The EU Law (Revocation and Reform) Bill and health and safety
Does the EU Law (Revocation and Reform) Bill spell the end for existing Health and Safety Regulations? Jim Byard explains.
What changes does the new Bill propose and what does this mean in practice?
Workplaces in the UK are some of the safest in Europe – whether measured by workplace injuries per capita or workforce fatalities. This position has not eventuated coincidentally or overnight, but as a consequence of statutory and regulatory protection afforded to employees built over many decades, alongside campaigning Trade Unions (and their solicitors) and the tireless work of the Health and Safety Executive in education, training and enforcement.
Overshadowed massively by changes to taxation announced in the Chancellor’s “mini-budget” on 23 September 2022, the Government has also published its retained EU Law (Revocation and Reform) Bill which has the potential to end all EU derived regulatory protection on Health and Safety issues by the end of 2023 – before the end of this Parliament.
The potential consequences have been described by several commentators as “truly seismic”.
The current position
Despite the advent of Brexit, The European Union (Withdrawal) Act of 2018 gives supremacy to EU Law which has so far been retained.
In terms of health and safety, the EC Directive derived “six pack” Regulations which include but are not limited to The Management Regulations, The Provision and Use of Work Equipment Regulations and The Manual Handling Regulations have all been currently retained- meaning that the health and safety protection afforded to workers in the UK by those Regulations, is currently the same post Brexit as it was pre-Brexit.
What changes does the new Bill propose?
In simple terms, all EU derived subordinate legislation is to be revoked automatically from the end of 2023.
The mechanism in The EU (Withdrawal) Act of 2018 giving supremacy to EU Law will be abolished. It will also allow lower Courts to reference Higher Court decisions to depart from retained EU Law.
It remains open for the Government (it is assumed primarily through the decision making of the Secretary of State for Business) to preserve or retain existing Regulations. This, from 2024 onwards will be known as “assimilated law”.
The “six pack” Management Regulations and other Regulations which are EU derived will, absent any action taken by the UK Government simply cease to exist by the end of 2023.
What does this mean in practice?
At present, we can only speculate whether the Government will choose to retain some or all of the protection afforded by the current Regulations.
The Bill’s impact is also much, much wider than Health and Safety Regulations and will (potentially), impact areas as diverse as food safety, employment rights and consumer protection.
It is also open to conjecture whether the UK Government may seek to extend the 2023 deadline by one or a number of years.
That option may be seen as the pragmatic course to be taken, but it is by no means certain. What it will mean, is months of uncertainty and speculation.
What if the “six pack” Regulations are not retained?
Workers in the UK will still have the protection of The Health and Safety at Work Act [1974], alongside the protection afforded by common law – built up by decades of Judicial precedents set by tort litigation involving workplace accidents and diseases. That is likely to be viewed by most commentators as scant consolation and leading to an erosion of workplace safety.
The reaction to the Bill?
Perhaps understandably, the reaction has been split broadly between those on either side of the Brexit/Remain argument. The supporters of the former see the Bill as being “precisely the point of Brexit”, whilst those on the flip side, point to the “real risk” that all EU derived workplace rights will be abolished.
Others simply regard the Bill as an unnecessary distraction, given the ‘cost of living crisis’, plummeting sterling and surging energy bills. What all are agreed on, is that the potential ramifications are seismic.
Richard Arthur, Head of Trade Union Law of Thompsons solicitors is quoted by the Law Society Gazette (26 September 2022), as stating that;
“The salvation (of EU derived workplace rights), is only available at the whim of the new Secretary of State for Business, Energy and Industrial Strategy”.
Mr Robertson, Constitutional Secretary of the Scottish Government described this as “significantly further undermining devolution” and that (The Bill);
“Carries with it an unacceptably high risk that the law upon which the smooth functioning of the system depends, simply drops off the UK statute book”.
Comment
We are now faced with a period of uncertainty – not knowing if and what level of EU derived Regulation will be retained. Will the Government simply roll the 2023 extension over to allow more time for mature consideration and debate?
The main criticism of the “six pack” Regulations from both industry and compensators, dating back from when it was enacted, in 1993, was that certain Regulations imposed a “strict liability” on employers regardless of fault/negligence. That “ill” has been arguably already cured by Section 69 of The Enterprise Act. Broadly, the current Regulations are welcomed by both sides of the divide -Trade Unions and claimant personal injury Practitioners on the one hand and employers and compensators on the other.
This year sees the fiftieth anniversary of the publication of Lord Robens report on health and safety, which was the precursor to the much admired Health and Safety at Work Act in 1974. It would arguably be a retrograde step if this anniversary was marked by the abolition of an employer’s duty to assess the risk of injury to its workforce.
Jim Byard is a Partner at Weightmans. He specialises in occupational disease cases with particular interest in respiratory disease, work related upper limb disorders and noise induced hearing loss claims. Jim has been involved in much high profile litigation, defending class actions brought by claimants. This article first appeared on the Weightmans website.
