Nigel Haigh is honorary fellow and former director of the Institute for European Environmental Policy.
The House of Commons’ Environmental Audit Committee (EAC) has recognised that the regulation of chemicals will be problematical if the UK leaves the EU and has started an inquiry. The evidence already submitted by industry has thrown up major concerns.
If the UK was staying in the single market it could, like Norway, continue as part of the existing EU regulatory regime established by an EU regulation called REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals). This is designed to protect human health and the environment by identifying those chemicals that are dangerous, while also ensuring the integrity of the single market. Only chemical substances, whether on their own, in preparations or in articles, that are registered with the European Chemicals Agency (ECHA) in Helsinki can be sold in the EU, sometimes subject to conditions and restrictions set by ECHA.
The chemicals industry is the UK’s second largest manufacturing exporter to the EU, only narrowly exceeded by motor vehicles (see Chart 8.3 of the Brexit White Paper). If pharmaceuticals are included it is by far the biggest.
Whereas pharmaceuticals have long been regulated by national authorities before the creation of the European Medicines Agency, the regulation of chemicals was developed at EU level before any member state had established a regime of its own. EU chemicals legislation from the 1970s onwards assumed EU-wide collaboration so that member states did not have to establish their own institutions. REACH and ECHA, while not perfect, are widely regarded as the benchmark worldwide for regulating chemicals, and the regime is being copied by many other countries.
In its Brexit White Paper the Government has proposed a Free Trade Agreement with the EU which could take in elements of current single market arrangements, but does not explicitly mention chemicals. Speaking before the White Paper Theresa May said she wanted special arrangements for the motor industry and financial services but has not put the chemical industry in the same category.
REACH will continue to loom large in the UK since British manufacturers exporting to the EU will still have to have their chemicals registered with ECHA. If the UK cannot remain part of REACH it will have to create a new regime of its own. It is out of the question to have no new chemicals legislation since the UK would then become the dumping ground for chemicals banned in the EU.
There are two broad possibilities, though doubtless variants can be devised. The first would be easier and cheaper. Power could be given to some smallish body to create a UK register and to replicate all ECHA’s decisions as Switzerland does. Standards in the UK and the EU would not then diverge, but “taking back control of our own laws” would go out of the window.
The second possibility would be to create a completely new UK Chemicals Agency with a sufficient number of qualified staff to evaluate chemicals registered in the UK in the same way as is done by ECHA. EU exporters to the UK would have to go through two registration processes as would UK exporters to the EU.
ECHA has a staff of nearly 600 and has assembled a database about the effects of chemicals to which the UK would not necessarily have access. The task is thus daunting, and could result in differing standards in the EU and UK. Given that the supply chains throughout Europe are so closely intertwined there could be real problems ahead.
The Commons EAC has only begun taking oral evidence, but the bulk of the written evidence from industry points to a preference for staying part of REACH – in other words, moving from being one of the rule-makers to becoming a rule-taker.