“Before the end of 2014 people in Scotland will take one of the most important decisions in the history of Scotland and the whole of the United Kingdom (UK) – whether to stay in the UK, or leave it and become a new, separate and independent state”
(House of Commons, Scotland analysis: Devolution and the implications of Scottish independence, February 2013)
On Thursday 18 September the Scottish electorate will decide whether Scotland should become independent country or remain within the UK. But what does this mean for occupational health and safety in Scotland? Historically, this issue has come up before, although in relation to devolution rather than full independence. In 1979, Scotland held a referendum on establishing an assembly devolved from Westminster, though the vote fell short of the 40% of the electorate required to make this a reality. This period is an interesting one so far as it relates to health and safety issues, because in the run up to the referendum the Health and Safety at Work etc Act (1974) was in its first few years of implementation. During a trip to the National Archives of Scotland, I happened across a number of documents from this period which provided an insight into some OHS concerns that, in the 1970s, set Scotland apart from England, and implied that homogeneity in OHS legislation would not work for a devolved Scottish Assembly.
The Health and Safety at Work etc Act was introduced into UK law in July 1974. The act laid down the general principles for the management of health and safety at work in the United Kingdom and also resulted in the creation of the Health and Safety Commission (since merged with the Health and Safety Executive). At the time devolution was being discussed (1975-1978) this legislation wasn’t fully implemented, which could have contributed to some anxiety in terms of Scotland’s proposed control over OHS issues relating to agriculture, offshore oil and particularly emissions from industrial premises. For example, industrial emissions were to come under the remit of the HSC, but it was felt, in Scotland, that this should remain within the powers of the Department of the Environment (as this was seen to be an environmental issue). Furthermore, correspondence between the Scottish Home and Health Department and UK government officials highlighted a few complexities here with regard to devolution: different standards in England and Scotland could be harmful, and uniformity across Scotland and England was preferable for the UK government. However, industrial emissions were very closely related to other aspects of environmental health which would be devolved to the Scottish assembly, making this a tricky issue.
At this time it was also expected that the NHS would work closely with aspects relating to occupational health, which might be difficult under a devolved Scottish Assembly. In July 1975 the Scottish Home and Health Department wrote that it would be ‘illogical’ for Scotland to have control over the NHS, but with health during working hours under the control of Westminster. The department also recognised that in ‘view of financial and other constraints’ the idea of setting up a Scottish Health and Safety Commission was unlikely, but suggested that if Scotland wished to have control over some arrangements ‘e. g. alcoholism at work’ it was thought that this should not cause serious difficulty for the rest of the UK.
These discussions were academic, however, as Scotland did not gain devolution from Westminster until 1999. Today, Scotland’s health and safety laws come from the UK parliament (which in turn takes many of its regulations from the EU). Scotland cannot make new health and safety laws, but can make law on related issues, such as criminal law. Since 1999, there has existed a concordat between the HSE and Scottish executive which is non-binding, but allows for practical working arrangements between the HSE and the Scottish Executive on OHS matters.
So who will have responsibility for health and safety in the event of a ‘Yes’ vote on September 18? There is still the question of whether Scotland would remain in the EU, but it is possible that, as the Scottish government wishes to join the EU, it will bring health and safety laws into line with EU requirements (a necessary pre-requisite for membership). Furthermore, in 2011, Employment Minister Chris Grayling commissioned the Löfstedt report – an independent review aimed at streamlining health and safety regulation in Britain. Scottish independence would not happen overnight, and it is probable that by the time Scotland did achieve full independence the recommendations of the review will have already been implemented. In addition, given that there are already HSE offices employing over 270 staff in Aberdeen, Edinburgh, Glasgow and Inverness, any radical overhaul of health and safety regulation in Scotland might seem an unlikely eventuality.