Brexit: the day after tomorrow

The government has recently published two documents on Brexit that have a bearing on health and safety.

The first is a brief paper giving guidance on the impact of a ‘no-deal’ Brexit on employment rights – including health and safety; the second is a Statutory Instrument that basically seeks to ensure that health and safety regulation remains as it is immediately post-Brexit.

The basic underlying message from both the government guidance and the Statutory Instrument published in July is that there will be no change to any of our health and safety regulations on day one after Brexit, regardless of whether there is a deal or not.

Even if the UK retains alignment with the current EU regulations, what happens when they change? Photograph: iStock

I believe that having common minimum standards is good for business and good for workers, so I guess I should be relieved that the government is guaranteeing that all our health and safety protections will be preserved on the day we leave the EU, deal or no deal.

Well, no, because without a deal, there is nothing to stop a future government rolling back any health and safety laws from day two after Brexit.

How likely is this? After all, Theresa May promised in October 2016 that existing workers’ rights under EU law “will be guaranteed as long as I am Prime Minister”. Well, how long that will be is anyone’s guess. Certainly, the civil servants involved in Brexit work seem to be progressing on the basis that some rights should disappear once we leave the EU. The government’s impact assessment on the EU singled out workers’ rights as a potential area for “maximising regulatory opportunities” and analysed the expected effects of amending or cutting the Working Time Directive.

In addition, many of the potential candidates to replace Theresa May as prime minister have made it very clear that they want to use Brexit as a way of doing away with what they call ‘red tape’. Both Boris Johnson and Michael Gove have called for the removal of the Social Chapter and the Working Time Directive, while Jacob Rees-Mogg has gone even further, saying that Britain could slash safety standards “a very long way” after Brexit and that standards that were “good enough for India” could be good enough for the UK.

This is an appalling scenario, but certainly a possible one. Despite assurances by current politicians, if there is no Brexit deal, a future government will be free to rewrite our health and safety laws as it sees fit and British courts will no longer be subject to the jurisdiction of the European Court of Justice when interpreting those laws.

However, it is not just maintaining existing regulations. Even if we retain alignment with the current EU regulations, what happens when they change? There is already a review taking place of several directives, as well as proposals for new limit values for a range of chemicals, which will all come into effect after the United Kingdom has left the EU. Without an agreement to maintain common minimum standards, our regulations would soon fall behind.

A deal would make this far less likely. If there is an agreement that includes access to the internal market, the European Union will insist this includes requirements that the UK maintain the same health and safety standards as the EU. Such a deal
would also include agreement on future alignment of regulations so
the UK will continue to have the same basic minimum rights as our European counterparts.

On the other hand, if there is no deal, or it is not linked to the single market, then the UK will be free to do what it wants, subject only to the basic provisions of any international trade or labour conventions it has signed up to and the requirements of any individual trade deals.

That is why a no-deal Brexit could be bad news for health and safety in the long run.

Guidance on workplace rights:

If there’s no Brexit deal, available at: tinyurl.com/ya5hnc9v

Statutory Instrument available at: tinyurl.com/ya8ce8z5

Explanatory note to Health and Safety Regulations: tinyurl.com/ya4la6z6

Hugh Robertson is senior policy officer for health and safety at the TUC