My Lords, the primary aim of this instrument and the Detergents (Safeguarding) (Amendment) (EU Exit) Regulations 2019 is to amend EU and domestic legislation on detergents to enable their continued operability. Both instruments amend the same EU detergents regulation and, given the close links, they are grouped for this debate. We have worked with the devolved Administrations on these instruments. The legislation amended by the draft Detergents (Amendment) (EU Exit) Regulations is a reserved matter. The draft Detergents (Safeguarding) (Amendment) (EU Exit) Regulations relate to devolved matters and the devolved Administrations have consented to that SI. These instruments make many amendments and I will highlight some of them. Noble Lords will not be surprised to learn that they are technical in nature.
The Detergents (Amendment) (EU Exit) Regulations 2019 will ensure the continuation of standards and requirements in relation to the placing on the market of detergents, while ensuring a high degree of protection of the environment and human health. These draft
regulations remedy deficiencies that will arise in the retained EU detergents regulation and the implementing domestic regulation, so as to ensure that manufacturers placing detergents and surfactants for detergents on the market in the UK continue to meet all the requirements of the detergents regulation, including composition—this includes strict limits on the permitted level of phosphorous content—labelling, data sheets and testing. Restrictions or bans are imposed on surfactants on grounds of biodegradability.
Looking at the first SI in more detail, Part 2 of the Detergents (Amendment) (EU Exit) Regulations ensures that the domestic Detergents Regulations 2010 can continue to be enforced by the relevant authorities and that penalties for non-compliance remain in place. Part 3 amends the EU detergents regulation to remedy deficiencies including corrections to references which would have no practical application to the UK after EU exit. For example, Regulations 5 and 6 remove references to the free movement of detergents in the EU internal market and to the Union customs territory in articles 1 and 2 of the EU regulation. The detergents regulation cross-refers to a number of pieces of EU legislation, including the regulations on biocidal products, cosmetic products and classification, labelling and packaging, the REACH regulations and the good laboratory practice directive. This instrument amends many of these cross-references, ensuring they are up to date so that they will continue to work on exit day.
This instrument also sets out how the returning EU powers, including those on decision-making currently exercised by the European Commission, will return to the UK after EU exit. As the competent authority for detergents in the UK the Secretary of State will exercise those powers, taking expert advice as appropriate. In practice, the work of the competent authority will effectively continue to be undertaken by the Health and Safety Executive under an agency agreement with Defra. The HSE’s existing capability and capacity can be built upon to take on UK regulatory authority responsibility. However, additional requirements from this SI for the competent authority are minimal.
Relevant functions to be transferred to the Secretary of State include the power to consider granting a derogation for a product—regulations 8 and 9—and the power in regulation 10 to determine disputes about testing methods for a product. The derogation provision has been used only very rarely at EU level. In the case of disputes about testing methods, a manufacturer may appeal a decision by the Secretary of State to a court.
Member states are currently required to notify to the Commission the list of approved laboratories that are authorised to carry out the tests required by the regulation. Through regulation 11, provision is made so that tests required by this regulation may be carried out by approved laboratories and the Secretary of State must publish that list. In practice, the HSE will publish the list.
Regulation 12 amends Article 9 on the information to be provided by manufacturers. Article 9(3) requires that manufacturers placing detergent products on the market shall make available an ingredient data sheet and that member states may request that such a data
sheet be made available to a specific public body to which the member state has assigned to the task of providing this information to medical personnel. This article is amended to specifically refer to the National Poisons Information Service or such other body to which the Secretary of State or the devolved Administrations may assign for this purpose. NPIS already undertakes this role across the UK.
The power of the Commission to adapt the annexes to the regulation in line with scientific and technical progress is transferred to the Secretary of State in regulation 16. The Secretary of State will be able to do so by making a statutory instrument.
I turn to the draft Detergents (Safeguarding) (Amendment) (EU Exit) Regulations 2019, which amends the safeguarding clause in article 15 of the detergents regulation. Currently, member states may take provisional measures in relation to those detergents which fully comply with the EU regulation but which nevertheless pose a risk to the safety of humans or animals or a risk to the environment. Member states intending to use the safeguard clause must immediately inform the Commission, documenting their reasons. Regulation 3 amends article 15 of the EU detergents regulation. The Secretary of State and the devolved Administrations —where the matter is devolved—will have the full powers currently held by the European Commission and member states to initiate urgent, temporary safeguarding action across the UK in relation to detergents. Although there was no statutory requirement to consult on this instrument, HSE officials have engaged with industry.
In March 2018, a round of one-to-one stakeholder meetings with trade associations was held in relation to chemicals legislation generally. The main TA with an interest in detergents and cleaning products is the UK Cleaning Products Industry Association, or UKCPI. No particular concerns were expressed at that time in relation to these detergents regulations.
The JCSI did not report any concerns with these instruments. The SLSC noted that,
“HSE’s responsibilities after EU exit will expand significantly as a result of these and other instruments; it will need to be resourced adequately to carry out its new functions”.
As I set out earlier, the Health and Safety Executive currently acts on behalf of the Secretary of State, who is the competent authority for detergents legislation, and any additional requirements from this SI are minimal.
The SLSC also asked Defra about the use of the safeguarding mechanism and whether the fact that the UK will no longer have access to the EU’s information-sharing systems will mean greater health or environmental risks. The department responded that while the UK would lose access to information sharing systems such as the EU’s rapid reporting and response system, or RAPEX, in practice the safeguarding mechanism was very rarely used—just twice since 2004—and the impact was therefore likely to be low. The UK will still have access to the publicly available information on RAPEX and to the new product safety database established by the Department for Business, Energy and Industrial Strategy. I beg to move.