UK Health and Safety Law following "Brexit" – Business as Usual (probably)
Published 30 June 2016
The momentous decision on 23rd June will put in place a process which (we are confidently told by the "Leave" camp) will see the repatriation of law-making to the UK. Criticism has often been raised on both sides of the debate about the supposed stifling effect of EU regulations on UK employers. As we enter an era of political and economic uncertainty, we hope this alert will provide some explanation of the ways in which the EU has affected UK health and safety (H&S) law and whether "Brexit" will really result in any noticeable change for employers.
The first point to make is that nothing will change overnight or even for some time. As we explain below, there is a significant period of negotiation to take place before the reality of any new "post-exit" regime will be made clear.
To what extent does UK health and safety law come from the EU?
The most important element of UK H&S law, the Health and Safety at Work etc. Act 1974 (the HSWA), is entirely home-grown. However, since 1974 a framework of subsidiary regulations has developed based mainly on EU directives. These set minimum standards for the H&S of workers and include objectives to be achieved by all Member States by a given date.
However, each Member State is free to decide how to transpose Directives into national law. Examples of UK regulations arising from Directives include the so called 'six pack' of health and safety regulations (the Management of Health and Safety at Work Regulations et al). In terms of the overall impact of the EU on UK H&S law, Professor Löfstedt referred in his 2011 review of UK H&S legislation to evidence that: "…41 of the 65 new health and safety regulations introduced between 1997 and 2009 originated in the EU…"
Whilst a significant amount of our H&S legislation now derives from EU law, its implementation was decided nationally; and the stringency of UK H&S law is also a home-grown phenomenon. There are exceptions to this rule because European Regulations (like the REACH Regulation, concerning the registration of chemicals) are legally binding in Member States and do not require national legislation. However, there are few such EU regulations with direct application.
So what could Brexit mean for health and safety Law?
Whilst there would be no legal imperative to enact new EU Directives or to comply with new European Regulations, this could be subject to the negotiations to re-define the UK's relationship with the EU.
Compliance with some new EU laws might be required in a trading relationship. The decision to leave is unlikely to have any impact on existing H&S law because it is either already our own (like the HSWA) or is the result of our own implementation of EU law. Given the importance of such laws to the protection of employee rights, wholesale repeals are likely to be politically unacceptable.
The high regard with which UK H&S law is held internationally may also be a factor which limits significant change. Our laws have been broadly followed in other common law jurisdictions (e.g. Ireland, Australia and South Africa), and have influenced international conventions on H&S. It may be unattractive to potential investors from outside the EU should we now start dismantling our regulatory framework for H&S, simply because much of it originated in the EU.
The HSWA introduced the offences (breaches of general duties and regulations) which are used to enforce compliance. That act also founded the Health and Safety Executive and the enhanced powers given to inspectors have established a national policing capability which is matched in few other jurisdictions. H&S enforcement is therefore founded on UK rather than EU law and it is not obvious how departure from the EU would change this. The HSE would unable to enforce EU Regulations, but the extent of existing H&S legislation probably means this is unlikely to have any noticeable effect.
It is also important to recognise the value to the Exchequer from fines consequent on the enforcement of H&S laws, particularly following the increases in sentencing guidelines which came into force in February 2016.
Whilst we might theoretically not have to participate in EU led changes in this area of law in the future, that will very much depend on the course of negotiations. In any event, it will some time before the shape of any changes emerges, as the UK has yet to trigger the Article 50 exit clause and this in itself provides a minimum period of two years before exit actually occurs. What seems clear is that there will be no immediate and wholesale repeal of H&S laws and it will remain business as usual for the HSE.