Nigel Bryson gives a personal view on the recent Department for Work and Pensions report that praises the Health and Safety Executive’s position with regards to negotiations in Europe.

A report commissioned by the Department for Work and Pensions (DWP) confirmed that there was no “goldplating” of EU health and safety directives by the Health and Safety Executive (HSE). Goldplating describes the process whereby an EU directive is given additional powers when transposed into the national laws of Member States. It usually as seen as additional regulation that adds costs for businesses.

The appraisal was undertaken by an independent reviewer from the DWP, Kim Archer. While it was completed in April 2014, the report was not released until 31 October 2014, with no publicity.

Critics argue that the Government has not publicised the findings of the report because it did not find any evidence that the HSE had “goldplated” any directives. Indeed in those few cases where the requirements had been had been extended, it was in the interests of British employers. So after four major reviews of health and safety regulation and the HSE, the Government still cannot find any evidence that the Britain is over-implementing EU health and safety directives.

So what did the appraisal reveal?

The remit of the appraisal of HSE’s approach to negotiating and implementing EU legislation was to:

  • provide a short overview of the HSE’s current negotiating position within the EU, and identify if any previous EU legislation had by “goldplated” by the HSE

  • consider if the current approach to EU negotiations on respective legislation and implementation followed relevant government guidance

  • provide assurance that the HSE properly represented business and UK growth agenda in EU negotiations

  • ascertain whether the legislation planned for the next 18 months can be minimised “and what the consequences would be of refusing to implement or minimising the transposition of the Directives”.

Overview

The report points out that the main body of health and safety directives came in the 1990s: “Since then the flow of legislation has reduced significantly”.

Apparently, since “the mid-1990s, successive UK governments have strengthened the focus on minimising potential and actual regulatory burdens on business”. Given that the whole approach of the current government has been on reducing the alleged “burden” of health and safety regulation on businesses, this point seems contradictory to their position.

The point on minimising “burdens” to business interests was highlighted: “The need to balance risks to health and safety while minimising burdens on business has been reflected in the way the HSE negotiates and implements EU legislation.”

It was also emphasised that when the directives came to be put forward for adoption it “requires ministerial agreement to the UK’s voting position”. So, most of the health and safety directives implemented by the UK were agreed by the UK Government.

One exception was the Working Time Directive. When John Major was Prime Minister he argued that hours of work was not a health and safety issue, but an industrial relations matter. Hence the UK Government formally opposed the adoption of the Directive and challenged the European Commission in the European Court. The UK lost the case and had to implement the Directive under health and safety requirements.

In relation to “goldplating” the appraisal recorded: “As the Löfstedt and other reviews report, there is little evidence of unjustified goldplating by the HSE.”

Where UK legislation maintains higher standards than a specific directive, they are kept because: “these are considered to be more proportionate to the risks in GB”; or “changing well-respected regimes would be a greater cost to business than the benefits to be gained by reducing the existing standard.”

Asbestos was used as an example of such an exception: “HSE’s approach to asbestos is an example of where goldplating was considered against the government’s policy and agreed by ministers as justified.”

In this case, the UK requires licensed contractors to remove certain asbestos-containing materials. This is not required by the EU directive dealing with asbestos work.

When considering the issue of the UK maintaining higher standards than the respective directives more generally, it was pointed out that in these small number of cases: “HSE was seen as using an intelligent approach to the use of the Guiding Principles and Transposition guidance.”

The report identified that the HSE had “developed some very effective tactics to influence other Member States”. In commenting on how the Government could carry forward its programme of simplifying and repealing specific EU legislation, it was suggested that the Government needed “to develop a comprehensive strategy” to influence all the key players in the EU establishment.

Current approach

During the appraisal process a wide range of stakeholders were consulted about the work of the HSE in Europe. It was found that: “There was a remarkable consistency between what the HSE said it did and the feedback received from external stakeholders about their experience of working with HSE.”

This underpins the value of the efforts the HSE makes in consulting various stakeholders when proposals are being made. By involving those who may be affected by a proposal, the HSE is in a stronger position to influence the European Commission. The report provided support for identifying the HSE as an effective department.

The government cabinet Reducing Regulation Committee (RRC), which provides policy clearance for proposed legislation, uses impact assessments to identify the possible effects of proposed legislation. The appraisal identifies that the HSE’s impact assessments are well respected: “The evidence from RRC relating to impact assessments show HSE as one of the best agencies or departments.”

Examples of the HSE’s success in influencing European developments included the blocking of a directive on ergonomics and stopping the European Directive implementing an agreement by the social partners on the protection of occupational safety and health in hairdressing.

Business interests and UK growth

With regard to the HSE taking into account business interests and the Government’s business growth agenda, the conclusion could not be more definite: “Business interests and the business growth agenda are well understood and taken into account by HSE”.

In showing how the HSE stance benefited business the report states: “The evidence brought forward during this appraisal strongly suggests that the HSE has been most effective in challenging the need for legislation early in the pre-proposal stage.”

In citing the HSE success in blocking the proposed Ergonomics Directive and the directive to improve the health and safety protection to hairdressers the report states: “the Better Regulation Executive is using these two examples as effective role models for other Government departments”.

The next 18 months

One of the points made in the report was that the development of legislation at a European level often took years. Currently the HSE was working on directives related to electromagnetic fields, the major accident chemical sites directive revision (Seveso III) and a directive relating to the offshore oil and gas drilling.

While two of the directives had been agreed, the electromagnetic fields directive was causing problems: “The Electromagnetic Fields legislation is not seen by business or HSE as necessary or based on sound science.” It was pointed out that: “refusing to implement the Directive would be unlawful and risk infraction proceedings, and significant fines, on the UK Government.”

Fortunately the effective negotiations of the HSE gained “more scope for flexibility through derogations, which it expects to use to the full.”

Final thought

One question that was not asked in the report was: How can the HSE best influence the European Commission to assist employers to improve health and safety standards at the workplace?

While it is useful to have it confirmed that the HSE is excellent at taking “business interests” into account, the appraisal indicates that the 40-year tripartite system at a national level — HSE, employers and trade unions — is effectively becoming business only.

Last reviewed 10 December 2014