EXPLANATORY MEMORANDUM TO THE CLIMATE AND ENERGY (REVOCATION) (EU EXIT) REGULATIONS 2021
2021 No. [XXXX]
1. Introduction
1.1 This explanatory memorandum has been prepared by the Department for Business,
Energy and Industrial Strategy (BEIS), and is laid before Parliament by Act.
1.2 This memorandum contains information for the Sifting Committees.
2. Purpose of the instrument
2.1 The purpose of this instrument is to revoke retained direct EU legislation that has no
practical application in relation to the United Kingdom. This instrument covers
climate and energy related legislation.
Explanations
What did any relevant EU law do before exit day?
2.2 Council Decision 2015/1339 sets out the conclusion on behalf of the European Union,
of the Doha Amendment to the Kyoto Protocol. The Kyoto Protocol is a protocol
to the United Nations Framework Convention on Climate Change, which is an
international climate change treaty. The Kyoto Protocol sets out carbon emission
reduction obligations for certain countries, including the EU Member States, Iceland
and the UK.
2.3 The EU Effort Sharing Decision (“ESD”) (406/2009), The EU Land Use Land Use
Change and Forestry (“LULUCF”) Decision (529/2013), The Mechanism for
Monitoring and Reporting Regulation (“MMR”) (525/2013) and their associated
implementing regulations/decisions (666/2014/EU, 749/2014/EU, 2013/162/EU,
2016/2132/EU, 2017/1471/EU, 2017/2377/EU, 2018/1855/EU, 2019/2005/EU,
2020/1834/EU) set a framework for Member States to meet the EU wide 2020
emissions reduction commitment under the Kyoto Protocol. This includes setting
individual emissions targets for Member States and greenhouse gas accounting and
reporting obligations.
2.4 The Effort Sharing Regulation (2018/842) and the LULUCF Regulation (2018/841)
are part of the EU wide climate and energy framework created in part to meet the EU
wide 2021-2030 emissions reduction commitment under the Paris Agreement. The
regulations set individual emissions reduction targets for Member States and
greenhouse gas accounting and reporting obligations.
2.5 The Governance Regulation (2018/1999) and its associated implementing regulation
((EU) 2020/1294) are also part of the EU wide 2021-2030 climate and energy
framework, setting greenhouse gas and energy reporting obligations. It also requires
Member States to determine their own contributions to the EU wide renewable and
energy efficiency targets.
2.6 Decision (EU) 2017/684 is an information exchange mechanism which helps ensure
energy agreements Member States negotiate with third countries or international
organisations are compatible with EU law. It includes a requirement that Member States keep the EU Commission informed about agreements they are negotiating and
to consider the EU Commission’s views on a draft agreement’s compatibility with EU
law before entering into it.
Why isit being changed?
2.7 The instrument will revoke the instruments of retained direct EU legislation identified
above, relating to the EU energy and climate framework, because they are only
relevant to EU Member States and therefore no longer have any practical application
in relation to the UK.
2.8 Most of the retained direct EU legislation referred to in section 2.2 and 2.3 cover pre2020 commitments only. A few articles relating to finalising pre-2020 reporting and
accounting obligations in the MMR and ESD apply beyond 2020, and the UK agreed
in the Withdrawal Agreement with the EU that those provisions would continue to
apply in relation to 2019/20 emissions. Revoking the MMR and ESD on our domestic
statute book does not impact on the UK’s commitment under the Withdrawal
Agreement to comply with these provisions, as these provisions continue to take effect
in EU and international law.
2.9 The retained direct EU legislation referred to in section 2.4 and 2.5 have no practical
application on the UK as they relate to the emissions reduction targets, reporting
obligations and energy obligations that apply to Member States. As the UK is no
longer a Member State it is not necessary or appropriate for the UK to participate in an
EU framework or continue reporting to the Commission (see section 7.1 for more
detail). In any case, the UK has its own domestic climate change legal framework in
the form of the Climate Change Act (2008).
2.10 As the UK is no longer a Member State it is not necessary or appropriate to refer
international energy agreements it negotiates to the EU Commission for review under
the retained direct EU legislation referred to in section 2.6.
What will it now do?
2.11 The relevant retained direct EU legislation will be revoked. The UK will continue to
meet its domestic and international climate obligations.
3. Matters of special interest to Parliament
Matters of special interest to the Sifting Committees
3.1 As the instrument is subject to negative resolution procedure under the European
Union (Withdrawal) Act 2018, it is required to go before the Sifting Committees.
Matters relevant to Standing Orders Nos. 83P and 83T of the Standing Orders of the House
of Commons relating to Public Business (English Votes for English Laws)
3.2 As the instrument is subject to negative resolution procedure there are no matters
relevant to Standing Orders Nos. 83P and 83T of the Standing Orders of the House of
Commons relating to Public Business at this stage.
4. Extent and Territorial Application
4.1 The territorial extent of this instrument is the whole of the United Kingdom.
4.2 The territorial application of this instrument is the United Kingdom.
5. European Convention on Human Rights
5.1 As the instrument is subject to negative resolution procedure and does not amend
primary legislation, no statement is required.
6. Legislative Context
6.1 This instrument revokes EU climate and energy legislation retained under section 3(1)
of the European Union (Withdrawal) Act 2018, using the power set out in section 8(1)
of that Act. This retained direct EU legislation places obligations on Member States,
setting a legislative framework for distributing effort towards an EU-wide target
between Member States, as well as imposing reporting obligations between Member
States and the EU Commission. As the UK is no longer a Member State the legislation
has no practical application in the UK, and as such is ‘deficient’ within the meaning of
section 8(2)(a) of the Act.
6.2 As the UK is no longer a Member State, Decision (EU) 2017/684 also has no practical
application, so is also ‘deficient’ under section 8(2)(a) of the Act. It is not necessary or
appropriate to refer international energy agreements the UK negotiates to the EU
Commission for review.
7. Policy background
What is being done and why?
7.1 EU climate and energy legislation imposes EU-wide emission reduction targets on
Member States and contains obligations for Member States to report greenhouse gas
emissions and energy obligations to the EU. These pieces of EU legislation serve the
purpose of facilitating cooperation between Member States to meet overall EU-wide
emissions reduction and energy obligations. As such the individual targets are only
part of the legislation; the majority of the legislation is dedicated to reporting
requirements and setting out how Member States can make use of intra-EU
flexibilities to meet their individual and EU-level targets.
7.2 At the end of the Transition Period, the obligations contained in the retained direct EU
legislation ceased to have any practical application in relation to the UK, because – to
the extent that they continue to apply beyond 2020 – they are applicable to, and
impose obligation on, Member States only. As the UK is no longer a Member State it
is not necessary or appropriate for the UK to participate in an EU framework or
continue reporting to the EU Commission, except to the extent it has specifically
agreed to do so as, for example, with the 2019/2020 accounting and reporting
obligations under the ESD/MMR. In revoking this legislation the UK is not reducing
or weakening its climate commitments, as it has its own ambitious framework of
climate protection:
(i) the UK has robust domestic legislation on greenhouse gas emissions
reductions (the Climate Change Act 2008);
(ii) the UK will remain a Party in its own right to the UNFCCC, the Kyoto
Protocol and the Paris Agreement, and will continue to be bound by
international greenhouse gas emissions reduction and reporting commitments.
7.3 Under the Withdrawal Agreement with the EU, the UK agreed that specific reporting
and accounting provisions of the MMR and ESD will continue to apply to the UK in
relation to greenhouse gas emissions in 2019 and 2020. Revoking the MMR and ESD
from the UK’s domestic statute book does not impact on the UK’s commitment under
the Withdrawal Agreement to comply with these provisions, which continues to take
effect in EU and international law.
7.4 The instrument also revokes retained direct EU legislation related to
intergovernmental energy agreements between Member States and third countries or
international organisations (Decision (EU) 2017/684). This legislation requires the
Member State negotiating such an agreement to notify the EU Commission and to
consider the EU Commission’s views on a draft agreement’s compatibility with EU
law before entering into it. This is no longer appropriate now the UK is not a Member
State.
8. European Union (Withdrawal) Act/Withdrawal of the United Kingdom from the
European Union
8.1 This instrument is being made using the power in section 8(1) of the European Union
(Withdrawal) Act 2018 in order to address failures of retained EU law to operate
effectively or other deficiencies arising from the withdrawal of the United Kingdom
from the European Union. In accordance with the requirements of that Act the
Minister has made the relevant statements as detailed in Part 2 of the Annex to this
Explanatory Memorandum.
9. Consolidation
9.1 There are no plans for consolidation.
10. Consultation outcome
10.1 No public consultation has been undertaken for this instrument, as the revocation of
this retained direct EU legislation will not change existing UK policy or affect
businesses.
11. Guidance
11.1 Guidance is not required for this instrument.
