Brexit vigilance still needed on health and safety

New regulations, ‘The Health and Safety (Amendment) (EU Exit) Regulations 2018’, were laid before Parliament on July 24. They will come into force on the day the UK exits the European Union (EU) and are designed to ensure continuity of legal protection for workers and others from work-related risks. In consequence several people are arguing that Brexit poses no threat to the UK health and safety system. In practical terms the new regulations are part of a whole series of transitional measures necessary to allow the Prime Ministers’ Chequers compromise to move ahead (if that eventually proves possible given all individual EU Member States' views and splits in our main political parties).

So what is proposed is ‘no change’ – but it needs to be remembered that while Britain is still in the EU, we are part of a common set of rules. Once we are outside its legal framework, those who favour a hard Brexit – and do so because they want to free the UK from the alleged regulatory shackles of the 'EU behemoth' – may want to reopen the case for deregulating UK health and safety. That alleged Brussels ‘monster’ might in fact turn out to have been more of a friend than we realised, because although it was at times pedantic and over-prescriptive, it nevertheless stopped us lurching away from agreed norms and standards. And within the EU framework the benefits of UK H&S wisdom and ideas filtered through to the other Member States. As in so many other areas in the EU, in H&S it’s been a two way street.

Outside, what guarantee is there that the legal framework that we have in the HSW Act and its subsidiary regulations (which is still backed by the EU H&S Framework Directive until leaving day), will not come under attack again by hard Brexiteers and many others who continue to see health and safety regulation as a 'burden on business’? To what extent will the degree of regulation in this area, as in many others, come under strain perhaps as we establish new trading relationships with other nations, not all of which share our EU-backed standards?

The health and safety community will need to remain alert and study the small print of future trade deals.

It is worth stepping back for a moment and remembering where EU H&S law came from, for it was during the preparatory work to create the European single market that health and safety laws and standards were identified early on as among matters that needed to be harmonised between all members of the European Union.

In 1985, Sir Arthur Cockfield, one of the single market’s main architects, wrote and published a White Paper identifying 300 measures that needed to be addressed in order to complete a single market operating across all EU Member States. In that list, varying health and safety standards – for example, for articles, substances, products and equipment across Europe – were identified as important ‘non-tariff barriers to trade’ that needed to be harmonised. And as health and safety specialists know, action on this issue led in time to the harmonised system of standards-making that we have today under the umbrella of CEN/CENELEC.

The other dialogue that was in play at the same time was on the political front. Both employers’ organisations and trade unions in Europe, that were committed to the social partnership model of the EU, were saying that harmonisation of health and safety needed to involve far more than just common product standards. They agreed it would be necessary to provide a common standard of worker protection across Europe, not least to prevent what was called ‘social dumping’ (capital chasing lowest employment standards and costs). Thus it was agreed there needed to be a common framework of health and safety law under which all employers in the European Union would have to guarantee worker protection to the same standards.

We need to remember that this was the origin of the Health and Safety Framework Directive (EC 89/391) and its accompanying ‘six pack’ of European health and safety regulations under which Member States have had to build the approximation of their laws and regulations: health and safety management, machinery safety, manual handling, personal protective equipment, workplace health and safety and welfare provisions, and visual display units. As time has gone on, that list of areas for health and safety legal harmonisation has grown to embrace a much longer list of hazards and issues, and a permanent consultative framework has emerged along with a special European Institute (EU-OSHA) based in Bilbao to spread good practice.

Britain, with its long tradition of highly effective health and safety regulation, was a keen supporter and implementer of EU health and safety legal harmonisation, although sometimes there were points of difference on issues such as scope, the degree of prescription and the question of proportionality of measures to risk.

Some Brexiteers have been keen to push the view that all our health and safety laws have emanated from Brussels. The majority, of course, were in place long before the creation of the single market. But what is not mentioned so often is that many EU directives, such as those dealing, for example, with health and safety management and construction health and safety, emanated initially in draft form from the UK, being based on the results of public consultation on these topics by the Health and Safety Executive (HSE).

Of course, Britain with its Anglo-Saxon (as opposed to Roman) legal base, had to fight hard within the EU (and eventually won the right) to retain the qualification of ‘reasonable practicability’ to duties in our health and safety law. We were able to show the European Court of Justice that, while in our system, time, trouble and money could be taken into account in determining the extent of compliance by employers with specific measures, the UK approach in practice still guaranteed workers a very high level of protection when compared with practices in other EU Member States.

Indeed, when compared with most of the other 27 Member States, Britain has a very good worker safety (although not perhaps occupational health) record. Despite the widespread mocking of health and safety in parts of the media and moves to deregulate to cut health and safety ‘red tape’ (that allegedly poses ‘a burden on business’), good standards of health and safety remain a core value espoused by the leaders of most major businesses in the UK, including those with headquarters outside our shores.

So with Brexit around the corner, on the face of things, laws protecting vital issues such as workers’ rights, food safety and the environment and other existing EU-based health and safety laws, will remain in place.

But as the great ancient Greek philosopher Heraclitus observed: “There is nothing permanent except change”. Nothing stands still. No one should assume that in the post-Brexit climate the detail of our hard-won, evidence-based standards of health and safety will not come under pressure as the Government proposes deregulation once more, to make Britain a more attractive place for inward investment by other countries that do not share our commitment to such high standards, and thus want to reduce costs and have more ‘flexibility’. 

Will incoming investors ask for relaxations of standards like those controlling noise, vibration, or airborne dusts like silica or asbestos? Freed from the EU, what is there to stop us having to accept lower safety standards for plant and equipment? Of course that is not to say that inside the EU there was never a political tussle over these kinds of issues, but it was attenuated by science and by ‘social dialogue’. When we are eventually outside the EU framework, however, we will be on our own.

And if we do agree to trim back on health and safety, how will our EU partners, with whom we still want to have a good trading relationship, react? Will they accept a return to ‘social dumping’ in relation to matters like health and safety when they themselves as Member States are all still bound to observe higher common EU norms? 

So far no alarm bells seem to be ringing, but the health and safety community needs to remain alert and study the small print in future trade deals. With our values and expertise in this key area, it is we here in Britain who should be insisting that all our future trading partners come up to our high standards of health and safety, not the other way around. Health and safety has gone global. There can be no going backwards.

Roger Bibbings, partnership consultant