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Examination of Witnesses

Environment Bill – in a Public Bill Committee at 2:45 pm on 12th March 2020.

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Dr Michael Warhurst, Bud Hudspith and Nishma Patel gave evidence.

Photo of George Howarth George Howarth Labour, Knowsley 3:16 pm, 12th March 2020

We will now hear oral evidence from the CHEM Trust, the Chemical Industries Association and Unite. We have until 4 pm. I ask the three witnesses to introduce themselves briefly and state which organisation they represent.

Dr Warhurst:

My name is Michael Warhurst. I am the executive director of CHEM Trust, which is an environmental charity that works on chemicals health and pollution at UK and EU levels.

Bud Hudspith:

My name is Bud Hudspith. I am the national health and safety adviser for the trade union Unite.

Nishma Patel:

I am Nishma Patel, policy director at the Chemical Industries Association.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change)

Q Good afternoon. My reading of schedule 19 to the Bill is that it enables the Secretary of State to change REACH—the registration, evaluation, authorisation and restriction of chemicals regulation—although there are a number of protected areas within it. However, the schedule does not appear to require consultation with the chemicals industry or wider public bodies that might have an interest, or that any consultation responses be made public. Are you, like me, concerned about that omission, or do you think that the way the Bill is structured regarding the possibility of change and consultation is adequate given the importance of the issues?

Nishma Patel:

For us, it is—

Photo of George Howarth George Howarth Labour, Knowsley

Sorry, may I stop you there? The acoustics are very bad in this room, so may I ask our witnesses to speak up a little?

Nishma Patel:

Okay. For us, it is about the detail behind how the schedule will be implemented. At the moment, there is no clarity on consultation and how that will take place. We would like to know the policy behind UK REACH, how it will be implemented, and exactly how it will work—not just the protected parts, but the entire UK REACH regime. We, as industry, see a number of issues—perhaps others see them as well—on which further consultation will probably be required. For us, it is about clarity on the process behind it.

Bud Hudspith:

I think there are some broad requirements in the Bill to consult, but they are very broad, and specify something like “other possible stakeholders”. We would like to see much more formal and arranged consultation. In the area I largely work in, health and safety in the workplace, we are used to being consulted. We think it is a very useful way for Governments to find out what is actually going on on the ground, so we would welcome that. I agree with you: we would like to see a slightly tighter indication of who should be consulted and when.

Dr Warhurst:

The CHEM Trust position is that we agree with that. The consultation is limited, and the consultation on this measure as a whole has been limited; for example, there was no consultation on which protected articles should be in there, and there has been no rationale as to why those are protected and others are not. We are very involved in EU-level work on chemicals, and we find that process is a lot more open and consultative than the UK process.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change)

Q On the subject of protected articles, I share your view: I am somewhat mystified as to how those have landed on the Bill in this way, and about what is protected and what is not. Are there particular areas that you consider ought to be in the Bill as protected articles, in addition to the ones that we have at the moment, and are there any ways in which you think the protection element of REACH regulations—securing proper standards, inter-trading of chemicals and so on—might be better reflected in the Bill, or do you think the protected articles that there are at the moment fulfil that requirement?

Dr Warhurst:

On the protected articles, REACH is a huge piece of legislation. You could decide to protect everything, but that might cause some problems. One of the things we particularly noticed is that article 33 of REACH is about consumers’ right to know about the most hazardous chemicals in the product, and article 34 is an obligation on the supply chain to report problems with chemicals up the chain. Those would certainly be added to what we would view as protected.

However, it goes beyond that; as you said, it is about the level of protection for the public. The problem with chemicals regulation is that we are dealing with tens of thousands of chemicals in millions of different products. It is a very complex area, and it has been very challenging over the decades as Governments and regions have tried to control them. EU REACH is the most sophisticated system in the world, but it still has a huge amount of work to do. There are a lot of chemicals to be got through, because when one chemical gets restricted, the industry moves to a very similar one. Our worry is that some of the decisions around that require huge amounts of work and data, and are subject to legal challenge by industry. We do not see any way in which the UK can replicate that system. In many ways, it would be more straightforward—although possibly not in terms of legal challenge—to be more focused on following what the EU does, rather than trying to create another system that to some extent may be a bit of a hollow shell, because there is not the resource to really control new chemicals.

Bud Hudspith:

I pretty much agree with that. I do not think I need to add much to it.

Nishma Patel:

Again, this comes back to the process and detail behind the Secretary of State being able to consult, who the consultation is with, and how it would take place. One point to consider is that anything that would be changed under UK REACH overall—any article—would have tso be in line with article 1 of REACH, which is about providing the highest standard of environmental protection to consumers, as well as reducing testing where possible. It is not about the principle of “Is there a possibility for the regulations to digress, because a justification needs to be provided?” It is about how that will be consulted on, and how that information will inform policy making in the UK through various stakeholders.

Photo of Rebecca Pow Rebecca Pow The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

Q Thank you very much for coming in to talk to us. Obviously, exiting the EU provides us with opportunities for industry, such as integrating the most current scientific knowledge into the decisions we make concerning chemicals. In the Bill, we have the flexibility to amend REACH while retaining its aims and principles; I just wondered whether you could summarise what you thought the right balance was.

Nishma Patel:

From an industry perspective, if we look at the trade of chemicals leaving and coming back to the UK, 50% of our trade goes to the European Union and 75% comes to the UK. To work from two pieces of legislation, which go in the same direction, communicate with each other and co-operate, makes sense from a commercial perspective, as it does from an environmental perspective.

The opportunities are there, in terms of doing something differently or making amendments. As it stands, however, we see that the need to stay close to the European chemicals regulations far outweighs the opportunities.

Bud Hudspith:

I think we are coming from a similar position. We start from the basis that alignment is one of the most important things. We have interesting problems. We have members in the south of Ireland as well as in the rest of the UK. It would be pretty unacceptable to us if there were different protections, in terms of chemicals, for those two groups of people. That extends from a broader view across the whole of Europe among people at work.

I would agree with Nishma that alignment is most important. We accept that in theory there could be improvement made through the UK position, but I suppose I am a bit cynical about whether that is likely to happen. Therefore, we would be supportive of—I think an amendment was proposed—making it clear that the Minister needs to improve on what is there. Clearly, however, consultation about what we believe is an improvement and what is not is quite important, because an improvement to someone may not be seen by others as an improvement.

Photo of Rebecca Pow Rebecca Pow The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

Q So do you welcome the requirement in schedule 5 for consultation?

Bud Hudspith:

Yes, we welcome that. That was the point made before. Parts of it are fairly vague and we would like it to be much clearer as to who should be involved. There should be clear consultation with the chemical industry—the people who work in the chemical industry and the people who represent them.

Dr Warhurst:

The principles sound good, but the point of principles is how they are interpreted—not just the political decisions about interpretation, but these capacity issues. The problem we see is that it is very difficult for the UK to be in a position, even if it wanted to, to go ahead of the EU, which we have not seen as very likely. In parallel areas, such as chemicals and food contact materials, where the UK could have gone ahead of the EU, it has not, even though countries such as Germany, Belgium and France have.

I will give a practical example. Perfluorinated chemicals are in all our bodies. They are in our blood. They were talked about in a recent film, “Dark Waters”. They are in food packaging, ski wax and textiles. The EU is proposing to do a general restriction on these chemicals for non-essential users. This is thousands of chemicals. That will be a huge job for the 600-person ECHA and member states around the EU. There will be challenges from industry. We know that Chemours is already challenging a decision on one of the chemicals in the group.

We do not see it as credible that a UK-only agency, which will have to spend a lot of time just administering the registration system that is set up or the applications for authorisation, will really have the potential to copy that. But we would obviously like the Government to make a commitment that they will follow this and ban these chemicals.

Photo of Kerry McCarthy Kerry McCarthy Labour, Bristol East

Q I want to pursue the question about whether we would be better off in or out of REACH. Do you think there are concerns that the new regime would not provide the same level of consumer environmental protection? There is a particular issue about keeping pace with changes in the EU and whether our standards would fall below it. Do you have concerns?

Bud Hudspith:

I would follow on from Michael’s point. We have concerns about the resources available to the Health and Safety Executive and the technical ability of people in the HSE to mirror what has gone in the European Chemicals Agency, its size and extent, and the amount of work that has gone on over many years to get to the position that it is in now.

It seems as though we will be in a situation where we will start again from scratch. Even if we achieve what has been achieved in ECHA, it will take us many years to get there. We are worried, especially about that intervening period. Where will we be? I do a lot of work with the HSE, and I am aware of the kind of pressures it is under. It is easy to say that the HSE will do this, or that the HSE will do other things, but unless it is given the resources and people to do that, it is words rather than action.

Photo of Kerry McCarthy Kerry McCarthy Labour, Bristol East

Q There is a balance between getting up to speed dealing with current regulations and keeping pace with innovation, which presumably will have an impact on some of the industries that you might be involved in.

Bud Hudspith:

Yes. The position with the EU— ECHA—is that it has come an awful long way. We are getting to the stage where it is probably working better than it has before, and I do not want to wait another five years to get to that position in the UK. It may take more than that—I do not know whether or not it will be five years.

Photo of Kerry McCarthy Kerry McCarthy Labour, Bristol East

Q This is part and parcel of the same question—

Photo of George Howarth George Howarth Labour, Knowsley

Sorry, Kerry, but we are a little short of time.

Photo of Kerry McCarthy Kerry McCarthy Labour, Bristol East

I was trying to clarify what I was asking about.

Photo of Kerry McCarthy Kerry McCarthy Labour, Bristol East

The UK, in “The Future Relationship with the EU” document, talks about

“the separate regulatory requirements of the two markets”.

What impact would that have on the chemicals industry, if there is that level of divergence—or is it about trying to keep up?

Nishma Patel:

Following on from what Bud said, REACH has been there for 10 years, and a big chunk of the work under REACH has been done in the past 10 years. The UK contribution has been second in that, in terms of registrations and in providing the data behind the chemicals. To start that process again would put us on a behind path on EU REACH and REACH in general.

The annex, in what we see of the UK position at the moment, allows for the two regulations to co-operate, to talk to each other, if that is the way the negotiations go. It might also allow a mechanism to share data, evidence, on the input put into the European Chemicals Agency database. It is not completely negative. The door is still open in terms of starting from the same evidence base and regulating chemicals; it is just how UK REACH will work—that will depend on what is negotiated in that annex on chemicals, and the extent of the co-operation.

Dr Warhurst:

We would agree with many of the points that have been made. We have to remember that, at the beginning of the process, the UK will essentially have an empty database and will be asking for material to be submitted to it from industry. There are already a lot of complaints from industry about the new costs that that will generate—for the chemical companies that are used to doing it, and then for all the people who import substances registered in REACH in a different country, who will suddenly have to register as well. There is a lot of cost to get a database that, even when it is full—in two years or however long—will be much less detailed than the EU one.

It is worth saying that the UK is already not good at enforcing chemicals laws at the moment. We talk a lot about the risk-based approach in the UK regulations, but we did a survey a couple of years ago of how councils were enforcing the laws on the safety of consumers—toys with illegal levels of phthalate chemicals, for example—and we found that large numbers of councils do no testing at all, and that even the ones that do some testing do not do much. Yet, when they do testing, they find lots of failure. We know that banned chemicals are on our high streets and in our markets, now. That really does not give us confidence that somehow there will be this amazing leap in UK capacity to implement and enforce these laws.

Photo of Marco Longhi Marco Longhi Conservative, Dudley North

Q What are your views, please, on the safeguards in the Bill to protect against deterioration of chemical standards?

Bud Hudspith:

I must admit that I was not clear what the safeguards were. Broadly speaking, we are supportive of the Bill and the things that it is trying to do. Our doubts lie with how deliverable that is and what resources and expertise the UK is able to apply. As I saw it, there did not seem to be too many safeguards. I was aware, again, of the amendment whereby at least there is some effort to institute safeguards.

Clearly, large parts of the REACH regulations are being transferred into the UK position. An example is that the stuff on data sheets, which is currently held within the EU REACH regulations, is going to be transferred into the UK REACH regulations, and that is fine. There are lots of things that we are happy with in respect of the change. I suppose that, on a broader level, we would like to see huge improvements to the speed at which things are done and the way things are regulated, but whether that is going to happen is, I think, questionable.

Dr Warhurst:

We would back that position. The problem is that the Bill is so much about a process, and the process itself has no targets and timelines. It does not say, “You will assess this many chemicals each year. You will check this many chemicals.” This is a problem at EU level. There has been pressure, and now it has set its own targets and is doing much more.

The danger is that you end up with this sort of hollow system here. It exists in theory, but if the system does not say, “Actually, this chemical is not adequately controlled so we are going to restrict it,” it could essentially just sit doing very little, dealing with all the things that it needs to exist, and you end up with something that is hollow.

We are already in a situation where you can have a chemical such as bisphenol A in till receipts; you ban that; and then the industry moves to bisphenol S. This is demonstrated with tonnage data. That is what has happened in the EU, and the EU has not yet restricted bisphenol S; it is just going to define it as a reproductive toxin, hopefully in the next few months. These things are happening. Movement is happening. The market is moving from one chemical to another. Will the regulator move? We have no evidence. There is no obligation in the Bill for the regulator to actually do new restrictions or new authorisations.

Photo of George Howarth George Howarth Labour, Knowsley

I think that this might be the last question to these witnesses.

Photo of Richard Graham Richard Graham Conservative, Gloucester

Q There has been quite a lot of discussion about the value of creating a UK REACH, but in a sense the principles behind those decisions have already been established, so the key thing now is really all about implementation. I welcome the fact, Mr Hudspith, that you are broadly supportive of schedule 19, which is really all about—

Bud Hudspith:

We are broadly supportive of the whole Bill. We have lots of interest in other aspects of the Bill as well.

Photo of Richard Graham Richard Graham Conservative, Gloucester

Good. But you are supportive of it, I think you said.

Bud Hudspith:

Broadly.

Photo of Richard Graham Richard Graham Conservative, Gloucester

Q So what is there in schedule 19 that causes you concern, other than the greatest fear being fear itself? You have made a huge contribution to REACH. It has not always been popular with UK businesses. There have been plenty of complaints over the last decade. REACH has not done anything and everything perfectly, as we all know, so surely you have confidence that, with the range of businesses that we have in this sector, we can create a regulatory body that can do a good job—or do you think that we are now so incompetent that we cannot?

Bud Hudspith:

In principle, REACH has been more popular with people such as Unite and various trade unions than it has with many parts of the UK chemical business. What is interesting is that, in spite of all the complaints in the past about REACH, once REACH was under threat it was clear that industry was much more supportive of its continuance. We support very much what people such as the Chemical Industries Association are saying and what the chemical business is saying. Obviously, we have members who work in the chemical industry and we want a strong, thriving chemical industry, because we want it to employ people whatever.

On a secondary level, we are also concerned about some of the things that Michael was raising about the hazards of various chemicals. Although REACH is predominantly environmental, that has a knock-on effect for workplace requirements. If you have a chemical that is on the list or is banned—those things need to happen—it affects our members.

Photo of Richard Graham Richard Graham Conservative, Gloucester

Q I get that, but I am interested in why you think that will be more dangerous under UK regulations than the existing REACH ones.

Bud Hudspith:

Predominantly because of the resources and the expertise.

Photo of Richard Graham Richard Graham Conservative, Gloucester

Q But the resources, in terms of the councils that Dr Warhurst was just describing, have not been there as it is. Why will it suddenly deteriorate?

Bud Hudspith:

Do we accept a position where things are massively bad and say, “We’ll carry on with things being bad”? That is nonsense.

Photo of Richard Graham Richard Graham Conservative, Gloucester

Q No, but you could take the view that this is an opportunity to increase and do things better.

Bud Hudspith:

I think I have already said that, in theory, that is the case, but we are very doubtful about whether that will actually happen.

Photo of Richard Graham Richard Graham Conservative, Gloucester

Q Dr Warhurst, what is your position? You have said that you are worried that there are chemicals on the high street that are not great, because we do not have people from the council wandering around having a look at them and so on. What is your solution to that?

Dr Warhurst:

There are two different issues. There is the enforcement of the laws, which is about what the councils are doing and the fact that there is no real national co-ordination of that. That has been entirely the UK Government’s decision, inasmuch as it has been an active decision. That is different from the broader regulatory system. The councils example shows that the UK has not been very effective in this area so far.

On the broader regulatory system, you can put a lot of people in an agency, but they will start with an empty database, and we are dealing with more than 20,000 chemicals in many applications. It is also wrong to assume that there is no opportunity for close collaboration with REACH. The UK currently talks about some sort of memorandum of understanding. Our view would be that it needs to go further up from the countries that it is mentioning at the moment that do not have access.

Photo of Richard Graham Richard Graham Conservative, Gloucester

Q That is a lobbying opportunity, effectively, for you in the chemicals sector, with the negotiators and so on. At this stage, in terms of what is in schedule 19, is there anything that gives you concern?

Dr Warhurst:

Yes, a lot of it gives us concern, because we are not convinced that it will provide the protection of public health. The consultation is very limited. The idea that you can replicate REACH—

Photo of Richard Graham Richard Graham Conservative, Gloucester

Q How many UK officials are there in REACH at the moment?

Dr Warhurst:

I do not have the figures. I know that ECHA is about 600 at the moment. It was said, a year ago, that the EA and HSE would have something like £13 million a year in full operation. You are dealing with 23,000 chemicals and however many registrations.

Photo of Richard Graham Richard Graham Conservative, Gloucester

Nishma Patel, in your view—it is the easiest thing, and I understand it, for everyone to say, “We’re very worried it won’t turn out quite as well as the Government hope it will,” and, “What’s in the Environment Bill looks fine, but how’s it actually going to work?”. What is the opportunity, rather than just the concern?Q

Nishma Patel:

In terms of UK REACH in particular?

Photo of Richard Graham Richard Graham Conservative, Gloucester

Yes, in terms of UK REACH, the Environment Bill and the measures in it.

Nishma Patel:

We think the measures in the Environment Bill are adequate and appropriate, primarily because we have article 1 in REACH, which protects the regulation itself. In terms of opportunities, the biggest opportunity for UK REACH is essentially to try to look at what the national issues are, in terms of environmental protection, and to look to address them. That could potentially be in the UK chemicals strategy that is being developed and is under consideration.

Photo of George Howarth George Howarth Labour, Knowsley

I think this will be the last question.

Photo of Alex Sobel Alex Sobel Labour/Co-operative, Leeds North West

Q It is interesting that this is the first panel where we have had representatives from the ownership and the workforce of the industry. The chemicals industry is huge in this country, with a turnover of £32 billion and more than 100,000 workers. It also has a lot of workers who are highly skilled and on good wages and terms and conditions, as I am sure Bud would agree. Does the Bill go far enough, first, to protect jobs and workers in the industry and, secondly, in terms of the business and the potential additional costs to business that could affect the industry?

Nishma Patel:

For us, the Bill and some of the amendments that we have seen so far are doing what is intended around environmental protection. The only other thing that I would ask to be considered is the other justified reasons, for which, as we have seen under EU REACH and under UK REACH so far, regulations have had to be amended. For example, the European Commission put forward regulations around data sharing and cost sharing to ensure that there is a level playing field on the cost of data between different businesses and how that has all been shared.

Some of the changes that may come forward under a UK REACH may not just be environment-related. UK REACH has itself been amended twice to help its implementation and workability, so there are other reasons for that regulation to be changed, particularly because we have not yet implemented. Fair enough, it is a transposition of an existing regulation, but we are already doing it slightly differently to EU REACH.

Photo of George Howarth George Howarth Labour, Knowsley

We do not have any further questions, so I thank the three witnesses. It has been a really useful session, and we are very grateful for the expertise that you brought to our deliberations. Thank you very much.