This article was published prior to the publication of the post-Brexit agreement between the UK and EU which covers the relationship between the UK and EU following the end of the implementation period (commonly referred to as the “transition period”) created by the European Union (Withdrawal Agreement) Act 2020, and should be read in that context.
Claimant and Defendant lawyers are used to applying many EU-based regulations and Directives to personal injury claims. How could Brexit affect legal remedies for UK citizens?
EU Directives are legal acts provided for in the EU Treaty. They oblige EU Member States to transpose them into national law within a set deadline. They set out minimum requirements and fundamental principles, often then outlined into more specific EU Regulations.
EU Regulations are fixed into law by Statutory Instruments. These are a form of legislation that allow the provisions of an Act of Parliament (e.g. the Health and Safety at Work Act 1974) to be implemented without Parliament having to pass a new Act.
Some examples of how the EU Directives and Regulations currently apply to personal injury claims are as follows:
Accidents Abroad: Directives exist to protect victims of uninsured or untraced drivers when they suffer an accident abroad. Regulations also exist to allow accident victims to sue Tour Operators when they suffer an accident abroad - effectively bringing the claim back to be heard in the UK. The European Health Insurance Card scheme gives the right to access state-provided healthcare during a temporary stay in another European Economic Area. This can be very helpful for holiday accident victims, regardless of any travel insurance cover they may have.
Health and Safety at Work: For example, the UK passed the 1974 Health and Safety at Work Act following on from the European Framework Directive on Safety and Health at Work adopted in 1989. That Directive was a substantial milestone in improving safety and health at work. It guarantees minimum safety and health requirements throughout Europe and launched the framework for our more recent health and safety legislation. For example, the "six pack" of work-related Regulations that came into force in 1992 flowed from that Directive.
Faulty goods: Directives and Regulations also provide consumer protection when buying goods and services. For example, product safety is covered by the Consumer Protection Act 1987 (and its associated regulations) which was passed following an EU Directive in 1985 and provides strict liability against producers for defective products.
Assuming the Referendum majority vote is to leave the EU, the UK would then notify the European Council of its decision to leave, pursuant to Article 50(2) of the Treaty on European Union, and then start negotiating a withdrawal agreement with the EU. The aim would be to reach an agreement within two years, but if no agreement is reached the withdrawal would become effective in any event (unless an extension of time can be negotiated).
A two year exit is not long. In the interim it would be difficult for businesses to know how they will be affected in the medium to long term and strategy planning becomes difficult for employers, businesses and public sector organisations alike.
If Britain were to leave the EU the opportunity arises to amend our legislation. The question is what political pressure will exist to amend current laws that are tied to the EU? Some will see many regulations provide unnecessary "gold plated" protection for workers and consumers which stifle competition and growth. The current UK government has, for instance, already stated that it wants to reduce existing EU protections such as removing the requirement for employers to provide eyesight tests for display screen equipment users, or be required to produce written risk assessments for small, low-risk businesses.
Some, on the other hand, will regard EU-led employment protection as a vital cornerstone of our current labour laws.
Economic pressure will be strong to keep full access for the UK to the Single Market. To achieve this, we would most likely have to adopt EU regulations and standards. Equally, if the UK wanted to enter into any kind of customs union with the EU, this would be subject to compliance with various areas of EU regulation, which could include some of the regulations that affect personal injury claims.
Whatever your view, a "Brexit" will mean that the decision to make or change legislation will "come home" to the UK. Changes will be based upon both political and economic forces, propelled by the climate in the UK at any particular time.
The law should always aim to provide clarity in relation to the rights of both victims and compensators in personal injury claims. Uncertainty continues to play a large role in the referendum debate and the long term future of our domestic laws.