Date laid: 13 February 2019
Parliamentary procedure: affirmative
These two sets of draft Regulations propose wide-ranging amendments to a number of different policy areas to ensure that the existing policy regimes can continue to operate effectively after the UK’s withdrawal from the EU. The policy areas covered include Geographical Indication schemes, the spirit drink and wine sector, the recognition of natural mineral waters, food labelling, the release into the environment of genetically modified organisms and veterinary medicines. A key purpose of the instruments is to transfer powers which are currently held by the European Commission to the appropriate UK ministers, so that the respective policy regimes can operate effectively in a UK domestic context. Given the importance of some of these sectors, the House may be interested to see how the Government are preparing for the transition to the new UK arrangements after exit.
These two sets of draft Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
10.The Department for Environment, Food and Rural Affairs (Defra) has laid these two sets of draft Regulations before Parliament alongside an Explanatory Memorandum (EM) for each of the instruments. The instruments propose wide-ranging amendments to a number of different policy areas to ensure that the existing policy regimes can continue to operate effectively after the UK leaves the EU. The policy areas covered are Geographical Indication (GI) schemes, the spirit drink and wine sector, the recognition of natural mineral waters, food labelling, the release into the environment of genetically modified organisms (GMOs), animal health and veterinary medicines. This report provides a brief overview of the key proposals in these areas, except in relation to animal health where the proposed changes are minor and technical.
11.Defra explains that under current EU legislation, natural mineral waters have to go through a process of recognition to prove that they have the necessary composition and characteristics to be sold and marketed as natural mineral waters across the European Economic Area (EEA). Recognition is carried out by individual Member States.
12.The draft Environment, Food and Rural Affairs (Amendment) (EU Exit) Regulations 2019 (“the Environment Regulations”) propose that, in a ‘no deal’ scenario, the current recognition of EEA natural mineral waters in the UK would continue for an interim period of six months after EU exit. After that period, the Secretary of State would be empowered to withdraw recognition of an EEA natural mineral water if certain conditions are not met, and if a period of notice has been given to the affected business to give it time to adjust. Defra explains that the aim of these proposals is to ensure market stability immediately after EU exit, facilitate trade and business confidence and protect consumers against price increases as a direct consequence of EU exit, while maintaining control over the recognition and sale of EEA natural mineral waters in England. Defra has told the Sub-Committee that the European Commission (“the Commission”) has indicated that, unless a future trade agreement or economic partnership agreement provides otherwise, natural mineral waters that had their recognition process undertaken by the UK will no longer be recognised in the EU after exit.
13.Both sets of draft Regulations correct retained EU law on GI schemes. GIs are a form of intellectual property protection for the names of agricultural, food and drink products where the qualities or characteristics of the products can be attributed to the specific region or locality where they are produced and/or to the traditional methods used in their production. Examples include Scotch Whisky, Welsh Lamb and Cornish Pasties.
14.The draft Food and Drink, Veterinary Medicines and Residues (Amendment etc.) (EU Exit) Regulations 2019 (“the Food and Drink Regulations”) make amendments to ensure that current GI schemes can be administered and enforced in a UK-only context after exit. The power to grant GI applications would be transferred from the Commission to the Secretary of State. The instrument also introduces an appeals mechanism to replace the current EU arrangements for appeals. Defra explains that the new mechanism is to allow those with a legitimate interest to appeal to the First-tier Tribunal where they disagree with decisions made in the administration of the UK GI scheme.
15.The instrument also proposes the creation and use of new UK GI logos, with existing UK GIs to be given three years to comply with the requirement to use the new UK logo in the UK market. According to Defra, the proposed changes will ensure the continued protection of the UK’s 86 product names that are currently registered as EU GIs, and will also enable the UK to meet its obligations under the Trade Related Aspects of Intellectual Property Rights agreement of the World Trade Organisation.
16.We asked the Department whether, in a ‘no deal’ scenario, the UK would continue to recognise EU GIs or whether EU producers would have to apply for GI protection on the UK market after EU exit. The Department explained that:
“The Government has not announced a decision on how EU27 GIs will be treated if the UK leaves the EU without a withdrawal agreement in place. The drafting of the legislation recently laid before Parliament reflects sensible contingency planning for an outcome the Government does not want. As stated in the technical notice, in a no deal scenario, producers of existing EU GIs may need to apply to the relevant UK scheme to secure UK GI status.”
17.In relation to the EU’s recognition of UK GIs after EU exit, specifically in relation to spirits, the Department previously explained to us that:
“The EU position, taken from the Withdrawal Agreement is: The full list of existing EU-approved geographical indications will be legally protected by the Withdrawal Agreement - unless and until a new agreement is concluded on the future relationship. EU-approved geographical indications bearing names of UK origin (e.g. Scotch Whisky) will continue to be protected in the EU.
In a ‘no deal’ scenario, we then revert to the provisions of the spirit drinks regulation (110/2008), which provides for the registration of GIs from third countries, and only allows for cancellation of GIs “if compliance with the specifications in the technical file is no longer ensured” (Article 18). The regulation does not (without being amended) provide for the cancellation of a GI due to a Member State leaving the EU.”
18.In addition to establishing a UK regime for the application and enforcement of GIs, the Environment Regulations propose the transfer of powers from the Commission to the appropriate UK Ministers in relation to specifications, such presentation and labelling, of spirit drinks, the administration and application requirements for the protection of designations of origin and traditional terms of wines, and the production and marketing standards of aromatised wines (such as Vermouth).
19.In relation to food labelling, Defra explains that the Food and Drink Regulations transfer functions from the Commission to the appropriate UK Ministers for making new rules in relation to how certain pieces of information can be presented to the consumer. This includes, for example, updating the list of allergens that must be labelled on pre-packed food or changing the way nutritional values are presented. According to Defra, these functions will be exercised by Ministers through secondary legislation and will therefore be subject to parliamentary scrutiny.
20.The Food and Drink Regulations make amendments to ensure that the UK can set Maximum Residues Limits (MRLs) in relation to veterinary medicines after EU exit. Defra explains that current EU and UK veterinary medicines legislation sets out the requirements for placing veterinary medicines on the market, including MRLs, to ensure their safe use and the protection of public health and the environment. According to Defra, MRLs protect consumers from residues of medicines in animal-derived produce and facilitate trade in such produce, as compliance with MRLs and food safety regulations provides assurance of the safety of animal-derived produce. Following EU exit, existing MRLs will be carried across to a new UK regime and any new MRLs set by the Commission will not apply to the UK. Defra says that as new MRLs will have to be set frequently, the draft Regulations propose for this function to be exercised administratively. The instrument transfers the function to the Secretary of State for England, Wales and Scotland and to the Department for Agriculture, Environment and Rural Affairs for Northern Ireland (DAERA), with the Secretary of State acting on a UK-wide basis with the consent from DAERA as the default approach. It also introduces a new duty to maintain a searchable online MRL register.
21.Defra explains that the instrument also provides for the automatic conversion of all veterinary medicines which are currently approved by the European Medicines Agency (around 13% of all veterinary medicines currently available on the UK market) to UK national authorisations. The aim is to ensure that these medicines can remain on the UK market and can be subject to the established UK regulatory regime under the Veterinary Medicines Directorate, an executive agency of Defra. The instrument proposes a mechanism to update these authorisations, for example in light of new manufacturing processes. Any new applications for the authorisations of veterinary medicines in the UK would need to be made under the existing national approval regime.
22.The Environment Regulations make amendments in relation to the deliberate release into the environment of GMOs. EU legislation currently requires Member States to ensure that authorised GMOs are labelled and traceable at all stages of their being placed on the market. The instrument proposes to transfer powers from the Commission to the Secretary of State to make legislation in England for the purpose of developing technical statutory guidance on sampling and testing for the presence of GMOs, and amending the threshold below which products containing unintentional or technically unavoidable traces of GMOs do not need to be labelled.
23.Defra has laid these instruments to prepare for the transition from policy regimes that are currently operated by the EU to a standalone UK framework. Given the importance of the sectors covered in the instruments, the House may be interested to see how the Government are preparing for the transition to the new UK arrangements after EU exit.
Date laid: 11 February 2019
Parliamentary procedure: affirmative
This draft Order, laid by the Home Office, provides the mechanism by which those European Economic Area (EEA) nationals who will require leave to enter the UK once free movement is brought to an end will be granted temporary entry at the border. This Order forms one small part of a complex network of interlinked legislation to address the immigration position for EEA nationals and others after Brexit. Our questions on how the practicalities of the various grants of leave to remain will work may be resolved by the arrangements made under the Immigration and Social Security Cooperation (EU Withdrawal) Bill and the other Schemes, but we are currently concerned about the difficulties that may arise if, as this Order provides, an individual does not have a document with a specific date on it to act as a reminder of their obligations.
This Order is drawn to the special attention of the House on the ground that it gives rise to issues of public policy likely to be of interest to the House.
24.Following the UK’s withdrawal from the EU, free movement will be brought to an end in 2021, subject to the passage of the Immigration and Social Security Cooperation (EU Withdrawal) Bill currently before Parliament.
25.This draft Order, laid by the Home Office and accompanied by an Explanatory Memorandum (EM), provides the mechanism by which those European Economic Area (EEA) nationals who will require leave to enter the UK once free movement is brought to an end, will be granted temporary entry at the border. Chapter 1 of this Order would enable an EEA national to enter the UK for three months, for work, study or as a tourist. We note from additional material from the Home Office, published in Appendix 1, that leave to enter would be granted automatically at the border on arrival, without any visa document or stamp in the individual’s passport. It is not yet clear to us, therefore, how that the requirement to leave the UK will be enforceable.
26.The Home Office informed us that:
“These are transitional arrangements to provide continuity and effective running of the border in the event that the UK leaves the EU without a deal, until the new immigration system is introduced in 2021. If EEA and Swiss nationals are found not to have European temporary leave to remain more than three months after arrival, they will be here unlawfully and may be liable to enforcement action. They will be strongly encouraged to make an application, otherwise they would need to leave the UK.
The enforcement approach will of course need to take into account that the resident population of EEA and Swiss citizens will have until 31 December 2020 to make an application to the EU Settlement Scheme, and will be able to reside lawfully in the UK in the interim.”
27.This instrument also makes changes to support the EU Settlement Scheme, but is not the means to protect the rights of EEA nationals resident here before exit. In a ‘no deal’ scenario, the Home Office states that the Government intend to protect those rights by making regulations under clause 4 of the Immigration and Social Security Co-operation (EU Withdrawal) Bill (“the Bill”), once enacted.
28.Article 8 of this Order increases, from two to five years, the period of continuous absence after which indefinite leave to remain in the UK, granted to a person from the EEA, will lapse. If there is no stamp in someone’s passport, with the issues raised by the Windrush scheme in mind, we asked how someone would provide acceptable evidence that they have (or have not) been resident in the UK for a certain amount of time.
29.The Home Office replied that data about indefinite leave granted under the EU Settlement Scheme would be recorded in all cases in the form of a secure digital status: “This Order does not make changes to how absence from the UK is assessed, nor the evidential requirements should an individual need to show that they have not exceeded the period of absence permitted. Relevant guidance will be updated to reflect the change made by the Order.”
30.Section 10 of the EM states that
“The Home Office has not undertaken a public consultation on the EU Settlement Scheme. However, on 21 June 2018 the Government published a Statement of Intent on the scheme and has since undertaken engagement with internal and external stakeholders, such as groups representing EU citizens in the UK, Consulates and community organisations, and account has been taken of those discussions.
The Home Office has committed to a 12-month engagement programme, following the launch of the UK’s Future Skills Based Immigration System White Paper, with stakeholders in every nation of the UK to help inform the detailed design of the future immigration system.”
31.This Order forms one small part of a complex network of interlinked legislation to address the immigration position for EEA nationals and others after Brexit. Our questions on how the practicalities of the various grants of leave to remain will work may be resolved by the arrangements made under the Bill and the other Schemes, but we are currently concerned about the difficulties that may arise if an individual does not have a document with a specific date on it to act as a reminder of their obligations. We note that the Lords European Union Justice Sub-Committee wrote to the Home Secretary on 27 February raising very similar concerns.
2 Directive .
3 These conditions are set out in the Natural Mineral Water, Spring Water and Bottled Drinking Water Regulations (England) 2007 ().
4 European Commission, Notice to Stakeholders (23 January 2018): [accessed 6 March 2019].
5 , implemented by Regulation (EC) No .
6 ‘EEA nationals’ for these purposes means citizens of the EU, of the other EEA countries (Iceland, Lichtenstein and Norway) and of Switzerland.
7 Irish citizens will continue to be able to enter the UK freely under the Common Travel Area arrangements.
8 As specified in the Statement of Changes in Immigration Rules. HM Government, Statement of changes to the Immigration Rules: HC 1849 (20 December 2018): [accessed 6 March 2019].
9 Home Office, EU Settlement Scheme: Statement of Intent (21 June 2018): [accessed 6 March 2019].
10 HM Government, The UK’s future skills-based immigration system (19 December 2019): [accessed 6 March 2019].
11 Lords European Union Justice Sub-Committee, Letter to Rt Hon. Sajid Javid MP, Home Secretary, on EU Settlement Status (27 February 2017): [accessed 9 March 2019].