Dr Simon Joyston-Bechal at Turnstone Law hopes the Government takes the long view as UK health and safety Regulation stands on the precipice.
The Retained EU Law (Revocation and Reform) Bill had its second reading in the Commons on 25 October 2022 and will catch the full range of health and safety regulations, which will automatically be repealed on 31 December 2023 unless ministers make specific decisions to save them.
What laws are caught by the EU Law (Revocation and Reform) Bill?
The Bill is designed to deal once and for all with the approximately 2,500 EU derived laws that were saved by the EU Withdrawal Act. These laws have mostly been identified on a Government dashboard, which currently lists 58 of them as being in the health and safety category; and many more cover product safety, food safety and environmental protection.
The changes do not apply to primary legislation, i.e., anything with a title ending in the word “Act” such as the Health and Safety at Work Act 1974. But they do apply to all the UK Regulations familiar to health and safety practitioners, which set out specific safety duties or deal with specific risks, ranging from health and safety management, welfare, consultation and first aid, through to work at height, lifting operations, PPE, manual handling, asbestos and CDM; i.e., all the rules with a title ending in the word “Regulations”.
What will happen to these Regulations?
The Bill sweeps up all these health and safety Regulations, along with all other EU retained laws. The first step is that all these Regulations are automatically repealed on 31 December 2023 without any consultation or parliamentary scrutiny (a so called “sunset clause”), unless something is specifically done to reprieve them.
The Bill sets out options to avoid the automatic sunset on each specific set of Regulations. The first option is that Ministers can decide to postpone the repeal, but this stay of execution is only permitted as far as June 2026.
The second option is that Ministers can replace the Regulations with new ones. The replacement regulations are permitted to be changed to become less burdensome (i.e., offer less protections) but they cannot become more burdensome. This fits with the de-regulatory purpose of the Bill.
What procedural protections are offered?
The Bill does not require Ministers to consult with those affected by their choices, whether to let the rules lapse or on the terms of the potentially watered-down replacement rules. The replacement rules will not usually require a debate or vote in parliament, and when there is a vote it will be “yes” or “no” on the replacement, with the current Regulations set to vanish anyway.
Given the small number of Parliamentary sitting days between now and the end of 2023, it is fantasy to think that 2,500 laws could be adequately considered, consulted upon and debated even if this were permitted.
Why is this happening?
The reasons for the change fall neatly under the banner “taking back control”. Nonetheless, I suspect much of the impetus is to do with making it harder for a future government to rejoin the single market, which would require restoring an even playing field of business regulation.
Some businesses may welcome the deregulation. However, many will be perturbed by the uncertainty and annoyed by the extra cost of taking health and safety advice and updating their policies and procedures to keep up with the changes.
At best in my view, we might receive a clear reassurance that all health and safety Regulations will be replaced with identical protections. But we may not get such reassurance and even this would be fraught with risk of unintended changes or gaps arising from the cross referencing and interlacing of the rules, with limited time and scope for scrutiny.
I will be keeping track of the Bill in my role as Chair of the Policy and Thought Leadership Committee of the Health and Safety Lawyers Association. If you have any comments, please post them below.
Dr Simon Joyston-Bechal is a director at Turnstone Law (www.turnstonelaw.com) . He is widely regarded as one of the UK’s leading health & safety lawyers. Having previously qualified as a doctor, he is uniquely placed to deal with technical, safety and health related legal issues. As well as defending H&S enforcement, he focuses on training senior management and advising organisations on legal preventive measures to reduce the likelihood of prosecution in the event an incident occurs. [email protected]
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