Product Regulation and Metrology Bill [HL]

Lord Browne of Ladyton Excerpts

Committee stage
Monday 25th November 2024 Grand Committee

[Baroness Brinton (LD)]

My Lords, REACH regulations cover the safety of chemicals. We simply ask: how can the Bill regulate cosmetics without considering the safety of the chemicals used to manufacture them? I do not buy the idea that Defra is in charge of chemical regulations—in the same way that the DWP is in charge of the chemicals database, other than via its responsibilities in managing the Health and Safety Executive. I will come back to a regulation that the DWP presented to the Grand Committee last year. So, should the Bill ignore chemicals or not? We need an explicit reference in the Bill to cover it. We have talked a lot about AI but the use of chemicals is equally important, particularly in online marketplaces.

I am sure that the selection of EU REACH rather than British REACH will raise certain hackles. I would grab any REACH in a storm, but the EU one is a system that functions, unlike its British cousin, which has proved expensive to business and is failing to react to new challenges.

Over a year ago, I was substituting for my noble friend Lord Fox when the biocidal products regulations 2022 were being discussed in Grand Committee. I think that none of us, including the then Minister, if she were honest, knew very much of what we were talking about. However, it was the most illuminating regulation that I have ever taken part in. We discovered that this was, in essence, a time extension for the use of the EU chemicals database, because Whitehall had not understood that the day we left the EU, we would lose access to the chemicals database. As a result, the Health and Safety Executive had to take on a very large number of staff. Its chemicals sections had increased by 30% to try to rewrite the chemicals database while also consulting with users, whether they were manufacturers importing, exporting or creating in this country. We know that there are systems out there that work but because of our bizarre structures, we tend to have government departments that are not focused on chemicals.

The cosmetics industry imports many of its ingredients from the EU, and often in very small quantities. These would certainly be covered by EU REACH, because these sales represent such a tiny proportion of total production. If there were a substantive difference between EU REACH and British REACH, it is unlikely that the manufacturer would invest in accrediting its products in the UK, causing the UK cosmetic manufacturer either to stop making its product or to move manufacture to the EU—hence my noble friend Lord Fox’s proposal about REACH in this amendment.

Can the Minister confirm whether, under the terms of the Bill as it stands, if a product contains a chemical that was allowed by EU REACH but blocked by British REACH, and yet it conformed to QC standards, it would be legal in Britain? That is what this amendment seeks to clarify. Given the interconnected nature of the UK and EU chemicals industries, it offers a route for aligning the UK chemical regulation with that of the EU. But perhaps the Minister thinks that the current wording of Clause 1(1) means that it could be used to amend and update UK REACH to align with EU REACH. I beg to move.

[Lord Browne of Ladyton (Lab)]

My Lords, I will speak to both amendments in this group, and I thank the noble Baroness, Lady Brinton, for her introduction of them.

When examining the purport of these amendments and considering whether to include provisions that require us to adopt regulations that correspond with the EU’s REACH provisions, I suggest that the metric by which we should judge that is simple. Would doing so make the people of this country safer? Every other consideration should be secondary to that.

As I said both at Second Reading and in Committee last week—I apologise to those who have heard this before, but it is worth repeating—the past few years have seen a significant divergence between the UK’s approach to chemical regulation and that of the EU. The previous Government decided to leave REACH—the EU’s body responsible for the registration, evaluation, authorisation and restriction of chemicals and their regulations—and to set up a parallel organisation.

Since then, we have not adopted a single registered restriction on a harmful substance, compared with 10 new protections offered by EU regulation, including on harmful microplastics deliberately added to products. While REACH has regulated PFAS in the EU, not a single river or water body in England is in good chemical health. Since we left REACH, the EU has initiated 23 risk assessments related to harmful substances, while we have initiated three.

In considering why that is the case, I point to two contextual factors. This is not a function of the legislative constraints. The Government have the power under the EU withdrawal Act and Schedule 21 to the Environment Act to adopt new restrictions and controls where necessary. However, reviews undertaken by the NAO and the Public Accounts Committee in 2022 pointed to a lack of operational capacity and insufficient data as factors that have hampered the ability of the UK’s chemical regulator properly to do its job. For instance, brominated flame retardants were identified as a risk to health and globally significant exposure rates were identified in this country. Indeed, they were identified as a regulatory priority over two years ago and a review was promised. So far, no review has been published and it is difficult to discern how this apparent priority has been acted upon, if at all.

However, while the EU has added eight flame-retardant chemicals to its list of substances of very high concern, no substances in this category have been added to the parallel UK list. The EU restrictions road map has proposed a ban on brominated flame retardants while no equivalent step has been proposed, let alone planned. This is not because we have data which diverges from that upon which the EU has based its conclusions but because we are working more slowly. I vividly remember the promises of greater regulatory agility and speed which would inevitably result once we were free of the sclerotic influence of the EU. This example is but one of many—including lead in PVC, polycyclic aromatic hydrocarbons in synthetic football pitches and formaldehyde in wood furniture—which suggest that far from being more agile and responsive, our current system of chemical regulation is slower, less efficient and consequently less safe than its predecessor.

In April this year, Hazards magazine published a parallel analysis of the 25 new standards that have been introduced across the EU since our departure in 2020 and the UK’s response. Of the 25 standards, 12 were identical. There were 10 in which the UK’s standard was weaker, sometimes significantly. Only in one case has the UK adopted more protective measures than the European standard. Again, this is suggestive of regulatory incapacity as much as a deliberate exercise of our power independently to regulate.

Fiscal stringency creates significant challenges in remedying this situation, but both these amendments obviate the need for the otherwise necessary significant increase in investment in our chemical regulator. Ensuring that our domestic regulations correspond with those of REACH not only offers greater safety but removes a barrier to trade and promises to ease the burden on our chemical regulator which, as I said earlier, the NAO and Public Accounts Committee suggested has compromised its ability to work with appropriate speed.

At Second Reading, my noble friend the Minister said, in response to a question from the noble Baroness, Lady Brinton, that the Government are currently considering the best approach to chemical regulation in the UK separately to this Bill. In deciding our approach to these amendments, it would be extremely useful if my noble friend who is responding to this debate could at least give us an idea of the direction of travel on this. The noble Lord, Lord Fox, made the point also at Second Reading that the absence of such a Bill from the King’s Speech makes it unlikely that we will see it in this Session. That being so, what plans do the Government have, in the absence of adopting the amendments that are the subject of this discussion, to exercise the powers in Clause 2(7) to ensure that we catch up and keep pace with the EU chemical regulation?

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[Lord Browne of Ladyton (Lab)]

If I have understood my noble friend’s response to this debate, do the Government accept the NAO and Public Accounts Committee’s assessment that UK REACH lacked capacity to do its job? If so, has Defra allocated sufficient funding to bring it up at least to the productivity of EU REACH in the quantity of assessments, recommendations and decisions that it makes? The statistics show that it is not doing anything much in this space.