The challenges for EU alignment: a chemicals case

Chloe Alexander argues that changes to the regulation of chemicals show some of the obstacles facing the government in delivering a coherent policy of closer regulatory alignment with the EU.

After years of weak, sclerotic post-Brexit chemical regulation, environmental and public health NGOs were relieved when last year the government committed to a sensible, but significant, shift back towards aligning with EU regulatory protections – still the highest standard globally.

An informal, ‘catch-up’ process has started for reviewing and potentially adding the EU’s ‘Substances of Very High Concern’ list, with a package of broader reforms expected at a later stage, alongside dynamic alignment in some areas under the UK-EU ‘SPS’ deal

But as a UKICE report set out earlier this year, this policy of voluntary alignment faces significant challenges – from the fact it cuts across different departmental competencies to limited resources for deciding where to align. Another problem making a consistent approach difficult is that many of these decisions were delegated to arms-length public bodies, with limited accountability.

This is especially noticeable in new secondary legislation which takes forward changes to chemicals policy which the Health and Safety Executive (HSE) was – unusually – given responsibility for during the EU withdrawal process (having been assigned the role of chemicals regulator). This includes changes to the process for classifying substances as hazardous.

Many thousands of known and suspected harmful chemicals are used in a wide variety of industrial processes and consumer products, and identifying which of them are hazardous is essential for managing their risks and keeping people and the environment safe. Once a substance is classified as hazardous (e.g. carcinogenic or mutagenic) it triggers a range of regulatory protections in areas ranging from worker safety to transportation.

These changes were first developed by HSE under a deregulatory programme of work, initiated by the previous government under the Retained EU Law Act 2023 to make it easier to amend, repeal or replace retained EU laws. They then found a vehicle in a Treasury pro-growth initiative last year and are being taken forward using powers in the Act just before they are about to expire.

The changes remove a statutory obligation on HSE to respond to all new substances classified as hazardous in the EU within a legal timeframe, while giving it delegated powers to choose which substances it will consider for hazard classification and to adopt classifications from other jurisdictions. As most jurisdictions have weaker safety standards than the UK or EU, this risks lowering standards.

A consultation response from HSE said it would restrict its focus exclusively to decisions made by the EU and ‘continue to align with these standards, with divergence occurring only in exceptional circumstances’. But this policy is not reflected in the SI and the exceptional circumstances in which divergence may be considered necessary were later defined very broadly, including wide-ranging economic and industrial considerations.

It will also be difficult to monitor divergence as HSE will no longer be obliged to consider all new EU hazard classifications and will not need to explain any exclusions. A ‘pick and choose’ regulation where the UK accepts some EU hazard classifications and not others is vulnerable to backdoor lobbying, which could mean lower levels of protection compared to the EU and create regulatory uncertainty.

There have also been delays to incorporating six new EU hazard classifications, with only a commitment to consider incorporation over the next year. These classifications already apply in Northern Ireland, and the government last year committed to consult on a consistent chemicals regime across the whole of the UK to safeguard the internal market – but is yet to do so.

The new EU measures include new classifications for endocrine (or hormone) disruptors (EDCs) and persistence, and have been followed by regulations for better protecting consumers and the environment from exposure to substances with these properties. For example, recent EU legislation automatically bans substances classified as endocrine disruptors from toys or in food packaging, that act on warnings from scientists to reduce exposure to EDCs, which are associated with the development of ADHD, certain cancers, obesity and infertility.

It has been HSE’s long-standing position that the UK should not adopt the new EU restrictions unless they are adopted globally – at the UN Globally Harmonised System (GHS) of Classification and Labelling of Chemicals. This is partly due to a viewpoint that these changes should achieve global consensus first, but as industry sometimes jokes, GHS is neither global nor harmonised across territories nor a (mandatory) system.

HSE also takes a less protective approach than the EU to restricting ‘PFAS’ substances, which are harmful to human and environmental health and used in a wide range of everyday goods and industrial processes. HSE’s Director recently described itself as taking “a slightly different philosophical approach” to the EU, based on building up restrictions “more slowly or gradually”, although the lead Defra official was more hopeful about matching the EU’s more comprehensive approach (which is itself yet to be finalised), saying “we may well end up in the same position, but we are too early to say that just yet”.

A divergence in philosophy has also been evident in some of HSE’s other decision-making. For example, it has taken a more light-touch approach than the EU to the industrial use of substances on the ‘authorisation list’, e.g. chromium trioxide, a carcinogenic chemical linked to increased risk of lung and throat cancer. This points to a wider problem identified by the Office for Environmental Protection about a lack of coherence of chemicals policy across government, particularly identifying “fragmented efforts and unclear alignment between agencies such as HSE and Defra”.

In recent days, concern has been expressed about democratic scrutiny of decisions to adopt EU single market rules. But there also needs to be transparency around decisions not to adopt EU regulatory protections, that should be supported by evidence against stringent criteria and open to challenge. Such a framework is essential for upholding our environmental and public health protections, to ensure accountability and guard against undue influence.

By Chloe Alexander, Policy & Advocacy Lead (Chemicals), Wildlife and Countryside Link