Kennedy, R (on the application of) v Able UK Ltd (Health & Safety Executive of)

Where an exemption policy requires an applicant to show that there are no reasonably practicable alternatives, the inquiry concerns alternatives reasonably practicable for that applicant in the circumstances of the particular application. It does not require the decision-maker to consider whether other persons, including persons in other countries, could undertake the work.

An initial screening stage may properly reject applications where no exemption could realistically be granted, avoiding the cost of a full procedure. A later request for wider background information does not necessarily alter the proper construction of the screening requirement.

The claimant sought permission to judicially review the Health and Safety Executive’s decision to grant Able UK Ltd an exemption permitting the importation of asbestos contained in the Clemenceau, a French naval vessel to be dismantled in the United Kingdom.

The challenge concerned the HSE’s interpretation and application of its policy on exemptions, particularly whether the initial assessment of reasonably practicable alternatives had to consider other potential operators or facilities worldwide. The claimant also argued that the exemption should have been limited under regulation 31 of the Health and Safety Control of Asbestos Regulations 2006.

1. Permission refused. The claimant’s arguments were unarguable after full consideration.
2. The relevant policy provided that exemptions would be granted only where there were no reasonably practicable alternative ways of complying with the statutory provision and it was in the overall public interest to grant the exemption. Step 1 was an initial screening exercise intended to eliminate applications where an exemption was unnecessary or could not properly be granted.
3. The reasonably practicable alternatives inquiry was directed to the particular applicant and the arrangements reasonably practicable for that applicant. It did not require the HSE to ask whether the work could be undertaken elsewhere by another person. That wider construction would cut across the ability of UK companies to participate in European Union procurement procedures.
4. The HSE was entitled to conclude that the asbestos formed an integral part of the fabric and fittings of the vessel. Complete removal before importation would require substantial dismantling and render the vessel unseaworthy. In the context of importing the vessel for decommissioning and dismantling, it was therefore reasonably open to the HSE to conclude that no reasonably practicable alternative complying with the existing law was available to Able.
5. The later request for information about the capability of the country of origin was described as an inopportune and eccentric question, but it did not displace the proper construction of Step 1. It was capable of being treated as background information for the substantive decision.
6. The argument based on regulation 31 was unsupported by evidence. There was no evidence of breach or failure adequately to consider the requirement that asbestos and asbestos-containing materials be reduced to as low a level as reasonably practicable.

Legal aid taxation was ordered and an expedited transcript was directed for any proposed application to the Court of Appeal.