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.
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Divergence for its own sake was never a sensible policy. Divergence to lower standards was declared by the present Government not to be their aim. Divergence by default was deemed impossible but has already apparently happened. Divergence simply for a trade
advantage, moreover, would likely trigger retaliatory action from the EU. This amendment would mean that the default position would instead always be to stay in line with existing and future EU standards, unless there was a clear, transparent and publicly justified reason for not doing so. That would protect our people and our environment. It would avoid many of the costs of duplication and of testing, and regulatory alignment would support free trade within an often highly integrated multinational supply chain.
The supposed benefit of post-Brexit regulatory divergence would of course still be open to Ministers, but they would have to be fully and explicitly justified. Ministers would be able to introduce UK standards that were higher than the European ones or that better reflected UK conditions. That option is indeed a possible benefit of Brexit. But what Ministers could not do, if this amendment or something like it were adopted, is to just leave the regulations as they were before transition or simply have no regulations because the European agency has only dealt with a substance or its application since Brexit. This is particularly important because the European agency is now focusing in some cases on cocktails of chemicals, which it had not explicitly dealt with prior to Brexit. That is a development within ECHA that we need to follow.
As we saw when we discussed pesticides the other day, there are human health and environmental hazards arising from cocktail combinations of chemicals that can be different from and often more dangerous than those of individual chemicals used and regulated on their own. The noble Lord, Lord Goldsmith, indicated that, in the case of pesticides, he was not clear whether cocktails of chemicals were being addressed; the reality is that they are not. But the European agency has now embarked on a programme that does address such combinations of more general chemicals. It is not clear, however, that the HSE and UK REACH have any plans for equivalent processes.
I will take another potential example. The European body has started on a process of restricting microplastics use, whereas the HSE and UK REACH appear to have no plans for an equivalent process beyond what they have already started with microbeads in cosmetics, which in practice account for less than 10% of the problem.
This amendment would also prevent Ministers reducing the current protections, which in general means that the regulations under what was EU law are now transposed into UK law. At least, they could not do so without explaining themselves to Parliament. This is not just theoretical. In 2019, a change in endocrine disrupting chemicals nearly slipped through our processes via secondary legislation, until it was spotted by the UK Trade Policy Observatory. The Government then had to retract and correct it.
My amendment would therefore prevent regression from current standards and, crucially, also ensure that we kept up with European standards unless Ministers presented to Parliament a good and transparent case for divergence. What it avoids is regressive divergence and divergence by default. I beg to move.