Government publishes draft regs to adapt OSH law post-Brexit
Monday 30th July 2018
From the archive: Just so you know, this article is more than 3 years old.
The Health and Safety (Amendment) (EU Exit) Regulations 2018 are designed to ensure that European Union-derived health and safety protections will continue in domestic law after the UK leaves the EU. The government has said that, in the case of some protections, technical amendments to existing legislation will be required to ensure effective operation.
The regulations, which have been made under powers in s 8 of the EU (Withdrawal) Act 2018 (EUWA), will amend 11 sets of regulations and one directly acting EU regulation and include changes to the Control of Major Accident Hazards Regulations 2015; the Control of Substances Hazardous to Health Regulations 2002; the Offshore Installations (Offshore Safety Directive) (Safety Case etc.) Regulations 2015; and the Offshore Installations (Prevention of Fire and Explosion, and Emergency Response) Regulations 1995.
The Department for Work and Pensions laid the draft statutory instrument before parliamentary scrutiny committees last week as part of the "parliamentary sifting mechanism" contained in the EUWA.
The EUWA gives government ministers the power to decide whether the regulations to ensure legal provisions based on EU law continue to be effective once the UK leaves are "affirmative" instruments, which would require a parliamentary debate. Ministers can also decide if they should be "negative" instruments, which would mean they can come into force without any debate.
The "parliamentary sift" which ends on 11 October allows the Joint Committee on Statutory Instruments and the Committees on the UK's exit from the European Union to recommend that a proposed negative instrument should be upgraded to an affirmative instrument. Ministers do not have to accept such a recommendation, but the government has indicated that if both committees propose an upgrade, minister of state for disabled people, health and work Sarah Newton would accept it. The minister has said that the government does "not see any reason why [the regulations] should not be subject to the negative procedure".
One of the most significant amendments is to the Control of Major Accident Hazards Regulations 2015. Regulations 17 and 20(1) require specified information to be made available to other member states where they could be impacted by a major accident. Although this will no longer apply from exit day, the UK would still be under an international obligation to share certain information around potential transboundary effects of major accidents through being party to the UNECE Transboundary Effects of Industrial Accidents Convention (TEIA).
Another key amendment relates to regulation 26(3) which places a duty on the competent authority to provide the European Commission (EC) with specified information about major accidents, which meet the criteria in schedule 5, within a specific timeframe. The government proposes that this requirement should be removed. It argues that under the UK's membership of the Organisation for Economic Co-operation and Development and as a party to the UNECE TEA Convention, the UK would share information for lessons learned and international best practice purposes using the EC's database.
Amendments to the Control of Substances Hazardous to Health Regulations 2002 include allowing the Health and Safety Executive (HSE) to make exemptions, by a certificate in writing, from the prohibitions imposed on the import of certain substances and articles from outside the European Economic Area. Currently, exemptions are only permitted by article 9 of Directive 98/24/EC, which sets out the circumstances for granting exemptions and the information provided by the employer making the request.
In the offshore sector, regulation 32 of the Offshore Installations (Offshore Safety Directive) (Safety Case etc.) Regulations 2015, requires the exchange of knowledge, information and experience between the competent authority -- the UK Health and Safety Executive -- and authorities in other member states and through the European Union Offshore Oil and Gas Authorities Group (EUOAG). The proposed amendments would include removing the competent authority's duty to share information with other member states and the EUOAG from exit day.
Regulation 34 of the same legislation requires UK-registered companies that operate outside the EU to report, on request from the competent authority, the circumstances of any major incident in which they have been involved. The proposed amendment would ensure that once the UK leaves the EU, the regulation 34 exclusion for operations in the EU which are reported under other requirements in the Offshore Installations (Offshore Safety Directive) (Safety Case etc.) Regulations 2015 continue to apply to Great Britain's waters.
Regulation 22 of the Offshore Installations (Prevention of Fire and Explosion, and Emergency Response) Regulations 1995 allows the HSE to grant installations exemption certificates from the regulations' requirements subject to "any of the provisions imposed by the 'European Union' in respect of the encouragement of improvements in the safety and health of workers at work-¦". Under the proposals, the power to issue exemption certificates will only be constrained by provisions imposed by the EU up to exit day.
The agreement between the government and the construction sector focuses on innovation, arguing that digital techniques and offsite manufacture will improve the safety of buildings (see our feature Here’s one I prepared earlier).
The Health and Safety Executive (HSE) visited a site in Preston, Lancashire, in June 2015, where the client, Sherwood Homes, had appointed a principal contractor (PC) to plan, manage and carry out the conversion of a farmhouse and barns into several homes. The inspection found a range of issues, including one labourer working on a poorly erected tower scaffold with no handrail, and another using an angle grinder on the stonework without dust suppression, local exhaust ventilation, or respiratory protective equipment.
Manchester Crown Court was told that Riaz Ahmad had hired a group of workers, who had no experience in construction, to demolish a property in Oldham. A Health and Safety Executive (HSE) inspector visited the site on 11 August 2017 after it received a phone call from Oldham Metropolitan Borough Council’s building control department. The inspector found almost all the internal walls and roof supports had been removed and served a prohibition notice on Ahmad preventing any further work and closed a major road that ran past the building.
Ikon ceased trading two months after 22-year-old Luke Allen died on 15 March after falling through the roof of the former sports café building in Bristol city centre. Allen was employed by a subcontractor on the project for which Ikon was the main contractor.
The All-Party Parliamentary Group on Occupational Safety and Health’s latest report notes that FFI, which allows the Health and Safety Executive (HSE) to charge dutyholders £129 an hour for work to notify them of material breaches found during inspections, has “proven effective in achieving the overarching policy aim of shifting the cost of health and safety regulation from the public purse to those businesses that break health and safety laws”.
A Belfast-based Risk & Compliance software provider has been collaborating with the Health and Safety Executive (HSE) and construction giant Costain as part of an ongoing project to unlock artificial intelligence’s (AI) potential in improving the management of risks on worksites.
Safety interventions should be practicable and cost-effective, but too much of an imbalance towards safety does not make economic sense for employers, argues Geoff Vaughan, who suggests ‘gross disproportion’ provides a practical limit.
A proposed new law aims to revoke EU-derived legislation, including life-saving protections, by December 2023, unless specifically kept or replaced – Richard Jones CFIOSH explains how OSH practitioners can get involved.