The control of chemicals through the EU REACH Regulation remains one of the EU's most ambitious environmental measures.
The work needed to achieve its aims requires not just a specialist EU institution in the form of the European Chemicals Agency but also the collaboration of competent authorities in each of the member states, all in addition to significant private sector investment in skills and expertise. As such, it is widely regarded as one of the most difficult aspects of environmental regulation to preserve within UK law once the UK leaves the EU.
We have been advising clients on potential options for chemicals regulation after Brexit. Much depends on the agreement reached between the UK and the EU.
Access to the Single Market would require continued compliance with REACH but without a seat at the table to have a formal role in influencing its future direction (something that has been lamented by industry given the UK's strong role to date). At the other end of the spectrum, although a hard Brexit might give the UK freedom to set up its own regime, EU law will still have extra-territorial effect because UK businesses are likely to retain REACH principles to ensure continued access to the EU market. Further, the government has a great deal on its post-Brexit plate and designing a new chemical regime from scratch, including creating new UK institutions, would be a significant additional undertaking and investment of Treasury resources.
There are also devolution questions. Control over environmental matters has been devolved. Given the EU origin of a great deal of our environmental law, there has been some flexibility in implementation and some variation between the countries of the UK, but no significant deviation. Post Brexit, would the countries of the UK be at liberty to take strongly diverging approaches to chemicals regulation? That may be a wholly unwelcome additional complication for business.
REACH has also created a significant UK-based industry of consultants and experts who are providing services in the sector and fulfilling REACH roles such as the only representative role acting for importers outside of the EU. Losing this expertise would be loss for the EU and would also have a negative impact on the UK economy.
There may of course be opportunities for improvements if the UK pursued its own path. The UK has traditionally preferred a risk-based rather than hazard-based approach to chemicals management that many would welcome, and there would undoubtedly be room for more flexibility within a UK scheme without input from 27 other states. However, the benefits must be weighed against the value of certainty and consistency and many would prefer a uniform approach, even if imperfect, rather than having to deal with numerous different regimes.
So, doing nothing is not an option for UK government, nor can it be fixed by the government's proposed Great Repeal Bill alone. Our conclusion, therefore, is that government needs to focus on this area as a matter of priority in its negotiations.
We are not alone in that view: the UK Parliament's Environmental Audit Committee recognises that urgent attention must be paid to UK chemicals regulation post Brexit and has launched an inquiry to examine some of the most pressing questions.
We are liaising with clients on the inquiry and we encourage all businesses with an interest in chemicals regulation – whether manufacturers, importers or downstream users – to get involved. The deadline for written submissions is Friday 20 January 2017.