Thirty First Report Contents

Instruments of interest

Draft Common Organisation of the Markets in Agricultural Products (Producer Organisations and Wine) (Amendment etc.) (EU Exit) Regulations 2020

Draft Agriculture (Payments) (Amendment, etc) (EU Exit) Regulations 2020

50.These two sets of draft Regulations propose changes to retained EU law and earlier EU Exit instruments in relation to the Common Organisation of Agricultural Markets (CMO) regime to ensure that CMO rules can operate effectively after the end of the Transition Period (TP). CMO provides a framework under the EU’s Common Agricultural Policy (CAP) for market measures and responses to a market crisis in the agricultural sector.

51.Amongst other changes, the draft Common Organisation of the Markets in Agricultural Products (Producer Organisations and Wine) (Amendment etc.) (EU Exit) Regulations 2020 transfer from the Commission to the Secretary of State powers to approve a Protected Designation of Origin (PDO), a Protected Geographical Indication (PGI) or a traditional term in relation to wine, or if necessary to cancel the protection of such appellations where compliance with required specifications is no longer guaranteed. The Secretary of State is also given powers to protect UK PDOs and PGIs that have been registered by the Commission or Geographical Indications (GIs) or traditional terms that the UK has agreed to protect as part of an international trade agreement. According to the Department for Environment, Food and Rural Affairs (Defra), these provisions are fundamental to the UK having a viable GI scheme for wine, which is necessary to ensure that the UK meets its World Trade Organisation (WTO) obligations and is able to ratify certain wine trade agreements that have already been signed, such as those with Australia or the USA. As some provisions in this instrument relate to the continuation of certain CMO schemes after the end of the TP under Article 138 of the Withdrawal Agreement, the instrument will not be made until after the Agriculture Bill, which also makes provisions in this area, has received Royal Assent.

52.Amongst other changes, the draft Agriculture (Payments) (Amendment, etc) (EU Exit) Regulations 2020 place the Northern Ireland Protocol as it relates to aspects of EU finance, management and monitoring rules on a legal footing as required at the end of the TP. The instrument also makes amendments to previous EU Exit instruments to ensure UK paying agencies can continue to comply with EU rules in relation to Article 138 of the Withdrawal Agreement which provides for the continuation of certain rural development and CMO schemes after the end of the TP. The instrument further amends earlier EU Exit instruments that set rules for Public Intervention (PI) and Private Storage Aid (PSA) schemes under the CMO regime. Defra emphasises that these legislative changes will not have a practical impact on farmers and land managers.

Draft Public Procurement (Amendment Etc.) (EU Exit) Regulations 2020

53.Although Public Procurement regulations were made in 201920 to fix deficiencies in retained EU law, there have been a number of complex changes since then, including in the Withdrawal Agreement; these draft Regulations therefore revoke the two previous instruments and start again. Although lengthy, the Explanatory Memorandum (EM) is very thorough, explaining the policy in detail and highlighting the differences between these Regulations and the previous ones: for example the transitional provisions in the Schedule now allow procedures that are in progress on Implementation Period (IP) completion day to continue.

54. Paragraphs 7.30 to 32 of the EM also explain how these draft Regulations connect with the Trade Bill currently before Parliament. The Cabinet Office states that delays to the Bill’s passage through Parliament mean that the secondary legislation to be made under its powers is highly unlikely to be ready before the end of the IP. As a contingency measure, the Minister therefore considers it appropriate, to preserve in these Regulations the duties owed, and remedies currently afforded to trade partners of the World Trade Organisation Agreement on Government Procurement , for a period of 12 months.

Draft Defence and Security Public Contracts (Amendment) (EU Exit) Regulations 2020

55.These draft Regulations also implement the UK’s obligations under the Withdrawal Agreement and the EEA EFTA Separation Agreement but relate specifically to those public procurement procedures which are governed by the Defence and Security Public Contracts Regulations 201121 and have been launched but will not have been finalised before the end of the IP. The instrument also corrects deficiencies in the 2011 Regulations to ensure that they can operate effectively after 31 December 2020.

Draft European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020

56.This is an important technical instrument, necessary to ensure that the statute book operates correctly after Implementation Day. To ensure consistency, it incorporates retained direct EU legislation or relevant separation agreement law into the Interpretation Act 1978 and its equivalents in the Devolved Administrations. The Regulations also include general interpretative provisions, clarify how ambulatory and non-ambulatory references to EU law will work after 31 December 2020, and make various repeals of redundant EU-derived domestic legislation to declutter the statute book. The instrument provides a general gloss to ensure that the correct interpretation of any EU instrument applies. Cabinet Office states that statutory instruments being prepared by other departments in order to implement the Withdrawal Agreement, including the Northern Ireland Protocol, are relying on these glosses.

Draft Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2020

57.This instrument proposes changes to ensure that retained EU law on Persistent Organic Pollutants (POPs)22 can function effectively in Great Britain after the end of the Implementation Period (IP), and to implement the Northern Ireland Protocol (“the Protocol”). The Department for Environment, Food and Rural Affairs (Defra) explains that the Stockholm Convention (“the Convention”) came into effect in 2004 with the aim of eliminating or restricting the production and use of POPs. While the UK currently meets the Convention obligations through EU law, the UK is a Party to the Convention in its own right and will continue to be bound by its obligations after the end of the IP.

58.This instrument aims to ensure that retained EU law on POPs is operable after the end of the IP and to enable Great Britain to implement its Convention obligations independently. Amongst other changes, the instrument transfers legislative and administrative functions that are currently held at EU level to public authorities in Great Britain, so that they can regulate the production, placing on the market and use of POPs. While EU law will continue to apply in Northern Ireland in this area, the Secretary of State will represent the UK for any direct Convention activities. The instrument creates a new power to take measures to control and trace waste contaminated by POPs in relation to Great Britain. This is a recent requirement under EU law23 and the measures have not been developed yet. Any legislative changes will be subject to the affirmative procedure and will have to made by 31 October 2023.

59.Asked about this deadline, Defra told the Committee that there was no particular implementation date in EU law and that measures concerning the traceability and control of POPs were “complex and should be implemented with consideration of the wider waste management sector”; a period of three years was “considered appropriate to allow enough time to develop the measures and use the power, if needed, to create a control and tracing system”.

60.We have received a submission from ClientEarth which raises a number of questions and concerns about the approach the Department has taken in this instrument to correcting deficiencies in retained EU law. We have published the submission and Defra’s response on our website.24W e note in particular the point made by ClientEarth that the instrument omits a current requirement under EU law that, when it is decided whether specific substances are by-products rather than waste, detailed criteria on the application of conditions on by-products “shall ensure a high level of protection of the environment and human health”. Asked about this omission, the Department told us that further Regulations will be needed next year to confer powers from the EU to the UK in this area, and that this will be the “appropriate place to set out any conditions on the exercise of that power” and to consider “ whether to make the exercise of the power subject to the condition identified by Client Earth”.

Draft Pesticides (Amendment) (EU Exit) Regulations 2020

61.This instrument proposes a number of amendments to earlier EU Exit instruments that converted EU law on the regulatory regimes for plant protection products (PPPs) and maximum residue levels (MRLs) of pesticides in food and feed into UK domestic law, to ensure that the national regimes can operate effectively after the end of the Implementation Period (IP). According to the Department for Environment, Food and Rural Affairs (Defra), most of the amendments are required because new EU legislation has come into force since the earlier instruments were made, and changes are needed so that the new measures can work correctly in a national context. This includes updating transitional provisions in the earlier EU Exit instrument so that they apply from the end of the IP, rather than Exit Day. The instrument also makes amendments as a result of the Northern Ireland Protocol to reflect that the EU’s PPP and MRL regimes will continue to apply in Northern Ireland. The instrument removes Northern Ireland from the retained EU legislation, so that the new PPP and MRL regimes will apply only in Great Britain, rather than UK-wide. With regard to the impact of the different regulatory regimes, Defra told us that:

“Under the current regulations, each UK administration already has competence for decisions on which plant protection products can be authorised for marketing and use in their respective territories. This will remain the case after the end of the Transition Period. In practice, all administrations delegate regulatory functions to HSE to operate on their behalf. After the Transition Period ends, decisions for Great Britain will be taken under retained law and decisions for Northern Ireland will be taken under EU law [ … ]. HSE will continue to undertake regulatory functions on behalf of all administrations and to operate on a four countries basis, assessing product applications through a single process, wherever possible. If not possible (for example, if there had been divergence between the EU and GB regimes on relevant matters) then applications to authorise pesticides in Northern Ireland would need to be determined in accordance with the different EU requirements.”

62.We have received a submission by ClientEarth which raises a number of questions about the way this instrument proposes to correct deficiencies in retained EU law. We have published this submission and Defra’s response on our website.25

Other instruments

63.The Civil Procedure (Amendment No. 3) Rules 2020 were laid before Parliament on 17 July 2020 and came into force on 23 August 2020. We should have scrutinised the Regulations at our 24th meeting on 28 July 2020 but, due to an oversight, we did not consider the instrument then or at any subsequent meeting. Unfortunately, we only became aware of this oversight after the prayer period of the instrument had expired.

64.We also did not consider the Education (Induction Arrangements for School Teachers) (England) (Coronavirus) (Amendment) Regulations 2020 (SI 2020/842) and the Education (National Curriculum Assessment Arrangements, Attainment Targets and Programmes of Study) and (Pupil Information and School Performance Information) (Amendment) (England) Regulations 2020 (SI 2020/844). Both instruments were laid before Parliament by the Department for Education on 11 August 2020 and we should have considered the instruments at our 25th meeting on 8 September. However, the Department failed to send copies of these instruments to the Committee, and we only became aware of this oversight after the prayer period of the instruments had expired. We have written to the Acting Permanent Secretary to alert the Department to this oversight.


20 Public Procurement (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/560) and the Public Procurement (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 (SI 2019/623).

21 Defence and Security Public Contracts Regulations 2011 (SI 2011/1848).

22 POPs are chemicals that persist in the environment, bioaccumulate through the food chain and pose a risk of harm to human health and the environment. They include pesticides (such as DDT), industrial chemicals (such as polychlorinated biphenyls, PCBs) and unintentional by-products of industrial processes (such as dioxins).

23 Regulation (EU) 2019/1021 of the European Parliament and of the Council of 20 June 2019 on persistent organic pollutants (recast).

24 Secondary Legislation Scrutiny Committee publications page: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/.

25 Secondary Legislation Scrutiny Committee publications page: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/.




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