Will UK's equivalent of ECHA's Board of Appeal be as good?

Background
On 1 January 2021, the UK's new REACH regime will enter into law. Alongside the new re-registration and transitioning requirements will be a new governance structure. The UK's Health & Safety Executive (HSE) in large part takes over the role of the European Chemicals Agency (ECHA). This short article looks at the UK's replacement for the ECHA Board of Appeal ("ECHA BoA"): the General Regulatory Chamber ("UK GRC").

What the ECHA BoA currently does
The ECHA BoA is competent to issue decisions on, for example, the rejection by ECHA of registration dossiers, decisions to impose testing requirements and decisions taken by ECHA on data sharing disputes (under REACH and the Biocidal Products Regulation – "BPR").
 
UK GRC: Just a copy?
The UK has adopted the REACH etc. (Amendment etc.) (EU Exit) Regulations 2019, which, in essence, mirror REACH. Adaptations are, of course, necessary including to replace the ECHA BoA with another appeal tribunal/court in the UK. The choice made was for the UK's "First-Tier Tribunals" and, in particular, the UK GRC which will remain competent for everything that the ECHA BoA currently does.
 
Compare & Contrast

	ECHA BoA	UK GRC	Comments
Composition	3 members: - 1 chairperson - 1 legal adviser - 1 technical adviser	2 or 3 members: - 1 judge - "One or two other members where each other member has substantial experience of environmental matters" [1]	While experience of environmental matters is positive, the real requirement is for persons with core experience of REACH and the BPR
Experience / expertise	Dealt with hundreds of cases Built up sizeable knowledge and experience of REACH and the BPR	No direct experience on REACH / BPR decisions	Will the GRC review all the decisions taken by the ECHA BoA to learn and/or ensure consistency and continuation of reasoning or develop its own approach? If the latter, what experience will it draw on to evaluate how to resolve, for example, whether a prospective applicant used every efforts under Article 62 of the BPR in a data sharing dispute?
Costs	- Fee ranging between EUR 1,794 and EUR 7,175; refunded if successful - ECHA BoA not competent to award costs against losing party	- Not clear but costs will likely be significant because of the need for specialist lawyers and other assistance given the UK GRC's lack of expertise.   - Discretion to allocate the costs of the procedure.	Appealing before the ECHA BoA is a relatively affordable matter. The fact that costs can be awarded against appellants in the UK GRC if they lose will be a dissuasive factor in bringing an appeal in the first place.
Time	The average duration of an appeal is close to 15 months[2]	Although the time between lodging an appeal and a final hearing varies, the duration of the UK GRC appeals may exceed 15 months	Due to the varying appeals being heard by the UK GRC, it is likely that appeals on REACH and the BPR will exceed the current average duration of ECHA BoA hearings.
Procedure	Rules are simple	Rules are complex	Litigating at EU level tends to have the advantage of relative procedural simplicity in comparison with Member State / UK tribunal/court proceedings
Nature	While adversarial in the sense that the appellant is disputing a decision of ECHA that ECHA defends, the nature of proceedings at the oral hearing is more inquisitorial meaning that: the Members take a very hands-on approach; they are prepared; and they ask searching questions.	Appearances before the UK GRC involve the adversarial nature of typical UK-style litigation. In England, that may require appearance of counsel (barristers) which will increase expense amongst other things. The UK GRC may not be as prepared as the ECHA BoA, depending on submissions from the parties and then deliberation thereafter.	The adversarial nature of domestic litigation places more power in the hands of the lawyers (perhaps to play procedural cat and mouse games?) than is currently the case before the ECHA BoA.

 
Concluding remarks
Our experience of the ECHA BoA is that it is an excellent forum in which to plead a case. The BoA does not hesitate to deal with the nitty gritty of sometimes difficult technical issues and certainly ensures a thorough and searching examination of the parties at the oral hearing. We are aware of very few (successful) appeals against Board decisions which may be an indicator of their quality.

Whilst it is not yet known just how effective the UK GRC may be at determining REACH/BPR disputes, the transition from a specialist chemical agency to a non-specialist Tribunal which determines appeals in a wide breadth of areas including food, gambling and the welfare of animals, brings into question just how effective the adjudications of appeals will be. Rather than saddling the UK GRC with an even larger caseload, it would have been more prudent for an independent HSE panel to hear appeals. The HSE is well placed in that it is the UK regulator for REACH/BPR specific issues, is vastly experienced in dealing with chemical regulation and already has independent appeal processes. Put simply, they have the ideal expertise and infrastructure to hear an appeal.

The UK's GRC will offer a very different forum in which it litigate. Time will tell just how different, although teething problems may exist in the transition from an appeal process within a specialist chemical agency to a non-specialist Tribunal system which has a busy case load and a lack of relevant technical expertise to hear the appeal, Appellants may expect a more delayed, convoluted and costly