On the 19th May, the UK Government published its draft legal text for a free trade agreement with the EU, along with a number of annexes, including one on chemicals. This annex leaves open the possibility of sharing chemical safety data, which we view as positive; though it provides no clues as to what preconditions the UK would be prepared to accept in return for such access. More worryingly, the UK is proposing a provision that would oblige the EU to ‘consult’ with the UK, if requested, on its assessments of the harm caused by chemicals, which could create extra work for the European Chemicals Agency (ECHA).
The UK and EU are currently in the process of negotiating a trade deal that is intended to come into force when the current Transition period comes to an end, which is currently due at the end of December 2020. The draft legal texts published by the UK on 19th May had been sent to the European Commission earlier; the EU published its equivalent proposals on 18th March.
Th negotiations are currently reported to have made little progress, with a fourth round of negotiations happening this week.
A future partnership on chemicals?
The UK’s text includes Annex 5-E on chemicals (pages 68-72 of the annexes document), which outlines in eight articles the UK’s aims for future cooperation with the EU on chemicals. It proposes this cooperation is set out in a Memorandum of Understanding (MOU) between ECHA and UK authorities; CHEM Trust has recently examined what could be possible with such an approach.
In April, CHEM Trust published a briefing looking at existing models of cooperation that the ECHA has with national chemical agencies https://chemtrust.org/echa-models/. This briefing set out existing precedents for and legal mechanisms by which the UK could negotiate a partnership with ECHA post-Brexit, that would be significantly closer and more beneficial than existing MOUs between the Agency and third countries.
Sharing information on chemicals
The UK’s text makes it clear, in Article 8.2, that the UK is interested in sharing information on chemicals:
“The Parties further agree to share data, risk assessments, scientific information, priority substance information and assessment methodologies where this is appropriate and necessary to support their commitments on cooperation under this Annex.”
It is, however, currently unclear what the UK Government envisages by data-sharing and if it is specifically looking to negotiate access to ECHA’s chemical safety database under Article 120 of REACH. This provision is mentioned in existing MOUs, with the stipulation it would require a separate international agreement. However, this mechanism has never been used and no country outside the EEA (European Economic Area) has yet secured access to ECHA’s database. The text states that Appendix 5-E-1 will clarify the mechanism for sharing and protecting information on data, but that Appendix is empty in the UK’s proposed text.
If the UK is seeking access to ECHA’s database, this could address a fundamental weakness of a future UK chemicals regime. Without access to the database, the UK will have to depend on much more limited information, including a database that will essentially be empty for the first two years, until companies have delivered the UK’s required safety data on their chemicals. Even after this phase-in period the UK database will have far less information in it than the EU’s. This lack of data will make it hard for the UK to implement controls on chemicals, in particular if they need to defend them from court challenges. Access to the ECHA’s database would also avoid the considerable costs and burdens on UK companies of re-registering and providing duplicate safety data on chemicals already registered with ECHA.
The conditions for disclosure set out under REACH’s Article 120 are limited (protecting the confidentiality of the data & sharing it for the purpose of implementing legislation related to chemicals covered by REACH). In our analysis, based on the experience of other non-EU countries, is that the EU is unlikely to grant such access to the UK unless the UK also agrees to be aligned with EU chemicals-related laws including REACH.
A concerning proposal for regulatory cooperation
The UK’s proposed text also has a section on ‘Cooperation’, Article 8. Whilst international co-operation in chemicals management is useful – for example through OECD and UNEP – obligations for different regimes to work together can be very problematic. CHEM Trust previously raised concerns at proposed provisions on regulatory cooperation in the EU-US TTIP negotiations; this trade deal was never finalised.
The most concerning part of the section is Article 8.5, which states:
“The Parties shall enter into consultations, if so requested by either Party, on scientific information and data in the context of new and emerging issues related to the hazards or risks posed by chemicals to human health or the environment with a view to creating a common pool of knowledge and promoting, if feasible and to the extent possible, a common understanding of the science related to such issues.”
This would mean that the UK could force (‘shall‘) the EU to enter into ‘consultations‘ on any (or all) “scientific information and data in the context of new and emerging issues related to the hazards or risks posed by chemicals to human health or the environment” with a view to “creating a common pool of knowledge and promoting, if feasible and to the extent possible, a common understanding of the science related to such issues“. Agreeing a ‘common understanding’ is not compulsory, but the ‘consultations’ would be.
At a minimum, such consultations will take up valuable time and resources in ECHA, which could be better used on identifying and controlling the use of hazardous chemicals. At worst, they could have a chilling effect on ECHA’s decision-making, leading to delays to, and disruption of, regulatory action.
In order to ensure higher environmental standards post-Brexit, our analysis is that the UK should remain within the international gold-standard for chemicals regulation – the REACH Regulation, which is managed by ECHA – and aligned to its restrictions and authorisations.
The current differences between the UK and EU approaches increases the likelihood of a no-trade-deal outcome at the end of 2020. Under this scenario Northern Ireland would remain in REACH, while a new UK regime would come into force in the rest of the country. This would be considerably weaker than, and diverge from, the high level of protection the UK currently enjoys within the EU’s international gold-standard for chemicals regulation.
Without a mechanism, or even a commitment, to align with EU restrictions and authorisations, the UK regime will almost inevitably diverge from the EU and this could result in the UK becoming a dumping ground for hazardous chemicals banned or restricted in the EU.
Dr Michael Warhurst, Executive Director of CHEM Trust said:
“It is promising that the UK is seeking data sharing with the EU, though it is not clear that the UK is ready to accept the alignment with EU decisions that is likely to be one of the EU’s pre-conditions for such sharing.
Worryingly, this text includes a proposal from the UK that could disrupt EU chemical regulation by creating a compulsory ‘consultation’ process, which could take up valuable resources at the EU chemicals agency ECHA. It is vital that nothing in a future trade deal with the UK – or any other country – disrupts the EU regulatory process.
A close partnership can still be negotiated between the EU and UK on chemicals, through the UK agreeing to align with the EU’s world-leading chemicals regulatory system. Such a positive outcome would retain the high environmental, safety and health standards the UK currently enjoys, and would avoid the costs and disruption to trade of a UK-only system.”