Safety, Health and Environment Matters - Spring/Summer 2016

Following the outcome of a so-called Brexit referendum it is clear that a significant period of uncertainty will follow while this country works out its new trading arrangements with fellow European countries and the rest of the world. The sharp differences in voting outcomes between England and Wales, on the one hand, and Scotland and Northern Ireland on the other may even lead to a re-definition of what this country is. However, from the perspective of the areas of regulatory law on which I advise, it seems unlikely that the outcome of the referendum, will make any very dramatic or immediate difference.

Take environmental law

Environmental law in the UK is now almost exclusively governed by EU law, and in England and Wales in particular, EU legislation is increasingly transposed only indirectly, by reference to the relevant EU instrument, rather than being expressly set out in the transposition legislation. In the short to medium term, it would therefore be essential for transitional arrangements to be in place to provide for the EU legislation to continue to have effect. In the longer term, if the model ultimately adopted for our continuing relationship with the EU, with which we must continue to trade to some extent, permits significant change in our environmental laws, the position is less clear. Certain aspects of environmental law, in the areas of waste management policy, or air quality, were forced on the UK by the EU against its will, but there may not now be any great pressure to change them. In other areas, such as climate change and integrated pollution prevention and control, the current law itself results to a significant extent from previous UK initiatives. There are therefore powerful factors operating against a radical change flowing from Brexit. It should perhaps also be pointed out that some aspects of current environmental laws are perhaps unduly prescriptive and the process for seeking agreement amongst Member States for change is cumbersome. Freedom from that process might provide a longer term benefit from Brexit. However, radical and immediate change seems unlikely, regardless the outcome of the referendum.

Product safety law is also likely to require to be maintained in force much as it is, in order to preserve market access to the EU. Furthermore, in the longer term the EU "New Approach" model for sectoral product safety legislation in which only general "essential safety requirements" are imposed and suitable arrangements made for their enforcement, is one which we are likely to wish to follow in any event, in view of its generally happy combination of safety for consumers and the workforce, with flexibility for manufacturers.

Health and safety law as it applies between employers and employees, as opposed to between businesses and third parties, is now also largely set by EU Directives, but following a pattern originally adopted in the UK under the Health and Safety at Work etc Act 1974. As a country with one of the better workplace safety records in Europe, we are unlikely to wish to change the law radically.

It remains to be seen whether the electorate's decision to reject the long term European Union Project in favour of greater national autonomy will involve a cost in terms of national prosperity. However the decision is unlikely to effect a great change in our regulatory law.