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

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. For up-to-date commentary and information on our services, please see our Beyond Brexit page.

This article was first published in Health and Safety at Work, and the full article can be found online here.

The Brexit debate 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 is the desire to reduce the EU ‘red tape'' that it argues stifles the UK entrepreneurial spirit.  

So will there be a bonfire of regulations if there is vote to Leave? As with much of the debate, there is no clear easy answer. However, it is fairly clear that there would not be an immediate effect on health, safety, environmental and other regulatory law. In the first place, the UK would have two years to extricate itself from the EU after the notice of withdrawal. Some believe such a timescale to be wildly optimistic as such 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 would not be an 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 countries 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.

Would there be 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 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 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 a 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. 

It would seem that although there is a call from some parts within the health and safety and environmental community for a more risk-based approach to law than that which emanates from Europe, a view that gained support in Health and Safety at Work’s recent online survey. However, 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. I believe that this attitude, along with the administrative problems described above, will prevent great change in the health and safety landscape anytime soon after 23 June should the vote be for Leave. 

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