News

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 28 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.

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 Health and Safety Executive (HSE) has published a document that is part of the series of guidance documents aimed in preparation for Brexit if there's "no deal" made with the European Union.

The guidance claims that such a scenario is unlikely, given the mutual interests of the UK and the EU in securing a negotiated outcome of the UK's departure. Nevertheless, a "no deal" scenario must be taken into account if in March 2019 there will be no agreement between the parties and Brexit takes place.

Its purpose is to outline the arrangements that would come into force to regulate chemicals in a "no-deal" scenario, with respect to Regulation (EC) 1272/2008 on classification, Labelling and Packaging of substances and mixtures (CLP Regulation).

CLP in the EU

Under the CLP Regulation, chemicals are classified based on their intrinsic hazards such as:

  • carcinogenic;
  • toxic for reproduction;
  • mutagenic;
  • flammability;
  • toxic for the aquatic environment and more.

If a chemical is classified as meeting one of the hazard classes, it must be labelled and packaged accordingly. The process of classification at EU level is dynamic, with changes and revisions being made through Adaptations to Technical Progress (ATPs) at least once a year, to reflect the latest scientific and technical data.

Hazard identification, through the CLP Regulation, is required to apply a combination of legislative measures through:

  • Regulation (EC) 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH);
  • Regulation (EU) 528/2012 on the making available on the market and use of biocidal products; and 
  • Regulation (EC) 1107/2009 on the placing of plant protection products on the market, to deliver the necessary control measures.

Under the CLP Regulation, suppliers of hazardous chemicals are required to classify (identify the intrinsic hazardous properties), label and package the chemicals they place on the market.

Manufacturers and importers are also required to notify details of their classifications to the European Chemicals Agency (ECHA) for inclusion in the Classification and Labelling Inventory.

A no-deal scenario

If there is "no deal" made between UK and the EU by 29 March 2019, the UK would establish an independent standalone chemicals regime, adopt the UN Globally Harmonised System (GHS) for the classification and labelling of chemicals the same way as the EU, where the UK classification and labelling regime would be based on the existing EU regulatory regime in order to provide continuity for business, with certain technical amendments to  enable functions presently carried out by the EU authorities and the ECHA to be carried out by the UK authority - the HSE.

The majority of provisions of the CLP Regulation would continue to be applied in the UK, so the main duties and obligations on suppliers to classify, label and package hazardous chemicals placed on the market would remain in place. This means the duties on UK manufacturers, importers and downstream users to classify, label and package the substances and mixtures they place on the UK market will remain. 

The packaging requirements stay the same, including those for child resistant closures and tactile warning devices. Also the testing arrangements, including the prohibition of testing on humans or non-human primates for the purposes of the CLP Regulation, will still apply.

Implications

In case of a "no-deal" scenario:

  • companies importing chemicals into the UK from EU countries would become importers under the CLP Regulation and would need to be sufficiently competent to comply with the duties and obligations on an importer, just as they would if importing chemicals into the UK from a non-EU country;
  • organisations would interact with the HSE for UK CLP functions, for example submission of notifications of classifications of chemicals;
  • the HSE would act as the CLP competent authority for the UK, on behalf of the Secretary of State and the devolved administrations;
  • companies would be required to use new UK arrangements and IT tools provided by the HSE, these IT tools would be a UK mandatory classification and labelling list (of substances) and a UK notification database and the new arrangements will be operational after 29 March 2019, if there’s no deal;
  • responsibility for chemicals being imported into the EU from the UK would rest with whoever is the EU-based importer – the importer may therefore need details of the chemicals involved from the UK-based company.

CRC revoked
Published: 12 Oct 2018

The long-awaited revocation of the CRC Energy Efficiency Scheme Order SI 2013/1119 finally happened on 1 October 2018. However, there are some savings attached to the revocation which means it will remain in force, for limited purposes, for the time being.

We've written a short guide below to explain what is going on.

What is CRC?

The CRC Scheme began in 2010 and is a mandatory UK-wide trading and reporting scheme designed to improve energy efficiency and to lower emissions across the public and private sector.

It is divided into phases, with the very first phase running between April 2010 and March 2014. The current phase, or "initial phase", began on 1 April 2014 and is set to end on 31 March 2019.

If an organisation in the UK meets the qualification criteria for a particular phase, it is required (amongst other things) to:

  • record and report its energy use for a compliance year;
  • purchase and surrender allowances to cover its emissions;
  • keep records.

The existing legislation, had it not been revoked, would have allowed the CRC Scheme to run through five more phases from April 2019, continuing up until 2043.

What is happening with CRC?

The government has decided to end the CRC scheme early. As a result, the current phase, which ends on 31 March 2019, will be the last phase of the CRC Scheme.

However, there are some savings in force which will continue to apply to CRC, but we'll explain these a bit further down.

Why is CRC ending early?

Since it was introduced in 2010, those involved in the CRC Scheme have found it complex and burdensome. Even though the government took steps in 2013 to simplify the Scheme, it has remained unpopular.

Then, during the 2015 Summer Budget, the government announced that it would be reviewing the business energy efficiency tax landscape, which included the CRC Scheme. Following this announcement, a consultation was launched in September 2015 with the aim of gathering views on the energy efficiency tax landscape.

Clearly, the support for the CRC Scheme remained low, and the government stated, following the consultation, that it would end the CRC Scheme at the end of the initial phase in 2019.

This decision is part of a series of reforms aimed to improve the energy efficiency tax landscape. Other reforms include:

  • increasing the rates of the Climate Change Levy in order to recover the loss of revenue from the early closure of the CRC Scheme;
  • the introduction of a streamlined energy and carbon reporting framework for business by April 2019.

When is CRC revoked, and what are the savings?

The CRC Energy Efficiency Scheme Order SI 2013/1119 was officially revoked on 1 October 2018, subject to savings. This means there are some provisions that will continue in force in order to allow the CRC Scheme to close efficiently and smoothly.

In essence, this is what the savings mean:

  • the CRC Scheme will end once the current phase is over, on 31 March 2019. Those who qualified for the current phase will still have to comply with their obligations though. This means they must report their emissions to the Administrator by the last working day of July 2019 and must also purchase and surrender allowances by the last working day of October 2019;
  • there were some amendments to the CRC Energy Efficiency Scheme Order SI 2013/1119 and the CRC Energy Efficiency Scheme Order SI 2010/768 on 1 October 2018. Those amendments:
    • require the Administrator to maintain the Registry (which is where participants submit annual reports and sort out allowances) until the end of March 2022,
    • state that the accounts that exist for the purpose of the CRC Scheme will be closed on 1 April 2022,
    • confirm that after March 2022, trading of allowances will stop,
    • continue the powers of the Administrator to monitor and enforce compliance by participants who qualified for the current phase or the previous phase,
    • state that from March 2022, the Administrator will no longer be able to impose penalties requiring the purchase and surrender of additional allowances,
    • require participants who qualified for the current phase (2014-2019) to inform the Administrator of a change of address until 1 April 2025,
    • require the Administrator to maintain a list of participants for the current phase and the last phase up until the end of March 2025,
    • require participants who qualified for the current phase (2014-2019) to maintain their records up until the end of March 2025. Those who qualified for the previous phase (2010-2014) are required to maintain their records until the end of March 2021.

So, although the CRC Scheme will have ended, there are still some obligations to meet for different people up until 2025.

The main point is that no organisation will have to register for a new phase of the CRC Scheme.

For more information, see the:

  • CRC Energy Efficiency Scheme (Revocation and Savings) Order SI 2018/841.

Following three years of research and a week of debate between scientists and government officials, the Intergovernmental Panel on Climate Change has issued a report on the impact of global warming of 1.5C above pre-industrial levels; and the reading is not particularly great.

The report begins by stating that global warming is "likely" to reach 1.5C between 2030 and 2052 "if it continues to increase at the current rate". Unfortunately, the world seems to be off-track in terms of tackling climate change which could actually result in higher levels of warming in the future if we're not careful.

Essentially, it could be our last chance to ensure that climate change influenced by human activity does not reach a level where the earth could be in real trouble. However, it will require real, significant and rapid investment alongside some large-scale changes from governments and individuals.

Even after doing all that - if we do all of that - we will still need technological development, advancement and deployment to ensure we capture carbon from the air.

The report estimates that limiting the global warming pathway to 1.5C will "involve the annual average investment...in the energy system of around 2.4 trillion USD". Although this is a huge amount of money, experts are urging people to see the wider context of that price. Dr Stephen Cornelius, former UK IPCC negotiator currently working with WWF, said that the costs and benefits should be weighed up. For example, cutting emissions hard and fast will result in high costs, but will be cheaper than removing carbon dioxide in the future. He added "The report also talks about the benefits as there is higher economic growth at 1.5 degrees than there is at 2C, and you don't have the higher risk of catastrophic impacts at 1.5 that you do at 2."

If the report is ignored and no action is taken, we could see the the coral reefs being wiped out entirely, which would have big implications for marine ecosystems. Furthermore, global-sea level will rise around 10cm if we get to 2C of warming, which doesn't sound a lot but will affect around 10 million people.

Dr Debra Roberts, co-chair of the IPCC, said, "It is feasible if we all put our best foot forward, and that's a key message of this report. No-one can opt out anymore. We all have to fundamentally change the way we live our lives; we can't remain remote from the problem anymore. The report is very clear, this can be done, but it will require massive changes, socially and politically and accompanied by technological development."

The Government has published a series of Technical Notices during August and September, which set out information to allow businesses and the public to understand what they would need to do in a ‘no deal’ scenario, so they can make informed plans and preparations.

They maintain that the UK leaving the EU without an agreement remains unlikely, given the mutual interests of both sides in securing a negotiated outcome. However, they have a duty to prepare for all eventualities, including ‘no deal’.

What is a 'no deal' scenario?

Until both the UK Government and the European Union sign a Withdrawal Agreement and it is ratified by the UK Parliament and the European Parliament, there remains a possibility that we may leave the EU without a deal in March 2019.

The UK triggered Article 50 of the Treaty of the European Union on 29 March 2017. As set out under that treaty, the UK has two years to negotiate a Withdrawal Agreement and framework for a future relationship with the EU before they exit from the EU at 11pm on 29 March 2019.

A 'no deal' scenario is one where the UK leaves the EU and becomes a third country at 11pm on 29 March 2019 without a Withdrawal Agreement and framework for a future relationship in place between the UK and the EU.

In such a scenario there would therefore be no agreement to apply any of the elements of the Withdrawal Agreement described above.

What the Technical Notices cover

The new guidance covers 19 different areas, including things like driving and transport, personal data and consumer rights and importing and exporting.

Significantly though, there are specific Notices relating to:

PROTECTING THE ENVIRONMENT

Under this subject, are the following Notices:

Industrial emissions standards (‘best available techniques’) if there’s no Brexit deal

This Notice sets out how the Industrial Emissions Best Available Technique (BAT) regime would be affected if the UK leaves the EU in March 2019 without a deal.

It looks at:

  • the situation before 29 March 2019;
  • what will happen after 2019 if there is no deal.

For more information, see:

https://www.gov.uk/government/publications/industrial-emissions-standards-best-available-techniques-if-theres-no-brexit-deal/industrial-emissions-standards-best-available-techniques-if-theres-no-brexit-deal

Reporting CO2 emissions for new cars and vans if there’s no Brexit deal

This Notice provides manufacturers with information about regulating and reporting CO2 emissions of new cars and vans registered in the UK if we leave the EU in March 2019 with no agreement in place.

It looks at:

  • the situation before 29 March 2019;
  • what will happen after 2019 if there is no deal;
  • what you would need to do in the event of no deal, including with regard to:
    • data and targets,
    • pooling,
    • derogations,
    • eco-innovations,
    • registrations in the EU.

For more information, see:

https://www.gov.uk/government/publications/reporting-co2-emissions-for-new-cars-and-vans-if-theres-no-brexit-deal/reporting-co2-emissions-for-new-cars-and-vans-if-theres-no-brexit-deal

Upholding environmental standards if there’s no Brexit deal

This Notice sets out how the UK Government will uphold environmental standards if the UK leaves the EU in March 2019 without a deal.

These include standards in areas such as waste, air quality, water, and protection of habitats and species.

It looks at:

For more information, see:

https://www.gov.uk/government/publications/upholding-environmental-standards-if-theres-no-brexit-deal/upholding-environmental-standards-if-theres-no-brexit-deal

Using and trading in fluorinated gases and ozone depleting substances if there’s no Brexit deal

This Notice sets out how the UK would continue to regulate the trade and use of fluorinated greenhouse gases and ozone depleting substances if the UK leaves the EU in March 2019 without a deal.

These gases are used as refrigerants, feedstocks for the manufacture of other chemicals, in medical inhalers, fire extinguishers and in a range of other applications.

It looks at:

  • the situation before 29 March 2019;
  • what will happen after 2019 if there is no deal;
  • possible implications of no deal, in relation to:
    • fluorinated greenhouse gases,
    • ozone depleting substances,
    • certification.

For more information, see:

https://www.gov.uk/government/publications/using-and-trading-in-fluorinated-gases-and-ozone-depleting-substances-if-theres-no-brexit-deal/using-and-trading-in-fluorinated-gases-and-ozone-depleting-substances-if-theres-no-brexit-deal

LABELLING PRODUCTS AND MAKING THEM SAFE

Under this subject, is the following Notice:

Regulating chemicals (REACH) if there’s no Brexit deal

This Notice sets out how businesses producing, registering, importing or exporting chemicals under Regulation (EC) 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) would be affected if the UK leaves the EU in March 2019 with no deal.

It looks at:

  • the situation before 29 March 2019;
  • what will happen after 2019 if there is no deal;
  • possible implications of no deal, including:
    • continued access to the UK market and maintaining existing standards of protection for human health and the environment;
  • maintaining or securing EEA market access.

For more information, see:

https://www.gov.uk/government/publications/regulating-chemicals-reach-if-theres-no-brexit-deal/regulating-chemicals-reach-if-theres-no-brexit-deal

REGULATING ENERGY

Under this subject, are the following Notices:

Civil nuclear regulation if there’s no Brexit deal

This Notice explains to the civil nuclear industry and stakeholders how the sector will be affected in the UK in the unlikely event that the UK leaves the EU and the European Atomic Energy Community (Euratom) in March 2019 with no agreement in place.

It covers:

  • nuclear safeguards;
  • ownership of special fissile material;
  • supply contracts for nuclear material;
  • export licence arrangements;
  • import licence arrangements;
  • nuclear co-operation agreements;
  • management of spent fuel and radioactive waste;
  • reporting and notification obligations;
  • notification of radioactive source shipments.

For more information, see:

https://www.gov.uk/government/publications/civil-nuclear-regulation-if-theres-no-brexit-deal/civil-nuclear-regulation-if-theres-no-brexit-deal

Generating low-carbon electricity if there’s no Brexit deal

This Notice explains to electricity generators and suppliers, installers of certain microgeneration technologies, and renewable electricity suppliers and generators how the following will apply in the unlikely event that the UK leaves the EU in March 2019 with no agreement in place:

  • how rules for guarantees of origin for electricity generated from high-efficiency co-generation will apply in the UK;
  • getting a renewable energy guarantees of origin certificate from the Gas and Electricity Markets Authority or the Northern Ireland Authority for Utility Regulation, and where certificates will be recognised;
  • how the UK and European Economic Area states will recognise installer certification for installers of certain microgeneration technologies;
  • the implications for support for generating low-carbon electricity, including support schemes like feed-in tariffs, contracts for difference and the renewables obligation.

For more information, see:

https://www.gov.uk/government/publications/generating-low-carbon-electricity-if-theres-no-brexit-deal/generating-low-carbon-electricity-if-theres-no-brexit-deal

Nuclear research if there’s no Brexit deal

This Notice explains how civil nuclear research that the UK already carries out with the EU will be affected in the unlikely event that the UK leaves the EU in March 2019 with no agreement in place.

It is relevant to all researchers and research organisations in the fields of nuclear fission research (the current method of energy generation used at power plants), and nuclear fusion research (experimental energy generation technology).

It covers:

  • the situation before 29 March 2019;
  • what will happen after 2019 if there is no deal;
  • possible implications and actions for businesses and stakeholders, including:
    • Joint European Torus - continued funding,
    • guarantee for competitive EU funds,
    • for international partnerships,
    • UK researchers working in the UK on Euratom Research and Training programmes.

For more information, see:

https://www.gov.uk/government/publications/nuclear-research-if-theres-no-brexit-deal/nuclear-research-if-theres-no-brexit-deal

Running an oil or gas business if there’s no Brexit deal

This Notice explains to businesses engaged in energy sector activities (such as oil and gas exploration and production operations), and companies obligated under the UK’s Compulsory Stockholding of Oil regime, how these will apply should the UK leave the EU in March 2019 with no agreement in place.

It covers:

  • oil and gas licensing;
  • environmental protection relating to relevant energy sectors;
  • oil stocking arrangements.

For more information, see:

https://www.gov.uk/government/publications/running-an-oil-or-gas-business-if-theres-no-brexit-deal/running-an-oil-or-gas-business-if-theres-no-brexit-deal

WORKPLACE RIGHTS

Under this subject, is the following Notice:

Workplace rights if there’s no Brexit deal

This Notice informs businesses, workers and the public of the UK’s plans to continue workplace protections in the unlikely event that the UK leaves the EU in March 2019 with no agreement in place.

The Government have stressed the importance of maintaining the workplace rights and protections that have came from EU law and have been implemented already in the UK, including:

  • working time rights, such as annual leave, holiday pay and rest breaks;
  • requirements to protect the health and safety of workers;
  • protections for agency workers and workers posted to the UK from EU states;
  • legislation to prevent and remedy discrimination and harassment in the workplace;
  • family leave entitlements, such as maternity and parental leave;
  • protecting workers’ rights when there is a transfer of business or contracts from one organisation to another (TUPE);
  • legislation to cover employment protection of part-time, fixed-term and young workers;
  • information and consultation rights for workers, including for collective redundancies.

However there are potential implications relating to:

  • employer insolvency;
  • European Works Councils;
  • UK and EU employees working in an EU country;
  • UK businesses and trade unions.

For more information, see:

https://www.gov.uk/government/publications/workplace-rights-if-theres-no-brexit-deal/workplace-rights-if-theres-no-brexit-deal

The Scottish Government's alternative to the European Union (Withdrawal) Act 2018 has been passed by Members of the Scottish Parliament (MSPs).

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (the Continuity Bill) has undergone considerable hours of debate, and has been put forward as part of an ongoing row over a UK framework of post-Brexit powers.

Scotland's Brexit Secretary Michael Russell has however stated he hopes to still be able to agree to a deal with the UK Government rather than use the Bill.

What is the Continuity Bill?

Currently, there are a whole host of powers which are technically devolved, but fall into EU-led frameworks for issues like agriculture and fishing.

When the UK leaves the EU, these powers will no longer be controlled from Brussels, and there is intense scrutiny from Holyrood and Westminister over how this will happen. For example:

  • where the powers would go;
  • how common frameworks are set up and administered.

So far, Holyrood has not given its consent to the European Union (Withdrawal) Act 2018, something Russell describes as "incompatible with the devolution settlement".

Without such consent, Westminster could pass legislation under it without certain provisions applying to Scotland, essentially leaving a legislation gap.

The plan is to fill it with the Continuity Bill, which would effectively be the Scottish Parliament's own version of the European Union (Withdrawal) Act 2018, bringing EU laws across onto the domestic statute book ahead of Brexit. They would then be free to amend or revoke them as they wish.

However, the situation is not straightforward, making a simple division of powers difficult due to the complex way in which EU, UK and Scottish law is linked together.

Controversy

There has been a fierce debate over section 13 of the Bill, which is not mirrored in the Westminster legislation, and would allow ministers to propose "keeping pace" with EU laws post-Brexit. This means they could maintain regulatory equivalence with the EU in key fields such as environmental protection.

This has been criticised as a "back door excuse for the SNP to hand powers back to Brussels".

There is also the wider argument that the Bill may not be within the Scottish Parliament's legislative remit.

Next steps

Although the Continuity Bill has been passed by MSPs, it is not yet on the statute books.

It has been referred to the Supreme Court under section 33 of the Scotland Act 1998 by the Attorney General and the Advocate General for Scotland who will make a decision as to whether the Bill is within the Scottish Parliament's remit, or if it is fundamentally inconsistent with the European Union (Withdrawal) Act 2018 and should be struck down.

The Supreme Court is not expected to return a judgement until the autumn.


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