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Chemicals

June - September 2017

Summary

Both the minister responsible for REACH chemicals policy, Thérèse Coffey, and the minister responsible for pesticides regulation, George Eustice, have suggested weakening EU chemicals laws, in particular on the use of generic risk assessment (a “hazard based” approach). Thérèse Coffey has also stated that the UK should not stay within REACH, the main EU regime regulating the use of industrial chemicals, as she believes this would jeopardise parliamentary sovereignty and the supremacy of the UK courts. Only countries within REACH can access REACH data, and without this data the UK will not be able to use the best source of information on chemical safety when assessing whether or not a chemical is harmful.  If a new UK system doesn’t move at least as fast at controlling the use of chemicals as the EU system, the UK would be likely to become a ‘dumping ground’ for products that had been restricted by REACH. In addition, without the EU’s authorisation procedure – which controls the use of substances of very high concern – companies would be able to use chemicals in the UK that could not be used in the EU.  This would reduce protection in the UK, but would also weaken the EU system, as it would be much easier for a company to move production to a UK plant if it were suggested they would not secure a REACH authorisation.

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Principles & strategies
Both the minister responsible for REACH chemicals policy, Thérèse Coffey, and the minister responsible for pesticides regulation, George Eustice, have suggested weakening EU chemicals laws, in particular on the use of generic risk assessment (a “hazard based” approach). In addition, the precautionary principle is a key aspect of EU chemicals policy but there is no clarity as to how this will be incorporated into UK law after Brexit. The EU’s 7th Environmental Action Programme sets out a long term commitment to a non-toxic environment, but there is, so far, no sign that the UK government plans to make the same commitment. 
Legislation
The EU Withdrawal Bill was published on 13 July with the purpose of transferring all existing EU legislation into domestic UK law to ensure a straightforward transition on the day after Brexit. The EU’s REACH system is one of the best examples of how copying and pasting EU legislation into UK legislation is simply not possible, as the UK’s chemical regulations are almost entirely determined at EU level. 

The minister in charge of chemicals policy, Thérèse Coffey, stated that the UK should not stay within REACH, the main EU regime regulating the use of industrial chemicals, as she believes this would jeopardise parliamentary sovereignty and the supremacy of the UK courts. At the UK Chemical Stakeholder Forum, she argued that the Swiss model of being outside the EEA could be explored. Switzerland does not have access to all REACH safety data, but it adopts the EU’s restrictions on chemicals, so indirectly benefits from the EU's safety data.  If the UK were to lose that data access, while creating its own chemicals restrictions, this could put the environment and people’s health at risk because the government would not be able to assess properly whether or not a chemical was harmful.

Adopting this approach creates the risk that, if a new UK system doesn’t move at least as fast at controlling the use of chemicals as the EU system, the UK would be likely to become a ‘dumping ground’ for products that had been restricted by REACH. In addition, without the EU’s authorisation procedure – which controls the use of substances of very high concern – companies would be able to use chemicals in the UK that could not be used in the EU. This would reduce protection in the UK, but would also weaken the EU system, as it would be much easier for a company to move production to a UK plant if it were suggested they would not secure a REACH authorisation. 
Capacity & funding
Defra ministers are considering creating a new chemicals regulatory system but this would not have the same scale of expertise as the European Chemicals Agency. Even a limited imitation of this agency would require a completely new system for gathering data on chemicals, assessing this data and controlling the use of chemicals. This would including a large and complex IT project which would take considerable time to deliver,  and could easily go wrong, as has happened with other, large government IT projects.
 
The magnitude of the challenge that Defra faces seems to have been vastly underestimated by the new Secretary of State Michael Gove. On 20 July, the chair of the Environment Audit Committee, Mary Creagh, asked him how he would regulate chemicals in the UK in future. The secretary of state simply replied with one word: “Better”.
Governance
The EU Withdrawal Bill was published on 13 July with the purpose of transferring all existing EU legislation into domestic law to ensure a straightforward transition on the day after Brexit.  The explanatory notes accompanying the bill state: “important functions carried out at EU level, such as the evaluation and authorisation of chemicals (…) may need to be transferred to appropriate bodies in the UK for them to continue and (have) the power to deal with deficiencies.” But it is essentially impossible for the UK to be able to recreate the comprehensiveness of the European Chemical Agency (ECHA) and its database of chemical properties and uses, which is the best in the world. Any UK system would be based on more limited safety and use data and would almost inevitably be less protective, because it would be more difficult for the government to assess whether or not a chemical is harmful.
Co-operation
The bulk of EU co-operation on chemicals occurs within the formal EU governance structures of REACH, Water Framework Directive etc – see legislation section above. The Prime Minister’s speech in Florence stated that the UK and EU share a commitment to high environmental standards, and outlined her preference for a new economic relationship that is underpinned by those standards.