Exiting the European Union (Consumer Protection)

Matthew Offord Excerpts

Monday 25th February 2019 Commons Chamber

[Dr Coffey]

The costs are still going to be significant for administering our own chemicals system in future, but I can assure my right hon. Friend that the safety standards will be consistent and, indeed, we will continue to learn from ECHA in future. As he will be aware, in the future economic relationship that has been put forward through the political declaration, and in ongoing statements by my right hon. Friend the Prime Minister, we would seek to become an associate member of ECHA in future to share these things in order to try to reduce or mitigate some of the challenges that people like Rolls-Royce are anticipating. But that is not yet an agreed matter, and it is important that the Government set before the House appropriate regulations to make sure that we have that continued safety of chemicals.

Before I explain the provisions further set out in the SI, I want to emphasise that we are absolutely keeping the fundamental approach of REACH, with its aims of ensuring a high level of protection of human health and the environment, as well as enhancing innovation and competitiveness. The building blocks of REACH will all remain: industry’s primary duty to understand the hazards and risks of chemicals and to ensure safe use, all tied to the principle of no data, no market; registration by industry of the chemicals it produces and places on the market; dossier evaluation by the regulator of at least 5% of registration dossiers to check compliance and quality, exactly as ECHA is expected to do today; and substance evaluation, which is investigation by the regulator of outstanding concerns about a chemical often leading to a requirement on industry to fill the knowledge gaps. The UK has been responsible, through ECHA, for making sure that there have been 24 evaluations—for example, of the chemical climbazole, which is used in anti-dandruff shampoos but is suspected of causing feminisation in fish. Then there is the authorisation process that forces industry to apply for and justify continued use of substances of very high concern. Finally, there is restriction of the most dangerous chemicals where unacceptable risks remain.

On the definition of duty holders, article 3 of schedule 1 of the statutory instrument changes the definitions of the various industry duty holders so that they refer to the United Kingdom rather than the European Union. Obviously, this is a simple change, but essential. Without it, UK industry would have no duty to ensure the safe use of the chemicals it produces and uses.

UK REACH will continue with an independent regulatory agency to carry out a central role with a range of technical, scientific and administrative functions—the role that is currently carried out by ECHA. The statutory instrument allocates this role to the Health and Safety Executive under article 2A of schedule 1. The HSE will receive industry’s registrations of chemicals. It will make many technical decisions itself—for example, in dossier and substance evaluations, as well as in scrutinising authorisation applications and making scientific recommendations on restrictions. This builds on the HSE’s existing activities as the UK competent authority for REACH. At the same time, the Environment Agency and the devolved environmental regulators will have the role of providing the advice that the HSE will need on environmental matters, as set out in article 2B of schedule 1.

The HSE, as the UK agency, must also draw on independent expert scientific advice when developing its opinions on restrictions and authorisations. This will add to the robust evidence and analysis underpinning its opinions. We expect the HSE to obtain external advice, but there may sometimes be reasons why it does not feel it needs to do so, such as where ECHA has already published a robust opinion on a chemical. In such cases, where the HSE decides not to take further scientific advice, it must publish its justification, as set out in article 77. Finally, appeals against the HSE’s decisions will be heard by an independent body, the first-tier tribunal, as set out in article 91.

[Dr Matthew Offord (Hendon) (Con)]

The Minister will be aware that I have some concern about the REACH regulations after we leave the European Union, but I am aware that we are talking about the statutory instrument and how it affects the United Kingdom leaving the European Union. She said in response to one of my written parliamentary questions that she wishes to have associate membership of REACH. Although I am not convinced that can actually happen, can she provide me with some kind of reassurance that the Environment Agency currently has the capability to ensure that compliance will continue after we leave the European Union?

[Dr Coffey]

I am conscious of my hon. Friend’s desire to have an ongoing relationship with ECHA. As I have already set out, that is the Government’s desire, too. The Environment Agency is recruiting an extra 10 staff, and the HSE will be taking on an extra 35 to 40 people to help fulfil the functions it already undertakes today. My understanding is that we have estimated the future cost of running UK REACH to be about £13 million a year. By way of comparison, ECHA itself costs about £80 million a year to look after 28 member states. That is why we believe that we are putting in the necessary resource to make sure that the HSE, the EA and, indeed, other regulators are able to play their part.

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[Dr Coffey]

No, I do not need to give way on that point.

One way or another, the Government will have the information they need to ensure that we have a safe system.

As my right hon. Friend the Member for Wokingham (John Redwood) set out, REACH places a registration duty on importers of chemicals. This will be new for companies that import from the EU or the European economic area, as they are currently covered by their supplier’s registration. That is why we are giving them a two-year grace period, which will give them time to adapt and will protect supply chains. In the meantime, they must send information to the agency within 180 days to provide assurance that they know how to manage the chemicals safely—that is set out in proposed new article 127E in schedule 2. We will keep both two-year deadlines, for grandfathering and for downstream user registrations, under review.

[Dr Offord]

rose—

[Mary Creagh]

rose—

[Dr Coffey]

I would like to bring this to a close fairly soon, because I am conscious that some Members have put in to speak, as would normally be the case rather than the Minister taking interventions.

[Dr Offord]

I am grateful to the Minister for taking interventions, which we are seeking to make because we have specific questions on which she can provide us with advice. Is it the Government’s intention, post-Brexit, to update regulations in compliance with REACH to ensure that the two systems work side by side?

[Dr Coffey]

In effect it will be for the HSE, as the regulator, to make decisions on each level of the process. I have no reason to doubt that the HSE and ECHA will have similar principles in how they go about this. We are not seeking a change in any policy to move away from the REACH process.

It is fair to say that the UK has been trying to get some chemicals restricted much more quickly than ECHA and other EU member states have sought, so there may be opportunities to move more quickly on some of these matters. Again, it will be a judgment call for the HSE on whether to make that recommendation to the Secretary of State.

As for stakeholders, we held a series of informal briefings last summer at which we outlined the proposed regulatory approach, and representatives from the chemicals sector and beyond and other stakeholders, including non-governmental organisations and scientific societies, came to those briefings. Since then, we published a technical notice in September and additional guidance in December and continued with more stakeholder engagement to explain in detail what UK REACH is and what it means for industry. The House will also be aware that I invited MPs, particularly those with chemicals companies in their constituency, to attend briefings.

I recognise the concerns about why businesses have to submit data to the HSE when they have previously registered with ECHA and the potential costs involved. Such concerns were also expressed in the report by the Secondary Legislation Scrutiny Committee in the other place. As the Government said in the White Paper, we want a strong deal under which the UK will continue to participate fully in EU REACH and the work of the ECHA. The impact assessment considered the question of data in detail, and the Regulatory Policy Committee stated that the assessment used a proportionate level of evidence to support estimates of the impacts, including impacts on business. We should not expect a repeat of the costs of complying with EU REACH. For example, businesses that have already invested in putting together the EU registration dossier will not face administration costs again.

To be clear about the importance of information. The “no data, no market” principle is fundamental to REACH, and we will not weaken that in any way. It underpins effective chemicals management by both industry and the regulator. We cannot rely on the fact that such data has already been sent to ECHA. It is simply not correct to say that a chemical is deemed to be safe once it has been registered under EU REACH. Registration is how a company shows its understanding of the hazards and how to control the risks, but it does not mean that ECHA and other regulators have approved that chemical or endorsed it as safe.

ECHA will not evaluate the UK dossiers that it received for the June 2018 deadline. ECHA has also stated that, in the majority of dossiers it opens for evaluation, it needs to follow up with requests for important safety information on chemicals, meaning that the company’s safety measures may also not be adequate. Only the UK agency will be able to provide the assurance that chemicals are safely managed in the UK. To give a sense of scale, we will be grandfathering over 12,000 registrations into UK REACH—35% of them from 2018—representing 5,700 chemicals. Looking forward, we would then expect 50 to 100 new chemicals to be registered each year. We have much less understanding of how many notifications there will be for chemicals imported from the EU, because there is currently no duty to report that information in most cases. That emphasises the importance of the notification process so that we know what chemicals are being used in the UK.

REACH is one of the largest and most complex pieces of EU legislation and Members and others have rightly wondered how we would transfer it into UK 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.