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A discussion on the Government response to Environmental Audit Committee (“EAC”) report on The Future of Chemicals Regulation Post-Brexit

  • United Kingdom
  • Diversified industrials - Chemicals

18-12-2017

In the last briefing, the EAC Report was discussed. The report expresses the Committee’s concerns about Chemical Regulations, which they felt Government needed to address for the sector amidst Brexit negotiations. These points were raised in order to prompt a reply ensuring that there was a clear strategy in place, to increase transparency and to ease confusion surrounding any future legislation. The Government have now issued their response.

The Government Response

The Government have aimed to quash many of the concerns raised in the EAC report The Future of Chemical Regulations Post-Brexit from 29 April 2017 in a response published as an appendix to the original report on 29 September 2017.

They have addressed the five main points raised by the Committee; REACH will be difficult to transpose into UK law; the uncertain position on the future regulatory framework including the validity of current REACH registrations; how to continue involvement in the REACH registration process as a minimum; the cost of a UK stand-alone chemicals framework and the need to look at non-EU country’s chemical regulation to plan the UK’s approach.

In the response the Government have promised that regulation is being closely reviewed and that the UK will achieve a ‘satisfactory outcome’, acknowledging that there is a mutual interest in cooperative regulation between the UK and EU. The chemicals sector is the second largest exporter to the EU and so commitment to the safety and regulation of the industry should be a priority.

Despite this piecemeal reassurance, it is clear that many manufacturers remain uncertain about the post-Brexit legislative landscape and, as a result, the Government have been criticised after issuing this response for continuing to "fail to recognise the unique nature of the regulatory issues facing industry", according to the Chemical Business Association.

Amongst the matters raised from stakeholder’s replies gathered by the EAC, the first and foremost concern persists to be the difficulty in transposing REACH into UK law. The Government have said that compliance with REACH until exit point is expected and are encouraging stakeholders to register any manufactured or imported substances before the deadline in May. The Government have stated, in the response, that they will convert the current EU law into the UK system by way of the Repeal Bill. Whilst this helps to settle uncertainty surrounding the UK creating entirely new legislation, adaptations will have to be made in order for REACH to work harmoniously with existing UK law. This decision should please stakeholders if REACH remains largely similar and consistent when brought into the UK and should allow for seamless trading. There also remains questions about how much it will cost in order to bring REACH legislation into the UK and this cost factor will hopefully drive an approach whereby the UK does not alter the legislation significantly. However, there are concerns that if the UK modifies the legislation to a large extent, two separate regulatory systems will be created, which would promote further confusion.

The Government are keen review the Chemical Industry’s Regulation that exists in other non-EU countries in order to provide a framework for any future standalone law, and have taken on EAC advice to look at US chemical regulation, amongst others.

From the Government position at this point, UK stakeholders should expect to have to comply with product related environment legislation in order to continue to export to the EU. Even with a World Trade Organisation approach, coined the ‘entirely outside’ approach, to Brexit, UK businesses will still have a duty to comply with REACH in order to trade, regardless of whether REACH will regulate the UK.

Wider Implications of Brexit on Chemical Regulation 

In November 2017, the House of Commons published a briefing paper speaking about Brexit and the Environment.

Contained within this report is a case study addressing and surmising many of the concerns surrounding Brexit’s effect on Chemical Regulations, both for the UK and other countries involved in the industry, and explains the issues in transferring REACH. To answer these questions, the Government has suggested that a UK body may need to become the authority in registering chemicals in the UK, subject to the withdrawal negotiations. To fulfil this role and to ensure compliance with any regulation post-Brexit, The Secretary of State for Defra, Michael Gove, has announced that the UK will look to impose a new, independent body which will act as a watchdog for environmental affairs. This aims to raise higher standards than those that currently exist and will also offer companies a soundboard for any concerns. Further to this, UK based companies will still be able to use the ECHA helpdesk through the dedicated contact form.

Although the Government have attempted to answer the key issues raised by the EAC, stakeholders are likely to be left disappointed by the continuing lack of a blueprint for any future Chemical Regulation. The recommendation is to remain vigilant with REACH compliance and ensure registrations by May 2018. Many of the provisions for the implementation of REACH and the future of the regulatory landscape will be entirely subject to withdrawal negotiations and, as such, it remains a waiting game.

A link to the September 2017 Government’s Response can be found here

The Government have now reopened a forum for stakeholders to add further comment, the deadline was 20 October but written submissions may still be accepted. A link to this page can be found here

A link to the November 2017 HoC briefing paper can be found here 

https://echa.europa.eu/advice-to-companies-q-as/general

https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8132

http://researchbriefings.files.parliament.uk/documents/CBP-8132/CBP-8132.pdf

https://uk.practicallaw.thomsonreuters.com/w-006-7886?originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)&navId=CD5326575D5B8439A4B3E41010F83721&comp=pluk

https://publications.parliament.uk/pa/cm201719/cmselect/cmenvaud/313/31302.htm

http://www.parliament.uk/business/committees/committees-a-z/commons-select/environmental-audit-committee/news-parliament-2017/chemicals-regulation-government-response-17-19/

https://groups.google.com/forum/#!topic/world_wide_with_god_minstry5/jeQgvGTLgas

https://uk.practicallaw.thomsonreuters.com/w-010-6414?transitionType=Default&contextData=(sc.Default)

https://www.eversheds-sutherland.com/global/en/what/articles/index.page?ArticleID=en/Environment/future-chemicals-regulation-after-the-eu-referendum-040517

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