Environment, Climate Change and Land Reform Committee

Meeting date: Tuesday, December 11, 2018

Official Report 819KB pdf

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European Union (Withdrawal) Act 2018

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REACH (Amendment) (EU Exit) Regulations 2019

Agenda item 3 is evidence on the REACH (Amendment) (EU Exit) Regulations 2019. I welcome our panel: Tom Shields, acting chair of Chemical Sciences Scotland; Kate Young, Brexit and chemicals campaigner, CHEM Trust, who joins us via teleconference; Janice Milne, head of energy, SEPA; Dave Bench, director, EU exit, chemicals, Health and Safety Executive; Paul Simpson, site compliance and learning and development manager, Grangemouth Manufacturing Centre; and Nishma Patel, chemical policy director, Chemical Industries Association, who also joins us via teleconference.

Committee members will ask the panel a number of questions on the change to the regulation on the registration, evaluation, authorisation and restriction of chemicals—REACH. I will open the questioning by asking our panellists what they think are the key environmental or public health risks that are associated with moving from the current REACH system to a UK system. I usually ask witnesses to indicate when they wish to speak. Since I cannot see the panellists who are with us via teleconference, I ask whether either of them would like to answer that first.

I can start. As an industry, our biggest concern on public health and environmental risk is about the data behind the REACH regulation. Over the past eight years or so, the industry has collated, in the EU REACH database, information on the intrinsic properties of chemicals and the risks that they pose. We recognise and acknowledge that if, at some point, the UK leaves the EU, we will need a similar system here. However, the challenge will be to replicate that database here in the UK. The underlying issue is that data is shared among companies in the EU and is not readily available for the UK. Therefore, among other matters, our biggest concern is about not having a good, qualitative database that the UK can use.

If she can hear me, I ask Kate Young whether she has any points to make on that.

Yes, I can hear you—thank you.

CHEM Trust has concerns about the fact that, under the new UK system, there is no future commitment for the UK to ban chemicals of concern, in parallel with the EU. There is no provision to ensure that, post-Brexit, the UK’s controls on chemicals will remain the same as the EU’s. There is no text to commit the Government to implementing future EU decisions on restricting or controlling chemical use. Instead, everything will depend on the decisions that are made in the new UK agency and how it will interact with the Secretary of State for Environment, Food and Rural Affairs.

We think that, without automatic provision to copy across such EU restrictions, UK controls for protecting human health and the environment will fall behind those of the EU. We are also concerned about the lack of effective methods for overview and stakeholder engagement. There are a number of layers of oversight of the activities of the European Chemicals Agency—ECHA—that involve all EU member states. We are very concerned that it seems as though those functions have been deemed inoperable for the new UK system and that there will be no similar methods of stakeholder engagement.

I turn to the panellists who are with us in the room. I put the same question to Tom Shields. There is no need to press the button to speak; that will be done for you.

For the chemicals industry in Scotland, the first concern is about divergence of standards between the European Union and the UK—not at the very beginning, when a lot of effort will go into ensuring that we are transferring at the same level of standard, but as time goes on. Since Scotland would not have an influence on EU developments, different standards would start to apply.

If there were a divergent set of standards, that would make it very difficult for business to start trading in the EU and the UK. That is a very important issue for us, given that the Scottish chemicals industry is a big exporter and its largest export is to the EU. In fact, 55 per cent of our products go to the EU. We are also a big importer of materials and goods for the chemicals industry, with something like 60 per cent of our inputs coming from the EU. Moreover, we are not including in that the various transactions that occur when a product is being made. Sometimes there is an intermediary stage of a chemical that goes to the EU for processing and then comes back, and having tariffs and divergent standards to deal with in relation to all those interchanges will make things difficult and costly to manage. We are therefore very concerned about any difference between the standards that pertain in the EU system and those that would pertain in a UK system.

Stewart Stevenson wants to pick up on something that you have just said.

The implication of what you have said is that 45 per cent of your exports go to and 40 per cent of your imports come from non-EU countries and are therefore not covered by the standards that we are talking about. How do you manage that divergence?

We negotiate an arrangement, but that involves a significant amount of cost and energy. Many countries co-operate with us, and those relationships and supply chains have a long history. However, if we are faced with a change to standards for 55 per cent of our products over a long period of time, that will be quite an issue for us to deal with.

SEPA does not see too much change happening in this respect. We collaborate closely with the Environment Agency, which then works with the Health and Safety Executive as the UK-competent agency. In fact, the proposed regulations strengthen SEPA’s role and voice, in that the HSE must take account of our advice. The European Chemicals Agency has authorised SEPA as one of the enforcing regulators; we have collaborated closely with the Environment Agency on recommending restrictions on certain chemicals, for example, and we have worked with that agency on preparing dossiers on chemicals of concern.

Given that the rules and standards will remain the same at point of exit, the question is not about how the system and framework are set up. Essentially, we will be operating within the same system and to the same rules and standards.

The divergence issue will arise over time, because if we are separate from the EU, we can make our own decisions, which might differ. It is absolutely right for us to consider for ourselves whether we want to make those decisions instead of simply mirroring exactly what someone else, whether it be the EU or whoever, is doing. We already look at what other regulatory authorities of note around the world are doing.

The converse of the allegation could also be true. It is possible that in future we will look at something that we think is of more substance and more concern to us than it is to the rest of the EU and elsewhere, and we will be able to do so more quickly. The argument that the same level of protection will not be provided does not hold in reality, because the mechanisms and frameworks will be in place to allow ministers in all four Administrations to decide how we take forward a programme of chemicals work and the priorities that we want to ascribe within that.

Does Paul Simpson wish to comment?

I have nothing to add.

Okay. We move to questions from John Scott.

Good morning, ladies and gentlemen. As you know, the proposed regulations provide for the automatic transfer of all existing REACH registrations held by UK-based companies and only representatives. Companies will be required to submit basic data to the HSE within 60 days in support of that and to submit the full package within two years. Does the HSE expect companies to be able to meet the requirement to submit basic data to the HSE within 60 days of the regulations being passed? What will happen if a company does not submit that data? Will the registration still be valid or will it lapse? Is there a risk of a large number of registrations becoming invalid 60 days after the regulations come into force?

There were quite a lot of questions wrapped up in that. Inevitably, with a transition, we have to have a way of moving from the existing system to the new one, and we do not currently hold all that information. The approach that Department for Environment, Food and Rural Affairs ministers have reached in developing their policy in the REACH area has been to provide this two-step transition process for grandfathering in existing registrations in the UK. From an HSE perspective, we have been working with DEFRA since immediately after the referendum to put in place the planning to make sure that we can operate whatever system is designed, and we are prepared to do that.

Your follow-on questions were about “what happens if”. Inevitably, whenever there is a deadline—we have seen this before in REACH, where there have been notification requirements for particular tonnage bands in recent years—we have to communicate in advance of the deadline, make sure that as many people as possible understand what they need to do before the deadline and keep encouraging them to do it. Mostly, compliance is about information and education and not about running around with a big stick when people have inadvertently got it wrong.

In the main, the approach with this kind of deadline, as it has been with previous REACH deadlines under the current system, is to make sure that everybody is able to comply as best they can. I would certainly not want to be drawn into any comments on the very rare occasions on which a small number of companies deliberately choose not to comply, because those are generally not the rule. That is not what we mostly find.

Thank you. It is reassurance that we are seeking.

I am concerned about the detail of the data change with the transfer of the existing REACH registrations that are held in UK-based and Scotland-based companies into the new REACH system. I believe that the UK is developing an information technology system specifically for its registrations, replicating the IT system that exists in Europe, which is called REACH IT.

The devil will be in the detail. If transferring is as simple as referencing the product references and then pointing with a link to the existing database in the EU system, that will be quite easy, but if it involves re-entering all the information that was necessary to do the registrations on REACH, it could become an enormous task. I am concerned about the large number of small and medium-sized enterprises that make up the chemical sciences community in Scotland, which would not have the resources to do that kind of data transfer—in effect, to reapply all the data in the EU REACH system into a UK REACH system. That might be an enormous burden on small companies in particular. In Scotland, we have 400 or so life sciences and chemical companies; only 20 or so companies are large, while the rest are SMEs. A large part of our industry is made up of small companies, and I am very concerned that they may not have the necessary resources to do that work

It is not clear what detail will be required or how the work will be done. It may be that it will be a simple thing to do, but if it becomes a complex thing to duplicate the information, that will be an area of concern.

Am I right to say that the transitional arrangements could mean that UK authorities will not have access to full data on REACH registrations for up to two years? If that happens, what will be the implications? Why is the data needed, as opposed to a full transfer of the current data in the EU REACH system?

11:45  

I suspect that you are looking at me to answer that range of questions. The fundamental proposition here is that, under the European Union (Withdrawal) Act 2018, when we leave the EU, the existing EU acquis communautaire—the body of law that we currently work to—is placed into United Kingdom law and the statutory instruments that we are talking about fix those bits of EU law that do not work in a UK-only context but we do not make policy change as part of that process. In effect, the framework that we currently work with in the EU for REACH and all the other chemicals regimes remains the framework that we will have, but simply on a UK-only basis. That brings with it a number of consequences, one of which is that there is a registration requirement in the REACH regime; in a no-deal scenario, there will be a requirement for everybody who wants to supply a substance in the UK to have a registration.

Together with DEFRA, which leads on building the IT system, we have been trying to make it as simple as possible, but an amount of effort is inevitably required to place some details in the system. The initial notification that somebody has an existing registration that they wish to grandfather in to the UK system involves fairly basic identity details of the company and the substance. The two-year deadline is for the provision of the registration package, the size and nature of which depend on the tonnage band that the substance sits in.

We are not changing the formatting of all that information. Many chemical systems around the world use a format called the international uniform chemical information database, which gathers together in the same format all the information on substances. We will require the information in the same format, which means that if someone submits an IUCLID dossier to ECHA for the purposes of REACH registration, they can use the same dossier in the same format when they do the full data submission. They will have to send it to the Health and Safety Executive as well as to ECHA for the EU system, but they will not have to redo it in different formats. We are trying to make it as simple as possible.

I have a quick follow-up question for Tom Shields. You talked about there being 400 companies in the industry, most of which are SMEs. The regulations before us cover shipments of 1 tonne and over. What proportion of the 400 companies deal in quantities that mean that their shipments are below 1 tonne and are therefore not caught by the regulations?

I do not have a figure for how many of the 400 companies would be in that category, but I will make a couple of points. First, the 1 tonne requirement is the point at which a company needs to have a REACH registration, but it does not mean that shipments below 1 tonne are not covered by REACH. The REACH requirements cover all the tonnages, but at the point at which a company is transferring 1 tonne, it must have a registration that takes it into all the data supply, validation, testing and so on that David Bench described. Every company is therefore covered by REACH. I cannot give the specific figure that Mr Stevenson requested without doing some research.

I will pose a question to the whole panel, but you do not all have to respond, although you might want to do so on certain issues. You will know that the report “Environmental Governance in Scotland on the UK’s withdrawal from the EU—Assessment and options for consideration: A report by the Roundtable on Environment and Climate Change on environmental governance in Scotland” has, for a range of reasons, highlighted the value of a UK-wide approach. The report has also highlighted that the Scottish Government might take a more precautionary approach to chemicals than what is argued to be the UK Government’s risk-based approach. Do you have any concerns or comments about that?

Where use of chemicals is of concern in particular instances in Scotland, we would have a discussion with the HSE. It might be that specific restrictions on particular uses would be required. It is important that we are clear about why that would be done so that stakeholders—the industry and so on—understand.

We have for many decades now operated on a UK-wide basis. Officials and elected representatives across all the nations have recognised that a single decision operating across the whole the UK is generally best. It creates continuity and gives certainty. It provides a level playing field across the UK, which is desirable.

However, even within the current frameworks, there is the possibility for the nations to take their own decisions, if they wish to do so. It is rare, but it has happened in some of the chemicals regimes—although not, to my knowledge, in REACH.

One of the real opportunities in the discussions that we are having in the lead-up to leaving the EU is the chance to reset our working relationships across the UK nations. They have always been pretty good at official level, but there is an opportunity to be more strategic about approaches for the future. If we end up in a no-deal scenario, we will absolutely have to do that, but even if we do not end up in a no-deal scenario, the discussions that we are having now will help us to work better together in the future, and to make decisions that are sensible for the whole UK.

In general terms, all the chemicals regimes and the legislation for all the EU chemicals regimes are highly precautionary. Whoever is taking the decision, which will generally be the HSE with the Environment Agency—

We only have another fifteen minutes left and we have quite a lot of questions to ask. I am conscious that two of our witnesses are giving evidence via teleconference call and that one of them was trying to come in earlier.

Yes. I will be very quick. Automatic transfer of REACH registration data and having the transition period and the two-step process have been positive. Things could have turned out different.

Beyond that, there is great concern in industry. Points that were not mentioned earlier are to do with information requirements, which we have started to see in the additional guidance from the Government. You will see, if you look into the detail, that the basic data that is required is not as basic as was first proposed, but is more like part of the registration that has already been submitted. Some of the information is not readily accessible by companies. It is, because of Brexit, a tough call on companies to do it all in 60 days, alongside everything else that they will be doing to have their plans in place to have chemicals moving.

On the two-year timeframe, it is not as simple as moving data from one database to another: there is so much work involved. EU REACH gave industry eight years to fulfil the objective. Two years is a really short timeframe, so there is a lot of concern among businesses about getting the data for a UK REACH database.

We understand that there will be an automatic transfer of registration. What is your understanding of the proposed “transitional light-touch notification process” for registering imported chemicals? How significant will the burden be on UK companies that will become importers and be required to register such substances?

Again, the consequence of a no-deal exit would be that in the UK there would be a REACH regime that replicates the requirements of the current EU REACH regime. That would place obligations to register substances on some companies that have not previously had that responsibility. A new additional burden would be placed on companies as a direct consequence of a no-deal exit.

A specific example that has been mentioned is chemicals that are used to purify tap water. Can you highlight any other significant examples?

I am not sure that I can highlight particular examples. Finlay Carson has highlighted an example in which companies that are downstream users, and whose importer-supplier already holds an EU REACH registration, currently have no obligation to hold an EU REACH registration themselves, but will be under that registration obligation in a UK-only REACH environment. That will apply to quite a number of companies, but I cannot say exactly how many.

Does either of our remote witnesses have anything to add?

On downstream users, at the moment, such companies rely on their suppliers having an EU REACH registration. Currently, they have no involvement in the registration process. They possibly also have no experience in or training on delivering or complying with REACH registration. From day 1 of Brexit, those companies will automatically become importers and will have to fulfil the registration obligations very quickly. Being able to do that and to access the information that they need—REACH promotes not testing on animals and sharing data—will be a tough call on companies that have not previously had to complete such a registration process in order to fulfil the obligations.

My concern is the additional cost. In the scenario that Finlay Carson described, we will be moving to a situation where a company faces costs that it currently does not have through being covered by REACH across the EU. That will put off companies from getting involved in some investments and some operations. I am really concerned about that.

So, have no significant risks for public health or the environment been clearly identified?

I do not see such risks, but I see the risk to commercial viability, given the additional costs.

I want to go back to basics. How will the functions of SEPA and the HSE change under the new UK REACH arrangements, and what are you doing to transition to those new functions?

At the moment, the competent UK authority for REACH is the Health and Safety Executive, using expertise from the Environment Agency. That is because of how the system was set up by DEFRA in the mid-2000s. The thinking behind the statutory instrument for a no-deal scenario includes consideration of how to set up a governance framework that properly reflects the devolution settlements. The statutory instrument designates the UK agency—the HSE—and gives the Environment Agency a specific role in providing it with environmental expertise. However, as part of that role, the EA is required to engage with the environment protection agencies of all four nations.

That formal obligation does not exist in the current framework, although such engagement does take place: the committee heard Janice Milne explain how it currently happens with the Environment Agency, SEPA and other agencies. However, that is an informal arrangement that is supported by agency agreements. The statutory instrument on REACH will deliver a formal arrangement.

What will that mean for SEPA?

It will mean very little change. As Dave Bench said, the instrument will formalise the collaboration that, as I said, already happens in practice. The Environment Agency’s chemical assessment unit will consult on chemicals of concern. We have UK technical experts in SEPA who have peer reviewed the dossiers; that will continue. SEPA will continue to work with the Environment Agency and others on campaigns. There is a UK enforcement group that includes SEPA, the Environment Agency and the HSE.

As I said, there will not be much change, although it will be formalised. We will need to be mindful of changes to REACH and react quickly to those. That will also be formalised.

Will that mean additional work?

One cannot know whether, for a UK-only environment, in which it would be up to ministers from all four nations to decide on their ambition for a chemicals work programme, we would carry on at roughly the same level or have an ambition to take particular action or a direction on a UK-only basis. As I said before, one of the opportunities that is presented is that we can think about our priorities, rather than the priorities of the whole EU, and about whether we should be considering some things more quickly than the EU does.

12:00  

I am afraid that we need to move on, but I will take a quick question from Finlay Carson.

We heard earlier about the potential financial issues for Scottish companies importing. What are the panel’s concerns about Scottish companies that export chemicals to other European Economic Area countries?

The concern is that, if we export the same products to the EU and the UK, over time different standards might evolve, against which we would have to register—we would have separate registrations, more costs and perhaps more delays.

I find it difficult to believe that the Health and Safety Executive could adopt the full powers and responsibilities of the European Chemicals Agency and not need more resources. I am concerned about that being recognised and resources being provided. If the agencies do not have enough resource, registrations will take a lot longer, which will have a significant commercial impact on companies in Scotland.

The workforce plan for HSE for the no-deal scenario includes additional staff to deal with REACH issues—the new things that we would be taking on that we do not currently do.

I have a simple question, which we have covered to some extent. First, how important is it to keep up with EU REACH—in other words, to remain in sync—to whatever extent we can? How will that work in practice? That is the important question—we have covered the former. I ask that while assuming that we are going to keep up.

That is, essentially, a policy question. The policy lead is DEFRA. I can tell you about the HSE’s preparedness for dealing with Brexit in various scenarios. If we are given a steer on how to respond to things that are happening elsewhere, we will deliver on that. However, that is a policy question.

Have you, as an official, been given any indication that it is expected that a course would be pursued other than keeping track with REACH? That is not a question for 50 years’ time; it is a question for—

As I alluded to in my earlier answer, it does not necessarily make sense to say that we will just mirror a decision that somebody else takes without thinking about it or deciding whether it is relevant to the UK. The plan is to have UK consideration of EU decisions, and then to decide whether we will give effect to the same or a slightly amended decision, or not replicate the decision at all for the UK. The essence of the plan is that we will consider what is done elsewhere and decide whether we want to do it.

We have asked all our questions. Before we wind up, do panellists want to add anything?

On the potential for regulatory divergence, we worry that in pursuit of negotiating free trade deals there would be significant pressure not to follow EU regulations. We have already seen a leaked UK-India trade review in which Indian companies identify EU regulations on endocrine-disrupting chemicals as being something that they would like to be removed. We would be worried that the UK would not continue to follow EU decisions. That does not just cover banning an individual chemical; it is also about updating the REACH process. There are endeavours by ECHA to improve the quality of registration dossiers. We would worry that the UK would also not follow wider changes to the regulations.

To return to my earlier point on stakeholder engagement, I say that we are very keen for there to be continued technical expertise. We do not think that HSE currently has sufficient environment or public health expertise, so continued devolved Administrations’ involvement would be very significant in terms of voting representation.

I guess that Dave Bench would like to come in, given that HSE has been directly mentioned.

Without understanding the allegations it is difficult to respond, but my instinct is to say that we have quite a lot of public health, general human health and environmental expertise.

For REACH, the EA provides environmental expertise. On all other chemical regulatory regimes, we provide the environmental expertise, which involves a much more substantial number of people.

We have run out of time. Thank you very much, everyone, for answering our questions.

12:06 Meeting suspended.  

12:08 On resuming—  

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Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2018

Item 4 is to take evidence on the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2018.

I am delighted to welcome our panel. Mairi Gougeon, the Minister for Rural Affairs and the Natural Environment, is supported by Scottish Government officials Katy Hindmarsh, head of EU operational readiness in the EU hub for environment and forestry; Don McGillivray, deputy director, environmental quality and circular economy; and Hugh Dignon, head of the wildlife and biodiversity unit. Good afternoon to you all.

Thank you very much for coming to the meeting, minister.

The notification outlines various legislative powers that the proposed statutory instrument would transfer from the European Commission. In some cases, the powers would transfer to the Scottish ministers and in others they would transfer to the secretary of state with the consent of the Scottish ministers. How would the legislative powers be exercised? Would it be by regulation? Which parliamentary scrutiny procedure would apply? In cases in which the proposed instrument would confer legislative powers on the secretary of state with the consent of the Scottish ministers, how would the use of the powers be scrutinised by the Scottish Parliament?

We fully intend that there will be a role for the Scottish Parliament to scrutinise powers both through this process and through the legislation that will be put before members. For future powers and regulation carried out through Scottish SIs, we already have in Parliament a process that allows for such scrutiny. We are still looking at the process for regulations that are made under SIs to see what the role for future scrutiny by the Scottish Parliament will be. The Cabinet Secretary for Government Business and Constitutional Relations will be looking at that work to see how we can move it forward.

In a belt-and-braces approach, is that more likely to be by means of an affirmative instrument rather than anything else?

I cannot answer that at the moment. Our intention is to be as open and transparent as possible when it comes to creating policy and exercising regulations in the future. As for what that will look like, as I said in my previous response, a procedure for Scottish SIs is in place at the moment. Work is on-going on the future process for functions and regulations that would be exercised by the secretary of state with the consent of the devolved Administrations.

What consideration has been given to whether the joint procedure at Westminster and the Scottish Parliament could apply? Why was it—presumably—considered that it would be unsuitable for the proposed instrument to be subject to joint procedure in the UK and Scottish Parliaments?

We did not feel that the joint procedure would be resource efficient for this process, which is why it did not proceed.

Could such joint procedure have the benefit of allowing the Parliament to consider, for example, the scrutiny procedure that would be proposed for any regulations to be made by the Scottish ministers under the proposed SI?

We have not identified any other candidate SIs that would fall into the bracket of being suitable for the joint procedure.

I have to ask you a further question on transfers, if I may. The notification states that the proposed process is designed

“to ensure that the regimes continue to function smoothly, without the need for amendments to the legislation by Parliament every time a change in the technical details is required”.

Should such changes to environmental law not come before the Scottish Parliament?

Again, we aim to be as open and transparent as possible on any future regulations that we might make. We have tried to do so throughout this process. We have a scrutiny process for statutory instruments at the moment. We intend to share with the committee as much information as possible. For draft SIs, we cannot do so until they are laid at Westminster, but as soon as the final versions are laid we will share that information with the committee. We intend to do so as and when information emerges, as it is in all our interests for that to happen.

The notification states:

“There are no financial implications associated with the proposals”.

In previous letters, it was stated that you did not expect there to be significant costs in relation to SEPA’s overall resources. How has the Scottish Government reached that conclusion when no financial assessment has been made?

I will set out why we have reached that conclusion. The process that we are going through is to ensure that, if Brexit day comes and we are in a no-deal scenario, our laws will continue to function. That has been the absolute priority for us. We cannot end up in a position in which 29 March arrives and we are unable to enforce the legislation that we currently have in place. It has been the priority from the start to ensure that we have that readiness on day 1.

12:15  

Unfortunately, although we are trying to work as closely as possible with DEFRA and other Government agencies to work through the process, because of the timescales that have been imposed on us and the lack of time that we have had to get through the process or look at the future frameworks, we have not had the opportunity to undertake impact assessments. We continue to engage throughout the process with stakeholders and our public bodies, such as SEPA and SNH, which will largely be responsible for delivering some of these SIs.

As far as I am aware from that engagement, no particular issues have been raised about the capacity to deal with the regulations. As I said, it is about ensuring that the work that is currently undertaken can still happen on day 1 if we end up in a no-deal scenario.

You partly answered my question in your response to Finlay Carson’s question, but could you tell us a bit more about the stakeholders that you have engaged with? Obviously, because of time, it is not appropriate to read out a list, but could you let the committee see a list of the stakeholders that you have engaged with? Has the dialogue with stakeholders shaped or changed the legislation in any way?

It is also DEFRA’s responsibility to undertake a lot of that work. It has an online resource library that it has opened up to particular stakeholders to let them see the SIs as they develop. Some areas of these statutory instruments would affect SEPA in particular as the regulator. We are in constant discussion with SEPA anyway and we feel able—as does SEPA, as far as I am aware—to deal with any additional burdens. It is about ensuring that we are able to do in the future what we currently do.

In terms of engagement with other stakeholders, my officials might be able to say more.

We have written to all the stakeholders to inform them of the process that we are going through in fixing deficiencies. Policy area officials have done the same with their stakeholder networks. We have also used our existing networks to communicate with SNH, SEPA and other public bodies. We have also made information available publicly on the Scottish Government website. As the minister said, DEFRA has created an online reading room, and the Scottish Government has put forward the names of relevant stakeholders and academic experts for whom we think it would be helpful to have access to some of these SIs. We have therefore used a variety of forums to get as much meaningful stakeholder engagement as possible on the instruments.

It would be helpful for the committee if you could send us a list of those in Scotland that you are engaging with.

I am happy to send a list.

I want to turn to the provisions in the SI on industrial emissions and the Scottish Government’s ability to select the best available techniques. I am trying to get my head round how that power might be used. For example, on Friday I visited a glass reprocessor in Alloa, in my region, that has quite poor environmental compliance. It recognises that and is looking to make medium-term and long-term investments in technology. How will engagement with the industry work under the powers in the SI? Is there the potential for divergence between Scotland and the rest of the UK? What does the SI mean right now to a glass manufacturer when its shareholders are thinking, “Oh, we’ve got a horrible SEPA report—we need to make investments”? Where is the certainty in that and where is the engagement? How do you reassure people and provide that certainty?

If we wanted to apply our own best available techniques in Scotland, we would be able to do that, but ideally we would be working across the UK to do that.

We do not want there to be any lowering of our standards once we come out of the EU. That was clear from the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. We want to keep pace with what is happening there.

I have some figures here in relation to BAT. We have 230 installations in Scotland, to which 14 BAT conclusions currently apply. There are another eight BAT conclusions that could apply to another 160 installations, and I think that there are 11 further activities currently being looked at that could become further BAT conclusions.

In relation to the regulator, SEPA, we will obviously maintain a close engagement with Europe to see what is happening there because, again, we do not want to see a lowering of our standards. However, as I said at the start, if we want to apply our own best available techniques, we have the powers to do that.

To answer Mr Ruskell’s question about how the power is used, it is applied through SEPA’s permitting process under the industrial emissions directive. Essentially, the BAT reference documents set a standard that the regulators across Europe agree, and that standard is applied to specific installations through the SEPA permitting process. SEPA will take into account the circumstances of a specific plant and apply the requirements of the BAT document in a way that is suitable for that specific plant.

So we will not lose that.

No. That will stay exactly the same. The only difference is that the source of the BAT will change. All of the existing BAT will stay as part of retained EU law but, in terms of how BAT is developed in future, it will be a UK or a Scottish reference document instead of an EU one.

The notification indicates that it is important to achieve business certainty. Can we have an assurance that environmental protection and enhancement will be given an equal weighting when this notification is approved?

Absolutely. As I said to Mark Ruskell, we want to maintain high environmental standards. That is of paramount importance to us. We do not want to lag behind the rest of the EU. In fact, we want to be environmental leaders in that regard. That is certainly one of our key priorities.

Under the SI, powers to amend annexes 1 and 2 of the mercury regulation would be transferred to the secretary of state, with consent of the devolved Administrations. The annexes detail mercury compounds and products containing mercury that are currently regulated by the EU regulation. What process will be employed here, and what will happen if consent is not forthcoming? Can you provide reassurance that the requisite resource exists in the Scottish Government and SEPA in relation to mercury aspects of this SI, and is SEPA sufficiently funded to deal with that?

As I said earlier, we are continuing to engage with SEPA through this process to ensure that it is not subject to any extra burdens.

Although the frameworks are still to be established—we are still engaged in that piece of work—consent is a statutory requirement. That means that, should the secretary of state wish to amend annexes 1 and 2 of the mercury regulations, he would be unable to do that without our consent, because there is a statutory requirement in that regard.

As there are no further questions, I thank the minister and her team for attending. We will now continue in private session.

12:24 Meeting continued in private until 12:45.