Niall McLean investigates the consequences for health
and safety law in Scotland should the country vote to
leave the United Kingdom in 2014
As followers of the Scottish
independence debate will
know, on 15th OctoberNiall McLean investigates the consequences for health
and safety law in Scotland should the country vote to
leave the United Kingdom in 2014
As followers of the Scottish
independence debate will
know, on 15th October Alex
Salmond and David Cameron signed
the 'Edinburgh Agreement'. The
agreement sets out the terms on which
the Scottish Parliament can introduce
legislation for an independence
referendum.
The referendum legislation is expected
early next year and will set out:
The date of the referendum (expected
to be Autumn 2014);
Who can vote (expected to be
extended by the Scottish Parliament to
16 and 17 year olds);
The wording of the referendum
question;
Rules on campaign financing; and all
other rules for the conduct of the
referendum.
In the event of a "Yes" vote there
would be consequences for health and
safety law in Scotland. Currently the UK
Parliament is responsible for health and
safety legislation. This means the Scottish
Parliament cannot make laws which
relate to health and safety (although it
can make law on related issues including
the general criminal law). Scotland's
health and safety laws come from the UK
Parliament which, in many cases, is
giving effect to European requirements.
To ensure stability it is almost certain
that an independent Scotland would
preserve the existing laws that were in
force immediately prior to independence.
This would include all current health and
safety legislation. Scotland's law would
then diverge if and when the new
Scottish Parliament created new rules.
The UK Government's Löfstedt review
was published in November 2011, and
recommended changes to health and
safety legislation. The UK Government is
committed to following the
recommendations in the review and they
are due to be implemented by April 2015.
While the independence referendum
must take place by the end of 2014, a
"Yes" vote would not result in immediate
independence. There would need to be a
period of negotiation and planning to
confirm the details of independence, and
so the Löfstedt recommendations would
likely have been fully implemented by
the time independence actually occurred.
The Scottish Parliament would then have
the chance to make further changes to
health and safety law post-independence.
EU membership
However, an independent Scotland could
face a limitation on its powers to diverge
from the UK on health and safety
legislation. As I have already mentioned,
most health and safety legislation comes
from European law in the form of EU
Directives. One of the most hotly
debated topics in the independence
debate is whether an independent
Scotland would remain in the EU.
The current Scottish Government is
committed to an independent Scotland
being a member of the EU so, whether or
not that would happen automatically, it
would be likely to happen at some point.
As an applicant state is required to make
its law consistent with EU law in order to
join, an independent Scotland would be
likely to continue to follow EU law even
if it was not initially an EU member.
Scottish body requirement
It is clear an independent Scotland would
need to have the services of a body
equivalent to the Health and Safety
Executive - a Scottish HSE. This point
was raised in relation to the oil and gas
sector in a memorandum submitted by
the Department of Energy and Climate
Change in March 2012. Currently health
and safety issues relating to the UK
continental shelf are the responsibility of
the HSE. If Scotland became
independent, responsibility for health
and safety on the Scottish continental
shelf - including its oil rigs and gas
platforms - would have to be undertaken
by a comparable Scottish body. The
DECC memorandum noted "a
considerable expertise is required to
effectively undertake the HSE
responsibilities. For a Scottish body
efficiently to undertake its work it would
be most desirable that a large amount of
relevant data be made available to it".
The HSE already has an office in
Aberdeen dealing with offshore health
and safety so, provided that expertise and
resource was retained by a Scottish HSE,
regulation of that sector could continue
largely unaffected. The same can be said
across the construction, agriculture and
other sectors currently regulated by the
HSE in Scotland through offices in
Aberdeen, Edinburgh, Glasgow and
Inverness. Those hoping for a radical
overhaul of health and safety law and
regulation in the event of independence
may be disappointed. That said, as
reflected in the Löfstedt review,
proportionate risk management and
observance of health and safety law
makes good business sense; it is to be
commended whether Scotland is
independent or not.
Niall McLean is a senior solicitor at
Brodies Solicitors
