Business could be singed in the bonfire of EU law

“We wunt be druv!” The old Sussex saying (“we won’t be driven!”) a stubborn assertion of self-determination, sums up an attitude common throughout the British population. The pro-Brexit campaign of 2016 appealed to this umbrage at being ordered about by remote authority with its “Take back control” slogan. It’s also one of the spurs, accompanied by a deregulatory zeal, of Jacob Rees Mogg’s last significant act as Business Secretary during Liz Truss’s brief prime-ministership. The Retained EU Law (Revocation and Reform) bill, which received its first reading in parliament on 22 September, aims to end the special status of at least 2,400 UK laws – some claim as many as 4,000 – that originated in the EU and were carried over intact when we left the union.

To focus ministers’ minds, the bill contains a charmingly-named “sunset clause”, perhaps more accurately described as a kill switch, which ensures any of these statutes that have not been individually carried over will cease to apply on 31 December 2023. That includes 55 health and safety statutes.

Would business be better off without them? Previous attempts at simplifying law in this area (and there have been a few) suggest not. In 2010, the coalition government, keen to distract attention from a post 2008-crash economy it could do little to fix, lit on health and safety as a whipping boy for all commercial ills. Then Prime Minister David Cameron said he would remove the “albatross around the neck of British businesses” that was health and safety regulation. Lord Young was contracted to carry out a review of the legislation and civil claims procedure, which resulted in few changes. Then in the time-honoured tradition of repeating a question until you get the answer you were looking for, the government appointed risk academic Ragnar Löfstedt to have another go. The Löfstedt review, mostly implemented by the government, managed to look like a big overhaul of regulation while deliberately changing little. (Both reviews had drawn few requests from business for wholesale reform.) Ministers claimed they had halved the number of safety regulations by 50%, but most of the half that were withdrawn – like the ones covering lavatory provision in coal mines – had long been superseded and forgotten about.

That’s not true of the laws targeted by the new bill. In scope are the regulations limiting exposure to asbestos, radioactive material and explosive atmospheres, and those mandating the maintenance and inspection of lifting equipment, provision of first aid and personal protective equipment.

Most are ones the UK would have introduced anyway as a developed nation; they simply reflect the accumulated evidence on work-related harm. As one of the leading Member States the UK wielded hefty influence on the minimum standards set by EU directives. Which of those standards do we want to abandon?

Let’s take an example: the Control of Noise at Work Regulations 2005, which implemented European Council Directive 2003/10/EC on protecting workers from risks arising from noise exposure. This sets 80db(A) – roughly the level generated by a motor lawnmower – averaged over a week, as the noise level which triggers employers to carry out a risk assessment of exposure and to take action to protect workers’ hearing. That level is based on a lot of research showing long-term damage for prolonged exposure above the threshold. Would anyone want to lower that level? If so, what would they prefer?

This is not to say there is no scope for tweaking some of the European safety law. The Display Screen Equipment Regulations, for example, could be reviewed now we are no longer in the EU, to see if they are really achieving what they were intended to do. But the December 2023 hard stop won’t allow time for considered reviews.
Some industry organisations are already warning that the UK could end up in January 2024 missing whole chunks of its employment law; a fear heightened by the Prime Minister’s spokesman’s confirmation in early December that there were no plans for an extension, saying the “sunset clause is in that bill and there are no changes to that”.

It still seems unlikely that we would pass into a regulatory Wild West where any ill treatment of workers was allowed until it was re-regulated – the general duties of the Health and Safety at Work Act would still apply in the interim. But as with the health and safety reviews of 2010 and 2011, it’s an annoying distraction from more important, but harder to solve, issues. British industry famously has a productivity problem, but it can’t be laid simply at the door of health and safety regulation, or even regulation in general. The current bill is the kind of sweeping gesture that creates instability for business, which is the last thing it needs. If there are benefits to be reaped from leaving the EU, this isn’t the way to go about achieving them.

Guest blog written by writer, editor and speaker, Louis Wustemann.