Considered in Grand Committee
My Lords, the primary aim of this instrument and the Detergents (Safeguarding) (Amendment) (EU Exit) Regulations 2019 is to amend EU and domestic legislation on detergents to enable their continued operability. Both instruments amend the same EU detergents regulation and, given the close links, they are grouped for this debate. We have worked with the devolved Administrations on these instruments. The legislation amended by the draft Detergents (Amendment) (EU Exit) Regulations is a reserved matter. The draft Detergents (Safeguarding) (Amendment) (EU Exit) Regulations relate to devolved matters and the devolved Administrations have consented to that SI. These instruments make many amendments and I will highlight some of them. Noble Lords will not be surprised to learn that they are technical in nature.
The Detergents (Amendment) (EU Exit) Regulations 2019 will ensure the continuation of standards and requirements in relation to the placing on the market of detergents, while ensuring a high degree of protection of the environment and human health. These draft regulations remedy deficiencies that will arise in the retained EU detergents regulation and the implementing domestic regulation, so as to ensure that manufacturers placing detergents and surfactants for detergents on the market in the UK continue to meet all the requirements of the detergents regulation, including composition—this includes strict limits on the permitted level of phosphorous content—labelling, data sheets and testing. Restrictions or bans are imposed on surfactants on grounds of biodegradability.
Looking at the first SI in more detail, Part 2 of the Detergents (Amendment) (EU Exit) Regulations ensures that the domestic Detergents Regulations 2010 can continue to be enforced by the relevant authorities and that penalties for non-compliance remain in place. Part 3 amends the EU detergents regulation to remedy deficiencies including corrections to references which would have no practical application to the UK after EU exit. For example, Regulations 5 and 6 remove references to the free movement of detergents in the EU internal market and to the Union customs territory in articles 1 and 2 of the EU regulation. The detergents regulation cross-refers to a number of pieces of EU legislation, including the regulations on biocidal products, cosmetic products and classification, labelling and packaging, the REACH regulations and the good laboratory practice directive. This instrument amends many of these cross-references, ensuring they are up to date so that they will continue to work on exit day.
This instrument also sets out how the returning EU powers, including those on decision-making currently exercised by the European Commission, will return to the UK after EU exit. As the competent authority for detergents in the UK the Secretary of State will exercise those powers, taking expert advice as appropriate. In practice, the work of the competent authority will effectively continue to be undertaken by the Health and Safety Executive under an agency agreement with Defra. The HSE’s existing capability and capacity can be built upon to take on UK regulatory authority responsibility. However, additional requirements from this SI for the competent authority are minimal.
Relevant functions to be transferred to the Secretary of State include the power to consider granting a derogation for a product—regulations 8 and 9—and the power in regulation 10 to determine disputes about testing methods for a product. The derogation provision has been used only very rarely at EU level. In the case of disputes about testing methods, a manufacturer may appeal a decision by the Secretary of State to a court.
Member states are currently required to notify to the Commission the list of approved laboratories that are authorised to carry out the tests required by the regulation. Through regulation 11, provision is made so that tests required by this regulation may be carried out by approved laboratories and the Secretary of State must publish that list. In practice, the HSE will publish the list.
Regulation 12 amends Article 9 on the information to be provided by manufacturers. Article 9(3) requires that manufacturers placing detergent products on the market shall make available an ingredient data sheet and that member states may request that such a data sheet be made available to a specific public body to which the member state has assigned to the task of providing this information to medical personnel. This article is amended to specifically refer to the National Poisons Information Service or such other body to which the Secretary of State or the devolved Administrations may assign for this purpose. NPIS already undertakes this role across the UK.
The power of the Commission to adapt the annexes to the regulation in line with scientific and technical progress is transferred to the Secretary of State in regulation 16. The Secretary of State will be able to do so by making a statutory instrument.
I turn to the draft Detergents (Safeguarding) (Amendment) (EU Exit) Regulations 2019, which amends the safeguarding clause in article 15 of the detergents regulation. Currently, member states may take provisional measures in relation to those detergents which fully comply with the EU regulation but which nevertheless pose a risk to the safety of humans or animals or a risk to the environment. Member states intending to use the safeguard clause must immediately inform the Commission, documenting their reasons. Regulation 3 amends article 15 of the EU detergents regulation. The Secretary of State and the devolved Administrations —where the matter is devolved—will have the full powers currently held by the European Commission and member states to initiate urgent, temporary safeguarding action across the UK in relation to detergents. Although there was no statutory requirement to consult on this instrument, HSE officials have engaged with industry.
In March 2018, a round of one-to-one stakeholder meetings with trade associations was held in relation to chemicals legislation generally. The main TA with an interest in detergents and cleaning products is the UK Cleaning Products Industry Association, or UKCPI. No particular concerns were expressed at that time in relation to these detergents regulations.
The JCSI did not report any concerns with these instruments. The SLSC noted that,
“HSE’s responsibilities after EU exit will expand significantly as a result of these and other instruments; it will need to be resourced adequately to carry out its new functions”.
As I set out earlier, the Health and Safety Executive currently acts on behalf of the Secretary of State, who is the competent authority for detergents legislation, and any additional requirements from this SI are minimal.
The SLSC also asked Defra about the use of the safeguarding mechanism and whether the fact that the UK will no longer have access to the EU’s information-sharing systems will mean greater health or environmental risks. The department responded that while the UK would lose access to information sharing systems such as the EU’s rapid reporting and response system, or RAPEX, in practice the safeguarding mechanism was very rarely used—just twice since 2004—and the impact was therefore likely to be low. The UK will still have access to the publicly available information on RAPEX and to the new product safety database established by the Department for Business, Energy and Industrial Strategy. I beg to move.
My Lords, I sympathise with Ministers who have to deal with so many similar- sounding regulations; when you pick them up and look at them you are not quite sure which one you are looking at—in this case there is a variation of one word between the two of them. When I came to look at them, I thought they sound reasonably sensible overall, but one or two things came out. The Minister has touched on them already, but I will ask her to expand a little.
The Minister said that this would be a minimal expansion for the Health and Safety Executive. What exactly does that mean in this context? Is it a large expansion or just occasional greater activity? We need to know whether the executive has that capacity and whether it can do this when it happens. The last sentence of the report of the Secondary Legislation Scrutiny Committee Sub-Committee B asks what will happen when it loses the EU’s reporting capacity and information exchange. The Government responded, “This happens only occasionally, so don’t worry”. You would expect, if the system is at all sensible, that anything to do with safeguarding will happen only very occasionally. If the system was so flawed that you needed to use it frequently, one would hope that you would change the entire system. We need to hear something about how we are going to do this. You are not regulating something that is happening all the time—this happens when something goes wrong. A very minor variation is coming in here. Ingredients which are normally used are normally safe; in this case something has gone wrong, or some threat happens. That is a genuine concern, because you are not dealing with the everyday.
I would like a little more information about how that is to work, and on why, for instance, the 90-day period was chosen as the length of time within which it is appropriate to take action. Can we have some more information on that just to put our minds at rest? It is nothing to do with the mechanical process, but about something that has gone wrong: therefore it has to be able to respond, and quickly, and only very occasionally—a gap of decades is quite possible here. Can we find out how that will work, and make sure that that capacity is there? At the moment, the statement, “It hasn’t happened very often so let’s not worry about it”, is worrying. It could be read in that way; perhaps that is too blunt a way of interpreting it, but I hope that we can have something to reassure us that this capacity is available. If it is never needed, that is great, but it should be there.
My Lords, I welcome the regulations and congratulate my noble friend on moving them. I echo the concern that was raised in the 18th report of the Secondary Legislation Scrutiny Committee Sub-Committee B: these echo my earlier remarks to the Minister, my noble friend Lord Henley, when he was talking about a similar statutory instrument a week or two ago, and I thank him for his letter. My noble friend Lord Gardiner was also kind enough to refer to comments about RASSF relating to food safety. I associate myself with comments from the Liberal Democrat Benches as well.
My concern is that Sub-Committee B has flagged up a possible complacency here. I welcome the fact that my noble friend pointed out that there have been only two incidents in that time, but I refer to the additional information the department provided in appendix 1 to Sub-Committee B’s 18th report. Can the Minister assure me that there is no complacency in the department and that it will respond quickly to any such safeguard being exercised in the future? Is it the Government’s desire to see, and are they actively pursuing, our continuing access to RAPEX and to other bodies such as the European Chemicals Agency, which operates the information-sharing system for these purposes?
My Lords, first, I thank the Minister for her introduction and for arranging a very helpful briefing on this SI. We accept that these SIs are necessary to ensure the continued operability of the EU-related provisions post Brexit. However, we are keen to ensure that the transfer of powers to Ministers is not used as an excuse to weaken standards and processes. One way to ensure this is for the UK to keep pace with EU standards on this matter. These SIs also raise the recurring themes, which we have debated several times now, of the potential for significant environmental impacts and the need for effective environmental governance—I suspect that that will be a running theme today and on future SIs.
They also raise the recurring issues of resources: in this case for the HSE to carry out its new functions and for the scientific advice and guidance that will be necessary. Most importantly, we share the concern of the Secondary Legislation Scrutiny Committee that without access to the EU’s information-sharing systems there will be greater health or environmental risks. With this in mind, I have a few specific questions. First, as a general point, the instruments state that these provisions ensure that a high degree of protection for the environment and human and animal health can be maintained after Brexit. What does this mean in practice? Can the Minister guarantee that there will be the same level of protection that is offered now, given that some of the EU protections that have been available to us in the past will no longer be there?
In the additional information that Defra provided to the Secondary Legislation Scrutiny Committee, it was stated that in the event of a no-deal Brexit the UK would lose access to the EU’s information-sharing systems, such as the rapid reporting and response systems. If that is the case, is there any mechanism for the UK to be notified about unsafe products from the EU market that are already being developed there or already mirroring products that have already entered the UK market? Is there any other system for that notification to take place, or are we simply relying on the rapid reporting and response system? A lot of these projects will be used globally; therefore, reporting on any problems that occur will take place globally.
On the other side of the coin, how will EU member states and the European Commission be notified about unsafe products from the UK market which are not UK-specific but which have already entered the EU market? How do we intend to do that, when we do not have the formalised systems in place? Does the Minister accept the point which echoed around the Committee this afternoon, that if we do not have access to the EU’s information-sharing system, there is cause for concern that UK citizens will be less safe and less protected? What guarantees can we give that this will not be the case?
In addition, the instruments state that,
“biodegradability requirements will be transferred to the Secretary of State as the UK’s competent authority for detergents, and these functions will then be exercised by the Health and Safety Executive (HSE) after exit”.
I would like to probe biodegradability, because it is a matter that people value and hold dear. I want to be sure that, with the Minister having responsibility, biodegradability will not be downgraded as a consequence of other trade priorities and negotiations which are taking place. You might say it is the detergent version of chlorinated chicken. We want the trade deal, but if the price of the trade deal is that we lower our standards, can UK citizens be assured that our safety and protection level will not be downgraded?
The draft detergents amendment SI states that,
“there is an option for the HSE, acting as the competent authority for the Detergents Regulation under an Agency Agreement with the Secretary of State, to charge a fee for processing derogation applications for the use of industrial and institutional surfactants”.
What is the fee? How will the HSE enforce it? Will the fee be off-putting to businesses potentially wanting to trade in this country?
Several noble Lords referred to the report of the Secondary Legislation Scrutiny Committee on resources, which said that:
“HSE’s responsibilities after EU exit will expand significantly as a result of these and other instruments; it will need to be resourced adequately to carry out its new functions”.
That is very different from the Minister saying this afternoon that the additional requirements were minimal. Therefore, we need to find some way of bottoming this out. Is she saying that the Secondary Legislation Scrutiny Committee was wrong? It has obviously looked into this matter and says that it will need additional resources. It would be helpful if the Minister could clarify what the score is here. What additional funding has been provided to HSE to carry out these extra functions? How many extra staff does she envisage being hired to carry out these extra responsibilities?
The regulations also state that,
“the detergents Regulation cross-refers to a number of other pieces of EU legislation, including REACH Regulations”.
I know we are not going to debate this today but I want to put on record, in case there is any doubt, that we have serious concerns about the instrument relating to REACH regulations, and which we will deal with separately. Many of the concerns about REACH are also concerns that we have here about access to important information which the EU would normally have collated and shared with us, but which will no longer be available.
Paragraph 7.5 states that,
“the Secretary of State as the competent authority for detergents for the UK will exercise those powers, taking expert advice as appropriate”.
What does that mean about expert advice? Where will this advice come from? Is it just UK advice, or will the Secretary of State consult any other European agencies when formulating a policy on this? The issue of scientific and technical progress also comes up in relation to the technical annexes. Who will provide that scientific and technical progress when the update to the technical annexes takes place? How often is it envisaged that they will be updated? Who will be consulted about these updates before they are published?
I turn to the detergents safeguarding regulations. As has been said, the EM says:
“The safeguard clause may only be used on a case-by-case basis for a specific product, not for a class of product. The safeguard clause therefore cannot be used to introduce risk management measures of a general nature”.
Can the Minister confirm that that will indeed be done on a case-by-case basis and that there will not be any attempt to extend the use of this provision for a more general policy change? What safeguards do we have that it will be curtailed to a case-by-case basis?
Paragraph 2.5 of the Explanatory Memorandum states:
“Member States intending to use the safeguard clause must immediately inform the Commission and the other Member States, documenting the reasons for this decision”.
In that situation, will a devolved Administration who intend to initiate the safeguard have the same obligations to inform immediately all the devolved Administrations, the Secretary of State and the HSE, in the same way as member states currently do? What information sharing will there be within the UK to make sure that we are all aware of any safeguarding issues?
Paragraph 7.2 says:
“The Secretary of State and devolved administrations will be able to take urgent, temporary restrictive action in relation to a product through a safeguard clause”.
How will this process take place? How will this decision be made? Will there be consultation between Administrations? Will the HSE consult devolved Administrations? If Scotland decides to take action, does that mean that the decision will apply throughout the UK? It would be helpful if the Minister could say more about how that devolved responsibility will operate.
Finally on safeguarding, if there is a concern about a specific detergent, how will businesses be notified that their product is in some way being queried? If the products are already in the market, is there an arrangement for them to be recalled? What are the practicalities of detergents being identified as a risk to the health of humans or animals, and how will that be dealt with with the businesses concerned?
I have one last question, on the safeguarding measures not being imposed for more than 90 days. Why 90 days? If that product still poses a risk, can the measure be extended or rolled over, or do we have to revisit it from the start? What are the limitations on that 90 days? I look forward to the Minister’s response.
I thank all noble Lords for their contributions to the debate. It has been a measured debate and—thankfully—fairly on topic, which is always a relief. A number of noble Lords have raised some good questions, and I hope to be able to answer them. To the extent that I am not, I will certainly write.
However, I will address one issue straight up, which is about environmental protections post exit. The Government are very clear that we will not weaken environmental protections when we leave the EU. We will instead maintain, and even enhance, our already high environmental standards. The detergents SI will ensure the continuation of standards and requirements in relation to the placing on the market of detergents, while maintaining a high degree of protection for the environment and human health. I hope that as I go through the answers to the questions today, the Committee will feel this is indeed the case.
I turn briefly to an issue raised by my noble friend Lady McIntosh about the European Chemicals Agency and whether we will have a relationship with it and other bodies in the future. I am sure that noble Lords will join me in hoping that we do. It is a matter of negotiation: obviously, we would very much appreciate being a member of RAPEX going forward. That would possibly save us having to set up systems ourselves, but that is a matter for negotiation and, as noble Lords will know, at this moment we are dealing with a no-deal SI in the context of us not reaching an agreement.
Turning specifically to the safeguarding SI, I should say up front that there is absolutely no complacency on the Government’s part about what we intend to do in the rare instances where these safeguarding clauses might be needed. They will be used only on a case-by-case basis because they are extremely rare. There also have to be strong justifiable grounds that the detergent constitutes a serious risk to human health and the environment, as these detergents will already have been placed on the market and will therefore be in compliance with the detergents regulation. The Secretary of State and the devolved authorities must give reasons for their measures, submitting the scientific or technical information on which they are based before effectively taking action against a product.
The safeguard clause is there primarily to protect the integrity of the market—in this case, the UK market—and to provide reassurance to businesses that action will be taken only on a case-by-case basis. As noble Lords will have noted from the Explanatory Memorandum, this is on a product-specific case-by-case basis; it does not refer to entire classes of product and is not a system for longer-term risk management. That is where the technical annexes to the main SI come in. To amend those annexes—to improve the environmental protections—will require a second statutory instrument to go through your Lordships’ House in the usual fashion.
The noble Baroness, Lady Jones, mentioned the devolved Administrations, which are important because this is a devolved matter. We are working extremely closely with those Administrations to ensure that the frameworks are in place to encourage working together. The draft regulations provide that where the Secretary of State or a devolved authority take provisional measures, they must immediately inform the other authorities— so that all authorities become aware at the same time—and submit the scientific or technical information to those authorities at that time. The other authorities can then decide in their own right whether to impose the same provisional measure within their devolved competence. As a devolved matter, that is entirely right. While I cannot guarantee that all the DAs would implement the safeguarding provision at the same time, I am sure the Committee would agree that it would probably be quite unusual if they did not. However, I am sure that if they did not, there would be very good reasons for that. Again, this provision has been used only very rarely—twice in the last 15 years. If the regulatory regime is right in the first place, it should not be used again for a very long time.
I turn to the alert service. It is true that we will lose full access to information-sharing systems such as the EU’s rapid alert system for non-food products, known as RAPEX, in the event of our leaving the EU without a deal. Of course, access will depend on negotiations, and I am sure that all noble Lords would agree that it would be to the UK’s benefit if we were to be part of those negotiations. However, we have to prepare ourselves for where we may be.
The UK will still have access to publicly available information on RAPEX. I am sure the Committee would agree that if there was a sudden concern about a product it would be quite unusual, I suggest, for that not to be publicly shared on RAPEX. From the Government’s perspective, a new product safety database will be set up by the Department for Business, Energy and Industrial Strategy. It will underpin the safety of citizens and minimise environmental risks in the future. Producers and distributors will have to inform their local authority—typically, the trading standards department —about any unsafe detergent product, as now. The local authority will then take action.
The noble Lord, Lord Addington, asked whether the 90 days can be extended or rolled over. This is a provisional measure and it is not used in response to a long-term change in status for a particular product. After that 90-day period has ended, a slightly modified version of the General Product Safety Regulations 2005 then applies to that detergent. These regulations require all products to be safe and they contain their own enforcement provisions, in the form of safety notices requiring withdrawal from the market. Having been through the 90 days, the product will find itself in that situation next if indeed it is deemed unsafe.
The noble Baroness, Lady Jones of Whitchurch, asked about the UK being notified about unsafe products that are already here post exit, and how we will we notify the EU in return. I suppose my answer is similar to what I have already been able to explain, in that although we will not have access to RAPEX we will know about publicly available information. We would also have the BEIS database. The UK will not be able to notify the EU about unsafe products directly through a formal system. However, having reminded the Committee that this provision is for a no-deal situation—the worst-case scenario—that may change in the future. Information sharing is always beneficial in these areas and it is in everyone’s interest to share information. That applies across the EU but also, where possible, globally.
I am sorry to interrupt the Minister at this late stage but can I be clear about whether these detergents are subject to REACH regulations? Do they have to go through the REACH system as well? As she probably knows, for the majority of chemicals if more than 1 tonne is exported from or imported into the UK those chemicals are covered by REACH regulations, which lay down a large number of other provisions. Are those included or not? I am sorry if that is an unfair question. I do not need an immediate response.
It is a very interesting question. They are subject to the REACH regulations, which were mentioned by the noble Baroness, Lady Jones of Whitchurch. I note her concerns about those regulations. As I am sure she is aware, they will be debated in due course in your Lordships’ House and were already debated in the other place on 25 February. I have a little more information on that issue, but I want to put it into proper context so I will write to the noble Lord.
I return to biodegradability and whether it would be downgraded in future. Whether these detergents and surfactants hang around in the environment for a long time is a very important issue. It is clearly a bad thing because they play havoc with water tension and so on. The Government have set out a vision for a green Brexit, in which environmental standards will be not only maintained but enhanced. The biodegradability criteria in the detergents regulations are essential in avoiding these adverse impacts on the environment. We are obviously mindful that if these are not disposed of properly, they can cause foaming and degrade or assist the eutrophication of rivers, which I believe is not beneficial to organic life.
Trade agreements can cover a range of issues and although the UK will be able to negotiate its own trade deals in the event of no deal, focusing on growth areas for our economy, the UK Government continue to be committed to high environmental standards after EU exit and to maintaining a high degree of continuity with current climate goals, green policies and wider environmental targets. I reassure the noble Baroness that, as I mentioned earlier, any changes to the technical annexes will be done by statutory instrument, and will therefore come before your Lordships’ House. Those sorts of issues would be included within that.
A number of noble Lords touched on the resourcing of the HSE—I had fair wind that this might come up. This issue was noted by the SLSC, but I suspect that it probably got to the stage where it had seen the HSE a number of times and thought, “Hang on a minute, we probably want to do something”. For these instruments, the additional administrative requirement for the HSE is minimal. However, I will commit to trying to get an understanding across the piece about how many additional functions the HSE is being asked to take on, and confirm that it is satisfied with the resources it has. That is only fair, because this one is minimal. I completely understand that but the SLSC has made that point and it is worth following up on.
The issue of fees for the HSE is an interesting one. This is only for derogations, and there has been only one derogation across the EU. The fees for derogations are agreed; there was a consultation with the industry. I could go into great detail about these fees but they are designed to meet the costs of derogations; obviously, we do not expect those to happen very often. A derogation occurs where one is using a detergent for a specific purpose which does not fall within the regulations. It would be highly unlikely nowadays with the biodegradable detergents we have for them to be frequent at all.
I move on to the issue of experts. Noble Lords will be aware that the Health and Safety Executive is a world leader in the regulation of chemicals and will continue to be so following EU exit. It also has the necessary regulatory scientific and technical expertise in-house. However, The Government Chief Scientific Adviser’s Guidelines on the Use of Scientific and Engineering Advice in Policy Making of 2010 state that,
“advice from external sources should be sought whenever necessary”,
and we would of course do so. Sources of research and advice may include: the departments’ own experts and analysts; research and funding councils; expert advisory systems such as the Science Advisory Council and the scientific advisory committees, and research and non-departmental sources. We have a great tradition of science and research in this country, and I remain convinced that we would find the right group of experts for the right problem. As noble Lords will be aware these experts will be used to update the annexes, which will go through the usual process.
The noble Baroness, Lady Jones, touched on governance. We have been here a few times before—
I will not be able to accede to that wish today. I can go no further than we have been able to before with regard to the future of governance and the office for environmental protection, but I commit to the noble Baroness that we will update her as soon as we can.