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Environment Act 2021

Contents

Schedule 21: Amendment of REACH legislation

Amendment of the REACH Regulation

  1. Paragraph 1 of Schedule 21 gives the Secretary of State the power to amend the Articles of the REACH Regulation (opens in new window) , as it applies in the UK as retained EU law. This will, for example, allow the Secretary of State to amend, or add to, the transitional provisions in Title 14A to ensure an effective regulatory transfer of the REACH Regulation into the UK, and facilitate future changes.
  2. Any regulations made under this power must be consistent with Article 1 of the REACH Regulation which sets out its aim and scope. The Secretary of State must publish a statement to explain how this condition is met. Certain protected provisions are excluded from the power to amend the REACH Regulation, except where this is supplementary etc. to another amendment. These protected provisions are listed in paragraph 6 of this Schedule. Regulations made under this power are subject to the affirmative procedure.

Amendment of the REACH Enforcement Regulations 2008

  1. Paragraph 2 of Schedule 21 gives the Secretary of State and the Devolved Administrations the power to amend the REACH Enforcement Regulations 2008 (opens in new window) (the "REACH Enforcement Regulations"). These Regulations were made under section 2(2) of the European Communities Act 1972. Section 1 of the European Union (Withdrawal) Act 2018 repealed the European Communities Act 1972. This meant that there was no longer any power to amend the REACH Enforcement Regulations.
  2. Any regulations made under this power must be necessary or appropriate for, or in connection with, the enforcement of REACH. Regulations may create new criminal offences or extend the scope of existing ones connected to the enforcement of REACH. Penalties are restricted to the maximum levels that could have been provided for under section 2(2) of the European Communities Act 1972 by virtue of paragraph 1(d) of Schedule 2 to that Act as it applied in the different parts of the UK. Regulations made under this power are subject to the affirmative procedure.
  3. The REACH Regulation and the REACH Enforcement Regulations relate to a mixture of devolved and reserved matters. Under paragraph 2 of the Schedule, a Devolved Administration can only amend the REACH Enforcement Regulations where the provision would be within the competence of the relevant legislature.

Consent of the devolved administrations

  1. Paragraph 3 states that the Secretary of State can only make regulations under this Schedule with the consent of the Devolved Administrations to the extent that the function is within devolved competence.

Requests by devolved administrations for exercise of powers under this Schedule

  1. Paragraph 4 provides for the Devolved Administrations to be able to request that the Secretary of State makes regulations.

Consultation

  1. Paragraph 5 of the Schedule requires the Secretary of State to consult the UK REACH Agency (the Health and Safety Executive) and other people they consider appropriate before exercising these powers. The Secretary of State must also consult people nominated by a Devolved Administration. Paragraph 5 also places a similar consultation requirement on the Devolved Administrations.

The protected provisions

  1. Paragraph 6 lists the protected provisions in the REACH Regulation that cannot generally be amended under this Schedule (see paragraph 1). These protected provisions relate to the fundamental principles of REACH, the role of the Devolved Administrations, transparency, and collaboration between the Agency and other bodies. The Annexes to the REACH Regulation are also excluded because the REACH Regulation itself contains the necessary powers to amend them.
  2. Schedule 21 extends, and applies, to the whole of the United Kingdom.

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