Net Zero, Energy and Transport Committee

Meeting date: Tuesday, March 28, 2023

Official Report 791KB pdf

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Subordinate Legislation

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REACH (Amendment) Regulations 2023

Agenda item 2 is consideration of a consent notification on the REACH (Amendment) Regulations 2023. This is a United Kingdom statutory instrument for which the UK Government is seeking the Scottish Government’s consent to legislate in areas of devolved competence. The committee’s role is to decide whether it agrees with the Scottish Government’s proposal to consent to the UK Government making these regulations within devolved competence, and in the manner that the UK Government has indicated to the Scottish Government.

At our most recent meeting, we considered the notification and agreed to request further information from relevant regulatory bodies and the UK Government about the proposed extension to registration dates and the impact in Scotland. Additional letters have been received, which I believe all committee members now have.

We also agreed to invite the Minister for Environment and Land Reform to give evidence today. We have until 31 March to respond to the Scottish Government’s notification so, straight after today’s evidence session, we aim to come to a view.

I am therefore pleased to welcome Màiri McAllan, Minister for Environment and Land Reform. Minister, thank you for attending at short notice. I also welcome Dan Merckel, chemicals team leader, and Ailsa Heine, lawyer, both from the Scottish Government.

We have around 20 to 25 minutes for this item. Before we move to questions, minister, I believe that you would like to make a very brief opening statement.

I will do, convener. Thank you very much for having me here today to discuss the proposed statutory instrument to extend registration deadlines under the transitional arrangements of UK registration, evaluation, authorisation and restriction of chemicals regulation. The purpose of the statutory instrument is to extend by three years the dates by which manufacturers or suppliers of chemicals in Great Britain—GB—must register their substances in UK REACH.

Following feedback, work is currently on-going to look at how registration arrangements might be improved in UK REACH. The extension is proposed to allow that work to be completed and to give business certainty on its obligations in the meantime.

By way of brief background, the UK REACH regulation replaced the equivalent European Union REACH regulation following EU exit. UK REACH applies in GB, and it regulates the marketing and use of the majority of chemicals on the GB market. The hard Brexit that was eventually negotiated meant that we were denied membership of the European Chemicals Agency; as such, we have had to set up an entirely autonomous regime that essentially mirrors that of the EU.

Registration under UK REACH is a significant undertaking for businesses in GB—likewise for the Health and Safety Executive, which delivers most of the technical functions of the UK REACH, and the Department for Environment, Food and Rural Affairs, as the UK REACH policy lead. The proposed extensions to the registration deadlines arise from the significant financial and practical challenges that registration poses for GB businesses.

To put that into context, compliance with EU REACH was estimated to have cost UK businesses some £500 million. The current DEFRA estimate of cost to UK business under the new regime is between £1.3 billion and £3.5 billion. As well as cost to business, in Scotland, we have a large number of small and medium-sized enterprises that are unlikely to have directly interacted with the EU and will have relied on others in the supply chain to do the necessary on their behalf. Therefore, an extension is particularly important for Scottish business, its supply chains and, ultimately, consumers in Scotland.

Concerns have been raised, and potential improvements are being considered. The three-year extension is thought to be appropriate while that work is under way.

The committee will recognise that the concerns that I have set out are largely about business and costs, but you will also recognise that, in my role as Minister for Environment and Land Reform, I need to be content about the impact of any changes on the environment. Although the proposed extensions are far from ideal, I am satisfied that there are sufficient mitigations in place such that the potential for negative consequences for the environment is low.

By way of practical example of that, during the extended transitional phase, suppliers and users of chemicals in GB will continue to follow the safeguards that are in place under EU REACH, as all chemicals that are subject to the proposed extended deadline are already registered under that regime. Perhaps we can get into a little more of that in questioning.

In summary, I consider the situation to be far from ideal, as is the case for most things connected to EU exit, but the risks to Scottish business, consumers and the operation of the regime itself by not agreeing to the proposal are greater than the risk to the environment from consenting to it.

I am happy to take questions, and I will bring in colleagues, because there are some technical aspects to the issue.

Good morning, minister. Chemical registration was one of the key areas of concern when the UK left the EU. In relation to the Scottish statutory instrument that is in front of us, how has the Scottish Government assessed the implications of the proposed extensions to registration and compliance-checking deadlines for areas that are within devolved competence? What have you done on that?

That is a very good question. The area of chemicals is a complex split of devolved and reserved issues. For example, the environment is devolved, but health and safety is reserved. We have worked with DEFRA and with the Health and Safety Executive, which is the competent authority for these matters at UK level. I have reassured myself on some of the points about the impact on devolved matters that I was beginning to allude to in my opening remarks.

First, we are talking only about chemicals. The only chemicals that are affected by the transitional arrangements are those that are already under the EU REACH regime, so I am comfortable that the rules will continue to apply to them. Any new chemical or any novel use will have to be registered straight away and will not be caught by any extension that we are proposing here.

It is also about recognising that there is risk to not acting. The risks of not acting—having a system that is unworkable and a registration process that business and industry tell us they cannot comply with in the time that they will have to—are more problematic to business and the environment than the risks of acting. All that has been considered, and officials have worked very closely with DEFRA and with the Health and Safety Executive, which is the competent authority in all this.

You have addressed the point that there are risks to delaying the approval, but in making that assessment and in relation to the overall extension, we understand from the Scottish Environment Protection Agency that the Scottish Government has not sought advice from it. How did you make your assessment on that?

Obviously, SEPA is the regulator for environmental issues in Scotland and will be for the environmental impact of REACH overall, but the competent authority for the issue of registration is the Health and Safety Executive. That decision was made across the board with the Scottish ministers, the Welsh ministers and so on, so the Health and Safety Executive is the equivalent of SEPA in this, and we have therefore worked closely with it on the issue. Officials are keeping SEPA very closely updated on all these developments, and it is always welcome to give us its feedback.

I do not know whether Dan Merckel might want to say more about the engagement that he has had with SEPA, but it is certainly not the official body on this. However, the convener is indicating that we need to be as short as possible.

I am happy for you to come in, Dan, but I think that the minister has made that point clear. Fiona Hyslop, are you happy with that?

09:15  

Yes, I am. My final question is about the common frameworks, which will be key for whole aspects of the on-going EU exit. How has the common framework on chemicals and pesticides and its associated governance structures been used to support agreement between the UK and devolved Governments on these proposals. Is the common framework functioning as anticipated? If so, is this agreement an example of that?

Yes, I think that this is an example of the functioning of the common framework. Our getting to this point, and the cross-UK agreement that we have reached to get here, is a result and an example of the functioning of the common framework on chemicals and pesticides.

It is good to see you in front of the committee, minister. I will turn to some of the concerns of environmental stakeholders and how you have addressed those in discussions within the common framework process and come to the decisions that you have, collectively. One of those concerns is around divergence during this delay period.

I understand that the EU is considering, and has taken the first steps towards, phasing out 47 groups of chemicals under its regime but that, under the UK REACH scheme, the UK is considering only three groups in that first phase of considering the environmental health impact of chemicals and how quickly they can be phased out. Do you see the potential for divergence, given the deadlines and the lack of pace of the UK scheme?

I will split my answer into two points. First, what we are dealing with today is squarely about the extension of the deadline rather than about what system might replace the registration arrangements. On the extension of the deadline and the decision to be made today, I do not have much concern about divergence, because we are talking about trying to have a complete register and getting there within a realistic timescale. I do not see much scope for a concerning divergence between us and the EU in that regard. In fact, its register took 10 years to complete, and if we agree to this today, what we will be dealing with in UK REACH will happen within a similar timescale.

The risk of divergence comes further down the line when we look at the changes that will be made to the system and for which this time extension is needed. Officials are very much involved in the working groups, looking at what might be changed in registration arrangements. We have been clear from the outset that we would not tolerate any diminution in standards, and that is our starting point for the work with DEFRA, which is very much in the early stages.

However, the example that I pointed to is a live one. Forty-seven groups of chemicals are going through the process of being phased out in the EU, but only three groups are going through that process in the UK system. Therefore, how does the alternative model of UK REACH ensure that we do not have that divergence going forward? That seems to be a live case of divergence that is already creeping in to the system. How will the model ensure that, as we understand more about chemicals and their health and environmental impacts, decisions can be made more quickly to get them on the path to being phased out?

I might bring in Dan Merckel to see whether he can offer anything else on your specific point, but for my part today, I am content that extending the deadline does not increase the risk of divergence and that, as we develop changes to the registration system, my officials and I are clear that we will not tolerate any diminution in standards. I will be very watchful for any risk of divergence in that regard, and we would want to see that mitigated as far as possible. Dan, do you know any more about the specific point that Mr Ruskell raises?

I am happy to come in, if that helps. I think that you are referring to restrictions under REACH, which are a separate process from registration, although registration data will be used in the restrictions process to inform those dossiers. Under UK REACH, we have two on-going projects. One is the alternative transitional registration model, which looks at fixing the problems that we are talking about today.

The other big project is called REACH improvements and is about trying to change wider aspects of REACH to make them better. The Scottish and Welsh Governments are particularly focused on restrictions under that project. We want better use to be made of decisions and work in other countries and other regulatory regimes so that those can be fast-tracked into UK REACH and, it is to be hoped, save resource that could be put into specific issues around chemicals on the GB market.

The idea of the alternative registration model is that the information requirements on the intrinsic properties of chemicals should not change much but, in the GB context, we want an increased emphasis on use and exposure, which should help to identify where there are risks that need to be controlled through, for example, restriction.

Thanks for that. I have another couple of questions on this.

Mark, I am going to have to ask you to be brief, on the basis that other committee members want to speak.

Okay, I will roll the questions together. A decision was made not to go for the preferred option that was put forward by the UK Government, which was a delay of three years, two years and one year for different categories. Instead, another option was taken: to go for three years for all three categories. What was the Scottish Government’s input to that decision?

We worked with DEFRA in advance of its public consultation, which, I think, was answered by industry, trade associations and non-governmental organisations. That was a broad spectrum, although, admittedly, the majority of the respondents were trade and industry representatives. It was very clear that a three-year extension across the board was the workable option, in their view, as opposed to what I think the UK Government’s preferred option was: to extend the first category by three years, the second by two years and the last by one year.

On the backdrop of the assurance that, in the view of DEFRA and of the Health and Safety Executive, those extensions are not likely to be detrimental to the environment, I was happy that three years across the board was appropriate, if that is what trade and industry believe is necessary to make it right. It goes back to the point that I raised with Fiona Hyslop: the risk of not getting it right is substantial and, if we need that time, we need that time.

Good morning, minister. Is there a realistic alternative to the Scottish Government consenting to the extension deadline for registration and compliance, and what would happen if the Scottish ministers refused consent?

I do not think that, ultimately, there is a realistic alternative. We spoke about the common frameworks. Those are the way in which we have agreed to work together in the post-Brexit landscape and, so far, that has worked well.

One of the problems that I have with UK REACH is that we are no longer doing it on an international basis, as we did with EU REACH. To suggest that we could do something even more insular in Scotland would not be credible. It is better for everyone involved that we continue to work together, continue to take advice from the Health and Safety Executive and continue to consult.

As for the on-going work on how the registration process might be changed, I am comfortable with the fact that the Scottish ministers’ consent will likely be required to any of those changes, and that a statement in compliance with article 1 of REACH UK will be required, which will demonstrate how it does not represent a difficulty for the environment.

Shall I ask my other question now, or wait?

By all means go for it.

Do you anticipate any further amendments to the REACH regulation?

I do not anticipate any further extension to the timescales. I suppose that it is not impossible; however, I understand that a lot of resource is currently being arranged in DEFRA to make sure that it is done in the appropriate time. I expect that we will be back at some point to discuss substantive changes to the registration process because, of course, examining that is what the extension is required for.

Good morning, minister. This question is fairly long, so bear with me.

We are aware of other significant developments in the policy area, including the 2020 EU chemical strategy and the forthcoming UK chemical strategy. How are the Scottish Government and the agencies engaging with those developments and what resource is committed to that? Will the forthcoming UK chemical strategy apply in Scotland in the devolved areas and will the Scottish Government feed into that strategy?

I will try to answer that and, if I need to hand over to my officials, I will do so, because they are involved with that just now.

The UK strategy is currently being developed. I understand that our teams are feeding into that and our position at this point is that we will withhold our approval for it while we make sure that the final version reflects the input that we have made and is in line with Scotland’s interests. That is similar to the position that Welsh ministers are taking.

Dan Merckel or Ailsa Heine might have more to add to that, but I will comment briefly on the EU strategy. We are keeping a watchful eye on it and I suspect that a lot of what we will feed into the UK strategy development will be a part of learning from the EU strategy, in line with our desire to keep pace with the EU.

Is there anything to add to that, Dan?

I do not think so.

Are you comfortable with the level of consultation that has been carried out and the compliance checks on a minimum of 20 per cent of the registration dossiers for relevant tonnage?

Yes, I am comfortable with 20 per cent. That has not been up for discussion as part of the development of the SI. If the Health and Safety Executive believes that 20 per cent is sufficient for it to get the kind of return that it needs, then I am comfortable with that. The point of the extension is that those checks will have to come after completion of the final registration deadline. Is that right, Dan?

Yes.

I know that carrying out an impact assessment is more a UK Government task, but are you comfortable with the costs and the risks of the extension?

Yes, I am. I agree with Rebecca Pow, who wrote back to the committee—thank you for sharing those documents with me. As she put it:

“we believe that allowing the extra time could lessen potential burdens on businesses without significantly impacting on human health and environmental protections. We also recognise the potential for better quality data and maximising chances of compliance under the longer timescales.”

I remind people who are not at the meeting that that letter came in quite late last night. It will be published on the website so that people can see it.

The next question is from Monica Lennon.

Good morning, minister. You said that the SI involves a complex split of devolved and reserved issues. Will you outline how the Scottish Government will ensure that devolved interests are represented in the development of the proposed alternative registration process for UK REACH?

Yes, of course. Through the common framework process, we liaise closely and will continue to do that. My officials are part of the working group that is considering the development of the registration system and how it might change. We have been given assurances about DEFRA ensuring that there is sufficient capacity to get that work done in the necessary time.

When it comes to approving the final outcome, because of the statute under which the process is undertaken, Scottish ministers’ consent will, I understand, be required and, therefore, parliamentary scrutiny will be engaged. Also, that proposal will have to be accompanied by a statement in line with UK REACH article 1, which sets out the confidence that it is in line with environmental protections and does not threaten any of them.

09:30  

Thank you for walking us through that. Divergence and some of some of its risks have been mentioned a few times today. Do you have concerns that this registration process will represent a significant divergence from EU REACH, and are you aware of any desire or appetite in the chemicals industry or in the UK Government to move away from mirroring EU REACH?

On the first point, I am not concerned that changes to the deadlines are a risk to divergence or convergence. What might change is still very much at the early stages, so I have to withhold my view on that point while we develop the process. However, we will certainly make the argument for divergence to be minimised as far as possible.

I cannot really speak for the industry or the UK Government, but my impression is that the industry’s barrier is the cost of obtaining the data that is required under UK REACH, much of which it does not own. We will therefore have to find ways to try to overcome that barrier. It is very much early days, but our position will be to minimise any divergence as far as possible as that process develops.

I take it that the Scottish Government will continue to engage with industry and stakeholders on that point.

Yes, we certainly will, and I suspect that further consultation will take place on the substance of whatever it is expected to replace that year.

I had cut you off, Mark, but I can let you in briefly if you have a subsequent question.

No, I do not.

Okay, thank you. I thank the minister for attending today and giving those answers. I want to move to the next agenda item, if I may. Minister, I am sure that you will want to slip out to carry out your other duties while we consider the UK statutory instrument.

Our next item of business is to formally consider the type 1 consent notification sent by the Scottish Government relating to REACH (Amendment) Regulations 2023 in light of the evidence that we have just heard and the additional letters.

Before I go further, I remind members that, as a farmer, I use chemicals, so I have some knowledge of the chemical system—just so that there is no dubiety about that.

If members are content for consent to be given, the committee will write to the Scottish Government accordingly. In writing to the Scottish Government in that way, we have the option to pose questions or to ask to be kept up to date on relevant developments.

If the committee is not content with the proposal, we might have to make one of the several recommendations, which I could go through. Are there any comments from committee members on that point?

That was a useful session today, which looked in some detail at the REACH model—both registration and compliance—and how the whole model is evolving and developing over time. It is important now, in the post-Brexit landscape, that committees are able to scrutinise how common frameworks are working and how stakeholders are interacting with the development of those regulations, so I felt that the session was useful.

I do not think it desirable or achievable for the Scottish Government to take an alternative route in relation to the matter, so I am content to accept the regulations that are before us. However, there is a need for on-going scrutiny, and I would welcome more information about the alternative registration model as it is developed over time.

The wider model, which the minister talked about, particularly in relation to the points that were made about divergence and the review of existing chemicals—that we are all using at the moment, but which might impact on our health or environment—needs watched as well. Questions exist about the pace of how that model is developing and how particular groups of chemicals are being reviewed continually, as our knowledge and understanding of their impact develops.

It would be good if those points could be reflected in a letter to the minister, as I feel that this is the start, not the end, of a conversation.

I agree with Mark Ruskell and think that we should write in those terms to the Scottish Government. I am also minded that we acknowledge the letter from Rebecca Pow. We wrote it at quite short notice, following our meeting last week, and I think that the prompt response was very helpful, so we should indicate that.

There were two things to consider in that letter. One was that the UK minister referred to the alternative transitional registration model for UK REACH, which I think that we should express our on-going interest in. The second was that in the letter the minister said:

“We are conscious of the question of divergence and that both industry and NGO stakeholders wish to keep unnecessary divergence to a minimum.”

I suppose that our issue is what is “necessary” divergence; we want to continue to monitor that.

We should write on those terms and thank the UK minister for replying so promptly, because this is an area of such concern. I agree with Mark Ruskell that an indication of how common frameworks can and should work is going to be important to us in our on-going work on looking at implications, particularly for the environment.

As no other members want to make a comment, I now move to the substantive question for this item, which is whether the committee is content that the provision set out in the notification should be made in the proposed UK statutory instrument.

If we agree to that, we can write to the Scottish Government along the lines that have been suggested to say that we want to be kept informed of the pace of the change and of any review of chemicals in the future. I think that doing so would be useful. As part of that, we could—as the deputy convener suggested—write to Rebecca Pow to thank her for her prompt response and ask her to give a bit more detail and information on the alternative transitional registration and on what divergence means.

Are committee members happy with that?

Members indicated agreement.

The clerks are happy as well, so, now we know what we are doing.

I was going to pause the session to allow for a changeover of witnesses, but they changed over before we even had a chance to complete our business, so we will crack straight on.