The UK is currently in the process of leaving the EU’s regulatory systems as a result of the Brexit process. The UK left the EU at the end of January 2020, but continues to be subject to its rules as a member of the single market and customs union during the Brexit transition period, while a trade deal is negotiated.
Maintaining an effective UK chemicals regulatory system after Brexit is a priority for CHEM Trust. Our analysis is that the EU’s REACH system – while not perfect – is the best chemicals regulatory system in the world. We are therefore working to try to ensure that the UK stays close to the EU system, ideally remaining within it.
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The current situation
On 31st January 2020, the UK left the European Union on the terms of the Withdrawal Agreement (WA) and Political Declaration it negotiated with the EU in October 2019.
The WA provides for a transition period during which time EU law continues to apply to the UK, which is due to end on 31st December 2020. This transition can be extended once for up to two years, but the decision to do this must be made by the end of June 2020.
Negotiations on the post-Brexit UK-EU relationship started earlier this year, with the aim of getting a trade agreement in place for when the transition period ends.
In its opening position, the EU said it wishes to maintain a ‘level playing field’ with the UK on areas including environmental protections, which aims to ensure the UK could not undercut EU companies by regressing from these standards.
By contrast, the UK said it wants a Free Trade Agreement with the EU and “will not agree to any obligations for our laws to be aligned with the EU’s”.
In line with this position, the UK has stated that it will not seek to remain within the EU’s regulatory framework for chemicals – the REACH (Registration, Evaluation, Authorisation and restriction of Chemicals) Regulation – or explore associate membership of the European Chemicals Agency (ECHA). It has therefore dropped the previous interest of the last 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.
UK-EU talks restarted via videoconference on 20 April after having been postponed as a result of the coronavirus.
If the UK does not remain within REACH as part of a future UK-EU trade deal, a UK REACH administered by a new chemicals agency will come into effect once the transition period ends. The framework for this regime was set out in regulations in 2019, but at the time with the aim of providing arrangements for the regulation of chemicals in the event “the UK left the EU without a deal”.
On Thursday 30th January 2020, the UK government reintroduced its flagship Environment Bill. The Bill establishes a new 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 UK REACH regulations.
Why is Brexit a threat to UK chemical protections?
CHEM Trust is deeply concerned about plans for a separate UK REACH and standalone chemicals agency once the Brexit transition period ends.
This regime will not provide the same level of protection for human health and the environment from harmful chemicals as the UK currently enjoys within the most advanced regulation system in the world – the REACH Regulation, which is managed by ECHA.
In CHEM Trust’s view it is vital that the UK stays as close as possible to REACH. The optimum outcome would be for UK to continue to participate in the European Chemicals Agency (ECHA), as well align with its restrictions and authorisations and EU chemical-related laws. Any suggestion of divergence or even just ’non regression’ with current rules would rule out REACH membership, with negative impacts for industry.
It is particularly noteworthy that CHEM Trust shares this aspiration with industry bodies, as well as other environmental NGOs. We are all agreed that both environmental and consumer concerns and UK commercial chemical interests would be much better protected by remaining within REACH.
Why would a UK REACH regime not provide the same level of protection as the EU’s framework?
There are a number of structural and other reasons why UK 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. The UK expects to spend £13m a year on its regulator, employing 35 to 40 staff, but ECHA has over 600 staff and a budget topping €100m – and has still not been able to check every substance after more than a decade’s work.
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 for stakeholder engagement. Within ECHA, stakeholders like CHEM Trust can participate in a wide range of committees, which helps to avoid mistakes and to ensure that decisions are made more independently and transparently. This approach will not be adopted in the UK and will result in a more closed system, that could be more susceptible to industry lobbying. 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.
And 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 over the following two years. 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 – unable to do new controls on chemical use or anything more than the basics and at the same time unable to defend controls on chemicals against legal challenges from companies that do not wish to see their chemicals subject to regulatory controls. Such challenges are quite common in the EU system.
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.
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 relaxation of existing UK regulations.
A highly aligned system has commercial benefits as well, allowing for consistency and continuity, as well as frictionless trade for companies on both sides of the channel. Withdrawal of the UK from the REACH system risks triggering substantial disruption on chemicals flowing both ways adding considerable costs and burdens for business on both sides; such as the cost of the re-registrating information about substances of between £50-100k per chemical, information that is already available in the REACH database. 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, and include ensuring the UK does not fall below the EU’s standards on problem chemicals.
- CHEM Trust is quoted in this article in The Independent about the risk of the UK becoming a dumping ground for chemicals.
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.
Ultimately it will come down to the detail of the trade agreement negotiated between the UK and the EU.
Current UK legislation – The Environment Bill
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 and by Chemical Watch. Our written evidence can also be found on the Bill Committee’s webpage.
A number of amendments have been tabled by MPs; the full list (as at 20 March) is available here. CHEM Trust particularly supports the following:
- Matthew Offord MP’s New Clause 11 – makes it an objective of UK-EU trade negotiations for the UK to remain within REACH;
- Amendment 176 – which protects Articles 32-34 from easy amendment, on consumers’ right to know about the most hazardous chemicals in everyday products;
- Amendment 175 – aims to improve the consultation process for amending REACH.
The Environment Bill Committee proceedings are due to be resumed once Parliament has resolved issues around remote voting.
- CHEM Trust’s views are featured in the House of Commons Library briefing on the Bill.
- CHEM Trust’s concerns about the Bill published on 15th October is covered in a Chemical Watch story(€).
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 Hearing that 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 Tracker from 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 REACH to 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.