The debate surrounding Britain’s proposed exit from the EU (“Brexit”) has primarily focused upon its potential impact on the British economy, Britain’s international standing and its capacity for self-governance. This article explores how Brexit may impact upon the mining and minerals sectors (focusing on product safety, health and safety and environmental laws). In these and other sectors, the long-term implications of Brexit would depend on the model adopted for the subsequent relationship with the on-going EU. It is our view that major change in the mining and minerals sectors is only likely in the long-term, and even this is by no means assured; by contrast, in the short term, aside from transitional provisions there is unlikely to be an immediate, dramatic change in the law.
Product Safety Law:
Even if Britain leaves the EU, it will need to maintain access to European markets, because these are a fundamental part of the British economy. Within the context of the mining and minerals sectors, Britain exports far more mineral commodities to Europe than it imports. Since trade between member states themselves will continue to be governed by the EU’s product safety laws irrespective of Brexit, such countries are likely to expect equivalent standards from British products and, if British exports cannot satisfy these standards, trade opportunities with such countries may be lost. Consequently, the law in this area is likely to remain in force much as it is in order to preserve market access to the EU.
Moreover, the EU’s “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 regardless of Brexit. Therefore, there is unlikely to be any significant shift in product safety law if Britain leaves the EU, because the current approach taken by the EU aligns with what the UK is likely to wish to pursue anyway.
Health and Safety Law:
Health and safety law is often the subject of much anti-EU rhetoric; however, whilst 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, it has followed a pattern originally adopted in the UK under the Health and Safety at Work etc Act 1974. The EU did not set British health and safety law in a whole new direction and, as a country with one of the better workplace safety records in Europe, the UK is unlikely to wish to change the law radically. Consequently, this is not an area which is likely to experience dramatic short- or long-term change because of Brexit.
The UK’s environmental law is now almost exclusively governed by EU law. In England and Wales in particular, EU legislation is increasingly transposed only indirectly, by reference to the relevant EU instrument, rather than being expressly set out in the transposition legislation. In the short to medium term, if Britain leaves the EU it would therefore be essential for transitional arrangements to be in place to provide for the EU legislation to continue to have effect. In the longer term, if the model for the subsequent relationship with the EU permitted it, the position is less clear. Certain aspects of environmental law, in the areas of waste management policy, or air quality, were forced on the UK by the EU against its will, but the UK may not now wish to change them. In other areas, such as climate change and integrated pollution prevention and control, the current law itself results to a significant extent from previous UK initiatives, and so is also unlikely to change.
There are therefore powerful factors operating against radical change flowing from Brexit. However, some aspects of environmental law are arguably unduly prescriptive, and the process for seeking agreement amongst Member States for change is cumbersome. If the EU does not itself adopt a more flexible future model for environmental legislation, then a possible advantage of Brexit might be greater freedom for the UK to innovate and adapt to new environmental challenges. However, many environmental challenges are international in scope and subject to international agreements, such as climate change. The UK could therefore be constrained by its international commitments in those areas, regardless of Brexit.
In conclusion, whilst Brexit may seem like a dramatic extrication of Britain from the EU, it is unlikely to yield quite the histrionic split that its proponents anticipate. In the short-term, visible changes will include any transitional provisions required to ensure current laws continue to have effect regardless of Brexit. In the long-term, product safety laws are unlikely to change because Britain will still need to meet European safety standards to ensure trade with Europe continues unaffected, whilst the UK’s health and safety laws are already broadly in line with what Britain advocated before the Directives took effect. In environmental law, the position is more uncertain, but even in this regard the likelihood of dramatic long-term change is by no means assured.