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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;
  • Feed-in Tariffs and Contracts for Difference (Amendment) (EU Exit) Regulations SI 2018/1092;
  • Electricity (Guarantees of Origin of Electricity Produced from Renewable Energy Sources) (Amendment) (EU Exit) Regulations SI 2018/1093;
  • Merchant Shipping (Monitoring, Reporting and Verification of Carbon Dioxide Emissions) (Amendment) (EU Exit) Regulations SI 2018/1388;
  • Animal By-Products and Transmissible Spongiform Encephalopathies (England) (Amendment) (EU Exit) Regulations SI 2018/1120;
  • Rail Passengers’ Rights and Obligations (Amendment) (EU Exit) Regulations 2018 SI 2018/1165;
  • Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Miscellaneous Amendments) (EU Exit) Regulations SI 2018/1202;
  • Merchant Shipping (Miscellaneous Provisions) (Amendments etc.) (EU Exit) Regulations SI 2018/1221;
  • Environmental Assessments and Miscellaneous Planning (Amendment) (EU Exit) Regulations SI 2018/1232;
  • Planning (Hazardous Substances and Miscellaneous Amendments) (EU Exit) Regulations SI 2018/1234;
  • Planning (Environmental Assessments and Miscellaneous Amendments) (EU Exit) (Northern Ireland) Regulations SI 2018/1235;
  • Ionising Radiation (Basic Safety Standards) (Miscellaneous Provisions) (Amendment) (EU Exit) Regulations SI 2018/1278;
  • Electricity and Gas (Powers to Make Subordinate Legislation) (Amendment) (EU Exit) Regulations SI 2018/1286;
  • Pipe-lines, Petroleum, Electricity Works and Oil Stocking (Miscellaneous Amendments) (EU Exit) Regulations SI 2018/1325;
  • CRC Energy Efficiency Scheme (Amendment) (EU Exit) Regulations SI 2018/1336;
  • INSPIRE (Amendment) (EU Exit) Regulations SI 2018/1338;
  • Energy Savings Opportunity Scheme (Amendment) (EU Exit) Regulations SI 2018/1342;
  • Health and Safety (Amendment) (EU Exit) Regulations SI 2018/1370;
  • Health and Safety (Amendment) (Northern Ireland) (EU Exit) Regulations SI 2018/1377;
  • Marine Environment (Amendment) (EU Exit) Regulations SI 2018/1399;
  • Merchant Shipping (Accident Reporting and Investigation) and the Railways (Accident Investigation and Reporting) (Amendment) (EU Exit) Regulations SI 2018/1400;
  • Persistent Organic Pollutants (Amendment) (EU Exit) Regulations SI 2018/1405;
  • Air Quality (Miscellaneous Amendment and Revocation of Retained Direct EU Legislation) (EU Exit) Regulations SI 2018/1407;
  • Trade in Endangered Species of Wild Fauna and Flora (Amendment) (EU Exit) Regulations SI 2018/1408;
  • Aquatic Animal Health and Alien Species in Aquaculture (EU Exit) (Scotland) (Amendment) Regulations SSI 2019/9;
  • Fisheries (EU Exit) (Scotland) (Amendment) Regulations SSI 2019/24;
  • Ionising Radiation (Environmental and Public Protection) (Miscellaneous Amendments) (EU Exit) Regulations SI 2019/24;
  • Environment, Food and Rural Affairs (Environmental Impact Assessment) (Amendment) (EU Exit) Regulations SI 2019/25;
  • Environment (EU Exit) (Scotland) (Amendment etc.) Regulations SSI 2019/26;
  • Drainage (Environmental Impact Assessment) (Amendment) (Northern Ireland) (EU Exit) Regulations SI 2019/31;
  • Water and Floods (Amendment) (Northern Ireland) (EU Exit) Regulations SI 2019/32;
  • Renewables Obligation (Amendment) (EU Exit) Regulations SI 2019/35;
  • Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations SI 2019/39;
  • Air Quality (Amendment of Domestic Regulations) (EU Exit) Regulations SI 2019/74;
  • Genetically Modified Organisms (Amendment) (England) (EU Exit) Regulations SI 2019/88;
  • Genetically Modified Organisms (Amendment) (EU Exit) Regulations SI 2019/90;
  • Animal By-Products and Transmissible Spongiform Encephalopathies (Miscellaneous Amendments) (Wales) (EU Exit) Regulations SI 2019/94;
  • Control of Mercury (Amendment) (EU Exit) Regulations SI 2019/96;
  • Greenhouse Gas Emissions Trading Scheme (Amendment) (EU Exit) Regulations SI 2019/107;
  • Pesticides (Amendment) (Northern Ireland) (EU Exit) Regulations SI 2019/118;
  • Water (Amendment) (Northern Ireland) (EU Exit) Regulations SI 2019/112;
  • Radioactive Contaminated Land (Modification of Enactments) (Wales) (Amendment) (EU Exit) Regulations SI 2019/114;
  • Marketing of Seeds and Plant Propagating Material (Amendment) (England and Wales) (EU Exit) Regulations SI 2019/131;
  • Export Control (Amendment) (EU Exit) Regulations SI 2019/137;
  • Transfrontier Shipment of Radioactive Waste and Spent Fuel (EU Exit) Regulations SI 2019/156.

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:

Secretary of State for the Environment, Food and Rural Affairs in partnership with Her Majesty's Treasury, has developed a new set of Consultations to improve the UK's waste management, reduce plastic pollution and move UK business towards a circular economy.

Four new Consultations cover different aspects of waste management, from the very production of plastic packaging to the waste plastic that needs to be recycled.

The new Consultations are on:

These changes will make up a key part of the Government's upcoming Environment Bill, which is to be introduced early in the second session of Parliament.

The Environment Secretary, Michael Gove said:

"We are committed to going further and faster to reduce, reuse, recycle and cut waste. That's why we are leading the way to move away from being a "throw-away" society and drive up domestic recycling.

"Through our plans we will introduce a world-leading tax to boost recycled content in plastic packaging, make producers foot for the bill for handling their packaging waste, and end the confusion over household recycling.

"We are committed to cementing our place as a world leader in resource efficiency, so we can be the first generation to leave our environment in a better state than we inherited it."

The Chancellor of the Exchequer Philip Hammond also commented:

"Plastic packaging makes up two-thirds of all the plastic waste that pollutes the country and wreaks havoc on our environment. It's our responsibility to do something about it and that's why we will introduce a new tax on the producers of plastic packaging that don't use enough recycled material.

"This action, coupled with the other measures we are bringing in, will help drive up recycling, cut the amount of new plastic being used and protect our environment for future generations."

New Guidance for Pollution Prevention (GPP) has been published, to help anyone who is responsible for storing and handling drums and Intermediate Bulk Containers (IBCs).

It applies to Scotland and Northern Ireland, it has not been reviewed for Wales yet, although it provides good practice advice. It does not apply to England.

Scope

These guidelines provide information on storing liquids, such as oils and chemicals in:

  • small containers;
  • drums, up to 205 litres; and
  • IBCs up to 1000 litres.

It applies to any number of containers which could vary in size. These containers must not be directly connected in any part to a manufacturing system.

This guidance provides information on:

  • safe drum and IBC storage;
  • spill prevention and management;
  • primary and secondary containment systems;
  • special storage requirements for COSHH, COMAH (if the quantity does not exceed the Control of Major Accident Hazards Regulations (COMAH) Regulations SI 2015/483), pesticides and flammables;
  • delivery and handling of drums and IBCs;
  • storage of waste.

It provides information on legal requirements that must be met when dealing with drums and IBCs as well as recommendations and good practice that should be followed to minimise the risk and avoid incidents.

This guidance does not cover:

  • containers above 1000 litres;
  • bulk storage in fixed tanks or mobile bowsers;
  • underground oil and chemical storage;
  • fire prevention and control;
  • air quality;
  • dangerous substances under the Control of Major Accident Hazards Regulations (COMAH) Regulations SI 2015/483;
  • regulations about transporting goods;
  • labelling of containers and confined spaces.

These are covered in different guidance documents provided by the Health and Safety Executive (HSE), Health and safety Executive for Northern Ireland (HSE NI), Fire and rescue Service (FRS) and local councils.

The Department for the Environment, Food and Rural Affairs (DEFRA) seeks views on the draft UK National Air Pollution Control Programme (NAPCP).

The programme sets out how the UK will meet legally binding emission reduction commitments for:

  • nitrogen oxides (NOx);
  • ammonia (NH3);
  • non-methane volatile organic compounds (NMVOCs);
  • particulate matter (PM); and
  • sulphur dioxide (SO2).

Under the National Emissions Ceiling Regulations SI 2018/129, the Secretary of State is required to prepare and publish a UK National Air Pollution Control Programme by 1 April 2019, which must also be subject to a public consultation. That programme must also be submitted (subject to EU Exit negotiations) to the European Commission on that date.

Scope

This Consultation seeks views on the preparation and implementation of the:

It seeks views on the draft NAPCP and the use of estimates of abatement associated with the policy measures and also asks for any additional analysis of evidence that could be used.

Responding to this Consultation

This Consultation is open for responses from 14 February 2019 until 14 March 2019.

The way to respond is by completing an online survey on DEFRA's website.

The National Drought Group (NDG) met on 21 January 2019 chaired by Harvey Bradshaw, Executive Director at the Environment Agency, to assess the water resource situation actions being taken to reduce risk for summer 2019. 

The NDG brings together Government departments, water companies, environmental groups and others. The role is to prepare and mitigate the impacts of dry weather, to co-ordinate action to maintain water supplies, consider water users and protect the environment. 

Current situation and prospects

Wet weather in November and December 2018 ended a six month below average rainfall in England, which brought relief for many parts of England. 

Despite this improvement and improved water resources compared to last year, it has not returned England to its average. 

January 2019 received just 4% of the expected rainfall in the first 15 days of the month, resulting in most river flows being very low for the time of year. There are still several reservoirs below normal in central England.

The Met Office three month outlook shows a slightly higher chance of drier weather during January to March. If this is so, water available for spray irrigation by farmers may be limited during the summer.

If dry weather continues it will potentially have a significant impact on wetlands and the wildlife they support, including returning migratory birds.

The Environment Agency is taking the following action:

  • moving megalitres of water around, with the plan to move a total of 7965 million litres in January;
  • close monitoring to assess the conditions of rivers affected by sustained low flows and prepare for potential environmental incidents;
  • supporting farmers by updating the Environment Agency's position on flexible abstraction for farmers;
  • reviewing guidance for water company drought plans and incorporating lessons learnt over last summer;
  • working flexibly with environmental NGOs and site managers to optimise management of wetland sites to ensure there is enough water on site or providing advice on possible other sources of water. 

The NDG discussed opportunities to work collaboratively on these actions, the possible implications of further dry weather and how issues from EU Exit may impact on water resources for later in the year.

The Water Sector

Extreme weather in 2018 put pressure on the sector to test their resilience and drought plans. Water UK has reported on the actions the water sector has taken to protect water supplies and reduce longer term drought risk. The Environment Agency and Defra welcomed this activity and clarity. 

Most water companies are in a better position than at the start of 2018 but several companies still have reservoirs and/or groundwater below average levels.

The companies reassured the NDG they are taking necessary actions such as changing how they operate their sources of water, spending more on tackling leakage, promoting water efficiency and offering additional services to customers.

Water companies set out specific activities including:

  • Yorkshire Water drought permits to give extra flexibility to ensure the company is prepared for the summer;
  • Severn Trent Water is considering drought permits and have been active with their customer communications;
  • Anglian Water is working with the Environment Agency and the National Farmers Union to identify opportunities to share water in the summer;
  • United Utilities is embedding learning from the dry weather in 2018 into its operations.

Last year the Environment Agency issued six drought permits, reviewing each application to ensure the environment was not put at risk. Defra and the Environment Agency urged water companies to act early in making any future applications as a fair assessment of the water needs of people, industry, and the environment takes time, as well as preparing for EU exit.

Agriculture

The National Farmers Union (NFU) has updated members on the dry start to the year and possible risks for the summer. Their main focus has been the East of England as the region has not shown strong signs of recovery yet. 

The Environment Agency's flexible approach to abstraction for farmers will be updated shortly to include extending the refill season into April for winter storage reservoirs.

Conclusions and next steps

The NDG cautiously welcomed the recovery of water resources in many parts of England but acknowledged the ongoing dry weather may put pressure on farmers and the environment in the spring. 

Water companies were positive that even if the dry weather continues over the coming months, they would not need to introduce any restrictions this summer. Water companies reassured the group that they are not being complacent, they continue to tackle leakage, review their operations and communicate with customers. 

In the short to medium term, farmers and the environment face the biggest risks and those involved need to take action now to prepare for what could be a difficult summer. 

"Through the NDG, members will need to work together to act early and mitigate these risks, the potential challenges from a cold snap and the changes from EU Exit".

For more information, see:


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