Yesterday evening the UK House of Commons debated and narrowly approved the REACH Statutory Instrument (SI) which 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.
Heavy criticisms of the SI were made from a cross-party group of MPs, though the debate culminated in approval of the SI by 297 votes for and 240 against. The Statutory Instrument still needs to be voted on by the House of Lords, and if approved it will be signed into law by the Minister.
The SI fails to ensure that UK controls on chemicals stay in line with those at the EU level, nor does it create adequate stakeholder engagement. However, these issues could be addressed through the UK Government adopting them as their policy.
Critique of the SI
Shadow environment secretary Sue Hayman said the draft law was “unworkable”, with “particular concern” that the Health and Safety executive (HSE), due to take over from EU Chemical Agency ECHA, “lacks the capacity, the resources, the experience and expertise” to take over duties. She further stated:
“Labour believes that continued participation in REACH is the surest way to avoid extra costs and burden on business, to save jobs and protect animal welfare, health and safety and the environment,” she told the house. “The prudent thing would be to take this SI back to the drawing board”.
Environmental Audit Committee (EAC) Chair Mary Creagh added that “important democratic oversight mechanisms are being lost in translation” and that “environmental regulation is simply being downgraded“. Creagh also raised concerns about the Government’s better regulation agenda, which CHEM Trust has highlighted previously, and about the EU’s rapid alert system (RAPEX):
“CHEM Trust told me in a meeting that it is also concerned about the rapid warning systems. UK environmental health officers could discover, for example, lead paint on children’s toys or dangerous chemicals in baby products and baby foods, but because of the downgrading of their work, and that of trading standards, we are no longer going out looking for those problems and are very reliant on colleagues in other EU member states alerting us to the need to take such products off the market”.
Will HSE diverge or align with ECHA?
Various MPs voiced concerns during the debate that there is no commitment to mirror EU outcomes on chemical regulation, including Dr Matthew Offord MP and Alex Cunningham MP who called for regulatory alignment with REACH post-Brexit.
When asked about HSE’s regulatory compliance with REACH, Environment Minister Therese Coffey answered that she had “no reason to doubt that the HSE and ECHA will have similar principles in how they go about this”.
However, at a Westminster Forum event in February, Dave Bench, Director of EU Exit at HSE stated that it would be “almost unimaginable that two sets of very competent experts would come to the same conclusion” and that “there will be divergence if we are in a No Deal scenario and that divergence will happen almost straight away”.
It’s worth noting that new controls on chemicals are being adopted all the time under REACH, as more is understood about the risks posed by the > 20,000 chemicals in use. This means that if the UK doesn’t follow these controls then the UK regulations will rapidly become weaker than those at EU level.
Associate Membership of ECHA?
During the debate, Minister Coffey confirmed that the UK Government aim of becoming an ‘associate member’ of ECHA was still being pursued, but gave no update on whether this aim was any closer to being achieved.
In CHEM Trust’s view the EU is likely to set three key conditions before considering the possibility of the UK staying in REACH, including a requirement for the UK to stay aligned with all chemical-related laws.
This Statutory Instrument will come into force on exit day, however in the event of a deal our understanding is that separate legislation would be created during the transition to replace the SI, which would be preferable. CHEM Trust, along with our partners in the Greener UK alliance, are hoping that a no-deal Brexit scenario does not happen.
Dr Michael Warhurst, Executive Director of CHEM Trust, said:
“CHEM Trust was happy to see that MPs from across parties raised their concerns with the Government’s no-deal plans for chemical regulation, particularly around the lack of stakeholder engagement mechanisms, the risk of regulatory divergence and the quality of the UK database. It is clear that Parliament does not want to see any lowering of standards to protect public health and wildlife from harmful chemicals.”
We reiterate our assessment that the only way for the UK to maintain the highest standards is to negotiate to stay within REACH post-Brexit.
We are also disappointed that the government didn’t amend the SI to incorporate a commitment for the UK to stay dynamically aligned to REACH decisions and related chemical laws post-Brexit, nor to ensure stakeholder involvement.
However, the Secretary of State Michael Gove could still commit to these vital steps as Government policy, and we will be writing to him to ask him to make these policy commitments.