Today, Monday 24th of September, the UK Government published papers on how the UK plans to transfer EU chemicals law REACH into UK law in the event of a no-deal exit from the EU.

In line with other policy areas, on REACH the UK Government plans to copy across the EU law and only modify it to ensure workability. At first glance this might be assumed to ensure that such an approach would keep the UK’s chemical regulation in line with the EU – while in reality this is not the case.

Defra have suggested that all existing chemical controls would be copied across. However, for future controls the UK would just work with a simplified copy of the EU’s decision-making process in REACH, with the Health and Safety Executive (HSE) acting as the lead UK regulatory authority. We are very concerned that the U.K. may not ban future chemicals of concern in parallel with the EU.

This proposed approach raises a number of significant concerns:

1) The lack of any commitment to mirror EU outcomes on chemical regulation

As far as we are aware, the Government’s proposed legislation will not have any provision to ensure that the UK’s controls on chemicals will remain the same as the EU’s post-Brexit. There will not be any text to commit the Government to implement future EU decisions on restricting or otherwise controlling chemical use, instead everything will be dependent on the decisions made in the new UK ‘Agency’ and how they interact with the Secretary of State for the Environment.

Without any automatic provision for copy-across of EU restrictions and future improvements in EU chemicals laws, it is clear that UK controls on chemical use could rapidly diverge from those in the EU. If the UK controls fell behind those of the EU then the protection of human health and the environment would be reduced.

2) The lack of effective methods for overview and involvement of stakeholders and others in the UK Agency

The EU chemicals agency ECHA has a number of layers of oversight for its activities, with a Management Board which includes Member States and stakeholders. It also has various technical committees where Member States have a voting role and where stakeholders can participate. This approach means that the work of ECHA can be challenged and made more effective.

It is our understanding that the UK Government intends to remove all these layers of oversight for the UK Agency, and to replace them only with an ability or obligation on the Agency to obtain external scientific advice. This is not an effective way of ensuring well informed and well-balanced decision making.

One example of oversight is the process of adding a chemical to the candidate list of Substances of Very High Concern. In ECHA this would be discussed by the Member State Committee, while in the UK Agency we understand that this would just be done within the Agency, with no involvement of others.

Without oversight (like ECHA’s Management Committee) and engagement (like stakeholders and others present at the more technical ECHA committees), we are concerned that the new Agency is may become a secretive quango which operates mainly with its main ‘clients’, DEFRA and the chemical industry.

We are aware that there are differences of opinion between the UK Government and devolved administrations regarding whether the Agency is a UK-wide body. One partial solution to this problem could be to have a Management Board for the Agency, made up of voting representatives from devolved administrations, central government and the various environment and health agencies (like EA, SEPA and Public Health England), and with non- voting representation of other stakeholders.

3) No commitment to update regulations in line with REACH

It is not clear that there is any plan to automatically update UK chemicals regulations as REACH is updated, For example if the EU is discussing creating an a new piece of legislation to ensure that companies to update the safety information in their registration dossiers.

4) An unreliable level of protection from chemicals imported into the UK

The UK Government plans to ‘grandfather’ registrations into the UK regime, and collect ‘basic information’ on these chemicals as a way of gathering the data on chemicals that are not registered within the UK system (which will be the majority of chemicals). We are unconvinced that such an approach will give a high level of protection for human health and the environment, and whether it is really feasible for the UK to build a chemical safety database from this information.

Extraordinarily, when questioned by the House of Lords’ EU Energy and Environment Sub Committee, Environment Minister Thérèse Coffey suggested that the UK could ‘copy and paste’ the EU’s REACH database before Brexit. It is very clear that this would not be legal for a range of reasons, including intellectual copy rights of the data which is owned by chemical companies.

Better regulation – or deregulation?

We also have serious concerns about the future impact of the Government’s ‘Better Regulation’ agenda. This agenda has included a commitment to only bringing in new regulations if three times the amount of regulation (measured on the basis of cost to companies) is removed. In a statement made to the UK Parliament on 20th June, Government Minister Andrew Griffiths confirmed that the UK still has a deregulation target of £9 billion in this parliament. The statement confirms that for the first time, this target will be applied to vast swathes of formerly EU law after the transition (‘implementation’) period.

If the UK strengthens any environmental law, protects new organisms or habitats, bans a new chemical etc., it must calculate the business costs of this (benefits are irrelevant) and then the department concerned must justify how this fits within the overall reduction target. This creates a massive disincentive for Ministers, departments and civil servants to improve regulation.

National Audit Office exposes censorship of DEFRA by DExEU

The National Audit Office published a report on the 12th of September into Defra’s progress into implementing an EU exit, noting that major internal hurdles remain. The report identified that “basic” decisions about long-term function for the UK’s chemical regulatory system have not yet been made, and that the Department for the Environment, Food and Rural Affairs (DEFRA) “has not yet started to consider in detail what the future regulatory system will look like nor how it will be managed”.

CHEM Trust is also concerned at the NAO’s finding that the Department for Exiting the European Union (DExEU) has on several occasions restricted DEFRA’s preparations for a no-deal Brexit. DExEU also reportedly prevented DEFRA from holding open consultations on its no-deal planning and from issues information to the chemical industry. As reported by ENDS Report, we commented:

“We had a meeting with DEFRA on this issue in July, where we were shown a PowerPoint, and we subsequently submitted written comments. However, we have since been told that we cannot publish these comments until DEFRA publishes its own plans. This is not an acceptable way to run a government in a democracy, particularly given the fact that we have very serious concerns about DEFRA’s proposals for chemical regulation in event of a no-deal.”

Update, 25th Sep: Now that the UK Government has published its ‘no deal’ notice we now consider that it’s reasonable for us to publish the submission that we sent to DEFRA on 3rd July.

Our overall position on Brexit and chemicals policy

CHEM Trust’s overall position is that if Brexit happens then the UK should aim to stay part of REACH, for example including it in any Free Trade Agreement negotiated with the rest of the EU. It as preferable for the UK to remain fully involved – as a voting member – in EU chemicals policy, but this would require the UK to remain as an EU Member State.

We welcome the fact that the Prime Minister has called for the UK to have an ‘associate membership’ of the European Chemicals Agency ECHA.

Our analysis is that the UK Government’s proposals address only two of the three preconditions that we believe will be necessary for the UK to have a chance of staying in REACH, however we are very concerned that the third precondition, staying within the EU’s chemical-related laws, is missing. These other laws, for example covering water pollution, factory emissions and health and safety, are crucial to safe management of chemicals, and CHEM Trust’s view is the the EU will not accept the UK’s request to stay in ECHA without them.

Conclusions

Dr Michael Warhurst, Executive Director, said:

“The creation of a new UK ‘chemical agency’ with no commitment to follow EU decisions on controlling chemicals is a development of great concern to CHEM Trust. This could lead to rapid regulatory divergence post Brexit, whereby the UK may not ban future chemicals of concern in parallel with the EU. We are unconvinced that the proposed approach will provide a high level of protection for human health and the environment, and whether it is even feasible for the UK to build a comprehensive chemical safety database based on these plans.”

Our comments on the UK Government’s no deal plan have been covered by Chemical Watch, Business Green, The Chemical Engineer and ENDS Report.

Update: The UK Government published their Statutory Instrument laying out the rules of the UK copy of REACH in January 2019. They confirm that the Health and Safety Executive will be the new UK chemical agency, and that all the committees and consequent stakeholder involvement in REACH are deleted.