In the second half of 2017, little information was emerging from the negotiating process on the kind of regime that the UK really envisaged would follow on from REACH after Brexit. Junior ministers suggested that they might seek some form of ‘mutual recognition’ that would allow existing Registrations of chemical substances by UK companies to remain valid after Brexit, but there was no detail given in public as to precise aims and how they were to be achieved.
Industry was at one and the same time being told to ensure that Registrations were made on time for the 2018 deadline for the lowest tonnage band; and, by postings on ECHA’s website from September 2017, that all such Registrations by UK-based companies would become “non existent” after Brexit.
Briefing from industry bodies resulted in the CBI Report “The Room where it happens – A guide to the EU bodies and regulators that matter to business in the Brexit negotiations” (CBI 21 December 2017), which clearly identified ECHA for REACH and EASA for airworthiness certification as bodies and regimes where close alignment was really important to business.
That message certainly seems to have informed Prime Minister Theresa May’s speech of 2 March 2018, when she said –
“We will also want to explore with the EU, the terms on which the UK could remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries: the European Medicines Agency, the European Chemicals Agency, and the European Aviation Safety Agency.
We would, of course, accept that this would mean abiding by the rules of those agencies and making an appropriate financial contribution.”
The Prime Minister listed the advantages of this approach of associate membership, for the UK and the EU, as including products only needing one set of approvals, in one country; UK contributions to technical expertise to the critical role of these agencies in setting and enforcing relevant rules; dispute resolution in national courts rather than the CJEU; and UK capacity in contributing to the regulatory workload and scientific expertise available.
These proposals were given short shrift by European Council President Donald Tusk, when introducing the EU’s draft negotiating guidelines for the next phase of talks on 7 March 2017, when he said –
“A pick-and-mix approach for a non-member state is out of the question… The Union will preserve its autonomy as regards its decision-making, which excludes participation of the United Kingdom as a third country to EU institutions, agencies or bodies.”
Essentially, therefore, the EU is strongly opposed to any form of “cherry-picking”, an idea which has become, like “having your cake and eating it”, a sort of red rag to the EU bull: although on other issues such as fisheries the EU seems to be working its way through an entire cherry cake of its own. Prime Minister May anticipated these objections in her own speech, noting that –
“The EU’s agreement with Ukraine sees it align with the EU in some areas but not others. The EU’s agreement with South Korea contains provisions to recognise each other’s approvals for car models whereas their agreement with Canada does not. Equally, the EU’s agreement with Canada contains provisions to recognise each other’s testing on machinery; its agreement with South Korea does not.
The EU itself is rightly taking a tailored approach in what it is seeking with the UK. For example, on fisheries, the Commission has been clear that no precedents exist for the sort of access it wants from the UK.
The fact is that every Free Trade Agreement has varying market access depending on the respective interests of the countries involved. If this is cherry-picking, then every trade agreement is cherry picking.
Moreover, with all its neighbours the EU has varying levels of access to the Single Market, depending on the obligations those neighbours are willing to undertake.
What would be cherry-picking would be if we were to seek a deal where our rights and obligations were not held in balance.
And I have been categorically clear that is not what we are going to do.
I think it is pragmatic good sense that we should work together to deliver the best outcome for both sides.”
Negotiations now move on to the text of the Draft Withdrawal Agreement between the UK and EU announced on 19 March 2018, and considered at the European Council meeting of 22 March 2018, and from that to the continuing negotiations on a Trade Agreement. These negotiations must be crammed with unresolved issues and competing priorities, and the much feared cacophony effect of different interests vying for Ministerial time and attention must now be a factor. Against that background, aerospace, chemicals and medicines industries have at least achieved something in ensuring that their concerns have been recognised and addressed at the level of the Prime Minister.
For the purposes of REACH, the next step is to obtain formal clarification from both the UK government and ECHA that Registrations of chemical substances held by UK-based companies will remain valid during any agreed Transition or Implementation period, between 29 March 2019 and 31 December 2020. Without that formal clarification, the EU position would remain as stated on the ECHA website, that Registrations of chemical substances held by UK-based companies will become “non-existent” on 30 March 2019. The continued validity of REACH Registrations held by UK-based companies may be intended to be achieved through Article 4 of the Draft Withdrawal Agreement, but confirmation of that from both parties would be both necessary and welcome.
As negotiations progress from the Draft Withdrawal Agreement to the next stage of a proposed Trade Agreement between the UK and EU, the question remains of how the UK would deliver, in law, associate membership of the EU agencies that it has identified as of critical importance.
Given the exchanges referred to above, the starting point must be that if the political will can be found – in negotiations between the UK and EU (not forgetting the European Parliament), and then between the UK government executive and the UK and devolved Parliaments – then there will be a way, of delivering the legal agreement.
It will be quite a complicated “way”, given that the European Union (Withdrawal) Bill, presently going through Parliament, would repeal the European Communities Act 1972 and the basis for supremacy of EU law in the UK: whereas the Prime Minister is proposing that the UK would abide by the same rules as EU Member State participants in ECHA, which are, of course, ultimately enforced by the European Commission and the Court of Justice of the European Union. Even amendments to the European Union (Withdrawal) Bill to achieve what might be agreed political objectives are anything but straightforward with the current Parliamentary arithmetic.
If on the other hand the UK takes the line that it must be a ‘rule maker’ not a ‘rule taker’, or if a different agreement on a relationship with ECHA, EASA and the European Medicines Agency is not achieved in the Trade negotiations, then the REACH Regulation would need to be re-enacted in UK law.
In such a case it is clear that the general provisions of the European Union (Withdrawal) Bill will not suffice, which suggests that there will need to be a long, complex and politically sensitive Statutory Instrument made with reference to clauses 7, 9 and 17 of the European Union (Withdrawal) Bill making necessary changes to the REACH Regulation to correct what would otherwise be “deficiencies” in its application in UK law.
This secondary legislation will need to establish the HSE or some other body as a UK equivalent to the European Chemicals Agency; to resolve the issues arising from the devolution of powers to make environmental legislation to the devolved Parliaments; and to address how the UK equivalent to REACH will keep track of future developments in the REACH Regulation (and the CLP Regulation and other related chemicals legislation) instead of continuing to diverge from it (which might well in turn have implications for trade agreements with the EU).
William Wilson
Barrister – Director
Wyeside Consulting Ltd
22 March 2018
info@wyesideconsulting.com