The UK voted to leave the EU in 2016, and through Brexit the UK government has said that it wants to achieve some level of regulatory autonomy outside EU laws and institutions. Regarding chemicals policy, its preferred outcome is to retain ‘associate membership’ of the EU chemicals agency, Echa. We believe this is feasible, if the UK negotiates a free trade agreement with the EU that includes REACH and signs up to a number of important pre-conditions.
Under the draft withdrawal agreement, agreed between the UK and EU, the UK would leave the EU and enter a transition period, under which nothing changes, but negotiations can then begin on the future UK-EU relationship. However, the House of Commons has rejected this agreement three times.
The new UK prime minister Boris Johnson has stated that if it is not changed, then the UK will plan for a no-deal exit from the EU on 31 October. A no-deal would mean a cliff edge exit whereby overnight the UK leaves the EU without any agreement on legal and other issues concerning Brexit. As part of preparations for a no-deal Brexit, the UK government has been copying EU laws into domestic UK law in a vast ‘copy and paste’ exercise, using a legal process created by the Withdrawal Act. Under the act, ministers were given power to make secondary legislation via statutory instruments (SIs) to retain EU laws. Importantly, the act does not permit substantive changes to the laws that are transposed but does allow changes to make sure that they will work in a UK context.
REACH plans
The REACH SI attempts to copy the EU’s REACH chemicals regulation into domestic UK law and create a new UK chemicals agency in the event of a no-deal Brexit. CHEM Trust has been critical of these plans since they were first published in September 2018.
‘Despite claims from the UK government that it will not weaken EU environmental standards post-Brexit, we believe that this SI shows that this pledge has already been broken’
Despite claims from the UK government that it will not weaken EU environmental standards post-Brexit, we believe that this SI shows that this pledge has already been broken. In June, lawyers at Leigh Day sent a legal letter on behalf of CHEM Trust to the government, setting out our concerns with its plans for both chemicals and pesticides regulation.
Our challenge was two-fold:
- Firstly, on the removal of environment, health and consumer group participation from the proposed regulatory procedure for chemicals. Within Echa, stakeholders like CHEM Trust can participate in a wide range of committees, from the top-level Management Board to detailed technical committees. The UK’s legislation deleted these committees and has no specific commitment to stakeholder engagement. This is not an effective way of ensuring well-informed and well-balanced decision making; and
- Secondly, the weakening of laws that prevent the use of endocrine disrupting pesticides. The plant protection products SI erased two significant paragraphs from the EU plant protection products legislation, which covered the restriction on use of substances which disrupt the endocrine systems of people and non-target organisms. This dilution of vital regulatory standards contradicted government assurances that environmental standards will be maintained, if not strengthened, post-Brexit. The failure to maintain environmental protections could have far-reaching implications on wildlife and human health.
Government U-turn
Since we made the challenge, the government has re-inserted the restriction on pesticides with endocrine disrupting properties into the SI, claiming the omission was a result of a ‘drafting error’. While CHEM Trust welcomed this U-turn, this close call demonstrates the potential for the UK to deregulate important EU protections. This European ban on endocrine disrupting pesticides has been the focus of lobbying efforts from the US and Australia for many years.
On the REACH aspect of our challenge, the government committed in a response to our letter not to “undermine the opportunities for public participation and stakeholder engagement in the REACH system”.
In addition to legislative provisions in the REACH SI, it stated that it will put in place “related administrative arrangements” after exit day. CHEM Trust sees this policy commitment as an important win and has therefore decided not to proceed further with our legal challenge on the REACH SI at this time.
Instead, we will focus on ensuring that its implementation and future policy details are in line with these commitments. CHEM Trust will not hesitate to take legal action if necessary, to ensure the government fulfils its commitments on the protection of the environment and human health post-Brexit.
Regulatory divergence
If the UK does leave the EU-REACH system, this could assist those who want weaker regulatory systems around the world, particularly if it explicitly aligns itself with the US system in order to get a trade agreement with them. A central tenet of Brexit has long been the promise of free trade deals for the UK outside the EU, and most notably with the US.
UK divergence from high EU standards towards the weak and ineffective US approach is a severe risk from this. Concerns of regulatory divergence have only heightened with new Prime Minister Boris Johnson.
While the EU system works to become faster and more effective, for example making more use of restrictions on groups of chemicals, the US system under President Donald Trump’s administration is ceding to industry pressure, creating delays and inaction. It is imperative that the high standards of human health and wildlife protection that the UK currently enjoys are not jeopardised in any negotiations of a free trade agreement with them.
Staying in REACH
There are clear benefits for both the UK and the EU of continued UK alignment with REACH, in preventing damaging deregulation and facilitating trade.
Our analysis, based on the experience of Switzerland, is that the EU would set three key pre-conditions for the UK if it wanted to remain part of REACH.
For example, if the UK is outside REACH, then it could use chemicals that are subject to authorisations in the EU in manufacturing processes. This has clear competitive implications because manufacturing could move to the UK. And UK companies would have reduced costs, creating pressure for the EU to deregulate or even abolish authorisation.
Further, if the UK does not comply with REACH restrictions in the manufacture and use of persistent chemicals, this is likely to lead to transboundary pollution to the EU, through emissions from UK manufacture and use or from final products.
Our analysis, based on the experience of Switzerland, is that the EU would set three key pre-conditions for the UK if it wanted to remain part of REACH:
- firstly, the UK would need to fully follow all decisions on chemicals in REACH, without a vote on these, but hopefully with the opportunity to be involved in the discussions (as Norway is);
- secondly, it would need to accept the supervision of the European Court of Justice (ECJ), or something very similar, like the European Free Trade Area (Efta) court, which EEA countries like Norway use; and
- finally, it would have to continue to implement and follow a number of other chemical-related EU laws, such as those on factory pollution (for example, the industrial emissions Directive), water pollution (water framework Directive) and worker health. These laws help ensure that REACH controls are properly implemented.
Progress was made in November last year, with the draft political declaration alongside the draft withdrawal agreement agreed. This featured a welcome commitment to “explore the possibility of cooperation of the UK with the European Chemicals Agency”, and stated that the UK “will consider aligning with Union rules in relevant areas”.
Conclusion
With the withdrawal agreement looking no closer to ratification, and the threat of a no-deal Brexit looming ever closer, much uncertainty remains on the future state of chemical regulation in the UK.
We must avoid the catastrophe of a cliff-edge Brexit on 31 October, and in agreeing a future relationship with the EU, ensure that strong environmental protections such as REACH are maintained. In the event that the UK does not achieve associate membership of Echa in negotiations, or enters a no-deal scenario, we will be watching the government’s actions closely.
