Brexit: How will Article 50 bring triggered effect Health and Safety in this country?

Tuesday, April 25, 2017


The process of exiting the EU formally began on 29 March 2017 when Article 50 was triggered.

Article 50 has raised extensive questions around health and safety legislation.

Introduction – Business as Usual…….

The decision to leave the European Union has caused considerable uncertainty in the health and safety community. The reality is however, that currently it is very much business as usual. Whilst Article 50 may be a distraction, Safety Smart is of the opinion that employers need to try to continue as normal until more clarity is provided.

Legislation relating to health and safety as it stands still applies to all employers and will continue to do so to a greater or lesser extent. Whilst there may be some change in due course in terms of deregulation of this highly regulated area of the law, this is likely to be some way away, so for now life in the world of health and safety goes on as before.

Summary of Current Position

• The UK's formal timetable for leaving the EU has finally started, but there will not be immediate changes in law or regulation.

• Formal service of Article 50 notice begins a timetable of negotiations, which after two years means that the member serving notice will leave the EU and EU law will cease to apply to the UK.

• As at 30 March 2019 it is now possible to say that the UK is expected to no longer be a member of the EU and will be independent of the EU by that time.

Current Legal Position

Whilst a timetable for exit has been triggered, nothing else has changed legally or practically, so EU law continues to apply in the UK. Some policies and attitudes of enforcement agencies may change to some extent in light of the Article 50 process, but technically the law remains the same.

UK Courts are required to apply EU law as before until the point of clarification of negotiations into what a new regime will be. This is not expected to be clear until the end of the two year negotiation period.

The UK government has stated that businesses will have to learn to live with the uncertainty that this creates.

What will happen to UK law following exit?

The UK government is preparing the so-called Great Repeal Bill to replicate into UK law at the moment of EU exit all existing provisions of EU law that have underpinned the legal system in the UK with UK enforcement.

Analysis

Many health and safety experts say that Brexit will have very little effect on UK health and safety, where others say the change will be unprecedented. At a recent Westminster Legal Policy Forum discussing Brexit, many opposing views were shared. Michael Mealing the Chairman of the Employment Policy Unit of the Federation of Small Businesses said the following:

“We see the post Brexit situation as an opportunity. What we seek to do in the future - and this is a process that will take time - is to improve the regulatory experience for small businesses…………….We are anticipating the review of the intervention scheme from the HSE – what we want to see is a transparent approach where the regulatory authorities are more supportive, rather than acting as policeman.”

In a controversial letter to MPs Simon Boyd, the head of REID Steel, called for a “serious review” of safety laws following Brexit. He said that his company;

“has steadily been losing its advantage over other competing countries as a result of changes forced upon us through damaging directives and regulations that have come about as a result of our membership of the EU.”

However, some health and safety professionals are concerned that workers’ rights and environmental standards may be undermined once the protection of EU law is removed.

Conclusion

• Safety Smart’s view is that in reality, even after the exit of the UK from the EU we will not see extensive changes to the current position. We are considered internationally to have very high expectations and standards when it comes to health and safety. Our construction and manufacturing industries are particularly proud of this long held view.

• There may be some minor further deregulation for the lighter industries, but we would be surprised to see a relaxing of standards and legal expectations in the harder industries in the light of the last 14 months of prosecutions under the new sentencing regime.

• The new health and safety sentencing regime has exemplified that when it comes to Parliament’s and the Courts’ expectations, employers can ill afford to take a relaxed attitude to their health and safety responsibilities. The new era for health and safety post the new sentencing guidelines is anything but laid back.

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