Official Report 600KB pdf
Chemicals (Health and Safety) (Amendment, Consequential and Transitional Provision) Regulations 2026
REACH (Amendment) (No 2) Regulations 2026
08:41
Our second item is an evidence session on two consent notifications relating to proposed United Kingdom statutory instruments: the Chemicals (Health and Safety) (Amendment, Consequential and Transitional Provision) Regulations 2026 and the REACH (Amendment) (No 2) Regulations 2026.
I welcome to the meeting Gillian Martin, Cabinet Secretary for Climate Action and Energy, and her supporting officials from the Scottish Government: Dan Merckel, chemicals team leader; Lucy Drummie, lawyer; and Greig Walker, project lead.
We will take evidence on both instruments under this agenda item before discussing whether we are content for consent to be given under two separate agenda items: items 3 and 4. Cabinet secretary, would you like to make a brief opening statement?
Thank you, convener, for inviting me to give evidence on the two UK statutory instruments.
Chemicals safety regulation, which the UK has inherited from the European Union, is complex. It is organised around how chemicals are used. However, as well as that sectoral approach, some regulations apply across the piece and introduce interdependencies between regulations. Such legislation encompasses reserved and devolved competencies, so Scottish ministers play a role in many aspects of decision making within a common framework governance structure. Neither UK SI diminishes that role in the UK regulations that it amends.
The first SI, which I will refer to as the HSE SI for brevity, concerns amendments to three separate pieces of chemicals safety legislation that operate across Great Britain and which the Health and Safety Executive has responsibility for, on behalf of the Department for Work and Pensions. Details are contained in the notification that I submitted to the committee, but, briefly, those concern: the classification, labelling and packaging regulation, which is about communicating the hazards of chemicals in the supply chain so that they can be transported, used and disposed of appropriately; the biocides regulation, which is about the placing on the market and safe use of biocides; and the prior informed consent regulation, which controls the import and export of specific highly hazardous chemicals. The HSE SI amends those three regulations in a number of ways that either improve efficiencies or address specific issues related to the resource required to operate them in a GB-only setting.
The second instrument, which I will refer to as the REACH SI, concerns deadlines by which companies must register their chemicals under the UK registration, evaluation, authorisation and restriction of chemicals regulation—the REACH regulation.
Registration is a cornerstone of how the UK REACH regulation works. Not only does it allow companies to demonstrate that their chemicals can be used safely; it furnishes regulators with the information that they need to see what further controls might be required. However, without a delay, we run the risk of GB businesses not being able to register under UK REACH or, at the least, of companies incurring large needless costs, which I imagine is something that none of us wants.
08:45
This is the second time that the committee is scrutinising a proposal to postpone the transitional registration deadlines in UK REACH, and the further extension of deadlines is essential to allow work to be completed on a longer-term fix for the issue, which is taking much longer than anticipated due to the sheer complexity and on-going in-depth industry engagement on what is called the alternative transitional registration model—or the ATRM. The Department for Environment, Food and Rural Affairs is leading that work, but devolved Governments are involved in it, too.
The HSE statutory instrument will maintain protections for people and the environment, support HSE’s delivery of regulation and, in some cases, should allow us to increase alignment with the EU. Under the UK REACH SI, companies supplying and using chemicals will still adhere to the conditions laid down for use under EU REACH. Any new chemicals introduced since Brexit need to be registered without delay under UK REACH, so they will not come within the scope of this instrument. As such, I am satisfied that we are maintaining standards set when the UK was still in the EU with both these instruments.
My officials and I are happy to take any questions.
Thank you very much, cabinet secretary. I have just a quick question. As you have said, we have looked at the REACH regulation before, and now we are looking at it again. I will not be here if it comes back a third time. Do you think that it will come back a third time, or do you think that this instrument represents a final nailing down of the dates?
My officials will be able to instruct you on what reassurances we have had from the UK Government on this. With regard to the second amending instrument that I have spoken to, I have said that a great deal of work still needs to be done in that regard, and that is why there have been delays. Anyone who was here when we exited the EU would have had concerns, certainly when it came to this area of policy, that any transition away from the EU REACH arrangements was going to be highly complex.
Did we think that it would take this amount of time? I do not think that we would have thought that it would have taken nearly 10 years, although, given the REACH arrangements and the need for a mirroring system at UK level, we always knew that this was going to be extremely complex. That said, I am convinced that, as long as the EU arrangements are in place up to the point at which we have a UK REACH system, there will be no danger of any diminution of standards associated with the chemicals.
Thank you for your reassurance, but you did not quite get to the point of saying whether there will be another amending instrument on top of this. You said that your officials might be able to give me confidence that this will be the final one.
When it comes down to it, it is an issue for the UK Government, but if my officials have any intelligence on what it has said about things coming back, they can come in now.
We are confident that this will not come back again. From our point of view, it would be unacceptable if it did, given that it took the EU just under a decade to implement its own transitional registration arrangements. Taking longer than the EU over a GB-only system is not really acceptable, so we would be very keen not to see this again and for the alternative transitional registration model to be in place as soon as possible.
That might be of some comfort to my successor, whoever that may be.
Mark, I think that you have some questions.
I am interested in finding out where we are with divergence from EU standards. How are you monitoring that? What are the main areas where we are starting to diverge from the EU?
The extension means that we will not have a comparable database until a year later, so in this transitional phase, we will continue to rely on conditions that were set out when we were still part of the EU. The EU registrations database is still publicly available and is still the resource for those outside the UK who are looking for information on chemicals. Therefore, the HSE SI will not have a negative impact on alignment, compared with the current situation.
You are right, to a certain extent, that the HSE has asked for flexibility and discretion. For example, the CLP regulation will be implementing an internationally agreed system for classifying hazards, which, I should point out, comes under a United Nations environment programme.
When it comes to requiring flexibility, you know my views, Mark. I would rather that we were still in the EU and part of the EU REACH system. You and I were on the same committee in the previous parliamentary session, when we discussed the concerns that you are bringing up now about any deviation from EU alignment being a very real risk and dependent on the flavour of the UK Government from one session to the next.
The Health and Safety Executive is the regulator, and I expect that it takes its duties on the control of hazards associated with chemicals absolutely seriously. I expect that there would be an intense mirroring of the standards at EU level as much as possible, but, of course, it will be a UK system that is governed by the UK Government of the day.
Environmental non-governmental organisations are right to point to the fact that, with a separate system, we might have a UK Government in the future that does not want to align with the EU. The Scottish Government wants to align as closely as possible with EU regulations and standards.
I am satisfied, as it stands, that the flexibility that the HSE is asking for would be for very particular circumstances, and that it would have to get agreement from all Governments in the UK for any deviation to happen.
My officials might have further information on what has been set out by the HSE.
I will add to what the cabinet secretary said. It is just really complicated, even for things that should be easy to monitor, such as REACH restrictions, which we have talked about in previous sessions. We have progressed two of those restrictions, whereas the EU has progressed 13. Even with those two, there are necessary differences from what the EU has done. Therefore, even with something that should be easy to track, it is not straightforward.
In the case of the HSE instrument, to date, we have deviated on about 10 per cent of the EU classification and labelling outcomes. That is because, in the current system, the HSE forms its own opinion on the same data that the EU has used to get to its classification. Most of the time, we agree, but not always. The new fast-track system that we are putting in place should get rid of that deviation when we have straightforward, fairly simple cases.
One of the areas of deviation is hazard classes. This is complicated, but let me break it down into something that is quite simple to understand. Endocrine disruptor chemicals are in children’s toys. My understanding is that the EU is banning those—it has put them in a hazard class, which means that they cannot be sold. My understanding is that, in this country, the view of the HSE is that it is fine to continue to sell toys with endocrine disruptors. Is that an area of divergence, and how do you justify it?
The HSE’s view is that hazard classes should be adopted at UN level before they are implemented domestically. It has told us that it has identified some problems with how the hazard classes are defined. The HSE is working at UN level to look at how those problems can be solved. I am afraid that I do not have any detail on the particular example that you give, Mark; however, that is the rationale that the HSE has set out to us.
The convener has already raised the fact that amendments to the REACH regulations have been back to the Parliament twice. Is that an indication to you that the system is working?
With an eight-year delay in implementation, it seems to me that the system is broken. It was set up as a Brexit fix, but it has been impossible to implement. I do not see where the data is coming from to get the system functional and up and running.
It is fair to say that the HSE has not been publishing as much information on this as we would all like. My officials and I have certainly had conversations about that. As you rightly say, we are talking about decades of regulation at EU level having to be unpicked and a system having to be built from scratch in the UK. The HSE is taking time to do that in a way that is robust and with the amount of resource and capacity that is required. Five years ago, we said how much of a task that would be, and that has been borne out by the fact that we now see delays. It is so complex to build a new system at UK level that replicates decades of regulation. It used to be at EU level and all the systems used to lie at EU level, as well.
Are you saying that, if we give it another couple of years, it will be fixed? Is the HSE telling you, “It’s fine; we’ve got it under control”? The industry does not know what it is meant to be collecting right now.
The HSE is saying—my officials can correct me if I am wrong—that it needs more time to bottom out all the work that is associated with creating a new REACH system in the UK.
Which is what the HSE has been saying since 2018.
Yes, which is unsurprising, given the task that it has had to undertake because of EU exit.
I want to move on briefly. There is a lot of focus here on HSE. I am seeing a regulator that is also a policy maker. I am seeing increasing responsibilities. Where does the Scottish Government sit in terms of HSE proposals, because it looks as though, under the CLP regulation, the amount of time that the Scottish Government will have to respond to HSE proposals is reduced?
You are perhaps referring to the notifications that have to go to ministers. I can address that. We would not have agreed to that if we thought that there would be any diminution in standards associated with it. We are satisfied that the notification of ministers is not really an issue or a requirement that will make any material difference in terms of the standards that will be upheld by the HSE.
What you are saying about the role of the HSE at UK level is really a question for the UK Government. If you are questioning whether the HSE has a number of roles that are in conflict with one another, that is something that you would have to take up with the UK Government.
I worked in energy and had to adapt quite a lot of HSE protocols into courses for the oil and gas industry, and I find it to be a very well-respected Government agency with a great deal of expertise. The question is whether it is ready and has the capacity to take on the massive task of regulation as a result of EU exit, and that is a question for the UK Government. The HSE requires more time to get things right, and it is the body that is tasked with doing that by the UK Government.
You are obviously content—you are moving the motions on the SIs today—with everything that the HSE is doing.
Yes, I am.
Finally, on transparency with the HSE, I note that the committee has not had a copy of the consultation summary and responses in relation to the CLP regulation. Have you?
09:00
We have had all the information that we need. You are right that the HSE has not published the consultation responses. We have been going via DEFRA to get all our questions answered about these statutory instruments. We have said that one of the things—
Sorry—I am a bit confused as to who is leading on this. Is it DEFRA or is it the HSE?
The publication has been delayed. We have been assured that it is imminent and that it will happen before the statutory instrument is laid. My officials have seen the draft text of that; it has been shared during the drafting of the SI. You are right that the final publication has been delayed, but we have been assured that the HSE will publish that before it is considered by the UK Parliament.
Okay, but the committee cannot see it.
If the HSE has not shared it with the committee and the committee has asked for it, the committee may want to take that up with the HSE.
I do not think that we have asked at all. This came up in the committee’s discussion before the meeting. Mark Ruskell was concerned that the SI was being laid before the Health and Safety Executive had published the consultation, and therefore we were not in a position to ponder what came out of that consultation—if I have that right, Mark. The committee’s concern, and mine, is that the SI has to be reported on without our seeing or having the opportunity to see the consultation. Is that the point that you are trying to make, Mark?
Yes.
So we have not asked for it yet, cabinet secretary.
I am finished, convener. I will let other members come in.
I do not see that any other committee member wishes to ask a question, so we will move on to the next item of business. Before we do so, I thank you, cabinet secretary, and your officials for the evidence that you have given. I will now give you the opportunity to leave the table while we make our decision on the instrument. Once we have done so, I will pause the meeting for five minutes and we will then go straight back into the next part, when you will be on again.
Do you want me to leave?
No, I do not want you to leave—I am offering you the opportunity, if you want it, to take a breath of fresh air while we discuss what we are going to do on the instrument, because that is up to the committee with no input from you. It is up to you whether you want to stay put or to move.
Agenda item 3 is consideration of the Scottish Government’s proposal to consent to the UK Government legislating in a devolved area, as set out by a proposed UK statutory instrument: the Chemicals (Health and Safety) (Amendment, Consequential and Transitional Provision) Regulations 2026.
The committee’s role is to decide whether it agrees with the Scottish Government about the proposed change. We can express a view both on whether we agree in principle to the UK Government legislating in this area and on whether we agree with the specific manner in which it proposes to do so.
If we are content for consent to be given, I will write to the Scottish Government accordingly. When writing to it, we also have the option to draw matters to its attention, pose questions or ask to be kept up to date on particular matters.
If the committee is not content with the proposal, however, it can make one of several recommendations, which are outlined in the clerk’s note. I will not go through those, because they are set out in the members’ papers.
I will ask members for their views. Mark Ruskell, I will come to you first, because you have asked a few questions.
I think that this is a mess. The UK REACH process was set up in 2018, and I do not think that it has ever worked. I appreciate the comments that the cabinet secretary has made. This is a situation that Scotland does not want to find itself in with Brexit.
I am going to be a bit pedantic—although I try desperately hard not to be—but this item is on the chemical regulations rather than the next document on the agenda.
No, that is fine. I have problems with both of them, but I will start with that one. I have concerns in relation to the role of the HSE. It is acting as both a regulator and a policy maker, which feels a bit like a power grab.
There is certainly a lack of transparency. We do not even have a consultation document for the regulations. I am concerned that decisions are being made without transparency. I do not know what is meant by alignment with the wider UN rules. I do not know whether we are going to end up aligning with the regulatory regimes of other nations, rather than with those of the EU. There are particular concerns about certain classes of hazards, such as children’s toys and endocrine disruptors. There might be other cases where we are effectively falling out of alignment with the EU, which would have serious implications. It would also have implications for trade.
I am concerned. I do not think that we have been presented with the full picture, and the HSE should, at the very least, be in front of the committee to answer questions before we agree to such a far-reaching set of chemicals regulations that could take us further out of alignment with the EU.
I am looking around at other committee members. Bob Doris would like to say something.
I have a brief observation, convener. I am not sure that, once approval is given, the die is cast for evermore, so to speak. The committee will be in another form in a few months and we will leave a legacy report.
I also sit on the Social Justice and Social Security Committee, where we frequently use the expression “shared space”. In consenting to the making of regulations, we make a shared space for our successor committee. I am not sure that our scrutiny of these regulations will be on-going if we agree to them being made. Notwithstanding the massive volume of work that the committee has within its current remit, I wonder whether we could leave a breadcrumb of work in our legacy report about bringing the HSE in at a later date for the committee to find out what the regulations will mean in practice.
I get that that would happen after we agree to the making of the regulations, and that is problematic for Mark Ruskell, but I am trying to think how we could take a responsible view and follow up some of his concerns in the next parliamentary session. That might not be helpful in relation to this agenda item, but I am trying to find a way forward.
That is helpful, and we can certainly highlight our concerns about the regulations. The problem is that we have to make a decision on the SI today that will allow the Scottish Government to consent, and I think that that has to be done by somewhere around 20 February—I apologise if I have not got the date quite right—so that the UK Government can decide on it and move forward.
In relation to Mark Ruskell’s concerns, it might be that the subsequent committee should consider the recommendation that the HSE be brought before it.
None of these situations is ever ideal, and that is the difficulty with the devolved settlement and Brexit. It is fine to get the HSE to come to the committee at a later point, but we are not going to be able to do that during this term. There is just no way that that will happen, given the level of work that the committee still has to do. Let us be honest—if the HSE consultation responses are in draft only, they might not be fully formed before the end of this parliamentary session anyway.
I suggest that we take some comfort today in the fact that the cabinet secretary’s officials have seen the draft consultation responses. I am quite sure that if there were any red flags in those, they would have let the cabinet secretary know about them. We need to trust the good offices of the cabinet secretary in that regard. I am sure that she can give us further assurance today—I think that she has already done so—that the Government will continue to look at all of this. We are not in an ideal position. We do not know who wanted these changes—I certainly did not—but we are where we are, given the way in which all this operates.
Thank you, Kevin. That is a helpful suggestion. When we make a decision, we could include a letter to the Government, saying what our concerns have been about HSE. The difficulty is that we need to make a decision on the statutory instrument and on whether to give our approval.
I am trying to find a way for you to be content, Mark. However, if you are not—
I am not going to be content with what is before us.
Okay. That is helpful. We can just go straight to a decision. As much as I dislike seeing the committee divided, I do not think that there is any way round it.
The substantive question is, that the committee is content that the provision set out in the notification be made in the proposed UK statutory instrument, which is the Chemicals (Health and Safety) (Amendment, Consequential and Transitional Provision) Regulations 2026. Are we agreed?
No.
We are not agreed.
I just want to clarify this. You are not going to agree to the proposal at all, Mark, but are we in a position to say that the committee is not agreed, with one member objecting—which we would have to say—and that we would like further details to be made available at a later date, when the HSE has made its consultation public to any subsequent committee? Would that be sufficient? I am looking at the clerks.
I have to ask, Mark: are you objecting in principle, or would you rather that the Scottish Government did that?
I am objecting in principle to what is before the committee this morning.
I think that is clear. Only one member is against the proposal but, as we are not agreed, we will have to go to a vote, I am afraid.
For
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Lumsden, Douglas (North East Scotland) (Con)
Matheson, Michael (Falkirk West) (SNP)
Mountain, Edward (Highlands and Islands) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Against
Ruskell, Mark (Mid Scotland and Fife) (Green)
The result of the division is: For 5, Against 1, Abstentions 0.
The proposal is therefore agreed to. We will make our point in our covering letter.
Item 4 is consideration of a second proposal by the Scottish Government, to consent to the UK Government legislating in a devolved area, as set out in the UK statutory instrument proposal for the REACH (Amendment) (No 2) Regulations 2026. As before, the committee’s role is to decide whether it agrees with the Scottish Government about the proposed change. We can express a view both on whether we agree in principle to the UK Government legislating in this area and on whether we agree with the specific manner in which it proposes to do so.
If we are content for consent to be given, I will write to the Scottish Government accordingly. In doing so, we have the option to draw matters to the Government’s attention, to pose questions or to ask to be kept up to date on particular matters. Some options have been set out in the clerk’s note.
Mark, I would like to understand whether you are objecting to this proposal, and if so whether you are objecting in principle. Is it exactly the same situation as before?
It is quite clear that the system is broken. I have sat in this committee and in our predecessor committee, and we granted extension after extension. I do not see the system ever working. It is important that the UK Government thinks again about whether having a separate UK REACH database will ever get us to the point of having up-to-date data about public health and safety. I do not think that we will ever get to that point.
It is for the UK Government and other ministers around these islands to think about what the next system should be. If, in two years’ time, we get to a point when the Government cannot meet the deadline and is seeking to extend it again, I do not know what that will look like. Perhaps the system could fully align with the EU. Perhaps the Government could take another approach.
Right now, there is no alternative but to add another two years on to the deadline. I want it to be noted that we have a completely and utterly dysfunctional system, which is not gathering the data. Industry does not know what kind of data it should be gathering. The whole system is broken, and serious concerns need to be raised with both Governments about the adequacy of that system. It is a joke to have an eight-year extension for something that was envisaged as taking only two years, in replicating the database. We are effectively being forced to vote for something that is redundant, inoperative and dysfunctional. I will do so through gritted teeth.
I hear what you are saying. I have to put the question: is the committee content that the provision set out in the notification be made in the proposed UK statutory instrument that is before us, which is the REACH (Amendment) (No 2) Regulations 2026?
Members indicated agreement.
We are agreed on that, and we can write and express our concerns on the matter. I suggest that we draft a letter. [Interruption.]
The clerks are raising a good point: that it would be useful to copy the letter to the HSE, so that it understands our concerns. I also take the point about pointing our successor committee towards the matter.
Members indicated agreement.
That is decided, then.
09:15
Meeting suspended.
09:20
On resuming—