Environment, Climate Change and Land Reform Committee

Meeting date: Tuesday, September 17, 2019

Official Report 551KB pdf

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European Union (Withdrawal) Act 2018

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REACH etc (Amendment etc) (EU Exit) (No 3) Regulations 2019

The next item on our agenda is to hear evidence from Scottish Government officials on the REACH etc (Amendment etc) (EU Exit) (No 3) Regulations 2019. Committee members will remember that we had some outstanding questions on this statutory instrument. I am delighted to welcome, from the Scottish Government, Lorraine Walkinshaw, who is solicitor for environmental protection in the rural affairs division, and Don McGillivray, who is deputy director for environmental quality and the circular economy.

As an umbrella question, could you outline why you are satisfied with the SI that has come before the committee?

This SI is the third in a series of instruments that relate to the new UK REACH—registration, evaluation, authorisation and restriction of chemicals—regime for the regulation of chemicals. The committee has already consented to the first two SIs in the sequence; the third SI amends the transitional arrangements for substances of very high concern.

The reasoning behind the third SI is to create a smoother transition for UK companies that currently have an application for authorisation in the system for substances under annex XIV. It was recognised that, under the arrangements that were put in place by the first two SIs, companies that had submitted an application for authorisation could, in certain circumstances, find themselves overnight unable to use that substance in the event of a no-deal exit. The SI creates a transitional regime with a period of approximately 18 months to allow those companies to submit an application for authorisation within the UK system before they have to stop using the substance.

You talked about smoothing the transition—this instrument does not really change anything, which is why you have identified it as category A. The consent notification states that the amendments in the regulations are aimed at

“smoothing the transition ... rather than changing any of the objectives of the new regime.”

However, have things not changed in the past couple of months? There is a new Administration at Westminster, which has identified as a policy priority that it will not stay aligned, and is not pursuing alignment, with EU environmental regulations. Does that not change the underlying policy objective of the whole replacement REACH framework that is being put in front of us?

It has certainly not changed the Scottish Government’s objectives with regard to that regime.

It is the same regime.

It is exactly the same. There are some transitional provisions to smooth the hard edge that would be created by a hard exit from the EU, but the regime that we are putting in place in the UK is the same as the EU regime: it is essentially a carbon copy. The underlying science is the same. We should be making science-based and evidence-based decisions under this regime.

I am sure that, if ministers were here, they would say that they have concerns about some of the statements that the UK Government has made on future alignment with EU environmental standards. However, in this case, what we are putting in place has not changed—it is a carbon copy of the EU regime.

10:30  

How can it be a carbon copy of the EU regime if it dismantles all the committees and expert working groups that allow environmental NGOs, health bodies and even devolved Administrations to get involved in decision making?

A significant amount of progress has been made on that since I was at the committee before the summer. Last week, I spoke to the Health and Safety Executive and I understand that a pool of scientific experts will be put in place to perform the same function as the one that the EU expert committees provide. As I understand it, at EU level, the NGOs play a role as observers in some of those committees, and the plan is to replicate that in the UK system. NGOs and other stakeholders will be allowed to act as observers in the part of the process where wider expertise is brought to bear.

Where will Scotland’s voice be in this?

You are raising wider concerns, which I share, but how do they relate to the statutory instrument that we are considering, which is very narrow?

With respect, the SI is a third amendment to the regime and was an opportunity to embed the committee structure in the REACH regulations. We are now on a third iteration. I am perhaps asking about what is missing rather than what is in front of us.

Where will Scotland’s voice be in the Health and Safety Executive on the issue? Environment is devolved to the Scottish Parliament, so where is our voice in the UK regulatory structure? How do we ensure that our voice on health and environmental safety is heard at UK level?

That goes back to the structure that was created under the first SI. There are two relevant points. The first is that, under the UK REACH regime, the decisions are made by the secretary of state with the consent of devolved ministers. That is the key point of influence for the Scottish Government. We have a decision-making role in the UK REACH regime at ministerial level.

The other relevant point is that one provision in the REACH regulation—I think that it is article 77, but I cannot remember the exact number—puts in place a duty to create and use structures in the regime to provide the best scientific and technical advice. That is where the new arrangements that the HSE is putting in place stem from. Those arrangements already have a statutory basis under that provision.

Under article 77, the new agency is duty-bound to take into account scientific evidence. Also, if the agency is considering any environmental matters, it will have to consult the Environment Agency, which is duty-bound to consult SEPA. If SEPA asks the Environment Agency to pass on information to the new agency, it must do that.

I stress that the concerns from the NGOs and others were legitimate because, a few months back, there was not much detail about how the function that the EU committees perform would be replicated in the UK regime. The situation has moved on in the past few months and there is now a much stronger sense of how the broader scientific evidence, the engagement of NGOs and the transparency element will be brought to bear in the UK system.

I have one final question, which is on the issue that was raised with earlier regulations about the potential for repeat animal testing under the new regime, which would be unnecessary and cruel. What is the current assessment of that? When Michael Gove was in front of the committee several months ago, he said that he was not really aware of the issue and that he would go away and think about it. Is anybody going away and thinking about it? Obviously, the prospect of repeat animal testing concerns a lot of people. We have gone through years of animal testing to ascertain whether chemicals are safe, and to go through it all again just for the sake of it seems daft.

I should remind everyone that we accepted the offer of the UK minister in the Department for Environment, Food and Rural Affairs to come up to speak to us about all those issues. There has been a change in personnel—that offer was made by the previous incumbent—but we wrote back to say that we wanted them to come up, and the new incumbent will be doing so. A lot of the questions that Mr Ruskell is asking can be put to them, but if Mr McGillivray is happy to answer from his perspective, that is fine.

The answer remains the one that I gave to the committee a number of months ago: our expectation is that a commercial arrangement will need to be reached among companies that want to register in the UK system to access data that is held by companies that registered a chemical under the EU regime. We expect that it will work very much as a commercial negotiation.

It is not possible to entirely rule out additional animal testing, but there is no reason why it should happen if the expectation that UK companies will be able to negotiate access to that data is fulfilled.

We know that it is more than likely that costs will increase for stakeholders if they have to reregister a substance in the UK REACH regime even though they have already met the associated costs in the EU REACH regime. Can you tell us whether the fees will be on a par with those under the EU regime? Given that the formation of the UK REACH regime is no fault of UK companies and that fees will already have been paid under the EU REACH regime, has the UK Government considered waiving charges?

Again, we have discussed that point with the UK Government and the HSE. Under the new UK REACH regime, transitional arrangements are in place whereby no fee will be charged for notifying the HSE of a substance that a company later intends to register or for grandfathering registrations into UK REACH, provided that a valid registration under EU REACH was held by a UK-based company when article 50 was triggered, which was 29 March 2017. If a company already had a registration at EU level, it will not cost to move it into the UK regime.

However, if a fresh application has to be made by a UK company, that will involve real work for the HSE, which will have a real cost; in those circumstances, a fee will be payable, as is the case under the EU regime. The UK Government is largely carrying the cost of funding the HSE for any work that is not supported by fees. Obviously, the extent to which the Scottish Government can make a commitment on behalf of the UK Government for things that it is funding is limited, but the transitional provisions allow for no fee for grandfathering and in some other circumstances.

Thank you very much for coming and explaining all that to us.

10:38 Meeting suspended.  

10:40 On resuming—  

The next agenda item is consideration of a proposal by the Scottish Government to consent to the UK Government legislating using the powers under the European Union (Withdrawal) Act 2018 in relation to the REACH etc (Amendment etc) (EU Exit) (No 3) Regulations 2019. Do members have any comments to make on the regulations?

The Scottish Government officials’ contribution was very useful and it has moved the debate on a little bit. I accept that the amendment is about transitioning to the new regime. However, I still have concerns about the totality of the regime that it is proposed will be put in place. I do not accept that it is a carbon copy of what currently exists under EU REACH. As a result of that, there is a danger that we will lose alignment with European regulations and that the quality of the committee structure that exists under the EU REACH regime, which has deep stakeholder involvement, will not be replicated within the HSE. I accept that there has been some progress—perhaps more on a voluntary basis in the discussions that took place with the HSE over the summer—as Mr McGillivray said.

I would welcome our taking more evidence from UK ministers on the wider framework and how we regulate chemicals and pesticides. It is a bit of a can of worms. We need to get more information on this area, and we should have the opportunity to do so in the months to come.

I agree that we should have the UK minister up here as a matter of urgency to address the wider concerns about what the replacement for REACH will look like and whether it will be a carbon copy. However, do you have any comments on this particular instrument, which is about the transitional arrangements?

I have concerns about giving full consent to it right now, so I would abstain in a vote on it.

Okay, we will have to move to a vote.

Is the committee content to agree to the Scottish Government’s proposal that consent be given to the regulations?

Members: No.

There will be a division.

For

Beamish, Claudia (South Scotland) (Lab)
Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

Abstentions

Ruskell, Mark (Mid Scotland and Fife) (Green)

The result of the division is: For 6, Against 0, Abstentions 1.

The committee has agreed that it is content with the proposal and it will inform the Government accordingly.

That concludes the public part of the committee’s business for today. At its next meeting, which will be on 24 September, the committee will hear from the Minister for Rural Affairs and the Natural Environment on two affirmative instruments. It will also consider a number of negative instruments and a draft report on the Scottish Government’s budget for 2020-21.

We will now move into private session. I ask that the public gallery be cleared, as the public part of the meeting is now closed.

10:43 Meeting continued in private until 11:44.