Health, Welfare and the EU

Health, Welfare and the EU

Posted on: 04/07/2016

The recent referendum result in the UK to leave the constraints of centralised European administration may have been in response to a number of concerns felt by the electorate. ‘Take back control’ seems to have been a clarion call for the Leave camp, but what control was being referred to, or how it is to be wrested back is not yet clear. Certainly, anyone visiting the UK from outer space recently may have deduced that, from the Government’s and the media’s perspective, the black cloud of relentless health and safety regulation drifting across the English Channel was sapping business of precious funds and resources. But is this even vaguely true?

It is true that the current Government has been unusually responsive to populist conceptions about ‘elf an’ safety, instigating as it did both the Young Report into red tape in 2010 and the Löfstedt Report (‘Reclaiming health and safety for all’) in 2011. It is also true that the British media, always happy to exploit a story irrespective of the facts, have blamed safety legislation for everything from a ban on playing conkers to trapeze artists being told to wear hard hats. This, combined with a background level of scepticism about Europe, has perhaps inevitably led to palpable frustration with the clipboard warriors of the safety profession.

In truth, roughly two thirds of safety legislation is derived from, or influenced by, European Regulations or Directives, with the rest stemming from our very own, home grown Health and Safety at Work etc. Act 1974 (HSW) - a sort of Magna Carta for the safety profession. And one of the conclusions of Professor Löfstedt’s report in 2011 was that UK legislative interpretations of EU Directives had ‘gold plated’ the requirements – that is to say that we had gone above and beyond what the European-derived legislation demanded (the Construction Regulations of 2007 were a case in point). On top of that, Löfstedt also concluded that interpretation and implementation of some legislation was beyond the letter of the law, meaning some businesses were over-compensating against potential breaches. Even Dame Judith Hackett, until recently the Chair of the HSE, has spoken often of her sense of frustration that businesses lose out through ill-proportioned advice from health and safety practitioners.

It seems, therefore, that despite what many may believe – or at least wish to believe – much of the perceived burden of the supposedly over-ambitious safety culture imposed by Europe is actually directly derived from our own Government, civil servants, business leaders and safety professionals. Which perhaps begs the question, will this get any better outside of Europe?

Obviously, at the moment, there are a great many questions that need answering, and there is an enormous amount of negotiation to be done over the coming months and years. We may feel inclined to the view that the negotiators may have other things on their minds before getting around to possibly reducing safety legislation. The current Government has shown its hand though with a Department for Work and Pensions’ report in 2014 calling for EU negotiation on legislation connected with working time, optical radiation, construction and safety signage, to name a few. One obstacle to this is that some of this legislation has been enacted under the European Communities Act 1972 (ECA), which essentially allows European Regulations to pass directly into law. Abolishing the ECA would require the immediate replacement of affected subordinate legislation, and there will be many, many other things to worry about in the immediacy. The UK’s civil service is about to become very, very busy.

In essence, at this precise moment, nothing changes. All legislation in the UK, irrespective of it’s derivation, is law once it receives Royal Assent and can only become ‘not law’ by being repealed, which takes time. Once the UK officially declares its intent to leave the EU we enter a new and uncertain phase where technically the UK is still beholden to implement European law, but will have no say in its creation. The difficulty for everyone at the negotiating table is that no-one has done this before, and therefore no-one is quite sure how this is supposed to go…

Health, safety and welfare in the UK is actually remarkably well-respected around the world, and is often held up as a template for other countries to follow, similar to our system of democracy, our Bill of Rights and our work ethos. The HSW has been instrumental in reducing the incidences of worker fatalities and the improvement of working conditions over the last forty-plus years. The safety regulator, and the wider profession, have endured a fairly sustained period of change and scrutiny over the last six years and it would be encouraging to think that we may actually be heading for a period of stability from which we can all benefit.

It certainly seems that if anyone were thinking that a vote to ‘Leave’ would end the need for safety glasses when decorating the Christmas tree may still have cause for complaint; at least for the foreseeable future anyway.

If you want to know how leaving the EU will affect your business please contact us.