Chemical Brexit

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Una Jefferson: Could you start by explaining what the REACH regulation is and why the prospect of Brexit is relevant for this regulation?

Simon Tilling: The REACH regulation, which stands for the registration, evaluation, authorization and restriction of chemicals is the European Union’s landmark piece of legislation to govern chemicals on the EU market and to control the hazards of chemicals from an environmental and safety perspective. It is one of the EU’s most complex piece of legislation ever passed and it’s quite radical in what it’s ought to do. It takes all of the chemicals on the European market, even the ones that have been on the market for many years, and it makes those who produce those chemicals responsible for determining the hazardous properties of those chemicals and submitting that data into a central European agency called the European Chemicals Agency.

So it’s a piece of legislation that’s been around for over 10 years now. It’s had 10 years of transitioning into full effect, and billions of euros has been spent compiling this data and submitting it to this European Chemicals Agency. And because it’s a common market regulation, it applies automatically through all of the EU member states or currently 28 member states, which includes the United Kingdom.

So the reason it’s really topical now with the subject of Brexit is that for many years, the UK has simply been part of the EU regulatory regime for chemicals. It’s not needed to have any of its own systems or controls. But as the UK is to exit the EU, it now needs to work out what it’s going to do with chemicals regulation and how it might replicate or replace the EU REACH regulation.

Una Jefferson: So the UK government has just put out a piece of regulation which gives a bit more detail on what might happen if the UK were to leave the EU. Could you lay out a few of the possible scenarios on what might happen with chemicals regulation in the UK?

Simon Tilling: So the way that the UK has tried to deal with the huge bureaucratic exercise of replicating European law into UK law is that it has passed something called the European Union Withdrawal Act through the UK parliament. And that says very bluntly, everything that was European law now becomes UK law on the day of exit. But it’s very easy to write into a piece of legislation that what was European law automatically becomes UK law.

But where the chemicals regulation REACH in particular causes difficulties is that for REACH, it’s always been at the European level. The thing about REACH is that all of the mechanisms that make it work, like the European Chemicals Agency, the European Commission, they clearly won’t support UK after Brexit.

So for many months, pretty much ever since Brexit, the chemical industries and the manufacturing sector who heavily rely on chemicals, have been saying to government, what exactly are you going to do about replicating the European Union REACH regulation in the UK? What would it look like? Who will govern it? Who will make these really important decisions? And it’s only in January that we’ve had the answers to that. We’ve had a piece of legislation which very boringly is called the REACH, etc. Amendment, etc. EU Exit Regulations, which as dull as it may sound is actually really important, because it tells us properly for the first time how the UK is going to actually replicate a UK REACH to run in parallel to do the same things but in a different system to the current EU REACH.

Una Jefferson: My sense from reading a little bit about this is that most people in the UK would very much like to remain a member of the European Chemicals Agency and it’s the EU member states who have been saying, no, you can’t pick and choose.

Simon Tilling: That’s exactly right. It really comes down to the heart of what the UK is trying to achieve out of exit from the EU. There’s no doubt everybody in the chemicals industries and manufacturing industries that rely on chemicals has said there’s no real point to replicating REACH. Why don’t we all stay part of REACH. And the UK government has said, well, to be honest, that is a good idea. Why would we go to the trouble of replicating all of the work that the European Chemicals Agency and the bodies that support it? Why would we replicate all of that in the UK when we want to keep it as close to the EU approach to chemicals as we possibly can.

So there is very little rationale to setting up our own independent chemicals agency and running our own UK REACH, except for the fact that the whole logic of the European project and the single market is, it’s one package of measures everyone buys into. If you want to be part of the single market, you accept all the freedoms. Now the whole package is worn and you’re not allowed to say, well, it benefits our manufacturing and chemicals industry to stay part of REACH and part of the UK Chemicals Agency while not allowing, for example, the free movement of people. So The European Union have said if we start picking the threads of that, then what’s to say that other member states won’t say, well, we want the deal like the UK has got now where you can pick and choose the regimes. So that’s the political reason why it’s difficult to have a single regime..

Una Jefferson: Do you think it’s fair to say that the regulation that the UK has put forward is proposing the best system that they can for replicating REACH within the UK, given that they can’t actually remain part of REACH if they do leave the European Union?

Simon Tilling: Absolutely, and I think we have to remember that upon leaving the European Union, it has the freedom to do things differently. Whether its a deliberate policy or whether it’s simply because there’s not enough bandwidth within the UK civil service at the moment to do anything differently is a moot point, but the reality is that the system we’ve got with these UK regulations gives a UK REACH that will be very familiar to all of those people who have dealt with EU REACH. It’s got different institutions because we can’t rely on the European institutions. So the Health and Safety executive, which is already a body in the UK with responsibility for chemicals will take on much of the role of the European Chemicals Agency, but otherwise it is a copy and paste of how EU REACH has operated for many years. So it looks very similar and that will please many who at least are hopeful that there isn’t a complete divergence of regimes. But because we have the same structure in place doesn’t mean we won’t have difficulties with divergence later down the line through the decisions that are made under those regimes.

Una Jefferson: I want to talk about that divergence. it seems like there are many possible factors that could lead to divergence even as the regime started as identical in theory. First of all, it seems like the UK as an EU member state, has been most hesitant to restrict chemical under REACH. So there could be a conceivable divergence there. And you also laid out some potential legal reasons why the regimes might diverge over time. But it also seems like the REACH regulation in the EU has kind of become a world standard maybe with the exception of United States. How likely do you think diverging standards would be?

Simon Tilling: I think you’re absolutely right that the EU REACH has become a world standard with the possible exception of the United States. Many others are replicating either an equivalent REACH regime or at least thinking about moving towards something along the same lines. It’s probably right that the UK isn’t going to have a radical departure from the structure of REACH. The basis of REACH, which is that those who make money out of putting chemicals on the market should know the hazardous properties of those chemicals and should tell a central agency what those properties are. That is going to be something that is absolutely going to be replicated in UK REACH. That’s something that’s being replicated elsewhere. I don’t think there’s any real appetite to change from the structure of that. So I think the divergence is less than the nuts and bolts of how chemicals regulation works. I think that’s pretty well set in stone. The divergence will probably come more subtly.

It took 10 years to transition into a position where we had organizations submitting all the chemicals data into a single repository, the European Chemicals Agency in the EU and the HSC now in the UK. That data isn’t just to sit in on a nice database in Helsinki or in the UK. It’s to evaluate what chemicals are thought to be the most problematic and through the authorization and restriction mechanisms in REACH to try and encourage those users of chemicals and producers of chemicals to transition to more sustainable, greener chemistry. From now on, all this data has been collected and it’s the role of the European Chemicals Agency and the member states within the EU, and now the role, if Brexit follows, of the HSC, to start evaluating this data and make some decisions about which chemicals are the ones to flag up as substances of very high concern, which ones should be subject to authorization, which ones should be restricted.

And that’s where I think we can start to diverge. As you said, historically around the table, the UK has been one of those voices that’s more cautious about interrupting economic activities by restricting or putting something to authorization. Whereas other countries around the table of the European Union, France for one, the Nordics and some others are more keen to see a rapid phase out of chemicals that they think are of very high concern.

There’s two points I think to make on the back of that. The first is that, without the UK, around the table, within the EU, that balance might shift a little bit more, so the loss of the voice in the UK might mean a slightly more active review and restriction or authorization of chemicals and the UK by itself then has to make decisions and some of these decisions will go now to the secretary of state who is, of course a politician, who has to make decisions based on a number of factors, electoral cycles are part of that. What are the judgments going to be made on these chemicals? And I can easily see that that will be a little bit of divergence to emerge where EU takes maybe a tougher stand on some substances. Whereas the UK actually says, no, the science isn’t there suggesting these are as problematic as otherwise suggested, we don’t want to go as far as restricting or subjecting them to authorization. So I think there can be a politically and just in terms of the dynamic of the of the difference between the UK attitudes and other European attitudes, we may start to see a divergence with individual chemicals in individual decisions.