Instruments of interest
Draft Agricultural Products, Food and Drink (Amendment etc.) (EU Exit) Regulations 2020
33.The main purpose of these draft Regulations is to introduce a regulatory framework for Geographical Indication (GI) schemes13 in the UK after the end of the Transition Period (TP). The instrument also proposes amendments for (non-GI) standards in relation to wines and the spirits sector and implements the Northern Ireland Protocol (“the Protocol”), so that for the duration of the Protocol, the territorial extent of the new UK GI schemes will not include Northern Ireland, which will remain under the EU arrangements.
34.The Department for Environment, Food and Rural Affairs (Defra) says that, amongst other changes, the instrument provides for the continued protection in Great Britain (GB) of established UK GIs and non-UK GIs that are recognised under the EU GI schemes on 31 December 2020. The instrument consolidates amendments contained in earlier instruments and, together with other EU Exit legislation,14 will enable the UK to meet its obligations under the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights. The instrument also proposes the establishment of GB GI registers and new domestic GI logos and, specifically in relation to established GB GIs in the agri-food sector, provides for a three-year transition period before the new GI logos become mandatory, while the requirement for the use of EU GI logos is removed. The instrument further introduces an appeals procedure, enabling appeals against GI scheme decisions made by the Secretary of State to be made to the First-tier Tribunal.
35.Asked whether the EU will reciprocate and continue to recognise established UK GIs, the Defra confirmed that this was “the expectation and will be the default position” at the end of the TP, adding that the Department did “not expect the position to change as a result of the ongoing future relationship negotiations with the EU”.
Draft Animal Welfare and Invasive Non-native Species (Amendment etc.) (EU Exit) Regulations 2020
36.These draft Regulations propose changes to ensure that animal welfare legislation can operate effectively after the end of the Transition Period (TP). The legislation covers the protection of animals at the time of their killing, during transport and the criteria for animals being kept in control posts; the use of leghold traps, the import of pelts and manufactured goods of certain wild animals; and the prevention and management of the introduction and spread of invasive non-native species.
37.The Department for Environment, Food and Rural Affairs (Defra) says that the proposed changes are needed to maintain the strict protections that are currently in place and to implement the Northern Ireland Protocol in these policy areas. Amongst other changes, the instrument proposes to end the recognition in Great Britain (GB) of Transporter Authorisations, driver and attendant Certificates of Competence (CoC), Vehicle Approvals and Journey Logs which have been issued by an EU Member State. This means that EU transporters will need to apply for these documents to be issued by a competent authority in GB, if they wish to continue to transport animals in GB after the end of the TP.
38.Defra told us that this was reciprocal, and the EU would also cease to recognise GB-issued documents in this area. The Department explained that:
“Although EU and GB standards will remain aligned at the end of the transition period, we have ambitions to strengthen welfare in transport standards in the near future. We want to ensure that, going forward, EU transporters who move live animals into GB adhere to our standards. Requiring them to have authorisations issued in GB will enable us to ensure effective enforcement against non-compliance and create a level playing field to ensure that GB transporters are not commercially disadvantaged.”
39.Asked about the impact of the changes, Defra told us that:
“The process to obtain and apply for these documents will not change. The only difference will be the country in which they are now obtained. Drivers and attendants undertake the training and assessment for the species in which they wish to transport in order to obtain Certificate of Competences (CoC), while the vehicle(s) undergoes inspection for approval. Upon receipt of these documents, the transporter will apply to [the Animal and Plant Health Agency] for the Transporter Authorisation (TA). Upon receipt of the TA, the transporter is eligible to transport in GB.”
40.Defra added that while TA’s and Journey Logs are currently issued free of charge, CoCs cost around £360 per certificate, including training, while Vehicle Approvals cost around £200 per vehicle.
Draft Common Fisheries Policy (Amendment etc.) (EU Exit) (No. 2) Regulations 2020
41.These draft Regulations propose changes to enable the enforcement of the UK’s obligations under several provisions of the EU’s Common Fisheries Policy (CFP) which will continue to apply directly in Northern Ireland (NI) after the end of the Transition Period (TP) under the NI Protocol (“the Protocol”). These changes will enable the UK to fulfil its obligations under a number of international fisheries agreements, including the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA) which aims to combat illegal, unreported and unregulated (IUU) fishing by regulating access of foreign fishing vessels to the ports of contracting parties.15
42.The Department for Environment, Food and Rural Affairs (Defra) explains that the EU is a contracting party to the PSMA and that the UK intends to accede to the PSMA in its own right after the end of the TP. While EU law that implements the EU’s PSMA obligations will continue to apply in NI by virtue of the Protocol, this will not regulate access by EU vessels, as such vessels are not foreign fishing vessels under the EU’s PSMA obligations. This instrument therefore proposes that once the UK accedes to the PSMA as an independent contracting party after the end of the TP, retained EU law will apply to NI specifically in relation to the use of ports by EU fishing vessels to ensure full compliance with the UK’s obligations under the PSMA. This will enable the UK to impose controls on all non-UK vessels, including those flying the flag of EU Member States. According to Defra, these controls include requirements to use designated ports, to obtain authorisation prior to using ports and to submit certain documents in advance of using ports as well as a regime of inspection.
43.We received a submission from ClientEarth which raised a number of questions and concerns about this instrument. We note that, as highlighted by ClientEarth, certain delegated powers currently held by the EU have not been transferred to the UK. Defra explains that these powers have never been used by the EU and that the Government anticipate being able to use other powers, including under what is now clause 36 of the Fisheries Bill, to implement international obligations relating specifically to the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) catch documentation scheme for Antarctic and Patagonian Toothfish. We are publishing the submission by ClientEarth and Defra’s full response on our website.16
Draft Common Organisation of the Markets in Agricultural Products (Miscellaneous Amendments) (EU Exit) Regulations 2020
Draft Common Organisation of the Markets in Agricultural Products (Miscellaneous Amendments) (EU Exit) (No.2) Regulations 2020
44.These two sets of draft Regulations share an Explanatory Memorandum and propose changes to retained EU law and domestic law relating to the Common Organisation of Agricultural Markets (CMO) to ensure that the legislation can work effectively after the end of the Transition Period. The proposed amendments are also needed to implement the Northern Ireland Protocol.
45.Amongst other changes, different transitional provisions are proposed for different commodities: transitional provisions for the import of hops and hops products, for example, are to be shortened to align them with the Border Operating Model17 which will introduce new border controls in three stages up until 1 July 2021. This means that EU forms and certificates from third countries attesting that hops or hops products meet marketing standards requirements will only be accepted until 1 July 2021, rather than for a period of two years as originally intended, provided that the EU’s standards remain at least equivalent to standards in Great Britain. We asked the Department for Environment, Food and Rural Affairs (Defra) why these specific transitional provisions were being amended whilst those for other commodities were not, adding complexity to the new arrangements. The Department’s response suggests that there are differing levels of preparedness for different commodities. Defra told us that:
“The provision for the import of hops and hops products will be amended to align with the Border Delivery Model. […] This is not the approach that has been adopted for all of the transitional provisions, for example, EU certificates of conformity for imports of fruit and vegetables and the use of optional indication certificates for poultrymeat imports. For fruit and vegetables, we have retained the two-year transitional period […] in order to allow policy teams to deliver the necessary IT system changes and recruit additional HMI inspectors. For poultrymeat, we have retained a 12-month transitional period […] as we do not currently enforce poultrymeat marketing standards, so will need sufficient time to operationalise the regime before being in a position to conduct the associated checks. We are aware that the different approaches for different commodities will attract scrutiny. The CMO transitional provisions have been reviewed on a case by case basis to see where it would be practically possible to reduce the transitionary period in order to align with the Border Operating Model.”
46.In the light of public interest in food imports, we draw the attention of the House to the Department’s explanation that poultry meat marketing standards are currently not being enforced, and that a 12-month transitional period is needed to enable the future import regime and the associated checks to become operational.
Draft Heavy Commercial Vehicles in Kent (No. 1) (Amendment) Order 2020
Heavy Commercial Vehicles in Kent (No. 2) (Amendment) Order 2020 (SI 2020/1155)
Heavy Commercial Vehicles in Kent (No. 3) (Amendment) Order 2020 (SI 2020/1146)
47.These three instruments amend the 2019 regulations of the same name18 relating to Operation Brock, the arrangements for managing lorries going to the Channel Ports after the end of the Transition Period. In particular, they postpone the expiry date for the arrangements from 31 December 2020 to 31 October 2021. They also refine existing provision, following consultation with the Kent Resilience Forum, to:
- impose fines to enforce the Check an HGV is ready to cross the Border service, which is designed to reduce the volume of HGVs that travel to ports without the relevant customs documentation;
- require HGV drivers to have a Kent Access Permit to drive on specific motorways in Kent and modify the list of roads on which they can drive;
- allow for prioritisation of HGVs carrying single loads of specific perishable goods, for example live or fresh seafood for human consumption, in order to bypass the Operation Brock queues; and
- to clarify to whom Local Haulier Permits may be issued, that is a permit to allow hauliers based in East Kent and Faversham to use local roads when they would be otherwise restricted to using the specified motorway network.
Draft Import of, and Trade in, Animals and Animal Products (Miscellaneous Amendments) (EU Exit) Regulations 2020
48.These draft Regulations propose changes to ensure a functioning system for the import of animals and animal products after the end of the Transition Period (TP). The legislation that is to be amended covers animal health requirements in relation to the movement of live animals, including equines, pets and circus animals, and trade in products of animal origin (including meat), animal by-products and germplasm (semen, ova and embryos).
49.The Department for Environment, Food and Rural Affairs (Defra) says that the amendments reflect the status of the European Economic Area (EEA) as a third country after the end of the TP, and give effect to the Government’s policy of phasing in third country checks on imports from the EEA. According to Defra, no substantive change is being made to policy: the new arrangements seek to maintain the existing import regime, using a risk-based approach to protect biosecurity and welfare standards. Defra says that as Great Britain is currently part of the EU’s Sanitary and Phytosanitary regime, the risk from EEA imports after the TP is very low, and that the new regime will identify risk through the pre-notifications of imports.
50.The new arrangements are being phased in from the end of the TP to give businesses time to adjust: from 1 January 2021, importers of animal by-products and live animals will be required to pre-notify via the new Import of Products, Animals, Food and Feed system (IPAFFs), which will replace TRACES, the EU’s electronic notification system. From 1 April 2021, importers of products of animal origin will also be required to pre-notify via IPAFFs.
Road Vehicles (Construction and Use) (Amendment) Regulations 2020 (SI 2020/1178)
51.Following eight fatalities from collisions where Coroners concluded that old tyres were a factor, this instrument will ban the use of tyres aged 10-years and older on the front axles of heavy goods vehicles, buses and coaches. The ban will also apply on any axle of a minibus if the tyres are fitted in single configuration (that is, when only one wheel is fitted on each side of the axle). Equivalent restrictions are placed on the use of retreaded tyres if their retreading took place 10-years or more ago. The instrument will also introduce a requirement for the “date of manufacture” marking on the tyre to be legible. The Explanatory Memorandum states that this provision has been in guidance for a number of years but sampling by the Driver Vehicle and Standards Agency indicated that a small percentage of vehicles were on the road with at least one tyre more than a decade old. These Regulations seek to improve compliance by making it an offence subject to a fine.
Other instruments
52.The Feed-in Tariffs (Amendment) (Coronavirus) (No. 2) Order 2020 was laid before Parliament on 8 September 2020 and came into force on 30 September 2020. We should have scrutinised the Order at our 27th meeting on 22 September 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.
13 GIs are a form of intellectual property protection for the names of food, drink and agricultural products with qualities or characteristics which are attributable to the place they are produced and/or the traditional methods by which they are made. UK examples include Scotch Whisky and Welsh Lamb.
14 For example, the Draft Common Organisation of the Markets in Agricultural Products (Producer Organisations and Wine) (Amendment etc.) (EU Exit) Regulations 2020.
15 The other international agreements dealt with by this instrument are the Bluefin tuna catch documentation programme adopted by International Commission for the Conservation of Atlantic Tunas (ICCAT) and the catch documentation scheme for Dissostichus spp. (toothfish) adopted by the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).
16 Secondary Legislation Scrutiny Committee, scrutiny evidence page: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/8/scrutiny-evidence/.
17 Cabinet Office, The Border Operating Model (13 July 2020): https://www.gov.uk/government/publications/the-border-operating-model [accessed 28 October 2020].