Authors: Martin Nesbit, Nigel Haigh

Nigel Haigh, speaking at a recent conference on the challenges facing UK chemicals law and policy after Brexit, explained some of the history to the development of the regulatory system known as REACH. His talk is reproduced here as a blog. 

In it, he underlines the role of the UK in shaping and influencing European solutions to the single market and environmental challenge of regulating chemicals. Chemicals policy is not an area where “taking back control” makes any sense, he explains; the best solution for the environmental and for UK industry is to stay in REACH as a fully influential country, and that is only possible if the UK remains in the EU. If that doesn’t happen, the industry faces major uncertainty about the shape of future regulation, and the UK risks losing influence over the future decisions with which it has to comply.

Post-Brexit options for UK chemicals law

Presentation by Nigel Haigh (Honorary Fellow, IEEP) to the Chemical Watch/Tech UK/CHEM Trust Conference on “Post-Brexit options for UK chemicals law”, 29 September 2017

We are today talking about the future – what may happen to UK chemicals policy if Brexit happens. I say ‘if’ because the public mood is changing as the problems became clearer and people realise that the Government does not have solutions.

But as a way of understanding why Brexit poses such problems I want to look at the origins of chemicals policy.  I also want to look at its place in environmental policy and its peculiarities.

Chemicals Policy is little known

The first point to make is that chemicals policy is very little known outside this industry’s circles, on the edges of which I sort of include myself.  The title I gave the chemicals chapter in a recent book of mine  is ‘the Cinderella of environmental policy’. It sets out why that is so[i]. Briefly, the subject is very complicated indeed – and that really puts people off including, I have to say, many environmental NGOs.

Another reason is that national politicians have left the subject to the EU – and so rarely think about it themselves.  Brexit has forced them to begin doing so.  Mary Creagh recently told us what a learning curve her admirable EAC committee had to climb when they enquired into REACH.

Another reason – and here we really can do something about it – is that this industry keeps all too quiet. We have a way of talking to ourselves. None of the national press is here today.  This means chemicals is not part of public and political discourse.

I doubt for example if Michael Gove had ever heard of REACH when he was leading the LEAVE EU campaign. Now REACH is one of his worst headaches at DEFRA – which perhaps is why he leaves it to Therese Coffey. Little did he know what a rod he was creating for his own and DEFRA’s backs. We really pay a very big price for keeping quiet.

The originality of chemicals policy

The first aim of environmental policy is to sustain living conditions for plants and animals now and into the future. Homo sapiens is just one species – possibly a threatened one.  We all know the Bruntland definition of sustainable development.

Chemicals policy is part of pollution policy, which is part of environmental policy. But it is different in important ways. It is also highly original.  I have always found it the most intellectually stimulating area of EU environmental policy ever since I began studying the subject in 1980, which is why I am pleased to be a trustee of CHEM Trust today.  Let me confess   that my knowledge of chemistry is largely limited to what I picked up as a student of engineering at Cambridge University nearly 60 years ago. (I spent the summer of 1961 at Shell’s Stanlow oil refinery where I helped manufacture a feedstock for this great industry. I literally handled it, since I and my fellow pipe fitters washed our greasy hands in any accessible solvent at the nearest convenient valve before our tea breaks. I like to think they do it differently today.)  But I do know something about EU environmental policy and how chemicals fits into it.

Water, air and waste policies are largely about managing discharges of harmful substances once they are waste, while chemicals policy is about managing harmful substances before they become waste.  It therefore looks ahead. It can involve the precautionary principle. Assessing harmful effects is a first step. Restricting production,   sale and use in articles and processes then follows.

Chemicals policy is therefore more closely entwined with trade policy than almost any other area of environmental policy.  REACH prevents ‘non-tariff barriers’ being created by different national standards, so Gabrielle Edwards of DEFRA was quite right to call it a ‘single market mechanism’ when she gave evidence to EAC with Therese Coffey. When the Government committed itself to leaving the ‘single market’ it greatly intensified the problems we are discussing today.

Anyone manufacturing products anywhere in the world and exporting to the EU is bound by REACH. Because of the size of the EU market REACH has become a global standard setter. It is a great achievement. The UK cannot free itself from that.

REACH has created a collaborative institution

Pollution policy sets standards and procedures. But REACH has also established an EU institution – ECHA – to assess chemicals as well as to restrict them. Many EU Member States had their own institutions for dealing with air and water pollution, and nature protection, long before the EU had an environmental policy. None had an institution comparable to ECHA. In this respect chemicals policy is unique.

Chemicals policy in its modern form only really started when the OECD decided to enter the field. I mark its beginnings from 1972 when the OECD called for a ban on certain uses of PCBs.

The chemicals industry was then starting to grow very rapidly and the OECD realised that its environmental impacts were sufficiently serious that international discussion was needed to manage them. They decided that the task of assessing chemicals needed to be shared and coordinated  between countries. That was before the EU started its environmental policy.

I find it significant that it was an economic inter-governmental think tank that pioneered chemicals policy. The EU then picked up parts of OECD’s work (on test procedures and good laboratory practice, for example) and incorporated these into the legislation it then developed. The 1979 Directive on the testing of new chemicals before marketing is the foundation on which REACH has been built.  It required manufacturers to assess any new chemical and to send a ‘notification’ to the national competent authority. The Commission then circulated the ‘notification’ to the competent authorities in all Member States so that any one of them could comment and object to marketing throughout the EU, which was otherwise assured. So from the beginning there was a partnership between countries with the weaker relying on the stronger. This is all described in my book.

The Commission then created the European Chemicals Bureau to do the administrative work and to collect all the data together. That role was taken over by the larger and more powerful ECHA when REACH was adopted.  ECHA is much more efficient than each Member State replicating what each other is doing. Colin Church, the UK official who masterminded the UK’s role in the adoption of REACH, has recently explained (in a Chemical Watch briefing) what a key part was played by the UK during its Presidency of the Council in 2005. The UK Government should be applauding its role, both in promoting the completion of the ‘single market’ during Margaret Thatcher’s years, and later in the adoption of REACH. Being part of the EU gave it control.

REACH and Brexit

Those promoting Brexit assumed that the UK could look after itself. They knew nothing of REACH, or if they did they never mentioned it. For some environmental issues – bathing and drinking water, for example – the UK can indeed ‘take back control’ and manage on its own. Chemicals is not one of those. Because REACH is based on collaboration, Brexit is bound to create major problems. Unless the UK can negotiate full adherence to REACH, whatever that may mean, problems arise.  Even if the UK publicly says it wants to be fully in REACH it has to plan for the ‘cliff edge’ of failed negotiations.

• Will the UK have to create an expensive new institution to gather material comparable to that gathered by ECHA?  ECHA has said the UK will not have access to its database.
  
• Will the UK set up its own registration system so that UK manufacturers will have to register twice?
  
• Will the UK just replicate future EU standards, as REACH evolves, in order to have the ‘frictionless trade’ with the EU that the Government says it wants? Or will standards diverge?
  
• Will the EU allow the UK to ‘cherry pick’ which bits of REACH it wants, or will it be ‘all or nothing’?

The uncertainties are considerable. We will discuss these today. I am delighted to see that the CIA has finally committed itself to REACH ‘warts and all’. But they need to say so, not just in quiet conversations with Government officials, but out loud so that the public and political parties can hear.

Other industries speak out loud – the financial services industry; the motor industry.  The only reference I have seen in the mainstream press to staying in REACH is a statement from the motor car industry – the SMMT. Why does this industry not fight in its own self-interest by speaking out?

Let us proclaim the importance of REACH. Let us proclaim the UK’s role in its adoption. Let us say we want to be fully part of REACH.  Let us say that we want to help shape its evolution and not just follow it. And the only way to be sure of that is for the UK to remain in the EU.

References

[i] EU Environmental Policy: its journey to centre stage. Routledge 2016.