In May, the National Audit Office (NAO) published its review of three UK regulators that have taken on functions previously carried out by the EU, including the Health and Safety Executive’s (HSE’s) role in chemicals regulation. It found that a lack of operational capacity and loss of data is having a negative impact on HSE’s ability to assess risks and carry out its work.
These findings echo CHEM Trust’s longstanding concerns about the capacity of the UK regulator, which is selecting far fewer substances for control measures than the EU, resulting in lower levels of protection for UK consumers and the environment.
NAO report findings
The NAO’s report Regulating after EU Exit found that while HSE has been allocated additional funding and recruited more staff, it is experiencing significant operational challenges which need to be addressed if long-term goals are to be met. It found that these capacity constraints “may delay regulatory decisions”.
These challenges include recruiting the specialist skills it needs, time spent recruiting and training new staff and loss of access to EU safety data (ie the EU’s REACH database). It found, for example, that HSE is finding it challenging to find the specialists it needs, particularly toxicologists, and that the expansion of staff has mostly been for graduate-entry level posts. Indeed, recent HSE data showed that graduates accounted for 97% of the 109 additional scientists HSE hired to work on chemicals legislation in 2021.
CHEM Trust has longstanding concerns about the lack of capacity and loss of data in UK REACH to match the scale and pace of EU REACH, which is resulting in the UK considering and controlling fewer hazardous substances. This is detailed in the table below.
UK/EU: differences in numbers of substances considered for regulatory control
|UK HEALTH & SAFETY EXECUTIVE (HSE)||EUROPEAN CHEMICALS AGENCY (ECHA)|
|Substances that pose risks to health and/or the environment can have their production or certain uses banned or controlled||Two UK restrictions have been initiated, on lead ammunition and harmful substances in tattoo ink. We hope that more will be initiated this year.||Five restrictions on the use of hazardous chemicals have been adopted by the EU since the UK’s EU exit in 2021 and 20 more have been initiated.|
|Substances of Very High Concern (SVHC)||4||15|
|Substances are identified as SVHCs and placed on the Candidate List based on intrinsic hazards, such as carcinogenicity or endocrine disruption. Entry on the candidate List carries immediate obligations on companies to provide information to customers and puts substances in line for further regulatory attention.||HSE is considering just 4 out of the 10 substances that were added to the EU list in 2021, for the UK SVHC Candidate List.
NB: HSE is only assessing these for the UK list, they may not be added to the UK’s SVHC list in the end.
|Ten substances were added to the EU Candidate List in 2021, in January and July.|
|It is unclear when HSE will review the 5 substances that have been added to the EU list in 2022.||Another 5 substances have been added in 2022 so far (four in January and one in June).|
|SVHCs that are added to the ‘authorisation list’ cannot be placed on the market unless a company has been given “authorisation” by the regulator for a specific use.||HSE is considering two substances for the authorisation list.
NB: HSE is assessing whether these substances should be added to the authorisation list, it could therefore recommend fewer than 2.
ECHA recommended 25 substances for the authorisation list of which five were added to the EU authorisation list in April 2022, including Tetraethyllead in aviation fuel.
ECHA is currently considering recommending 8 substances and will provide its final recommendation to the Commission in Spring 2023.
More pressure on regulatory capacity
A further squeeze on the UK’s regulatory capacity is anticipated, as UK Government departments have been charged with developing a plan to return civil service numbers to 2016 pre-Brexit levels. This will result in an estimated 20% cut in jobs within 3 years.
The NAO urges the need for a long-term strategy to be devised to deliver regulatory goals. Until then, the report warns “there is a risk that regulators’ current plans to meet operational challenges may be wasted effort and not align with longer-term ambitions”.
The Government is currently considering how UK REACH can be made more effective as part of and alongside its work on the UK Chemicals Strategy.
In our view, it would be pragmatic to be realistic about the capacity of UK REACH to match that of the EU system and its ability to meet long-term objectives. The current reality is that the UK is defaulting to regulatory divergence on chemicals, without any assessment of the environmental, health and business costs – or any consideration of whether it is in the long-term interests of the UK. In our view the UK should default to regulatory convergence on chemicals, with an open and transparent process to allow for divergence subject to demonstrable reasons why the UK context is different.
Chloe Alexander, UK Chemicals Campaigner, said:
“We very much agree with the NAO on the need for the Government to develop a plan to ensure the regulator is able to meet its long-term goals and avoid wasting public money and effort on short-term work. The current model is resulting in the UK prioritising far fewer hazardous substances for control than the EU, which will reduce the level of protection in the UK for the environment and our health.
“A strategy which is realistic about its ability to meet long-term goals would lean heavily on the EU’s work and aim to minimise damaging divergence. This would ensure our health and environmental protections are pegged to the highest standards, while avoiding duplication costs on both the industry and taxpayer”.