Thursday, 7 July 2016

What does Brexit mean for health and safety law in the events industry?


‘it seems unlikely that any politician in future will fundamentally downgrade our health and safety laws or the manner in which they are enforced’.

 

If you were a ‘Brexitier’ hoping for a wholesale repeal of health and safety legislation, then the simple answer is that it is not going to happen; even if it did we would have to wait for 2 years under Article 50.  If you were a ‘Remainer’ fearing that that Brexit would lead to a return to Dickensian working conditions, that is also not going to happen.  Despite the hyperbole on both sides of the argument neither were ever a likely scenario.  In fact, all the current indicators are that regulation of event construction is likely to get tougher.

 

The UK was ahead of European countries when it introduced the Health and Safety at Work Act (HASAWA) in 1974 which is still the basis of our law and most prosecutions.  The existence of the HSE and the legal basis for enforcement is all part of HASAWA outside of EU diktat.  However, as one famous Eurosceptic once put it ’the devil will be in the detail’.

 

Those that paid attention during their IOSH or NEBOSH training may know that there are two types of EU law; that which applies directly under the European Communities Act (ECA), such as much of the chemicals regulations and that which needs to be enacted by the UK into subsidiary regulations such as the machinery and lifting regulations.  Legal opinion is that repealing the former would be unlikely owing the legal and commercial chaos that would ensue.  The UK has more leeway with subsidiary regulations which can be amended.  However, the situation is more complicated than it first seems since the centre piece of the subsidiary framework is the Management of Health and Safety at Work Regulations 1999 (originally 1992) which was made under both HASAWA and ECA.  This, somewhat over simplified explanation adds up to the fact that extracting ourselves from the morass of EU health and safety legislation would take a very long time if it happens at all.

 

In 2011 this government commissioned the L√∂fstedt review into health and safety legislation which concluded that it was broadly fit for purpose.  It does not seem likely, therefore, that any future government, however Eurosceptic, would waste time and resources on repealing current EU based health and safety legislation and even if it did the fundamental duties of employers in criminal law would still exist under HASAWA.  When all is said and done we will still need to trade with the EU and to do that business we will still have to comply with EU legislation to a large extent. 

 

A Brexit does, however, mean that new EU Directives will not be incorporated into UK law and we will be able to amend existing EU based law if it does not compromise any trade agreements.  First on the list could be the Construction (Design and Management) Regulations 2015 (CDM) and its unnecessary application to the events industry which the HSE imposed citing an EU ruling as its rationale.  Be warned, however, that even if this decision were reversed the HSE would still be the enforcing authority for event construction, a change which preceded CDM 15.

 

It is not clear whether new EU directives will be brought into UK law whilst the UK remains in the EU pending exit.  It seems unlikely however, that any UK government would rush to enact new EU based health and safety legislation whether or not it was technically obliged to do so.

 

The remain campaign raised the spectre of a government with ‘unconstrained freedom of action in relation to those areas currently governed by EU social law’ resulting in exploitative working conditions.  This was of course hyperbole but it does mean that some of the legislation regarding working hours could be amended or repealed.

 

It might be more instructive to focus less on the law itself than how it is applied.  If recent experience is anything to go by, the HSE have found a problem that they believe needs to be fixed in event construction and notwithstanding CDM, HASAWA gives them all they need to pursue that.  The HSE has recently visited a number of events and have made it clear that they intend to drive improvement with increased unannounced visits, enforcement action and prosecution where they feel it is warranted.  None of this would be affected by a Brexit or otherwise.

 

As recent updates have shown, sentencing guidelines for UK courts changed last year, considerably increasing the penalty tariff and they have not been slow to act imposing four £ million-plus fines for serious accidents in January this year alone.  This had nothing to do with the EU.

 

Much of our environmental law comes from Europe and it is probably fair to say that given the current financial uncertainties many companies may row back on the expense of sustainability programs, especially as those companies that have them tend to have large operations outside the EU where the concepts of sustainability are not so well established.

 

Ultimately the law both reflects and drives social attitudes.  The 1974 Act ushered in an era of change where unnecessary dangerous practices in the workplace became unacceptable to a point where workplace safety is accepted as the desirable norm.  Society’s attitudes ultimately transcend law and just as there is never likely to be a demand for a return to smoking in public places or driving cars without seatbelts, it seems unlikely that any politician in future will fundamentally downgrade our health and safety laws or the manner in which they are enforced.