Dave Gordon, environmental partner in the Chemicals Industry Group at Squire Patton Boggs, asks what the implications are of a vote to leave the EU for chemical regulatory law and policy
The topic of the moment in the UK is whether a `Brexit' vote in the referendum on 23 June will be a good or a bad thing for the UK and it seems to be polarising the nation. Stepping away from the political rhetoric and posturing, however, it is worth reflecting on some of the more practical issues arising from a Brexit, such as how it could affect the chemical regulation landscape.
Most chemical regulatory legislation in the UK and other Member States is derived from the EU. Originally, this came largely from directives which were implemented by UK domestic secondary legislation, such as the Dangerous Substances Directive and the Dangerous Preparations Directive.
Increasingly, however, the EU has regulations in this area of law, such as REACH, the Classification, Labelling and Packaging (CLP) Regulation and the Biocidal Products Regulation. Unlike directives, these regulations are directly applicable, with national law only having to deal with enforcement and penalties.
This makes a potential break with the EU particularly pertinent to this area of law, because a large number of directly applicable EU laws would cease to have effect in the UK after Brexit, so positive steps would certainly be needed to replicate or replace those in domestic law. So what could happen to chemical regulation from a practical and policy perspective if the UK decides to exit the EU after the June referendum?
Status of EU-Based Chemical Regulatory Laws
Exiting the EU would not be an instant event but rather a long process which would take several years after a decision to exit was made. At the end of that transitional period, EU treaties, regulations and directives would cease to apply to the UK. In the case of directives, the situation could be particularly complex, because those are implemented by UK legislation which would not cease to apply, but which is interlaced with references to EU law.
Assuming there is no overall plan to abolish and revoke every single EU-based measure upon exit, there would need to be a detailed review of all chemical regulatory legislation during the transitional period to work out what should continue to apply after exit, and also the mechanics for doing that where the legal text is directly in EU legislation rather than in domestic laws. Even if the UK wanted to move away from some of the EU-based laws, care would have to be taken to avoid the gaps in coverage and uncertainty this could create.
Further, a number of laws in this area derive from international treaties and agreements to which the UK is a signatory, or has otherwise adopted in its own right, such as the Montreal Protocol on Substances that Deplete the Ozone Layer and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. So the UK would need to maintain laws to meet the requirements of those conventions and agreements in any event.
What Will be the Status of EU Laws in Britain in the Event of a `Leave' Vote?
The status of EU case law is another question. The interpretation of EU-derived law is often based on or supplemented by case law of the European courts. What status would be given to that case law if the UK left the EU and could a line be drawn between the effect of case law that pre-dated Brexit and new case law after that date?
Product Standards for Market Access
Even if the UK exits the EU it will still want and need access to EU markets, and that could be structured in a number of different ways. If it joins the EEA and/or EFTA, it would still have to meet the standards of key EU legislation, including chemical regulatory and other environmental and safety standards and so would still be constrained by EU law.
Even if the UK did not join those groupings, in practical terms it would still need to meet regulatory product and supply chain standards like REACH and CLP in order to be able to supply products and services into the EU. Supporters of the `Remain' campaign cite this as one of their main arguments, that the UK would need to continue to meet EU standards in order to gain market access, but without the ability to contribute to the ongoing development of EU law and policy.
Use of the UNECE Globally Harmonised System (GHS) of Classification and Labelling of Chemicals, which has been adopted in the EU through the CLP Regulation, would also be a key requirement for continued access by UK products other global markets. Therefore, the UK would need to ensure that its products continued to meet GHS requirements.
Chemical Regulatory Policy Direction
If the UK did split with the EU, what impact could that have on future policy direction in chemical regulatory matters? If the UK retained the status quo at first, it is possible that legal standards could be adjusted over time to a more UK-specific set of chemical legislation.
That could mean less stability and certainty in understanding and anticipating these laws, as the UK legislative process is more susceptible to the political cycle than the EU legislative process. It could also lead to lower or less ambitious standards in consumer safety or environmental protection. A group of former heads of environmental charities and regulators have recently written to the British government to that effect.
Others argue that Brexit would allow the UK more freedom to make laws that are adapted to UK-specific circumstances, rather than EUwide ones. One rather perverse possible effect is that EU law could change in a particular direction going forward without the UK there as a powerful influencer, and the UK could then have to comply with those new or additional chemical regulatory requirements in order to gain EU market access.
If the UK does vote for Brexit in June, that will only be the beginning of a long and complex process to unpick and separate out the UK's chemical regulation into a stand-alone set of rules and regulations. Going forward from then, it is very unclear what approach the UK might take to how much of that legislation it would maintain for its own policy objectives and to continue to be able to access EU markets.