Environment Bill

Lord Whitty Excerpts

Committee stage
Wednesday 14th July 2021 Lords Chamber

Moved by

[Lord Whitty]

293E: Schedule 20, page 247, line 19, at end insert—
“(1A) Regulations made under this paragraph must not reduce the protections or standards of any Article or Annex of the REACH Regulation.(1B) Subject to sub-paragraph (1A), the Secretary of State may by regulations seek to maintain or exceed regulatory parity with any new or amended regulations of the European Parliament and of the Council concerning the regulation of chemicals. (1C) The Secretary of State must prepare an annual report explaining each decision not to align with new EU restrictions and authorisations on chemicals, and Candidate List Substances of Very High Concern.(1D) The annual report must include an assessment of the environmental, economic and public health impact of any such decisions.(1E) An annual report must be laid before Parliament before the end of the 3 month period beginning immediately after the last day of the period to which the report relates.(1F) The Secretary of State must publish annual reports laid before Parliament under this section.”Member’s explanatory statement
This amendment would remove the possibility that a Secretary of State might lower standards that are in place currently while enabling them to easily meet or exceed new EU chemical protections and standards. It would also place an obligation on the Government to transparently justify any decision to deviate from EU control on chemicals.

[Lord Whitty (Lab) [V]]

My Lords, this amendment amends the rather confusing Schedule 20 and would clearly and unambiguously provide that UK standards for the production and use of chemicals would not regress or fall below European standards without a clear and transparent justification from Ministers for so doing being presented to Parliament and reported on annually.

At present, the default position is that, if the European regulatory position on chemicals changes or, even more importantly, deals with new chemicals which have not previously been covered, the UK would remain where we are—in practice, at the end of the transition period. This is going back a bit. Those with long memories might cast their minds back to the immediate post-Brexit vote period and the 2016 EU withdrawal Bill. Some noble Lords might remember that, during the lengthy proceedings on that Bill, I took a particular interest in the future relationship between this country and the executive agencies of the European Union, of which there were about 40, one of them being the European Chemicals Agency.

That was one of the most important of them, for a number of reasons. The chemicals industry was and is the most integrated of all European industries, in its production of chemicals across borders, in its trading of those chemicals, which many downstream industries and firms use, and because thousands more businesses and consumers use the products of this integrated pan-European and international process. Those thousands of chemicals have a potentially dangerous impact on humans, animals, nature and the environment, and all of them were subject to registration, authorisation, testing for toxicity and other potential harms, and restrictions on use by the European Chemicals Agency—a process that was respected by the industry, by scientists and intellectual property lawyers and, in the main, by campaigning environmental and medical groups across Europe.

We could have negotiated a special arrangement with ECHA, as Norway did. Indeed, the then Prime Minister, Mrs May, in what was at that time seen as her definitive Mansion House speech, singled out the European Chemicals Agency as one of only three EU agencies with which her Government considered that we needed to maintain an involvement. The rationale for retaining that involvement was clear to much of the industry: for chemical registration and authorisation, to do anything else would mean duplication for industry and user businesses.

However, when his regime took over, the present Prime Minister apparently decided that duplication was just what we wanted, so instead we established a parallel REACH process, put under the control of the HSE. Producers of chemicals, and also importers, exporters and manufacturers of downstream products, and retailers and users of those products, have to check registration with UK REACH administration, even if it has already been cleared by REACH in Europe. Complications abound—of paperwork, legal access, and intellectual property rights—and so does the possibility, debated earlier in Committee, of duplication of testing, on animals in particular.

At the time of the withdrawal Bill, I and others sought assurances that the HSE would have the expertise, the staffing levels, the money, and the resources, to conduct this duplicate REACH process. Ministers gave those assurances nonchalantly, but in the few months of operation since the end of the transition period, those assurances have appeared to be hollow. We have not been able to match the European Chemicals Agency system. The UK has already fallen behind on new registrations and restrictions of substances of very high concern: those chemical products which have intrinsic hazards—carcinogenic, mutagenic, toxic et cetera—to humans.

Since the end of transition, ECHA has dealt with eight new substances of very high concern, whereas the UK parallel system has dealt with only two. Therefore, the UK has not added conditions for six of those substances, which may well have significant conditions on their use. These include three flame retardants and a toxic endocrine disrupter. Thus, we have ended up in a position where we have de facto divergence through institutional slowness, which in practice means that UK standards already not only diverge from but are lower than EU standards.

I recognise that it will take time for the new UK system to get fully into gear. Hopefully, the HSE process will speed up, but the key issue—and the basis for this amendment—is not the rights and wrongs of duplication, but divergence, and of the UK adopting or failing to adopt standards that, in practice, means lower standards in the UK; whereas we were constantly assured during the passage of the withdrawal Bill that our standards would be at least as good as EU standards. At present, as I say, we are seeing some divergence by default. Now I accept that, in future, there may well be good reasons for divergence, but if the protection and conditions are less in the UK than in Europe, divergence needs to be clearly justified publicly and scientifically to Parliament and beyond.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

I am very happy to take both issues back to the department.

[Lord Whitty (Lab) [V]]

My Lords, I thank the Minister for that reply, which attempted to reassure me—I am not sure it did entirely. I also record my thanks to the noble Earl, Lord Dundee, the noble Baronesses, Lady Bakewell and Lady Bennett, and my noble friend Lady Hayman for their support for this amendment.

The Minister attempted to be reassuring, but the wording of Schedule 20, introduced by Clause 133, does not give the cast-iron guarantee that she appeared to be giving. I appreciate that there are other developments in this Bill and elsewhere which would restrict her or any future Minister’s freedom of manoeuvre in this area, but an explicit requirement to report to Parliament if they intend not to follow the EU level of protection is important. I do not think that the combination of Schedule 20 and the text of the Bill delivers that. I ask the Minister to get her officials to have another look at it, but if she were forthcoming with an alternative amendment herself I would certainly have a look at that.

Chemicals have been a great boon to mankind. The chemicals industry is one of our great successes in industrial life, but it has also been shown to be quite damaging in a number of serious respects. The misuse of chemicals, the wrong disposal of chemicals, the wrong combination of chemicals and the wrong application of chemicals to humans, products, the landscape and the environment have caused a large number of problems. It was therefore important that Europe, when we were members, developed an effective system of regulating chemicals; effectively, if there was no data indicating their safe use, they would not be given access to the market. That is the basis of REACH.

I was interested in the views of the noble Baroness, Lady Neville-Rolfe, and I know that she reflects serious concerns from parts of industry. On this one, I think she is slightly out of date. It was certainly true when REACH started to be established, from 2007 roughly, that there was considerable concern throughout the chemicals industry that the regulations and the data required would be too burdensome, prevent innovation and cause difficulties for the sector. That concern continued for a number of years, but two things have happened since.

First, public concern about the impact of chemicals on human health and the environment has seriously grown, and so likewise has the industry’s recognition that it needs a robust system of regulation to which it can be party. Secondly, the REACH system has bedded in across Europe. As I said in my speech, we must recognise that the European chemicals industry is pretty pan-national, in terms of both large companies and small companies with which they have a supply chain or a contractual arrangement, as well as importers and exporters. There is a lot that the industry has had to get used to, some of which it did not initially like, but it has now proved a rather more effective system of regulation than some others in the armoury of the European Commission, I would argue, and certainly much more accepted, both scientifically and by those who are concerned, and by the industry itself. It was therefore a bit of a surprise to hear the noble Baroness express such concerns—there may be some companies still upset by it, but in general it has been accepted.

I also think that the decision to duplicate on the same basis, in effect, as the European system has caused some frustration to industry but it is that duplication, rather than the essence of the European regulatory structure and regulatory process, that is causing any irritation now. That may also settle down. What I hope for in terms of those who are looking for protection from the impact of chemicals is that the HSE, Defra, the Environment Agency and everybody else who is involved in this area develop a speed of reaction that matches that of Europe. If they do that, then duplication ceases to be quite so important.

At the moment, that is not the case and we therefore potentially have three different sorts of divergence. We have a divergence because Europe has moved on but we have not got round to doing it—I call that divergence by default. We have divergence because the UK has decided explicitly that it wants a rather different system that would be less restrictive than Europe. We have divergence because the UK has decided that it wants better regulation. Both of those are possible under my amendment but they have to be explained to Parliament and justifiable in the terms of the original REACH proceeding. I do not think that the wording of Schedule 20 gives that degree of certainty. We need more clarity, not less. We need more understanding of what we are trying to protect in the chemicals regulation in terms of its impact on human health, animal health and welfare, wildlife and everything else this Bill is concerned with before we try to change the system significantly.

Therefore, this is an attempt to ensure that there is no regression, that any divergence is beneficial and that it is clearly explained to Parliament. I hope that the noble Baroness, Lady Neville-Rolfe, and others who might oppose this amendment recognise the importance of that. However, I take comfort from the support around the rest of the Committee for at least the principle of this amendment. In the meantime, I will withdraw it and we will, no doubt, come back to something like this on Report.

Amendment 293E withdrawn.