Thirty Second Report Contents

Instruments of interest

Draft Audiovisual Media Services (Amendment) (EU Exit) Regulations 2020

45.We drew an earlier negative instrument to the special attention of the House21 which implemented EU requirements to protect users, especially young people, from online harm, including from content provided on video-sharing platform (VSP) services, such as YouTube. This instrument, laid under the affirmative procedure, proposes further changes in this area, specifically to enable the regulator, Ofcom, to determine which VSP services will be in its jurisdiction. According to the Department for Digital, Culture, Media and Sport (DCMS), Ofcom will be able to regulate VSPs whose “primary establishment” is in the UK, meaning that these services must be economically active and have a physical presence in the UK which must also be the centre of their economic activity. This means that, in practice, while Ofcom will be able to prevent UK-based services from providing harmful content in the UK and in the EU, key VSPs that provide services to UK audiences but are based in the EU, such as YouTube or Facebook, will be outside Ofcom’s jurisdiction.

46.Our previous report raised concerns about enforcement after the end of the Transition Period (TP), specifically that, as a third country, the UK will have to rely on informal co-operation with regulators in the EU. We also questioned how UK audiences are to be protected from harmful content provided by services in non-EU countries, such as the US. DCMS told us that: “US-based providers often scale their platforms to European countries in order to tailor the advertising, content and language to the country in question. […] It is therefore likely that most, if not all, US based prominent VSPs will have some form of physical presence in Europe.”

47.The Explanatory Memorandum accompanying this instrument refers to the regulatory gap where VSPs have no physical presence in the UK or the EU or where, for example in the case of TikTok, the VSP is established in China with multiple subsidiaries across the EU and no decision has been made yet as to the appropriate regulator. DCMS explains that the Online Harms Bill is expected to address this by enabling Ofcom to regulate any relevant service provided to UK users irrespective of where that service is based. In our report on the earlier instrument, we called on the Department to give a timetable for the introduction of the Online Harms Bill, given the importance of protecting UK users, especially young people, from online harm. Asked about the timetable, DCMS told us that the Government’s response to the online harms consultation will be published later this year and that draft legislation will be ready early in 2021. It is important that the Government will adhere to the legislative timetable provided by the Department, so that the current regulatory gap, which leaves UK users potentially exposed to online harm, can be closed.

Draft Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2020

48.These draft Regulations propose changes to ensure that retained EU law on the Common Fisheries Policy (CFP) will operate effectively after the end of the Transition Period. According to the Department for Environment, Food and Rural Affairs (Defra), while some of the changes account for new EU CFP legislation which has come into force since earlier EU Exit instruments were laid in preparation for Exit Day, other changes are required to correct the earlier instruments and to implement the Withdrawal Agreement.

49.We have received a submission from ClientEarth which raises questions and concerns about the changes proposed by the instrument, including about a potential weakening of requirements in relation to scientific information and research surveys, sustainability of stocks and reporting. We are publishing ClientEarth’s submission and Defra’s response on our website.22 In its response, Defra provides further information, including about ongoing discussions with the Devolved Administrations about the future role of scientific and economic fisheries advice and about how the principle of sustainable exploitation of stocks and provisions on landing bycatch are covered by the Fisheries Bill.

50.We particularly note an issue highlighted by ClientEarth that, while the Fisheries Bill gives authorities powers to provide financial assistance, there are few details on what this should look like, including around financial assistance for rewarding or deterring behaviour related to sustainability. Defra says that the Fisheries Bill provides the same breadth of matters than can be funded as under the European Maritime and Fisheries Fund, but that further details about specific activities to be funded in any future schemes will be contained within a subsequent statutory instrument.

Draft Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2020

51.This instrument proposes changes to ensure that the legal framework for data protection within the UK continues to function correctly after the end of the Transition Period (TP), including in relation to the sharing of personal data with other countries for law enforcement purposes. The Department for Digital, Culture, Media and Sport (DCMS) explains that when leaving the EU, controllers in the UK will need a legal basis to continue the free flow of personal data for law enforcement purposes from the UK to third countries, territories and institutions, including EU Member States, other European Economic Area (EEA) countries23 and Gibraltar.

52.An earlier EU Exit instrument24 provides the legal basis for some law enforcement transfers by deeming the EU and Gibraltar to be adequate, along with any other country or territory already deemed adequate by the EU under the Law Enforcement Directive (LED). Since the earlier instrument was laid, the EEA countries and Switzerland have implemented the LED and now meet the LED’s requirements for data protection standards. Amongst other changes, this instrument deems these countries as adequate in the UK, so that it will be possible to continue sharing data easily with these countries for law enforcement purposes after the end of the TP. Asked whether EU countries would continue to recognise the UK as adequate and share their data with the UK after the end of the TP, DCMS told us that the Commission was currently assessing the UK for adequacy under both the General Data Protection Regulation and the LED.

Draft Ecodesign for Energy-Related Products and Energy Information (Amendment) (EU Exit) Regulations 2020

53.This instrument proposes changes to ensure that retained EU law on Ecodesign and Energy Labelling25 can operate effectively in the UK after the end of the Transition Period (TP). This includes amendments to an earlier EU Exit instrument26 to reflect changes to EU law since the earlier instrument was laid. The instrument is also needed to implement the Northern Ireland Protocol in this specific area: the Department for Business, Energy and Industrial Strategy (BEIS) says that the changes aim to deliver unfettered access for qualifying Northern Ireland (NI) goods to the market in Great Britain (GB), while also making sure that EU law will continue to apply directly in NI after the TP.

54.BEIS says that in order to enable NI goods to move freely into the GB market without additional checks or controls beyond those which currently exist, this instrument allows qualifying NI goods which meet EU Ecodesign and Energy Labelling requirements to be placed on the GB market, even where these requirements may differ from those that will apply in GB after the TP. At the same time, to allow products from GB to be placed on the NI market, provisions are made for a UK(NI) mark which will have to accompany all products which have been CE certified by UK bodies and are destined for the NI market.27 In addition, the instrument proposes new labelling and marking requirements that are to apply from the end of the TP: recognition of the current CE marking will be limited to 12 months from 1 January 2021, and new energy labels will have to bear the UK flag and text from 1 January 2021 in place of the EU flag and any EU language text.

Draft Environment and Wildlife (Miscellaneous Amendments etc.) (EU Exit) Regulations 2020

55.The purpose of these draft Regulations is to implement the Northern Ireland Protocol in relation to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”). This will mean that there will be separate CITES regimes in Northern Ireland (NI), where EU law will continue to be implemented, and Great Britain (GB), where retained EU law will apply. The Department for Environment, Food and Rural Affairs (Defra) says that CITES regulates international trade through a system of documents, including import and export permits, which must be presented at the border. While no such permits or checks are required for intra-EU trade, CITES permits and checks which were implemented at the EU border will need to be implemented at the UK border after the end of the Transition Period (TP) and, because separate CITES regimes will operate in GB and NI, permits and checks will be required for moving relevant species between GB and NI in both directions.

56.Defra told us that the Animal and Plant Health Agency will issue permits for both GB and NI, under separate sets of regulations, and that the CITES checks “are not particularly onerous”. They will require documentary checks rather than physical checks of consignments, with physical checks only being carried out on a risk basis. Defra told us that “Border Force already carry out such checks on consignments from the rest of the world, and have increased staff numbers to meet these additional requirements after the end of the transition period”.

57.We have received a submission from ClientEarth which raises a number of questions and concerns, including about a potential reduction of scientific input. We are publishing the submission and Defra’s response, which addresses these concerns, on our website.28 We particularly note that, as highlighted by ClientEarth, a specific power for the Secretary of State to prohibit the holding of specimens, including live animals, is removed. While Defra regards a direct replacement of this power as unnecessary, we consider that holding or trading animals may pose a risk of spreading disease.

Draft European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020

58.The European Union (Withdrawal) Act 2018 provided that, generally, the EU law that the UK has chosen to retain is to be interpreted in line with retained EU case law from judgments of the Court of Justice of the European Union. At present, the power to depart from retained EU case law after the Transition Period sits only with the UK Supreme Court and High Court of Justiciary in Scotland. However, amendments made by the European Union (Withdrawal Agreement) Act 2020 allowed further courts to be designated as well as the factors to be considered in making such decisions.

59.Regulation 3 of this instrument designates seven courts that will also have the power to deviate from retained EU case law: the Court Martial Appeal Court, the Court of Appeal in England and Wales, the Inner House of the Court of Session, the High Court of Justiciary (when acting as a court of appeal in a devolution or compatibility issue), the Registration Appeal Court in Scotland, the Lands Valuation Appeal Court and the Court of Appeal in Northern Ireland. To ensure consistency in decision-making, regulation 5 requires that when doing so, these courts must apply the same test used by the UK Supreme Court.

Draft Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020

60.These draft Regulations propose to transfer legislative functions for restricting the use of certain hazardous substances in electrical and electronic equipment (EEE) from the European Commission to the Secretary of State in relation to England, Scotland and Wales after the end of the Transition Period (TP). The instrument also proposes changes to help ensure the UK meets its obligations under the Northern Ireland Protocol (“the Protocol”) in this area.

61.The Department for Environment, Food and Rural Affairs (Defra) says that the powers are to enable the Secretary of State to grant, renew or revoke exemptions to the restriction of hazardous substances in EEE; to amend the list of restricted substances and maximum concentration values; and to prescribe detailed rules for complying with maximum concentration values. The instrument also includes provisions to enable applications to be made to the Secretary of State for the granting, renewal or revocation of exemptions, and for the procedure for determining such applications, as well as transitional provisions for applications made before the end of the TP. With regard to the Protocol, the instrument proposes amendments to ensure that Northern Ireland remains compliant with EU law while also facilitating the access of qualifying Northern Ireland good to the market within Great Britain.

62.We have received a submission from ClientEarth which raises concerns about a potential lessening of consultation requirements and a weakening of the objective to protect human health and the environment. We are publishing the submission and Defra’s response which addresses these concerns on our website.29

Draft Law Enforcement and Security (Separation Issues Etc.) (EU Exit) Regulations 2020

63.These draft Regulations are in part amending regulations that address new developments since the 2019 EU Exit Regulations were made;30 for example in relation to the application of the Prüm Directive to the UK and to applying the extradition provisions of the EU-Iceland/Norway Surrender Agreement which came into force in November 2019.

64.The instrument otherwise makes arrangements for the orderly “winding down” of cross-border judicial and police cases in progress at the end of the Transition Period (TP), including requiring that data protection agreements will continue to apply to any information acquired before 31 December 2020. These provisions are effectively time-limited because they only apply to procedures and cases that are ongoing at the end of the TP; once those are completed, the provisions will no longer have practical application.

65.These Regulations in part amend the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (“the 2019 Regulations”), about which we published a critical report31 because the 2019 Regulations bundled together a large number of topics without adequate information on any of them. As these Regulations amend that instrument, they also follow the same format. There, is, however, a table attached to the Impact Assessment that gives a more detailed explanation of the effect of each Chapter of the Regulations32 but, like the Regulations themselves, this focuses on the handling of transitional cases.

Draft Plant Health (Amendment etc.) (EU Exit) Regulations 2020

Draft Plant Health (Phytosanitary Conditions) (Amendment) (EU Exit) Regulations 2020

66.The purpose of these two sets of draft Regulations is to protect biosecurity and support trade by ensuring that effective phytosanitary controls continue to operate within Great Britain (GB) and between GB and the EU at the end of the Transition Period (TP). The Department for Environment, Food and Rural Affairs (Defra) explains that the changes proposed in the draft Plant Health (Amendment etc.) (EU Exit) Regulations 2020 are to create a ‘single market’ covering GB and the Crown Dependencies.33 The EU will become a third country and be subject to third country import controls. At the same time, existing internal controls will continue to apply within GB’s internal market.

67.The draft Plant Health (Phytosanitary Conditions) (Amendment) (EU Exit) Regulations 2020 proposes measures in relation to quarantine pests that are to apply in GB.34 The instrument also sets out measures to reduce the risk when plants, plant products and other relevant materials are imported into or moved within GB. Separate secondary legislation will have to be laid before the end of the year to maintain alignment with relevant EU law in Northern Ireland (NI) and specify requirements for GB goods entering NI. Defra says that controls of EU imports of plants will be phased in over six months, from 1 January 2021, to allow trade to continue to flow while businesses adapt to the new arrangements. Asked for more information about this phased approach and where controls of EU plant imports will take place, Defra told us that:

“From January 2021, there will be the requirement for pre-notification and phytosanitary certificates for plants and plant products that pose a high risk to GB biosecurity and they will also be subject to checks. From April 2021, the requirement for pre-notification and phytosanitary certificates will be extended to include all regulated plants and plant products. From July 2021, an increased number of physical checks will be carried out on plants and plant products on a risk basis. Between January 2021 and July 2021, physical inspections [by the relevant plant health agency] will take place at the point of destination for imports from the EU.”

21 Audiovisual Media Services Regulations 2020 (SI 2020/1062), 30th Report, Session 2019-21 (HL 146).

23 Norway, Liechtenstein and Iceland.

24 Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419).

25 EU law sets minimum energy performance standards for energy-related products and requires the use of energy labels to provide consumers with information on a given product’s energy performance.

26 Ecodesign for Energy-Related Products and Energy Information (Amendment) (EU Exit) Regulations 2019 (SI 2019/539).

27 CE certification indicates conformity with EU health, safety and environmental protection standards for products sold within the European Economic Area. A special UK(NI) mark is to be introduced by the draft Product Safety and Metrology etc. (Amendment etc.) (UK(NI) indication) (EU Exit) Regulations 2020, see para 20 of this report.

30 Part 2 of these Regulations amends the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (SI 2019/742), Part 3 amends the Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/780).

31 SLSC Sub-Committee A, 17th Report, Session 2017-19 (HL Paper 292).

32 See Law Enforcement and Security (Separation Issues etc.) (EU Exit) Regulations 2020, Impact Assessment, page 11 onwards.

33 The Crown Dependencies are the Channel Islands and the Isle of Man.

34 Quarantine pests are prohibited from entering GB and are subject to statutory control if found on plants or plant products. Requirements on quarantine pests and diseases are one of the two key elements of statutory plant health control, along with certification.

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