Author Bio ▼

Kizzy is a Partner in the Fraud and Criminal Litigation team at Russell-Cooke LLP and she is leading our Health and Safety practice in London.

She spent the last nine years at international law firm Pinsent Masons LLP specialising in the defence of criminal regulatory investigations, in particular health and safety / fire safety related matters.

June 24, 2016

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Brexit Ballad

#Brexit and Health and Safety: A Ballad

What impact will the triggering of Article 50 and Brexit have on health and safety in the United Kingdom?

Embargoed to 2200 Tuesday March 28 Prime Minister Theresa May in the cabinet signs the Article 50 letter, as she prepares to trigger the start of the UK's formal withdrawal from the EU on Wednesday.

Prime Minister Theresa May signs the Article 50 letter to the UK’s withdrawal from the EU

 

At last year’s Safety & Health Expo Kizzy Augustin, senior associate for Pinsent Masons, LLP delivered this ten-minute poem on health, safety and what impact Brexit will have to health and safety practitioners.

Don’t miss the Great Brexit Debate at Safety & Health Expo 2017. Register for your free ticket here.

 

The Brexit Ballad

In or out, in or out – that’s what we’re here to talk about,

Whether we leave or whether we stay, that’s really not for me to say,

For the purpose of this talk, I have no view – that’s up to you…..and you…..and you.

But today I’ll point out the effect of Brexit, on our Health and Safety laws….and I hope that you get it!

 

Before we look at whether Brexit is bad, and will it reverse all the protection we had,

We must remember the UK set the trend, we trailblazed health and safety – so injuries would end.

Think of the Health and Safety at Work Act 1974 – The Factories Act, Corporate Manslaughter and other regulations galore,

There was a goal setting approach to managing risk – we were well regarded internationally for reducing the “near miss”,

And reducing work related injuries and ill health too – the UK made things safer for me and you.

 

Even without the Single European Act – we would have adopted this risk-based approach, and that’s a fact.

“Those that create risks are best placed to control them” – that’s what the 1974 Act says, and I think we’ve stuck by them.

Our system has stood the test of time – and with the best health and safety records in Europe,we’re front of the line.

So having set the benchmark for workplace health and safety – would the government remove laws after Brexit – would they be so hasty?

 

We implemented key EU directives for health and safety at work – the Framework Directive, into the Management of Health and Safety at Work…

Regulations 99 –where employers were obliged – to identify, evaluate and reduce risks before their eyes.

This perceived burden of EU regulation – the excessive red tape that allegedly stifles business competition,

Those that vote “Leave” think UK businesses will prosper – without rules from Brussels and those that come after,

but the likely result? The “gold standard” will remain – why jeopardise existing safety standards and drive employers insane?

 

As Michael Connerty, Chair of the UK Scrutiny Committee said aloud – “90% of UK laws would have existed even if the EU wasn’t around.

Ask most safety professionals and they’ll say our safety culture is great – so Brexit is unlikely to change things any time soon, mate!

 

The HSE’s significant expertise – is highly sought after by our friends overseas.

The Directives are intended to create a level playing field – and if we leave the EU, what will that yield?

The European Commission may not be keen to permit – access to countries with lower regulatory standards. Brexit…….

….will allow the Government to remove laws and standards may reduce – will regulators be out of the picture? That’s for you to deduce.

 

Perhaps the injured / ill workers will have recourse in civil courts only? And Brexit may make the UK feel lonely.

The Government is already committed to red tape reduction – consolidating and reviewing all health and safety legislation.

 

If we leave the EU, the UK has to wait 2 years – by giving notice of intention to withdraw, despite its fears.

During that time, existing legislation – would continue to apply, which may cause slight aggravation.

The UK could regulate or deregulate as it sees fit – but the impact on health and safety will be small, well that’s it.

 

There will be political, economical and social pressure – to keep things as close as they were, whether in York or Cheshire.

CDM 2015 might get a review – as people criticised the prescriptive nature that came through.

Could “so far as reasonably practicable” be lost after we leave? I doubt it, because proportionality would be difficult to achieve.

So Brexit could remove the burdensome law – we could think independently and show excessive regulation the door.

 

Hang on! Lofstedt said we were improving safety statistics – by reviewing our health and safety regime and focusing on logistics.

This country is at the forefront of positive change – and whether we’re in or out, it’s not hard to arrange.

 

Just look at the new sentencing guidelines and what that teaches – the increase in penalties for health and safety breaches.

The UK intends to effect change in or out of the EU, and Brexit won’t really change how we’re viewed.

Human rights

And what about the European Convention of Human Rights? Would the UK withdraw from that too and take fairness to new heights?

The potential of fair trial arguments under Article 6 – might limit rights of those charged, who might be up to criminal tricks.

Burdens placed on public bodies may be removed – if we lose Art 2 inquests where wider investigation is approved.

Food safety

Food Safety – an area that isn’t talked about much – the laws governing food isn’t complicated as such,

The content and labelling of food is governed by the EU – could we trust the UK government to maintain those standards too?

 

Farmers complain that regulation restricts the supply – of their fruit and veg and all that one might buy.

But without EU led law, there may still be a hitch – e.g. supermarkets have their own standards which might affect the farmer’s ‘pitch’.

Environmental standards

What about environmental standards? They helped keep our water clean – the amount of emissions has been kept lean,

The EU still drives much environmental policy – the EU / UK relationship after Brexit may determine the legacy.

Rather than sweeping change all over the place – change will be limited so regulated products and services can trade.

The UK government is content with Europe re: energy and climate change – so until the government’s view changes, seismic shift in policy is not in range.

The freedom to deregulate in the environmental sphere – will be limited by existing international obligations over there and over here.

And the Working Time Directive, well, that’s employment law strife – but they say it helps workers get balance for work/life.

For those who didn’t opt out, they do less than 48 hours a week – If the Directive is not supported by the EU, then the future could be bleak.

The work/life balance may suffer and a possible increase in occupational stress – which could follow through to workers at work not doing their best.

Product safety

Product safety – it’s likely to stay the same – but in the longer term, “essential safety requirements” will remain.

Suitable arrangements will be made in particular sectors – to supplement the general requirements and other factors.

Brexit might afford greater freedom for innovation – but the UK may be constrained by international committees, regardless of the referendum.

Construction

What about the construction sector, that relies heavily on foreign workers – skilled and unskilled, many cross the EU borders.

Will there be a curtailment of free movement in our midst– that could highlight the already struggling labour and skills shortage?

We won’t know until the relationship with Europe post Brexit has been met – but EU nationals might still move freely or we could have a flexible permit system set.

The burden of obtaining work permits might be restrictive, to workers who could previously work freely without being prescriptive.

And if, as suspected, Brexit would affect our economy – by potentially dropping our GDP because of lower foreign direct investment money,

Could that means business will simply not be able – to proactively invest in health and safety and bring those issues to the table?

To conclude

So now let me reach my worthy conclusion, I hope I didn’t cause too much confusion!

 

It is unlikely that Brexit would cause drastic change to safety legals,

Particularly if we stay in the Free Trade or Economic regions

 

However in the longer term, disengagement from the EU

May involve determining whether the law is socially or economically useful too

 

This may mean change to some laws and the stripping away of others

But essentially the UK and the rest of Europe will always feel like brothers.

 

Our Health and Safety regime has been extremely effective

And for a brave government to change this – they would have to be selective.

 

Nothing would happen for 2 years after exit, because 2 years notice is required for Brexit!

 

The sentencing guidelines which came into force, shows that there will always be a strict safety regime here, of course.

 

The legislation that requires businesses to keep people safe in a reasonable practicable way

Is unlikely to change overnight or the next day.

 

International companies seem to appreciate uniform regulations

As it is convenient to comply when operating in different jurisdictions

There are many reasons to be “in” or “out”

Immigration, sovereignty and to generally shake things about!

 

But today is health and safety led and I hope you’ll all agree

That not much will change in health and safety after Brexit, you’ll see.

Now go forth and vote if you haven’t already done it

And thanks for listening today – that’s all for Health, Safety and Brexit!

 

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