Brexit: Brexit: Impact on Safety Health and Environment (SHE) legislation

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Following the UK's vote to leave the European Union, we consider the potential implications for UK (SHE) legislation, which impacts on virtually all businesses, in the context of the negotiations which the Government will be conducting with the EU and other countries in order to establish new trading relations.

Key issues 

The implications of the UK's vote to leave the EU will depend on the outcome of the negotiations on its future relationship with the European Union. Current indications are that the UK Government will seek as close a relationship as possible with the EU to obtain as much access as possible to the single market. That would imply retaining most existing SHE legislation as a condition of access. While it is currently an open question as to whether access will be made available on terms acceptable to the Government, there would in any event not appear to be any significant drivers for change. Major changes to SHE legislation therefore only appear likely in the long term. 

Potential impact 

Product safety law is likely to remain 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 in particular sectors, is one which the UK is likely to wish to follow in any event. 

Health and safety law as it applies between employers and employees, as opposed to between businesses and third parties, is now largely set by EU Directives (the six pack, for instance) but following a pattern originally adopted in the UK under the Health and Safety at Work Act 1974. The UK is unlikely to want to change this speedily, particularly since the UK has one of the better safety records in Europe, generally at acceptable cost to businesses. 

Leaving aside a few topics such as liabilities for historically contaminated land, some energy-related legislation and most enforcement mechanisms, Environmental law in the UK is now almost exclusively governed by EU law which is either incorporated in UK legislation or has direct effect. It will therefore be essential for transitional arrangements to be in place to provide for the EU legislation to continue to have effect for the immediate future. In the longer term, the position is less clear. In areas such as integrated pollution prevention and control, waste management policy, or air quality, whether radical changes to the current law flow from Brexit will depend on the nature of the new relationship with the EU and, subject to that, Government policy. Most current environmental legislation would have to be retained as a condition of access to the single market but that would not necessarily apply to conservation and habitats legislation. Much existing legislation was pioneered by the UK, and the UK would not necessarily now wish to change aspects originally imposed by the EU. Some areas, such as climate change, or international trade in waste, are in any event subject to international treaty obligations. 

Further considerations 

In some areas, current EU legislation is quite prescriptive. Greater flexibility might be advantageous in the long term if its price in terms of restrictions on trade with the EU were acceptable. 

Actions  

  • Businesses could usefully consider whether they agree with the above analysis, what they would like to obtain from Brexit in terms of SHE Regulation, and inform Government, or an appropriate trade association, accordingly. 
  • Since major change seems unlikely in the short term, a priority should perhaps be for businesses to consider their current SHE compliance systems, and whether they are up to date in terms of their current operations. 
For a more detailed analysis of the issues, please contact the authors or your usual DLA Piper contact.