Draft Chemicals (Health and Safety) and Genetically Modified Organisms (Contained Use) (Amendment etc.) (EU Exit) Regulations 2020

Lloyd Russell-Moyle Excerpts

Wednesday 9th December 2020 General Committees

[Seema Malhotra (Feltham and Heston) (Lab/Co-op)]

It is a pleasure to serve under your chairship, Mr Hosie.

I thank the Minister for her opening remarks. The regulations are needed to address deficiencies in retained EU law on chemicals and GMOs legislation arising from the UK’s withdrawal from the EU. The Minister has outlined the regulations, but I will cover them briefly in my remarks.

EU law has played a vital role in ensuring that the framework that regulates chemicals and GMOs operates coherently and effectively. That framework includes regulations such as the biocidal products regulation that the Minister mentioned; the classification, including of hazards, labelling and packaging, or CLP, regulations; the regulations concerning the export and import of hazardous chemicals; and the GMO regulations, which lay down measures for the contained use of genetically modified micro-organisms with a view to protecting human health and the environment. We support this instrument, which ensures that retained EU law relating to chemicals and GMOs continues to operate coherently at the end of transition.

The Minister also outlined, as does the explanatory memorandum, why, if the changes were not made, several chemicals regimes in the scope of the instrument would not be consistent with the withdrawal agreement and the Northern Ireland protocol when the transition period ends. The reasons for the instrument are clear, but I want to focus on several concerns about its effective implementation and the transfer of functions to the HSE.

The first concern relates to HSE duties as it becomes the GB regulatory authority. Leaving the EU and the European Chemicals Agency means that the HSE will take on new responsibilities. From 1 January, businesses that wish to apply for an active substance to be approved, or for a biocidal product to be authorised in Great Britain, will need to apply to the HSE instead of the European Chemicals Agency. As the Minister said, the territorial extent of this instrument is Great Britain except for certain provisions. The HSE will take on the functions that the ECHA performs where these are still relevant in Great Britain. For example, it will co-ordinate the active substance evaluation process for Great Britain. It will also introduce its own processes and systems for receiving and processing applications.

The Minister said that she has confidence in the HSE’s capacity, but she will appreciate why I am asking questions about it. The new demands pose concerning questions about whether the HSE is adequately funded, staffed and resourced to deliver its new responsibilities, particularly on top of the additional work it has undertaken due to covid. Since 2009-10, funding for the HSE has been cut by £144 million in real terms: by more than half since Labour was last in Government. Although in May the Government announced £14 million more funding for it, that still leaves a substantial cut.

We know from a response to a parliamentary question that the Government have recruited only 37 full-time equivalent inspectors since March. What review has the Department for Work and Pensions undertaken with the HSE about its resources, systems and processes, and how it will effectively carry out its extra duties, such as confirming the hazard classification and labelling of chemical substances after the end of the transition period?

Is the Minister confident that the HSE will be able to cope with that increase in responsibilities? What assessment has she made of any new specialist skills that may be required? Could there be an economic impact on the chemicals, pharmaceuticals or plastics industries if there are any delays in required work being carried out by the HSE? Has that risk assessment been done as part of any review that the Department has undertaken? There may be a need for further recruitment, and difficulties have been experienced in the past year in finding necessary specialists. Can the Minister therefore guarantee that any extra staff will be in place by the first week of January, ready for EU exit?

With the HSE potentially having to navigate and regulate stand-alone GB schemes and parts of the EU chemicals schemes simultaneously, there will be additional pressure on it. At the same time, staff will be making new regulatory decisions for UK’s entire food and chemicals markets, with limited access to EU data. Not having adequate resources and systems will also put the incredibly hard-working HSE staff under enormous pressure, which is why we and the Government must not ignore this.

None of us wants questions about the HSE’s capacity to deliver an effective chemicals regulation regime into 2021 and beyond. Indeed, this issue has been raised before, and in February this year the Government said that they

“are making sure that the HSE…have the resources and evidence they need to ensure the safe management of chemicals and to protect public health and the environment.”—[Official Report, 26 February 2020; Vol. 672, c. 159WH.]

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

My hon. Friend is making a good point about the HSE. In the European context, both the HSE and the Environment Agency fed into chemicals regulations. Is there a danger that not also increasing funding for the Environment Agency to be able to be feed into the new HSE regulator will leave an area of regulation or expertise lacking?

[Seema Malhotra]

I thank my hon. Friend for his contribution, which I am sure the Minister noted. It relates very much to the next point that I was about to make.

In February 2019, Mary Creagh, the then Chair of the Environmental Audit Committee, also raised concerns about how the new functions would be taken on within the UK and the budget in relation European Chemicals Agency funding. That is not to say there should be direct comparison of EU-wide budgets and what the UK needs, but the HSE and other agencies involved need to be sufficiently equipped in order for our scientists to deliver safe and effective products on to the UK market. For the new work now required of the HSE, other agencies within Northern Ireland and others across industry that will be involved in a proportion of the new work that will be now taken on, what assessment has been made of the level and type of additional resources required?

My second question before I conclude relates to the Northern Ireland protocol. I thank my colleagues in the other shadow departmental teams for their input on this. The Northern Ireland protocol will mean that a number of areas of law in Northern Ireland will remain aligned with the EU after the end of the transition period, as the Minister commented. Changes to the standard policy approach for unfettered access are needed for highly regulated goods, such as chemicals. This will require a strong focus on transparency requirements to ensure that UK regulators are provided with the requisite information, in parallel to that provided to the EU. With regards to unfettered access and the forms required for highly regulated goods, what estimate has the Minister made of costs to business of the additional transparency requirements, and how many exports does she expect will be covered by them?

In conclusion, the amendments to the 2019 regulations relating to the withdrawal agreement, including the Northern Ireland protocol, are necessary to ensure that retained EU law relating to chemicals and GMOs continues effectively from January. However, I would welcome reassurance about the planning and resourcing for the new functions that the HSE, particularly, and other agencies will take on.

This is one of around 20 statutory instruments that will need to be tabled before the House rises for recess. Will the Minister update us on the timetabling for the remaining SIs relating to the Northern Ireland protocol? With only two weeks until Christmas, she will understand concerns that there may not be enough time for all these to pass through the House before the end of the year with the necessary scrutiny. If she is unable to update us today, perhaps she will be able to forward that information to me after.

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[Mims Davies]

I am happy to respond to the hon. Lady. In fact, I must point out that owing to more demand in relation to covid the HSE budget in 2019-20 was £129 million, and there will be an extra £1.6 million for the functions in question.

On recruitment and readiness, the HSE has identified a total of 147 posts to be filled by the end of the financial year. It reports good progress on filling those posts, with 108, or 73%, filled. It is confident that that means it will be ready in relation to the transition period. Of the 73% of posts filled to date, the vast majority will start in January, with the remainder commencing in post before April.

Several campaigns are ongoing and due for completion in 2021. We are concluding the recruitment of the outstanding posts and recruiting 117 brand new posts in the chemicals regulation division, relating specifically to EU exit. That represents a 45% increase from the baseline staffing, since January 2020, and I hope that the hon. Lady will see that it demonstrates a significant commitment to taking on the new functions that are required. I believe, in fact, that we had about 900 applications when the recruitment opened.

I want to take this opportunity to pay tribute to those at the HSE who have done a remarkable job through the pandemic and covid this year. The HSE has called in or visited 78,000 businesses as part of its work on spot checks. It has a significant compliance rate and staged spot checks in more than 41,000 businesses in relation to covid issues.

As to taking on the new functions and being ready to work with industry, there has been significant engagement with industry on the next stage, including 22 comms events just this month with the chemicals industry. Since January we have engaged with more than 6,000 attendees from across the chemicals section. There is significant information on the HSE website, the chemicals section of which gets over 50,000 views a month, and over 226,000 e-bulletins go out to subscribers. There have been extensive conversations and communications with the sector, and I have joined with Ministers from the Department for Business, Energy and Industrial Strategy and from DEFRA to engage with that sector and with stakeholders.

[Lloyd Russell-Moyle]

I am really pleased to hear that the Government and HSE have been engaging with businesses. However, I am still hearing concerns from businesses that are worried about re-registering pre-existing chemicals that have already been registered, and any potential need to prove that new levels of testing have been met, particularly animal testing. Can the Minister give an assurance that no new tests will be required for pre-existing chemicals by the HSE, and particularly no new animal tests?

[Mims Davies]

On animal testing, the relevant legislation affected by the instrument is the biocidal products regulation. That regulation contains mandatory data sharing provisions that are maintained in retained EU law and will apply in Great Britain, with amendments to make clear that the HSE will operate this process, rather than the European Chemicals Agency. The UK has been at the forefront of opposing animal tests where alternative approaches could be used, and we will retain the last resort principle. I hope that satisfies the hon. Gentleman.

Turning to divergence, GB will be free to make decisions on key issues. However, that does not mean we will disregard evidence, discussions and decisions made at EU level, nor any impacts on Northern Ireland. Horizon scanning and monitoring will be part of the UK chemicals framework as a whole.

[Lloyd Russell-Moyle]

I appreciate what the Minister just said. What would be useful, maybe in writing, is an absolute confirmation for the industry and for animal rights organisations that any pre-existing chemical that is currently registered under the registration, evaluation, authorisation and restriction of chemicals regulation, and will need to be re-registered with the HSE, will not require any new levels of testing due to moving their registration over. Of course, it will be difficult for new chemicals that come on board later, but just so that we can be absolutely sure, will the Minister say that no existing registered chemical will require any new levels of testing? That would give me and the industry reassurance.

[Mims Davies]

I am happy to reassure the hon. Gentleman that the REACH regulation is not included in this SI. DEFRA has the policy responsibility for REACH regulation and is bringing separate legislation forward on this. I hope that satisfies the hon. Gentleman.