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CHEM Trust challenges UK Government on Brexit pesticides plans

The UK Government has claimed that it would not weaken EU environmental laws when transferring them into UK law in the event of a no-deal Brexit, with Secretary of State Michael Gove stating that We will deliver a Green Brexit, where environmental standards are not only maintained but enhanced.

However, CHEM Trust’s analysis is that this pledge has been broken, and instead laws on pesticides have been weakened to allow the use of hazardous chemicals that can disrupt hormones.

  • UPDATE: The UK Government has now restored this ban on hormone disrupting pesticides, claiming the deletion was a ‘drafting error’ – see our new blog for details.

Meanwhile in a separate law on other hazardous chemicals the Government are planning to shut out representatives of public health, environment and consumers from the decision-making process.

CHEM Trust, represented by law firm Leigh Day, has now sent a Pre-Action Protocol letter to Environment Minister Michael Gove setting out its concerns. The pre-action letter asks for more information from the Government before deciding whether to start judicial review proceedings.

It should be “copy and paste”, but it isn’t…

As part of its preparations for a possible no-deal Brexit the UK government has been transferring EU laws into UK law, using a legal process created by the Withdrawal Act that doesn’t permit substantive changes to these laws.

CHEM Trust is of the view that the Government has acted unlawfully in weakening laws that prevent the use of hazardous endocrine disrupting pesticides, and by removing participation by environment, health and consumer groups from the proposed regulatory procedure for chemicals.

1) Removing a ban on endocrine disrupting pesticides

EU law regulates the use of pesticides, through the approval of active substances (the active ingredient in a pesticide) and the authorisation of pesticide products (plant protection products, PPPs).

One important part of this EU law is a ban on pesticides that can disrupt the sensitive hormonal control systems of people or of wildlife (‘non target organisms’). The last few years have seen a major debate at EU level on how to define such ‘Endocrine Disrupting Chemicals’ or EDCs – see our FAQ on EDCs and our blog on extensive industry lobbying against protective criteria.

In February the Government laid before Parliament a piece of secondary legislation, a Statutory Instrument (SI), concerning pesticides regulation, which will come into force on exit day. This SI, amongst many, is necessary to convert EU legislation into UK domestic law as required under the EU Withdrawal Act 2018. Crucially, the aim of the Act was not to make “major changes to policy or establish new legal frameworks”.

This Plant Protection Products (PPP) SI erases a significant paragraph from EU law on restricting substances with endocrine disrupting properties. This represents a significant deregulation under the cover of a Brexit process.

Article 4 of this EU law requires that “An active substance shall be approved in accordance with Annex II”. Annex II (3.6.5.) importantly stipulates that:

“An active substance shall only be approved if…it is not considered to have endocrine disrupting properties that may cause adverse effects in humans, unless the exposure… is negligible”

In carrying across this pesticides law into UK law, the Government have deleted this crucial paragraph that restricts approvals of EDCs to humans.

Further, Annex II (3.8.2.) states that:

An active substance shall only be approved if…. it is not considered to have endocrine disrupting properties that may cause adverse effects on non-target organism, unless the exposure… is negligible”

Thus, protection of non target organisms (wildlife) against EDCs is also deleted in the PPP SI.

So, whilst UK law has retained the process of establishing and classifying EDCs, it now permits the approval of substances that could cause adverse effects on humans, non-target organisms and the wider environment.

The UK Trade Policy Observatory have identified this omission amongst further deficiencies with the pesticides SI, such as the weakening of enforcement mechanisms for infringements of pesticides regulations.

  • UPDATE: The UK Government has now restored this ban on hormone disrupting pesticides, claiming the deletion was a ‘drafting error’ – see our new blog for details.

2) Shutting out representatives of public health, environment and consumers from discussions on chemical controls

The EU chemicals agency ECHA has a number of layers of oversight for its activities, with a Management Board which includes Member States and stakeholders such as health, environment and consumer groups (as well as industry). It also has various technical committees where Member States have a voting role and where stakeholders can participate. This approach means that the work of ECHA can be challenged and made more effective.

The SI weakens oversight of the UK Agency (replacing it with an ability or obligation on the Agency to simply obtain external scientific advice) and removes opportunities for stakeholder participation. This is not an effective way of ensuring well informed and well-balanced decision making.

It’s also worth noting that in CHEM Trust’s analysis the best method to keep the same level of public and environmental protection from hazardous chemicals is for the UK to stay in the EU’s world-leading REACH regulatory system.

Conclusion

CHEM Trust has sent the Secretary of State a Pre-Action Protocol letter setting out its concerns. We took this step because we believe the Government is in danger of substantially weakening our protection against hazardous EDC pesticides, and reducing oversight of its process for regulating industrial chemicals.

This dilution of vital regulatory standards contradicts Government assurances that environmental standards will be maintained, if not strengthened, post-Brexit. We believe this failure to maintain environmental protections could have far-reaching implications on wildlife and human health.

Kate Young, Brexit campaigner at CHEM Trust, said:

“CHEM Trust finds it shocking that a detailed analysis of the laws that the Government claimed would copy-over EU environmental and health protections actually finds that a number of key protections, including against endocrine disrupting pesticides, have been deleted. 

The Government must amend these laws now, to re-introduce these protections, otherwise we will be forced to consider making an application to the High Court for a judicial review”.