1. In relation to Schedule 6, explain why regulation 20 of the instrument amended by that Schedule will continue to refer to the powers of an enforcement authority in England and Wales and appeals to the Crown Court in England and Wales, given the removal, by that Schedule, of references to England and Wales in the definition of “enforcement authority” in regulation 2(1) and the appropriate court in regulation 16.
2. Explain why the definition of “Union harmonisation legislation” is omitted by paragraphs 2(1)(h) of Schedule 13 and 2(1)(g) of Schedule 14 given that it appears to be retained and relied on by paragraphs 8(c) of Schedule 13 and 8(2)(d) of Schedule 14.
3. Explain how the substitutions in paragraph 2(1)(e) of Schedule 14 will be given effect in light of the fact that neither “make available on the market” nor “place on the market” contains the exact phrase “market in the European Economic Area”.
2.Schedule 6 amends the Cosmetic Products Enforcement Regulations 2013 (“the 2013 Regulations”) as they will apply in Northern Ireland. The 2013 Regulations will continue to apply in Great Britain. However, their application will be different in Great Britain and Northern Ireland. In Northern Ireland the 2013 Regulations will enforce Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products (“the EU Regulation”) which will continue to be directly applicable in Northern Ireland arising out of obligations in the Protocol on Ireland/ Northern Ireland in the Withdrawal Agreement (“the Protocol”).
3.The approach that has been taken with respect to amendments is to make the amendments strictly necessary and where a provision will still work for the whole of the United Kingdom (albeit that some of the provisions may not apply in different parts of the United Kingdom), the approach is to leave them as they are.
4.It is necessary to amend the definition of “enforcement authority” for the purposes of the law in Northern Ireland. This is because “enforcement authorities” are “competent authorities” for the purposes of some of the provisions of the EU Regulation as it applies in Northern Ireland and it is therefore necessary to exclude any enforcement authorities based in Great Britain for the purposes of the obligations that must be undertaken by competent authorities under the EU Regulation.
5.Conversely, the Department took the view that regulation 20 of the 2013 Regulations will still continue to work as they are currently drafted for Northern Ireland, since it is clear what enforcement authorities in Northern Ireland can do. The references to enforcement authorities in England and Wales will not be relevant to Northern Ireland.
Issue 2: Schedules 13 and 14
6.The Department took the view it is not necessary to have a definition of “Union harmonisation legislation”. The key point is that it is only legislation that applies to Northern Ireland by virtue of the Protocol that is relevant. The other amendments to the paragraphs amended make this clear and therefore readers will not be in any doubt as to which legislation these provisions refer.
Issue 3: Schedule 14
7.This is an error, for which we apologise. We will take action to amend this as soon as we can.
6 November 2020
Published: 20 November 2020