Regulatory law in the UK has a broad scope. Approximately 50 statutory bodies are established with competency to regulate activities ranging from financial services to food standards, nuclear power to nursing. EU law permeates the regulatory spectrum to varying depths.
The Coalition Government’s deregulation agenda continues to develop under Conservative leadership, with rumours of a move from a “one in two out” to a “one in three out” policy towards secondary legislation; for every new measure that is introduced, measures amounting to three times its financial impact would be repealed. To the extent that EU membership imposes pressure on policy-makers to introduce new regulation, a Brexit may help facilitate the implementation of the deregulation agenda in the UK.
While new EU regulations and directives would have no direct impact on an independent UK, it is likely to prove impossible and even undesirable for the Government to abolish a significant amount of EU law in many areas of regulation.
The health and safety regime is one of the more substantial areas of regulation in the UK and is indicative to a large extent of the way in which EU and UK law interacts. We take a closer look to illustrate some of the issues and implications of a Brexit for regulatory law.
The UK’s health and safety regime is one of the most robust and successful in the EU, with workplace fatalities lower than any other member state in 2012. The regime is overseen by the Health and Safety Executive (HSE) and is built on the Health and Safety at Work etc Act 1974 (HSWA), which imposes broad general duties on employers and provides a framework within which many pieces of subordinate legislation have been introduced to fill out the detail.
HSWA predated the EU Occupational Safety and Health (OSH) Framework Directive, which was adopted in 1989. Although many secondary measures have since been enacted that overlap with and implement EU requirements, these have largely been made under HSWA rather than under the European Communities Act 1972 and would therefore not be subject to automatic repeal in the event of a Brexit.
The HSE has put forward a number of suggestions to the European Commission (EC) for streamlining health and safety legislation, as part of the EC’s evaluation of 24 OSH directives, which was undertaken between 2012 and 2015. These suggestions included a number of amendments to and repeals of existing directives that were felt to be overly cautious or inflexible in view of the UK’s well-regarded proportional risk-based approach to regulation. An independent UK would give the Government a free hand to act on the HSE’s recommendations in these areas, without the need to negotiate with other member states.
However, the UK has on occasions adopted higher standards than are required by EU legislation, for example around asbestos (a practice known as “goldplating” as opposed to the “copy out” approach to implementing EU directives). In these areas, it is Government policy that has a bigger impact on health and safety regulation than EU policy and a Brexit is unlikely to prompt a reduction in standards. It is suggested therefore that the health and safety regime would remain largely unchanged, providing industry with a degree of compliance and cost certainty in respect of continuing health and safety obligations.
Similar conclusions could be applied to many other areas of regulation, for example consumer law; the Government made a recent indication of intent in the Consumer Rights Act 2015, which implemented aspects of a number of EU directives and regulations but had wider aims of consolidating and clarifying consumer protections. A Brexit would be unlikely to involve winding back the clock on this policy.
Ultimately it is not realistic to imagine that the perceived burden of EU regulation would simply be allowed to fall away following a Brexit. In the first place, much regulatory law at EU and national level exists for good reason, as discussed above. Secondly, the many areas of EU regulation that affect imports and exports, for example the exacting standards of the REACH Regulation, would have to be continually applied by national businesses if the UK was to continue to trade with the EU; the internal market accounts for an estimated 45% of all UK exports. However the Government chose to legislate following a Brexit, it is clear that compliance with EU regulation would remain a commercial necessity in many arenas.