Health & Safety

Shall We Stay or Shall We Go? The Potential Implications of ‘Brexit’ on H&S Regulation in UK

Like many, I have felt somewhat battered and bemused by the recent torrent of information and argument about our future, or not, as members of the EU. Trying to make a well-informed decision about whether to stay or leave requires trawling through a huge amount of material and listening carefully to arguments on the economy, immigration, sovereignty and so on. Faced with this bewildering mass of information it’s no wonder that many people seem to be finding it hard to make up their minds.

So, I thought to myself, what issue of personal importance can I focus on in an effort to see which way to leap on 23 June?  I decided to consider what might happen to the future of health and safety practice in the UK if we were to leave the EU. Here are my thoughts.

The UK has a strong track record of making law on health and safety at work, dating back to the 19th century. ‘Modern’ H&S law starts with the Health and Safety at Work Act 1974, which was the end product of a process that was begun before we joined the EU – so no European involvement there.

The 1974 Act takes a general approach but the devil is in the detail. Much of this detail is provided by Regulations, many of which are founded on European directives. And therein may lie the problem if we leave.

In effect, directives are instructions from the EU to enact law on certain topics. The form and content of our implementing legislation is left to us to decide, as it is for all Member States. Provided the result required by the directive is achieved, then all is well. In fact, we often choose to go beyond what a directive requires, which may be one reason why the UK is seen by many other nations as a world leader in health and safety.

It might be said we only have Regulations because directives tell us we need them. Put another way, we might not have the Regulations were we not part of Europe. I’m not so sure. In order to bring the general requirements of the 1974 Act to life, to add ‘flesh to the bones’ if you like, Parliament needs to implement law that expands on the general requirements of the Act. Would we have still had the same range of Regulations if we’d never joined the EU? Possibly not. Would we have need of Regulations to support our own, independently-written Health and Safety at Work Act? Probably, yes.


What happens if we stay?

Insofar as health and safety law is concerned, I think the answer is going to be ‘not much’. We’ll continue to be subject to directives and EU regulations (like REACH and CLP) just as we have for the past 40-odd years, although it should be noted that the EU is working to continue the process of deregulation so there may not be much more to implement.

What if we leave?

There have been loads of dire warnings about what ‘Brexit’ might mean. I can’t honestly see a massive change occurring on 24 June though, especially as the transition period after exit will take at least two years.

Some might say that the current Government would prefer to see less health and safety regulation so might take the opportunity to revoke those laws that are based on EU requirements as soon as we no longer have to honour them, but this would take time. I’d be surprised if this was at the top of the Governmental agenda if the ‘leave’ camp wins the day. What might happen is that, without the watchful eye of the EU Commission, health and safety laws might be left to wither on the vine, gradually becoming less and less influential as they suffer from a sort of benign neglect until such time as a case can be made to get rid of them. I think that’s a real possibility, but only time will tell.

So where does that leave health and safety practice?

A central plank of the argument for ensuring decent standards of health, safety and welfare is that it’s a legal requirement. Take that away and what is left?

I’d like to think that employers will respond to economic arguments, or to simply realise that its ‘the right thing to do’. I’m sure that will be true for many, but I fear that, for some, the weakening of health and safety law might provide an excuse to do even less than currently.

‘Brexit’ might therefore be a threat to the health and safety profession. Like any profession faced with a challenge, we’d have to adapt, evolve and overcome that challenge by placing more emphasis on the business benefits. It might be argued that better standards of safety, which we know means less economic loss, may help to make a business more competitive. This might be important if, in leaving the free trade area, our former EU partners decide to impose levies on goods and services imported from the UK, in which case our businesses will need to work smarter, and safer, to sell their wares.

Andrew Ashford