REACH (Amendment) Regulations 2023

Baroness Anderson of Stoke-on-Trent Excerpts

Tuesday 13th June 2023 Grand Committee

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I thank the Minister for his introduction. As with a number of SIs in the past, we have been facing this issue since 2019. At that time, the Government were urged from all sides, especially the chemical industry, to stay within EU REACH. The data analysis and licensing systems that would not be made available to the UK were and are extensive. This would not be the case if the country remained within EU REACH.

The need for registration, evaluation, authorisation and restriction of chemicals is obvious. It protects the public, plants and animals from the harm caused by toxic chemicals, all of which have to be licensed and registered. This is a complex process. Without access to EU REACH data, a completely new set of data had to be compiled and licensed from scratch. This involves animal testing. We cannot get away from this fact. It is necessary, but it could have been avoided. It will also involve huge financial costs to the chemical industry.

On 4 March 2019, my noble friend Lord Fox and I met Defra officials along with the then Minister. We stressed the huge costs involved, which we felt ran into billions, and the long timeframe needed to get the necessary licences in place. I regret to say that we were treated with contempt and told that it would be much cheaper and quicker than our predictions.

The deadline before implementation has already been extended from that set on 26 March 2019. In answer to an Oral Question in September 2020, Defra revealed that EU REACH employed some 600 staff and took 10 years to deal with the difficulties in the system at a cost of £100 million. Defra proposed to achieve the same with 40 staff, at a cost of £13 million. By December 2020, in a debate on a regret Motion, a cost of £1 billion was mentioned.

Here we are today once again extending the already extended timeframe. This is a piece of elastic that has come to the end of its life. Defra’s estimation of the current costs for completing the licensing is now between £1.3 billion and the figure that I think the Minister mentioned of £3.5 billion. I have tremendous respect for the Minister and his predecessor, but on this occasion I have to say to Defra: “We told you so”.

In a debate in 2020, the noble Lord, Lord Cameron of Dillington, began his remarks by saying:

“My Lords, I would like to echo the regret that others have expressed that we have allowed ourselves to walk into this unnecessary nightmare”.—[Official Report, 8/12/20; col. 1162.]


I could not agree more. It is clear than an extension of the timeframe is needed. Is the Minister sure that the timings now being requested will be sufficient? In its report of 11 May, the Secondary Legislation Scrutiny Committee, to which he referred, says that it does not believe that the alternative transitional registration—ATR—model deadline of 2024 is achievable. Can the Minister say whether, during this extended timeframe, animals will continue to be subjected to painful and harmful testing methods? Others have spoken about the effect and the danger of hazardous substances.

Given that the extended timeframe favours large businesses with the greatest tonnage, can the Minister assure the Grand Committee that the smaller but nevertheless vital businesses often providing subcontract work will be able to survive? How many, if any, businesses dealing with and producing chemicals have gone under since the country left EU REACH?

The Minister referred to the Retained EU Law (Revocation and Reform) Bill. How will the three-year extension period proposed today interact with the sunset provisions in the REUL Bill? I believe he said that there would be no impact, but I would be glad for confirmation. The Secondary Legislation Scrutiny Committee raised this issue and the proposed extended deadlines.

In November 2022, Defra extended the submission deadlines for the consultation outcomes. Some 82% of the 289 responses had a strong preference for a three-year extension. However, the NGOs preferred no extension at all. This was due to concerns that the ATR model would be weaker and less protective of human health and the environment than current transitional arrangements, which are also still under development. UK REACH is supposed to be bound by the Environment Act’s precautionary principle. However, there is clear risk involved in the ATR model.

The Chemical Industries Association, the CIA, stresses the importance of urgently providing legal certainty to businesses. The current level of uncertainty around registration requirements, expected timelines and related costs is not encouraging new market opportunities. Extending deadlines is not providing the clarity needed on the viability of the registration model or allowing sufficient time for appropriate legislation to be developed and for authorities and industries to implement it. The noble Baroness, Lady McIntosh of Pickering, referred to this. Will the Minister please comment?

The CIA is of the view that an effective UK REACH could be achieved even without requiring a full resubmission dossier of all substances already registered under EU REACH. Sadly, so prejudiced is Defra to anything that might smack of the EU, it will not adapt EU REACH and insists that UK REACH will be better. If we ever get there, it certainly will not be cheaper.

I will give an example from the CHEM Trust. In its second-year programme, UK REACH deprioritised controls on nine hazardous substances targeted by the EU. These included concentration limits for eight polycyclic aromatic hydrocarbons used as infill and, in loose form, in synthetic football pitches and playgrounds. These are linked to increased cancer risk. A typical sports pitch uses 120 tonnes of these crumbs. According to a 2017 study, six tonnes of potentially carcinogenic material would be non-compliant with the current EU standards. Is Defra’s prioritisation of fewer EU controls on harmful substances a short-term measure until it reaches capacity, or will it introduce other measures to close the protective gap that is opening up before our eyes?

I have serious concerns about the deliverability of the UK REACH regulations. However, I feel I have no choice but to support the extension of the timeframe for delivery. I have a terrible feeling that the ATR will not be achieved and that we will be debating this issue again before too long.

[Baroness Anderson of Stoke-on-Trent (Lab)]

My Lords, I thank the Minister for his overview of the SI before us and for his correspondence in advance of today’s debate. I also thank all noble Lords for their contributions, which highlight the importance of the discussion. Given the discussion in the other place, it will not surprise the Minister that His Majesty’s Opposition will support this SI. However, we have some specific concerns relating to the direction of the post- Brexit REACH regulatory framework and the capacity of the HSE as a statutory body to provide effective enforcement.

As we discussed last week in our debate on the packaging waste statutory instrument—I am becoming a pro—the collation of this data is key to the implementation and enforcement of an effective regulatory regime. But that requires the Government to move at speed to ensure that they have the data available to make informed decisions. Paragraph 7.1 of the Explanatory Memorandum states:

“The changes provide sufficient time for the government to develop and introduce a new registration model that will cater for EU registrations transferred to Great Britain under Title 14A of UK REACH”.


The Government have known about the need to develop and introduce this model for seven years. In fact, the Minister will remember that discussions regarding the future of REACH were a regular feature of the debate around Brexit in the other place before and after the referendum. Given that the industry has been doing everything possible to support the department in reaching a new model, can the Minister inform the Committee why the department is so far behind schedule and why this is being addressed only now?

Paragraph 7.2 of the EM states:

“The statutory timelines for HSE to carry out their compliance checks on the information submitted by industry are also being extended to align with the data submission deadlines”.


I sound like a stuck record, but this is a similar situation to the ones we have seen with imports of food and certain goods from the EU, with launch dates repeatedly postponed due to a lack of preparedness. Can the Minister inform the Committee why we repeatedly need to extend the deadlines?

Later paragraphs of the EM—from paragraph 7.7 onwards—explain why His Majesty’s Government have opted to take a different approach and outline the likely timescales on implementing changes to IT systems. Why were industry concerns about the cost of the original proposal not given more weight at the time? How many civil servants have been used and how much financial resource has been spent on the original option? How much of the work that has already been done can Ministers carry over? While industry supports the changes being made, concerns have already been voiced about the workability of the alternative system and its potential implications for safety, which must remain paramount. We are not against divergence from the EU, but we must not allow gaps to form in our regulation of chemicals. Neither businesses, workers nor citizens will benefit if health and well-being are put at risk unnecessarily.

The Minister in the House of Commons, Rebecca Pow, addressed concerns about the HSE’s capacity by saying:

“Its capacity is increasing all the time … 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”.


We welcome that ramping up of capacity, but is the Minister satisfied that this staffing level is sufficient given the areas that we are talking about? In that debate, the Minister also said that the department

“will be developing a chemical strategy”

and that we

“will hear more about that in due course”.—[Official Report, Commons, Fifth Delegated Legislation Committee, 16/5/23; cols. 9-10.]

Can the Minister here, the noble Lord, Lord Benyon, be any more specific? How confident is he that this will not simply be added to the list of items that arrive late?

I sincerely believe that each and every one of us wants nothing more than a regulatory framework that keeps our population safe and secure. Given the nature and importance of the REACH regulations, it is therefore vital that we do not just get this right but get it done quickly.

[Lord Benyon (Con)]

I am grateful for noble Lords’ interest in this issue, their important contributions to this debate and their support for the REACH (Amendment) Regulations 2023. I will deal with as many of the points as I can.

On my noble friend Lady McIntosh’s point, I can absolutely confirm that there is no intention to amend or revoke any of these measures in the next two years. I will come on to the point about cost.

On the 2024 date, which the Secondary Legislation Scrutiny Committee and a number of noble Lords raised, I repeat the point that I made earlier: the Government are confident that we will be able to meet that date. I am sure that noble Lords will be active in holding the Government to account on that.

On the point made by the noble Viscount, Lord Stansgate, the Health and Safety Executive continues to increase its capacity. The National Audit Office report from May 2022 details the increased staffing levels at the HSE, including the staffing level in its Chemicals Regulation Division going up by 46% between September 2020 and March 2022. The HSE has continued to build capacity in the last year. In the longer term, by 2025, the number of HSE staff working on UK REACH delivery is expected to grow to 50, or around 60 to 70 when considering wider support functions.

The noble Baroness, Lady Bakewell, mentioned that the staff in the EU directorate numbered 600. Of course, that covers the whole of the EU, which is a considerably larger area, but nevertheless we seek to align any regulatory changes we can with them, working with the EU, and I will give more assurances on that.