Draft REACH (Amendment) Regulations 2023
(11 months, 3 weeks ago)
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The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Rebecca Pow)
I beg to move,
That the Committee has considered the draft REACH (Amendment) Regulations 2023.
It is a pleasure, as ever, to have you in the Chair, Sir Graham. The draft regulations were laid before the House on 20 April and amend UK REACH, the UK regulation on the regulation, evaluation, authorisation and restriction of chemicals, which is one of the main pieces of legislation that manages chemicals in Great Britain.
In line with the European Union (Withdrawal) Act 2018, UK REACH retains both the fundamental approach and key principles of the EU REACH regulation, with its aims of ensuring a high level of protection of human health and the environment. The statutory instrument introduces two changes. I can assure the Committee from the outset that those changes do not affect the key principles and that UK REACH will continue to provide the highest levels for protection of human health and the environment.
First, the SI amends the deadlines in article 127P(4B) of UK REACH for the submission of information to the Health and Safety Executive, extending them by three years. That applies to grandfathered registrations and chemicals being imported from the EU under the transitional arrangements. Industry will have to submit technical information—that is, the full data package—on the hazards and risks of substances by 27 October 2026, 27 October 2028 and 27 October 2030, depending on the tonnage and toxicity of the chemical. Those dates are changed from 27 October 2023, 27 October 2025 and 27 October 2027 respectively. The most toxic and hazardous chemicals will be in the first tranche that will be required to be registered.
The changes are needed as part of my Department’s work to address the significant potential cost of obtaining or accessing the full hazard information required to meet UK REACH registration requirements. Those costs are estimated to be between £1.3 billion and £3.5 billion, which represents a major concern for the industry as it will be a significant financial undertaking for businesses in Great Britain transitioning to UK REACH. We recognise business concerns, which is why we are working really closely with business and engaging with all stakeholders to develop an alternative transitional registration model for UK REACH.
We are working with the industry and non-governmental organisation stakeholders to find a solution that will reduce the costs associated with obtaining hazard information while still ensuring that they are responsible for the safe use of chemicals throughout the supply chain. The model we are developing aims to reduce the need for businesses to access or obtain expensive EU REACH data packages and will place more emphasis on improving our understanding of the uses and exposures of chemicals in the Great Britain context—that is, on making it much more specific to our market and our needs. Extending the deadlines will provide certainty to industry so that it can avoid making unnecessary investments in obtaining data while the Government continue to develop and implement an alternative approach.
The second change is that the SI will move the timelines for the HSE to complete its compliance checks to ensure that the information submitted by industry is of sufficient quality. The changes will now align with the extended deadlines for submitting data to the HSE. That is necessary because the deadlines for compliance checking, as set down in article 41(5) of UK REACH, would otherwise fall before the amended dates for submitting the relevant information. Basically, it just links everything together.
The HSE will now have to complete its compliance checks by 27 October 2027, 27 October 2030 and 27 October 2035, corresponding to the three extended submission deadlines. This is the first time we have prepared an SI using the powers to amend REACH that are set out in schedule 21 to the Environment Act 2021. Some colleagues present served on the Bill Committee for that Act and will I am sure remember that.
We have followed all the safeguards that we attached to the powers. In doing so, we sought and obtained consent from the devolved Administrations of Wales and Scotland; consulted widely with our stakeholders and interested parties on our plans to extend the submission deadlines; and published a consistency statement, as required by the 2021 Act. Our aim was to provide the Committee with the necessary assurance that extending the submission deadlines is consistent with article 1 of UK REACH. We will continue to ensure a high level of protection of human health and the environment.
James Gray (North Wiltshire) (Con)
Am I right in thinking that the redesign of the registration process that my hon. Friend is currently considering, which the three-year extension will allow her to bring into play, will not diminish the levels of care for the environment or, indeed, for human health, but rather enhance them, and that the whole purpose of the redesign is to do that?
Rebecca Pow
My hon. Friend is very astute. In no way will we reduce any of the protections—we have to make a statement to say that we will not do that—and this change does give us an opportunity to work with the industry to look at the kind of data it provides and its knowledge of the chemicals, as well as to focus on how we use those chemicals and the actual exposure for our own population, because it is different in different countries. It should provide us with a really focused understanding and knowledge of the chemicals that we place on the market—of course, each company is responsible for the chemicals it places on the market.
As I said, we laid the statement, as required by the Act, to provide the Committee with the necessary assurance that extending the submission deadlines is consistent with article 1 of UK REACH. We will continue to ensure a high level of protection of human health and the environment.
As we outlined in the consistency statement that accompanied the public consultation, our assessment demonstrates that overall the UK REACH regime will still be able to ensure a high level of protection of human health and the environment because of the information on and knowledge of chemicals registered under EU REACH that is available to HSE and Great Britain registrants; because importers from the EU will continue to receive EU REACH-compliant safety data sheets from their EU suppliers, which will enable them to identify and apply appropriate risk-management measures; and because of the HSE’s ability to seek risk management data from other sources—there are sources other than the EU system—if necessary, as it did when acting as a competent authority under EU REACH. That seeking could include things such as calls for evidence and using data from EU REACH and other relevant sources that can provide Great Britain with specific hazard and exposure information.
Alongside the public consultation, we also published a full impact assessment on extending the deadlines, which I am pleased to say was awarded a green fit-for-purpose rating by the Regulatory Policy Committee. The Joint Committee on Statutory Instruments has formally considered this SI without comment. The territorial extent of this instrument is the United Kingdom, and the devolved Administrations were engaged in its development and are content. I am confident that the provisions in the regulations mean that we will continue to ensure the highest levels of protection for human health and the environment.
Sir Oliver Heald (North East Hertfordshire) (Con)
As my hon. Friend will know, I have the headquarters of Johnson Matthey, a major environmental business, in my constituency. Is it not right that the instrument will give duty holders the right amount of time to prepare and submit full dossiers for all the substances that need to be registered, and will therefore have a positive effect in terms of better regulation?
Rebecca Pow
I thank my right hon. and learned Friend for that. It is a really significant industry in his constituency, and he is right to speak up for it. I am sure that he has engaged with industry, as we have, because we have to make this work. It is a huge industry for Great Britain—a £30.4 billion industry. The industry has worked with us, and was very positive in the consultation about wanting the extension of the deadlines. We are already working with various key companies to work up some dossiers with individual companies to see how it could work. We will learn a lot from that, and we obviously need this time to work our way through that and see all the different impacts and costs, what sort of information they need to provide, and how they are managing to do that. My right hon. and learned Friend is right, and I thank him for that question.
I am confident that the provisions in the draft regulations mean that we will continue to ensure the highest levels of protection of human health and the environment based on robust evidence and strong scientific analysis. At the same time, we are taking steps to provide industry with the legal certainty that it needs to operate and to preserve the supply chains for the chemicals that we depend on. I will leave it there for now.
Ruth Jones (Newport West) (Lab)
It is a pleasure to serve under your chairship, Sir Graham. I am delighted to say a few words about chemicals and chemicals regulation as we consider the draft regulations before the Committee. It is important to say from the outset that we will not oppose the SI, but before everyone heads for the hills there are some important points that we need to raise and questions that need to be answered.
The SI pushes back the existing deadlines for the registration of data by three years, all dependent on the tonnage and hazard profile of the relevant substance. The earliest deadline is for substances imported or produced at the highest tonnage band per year—that would be 1,000 tonnes or more—or indeed those that fall into certain hazard categories, such as carcinogens. The SI also extends the deadline for the UK regulator, the HSE, to complete compliance checks for 20% of registrations in line with the new deadlines, as the Minister has outlined.
We acknowledge that in many ways this is a technical instrument, but there is a wider point about chemicals regulation in the UK, and we need to take a moment to look at what the SI means for it. The SI is well overdue, as is a debate on chemicals regulation. I will take the Minister briefly through my concerns, and those of campaigners and stakeholders such as CHEM Trust. I pay tribute to Chloe Alexander and all her colleagues for the brilliant work that they do to keep these matters at the top of our agenda.
This is the second time that the Minister’s Department has pushed back deadlines for companies to submit safety data on substances also registered in EU REACH. The first delay was due to the REACH Etc. (Amendment Etc.) (EU Exit) Regulations 2020, which extended the deadline from 31 December 2022 to the current staggered deadlines of October 2023, 2025 and 2027, as we have heard. Like the 2020 Regulations, today’s statutory instrument has been drawn to the special attention of the House by the Secondary Legislation Scrutiny Committee, which raised concerns about the deliverability of the new model within current timeframes. There were also important concerns from experts and our partners in relevant NGOs about a potential weakening of protections of human health and the environment, and the HSE’s capacity to carry out its regulatory function in this area. It would be really helpful if the Minister would address those concerns specifically and share with the Committee what she plans to do about them.
Secondly, the Opposition understand the reasons for a further delay, which responds to industry concerns about the cost and practicability of providing the data within the current timeframe, and to allow time to develop an alternative transitional registration model. However, there is uncertainty about the alternative transitional registration model under development and its viability. The vital principle of “no data, no market”, which lies at the heart of good chemicals regulation, continues to get kicked down the road, increasing the risk of unsafe or inadequately assessed chemicals on the market. Does the Minister share my concern that that may provide not only less protection and fewer improvements—which are in the pipeline at the EU level—but less protection than the model it replaces? While we rightly honoured the vote of the British people, Ministers must make Brexit work and, as the SI makes clear, on REACH and chemicals they are missing in action at present.
The impacts on human health and the environment from this delay have not been effectively mitigated. That could be done by adopting risk management decisions during the transition period. Those mitigations would have maintained access to the full data and provided an ability to evaluate the risks properly. Why did we not do that? What discussions has the Minister had with our colleagues in Europe on that?
Another concern on these Benches is the fact that the United Kingdom is already falling behind and diverging from EU protections of hazardous chemicals, due to a lack of data and resources in the UK system. REACH worked and kept us safe, and even now, several years after the British people voted to leave the EU, we still have no plan to match the scale and pace of proper and thorough chemical regulation.
It is clear to me and many campaigners that measures are needed to minimise divergence and close the protective gap to avoid the dumping of products on the UK market that no longer meet the higher EU standards. Thanks to this Government, our waterways and town centres face a waste crisis, but we cannot have a chemical waste crisis too. I would like the Minister to explain in detail what steps she has taken to ensure that the UK does not become a dumping ground. That is very important, and I hope that she will give it some time in her response.
Reviews have been conducted by the National Audit Office and the Public Accounts Committee of this House. Both reviews 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. I am increasingly concerned about regulatory capacity, as UK REACH is selecting fewer substances for control than the EU, which is resulting in the UK falling behind EU protections for the environment and human health. This is not just about our membership of the EU or trying to fight old battles; it is about protecting the health and wellbeing of our people right across the UK.
The lack of capacity in the UK system—of staff as well as data— to match the scale and pace of EU REACH is resulting in the UK considering fewer and weaker protections against harmful chemicals, and at a slower pace. That may be exacerbated by an ideological interest in less or more light-touch regulation, as well as the UK exercising its new ability to take a different or distinct approach because it can—simply put, divergence for the sake of it. That may seem like smart politics, but it is not, because the UK falling behind those protections will have a real impact on the lives of people across the UK.
So far, UK REACH has initiated just two restrictions, which are not yet in force, on hazardous substances since the UK exited the EU, compared with six adopted in the EU and another 20 that have been initiated. Furthermore, the EU restrictions road map, which targets groups of widely used chemicals of key concern, such as bisphenols and flame retardants, would, if fully implemented, lead to an estimated 5,000 to 7,000 chemicals being banned by 2030. Is the Minister happy with that disparity between the EU and the UK?
I will touch briefly on the decision not to match EU classifications to better identify endocrine disruptors unless and until they are agreed at an international level. That important decision was only recently confirmed in answers to my hon. Friend the Member for Swansea West (Geraint Davies). It was taken without consultation or an announcement. I gently say to the Minister that measures to improve identification are vital if we are to reduce the impact of endocrine disruptors on our health and environment.
Can the Minister tell the Committee how many hazardous chemicals have been added to the substances of very high concern list since January 2020? In response to questions about the SI, the Department said that it was building up its regulatory capacity. Alas, it has still not responded to an important question about whether its prioritisation of fewer controls on harmful substances is a short-term measure until it reaches capacity, and about the steps that the Department will take to prevent dumping of products on the UK market that no longer meet the highest regulatory standards.
The Government repeatedly promised that protections would be maintained and that we were unlikely to diverge very much, and not for the sake of it. They even said that they would provide a better system, so we await the answer with excitement. The role of the Opposition is to keep Ministers on their toes and hold them to account, so I hope that hon. Members agree that that has been done today.
Rebecca Pow
I thank all right hon. and hon. Members who have contributed to the debate. First, I welcome the shadow Minister’s support for this SI, although she has given me a raft of questions. If I do not answer them all, we will respond in writing, if that is suitable. However, I will cover as many as I can.
I want to reiterate why we are doing this. It is necessary for extending the deadlines for UK REACH submissions while we make the much-needed changes to the existing transitional requirements for submitting the HSE information. Without the changes, businesses would be forced to expend resources obtaining information and compiling documents, meaning that they could actually waste money. At the end of the day, they will not need to have all this information when we come up with the full model, working with them. It is, therefore, essential that we extend the deadlines before October 2023, which is when the first deadline would have fallen. All of that has been done in discussion with industry, and the consultation took place. Although the shadow Minister has some concerns, many of which came through CHEM Trust, we have discussed a lot of the issues with industry and that is why we have come up with these dates, which, as we have already heard, are satisfactory for our industry.
I reiterate that our endeavour is to keep all protections in place for the environment and human health, as per article 1 of UK REACH, as noted in our consistency statement, and to come up with a much more bespoke approach to the way in which we handle chemicals. The hon. Member for Newport West might be interested to know that the new model takes a two-pronged approach, working with companies and testing how it will work, hence the dossiers looking at cost, meeting the regulations and managing the risks. We are also looking at how we can improve the information to really deal with the issue of exposure to chemicals. That is where we could have a more bespoke system, and the Department for Environment, Food and Rural Affairs is working on that alternative model with industry, NGOs, the European Environment Agency and HSE. I reiterate that that is the purpose and it is well under way.
There was some criticism that things may not be working fast enough, or not at all. However, we have already received notification for around 20,000 chemical substances. The UK did, of course, ask for data sharing as part of the EU-UK arrangements, but the EU refused to engage. It could change its position and open up discussions again, but that is the position now.
Ruth Jones
To be fair to the EU, I understand that it took its ball and went home with it, but we were not going to pay and we were not going to play by its rules, so that is probably why it did that. On divergence, I am concerned that it is progressing but we do not seem to have a plan in place. Could the Minister address that?
Rebecca Pow
I honestly do not believe that there is cause for concern. There might be divergence in terms of flexibility or decisions that might be made at slightly different times. She mentioned various substances. That is more a matter of timing and of when the announcements are made, but there will not be any divergence in the fundamental principles and guarantees that safety and protection of the environment and human health is paramount. That still stands and it will not change.
NGO stakeholders have also raised this issue and said that they want divergence to be kept to a minimum. The EU is also seeking to improve the quality of its information on use and exposure, so our work on the alternative model could serve to reduce the scope of the new divergence. Having our own independent regulatory framework for chemicals allows us to identify the most pressing priorities that best reflect our circumstances in GB. The decisions we take are based on the best available evidence, including looking at approaches taken by chemical regimes across the world, including the EU. The Health and Safety Executive already looks at other sources and will continue to do so, as I think I said in my opening speech.
The shadow Minister asked about the capacity of HSE. Its capacity is increasing all the time. The NAO’s report from May 2022 shows that it increased staffing in its chemicals regulation division by 46% between September 2020 and March 2022. It continues to build on that capacity. In the long term, by 2025 the number of HSE staff working on UK REACH delivery is expected to grow to 50, and the number is around 60 or 70 if we consider the wider support functions. Members might be interested if I break that down. There are currently about 15 toxicologists, with six established and nine promoted or early career scientists. In addition, HSE can call on REACH independent scientific experts—the pool members—and the expert scientists on a whole range of different committees, as well as the eco-toxicologists who work for the Environment Agency, to support its work. I hope that makes very clear that the capacity of HSE has been ramped up, and that it is working alongside the new requirements to get the system absolutely right.
To go back to chemicals and restrictions, a suggestion was made that potentially it is not safe here and we are not banning chemicals that have been banned elsewhere. That is categorically not the case. Work is well under way to address risky chemicals. Upcoming decisions include restrictions on lead in ammunition and on toxic substances in tattoo inks and permanent make-up. I do not know if you have a tattoo, Sir Graham.
The Vice-Chamberlain of His Majesty’s Household (Jo Churchill)
We will never know!
Rebecca Pow
In April, HSE and the EA published a regulatory management options analysis on PFAS, or “forever chemicals”, and they will be considering the recommendations for restrictions on other regulatory measures. And we are banning PFAS in firefighting foams. I think the hon. Member for Newport West mentioned that, but that is one thing that we have announced. Under the UK REACH work programme, we will be working our way through a whole range of restrictions, obviously with all of the right evidence to inform decisions made.
Ruth Jones
I asked how many hazardous chemicals have been added to the register since 2020. I have since been told that the answer is zero. People in the industry will be concerned to know that no additional chemicals have been added since 2020.
Rebecca Pow
I am afraid that this is so complicated that, to correct the answer on what the hon. Lady is specifically referring to, I will write to her. Without a shadow of a doubt, we are banning PFAS in fire- fighting foams, and HSE is now scrutinising authorisation applications for a chemical called nonylphenol, which cannot now be used unless a company can justify its use and HSE agrees. That is the way we work through all chemicals. There is a really strict protocol on working our way through these proposed bans and looking at all the evidence.
I reassure the hon. Lady that we will be developing a chemical strategy, pulling all of these things together and setting out a really clear vision for chemical management in the UK, as well as a set of principles to guide policy development and the regulatory decision making that comes with it, providing certainty to key stakeholders, the industry and our direction of travel. The intention is for the strategy to be UK-wide and cross-Government. She will hear more about that in due course.
I will wind up now. I hope I have answered the plethora of questions and given assurances as to why we need this really important SI. We have made these changes to UK REACH without any impact on the high levels of human health and environmental protections, as demonstrated by the consistency statement and the impact assessments that accompanied the public consultation that came with the statutory instrument. On that note, I commend the draft regulations to the Committee.
Question put and agreed to.
Resolved,
That the Committee has considered the draft REACH (Amendment) Regulations 2023.