Amendment 293E

Environment Bill - Committee (8th Day) – in the House of Lords at 5:45 pm on 14th July 2021.

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Lord Whitty:

Moved by Lord Whitty

293E: Schedule 20, page 247, line 19, at end insert—“(1A) Regulations made under this paragraph must not reduce the protections or standards of any Article or Annex of the REACH Regulation.(1B) Subject to sub-paragraph (1A), the Secretary of State may by regulations seek to maintain or exceed regulatory parity with any new or amended regulations of the European Parliament and of the Council concerning the regulation of chemicals. (1C) The Secretary of State must prepare an annual report explaining each decision not to align with new EU restrictions and authorisations on chemicals, and Candidate List Substances of Very High Concern.(1D) The annual report must include an assessment of the environmental, economic and public health impact of any such decisions.(1E) An annual report must be laid before Parliament before the end of the 3 month period beginning immediately after the last day of the period to which the report relates.(1F) The Secretary of State must publish annual reports laid before Parliament under this section.”Member’s explanatory statementThis amendment would remove the possibility that a Secretary of State might lower standards that are in place currently while enabling them to easily meet or exceed new EU chemical protections and standards. It would also place an obligation on the Government to transparently justify any decision to deviate from EU control on chemicals.

Photo of Lord Whitty Lord Whitty Labour

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.

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.

Photo of The Earl of Dundee The Earl of Dundee Conservative 6:00 pm, 14th July 2021

My Lords, I support this amendment moved by the noble Lord, Lord Whitty, for it guards against lowered standards while still enabling the United Kingdom to do much better. It also requires transparency on any change from EU standards on the control of chemicals.

No one would argue in favour of slippage of standards. However, many of us believe that, as the noble Lord, Lord Whitty, has just outlined, for technical and other reasons such standards can slip very easily all the same.

This amendment prevents that. Yet its expedients should not wrongly be viewed as a restrictive measure of conformity to the EU, of which we are no longer a member, but instead as an opportunity for the United Kingdom to take a lead internationally by setting even higher standards of our own.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

My Lords, it is a great pleasure to follow the noble Earl, Lord Dundee, with another message on the need for environmental protection. I will speak briefly in support of Amendment 293E and thank the noble Lord, Lord Whitty, for moving it and for his long-term concentration on the issue.

We are yet again in a non-regression cause—I feel something like a broken record. We were promised non-regression; we heard it again and again through the whole Brexit debate and subsequently. We need to consider this amendment in the light of the debate that was conducted publicly in February and March, when the industry initially proposed a light-touch registration of chemicals that were already on the EU REACH registration at the end of the transition period, effectively allowing a rubber stamp on those already in use. In response to that, environmental groups warned that this would contravene the principles that are apparently contained in the Environment Bill, which commits to maintaining the “no data, no market access” principle on which REACH is based.

The noble Lord, Lord Whitty, made some very important points about how the EU is progressing with investigations of the impacts of cocktails of chemicals—something that is highly relevant to Amendment 152, which we debated some weeks ago, also in the name of the noble Lord, Lord Whitty, about the impact of pesticide applications near homes.

If we do not have full data on each and every chemical, the Health and Safety Executive will simply not be able to do its job and will be at risk of legal challenge. The data being out there somewhere is not enough. Regulation is an ongoing and continuous process that requires access to high-quality, up-to-date data. I note the response in March from Breast Cancer UK, which said that such an action would weaken the Health and Safety Executive’s ability to protect public health.

This is my final contribution to this very long Committee, and indeed the final contribution of the Green group. So, if the Committee will allow me a couple more sentences, I will say that it has been a long and fruitful haul, at least in the airing of issues and the identification of many flaws in the Bill. That is not surprising, perhaps, as this is such a fast-moving area and we have been dealing with a Bill so long in gestation. We have given the noble Lord the Minister a busy Recess in terms of meetings and, we hope, the drafting of government amendments reflecting our debates. The noble Earl, Lord Devon, back at Second Reading, said that this was the Green Party’s Bill. We have done our best to make a positive, constructive contribution to this Bill, and we hope that we will see some results. I will see all noble Lords in September.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Chair, Built Environment Committee, Chair, Built Environment Committee

My Lords, this amendment from the noble Lord, Lord Whitty, for whom I have a great deal of respect, is about the REACH directive, which brings us back to the vexed issue of Brexit and how we take things forward independently. This is a part of the Bill—especially the wide enabling provisions for regulation tucked away in Schedule 20—that really shocked me. On this occasion, I do not agree with most of the noble Lord’s amendment.

My criticism is not to do with animal welfare and testing, which was dealt with at an earlier sitting. My concern is that the REACH directive—short for the grand-sounding registration, evaluation, authorisation and restriction of chemicals—has had a damaging effect on our industrial base since its implementation in June 2007. The directive has had a burdensome impact on most companies, including the most responsible. It applies to all chemical substances, not only those used in industrial processes, but also to those used in our day-to-day lives, such as cleaning products, paints, clothes, furniture and electrical appliances. If you handle any chemicals in your industrial or professional capacity, you may have responsibilities. REACH is compliance heavy and has made many UK companies operate in very different way. Again, the Roman system of law prevails over a more objective-based common-law approach. We have apparently had that in spades with the dual system that has been adopted since Brexit, described by the noble Lord, Lord Whitty.

I remember visiting an excellent small paint company in the Midlands, serving the advanced engineering industry, when I was a Minister. They were tearing their hair out over rules that were slowly bankrupting them, partly because of the heavy-handed way in which the big multinationals they supplied were loading all these new EU costs and responsibilities on to them. I raised their concerns with Defra, but to no avail. The attitude that the environment must take precedence over every other concern lives on, and that is unbalanced. Companies established outside the EU have not been bound by the obligations of REACH, even when exporting to the EU. Registration and everything else is the responsibility of the importer, and that makes life easier for third-country competitors. That sort of unfair, burdensome regulation helped to fuel Brexit.

What amazes me is that, now that we have left the EU, I have heard nothing about steps to help our industrial sector on this sort of detailed regulation; indeed, very much the reverse, as today’s debate suggests. Will the Government agree to a business-led review of REACH with a view to using the new powers to improve productivity and competitiveness without, of course, undermining essential environmental safeguards? Although we come at this from a different direction, this might actually appeal to the noble Lord, Lord Whitty, because it could be a constructive way of getting rid of the problem that we have. The grace-period provisions in REACH that the Minister alluded to on 28 June are not enough and are probably no good to the innovators and new entrants that we need in our engineering industries. The Minister might become very popular with small businesses in the Midlands and, indeed, in the red-wall industrial areas, if she agreed to a new post-Brexit review of this burdensome regime and how we can make it better.

Photo of Baroness Bakewell of Hardington Mandeville Baroness Bakewell of Hardington Mandeville Liberal Democrat Lords Spokesperson (Environment, Food and Rural Affairs)

My Lords, it is a pleasure to be taking part in this debate. I congratulate the noble Lord, Lord Whitty, on his knowledgeable introduction to this amendment, which seeks to provide safeguards for the vital REACH section of the Environment Bill. Many of his comments will be reinforced by my contribution.

During the run-up to Brexit, my noble friend Lord Fox and I had a meeting down at Marsham Street with the then Minister, the noble Lord, Lord Gardiner of Kimble, and Defra officials on the implications for the UK of not transferring the REACH regulations from EU to UK law. We were assured by officials that a better regime covering Great Britain—excluding Northern Ireland, which would remain within EU REACH—would be established. I regret to say that we were not convinced, and I am still not convinced. This landmark Bill gives the Secretary of State the power to alter the UK REACH system. This could cause deregulation and instability. Despite reassurances that the UK would not diverge from EU protections just for the sake of it, divergence looks set to widen over time.

The noble Lord, Lord Whitty, has already referred to that fact. During the debate on the use of pesticides, reference was made to the mixture of different chemicals and the cumulative effect that these have, which far outweighs the damage that the individual chemicals do on their own. The EU chemicals strategy has powers to restrict the cocktail effect, in order to reduce the exposure to endocrine-disrupting chemicals. Can the Minister assure us that the Secretary of State is not likely to relax the UK REACH standards, which could enable exposure to this risk?

During the last year, the UK REACH has initiated restrictions on just two chemicals, compared to 18 under the EU REACH standards. Of course, there were going to be differences between what the UK and the EU implemented on a variety of measures. That was the whole point of Brexit, but there are some areas where the public will want to know that they are safe and protected from extremely toxic and dangerous chemicals. As a country, we are trailing behind: the ECHA has taken action to prevent more than 90% of the pollution caused by intentionally added microplastics, whereas the Government point to the UK ban on microbeads in wash-off cosmetics as our contribution. This measure only prevents less than 9% of microplastics entering our wastewater systems.

The Government are dragging their feet. UK REACH will be considering unspecified criteria on whether toxic chemicals will be suitable for Great Britain, but it will not be publishing either the criteria or the substances. The amendment of the noble Lord, Lord Whitty, would ensure, in sub-paragraph (1C), that the Secretary of State reports to Parliament on whether the UK is aligned with the EU on chemicals and on the candidate list of substances of very high concern—SVHCs. Entry on the candidate list means that companies have immediate obligations to provide information on the safety and protective measures in place for their product. Of course, this may involve businesses in some additional bureaucracy, and I understand the viewpoint of the noble Baroness, Lady Neville-Rolfe. Surely, however, it is better for this to be open and transparent, so that the public are aware of potential dangers, than for them to be unwittingly exposed to toxic chemicals that damage their health. Prevention is always better than cure.

Can the Minister say how many substances the Government have included in the SVHC list between January and today, and whether they have considered and rejected substances that include endocrine disruptors and, if so, why? Given that the deadline for companies to submit information on substances to be placed on the authorisation list is the end of October 2025, would it not be better for the Government to automatically adopt the ECHA’s recommendations until that time? Would the Minister care to comment?

The UK gave an undertaking that it would not diverge from EU standards just for the sake of divergence. If that is the case, then it would seem appropriate for this clause to be on the face of the Bill. Companies that manufacture and export to the EU are obliged to operate the same standards existent in the EU. Any divergence from EU standards is likely to cause these companies additional costs, as they will have to meet two different standards in what could well be the same chemical product if they wish also to trade in the UK. The noble Lord, Lord Whitty, has given details on this. I look forward to the Minister’s comments and fully support the noble Lord, Lord Whitty, in his amendment.

Photo of Baroness Hayman of Ullock Baroness Hayman of Ullock Opposition Whip (Lords), Shadow Spokesperson (Environment, Food and Rural Affairs) 6:15 pm, 14th July 2021

My Lords, I offer our strong support to Amendment 293E in the name of my noble friend Lord Whitty. I thank my noble friend for his detailed and knowledgeable introduction, explaining why it is so important we do not have non-regression in chemicals industry regulation. Plans as to how the Government intend to regulate the UK chemicals sector following Brexit and our departure from EU REACH have been of significant concern for the UK chemicals industry for some time. This amendment would remove the possibility that a Secretary of State might lower current standards, while enabling them to easily meet or exceed new EU protections and standards. It would also oblige the Government to transparently justify any decision to deviate from EU control on chemicals—noble Lords have talked about the importance of transparency.

Concerns were raised by the noble Baroness, Lady Bakewell of Hardington Mandeville, that provisions in the Bill give the Secretary of State the power to alter the UK REACH system, including through deregulation, which is causing instability. Concerns have also been raised about the potential for a reduction in protections and standards. The noble Baroness, Lady Bakewell of Hardington Mandeville, also talked about the potential for a toxic mix of chemicals, as we have heard in other debates during the progress of the Bill. The UK is already falling behind EU protections. Divergence is set to widen over time, despite assurances that the UK would not diverge for the sake of it, and this brings with it considerable associated economic and political costs. I would be interested to hear from the Minister the Government’s perspective on this divergence and how they will manage it. The current regulatory processes for GB controls lack transparency and do not match the pace of EU action. They also do not appear to consider or attempt to mitigate the effects of divergence. My noble friend Lord Whitty mentioned the issue of new chemicals in particular, and how that is being managed.

Going back to our negotiations on Brexit, it was hugely disappointing that the Government ruled out what we believe would have been the best outcome for both the environment and human health, as well as for industry: for the UK to remain within the world’s most advanced system for regulating hazardous chemicals, the EU REACH system. The decision instead to set up UK REACH will substantially increase costs and bureaucracy for UK companies, while bringing real danger through the reduction in protection for the public, workers and the environment from hazardous chemicals. But we are where we are, and the priority now has to be for UK REACH to be the best it can possibly be.

The provisions in the Bill present an opportunity to ensure that UK REACH reflects available scientific evidence and allows for a regulatory environment which is fit for purpose. The noble Earl, Lord Dundee, said we now have an opportunity for higher standards, and I agree with him. Schedule 20 gives the Secretary of State wide-ranging powers to amend the UK REACH regulation and the REACH Enforcement Regulations 2008. Such amendments would have to be in line with Article 1 of REACH, which outlines its aim and scope. Several provisions are protected from modification by SI under these powers. However, we are concerned about granting the Secretary of State such a sweeping power to amend the main UK REACH text, which could then be used to reduce the level of protection for the public and the environment from hazardous chemicals. My noble friend Lord Whitty talked about the potential for huge damage if we do not manage our chemicals industry correctly.

There are many concerns from industry about access to data and divergent sources of data: different data can mean different decisions. The noble Baroness, Lady Bennett of Manor Castle, talked about a lack of data undermining HSE’s ability to do its job properly. Now that we have left the EU, the UK does not have access to the same EU databases and the 98,000-plus dossiers of commercially sensitive safety and technical data for more than 22,000 substances. I have spoken many times in this House and the other place about my concerns about the risk of duplicate animal testing, and I know other noble Lords are concerned about this. We have had assurances from the Government, but no real explanation about how it is going to be prevented. When scientists and technical review panels cannot see the same scientific data and cannot discuss this data with scientific counterparts in the EU, inevitably we could find that different decisions are being drawn.

My noble friend Lord Whitty talked about his concerns around divergence by default. In a divergent regulatory system, the Government must be careful to avoid any lowering of our current high standard of environmental protections and increasing risk to public health, solely for the purpose of quick, short-term economic international trade wins or rapidly rolled-out innovations. I ask the Minister for her reassurance that this will not happen. Furthermore, a divergent chemicals regulatory system in the UK will bring additional cost burdens to business and, if standards are lowered or untrusted, will bring consequences to the ability to trade products with the EU. The noble Baroness, Lady Neville-Rolfe, talked about the burdens on business if we do not get this right. We have to put safety first and consider the impact on the environment.

Significant divergence giving the UK a competitive advantage risks triggering rebalancing measures by the EU, such as retaliatory tariffs, under the EU-UK Trade and Cooperation Agreement. Remaining closely aligned with EU REACH would ensure that UK consumers and the environment continue to benefit from the EU’s relatively high protections as they continue to improve, and would also avoid unscrupulous manufacturers dumping products in the UK that fail to meet EU standards. The amendment we have been debating would provide important benefits and protections from damaging divergence that could lower standards. I urge the Minister to consider the benefits of supporting it.

Photo of Baroness Bloomfield of Hinton Waldrist Baroness Bloomfield of Hinton Waldrist Baroness in Waiting (HM Household) (Whip)

My Lords, I thank the noble Lord, Lord Whitty, for his Amendment 293E. As I have outlined in previous groups, the Bill will enable the Government to update our REACH regulation to ensure it keeps pace with the latest scientific developments and to prevent our chemicals regulation becoming frozen. I start by reassuring the noble Lord that there are already several safeguards included in the Bill. Changes to the REACH regulation have to be consistent with Article 1 of that regulation, including ensuring a high level of protection for human health and the environment. The Secretary of State must publish an explanation of why he considers that to be the case before making any changes.

I know the noble Baroness, Lady Hayman, was particularly concerned about the powers that the Secretary of State is taking to amend this. An ability to make supplementary, incidental, transitional or saving provisions is a standard provision in legislation. The aim is to make sure that we avoid inconsistencies, discrepancies or overlaps developing in the statute book, but it would not enable us to make wholesale changes to the protected provisions. To take an example, Article 35 of the REACH regulation is a protected provision which gives workers the right to access information that their employer receives under other provisions of the REACH regulation, Articles 31 and 32, concerning a chemical substance or mixture they use or may be exposed to. If we were to extend the scope of those other REACH provisions to also cover information about substances in articles, we would want to amend Article 35 to reflect these changes.

I should say at the outset that both the UK and the EU recognise that EU REACH is part of the single market. Access to EU REACH or associate membership of the European Chemicals Agency are tied to the single market, and the EU insisted on this. The Government have already made it clear that we would not accept being subject to the European Court of Justice, and associate membership would mean just that. However, the EU-UK Trade and Cooperation Agreement still provides for co-operation between the EU and UK chemicals agencies.

I should also stay at this juncture that, while I take the point about the larger resources that EU REACH has, Defra has asked HSE to work on two restrictions to date. I know that, normally, the EU would probably do five or six a year, but we have a significant time advantage: even with the Secretary of State asking the devolved authorities’ consent, we still have a speed advantage because we do not have to get agreement from 27 countries, which, in chemicals terms, can actually take many years.

We have also provided over 20 provisions relating to the fundamental principles of REACH, listed in the table in paragraph 6 of Schedule 20. They include: the “no data, no market” principle; the last resort principle on animal testing; the aim of progressively replacing substances of very high concern through the authorisation process; the effect of restrictions; the importance of communicating information to the public on the risks of substances; and various provisions to ensure that UK REACH will be properly transparent.

The Secretary of State is required to consult on any proposed amendments to REACH and to obtain the consent of the devolved Administrations on devolved matters. All amendments will be subject to the affirmative procedure and must therefore be fully debated in Parliament. In addition to these protections that apply expressly to REACH, the office for environmental protection has general powers to give advice to a Minister on any proposed changes to environmental law. This includes any relevant amendments to the REACH regulation. This advice would be published and the OEP could comment if it thought the Government were seeking inappropriately to amend a protected provision.

We ought to be ambitious and not look solely to the EU to define a successful chemicals regulation. We should follow the best scientific advice and adopt the most appropriate approaches for it. One must remember that the UK is a world leader in the management and regulation of chemicals. That will not change now that we have left the EU. We will build on our global reputation for scientific expertise and continue to provide a strong and influential voice on the world stage as an active party to the four UN conventions on chemicals and waste.

We will continue our work to improve regulations, strengthening the evidence base and ambition globally. The intention of the provisions in Schedule 20 is to make sure that we have the means to keep UK REACH fit for purpose. We can look inside this country, while continuing to look elsewhere in the world, for the best ideas. Schedule 20 gives us that flexibility while still providing necessary protections. The Environment Agency, for example, has built up considerable expertise on the risks associated with chemicals used as flame retardants. When we have more experience of operating UK REACH, we may well see opportunities to streamline processes without sacrificing rigour.

The noble Baroness, Lady Bakewell, asked about adding to the list of substances. The UK has not added or rejected any substances for the candidate list of substances of very high concern. The HSE, just like the ECHA, will add to the candidate list periodically, not on a rolling basis. I will write to her with more details on microplastics, because she answered the one on facial products and beauty products, but I think we have more that we can say on that issue.

The noble Baroness, Lady Bennett, mentioned her concerns about the “no data, no market” principle still holding. UK REACH maintains this core principle, which is necessary. It is the means by which the regulator can check that companies are properly meeting their duty to ensure the safe management of chemicals. It provides assurance to the public that businesses understand the hazards and risks of the chemicals they are using and know how to manage them. It also gives the authorities information they can use to help identify and place controls on the use of dangerous chemicals.

A number of noble Lords mentioned non-regression and the worry that we would regress our standards, which I have answered in general terms. Since the UK is a world leader in the management and regulation of chemicals, there are no plans to diverge from EU REACH for the sake of it. The UK has established UK REACH, as it must, as its own independent chemicals regulatory regime. This will ensure that we can both take the best ideas from inside and outside the EU and act on the best available evidence and in the UK’s best interests when circumstances dictate.

Lastly, the noble Baroness, Lady Neville-Rolfe, made a number of constructive suggestions which might help the burden on small businesses. I am very happy to suggest that we discuss this in the department. But for the moment I hope that noble Lords are reassured and that the noble Lord, Lord Whitty, is able to withdraw his amendment.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords) 6:30 pm, 14th July 2021

I have received a request to speak after the Minister from the noble Baroness, Lady Neville-Rolfe.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Chair, Built Environment Committee, Chair, Built Environment Committee

I rise to ask two questions, which I think have been answered. One is about microplastics and how they are covered by REACH; in writing to the noble Baroness, Lady Bakewell, it would be extremely helpful if the Minister could copy me in too. They are a genuine area of concern. Secondly, I want to pursue the idea of a business-led review of REACH, not to undermine environmental standards but to make sure that the nonsenses of this area are tackled. I would be very happy to talk to my noble friend about that.

Photo of Baroness Bloomfield of Hinton Waldrist Baroness Bloomfield of Hinton Waldrist Baroness in Waiting (HM Household) (Whip)

I am very happy to take both issues back to the department.

Photo of Lord Whitty Lord Whitty Labour

My Lords, I thank the Minister for that reply, which attempted to reassure me—I am not sure it did entirely. I also record my thanks to the noble Earl, Lord Dundee, the noble Baronesses, Lady Bakewell and Lady Bennett, and my noble friend Lady Hayman for their support for this amendment.

The Minister attempted to be reassuring, but the wording of Schedule 20, introduced by Clause 133, does not give the cast-iron guarantee that she appeared to be giving. I appreciate that there are other developments in this Bill and elsewhere which would restrict her or any future Minister’s freedom of manoeuvre in this area, but an explicit requirement to report to Parliament if they intend not to follow the EU level of protection is important. I do not think that the combination of Schedule 20 and the text of the Bill delivers that. I ask the Minister to get her officials to have another look at it, but if she were forthcoming with an alternative amendment herself I would certainly have a look at that.

Chemicals have been a great boon to mankind. The chemicals industry is one of our great successes in industrial life, but it has also been shown to be quite damaging in a number of serious respects. The misuse of chemicals, the wrong disposal of chemicals, the wrong combination of chemicals and the wrong application of chemicals to humans, products, the landscape and the environment have caused a large number of problems. It was therefore important that Europe, when we were members, developed an effective system of regulating chemicals; effectively, if there was no data indicating their safe use, they would not be given access to the market. That is the basis of REACH.

I was interested in the views of the noble Baroness, Lady Neville-Rolfe, and I know that she reflects serious concerns from parts of industry. On this one, I think she is slightly out of date. It was certainly true when REACH started to be established, from 2007 roughly, that there was considerable concern throughout the chemicals industry that the regulations and the data required would be too burdensome, prevent innovation and cause difficulties for the sector. That concern continued for a number of years, but two things have happened since.

First, public concern about the impact of chemicals on human health and the environment has seriously grown, and so likewise has the industry’s recognition that it needs a robust system of regulation to which it can be party. Secondly, the REACH system has bedded in across Europe. As I said in my speech, we must recognise that the European chemicals industry is pretty pan-national, in terms of both large companies and small companies with which they have a supply chain or a contractual arrangement, as well as importers and exporters. There is a lot that the industry has had to get used to, some of which it did not initially like, but it has now proved a rather more effective system of regulation than some others in the armoury of the European Commission, I would argue, and certainly much more accepted, both scientifically and by those who are concerned, and by the industry itself. It was therefore a bit of a surprise to hear the noble Baroness express such concerns—there may be some companies still upset by it, but in general it has been accepted.

I also think that the decision to duplicate on the same basis, in effect, as the European system has caused some frustration to industry but it is that duplication, rather than the essence of the European regulatory structure and regulatory process, that is causing any irritation now. That may also settle down. What I hope for in terms of those who are looking for protection from the impact of chemicals is that the HSE, Defra, the Environment Agency and everybody else who is involved in this area develop a speed of reaction that matches that of Europe. If they do that, then duplication ceases to be quite so important.

At the moment, that is not the case and we therefore potentially have three different sorts of divergence. We have a divergence because Europe has moved on but we have not got round to doing it—I call that divergence by default. We have divergence because the UK has decided explicitly that it wants a rather different system that would be less restrictive than Europe. We have divergence because the UK has decided that it wants better regulation. Both of those are possible under my amendment but they have to be explained to Parliament and justifiable in the terms of the original REACH proceeding. I do not think that the wording of Schedule 20 gives that degree of certainty. We need more clarity, not less. We need more understanding of what we are trying to protect in the chemicals regulation in terms of its impact on human health, animal health and welfare, wildlife and everything else this Bill is concerned with before we try to change the system significantly.

Therefore, this is an attempt to ensure that there is no regression, that any divergence is beneficial and that it is clearly explained to Parliament. I hope that the noble Baroness, Lady Neville-Rolfe, and others who might oppose this amendment recognise the importance of that. However, I take comfort from the support around the rest of the Committee for at least the principle of this amendment. In the meantime, I will withdraw it and we will, no doubt, come back to something like this on Report.

Amendment 293E withdrawn.

Amendments 294 to 297 not moved.

Schedule 20 agreed.

Clause 134 agreed.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords)

We now come to the group beginning with Amendment 297A. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Clause 135: Regulations