Words: Howard Fidderman
Among the main arguments advanced by campaigners for a vote to leave the EU in the 23 June referendum is the flexibility that the UK would enjoy to initiate its own legislation and run its affairs in a way that is proportionate to and driven by the country’s particular needs.
This argument has particular resonance for safety and health at work, since about two-thirds of UK regulations introduced in the past 25 or so years have originated from the EU. A 2010 report by the Policy Exchange think tank, for example, found that 41 of 65 sets of UK safety and health regulations introduced between 1997 and 2009 implemented EU requirements.
Though leaving the EU could have an impact on OSH legislation, it is unlikely to prove as fundamental as proponents of Brexit (British exit) envisage and unions fear. This is partly due to the need for the UK to agree some kind of trading arrangement with the EU, which will almost certainly include most or all of the minimum safety and health standards that now prevail in member states. It is also partly due to the gap between the rhetoric of ministers about regulatory burdens on business and the positive findings of successive government-commissioned inquiries into the UK’s safety and health system.
At the same time, there is no doubt that some legislation could be removed or altered and that, without a change of government, we would be living in an increasingly deregulatory climate.
Earlier this year, the EU Committee of the House of Lords held an inquiry into the process of withdrawing from the bloc, with core evidence from two EU legal experts: David Edward, a former judge of the Court of Justice of the EU; and Professor Derrick Wyatt QC, emeritus professor of law at Oxford University. Neither was certain about the form that the UK’s future relationship with the EU would take. Wyatt’s “suspicion” was “that it would actually be an association agreement of some kind because we would end up with a fairly complex comprehensive agreement that would involve cooperative machinery of some sort”. It is likely that the agreement would include a wide-ranging trade deal.
A long goodbye
In February, a paper presented to parliament by foreign secretary Philip Hammond concluded that, after notification of withdrawal, Article 50 of the Treaty on European Union provides for a two-year time limit for the withdrawal agreement to come into force, after which the “treaties will cease to apply” to the UK (bit.ly/1ZUoqrD). The European Council can extend the two-year period by any length and any number of times but only by unanimity among the member states.
The paper advised that it would be “difficult” to complete a successful negotiation within two years. “It is therefore probable that it would take an extended period to negotiate first our exit from the EU, secondly our future arrangements with the EU, and thirdly our trade deals with countries outside of the EU, on any terms that would be acceptable to the UK. In short, a vote to leave the EU would be the start, not the end, of a process. It could lead to up to a decade or more of uncertainty.”
It is unclear whether, in the event of a vote to leave, the UK will seek to remain in the European Economic Area (EEA) or instead negotiate bilateral agreements with the EU, as Switzerland has. The EEA comprises all 28 EU states and Norway, Iceland and Liechtenstein - which, with Switzerland, are three of the four European Free Trade Association (EFTA) states. Membership of the EEA, which is in essence an internal market governed by the same rules, is based on the European Economic Area Agreement between the EU member states and the EFTA states.
Article 67 of the EEA agreement requires the signatories to meet minimum requirements set out in Annex XVIII (bit.ly/1XcSAYc). This is a list of 28 EU directives and amending legislation, including the 1989 Framework Directive and 20 “individual” directives – such as those covering the workplace, manual handling and display screen equipment – as well as those on asbestos and occupational exposure limits. This is the same legislation that has been implemented in the UK.
Switzerland agrees to adopt laws that are equivalent to those of the EU
A briefing from the House of Commons Library in April (bit.ly/23T9vza) advised that, on Brexit, the UK would no longer be a member of the EEA. It would first have to seek to rejoin EFTA and then apply to join the EEA. The paper believed that it was possible to tackle this during the withdrawal negotiations with a view to the UK acceding to EFTA and the EEA as soon as it had left the EU, “but the move would not be automatic”. There is, the library added, no precedent for a non-EU/non-EFTA state joining the EEA, while there might also “not be much appetite to re-admit the UK”.
As part of a 32-volume “review of the balance of competences” between the EU and the UK, the government published a report in 2014 covering employment and social policy (bit.ly/1TfsAXp). It advised: “EEA members implement EU regulations that apply to the commerce covered by the EEA accord. But non-EU members of the EEA do not take part in the collective decision-making process that determine the regulations which govern commerce in the EEA.”
A separate report in the same series, on trade and investment (bit.ly/1WBcugo), noted that, though Switzerland neither implements nor is subject to current and future EU laws, it instead agrees to adopt laws that are equivalent to those of the EU, covering the “four freedoms” (the movement of goods, services, capital and labour).
The review noted: “The Swiss argue that this allows for tailor-made solutions yet retains the Swiss confederation’s independence in decision-making. Switzerland adopts equivalent legislation, rather than applying EU law directly and so can use different legislation to achieve the same objective.”
Of course, in a negotiation, there will be trade-offs and the outcome is unpredictable. There is nothing to indicate, however, that the UK would be able to reach a deal that excluded compliance – one way or another – with the minimum safety and health requirements that it already has to meet.
Membership of the EEA or Swiss-style bilateral agreements will, as a further report from the House of Commons Library noted, “require the UK to continue to adopt EU product standards (and other regulations) across the whole economy” (bit.ly/1YtFuEE). Failure to reach agreement does not seem to be an option: according to a paper presented to parliament by Philip Hammond, 44% of UK exports go to the EU, and 12.6% of our GDP is linked to these exports.
Unpicking the law
The European Communities Act 1972 (ECA) provides for directly – applicable EU law – some EU Treaty provisions and EU regulations, such as the REACH regulation on chemicals testing and authorisation – to be “recognised and available” in UK law and to be enforced without further national implementation and relied on in UK courts. If the ECA was repealed without replacement, directly-applicable laws would be automatically no longer valid in UK law. This would require a rapid review of what we wanted to retain, or a temporary holding mechanism.
But directives are not directly applicable because they need national implementing legislation. As such, they would continue to have effect after a Brexit because they are implemented through regulations and orders. Ministers would have to repeal this secondary legislation if they wanted to remove the implementation of a directive from the statute book. The House of Commons Library suggests that one option would be for the UK act that repealed the ECA to include “provisions to retain selected secondary legislation that could then be amended or repealed as desired”.
The situation is complicated further for safety and health legislation. In an extensive legal opinion for the Trades Union Congress, Michael Ford QC argues that it is “almost unimaginable” that the UK government would repeal the ECA because “legal and commercial chaos” would ensue (bit.ly/1Yh1L8n).
Ford points out that as well as the need to enter into some type of agreement with the EU, many regulations implementing EU law were not introduced under, or exclusively under, the ECA. Many safety and health regulations implementing directives were made under the UK’s Health and Safety at Work (HSW) Act 1974; but the Management of Health and Safety at Work Regulations 1999 and the Agency Worker Regulations 2010 were made under both the ECA and the HSW Act.
Repeal of the ECA would not affect regulations made exclusively under another act. For regulations that were passed under both the ECA and another statutory power, “very difficult issues would arise if the ECA were repealed”, Ford says.
He argues that a court would have to consider “whether particular provisions could have been made under the domestic statute” (for example the HSW Act) and “so would still be lawfully made, despite the repeal of the ECA” or whether they could not.
Overall, as the Lords EU committee members concluded: “Domestic disentanglement from EU law would require a review of the entire corpus of EU law as it applies nationally and in the devolved nations. Such a review would take years to complete. The government of the day might well wish to maintain a significant amount of EU law in force in national law, because it would be in the national interest to do so.”
Before looking at specific health and safety laws that might be amended or repealed after a Brexit, it is worth emphasising two points. First, the EU’s use of a Framework Directive in 1989 supplemented by specific individual directives is similar to the UK’s approach since 1974 of the HSW Act supported by regulations, even if some of the directives are more prescriptive than might have been envisaged under the HSW Act. No proponent of Brexit has suggested moving away from the goal-setting approach of the HSW Act.
Second, though the EU OSH suite is extensive, there has been a significant reduction in recent years in new, widely-applicable EU safety and health legislation and the European Commission is likely to continue along this path. The EU has been looking recently, through initiatives such as the Regulatory Fitness and Performance Programme (REFIT) (bit.ly/22bRH2O), to see whether legislation can be removed, simplified or consolidated.
Potential hit list
An indication of the changes to safety and health regulation that the government might choose to make if the UK voted to leave the EU comes in a 2014 report by the Department for Work and Pensions. The report called on the EU to:
- increase flexibility for member states to determine written risk assessment requirements for “small, low-risk” business
- repeal the artificial optical radiation Directive
- repeal the requirement in the display screen equipment Directive for employers to meet the costs of eye and eyesight tests
- exclude private householders from the duties on construction project clients in the temporary or mobile worksites Directive, implemented as the Construction (Design and Management) Regulations 2015 in the UK
- modify the chemical agents Directive to provide member states with the flexibility to determine in what circumstances dutyholders should provide information on their emergency arrangements to the emergency services
- adapt the safety signs Directive so that these are required only where there are significant hazards
- remove the duplication of provisions in the Framework Directive and “individual” directives relating to risk assessment, health surveillance, protective and preventive services, employee consultation and participation, and the provision of information, training and instruction to employees.
Rhetoric and reality
The government has repeatedly accepted that the HSE has acquitted itself well in Europe, as underlined in a report from the Department for Work and Pensions (DWP) in 2014 by Kim Archer titled Appraisal of HSE’s Approach to Negotiating and Implementing European Legislation (bit.ly/1WzXdMK). This concluded that, when negotiating and implementing recent EU legislative proposals, the HSE “takes an evidence, risk-based and proportionate approach … It is conscious of potential burdens on business and complies with well-regulated governance processes”. The report also found that “the HSE consistently challenged the need for more EU legislation”.
The report also found “little evidence of unjustified gold plating” – when domestic implementation exceeds the requirements of the originating directive. The positive findings echoed those of previous reports from Professor Ragnar Löfstedt in 2011 and Neil Davidson QC in 2006, among others. More recently, the Triennial Review of the HSE, which was carried out by Martin Temple, who is now the executive’s chair, “did not receive any evidence that suggested HSE gold-plated EU legislation”. Temple similarly found examples of the HSE “holding the line against disproportionate proposals from Europe”.
A vote to leave would result in many more Brexiteers in senior ministerial positions who would want to match their rhetoric with action. So, what might they target? Some evidence can be found in the government’s own reports (see Potential hit list box).
The changes listed would make limited inroads into the claimed regulatory burden. Undoubtedly, one of the most likely important changes would be a reduction in the safety and health duties imposed on smaller businesses, such as those with up to five employees. Lord Young’s 2010 review of safety and health law and management for the government called on the European Commission to look at exempting smaller enterprises from some safety and health requirements, and the need to lighten the burden on small businesses has been a frequent refrain in the referendum campaign.
More specifically, the Working Time Regulations 1998 and Agency Worker Regulations 2010 appear most frequently on the “vote leave” campaigners’ list for removal.
Then there are parts of regulations where the UK has “form” in that it has either lost a challenge in the European Court about the adequacy of its implementation or has been forced by the threat of infringement proceedings to remedy shortcomings in its implementation. Particularly important examples here are parts of the Control of Asbestos Regulations 2012 and the Construction (Design and Management) Regulations 2015.
Even with the Working Time Regulations, however, there appears to be ambivalence. Interviewed on BBC Radio 4’s Today programme on 28 April, employment minister Priti Patel refused to confirm that a post-Brexit government would repeal parts or all of the regulations. This is despite the Open Europe think tank estimating the recurring cost to the economy of the regulations at £4.2bn a year, which made it the third most expensive piece of EU legislation (bit.ly/1TchnMl).
“Categorically this [the leave campaign] is not about workers’ rights or rolling back workers’ rights at all,” said Patel. The interviewer, Sarah Montague, interpreted this as an assurance that the government would not target the Working Time Regulations post-Brexit.
Whether this is the case is unclear. Patel was not speaking as the minister for employment but as a proponent of the Vote Leave campaign. The hostile stance of the Conservative government in the early 1990s during the passage of the directive and its use of the opt-out suggest that parts or all of the Working Time Regulations would be up for revision after Brexit.
The need to maintain a strong trading relationship with the EU and the widely-acknowledged strength of the UK’s current regulatory framework are likely to ensure that a “No” vote to remaining in Europe on 23 June would not bring about a dismantling of that framework, or anything like it, though it would open the door for deregulation.