This article will outline the current interplay between domestic law and EU legislation in relation to health and safety and product safety law. What changes should businesses in the UK motor manufacturing industry expect from Brexit, both in respect of domestic workplace safety practices and the safety of products intended for export into the EU.
Health and Safety Law - an overview of UK and EU legislation
UK health and safety legislation pre-dates our membership of the EU, and is based on and implemented through the Health & Safety at Work etc. Act 1974 (HSWA). Product safety law originates from the EU, but is consistent with longstanding UK legal principles.
HSWA applies to all employers who have a legal duty to ensure, so far as is reasonably practicable, that employees and those affected by what the employer does are not exposed to risks to their health and safety. Employers are required to put in place suitable arrangements to manage risk, having carried out a 'suitable and sufficient' assessment of the risks arising out of what the employer does. UK law describes the outcome which must be achieved – no exposure to risk. It does not prescribe how that outcome must be achieved.
EU law has developed in a similar way. The 'Framework Directive' adopted in 1989 (Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work) as a part of the creation of the Single Market contained many broad duties, including the requirement to assess risks and introduce appropriate control measures.
In terms of enforcement in the UK, the Health and Safety Executive, established under HSWA, are responsible for drafting, implementing and prosecuting health and safety law in the UK and will continue to do so post-Brexit.
What will happen post-Brexit?
The UK has an enviable health and safety record and the system works well. Fundamentally, it is adaptable and has evolved to cope with a changing economy, changing manufacturing technology and more sophisticated global supply chains. While it has been influenced by Europe, the UK has equally been influential in setting and maintaining high standards across Europe, including within the automotive manufacturing industry.
We do not therefore consider that it will be a government priority to make sweeping changes. There may be opportunities in the future to make the system more specifically aligned to the UK economy, but this will only be a continuation of recent attempts to cut red tape and increase the punishment for breach. We think that any changes will be designed to simplify the system, perhaps to make it easier for business to comply, rather than a radical overhaul. We do not think that the pace of change will increase post Brexit.
Manufacturers should continue to keep risks under review, maintain industry best practice and continue to invest in implementing relevant safety measures.
It's a similar story with product safety.
Under proposals made in the Government's July White Paper (The Future Relationship Between The United Kingdom and the European Union, the "White Paper"), the UK would sign up to a common rule book covering product standards, including environmental requirements for products, indicating that product safety will remain aligned between the EU and the UK in the furtherance of 'frictionless trade'. The White Paper also envisages a facilitated customs arrangement whereby all goods entering the UK will have to meet EU regulatory standards.
Post Brexit, the UK would not automatically have an input into the product standards adopted into EU legislation. However, whether or not the currently proposed position is accepted, the European product standards for motor manufacturing remain underpinned by international standards. The UN Commission for Europe (UNECE) sets vehicle safety standards, and this framework is incorporated by the European Commission for the purposes of global technical harmonisation and type-approval.
The UK will continue to remain a participating member of the UNECE post-Brexit, and would, according to the White Paper "seek participation - as an active participant, albeit without voting rights - in EU technical committees that have a role in designing and implementing rules that form part of the common rule book". There is therefore an opportunity to continue to influence the relevant standards to be adhered to.
Whilst there will be changes to the way in which registration and approvals will be maintained in order to demonstrate compliance, there is unlikely to be any divergence in product safety standards between the UK and EU going forwards.