The independence referendum: a Scottish Health and Safety Executive?


The independence referendum: a Scottish Health and Safety Executive?

As followers of the Scottish independence debate will know, earlier this month 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 health and safety legislation is reserved to the UK Parliament. 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.

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 their 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.

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.

Key contact

Niall McLean