The power, contained in the final pages of the 232-page draft law, would allow the secretary of state to propose amendments to the REACH Enforcement Regulations 2008. Such amendments would have to be approved by parliament under its affirmative procedure, rather than dismissed under its weaker negative procedure.
No offence may be created law that would be punishable with more than two years in jail on indictment. There are also limits for jail on summary conviction and daily fines.
The bill provides no hint about what the new offences might be. Compliance with all of the REACH Regulations terms, specifically keeping registration dossiers up to date, has been far from universal. But prosecutions under the existing regulations have been few and have focused on the sale of unlawful products.
Most recently, a man was jailed for ten months for selling a banned paint stripper and the importer of a toxic toy gun was hit with a £35,000 bill. The sale of a second-hand, asbestos-laden boiler incurred a £4500 penalty in 2015.
Other aspects of schedule 20 of the bill allow for amendment of the REACH Regulation itself, though only if they do not violate certain protected provisions. The fundamental principles of REACH, which include no data, no market; animal testing as a last resort; access to information for workers and the appeals process would remain on the statute books. The safeguard clause, which allows emergency action to address chemical hazards, the publication of opinions on authorisation and restriction by the Health and Safety Executive (taking the place of the European Chemicals Agency) and other stipulations on transparency are also upheld.
Any change to the regulation, as retained EU law, would need to be consulted upon. The government would also have to explain how it is consistent with the overarching objectives enshrined in the regulation’s first article. This speaks of maintaining the free circulation of substances, mixtures and articles on the market while ensuring a high level of protection of human health and the environment, “underpinned by the precautionary principle.”
CHEM Trust executive director Michael Warhurst said that the enforcement aspects of the bill were intended to make sure that UK-REACH would work in the event of a no-deal Brexit. He also predicted that the protected aspects of the regulation will be the subject of debate and potential amendment.
The bill also provides an opportunity for the UK chemical rules to be dynamically aligned with those of the EU, said Warhust.