Many existing regulations could disappear from UK health and safety law at the end of this year if the Retained EU Law (REUL) Bill is approved in its current guise.
The Bill, being dubbed the ‘EU Bonfire’ or ‘Sunset’ Bill, could lead to over 4,000 laws being amended, repealed or replaced by the end of the year.
Currently moving through the House of Lords, the Bill includes a deadline of 31st December 2023. After this date, any retained rules from the EU which have not yet been decided on will automatically fall away, or ‘sunset’.
The Bill has attracted much criticism, with some saying it will lead to critical decisions on workers’ rights, environmental standards and consumer protections being made by default, or even by accident.
Occupational health and safety law could ‘sunset’
It relates to all UK secondary legislation derived from EU law and retained direct EU legislation, and this includes a significant number of occupational health and safety regulations, such as:
- Management of Health and Safety at Work Regulations 1999 – including risk assessment and ‘Competent Person’ requirements
- Workplace (Health, Safety and Welfare) Regulations 1992
- Manual Handling Operations Regulations 1992
- Health and Safety (Display Screen Equipment) Regulations 1992
- Provision and Use of Work Equipment Regulations 1998
- Personal Protective Equipment at Work Regulations 1992 amended 2022
Some other pieces of safety legislation may also be affected, including the Construction (Design and Management) Regulations 2015 (CDM), the Work at Height Regulations 2005 and the Control of Substances Hazardous to Health Regulations 2002.
However, any regulations not derived from EU law will remain, and this includes the Health and Safety at Work etc Act 1974 (HSWA).
The HSWA will therefore remain in place and all employers must continue to fulfil their legal duties to ensure the health, safety and welfare of their employees and anyone who is affected by their business activities.
Britain’s Health and Safety Executive (HSE) will also remain in place and retain its enforcement powers, which are set out within the HSWA.
Uncertainty for businesses on health and safety law
However, Mary Lawrence, a partner at Osborne Clarke, has explained to the Institution of Occupational Safety and Health (IOSH) that EU health and safety regulations tend to provide an additional layer of detail in the UK about how businesses can fulfil their legal duties under HSWA. She said that such details would no longer be law and would likely move into guidance instead.
She says that the removal of these regulations is likely to create uncertainty for businesses on how exactly to meet their obligations under the HSWA, because many “well-established and understood regimes for compliance will fall away.”
It is anticipated, however, that the HSE will encourage employers to continue to follow these regimes, which would remain as HSE guidance.
It is thought that the sunset of some health and safety regulations could even enable some businesses to establish more tailored approaches to considering risk. For example, within the field of ergonomics and display screen equipment, the current regulations are highly prescriptive and do not necessarily translate well to the new hybrid working environment.
Calls to protect and strengthen health and safety law
However, many have expressed concern that thousands of lifesaving laws could potentially be left up in the air, and even scrapped.
In their letter, the OSH Alliance said:
“Given Britain’s long-standing record as a global leader in health and safety, we understand the need for continuous improvement and how regularly reviewing legislation can build more effective frameworks. However, we are concerned that the timeframe set forth for implementing the Retained EU Law Bill could lead to increased harm. While we agree the revision and improvement of UK health and safety laws would be positive, we are conscious that better regulation is not de-regulation.
“To ensure the safety and health outcomes of Britain’s workforce and therefore the resilience of its businesses, regulations must be reviewed sensibly, with due scrutiny and in consultation with both the occupational safety and health profession and business leaders. Rushing to implement the Bill as it stands, without clarity on which laws the Bill covers, and with the sunset clauses it contains, will undermine our health and safety standards and protections.
“Ultimately, we need more time and a more transparent process. Time to take an evidence-based approach, to treat each law individually, and to look at the overarching reason the law was originally passed. Every law has a considered aim and intention. And it is this aim and intention that we must carefully consider against the needs and necessary protections of workers and their rights, and the needs of all people and business, today and in the future, to be safe, healthy and sustainable.”
Delaying the sunset deadline
It has been suggested that ministers extend the sunset deadline in the REUL Bill to 23rd June 2026. IOSH and others have backed this call and even urged consideration of a later date in 2030 to ensure the Bill can undergo due scrutiny.
Either way, an active decision needs to be taken before the end of this year to prevent many regulations from simply disappearing.
Labour’s Baroness Chapman of Darlington said: ““The removal of the law should be an active choice, not a passive default, and the removal of laws should require Parliament’s consent.”
Meanwhile, Government Minister Lord Callanan, who introduced the Bill to the Lords, argued: “Making it harder to remove regulations would hamper the UK’s growth, would be detrimental to the UK and fundamentally undermines the aims of the Bill.”
The Bill is currently passing through the House of Lords but a number of amendments have been proposed to it, so it is likely that it will bounce back and forth between the Lords and the Commons for a little while longer.
Businesses can expect to know more about the Bill and its impact on health and safety law as we move into the spring.
IOSH asserts that, while the final details of the Bill and its impact on health and safety law remain uncertain, “[…] professionals can start working through scenarios and thinking about potential impacts on their businesses and future planning.”
Health and safety training
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