The Potential Effect on HSE Legislation Following the Brexit Vote

Rachel Lambert
As the debate continues, what will the effect be on the health, safety and environmental (HSE) legislation that is derived in some way from the European Union?

A lot of our health, safety and environmental (HSE) legislation is derived in some way from the European Union, whether this is by regulations directly applying to UK law or by directives whereby the UK has a specified length of time to enact them. This includes the Management of Health and Safety at Work Regulations 1999 (enacted following the framework directive), the Construction (Design & Management) Regulations 2015 and the Single European Act for the environmental principles which, signed in 1986, provided environmental action by the EU that aims "to preserve, protect and improve the quality of the environment; to contribute towards protecting human health; and to ensure a prudent and rational utilisation of natural resources".

If we look to health and safety first; the over-arching health and safety legislation under which all other legislation is set is the Health and Safety at Work Act 1974. This has stood the test of time and indeed many other countries have adopted something similar to this (particularly within the commonwealth). This major piece of legislation would remain. However it is possible that other legislation could either be removed or heavily revised.

It is highly unlikely that the government would rescind these regulations without replacing them at least in part.

As many of you may know the construction, design and management (CDM) regulations have been subject to several iterations over the years and could be either changed to perhaps make them less stringent than at present or rescinded. However, is it a co-incidence that construction deaths have reduced since the CDM regulations came into force just over 20 years ago? Do they serve to focus the mind on health and safety earlier in a project than previously? It is highly unlikely that the government would rescind these regulations without replacing them at least in part.

From another perspective, leaving the EU could provide main contractors with a man power shortfall as, at least in the eastern regions, there are significant numbers of European workers operating on all construction sites. There could be challenges to recruiting experienced operatives if there is no longer the ability to recruit from other European countries, which could lead to health and safety implications.

The recent agreements and targets set at COP21 demonstrated the strength the UK has as part of the EU and the global commitments that can be made as a result of partaking as a member state.

Looking at the environmental context, UK and EU law is heavily intertwined. The recent agreements and targets set at COP21 demonstrated the strength the UK has as part of the EU and the global commitments that can be made as a result of partaking as a member state. A break away from the EU could have significant effects on legislation.

The UK is currently committed to an EU emissions trading scheme which sets a decreasing cap on emissions from energy-intensive sectors, allocating emissions allowances which can be traded on the open market with a representation of 21 percent reduction by 2020 in emissions for all sectors in Europe covered, compared with 2005 levels. There are plans in place to adhere to strict EU targets set on air pollution limits and the habitat and birds directive that is intransigent to the conservation of unique environments across the UK.

When the government abandoned zero carbon targets earlier in the year (now challenged by the House of Lords), many breathed a sigh of relief that we still had the EU Energy Performance and Building Directive pushing for near zero energy buildings by 2020. There are strong European building codes which we have to thank for here as they have enabled the push towards standards such as the passivhaus example, with many high performing, low carbon façade systems being imported from places such as Austria and Germany.

When the government abandoned zero carbon targets earlier in the year (now challenged by the House of Lords), many breathed a sigh of relief that we still had the EU Energy Performance and Building Directive...

It is likely that leaving the EU would lead to uncertainty for investors across the environmental sector with commitments expected to change and requirements for meeting EU targets no longer at the forefront of the agendas. The other side of the coin can also be viewed as many current UK standards are above the EU requirements (such as drinking water standards) and with that the UK government will have the opportunity to lead the way with environmental policies and launching new directives if the UK remains as a member EU state.

In conclusion if the 'Vote Leave' campaign is successful Britain could, following the two year notice period, rescind all legislation that has been enacted as a result of being part of the EU. This is highly unlikely. The government are more likely to either follow an existing model for working with the EU or develop a model bespoke to the UK.

Two such models in existence are firstly that adopted by Norway and others who have joined both the European Free Trade Association (EFTA) and the European Economic Area (EEA) with the effect that their health and safety legislation complies with the framework directive; and the Swiss model where Switzerland have not joined the EFTA or EEA but none the less maintain similar levels of health and safety legislation.

The UK could choose to establish their own model with bespoke agreements with the EU on whether to retain regulations that have already been enacted. Although some legislation may change or be rescinded, the UK government are likely to retain existing standards of health, safety and environmental legislation to ensure that they are seen to be at the forefront from both a European and global perspective.

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