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Commons on 25 October 2022 and will catch the full range of health and safety regulations, which will automatically be repealed on 31 December 2023 unless ministers make specific decisions to save them.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 The first step is that all these Regulations are automatically repealed on 31 December 2023 without any consultation or parliamentary scrutiny (a so called “sunset clause”), unless something is specifically done to reprieve them.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.
Conclusion
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. sjb@turnstonelaw.com
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Is there a comprehensive list of the laws in question?
The Government have compiled a list of Retained EU Laws (REULs) set for automatic repeal; but the list is not guaranteed to be comprehensive! The link below takes you to their ‘dashboard’. You need to select ‘REUL Explorer’ from the tab near the top. Then, if you click on ‘Health and Safety’ in the ‘Top Policy Areas’ box, the table in the ‘REUL Details’ box should become populated with the list of Regulations in the health and safety category that are known by the Government to be caught in the process.
https://public.tableau.com/app/profile/governmentreporting/viz/UKGovernment-RetainedEULawDashboard/Guidance
Using this tool the status for all the results of the Health and Safety search is given as “unchanged”. Does this mean that the repeal will be postponed as mentioned in your article?
No. I think it means not yet changed and purged of its EU origins!
As noted above but only interested in Health Safety and environmental
You can search on the dashboard. For example, on the REUL explorer page you can select ‘Department for Environment, Food and Rural Affairs’ and use the word search ‘Regulations’. However, this will miss environmental legislation under the stewardship of different government departments, such as transport. You can also search for specific Regulations.
Thank you, Simon, very useful.
So this could take us back to the purest form of UK safety regulation – the HSAWA.
An HSE inspector told me in the early 90’s: regulations are really only important for enforcers, they make our (HSE) life easier. We don’t have to go to the effort of showing in court exactly how sfairp was not met. Much easier to run thumb down a list of regs and choose the most applicable. Then its a done job. You (to me as a safety adviser) don’t need to worry too much about regs, you already have good procedures and safe systems of work, concentrate on that.
I didn’t really understand what he was getting at then (being a rookie then) but it dawned on me later. All that regulatory detail just gets in the way, distracting from the HSAWA essence of “what can go wrong and how can we stop it”.
Just seen yet another advertised training programme on rooftop safety for workers.
Syllabus starts with “regulatory framework”. Sigh.
PS: This campaign video from Rish! in the summer leadership election underlines the ideological drive behind the Bill; albeit the harsh realities of civil service cost and costs for businesses to adapt might still cause a U-turn:
https://youtu.be/vf9O7mSxsTE
Anybody managed to export the raw data instead of using that awful visualiser?
The REUL status on them remains as unchanged. Does this mean that they will not be repealed?
The UK has the highest standards of H&S law in the world and it is NOT dependant on the EU for any of it. Modern health and safety was born in this country and it’s ethos towards it outshines that of any EU nation. Even the so-called Euro 6-pack, for which we already had provisions in place, will remain enshrined in UK law and it has set precedents that would never be compromised by the courts. To suggest otherwise is flim-flammery, and buys in to the ‘Brexit panic’ sponsored by the left and the media… and, I would add, that those who were pro-remain even cited this as a problem with Brexit previously, and were unceremoniously owned by those who told them exactly what I have stated above. We do not need to be part of the EU to manage occupational H&S. international cooperation between legislators and professionals in the field has always happened and always will, and there is nothing stopping us adopting a good idea that is in practice anywhere else, but to suggest the EU is the source of all good H&S law, rights and practice is bull, when you consider the standards of H&S in East Europe, Spain and… dare I say, even Germany, which are nowhere near the standard of the UK.
Countries you mention which are in the EU all have the same health and safety laws which the U.K. may now retreat from. The Six Pack regulations will cease to have effect unless retained. Enforcement is a problem in the U.K. because of cuts to the funds given to the enforcing bodies, the HSE and the local authorities.
I don’t think you get just how the EU’s laws aren’t adopted in practice by East European nations in particular. Enforcement is far less of a problem in the UK than anywhere else, although since Cameron’s stupid idea to take the HSE’s budget off them, it has become less effective. The six pack won’t cease to have effect. We already had those six laws in effect and the EU directive simply modified the standard applicable. That is now enshrined in the UK laws that were modified. It won’t simply be taken away, no matter which drama queens produce articles to generate interest in the idea that there will be.
Try going to East Europe and see what their enforcement is like, let alone their safe working practices. It’s the ultimate education and will show you why criticising the way the UK does things is pretty pointless. Room for improvement, yes. On the critical list – no bloody way.
I think what you say in essence is quite true, the EU regulations were/are a bench mark that all member states should follow as a minimum standard. The HASAWA 1974 is an act of parliament in the UK therefore a UK law. But this does make a mockery of “taking back control” as to be fair we have always had control with our own parliamentary acts that follow that benchmark of the EU regulations.
Yes we know some of the regulations are laborious and bureaucratic. The UK has high H&S standards, yet we still see some really poor practices up and down the country in all forms of industries, so in my opinion we need to ensure that we do not “water” the legislations down just because some people have hum bridge with the EU and actually believe the “taking back control” slogan what has been shown time and time again another falsehood of the referendum. People moan about the immigration issue, but we have always had it in our power to sort this out (apart from EU nationals), what we have done in essence with Brexit is make it worse then blame the EU for non-EU nationals. When I had to do 10 hotel quarantine during the pandemic (on my return from the Middle East) I can assure you there were not many of us of UK or European nationalities in that hotel, what if you remember we was only allowed into the country if you were a UK passport holder (citizen), resident or had certain visas. We have always had control, just only use it when it suits.
Taking back control is still more than possible. The reality is that we can dump things we don’t like, and which are a pain in the backside, however, that won’t be done without a huge amount of consultation. Taking back control isn’t really the topic of conversation here, although frankly Parliament and others have done their best to undermine that ever since the vote, which seriously undermines the capacity now given to do so in the deal. So, not a falsehood, so much as a reality down to having the democratic process undermined by the legions of traitors out there…. as for always having had control. I dare say the legions of criminals crossing the channel are a jab in the eye for that statement… comrade.
I cant say I agree with you about taking back control. As I said, we have always had control, we just never chose to exercise that control in many areas. Any yes the legions of “criminals crossing the channel” as you put it could have been put to bed previously had any of the most recent Home Secretaries actually listened to their Civil Servants and the Immigration Service (that has now been amalgamated and watered down with customs and excise to make Border force…..that’s really taking back control!!)
I fear for the future both from an economy point or view and also from a workers rights point of view (something H&S is part of). I can see a day when the workhouses reopen if we carry on the way this current government is going (at least Rees-Mogg has been demoted for the minute!!)
So anyone who disagrees with you and BREXIT is a traitor? Thanks for that, guess my 28 years service in the armed forces makes me a traitor to the country because my perception and beliefs are different to yours. Funny really but I don’t see you as a traitor for your beliefs, maybe taken in by what has been said, but to lower the tone of a sensible conversation and debate about a really serious situation probably makes me realise that I am thinking on the right lines! Just because you might be able to shout louder and resort to using inflammatory words doesn’t make you right, just look at Trump!!
I for one, am very concerned. To simply eradicate health and safety laws/regulations without considering whether they should be replaced is madness. And I agree with the article that it’s nonsense to believe Parliament will have the time to scrutinise what disappears. Also, we have actually now lost control because ministers will no longer be able to vote on what H&S regs are best for the UK because they will all simply disappear in Dec 2024 whether they like it or not! That’s not ‘control’ in my book. My clients have struggled with huge changes imposed by Brexit and not one of them can name a single benefit – yet all can list tens or more of the disadvantages. I suspect the same old people will spout the same old phrase “cut the red tape” but the reality will be more red tape and without doubt a far less safe working environment due to lack of clarity. Each law/legislation, in my view, brings useful guidance on how to improve the health and safety of workers – our primary goal as H&S professionals.
Nobody’s considering replacing them. The article is one of dozens speculating on the same tripe since 2016. All fear-mongering to drive up hits on the website.
The sunset day is 31 December 2023. And the duty on employers to undertake proactive risk assessments was not part of U.K. law before the EU directives that we implemented in regulations.
PPS: The task for civil servants has become even larger. It is reported today that the National Archive have discovered another 1,400 EU laws that will be caught in the Brexit bonfire and that had not previously been identified or included in the dashboard. It is not clear how many of these will be H&S regulations but it is clear that the dashboard needs to be seen as a work in progress.