Brexit has dominated political discourse in the UK for more than two years now and will probably continue to be the main topic of discussion for some years to come. It is a hot topic in the health and safety sector too. The question many are grappling with is how the UK’s health and safety landscape will change post-Brexit.
Specifically, will health and safety law in the UK change?
The only definitive piece of information we have on this so far is The Health and Safety (Amendment) (EU Exit) Regulations 2018. It was published in July 2018. As with other EU Exit legislation, the UK government simply took the law as it is now, including all directives from the EU, and transposed it directly into new, post-Brexit UK law.
In other words, it made no changes at all to the legislation. Therefore, health and safety law will be exactly the same the day after the UK leaves the EU as it is now.
What about the future, however? After all, one of the main reasons for the UK voting for Brexit was the desire of many to take back control of law making.
Therefore, while the EU Exit regulations on health and safety are completely in line with existing EU rules, it is feasible that current and future UK governments could change elements of the law and, potentially, create differences between EU and UK legislation.
The Reality of the EU’s Influence on UK Health and Safety Law
Before looking at what changes might occur in UK health and safety law post-Brexit, it is important first to get a clear overview of the current picture.
Many advocates of the EU highlight the many health and safety directives that have come from Brussels. They say those directives have strengthened the law here, increasing levels of protection for workers.
Those on the pro-Brexit side also highlight the many EU directives on health and safety that are now part of UK law. However, those who want to leave Europe come at the issue from a different perspective. While often welcoming the increased protection for workers, they also sometimes say the balance has swung too far and there is now too much bureaucracy in the system. Their argument is this imposed bureaucracy makes UK businesses less competitive.
What is the reality? The foundation of UK health and safety law is the Health and Safety at Work Act 1974, which is a piece of UK legislation.
Of course, this law has now evolved to include the EU directives mentioned above. Examples include the requirement for employers to conduct risk assessments, current asbestos laws, many aspects of construction industry health and safety regulations, rules regarding working at height, and more.
So, while health and safety law is rooted in UK-drafted legislation, the EU has had a significant impact. Even this doesn’t tell the whole story, however, as not everything comes from the EU. The Corporate Manslaughter and Corporate Homicide Act 2007, for example, is UK legislation.
Additionally, when the EU introduced its Health and Safety Directive in 1989, UK legislation required very little change to bring it into line.
The summary, therefore, is the EU has, in the past, played an important role in moulding UK health and safety legislation. It cannot take all the credit, however, as successive UK governments have also had an impact.
What Will Happen to UK Health and Safety Law Post-Brexit?
With that context in mind, will Brexit change health and safety laws in the UK and, if so, how?
While predicting the future is never easy, one thing that is almost guaranteed is that things will be different after Brexit than they are now. That difference isn’t necessarily about specifics of law but instead the structure of law making.
Below are four areas where we are likely to see the greatest change in UK health and safety regulations post-Brexit.
1. Race to the Bottom
International trade agreements are central to the Brexit debate on all sides. This includes a future trade agreement with the EU as well as potential trade agreements with countries and regions elsewhere in the world.
There are many who fear striking trade agreements with non-EU countries could have a negative impact on UK health and safety legislation. In particular, those who are concerned say establishing closer trading relationships with countries outside the EU could see a race to the bottom as the UK deregulates to help businesses stay competitive.
Health and safety legislation could be part of that deregulation.
2. Populist or Ideological Law-Making
One of the charges often levelled at the EU is that it is not democratic. In other words, bureaucrats draft directives, including health and safety directives, with little-to-no input from elected UK politicians.
One pro-EU argument to counter this (apart from the argument there are elected politicians in the European Parliament) is that creating laws in this way, particularly in relation to areas like health and safety, removes ideology from the equation as well as the temptation to write laws that are popular.
What you get in place of this are laws truly designed to protect workers.
After Brexit, it is likely that changes or additions to UK health and safety law will come from the sitting government in Westminster. This opens up the possibility that those laws will be influenced by ideology (enhancing worker rights, for example, or reducing red tape for businesses).
In addition, all UK governments are guilty of enacting populist legislation, not least because they must win votes. There is nothing to indicate that health and safety law-making will be exempt from this.
Whatever side populist or ideological laws come from, they will change health and safety law here. What we don’t know, however, is will those changes make workers safer or put them at risk.
3. Areas of Difference
There have been instances in the past where the European Commission has challenged the UK on its implementation of health and safety law. One example is asbestos regulations where pressure from the Commission led to the introduction of the Control of Asbestos Regulations 2012. Previous to this, the Commission was not satisfied with UK implementation of the EU’s asbestos directive.
Post-Brexit, however, the EU will not have this power or influence over UK laws. This opens up the possibility that UK governments could, in the future, make amendments to aspects of health and safety law they don’t fully agree with, putting the law out of step with EU rules.
4. Enhanced Role for the Health and Safety Executive
Another change we are likely to see post-Brexit is to the role of the Health and Safety Executive (HSE). For several decades, the HSE has taken its lead from the EU, adapting what it does to keep it in line with EU directives.
After Brexit, however, the HSE will no longer be able to take this lead. Instead, it is likely to take on an enhanced role, guiding and advising the government when changing laws or implementing new laws.
Brexit: Good or Bad for Health and Safety?
At the end of it all, will Brexit be good or bad for health and safety in UK workplaces? Nobody knows the answer to this question. After all, just about everyone who has made a Brexit prediction – on all sides of the argument – have been proven wrong.
One thing we can be reasonably confident about, however, is that health and safety will change. That might mean gradual divergence from EU rules and it might not. Plus, even if it does mean divergence, the differences might be minor.
The approach to health and safety, the way we create laws, and possibly even the regulations themselves, will, however, change.