24 January 2020

Despite industry calls for close alignment, a UK REACH, with its duplicative register and potential for divergent decision-making, now looks highly probable. As recently as 18 January 2020, in an interview with the UK’s Financial Times newspaper, Sajid Javid, the UK Chancellor, stated: 'There will not be alignment, we will not be a rule taker, we will not be in the single market and we will not be in the customs union – and we will do this by the end of the year.' It seems the path to a UK REACH is laid out before us.

In this article, we seek to map out that path to a UK REACH, explaining the timescales and the issues that still need to be addressed.

What will UK REACH look like?

This time last year, we published an article in which we considered the government’s blueprint for how chemical regulations would work after Brexit. As with many Brexit-related issues, 12 months has passed but little has changed. This remains the best indication of what UK REACH will look like. Of course, on paper, everything is still in play in the trade negotiations with the EU, but the political and practical reality is that Theresa May-era concepts such as ‘associate membership’ of EU institutions are not part of the Johnson government’s plans, and are not favoured in the EU either (as we said back in May 2018 in this article). 

As such, we can expect the published legislation that will create a 'UK REACH' and a UK chemicals agency to come into force once the transition is over, and although we can anticipate amendments, those may be few.

As those in the industry are well aware, EU Regulation No. 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals ('EU REACH'), which governs the regulation of chemicals for the protection of human health and the environment, is one of the most complex legislative instruments ever created by the EU. As a result, the (various) REACH (etc.) (Amendment etc.) (EU Exit) Regulations 2019 (the 'REACH Amendment Regulations') that will bring UK REACH into force (and make it work) will be of critical importance for a huge section of the UK's economy, including both the UK’s chemicals industry and all those in manufacturing and numerous other parts of the economy that rely on chemicals.

The REACH Amendment Regulations currently come into force on ‘exit day’ – drafted as they were in anticipation of a no-deal Brexit. However, by virtue of the convoluted way in which the Brexit legislation has come into being, it is not straightforward to navigate the relevant pieces of legislation to understand the new timeline and wider framework.

When is ‘exit day’?

The phrase ‘exit day’ was originally defined in Section 20(1) of the European Union (Withdrawal) Act 2018 ('EUWA 2018') as ‘29 March 2019 at 11.00 p.m’. However, anticipating that this date was likely to change, the EUWA 2018 allows Government to amend the definition of ‘exit day’ by statutory instrument. There have been several amendments to the definition under the (various) European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019.

As a result, ‘exit day’ is currently defined within the EUWA 2018 (as amended) as ‘31 January 2020 at 11.00 p.m'. 

This definition of ‘exit day’ flows down through the subordinate legislation, applying to the REACH Amendment Regulations despite those regulations not defining the term.

However, with the European Union (Withdrawal Agreement) Act 2020 ('the Withdrawal Agreement Act') passing into law on 23 January 2020, the REACH Amendment Regulations will not come into force on ‘exit day’ (31 January 2020) and therefore none of the obligations under it will commence.

When will UK REACH come into force?

The key provisions in the Withdrawal Agreement Act are tucked away in Schedule 5. It introduces a new (less catchy) concept of 'implementation period’ and the resulting ‘IP completion day’, which is defined as 31 December 2020 and, under these provisions, subordinate legislation such as the REACH Amendment Regulations will come into force on 'IP completion day’ not ‘exit day’. 

The path is set for UK REACH to come into force at 11.00 p.m on 31 December 2020.

Is UK REACH inevitable?

It is anticipated that the REACH Amendment Regulations will be updated in due course so that requirements to provide information to the Health and Safety Executive (for example) will also be pegged to ‘IP completion day’, rather than ‘exit day’. The government has a whole year to do this so it may be no surprise that this has not happened yet.

Depending on the outcome of the trade negotiations there may well be other, indeed more fundamental changes, to the REACH Amendment Regulations before December 2020, so it may be that the government will wait to make all the changes in one go, rather than piecemeal.

The industry reaction to Sajid Javid’s comments demonstrates there is little appetite in the industry for a parallel UK chemicals regime (see our article regarding the UK-EU Political Declaration for further background). In a press release responding to the general election result, Steve Elliott, Chief Executive of the Chemical Industries Association (CIA) stated that while the general election provided the 'political clarity and certainty' long sought by business, the task is now to 'get Brexit right'. This encompasses not only the terms of future trading relationships and attracting and retaining talent, but also the sentiment that it is in 'our environmental and commercial best interests to secure close regulatory alignment with the European Union'. Developments will certainly be closely watched by those in the industry, both before and after ‘exit day’. 

How can Burges Salmon help?

Our market leading REACH, chemicals and product stewardship team has significant experience in the UK and the EU on chemicals and products regulation. We are advising clients on bespoke Brexit strategies dependent on the objectives and ambitions of each client’s business. We recommend that all UK chemicals businesses carry out a thorough review of the rights of access to data required and that all businesses – both in the chemicals sector and beyond – perform an analysis of the supply chain risks for the chemicals they use. If you are interested in discussing these issues further please contact Michael Barlow or your usual Burges Salmon contact.

Key contact

Michael Barlow

Michael Barlow Partner

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