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July 3, 2014

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Scottish independence: what will it mean for health and safety?


Tom Miller of Tods Murray LLP looks at what a ‘yes’ vote would mean for health and safety in an independent Scotland

On 18 September 2014, the Scottish public will go to the polls in a referendum which will have major implications for the country’s future.  One issue that has been relatively overlooked to date is how health and safety issues would be dealt with in an independent Scotland.

The HSE is, of course, a national body, with offices both north and south of the border.  Health and safety legislation is currently reserved to the UK Parliament in Westminster, and the Scottish Parliament cannot currently pass laws in this area.  However, ‘Scotland’s Future’, the white paper in which the Scottish Government outlines its plans for an independent Scotland, contains minimal detail as to how health and safety matters will be dealt with in the event of a yes vote.

It is suggested that the legal system in place immediately before independence will continue following a yes vote.  Therefore, the Health and Safety at Work Act 1974 will remain the focal point for health and safety regulation in an independent Scotland, at least initially.  Thereafter, decisions on health and safety law would be made by the parliament and government of an independent Scotland.

The white paper also commits to the establishment of a ‘Scottish’ HSE in the event of independence.  The utilisation of the expertise of the HSE north of the border, and its offices in Aberdeen, Glasgow and Edinburgh, will almost certainly form part of the Scottish Government’s negotiations with Westminster in the event of a yes vote.

The uncertainty surrounding an independent Scotland’s future membership of the EU is also a complicating factor. The Scottish Government has already made clear that, in the event of a yes vote, it would seek membership of the EU.  A condition of EU membership would be ensuring that Scotland’s laws were consistent with those across the EU.  A radical departure from the current position in the event of a yes vote appears, therefore, unlikely.

It seems likely that the regulation of health and safety in an independent Scotland will remain broadly in line with the current position, at least initially.  What will be of interest is whether a divergence in approach between an independent Scotland and the rest of the UK would emerge over time.  It seems that this will depend, to a significant extent, on whether an independent Scotland becomes a member of the EU, and how a ‘Scottish’ HSE would be established and operated in practice.

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