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 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:

O Christmas tree, o Christmas tree
Published: 07 Dec 2018

There is a buzz around Cedrec's offices at Clarity House. It is time to put the Christmas decorations out and, well, it's just a nice feeling. However, as we tend to do every year, a debate began about the environmental impact of artificial and real Christmas trees and whether one is better than the other.

So, we've done a little bit of research into it...

Real Christmas trees

There is a strong argument for "real trees are better for the environment", and that is absolutely true if the real tree you buy still has its roots and can be replanted after Christmas. Otherwise, there is a slight problem with its carbon footprint.

As we all know from our school science classes, trees naturally absorb carbon through photosynthesis and rather kindly produce clean oxygen which we can breathe. Which is fine whilst the tree is alive and planted in the soil. When the tree is cut down, basically severed from its roots, and used as a Christmas tree, we lose this environmental benefit as the tree eventually dies. When it dies, carbon is then released as part of the carbon cycle. A decomposing tree will also release methane, a prominent greenhouse gas which is 25 times more potent than carbon dioxide.

However, if we leave the roots on the tree (and look after it whilst it is in our homes), it can be replanted and the environmental benefits of a living tree can continue and the carbon footprint significantly reduced, providing it survives.

Looking at the actual tree production, those who mass produce fir trees for the Christmas market will use some energy in doing so, perhaps through mechanisation or transportation. Then, when it is ready to be transported to our homes, it is usually wrapped in a plastic mesh which, in recent times, is a bit of a no-go.

Then it comes to disposal. We've already mentioned that there is a negative environmental effect through the decomposition of a tree. It is estimated, though, that burning the tree or shredding it and spreading the chippings on your garden significantly reduces the carbon footprint, even up to around 80%. Burning the tree tends to release the carbon dioxide it stored whilst growing, so there technically would be no increase in carbon dioxide by doing so.

But, is it worse than an artificial tree?

Artificial Christmas trees

It goes without saying, we don't get the benefit of clean oxygen from an artificial tree. In fact, it can be quite the opposite.

Artificial trees are usually made through a combination of metal and plastic (commonly polyvinyl chloride, so we're told), in a factory, which requires energy to run and will emit different gases in the process. The trees are then packaged, usually in recyclable cardboard, which is better than a plastic mesh but still not great. It then has to be transported to whichever market it will appear on. This could mean an artificial tree made in China being transported all the way over to the UK. It may even make multiple trips in various directions as the tree passes through distributors and third parties at various points around the world.

Then the tree is put into action every December by the household which chose it. But small bits of plastic representing pine needles inevitably fall off. These are then commonly sucked up by a vacuum and disposed of via landfill where it will slowly break down, over many, many, many years.

Once it enjoys a few Christmases, an artificial tree will end up being disposed of, most likely ending up in a landfill, which is a huge problem. As most of us know, plastic does not break down too easily in a landfill!

The argument isn't looking too great for artificial trees at the moment.

But, if we're being honest, how many times are artificial trees actually changed? A quick poll in our office revealed that of those who have an artificial Christmas tree, only two people had owned one for less than 10 years, but that does not mean they will not be retained for many more years. Others had used the same tree for 10, 13, 19 and 20 years for example. One person was even re-using a second-hand tree!

That poll isn't exactly representative of an entire population, or scientific in any way, but it does indicate that artificial trees will last a while.

What about the carbon footprint

This is where it gets interesting. The carbon footprint of an artificial tree is already quite high before it is even made. The same cannot be said of a real tree.

According to the Carbon Trust, two-thirds of an artificial Christmas tree's carbon footprint is from the PVC used to make it. The next big impact on the carbon footprint comes from the emissions produced when manufacturing the tree. So, it is estimated that an artificial tree of around 2m in height has a carbon footprint of around 40kg of CO2e.

When it comes to real Christmas trees, the Carbon Trust estimates that for a 2m high tree with no roots, the carbon footprint is 16kg of CO2e. That figure also involves a tree going to landfill. However, if the real tree is burned or shredded afterwards, this can drop to as low as 3.5kg of CO2e.

However, as mentioned above, we use artificial trees time and time again, which actually spreads the carbon footprint out. Over to the Carbon Trust again, which estimates that an average artificial tree will have to be used for a minimum of 10 Christmases before its environmental impact becomes lower than that of a real tree.

So which is better?

Looking at a single year, buying a real Christmas tree and then burning or chipping it at the end of Christmas has a lower environmental impact than buying a new artificial tree... a much lower impact.

However, there are lots of different factors to consider. An artificial tree used for decades can begin to have a lower environmental impact than buying a real tree every year. That is, until the artificial tree has to be disposed of. Who knows, we may have come up with an environmentally sound way of disposing of artificial Christmas trees in 20 years time though.

So, in the end, it really does come down to preference!

There is, of course, an environmental case of not having a tree at all. We'll leave that one there though.

Poor mortar impacting on homeowners
Published: 06 Dec 2018

A BBC programme, the Victoria Derbyshire show, has found that new homes across the UK have been built with weak mortar, resulting in 'crumbling homes'.

Reports have apparently been made identifying houses on at least 13 estates, built by different companies, with the problem, though it is difficult to know the true extent of the issue as some homeowners have been asked to sign non-disclosure agreements to claim compensation.

The National House Building Council recommends that mortar in most areas in the UK should be made of one part cement to 5.5 parts sand. In areas subject to severe weather, the cement levels should increase to make it more durable. However, as the BBC explains, laboratory tests on mortar used on a home built in Glasgow in 2012 found that the amount of sand was nearly three times higher than recommended.

Steve Turner, from the Home Builders Federation, said builders "generally have their mortar provided by large accredited suppliers... [who] have clear quality assurance and testing processes to ensure mixes are delivered as required," and that there were "very few instances we're aware of where defective mortar has been used."

A spokesperson for the National House Building Council said "We work with builders to help them improve the construction quality of the homes they build. However, it is the builder who is ultimately responsible for the quality of the new homes they build."

In response to crumbling mortar, it is believed that solicitors are advising some customers not to go public until the issue has been resolved with the builder. In some other cases, it looks like repairs have been made and compensation has been paid, but the owner has been asked to sign a non-disclosure agreement which stops the homeowner from talking to others about the problems they have faced.

The Department for Environment, Food and Rural Affairs (DEFRA) has published guidance addressed to local authorities, who can now issue fixed penalty notices (FPNs) for breaching the duty of care for household waste in England under the provisions of the Environmental Protection Act 1990.

The duty of care requires occupiers of domestic property to take all reasonable steps to ensure that they only transfer household waste produced on that property to an authorised person.

When fixed penalty notices can be issued

A FPN can be issued when an individual has failed to comply with their duty of care, for example, where:

  • fly-tipped waste can be traced back to an individual who is found to have failed to take reasonable steps to ensure that they transferred waste to an authorised person;
  • an unauthorised carrier is found to be carrying household waste that was directly transferred to them by the occupier of a domestic property;
  • an individual is found to have transferred their household waste to an unauthorised person at a site that does not have a permit or exemption.

When fixed penalty notices should not or cannot be issued

A FPN should not or cannot be issued by a local authority to an individual if:

  • an individual uses an authorised carrier that disposes of their waste appropriately but doesn't check that they are authorised;
  • an individual intends for waste to be collected by the local authority collection service, for instance where this is put out in household waste or recycling bins;
  • waste is produced by a tradesperson who is producing the waste on the property by carrying out work there (such as building/renovating work), then the disposal of that waste is the tradesperson's responsibility;
  • a landlord is arranging the clearance of premises after a tenancy has ended, the resulting waste is not considered to be household waste, nor are they the occupier;
  • there is an ongoing fly-tipping investigation, which could have a positive or negative impact on that investigation or prosecution.

How fixed penalties are issued

The fixed penalty notice can be given as an offer for an individual to discharge any liability to conviction for failing to meet their household waste duty of care. Instead of prosecuting, the local authority may offer the opportunity to pay the fixed penalty.

The local authority must give the opportunity to demonstrate the duty of care by providing evidence before issuing any penalty or prosecuting an individual.

The FPN charge is set within the limits provided by the legislation:

Default penalty

Minimum full penalty

Maximum full penalty

Maximum discounted penalty

£200

£150 £400 £120

 

Money collected by the local authorities through FPNs may only be used for carrying out functions under Part 2 of the Environmental Protection Act 1990 "Waste on Land", such as covering costs of cleaning up and enforcement operations.

Beware of unsafe goods at Christmas
Published: 05 Dec 2018

Although Christmas time is very much the season of giving, the message this year coming from KPMG is simply to be careful what you buy considering the number of counterfeit products on the market is rising, presenting a possible safety risk.

In the last two years, 39 cases involving a total of £116m of counterfeit and pirated goods have been prosecuted in the UK. The goods range from hair straighteners to ebooks and perfumes, all of which can cause harm if they are not made correctly.

This warning comes only days after the City of London Police's Intellectual Property Crime Unit launched the hashtag #shockingfakes to highlight dangers of counterfeit electrical goods. Aside from the physical safety risks arising from fake products, some shoppers buying the items online could also become victims of identity theft.

In addition, back in June, a report from consumer protection charity Electrical Safety First found that 30% of the people it surveyed has unwittingly bought fake electrical items online that were advertised as genuine products. It also found that large, reputable websites were being exploited by third-party sellers selling fake items such as tumble dryers, kettles, travel adapters and hair straighteners - all of which could cause damage, injury and even loss of life if they malfunction.

And whilst the Intellectual Property Crime Unit has worked with the EU's Europol this year to shut down over 31,000 websites with the intention of stopping the online sale of counterfeit goods, the issue is still a serious one, especially around Christmas when shoppers are desperate to get high-end gifts for loved ones at budget prices.

KPMG Forensic Partner, James Maycock, said: "While counterfeit products may be enticing, particularly in uncertain economic times, consumers really need to be aware of the risks. Counterfeit items, particularly items such as perfumes, batteries, alcohol, tobacco and electronic goods may seriously damage your health. Therefore ‘Buyer beware’ should be firmly in the mind of any tempted consumer."

Be vigilant this Christmas, and stay safe!


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