Instruments (SIs) are the start of a series of proposed legislative changes that will be necessary for when the UK leaves the European Union on "exit day". Prior to being implemented into law, these SIs will pass through the newly established Secondary Legislation Scrutiny Committees. Each House will have its own designated Committees.

The Committees will be taking up the role of "sifting" through proposed negative instruments following the passing of the European Union (Withdrawal) Act 2018.

The European Union (Withdrawal) Act 2018 gives Ministers wide powers to make Regulations to deal with the deficiencies in retained EU law which will result from the UK's withdrawal from the EU. It allows them a choice of procedure and most Regulations will first be laid as "proposed negative instruments", which after a "sifting" process, will be laid as SIs.

The process

How the process will work:

  • Ministers will propose negative instruments for consideration;
  • the Committees will have 10 days, starting the day after the proposed negative instrument is laid to scrutinise the proposed legislation and make their recommendations;
  • if either Committee recommends a proposed negative instrument should be upgraded to an affirmative procedure, the Minister may either accept or reject the recommendation, and if rejected give a written statement explaining why;
  • any instruments recommended for upgrade will be listed online.

What are negative instruments?

Negative instruments are made by a Minister before they are laid before Parliament, and they come into force generally 21 days after being laid.

To prevent a negative instrument coming into force or remaining in force, a motion to annul it has to be agreed by the Parliament in the Chamber no later than 40 days after the instrument was laid. If no such motion is made, the instrument automatically becomes law.

This process is different to the affirmative procedure where an instrument will usually first be presented in draft format and will not come into force until it has been approve by Parliament.

The current proposed negative statutory instruments relevant to health, safety and environmental legislation are the:

Published statutory instruments

As time goes on, the negative instruments will be laid before Parliament and then passed into law. The following list shows the confirmed statutory instruments that will come into force on exit day, which is 29 March 2019 at 11pm:

  • Vehicle Drivers (Certificates of Professional Competence) (Amendment) (EU Exit) Regulations SI 2018/1004;
  • Timber and Timber Products and FLEGT (EU Exit) Regulations SI 2018/1025;
  • Seal Products (Amendments) (EU Exit) Regulations SI 2018/1034;
  • Ionising Radiation (Basic Safety Standards) (Miscellaneous Provisions) (Amendment) (EU Exit) Regulations SI 2018/1278.

We will keep this page updated with all the latest developments and proposed negative statutory instruments so you can keep track of any upcoming changes.

The UK has finally "agreed" on and published their Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community.

This details the terms reached by the European Commission and UK negotiators on the United Kingdom's withdrawal from the European Union and the European Atomic Energy Community.

The Agreement covers all elements of the UK's withdrawal from the EU, including:

  • a transition period;
  • citizen's rights;
  • the financial settlement;
  • governance;
  • terms of a legally operational backstop to ensure no hard border between Ireland and Northern Ireland;
  • Protocols on Cyprus and Gibraltar,

and a range of other separation issues including goods placed on the European market.

Transition period

The Agreement provides for a transition period until 31 December 2020. During this proposed period:

  • EU law will continue to apply to the UK as if it were an EU Member State;
  • the UK will participate in the EU Customs Union and the Single Market, with all four freedoms, and Union Policies;
  • all EU regulatory, budgetary, judiciary and enforcement instruments will apply, meaning the Court of Justice of the European Union (CJEU) will have competence in the UK.

It is intended that this transition period will provide:

  • the UK and EU with time to negotiate a future relationship; and
  • national administrations and businesses with time to prepare for a new relationship.

During this period, the UK can't be bound by any new trade agreements on its own in areas of EU exclusive competence, unless authorised by the EU to do so.

On the withdrawal date, 11pm on 29 March 2019, the UK will have technically left the EU and so will no longer be a part of EU decision making from that point. This means the UK will not be represented in EU institutions, agencies and bodies, and will no longer participate in meetings of Member State groups, subject to exceptions.

During the transition period the UK can't act as a rapporteur for European authorities or Member States, this includes activities such as conducting a risk assessment for the European Chemicals Agency (ECHA) or assessing the safety of a medicine.

An area of contention in particular in UK Parliament was around fisheries. Until the transition period ends, the UK will be bound by decisions on fishing opportunities. However the UK will be consulted on its fishing opportunities.

Extension of a transition period

There is the possibility to extend the transition period providing that this is done by mutual UK and EU agreement and decided by the Joint Committee by 1 July 2020.

The UK may request additional time to ensure a future agreement is made with the EU.

International agreements

During the transition period, the UK will be bound by obligations from all EU international agreements, including multilateral mixed agreements.

After the Withdrawal Agreement is signed the EU will notify other parties to international agreements of the consequences of the UK's withdrawal and will cover all international agreements. 

Common provisions

The provisions of the Withdrawal Agreement must have the same legal effects in the UK as in the EU and its Member States.

Until the end of the transition period when the UK leaves the EU, UK courts must abide by the principle of consistent interpretation with the CJEU case law. After this date UK courts should still pay regard to CJEU case law.

Specifically, the Agreement requires the UK to ensure compliance with the common provisions through domestic legislation, with the UK judicial and administrative authorities disapplying inconsistent or incompatible national law. 

Any reference to European law in the Withdrawal Agreement includes amendments made to it up until the last day of the transition period.

Unless specifically agreed otherwise, the UK will be disconnected from all EU networks and databases at the end of the transition period.

Citizen's rights

The Agreement safeguards the right to stay and continue their current activities for over 3 million EU citizens in the UK, and over 1 million UK nationals in EU countries.

It enables both EU citizens and UK nationals, as well as their respective family members, to continue to exercise their rights derived from EU law in each other's territories, for the rest of their lives, where those rights are based on life choices made before the end of the transition period.

EU and UK citizens, as well as their respective family members can continue to live, work or study as they currently do under the same substantive conditions as under EU law, benefiting in full from the application of the prohibition of any discrimination on grounds of nationality and of the right to equal treatment compared to host state nationals.

EU free movement will apply until the end of the transition period, after this EU and UK citizens will be able to remain and work or study in the UK or EU state.

Goods placed on the market

Goods lawfully placed on the market in the EU or the UK before the end of the transition period may continue to freely circulate in and between these two markets, until they reach their end-users, without any need for product modifications or re-labelling. This means that goods that will still be in the distribution chain at the end of the transition period can reach their end-users in the EU or the UK without having to comply with any additional product requirements.

However the movement of live animals and animal products between the EU market and the UK's market will, as from the end of the transition period, be subject to the applicable rules of the Parties on imports and sanitary controls at the border, regardless of whether they were placed on the market before the end of the transition period.

Euratom

The UK withdraws from Euratom and accepts sole responsibility for continued performance of nuclear safeguards and its international commitment to a future regime that provides coverage and effectiveness equivalent to existing Euratom arrangements. 

Euratom will transfer ownership of equipment and other property in the UK related to safeguards for which it will be compensated at book value to the UK.

This also means Euratom's international agreements will no longer apply to the UK and that the UK needs to engage with international partners in that context.

Ongoing judicial procedures

The CJEU will remain competent for judicial procedures concerning the UK registered at the CJEU before the end of the transition period, and those procedures will continue until a final binding judgment is given in accordance with EU rules. All stages of proceedings are concerned, including appeals or referrals back to the General Court. This allows for pending cases to reach completion in an orderly way.

Within four years from the end of the transition period, the Commission may bring before the CJEU new infringement cases against the UK, concerning breaches of Union law which occurred before the end of the transition period.

Financial settlement

The UK will honour its share of financing all the obligations undertaken while it was a member of the Union, in relation to the EU budget, the European Investment Bank, the European Central Bank, the Facility for Refugees in Turkey, EU Trust Funds, Council agencies and also the European Development Fund.

Environmental protection

The Agreement states a commitment to non-regression in the level of environmental protection in both the EU and the UK. It states that the UK will continue to respect the:

  • precautionary principle;
  • principle that preventive action should be taken;
  • principle that environmental damage should as a priority be rectified at source; and
  • polluter pays principle,

in environmental legislation.

The Joint Committee will adopt decisions that will apply from the end of the transition period and establish minimum commitments for:

  • the reduction of national emissions of certain atmospheric pollutants;
  • the maximum sulphur content of marine fuels which may be used in territorial seas including in the North Sea, Baltic Sea area and in EU and UK ports;
  • best available techniques including emission limit values, in relation to industrial emissions.

Both the UK and the EU:

  • must take the necessary measures to meet their respective commitments to international agreements to address climate change;
  • reaffirm their commitment to implement the multilateral agreements they are are party to.

The UK must implement a system of carbon pricing at least the same effectiveness and scope as that set out in Directive 2003/87/EC on scheme for greenhouse gas emission allowance trading within the Community (EU Emissions Trading Scheme).

An independent body in the UK must implement a transparent system to ensure effective domestic monitoring, reporting and oversight of its environmental protection obligations. This body must have powers to conduct inquiries concerning alleged breaches by public bodies and UK authorities.

Labour and social standards

The Agreement states a commitment to the non-regression of labour and social standards in both the EU and the UK. This includes ensuring:

  • fundamental rights at work;
  • occupational health and safety;
  • fair working conditions;
  • employment standards;
  • information and consultation rights at company level,

do not reduce below the common standards at the EU and UK level.

Protocol on Ireland and Northern Ireland

One of the key issues in withdrawal negotiations has been the prevention of a hard border between Ireland and Northern Ireland and the so-called 'backstop'.

If an agreement on the future EU-UK relationship is not applicable by 31 December 2020, the EU and the UK have agreed that a backstop solution will apply until such a time as a subsequent agreement is in place.

In a backstop scenario, a single EU-UK customs territory will be established from the end of the transition period until the future relationship becomes applicable. Northern Ireland will therefore remain part of the same customs territory as the rest of the UK with no tariffs, quotas, or checks on rules of origin between Northern Ireland and the rest of the UK.

Negotiations on the future EU-UK relationship will only be conducted during the transition period, consequently this legally operational backstop guarantees that no hard border returns – whatever the circumstances.

What next?

It is up to the President of the European Council to decide whether and when to convene a meeting of the 27 Heads of State or Government. This has currently been announced by Donald Tusk for 25 November 2018. It will be up to the European Council to endorse the withdrawal agreement and the joint political declaration on the framework of the future relationship.

Once the European Council endorse the Withdrawal Agreement, and before it can enter into force, it needs to be ratified by the EU and the UK. For the EU, this means the European Council must authorise the signature, before sending it to the European Parliament for its consent.

The United Kingdom must ratify the Agreement according to its own constitutional arrangements. This will mean any Agreement will need to pass a Parliamentary vote.

For more information, see the:

The Health and Safety Executive (HSE) has announced the introduction of enforced control measures for welding operations.

This follows the International Agency for Research on Cancer (IARC) classifying welding fumes and UV radiation as a Group one carcinogenic.

There are four groups used to classify carcinogens, and Group one represents substances with the highest level of risk. This group contains just over 100 substances which are classed as 'carcinogenic to humans'.

The HSE's enforced control standards state that all forms of welding fume can cause cancer, and that control is required where:

  • indoor welding tasks require the use of local exhaust ventilation (LEV);
  • if LEV is unable to control fume capture the respiratory protective equipment (RPE) is also required; and
  • outdoor welding requires the use of RPE.

Enforcement of these raised control standards has immediate effect and will fall under Regulation 7, on prevention or control of exposure to substances hazardous to health, under the Control of Substances Hazardous to Health Regulations SI 2002/2677.

The HSE is currently developing an intervention plan in relation to this announcement, and will issue a safety alert in the coming weeks along with associated control requirements.

An HSE spokesperson stated: ''HSE is currently reviewing evidence relating to the exposure to welding fumes from working on all types of metal. We are consulting with industry stakeholders to prepare for any additional measures needed to control exposure to welding fumes. We will confirm the updated position as soon as is appropriate.''

Michael Edwards, who represents IOSH on the Industry and Regulatory Forum on Local Exhaust Ventilation (LEV) commented: ''The raised control standards for welding fumes are now in effect for organisations within the UK and will have implications to a whole range of different industries where welding operations occur. Further efforts must be made to protect workers involved in welding as part of their roles. IOSH urges employers in the UK to review current welding control measures in place to ascertain that they meet these raised control standards. This may also mean that risk assessments and risk registers may need updating to ensure that they reflect the new requirements.''

For more information, see the:

  • Control of Substances Hazardous to Health Regulations SI 2002/2677.

Companies in the UK are being urged to disclose how many of their workers have a disability or a mental health condition in a drive for greater transparency.

The Department for Work and Pensions (DWP), the Department of Health and Social Care (DHSC), employers and charities, have developed a Framework to support employers that want to report the information.

The Guide is intended for organisations with more than 250 employees but can also be used by smaller businesses.

It advises on how to collect data for reporting, includes recommended questions and a series of prompts to shape the employer narrative.

Question topics include:

  • job satisfaction;
  • rating of overall mental health;
  • recording of anxiety in a given day.

The answers will provide a starting point for employers to measure employee wellbeing through anonymous staff surveys and self-service HR records.

The Framework states that by recording and reporting information on disabilities, mental health and wellbeing, there could be an improvement of employee engagement and retention; disability-friendly recruitment; inclusive environments for workers; and a cultural shift towards increased transparency.

Sarah Newton, Minister for Disabled People, Health and Work, urged employers to take part in the Framework to drive diversity and inclusivity in their businesses. She added "our voluntary reporting framework builds on our long-standing commitment to companies to help them in supporting their staff at all levels to create more inclusive workforces".

The Framework was welcomed by Anna Bird, Director of Policy and Research for national disability charity SCOPE, although "the Government must ensure that this information shapes future approaches to increasing disability employment".

This opinion agreed by Denise Keating, chief executive for Employers Network for Equality & Inclusion, who sees the Framework as a "first step" towards organisations reporting their disability pay gap.

For more information on this subject, see:

 

New prohibitions on animal traps
Published: 17 Jan 2019

New provisions come into force on 28 March 2019 which place new prohibitions on the use of traps or snares.

The Humane Trapping Standards Regulations SI 2019/22 add new provisions to the Wildlife and Countryside Act 1981 which add further restrictions on traps or snares to kill, take or restrain:

  • Badgers,
  • European beavers;
  • Pine Martens;
  • Common Otters;
  • Stoats (from 1 April 2020).

However, under the new provisions, traps and snares can be used in such a way as long as a licence has been granted for doing so. Those involved in the setting of humane traps must meet certain conditions before a licence will be granted, and must obtain a licence to continue setting the traps mentioned above after 28 March 2019.

The Government has published new Draft REACH etc. (Amendment etc.) (EU Exit) Regulations 2019 on how the UK's system for chemicals regulation will operate once the UK leaves the EU.

These proposed Regulations make various amendments to Regulation (EC) 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and establishing a European Chemicals Agency (ECHA), which currently governs chemical regulation within the European Union. The new UK REACH system will be similar to the European system under the REACH Regulation, mirroring the key principle of no data, no market for chemicals.

When these Regulations are brought into force the aim is that REACH provisions can work effectively within the UK to provide a UK system of chemicals regulation. The functions undertaken by the ECHA under Regulation (EC) 1907/2006 will be transferred to domestic bodies, predominantly the Health and Safety Executive (HSE), who already have some functions under REACH as the UK's competent authority. Any duties relating to appeals under REACH will be heard by the first-tier tribunal instead of the ECHA Board of Appeal. 

There are transitional provisions in the Draft Regulation to allow industry to move to the new UK system and reduce disruption. UK companies will be able to continue to undertake the same activities in relation to chemicals as they did prior to the UK leaving the EU, however they will need to provide the HSE with some information in order to do so.

Transferring existing UK registrants to the new UK system

UK based companies with existing REACH registrations held in the period of two years prior to the UK's exit from the EU, including UK-based only representatives, will automatically be transferred to the new UK REACH system with no break in their validity. These registrants will not have to re-register their substances in the UK, they will not have any new fees to pay, and they will continue to have access to the UK market.

All transferring UK registrants will need to resubmit their original REACH registration data to the HSE over a two stage process.

Within 60 days of the UK leaving the EU basic data will need to be submitted to the HSE, including:

  • company details;
  • chemicals registered;
  • quantities produced; and
  • evidence of existing ECHA registration.

Within two years of the UK's exit full information will need to be submitted to the HSE, appropriate to the registrant's tonnage band under REACH.

A new system will be implemented to facilitate the operation of the UK REACH system to which companies will be able to upload their required data.

ECHA decisions prior to exit

All ECHA decisions on UK registrations, including decisions on testing proposals, dossier and substance evaluations, taken immediately prior to exit day will continue to be in force. Any deadlines established in those decisions may be amended by the HSE after exit day.

Notification by UK importers from the European Economic Area

UK companies who source substances from suppliers in the rest of the EEA will become importers into the UK market on exit day. This means they will then have the duty to register the substances they are importing from the EEA.

There are transitional measures proposed in the Draft Regulations to help facilitate this. These importers will be required to complete an interim notification system, rather than undertake a full registration immediately after exit. This will allow qualifying companies to continue to buy substances from the EEA without interruption. Within 180 days of exit day, these companies will need to submit basic data on the company, substances, and information for safe use using the interim notification system. After two years this interim notification system will be replaced with full registration.

Existing authorisations and applications

Existing authorisations held by UK companies will continue to have effect after exit day. Any applications to request an extension of the authorisation at the review date specified should be made to the HSE.

A UK company whose substance is covered by a non-UK authorisation can continue to use that substance for the length of the EU authorisation. That UK company will need to supply the HSE with the conditions that govern that authorisation, and continue to comply with them.

Any authorisations that have been considered by the ECHA prior to exit day, but have not yet been granted authorisation, on exit day, the case will be decided by the Secretary of State with the consent of devolved administrations.

Appeals

Any appeals on decisions made by the HSE under the UK's new system of REACH will be heard by the First-tier tribunal. They may:

  • dismiss the appeal;
  • refer the decision back to the HSE for reconsideration; or
  • substitute the decision with its own.

Fees

The system of fees and charges established in Regulation (EC) 1907/2006 for submitting registration dossiers and applications for for authorisations will be retained. Fees will be payable to the HSE, apart from fees for appeals which will be payable to the First-tier tribunal.

Enforcement

Enforcement authorities in the UK will continue to have their existing roles in relation to enforcement under Regulation (EC) 1907/2006. New enforcement duties will also be introduced and will be enforced by the HSE in England, Wales and Scotland, and the HSE NI in Northern Ireland.

What next?

The progress of Brexit is currently unclear and these Regulations are for now just in draft format, but you can be certain that we will endeavour to keep you up-to-date with all the latest legislative developments.

For more information, see the:


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