Brexit: knowns and unknowns

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By the end of March 2019 the UK will no longer be part of the European Union, that much is clear. Beyond that, much remains little more than speculation.

Unravelling the UK’s membership of the EU will not be an end to the matter of course. Perhaps more significant will be the negotiations to agree new trading relationships, customs controls, immigration etc. What effect, if any, could these negotiations have on health and safety law in the UK?

In previous publications we have pointed to the long tradition of health and safety regulation in the UK.The foundation of the current health and safety regulatory system was established totally independently of the EU by the Health and Safety at Work Act (HSWA) 1974. The legislation has at its heart a simple but enduring principle – those who create risks are best placed to control them.

The system has stood the test of time and has resulted in the UK having one of the best combined health and safety records in Europe and the world. When the EU’s Health and Safety Directive was introduced in 1989, the UK had few alterations to make to its national laws to bring it in line. The Corporate Manslaughter and Corporate Homicide Act 2007, another cornerstone of our system, is also wholly derived from the UK.

Since achieving membership of the EU, a series of individual directives focusing on specific aspects of safety and health at work have been issued at European level and transposed into UK law. Until repealed or otherwise amended, such legislation (as with other legislation emanating from the UK Parliament) will remain unaffected after withdrawal. Insofar as laws derive from directly applicable EU regulations, the UK government has promised a Great Repeal Bill designed to ensure the status quo post exit.

On the whole, the UK is seen as the ‘gold standard’ in health and safety matters – witness the minimal impact of the imposition of the Offshore Safety Directive – with HSE generally agreed to be an effective regulator, whose expertise is sought overseas.

As a result, UK workers and their representatives have come to expect certain standards and, more importantly, that these standards will be maintained and indeed improved. Over time, of course, certain laws may well be looked at afresh but wholesale change is dependent on political will and is likely to prove unpopular. Nor is there credible evidence to support contentions that there is material over-regulation in this area and insofar as there can be a reduction, without a lowering of standards, that is happening, not only in the UK via its Red tape challenge, but in the EU too via the ongoing Regulatory Fitness and Performance Programme.

While in the future there may be some divergence in the laws applicable in the UK and EU, the UK will be keen to maintain its profile as the standard bearer for health and safety matters.

In its white paper The United Kingdom’s exit from, and new partnership with, the European Union the UK government has set out its guiding priorities as it approaches negotiations to exit the EU. Key among them is the commitment to protect workers’ rights. The detail of this remains to be seen and some, for example the TUC, have voiced concern at the UK government’s apparent reluctance to give more guarantees on workers’ rights, including those in relation to health and safety, post Brexit, citing the fact that the EU’s Health and Safety Framework Directive forces employers to assess and act to reduce workplace risks.

As we have seen, however, many such duties here emanate not from EU legislation but from our own HSWA. In so far as they have their foundations in the EU, many laws of significance are now so embedded here as it to be very difficult to see any real appetite for, or prospect of, their removal.

Will there be a race to the bottom as the UK scrambles to form alternative relationships with trading partners? While disengagement from the EU may well involve a process of determining which primary and secondary health and safety legislation remains socially or economically useful to the UK, potentially leading to changes to some regulations and the stripping away of others, a wholesale lowering of standards is unlikely.

On the contrary, if we wish to continue to trade with the EU, the likelihood is that standards will at the very least require to be maintained. Outside of the European trade structures, the UK will be free to regulate or deregulate as it sees fit; however, the impact on health and safety-related legislation is likely to be limited due to political and social realities and the UK government’s white paper states that “this Government has committed not only to safeguard the rights of workers set out in European legislation, but to enhance them”.

Moreover, businesses appreciate the value of a robust health and safety management system. Not only does it make sense from a reputational perspective, but it also makes sense economically – increasingly hefty fines for breaches of the HSWA look set to continue and production days lost through ill health are difficult to recover.


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