At the end of January 2020 the UK left the EU and entered a ‘transition’ period where EU laws continue to apply in the UK, while negotiations are underway to agree a long-term trade agreement. CHEM Trust’s analysis is that the best outcome for chemicals regulation in both the UK and EU is for the UK to remain close to the EU’s REACH chemicals regulatory system and the EU Chemical Agency ECHA..
We have today published a briefing looking at the options available for the UK to have a close relationship with ECHA. Michael Warhurst, Executive Director of CHEM Trust, will present these findings in a talk entitled “Brexit and chemicals: options and action“ at today’s Chemical Watch conference on ‘Post-Brexit options for UK chemicals law’.
At the end of January, the UK left the European Union. It is now in a transition period during which EU laws remain in force. The transition is due to last until the 31st December 2020, though this transition can be extended.
Negotiations on the future UK-EU relationship began in March but were subsequently abandoned as a result of the coronavirus crisis. Last week a new timetable for talks was agreed, and they have started again this week by videoconference.
In its opening position, the EU said it wishes to maintain a ‘level playing field’ with the UK on areas including environmental protections, which aim to ensure the UK could not undercut EU companies by regressing from these standards.
In contrast, the UK said it wants a Free Trade Agreement with the EU along the lines of the one the EU concluded with Canada and “will not agree to any obligations for our laws to be aligned with the EU’s”. On chemicals, the UK states that an annex “could provide for cooperation between UK and EU authorities” and the UK and EU could “agree data and information sharing mechanisms, in line with (…) existing third-country mechanisms”. It should “also include a commitment to develop a memorandum of understanding (MOU) (…) similar to the MOUs the European Chemicals Agency has agreed with Australia and Canada”.
CHEM Trust and stakeholders from across chemical and manufacturing industry have argued that a much closer model of cooperation is needed than these agreements.
Models for a close partnership
We consider that the best outcome would be a partnership that ensures that the UK remains closely aligned with the EU’s world-leading REACH (Registration, Evaluation, Authorisation and restriction of Chemicals) Regulation, including active participation in the work of the European Chemicals Agency ECHA.
CHEM Trust has conducted research on existing cooperation agreements ECHA has with national chemical agencies and the decisions and the criteria used by its Management Board (MB) in granting requests for cooperation.
Our research has shown that there are existing precedents for, and legal mechanisms by which, closer cooperation can be invoked, specifically Article 106 REACH (which enables participation in the work of ECHA) and Article 120 (which gives access to its database).
For example, Croatia was permitted to take part in two of ECHA”s committees (RAC & SEAC) before accession to the EU, while Switzerland is allowed to participate in ECHA’s work on biocides.
Dr Warhurst said:
“Our investigation has found there are a number of existing models for EU-UK cooperation on chemicals post-Brexit which are closer and more beneficial than the UK has its sights on and we call on the UK and EU to actively explore these options.
“A much closer partnership would safeguard the high environmental, safety and health standards the UK currently enjoys within REACH, avoid considerable market disruption on both sides of the channel and secure a level playing field for EU companies”.
Dr Warhurst recently gave evidence to a House of Commons Committee and described the currently-proposed UK REACH system as “hollow“.
He also called for an extension to the transition period:
“It is vital the UK Government requests an extension to the Brexit transition period, to ensure our attention is not diverted from addressing the current crisis and to get our future relationship with the EU right.
“If the UK presses ahead with the transition period terminating at the end of this year, it is much more likely the UK will exit with no trade deal. This would mean that Northern Ireland will remain in REACH, while the rest of the country moves into the new UK-REACH regime. This will not be able to replicate the system it is replacing in any meaningful way; in particular, without access to ECHA’s database, the UK will have a much weaker, incapacitated regulator.”
CHEM Trust is now further developing understanding of, and support for, these options at both UK and EU levels, including working with other stakeholders.
What happened at the conference (update on 22nd April)
At yesterday’s Chemical Watch conference on ‘Post-Brexit options for UK chemicals law’ there was extensive discussion about the costs and burdens of complying with a completely separate UK regulatory regime. For example, participants asked about issues from the cost of re-registering chemicals, to the timelines that the UK had proposed for delivering this data.
Simon Johnson, from the EU Exit Team: Chemicals & Pesticides at the Department for Environment, Food & Rural Affairs (Defra) was the only representative of the UK Government and his general answer to these questions was that as the aim of UK-REACH is to retain the fundamental approach of EU-REACH, the UK regime has been ‘lifted and shifted’ from it; from the cost of registering substances, to specifications about the technical information that companies will need to provide.
CHEM Trust’s Executive Director, Dr Michael Warhurst summarised the potential options for the UK as: (1) replicating the EU system in an expensive and ineffective way; (2) relaxing future UK rules to make them less burdensome on the industry, which would leave consumers and the environment considerably less protected from problem chemicals than they are currently; or (3) negotiate a close partnership agreement with EU on chemicals that would maintain the high levels of protection we currently enjoy and would avoid the costs and disruption of a second system. He said that option (3) was the only one that made any sense.
Simon Johnson also said the Government sees the opportunity for more ‘industry-friendly’ rules. However, rather than calling for a deregulated UK regime, all the speakers – from the Chemical Industries Association to downstream users of chemicals represented by the European Automobile Manufacturers’ Association – were clear that there was a need for the closest possible alignment with the EU, and for data sharing with the EU.
There were also questions about how Northern Ireland will remain within REACH, with the rest of the United Kingdom outside of it, for example how it will link through to ECHA, for which details are still to be fully revealed.
Silvia Segna of the CIA said that Defra had still provided no clarification on how stakeholders will be involved in the decision-making process, and CHEM Trust has highlighted this issue in our previous work.