Opinion

Brexit: what will happen to OSH regulation?

wustemann_louis_2
Former editor, IOSH Magazine

The day after the UK’s vote last Thursday to leave the European Union ex-London mayor and Conservative leadership candidate Boris Johnson said withdrawal from the union gives the UK the “glorious opportunity to set its own laws”. 

How much of our worker protection legislation will be reset depends on a combination of economic and political necessity.

There is no doubting the union’s influence on our safety and health law. The think tank Open Europe calculated that two-thirds of OSH-related regulations introduced between 1997 and 2009 originated in the EU.

But there are good reasons not to unpick our framework, however it was acquired and however “glorious” the opportunity for change.

We will probably see no attempt to amend most of the standards and thresholds that came to us via directives – there is enough research supporting metrics such as the 85dBA and 80dBA action levels for workplace noise, to make them unlikely targets for reform.

They have also contributed to our improving OSH metrics. IOSH’s head of policy and public affairs Richard Jones responded to the vote to leave saying: “Now we’re exiting, it’s vital the UK continues to apply our successful risk-based health and safety system, which includes laws from EU directives, because it’s been found to be fit for purpose by several independent reviews and is respected and imitated across the world. IOSH will continue to promote agreed international standards and to defend against any erosion of health and safety protections.”

The former chair of the UK Parliament’s EU scrutiny committee, Michael Connarty, made much the same point when he noted 90% of EU legislation in force in the UK would probably have been introduced even without our obligations as a member state.

So what might we change? As Howard Fidderman pointed out in his recent article for this magazine, likely candidates for eventual revision or abolition include the Construction (Design and Management) Regulations - to remove duties for domestic clients, the Optical Radiation Regulations, the Health and Safety (Safety Signs and Signals) Regulations - increasing the hazard threshold that requires a warning and removing the requirement in the Display Screen Equipment Regulations for employers to pay for workers’ eye tests.

The government has also expressed an interest in changing requirements for written risk assessments for businesses in what it sees as low-risk sectors and it has a longstanding irritation with the EU-derived Working Time Regulations.

Any further attempts to reduce protection would most likely be triggered only if the UK’s economy was threatened by a decline in trade and inward investment, deregulation would be one way to try to try to restore our position as an attractive base off the European mainland, speaking the international business lingua franca. That’s a position we will otherwise cede to Ireland.

(A period of economic contraction could also result in more cuts for the UK’s main OSH regulator, the Health and Safety Executive, which is already due to have lost 47% of its government grant over the 10 years to 2020.)

These scenarios assume we retain a conservative government. It’s hard to imagine a Labour administration would have health and safety deregulation on its agenda.

The other major factor influencing how much room we have to change safety and health regulation will be how we fare in negotiating an EU trade deal; we need to maintain favourable terms as almost 13% of our GDP depends on exports to the remaining 27 states.

Polling before the vote suggested a majority of UK people favoured a similar arrangement as that Norway enjoys if we left. The conditions of such a deal, granting us membership of the European Economic Area (EEA) with continued access to the free market in goods and services, would commit us to maintain EU standards in so-called “flanking” areas, including employment conditions such as OSH law. The EEA option may prove unacceptable to those who voted to leave, as one of the “four freedoms” the other regulatory sectors flank is freedom of movement of people between countries; something many Brexit voters were keen to curtail.

Another option would be an associative relationship such as that enjoyed by Switzerland, which involves membership of the European Free Trade Association and would allow us to sign bilateral agreements with the union (Switzerland has more than 100 of these). The Swiss voted in favour of introducing curbs on the free movement of EU citizens in and out of their country two years ago but are having trouble implementing them because the EU is threatening to unravel the trade agreements if they do. The division appearing between those who led the leave campaign in the UK who say we cannot do without immigration curbs and those who say we cannot do without free trade with the EU 27 could lead us to a similar impasse.

Any looser form of association, like that between Turkey and the EU, for instance would give us more freedom. But it could also lose us favourable terms for providing services to the member states and threaten our £60 billion annual trade surplus in financial services and insurance.

However these variables align, what is sure is that nothing will happen soon. As I write, there is not even any consensus on how and when the EU authorities will be notified formally that the UK intends to secede.

The UK’s legislators are likely to be tied up for a minimum of two years redefining our relationship with the European bloc and in multiple trade talks with other states. When it does get round to domestic changes, the government will probably have to prioritise the leave campaign’s promises such as ending the European Court of Justice’s jurisdiction over national security and abolishing VAT on domestic energy.

Brexit may give us more control over OSH law, trade agreements permitting, but it will be some time before we exercise that control and then probably to a very limited extent.

 

Louis Wustemann is former editor, IOSH Magazine. He was previously editor of Health and Safety at Work magazine and Environment in Business. He has written, edited and consulted on health and safety, environmental and employment matters for more than 25 years.

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Comments

  • Time to re-write the rather

    Permalink Submitted by DT on 29 June 2016 - 02:07 pm

    Time to re-write the rather archaic H&SaWAct 1974 IMO

    reply
    • Archaic? In what way? Apart

      Permalink Submitted by safetylady on 2 July 2016 - 05:27 pm

      Archaic? In what way? Apart from the use of the 'training' word, which nowadays we would term 'learning', with a link to competency, and the requirement to have a safety policy (with little benefit these days) I can see no way to improve the main elements of HSAWA. It is timeless, and flexible. A big fluffy blanket - covers everything but only loosely. Specificity comes only from regulations made under it. It is as valid for nanotechnology as for machinery. What would you have as you suggest a rewrite rather than scrapping? It boils down to:
      1) Employers to make their own rules to suit their risks.
      2) Employees to follow those rules, and look after themselves. All sfairp. Job done!

      reply
  • another Anglocentric article.

    Permalink Submitted by Julian Davis on 29 June 2016 - 02:25 pm

    another Anglocentric article......

    reply
  • Why waste vast amounts of

    Permalink Submitted by Lynn Williams on 29 June 2016 - 02:56 pm

    Why waste vast amounts of time and money when we can simply UK rubber stamp a similar version of EU safety policy that is tried , tested and fit for purpose.

    reply
  • It is worth considering the

    Permalink Submitted by Nicholas Paul (Eur Ing. Nicholas Paul CEng, MSc, MIOSH, FIAg on 29 June 2016 - 03:00 pm

    It is worth considering the implications of the Machinery Directive and CE marking.
    The CE mark is only valid within the EU member states and so may (depending on any new trade agreement) no longer be worth anything within the UK. Currently any safety issues found with CE marked equipment is the responsibility of the EU based 'responsible person'. As the UK may find itself outside the EU there would no longer be any legal recourse or responsibility for equipment or machinery purchased from the EU.
    This is a critical are for discussion that I'm happy to advise on and help with.
    Eur Ing. Nicholas J Paul CEng, MSc, MIOSH, FIAgrE

    reply
  • Really informative article,

    Permalink Submitted by Elizabeth Williams on 29 June 2016 - 03:09 pm

    Really informative article, actually makes the situation very clear.

    reply
  • and it couldnt have come a

    Permalink Submitted by steve grimes on 29 June 2016 - 03:33 pm

    and it couldnt have come a moment too soon. harmonised standards are a joke as they may look harmonised, but largely ignored or not enforced in continental europe.
    We now have the opportunity to build our own pragmatic, sensible safety legislation

    reply
  • Here is the text of an e-mail

    Permalink Submitted by chris@enviroderm.co.uk on 29 June 2016 - 04:29 pm

    Here is the text of an e-mail to my MP his morning:
    If what the Clerk of the House of Commons, Lord Lester of Horne Hill and Professor Hamnett have written in yesterday’s Times is correct, no decision can be taken to leave the EU without this first having been agreed by Parliament. Thus much of what is happening now regarding Brexit has to be based on the assumption that Parliament will accept the validity of the referendum.
    Given that day by day it is becoming increasingly clear that many of the statements made during the referendum campaign by both sides, but particularly by those promoting a ‘leave’ decision, are invalid is there not a case for Parliament to decide that the population of this country should be given a second chance to decide whether to remain in the EU based on real facts and not fallacies and misleading statements?
    We should also make it clear at once to other EU members that it is not yet inevitable that the U.K. will activate article 50 of the Lisbon Treaty, at least not until Parliament has decided that this is what should happen.
    I do not believe that the full potential consequences of our seeking to leave the EU have become apparent. For example, in my work in occupational health I have close contact with those manufacturing and marketing chemicals. Under the REACH regulations, with certain exceptions, such as cosmetics and biocides, any chemicals sold in the EU, whether manufactured there or imported from outside the EU, must be registered with the European Chemicals Agency (ECHA) in Helsinki. After Germany the U.K. has the largest number of such registrations, indicating the importance of the U.K. chemical industry. Registration must be made and held by an organisation located within the EU. At present any U.K. manufacturer complies with this requirement. However, should the U.K. leave the EU then technically all registrations held by U.K. companies could be declared invalid. It is not certain that those companies in the U.K. holding registrations would be allowed to transfer them to a newly appointed sole representative within the EU. This could have very severe consequences for the U.K. chemical industry, including those who incorporate such chemicals into their products, such as paint manufacturers.
    I believe that there is a strong case for Parliament to declare that the referendum was held based on misleading and fallacious information and that a second referendum should be held with some system in place to ensure that any claims and counter-claims by the proponents of both sides be subjected to independent examination in the same way that claims by those marketing products and services have to comply with Trading Standards. This is particularly important bearing in mind that the result was by no means an overwhelming majority in favour of leaving.

    reply
  • Scotland may not leave. This

    Permalink Submitted by CT on 29 June 2016 - 05:43 pm

    Scotland may not leave. This adds to the confusion around the potential regulatory and regulator changes.

    reply
  • - very much depends on what

    Permalink Submitted by Alasdair Gillies on 30 June 2016 - 03:01 pm

    - very much depends on what happens in Scotland - the Scottish people voted Remain12

    reply
  • We are leaving the EU.

    Permalink Submitted by Phil on 13 July 2016 - 01:54 pm

    We are leaving the EU.

    When I "Did my NEBOSH" the Statue law process was rote learned. Readings, Ascent, Act etc. Therefore nothing needs to change as nothing has changed regarding this legal process that evolved since the middle ages. All regulations currently in place have come about by this process under direct Acts or enabling Acts so surely there is no issue (The queen will sort this out if any confusion remains as she will again be our head of state).

    The issue about selling chemicals in the EU just needs to think about how we buy US chemicals here (EU) now. It is straightforward enough so selling in EU once UK is out we will be on a par with the US.

    People keep going on about the "Norway or Sweden" models. How about the US model where we are OUT of EU. Yes OUT. That's what has been decided by our great country. Step back from the blinkered view we have had imposed for so many years and do our own thing. As for CE marks, the Chinese Export mark serves China well enough and effectively made the EU CE mark worthless. Personally I prefer the British Kitemark anyway. Everyone regarded that as a mark of quality and safety so let's adopt that back into our safety requirements. Yes we loose free movement of our goods without CE marking, but that is because we are leaving the EU. Really what is the problem? There isn't one is there.

    UK are miles ahead of EU27 in terms of incident rates and compliance so there it is. The main focus is as ever on making sure we all are as safe as reasonably practicable so now we have the meddling unelected officials out of the way let's press on and make our workplaces even safer.

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  • They key issue is the single

    Permalink Submitted by Leon Kingsford on 15 July 2016 - 08:21 am

    They key issue is the single market and for British manufacturers to remain compliant with the essential health and safety requirements set out in 2006/42/EC - this will be key in negotiating any trade agreements with the EU.
    Because we are currently compliant this will greatly reduce the time in negotiating such deals. Should we ditch the EU legislation (which works very well) we will have to go through the laborious process of ensuring compliance so we can trade with the single market which , as Canada has shown us can take years..
    If it ain't broke don't try to fix it !

    reply

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