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Time for a pragmatic view of UK health and safety law

Time for a pragmatic view of UK health and safety law

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Overall, the UK has an excellent safety record, but health and safety law has long attracted attention from deregulatory UK governments. However, the bulk of our health and safety law is based on EU directives introduced since the early 90s, and as a result it has withstood numerous government reviews.  

Yet, as we edge towards a still uncertain type of Brexit, it seems only a matter of time before the deregulators run the rule over the regulations again.

Any UK regulatory freedom, post-Brexit, will depend on what, if any, type of deal we strike with the EU.  It could well be that Brussels will require us to keep up with many of the health and safety directives, as part of a comprehensive trade deal.  However, other 'Harder Brexit' scenarios would allow Whitehall much more deregulatory headroom. 

The building engineering services sector is very broad, covering construction and wider services and maintenance. In construction, the legislative debate tends to be quite insular, focussing on what's happening to the Construction (Design and Management) Regulations (CDM).  Yet CDM is entirely based on the EU’s ‘Temporary or Mobile Construction Sites’ Directive 1992 (TMCSD) and opportunities for change are limited. Depending on our exit from the EU, the UK may - for the first time ever - be able to conduct an unfettered review of these Regulations. The recently introduced duties on domestic clients are already being touted as a prime target. 

But while CDM is vitally important, there is a raft of other EU-based health and safety law that also affects our sector. Consider the following: 

The TMCSD (which led to CDM 2015) is just one of nearly 20 ‘daughter’ directives to the 1992 EU health and safety ‘Framework’ Directive, and all of these apply to the UK.

The 'Framework' Directive itself is crucially important: it led directly to the Management of Health and Safety at Work Regulations 1999 – a mainstay of UK health and safety law. It's also the source of the (often lamented) health and safety questions in PAS 91 (BSI’s construction PQQ standard) and other PQQ questionnaires, such as those deployed by members of Safety Schemes in Procurement (SSIP) e.g. CHAS and Constructionline.

The other EU ‘daughter’ directives have led to an array of other UK health and safety regulations covering workplace issues ranging from Noise to Work, to Work at Height, and even Electromagnetic Fields.

And all this before we even get to the Working Time Directive, which – lest we forget – was (and still is) framed by the European Commission as a health and safety directive. (In a Brexit survey of ECA, BESA and SELECT member companies, the rules that members most wanted to get UK control over were about employment law, rather than health and safety.)

Over the last 20 years, the safety performance of mainstream construction - along with building maintenance and services activity - has improved significantly. It has been a difficult path (notably in construction), but the legal backdrop to these improvements is the UK's own (ground breaking) HSW Act 1974 - and much of the EU-based health and safety legislation above.  Both have underpinned our health and safety efforts date - including the good and the bad. 

On the plus side, we can point with pride (though never complacency) to tremendous improvements in the safety and welfare of those who work in our own sector. On the minus side, many member companies point to excessive health and safety paperwork and other costly - but not always cost effective - requirements. Additionally, higher safety fines and HSE fees for intervention are two other issues of concern in our industry and are the UK government’s own work. These did not come from the EU.

In a highly respected, independent 2011 review of UK health and safety law, Professor Ragnar Löfstedt concluded that “many legal requirements that originate from the EU contribute to improved (UK) health and safety outcomes".  In short, EU safety rules aren't all bad. 

Going forward, we need to take a pragmatic view of what we want from UK health and safety law, while taking full advantage of any opportunities for improvement. But health and safety in our sector is a huge prize: when it comes to health and safety law and guidance, we should curb any excesses, but we should not accidentally throw out 'what works'.

Paul Reeve is director of business services at the Electrical Contractors’ Association, and chartered Fellow of IOSH.