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Should the UK stay in the EU Chemical Agency Post-Brexit? Latest from UK Parliament, Cefic and Article 50 Taskforce

In CHEM Trust’s view the UK should aim to remain in the EU’s world-leading chemicals regulatory system REACH and the EU Chemicals Agency ECHA, whatever the final outcome of Brexit. The UK Prime Minister has spoken of ‘Associate Membership’ of ECHA, but it’s not yet clear what this means.

The UK Parliament has just finished a complex set of votes on a range of Brexit-related issues, while the EU chemical industry trade association has also called for the UK to remain close to REACH. However, the Article 50 Taskforce has dismissed the idea of the UK being part of REACH while outside the EU single market….

The UK Parliament votes

During the last few weeks there have been a number of important votes in both the House of Lords and House of Commons in the UK (the two chambers of decision making in the UK Parliament). They have been discussing the EU Withdrawal Bill, which should not be confused with the Withdrawal Agreement which is currently being negotiated between the UK and EU27.

The Withdrawal Bill has been summarised as a “A Bill to repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU“. During discussions in the House of Lords the Government bill was amended 15 times, but all of these amendments were then reversed or partially reversed in the House of Commons, and the Bill has now been approved. One of these defeated amendments was an attempt to keep the UK in the European Economic Area (like Norway) post-Brexit.

However, importantly for the issue of REACH and ECHA, the government did agree on an amendment to allow the UK to continue its co-operation with EU agencies. So, does this change anything?

The UK’s view on staying in the EU chemicals agency ECHA

In Theresa May’s Mansion House speech on March 2nd, she declared that the Government would be seeking “associate membership” of ECHA and other European agencies (medicine and aviation) as part of the EU withdrawal negotiations. May accepted that “this would mean abiding by the rules of those agencies and making an appropriate financial contribution”.

Although May noted that “associate membership could permit UK firms to resolve certain challenges related to the agencies through UK courts rather than the ECJ”, on March 28th Parliamentary Under-Secretary for the Department for Exiting the European Union Suella Braverman confirmed that the UK’s intention would be to respect the remit of the European Court of Justice (ECJ) in the three sectors referenced by May.

The amendment on Agencies seems to strengthen the push for the UK to stay in ECHA. However, as we have previously explored, it is very likely that the EU will set the following conditions for the UK to participate in REACH;

  • The UK would need to fully follow all EU decisions on chemicals in REACH, without a vote on these decisions, but with the opportunity to be involved in the discussions (as Norway is).
  • The UK would have to continue to implement and follow a number of other chemical-related EU laws, such as those on factory pollution and worker health.
  • The UK would need to accept the supervision of the ECJ or something very similar, like the European Free Trade Area (Efta) court, which EEA countries like Norway use.

EU Chemical industry Cefic supports UK staying in REACH

The EU’s main chemical industry trade body Cefic last week published a position regarding EU-UK chemicals regulatory co-operation after Brexit. Cefic recommend a bilateral agreement between the EU-27 and the UK that would enable continued participation of UK authorities and UK businesses in the implementation of the regulations including REACH.

Cefic’s position paper emphasises the significant costs, disruption and fragmentation which would occur if the  UK established a separate regulatory regime.

A hard line from the Article 50 Taskforce

Cefic have also published a Q&A with the Article 50 Taskforce, who lead negotiations for the EU27. In this discussion the Taskforce take a strong line against the UK participating in EU agencies like ECHA:

“The European Agencies, including ECHA, are part and parcel of the Single Market and they fulfill important regulatory tasks which are intrinsically linked with the implementation of EU legislation. The UK’s decision to leave the Single Market automatically implies leaving the European Agencies; this is a consequence of a UK sovereign decision.”

One major problem is that there is a lack of clarity on whether the UK still has a ‘red line’ against ECJ jurisdiction – indeed it is still not clear whether the UK will definitely leave the single market. But beyond this it is very clear that the EU27 are resistant to the idea of the UK ‘cherry picking’ parts of the EU single market.

Why letting the UK ‘cherry pick’ REACH is in the EU27’s interest

In his presentation at a recent Chemical Watch conference on Brexit, CHEM Trust Executive Director Michael Warhurst pointed out that there are clear benefits to the EU27 to  allowing the UK to ‘cherry pick’ REACH (as long as the UK accepts any preconditions):

Kate Young, CHEM Trust’s Brexit Campaigner, said

“CHEM Trust welcomes Cefic’s call for continued UK participation in the EU regulation REACH in a future Free Trade Agreement with the EU. We urge the UK Government to ensure it will meet any likely conditions in order for the EU27 to accept continued participation in REACH.

Environmental NGOs and the chemical industry are in agreement that post-Brexit Britain should remain part of REACH, demonstrating the numerous benefits of the EU’s world-leading chemical safety laws.

We also call on the EU27 to accept the strong argument that allowing the UK to participate in REACH is also in their interest.”