15.These Regulations continue the existing system of passenger rights as set out in EU law, including: the right of passengers to compensation and assistance if denied boarding or if flights are cancelled or delayed; the right of disabled passengers and those with reduced mobility to access air transport and to receive free of charge assistance; and the rights of passengers in relation to injury or damage to baggage. In the event of ‘no deal’ with the EU, however, these Regulations remove the mutual recognition of the insolvency protection as set out in the Civil Aviation (Air Travel Organisers’ Licensing) Regulations 2012: the Package Travel Directive. At present, businesses established in European Economic Area (EEA) Member States and their UK agents are exempt from the requirement to hold an Air Travel Organisers’ Licence (ATOL) because the UK recognises mutual schemes in other Member States. In the absence of an agreement with the EU, businesses established in the EEA will be required to hold an ATOL for their package sales in the UK. Applications for these licences will be assessed by the Civil Aviation Authority. There are different types of ATOL licences depending on the type of business being operated. The Government’s guidance explains that “businesses should be aware that remaining Member States are unlikely to recognise UK insolvency protection. Traders may therefore need to comply with multiple insolvency regimes across the EU and will have to make themselves familiar with the regime of the country they are selling to”.
16.These Regulations propose variable limits on the maximum fees that higher education (HE) providers can charge students undertaking accelerated HE courses where the first year of that course starts on or after 1 August 2019. Maximum fees for accelerated full-time courses in 2019–20 will be 20% higher than the equivalent maximum fees for full-time courses that are not accelerated. In the Explanatory Memorandum (EM), the Department for Education (DfE) says that the main objective is to enable providers of accelerated degree courses, which require more teaching to be delivered within each twelve-month period compared with standard degree courses, to charge annual fees up to a higher cap that will still mean that total fee costs for accelerated degree courses will be lower than their standard equivalent courses. The aim is to encourage greater provision of accelerated courses by providers, and greater take-up of those courses by students for whom they represent the best option.
17.DfE explains that it carried out consultation on these proposals between December 2017 and February 2018. 97 responses were received, from a range of HE providers, HE representative bodies, further education colleges, professional representative organisations, charitable organisations and individuals. The Government response was published in November. We note from the EM that, in answer to the key question of whether an annual accelerated degree fee cap up to 20% higher than the standard equivalent would incentivise wider provision, 31% of respondents agreed, while 58% disagreed. In the EM, and in the Government response, DfE casts doubt on the validity of the high level of disagreement, with statements such as: “the overwhelming majority of these negative assertions were theoretical, conservative, and not supported by evidence based on existing accelerated degree provision”. We would comment that, while such statements may support the decision to implement the original proposals, they run the risk of leading respondents to doubt that the Department approached the consultation process with an open mind.
18.In the Explanatory Memorandum (EM) to these Regulations, HM Treasury (HMT) says that the rules for ensuring that certain UK businesses properly assess money laundering and terrorist financing risks and carry out appropriate checks on their customers are set out in the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (SI 2017/692: “the MLRs”). It also says that the role of the Financial Conduct Authority (FCA) in overseeing the work of Anti-Money Laundering (AML) supervisory bodies who are professional, self-regulatory organisations is established by the Oversight of Professional Body Anti-Money Laundering and Counter Terrorist Financing Supervision Regulations 2017 (SI 2017/1301). Both SI 2017/692 and SI 2017/1301 include provisions that derive solely from the UK’s membership of the EU, which will cease to be appropriate once the UK is no longer a member of the EU. These draft Regulations propose to address deficiencies in the relevant retained EU law in relation to anti-money laundering, to ensure that the legislation continues to operate effectively at the point at which the UK leaves the EU.
19.Noting that, at paragraph 2.11 of the EM, HMT states that the amendments to be made will, among other things, remove any requirements to transmit AML-related information to EU institutions, we obtained further information from the Department about future cooperation between the FCA and its counterparts in other countries in dealing with money-laundering. We are publishing HMT’s response at Appendix 1; it will be the case that, while there will no longer be an EU-specific requirement on the FCA, that body will continue to be subject to a general duty to co-operate with other supervisory authorities, whether at home or abroad, by taking such steps as it considers appropriate to counter money laundering and terrorist financing.
20.These draft Regulations, laid by the Department for Business, Energy and Industrial Strategy (BEIS), seek to correct deficiencies in retained EU law in relation to the supervision and control of shipments of radioactive waste and spent fuel. BEIS explains that the aim is to maintain a functioning regime in this area following the UK’s withdrawal from the EU and Euratom. The intention is to revoke the current regulations which prescribe procedures for the regulation and authorisation of shipments of radioactive waste and spent fuel within the Euratom community, and for shipments to and from third countries, and then largely to replicate the current arrangements by requiring broadly equivalent procedures for the import, export and transit of radioactive waste and spent fuel into and out of the UK. According to BEIS, this will allow for the continuation of the UK’s nuclear activities, such as decommissioning legacy sites and returning radioactive waste arising from the reprocessing of other countries’ spent fuel. BEIS explains that as authorisations will no longer be mutually recognised after exit, operators will in future need to request authorisations from the relevant UK competent authority to import radioactive waste and spent fuel from Euratom states. They will also need to notify the competent authority of the completion of shipments to Euratom states and, when importing from a Euratom state, they will need to provide evidence that they have made an arrangement with the exporter which has been accepted by the exporter’s competent authority.
21.This instrument, amongst other changes, introduces a new requirement for a written management system for certain waste sites in England and Wales. The Department for Environment, Food and Rural Affairs (Defra) explains that under the current arrangements, permits for waste sites issued after 6 April 2008 include a requirement for waste operators to use a written management system. The purpose of such a system is to identify and minimise the risks of pollution and to keep a written record of activities. From 7 April 2019, this requirement will apply to all permits issued before 6 April 2008 to ensure that all permitted waste sites are covered. Defra expects a one-off cost of £10.5 million for the sector, followed by annual cost of £1.4 million. The instrument also introduces a new Fixed Penalty Notice (FPN) for breaches of the household waste duty of care. Defra explains that, under section 34 of the Environmental Protection Act 1990, it is a criminal offence for households to give their waste to someone to take it away without checking whether they are a registered waste carrier. Breaches of this duty can be prosecuted through the courts at present, leading to a fine and criminal record. Defra says that the new FPN will provide a more proportionate alternative to prosecution: if a person pays the notice within 14 days, they cannot be convicted for the offence. The FPN is set between £150 and £400, with a minimum early payment of £120, and will come into force on 7 January 2019. The Department has told us that local authorities will introduce the FPN to their own timeframes and that guidance has been issued to support them, including in relation to raising awareness of the new FPN.
22.The UK currently implements over 30 sanctions regimes as an EU member state. These include country-specific sanctions, for example, in relation to Russia, North Korea and Iran, as well as sanctions targeting Da’esh, Al Qaida and other terrorist groups. There are currently around 2,000 individuals and entities subject to sanctions implemented by the UK. These sanctions include asset freezes, travel bans and other financial and trade restrictions. The UK has undertaken to maintain the same sanctions as the EU but to do so needs to restate them. This is the first of a series of instruments to be made under the Sanctions and Anti-Money Laundering Act 2018 (the 2018 Act), setting out the appeal procedure for those on whom sanctions are imposed. Other specific sanctions will follow in the next few months as a mix of negative and made affirmative instruments to conform with the requirements of the 2018 Act.
1 The CAA provides advice on the various types of licences available under ATOL; which includes a standard ATOL, a small business ATOL, franchise ATOL and trade ATOLs.
2 Department for Business, Energy & Industrial Strategy, Consumer rights if there’s no Brexit deal (12 October 2018): [accessed 12 December 2018].
3 See Department for Education, Accelerated Degrees: Government consultation response (November 2018): [accessed 4 December 2018].
4 The Secondary Legislation Scrutiny Committee drew SI 2017/692 to the attention of the House in its of the current Session (HL Paper 8).
5 The Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008 implement Council Directive 2006/117/Euratom on the supervision and control of shipments of radioactive waste and spent fuel.
6 In the UK the competent authorities are the agencies responsible for environmental protection. These are the Environment Agency in England, the Scottish Environment Protection Agency, the Natural Resources Body for Wales and the Northern Ireland Environment Agency.
7 The Environment Agency maintains an online register of waste carriers, brokers and dealers. Environment Agency, Register of waste carriers, brokers and dealers: [accessed 12 December 2018].
8 See: Department for Environment, Food & Rural Affairs, Household waste duty of care: fixed penalty notice guidance (26 November 2018): [accessed 12 December 2018].
9 The names of designated persons are not included in Regulations but will be held on a separate administrative list on the Gov.uk website, see: HM Government, Collection: