Just before Christmas 2020, the European Union and United Kingdom finalised a new Trade and Cooperation Agreement. Read our analysis of the agreement in ‘The Brexit trade deal: what it means for the UK’s protection from hazardous chemicals’.
Up until the end of 2020, the UK was part of the world’s most advanced system for regulating hazardous chemicals, the EU REACH (Registration, Evaluation, Authorisation and restriction of Chemicals) Regulation. This is managed by the European Chemicals Agency (ECHA), which is based in Helsinki.
Since the UK left the EU single market on 31st December 2020, this protection has slipped away, to be replaced by an attempted copy, GB REACH or ‘BREACH’, which is in our analysis substantially weaker than EU REACH. Northern Ireland remains within EU REACH, under the provisions of the Withdrawal Agreement.
Maintaining an effective UK chemicals regulatory system is a priority for CHEM Trust. Our view is that the UK should align with EU controls on hazardous chemicals and related laws, to ensure that UK consumers and the environment can continue to benefit from the EU’s relatively high protections as they continue to improve. Analysis by CHEM Trust also suggests this would also provide a constructive basis on which to negotiate a close UK-EU partnership on chemicals that would provide access to ECHA’s chemical safety database. We are urging both sides to explore UK associate membership of or participation in the European Chemicals Agency in ongoing post-Brexit trade negotiations.
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The current situation
Last year, at the start of EU-UK trade negotiations, the UK stated it would not seek to remain within EU REACH or explore associate membership of the European Chemicals Agency (ECHA). It therefore dropped the previous interest of the Theresa May Government in aligning with EU rules on chemicals, as well as some other key areas of national importance, as part of a mixed-free trade agreement. This decision was based on the desire for the UK to have control of its own chemical regulation and not remain within the jurisdiction of the European Court of Justice (ECJ).
The GB system has been in operation since 1st January 2021 and the framework for it was set out via four REACH EU Exit Statutory Instruments, that made their passage through Parliament in 2019 and 2020. The Government transposed the EU REACH regulation into UK law and has based the new GB system on its aims and principles
It will, however, be impossible to effectively replicate the EU system on a national basis. The future regime will lack its checks and balances and the transposition of EU law has provided ministers with much greater flexibility to amend and repeal regulations and standards.
In our view, the GB regime will be considerably weaker than and less protective of human health and the environment than the system it is replacing, with greater potential for deregulation. Although any regression that might secure a competitive advantage for the UK could affect its future trade with the EU, under the non-regression and rebalancing provisions of the EU-UK Trade and Cooperation Agreement.
Why will the GB REACH regime not provide the same level of protection as the EU’s framework?
There are a number of structural and other reasons why GB REACH will not be able to meaningfully replicate EU REACH.
Firstly, CHEM Trust has serious concerns about the capacity, resources available to, experience and expertise of personnel at Health and Safety Executive to replicate the functions of the European Chemicals Agency in such a complex field. ECHA has an annual budget of approximately €100million for REACH and 400 staff. There are over 22,900 substances registered within it. The HSE is expected to regulate a similar number of chemicals, but with a fraction of the budget and workforce.
Secondly, REACH is not just a list of rules, but a governance mechanism that would be difficult to replicate on a national basis. It offers value for money through the sharing of resources, expertise and workload across EU countries. Duplication of work is avoided through the co-ordination of those countries’ activities on risk assessment and data sharing avoids unnecessary animal testing.
On the basis of current plans, the UK regime will lack institutional mechanisms to ensure meaningful stakeholder engagement and transparent decision-making. This will result in a more closed and less transparent system than ECHA’s, that is likely to be more susceptible to industry lobbying. In comparison, decisions under EU REACH are made by committees of experts from EU Member States (such as the Committees for Risk Assessment and the Committee for Socio-Economic Analysis), rather than by staff in ECHA. The committee structure helps to ensure its work can be challenged and the best information is available for these discussions, helping to avoid mistakes and to ensure that decisions are made more independently and transparently. National regulation is also more limited when economic interests are at play. It has been found that EU countries generally propose chemicals for ECHA’s Candidate List as a “Substance of Very High Concern” (SVHC), when that chemical does not play an important economic role within its own borders.
Thirdly, the UK’s database of chemicals safety and use information will essentially be empty on day one of the new system. Registered chemicals will then be listed, with companies required to provide safety data staggered over a period of 6 years from 28 October 2021. The loss of access to the EU’s chemical safety database and the lack of information in the UK’s database would render the UK system hollow; it will be difficult for the regulator to implement legally enforceable controls on chemicals.
If the UK fails to match action in Europe on product chemical restrictions, there is a very real risk it could encourage unscrupulous manufacturers to dump products on the UK market that fail to meet EU regulations.
- CHEM Trust is quoted in this article in The Independent about the risk of the UK becoming a dumping ground for chemicals.
Furthermore, the US chemicals regulatory system is considerably weaker than the EU’s, and closer harmonisation between the US and UK as part of a future trade deal could result in the weakening of UK chemical protection standards and the import of products containing problem chemicals banned in the EU.
A highly aligned system has commercial benefits as well. The CBI has said that the chemicals sector is among the industries with the least to gain from any deviation from EU rules, as the sector is so tightly regulated and the is UK dependent on the EU as a market. In addition, UK industry estimates it will cost £1 billion to comply with the UK’s parallel regime, which includes the cost of re-submitting full registration dossiers already available under EU REACH. These costs could make it uneconomic to compete with EU-located production, resulting in a loss of jobs and exports from the UK.
There are also real benefits to the EU27 of keeping the UK close within part of REACH which are set out in this CHEM Trust briefing.
How could the UK remain in – or close to – REACH?
CHEM Trust’s analysis is that there are a range of options for the UK to remain within or close to REACH – see our briefing, published in April 2020, for details.
Current UK legislation – The Environment Bill
On Thursday 30th January 2020, the UK government reintroduced its flagship Environment Bill. The Bill establishes a domestic framework for environmental governance post-Brexit and makes provisions to amend the UK’s post-Brexit chemicals regulations. These provisions give Ministers sweeping powers to amend the GB REACH regulations.
On 12th March 2020, our Executive Director, Dr Michael Warhurst, gave oral evidence to the Bill Committee, alongside Nishma Patel, Policy Director at the Chemical Industries Association and Bud Hudspith, Health & Safety at UNITE the union. The issues raised in this session are covered in our blog. Our written evidence can also be found on the Bill Committee’s webpage.
A number of amendments were tabled to the provisions on REACH in the Bill in the Commons. CHEM Trust particularly supported New Clause 11 that made it an objective of trade negotiations for the UK to remain within REACH and Amendment 176, which protected Articles 32-34 from easy amendment, on consumers’ right to know about the most hazardous chemicals in everyday products. These were fully debated in Committee, but were not passed. The Bill continues its journey through Parliament and is expected to get royal assent later this year.
- CHEM Trust’s briefing for Parliamentarians on the REACH EU Exit SI 2020. This Statutory Instrument was referred by the Secondary Legislation Scrutiny Committee to the special attention of Parliament in its 37th Report. The Committee published our analysis and Defra’s response to it here.
- CHEM Trust gave oral evidence to the Lords EU Environment Sub-Committee evidence session on chemicals regulation post-Brexit in October 2020.
- A joint letter from CHEM Trust and other environmental and public health NGOs to the Environment Secretary of 7th October 2020, which was covered by Chemical Watch.
- Letter from CHEM Trust to the Chair of the Environmental Audit Committee about chemicals regulation of 10th June 2020 can be downloaded from its webpage.
- CHEM Trust’s written evidence to the Trade Bill Committee about the risks from a UK-US trade deal on chemical protection standards and a guest blog for Global Justice Now on the risks for cosmetics. Our analysis of the US-Mexico-Canada Agreement (USMCA) was submitted to the Department for International Trade in November 2020 and our written evidence on UK-US trade negotiations was submitted to the EU International Agreements Sub-Committee inquiry in October 2020.
- CHEM Trust’s views are featured in the House of Commons Library briefing on the Bill.
Our threat of legal action against the UK Government
- Following a threat of legal action by CHEM Trust, the UK Government stated that they will not ‘undermine public participation and stakeholder involvement‘ in post-Brexit chemicals plans. We also challenged government plans to remove key protections against endocrine disrupting chemicals in its pesticides plans, which the Government has since U-turned on.
- This legal case featured in an intervention to the Supreme Court Hearingthat found the prorogation of parliament by government to be unlawful.
Other news and activities
- We collaborated with the EU Chemical Industry trade association CEFIC, the EEB and the UK Chemical Industry Association to highlight the benefits of the UK staying in REACH. We sent a joint letter(published in the Financial Times), and ran a video advert in Brussels Schuman metro station (next to the EU Commission and Council) and adverts in Politico Europe.
- You can read all of our blogs related to chemicals and Brexit here.
- Free newsletter: CHEM Trust are also sponsoring a free “Brexit Watch’ weekly newsletter, see it here.
Our earlier contributions include:
- Quarterly analysis of the risks posed by Brexit for UK chemicals regulation in the Greener UK Brexit Risk Trackerfrom June 2016 to end 2019.
- A comment piece, “Outside of REACH the UK risks regulatory divergence“, by Kate Young in ChemicalWatch, August 2019.
- We presented the benefits to the EU27 of the UK remaining part of REACHto the EU’s Economic and Social Committee in January 2018.
- We sent a letter co-signed by the European Environmental Bureau (EEB) to EU Commissioners regarding the negotiations on the UK’s post-Brexit relationship with the EU chemicals regulation REACH.
- CHEM Trust Executive Director Dr Michael Warhurst gave a keynote presentation, “Can the UK stay in REACH?“, at a Chemical Watch conference on “Post Brexit options for UK chemicals law” in April 2018. Chemical Watch have reported onthe conference, including this talk.
- Working with SumOfUs to find out what the public think about Brexit & chemicals policy – see our blog “What is the will of the UK people on hazardous chemicals?“.
- Giving written and oral evidenceto the Environmental Audit Committee of the UK House of Commons inquiry on“The Future of Chemicals Regulation after the EU Referendum” in the first half of 2017. See also our blog commenting on the release of their report.
You can read all our talks and comment pieces here.