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BREXIT – UK REACH – Potential Judicial Review?

  • United Kingdom
  • Diversified industrials - Chemicals

18-06-2019

Contenders to replace Theresa May as Conservative leader continue to clash over the prospect of a no-deal Brexit and how it could be achieved. In the meantime, the chemicals sector continues to attempt to mitigate the major ramifications it could have, in particular UK REACH, which would be implemented in the event of a no-deal.

A recent legal (rather than political) development relevant to UK REACH, is CHEM Trust’s pre-action protocol letter to environment minister, Michael Gove. The letter of 4 June 2019 explains that if a satisfactory response to this letter is not received by 4pm on the 18 June 2019 judicial review proceedings would be issued.

CHEM Trust criticises the REACH etc. (Amendment etc.) (EU Exit) Regulations 2019, (as amended) (UK REACH) and the Plant Protection Products (Miscellaneous Amendments) (EU Exit) Regulations 2019. The key criticisms of UK REACH include:

  • the loss of oversight currently offered by EU REACH;
  • the transfer of powers to the Secretary of State with no provision to enable the devolved agencies and/or relevant stakeholder engagement;
  • the fact that the Secretary of State alone may take decisions and there is no requirement to ensure that those decisions are underpinned by relevant experience and knowledge;
  • that it is currently unclear how the Secretary of State will exercise a supervisory function to ensure that societal needs and knowledge are properly taken into account in authorisation decisions; and
  • data sharing concerns.

Some of CHEM Trust’s concerns are also likely to be of concern to the chemicals sector. With reports that post-Brexit the UK may act faster to restrict certain substances, and Defra’s chemical strategy expected to be finalised in 2020 or 2021 which is expected to include consideration of endocrine disrupting chemicals it is key that those decisions are taken on the basis of appropriate scientific and socio-economic evidence.

CHEM Trust’s data sharing criticism is from the perspective of the HSE not being able to access relevant data to ensure regulatory requirements are met but it is equally a concern for entities seeking to register for UK REACH. Under UK REACH existing EU REACH registrations held by UK based companies will be “grandfathered”. Within 2 years of Brexit the full data package to support those grandfathered registrations must be submitted. The challenge here is that most companies may not have physical/electronic copies of the relevant study reports themselves, and any right to refer which has previously been negotiated is likely limited to use for EU REACH purposes.

With the Brexit clock ticking any judicial review of UK REACH by CHEM Trust is likely to be of interest to all those manufacturing/importing or using chemicals in the UK.

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