Instruments of interest
Draft Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022
24.These draft Regulations propose to implement new provisions in the Building Safety Act 2022 (“the Act”) to: introduce a requirement for leaseholders to provide one-time information in relation to their qualifying lease status and their liability under the leaseholder protections provisions; set out details for landlords to calculate liability for and recover any amount that is not recoverable from leaseholders as a result of the leaseholder protections; and make provision regarding the detail of an application for a remediation order to the First-tier Tribunal.
25.The Explanatory Memorandum (EM) states that the impact in relation to leaseholder protections is largely a result of the Act itself, rather than these Regulations. The EM also says, however, that a full Impact Assessment (IA) for the Regulations “has not yet been finalised”, and that it will be published “shortly, ahead of the debates”. While the IA was published on 20 June, this was almost two weeks after the instrument was laid on 7 June. The Department for Levelling Up, Housing and Communities said that this was because of the need to “undertake final quality assurance checks” before publication.
26.We regret that once again, because of poor planning, a department has failed to comply with the requirement to provide an IA when an instrument is laid before Parliament. We have raised this issue repeatedly, most recently in our report on Session 2021–22.12 We reiterate our concern that each time an IA is not provided on time, this undermines our ability to scrutinise the legislation effectively and to provide advice to the House. Given the importance of meaningful impact information for effective scrutiny, we are taking evidence on the availability and quality of impact information more generally and will raise our concern with a Minister from the Department for Business, Energy and Industrial Strategy.
Draft Plant Health etc. (Miscellaneous Fees) (Amendment) (England) Regulations 2022
27.These draft Regulations propose changes to ensure that the fees charged for plant health checks (physical checks and identity checks) for imports into England from all third countries reflect the frequencies of plant health checks that will be established under a new risk-targeted inspection regime. The new regime will apply from July 2022 and will be introduced by a further statutory instrument to be laid at the end of June.
28.The instrument also provides for a flat rate fee on certain plants imported for planting from third countries to England, to prevent those plants benefiting from a cost advantage over plants that have been imported for finishing in Great Britain. The instrument further proposes to extend an exemption until the end of December 2023 under which businesses do not have to pay fees for applications for pre-export and export certification services for plants exported to Northern Ireland. The instrument also proposes the re-instatement of inspection fees when samples of imported consignments are taken for laboratory testing to confirm the presence of certain plant pests. The fees were wrongly removed by an earlier instrument.13
Draft United Kingdom Internal Market Act 2020 (Exclusions from Market Access Principles: Single-Use Plastics) Regulations 2022
29.These draft Regulations propose an exclusion from the two market access principles in Part 1 of the United Kingdom Internal Market Act 2020 (mutual recognition and non-discrimination) for legislation that prohibits the sale of single use plastic items, such as plates, straws, drink stirrers, stemmed cotton buds, cutlery or polystyrene food and drinks containers. This follows an agreement reached under the provisional Resources and Waste Common Framework.
30.The Department for Environment, Food and Rural Affairs (Defra) explains that the proposed exclusion recognises that while the UK Government, the Scottish Government, the Welsh Government and the Northern Ireland Executive share an ambition to tackle plastic pollution, legislation banning the sale of single-use plastic items is being introduced in the different parts of the UK at different speeds. In practice, the exclusion would mean that relevant single-use plastics cannot be sold in the parts of the UK which prohibit them, even if produced in another part of the UK which is allowed to produce them. For example, single-use plastic plates produced in or imported into other parts of the UK will not be able to be sold in Scotland, as it has been illegal to sell single-use plastic plates in Scotland since 1 June 2022.
31.Asked about potential loopholes, for example a catering business based in England using plastic cutlery at an event across the border in Scotland, Defra explained that a catering company, regardless of where in the UK it was based, supplying single-use plastic plates and cutlery at an event in Scotland would be in breach of the relevant Scottish regulations. The use of single-use plastic products by a private individual was, however, not covered. Defra also confirmed that there was no exemption in any of the existing or proposed regulations banning the supply of single-use plastic items in the UK to allow the use of such items on board aircraft.
Common Organisation of the Markets in Agricultural Products (Third Country Listing for Fruit and Vegetables) (Amendment, etc.) Regulations 2022 (SI 2022/608)
Common Organisation of the Markets in Agricultural Products (Marketing Standards and Organic Products) (Transitional Provisions) (Amendment) Regulations 2022 (SI 2022/609)
Official Controls (Extension of Transitional Periods) (Amendment) Regulations 2022 (SI 2022/621)
32.These three instruments implement the Government’s decision, announced in April, not to introduce this year further sanitary and phytosanitary (SPS) checks on imports from the EU into Great Britain (GB) which would otherwise have been introduced from 1 July.14 The Department for Environment, Food and Rural Affairs (Defra) says that the changes are being made in response to rising costs caused by the war in Ukraine and increasing energy prices. According to Defra, not introducing controls for imports from the EU on 1 July “will avoid placing additional costs on British businesses and consumers and ensure frictionless trade while the Government accelerates its transformative programme to digitise Britain’s borders, harnessing new technologies and data”.
33.SI 2022/608 recognises conformity checks of fruit and vegetables carried out by Listed Member States before they are imported into GB, thereby easing border requirements. SI 2022/609 extends the grace periods for import requirements that apply to hop products, poultrymeat with optional indications15 and organic products exported from the EU and certain other countries to GB until 31 December 2023.
34.SI 2022/621 extends certain temporary waivers to 31 December 2022, with permanent solutions to follow “in due course” and an update on the revised Border Operating Model expected in autumn 2022. The waivers that are extended include the suspension of the requirement for meat preparations imported into England from European Economic Area States to be deep frozen, so that they can continue to be imported in a chilled condition. Defra says that while this waiver only applies in relation to imports into England, Wales and Scotland have both laid mirroring legislation, so import controls will continue to be aligned across GB. SI 2022/621 also extends the exemption from official controls of personal goods in passengers’ luggage and of small consignments of products which will not to be placed on the market; and the exemption from pre-notification requirements of goods which are produced in Northern Ireland or the Republic of Ireland and imported into GB from the Republic of Ireland.
35.The EU has not reciprocated these temporary waivers, and Defra told us that “during the Trade and Cooperation Agreement negotiations, the EU refused to include provisions on an equivalence mechanism, despite our shared high standards and similar biosecurity risk-profiles”.
36.The Explanatory Memorandum to SI 2022/621 recognises “that businesses running Border Control Posts have made significant investment in recruiting staff and investing in infrastructure ahead of the anticipated introduction of checks from 1 July 2022”. Asked whether any support would be made available to businesses, Defra told us that: “We are currently working with them to assess the impact of this decision, and to address any issues or concerns they may have. This includes seeking to identify ways of preventing unnecessary additional capital cost and minimising ongoing costs. As such, we would encourage ports to continue to engage with their Single Points of Contact at the Cabinet Office in the usual way.”
Customs (Safety and Security Procedures) Regulations 2022 (SI 2022/633)
37.This instrument makes permanent changes to reduce the burden on businesses arising from Safety and Security (S&S) declaration requirements which are needed for most imports and exports. The key changes made by this instrument are as follows:
- Ensuring that goods for which there is no requirement to provide S&S information also do not need to be presented to customs for non-fiscal purposes when they are taken out of the customs territory.
- Waiving the requirement to submit a pre-departure declaration for goods that may be declared orally to a customs officer, and the requirement to submit an Entry Summary (ENS) declaration16 for goods that may be declared by conduct (by transporting goods through a green channel marked ‘nothing to declare’ at a port or airport).
- Waiving indefinitely requirements for S&S declarations on imports from the EU and other territories where such a declaration was not required before Brexit, which were due to come into force from 1 July 2022. According to HM Revenue and Customs (HMRC), this will avoid new administrative burdens on businesses and disruption at ports and to supply chains in the current challenging economic environment.
- Waiving permanently S&S requirements on three categories of low-risk goods by removing the obligation to submit: (i) ENS or pre-departure declarations for the import or export of commercial goods carried in travellers’ own small vehicles (so-called Merchandise in Baggage); (ii) pre-departure declarations for exported empty units, such as empty pallets and containers, when moved under a transport contract; and (iii) pre-departure declarations for certain outbound transhipment movements, for example where flight cargo brought into Great Britain is transferred to a vehicle to be taken directly out of Great Britain via a different port, as part of a single journey.
National Health Service (Areas of Integrated Care Boards: Appointed Day) Regulations 2022 (SI 2022/632)
38.The Health and Care Act 2022 inserted provisions into the National Health Service Act 2006 to abolish Clinical Commissioning Groups in England and replace them with integrated care boards (“ICBs”). This instrument sets 1 July 2022 as the “appointed day” for the changeover. The Department of Health and Social Care states that the establishment of ICBs as local health service commissioners will help promote the integration of, and joint working amongst, providers of primary care, secondary care and social care to meet the increasing health and social care needs of the population of England. More details of the responsibilities of ICBs and the groups that they are required to provide for and transitional arrangements are set out in other instruments considered by us this week.17
12 Secondary Legislation Scrutiny Committee, What next? The Growing Imbalance between Parliament and the Executive: End of Session Report 2021–22, (38th Report, Session 2021–22, HL 200).
13 Plant Health etc. (Fees) (England) (Amendment) Regulations 2021 (SI 2021/625).
15 According to Defra, optional indications are terms which may be used in marketing poultrymeat to describe the farming or chilling method, such as “free range”.
16 ENS declarations are made before goods arrive in a customs territory. The information from the declarations is used to form part of a risk assessment of goods before they arrive at the border by air, sea, rail and road.
17 See: Health and Care Act 2022 (Consequential and Related Amendments and Transitional Provisions) Regulations 2022 (SI 2022/634), National Health Service (Integrated Care Boards: Responsibilities) Regulations 2022 (SI 2022/635), National Health Service (Integrated Care Boards: Description of NHS Primary Medical Services) Regulations 2022 (SI 2022/636); and National Health Service (Joint Working and Delegation Arrangements) (England) Regulations 2022 (SI 2022/642).