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On 13 October 2020, the Government laid the Ozone Depleting Substances and Fluorinated Greenhouse Gases (Amendment etc.) (EU Exit) Regulations 2020 under the draft affirmative procedure. The regulations therefore require parliamentary approval by both Houses of Parliament before they can come into force.

The House of Commons approved the regulations on 23 November 2020. The House of Lords is due to debate the instrument on 9 December 2020. This article provides information on the background to the regulations, an explanation of what they would do and an overview of what parliamentary scrutiny they have undergone in preparation for the upcoming debate.

What is the background to the regulations?

Following the UK’s decision to leave the EU, a key part of the negotiations focused on finding a solution that would see the UK leave the EU single market and customs union without creating either a hard border on the island of Ireland or a border between Northern Ireland (NI) and the rest of the UK.

The negotiating parties outlined the solution to this issue in the withdrawal agreement and its Northern Ireland protocol. These set out that the UK as a whole would leave the EU, including the single market and customs union. They also stated that while NI would remain part of the UK’s customs territory, it would continue to apply the EU’s customs code, VAT rules and single market rules for goods.

As part of this, the UK Government committed to ensuring that NI businesses would enjoy “unfettered access” to the UK internal market, despite such businesses being subject to the EU’s customs code and regulatory regime for goods. The Northern Ireland protocol (article 6 (1)) confirms this commitment:

Nothing in this protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom’s internal market.

However, there are some limited exceptions to this, one of which is when upholding international obligations. As a signatory of the UN Montreal Protocol on Substances that Deplete the Ozone Layer (the Montreal Protocol), the UK has international obligations regarding ozone depleting substances.

What would the regulations do?

The explanatory memorandum to the instrument—prepared by the Department for Environment, Food and Rural Affairs (DEFRA)—states that the purpose of the regulations is to implement the Northern Ireland protocol, specifically in relation to restricting the use of ozone depleting substances (ODS) and fluorinated greenhouse gases (F gases).

In its 32nd Report of Session 2019–21, the House of Lords Secondary Legislation Scrutiny Committee (SLSC) outlined that ODS and F gases are restricted for environmental purposes. It also set out the changes the regulations would make in order to implement the NI Protocol:

DEFRA explains that EU law restricts the use of ODS and F gases in order to protect the ozone layer and mitigate climate change. This instrument proposes changes to a previous EU Exit instrument, so that EU law in relation to ODS and F gases will apply directly only in Northern Ireland (NI) after the end of the Transition Period (TP) as required by the Protocol, whereas retained EU law will apply in Great Britain (GB).

Under these new arrangements, NI will remain within the EU market for F gases and ODS, and there will be a separate, independent market within GB. This will require controls on the movement of relevant gases, substances and equipment between NI and GB. This specific policy area is one of the international obligation exemptions to the wider unfettered market access policy which is currently being legislated for through the UK Internal Market Bill.

The Committee also asked DEFRA about the practical implications of the proposed controls, stating that the Government had not clearly explained them in its explanatory memorandum to the instrument. It reported the Government’s response, setting out the types of goods that would be affected by the new controls:

The Department told us that the control of relevant gases, substances and equipment “would apply to the movement of all F gas and ODS goods/trade” between NI and GB, including household fridges, air-conditioning products and aerosol sprays. Defra added that “at the NI-GB boundary this means that checks would be mandated for both NI-GB and GB-NI trade to regulate the licences and quota and ensure the integrity of the GB and EU systems and markets”. As NI will remain in the EU F gas and ODS systems and market, there will not be any changes to the movement of F gases and ODS between the EU and NI.

What parliamentary scrutiny has there been?

In its 32nd Report of Session 2019–21, the SLSC drew the regulations to the special attention of the House on the basis that “they are politically or legally important and give rise to issues of public policy likely to be of interest to the House”. Commenting further, the committee said:

These draft Regulations deal with a specific policy area that is one of the international obligation exemptions to the Government’s unfettered market access policy. There will be two separate systems in GB and NI that will require the introduction of controls and checks on the movement of certain gases, substances and equipment between NI and GB. This and the potential practical impact on trade between NI and GB, are issues that the House may wish to explore further.

The Joint Committee on Statutory Instruments (JCSI) also considered the regulations, focusing on the technical qualities of the instrument. It did not report the instrument to either House.

The House of Commons debated the regulations in a delegated legislation committee on 18 November 2020.

Outlining the purpose of the instrument, James Morris, Lord Commissioner of HM Treasury, argued that the regulations would allow the UK to meet its obligations under the Montreal protocol. He also described the provisions related to the movement of goods between NI and GB as ‘light-touch’:

This is not about stopping trade. The approach in the instrument has been developed to meet two key principles—first, that we continue to contribute to the UK ambition on climate change through complying with our obligations under the world-renowned Montreal protocol and, secondly, that we impose the most light-touch measures on movements of goods between Northern Ireland and Great Britain that we can, adhering to the Northern Ireland protocol, while still meeting our international obligations.

He also stated that the Scottish and Welsh devolved administrations had agreed in principle to a GB-wide ODS and F gas systems and that compliance and enforcement arrangements would remain, as under EU regulations, with the Environment Agency and the devolved administration regulators.

Speaking for the Opposition, Ruth Jones, Shadow Minister for Environment, Food and Rural Affairs, confirmed the purpose of the regulations and said that “with the potential practical impact on trade between NI and GB, these are issues that I suspect the House will consider with greater urgency in the coming weeks”. She also explained that Labour would not force a vote on the instrument because it recognised its “technical nature and, most important[ly], we are keenly focused on the integrity of the Union and on doing right by the people of Northern Ireland”.

Other grouped instruments

The House of Lords is due to debate the above regulations alongside two other statutory instruments on 9 December 2020:

The Government laid the Control of Mercury (Amendment) (EU Exit) Regulations 2020 under the draft affirmative procedure on 19 October 2020. The instrument makes “minor and technical amendments” to existing legislation to help ensure that the UK meets its obligations under the Northern Ireland protocol in respect of the movement of mercury from GB to NI. It would mean that EU legislation would continue to operate in Northern Ireland after the end of the transition period and would ensure that the UK continues to meet its obligations as a party to the Minamata Convention on Mercury. The instrument would also transfer a series of legislative functions so that they are exercisable by public authorities in GB. In addition, the regulations would introduce “new procedural requirements for the transport of elemental mercury between GB and NI”. For example, movements of mercury waste from GB to NI would be subject to a consent process in accordance with the application of the EU Waste Shipment Regulations as required by the NI Protocol. Further information on the regulations is available in its accompanying explanatory memorandum.

The Government also laid the Detergents (Amendment) (EU Exit) Regulations 2020 on 19 October 2020 under the draft affirmative procedure. The instrument would provide for certain EU legislation on detergents regulation to continue to apply in NI after the end of the transition period, as set out in the Northern Ireland protocol. The regulations would also mean that the retained EU law version of the relevant regulations would apply in GB only. In addition, the Government has said that the instrument would mean “continued access for movements of detergents or surfactants for detergents” from NI into GB. It also said that the instrument would “give effect to the unfettered access of detergents and surfactants for detergents from Northern Ireland into Great Britain”. Further information on the regulations is available in its accompanying explanatory memorandum.

Regarding parliamentary scrutiny, the SLSC and the JCSI both considered the instruments. The SLSC did not draw either instrument to the special attention of the House. The JCSI also found that neither instrument was required to be reported to both Houses.

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