Instruments of Interest
Draft General Food Law (Amendment etc.) (EU Exit) Regulations
65.In case of a ‘no deal’ Brexit, these Regulations will deal with deficiencies in retained EU law21 so that the basic principles currently underpinning food safety remain operable. This instrument also revokes (EU) Regulation No 16/2011 because, unless negotiated otherwise, the UK will not retain access to the Rapid Alert System for Food and Feed (“RASFF”) after exit. In additional material provided to the Sub-Committee, the Food Standards Agency (FSA) has indicated the alternative means it will use to seek equivalent information. We remain concerned, however, at the lack of access to RASFF which issued over 3,800 “original notifications” (of which 942 were classified as an “alert”) in 2017 alone. The Sub-Committee has asked the FSA to revise its Explanatory Memorandum to set out the alternative arrangements it is making to receive food safety warnings in the future, so that, in debate, the House may consider if the provision is adequate.
Draft Gibraltar (Miscellaneous Amendments) (EU Exit) Regulations 2019
66.In the Explanatory Memorandum to these draft Regulations, HM Treasury (HMT) says that, for the purposes of EU law, the UK and Gibraltar are in effect considered as the same EU Member State; but that, in practice, the UK has treated Gibraltar in many cases as if it were an European Economic Area state. As regards financial services regulation, both passporting and non-passporting arrangements between the UK and Gibraltar in financial services are determined by EU financial services law. HMT adds that this means that the existing regulatory framework between the UK and Gibraltar in financial services will become deficient once the UK and Gibraltar leave the EU. In line with a Government announcement in March 2018 that Gibraltar’s authorised financial services firms would continue to be able to access the UK from now until 2020 in a ‘no deal’ scenario (with reciprocal rights for UK firms in Gibraltar), this instrument amends financial services legislation that support market access between the UK and Gibraltar, to ensure that relevant matters in relation to Gibraltar can be treated as they were before exit day. HMT confirms that the government of Gibraltar will be adopting a similar approach in its own EU Exit legislation to ensure that Gibraltar has a functioning regulatory framework in a ‘no deal’ scenario with mirroring rights and obligations.
Draft REACH etc. (Amendment etc.) (EU Exit) Regulations 2019
67.The purpose of these draft Regulations is to replicate the current EU regime for the regulation and control of chemicals in a UK domestic context, as part of the contingency planning of the Department for Environment, Food and Rural Affairs (Defra) for a ‘no deal’ scenario. The Sub-Committee previously reported the draft Regulations to the House on the ground that the explanatory material laid in support of them provided insufficient information on their expected impact and that they gave rise to issues of public policy likely to be of interest to the House.22 Since the Sub-Committee’s report, Defra has had to withdraw, correct and re-lay the instrument, after the Joint Committee on Statutory Instrument identified several drafting errors. While the draft Regulations have now been corrected and re-laid, the Department has not sought to address the issues we raised in our report. We therefore remain concerned that the Department has provided insufficient information on the possible impact of the proposed changes, especially in relation to the additional responsibilities being transferred to the Health and Safety Executive and its readiness to act as the national regulator, and the potential costs for the UK chemical industry. Since the publication of our report, we have received a submission from the Cosmetic, Toiletry and Perfumery Association (CTPA) which raises concerns about the draft Regulations, in particular about potential additional costs for industry in relation to obtaining or creating new data to support the registration of chemicals in the UK, a potential reduction in the availability of cosmetics ingredients in the UK, and a potential need for additional animal testing. We have obtained a response from Defra to CTPA’s submission, and we are publishing the submission and the response on our website.23
Transmissible Spongiform Encephalopathies and Animal By-Products (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/170)
68.The purpose of this instrument, laid by the Department for Environment, Food and Rural Affairs (Defra), is to address deficiencies in retained EU legislation in relation to the control and eradication of transmissible spongiform encephalopathies (TSEs), such as BSE, and the use, disposal, placing on market and import of animal by-products. The Sub-Committee previously considered the proposals when they were laid as a proposed negative instrument under the European Union (Withdrawal) Act 2018. At the time, the Sub-Committee recommended an upgrade to the affirmative procedure, as one of the proposed amendments would have had the effect of removing a statutory duty to ensure staff of competent authorities have appropriate education and training in relation to checks for TSEs. The Sub-Committee said that the proposal then risked giving the impression that control measures in this area were being weakened, and that this could potentially undermine UK meat exports after EU exit.24 We welcome that the Department has listened to the Sub-Committee’s concerns and has now laid the instrument without the amendment. We also welcome that Defra has revised the Explanatory Memorandum to reflect additional information that the Sub-Committee requested during its earlier scrutiny of the practical impact of some of the other proposed changes.
22 15th Report, Session 2017–19, (HL Paper 281).
23 SLSC Sub-Committee B publications page: https://www.parliament.uk/business/committees/committees-a-z/lords-select/secondary-legislation-scrutiny-committee-sub-committee-b/publications/ [accessed 20 February 2019].
24 8th Report, Session 2017–19 (HL Paper 244).