4th Report Contents

Instruments of interest

Draft Introduction and the Import of Cultural Goods (Revocation) Regulations 2021

16.We recommended these Regulations, which propose to revoke EU Regulation 2019/880 on the introduction and import of cultural goods, should be upgraded to the affirmative procedure when they were initially laid before Parliament as a proposed negative instrument. The Department for Digital, Culture, Media and Sport (DCMS) explains that Article 3(1) of the EU Regulation prohibits the import of non-EU cultural goods which have been unlawfully removed from the country in which they were created or discovered. According to DCMS, this “general prohibition” provision applies to the EU’s customs territory and has become legally deficient after the UK’s exit from the EU.

17.The Department has chosen to revoke the EU Regulation, rather than amend the provision, because it considers that even if corrected, the general prohibition “would not add anything new to the existing obligations on businesses and importers to ensure the legal provenance of cultural goods which they bring into the [UK], or to the measures already available to the [UK]’s border authorities to prevent cultural goods being brought into the [UK] when there is information or evidence that they have been unlawfully removed from another country”. DCMS says that this is “in line with our existing commitments and obligations as a member of international organisations such as the World Customs Organisation and Interpol and in international law, including the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.” When we considered the instrument as a proposed negative, we asked DCMS for further information on the international and domestic legislation that applies in this area. We welcome that this information has been included in the Explanatory Memorandum.

18.We recommended that the instrument should be subject to the affirmative procedure because we were concerned that, despite other legal obligations, the revocation of the EU Regulation by this instrument could have the potential of weakening the legal prohibition currently provided by Article 3(1). In its De Minimis Assessment of the impact, the Department acknowledges that the revocation is “likely to be criticised by those who consider that the UK needs to do more to prevent the import into the UK of cultural goods which have been stolen, looted and/or unlawfully exported from other countries”, and that there “could be a perception that we are watering down our commitment to protect cultural property from illicit trade which we will need to robustly counter.” These are issues that the House may wish to examine further.

Draft Space Industry Regulations 2021

Draft Spaceflight Activities (Investigation of Spaceflight Accidents) Regulations 2021

Draft Space Industry (Appeals) Regulations 2021

19.The draft Space Industry Regulations 2021 will enable the licensing and regulation of spaceflight activities, spaceports and range control services within the UK or operated from a UK- registered ship. The draft Regulations are designed to enable UK launches by the early 2020s and promote growth, innovation and sustainability whilst protecting public safety, security and the UK’s international relations. The two associated instruments establish a spaceflight accident investigation body and indicate how it will conduct accident investigations, and create an appeals body, stating which decisions may be appealed and the procedures and timescales.

20.Once the Space Regulations 2021 are in force, they will function alongside the Space Industry Act 2018 and the Outer Space Act 1986 (which regulates the launch overseas of an object into space by a UK entity). They will also work alongside other legislation such as aviation and health and safety legislation (for example, the established requirements for aviation crew are being applied to space crew).

21.In line with best practice, guidance documents are published alongside these draft Regulations that give more detail about applying for a license to operate a spaceport and various other operational functions.6

Merchant Shipping (Cargo Ship) (Bilge Alarm) Regulations 2021 (SI 2021/592)

22.These Regulations implement a recommendation of a report by the Marine Accident Investigation Branch (MAIB), of July 2009, into the flooding of the grab hopper dredger Abigail H in the Port of Heysham in November 2008. Crew were asleep at the time of sinking and the recommendation stated that bilge alarms should be installed that are capable of waking crew in all accommodation spaces with sufficient time for appropriate action to be taken.

23.As we have noted earlier in this Report, the Department for Transport (DfT) has an acknowledged backlog of international marine legislation it has yet to implement. As this recommendation in relation to bilge alarms comes from a UK source, it would appear that there is also a separate backlog of domestic legislation yet to be implemented.

24.When we asked why it had taken more than 11 years to legislate on this safety issue, DfT explained that the Marine and Coastguard Agency continually reviews the priority of the regulatory changes needed: “As only a relatively small number of vessels are in scope of this proposal, it was initially viewed as disproportionate to advance this regulatory package on its own.”

25.The Explanatory Memorandum notes that there are 425 ships listed on the UK Ships Register of this type, and that there have been nine instances of flooding on such ships reported to the MAIB since 1996. We do not regard 425 as a negligible number of ships and crews and it is a matter of concern that the DfT has failed to follow up promptly the MAIB’s safety recommendations.

Regulation of Investigatory Powers (Criminal Conduct Authorisations) (Amendment) Order 2021 (SI 2021/601)

26.The use of covert human intelligence sources (CHIS) in order to prevent or secure prosecutions for serious crimes including terrorism, drugs and firearms offences, and human trafficking is well established. The recent Covert Human Intelligence Sources (Criminal Conduct) Act 2021 amended existing legislation to improve the authorisation system for occasions when CHIS may need to participate in criminality in order to be deemed credible or gain the trust of those under investigation. This instrument makes consequential changes to who can authorise a covert asset to participate in criminal conduct and to the records that need to be kept. The changes will come into effect on 10 August 2021.

Food (Amendment and Transitional Provisions) (England) Regulations 2021 (SI 2021/616)

27.Amongst other changes, this instrument removes mutual recognition clauses from regulations dealing with food products, such as bread and flour, jam, meat products, spreadable fats, milk and milk products. The Department for Environment, Food and Rural Affairs (Defra) explains that after EU Exit, the mutual recognition principle no longer applies to UK exports to the EU/European Economic Area and that it would therefore not be appropriate to unilaterally recognise EU rules after the UK has left the Single Market, and that under the World Trade Organisation’s Most Favoured Nation rules, the UK cannot allow preferential market access for imports which do not meet national rules. To give businesses time to prepare for these changes, the instrument introduces an adjustment period until 30 September 2022 for products such as bread and flour, and until 12 December 2021 for meat products, with a further instrument to be introduced later to extend this period until 30 September 2022.

28.The changes apply only to England. Defra says that without equivalent changes in Scotland, Wales and Northern Ireland (NI) the rules will not be aligned across the UK, but that new market access principles introduced in the United Kingdom Internal Market Act 2020 (UKIM), including for mutual recognition of goods, are expected to mitigate any potential impacts of divergent rules on trade within the UK. According to Defra, this will ensure that relevant goods produced in or imported into England, Scotland or Wales can continue to be sold across Great Britain (GB), as long as they meet the relevant regulations in either England, Scotland or Wales. Goods from NI may be sold in GB if they are qualifying NI goods under UKIM, but, under the NI Protocol, products originating in GB will have to comply with relevant rules in NI to be sold there.

Town and Country Planning (Control of Advertisements) (England) (Amendment) Regulations 2021 (SI 2021/617)

29.This instrument makes changes to the way flags may be displayed in England. The instrument clarifies that ‘double flagging’, that is, the flying of two flags from the same flagpole, is allowed without the need for express consent from the local planning authority. The Ministry of Housing, Communities and Local Government (MHCLG) says that this will make it easier to fly the Union Flag in conjunction with, for example, a national flag on a national saints’ day or the Pride flag, where there is only one flagpole available, as long as the Union Flag is flown in a superior position. The instrument also removes the EU flag from the list of international flags which may be flown without express consent, following the UK’s departure from the EU. MHCLG told us that in practice, however, because the Council of Europe flag and the EU flag are the same, it will still be possible to display the Council of Europe flag without consent, as the UK is a member of that organisation. Finally, the instrument adds flags with the logo of the NHS to those which may be flown in a wider range of circumstances without the need for express consent.

Agricultural Holdings (Requests for Landlord’s Consent or Variation of Terms and the Suitability Test) (England) Regulations 2021 (SI 2021/619)

30.These Regulations make changes in relation to tenancy agreements in England governed by the Agricultural Holdings Act 1986 (“the 1986 Act”). According to the Department for Environment, Food and Rural Affairs (Defra), around a third of agricultural land in England is rented, and some 19,400 farms operate with tenancy agreements under the 1986 Act.

31.The instrument establishes a new dispute resolution process where a tenant requests a landlord’s consent to an activity that is restricted by the terms of their tenancy agreement, or to a variation of the terms, so that the tenant can apply for new financial assistance schemes delivered under the Agriculture Act 2020 or meet a new statutory obligation. This is to address the fact that some old tenancy agreements include restrictive clauses that may prevent tenants from accessing future financial assistance schemes or meeting new statutory obligations. According to Defra, the instrument incentivises tenants and landlords to come to a negotiated agreement to avoid the costs of dispute resolution, while providing a legislative backstop for those tenants who cannot reach a reasonable agreement with their landlord.

32.The instrument also introduces updated suitability test criteria that the relevant Tribunal7 will have to consider when determining whether an applicant tenant is a suitable person to succeed to a tenancy agreement. According to Defra, the new criteria will apply from 1 September 2024 and will help deliver greater professionalism and productivity by including business management experience and training alongside farming experience and training.

6 DfT and UK Space Agency, ‘Spaceport and spaceflight activities: regulations and guidance’ (29 July 2020): https://www.gov.uk/government/consultations/spaceport-and-spaceflight-activities-regulations-and-guidance [accessed 4 June 2021].

7 First-tier Tribunal (Property Chamber) Agricultural Land and Drainage Chamber.

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