Instruments of interest
Draft Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2022
30.The Immigration Exemption contained in paragraph 4 of Part 1 of Schedule 2 to the Data Protection Act 2018 (“the 2018 Act”) allows for certain data rights to be suspended where they would otherwise be prejudicial to ‘effective immigration control’. On 26 May 2021 the Court of Appeal ruled11 that the current wording of the exemption does not comply with the requirements of Article 23(2) of the UK General Data Protection Regulation (UK GDPR) which sets out specific provisions that must be included in the exemption (for example, to prevent abuse or safeguard against risks to data subjects). Following a remedy hearing on 8 October 2021, it was ordered that the Immigration Exemption was incompatible with retained EU law because it does not satisfy all of the requirements of Article 23(2). However, the Court’s order was suspended in order to provide reasonable time for the 2018 Act to be amended to remedy the incompatibility.
31.These Regulations propose amending Schedule 2 to the 2018 Act to include all of the safeguards listed in Article 23(2) where they are relevant. The Explanatory Memorandum accompanying the Regulations states that they also contain “additional safeguards” including “an obligation to have regard to” an immigration exemption policy document setting out the Secretary of State’s policies and processes about how the Immigration Exemption is applied and where. This has been published in draft for consultation alongside the draft instrument.12 On 31 January, the matter will return to the Court of Appeal.
Draft Occupational Pension Schemes (Collective Money Purchase Schemes) Regulations 2022
32.Until now there was a choice of two types of workplace pensions in the UK, either Defined Benefit (DB) or Defined Contribution (DC) schemes. These two models place the majority of the risks and associated costs—economic, financial, and longevity—with either the sponsoring employer (DB) or the individual member (DC). The Pension Schemes Act 2021 introduced a further option, a Collective Money Purchase scheme (CMP).
33.These draft Regulations, with a second instrument due to be laid in February 2022,13 propose the regulatory framework within which single or connected employers can create CMP pension schemes with adequate governance and safeguards in place for members and for employers. This instrument sets out what CMP schemes must do to become authorised, to operate effectively in the market under regulatory oversight, and what happens if changes need to be made to schemes. The authorisation regime is designed to protect members and to build confidence in this new form of money purchase occupational pension provision by ensuring only well designed and well run schemes are able to operate.
Draft Trade Union (Levy Payable to the Certification Officer) Regulations 2022
Draft Trade Union (Power of the Certification Officer to Impose Financial Penalties) Regulations 2022
34.These two instruments propose changes to the role of the Certification Officer. The Certification Officer is responsible for regulating trade unions and employers’ associations and is funded by the Department for Business, Energy and Industrial Strategy (BEIS).
35.Following amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 by the Trade Union Act 2016 (“the 2016 Act”), the draft Trade Union (Levy Payable to the Certification Officer) Regulations 2022 propose changes to allow the Certification Officer to recover its regulatory costs through a new levy on trade unions and employers’ associations. This is the first use of this power. The instrument proposes the principles by which the Certification Officer will calculate the levy each year, based on its expenses. The cost of external inspectors and external legal services will be excluded from the levy. BEIS says that a separate instrument will be brought forward once the draft Regulations have been approved to revoke fees which the Certification Officer currently charges for functions whose costs will be subsumed within the new levy. The Impact Assessment estimates that around £1.15 million of the Certification Officer’s annual operating costs of £1.18 million will be recovered through the levy.
36.The draft Trade Union (Power of the Certification Officer to Impose Financial Penalties) Regulations 2022 propose changes to allow the Certification Officer to impose financial penalties on trade unions and employers’ associations for non-compliance with statutory requirements. BEIS says that unlike many other regulators, the Certification Officer currently has no powers to impose any form of financial sanctions. This instrument proposes maximum penalties of between £5,000 and £20,000, depending on the severity of the obligation that has been breached, and a minimum of £200. The Department explains that relevant statutory obligations relate, for example, to the political funding of trade unions, the proper conduct of union elections and matters of personnel propriety. For trade unions and employers’ associations with fewer than 100,000 members, the penalty maximum will be reduced by 50%.
37.We note that during consultation, trade unions expressed general opposition to the principle of a levy and strongly objected to the changes to the role of the Certification Officer as a whole, and to the proposed financial penalties specifically.
Sea Fisheries (Amendment etc.) (No. 2) Regulations 2021(SI 2021/1429)
38.This instrument makes amendments to retained EU law relating to sea fisheries. Amongst other changes, the instrument updates discard exemptions covering the North Sea and North-Western Waters. According to the Department for Environment, Food and Rural Affairs (Defra), the discard exemptions and technical measures would have expired on 31 December 2021, but, following a scientific review by the Centre for Environment, Fisheries and Aquaculture Science, this instrument extends most exemptions in UK waters for a further three years and makes some changes for sustainability reasons, or to support compliance with the landing obligation. The Explanatory Memorandum (EM) sets out in technical detail the changes that will be made in relation to different types of fish in specific areas. On request, Defra has provided a helpful map which shows these areas as defined by the International Council for the Exploration of the Sea (ICES).14 The instrument also makes changes to certain minimum mesh size requirements, including an increase in the mesh size for retaining and landing seabass in the English Channel to reduce the catch of smaller seabass.
39.We asked the Department whether the EU had been notified of those changes made in this instrument which will affect EU vessels fishing in UK waters, as paragraph 8.2 of the EM suggests is required under the Trade and Cooperation Agreement 2020. Defra confirmed that: “A notification was sent to the EU detailing the measures within this Instrument which would affect EU vessels in UK waters on 17 November 2021. We received a reply from the EU on 15 December 2021 seeking further information on the scientific justification of changes to the mesh sizes mentioned in the SI and asking for clarification as to how these measures may impact fisheries other than those listed. We are in the process of providing a response to this and will continue to engage with the EU on fisheries management.”
Customs Importation (Miscellaneous Provisions and Amendment) (EU Exit) (Amendment) Regulations 2021 (SI 2021/1442)
40.In our 24th report15 we reported on SI 2021/131216 which was laid on 25 November 2021 and gave effect to a legal requirement for goods imported into Great Britain (GB) to be checked at an Inland Border Facility (IBF) if selected for inspection. At the time, we raised concerns about the risk of fraud and goods being tampered with on the way from the ports to the new IBFs.
41.This instrument, which was laid on 15 December 2021, amends a measure in SI 2021/1312 to make special arrangements for EU goods which enter GB from the island of Ireland. Under these arrangements EU goods which were in the Republic of Ireland immediately before they were imported into the UK or in Northern Ireland (NI) immediately before they were removed to GB, may leave the port after arriving by sea while the goods are still subject to customs controls. These goods will be excluded from restrictions that only allow goods to leave the port in GB if they are released to the free-circulation procedure or are moving under a special customs procedure or are selected for inspection at an IBF. This means that while full import controls apply for EU to GB movements from 1 January 2022, these controls do not apply to movements from the island of Ireland to GB. HM Revenue and Customs (HMRC) says that the special treatment avoids any disruption while discussions between the UK and EU on the operation of the NI Protocol are continuing. Asked why the special arrangements were not included in SI 2021/1312, HMRC told us that:
“[SI 2021/1312] fulfils the government’s commitment to introduce full import controls for goods moving from the EU to GB from 1 January 2022. At the time SI 2021/1312 was laid in Parliament, it also captured goods arriving in GB from the island of Ireland. However, as soon as it became clear that a UK-EU agreement on the operation of the Northern Ireland Protocol would not be forthcoming this year, the government decided that it would be undesirable to bring in new changes for goods moving from the island of Ireland to GB while Protocol arrangements themselves remained unsettled. The government has, therefore, taken steps to ensure that goods moving from the island of Ireland directly to [GB] continue to do so on the basis of the arrangements that apply currently, until further notice; and will not, for now, be affected by the changes being introduced on 1 January for all other inbound goods.”
Human Medicines (Amendment) (Supply to Northern Ireland) Regulations 2021 (SI 2021/1452)
42.From 1 January 2022, under the terms of the Northern Ireland Protocol, the requirements of the EU Pharmaceutical Acquis will no longer apply in Great Britain but will still have to be met in Northern Ireland. Northern Ireland, however, remains highly dependent on medicines supplied from Great Britain. This instrument amends existing legislation17 to introduce a new route for the supply of prescription-only medicines approved by the Medicines and Healthcare Products Regulatory Agency (MHRA) to Northern Ireland, where no Northern Ireland licensed alternative medicine is available. This new Northern Ireland MHRA Authorised Route (NIMAR) relies on Article 5(1) of Directive 2001/83/EC which provides an exemption from the authorisation and authenticity requirements of the Directive, where the medicinal product is required to fulfil special needs.
43.The Department of Health and Social Care states that this supports the ongoing objectives of both the EU and the UK whilst negotiations on the Northern Ireland Protocol continue.
11 The Court of Appeal Civil Division, The Open Rights Group and the3million vs The Secretary of State for the Home Department and The Secretary of State for Digital, Culture, Media and Sport, EWCA Civ 800 (2021).
13 A draft of the Occupational Pension Schemes (Collective Money Purchase Schemes) (Modifications and Consequential and Miscellaneous Amendments) Regulations 2022, was annexed to; Department for Work and Pensions, ‘Consultation outcome: Government response to the consultation on draft regulations to support Part 1 of the Pension Schemes Act 2021 and associated consequential changes’: https://www.gov.uk/government/consultations/the-occupational-pension-schemes-collective-money-purchase-schemes-regulations-2021/outcome/government-response-to-the-consultation-on-draft-regulations-to-support-part-1-of-the-pension-schemes-act-2021-and-associated-consequential-changes [accessed 11 January 2022].
14 International Council for the Exploration of the Sea, ‘ICES Ecoregions including ICES Statistical Areas’: https://www.ices.dk/data/Documents/Maps/ICES-Ecoregions-hybrid-statistical-areas.png [accessed 11 January 2022].
15 SLSC, 24th Report (Session 2019–21, HL Paper 130).
16 Customs Importation (Miscellaneous Provisions and Amendment) (EU Exit) Regulations 2021 (SI 2021/1312).
17 Human Medicines Regulations 2012 (SI 2012/1916).