Last reviewed 29 October 2020
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 the CLP Regulation? Yes: Regulation (EU) 2020/1182 amending Regulation (EC) 1272/2008 on classification, labelling and packaging of substances and mixtures. Has Directive 2017/2102, which amends Directive 2011/65/EU (recast) on reducing the risks posed by hazardous substances to health and the environment, been implemented into UK law? Yes, by the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (Amendment) Regulations 2019.
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 Housing and Planning Act 2016 (Permission in Principle, etc) (Miscellaneous Amendments) (England) Regulations 2017 include a provision that, in dealing with an application for hazardous substances consent, the hazardous substances authority must have regard to any permission in principle that has been granted in relation to land in the vicinity.
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 (the Product Safety and Metrology etc (Amendment etc) (EU Exit) Regulations 2019 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
Although the transition period, under which the UK continues to abide by EU rules and legislation, is only weeks away from its conclusion, the discussions over the UK’s future relationship with the Union remain deadlocked as of mid-October 2020. Prime Minister Boris Johnson has warned that the country must prepare to move to an “Australian-style” trading arrangement on 1 January 2021 if no deal is possible (essentially operating under basic World Trade Organisation (WTO) rules).
While the UK will no longer be required to automatically implement European Directives and Regulations, however, 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. One obvious example is the REACH Regulation (1907/2006) which applies detailed rules on the registration, evaluation, authorisation and restriction of chemicals (REACH). Together with its numerous amendments, this provides an important body of law with which companies in the USA, and many other major exporting nations, have to comply.
The European Commission has already issued a guidance note “Withdrawal of the United Kingdom and EU rules in the field of chemicals regulation under REACH” which explains that “manufacturers/producers established in a third country, including the United Kingdom, of substances on their own, in mixtures or in articles manufactured or placed on the EU market in quantities of one tonne or more per year, are in particular advised to: ensure registration is with a manufacturer or importer in the EU; or appoint an Only Representative in the EU as registrant for the substance.”
Amendments to the REACH Regulation continue to appear regularly (with the most recent being Regulation (EU) 2020/1435 on the duties placed on registrants to update their registrations under the REACH Regulation) so this is certainly an area of EU law which will have to be kept under review, whatever the outcome of the ongoing talks between the UK and EU. 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 will not end when the transition period finally comes to a close.
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.