REACH etc. (Amendment etc.) (EU Exit) Regulations 2020
(3 years, 11 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Lord Goldsmith of Richmond Park
That the draft Regulations laid before the House on 19 October be approved.
Relevant document: 34th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)
The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con) [V]
My Lords, the regulations have three main purposes: they fulfil the UK’s obligation to effectively implement the Northern Ireland protocol with regard to REACH; they provide for access by Northern Irish goods to the Great Britain market; and they amend the existing transitional deadlines for GB businesses to submit information about their chemicals and their safe use into the domestic REACH system. The SI also makes some technical amendments to ensure that cross-references in the UK REACH regulation are up to date at the end of the transition period. After the transition period, UK REACH will regulate the GB market, while EU REACH will apply to Northern Ireland.
The provisions that implement the protocol are straightforward. They redefine the scope of the domestic REACH regime from the UK to Great Britain. They provide for the Northern Ireland competent authority function to continue to be exercised jointly by the Department of Agriculture, Environment and Rural Affairs and the Department for the Economy. The provisions also ensure that there will still be effective enforcement arrangements for REACH in Northern Ireland.
The provisions concerning chemicals moving from Northern Ireland to Great Britain reflect our commitment to unfettered access for Northern Ireland businesses as well as the need to ensure that UK authorities have the appropriate information and regulatory safeguards in respect of chemicals placed on the GB market.
The instrument permanently removes the requirement for a full REACH registration for chemicals that are, or are in, qualifying Northern Ireland goods being placed on the GB market. It replaces that with a light-touch notification process, which will ensure that the HSE will know what chemicals are being placed on the GB market. Information necessary to ensure safe use will also still be passed down the supply chain within Great Britain. Substances of very high concern entering Great Britain from Northern Ireland will still need a UK REACH authorisation. This is necessary in order to manage the risk to GB consumers and workers, and the environment, from these hazardous chemicals. This simply replicates the approach taken at present to placing these substances on the EU market, where the authorisation process ensures that due account is taken of local environmental and other factors. We need to ensure that this happens where these chemicals are being placed on the market and used within Great Britain.
The changes to the deadlines for the submission of notification and registration information to the Health and Safety Executive follow a review of the data submission deadlines in the transitional provisions of UK REACH. The Government had committed to keep these deadlines under review when the first REACH exit SI was debated in the House last year, and the review involved detailed discussions with a range of industry and NGO stakeholders. The initial notification period for existing downstream users and distributors is being increased from 180 to 300 days. The deadline for submitting full registration information, which is currently two years across the board, is replaced by a phased approach that spreads the duty over two, four and six years from the end of that 300-day period.
The phased approach takes a risk-based approach by requiring the submission of data on the highest tonnages and most hazardous chemicals first. The aim is to give companies more time and capability to comply with the legislation by reducing and spreading costs, and giving them more time to negotiate mutually beneficial data-sharing arrangements with other companies in the UK and the EU. This will lead to a reduction in non-compliance and the provision of higher-quality data, leading to GB authorities having access to better data that will facilitate better decision-making. In the meantime, GB authorities will have access to significant other sources of data, so we will still be able to make robust regulatory decisions before full data is submitted to the HSE under UK REACH.
I should like to inform the House that we have worked with the devolved Administrations on this SI and they have given consent. I can confirm that this instrument will be able to function with or without a deal with the European Union. I can also confirm that it has been considered by the JCSI and that no issues have been drawn to the attention of the House.
I should like to turn to the report by the Secondary Legislation Scrutiny Committee. It is fair to say that the report does not primarily relate to this SI so much as to broader concerns about the future of chemicals regulations, now that the UK has left the EU. In addition to whether this SI changes our ability to regulate effectively before the Health and Safety Executive receives the data about the chemicals on the GB market, these concerns relate to the potential costs to industry of the transition to UK REACH, the HSE’s preparedness to take on its new role as the agency responsible for implementing UK REACH and potential outcomes from negotiations with the EU.
We published an impact assessment at the beginning of 2019, alongside the first REACH exit regulations. We have acknowledged that the costs to industry of supplying data into UK REACH could be significant. We have no reason to disagree with industry’s own estimates, but I should emphasise the considerable uncertainty. In particular, actual costs will depend on the behaviour of companies here and in the EU, and the terms by which they can agree to continue to share the data needed for the purposes of both UK and EU REACH. One of the purposes of this SI is to help businesses reduce and manage those costs by extending the deadlines for data submission. The aim of reducing costs is also why the UK has been looking to agree an approach to data sharing with the EU as part of a free trade agreement. That would enable us to significantly reduce the requirements on companies to submit data directly to the HSE.
The committee’s report is also concerned that the HSE will not immediately have access to the full chemical safety data currently held by the European Chemicals Agency. The Government recognise that our chemicals regime needs to be based on data and evidence, just like any system for regulating chemicals. At the same time, we are using transitional arrangements to smooth the move to UK REACH. These are taken a step further in the risk-based provisions in this SI. Here, also, our negotiation aims would assist us greatly in meeting the need for the data to underpin UK REACH while avoiding costs to industry. However, it takes two to reach a negotiated settlement. If that is not the outcome—and the committee is concerned that it will not be—it would be irresponsible not to make sure that UK REACH can stand by itself and is robust.
The concerns about costs and delays in the HSE receiving registration data sit uneasily together. If we want the HSE to have the full data on chemical safety, there will be a cost. If we want to avoid all the cost, it comes at the price of the HSE not having the data and having to rely wholly on other sources for regulatory purposes. What the Government are endeavouring to do, in previous SIs and in this instrument, is to balance those two needs.
Finally, the committee report questions whether the HSE will be fully prepared to take on the role of the chemicals agency under UK REACH—in particular, its capacity on day one. We have emphasised on a number of occasions that the HSE, along with the Environment Agency, is building on a significant level of expertise. I repeat that Defra is putting significant resources into the build-up to UK REACH, and that the HSE is recruiting heavily for REACH and other chemicals regimes for which it is responsible. The HSE has mapped the workload and regulatory drivers. This indicates that it is not necessary to have a fully staffed organisation on day one. Instead, the approach to recruitment gives time to train and build up the functions and services of UK REACH before key deadlines on registration and evaluation kick in. That is what is important. It is also important to remember that we are carrying over key elements from the EU system, such as the authorisation list and the candidate list for substances of very high concern, and that work does not need to be repeated.
Turning back to the draft SI, I emphasise that this is a simple but necessary instrument. It is necessary to make sure that the Northern Ireland protocol is implemented properly, and to provide easy access to the Great Britain market for Northern Ireland goods, in line with the Government’s commitments. The SI is also necessary in order to make a reduction in the burdens on industry, while still providing for an effective chemicals regulatory regime. I beg to move.
Baroness Hayman of Ullock
At end insert “but that this House regrets that the Regulations (1) fail to provide an analysis of the costs of the new domestic Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) regime, (2) introduce additional costs and administrative burdens for United Kingdom businesses, and (3) create unacceptable risks around the availability of chemicals safety data; notes concerns about the ability of the Health and Safety Executive to fulfil its additional responsibilities when the domestic REACH regime becomes operable on 1 January 2021; and further regrets that Her Majesty’s Government have not addressed concerns raised by Parliament when proposals for a domestic REACH regime were debated in 2019.”
Baroness Hayman of Ullock (Lab)
My Lords, I thank the Minister for introducing this statutory instrument. My amendment spells out the deficits and risks that remain in the REACH regulations and our disappointment that the Government have brought forward an amended proposal that fails to address any of the serious concerns that were raised when it was debated last year. It shows insufficient understanding of how chemicals are actually managed in complex supply chains, with analysis neither of the cost of setting up the new regime or the additional costs to business.
The Government have said that these regulations are necessary to ensure that UK REACH will operate domestically and to implement the Northern Ireland protocol. But they will not provide the same level of protection from harmful chemicals that we currently enjoy, and there are huge challenges in trying to replicate EU REACH. The Government have failed to demonstrate that the Health and Safety Executive, as the new regulator, will have the necessary skills and capabilities to match what has been provided by the European Chemicals Agency. When the original SI was introduced, it was indicated that the budget would likely be £13 million a year, and this figure has not been updated. The HSE will have a similar number of chemicals to regulate as the European Chemicals Agency does, with an annual budget of around €100 million. So we have serious concerns about the readiness of the HSE to take on this role and about the lack of staff with the necessary expertise. Despite the Minister’s previous assurances, he needs to set out exactly how the new system will be staffed and resourced to ensure that current levels of protection continue.
Schedule 2 amends the 2019 regulations to extend the date by which companies with EU REACH-registered chemicals must provide full safety data. As explained, the deadline has been extended from two years after exit day to be staggered over six years plus 300 days, so that the full registration dossier will now need to be submitted within two, four or six years. I understand the Minister’s reasoning behind this, which he just explained, but it does mean that the period in which the new regulator will be unable to protect human health and the environment from harmful substances has been extended. Without this data, it will be difficult, if not impossible, for the HSE to implement legally enforceable restrictions and authorisations.
According to CHEM Trust, this will make the system considerably weaker. The UK may diverge and fall behind the EU quite quickly, with the result that products that do not meet EU standards could be dumped in the UK market. The Government have acknowledged that this is a possibility, so will they actively match new controls on chemicals implemented at EU level to ensure that this cannot happen?
Defra has said that the regulator could use a substantial amount of publicly available information, but this is not adequate for proper regulation. The Secondary Legislation Scrutiny Committee concluded that it was deeply concerning that HSE
“will not have access to the full chemicals safety data currently held by EU REACH.”
The Chemical Business Association has said that British businesses do not normally own the testing data required for registrations under UK REACH, as it is held by a consortium of European countries. To reuse the data for the UK system, companies might need to obtain permission from the consortium and will likely have to pay for the extension of rights. If that cannot be obtained, tests might have to be redone to establish safety information, which could involve repeat animal testing.
The UK industry estimates that it will cost of £1 billion to comply with UK REACH, including the cost of resubmitting full registration dossiers already available under EU REACH. The Minister mentioned data sharing, but as yet there is no agreement between the UK and the EU on a data-sharing mechanism for these dossiers—and we are days away from the end of the transition period. There must not be any repeat animal tests, so I ask the Minister, who I know feels strongly about this, what guarantees he can give. How confident is he that this can really be ensured and that it is not just an undeliverable promise?
The regulations that this SI amends remove the supporting committees that ensure that decisions are based on scientific advice and that there is proper scrutiny and oversight. In the UK version, they are replaced by a duty for the HSE to seek external advice, with no formal committees of experts and stakeholders established. Furthermore, the Secretary of State has the final decision relating to the status of particular chemicals. While we hope that it is unlikely that a Secretary of State would diverge from HSE recommendations, it is not explicitly prevented.
In conclusion, we need a regulatory system that provides the same levels of protection for human health and the environment as we have enjoyed under REACH. Otherwise, critical decisions will be made by a body with little experience and with layers of accountability and scientific expertise stripped away. My amendment recognises these deficits and risks, and the lack of government action to date. I beg to move.
Lord Teverson (LD) [V]
My Lords, I have the privilege of chairing the House’s EU Environment Sub-Committee. Soon after the referendum, we looked at the area of REACH chemicals and we had the then Secretary of State—not the present one—and the Permanent Secretary in front of us. It was quite clear that this was an area the department had not spent a lot of time on. It had concentrated on agriculture, fisheries and wider environmental areas, but absolutely not the chemicals area at all. There was a rather naive view among some people at that time that somehow all the data on chemicals in the European Chemicals Agency could be cut and pasted and put on the UK REACH database—something that we disabused them of, as it was quite clear that it was not true.
The department has certainly picked up a lot of speed since then, but not necessarily with the right answers. One could say that never in the history of corporate life has so much cost and red tape been created for absolutely zero purpose whatever. In fact, it will have a very negative effect on the UK chemicals industry—which, let us not forget, is the second largest manufacturing sector in the United Kingdom after the food industry.
The committee took evidence more recently—in fact, earlier this year—from the British Coatings Federation, which told us that 97% of its members buy chemicals from the European Union, some 65% of their exports go to the European Union and some 55% of their imports come from the EU. EU chemicals are absolutely integrated into the UK supply chain. Beyond that, nearly every other physical goods industry in the United Kingdom is affected in some way by the chemicals supply chain as inputs to their own products.
The result of this is not that UK standards will be particularly important—they will be absolutely essential to UK companies, obviously, and UK importers—but that they will continue to follow EU REACH regulations. If companies want to export, or if they export to the United States, they will have to comply with those regulations as well. This means that the only outcome of this is an additional cost and an additional registration system, which is expected to cost the industry some £1 billion extra—I am interested to hear that the Minister does not reject that figure. I welcome the fact that this might be spread over more time, but that cost is still very much there.
Because of that cost, there is another issue, which I do not think has been raised so far. It is estimated that some 27% of non-UK businesses importing chemicals—those EU companies—will not bother to register in the UK because of the extra cost of doing so. Of course, they cannot usually be replicated by a UK company’s supply because of the intellectual property held by those companies. So we have a system that is unnecessary and is there because of a philosophical choice, not one of safety and not one that is good for British industry.
I have some questions for the Minister. Is the HSE, which I respect hugely in its core functions, really going to have the expertise there in time, and will it be able to recruit sufficiently? I hear the Minister’s assurances, but the fact that it is still recruiting some days before the end of the transition period is, I think, a concern. Are the IT systems ready? The Minister did not mention those; they are absolutely fundamental, and I suspect rather more complicated than an Excel spreadsheet. Will there be sufficient independent advice on the science side for the HSE? Will there be animal retesting, which clearly all of us would want to avoid? What happens about those missing chemicals because importers will just not bother to re-register? I hear the wish that there would be some extra connection with EU REACH in the future, but I would really appreciate hearing from the Minister some determination to make sure that there is in future that connection with Europe that enables us to avoid the hugely expensive duplication of information and data.
Viscount Trenchard (Con)
My Lords, I am grateful to my noble friend the Minister for introducing these regulations and explaining their effect. I regret that the Northern Ireland protocol has made it necessary to have two different versions of REACH: UK REACH, which will apply in Great Britain, and the EU version of REACH, which will continue to have effect in Northern Ireland.
I trust that our departure from the EU will enable us to revert to a simpler, clearer, common law style of regulation such as we used to apply before the centralising and harmonising powers obtained by the Commission through the Maastricht treaty were applied. This instrument makes it very clear that there is some way to go before we can start to move in that direction.
It is very difficult to follow the detail of the instrument because it amends the 2019 regulations, which were not designed to apply in a situation where the EU regulations continued to apply in Northern Ireland. Therefore, one needs to refer to several different documents, which I find rather testing.
Paragraph 2.4 of the Explanatory Memorandum introduces a definition of GB REACH, and all references to “UK” in the 2019 regulations are being changed to “GB”. However, I ask my noble friend if he agrees that we should call it “UK REACH” rather than “GB REACH”, because GB is an island, not a country. Of course, the instrument would still have to apply the EU REACH regime in Northern Ireland. It is more confusing because, as noble Lords are aware, GB is the two-letter acronym used by the EU to refer to the UK throughout its years as a member state.
It occurred to me that since the REACH regimes are different in Great Britain and Northern Ireland, could not Northern Ireland be made subject to both regimes simultaneously? That presumably would not add any additional bureaucratic burden for Northern Irish businesses, since the content of the regimes is identical on IP completion day. However, would it not offer reassurance to the communities of Northern Ireland that they really are still an integral part of the UK and that this United Kingdom Parliament makes laws which apply to them?
Seventy pages of the withdrawal agreement—327 to 397—list the large number of European regulations and directives that will continue to apply in Northern Ireland. Of course, if the Republic of Ireland should eventually decide that it wished to join the UK customs territory, the problems of the north-south border in Ireland would disappear.
The Prime Minister’s Greenwich speech in February made clear that
“in doing free trade deals we will be governed by science and not by mumbo-jumbo because the potential is enormous.”
In many respects, our rules go further than EU rules, but there are other examples where bureaucratic EU regulatory regimes such as REACH have stifled and inhibited innovation. These measures today will ensure that there will be no cliff edge, that the EU retained version of REACH will work in the UK and that the notification period for existing Northern Ireland product being traded into GB is extended to 300 days, and I welcome them.
I listened to the interesting speech by the noble Baroness, Lady Hayman of Ullock. I think her motives are just to make trouble for the Government but not to try to do anything which might cause fatal damage to an important and necessary measure. However, it is important that, at some point, we fix the impediments and burdens of the REACH regime by developing a simpler, principles-based, pro-competitive chemicals regulatory regime, the outcomes of which may be similar to those of REACH but the detailed regulations of which will be different. I ask my noble friend to confirm that this remains the Government’s intention as soon as the short-term changes and issues arising from moving on from the transition period are completed.
Lord Cameron of Dillington (CB) [V]
My Lords, I would like to echo the regret that others have expressed that we have allowed ourselves to walk into this unnecessary nightmare.
EU REACH started in 2007, and it took nearly 10 years to iron out all the wrinkles and become, according to our own Chemical Industries Association and the charity CHEM Trust, the best chemicals regulatory system in the world. With a staff of 600 people, ECHA—the European Chemicals Agency—deals with tens of thousands of chemicals in over 20 countries, which makes the evaluation and authorisation of individual chemicals good value for money. But more importantly, it has had 13 years to build up a huge database and prove to the world that its stamp of approval is a recognised safety guarantee when it comes to trading in chemical products—products that touch almost everything we do, from toothpaste, toothbrushes, toys, frying pans, paints, varnishes and chairs to sofas, to name just a few domestic items.
Originally, under Theresa May, and when Michael Gove was Secretary of State, we were going to go for full alignment with EU REACH and try to get associate membership. This would have been a very sensible approach, and indeed was recommended by your Lordships’ energy and environment committee, on which I am lucky enough to serve under the able chairmanship of the noble Lord, Lord Teverson. But then UK politics changed, and seemingly alignment with any EU programme or institution became a no-no, whatever the cost.
We are therefore now going to leave the best system in the world at a cost of over £1 billion to a vitally important UK industry; an industry—or industries—which probably employs over 100,000 people. It is an industry which, as the noble Lord, Lord Teverson, mentioned, is inextricably linked with the EU, and, as he said, research indicates that 27% of the EU companies involved do not intend to register with UK REACH.
This latter point means that, in order to stay in business, many of the potential 80,000 new registrations of chemicals with UK REACH will have to be paid for by our own UK companies, large and small, which depend on imports from the EU for their raw materials. Worse than that, because the data and results of tests already carried out on these products often remain the property of ECHA and EU companies themselves, our UK companies may have to pay for another full round of validation tests to register with UK REACH and thus be allowed to stay in business.
This approach is not only economically harmful but could have serious health consequences for our population and our environment. The new regime starts in 23 days and the HSE is as yet unprepared. I gather that it has filled only around 30 of the 130 new posts it says that it needs. We should bear in mind that ECHA employs 400 people dedicated to REACH, and it still took it 10 years to build its database.
Furthermore, our Government, through practical necessity owing to the problems I have just outlined, are now giving UK companies leeway for registration of chemicals of 300 days or up to six years, according to the product. There are thus likely to be serious shortcomings in the HSE’s watchdog role in this sector. Indeed, the Government have acknowledged that there is a possibility we will become a dumping ground for chemical products that do not meet EU standards.
That sums up my regrets. I apologise that I have not even touched on the problems of Northern Ireland. However, in the light of what I have said, the added complication of being essentially in two regimes at once is not a situation one would wish on any business.
I plead with the Government to please find a way to commit the UK publicly to aligning UK REACH with EU REACH. Let us try to earn its trust, so that, I hope, we can share their data and avoid having to go through a 10-year learning curve and the unnecessary huge expense and possible environmental chaos that I have described. This is one of our most important industries. We must look after it.
Baroness Donaghy (Lab) [V]
In supporting my noble friend Lady Hayman of Ullock, I am concerned about the resources and capability of the Health and Safety Executive to carry out its new role, about the risk of safety issues falling through the gaps and about the cost to business, which the noble Lord, Lord Cameron of Dillington, just outlined so graphically. This House is on record as regretting the Government’s decision not to participate in the European Chemicals Agency, which would have saved all this uncertainty. I am sure that my noble friend Lord Whitty, whose regret Motion was carried in 2019, will want to say more about that.
Let me make it clear: I am a supporter of the wonderful work carried out by the Health and Safety Executive. I worked closely with it 10 years ago when I was preparing my report on fatalities in the construction industry, and I have been horrified at the extent of the cuts to its budget by successive Conservative Governments. As the UK chemicals authority, the HSE will take on the role that was formerly carried out by the European Chemicals Agency. The question of staffing and resources of the HSE has been raised before. I was a member of Sub-Committee B of the Secondary Legislation Scrutiny Committee in 2019. It expressed concern in its report on the REACH regulations that the HSE did not have the resources to recruit the necessary expert staff. Now the current Secondary Legislation Scrutiny Committee, under the able leadership of the noble Lord, Lord Hodgson of Astley Abbotts, is expressing deep concern about the same thing over a year later. Why have the Government not taken action when they were warned of the difficulties? The new regime comes in on 1 January 2021 but recruitment to the HSE is nowhere near concluded.
What contingency plans exist to ensure that safety and standards are maintained during this crucial period? What assurances can the Minister give that the HSE will be adequately funded? Will the Government work with stakeholders to develop an open and transparent structure? As the noble Lord, Lord Teverson, explained, the advantage of the European Chemicals Agency, which the Government have decided to leave, is that it had a committee structure which ensured that its work would be challenged, and Cruelty Free International has emphasised that this open structure ensures that “the best information is available, including on animal testing.”
Will the Government guarantee that there will be no repeat animal testing because of a failure to share data, and how will they carry out that guarantee in practice? In most cases, UK firms do not own the testing data that is required to support registrations under UK REACH. The majority of this data is owned, as has been said, by a consortium of European countries. I appreciate that the Government are seeking agreement with the EU on data sharing, referred to as a chemicals annexe. If this agreement is reached, it would mitigate the need for the chemical industry to provide full data packages to the new agency, thus avoiding considerable cost to business.
I accept that extending some of the dates is intended to assist the industry and give it time to adjust. However, the Secondary Legislation Scrutiny Committee has supported the view of the CHEM Trust, a chemical safety charity, that extending the period to more than six years would hamper the ability of the agency to regulate the chemicals industry. The Secondary Legislation Scrutiny Committee agrees that this could undermine the HSE’s ability to regulate chemicals properly.
The noble Lord knows that the House has been expressing concern on these issues for nearly two years. The Government created the uncertainty by refusing to remain within the European Chemicals Agency and agreeing a Northern Ireland protocol without considering its fundamental implications. They now have an obligation to sort out their own mess and maintain the safety and security of the chemicals industry.
Baroness Altmann (Con)
My Lords, I thank my noble friend the Minister for his explanation of these regulations and for his clear delivery to the House of what are clearly regulations that may be of significant concern. In particular, he has assured us, that Defra is putting in resources and that the HSE is recruiting. However, concerns have been expressed about the adequacy of resources for the HSE, which does a tremendous job, and the required oversight, when one compares the budget of the ECHA, with €100 million, and the HSE, with £13 million. What are the targets for recruitment to the HSE? How are we locating the required personnel? Where are they coming from? Can my noble friend say how much the adequacy of the resourcing has been assessed and whether there are any reports that may give us some comfort?
I also encourage my noble friend to relay the message this House has clearly given over the last two to three years, that data on safety and data sharing are essential for public safety. I appreciate that the JCSI report and the concerns raised, as my noble friend already mentioned, may not be directly relevant to this SI. However, clearly, the issues raised are enormously important, and its broader concerns about the potential £1 billion cost to our valuable UK chemicals industry and the readiness of the HSE to conduct its role are serious matters.
As the noble Baroness, Lady Hayman, and the noble Lord, Lord Teverson, rightly said, the risks to our chemicals industry, public safety and indeed economic performance are being imposed for no added value. I have pointed this out many times in the past four years in the various debates on this issue. We are trying to reinvent the wheel, but we do not have the resources to make sure that it is as robust as the wheel we are replacing.
Like my noble friend Lord Trenchard, I regret the need for us to have a separate REACH programme for Northern Ireland and GB—but for rather different reasons. We will have our own GB REACH, but Northern Ireland will be under the EU REACH regime. Both will operate independently, with exporters and importers between the EU, the EEA and Northern Ireland—with Great Britain on the other side—having to ensure that their relevant duties are met under both regimes. Can my noble friend the Minister outline the differences that we anticipate between the two regimes and how firms will be prepared for any such divergence?
The Government have introduced the Northern Ireland notification system, which is light-touch. I congratulate my noble friend the Minister on the decision to make this fee free, but could the option of equivalence possibly be revived? I recognise that becoming an independent sovereign nation offers theoretical opportunities to sweep away red tape, allowing free markets to flourish—but not on dangerous chemicals. What safeguards will there be for the first 300 days? GB importers have to submit information on substances that they import, but who will assess the submissions and how ready is the new UK REACH IT system to receive and assess them?
Finally, can my noble friend comment on the new regime, which requires no submission for consignments below 1 tonne? Also, for those between 1 and 10 tonnes, there will be no requirement to provide data safety reports or chemical safety report risk control measures— at least as far as I could see when I clicked on the requirements under the regime. What risks are potentially involved in omitting such information from consignments under 10 tonnes?
I urge the Government to reconsider their determination to abandon equivalence, and I hope that we will be able to look forward to continued success for our chemicals industry.
Viscount Hanworth (Lab)
My Lords, I am bound to recapitulate on much of what has already been said, but I shall do so with added asperity.
Of all the aspects of a hard Brexit, the decision to leave the European regulation on the registration, evaluation, authorisation and restriction of chemicals—known as REACH, of course—is one of the most gratuitous and damaging. It seems to have come about because of an objection to the role of the European Court of Justice as the ultimate arbiter of any disputes arising. However, it has rarely been called on to perform that role.
The decision to leave REACH appears to have been hapless and inadvertent. This was revealed when the Secretary of State and his Permanent Secretary appeared before the House of Lords EU Energy and Environment Sub-Committee. The two seemed to be under the impression that it would be a simple matter to cut and paste the contents of the European Union REACH database into a UK version. They had to be disabused of this idea. It was pointed out to them that the database contains proprietary information, much of which is subject to commercial secrecy. Moreover, there is often joint ownership of this information. Acquiring the information can involve complicated and protracted negotiations that are liable to impose restrictive undertakings on those who wish to be granted access to it. I recall that the Secretary of State turned to his civil servant adviser with a look of surprise and irritation. This was answered by a look that also seemed to signify surprise and which bore an implication of “mea non culpa”. We might have expected the Government to change course and reverse their decision to leave REACH, but that has not happened.
Recently, in its response to an inquiry by the Secondary Legislation Scrutiny Committee, Defra asserted that much of the necessary information is in the public domain and is readily accessible. This is untrue. Either it reveals a persistent misunderstanding of the matter, or it represents an attempt to bamboozle parliamentarians and others. I am unsure which of these two possibilities is worse.
The truth of the matter is revealed by the fact that the statutory instrument allows, in some cases, a full six years plus 300 days from the end of the transition period in which to supply full information to a GB REACH database. This implies a lengthy hiatus, during which time the nation will remain inadequately protected against harmful chemicals, including pesticides and the wide variety of endocrine disruptors that are now coming under increasing scrutiny.
The inadequacy of the putative GB REACH organisation as regards its staffing and financing is revealed by some startling comparisons. REACH is managed by the European Chemicals Agency, which is located in Helsinki. This organisation has more than 500 staff from 27 European countries. It has four scientific committees with experts from all member states, which raise concerns and supply it with information. The annual budget is €109 million and its database comprises 23,000 chemical compounds.
The UK’s Health and Safety Executive, which has been given the task of supervising the replacement regime, has so far recruited 40 staff and intends to recruit 130 in all. As we have heard, its budget will be £13 million. This organisation will in no way be comparable to the European system. It will be wholly inadequate for the task that it will face.
The UK chemicals industry is likely to be devastated by the Government’s policy to leave the REACH system. The cost to the industry of replacing EU REACH with a national UK regulatory agency has been estimated variously at between £450 million and £1 billion. In any event, it will be very large.
To be registered in the European Union, a British chemicals exporter will have to seek an alliance with a so-called “only representative” within the European Union, who will have to vouch for all of the necessary information that must be provided to EU REACH. This information is to enable REACH to determine which chemicals are in manufactured items and which are abroad in the environment. The proposed UK regulatory agency will not be capable of doing this effectively.
The EU REACH system is increasingly defining the international standards to which chemical companies worldwide are seeking to adhere. To remove the UK chemicals industry from that system is a backward step that will do the industry untold harm. Far from being a case of taking back control, which has been the leitmotif of the proponents of Brexit, this will be a case of losing some of our former influence in international affairs. It is tragic to be reminded that the UK played a major role in creating the EU REACH system.
Lord Lucas (Con) [V]
My Lords, I very much hope that, in rebuilding REACH to our own specifications, the Government will take advantage of all the innovation that has been taking place in the computational prediction of toxicity so that we end up with a cheaper, faster system that hurts many fewer laboratory animals. I would like to see the UK develop as a centre of excellence for such technology, with the need to recreate REACH providing a flow of business that allows such excellence to develop.
I also hope that we will avoid some of the idiocies of the European system. I do not share the approbation of the noble Lord, Lord Cameron of Dillington, for that system. To use a particular chemical as an example, ammonium sulphamate is an extremely useful herbicide because it decays into fertiliser and has no toxic residues. The European Union’s pesticides review led to herbicides containing this chemical becoming unlicensed in 2008, because the Irish rapporteur refused to review the data supplied unless it contained details of animal testing on dogs. As there was already substantial animal data in the package supplied, the data holder felt that further tests without substantiation would cause unnecessary animal suffering.
I find that attitude extraordinary, as I do the European Union’s attitude to, say, asulam, which is a much more dangerous chemical but which has incredibly useful properties. It kills bracken and dock but almost nothing else, so if you are trying to prevent a really precious collection of plants from invasion by bracken, it is so much better than any of the alternatives—but the European Union has proved extremely difficult in allowing it to be licensed, in a way that has not happened at all in the United States. And of course the greatest example of European idiocy has been its attitude to glyphosate. So I really hope we will get to a situation where we can take a much more rational and holistic attitude to chemicals than appears to have been possible in the European Union.
In terms of making this a process which works and which we can be confident protects our citizens, for low-use chemicals which are not known to be particularly dangerous, surely we can just look across the water and say, “What they do in the EU? What do they do in the US? Have they raised substantial concerns about these chemicals?” If not, let us just rely on all the work that has been done in the EU, the US and elsewhere, and not obsess about repeating tests, particularly if we are requiring tests on animals, and allow the system in the UK to evolve at a sensible pace, which does not require a lot of people to relicense chemicals at great cost when there is no obvious benefit to us or to them.
Lord Rooker (Lab) [V]
My Lords, I know that we cannot have normal debates virtually, but I have to say that that last suggestion from the noble Lord, Lord Lucas, was an absolute disgrace. It would be the end of any chemical companies in Great Britain—the United Kingdom—exporting anywhere else if we were known to have such a lax effort in regulating as not doing any work and just looking at what others are doing. I am afraid that that is simply not good enough.
I should declare an interest in the sense that REACH came into force in 2007, during my period at Defra between 2006 and 2008. In fact, it occasioned one of the very rare visits I ever made to Brussels. I also served on European Union Sub-Committee B under the noble Lord, Lord Teverson, and of course I was present when the Minister of State, Thérèse Coffey, and the Secretary of State, Michael Gove, turned up not really knowing what the hell was going on. I do not think they had read any of the briefings.
I challenge the Minister to say whether he has ever read the Lords committee report on Brexit chemicals regulation. It was published before he came into the Lords, of course, but there may be a reference to it in his briefings. It would certainly be worth a read, because we now seem to be producing a new system, at the cost of £1 billion, for nothing new—and it will be a second-rate system that puts people in this country at risk, because chemicals will be offloaded on us during the 300-day period.
The noble Lord, Lord Cameron, gave us a list of some of the examples of what chemicals are used for. The fact that we have use of more than 23,000 chemicals makes you wonder what they are for. I can tell you about one key chemical that puts at risk the supply of clean water in the UK. We need chemicals to produce clean water. Those chemicals come from the EU. Therefore, this is a really serious issue. Notwithstanding that, as has already been said, it is our second largest manufacturing sector; there are almost 100,000 jobs in the United Kingdom involved in this industry; and we are virtually destroying our opportunities for growth in exports by going along with a second-rate system by pulling out of REACH.
This was all known about. There are no surprises in any of the issues being raised today. It was all detailed during the first inquiry of your Lordships’ Sub-Committee B on Energy and Environment. It was never really taken seriously by Defra—I am not criticising the individuals or the HSE, but I can tell you that the HSE would not be suffering as it is now if the likes of Geoffrey Podger were still the chief executive. This is not a criticism of individuals, but I feel a lack of confidence because the system has been allowed to go into decline. There has been a lack of awareness of safety, whether it is in checking our factories, our pesticides or now our chemicals. We are clearly not ready for leaving the REACH regime on 31 December. Our people will be put at risk.
We might as well not beat about the bush. There is no easy answer to this, and it is not, as the noble Lord, Lord Lucas, said, simply relying on what others have regulated while we allow a free for all in this country, which is what will happen under the 300-day limit. I am full of foreboding, because this is one of the great areas which this House has debated more than once, it is not politically sexy to anybody, it sounds boring and technical, yet there is virtually no walk of life, no product—food, clothing, furniture or anything else—in this country that does not require the use of safe chemicals. We will not get that under the second-rate system that the Government are imposing on the United Kingdom.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I will start on a positive note. I welcome the agreement in principle that the UK and EU have reached on the Northern Ireland protocol dealing with Northern Ireland border checks. Can my noble friend say what impact that will have on the regulations before us today?
I thank my noble friend for bringing the regulations before us and for his comprehensive explanation of them, but the noble Baroness, Lady Hayman of Ullock, has done a great service to the House by moving her amendment to the Motion, highlighting many of the issues raised and unresolved in the 34th report of the Secondary Legislation Scrutiny Committee. I urge my noble friend to answer those concerns when he sums up the debate.
On 19 November, the Secondary Legislation Scrutiny Committee reported that it had not seen an impact assessment. My noble friend said that the department produced one in 2019. When might he publish that and might he revise the conclusion reached in paragraph 12.1 of the Explanatory Memorandum to the regulations:
“There will be positive impacts on business, charities or voluntary bodies”?
I would like to see what those impacts are. The memorandum goes on to say:
“This instrument will mitigate potential disruption to chemical supply chains for GB companies.”
I do hope that that is indeed the case.
The amendment to the Motion states that the additional costs and administrative burdens for United Kingdom businesses are a matter of regret, as is creating
“unacceptable risks around the availability of chemical safety data.”
We know, as others have said, that the chemicals industry is the second biggest manufacturing industry after food and drink. More than 50% of the companies in the British Coatings Federation are UK-owned and 70% are SMEs. They have a highly integrated supply chain with the EU, so there is significant EU-UK trade, and it is obviously important for human and environmental health.
I am fairly agnostic about REACH, but will quote some of the evidence we heard under our excellent chair the noble Lord, Lord Teverson, in the EU Environment Sub-Committee, on which I am privileged to serve. The Royal Society of Chemistry said that there is a
“lack of capacity of fully scientifically trained staff at the necessary levels to be able to fully operate a UK REACH.”
Therefore, it has to be asked whether the Chemicals Regulation Division will have the capacity to deal with a high workload for UK REACH from 1 January.
The Chemicals Industries Association said that there is a requirement for “hiring of new staff” who are very “specialised”, namely
“toxicologists, ecotoxicologists, experts in risk assessments, economists, chemists and so on.”
The Chemical Business Association said that
“The HSE has virtually complete control over the operation of the UK’s new regulatory regime”,
yet the whole
“Industry has doubts about the competence and the capability of the HSE to discharge this role.”
CHEM Trust said that there is a
“massive risk that the UK system has much less information and expertise in it.”
I fear that the dual regime we will have, with many in the chemicals sector wanting to register for both UK REACH and ECHA, will damage the ability of the UK chemicals industry to compete, and threaten the viability of future product lines, as we were told in the EU Environment Sub-Committee. I hope my noble friend puts my mind at rest. I ask him to answer two questions. The money that we established for the cost of this exercise alone will be approximately £1 billion. Would that not be better spent on improving, maker safer and more environmentally friendly the chemicals that the industry is producing? He will be aware that many in the chemicals industry want to move their production outside GB to access the wider EU market. What will that cost and how does he hope to prevent such a move?
Lord Hunt of Kings Heath (Lab)
My Lords, like my noble friend Lady Donaghy, and as a former Minister for the Health and Safety Executive, I am a great admirer of the organisation and its proportionate approach to regulation. But it must have the time and resources to do its job properly. If it were given them, I would have every confidence in it. It is clear from all the evidence that we have heard, and in the submissions to the Secondary Legislation Scrutiny Committee and the committee of the noble Lord, Lord Teverson, that that is not the case.
Like the noble Baroness, Lady McIntosh, I was pleased to hear a few minutes ago about the agreement between the EU and the UK Government about arrangements for Northern Ireland. That is good news indeed, but the SI before us shows some of the huge drawbacks of Brexit. We are ensuring that Northern Ireland continues to enjoy the benefits of regulations under the EU REACH programme, whereas we are entering uncertain waters with an industry that is crucial to this country and its economic prosperity.
We have already heard that the Secondary Legislation Scrutiny Committee is concerned about the impact and costs of the new domestic REACH regime. A number of noble Lords have already asked the Minister about the impact on industry and the overall costs. When you align that to issues over the supply chain, what is the Government’s strategy to ensure that this industry continues to prosper and thrive in this country and does not move production into the EU?
On the preparedness of the HSE to start the new regime in a few days, we have already heard that the amount of money being given is limited. It is apparent that few of the people it wishes to employ will be ready to start work on 1 January. One hardly gets a sense that it will be good to go then. In his introductory remarks, the Minister referred to this as a “light-touch” regime—but it is a no-touch regime, because the HSE has no capacity to take over on 1 January. A legitimate point to put to him is: what on earth is going to happen in the first few weeks and months of the new regulatory regime? He had very little to say about that at all.
I was interested in comments in our briefings from the Alliance for Cancer Prevention, Breast Cancer UK and the Cancer Prevention and Education Society. They are concerned about the impact of harmful chemicals on the environment and public health. The point that they make is that GB will become a dumping ground for chemicals and products that do not meet EU regulations, without a mechanism for matching EU controls on chemicals and without access to the European database. That seems a relevant consideration.
We have heard a lot from noble Lords who embrace Brexit with enthusiasm, but without much evidence, on the benefits of the new light-touch regulatory regime. I am afraid that, all too often, a light-touch or no-touch regulatory regime leads to lower standards and the dumping that the health organisations are concerned about. I would like to hear from the Minister what the Government are going to do to protect us from that. Even now, it is pretty obvious that we should stay aligned with the European agency. It is the obvious course of action, at least during a transitional phase.
Finally, I come back to this hugely important industry itself. What support will be given for it to override some of the costs it will incur and to encourage it to stay in the UK? This is crucial.
Lord Whitty (Lab) [V]
My Lords, I will try not to repeat too many points about the lack of preparedness or resources for the HSE which colleagues have made, or to emphasise that, by trying to solve one problem in extending the deadlines, another has been created in making safety standards less strong. I will concentrate on other points. I very much support the regret amendment in the name of my noble friend Lady Hayman. I do that in a literal sense, because I regret that we are where we are, when we do not need to be.
There was a point in the ongoing Brexit saga, and I have taken an interest in this for a considerable time, when I thought that I was on the same side as the Prime Minister—not the present Prime Minister obviously, but Mrs May. Colleagues with long memories will remember that I made a bit of a nuisance of myself in the debate on the EU withdrawal Bill in 2018 about EU agencies. The Government rejected my general case but, in her Mansion House speech, Mrs May recognised three exceptions where we needed to continue a clear relationship with European agencies: medicines, aviation and the European Chemicals Agency. I agreed with that aspect of Mrs May’s approach and, had those negotiations proceeded, we might have had a sensible withdrawal agreement and could have at least maintained some degree of associate membership of ECHA and REACH.
I ask the Minister if there is still some hope. We have heard of progress from Brussels, but have not yet seen the details. The Secondary Legislation Scrutiny Committee was informed of a “chemicals annexe”. Does that exist? Can we see it? Does it come into force if there is a deal? This morning, the newspapers listed a number of potential sub-agreements, but they do not include chemicals. They include aviation and medicines. Are there sub-agreements that come into force if we reach a deal in the next couple of days? If we do not reach a deal, what will apply then? Parliament will want to see that annexe sharply, and we need to ensure that it meets all the anxieties about the dual registration process, the costs, disruption and delay for what is an expensive, legally complex and restricted system.
Part of the reason for this amending SI is to reflect the situation in Northern Ireland and a protocol which, I understand, may in essence still be in being. The situation is even more confused by duplicate registration than it is for GB. The HSE is a GB organisation, and there is a separate health and safety executive for Northern Ireland, which has legal status over there. It does not appear to have any role to play in Northern Ireland, because Northern Ireland will remain part of the single market in that respect, and in the EU regulatory structure. That will mean that businesses in Northern Ireland, whether or not they trade with the rest of the EU, or even with the Republic of Ireland, will automatically have to have dual registration. Most of those businesses may be subsidiaries, suppliers or customers of GB-based businesses but, for Northern Ireland business, and for trade between Northern Ireland the rest of the United Kingdom, there will have to be dual registration. Therefore, the cost falls more on Northern Irish businesses than on businesses on the mainland.
We have to remember that many of these businesses are relatively small. As the noble Lord, Lord Cameron, explained, sectors or industries that use chemicals, such as those dealing in furniture, toys and paint, are dominated by relatively small companies. That applies in Northern Ireland as well. The Northern Irish situation will not be resolved by the endorsement of the protocol in any agreement, if it is then complicated by the double structure of regulations, which will hit all firms in Northern Ireland, not just the main chemical manufacturers. It will also cause an issue between Northern Ireland and Great Britain at the ports.
The disparaging remarks of the noble Viscount, Lord Trenchard, and the noble Lord, Lord Lucas, about REACH were uncalled for. There were some hiccups in the development of this system but, by and large, it has now been accepted by the chemicals industries and by most user groups and environmental organisations. We depart from it at our peril; we will have to parallel it, and there is a cost to that which these regulations do not resolve. I support the regret Motion.
Lord Fox (LD)
My Lords, at the start of this debate, the disembodied voice of the Minister floated out over the Chamber. I was reminded of an airline pilot seeking to calm his passengers as unwelcome noises came out of one or two of the engines. Here, in the economy seats of the cabin, anxiety remains high—and, indeed, following this high-quality debate, it is probably higher. Whether through complacency, underestimation or shortage of resources, it is clear that Defra and Ministers have taken an iterative approach to this issue, with statutory instruments following statutory instruments. There have been tweaks and improvements along the way, and we should welcome those.
In essence, the long and detailed speech that I made when the first of these statutory instruments was introduced remains true. Then, as now, the Government played deadline roulette. They introduced deeply unsatisfactory secondary legislation just before it might be needed and dared the opposition to stymie or kill it. This is not the best way to get regulation right. I will not repeat the issues set out by the experts in today’s high-quality debate, but it was amazing to hear a Conservative Minister flow over the idea that one of the most important industries in this country will be burdened by £1 billion of extra costs with no benefit whatever. Here is growth that will not happen, taxes that will not be paid and public services that will not be supported. It is absolutely insane that we countenance this approach.
As your Lordships have heard, the big cost is in data, or in the prospect of having to duplicate data merely to re-register chemicals that are already legal in this country. At one point, we had hoped that the Government would seek associate membership of ECHA, but this seems not to be the case. It is disingenuous for the Minister to try to separate UK REACH from this statutory instrument. This SI is, de facto, a central part of UK REACH and it is, therefore, perfectly legitimate to have this wider debate today.
It seems clear that no kind of data sharing will happen on 1 January, with or without a deal. As we heard from the noble Viscount, Lord Hanworth, the Government have said that it will be supplemented by publicly available data. Like the noble Viscount, I contend that using public data is a non-starter. It is just not adequate for implementing controls or for defending those controls against litigation, which is what will happen. In the event that data is not rolled over, the Government have also said that animal testing of substances already registered under EU REACH will not have to be duplicated under UK REACH. However, if we get to the end of the grandfathering process and companies wishing to register chemicals have not had access to these data, either the HSE will have to lower its data standards or new data will have to be generated. Which do the Government prefer: less data, and therefore less safety, or new data, which will inevitably lead to more tests, some of which will be on animals?
Divergence will be a massive burden on industry. The EU recently announced a big reform of its chemical safety laws, which will lead to a rapid divergence between where we are now, with UK REACH, and where the European situation will be. What is the Government’s view about divergence? Will they actively seek to track the EU, or will they simply head off in the opposite direction? If it is the latter, the situation in Northern Ireland will become even more untenable and harder to manage. I had prepared a detailed description of how difficult things would be in Northern Ireland, but I shall forgo it and refer your Lordships to that given by the noble Viscount, Lord Trenchard. If he and I both think it will be total chaos, there is a fair chance that it will be.
The position of the HSE and its ability to regulate the chemicals market in this country is clear. It will not have the firepower it needs to deliver the safety it needs and support to industry it needs or do what this country needs to have a safe, functioning chemicals industry. This is a mess of the Government’s making. Your Lordships have tried to sort this mess out in the past, and there have been improvements. Whether or not we vote for this regret amendment, the Government have to go back and think again. The passengers in the aircraft are anxious, but that anxiety may not be irrational; it may be a rational response to a real problem that will create great difficulty for one of our most important industries and for a product that affects and touches everybody, every day and all the time in the United Kingdom.
Lord Goldsmith of Richmond Park (Con) [V]
My Lords, not surprisingly, REACH never fails to generate high levels of interest in the House, and today is no exception. We have had a wide range of contributions. A number of questions have been asked, and I will do my best to answer as many as I can.
First, I turn to the Motion in the name of the noble Baroness, Lady Hayman of Ullock. The Motion indicates that it is based on the report of the Secondary Legislation Scrutiny Committee and, like that report, it is concerned more with the wider issues of chemicals regulation than with the SI in front of the House today. As such, I suggest that its regrets are somewhat misdirected.
The Motion regrets that these regulations fail to provide an analysis of the cost of the UK REACH regime, but this SI is not setting up the UK REACH regime; that was done by the REACH etc. (Amendment etc.) (EU Exit) Regulations 2019, which the House considered last year. As I said in my opening speech, we published an impact assessment alongside those regulations. All that the present SI is doing is making amendments to provide for the Northern Ireland protocol to change some of the transitional provisions to extend deadlines for the date of submission and update some cross-references. We have not provided an analysis of the cost of UK REACH alongside this SI because it would not reflect what the SI does.
The Motion also regrets that this SI introduces additional costs and burdens for UK businesses; the noble Lords, Lord Fox and Lord Cameron, and others also raised this concern. That is the opposite of what the SI does. It reduces costs and burdens. Extending the transitional deadlines will enable businesses to spread the administrative load over seven years instead of two. They can prioritise the highest-volume and highest-risk chemicals, and they will have time to agree the best terms for the continued sharing of the data on chemicals that is necessary for both UK and EU REACH.
The provisions for the Northern Ireland protocol also put in place the minimum level of burdens that are compatible with the protection of human health and the environment. Northern Irish producers will be able to access the GB market on the basis of a light-touch notification without having to follow it up with full registration.
The Motion also regrets that the SI creates unacceptable risks around the availability of chemicals safety data. The noble Baroness expressed concern about the cost to businesses and called on the Government to reduce them. That is what we are doing in this SI, but then, when we do reduce costs, she says we are creating unacceptable risks instead. The noble Baroness cannot have it both ways.
I agree with her and with the noble Baroness, Lady Donaghy, my noble friend Lord Lucas, and the noble Lords, Lord Fox and Lord Teverson, that the Health and Safety Executive’s ability to take on the tasks of the agency is essential to the success of UK REACH. The HSE is very well-placed to be a success in that role, as we have stressed many times. Remember that the HSE and the Environment Agency have played a very active part in EU REACH over the years, taking on some of the most complex substance dossiers.
The HSE has mapped the regulatory drivers and the likely workload, and so it understands what its priority tasks will be. For example, it will be handling applications for authorisations, and is aware that it may receive upwards of 10 applications in the first year. On the back of this, it has focused on outlining the process for authorisations and will have recruited key staff, such as occupational hygienists, to work on the authorisation process. It is also identifying independent scientific experts who will be involved in the development of opinions on authorisation applications.
There was the issue of so-called in-flight authorisations —that is, applications that the EU will not have finished dealing with by the end of the transition period. We dealt with that in regulations last year. There was the issue of the potential costs to businesses. That is why we are negotiating for an approach to data sharing with the EU and why the SI before the House today extends the deadline for data submission. There were concerns about the duplication of animal testing. That is why the last-resort principle is enshrined as a protective provision in the Environment Bill. I could go on.
I would like to try to get through as many of the questions that were asked in the debate as possible. A number of noble Lords, including notably my noble friend Lady Altmann, the noble Baroness, Lady Donaghy, and the noble Lord, Lord Teverson, raised the issue of standards and levels of protection after the end of the transition period, a point also raised forcefully by the noble Lord, Lord Rooker. It will remain a core purpose of REACH to ensure a high level of protection of human health and the environment. The duties and obligations on industry are carried into UK REACH unchanged. This includes the principle that it is for businesses to ensure that they manufacture, place on the market and use chemicals that do not adversely affect human health and the environment.
REACH will also continue to be underpinned by the precautionary principle. We have included provision in the Environment Bill to be able to amend REACH to prevent it from being frozen in time. In answer to both the noble Viscount, Lord Hanworth, and the noble Lord, Lord Hunt, we have deliberately included a range of safeguards. Any amendment to REACH must remain consistent with its aims and principles. We have listed over 20 protective provisions, such as those overarching aims and principles that cannot be changed. I hope that is an indication of our commitment.
My noble friend Lord Lucas referred to alternatives to animal testing, particularly the scope for using computer modelling to predict chemical hazards such as toxicity. The noble Baronesses, Lady Hayman and Lady Donaghy, made the same point. I strongly agree with them about the opportunity here. We do not support animal testing unless it is unavoidable. A range of alternative approaches is available, including computer-based quantitative structure activity relationship models, or QSARs. Under EU REACH, the UK was the member state that consistently pushed for the most rigorous application of the last-resort principle by industry and regulators. Under UK REACH, we will no longer be held back by more reluctant players and will be well-placed to encourage the appropriate use of alternative methods of assessing hazard.
My noble friend also spoke about various products such as ammonium sulfamate, asulum and glyphosate. I should note that, as herbicides, these are regulated under separate plant-protection product legislation rather than REACH. From next year we will be taking our own independent decisions in Great Britain on which pesticides can be used, and of course I hope we can move continuously towards reducing our use of such chemicals.
My noble friend Lord Trenchard spoke about the possibility of divergence from EU REACH and was in favour of it, unlike other noble Lords in this debate today. REACH is frequently seen as a gold standard and we have no intention of diverging from the EU just for the sake of it. Equally, we should not allow UK REACH to become frozen. That is why we have made provision in the Environment Bill to enable us to amend it.
There may be good reasons for taking a different approach on different substances to reflect our circumstances here, but that does not mean reducing standards or levels of protection. For example, the UK has been at the forefront of opposing animal tests where alternatives exist. We have already discussed the last-resort principle, and we could be far more rigorous in applying that principle in future. Another example concerns Poland’s proposal to the EU to ban the use of methanol in windscreen-washing fluids because of its abuse by Polish alcoholics. That may be sensible for Poland, but it is not something that applies in this country. We can make sure that UK REACH remains up to date and operates in an effective and efficient manner that works for us, but we can do so in a way that is flexible.
The noble Lord, Lord Cameron, argued that we should try to remain as aligned as possible with EU REACH, taking a somewhat different position. As I said, we have no intention of diverting for the sake of it but there may be circumstances where it makes sense for the United Kingdom. Under UK REACH, companies will still need to know about the properties, hazards and potential risks of the chemicals that they manufacture and place on the market. This means that industry will not have to develop different sets of data for use with UK REACH and EU REACH.
The noble Lord, Lord Fox, raised a number of issues that I have already addressed in response to the noble Baroness, Lady Hayman, and others. On costs, an issue also raised by the noble Baroness, Lady Donaghy, the main cost for businesses is in accessing the data that they need to support their registrations, but there is considerable uncertainty about what the costs may be in practice. The Chemical Industries Association and Cefic, the EU organisation representing chemicals manufacturers, have jointly recommended that consortia should restrict charges to administration. One of the purposes of the changes in this SI is to provide time for industry to reach sensible agreements around data and cost sharing.
With regard to the need for data, UK REACH maintains the core principle of “no data, no market”. That principle is necessary; it is the means by which the regulator can check that companies are properly meeting their duty to ensure the safe management of chemicals. It also provides assurance to the public that businesses understand the hazards and risks of the chemicals they are using and know how to manage them.
The noble Lord also spoke about the HSE’s preparedness, a point echoed by many noble Lords, including the noble Lord, Lord Teverson. I am confident that the HSE is well-placed and equipped to carry out its role as the agency under UK REACH. The Environment Agency is equally well-placed to assist HSE by providing expert advice on environmental matters. Defra continues to provide additional resources to the Health and Safety Executive and the Environment Agency. The HSE is currently recruiting, in total, 130 extra staff to cover the transition to the UK system across all the chemicals regimes that it operates, including scientists and, as I said earlier, occupational hygienists. Forty of these extra staff are being recruited specifically for REACH. The Environment Agency has also increased its resource, with an additional recruitment plan for early 2021. My noble friend Lady McIntosh also asked about the HSE’s ability to cope. As I say, Defra continues to provide additional resources to the HSE and the Environment Agency, which are, as I have explained, busy frantically recruiting.
The noble Lord, Lord Whitty, asked a number of questions, many of which I have already addressed. He asked for an update on negotiations and their implications for the discussion that we are having today. I am afraid I am not in a position to do that; I can only apologise. I can tell him that the enforcement function in Northern Ireland is the HSE Northern Ireland.
Putting aside the wider issues that have—quite legitimately—been such a dominant feature of the debate, I must however return to the SI in front of the House. As I said earlier, it is simple but necessary. Without it, the UK would not fulfil its obligations under the Northern Ireland protocol. We would also not fulfil the commitment that we made to the House in March 2019 to keep the data deadlines under review and then to take further steps as appropriate. I commend the SI to the House.
Baroness Hayman of Ullock (Lab)
My Lords, I tabled my amendment today so that this House could demonstrate to the Government the very real and serious concerns about the proposed REACH regulations and the failure of the Government, so far, to act and listen. I thank noble Lords for their support. It has been an interesting debate and I have been pleased to hear from many Members, including the noble Lord, Lord Teverson, for his expertise on the whole matter and the noble Lord, Lord Cameron of Dillington, on how we are leaving the best system in the world and the huge costs that this will create.
My noble friends Lady Donaghy and Lord Hunt of Kings Heath talked about the problems of the HSE, but also their support for it. Nothing I said was intended to criticise the HSE, rather to demonstrate how it needs to be more prepared for its new role. The noble Baroness, Lady Altmann, talked about how the changes being made bringing unnecessary risk without adding value. My noble friend Lord Hanworth and the noble Lord, Lord Fox, clearly explained, in some detail, why the domestic system is so difficult. My noble friend Lord Whitty mentioned the need for associate membership of the European Chemicals Agency; it is deeply disappointing that this has not happened.
The Minister really has not answered the many concerns raised. This Administration have their head in the sand. However, I beg leave to withdraw my amendment today, as this is but a small part of the larger regulations. There will be opportunities to consider the matter further during debate on the Environment Bill.