REACH (Amendment) Regulations 2023

Lord Benyon Excerpts

Tuesday 13th June 2023 Grand Committee

Moved by

[Lord Benyon]

That the Grand Committee do consider the REACH (Amendment) Regulations 2023.

Relevant document: 38th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)]

My Lords, this statutory instrument was laid before this House on 20 April 2023 and makes technical amendments to UK REACH. UK REACH is the retained version of EU REACH and is one of the key pieces of legislation that regulates the use of chemicals in Great Britain. This instrument is being made pursuant to powers in the Environment Act 2021. In accordance with the European Union (Withdrawal) Act 2018, UK REACH maintains the core approach and key principles of the EU REACH regulation. Its primary objectives remain focused on safeguarding a high level of protection of human health and the environment.

This SI introduces two changes. I should make it clear from the outset that the changes do not affect the key principles of UK REACH. The first change this SI introduces is that it amends Article 127P(4B) of UK REACH. This provides an additional three years for businesses to submit technical information on the hazards and risks of their substances to the Health and Safety Executive. This extension applies to all grandfathered registrations and chemicals being imported from the EU under the transitional arrangements. Industry will now be required to submit technical information on the hazards and risks of substances that it manufactures or imports by 27 October 2026, 27 October 2028 and 27 October 2030, depending on the tonnage and toxicity. These dates are changes from 27 October 2023, 27 October 2025 and 27 October 2027 respectively.

This SI supports the work that we announced in December to explore an alternative transitional registration model for UK REACH in order to address the significant potential cost, estimated at between £1.3 billion and £3.5 billion, of obtaining or accessing the full hazard information required to meet UK REACH registration requirements. Work on the alternative transitional registration model is ongoing. In response to concerns about the potential costs, we are currently engaging with stakeholders, including NGOs, to develop an alternative transitional registration model for UK REACH that will help reduce the costs associated with obtaining hazard information, including from expensive EU REACH data packages, while still ensuring that industry remains responsible for the safe use of chemicals throughout the supply chain.

The model also aims to place more emphasis on improving our understanding of the uses and exposures of chemicals in the GB context, which will enable better targeting of regulatory actions. Extending the deadlines will provide certainty to industry so that it can avoid making unnecessary investments towards obtaining information for the existing registration model when that information may no longer be necessary under an alternative model.

I now turn to the second change that this SI introduces. It moves the timelines for HSE to complete its compliance checks to ensure that the information submitted by industry is of sufficient quality. These timelines have been moved in order to align them with the extended submission deadlines. We need to move the dates for these regulatory checks because the current 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. 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 set out in Schedule 21 to the Environment Act 2021. We have followed all the safeguards we attached to those powers: we received consent from the devolved Administrations of Wales and Scotland; we consulted widely with our stakeholders on our plans to extend the submission deadlines; and we published a consistency statement alongside the consultation, as required by the 2021 Act. This provides the Committee with the necessary assurance that extending the submission deadlines is consistent with Article 1 of UK REACH.

Our assessment, as outlined in the consistency statement, demonstrates that the UK REACH regime will still be able to ensure a high level of protection for human health and the environment for three main reasons. The first is the information and knowledge on chemicals registered under EU REACH available to both the Health and Safety Executive and Great Britain registrants. Secondly, 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. Thirdly, the Health and Safety Executive has the ability to seek risk management data from other sources, if necessary, as it did when acting as a competent authority under EU REACH. This could include calls for evidence or using data from EU REACH and other relevant sources that can provide Great Britain-specific hazard and exposure information.

Alongside the public consultation, we also published a full impact assessment on extending the deadlines. The impact assessment was awarded a green “fit for purpose” rating by the Regulatory Policy Committee. The territorial extent of this instrument is the United Kingdom. The devolved Administrations were engaged in the development of this instrument and are content. The Joint Committee on Statutory Instruments did not report any concerns with this statutory instrument.

The Secondary Legislation Scrutiny Committee raised four main concerns in relation to this SI and the ATR more generally, including whether the implementation deadline of 2024 is achievable; concern from stakeholders about weakening protections for human health and the environment; and concerns about the HSE’s regulatory function and the impact of the REUL Bill. As I have already commented, we are confident that UK REACH will still be able to ensure a high level of protection of human health and the environment. I will take the other concerns in turn.

In relation to the timeline for delivery of the ATR, this is a complex project. It is right that we take the appropriate time to develop the policy and test it with stakeholders. We are extending the transitional registration deadlines to ensure that we have a reasonable amount of time to do that. The earliest we can formally consult is the end of 2023, introducing legislation in 2024, and this remains our aim. The timetable is driven by both the technical and the sequential nature of the work. We are just coming to the end of an evidence-gathering project, including detailed interviews with companies including SMEs. Together with the new deadlines, this draft SI will give industry the time it needs to adapt to the new arrangements.

In relation to the HSE’s regulatory capacity, I am pleased to say that it continues to increase its capacity to take on new regulatory obligations. The HSE’s Chemicals Regulation Division increased by 46% between September 2020 and March 2022, and it has continued to build capacity over the last year. By 2025 the number of HSE staff working on UK REACH delivery is expected to grow to at least 50.

Finally, regarding the committee’s concerns about the impact of sunset provisions in the REUL Bill on this SI, I confirm that REACH was not on Defra’s list of retained EU law that it intends to remove from the statute book from 31 December 2023 following the retained EU law Bill becoming law.

I am confident that the provisions in these regulations mean that we will continue to ensure the highest levels of protection for human health and the environment, based on robust evidence and strong scientific analysis. At the same time, we are taking the necessary steps to provide industry with the legal certainty it needs to operate and to preserve the supply chains for the chemicals we depend on. For these reasons, I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am extremely grateful to my noble friend for the opportunity to debate the regulations, which I broadly support, and to share with him some concerns that have been raised—in particular, by industry.

I start with the last bit of what my noble friend said about the REUL Bill: that this is not currently on the Defra list of retained EU law that might be changed. Can he give us, and therefore industry, an absolute commitment that in the next two to three years there will be no attempt by Defra to amend or revoke this? When the REUL Bill, which is now in the other place, went through its initial stages, we learned that Defra has absolute power to review, amend and revoke any piece of primary or secondary legislation—I forget all the nomenclatures—on the statute book. We as a Committee, a Parliament and a House do not have the right to review that, so it would be fair to business to know that it is not within the sight, mind or intention of the department to amend or revoke within the next two to three years.

On 24 May my noble friend was kind enough to reply to a Question I tabled on REACH and maintaining compliance with the EU REACH programme. He repeated today that, as we speak, we do not know what the total cost of the statutory instruments and the measures therein will be. In his Answer my noble friend said that it will be £2 billion over six years, but he and the Committee will understand that it is not very helpful to those preparing—the NGOs and particularly the chemical firms involved—that the Government do not have an idea. He concludes by saying:

“Although values of chemical exports are increasing, this is not generally reflected in volume, suggesting that inflationary pressures are contributing to the figures”.


I do not expect my noble friend to be able to reply this afternoon, but I understand that the cost of paint went up hugely after the UK left the European Union and I wonder whether that is partly because of the instrument before us this afternoon and the fact that those who wish to export still comply with EU REACH and are now having to comply with UK REACH, albeit with the slight delay.

The UK chemical sector, represented by the Chemical Industries Association, was kind enough to brief me for this afternoon, and I will share with my noble friend and the Committee its concerns. It

“would like to stress the importance of urgently providing legal certainty to businesses. The current level of uncertainty around future registration requirements, expected timelines and related costs is currently not encouraging new market opportunities. While the proposal to extend the deadlines is much welcomed by industry, clarity on the viability of the future registration model will also be needed very shortly to allow sufficient time for appropriate legislation to be developed and for authorities and industry to implement it”.

When will the future registration model be available?

As regards the concerns raised by the Secondary Legislation Scrutiny Committee, I share its concern that the potential date of late 2024 is not achievable, because my understanding is that the Government are looking at a completely new design for UK REACH, including all the things that businesses are expected to do. Again, I ask my noble friend to put our minds at rest. If it is a whole new design, how, hand on heart, can he explain that the department will be in a position to complete it?

The CIA is also concerned that:

“In considering a different approach to registration, it will be essential to avoid a situation where compliance costs are simply shifted rather than reduced, for example from buying access to data under the current system to new administrative costs due to the work needed to generate a dossier under the new model”.


Therefore, I am sure my noble friend would accept that there is considerable uncertainty as to whether the registration costs can be minimised and that the industry needs to know a workable alternative registration model. The CIA is

“of the view that an effective UK REACH regime could be achieved even without requiring a full resubmission of dossiers for all substances already registered under EU REACH”.

I could go on—my noble friend the Minister is aware that I have tracked this issue for some considerable time—but I share the ongoing concerns raised by the Secondary Legislation Scrutiny Committee. I thank it for providing its report in time for us to consider it this afternoon. My main concerns are that 2024 is not achievable and that the REUL Bill gives my noble friend and his department complete power in this field to revoke or amend this without any consultation of businesses or real scrutiny in this place.

With those few remarks, I look forward to hearing my noble friend the Minister’s response.

--- Later in debate ---

[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.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

Before the Minister sits down, may I briefly raise two points? He said that a difference in exposure patterns would help to explain the differences in regulation between the EU and the UK. I tried to imagine what those differences might be. Some parts of the EU have considerably more heavy industry. We were at a joint event this morning where we were told that both have large areas of factory farming. Thinking about what people actually consume in the EU and the UK, I cannot think of any significant differences between the two that there would be in the pattern of life in terms of consumption. Either now or perhaps in writing, would he consider explaining what those different exposures are?

Finally, I acknowledge that the Minister very much welcomed and is enthusiastic about the microplastics review. What timeframe are we looking at there? I realise that he might not be able to be precise, but will it be this year or next year?

[Lord Benyon (Con)]

The noble Baroness half answered her first question. An example is that river flow is often lower in England than in the EU. That is a factor, but I will certainly go back to the department and seek further answers on that and on her subsequent question on plastics. I will certainly write to her.

Motion agreed.