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Forty First Report Contents

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Instruments of interest

Draft International Waste Shipments (Amendment) (EU Exit) Regulations 2021

20.This instrument implements the Northern Ireland Protocol (“the Protocol”) in relation to the shipment of waste. The Department for Environment, Food and Rural Affairs (Defra) explains that under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, shipments of waste are controlled to make sure they are managed in an environmentally sound manner. The requirements include a notification procedure for transboundary movements of waste. In addition, the Organisation for Economic Cooperation and Development (OECD) provides a framework for transboundary movements of waste for recovery between OECD countries.

21.Defra explains that the UK will remain a party to the Basel Convention and a member of the OECD after the Transition Period and will continue to meet its international obligations, and that, under the Protocol, Northern Ireland (NI) will continue to apply EU law on the movement of notifiable waste.8 This means that regulatory and administrative controls will be required on the movement of waste from Great Britain (GB) to NI. These controls are introduced by this instrument and include requirements for the business arranging for the transport of waste to apply to the Competent Authorities of dispatch in GB and destination in NI for approval before the waste is transported, and for a financial guarantee or equivalent insurance to cover the costs if the waste cannot be recycled. Defra states that between 45 and 55 businesses which currently transport an estimated 80,000 tonnes of hazardous or mixed waste from GB to NI annually will be affected. Defra says that there will be no such controls for the shipment of waste from NI to GB.

Draft West Yorkshire Combined Authority (Election of Mayor and Functions) Order 2021

22.The purpose of this instrument is to provide for the establishment of a directly elected Mayor who will also chair the West Yorkshire Combined Authority (“the WYCA”). The WYCA includes the local government areas of Bradford, Calderdale, Kirklees, Leeds and Wakefield. The current plan is for the first mayoral election to be held on 6 May 2021. The Order amends certain governance arrangements and sets out the functions that are to be exercised by the WYCA, such as in relation to transport; education, skills and training; and housing, regeneration and planning. The Order further specifies functions of the WYCA which are to be exercised only by the Mayor, including powers in relation to housing, land acquisition and local transport plans and strategies. The Order also transfers functions as well as property, rights and liabilities of the current Police and Crime Commissioner (PCC) for West Yorkshire to the WYCA from 10 May 2021. From that date, the PCC functions will be exercised by the Mayor and the PCC for West Yorkshire will be abolished. We regret that while the Explanatory Memorandum states that conferring functions to the WYCA “should lead to operational efficiencies that could lead to reduced costs”, the Ministry of Housing, Communities and Local Government has not provided any financial assessment of the changes.

Customs Miscellaneous Non-fiscal Provisions and Amendments etc. (EU Exit) Regulations 2020 (SI 2020/1624)

23.This instrument makes changes in relation to goods that are moved from Northern Ireland (NI) to Great Britain (GB) after the end of the Transition Period (TP). HM Revenue and Customs (HMRC) says that the changes are required under the NI Protocol and ensure that:

• entry summary declarations (ENS), which contain safety and security information about the goods being moved, will be required for goods that are moved from NI to GB, where those goods are subject to a customs duty under section 30C of the Taxation (Cross-border) Act 2018. Goods that are not subject to a duty will not require an ENS. HMRC told us that section 30C imposes a customs duty only on goods which are not qualifying NI goods.9 This includes goods for which specific conditions apply under international obligations when they are moved from NI to GB, such as fluorinated gas and ozone depleting substances, hazardous chemicals, persistent organic pollutants, genetically modified organisms, rough diamonds or endangered species. According to HMRC, the provisions ensure that unfettered access is only available to appropriate NI traders and deter businesses from rerouting goods from the EU via NI to avoid import formalities;
• the shorter two-hour time limit for the submission of an ENS that applies to goods arriving in GB by sea from the Republic of Ireland, the Channel and other nearby ports will also apply to goods that require an ENS and arrive by sea from NI ports;
• Economic Operation Registration and Identification requirements, in relation to goods imported and exported into and out of GB, also apply to goods moving from NI into GB, where those goods are subject to a section 30C duty;
• the Customs and Excise Management Act 1979 applies for the purpose of enforcing prohibitions and restrictions on the movement of goods, people and vehicles between GB and NI;
• the Finance Act 1994 applies to the movement of goods from NI to GB, including in relation to HMRC’s powers to require the production of documents or enter premises, where there are export formalities under EU law in relation to restricted or prohibited goods; and
• HMRC is able to collect and process trade statistics in relation to the trade of goods between the UK and the EU.

Official Controls (Animals, Feed and Food, Plant Health etc.) (Amendment) (EU Exit) (No. 2) Regulations 2020 (SI 2020/1631)

24.This instrument makes further amendments to existing retained EU law to ensure a full system of sanitary and phytosanitary (SPS) controls on imports to Great Britain of agri-food items, including transitional arrangements. The Department for Environment, Food and Rural Affairs (Defra) says that the SPS checks will vary proportionately, depending on the specific risk factors of the commodity and of the country of export.

25.We have received a submission from Friends of the Earth which raises a number of questions about the approach the Department has taken with this instrument, including with regard to the requirements of future new model import certificates and the level of parliamentary scrutiny in relation to the future imposition of import restrictions. We are publishing the submission and Defra’s response on our website.10

Drivers’ Hours and Tachographs (Amendment) Regulations 2020 (SI 2020/1658)

26.This instrument is the first to be made under the European Union (Future Relationship) Act 2020 and is made under the urgency provisions to avoid any gap in enforceability of the drivers’ hours and tachograph rules. The original EU Exit Regulations (SI 2019/453) were made for a no deal scenario but needed to be amended swiftly to ensure that the specific provisions set out in the Trade and Cooperation Agreement relating to international road freight and passenger transport are met. The instrument legislates for the whole of the UK, with the agreement of Northern Ireland due to the very tight deadline for making changes. As part of its justification for the urgency procedure, the Department for Transport states that the Driver and Vehicle Standards Agency detects around 500 offences per month related to drivers’ hours or tachograph breaches: “A gap in enforcement would be liable to be swiftly recognised by many drivers and operators and would risk some of them changing behaviour.”

Agricultural Products, Food and Drink (Amendment) (EU Exit) Regulations 2020 (SI 2020/1661)

27.This instrument deals with retained EU law on geographical indication (GI) schemes for food and drink. Amongst other changes, the instrument provides, through so-called “bridging arrangements”, interim protection of third country GIs and traditional wine terms which have been agreed in continuity trade agreements between the UK and third countries, but which have not yet been ratified. The instrument also provides for the ongoing protection of US and Mexican product designations, such as Bourbon and Tequila, to reflect continuity agreements that the UK has now concluded with the US and Mexico. While not part of this instrument, Defra has confirmed that all UK GIs which were already registered with the EU by 31 December 2020, will remain protected in the EU.

28.The instrument further introduces temporary arrangements for the import of wine from the EU. The Department for Environment, Food and Rural Affairs (Defra) explains that after the end of the Transition Period (TP), there will be a new requirement for wine that is imported from the EU to be covered by the appropriate certification. Defra says that the UK currently imports about half of its wine from the EU, and that this instrument introduces a six-month transition period until 1 July 2021, during which EU wines can continue to enter the UK under the arrangements that applied before the end of the TP. This is to give EU exporters time to adjust to the new import requirements in the UK. Defra told us that the Trade and Cooperation Agreement has simplified these requirements, for example by only requiring the alcoholic strength to be provided in relation to the analytical characteristic of the wine.

29.The instrument also ensures that current organic standards and requirements for the certification and traceability of organic food and feed products are maintained, reflecting the UK’s decisions to recognise the EU and European Economic Area (EEA) as having equivalent organic standards until 31 December 2021. This is to ensure that operators in Great Britain (GB) can continue to import organic food and feed from the EU/EEA as they did before the end of the TP. Defra says that the Trade and Cooperation Agreement that was agreed with the EU on 24 December extends the mutual recognition of organic standards until 31 December 2023, and that a further instrument will be brought forward to implement this. This instrument also ensures that GB operators will not require a Certificate of Inspection for organic imports from the EU/EEA and Switzerland until 1 July 2021 to provide additional time for ports to adjust to the new import processes.

Greenhouse Gas Emissions Trading Scheme (Amendment) Order 2020 (SI 2020/1557)

30.This is a joint Order by the UK, Scottish, Welsh and Northern Irish governments. It makes changes to enable the launch of the UK Emissions Trading Scheme (UK ETS) which replaced the UK’s participation in the EU Emissions Trading System (EU ETS) at the end of the Transition Period (TP).11 The Order came into force alongside an earlier instrument12 which established the statutory framework for the UK ETS. The Department for Business, Energy and Industrial Strategy (BEIS) says that UK ETS will run for an initial phase of 10 years, divided into two allocation periods (2021 to 2025 and 2026 to 2030).

31.Amongst other provisions, this Order creates a Registry to track the distribution and use of allowances under the UK ETS, both by traders and by operators for compliance purposes, and sets out the rules for the free allocation of allowances to industrial sectors to protect against carbon leakage, closely replicating the rules of the EU ETS.13 The Registry will be an online platform which, in practice, will be managed by the Environment Agency on behalf of regulators in England and the Devolved Administrations. We note that a separate instrument will be required to establish the rules for the auctioning of allowances and mechanisms to support market stability which will be a central part of the UK ETS without which a properly functioning market will not be able to exist.

32.We asked the Department about the readiness of the new Registry which, according to the Explanatory Memorandum, “is currently being developed and is on track to be ready for January 2021”. BEIS told us that:

33.“The UK Emissions Trading Registry is now live (from 4 January 2021). This follows significant testing with delivery partners, the registry administrator (the Environment Agency) and end users throughout the development process but also intensively through testing sprints during October, November and December 2020.

34.In addition, ETSWAP (Emissions Trading System Workflow Automation Programme), the system used for issuing and managing permits and management plans under the UK ETS, has been in place for a number of years and is well understood by users and regulators (this UK solution was also used under the EU ETS for UK users). Initial permits and management plans were issued for existing participants in the UK ETS in December 2020.

35.The UK Emissions Trading Registry will be in a ‘Private Beta’ phase with a sub-set of UK ETS participants for the first weeks of operation. This is effectively a ‘soft launch’ to ensure that the production system and administrative functions are all running smoothly. As well as establishing Registry Administrator and Authority User accounts in the new Registry, a number of end users have been invited to participate in private Beta through January and February.

36.Registration of users and allocation of allowances into Registry accounts is planned for quarter 2 2021 to avoid unnecessary overlap with the compliance period of the final year of the EU ETS (allowance surrender deadline for 2020 under the EU ETS is 30 April 2021).

37.UK ETS compliance accounts will be automatically created by the Registry Administrator on behalf of operators and will be assigned to operators in Q2 2021. UK ETS Traders will also be invited to open trading accounts by Q2 2021. Further guidance and information on how to use the UK Emissions Trading Registry is available on GOV.UK.”

Sea Fishing (Penalty Notices and Designation) (England) (Amendment) (EU Exit) Order 2020 (SI 2020/1635)

38.This instrument enables the Marine Management Organisation (MMO) to issue financial administrative penalties (FAPs) for offences set out in the Fisheries Act 2020, including in relation to access to British fisheries by foreign boats; the requirement to license British fishing boats; the requirement to license foreign fishing boats within British fishery limits; and the requirement to comply with conditions attached to a fishing licence. The Department for Environment, Food and Rural Affairs (Defra) explains that without this instrument, the MMO would not be able to issue FAPs from 1 January 2021, for example, for access and licensing offences made by foreign fishing boats. Defra says that offences would instead need to be dealt with by the courts, which would delay taking enforcement action. The instrument also enables the Secretary of State to delegate to the MMO functions that relate to the delivery of certain limited schemes of financial assistance provided by Defra for the seafood sector in England.

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