In April 2013 the Government published a booklet called Transposition Guidance: How to implement European Directives effectively.
It is an easy read. The booklet is clearly intended to cover new Directives and does not deal with the question of Revision of Transposition at all. However, although the changes to section 47 are effectively revision of prior acts of transposition in relation to European Health and Safety Directives, the booklet raises a number of interesting questions.
First, the clear intention is to go for the minimum standard set by a directive in order to help UK businesses be competitive.
Second, Gold Plating is to be avoided. Gold Plating is the act of taking a directive and transposing it in a way that means that it is more stringently implemented that the directive requires. The UK Government’s preferred route is the method of ‘copy-out’ where the same wording of the directive is used. In our context we have a hybrid. The effect of the ‘gold-plated’ UK health and safety regulations remaining in force is that the Government can claim in Brussels that the EU health and safety directives have been and remain fully transposed whilst claiming in the domestic courts that no action for breach of statutory duty lies in respect of them.
Thus the revision of s 47 falls short of the official admonition that,
‘particular care should be taken where the provision of a directive is intended to create rights for individuals’ page 11.
The revision also fails to achieve the goal of avoiding double-banking. Double-banking occurs where you have two sets of legislation (European and domestic) covering the same area. If the government’s argument is that s 47 as revised still transposes the relevant directives, then the Government has achieved triple-banking as the common law, the domestic health and safety regulations and the directives will all have a role to play.
Two final points.
The booklet expects that the official responsible for transposition will use alternatives to legislation but only if there is room for alternatives to be used. At no point in the relevant directives is it suggested that transposition can be left to the judges on a case by case basis; nor, generally, is any room is left for manoeuvre outside effective regulatory acts by the Member State.
The booklet warns that care should be exercised so that people can know what is expected of them. It is difficult to see how a set of regulations which then has to be filtered through the sieve of the common law is going to leave employers’ clearer about where they are. If anything the position is less clear than it was before.
I have said this before but it is worth saying again. Löftstedt’s proposals were modest and aimed at extending the reach of reasonable practicability- a doctrine which the CJEU accepts is allowable. By not adopting Löftstedt’s approach the Government risks increasing uncertainty and tying-up businesses and their insurers in years of litigation.