Seventeenth Report Contents

Instruments of interest

Draft Eggs (England) Regulations 2021

41.These draft Regulations propose changes to retained EU law23 on marketing standards for eggs.24 The changes would allow checks of marketing standards of imported Class A eggs25 to continue to take place at the “point of destination”, such as packing centres and wholesale premises, where random and risk-based checks are currently undertaken by inspectors of the Animal and Plant Health Agency before eggs are released for retail sale or mass catering. Without the changes, the checks would have to be carried out at the border before customs clearance. The Department for Environment, Food and Rural Affairs (Defra) explains that because inspectors and enforcement procedures already exist at packing centres and wholesale premises, it is more efficient and practical to conduct the checks at these locations.

42.The checks on imported Class A eggs from the EU will start on 1 July 2022, once the current grace period for checks on EU imports has expired. While the draft Regulations only deal with England, Defra told us that the Welsh and Scottish Governments are taking forward equivalent legislation to ensure a consistent approach across Great Britain (GB). The Explanatory Memorandum refers to separate arrangements for Northern Ireland (NI), where EU law continues to apply under the NI Protocol. We asked Defra about the impact of these different arrangements on trade between GB and NI, and about the concerns that industry raised about this instrument during consultation, and how these have been addressed. We are publishing the Department’s response at Appendix 4.

Motor Vehicles (Driving Licences) (Amendment) (No. 3) Regulations 2021 (SI 2021/ 1154)

Draft Motor Vehicles (Driving Licences) (Amendment) (No. 4) Regulations 2021

43.These instruments form part of a suite of three similarly titled instruments intended to come into force on 15 November 2021 with the objective of increasing test capacity and the number of HGV drivers.26

44.The No 3 Regulations, SI 2021/1154, allow the large vehicle off-road manoeuvres to be conducted as a separate part of the test at a different location, prior to the on-road test being taken at a Driver and Vehicle Standards Agency (DVSA) test centre. It also allows for it to be conducted by third-party examiners that meet the DVSA requirements.

45.The No 4 Regulations remove the requirement for a person to first pass a driving test for “rigid” vehicles in category C (Heavy Goods Vehicles - HGVs) or category D (buses) before they are able to apply for the appropriate trailer test (category C + E or D + E respectively.) The Department for Transport (DfT) states that allowing both tests to be taken at the same time will free up driving examiner time equivalent to 900 additional HGV tests per month and reduce the time it takes for a driver to become qualified to drive the largest HGVs. DfT emphasises that the requirements of the HGV and trailer combination licence remain the same and that a driver must demonstrate the same required skills and knowledge to pass.

46.As the No 4 Regulations amend retained EU legislation, they would normally be required to be published first for comment for 28 days in accordance with the requirements of Schedule 8 to the European Union (Withdrawal) Act 2018. However, the Minister, Baroness Vere of Norbiton, has made an urgency statement that, in view of the current shortage of HGV drivers, these arrangements need to take effect more quickly to relieve supply chain pressure. The instrument therefore is subject simply to the affirmative procedure.

Competition Act 1998 (Carbon Dioxide) (Public Policy Exclusion) Order 2021 (SI 2021/1169)

47.This Order excludes temporarily certain agreements and practices between producers and distributors of commercial CO2 from the application of the prohibition contained in Chapter I of Part I of the Competition Act 199827 to support a stable supply of commercial CO2 in the UK. The Department for Business, Energy and Industrial Strategy (BEIS) explains that the UK’s commercial CO2 supply chain has been disrupted by rising natural gas prices, leading to CF Fertilisers UK Limited (“CF Fertilisers”), the UK’s main supplier of commercial CO2, stopping production. As a CO2 shortage would have a significant impact across industry, including in relation to animal welfare, food processing, the nuclear industry and healthcare, the Government agreed in September to provide short term financial support to CF Fertilisers to ensure the continued production of CO2 in the UK.

48.BEIS explains that as part of developing a solution to the disruption, it was necessary for CF Fertilisers and distributors to agree purchasing arrangements that would ensure that production of commercial CO2 remained financially viable. This required CF Fertilisers and distributors to share information about costs, prices, expected purchase volumes, customers and contract term lengths. This Order disapplies competition law retrospectively in relation to these discussions during the period of 30 September to 12 October 2021. The Order also provides that any purchase contracts arising out of the discussions must expire at the end of 31 January 2022. The Department says that this will allow time for the market to stabilise and enable the negotiation of longer-term industry-led and marked-based supply arrangements on normal commercial terms. As a contingency measure, the Order also exempts from competition law any further co-ordination and information sharing regarding stock shortages between CF Fertilisers and distributors for the period from 30 September until the coming into force of the Order (15 November) to ensure effective allocation of CO2 supplies should there be further disruption. Any agreements between CF Fertilisers and distributors under this Order must be notified to the Secretary of State.

24 Egg marketing standards cover aspects such as quality, weight, marking, labelling, packaging, stamping and farming methods (organic, free range, barn or caged) which aim to safeguard quality and consumer confidence.

25 Class A eggs are the highest grade and are sold as shell eggs. Class B eggs are broken out and pasteurised, while industrial eggs are for non-food use only, such as use in shampoo or soap. See: Egg codes and quality.

26 See also Draft Motor Vehicles (Driving Licences) (Amendment) (No. 2) Regulations 2021 drawn to the special attention of the House in our 15th Report (Session 2021–22, HL Paper 79).

27 Section 2 of the Competition Act 1998 prohibits agreements, decisions or concerted practices which may affect trade within the UK and which prevent, restrict or distort competition within the UK (“Chapter I prohibition”). The Secretary of State has the power, however, to exclude certain agreements from the application of the Chapter I prohibition where there are exceptional and compelling reasons of public policy to do so. Any exclusions may apply only in specified circumstances and may be retrospective.

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