What will happen to OSH regulation now we’re out of the EU?

On Friday 24th, the day after the UK’s vote to leave the European Union ex-London mayor and Conservative leadership candidate Boris Johnson said withdrawal from the union gives the UK the

“glorious opportunity to set its own laws”.

How much of our worker protection legislation will be reset depends on a combination of economic and political necessity.

The think tank Open Europe calculated that two-thirds of OSH-related regulations introduced between 1997 and 2009 originated in the EU.  There is no doubting the union’s influence on our safety and health law.   But there are good reasons not to unpick our framework, however it was acquired and however “glorious” the opportunity for change.

We will probably see no attempt to amend most of the standards and thresholds that came to us via directives – there is enough research supporting metrics such as the 85dBA and 80dBA action levels for workplace noise, to make them unlikely targets for reform.

They have also contributed to our improving OSH metrics. IOSH’s head of policy and public affairs Richard Jones responded to the vote to leave saying: “Now we’re exiting, it’s vital the UK continues to apply our successful risk-based health and safety system, which includes laws from EU directives, because it’s been found to be fit for purpose by several independent reviews and is respected and imitated across the world. IOSH will continue to promote agreed international standards and to defend against any erosion of health and safety protections.”

The former chair of the UK Parliament’s EU scrutiny committee, Michael Connarty, made much the same point when he noted 90% of EU legislation in force in the UK would probably have been introduced even without our obligations as a member state.

So what might we change? As Howard Fidderman pointed out in his recent article for this magazine, likely candidates for eventual revision or abolition include the Construction (Design and Management) Regulations – to remove duties for domestic clients, the Optical Radiation Regulations, the Health and Safety (Safety Signs and Signals) Regulations – increasing the hazard threshold that requires a warning and removing the requirement in the Display Screen Equipment Regulations for employers to pay for workers’ eye tests.

The government has also expressed an interest in changing requirements for written risk assessments for businesses in what it sees as low-risk sectors and it has a longstanding irritation with the EU-derived Working Time Regulations.

Any further attempts to reduce protection would most likely be triggered only if the UK’s economy was threatened by a decline in trade and inward investment, deregulation would be one way to try to try to restore our position as an attractive base off the European mainland, speaking the international business lingua franca. That’s a position we will otherwise cede to Ireland.

(A period of economic contraction could also result in more cuts for the UK’s main OSH regulator, the Health and Safety Executive, which is already due to have lost 47% of its government grant over the 10 years to 2020.)

These scenarios assume we retain a conservative government. It’s hard to imagine a Labour administration would have health and safety deregulation on its agenda.

The other major factor influencing how much room we have to change safety and health regulation will be how we fare in negotiating an EU trade deal; we need to maintain favourable terms as almost 13% of our GDP depends on exports to the remaining 27 states.

Polling before the vote suggested a majority of UK people favoured a similar arrangement as that Norway enjoys if we left. The conditions of such a deal, granting us membership of the European Economic Area (EEA) with continued access to the free market in goods and services, would commit us to maintain EU standards in so-called “flanking” areas, including employment conditions such as OSH law. The EEA option may prove unacceptable to those who voted to leave, as one of the “four freedoms” the other regulatory sectors flank is freedom of movement of people between countries; something many Brexit voters were keen to curtail.

Another option would be an associative relationship such as that enjoyed by Switzerland, which involves membership of the European Free Trade Association and would allow us to sign bilateral agreements with the union (Switzerland has more than 100 of these). The Swiss voted in favour of introducing curbs on the free movement of EU citizens in and out of their country two years ago but are having trouble implementing them because the EU is threatening to unravel the trade agreements if they do. The division appearing between those who led the leave campaign in the UK who say we cannot do without immigration curbs and those who say we cannot do without free trade with the EU 27 could lead us to a similar impasse.

Any looser form of association, like that between Turkey and the EU, for instance would give us more freedom. But it could also lose us favourable terms for providing services to the member states and threaten our £60 billion annual trade surplus in financial services and insurance.

However these variables align, what is sure is that nothing will happen soon. As I write, there is not even any consensus on how and when the EU authorities will be notified formally that the UK intends to secede.

The UK’s legislators are likely to be tied up for a minimum of two years redefining our relationship with the European bloc and in multiple trade talks with other states. When it does get round to domestic changes, the government will probably have to prioritise the leave campaign’s promises such as ending the European Court of Justice’s jurisdiction over national security and abolishing VAT on domestic energy.

Brexit may give us more control over OSH law, trade agreements permitting, but it will be some time before we exercise that control and then probably to a very limited extent.

Louis Wustemann
Louis Wustemann is editor, IOSH Magazine. He was previously editor of Health and Safety at Work magazine and Environment in Business. He has written, edited and consulted on health and safety, environmental and employment matters for more than 25 years.