Coming around again: why Brexit's anti-red-tape agenda is nothing new

Wednesday, 6th July 2016

The Brexit decision has given rise to speculation on the implications for health and safety, environmental and other regulatory law derived from the European Union (other examples including food safety, labelling, product specification, and chemical safety). After all, one of the arguments of the 'Leave' campaign was the desire to reduce the EU ‘red tape' that it argued stifles the UK entrepreneurial spirit.

So will there be a bonfire of regulations following the narrow leave result? As with much of the debate about exactly how and when the UK will leave the EU, there is no clear easy answer. However, it is fairly clear that there will be no immediate effect on health, safety, environmental and other regulatory law.

In the first place, the UK has up to two years to extricate itself from the EU after the notice of withdrawal. The current political position gives no clear timetable as to when article 50 will be activated. In that sense, the clock has not even started to tick. Some believe that a 2 year exit timescale to be wildly optimistic as any negotiations will be painstaking in their desire to ensure that any damage to UK businesses is kept to a minimum. Therefore, it is being suggested that the provisions for extending this two year period would be invoked – if it happens, the UK's withdrawal could be a long and drawn out affair.

Another reason which suggests that there will be no immediate effect on regulatory law is the need for the UK to negotiate access to markets that are subject to the EU law in a similar way to non-EU members, such as Norway, Switzerland and Iceland. These states are part of the European Free Trade Association ("EFTA"), which have become part of the European Economic Area ("EEA"), which has similar trading status as EU members in return for implementing EU directives, including those for health and safety.

The biggest question is whether there is an appetite to ditch EU-derived health and safety and environmental law? Before becoming a solicitor I was an inspector in the HSE during a period in the early 1990s when the government was of a similar red-tape-slashing disposition, and similarly believed that health and safety law caused too many restrictions to industry. There was increased sensitivity at the time following the implementation of six sets of wide-ranging EU-derived regulations (the 'six pack'), that gave the appearance of a European health and safety onslaught.

In fact, these regulations acted as a modernising process, moving to a more sensible risk- based approach to health and safety, instead of the prescriptive approach of the historic Factories Act. Following an extensive review of the law by 'hawkish' ministers, it was decided that very little of the existing legislation was a problem, resulting in minimal change.

This pattern was, to some extent, repeated with the investigation in 2011 by Professor Ragnar Loftstedt whose report to similarly minded 'anti-red tape' government on the state of health and safety law resulted again in a general thumbs up for the regulatory regime and minimal change. Also, the HSE came out in a favourable light following its triennial review by Martin Temple in 2014.

It sometimes seems that the provenance of a law can distort the understanding of the value of what it is trying to achieve. After all, the health and safety regulations are there to reduce ill-health and death in the workplace - not many people will disagree with such aims. Similar points can be made for environmental, food safety and other regulatory law. Further, it is incorrect to see any perceived proliferation of health and safety as a European development. The Health and Safety at Work Act remains fundamental to the UK's regulatory framework; this Act was put in place in 1974 when the EU was solely an economic common market, and did not exist as we know it today. The first election of the European Parliament would not take place for another 5 years, and the EU itself would not be formed until 1992.

One area in question is how national courts may end up interpreting written legislation that has been explored by the European Court of Justice ("ECJ"). The ECJ has been a source of irritation to commentators in the past and the Leave campaign has had it in its sights. Our Courts might seek to forge a new path, but the outcome is likely to depend heavily on the UKs "new deal" when it comes to trade and access to the single market. If regulatory compliance (whether that is food labelling, traceability, waste control etc.) is a necessary part of access to the single market, we may see a continued adherence to ECJ rulings.

One last point, it would appear that as a nation, the UK is comfortable with its degree of protection for its workers and the environment. Despite most people's enjoyment of the phrase ''it's health and safety gone mad", it is likely that there would be widespread unease if there was a perception that a change in the EU status would lead to a dilution of standards of protection in health and safety. The same disquiet is likely to be felt in other for other regulatory areas that protect quality of life such as environment, food safety, consumer protection etc.  I believe that this attitude, along with the administrative problems described above, will prevent great change in the regulatory landscape anytime soon.

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