Ready for change
What could the scrapping of existing health and safety regulations mean for you and your business?
As you may be aware, the proposed Retained EU Law (REUL) Bill will enable the UK Government to amend, repeal and replace retained European Union (EU) law via Parliament.
If passed, all UK secondary legislation derived from EU law and retained direct EU legislation, such as EU regulations, will ‘sunset’ or automatically fall away on 31 December this year.
In health and safety terms, that means a significant number of occupational health and safety regulations, leaving in force just the Health and Safety at Work etc Act 1974 (HSWA).
Ministers may decide to extend this date to 23 June 2026 and indeed, the Institution of Occupational Safety and Health (IOSH) and others have been pressing for an extension until 2030 to enable due scrutiny, consultation, engagement and transparent process. They also want to exclude certain legislation from the Bill and have called for standards and protections not to reduce.
However, for this to happen, an active decision will need to be taken by the end of 2023 or else the regulations will disappear.
Which health and safety requirements will be affected?
If the Bill is adopted in its current form, it is expected that most health and safety regulations will fall away on 31 December 2023 because they are EU-derived.
This includes the ‘six-pack’ and framework requirements around health and safety which SELECT Members will be very familiar with, i.e.:
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.
Other regulations affected would be those that set specific obligations for particular activities, for example the Construction (Design and Management) Regulations 2015, the Work at Height Regulations 2005 and Control of Substances Hazardous to Health Regulations 2002.
Some regulations go further than the HSWA by providing for regimes such as requirements to prepare a safety report for assessment by competent authorities under the Control of Major Accident Hazards Regulations 2015, or obtain a licence, e.g. for work with asbestos. These would also be affected.
Does this mean that businesses will no longer have any health and safety legal duties?
No. Legal requirements that are not derived from EU law and primary legislation won’t be ‘sunsetted’.
The HSWA will therefore remain in place and organisations will continue to have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare of employees and others affected by their business undertaking.
The powers of the Health and Safety Executive (HSE), including the issue of improvement and prohibition notices and requests for information, also won’t change, with duties set out in the HSWA.
However, as health and safety regulations tend to provide an additional layer of detail in the UK about how businesses can fulfil their duties under HSWA, that detail would no longer be law and is likely to move into guidance.
The disappearance of health and safety regulations has the potential to result in major changes to how health and safety legislation works in the UK, in particular around HSE enforcement.
In the short term, it may create uncertainty for businesses on how to meet their obligations under HSWA because well-established and understood regimes for compliance will fall away.
However, it seems likely that the HSE will encourage the status quo – i.e. pointing to regulatory principles that would disappear in law but would remain in HSE guidance.
In some areas it may provide SELECT Member businesses with the opportunity to develop a more tailored approach to looking at risk, e.g. in the area of ergonomics and display screen equipment, where the current regulations are highly prescriptive and don’t work well in the new hybrid working environment.
So what’s next?
As cabletalk went to press, the Bill was at the Lords Committee stage, after which it will be re-published with any agreed amendments. From there, the Bill will go to the Lords Report stage to receive further scrutiny and will require a third reading before the Lords.
A number of amendments have been proposed so far, including an extension of the deadline for sunsetting to 2028. It is therefore likely that the Bill will ping-pong between the Lords and the Commons until an agreement is reached and we will likely know more about its potential impact on health and safety law as we move into the summer.
While there is still this ongoing uncertainty, we would suggest that SELECT Members should start working through scenarios and thinking about their health and safety requirements and future planning.
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About the author
Technical Support Manager, Building Safety Group