Sunset Strip: the Retained EU Law (Revocation and Reform) Bill and its implications for health and safety litigation, Part 1
Having retained EU law under the European Union (Withdrawal) Act 2018 (EUWA), which came into force on 31 December 2020, the Government has put in train the process by which such “retained law” is to be scrutinised, amended or removed entirely. Under the Retained EU Law (Revocation and Reform) Bill (the Bill), it is proposed that any retained law not expressly preserved into UK domestic law will automatically expire. The stated aims include the removal of “needless bureaucracy that prevents business from investing and innovating in the UK.”
The implications of this are huge and the Bill is certainly controversial.
In this article we focus on health and safety law specifically, the influence of European law in its development and the potential impact of the Government’s purge of EU law on both regulatory compliance and personal injury claims.
UK Health and Safety Law - a brief history
The UK’s health and safety law has, to a very great extent, been shaped by health and safety Directives issued by the EU. Those Directives, designed to introduce minimum standards for the health and safety of workers across all Member States, were implemented into (each jurisdiction of) UK law by a series of health and safety regulations, the first of which came into force on 1 January 1993.
In 1972, the Robens Report had recommended that existing health and safety legislation, considered a “haphazard mass of ill assorted and intricate detail”, undergo comprehensive reform under a new enabling Act which would contain a “clear statement of the basic principles of safety responsibility” and be “supported by regulations and non-statutory codes of practice.”
The Act introduced to deliver this statement of basic principles was the Health and Safety At Work Act 1974. It was under this Act that the original “six-pack” health and safety regulations were introduced, some 20 years later. The Act also gave birth to the Health and Safety Executive, the body responsible for enforcing compliance with health and safety regulations.
Health and safety regulations impose legal duties on employers. Breach of those duties is a criminal offence.
Until October 2013, allegations of breach formed the backbone of any personal injury claim against an employer. The Enterprise and Regulatory Reform Act 2013 (ERRA) reversed this, preventing civil claims being founded upon such breaches and requiring claimants to prove negligence (a breach of the employer’s common law duty of care, with resultant injury). Nevertheless, health and safety regulations are routinely referred to in particulars of claim as setting the standard by which an employer’s conduct should be judged.
Retained EU Law and its proposed revocation – the sunset provision
Under the EUWA, most EU law was retained following the end of the post-Brexit transition period, for the very practical reason that to do otherwise would be disastrous. By s.6(3) of the Act, UK courts are required, when interpreting unmodified retained EU law, to follow retained domestic case law, retained EU case law and retained general principles of EU law until a relevant UK court departs from it or it is modified by legislation.
On 22 September 2022, the Bill was introduced to the House of Commons. It makes provision for significant changes to the status, operation and content of retained EU law. Its second reading was approved on 25 October 2022 and the Bill is currently in the committee stage.
Under the Bill, provision is made to automatically revoke EU-derived regulations and retained direct EU legislation by the end of 2023. It also provides for the revocation date of specified regulations to be extended to 23 June 2026 at the latest. In addition, wide powers are granted to the UK and devolved governments to amend retained law by way of statutory instrument, or replace with new regulations they consider appropriate to achieve the same or similar objectives. The powers to revoke, amend and replace are extremely wide and will be subject to minimal scrutiny compared to the passage of primary legislation. The Bill requires the Government to have reviewed all EU-derived regulations and retained EU legislation by the end of 2023.
It is worth noting that Scottish ministers have expressed serious concerns about the Bill, worried that the revocation of standards derived from EU law will represent, in the words of Angus Robertson MSP, a rowing back of “47 years of protections in a rush to impose a deregulated, race to the bottom, society and economy.” (letter to the UK Government 22 September 2022 Retained EU Law Bill: letter to the UK Government - gov.scot (www.gov.scot). Welsh ministers have expressed similar reservations about the potential erosion of standards across areas such as employment, environmental and health and safety law. Power grab fears over new UK government legislation | GOV.WALES
Implications of revocation for personal injury claims and health and safety compliance
The Bill is not yet law. If enacted in its current form, it will still be for the Government to undertake the wholesale review envisaged, identifying what should remain and what should be left to disappear when the sun, as it were, goes down.
Critics object to the voluntary introduction of a cliff-edge in such a complex and wide-ranging area of law. Supporters point to the benefits of a clear time-table and clean extrication from the ties to “European law” promised by the current Government.
Whatever the uncertainties, the Bill lays the ground for the biggest reform to health and safety legislation in 30 years.
We consider what this may mean for employers, both in terms of compliance with legal duties and exposure to personal injury claims.
1. Personal Injury Claims
The impact of the revocation of health and safety regulations on personal injury claims is much-reduced by the ERRA, as a consequence of which the claimant must prove negligence and causation of injury/loss.
This shift away from reliance on regulatory breach made a material difference to claims. The burden of proving negligence is on the claimant, whereas employers were required, when faced with a pre-ERRA claim, to prove compliance with statutory regulations. It has also effectively put an end to so called “strict liability” claims, by which the claimant, pre-ERRA, was able to establish liability by proving breach of certain regulations irrespective of whether or not the employer had (to adopt the negligence formulation) taken “all reasonable care” to avoid the breach. For example, the obligation to ensure that work equipment was maintained in an efficient state, efficient working order and good repair (Provision and Use of Work Equipment Regulations 1998, Reg. 5). Furthermore, the employer will not be liable for harm which was not reasonably foreseeable, irrespective of regulatory breach.
So, whether the current health and safety regulations are expressly retained, left to disappear or are replaced with something similar but more palatable (because it is thought to reduce “unnecessary bureaucracy”), the question the court will ask remains the same: did the employer take all reasonable steps to reduce the risk of injury?
One assumes we will see amendment to, and possibly replacement of, many health and safety regulations, rather than wholesale abandonment. Given that those regulations have influenced what steps a “reasonable employer” should take for the last 30 years, will a shift in regulatory wording mark a change in what the courts consider to be reasonable steps? One imagines that any shift would be gradual.
A substantial body of caselaw has developed, since 1993, considering the employer’s duty of care for the health and safety of employees which is deeply imbued with EU law. This will, surely, cast a long shadow. Even if, say, the requirement to undertake a risk assessment was deleted, it seems unlikely that a claimant, who can prove that a suitable risk assessment would have mitigated the risk, would fail to satisfy the court that the employer breached its common-law duty.
2. Regulatory compliance/criminal prosecution
Prosecutions for breaches of health and safety legislation are either brought for a breach of a regulatory duty, a breach of the general obligations under the Health and Safety at Work Act for a failure to take all reasonably practicable steps to ensure the health and safety of people, or a combination of both. The general obligations under the Act have been in place for a long time and are often the go-to provisions that the prosecution rely upon. Even if the framework of regulations underpinning the Health and Safety at Work Act 1974 were to be withdrawn, the Act itself will remain and is likely to continue to be the primary prosecution tool. The simple question being asked is whether there was something more that could be done and if the defendant should have done this.
What is reasonably practicable is assessed with reference to a number of factors, including available guidance and industry standards. These in turn have been influenced by regulations, which are derived from European legislation. In theoretical terms it may therefore not be necessary to refer to regulatory standards for safety standards to be maintained.
In practical terms it is important to employers to keep people safe. There are of course instances where employers fail to deliver against this ambition, but the reality may therefore be that deregulation of safety legislation does not necessarily lead to a reduction in safety control measures in place. The government may place safety legislation on a bonfire, but it will not necessarily lead to a reduced safety burden on employers.
Next steps
For now, we wait to see what shape the legislative process leaves the Bill in, and what approach Government takes to retained law. The process of review is a huge undertaking. The Government’s own tracker has so far identified over 2,400 pieces of retained EU law to be reviewed or “sunsetted”. The Public Bill Committee is expected to commence scrutiny on 8 November and conclude on 22 November. It has issued a call for written evidence from anyone with relevant expertise and experience, details here. There are already indications that Rishi Sunak may be reconsidering the December 2023 deadline.
It will be interesting to see whether there is appetite to return to what was described in 1972 as a “haphazard mass of ill-assorted and intricate detail”, and shift away from what may be regarded as a European “basic principles” approach.
CMS will track developments closely as the Bill proceeds and as we begin to see what changes are to be made to the current health and safety legislative landscape, so that we can ensure our clients receive the best possible advice. The risk of unintended consequences looms large.
