Draft Reach Etc. (Amendment etc.) (EU Exit) Regulations 2020
Draft Control of mercury (Amendment) (EU Exit) Regulations 2020
Draft Detergents (Amendment) (EU Exit) Regulations 2020
Draft Waste and Environmental permitting Etc. (Legislative Functions and Amendment Etc.) (EU Exit) Regulations 2020
(Limited Text - Ministerial Extracts only)
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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 Etc. (Amendment Etc.) (EU Exit) Regulations 2020.
The Chair
With this it will be convenient to consider the draft Control of Mercury (Amendment) (EU Exit) Regulations, the draft Detergents (Amendment) (EU Exit) Regulations 2020 and the draft Waste and Environmental Permitting Etc. (Legislative Functions and Amendment Etc.) (EU Exit) Regulations 2020.
Rebecca Pow
It is a delight to see you in the Chair, Sir Charles, as we debate this bevy of statutory instruments.
Of the four instruments before us, three are concerned with the regulation of chemicals and chemical products, and the fourth concerns the regulation of waste and environmental permitting. The common thread is that each one contains provisions necessary to implement the protocol on Ireland and Northern Ireland.
I should like to inform the Committee that we have worked with the devolved Administrations on all four SIs, and consent has been received for all of them except the instrument on the regulation of waste and environmental permitting. That instrument has received consent from Scottish and Welsh Ministers but has not yet received consent from Northern Ireland Ministers. However, given that time to make the SI is now short, and the overriding need to provide certainty for businesses at the end of the transition period and to discharge our protocol obligations, we are proceeding with debating the SI without consent. We will continue to work closely with the Northern Executive in the coming days to resolve outstanding concerns in advance of making the SI.
I can confirm the all four instruments will be able to function with or without a deal with the European Union. I can also confirm that all four instruments have been considered by the Joint Committee on Statutory Instruments and that no issues have been drawn to the attention of the Committee.
The REACH Etc. (Amendment Etc.) (EU Exit) Regulations 2020 have three main purposes. The first two relate to the Northern Ireland protocol. They fulfil the United Kingdom’s obligation effectively to implement the protocol with regard to REACH—the registration, evaluation, authorisation and restriction of chemicals—and they provide for access by Northern Irish goods to the Great Britain market. After the transition period, UK REACH will regulate the GB market while EU REACH will apply to Northern Ireland. Additionally, the SI amends the existing transitional deadlines for GB businesses to submit information about their chemicals and their safe use to the domestic REACH system. The SI also makes some technical amendments that will ensure that cross-references in the UK REACH regulations are up to date at the end of the transition period.
The provisions that implement the protocol first of all 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. They also ensure that there were still be effective enforcement arrangements for REACH in Northern Ireland.
The provisions on chemicals moving from Northern Ireland to Great Britain reflect our commitment to unfettered access for Northern Ireland businesses. They will also ensure that UK authorities have the appropriate information and regulatory safeguards in respect of chemicals placed on the GB market.
The SI 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. Instead, there will be a light-touch notification process to ensure the Health and Safety Executive knows what chemicals are being placed on the GB market. Information necessary to ensure safe use must also still be passed down the supply chain.
Substances of very high concern entering Great Britain from Northern Ireland will still need a UK REACH authorisation. That is needed to manage the risk from those hazardous chemicals to GB consumers, workers and the environment. That simply replicates the current approach to placing those substances on the EU market, where the authorisation process makes sure that account is taken of local environmental and other factors. We will ensure that that happens where those chemicals are being placed on the market and used within Great Britain.
When the first REACH exit SI was debated in the House last year, the Government committed to keep the deadlines for submitting transitional notification and registration information to the HSE under review. We have followed up on that with very detailed discussions with a range of industry and non-governmental organisation stakeholders. The conclusions of the review have been carried forward in the SI before the Committee by the amendments to the transitional deadlines. The initial notification period for existing downstream users and distributors is being increased from 180 days to 300 days. We are replacing the deadline for submitting full registration information, which is currently two years in all cases, with a phased approach that spreads the duty over two, four and six years from the end of that initial 300-day period.
The phased policy takes a risk-based approach by requiring the submission of data on the highest tonnages and most hazardous chemicals first. In that way, companies will have more time and capability to comply with the legislation. It will enable them to reduce and spread costs, and give them more time to negotiate mutually beneficial data-sharing arrangements with other companies in the UK and the EU. That will lead to better 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.
The Control of Mercury (Amendment) (EU Exit) Regulations 2020 make amendments to the retained EU law to ensure that legislation that manages the control of mercury is operable at the end of the transition period. In addition, it reflects the requirements of the Northern Ireland protocol. The SI revokes and replaces the Control of Mercury (Amendment) (EU Exit) Regulations 2019, revokes regulation 8 of the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019 and also amends the Control of Mercury (Enforcement) Regulations 2017. Provisions that were included in the environment and wildlife regulations 2019 and the control of mercury regulations 2019 are now included in the new SI. The amending regulations were laid in 2019 to prepare the UK for leaving the EU without a withdrawal agreement. Revoking the two SIs made back in 2019 and remaking the provisions contained in those SIs in this instrument ensures that we do not have more than one set of amending regulations. Basically, that means that the legislation is clearer for regulators and businesses.
The SI provides for the exercise by the appropriate GB authority of a number of legislative functions currently carried out by the European Commission. Those functions were previously included in regulation 8 of the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019.
The SI was debated in the House of Lords and the House of Commons on 12 February 2019 and 14 February 2019 respectively, and agreed by both Committees of those Houses.
Following the UK’s withdrawal from the European Union, the retained EU legislation, as amended by the instrument before the Committee, will continue to implement the UK’s obligations as a party to the Minamata convention, and provide a regulatory framework for management of mercury. Northern Ireland will continue to apply the EU regulation 2017/852 to manage mercury in the environment.
It has to be said that there is a minuscule, if any, trade in mercury between Northern Ireland and Great Britain, as I am sure the shadow Minister the hon. Member for Newport West is aware. However, we will be introducing new procedural requirements for the transport of elemental mercury between GB and Northern Ireland and introducing a prohibition on the transport of specified products containing mercury between GB and Northern Ireland. Currently, there are no controls on the movement of those specified products containing mercury or elemental mercury between member states. The new requirements should prevent the uncontrolled flow of elemental mercury and the specified products containing mercury from the EU into GB via Northern Ireland.
The SI meets the Government’s commitment to the Northern Ireland protocol. It also ensures continued levels of protection for human health and the environment, as well as again providing stability and continuity for businesses.
You will be excited to hear, Sir Charles, that the third SI relates to detergents. The primary aim of the Detergents (Amendment) (EU Exit) Regulations 2020 is to ensure that the UK meets its obligations under the Northern Ireland protocol in respect of Regulation (EC) No 648/2004 on detergents—the EU Detergents Regulation. That has been done by amending the existing EU exit regulations on detergents—the Detergents (Amendment) (EU Exit) Regulations 2019 and the Detergents (Safeguarding ) (Amendment) (EU Exit) Regulations 2019.
In terms of the key amendments that the SI before us makes to existing EU exit regulations, Committee members will not be surprised to learn that they are merely technical in nature. The technical changes made by the instrument will give effect to the Northern Ireland protocol by ensuring that the EU Detergents Regulation, as it has effect in EU law, continues to apply in Northern Ireland and that the amendments to the retained version of the EU Detergents Regulation extend to Great Britain only. The SI makes special provision for detergents in Northern Ireland in respect of ‘qualifying’ Northern Ireland goods, creating a category of protected imports from Northern Ireland and enabling them unfettered access into the GB market while maintaining standards of protection for the environment and human health. That is, of course, absolutely paramount.
Trade from Northern Ireland to the rest of the UK should continue to take place as it does now—there will be unfettered access, as provided for by the protocol. Therefore, at the end of the transition period, businesses in Northern Ireland may continue to place their goods in any part of the UK internal market without new restrictions.
In addition to the changes to the existing EU exit regulations on detergents, the SI amends the Detergents Regulations 2010—the domestic enforcement regulations on detergents—which will ensure that the Northern Ireland enforcement authorities can continue to enforce the EU Detergents Regulation, as they have effect in EU law, while the retained version of the EU Detergents Regulation can continue to be enforced in GB.
The changes made to the 2010 regulations will also have the effect of ensuring that the competent authority functions, currently exercised by the Secretary of State under the EU Detergents Regulation, will be exercised by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. I wish to assure Members that the overarching aim of the instrument is to provide continuity for detergent businesses, to ensure that following the end of the transition period the high standards of human health and environmental safety will continue across the UK, and to reflect the obligations under the Northern Ireland protocol.
Finally, we come to the Waste and Environmental Permitting Etc. (Legislative Functions and Amendments Etc.) (EU Exit) Regulations 2020, which includes a mixture of devolved and reserved content. It is a technical instrument that makes small but important changes to existing legislation so that it refers to the latest versions of the EU directives and domestic regulations, as amended by the EU circular economy package. These are small changes, but they will ensure that legislation relating to waste and environmental permitting can be properly enforced by the Environment Agency and its devolved counterparts. This instrument also makes some small technical amendments to
provisions of earlier EU exit SIs that amend domestic legislation relating to batteries, and changes the extent of amendments in an earlier EU exit SI to the Restriction of the Use of Certain Hazardous Substances regulations, known as the RoHS regulations, and the Packaging (Essential Requirements) Regulations, so that they do not extend to Northern Ireland. These changes are needed to reflect the fact that the directives that those regulations implement will continue to apply in Northern Ireland, but not in Great Britain, as a virtue of the Northern Ireland protocol. In practice we have kept the GB and Northern Ireland requirements exactly the same for batteries. On the ground there will be no changes on how batteries are collected, treated and recycled. The requirements for batteries reaching market in the first place will also remain exactly the same. This instrument simply ensures that the correct references are in place depending on whether the legislation applies in GB or Northern Ireland.
The SI also transfers the European Commission’s powers related to article 7(1) of the waste framework directive. This power is being transferred to the Secretary of State and the devolved Administrations. The power will allow the Secretary of State and the devolved Administrations to establish their own lists of waste or amend the existing list of waste as it becomes part of retained EU law after the end of the transition period. The list of waste gives identifying codes to different categories of waste, which are used by waste management businesses, and it specifies which categories of waste are to be treated as hazardous waste. The Secretary of State will need the consent of the devolved Administrations to make amendments to the list of waste on their behalf.
The schedule to this instrument revokes some recent EU decisions or regulations. These revocations are either to tidy up our statute book or because we should no longer be bound to those decisions after the transition period ends, such as where they specify formats for reporting data to the European Commission, which the United Kingdom will cease to do at the end of the transition period.
Each of these instruments is necessary to make sure that the Northern Ireland protocol is implemented properly. They respond to the Government’s commitment to unfettered access for Northern Ireland goods and they help to make sure that we are fully prepared for the end of the transition period on 31 December.
Rebecca Pow
I thank the shadow Minister. It is never a hardship to listen to her speaking at length. She referred to people thinking that this might be a niche issue; chemicals are far from a niche issue, and the Government have never treated them as such. We are taking this extremely seriously, which is why so much liaison and discussion has gone on with industry, businesses and, indeed, with the devolved areas over the SIs. That remains crucial. As I have pointed out, there is still much ongoing discussion with them about these issues. She criticises the SIs, but today is her opportunity to scrutinise the legislation, and we have given her ample opportunity to do so, and indeed anyone else on the Committee.
As I said at the end of my earlier speech, the instruments are necessary to ensure that the Northern Ireland protocol is implemented properly. They correct operability deficiencies, which is necessary for the implementation of the protocol, respond to the Government’s commitment to unfettered access for Northern Ireland goods, and help to ensure that we are fully prepared for the end of the transition period on 31 December. The REACH SI does not set up the UK REACH regime, about which we heard a great deal. That was done by the REACH Etc. (Amendment Etc.) (EU Exit) Regulations 2019, which the House considered last year.
All that the present SI does is make amendments to provision for the Northern Ireland protocol to change some of the transitional provisions to extend deadlines for data submission. These instruments will also ensure that the UK continues to meet its international obligations for mercury, as a party to the Minamata convention. They will also ensure that we continue to maintain the high standards of biodegradability for detergents and surfactants. The waste instrument makes small but important changes to existing legislation, and takes powers back from the European Commission. It amends legislation relating to the restriction of hazardous substances, packaging and batteries, so that the UK complies with the Northern Ireland protocol.
I will skim through some of the queries raised. A lot of them were quite general; they were about the overall REACH regime, which is not exactly what these statutory instruments are all about, but I will touch on some of them. In particular, the hon. Member for Newport West raised the subject of associate membership of ECHA. We have gone past that now; I am sure she knows that. That would be unacceptable, because it would tie the UK to the EU’s regulatory agenda and leave us subject to the European Court of Justice.
The hon. Lady touched on animal testing. As a former chair of the all-party parliamentary group for animal welfare, this is a subject dear to my heart, on which I engaged as a Back Bencher. Under EU REACH, tests on vertebrate animals must only be used as a last resort, and companies must demonstrate this. We are retaining this principle in the UK REACH. Extending the deadline would give industry more time to make sensible arrangements for access to existing data about chemicals. That is why the extension that we have talked about today for two years, four years, and six years is so helpful. The data includes information for animal studies, and it will reduce the risk of repeat animal tests.
Ruth Jones
I understand the point the Minister is making, but is she confident that when we leave the EU, animal testing will not be duplicated in the UK? The animal testing agencies are very concerned that there will be duplication, and that means duplication of animal testing.
Rebecca Pow
Potentially, I think the hon. Lady is unnecessarily scaremongering. She has heard what I have just said: we are retaining the principle in UK REACH that animal testing would be a last resort. If testing has already been done and we have got the data, no one wants to repeat that. The UK, as she knows, has always been at the forefront of opposing animal testing where alternative approaches could be used, and we will retain the last-resort principle. I hope that offers assurance.
I have touched on why we need a separate UK REACH. It would not be appropriate for us to automatically implement future EU decisions under UK REACH, because the EU will no longer consider the impact of their decisions on Great Britain. In setting up our own system, we can take the EU’s decisions into account, but we will need to consider, in every case, whether the decisions we are making are right for Great Britain.
Ruth Jones
Is the Minister confident that, as we divert from the EU, we will be able to maintain standards, and that this is not a race to the bottom, as some in the industry worry?
Rebecca Pow
Again, I would suggest that the hon. Lady is scaremongering. Does she honestly think we want to be in a race to the bottom over something as important to human health and the environment as chemicals? She sat through the Environment Bill with me, where we talked about protecting the environment. Does she really think that I as the Minister, and all the people working in the Department for Environment, Food and Rural Affairs, would open up the floodgates for a race to the bottom over dangerous chemicals? One of these SIs relates to hazardous chemicals. I reiterate that we will stick to the principles that we maintain—and indeed will probably strengthen them. We have the opportunity to do that in a bespoke way now. I hope that is of some assurance.
The hon. Lady touched on costs. We are very conscious of the need to reduce costs, which is why the UK has been looking to agree an approach to data-sharing with the EU as part of the free trade agreement. She was obviously edging towards that in her conversations about remaining part of ECHA, which we will not. Our negotiations are ongoing, and the aim I have just outlined would assist us greatly in meeting the need for the data to underpin UK REACH, while also avoiding extra costs to industry. We could then significantly reduce the requirements and costs on companies, which would submit their data directly to HSE. Again, however, the extension of the time period for companies to do this will also help with all that.
Ruth Jones
The Minister is being very generous with her time. She is talking about data-sharing. The Prime Minister and his team have gone to Brussels for negotiations with the EU. Will they come back with a deal that will include the data-sharing clause?
Rebecca Pow
I am ever supportive of the Prime Minister and optimistic. [Hon. Members: “Hear, hear!”] As we all are—that was a great response, and I thank the Committee for it. The hon. Lady is pushing me, but obviously we cannot have only one plan; we cannot have only a negotiated plan A. That is why we are creating an independent chemicals regime, and we must plan for a scenario in which the EU does not agree to our preferred route of data-sharing. However, I am sure we would all want our independent regime to be robust and effective, so we should all accept the importance of industry and authorities having the information that they need to protect human health and the environment properly through the supply chain, as I have touched on before. Obviously it is not cost-free, but if we do not maintain that, we are moving away from the core principles of industry being responsible for understanding the risks of the substances it uses. Regulators must have the information that they need to provide oversight and assurance. We are sticking to our principles, but obviously we have to get the right data and keep everybody safe in our new regime.
That leads me neatly on to my next point. The hon. Lady referred to a race to the bottom and the lowering of standards, but I can assure her that we are definitely taking a risk-based approach to phasing the submission of registration data by requiring, as I touched on earlier, that companies producing the highest tonnage of chemicals and the most hazardous chemicals have to provide their data first, two years after the 300 days. Companies producing lower tonnages and lower-risk chemicals will follow after that. Taking such an approach should facilitate the submission of better-quality data for the risky products first, and then companies can have bit longer to submit their data on less concerning risky products. HSE will be able to look at a variety of sources to inform its decisions, which will also include using its years of experience on chemical regulation within EU REACH and the new substance regime that ran prior to it.
Ruth Jones
The Minister mentioned HSE, its powers of enforcement and its legislative ability to regulate. Is she confident that there will be enough members of staff and funding, given that HSE’s budget has been stripped out of all proportion over the last 10 years?
Rebecca Pow
The hon. Lady touched on that in her earlier contribution. I would say that HSE is very well placed to be a great success in this role—it has been stressed many times. Working in conjunction with the Environment Agency, HSE has already played a really active role in EU REACH for many years, and it has had to take on some really complex issues and dossiers. On the issue of staffing, that is all under way. DEFRA has put significant resources into building up not only UK REACH, but the regulation side of it. HSE is recruiting heavily for people to work in this area, although it is not absolutely necessary to have it fully staffed for day one, because companies will not rush out on 1 January, suddenly get their hands on all the data and fire it into HSE. HSE has plenty of time to train and build up the staff that it needs. Obviously it has made a really good start, but it also needs to make sure that it is absolutely tailored to the new system that we are developing.
I give the hon. Lady assurances that the IT system has already been developed. We are apparently ready to press the button at midnight on 31 December. The system has been trialled, and I am told it is working well. That is all part and parcel of the new regime.
Scott Mann (North Cornwall) (Con)
I did not intend to speak but I have listened closely to the shadow Minister’s interrogation of the Minister on REACH regulations. Would my hon. Friend agree with me that as a founder member of REACH, and having paid and made substantial contributions to REACH, it would look miserly of the European Union not to share information with the UK Government, specifically on chemicals regulations and animal testing? We could work closely on such a good project. Does she agree that the EU would look miserly were it not to share that particular information?
Rebecca Pow
I thank my hon. Friend the Member for North Cornwall—a wonderful part of the world—for making that point. I would not want to describe the EU as miserly, as they will continue to be our friends and we will need to work closely with them, but he makes the good point that the UK itself was incredibly influential in the development of the EU REACH system. The EU regard us as having played that important role. Negotiations are still underway and, as I outlined earlier, we are hoping for some joint and mutual recognition that may potentially result in what my hon. Friend recommends.
The shadow Minister touched upon the fact that Northern Ireland, in terms of protocol, will remain subject to the EU REACH, which means that the UK REACH regulations will not apply to the Northern Ireland market. There will be a streamlined process for Northern Ireland chemicals, however, that are part of what we call ‘qualifying’ Northern Ireland goods to access the GB market, and there is a list of those qualifying goods. The full registration requirements will be replaced with a light-touch notification process. The hon. Lady pressed me on the light touch, and it will be just that. We already know what chemicals they are using in Northern Ireland, so we are starting on a level playing field. It is important and key to remember that Northern Ireland will have a direct link and access to HSE. That is a good position for Northern Ireland in terms of accessing the right place for discussions and advice, because it will be able to access HSE. Northern Ireland businesses will be able to fulfil the notification requirement, should they wish to do so, instead of their GB customer. That has been fully thought through, and much debated and discussed. I hope that puts the shadow Minister’s mind at rest.
That brings me to end of the hon. Lady’s questions and queries. I can write to her should she believe that she would like further information. We have had no come back in terms of concerns about the mercury and the detergents. I think she agrees with that, so I thank her for that.
To sum up, the contents of all four instruments are technical and they are all essential to fulfil our obligations under the Northern Ireland protocol. They all contribute in their own way to the effective functioning of the internal UK market and to the Government’s continued commitment to environmental protection.
I thank the Committee members for being here today and for the comments made by my hon. Friend the Member for North Cornwall. I hope that the debate has been useful. I thank the shadow Minister for her scrutiny, as ever. I am confident that these regulations are fit for purpose and represent another marker in the Government’s commitment to ensuring continued levels of protection for human health and the environment, which is so important, and to providing the stability and continuity that our businesses need.
I wish everyone all the best for the festive season, including you, Sir Charles, and I thank you for chairing the Committee today. I commend the SIs to the Committee.
Question put and agreed to.
Resolved,
That the Committee has considered the draft REACH Etc. (Amendment Etc.) (EU Exit) Regulations 2020.
DRAFT CONTROL OF MERCURY (AMENDMENT) (EU EXIT) REGULATIONS 2020
Resolved,
That the Committee has considered the draft Control of Mercury (Amendment) (EU Exit) Regulations 2020.—(Rebecca Pow.)
DRAFT DETERGENTS (AMENDMENT) (EU EXIT) REGULATIONS 2020
Resolved,
That the Committee has considered the draft Detergents (Amendment) (EU Exit) Regulations 2020.—(Rebecca Pow.)
DRAFT WASTE AND ENVIRONMENTAL PERMITTING ETC. (LEGISLATIVE FUNCTIONS AND AMENDMENT ETC.) (EU EXIT) REGULATIONS 2020
Resolved,
That the Committee has considered the draft Waste and Environmental Permitting Etc. (Legislative Functions and Amendment Etc.) (EU Exit) Regulations 2020.—(Rebecca Pow.)