Last reviewed 11 October 2016
Nigel Bryson examines the likely impact on asbestos regulation of the UK leaving the EU.
At the Conservative Party Conference in October, Prime Minister Theresa May made some general statements about leaving the EU. These included that Article 50 of the Lisbon Treaty would be triggered in March 2017 and that all EU laws currently in place would be consolidated into law in the new free UK. Once out of the EU, the laws would be reviewed to remove those laws not to the Government’s liking.
For regulation in relation to asbestos, what is likely to be the impact of the UK leaving the EU?
Article 50 provides the formal mechanism through which a Member State can exit the EU. From that moment, the Member State and the EU have two years in which to negotiate the conditions for leaving.
In the immediate future, there is likely to be no change to our way of regulating and dealing with asbestos. Speculation about what leaving the EU will mean in all aspects of our lives is rampant in the media, hence to evaluate what may occur with asbestos, we need to consider some key developments in the past.
The UK has had a major influence on asbestos regulation at a European level, yet one of the most significant changes was the ban on chrysotile that France instigated against Canada, a major chrysotile producer. The Canadians complained to the World Trade Organization (WTO) that France was in breach of trade rules. The EU responded, France being part of the EU. The ban was upheld by the WTO in 2001. It made the judgment that any country could introduce a ban on chrysotile asbestos on the grounds of protecting the health of its citizens. The WTO was not introducing the ban but simply stating that any country introducing a ban was not in breach of trade rules.
This development was followed by the release of statistics in the UK in 1995 that indicated that there was an increase in mesothelioma cases and this increase would continue into the early part of the 21st century. So, the UK introduced a ban on chrysotile in 1999. Then in 2005, a ban was implemented on chrysotile throughout all Member States.
The UK introduced the Control of Asbestos at Work Regulations 2002 to enact some EU Directives but also to reflect the fact that incidental exposure at work was more damaging than previously thought. This introduced the requirement for managing asbestos in non-domestic properties. Manufacturing asbestos products had ceased in 1999. The 2002 Regulations represented a greater emphasis on protection for workers who may be exposed to asbestos in buildings as part of their normal work. Workers who removed or sealed asbestos were still subject to licensing conditions.
Recognising that improved protection for workers exposed to asbestos across Europe was needed, a new EU Directive was implemented which resulted in the Control of Asbestos Regulations 2006. While this reflected changes at a European level, it also reflected the need to protect people who did not work exclusively with asbestos but might be exposed to it by work activity. The UK had recognised this in the 2002 Regulations. The 2006 Regulations also introduced a new control limit for exposure to asbestos.
In April 2012, these regulations were changed again following a formal complaint resulting in the European Commission’s stating its formal view that the UK had not fully implemented the EU Directive on exposure to asbestos (Directive 2009/148/EC). The change meant that more types of work would need to be notified to the Health and Safety Executive (HSE). This was referred to as Notifiable Non-Licensed Work (NNLW). The HSE thought this was unnecessary.
With the HSE being heavily involved in the development of laws, both in the UK and Europe, it is highly unlikely that it would now want to see any reversal of the legal framework. However, the HSE did not see the need for the NNLW. So, in the medium term — after the UK has left the EU — the HSE may want to revisit this issue.
It is unlikely that any major change in asbestos regulation will occur. However, as changes take place within the asbestos removal sector, there may be changes in working practices. Improvement in technology will always mean that the sector may have to improve standards over time. Licensed asbestos contractors are heavily regulated and liaise with the HSE Licensing Unit. Indeed, during 2017, it is anticipated that key guidance for contractors and analysts will be updated to reflect changes. However, this does not require new regulations.
At a European level, a consultancy had been commissioned to review the directives on asbestos. In response, the HSE indicated that the directives should be simplified, there should be a duty to manage asbestos in buildings — as in the UK — and self-employed people should be covered, again, as in the UK. However, it argued that a cost/benefit analysis should be done first. While this is something the European Commission would be developing, it is not clear yet whether the HSE will continue to be formally linked to the European Senior Labour Inspectors Committee or the Luxembourg Committee which covers health and safety at work developments in the EU when the UK leaves the EU.
Of more concern may be what is happening to the HSE itself. Since 2010, the HSE’s annual grant has been cut by over 30%. From the minutes of the Asbestos Liaison Group in February 2016, it appears that the HSE’s Occupational Hygiene input is to be reduced. For example, Dr Martin Gibson, a specialist who has been with the HSE Asbestos Unit for many years has moved to part time and there appears to be a shortage of staff.
While the HSE has embarked on a new strategy as a driver for the whole of the UK’s “health and safety system”, it has been instructed by ministers to develop its “commercial potential”. Indeed, it recently appointed a commercial director, most likely in an attempt to make up for the financial shortfall from the annual Government grant.
In addition, the non-Executive Board Members of the HSE used to have three trade union nominated positions and three employer representative positions. Recently six new non-Executive Board Members were appointed, including one recognised trade union nominee. The TUC had not been consulted — as it had been in the past — and it was informed that one of the employee representatives’ position was being given to a person from an employer background. This probably reflects the Government’s desire to make the HSE more commercially viable.
It should also be borne in mind that there are still campaigning groups seeking to improve protection for people at work and in the environment. Probably the most visual of these are the Asbestos in Schools group. The successful prosecution of the Boswells Academy Trust in Essex during July 2016 for failing to identify asbestos in the building, then disturbing it during a refurbishment can only maintain concerns. The school was fined £26,000 plus £20,000 costs.
So, there is likely to be little change to asbestos regulation as a result of leaving the EU. Such is the emotive nature of the history of asbestos in the UK that any government would not want to be perceived as reducing standards in relation to asbestos. However, changes of resource and direction for the HSE may mean that enforcement activity could be reduced.
It is also unclear at this stage what the arrangements for co-operation on asbestos — and other health and safety issues — may be for the UK, once we formally leave the EU.