REACH etc. (Amendment etc.) (EU Exit) Regulations 2020

Lord Fox Excerpts

Tuesday 8th December 2020 Lords Chamber

[Lord Fox (LD)]

My Lords, at the start of this debate, the disembodied voice of the Minister floated out over the Chamber. I was reminded of an airline pilot seeking to calm his passengers as unwelcome noises came out of one or two of the engines. Here, in the economy seats of the cabin, anxiety remains high—and, indeed, following this high-quality debate, it is probably higher. Whether through complacency, underestimation or shortage of resources, it is clear that Defra and Ministers have taken an iterative approach to this issue, with statutory instruments following statutory instruments. There have been tweaks and improvements along the way, and we should welcome those.

In essence, the long and detailed speech that I made when the first of these statutory instruments was introduced remains true. Then, as now, the Government played deadline roulette. They introduced deeply unsatisfactory secondary legislation just before it might be needed and dared the opposition to stymie or kill it. This is not the best way to get regulation right. I will not repeat the issues set out by the experts in today’s high-quality debate, but it was amazing to hear a Conservative Minister flow over the idea that one of the most important industries in this country will be burdened by £1 billion of extra costs with no benefit whatever. Here is growth that will not happen, taxes that will not be paid and public services that will not be supported. It is absolutely insane that we countenance this approach.

As your Lordships have heard, the big cost is in data, or in the prospect of having to duplicate data merely to re-register chemicals that are already legal in this country. At one point, we had hoped that the Government would seek associate membership of ECHA, but this seems not to be the case. It is disingenuous for the Minister to try to separate UK REACH from this statutory instrument. This SI is, de facto, a central part of UK REACH and it is, therefore, perfectly legitimate to have this wider debate today.

It seems clear that no kind of data sharing will happen on 1 January, with or without a deal. As we heard from the noble Viscount, Lord Hanworth, the Government have said that it will be supplemented by publicly available data. Like the noble Viscount, I contend that using public data is a non-starter. It is just not adequate for implementing controls or for defending those controls against litigation, which is what will happen. In the event that data is not rolled over, the Government have also said that animal testing of substances already registered under EU REACH will not have to be duplicated under UK REACH. However, if we get to the end of the grandfathering process and companies wishing to register chemicals have not had access to these data, either the HSE will have to lower its data standards or new data will have to be generated. Which do the Government prefer: less data, and therefore less safety, or new data, which will inevitably lead to more tests, some of which will be on animals?

Divergence will be a massive burden on industry. The EU recently announced a big reform of its chemical safety laws, which will lead to a rapid divergence between where we are now, with UK REACH, and where the European situation will be. What is the Government’s view about divergence? Will they actively seek to track the EU, or will they simply head off in the opposite direction? If it is the latter, the situation in Northern Ireland will become even more untenable and harder to manage. I had prepared a detailed description of how difficult things would be in Northern Ireland, but I shall forgo it and refer your Lordships to that given by the noble Viscount, Lord Trenchard. If he and I both think it will be total chaos, there is a fair chance that it will be.

The position of the HSE and its ability to regulate the chemicals market in this country is clear. It will not have the firepower it needs to deliver the safety it needs and support to industry it needs or do what this country needs to have a safe, functioning chemicals industry. This is a mess of the Government’s making. Your Lordships have tried to sort this mess out in the past, and there have been improvements. Whether or not we vote for this regret amendment, the Government have to go back and think again. The passengers in the aircraft are anxious, but that anxiety may not be irrational; it may be a rational response to a real problem that will create great difficulty for one of our most important industries and for a product that affects and touches everybody, every day and all the time in the United Kingdom.