After the Brexit referendum there were concerns by some that leaving the EU would lead to the “bonfire of health and safety regulations” that David Cameron had threatened in 2010 when he was prime minister. At Effective, we took a look at the possible consequences for Health and Safety in our webinar. Other commentators believed that standards in the UK would remain high, as the UK have led the way in workplace safety since the 19th century. The Great Reform Bill, it was promised, would incorporate all the EU rules that would otherwise be lost on Brexit day, maintaining health and safety standards for workers.
During the last few months parliament has debated and pulled apart, clause by clause, various aspects of EU regulation to work out what must be included in the bill, now named the EU (Withdrawal) Bill. There has been much misreporting – for example, the accusation that MPs didn’t think animals could suffer from pain or distress, when the real story was that national law was already so far ahead of EU laws on animal protection (for example, bull-fighting is forbidden) that additional rules did not need to be copied across. But what has been happening with health and safety law?
The government’s preference is for health and safety rules, along with employment rights, environmental protection and consumer standards to be included in the EU (Withdrawal) Bill in a way that makes it easy for the government to “adjust” rules at a later date, without necessarily needing to have the agreement of Parliament. This makes use of the so-called Henry VIII clauses, introduced into the parliamentary process in 1539 to give the English King powers to change law “by proclamation” instead of requiring parliament’s agreement.
Sometimes it makes sense to allow primary legislation to be adjusted in this way, for example for technical issues, without the time and expense of a parliamentary debate. In November 2017, the opposition proposed an amendment that any changes to health and safety law, or to other issues in the EU Charter of fundamental rights, should require full parliamentary scrutiny. The debate was tightly fought, and the final outcome was 301 in favour of the amendment – and 311 in favour of giving the government the right to change health and safety and other rights through proclamation.
This does not mean that health and safety laws will be reduced post-Brexit. In the wake of Grenfell, there is little appetite for reducing protection to the public at least. But it does reduce the power of the British parliament to scrutinise any changes to EU-derived health and safety law which the government might wish to make. This could affect issues such as personal protective equipment (PPE), manual handling, welfare requirements and work equipment.
However, we can be reassured that one key protection cannot be changed without full parliamentary scrutiny. The requirement of the 1974 Health and Safety at Work Act that employers and other responsible people must ensure the safety of employees and others, so far as is reasonably practicable, predates the influence of EU Regulation, and has remained unchanged for over forty years. That, at least, is unlikely.
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