Last reviewed 22 March 2021
Companies are not required to have a legal register. However, if they are operating in areas in which compliance with a wide range of rules and regulations is necessary, it is difficult to see how they could meet their obligations without a proper system in place. Paul Clarke explains what a legal register is and how it can be a practical tool that improves efficiency and helps to reduce costly mistakes.
What is a legal register?
If your company handles a number of dangerous substances then it would of course be possible to go online each time a problem arises with, say, explosives or lead or asbestos and find the relevant legislation (both UK and, as will be explained, the EU) to clarify your obligations. Possible, but time-consuming and it runs the risk of missing new or recently updated items.
A legal register addresses this problem by bringing into one collection all the legislation that impacts on dangerous substances (or air pollution or waste or whatever subjects apply to a particular company). Properly maintained and kept up to date, the register thus becomes a vital source of reference that will quickly and easily answer the queries that arise. Has there been a recent change to Regulation (EU) 2016/425 on personal protective equipment (PPE)? Yes: by Decision (EU) 2021/395 amending Decision (EU) 2020/668 as regards harmonised standards for various items of PPE. Are the Fireworks (Scotland) Amendment Regulations 2021 still in force? No: they were revoked by the Fireworks (Scotland) Miscellaneous Amendments Regulations 2021 with effect from 22 March 2021.
Meeting the standard
Reinforcing the point mentioned above, a well-maintained and organised legal register will help an organisation to meet all of the compliance requirements within current environmental management systems standards, including ISO 14001 and ISO 50001. With regard to health and safety, ISO 45001 requires organisations to establish, implement and maintain a procedure for identifying and accessing the legal and other requirements that are applicable to it. Keeping this information up to date, an organisation must ensure that these applicable legal requirements are taken into account in establishing, implementing and maintaining its occupational health and safety management system.
This last point is particularly important as it implies that the operational risks within that particular organisation are considered in the light of the legal requirements identified within the register. In other words, the register cannot be a "dead" list of titles and dates; each item must be examined, summarised and considered in terms of the specific risk areas identified.
To take one example, the subject of the Control of Mercury (Enforcement) Regulations 2017 is fairly obvious and the legislation would easily be found in any search for that particular dangerous substance. It is not however immediately apparent that the Environmental Permitting (England and Wales) (Amendment) (No 2) Regulations 2018 concern basic safety standards for protection against the dangers arising from exposure to ionising radiation.
Compiling and maintaining a register
New legislation is published almost daily by the UK Government on www.legislation.gov.uk. But it is no easy feat interpreting what is relevant to your activities. The legislation is divided into four jurisdictions: UK, Scotland, Wales and Northern Ireland. There is no category for Great Britain, nor, for that matter, England, which explains why the Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) (Amendment) Regulations 2020 are listed under the UK, as are the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment (Amendment) (EU Exit) Regulations 2020, even though the latter do not apply to Northern Ireland.
Once this question of jurisdiction is addressed, there remains the problem that the lists are simply presented in reference number order. A piece of legislation on the environment will be followed by one on taxation, another on chemicals and one whose scope is not immediately apparent (such as the Product Safety and Metrology etc (Amendment etc) (EU Exit) Regulations 2019 which amends legislation including the Explosives Regulations 2014, the Pyrotechnic Articles (Safety) Regulations 2015 and the Simple Pressure Vessels (Safety) Regulations 2016. On any given day, up to 20 items of legislation may be published, of which perhaps one will be relevant to your search.
Still, the fact remains that the only way to build up a coherent and consistent legal register in complex areas such as health, safety and/or environment is to examine these daily lists in detail and to abstract and summarise those which fall within the relevant subjects, even if some do so only tangentially.
The European question
We have already included examples of European legislation in the examples given above and the question obviously arises as to why these should be relevant given that the UK has left the EU. Although the transition period ended on 31 December 2020 and the UK is no longer bound by its legislation or answerable to its institutions (including the European Commission and the EU’s Court of Justice (CJEU)), a great deal of pre-2021 European legislation now forms part of domestic law in the form of Retained EU legislation (as introduced at the end of the transition period by the EU (Withdrawal) Act 2018).
Much of the legislation, having been published in the form of Directives, has already been implemented in UK law as in the example of Directive 2014/68/EU on the harmonisation of the laws of the Member States relating to the making available on the market of pressure equipment, which was transposed by the Pressure Equipment (Safety) Regulations 2016.
However, EU legislation published as Regulations was directly applicable in all the Member States including the UK. This included laws of particular significance such as Regulation (EC) 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (the REACH Regulation). In this instance, the Government has created an independent chemicals regulatory framework, UK REACH, which essentially mirrors the EU original with amendments only where necessary (such as inserting references to the Health and Safety Executive (HSE) as the enforcing authority).
If this explains the continued significance of much pre-2021 EU legislation, it leaves the question as to why future developments in the Union need to be kept under review. While the UK will no longer be required to automatically take note of future Directives and Regulations, manufacturers and exporters should be aware that it will be difficult, if not impossible, to trade with the single market if they fail to meet the requirements of certain key legislation. The REACH Regulation is an obvious example as, with its numerous amendments, it provides an important body of law with which companies in the USA, and many other major exporting nations, already have to comply.
Amendments to the REACH Regulation continue to appear regularly (with the most recent being Regulation (EU) 2021/57 amending Annex XVII to the REACH Regulation as regards lead in gunshot) so this is certainly an area of EU law which will have to be kept under review. Add to that other important legislation such as that affecting RoHS 2 (restriction of the use of certain hazardous substances in electrical and electronic equipment), the CLP Regulation (on the classification, labelling and packaging of substances and mixtures) and the Rotterdam Convention (on the Prior Informed Consent (PIC) Procedure for certain hazardous chemicals and pesticides in international trade) and it is clear that the need for a daily check of the EU's Official Journal did not end when the Brexit process was completed on 31 December 2020.
Access to a basic register which categorises the key legislation by themes — health and safety management, hazardous substances, waste, pollution, etc — and which allows you to add relevant entries as well as including access to readable summaries of each item of legislation will save considerable amounts of time in-house. It should also ensure that newly published items of legislation are not overlooked and that regulations with implications for more than one subject area — possibly for both environment and health and safety — are flagged up accordingly. The Control of Mercury (Enforcement) Regulations 2017 are a good example.
Health, safety and environment management standards including ISO 45001 and ISO 14001 do not specifically require organisations to maintain legal registers but doing so is one of the most efficient and cost-effective ways of meeting their demands that participating organisations are able to identify, access and keep up-to-date with the legal and other requirements that are applicable to their sector. A register can also be a valuable tool when it comes to preparing for a compliance audit, to organising training courses and to setting out an emergency plan.