Documents considered by the Committee on 13 November 2017 Contents

29Carcinogens and Mutagens Directive (Phase I and Phase II)

Committee’s assessment

Politically important

Committee’s decision

(a) Cleared from scrutiny; further information requested; drawn to the attention of the Health Committee and the Work & Pensions Committee; (b) Not cleared from scrutiny

Document details

(a) Proposal for a Directive amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Phase I); (b) Proposal for Directive amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Phase II)

Legal base

(a) and (b) Article 153(2) TFEU; ordinary legislative procedure; QMV

Department

Health and Safety Executive

Document Numbers

(a) (37758), 8962/16 + ADDs 1–2, COM(16) 248; (b) (38447), 5251/17 + ADDs 1–3, COM(17) 11

Summary and Committee’s conclusions

29.1Cancer is the leading cause of work-related deaths in the EU, accounting for 53% of the total. In the UK alone, around 3,500 people die each year from occupational cancer caused by exposure to carcinogenic substances, principally through inhalation. To reduce these numbers, the EU has legislation in place to prevent dangerous levels of exposure to such substances in the form of the Carcinogens and Mutagens Directive (CMD).464 In May 2016 (referred to as “Phase I”) and January 2017 (“Phase II” respectively), the European Commission proposed two sets of amendments to the Directive and to add more carcinogens to the list of controlled substances.

29.2The main effect of the Phase I proposal would be to set new exposure limits for respirable crystalline silica (RCS) dust, to which workers in the construction and quarrying sectors are frequently exposed, and hardwood dust (common in the woodwork and construction sectors).465 The Phase II proposal would bring exposure to used engine oils within the scope of the CMD, and assign a “skin notation”466 to such oils. It would also add five specific carcinogenic substances to the list of chemicals covered by the requirements of the Directive.467

29.3The Government was broadly supportive of both set of amendments, and the previous Committee granted scrutiny waivers for both proposals. These allowed the Government to support General Approaches in the Council in October 2016 and June 2017 on the condition that they were substantially the same as the original Commission proposals.468 We received our latest update on the proposals from the Minister for Disabled People, Health and Work (Penny Mordaunt) on 15 August 2017.469

29.4With respect to the Phase I proposal, the Minister informs us that the European Parliament and the Maltese Presidency of the Council had agreed on the final text of the Directive in June. However, the text470 diverged substantially from the General Approach which the Government had supported in October 2016,471 including a further lowering of the original proposed exposure limit values for Chromium (VI) compounds and hardwood dust,472 and an extension of the existing requirement for employers to conduct health surveillance of their workers. The Minister explains that these changes “may involve costs which are not yet quantifiable”, but added that these costs will be “minimised by [a] five year transition period … together with a two year implementation period for the Directive”. The Phase I Directive is expected to be formally adopted by the Council in November 2017, following a vote in the Parliament on 23 October.

29.5With respect to the Phase II proposal, the Minister writes that a majority of Member States had unexpectedly supported a substantive change to the Commission text prior to the adoption of a General Approach in June 2017, extending the scope of the Directive to a new category of substances called Polycyclic Aromatic Hydrocarbons (PAHs).473 The UK did not support this change, as these substances had not been through the formal evaluation process to assess the impact of the proposed exposure limits. Because of the condition of the scrutiny waiver granted by the previous Committee, the UK abstained on the General Approach vote at the Council meeting. The European Parliament is still considering its position on the proposal.

29.6The Committee recognises the importance of addressing the causes of occupational cancer, and underlines its support for efforts to bring EU-wide legislation on carcinogens in the workplace in line with the latest scientific evidence.

29.7With respect to the Phase I proposal, in view of the fact that informal agreement has already been reached between the Council and the Parliament, we are content to now clear the document from scrutiny, but draw it to the attention of the Health and Work & Pensions Committees. We have taken note of the Government’s opposition to certain elements of the trilogue text. We would like the Minister to inform us when the Directive is formally adopted by the Council, and to confirm whether the UK abstained or voted against.

29.8On the Phase II set of amendments, we thank the Minister for the information provided. We ask to be kept informed of the European Parliament’s eventual position on the proposal, and any developments as and when the trilogue negotiations commence. We would also like the Minister to clarify whether the Council has asked, or will ask, the Commission to assess the likely impact of its proposed extension of the scope of the Directive. In the meantime, we retain the document under scrutiny.

29.9Finally, we wish to place the eventual adoption of both the Phase I and Phase II proposals in the context of Brexit. Following its notification under Article 50 TEU on 29 March 2017, the UK is expected to withdraw from the EU—including, according to Cabinet Ministers, the Single Market474by March 2019. Despite this however, the Minister in her latest letter does not refer to the fact that, prima facie, the amending Directives will therefore not apply in the UK.475

29.10We note in this respect that the Prime Minister in September confirmed the UK is seeking an “implementation period” immediately after the end of the Article 50 period, during which the UK and EU would continue to access each other’s markets on current terms using the “existing structure of EU rules and regulations”.476 We ask the Minister to clarify urgently whether the Government accepts that any such interim arrangement will, in all likelihood, require the UK to continue applying EU legislation, (including health and safety law) for the duration of that period. If this is the case, it is possible the amendments to the CMD will have to be implemented in the UK despite their likely dates of application falling after March 2019.

Full details of the documents

(a) Proposal for a Directive amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Phase I): (37758), 8962/16 + ADDs 1–2, COM(2016) 248; (b) Proposal for Directive amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Phase II): (38447), 5251/17 + ADDs 1–3, COM(17) 11.

Background

29.11To reduce deaths from occupational cancers, the EU has legislation in place to control exposure to carcinogenic substances in the form of the Carcinogens and Mutagens Directive (CMD).477 The Directive requires employers to eliminate or reduce exposure to all carcinogens and mutagens falling under its scope.

29.12The European Commission has been working for a number of years to update the exposure limits for specific carcinogenic substances in line with the latest scientific evidence. To that effect, it has tabled a proposal in May 2016478 to amend the CMD to amend existing exposure limits and add new substances to the scope of the legislation (the Phase I proposal). A second set of amendments to the Carcinogens and Mutagens Directive with respect to a different set of substances was tabled by the Commission in January 2017 (the Phase II proposal).479

29.13We received a letter from the Minister for Disabled People, Health and Work (Penny Mordaunt) with information on the status of both proposals by letter of 15 August 2017.480 We will consider each set of amendments in turn, based on the update provided by the Minister.

Phase I proposal

29.14The Phase I proposal would introduce 11 new exposure limits for carcinogenic substances (including respirable crystalline silica (RCS) dust, to which workers in the construction and quarrying sectors are frequently exposed), and make two of the existing ones more stringent, in particular for hardwood dust (common in the woodwork and construction sectors). The Commission’s impact assessment suggested that its proposal would save around 100,000 lives by 2069.

29.15The Government was broadly supportive of the draft legislation when it was published. Discussions on the proposal were held between Member States over the summer of 2016, and in September the Minister for Disabled People, Health and Work (Penny Mordaunt) asked the Committee for a scrutiny waiver to allow the Government to endorse a Council General Approach on the legislative text.481 This request was granted by the Committee on 12 October 2016, on the condition that it was kept informed of progress in negotiations with the European Parliament on the proposal.482 The Council’s General Approach, which did not substantially modify the original text, was adopted with the UK’s support on 13 October.483

29.16On 29 March 2017, the Minister wrote that the European Parliament’s Employment & Social Affairs Committee had adopted its position on the proposal.484 She noted that MEPs were seeking substantive amendments, seeking to lay down more stringent limit values, include reprotoxins485 in the scope of the Directive and introduce a requirement for “mandatory [occupational] health surveillance”. These amendments were opposed by a majority of Member States, and the Maltese Presidency initiated a trilogue process to negotiate the final text of the legislation.

29.17On 15 August, the Minister informed the Committee that a compromise proposal had been agreed informally between the Parliament and the Presidency in June.486 The text diverged substantially from the General Approach which the Government had supported, including a further lowering of the original proposed exposure limit values for chromium (VI) compounds and hardwood dust,487 and extended the existing requirements for health surveillance of workers exposed to carcinogens at work in response to the Parliament’s demands. The Government abstained from supporting the agreement at COREPER in July 2017 in view of the lack of an impact assessment of these changes. However, as a qualified majority of Member States supported the compromise text, the Directive is scheduled for adoption by the Council in autumn 2017 following a vote in the European Parliament on 23 October.

29.18With respect to the impact of the new Directive in the UK, the Minister has said that the lower limits for process-generated chromium (VI) and hardwood dust “may involve costs which are not yet quantifiable”, but adds that these costs will be “minimised by [a] five year transition period … together with a two year implementation period for the Directive”, due to which the new limits for these substances will not come into effect until 2024. In her letter, she did not refer to the implications of the UK’s expected withdrawal from the EU by March 2019 for the eventual transposition of the new Directive.

The Phase II proposal

29.19The second proposal to amend the Carcinogens and Mutagens Directive was put forward by the Commission in January 2017. The Phase II proposal would bring exposure to used engine oils within the scope of the CMD, and assign a skin notation488 to such oils. It would also add five specific carcinogenic substances to the list of chemicals covered by the requirements of the Directive, and set accompanying exposure limit values and a skin notation for each.489

29.20The Minister supported the Commission proposal, noting in her Explanatory Memorandum in January 2017 that the new substances covered are “particularly harmful”, even though the relevant carcinogens have “limited, and in some cases no, identified use in the UK”.490 As a result, the impact domestically would be negligible, especially as the changes to exposure limits are broadly in line with existing domestic law and business practice.

29.21On 24 March, the Minister provided the Committee with an update on the negotiations within the Council. She wrote that the Member States had concluded that there should be no “significant changes” to the proposal, with a view to adopting a General Approach at the meeting of EU Employment Ministers on 15 June. The previous Committee granted a scrutiny waiver to allow the Government to support the Council’s negotiating position, on the proviso that the text submitted for adoption by Ministers would not be substantially different from the version of the Directive shared with the Committee in March 2017.

29.22However, on 15 August the Minister informed us that the Maltese Presidency had in fact issued a substantially amended text for the General Approach in June, which widened the scope of substances covered compared to the original Commission proposal.491 In particular, the Presidency had proposed a new “skin notation” for Polycyclic Aromatic Hydrocarbons (PAHs), particularly those that “contain another chemical called benzo[a]pyrene (BaP) which is a carcinogen within the meaning of the Directive”. The Minister explained that PAHs consists of a group of over a hundred substances released from burning coal, oil, wood, general waste and other organic materials.

29.23The Minister informed the Committee that the UK could not support this extension in the scope of the Directive, as the inclusion of these substances in the Directive had not been through the formal evaluation process. Moreover, because of the condition of the scrutiny waiver granted by our predecessors, the UK had to abstain on the General Approach vote at the Council meeting. However, the Presidency secured enough support from other Member States to agree the General Approach.

29.24The European Parliament’s Employment & Social Affairs Committee has not yet adopted its position on the Phase II proposal, and is not expected to do so until November 2017. Formal adoption of the Directive is therefore unlikely to take place until early 2018 at the earliest. It is unclear if the five year transitional period contained in the Phase I proposal (see paragraph 0.19 above) will also be applied to the Phase II proposal.

Our assessment

29.25In view of the fact that informal agreement has already been reached between the Council and the Parliament, we are content to clear the Phase I proposal from scrutiny even though the Government opposes the trilogue text. However, we would like the Minister to inform us when the Directive is formally adopted by the Council, and to confirm whether the UK abstained on the vote, or voted against the proposal.

29.26On the Phase II proposal, we thank the Minister for the information provided. It seems likely that the final text of this second Directive will also include measures to which the UK is opposed, given that a qualified majority of Member States supported a General Approach which the Government could not support. We ask to be kept informed of the Parliament’s eventual position on the proposal, and any developments as and when the trilogue negotiations commence. We would also like the Minister to clarify whether the Council has asked, or will ask, the Commission to assess the likely impact of its proposed extension of the scope of the Directive. In the meantime, we retain the document under scrutiny.

Implications of Brexit

29.27Finally, we wish to place the eventual adoption of both of these Directives in the context of Brexit. Following its notification under Article 50 TEU on 29 March 2017, the UK is expected to withdraw from the EU—including, according to Cabinet Ministers, the Single Market492—by March 2019.

29.28While the Phase II proposal remains under negotiation with an uncertain timetable, it seems virtually certain that the Phase I proposal will be formally adopted later this year. The Minister notes that there will be a five year transition period in addition to the normal two-year transposition period for the new legislation. Practically, therefore, the revised exposure limits for Chromium IV and hardwood dust laid down by the Directive would become applicable in late 2024. This is, clearly, well after the expected date of the UK’s formal withdrawal from the EU.

29.29We have taken note of the Government’s European Union (Withdrawal) Bill493 and the accompanying factsheet on workers’ rights,494 which provides further detail on the Prime Minister’s pledge to “protect and enhance” EU-derived employment legislation.495 The Withdrawal Bill, in its current form, would only “preserve” EU law contained in Directives insofar as it has been transposed domestically on “exit day”. This is unlikely to be the case for either the Phase I or Phase II amendments to the Carcinogens and Mutagens Directive.496

29.30The factsheet on workers’ rights contains a question on whether the Government commits to staying in line with changes to EU employment legislation post-Brexit. The document goes on to avoid directly answering this question, stating instead:

“We do not need to be part of the EU, nor bound by EU legislation, to have strong protections for workers. According to statistics on health and safety at work, the UK is one of the safest places to work in the EU. The UK already goes beyond EU minimum standards in a number of areas, such as entitlement to annual leave and provisions for shared parental leave and flexible working.”

29.31This statement is ambiguous, and we cannot reasonably conclude from it that the UK will not implement future changes to EU employment legislation after Brexit. To provide for more time to negotiate a new UK-EU free trade agreement, the Prime Minister has called for an “implementation period” (lasting at least two years following March 2019) during which the UK and EU’s “access to one another’s markets should continue on current terms” using “the existing structure of EU rules and regulations”.497 As the other Member States have previously ruled out any partial Single Market membership for the UK as a non-EU country,498 we would expect the EU to insist that such an interim arrangement would require the UK to adhere to the entire acquis (which also encompasses EU health and safety law), including legislation which only becomes applicable during the lifetime of the “implementation period”.499

29.32Depending on the final implementation dates for both the Phase I and Phase II proposals, and the length and scope of the interim arrangement, the UK may therefore still be required to transpose these amendments to the Carcinogens and Mutagens Directive in due course.

29.33We expect the Government to provide more clarity urgently about the degree of continued regulatory convergence with the EU that it would be willing to countenance, both during the interim arrangement and as part of any final UK-EU free trade agreement. In the meantime, we are unable to judge whether these amendments to the Carcinogens and Mutagens Directives will be legally binding on the UK, despite their transposition dates falling after our presumed withdrawal date in March 2019. We hope to be able to adjust our conclusions on this point as the Article 50 negotiations progress, especially once the parameters of any transitional and final post-Brexit agreement become clearer.

Previous Committee Reports

For Phase I, see: (37758), 8962/16: HC 71–lv Sixth Report (2016–17), chapter 6 (15 June 2016) and Thirteenth Report HC 71–xi (2016–17), chapter 6 (12 October 2016).

For Phase II, see: (38447), 5251/17: Thirty-First Report HC 71–xxix (2016–17), chapter 9 (8 February 2017) and Fortieth Report HC 71–xxxvii (2016–17), chapter 16 (25 April 2017).


465 The previous Committee considered the contents of the Phase I proposal in more detail in its Report of 15 June 2016.

466 A skin notation assigned to a substance identifies the possibility of significant exposure through the skin which contributes to the total body burden of exposure, and consequently to possible health effects. This must be taken into account by employers when undertaking a risk assessment. For substances which cannot enter the body via the skin, the notation is absent.

467 The previous Committee considered the contents of the Phase II proposal in more detail in its Report of 8 February 2017.

468 See Reports of 15 June 2016 and 8 February 2017.

469 Letter from Penny Mordaunt to the Chair of the European Scrutiny Committee (15 August 2017).

470 See Council document 10803/17 ADD 1.

471 See Council of the EU, “Carcinogens and mutagens at work: Council agrees its position“ (13 October 2016).

472 The Minister writes that the UK voiced concerns during the negotiations about the introduction of lower limit values, in particular, for process generated Chromium (VI) during welding of stainless steel and for hardwood dust generated by the wood working and building industry. The Government obtained advice from industry that the limits are not “practically achievable using currently available control measures”.

475 The European Union (Withdrawal) Bill would not “retain” the substance of the Directive unless the Government takes the necessary measures for transposition before the day the UK formally exits the EU. As the transposition date will be in late 2019, Government would have to bring the statutory instruments implementing the Directive into force well ahead of that deadline for it to be ‘caught’ by the Bill (unless the date of the UK’s exit is postponed as part of the Article 50 process, with the unanimous consent of all Member States).

476 9 October 2017 Statement to the House, Hansard Column 42.

478 See Commission document COM(2016) 248 (13 May 2016).

479 See Commission document COM(2017) 11 (10 January 2017).

480 Letter from Penny Mordaunt to the Chair of the European Scrutiny Committee (15 August 2017).

481 Letter of Penny Mordaunt to Sir William Cash (19 September 2016).

482 See our predecessors’ Report of 12 October 2016.

483 See Council of the EU, “Carcinogens or mutagens at work: Council agrees its position“ (13 October 2016).

484 Letter of Penny Mordaunt to Sir William Cash (29 March 2017).

485 Reprotoxins are substances which interfere with normal reproductive capacity.

486 The trilogue agreement is contained in Council document 10803/17 ADD 1.

487 The Minister wrote that the UK voiced concerns during the negotiations about the introduction of lower limit values, in particular, for process generated Chromium (VI) during welding of stainless steel and for hardwood dust generated by the wood working/building industry. The Government obtained advice from industry that the limits are not “practically achievable using currently available control measures”.

488 A skin notation assigned to a substance identifies the possibility of significant exposure through the skin which contributes to the total body burden of exposure, and consequently to possible health effects. This must be taken into account by employers when undertaking a risk assessment. For substances which cannot enter the body via the skin, the notation is absent.

489 The previous Committee considered the contents of the Phase II two proposal in more detail in its Report of 8 February 2017.

490 Explanatory Memorandum submitted by the Health & Safety Executive (January 2017).

491 The Council’s General Approach is contained in Council document 10438/17.

495 Prime Minister Theresa May, “The government’s negotiating objectives for exiting the EU“ (17 January 2017).

496 Section 2 of the European Union (Withdrawal) Bill.

497 Prime Minister, “A new era of cooperation and partnership between the UK and the EU“ (22 September 2017).

498 The Guidelines on Brexit adopted by the European Council in April 2017 state: “Preserving the integrity of the Single Market excludes participation based on a sector-by-sector approach. A non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member.”

499 The European Council Guidelines on Brexit state: “To the extent necessary and legally possible, the negotiations may also seek to determine transitional arrangements which are in the interest of the Union and, as appropriate, to provide for bridges towards the foreseeable framework for the future relationship in the light of the progress made. Any such transitional arrangements must be clearly defined, limited in time, and subject to effective enforcement mechanisms. Should a time-limited prolongation of Union acquis be considered, this would require existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply.” (Our emphasis)




20 November 2017