(13 years, 12 months ago)
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Lord Young of Graffham
To call attention to the report to the Prime Minister Common Sense Common Safety on the operation of health and safety laws and the growth of the compensation culture; and to move for papers.
Lord Young of Graffham
My Lords, it has been some 21 years since I last opened a debate in your Lordships' House. Over these years, our House has changed, for many who used to grace your Lordships' House are, alas, no longer with us. However, one thing that I am certain has not changed is the courtesy and attention which all in your Lordships' House display towards our debate.
Towards the end of last year the Prime Minister, when he was Leader of the Opposition, asked me to review the operations of health and safety laws and the compensation culture. I published my report on 15 October, after the Cabinet had accepted it in its entirety. I was continuing to work on the process of implementing the 40 or so recommendations across Whitehall. As many in your Lordships' House will know, that is no longer possible, but I have every confidence that the outstanding matters in my report will be implemented in full.
Let me begin by saying that due to the Health and Safety at Work etc. Act 1974, one of the more successful pieces of legislation, this country has the lowest number of non-fatal accidents at work in the EU and the second lowest number of fatal accidents. This does not, of course, mean that we can afford to be complacent in any way about health and safety, and nothing in my report will reduce safeguards in hazardous occupations. My review deals only with non-hazardous activities, where the health and safety risks are very low but the level of bureaucracy is unacceptably high.
When I first started my work, I assumed, as perhaps many in your Lordships' House would assume, that this was somehow all to do with intrusive legislation emanating from Europe. Alas, I found that this was not so, for much was home-grown, often not because of any laws or regulations but because of the practices adopted by unqualified consultants and untrained health and safety officials in both the private and the public sector. Unfortunately, the sometimes excessive recommendations of an untrained consultant were often followed to the letter, not because the client believed that they were appropriate but because they feared that if they did not follow the advice, their accident insurance policy might in some way be defective. Their concern was heightened largely because of excessive advertising on daytime television and the radio by claims management companies that made them worry that they could be sued on the slightest pretext and have to pay massive damages. Indeed, if you consider the many ways in which government has enabled people to sue—the availability of no-win no-fee contracts, the availability of after-the-event insurance, the actions of the claims management companies that harvest claims in order to auction them off to the solicitor who will pay the most—the world would seem a very unfair place to many small and medium-sized companies.
My report came down firmly on the side of Lord Justice Jackson’s report on civil litigation costs. I am delighted that the Ministry of Justice announced last week that it had started consultations with a view to implementing the report. Lord Justice Jackson came out against the claims management companies and their excessive advertising. I look forward to the outcome of these consultations. In addition to the implementation of the Jackson report, my report recommended that we extend the road traffic accident scheme that was introduced earlier this year in respect of personal injuries arising from traffic accidents across all personal injury claims.
The great advantage of this simplified system is that it enables claims to be settled very quickly. It takes 18 months to settle a personal injury claim using the current system. As a result, it is highly likely that the claimant will not return to work until the case is settled, probably on the advice of their lawyer. In these circumstances, it is possible that the claimant may never return to work. The RTA scheme has demonstrated already that claims can be settled in as little as three to four months. Not only would we have the advantage of much lower costs, saving the National Health Service many tens of millions of pounds a year, but there would be an increased likelihood of the claimant returning to full-time work.
There are other concerns about the abuse of health and safety legislation. All too often it has been used as an excuse for inaction. There is the by now infamous case of the pancake race last Shrove Tuesday in St Albans, where a local authority health and safety official, who arrived just before the off, decided that, as it had rained the night before, he would stop the race. In the event, he let them proceed, provided that they walked the course. I had our lawyers look at this incident; they could not decide under what authority the official acted.
This is not a unique case. In the course of my inquiry we heard of many people who were concerned about the improper use of health and safety legislation. We have now agreed that, should this happen in the future, you can ask the official concerned to put his legal authority for the decision in writing. Any citizen will have the legal right to refer that case to the ombudsman, who has agreed to give an answer within a fortnight. If the event was cancelled without proper authority, the local authority will have to pay compensation. I do not believe there will be many cases of local authorities paying compensation, but it will make officials think twice or more before coming out with arbitrary decisions.
A further area of concern was the bureaucracy imposed on teachers. I found that if a teacher wished to take a class out, he or she had to complete a 12-page pack of forms eight weeks in advance and then get them signed off not only by his or her superior in the school but by the local education authority. This applied every time a teacher wanted to take a class out. Really, this has nothing to do with the safety of a class when it is out of school—that depends mainly on the vigilance of the teacher—but it is an additional and unnecessary burden on an already hard-pressed teacher. Now, all that will happen is that a pupil, when they commence school, will bring along a letter of consent to all sports and outings, signed by their parent or guardian. Of course, all parents will continue to have the right to withdraw their child from any particular trip or activity.
Another area has given rise to general concern. At the time of the heavy snows last February, much was stated in the press about the danger of clearing the snow in front of your house. It was widely stated that if you did so and someone had an accident, you could be liable. Nothing was further from the truth, for voluntary acts do not generally make you liable, but this is once again one of those areas where perception becomes reality. My report recommends that we legislate to make this absolutely clear. I hope, and anticipate, that space will be found this Session in which to do so.
When I travelled round the country, I also found that local authorities were sending their health and safety inspectors to exactly the same premises to which they were sending their Food Standards Agency inspectors. As a result of my report two things will happen. First, I recommend that we merge food inspectors and health and safety inspectors so that each visit covers both areas. Secondly, we are introducing a scheme that will encourage every restaurant and store selling open food to display the results of their inspection at the entrance, and all premises will be marked on a score from five down to zero. I recommend that noble Lords do not go near a restaurant with a score of zero, for about 1 million people a year suffer from food poisoning, some 20,000 end up in hospital and, alas, some 500 die. I believe that such a scheme would provide upward pressure on standards, as has been found to be the case in California where there is a scheme of this nature. It is voluntary for the first year, but should the uptake not be satisfactory we have agreed to make it compulsory. I hope that it will operate in time for the Olympics as it would be a great boon to our tourist industry.
I have covered only a few of the 40 or so recommendations contained in my report. There have been few criticisms of the report’s content, save perhaps from a small minority of personal injury lawyers. I hope that over the next year the report’s various provisions will come into effect and that health and safety will become less of a joke and resume its rightful place in the protection of people in the workplace. It is probably too soon to say but it is my impression that over the past few weeks there have been far fewer stories about health and safety in the press—I have noticed one or two other stories as well—but only time will tell. I beg to move.
Lord Bhattacharyya
My Lords, I begin by thanking the noble Lord, Lord Young, for securing this debate. In politics, it sometimes seems that the greatest health and safety risk is the act of thinking aloud. However, it is only by risking controversy that we achieve anything. I am glad that the noble Lord speaks his mind, because too often politics is governed by caution, not frankness.
I declare an interest as director of Warwick Manufacturing Group and as an engineer who has long been concerned with product design and industrial processes. As a young engineer, I remember developing systems to prevent machine operatives from developing posture problems, so avoiding the back injuries and arthritis that manifested themselves 20 or 30 years later. Indeed, the whole subject of industrial ergonomics sprang from research into safety at work. It was not a joke but an ally in building a better workplace and improving productivity, so how did “elf’n’safety” become a national bugbear alongside the jobsworth and the traffic warden? I believe that the answer is a lack of balance. Health and safety regulation becomes unbalanced when processes designed for hazardous activities are applied to low-risk environments.
In many ways, the emergence of a health and safety-conscious society has been a success. Even in the past decade, as the noble Lord mentioned, the number of fatal injuries at work has declined. The Labour Force Survey identifies a fall of 45 per cent in non-fatal injuries. That is good news. There have been fewer deaths and fewer injuries. Only half the reduction in fatalities is due to the changing nature of British industry. It is improved safety that makes up the rest of the difference.
Where you see good, well established manufacturing businesses with high productivity and quality control, you invariably also find a strong health and safety record. At Jaguar Land Rover, more than 50 people are employed specifically to work on health and safety. This is not a legal requirement. The managers simply see it as part of good business practice. We need a broader culture of partnership between business and health and safety inspectors. In hazardous occupations, this is happening. The HSE makes it a priority to work with industry groups such as the Confederation of British Metalforming to produce sensible advice for companies. For example, the Manufacturing Technologies Association contributed to the HSE’s work on standards for safety in machine tools.
Sadly, once you leave the shop floor and go to the small business, the office or the village hall, the reputation of health and safety plummets. After all, health and safety originated in industry; that was where the problem was. It is tempting to see this as a result of media exaggeration. Yes, many of the stories that we hear are myths, but the myths persist for a reason. In yesterday’s Birmingham Mail, there was a story about “topple tests” in a local cemetery. These tests apply pressure to gravestones to see if they fall over. Families whose gravestones fell down were charged £500 for repairs. The Government, the Health and Safety Executive and the industry body all said that these tests were not needed, but they went ahead anyway. It is this sort of activity that gives health and safety a bad name.
We need a proportionate management of risk. Studies have shown that, for a pilot, even the slightest change in a display can have a major impact on safety. The same is not true in most offices and small businesses, yet too often the same level of risk avoidance is demanded. As a result, nearly 40 per cent of small businesses say that health and safety regulations are an obstacle to success. For many small businesses, a fear of being sued for negligence, as the noble Lord mentioned, leads them into a twilight world of misleading information and overfussy guidance.
Often, these policies come not from government but from the small army of consultants who advise businesses on workplace safety. For small businesses, those independent consultants are the main source of information on health and safety. Many are reputable, but some have little interest in making the regulations understandable. The more confusion there is in the interpretation of regulations, the greater is the need for consultancy. It can be nothing more than a gravy train. This leads to high cost. The Better Regulation Executive reported that avoiding pointless health and safety advice could save small businesses £140 million a year.
The solution is clarity and simplicity, not laxer safety rules. We should make it simple for businesses to do their duty by taking reasonable steps to prevent risk. I therefore support the report’s proposal of 20-minute checklists for offices, shops and charities. They should provide clarity that this is all that is required from business. Next, we need to ensure that independent consultants offer good, straightforward advice. Today, the HSE recruits inspectors from industry and puts them through training that provides an understanding of business needs. The report suggests a qualification requirement for consultants, with the HSE taking the lead in validation. I agree. I further suggest that it would be sensible to use the HSE’s existing framework of training as the basis of such a qualification.
The crisis of health and safety in this country is not one of legislation; as the report says, our legislation is effective. It is not one of fatalities or injuries, on which our record is excellent. The crisis is one of communication, complexity and consultants. To change that, we need simple rules and easily understood, common-sense regulation, not gold-plated regulation. Therefore, I entirely agree with the report, which I would like to see supported and implemented fully.
Lord German
My Lords, I thank my noble friend Lord Young for his report and, in particular, for the wide range of aspects that it covers because of the range of interests that have to be accommodated in this very complex process, which needs to be simpler. A good health and safety regime must be able to get the balance right, and it is that balance that I will talk about first. Two watchwords that have been mentioned already are protection and proportion: the need to protect people in the workplace and to provide a proportionate response to risk. Getting the balance right between risk and the cost of precaution is the important challenge for us all.
Of course, saving lives and preventing injury must be in the forefront of everything that we do. In practice, as we all know, many people are getting the balance wrong. We have heard indications of that this morning. Some people are going too far, which leads to the sort of myths that we have regularly heard about and seen. We have just heard about pancakes. I suspect that many noble Lords will remember the story about mortarboards. Metro reported that students on graduation were not allowed to throw their mortarboards into the air, for fear that the sharp points might damage their heads when they came down. Just this month, the Liverpool Daily Post reported that potted plants would not be permitted because they were a health hazard. On the other hand, although these are myths, people are still being hurt in easily preventable accidents because not enough has been done to ensure safety. We need to draw the right balance.
I am very glad that my noble friend stated that the problem is not health and safety legislation, but its application and interpretation. He said that, alas, he could not find a problem with European legislation, and I hope that he and his colleagues will take that to heart. It is not European legislation but perhaps its transposition to the UK that is sometimes at fault. The noble Lord, Lord Bhattacharyya, talked about gold plating. Sometimes we have difficulty identifying gold plating in legislation that has been transposed. Are we providing a belt and braces or adding extra things that do not need to be there? Perhaps the Minister will comment on these issues.
My one concern about the report is the emphasis that it places firmly and primarily on the demands and pressures that health and safety legislation imposes on business. I would have preferred a report in which first principles were laid out: a discussion at the head of the report laying out the key issues, such as the purpose of such legislation and how we achieve a proportionate response. One thing missing, I find, is an indication of how many opportunities are lost in life as a result of the legislation—in particular, the play opportunities for young people, many of which have been lost because of health and safety concerns. These overarching issues are raised in the report, so it is a matter of emphasis and where they occur. I welcome the fact that the report covers the issues, but the emphasis is strongly on business, which unbalances the detailed arguments.
I agree that, in that balance, there must be a smaller burden on small and medium-sized enterprises. The compensation culture, with its no-win, no-fee cheques, must be curbed, but we must balance this with a life and injury-saving safety culture in all places of work. Worker safety is a serious matter that risks being trivialised by the often-quoted tales, some of which I referred to just now, which are reported frequently in the media and often turn out to be absolute myths.
However, as with many aspects of life and society—and the noble Lord said this at the outset—perception is all. Perception of a compensation culture has made business fearful of being sued. That perception has been fuelled by aggressive advertising and, for example, by those firms that make it their business to scan road traffic accident and court reports so that they can approach the injured party to seek business. I have no idea how successful such firms are in getting business, but it is clear to me that, if such approaches did not provide an income for claims firms and the associated legal companies that take on the cases, those firms would not engage in this sort of cold-canvass advertising, so there must be a profit in it. The recommendation to which the noble Lord referred for a simplified system for personal injuries in accidents of this sort is very much to be welcomed.
I want to touch on a couple of specific issues. The first concerns training for consultants. It is very important that we provide a qualification structure for those who work in this area. One of the consequences of having a partly unqualified workforce in this area is that people who are unqualified are likely to say, “Let’s strip out all risk from the workplace”, when in fact that is not quite straightforward and it is certainly not the intention behind the legislation.
Secondly, I want to say one or two words of caution about combining local authority health and safety and food safety inspectors. I draw on my experience of the E. coli outbreak in south Wales last year and the subsequent Pennington review, which made it quite clear that there were major faults in the food safety regime. I want to make sure that we do not lose those sorts of skills by combining functions.
Overall, however, I welcome the report. The challenge for the Government now must be to produce a well-rounded response—I am sure that they will do so—that looks beyond the report’s emphasis on the cost to business and takes a wide perspective on the issues raised as a whole. Therefore, when the Minister comes to sum up the debate, I would welcome his views on the need for a multifocused response.
Lord Ramsbotham
My Lords, I congratulate the noble Lord, Lord Young, on initiating this debate and I welcome his report. I have to admit that my contribution will be devoted to one issue that is deeply affected by three of his recommendations, which propose: a shift from a system of risk assessment to a system of risk-benefit assessment; a review of the Health and Safety at Work etc. Act to separate play and leisure from the workplace context; and the abolition of the Adventure Activities Licensing Authority and the replacement of such licensing with a code of practice. I note with interest that the Adventure Activities Licensing Authority is not one of the organisations threatened with abolition or merger in the Public Bodies Bill.
As I have said before in this House, the only raw material that every nation has in common is its people and woe betide a nation if it does not do everything possible to identify, nurture and develop the talents of its people—all its people—because, otherwise, it will have only itself to blame if it fails. For the past 15 years, I have been working with those at the bottom of the national pack—namely, offenders and those at risk of offending. You often find that they have been neglected in a whole variety of ways, including by parents and schools, but when notice is taken of them and opportunities are put their way, they seize them and demonstrate abilities that can be harnessed and developed to the benefit not only of themselves but of the communities in which they live. At the heart of that process is challenging people to do things that they did not think they could do, because the resulting self-esteem is the key to further progress. Many of the challenges involve risk.
Here, I declare an interest as a member of the advisory board of Youth at Risk, which is an organisation involved in providing those challenges. For several years, Youth at Risk has been working in the hardest of inner-city areas and in young offender institutions. For the past three years, it has been running community transformation programmes for 10 local councils across the United Kingdom that are designed to work with young people at risk of poor outcomes. During this time, the organisation has worked with more than 1,700 young people and 2,200 adults, of whom 100 per cent reported that they were able to develop more stable relationships, 63 per cent said that their self-esteem had been improved and 75 per cent reported that they were more able to support others. Typically, those young people included 80 per cent with behavioural, social and/or emotional problems; 60 per cent who were involved in gangs; and 30 per cent who were involved in gun and knife crime.
The evaluation found that the programme successfully engages with vulnerable young people, who engage because they are inspired by the opportunity to change their lives. The statistics prove that they are more determined to achieve as a result. At the same time, the programme has been rolled out in schools and now works with young people who have challenging behaviour that is destructive to their and others’ learning. The programme looks after those whose self-esteem, belief and aspirations need development as well as very able pupils who are at risk of becoming young offenders. All that has been summed up in a poem by two young participants of which I would like to quote one verse:
“Ready to work together so that we might stand tall,
We've learned all about pride before a fall.
As I said there’s no us and them, there’s no square,
LIFE IS A RISK THAT WE ARE WILLING TO DARE.
Like the challenge course, life is no breeze;
We’re about bringing mountains to their knees”.
Despite all that evidence, the sad fact is that Youth at Risk is having to withdraw its programme from one of the councils because the health and safety restrictions being imposed in effect remove the ability to undertake any form of challenging programme that contains the slightest risk. However, the results of overcoming fear and surmounting challenges are clear for all to see. If ever there was an example of the truth of an unenforceable rule that I found displayed on an Army notice board, “A breach of common sense is a breach of the rules”, this is it.
Like other noble Lords who have had the privilege of visiting our Armed Forces in operations in Iraq or Afghanistan, I came back exhilarated and humbled by that experience. The Armed Forces demonstrate very clearly how today's young people respond to challenge and risk. What do those responsible for taking risk out of their lives think about the impact on the future of our country of risk-averse generations? As the Prime Minister says in his report,
“We simply cannot go on like this”.
Of course, health and safety is important but the collective madness that is daily exercised in its name is not only a breach of common sense but is endangering our present and our future.
I hope that the recommendations in the report will be actioned as swiftly as possible before yet more community transformation programmes have to be cancelled. Organisations such as Youth at Risk are performing a job of national importance. Woe betide us if we do not do everything that we can to support them and to prevent what they are doing for our present and our future being itself put at risk by all the unnecessary restrictions, which are so clearly described by the noble Lord, Lord Young, in his admirable report.
Lord Hodgson of Astley Abbotts
My Lords, Members of the House may be aware that I chair a task force looking into the red-tape burdens on small charities and voluntary groups. In our work, we come across some of the themes to which my noble friend has referred in his report. Therefore, I congratulate him on at least three grounds: first, for having pulled the threads together of a highly complicated matter in a commendably brief and to-the-point report; secondly, for not just stating the problem, which is the easy bit, but for coming forward with some practical suggestions for solutions and ways forward; and, thirdly, for not showing slavish opposition to regulation because regulation has a place, but equally for dealing with the question of myth busting. Problems can lie not just with the regulator but with the regulatee and the enforcement agencies. However, there is a problem, and my noble friend is right to have highlighted it. Last Friday, on a visit to one of the schools in the Lord Speaker’s outreach programme, I mentioned my role and was told, “We’ve just had all our mechanical pencil sharpeners removed because portable appliances have to be tested every year, ours haven’t been tested, and therefore they’ve had to be taken out of service”. There is a problem.
In the research we are doing for my report, one of the basic questions we are asking ourselves is: what stops a person volunteering or becoming a trustee? There is no simple answer to that. Some people say time, some say family pressures, some say business pressures, but behind them all lies the frequently expressed concern about being sued or becoming involved in litigation. Some will argue that if you have nothing to hide, you have nothing to fear and the law will support you in due course, but the fact of the matter is that for the non-lawyer, the time lapse between the offence and coming to court, the potential costs, the psychological pressure—your wife saying, “Darling, is our house at risk?”—and the uncertainty about the outcome remain, rightly or wrongly, major disincentives.
This argument also fails to take into account the inequality of arms that appears to have grown up between prosecution and defence in recent years. While I entirely accept that we must ensure appropriate access to justice for our fellow citizens, the present risk-free approach has played a major role in the growth of what my noble friend and others have described as the compensation culture. For me, the combined effect of conditional fee arrangements, claims management companies and after-the-event insurance appears almost entirely malign. I hope that the Government will follow up the recommendation in my noble friend’s report, at least in this aspect.
The elephant in room, to which some noble Lords have already referred, is a major issue in the background of our deliberations. It is risk. I share the view of the noble Lord, Lord Ramsbotham, that zero risk is not only unattainable but, if it were attainable, it would be undesirable. If our society is to have any dynamism or creativity, an element of risk is essential. I do not think I am alone in that view; many commentators support it. We need to have a mature public debate about the level of risk that our society is prepared to accept. We need to have this debate away from the appalling emotional pressure of specific events. As a parent, one can only sympathise with other parents faced with the dreadful injury or death of a child. The regret, sadness and anger lead to media campaigns—and sometimes, I regret to say, to some opposition activity—which place great pressure on the politicians of the day to do something.
We need to think about the aspects of the risk equation. There is the knee-jerk regulation, the stable door and the bolted horse but, more importantly, there is the referred risk. Noble Lords will be familiar with the idea of referred pain, where you pull your back in one place but the pain shows itself in another place. Risks are transferred. Noble Lords will recall that there was a bad crash at Hatfield in Hertfordshire in October 2000. A train travelling north at 125 miles an hour came off the rails and four people were killed and 70 were injured. Railtrack found that the crash was the result of the fragmentation of the track as the train passed over it, so speed limits of about 20 miles an hour were imposed. Trains were delayed and cancelled and, as a result, people ceased to travel by train and travelled by road instead. Road travel is much more dangerous than rail travel, and actuaries will tell you that as a result of that in the 30 days after the Hatfield crash five more people died on the roads than would have done in normal circumstances, so we need to think about what shutting off one particular risk may cause in another area.
Another aspect of this is the impact on the social fabric of our society, on the giver as well as the receiver of a service—a social service perhaps. Not only is the receiver of the service deprived of something that he or she would like, but the giver, seeking to put something back into society and to do something for their fellow citizen, is equally deprived. We need to find a way to distinguish between systemic risks leading to a need for regulation and what, in that rather unfortunate but nevertheless accurate phrase of Donald Rumsfeld, can be described as “stuff happens”.
Finally, we need to consider the impact of regulation and the regulatory burden on the destruction and undermining of people’s confidence in their own judgment. Someone might say to you, “It has been covered by the Health and Safety Executive; it has been covered by the Criminal Records Bureau”, as if this absolves them of further responsibility. The fact is that it does not change the risk; it has merely altered the responsibility for it. If my noble friend’s report begins to redress that balance and to restore self confidence, it will not have been a report in vain.
Lord Sugar
My Lords, I am grateful to the noble Lord, Lord Young, for having initiated this debate. I am sure that, like me, having spent many years in business and industry, he is somewhat frustrated at how the adherence to some of the health and safety regulations has impacted on the normal day-to-day running of businesses, small and large, to such an extent that in some cases it may become counterproductive or burdensome.
We find ourselves with a host of rules and regulations in the workplace, where, to put it bluntly, it sometimes feels as if the world has gone mad. I appreciate that the introduction of these regulations was designed to reduce the number of accidents and deaths in the workplace, which in turn would, for example, prevent loss of work hours and save costs to the NHS, but as with all new regulations there is a spin-off or side-effect. It relates to the new industries that sprout up commercially to exploit vulnerabilities that exist in companies, small and large, that strive to be compliant.
I refer, first, to the so-called health and safety consultants or experts. Your Lordships may be surprised to hear that there is no mandatory qualification required to call oneself a health and safety consultant. Indeed, any of your Lordships could become one, which in itself tells a story. In many cases, the advice given is no more than common sense. There is a lack of awareness. For example, the Business Link website offers excellent advice and guidelines as well as checklists where companies can see what they need to do to be compliant. Despite that, companies employ these so-called experts to give advice and in many cases there is an overkill scenario in order to justify high charges.
Compliance has highlighted certain areas or facets in businesses that can expose people to financial claims. In some cases, the cost of indemnity insurance or extra staffing has made certain parts of businesses unviable. The cost of liability insurance has rocketed, particularly for small companies that carry out some form of physical work or service, such as hairdressers, restaurants and builders. Running a small business now not only requires the focus on competitiveness of the general day-to-day running of the business, but also gives rise to the burden of worrying about possible claims, which in some cases could even bankrupt these small companies or seriously damage them financially.
This brings me to my next topic—the compensation culture that has been referred to. I referred earlier to industries sprouting up and one such industry is claim management companies. They advertise on TV implying that they can get consumers substantial amounts of money for injuries that they have sustained. To add insult to injury, some of them are simply brokers who sell their inquiries on to solicitors; they are not solicitors themselves. I point out here that National Accident Helpline is not one of those organisations.
The legal system in this country was one that we could be proud of compared to the ambulance-chasing activities of our cousins in the United States. However, since, I believe, 1999, it has been possible for lawyers here to work on a contingency basis offering a no-win no-fee basis to their clients. While this change had some genuine and positive merit in assisting deserved causes, like all things it has been exploited in most cases to bring derisory claims against companies.
The issue concerns claims from a certain breed of people, some of whom have had the seed of an idea to make a claim planted in their minds from those terrible adverts that they see on TV. The mechanism, as I am sure your Lordships will know, is that the client becomes somewhat irrelevant in the overall scheme of things. The client is simply a catalyst among the solicitors, the claim management companies and the new breed of litigation insurers. It is the client from whom these people make their money. Once equipped with a client, these people become a massive thorn in the side of companies that have substantial assets or their own indemnity insurance. I do not wish to get into too much detail on what contingency lawyers charge, but it is near to outrageous that they can in some cases get double their normal fee.
However, most claims end up being settled by negotiation. Despite knowing that the claim is derisory, companies recognise that to defend it fully will cost a lot and those costs are not recoverable on victory, as the plaintiff usually has no assets. Commercial decisions are made by defending companies that have learnt that fighting on principle is simply bad for the balance sheet. The new breed of these—I am sorry to call them this—vulture-type lawyers knows this only too well, as do some insurers. It is almost a licence to print money if you can convince a member of the public to make a claim. I have even heard of members of the public being paid a modest fee of, say, £500 up front if they agree to become a plaintiff.
Something has to be done about these rogues. The Government should, first, examine what the Advertising Standards Authority can do. I am sure that, if they so desire, they can tighten up the regulations as to what promises can be made and make advertisers issue warnings in the advert to the effect that they are not lawyers and that bringing false claims is an offence. Perhaps, more importantly, there needs to be reform in the law. The Law Society needs to clamp down on some of these unethical lawyers and set some examples. Dare I suggest that, if it was ever possible to make those lawyers responsible themselves to pay for abortive costs when they lose a derisory claim, it would, I can assure your Lordships, kill off this industry in one fell swoop?
Lord Brougham and Vaux
My Lords, I, too, thank my noble friend for introducing this important debate and I declare my various non-paid interests as president of the National Health and Safety Groups Council, president of the London Health and Safety Group, vice-president of RoSPA, having been its president 24 years ago, and, finally, honorary vice-president of the Institution of Occupational Safety and Health, as well as having close links with other organisations in the field of health and safety.
I take this opportunity to thank IOSH for its continued sponsorship of RoSPA’s annual health and safety awards schemes, which are held in May in Birmingham and in September in Glasgow. This year, over three days, RoSPA gave out more than 1,700 health and safety awards, with 1,000 people attending the banquets on three consecutive evenings, compared to the handful of awards that we gave out in my time at the Guildhall over a lunch. We are very grateful for that continued support.
I know from discussions with IOSH that it welcomes the Government’s review. It is not before time that we have a national debate on health and safety to help to clear the confusion and the negativity surrounding this profession and to restore its good name as a foundation block for a successful and confident society. It would like the public focus to be on the serious issues of preventing injury, illness and death through work activities, rather than the trivial nonsense we read about all too often in some sections of the media.
However, questions are raised in my noble friend’s report, Common Sense Common Safety. These include whether a drive to cut red tape will mean a cut in standards in health and safety. IOSH fully supports any effort to rein back on unnecessary bureaucracy, but in the weeks and months ahead the welfare of workers is on the line. We are told that this is a time of austerity and a time when the Government are looking at managers to cut costs and for entrepreneurs to set up the new, fledgling businesses of tomorrow. Has it ever been more critical, then, to protect people at work?
I refer to those people who take on new tasks and responsibilities in a downsizing organisation or those trying to get a new business off the ground and learning new skills on a tight budget. Enterprise is to be encouraged, but surely not at any cost. It is one of our country’s great achievements that it has one of the best health and safety records in Europe. This success has been built on a strong legal framework, a steadfast enforcer of standards in the Health and Safety Executive and an unstinting commitment by dedicated health and safety professionals to maintaining standards.
How, when the HSE faces a cut in its budget, will it handle an increase in its workload? How, when health and safety is so widely misunderstood, can improvements be made in educating people about the real issues that we face in protecting them from illness or injury at work? How, in this environment of cost-cutting and streamlining, will business afford the same safety levels for its workers? My noble friend’s report details his own views on how to make things easier for organisations to address health and safety, making it less bureaucratic and time-consuming, but IOSH would like to see greater clarity on how this would happen without compromising health and safety standards. Here, the devil is in the ambiguity. IOSH looks forward to working with the Government to scrutinise the proposed health and safety legislation and to address what should be our first concern: how to keep people healthy and safe at work in the difficult months and years ahead.
Baroness Donaghy
My Lords, I welcome the opportunity to debate this subject. As author of a report for the previous Government last year on the underlying causes of construction fatal accidents, I see that the noble Lord, Lord Young, has tried to cut the Gordian knot in some of the same areas that I tackled: the role of insurance companies, the gold-plating by some paid health and safety consultants, and the need for a common set of qualifications for health and safety consultants. In my contribution, I want to make a distinction between paid consultants and unpaid health and safety representatives, which I think is an important one. I pay tribute to the hundreds of thousands of trade union health and safety representatives who, over the years and with little appreciation, have helped to keep our workplaces safe. In the discussion about proportionality and the need to do something about the jobsworth mentality and the killjoys, let us not forget that important work still needs to be done by unpaid volunteers who keep our thoughtlessness and carelessness in check.
Reading between the lines of the noble Lord’s report, I suspect he faced the same difficulty as me in pinning down insurance companies as to their role and responsibilities. I was conscious that there was insufficient published information on which to base reliable conclusions for my report, except to say that the issues are worthy of further exploration. I refer to discount schemes and safety incentives, and the possible sponsorship by insurance companies of safety advisers. Insurance is a highly competitive industry with specialist insurance covering large construction markets and low-margin premiums for the bottom end. It is a cutthroat business, but that does not absolve insurers from their responsibilities in this area. If the recommendations in the noble Lord’s report succeed in winkling out more co-operation from the insurance industry, he will indeed have performed a valuable service.
The report also touches on the accreditation of paid health and safety consultants and recommends a process to ensure that assessments are proportionate. During the six months I spent drawing up the report on the construction industry, I met 175 representations of organisations with an interest in the industry. It did not take me long to realise that there are well established organisations with long and honourable traditions of health and safety—dare I say entrenched?—which makes any progress slow and difficult. Of course the possession of a common accreditation or a common core of agreed standards, which might be more achievable, does not guarantee proportionality. Indeed, proportionality is unlikely to be achieved when there is money to be made. There are too many seagulls around this particular liner.
I was reassured by the noble Lord’s words in the executive summary that none of the recommendations applies to hazardous occupations,
“where the present system … is nevertheless effective in reducing accidents at work”.
I hope that the Government will keep their foot on the pedal when it comes to the construction industry. Although we claim that we are among the best in the world, it is a matter of shame that, through accidents at work, we kill between 40 and 100 construction workers every year. Last month, in the course of one week alone, seven construction workers died in separate accidents. The underreporting of accidents under the regulations—RIDDOR—is a national scandal, and I hope that the report’s recommendations on this area will improve matters. However, I do not have time to go into the detail of this.
Each death is a family tragedy. I spent time last year with six families who all felt as if the whole system was against them. To make fun of “elf ‘n safety” in their company or to talk about the compensation culture would have been a sick joke. If proportionality is to work, we must take much more seriously the issue of fatalities in the construction sector.
I refer also to occupational health. Far more workers die from the chronic effects of ill health caused by or made worse at work. Some 20 tradesmen—electricians, plumbers and so on—die every week from asbestos-related disease. In addition, 12 construction workers die each week from silica-related lung cancer. That is 32 workers a week, which means that one worker will have died during this debate. I make a plea to the Government to keep the pressure up on prevention.
Some marvellous work is being done by large and small construction companies, as well as by the trade associations, in partnership with the Health and Safety Executive, to prevent fatalities and accidents at work. It is not sufficient for the HSE to revert to being the policeman for health and safety, because it simply does not have the resources to carry out that role effectively. Working with companies and key trade associations to change the culture is the most effective way for the future. Those companies that concentrate on prevention show, by their record, that on the whole this works. Do not let us wait for blood on the concrete before taking action.
Finally, I referred earlier to the attempt by the noble Lord, Lord Young, to cut the Gordian knot. As noble Lords will know, Gordius, king of Phrygia, tied an intricate knot that supposedly could be undone only by the future ruler of Asia. Along came Alexander the Great, who cut it with his sword. If the noble Lord’s report brings some proportionality into health and safety while upholding the Health and Safety at Work etc. Act and thus saving lives, he will truly be an Alexander.
Baroness Thomas of Winchester
My Lords, I, too, am grateful for the opportunity to speak in this debate and to mention something which I hope falls fair and square within the scope of the admirable report of the noble Lord, Lord Young, but which is not explicitly mentioned in it. I refer to the health and safety aspects of the use—or, rather, the lack of use—of many hydrotherapy pools and the specialist equipment in them, and the disturbing evidence which the Muscular Dystrophy Campaign is amassing that shows what a widespread problem it is. I declare an interest as a vice-president of that organisation.
I am grateful to Mr Mark Field from Droitwich for getting to the bottom of how the perceived problem of health and safety is causing many hydrotherapy pools to stand empty when they could be helping so many people, in particular children with incurable, progressive conditions. Mark Field is the father of Murray, who has Duchenne muscular dystrophy. Mark is also the health and safety manager for a small manufacturing company in the West Midlands. He has held this position for a number of years and holds a 2008 national general certificate in occupational health and safety—July 2006 specification. Mr Field is no chancer and has a great deal of respect for health and safety legislation, which is there of course, as we have heard, to protect both the working population and the general public. However, he is convinced that some companies and organisations—including, I fear, the NHS—use certain legislation to hide behind.
The typical response from an organisation wishing to protect or limit access to its hydrotherapy pool is to say that the pool cannot be used because there are no staff available and health and safety policy precludes its use by anyone other than a competent member of staff, or because there are no trained staff available and the health and safety policy precludes use by untrained personnel. I shall cite two good examples from the Muscular Dystrophy Campaign. Brislington Enterprise College is a newly built school in Bristol with a hydrotherapy pool. It was built under PFI, which was supposed to allow community use at weekends and holidays. However, once built, the contractor said that that could not happen because of health and safety issues. In another case, in Essex, a muscular dystrophy patient said: “I’ve been frustrated by the failings of the NHS to provide hydrotherapy and suitable physiotherapy. I was referred several years ago but the local NHS hydrotherapy pool was out of use for two years. When it reopened I was told staff could not help me due to health and safety regulations”.
So what can be done? According to Mr Field, a simple change to the company’s or organisation’s health and safety policy is needed to allow competent persons, either employees or non-employees, to use the pool and equipment, such as hoists, after a short instruction course by the organisation. Parents of boys with Duchenne muscular dystrophy, for instance, are very well versed in how hoists work as they have to use them all the time. They have already received training in the use of lifting and hoisting equipment and, although hoists and lifts can vary in their design, I am sure that they do not change very much. The organisation could even charge a small fee for training competent people to use the equipment. I am sure the parents and helpers of children with severe mobility problems would be willing to get together to minimise the cost. I do not expect my noble friend the Minister who is to reply to the debate to know whether this may be a feasible way forward—although I do know that he is a swimmer—but I would be grateful for a reply in writing later, perhaps with a copy for the Library. I should make it clear, having said he is a swimmer, that I think hydrotherapy pools would be far too warm for him.
Following on from my Oral Question on Tuesday about hydrotherapy, there is general agreement that the need is very great and that it is a terrible waste for many of these wonderful pools to be lying empty for much of the day because of the lack of trained staff. If this small change was made to a company’s or organisation’s health and safety policy, and more competent people were thereby authorised to enable those who need hydrotherapy to use these pools, what a breakthrough that would be.
Lord Faulks
My Lords, it has become something of a convention in maiden speeches to acknowledge the friendliness and assistance which new Peers receive on arrival in your Lordships’ House. I express my own thanks not because of the convention but because of my sincere appreciation of the many instances of help and guidance that I have received from all the staff, some of whom I know from Committee Rooms 1 and 2 in a rather different capacity. Noble Lords, when spotting a lost figure, have been quick to engage and I have been the recipient of much good advice. I know that many noble Lords consider that the House is overcrowded and even that there should be a moratorium on further appointments, but they do not let it show.
Some have expressed polite curiosity about me, and it may assist if I give the House some brief answers to questions that might be posed. My name is pronounced “Faulks”—as in “Old Folks at Home”—thereby distinguishing me from the noble Lord, Lord Foulkes of Cumnock. The physical resemblance I bear to the novelist Sebastian Faulks is not a coincidence—I am his brother—and in answer to a possible supplementary question, sadly I have not, unlike many noble Lords who are here and those who are shortly to arrive, written novels. The limit of my published output is as a contributing editor to the snappily entitled Local Authority Liability—not much chance of a film there.
I said that I had received much local advice from noble Lords. However, on the subject of maiden speeches, that advice was by no means consistent. By some I was told that as it is not necessary to be particularly relevant, and certainly not controversial, it might be better to choose a subject I know little about. That left me with quite a lot of choice. However, the compensation culture is a subject with which I do have some familiarity. I declare an interest as a practising barrister who has spent the past quarter of a century defending increasingly imaginative claims brought against public authorities. I was also a special adviser to the Department for Constitutional Affairs on the compensation culture in 2005 and 2006.
In that context, as an outsider to Westminster I was very impressed by the wide-ranging nature of the inquiry and the consensus that emerged despite party differences. The conclusion was that there was not in truth a compensation culture but rather the perception of one. One of the results was the passing of the Compensation Act 2006, which declared that judge-made law was indeed the law and put the language of the House of Lords Judicial Committee into statutory form. It is not legislation that is often relied upon in court. Legislation is not always the answer, or certainly not the complete answer.
However, the compensation culture, whether based on hard facts or on perception, remains an important issue, with its stultifying effect on so much that is good about our society. I very much welcome the report of the noble Lord, Lord Young of Graffham, full as it is of eponymous common sense.
One of the report’s many merits is the broad-ranging implementation strategy. The role of legislation is only one part of this; indeed, it is a battle to be fought on many fronts. The report recognises the tawdry and unedifying aspects of personal injury litigation that have developed—the crude advertising, referral fees and the fact that too often claims become about costs rather than the merits of the case. All these are an embarrassment to most lawyers, and I welcome the suggestions in the report that should reduce, or indeed eliminate, many of the more unattractive features of the compensation landscape.
Another strength of the report lies in the fact that it represents the aspiration of many Administrations: namely, joined-up government. There are frequent references in the report to the recent proposals for reform of civil litigation funding and costs and to the proposals for reform for legal aid. The case for reform is described in the latter as being guided by,
“the desire to stop the encroachment of unnecessary litigation into society by encouraging people to take greater personal responsibility for their problems”.
So there is a clear policy at work in addition to a broad aspiration.
I have only one reservation about the report: the omission of any significant reference to the Human Rights Act. Whatever views on that there are in the coalition Government and outside, those of us who act for public authorities on a regular basis know that they face a wide variety of claims that are based upon it. Such claims have become an expensive and complex feature of litigation in this area. I appreciate that we may have to wait for the commission under the Deputy Prime Minister to report on the Human Rights Act, but it may be worth emphasising that you can be passionately in favour of human rights as a concept and have distinct reservations about the way in which the Human Rights Act works in practice.
In the rhetoric that surrounds the compensation culture, there is the undeniable implication that many of those who act for the claimants are unscrupulous or, in the popular phrase, “ambulance chasers”. I have to say that, although I almost invariably act for defendants, the type of lawyer who acts for claimants very rarely matches this stereotype. Most work very hard for their clients, many of whom are seriously injured and who need their legal representation to enable them to obtain compensation. I very much hope that one of the results of the steps that the report envisages will be a restoration of the reputation of lawyers who practise in this field.
Nor have judges entirely escaped criticism. Although, sadly, it does not always accept my submissions, the judiciary in this country is of the highest quality, both in its intellectual calibre and its incorruptibility. Despite the reservations expressed by the noble Lord, Lord Sugar, I remain proud of a legal system in which so many members of my family have played a part in the past 100 years.
As I stand here in the quiet of the Chamber, I can hear the not-so-distant sound of galloping hooves bringing news of reform to your Lordships’ House. I do not know for how long I will remain a Member. It is, however, an extraordinary privilege to be here at all.
Lord Hunt of Wirral
My Lords, it is my privilege to pay tribute to my noble friend Lord Faulks for what I believe to have been one of the best maiden speeches that we have heard in this Chamber. Not only is my noble friend known as a supreme advocate but also he has a fine balance in his attitude towards right and wrong, which we heard in his reference to the Human Rights Act. He is also a foremost barrister. He gave us an indication that it is about 37 years since he was called to the Bar, but last year he achieved a great accolade in becoming the “Personal Injury and Clinical Negligence Silk of the Year”. I think we all know why. It is because he has established an outstanding reputation as one of our foremost legal practitioners. We look forward to many speeches from my noble friend in the future.
Declaring my interest as a partner now for 41 years in the national commercial law firm Beachcroft LLP, as president of the All-Party Group on Occupational Safety and Health and as deputy president of the Royal Society for the Prevention of Accidents, I am delighted that my friend opposite, the noble Lord, Lord Jordan, is going to follow me. He is my president, and I am sure that I shall agree very much with what he says.
I warmly welcome the report of my noble friend Lord Young of Graffham, not least for the clear and concise way in which he has covered some complex problems. It is this simplifying style which must surely underpin our approach to the whole issue of the compensation culture and how to solve it.
This debate is remarkable because I found myself in complete agreement with every word that the noble Lord, Lord Sugar, said. Claims management companies or “claims farmers”, as I prefer to term them, seem to specialise in trying to make the system more mysterious and more complex. In truth, that suits their purposes, because the more complex is the process, the more it is alleged that you need specialist advice to unlock its mysteries. Complexity is the friend of the claims farmer; simplicity and clarity are the enemies.
We have heard many speeches today about whether we have a compensation culture. My first contribution on this subject was to a debate in the other place on the report of the Royal Commission on Civil Liability and Compensation for Personal Injury, chaired by Lord Pearson, as far back as 1978. I have not changed my views since then. I shall not repeat them now, except to make three short points: first, sadly, I believe that we now have a compensation culture; secondly, the solution is to put genuine claimants back at the centre of the whole process; and, thirdly, health and safety legislation must now focus on what business can do, not on what it cannot.
In his report of 2004, Sir David Arculus found only a perception of a compensation culture, but no-win, no-fee excesses, coupled with a system of lawyers paying ever growing referral fees to claims farmers and others, have created a regime in which the high-pressure selling techniques so clearly outlined by my noble friend can flourish. With those advertising techniques that we are now seeing, a claim for compensation is seen not as the means by which genuine claimants can receive proper redress, but as some sort of windfall or bonus.
Sir David Arculus's views were based on statistics as to claims costs from 2000, which predated the use of conditional fee agreements. We now have the advantage of the compendious review of civil litigation costs by Lord Justice Jackson—one of my partners at Beachcroft, Andrew Parker, was one of the assessors in that review. I pay tribute to Sir Rupert not only for the breadth of his report but for the way in which he has considered all the vested interests and has delivered recommendations which are in the public interest. It is a salutary lesson to us all. My noble friend Lord Young is right to conclude that the Jackson review should be implemented in full. What that means in practice is that the attitude of the claims farmers which I have described has to be removed, so that any incident must not necessarily lead to compensation but could and occasionally should lead to some form of redress.
Today's claimant is told that he needs a lawyer on no win, no fee, a claims farmer, and an “after the event” legal expenses policy to cover the risk of losing. All those mouths need to be fed. By the time the lawyer, the farmer, the broker and the others have had their cut, the claimant's interests trail in in some remote fourth or fifth. That is why I wholeheartedly endorse the conclusions of both Sir Rupert and my noble friend that we must have strictly controlled legal costs in all injury claims of up to £25,000 in value. I am delighted to hear that my friends and colleagues in the National Health Service Litigation Authority have also put forward a proposal to my noble friend which I strongly support.
The approach in health and safety has now to change from “you can't” to “you can”. No one will deny that we have made great strides in reducing fatal and serious accidents. The noble Lord, Lord Ramsbotham, concluded correctly by echoing the words of the Prime Minister in the foreword to the report: “We simply cannot go on like this”. This time, we really can deliver and we must follow this through in the way that my noble friend has so clearly outlined.
Lord Jordan
My Lords, I declare an interest as president and a trustee of RoSPA, whose mission is to save lives and reduce injuries. It welcomes any attention focused on the issue of health and safety, and Common Sense Common Safety does that. However, the misplaced emphasis in this report on the headline-grabbing compensation culture undermines the importance of health and safety and belittles the tremendous achievements that this country has had in making it a safer place to live and work.
Since the Health and Safety at Work etc. Act was introduced, the number of fatal injuries to employees has fallen by 84 per cent, while the number of reported non-fatal injuries has fallen by 75 per cent. Yes, some of that improvement will be accounted for by the changing nature of the world of work in Britain, but the overwhelming part of the improvement was down to the comprehensive nature of the legislation and the tireless work put in by management, trade unions and workers to make Britain’s world of work a safer place. Of course, we will support many of the report’s recommendations. For example, simple risk assessments are needed by small firms. But this report is titled Common Sense Common Safety, and the coalition Government have missed a major opportunity to show the public their commitment to health and safety. Instead, we are being given what appears to be a rushed report, which seems to be more about pleasing the tabloids than a well researched and sober assessment of the changing nature of threats to life and limb in this country.
While the report is very strong on measures to deal with some unprincipled and greedy members of the legal profession, it has three major health and safety weaknesses: a lack of professionalism, a lack of in-depth understanding of health and safety, and a general lack of balance. The lack of professionalism is illustrated by the importance given to the examples of health and safety overzealousness, such as local authorities banning public events and people’s fear of litigation caused by aggressive advertising by personal injury lawyers. Of course, these are damaging to the image of legitimate health and safety but, instead of commissioning objective research to measure and understand the true extent of these problems, the noble Lord has relied simply on hearsay evidence, including alarming newspaper reports and personal anecdotes. There was no attempt to measure the true extent of this sort of problem objectively by commissioning surveys or other research.
However entertaining stories about “elf ‘n safety” silliness might be, safety policy needs to be based on proper evidence-gathering and good analysis. A lack of in-depth understanding of health and safety was shown when the noble Lord said that his report was not aimed at health and safety in industry. He goes on to divide the world of work crudely into low-hazard workplaces such as schools, shops and offices and high-hazard workplaces such as manufacturing and construction. The reality of health and safety in today’s economy is not quite so simple. Even in schools, shops and offices, while the hazard profile is much less than in manufacturing, there are still important issues to tackle such as fire prevention, musculoskeletal disorders, work-related stress and safe maintenance—and, as my colleague has mentioned, possibly asbestosis.
More worrying to us, the report ignores completely the question of work-related road crashes. Three to four times as many workers are killed while out on the road as part of their job as die in all workplace fatal accidents put together. Workers who travel 25,000 miles a year in cars and vans are more at risk of being killed on the job than workers in deep-sea trawlers.
Based on what he has heard, the noble Lord has concluded that health and safety consultants are a major source of bad advice. Some are, but to suggest from that that small firms should not seek outside help or advice on health and safety unless they really need it is just not helpful, when we, who work on a regular basis trying to improve health and safety, are trying so hard to spread the message about the national network of health and safety groups and the free advice and help that they and many others can bring to small and medium-sized businesses, where many accidents occur.
Throughout the exercise, the noble Lord was pressed to take a balanced view. Yes, we should bear down heavily on those who really are overzealous on health and safety but, at the same time, we should make a priority of the need for more action to deal with businesses that are still not doing enough and are still having accidents. The noble Lord has failed to get across the message that there is still a lot more to do on health and safety. The general underlying message that the report seeks to convey is that health and safety is a problem limited to industry, and essentially a problem that has now been solved. He puts a lot of emphasis on the alleged burden of health and safety regulation on business—and we back his emphasis on that. But he seems not to have chosen to balance that by looking at the costs of accidents and ill health on business and families. He has failed to promote the message previously adopted by all parties that good health and safety is good business, and that prevention pays. Ask the most efficient and profitable companies in this country. Last year, 152 workers were killed in workplace accidents and there were more than 230,000 reportable injuries, with 1.3 million people suffering from work-related ill health conditions and 36 million working days lost. The cost to UK society as a whole exceeded £30 billion.
With those frightening figures, the Government’s decision as part of the spending review to cut funding by 35 per cent for the Health and Safety Executive is as incomprehensible as it is dangerous. I hope that this debate gives the Government cause to reflect and, in contemplating any legislation, that the content of that legislation will leave the British public in no doubt about their commitment to their health and safety.
Lord Black of Brentwood
My Lords, I am delighted not only that we have an opportunity of an early debate on my noble friend’s compelling report but that I have the privilege of following the excellent maiden speech of my noble friend Lord Faulks. I should like to address the report’s recommendations that would have an impact on the media. I declare an interest accordingly as a director of the Telegraph Media Group and chairman of the Press Standards Board of Finance.
My noble friend’s report makes an unanswerable case for the reform of the system of conditional fee arrangements that are the genesis of the compensation culture. I am sure that those who constructed the Access to Justice Act 1999 that ushered in those arrangements had the best of intentions, but the law of unintended consequences, as the report perceptively highlights, has had a pernicious and deeply damaging impact on freedom of expression. I would go so far as to say that, even bearing in mind the highly unwelcome growth of the so-called super-injunction, I believe that there is currently no more serious threat to media freedom or the public’s right to know than the unfettered use by claimant lawyers of CFAs backed by the toxic combination of 100 per cent success fees and after-the-event insurance.
First, there is the question of cost. It is not uncommon, as evidence submitted to Lord Justice Jackson’s review revealed, that libel and privacy actions against newspapers end up with damages of as little as £5,000 with a cost of 20 times or more that amount. That is a frightening prospect, which could put some small publications out of business. I cannot overstate the deeply difficult commercial realities for much of the media. The perfect storm of profound structural change with a severe recession in advertising has left many publications battered and bruised. Too many local papers—the engines of local democracy—have closed and many more may do so. The issue of CFAs could be a significant component in that.
Even more important is the chilling impact on free speech. It is now too common that newspapers will fail to defend a claim, no matter how spurious it might be or how important the issue, because they cannot afford to take the risk. CFAs have become a seriously distorting factor in the editorial process, with issues often avoided because of fear of the consequences. The role of scrutineer, which is inherent in a free press, is undermined. My noble friend’s report rightly states that,
“the Government should adopt Lord Justice Jackson’s proposals as soon as possible”,
to end the recoverability of CFA success fees and after-the-event insurance policy premiums, which Lord Justice Jackson described as,
“the most bizarre and expensive system that it is possible to devise”.
I wholeheartedly agree with that, but my great concern is the question of speed.
The need for swift and decisive action is very real and urgent because the provision of news and information to the public is at stake, but for far too long there has been masterly inaction. The first government review of CFAs took place as long ago as 2003. Since then, there have been countless reviews about the crippling impact of the regime including annual official consultations, research, consultation papers and, to the best of my knowledge, at least two Select Committee inquiries. The first of this year’s crop of consultation papers, which seem to come round as frequently as the first cuckoo in spring, devoted an entire appendix of seven densely written pages to covering information about seven years of inquiries about proposals for CFA reform.
Your Lordships’ House backed interim measures, which did not require primary legislation, to deal with the issue of CFAs in the dying days of the previous Parliament, but the proposals failed at the final hurdle in another place. Now, as my noble friend has said, we have another review seven years after the first. The irony is that, with the exception of some of the claimant lawyers who have a vested interest, everyone seems to agree. Lord Justice Jackson supports reform. The Ministry of Justice and Select Committees have supported reform. Much of the senior judiciary—including the Master of the Rolls, who gave such a warm welcome to Mr Justice Jackson’s review—and the regional and national media support reform. This House supported reform. Yet we are still waiting as the problems grow ever more acute.
The latest consultation paper envisages that changes to the law and to civil procedure will be necessary to introduce these vital reforms. Encouragingly, the new business plan from the Ministry of Justice that was published recently states that the Government will bring forward the necessary primary legislation in the spring of 2011, immediately after implementation plans have been finalised in the light of the consultation response. As the Prime Minister rightly says in his foreword to my noble friend’s excellent report,
“Now we need to act”.
After seven years of prevarication under the previous Government, can we have a clear commitment to a timetable and an assurance that the necessary legislation will not be further delayed? There is a great deal at stake.
Lord Phillips of Sudbury
Can I ask the noble Lord to comment on the proposal in the Jackson report to replace conditional fees with contingent fees, whereby the plaintiff’s lawyer would take a slice of the damages?
Lord Black of Brentwood
It seems to me, my Lords, that that would be an admirable way forward. The Jackson report has had widespread support from within the media and I hope that it is implemented as soon as possible.
Baroness Turner of Camden
My Lords, I welcome the opportunity to contribute to this debate. The report is interesting, although I have considerable reservations about some of its conclusions.
When I was very young, I worked in the accident claims department of a major insurance company. The claimants were often working people, who believed that their injuries arose from their working conditions. They had to submit to the most rigorous examinations by the doctors working for the company. I began to feel considerable sympathy for the claimants. I did not stay in that employment as, in those days, there were negligible career opportunities for women in insurance, as in much other employment. I left and went to work for a trade union, eventually became an official and, at senior level, became responsible for the legal aid scheme that was made available to members.
I am pleased that the noble Lord, Lord Young, took submissions from the TUC and from individual unions. I have of course spoken to the chief health and safety official at the TUC about the report. However, the noble Lord, Lord Young, has very little to say in his conclusions about the major and important role played by unions on behalf of their members. Health and safety is a major part of our function. We are not only concerned to ensure that our members are provided with support to enable them to pursue claims in court but anxious to ensure that health and safety at work is improved. We use all the means at our disposal to ensure that this happens.
One of my early experiences in this House was in connection with a Bill that I introduced with the backing and briefing of my union. The Bill arose from the appalling Piper Alpha disaster in the North Sea. At the Cullen inquiry, at which we represented our members, it transpired that many employees had been concerned about safety but, as they were on short-term contracts, they were afraid of being victimised—that is, not re-employed—so they had not drawn attention to the hazards that they had observed. I introduced a Bill in this House, which was originally drafted by my noble friend Lord Wedderburn, with the idea of protecting employees in the industry against victimisation when acting as safety representatives or members of a safety committee. I discussed the Bill with the then Minister—at that time the noble Viscount, Lord Ullswater, who was, I am glad to say, extremely supportive—and the Bill was adopted in this House and in the other place and became law. In due course, the provisions were incorporated into much larger and even more comprehensive legislation.
I refer to this to indicate that unions are concerned not only to secure compensation for injured members but to play a part in ensuring that the working environment is as safe as possible. We welcomed the Health and Safety at Work etc. Act and we believe that its advent, and that of the Health and Safety Executive, is responsible for the substantial and very welcome decline in the number of accidents and injuries at work. Nevertheless, it is still necessary to ensure that safety representatives are elected and are able to perform their important work. Furthermore, legal services should be readily available to employees who feel that they have suffered as a result of negligence in their working environment. Certainly, we in my union always supported members in such circumstances.
I was not completely happy when no-win, no-fee arrangements were introduced. I understand that the reason for their introduction was to ensure that people who did not have funds should nevertheless have access to justice, although it seemed likely to me that the only cases that would be taken on by lawyers operating on that basis would be what might be called dead-cert cases. Yet some of the most important advances have been made when cases that looked doubtful—and in which there has been an element of risk—have been taken and been won. That is of course part of the function of the unions.
That brings me to an aspect of the report and, in particular, statements in the foreword by the Prime Minister, with which I am not at all in agreement.
“A damaging compensation culture has arisen”,
the Prime Minister says. He also says that,
“the standing of health and safety in the eyes of the public has never been lower”,
yet the report makes it clear that, although this may be a perception, the reality is very different. For example, under the heading,
“Annex D: Behind the myth: the truth behind health and safety hysteria in the media”,
some of the stories that appeared in the media are repeated and shown to be quite untrue. I hope that we do not have more legislation based not on fact but on perception created by media misrepresentation. It is in everyone’s interest that workplaces should be as safe as possible. That is also true of situations outside the workplace, which are dealt with in the report.
I do not believe that the report in any way justifies the introduction of legislation that would make it more difficult for people who felt that they had been damaged to attempt to secure compensation for their injuries. It is noticeable that many stakeholders who provided evidence did not believe that there was a growing compensation culture in the UK. That is certainly the view of the TUC. If an attempt is made on the basis of the report to introduce legislation that would make it more difficult for people who feel that they are justified in claiming for injury, I shall oppose it and so, I expect, will many of my noble friends.
Lord Taverne
My Lords, I greatly welcome the balanced report of the noble Lord, Lord Young, as well as his declared belief that,
“our entire approach to risk assessments needs to change across the board”.
I want to make two points: one particular and the other general. First, bureaucracy is not confined to the application of health and safety regulations, as in some of the cases that other speakers have cited. The following are some questions that have been drawn to my attention from a form sent by the Care Quality Commission to dentists to complete:
“How do you ensure that the views and experiences of people who use services are listened to and acted upon when running your services? How have the views and experiences of people who use services, their carers and representatives influenced your service priorities … ? What are you doing to increase the influence people have on the planning or delivery of the services? How do you ensure people’s equality, diversity and human rights are actively promoted in your services?”.
This is one of the misapplications of human rights that that noble Lord, Lord Faulks, referred to in his delightful maiden speech. The questions continue:
“How does the promotion of equality, diversity and human rights influence how you deliver services across the range of regulated activities?”.
How are dentists to answer these kinds of questions? They are addressed to qualified professionals, cost many thousands of pounds and take many wasted hours to complete. In the words of the dentist who sent the form to me, “It’s barmy”.
My second, more general point is about the anti-risk society, which has been partly fostered by the so-called precautionary principle. The principle is now so widely accepted that it has almost become an 11th commandment: “Thou shalt not take unnecessary risks”. Tony Blair once declared in a major speech:
“Responsible science and responsible policy-making operate on the precautionary principle”.
In fact, the principle is either so obvious that it does not need stating, so vague that it is useless or—alas, more frequently—formulated in a form that is positively harmful to progress. A lot of the time it says, in effect, “If there is serious evidence that what you do may cause harm, be careful”. Who could possibly disagree?
The second form of the principle, contained in various laws and regulations, of which the Cartagena protocol solemnly signed by Governments is probably the most important, is so verbose, complex and vague that I defy anyone to explain clearly exactly what it says. It can be interpreted to mean anything. I will not cite the full protocol because of, first, lack of time and, secondly, tedium. The main use of the principle, however, is in the form with which I am concerned, defined in these terms:
“When an activity raises threats of harm … measures should be taken even if some cause and effect relationships are not … established scientifically”.
Note the absence of the need for scientific advice. As a result, it is usually requested that a new process or innovation be proved safe before it is licensed or permitted. That means that the principle can be invoked, as it often is, by press campaigns, by campaigns by green lobbies or by public fears and alarms.
No wonder that the principle is the favourite slogan of green fundamentalists—the Prince Charleses of this world who want to go back to nature, who are suspicious of modern science and whose cry is essentially, “Stop the world, I want to get off”. It has, for example, led to the near-universal ban on growing GM crops in Europe, despite overwhelming scientific evidence that in more than 12 years of their cultivation outside Europe they have caused no harm to health or the environment. They are now grown in an area of the world that is more than four times the size of the whole of the United Kingdom.
The principle has led to an anti-risk climate in which potential harm is no longer weighed against benefit. Carl Djerassi, the man who invented the pill, has said that in today’s climate the pill would never have been licensed. Aspirin, which has turned out in many ways to be a wonder drug, would also be banned because it can cause harm. These are only a few of many examples.
Generally, obeisance to the principle helps to foster the anti-risk society. Excessive caution is the watchword of pessimism. At a seminar yesterday, Matt Ridley, the author of many splendid books, reminded us of a Woody Allen joke. Mankind, he said, is at a crossroads. One sign reads “To despair” and the other “To extinction”. We must make up our minds.
It is high time that the principle was completely abandoned. It represents the triumph of the Jeremiahs. It is the victory of the Spartan spirit, fearful of the terrors that change may bring, over the Athenian spirit that looks for new worlds to conquer—the victory of the Luddites who want to stop innovation over those who want to try it out.
I welcome the paper that the noble Lord, Lord Young, has produced. The right to cross new frontiers of knowledge, which science stands for, should be promoted, but the anti-risk society would seek to stifle it at birth. That would mean a world without excitement, exuberance, imagination or innovation, doomed to gradual economic and intellectual decline. It would be a paradise, with the greatest respect, only for lawyers.
One of many good things that the coalition has started to do is reintroduce some common sense into the assessment of risks. I warmly congratulate the noble Lord, Lord Young, on his report, which I hope will be the start of a more general common-sense revolution.
Lord Monson
My Lords, I join other noble Lords in congratulating the noble Lord, Lord Young, on what I found to be an exceptionally interesting and thought-provoking speech. One hopes that the Government will lose no time in implementing his recommendations. The Motion refers to both health and safety legislation and the compensation culture. Of the two, it is really the latter that is the villain of the piece; without it, schools, local authorities and so on would not be nearly so zealous in implementing health and safety legislation to the letter, and even gold-plating it, for fear of the financial consequences should anything go wrong.
With that in mind, it is right today to pay tribute to the late Michael Cocks, Lord Cocks of Hartcliffe, whom some of your Lordships will remember. He had previously been a Member of Parliament for Bristol South. Almost 15 years ago, on 20 December 1995, he introduced a debate highlighting the malign consequences of the litigious society that was taking root in Britain just as America was trying belatedly to curb its own. Lord Cocks, who emphasised that he was not being party political—this most surely is not a party-political matter—was chiefly concerned about the threat that this compensation culture posed to the NHS and to the medical profession generally but, of course, his words apply equally to businesses, particularly small businesses that do not run to a compliance department and whose directors or partners are far too busy running their businesses to take time off to spend a day or more fighting accusations of mis-selling or, more often, discrimination and so find it cheaper to settle out of court, even though they may be totally innocent, as the noble Lord, Lord Sugar, pointed out. In the main, such people cannot afford the understandably high premiums now demanded for litigation protection.
I was at that debate, and what was surprising and disappointing was the lukewarm response of both the Government and the then Opposition to Lord Cocks’s speech. Clearly, at that time, Britain had not learnt from the transatlantic experience and did not realise that the introduction of the no-win no-fee system, among other things, would encourage ambulance-chasers to flourish and the British public to become more and more litigious, thus making life much tougher for the medical profession and for honest, well run businesses, which constitute the great majority, as well as for a small minority that behave badly in one way or another.
In his speech, Lord Cocks quoted, in col. 1612, a headline in the Sunday Times of 12 November 1995, which read, “Huge legal suits threaten US firms. Litigate and make your fortune”. Indeed, we were just starting to hear about McDonald’s customers on the other side of the pond being awarded a small fortune for having been served coffee that was rather too hot and so forth. Now, it seems that litigants are making a small fortune on this side of the Atlantic. The Sunday Telegraph reported on 21 November that a 46 year-old woman had, in the space of 10 years, won half a million pounds from a variety of employers, having never held a job for more than 26 months. Almost the worst feature was a payment of nearly £21,000 for “hurt feelings”. Compare this award with the generally much smaller amounts awarded to our soldiers seriously wounded in Afghanistan. One has no quarrel with damages awarded by a tribunal for proven, properly calculated loss of earnings, but quite disproportionate awards for alleged injured feelings are another matter altogether.
Consider a case, justifiably slated in the press and on local radio a year or two ago, where a woman in a headscarf applied for a job with a small hairdresser’s near King’s Cross. She was told, “If we give you this job, you realise you’ll have to remove your headscarf while working—not while travelling to and from the shop—since our policy is that our customers should be able to see our various assistants’ beautiful heads of hair, made even more beautiful by the skills of our salon”. The applicant refused to contemplate doing so and sued for discrimination. Despite the tribunal acquitting the hairdresser of discrimination on the grounds of gender, race, religion and so on, the applicant was none the less awarded £4,000 for hurt feelings. The ways of the law are weird and strange.
Almost as curious is the case of a 19 year-old girl who had been working in a store for a year or so and applied for the job of manager. It was explained to her that a manager needed plenty of experience and the ability to deal with the unexpected and with a wide variety of people and that, regrettably, she was too young. She disagreed and took the matter to court; she was awarded several thousand pounds in compensation, a large proportion of which was, once again, for injured feelings. Naturally, in the whole spectrum of compensation culture, hurt feelings play a minor part, but the present state of affairs not only encourages people to magnify minor grievances that they might otherwise have shrugged off but encourages some people to try to get rich quickly by means of litigation.
Some years ago, during the Major Administration, a Conservative Front-Bench spokesman in this House expressed the view that £1,000 should constitute the maximum award for injury to feelings, a proposition that I welcomed then and still endorse today. I am certain that most members of the public would endorse that view, too. I suggest, without much optimism, that the Government should give serious consideration to such a cap.
Lord Skelmersdale
My Lords, as a result of my noble friend Lord Young’s introduction to this debate, it seems to me we ought to amend our Standing Orders to include the phrase “re-maiden speech”. I thank him for his reappearance and for agreeing to meet me towards the end of his inquiry.
Health and safety is a subject that concerns every one of us; it gets the blame for a whole range of activities being stopped, and all noble Lords have their own pet stories. These activities bear little or no relevance to the current law on which the Health and Safety Executive depends. The one good thing that the previous Government did in this area was to combine the commission and the executive. Their failure, however, was not to put a stop to the culture of blame which has pervaded this country for many years and stopped the incorrect attribution of no-risk policies to the HSE as the noble Baroness, Lady Donaghy, will know only too well.
Almost exactly a year ago, I received a letter in which my correspondent asked, “Why can’t we enjoy warming ourselves around the school bonfire on 5th November any more?”. She also asked, “Why can’t our children have a few sparklers?”. The answer in both cases was that someone might burn their fingers and sue. She was quite right, as is my noble friend’s report. He cites the reasons for this on page 19—the introduction of conditional fee agreements, the growth of after-the-event insurance and the proliferation of claims management companies, which my noble friend Lord Hunt described as claims farmers. I am not sure whether that is an accurate description; to me, farmers proliferate themselves and their crops, whereas I am not sure whether claims management companies do.
This report makes the point that the enormous number of claims management companies are a direct, if unintended, consequence of no-win no-fee legislation. Like any business, these companies are in it to make a profit; they clearly do, or they would disappear. Although they are regulated, my noble friend believes that more regulation is necessary, especially in the field of advertising, which is done in such a way as to make individuals believe that they can claim compensation for the most minor of incidents. In this connection, I was alarmed to find a text message on my mobile on Tuesday this week saying, “Our records show that you may be entitled to £3,750 for the accident you had. To claim for free, reply YES to this message”. Needless to say, I have not had an accident.
I believe that there are two reasons for successful claims—first, the leniency of the courts towards the claimant, and, secondly, the cost of court proceedings, which includes staff time and costs over and above those of instructing a solicitor and leads, in many cases, to out-of-court settlements. If the report of Lord Justice Jackson was acted upon, conditional fee and insurance claims would cease to be recoverable from the losing party in litigation. This would immediately put a damper on the number of court cases. My noble friend Lord Young told us that the Ministry of Justice is consulting on this report as a whole. That is important, because among Lord Justice Jackson’s proposals is the suggestion that lawyers’ fees should be capped at 25 per cent of the reward and that general damages should be increased by 10 per cent. We have been told of screams of anguish from some claims management companies and the solicitors in question, but it seems to me that here we have a carrot and stick proposal. As in the case of breaking the opticians’ monopoly on the supply of reading glasses almost 25 years ago, if the Government conclude that the proposals of Lord Justice Jackson are correct, they should get on with it. I am also told that although contributory negligence is well established in law, very often the courts do not give it enough weight in coming to their judgments. I would be grateful if the Minister could comment on this when he winds up.
It may be a little provocative but we should consider two organisations—or rather aspects of organisations—that it should be impossible to sue directly. The NHS runs an insurance scheme that seems to work to a greater or lesser extent, but neither schools nor the police seem to be properly insured—and, if my somewhat off-the-wall suggestions are accepted, nor would they need to be. I do not see why teachers on school property or the policeman on the beat should be sued at all. I would continue to make teachers responsible for their charges on, say, a visit from Tunbridge Wells to your Lordships’ House, as occurred the other day; and the police responsible for the mistreating of arrestees in police stations. I am, however, convinced that the absence of a clip around the ear of a misbehaving youth is one of the reasons for youth crime. If parents will not or cannot control their children, or give them the sort of guidance that we were all blessed with from our parents, let us leave it to the people whom we, as a society, charge with keeping law and order.
Over the years I have identified two employees that exist in every local authority. The first is a planning officer, who has nothing to do with this debate. The second is the environmental health officer, who most certainly does. I believe he sees his job as preventing the local authority being sued. This is the wrong attitude and it is not what he is there for. I agree with the report that, if the environmental health officer bans such events as bonfires or playing conkers on school grounds, he should give his report in writing and, in extreme cases, have his actions referred to the local authority ombudsman. I also agree that it is ridiculous that parents should have to sign a consent form for every school outing. The ideal would be for the pupil to hand it in on the first day he attends a new school. The present situation is a complete and utter nonsense.
I have just time to refer to the adventure activities licensing scheme, which my noble friend in his report suggests should be abolished. I will not go into detail but I observe that the noble Lord, Lord Ramsbotham, agrees with me that it is not in the Public Bodies Bill. Since my noble friend says that his report is being considered favourably on the whole, could the Minister tell us what has happened to that proposal?
Lord Haskel
My Lords, the noble Lord, Lord Young, has done us a great service by bringing a common-sense approach to the so-called compensation culture. Yes, it is long overdue. He has prescribed the right medicine for many of the symptoms but I wonder if he has really understood all the causes of the illness. Other noble Lords have suggested that the causes are greedy claims farmers and vulture lawyers—not, of course, the noble Lord, Lord Faulks, whom I congratulate on his maiden speech. Are there any other reasons? Could it be that pressure at work causes people to act unreasonably when something unfortunate happens? Is it that people fear that there is an imbalance between pressure at work and the reward—not just monetary but in satisfaction? Do people feel that they are victims of injustice at work and the system is against them, as my noble friend put it? The compensation culture could just be a way of getting their own back.
It is many years since I ran my business but I certainly do not forget how difficult it was to get the right balance between putting undue pressure on people and the need for progress. It is not easy to get creative tension right. I was reminded of this the other day when a booklet called Stress at Work arrived on my desk. It is a useful publication by the British Academy Policy Centre. My noble friend Lord Jordan also mentioned this. The British Academy is not the only one concerned about this. The Health and Safety Executive is also concerned. It has produced a formula for measuring stress at work. In 2004 the Health and Safety Executive produced a guide for managers on how to reduce stress at work. Its US equivalent says on its website:
“The workplace is the single greatest source of stress”.
We all know why people get stressed at work. There is the nature of their work, the pressures from above and below, the competition, the interpersonal conflicts, the bureaucracy and the distorted work-life balance. It now takes two incomes in a family to pay for a home. There is the pressure to stay connected when away from work. Many of us have been there; many of us in this Chamber know what it is all about. Some of us can get out of the kitchen if we do not like the heat, but for most of us that is impossible. We need the income and, yes, we also need some job satisfaction. We also know the economic cost of absenteeism, high staff turnover and poor performance, and the social costs to health and family relationships. Why not add the cost of excessive claims when an opportunity presents itself when something goes wrong? It is hard to make legal claims for stress but far easier to make them for physical injuries that are apparent. Why not double or triple them to include stress?
Is this an unreasonable analysis? I do not think it is. The situation will get worse. There will be much more part-time and temporary work instead of full-time jobs. There will be cuts to staff, with the rest loyally taking on the extra work. There will be the stress and conflict of redundancy. People will feel that they always have to be present, even when there is good reason to be absent. The economic crisis might not reduce absenteeism but it will certainly increase stress. If there is a connection between stress at work and the compensation culture, it will only increase with the recession. Certainly, the recommendations of the noble Lord, Lord Young, need to be implemented but surely, at the same time, measures to reduce stress at work need to be implemented by both the private and public sectors.
There is nothing new in this. As I have said, the Health and Safety Executive laid this out in 2004. Well before that, most people knew of the need to be fair, to give people more say at work, and to give people the opportunity to have control over their future and a say over change, either through their union or their representatives, as my noble friend Lady Turner said. There is a need to be more flexible and more family-friendly over working hours, and to design jobs so that they are less stressful. We must also ignore those who say that these soft management skills are pointless. Indeed, the Minister had better take note. His boss, the Prime Minister, is touching on this today when he speaks about measuring general well-being.
My question to the Minister is: does he agree with me that there is a connection between stress at work and the unreasonable demands of the compensation culture? If so, will the Government ensure that the Health and Safety Executive’s recommendations to managers are implemented in the public sector, where the Government are a major employer? I am sure that many public sector and private sector managers already do this; after all, it is common sense and good management practice. If this is done, hand in hand with the proposals of the noble Lord, Lord Young, we may avoid a lot of trouble, unhappiness and expense.
Viscount Younger of Leckie
My Lords, I warmly welcome this debate and the report produced by my noble friend Lord Young of Graffham. It is pleasing to read that it has received broad acclaim as a distinctive catalyst for change in advocating a more measured, proportionate degree of protection from litigation for businesses, shops and schools. It is a start as a retraction from the current culture of fear of those who are too easily able to seek redress through compensation. As well as seeking to liberate businesses, particularly small and medium-sized ones that employ more than five people, the proposals will have a significant positive impact on the voluntary sector and on extra-curricular educational activities.
Of course, it takes only one tragic accident to give the impression that the law, particularly the Health and Safety at Work etc. Act 1974, is wanting. The press can misreport and exaggerate. However, accidents, injuries and work-related illnesses must continue to raise important questions in seeking always to prevent and protect under common and criminal law. The fact that in 2007-08 there were 2.7 fatalities for every 100,000 employees and more than 100,000 non-fatal injuries, although one of the lowest rates in Europe, still cautions us against complacency.
Critical to achieving the right balance is the proposed production of a code of practice that in its detail and clarity will not be prescriptive but will be a guide to allow a determination of what is reasonably practical in setting up sensible health and safety protection specific to individual cases. I applaud the idea in the report that a specific code for schools and colleges be implemented to replace the Adventure Activities Licensing Authority, to be highlighted separately within the Health and Safety at Work etc. Act. This will assist schools in managing the safety aspects of outdoor activities, allowing for healthy and acceptable degrees of risk.
In the field of employment law, an employer has to be seen to be acting reasonably within the law in management and behaviour in the workplace. Just as tribunals sit to pass judgment on the reasonableness of the behaviour and actions of employers to their employees, courts can better pass judgment with reference to a code of practice in health and safety. The question can therefore be asked: did the employer, the shop, the school take all reasonably practical steps to assess and implement risk mitigation? The onus must remain on businesses and schools to understand the guidelines and comply with the code of practice.
Under the auspices of the Health and Safety Executive, the proposal for a network of properly accredited health and safety professionals is welcome. There is the prospect of better advice on the definition for customers of what is deemed to be reasonably practical, but there must be a significant change in culture in respect of low-hazard small businesses, sole traders and individuals in good Samaritan roles. These categories have most to lose from those who abuse compensation claims. Businesses whose turnover is modest can be disproportionately adversely affected, or even made bankrupt, if they are not covered by insurance.
As my noble friend Lord Faulks mentioned in his excellent maiden speech, the Compensation Act 2006 addresses some of these issues. In determining, and possibly reducing, negligence claims, courts are allowed to have regard to a sense of perspective on and a proportionate response to the nature of an activity, its future desirability and its benefit for society or the community. Such changes to health and safety regulation are highly desirable in developing the role of the voluntary sector. As I highlighted in my maiden speech, empowering and encouraging more individuals as volunteers to enlist for local tasks or projects is a crucial step in shifting responsibility from the state to the local level. It is a considerable disincentive to helping in the community, in offering care or running a pub, if the threat of civil negligence is prevalent. I hope that the Government will exempt from negligence those who have acted in good faith in helping others where an incident has occurred without deliberate cause, perhaps through extending the Crown Prosecution Service codes of practice where protection is offered to those who intervene in a crime.
In the spirit of sensible protection, I urge the Government to introduce a fast-track process for referral to the ombudsman of a perceived unfair decision by an authority not to hold an event such as a village fête or concert so that it can still have the chance to proceed and not incur cancellation costs. To echo the title of the report, common sense must be the overriding feature of health and safety protection. There must always be a “bottom line” defence: in other words, a necessary protection from unscrupulous employers or cavalier outdoor adventure managers.
The legal framework and new codes of practice must lead to a liberation: that is, to freeing up society to help itself, to being proactive, and to individuals taking personal responsibility. The changes will engender greater confidence to encourage creativity and innovation in new businesses and to encourage schools to stimulate and educate children in riskier sports and other activities outside the classroom.
Lord Smith of Finsbury
My Lords, I begin by declaring my interest as chairman of the Advertising Standards Authority and patron of the Mountain Training Trust.
The report of the noble Lord, Lord Young, is very valuable and welcome and gets most things absolutely right, although there are one or two areas where further thought and work are needed. I want to highlight two points, one in each category. First, I give the report more than full marks for its comments on the role and availability of adventure activities in education. Giving pupils and children a sense of adventure, a taste of the great outdoors and the opportunity to engage in climbing, canoeing, sailing or other potentially dangerous and risky activities is an absolutely essential and valuable part of their education. This is particularly true for children and pupils in our inner cities who have virtually no other access to the great outdoors. Adventure activities induce a sense of risk, responsibility, teamwork, self-reliance, self-esteem and the full development of a child’s potential and had a profound impact on my own upbringing. The two weeks that I spent on a school expedition in the north-west highlands of Scotland changed my life. The opportunity for other children to enjoy that sort of opportunity has diminished severely over recent years as a result of the risk averseness within the system, and we need to do something about it. Absolutely anything that can be done to implement the noble Lord’s proposals to free up opportunities for adventure for pupils and children will be enormously welcome.
The second area I want to highlight is that of no-win no-fee legal compensation claims, and especially the role that advertising plays. We need to do more work on the role of advertising because I venture to suspect that the principal problem here is the product itself rather than the way in which it is advertised. I have a number of observations to make. First, it is surely important that ordinary people of limited means have access to justice and remediation if they suffer the consequences of someone else’s negligence. Secondly, it is important that information about the availability of redress, and how to access it, is readily and prominently placed in the public domain. Thirdly, as the report itself acknowledges, the perception is that there has been an explosion in no-win no-fee compensation claims; in fact, the reality is that there has not. Fourthly, existing evidence on the role that advertising plays in stimulating unjustified claims is equivocal at best.
In 2006, the ASA, with the then Department for Constitutional Affairs, part funded comprehensive research into the effects of advertising on the compensation culture. It was an important piece of detailed work, because advertising is, of course, a complex medium. It works on many levels and it is not always easy to work out what role it plays, given that there might be a number of different influences on the behaviour of individuals and claimants. The research, The Effects of Advertising in Respect of Compensation Claims for Personal Injuries, aimed at discovering what effect this sort of advertising had on the perceptions and attitudes of its audience, and what detrimental or beneficial effects it had. The central finding of the research was that it appears that advertising cannot be blamed as the primary source for fuelling the compensation culture. The research shows that consumers receive information from a wide variety of sources, and it is a combination of those sources that gives rise to the false impression that there is an increased level of compensation claiming.
That research was carried out some years ago. It is important that before rushing to change we should probably update that research and find out more. As I have already said in reply to the generous letter of the noble Lord, Lord Young, to me as chairman, we at the ASA will very warmly welcome any new evidence that his team might have unearthed or might wish to unearth, and we will consider it very carefully indeed. Any regulation, as the Government rightly believe, must be based on sound evidence and be fair and proportionate. In the mean time, the self-regulatory system, of which the ASA Council is the independent arbiter, will robustly apply the current rules in order to provide protection for the consumer and to avoid any misleading or inaccurate selling.
I have time for just one other point. A particular issue might need addressing separately—the offering of inducements by claim management and claim introduction companies to entice people into claiming. This practice deserves early examination, and I suggest that the principal mischief is not the advertising of inducements but the existence of a system that allows the possibility of an inducement. That is what I urge the Government to look seriously at.
This is a valuable report. In many respects, it says enormously sensible things. On one or two things, we need to do more work.
Lord Vinson
My Lords, I join other noble Lords in congratulating the noble Lord, Lord Young, on introducing this debate on Common Sense Common Safety. I so hope that his positive mind will soon be back at the centre of government.
The more society is regulated, the less room there is for common sense. Regulation becomes so all pervasive in the official mind that there is no room for natural morality. I should like particularly to draw your Lordships’ attention to the effects on society of the safety regulations that are being introduced by the Independent Safeguarding Authority and the Criminal Records Bureau.
Unintentionally, and yet insidiously, we are developing an unhealthy culture of suspicion that is the antithesis of the big society which the coalition, and indeed the country at large, would like to be developed. CRB vetting now includes 16 year-olds teaching younger kids to read, parents volunteering at school, and foster carers and friends running after-school clubs. All are subject to more stringent security tests for those activities than for selling explosives. Why not include postmen, milkmen and van delivery drivers? Where will it all end?
Of course, no parent wishes to see their children damaged by the action of paedophiles, but, in overall national terms, the level of aggressive paedophilia is minute and the incidents are vastly overblown by the press. A parent might think that the work of the Criminal Records Bureau safeguards their children, but that is in fact a total delusion. The Criminal Records Bureau can record only those who have had a criminal record, not those who have tendency to criminality; such people still get the job. The fact remains that most cases of paedophilia are caused by near neighbours, close relations or online operators, none of whom comes under the vetting procedures. The whole vetting exercise gives an illusion of probity without actually achieving the serious ends that it purports to achieve.
While some may welcome this illusion as being better than nothing, we are building up a society of mistrust, which even discourages adults from stepping in to help children in trouble for fear of being considered potential molesters and being reported to the police. Increasingly, we live in a society where adults distrust each other, and children are taught to regard everyone with suspicion. Paradoxically, vetting schemes further undermine the concept that the best protection for children is the vigilance of other adults.
Millions of people now face checks—many of them volunteers who particularly resent being told that they have to register with the ISA before continuing to offer the service that they have been providing for years. Such vetting assumes that people are guilty until proven innocent, and is gravely undermining the voluntary sector just at the point where we need it more. The bureaucracy to which volunteers are subjected is completely out of proportion to the informal and low-key nature of their activities. Checks cover flower arranging in a cathedral, working on a local newsletter, visiting elderly people to chat and do crosswords, or listening to children read in a school.
Child protection rules mean that volunteers are treated with suspicion and are subjected to humiliating and invasive procedures such as being accompanied to the toilet in schools, being asked to wear ID badges including their CRB number, and even being asked to list all their places of residence for the past 10 years. It is no wonder that volunteers feel totally disrespected or find the procedures insulting. They do not want to reveal personal information or have someone rummaging through their personal details. They resent paying £64 to the registering authority when they are giving their time for free. No wonder the CRB checks are killing voluntarism; indeed, they are a dagger at its heart.
As things stand, imagine a school trip being cancelled when a vetted mother, who was to accompany the children, falls ill and another requisite character cannot be found. Well, the simple way around all this is, of course, for all adults to be registered, and that is precisely what will happen. The logic is that the majority of the adult population will sooner or later find themselves on the vetting database. That cannot make sense. The whole procedure is doing far more harm than good and destroys the very roots of a caring society. Indeed, it is more likely to put our children in greater jeopardy, because instead of relying, as we used to, on references or word-of-mouth recommendations and common-sense observation, we rely on the vetting and barring scheme which, by its very nature, is far from infallible. All the bits of paper in the world cannot predict what someone is going to do.
It is good that the Government are considering scaling back the whole procedure to common-sense levels. However, therein lies a problem. These schemes are doing immense harm to our whole way of life, our national psyche and trust between individuals. The Government should have the courage to scrap these schemes or society will destroy itself. However, if, in an effort to change, the Government have to take the route to abolition step by step, they could at least first exclude all volunteers from any vetting or barring scheme. A mother should not be required to register on a vetting database before she goes to her child’s school. The process of CRB-checking volunteers is a common policy of councils, voluntary organisations and sports bodies, which is enforced by official bodies such as Ofsted and the Child Protection in Sport Unit. The process leads to more than 700,000 CRB checks every year and probably achieves next to nothing. Councils should be told that this is unnecessary, harmful and wrong.
The Government must roll back the child protection bureaucracy from at least voluntary activity, which is currently obstructed by many over-the-top child protection rules. These are as off-putting and as damaging as CRB checks themselves; and therein lies the problem of excessive precaution and over-interpretation—a point well made by the noble Lord, Lord Young, in his introduction.
In conclusion, I recommend a book that puts this far better than I can: Licensed to Hug by Professor Frank Furedi, published by Civitas. Its very title explains the damage that we are doing to our society, which between us we must try to prevent. The harmful futility of the work done by the Criminal Records Bureau, albeit with the best intentions, is another example of the damaging effects and the unintended consequences of overregulation. Sadly, it is only one example of the many hundreds of bad regulations that are not only destroying sensible and good human relationships but doing incalculable harm to our economy through the inefficiencies that they incur and the mistrust that they engender. We in this House all hope that the debate secured by my noble friend Lord Young will see a return to proportion and common sense in the regulatory world.
Lord Rooker
My Lords, I declare my interest as chair of the board of the Food Standards Agency. I do not speak for the agency in this House—we are a non-ministerial government department and we have Ministers in the four Parliaments of the UK who do that—but I will say, on behalf of the board and staff, how grateful we are for this report and for the care and attention to detail that the noble Lord, Lord Young, has given to our proposals for the food hygiene rating system, which is covered at length in the report and is due to be launched next week. We had a short telephone conversation about aspects of the system in the summer. I hope that the rest of the report’s recommendations will also be implemented, but I will come to that in my final points.
I take second place to nobody on health and safety matters. I made my maiden speech in the other place in March 1974 on health and safety; I served on the standing committee for the current health and safety legislation; and, as a manager in manufacturing, I was red-hot on health and safety matters in all of the companies in which I worked. As a Member of Parliament, I used to get complaints about health and safety matters—indeed, the former coroner of Birmingham drew my attention to some of the construction difficulties—and I gave attention to those issues. We have heard some examples of such difficulties from these Benches today, but we have not heard about the catastrophic rate of accidents in the farming industry. I make these points because my noble friend Lord Jordan laboured the point that the report deals with some issues but ignores other areas that are fundamental to the health and safety of people at work. I see no contradiction whatever between the contents of the report and the need to take health and safety matters incredibly seriously in manufacturing, mining, construction and farming. In fact, you could implement the report as a way of being much harsher on sectors in which people are being killed on a daily basis. Those are the sectors in which the risk is high but sometimes ignored.
I will draw your Lordships’ attention to three items. First, the noble Lord produced his report, as I understand it, as a one-off before he became the business tsar. I looked at those two roles quite separately. However, if No. 10 has problems with noble Lords saying things, I invite your Lordships to check what Howard Flight, who has not yet joined us in the House, said this morning—these things happen. You can tell the truth of a story, but you may not tell the whole story. Why be hanged for telling only half the story? There are some people for whom things have never been worse and will get worse still, but it is also true that, for some people, things have never been better. Telling half the story cannot be a hanging offence—that is my defence of the noble Lord, Lord Young.
The noble Viscount, Lord Younger, has been the only speaker to mention the good Samaritan issue. Given that almost half the country is currently covered in snow, in my local town of Ludlow I have flashed the noble Lord’s report in front of the local council because of this nonsense about the clearing of snow. The report makes it absolutely clear that there is no evidence from the Lord Chief Justice that anyone has ever been done as a result of snow clearing. If you clear the snow and wash it out with water that freezes, that is negligence. If you clear the snow, sweep it away and it is dry, that is a voluntary Samaritan issue that you cannot be prosecuted for. I do not deny that we need clarity in the law. The issue of local authorities and their inconsistent approach, which is covered on page 26, must be dealt with.
I turn to the issue of low-risk establishments. A place may look low-risk, but just because people are not wearing boiler suits does not mean that things are not dangerous. Laboratories, shops and offices can be dangerous, depending on the nature of the equipment and the substances that you have to use. You have to be careful and use common sense. That is not the same as what we know are high-risk establishments. A drilling rig is a high-risk establishment. Do not lecture us about big blue-chip companies taking everything really seriously—go and talk to the directors of BP. These things must be looked at in the round to see where the risk is. We must assess the risk and then manage it proportionately. The point made in the report is crucial.
My final example from the report that I have not heard mentioned so far—I missed only two contributions when I had to leave the Chamber—relates to the important issue of voluntary activities, which are covered on page 29. I have a message for the Minister and the Government. Left as it is, the big society agenda will go straight down the plughole unless something is done. The Stalinists in local government, who do not want the big society agenda because they want to do everything themselves, will try to snuff out every local initiative that comes from residents and will hide behind health and safety legislation to stop the operation of the big society. If that is the Prime Minister's big idea, he must do something about that because such initiatives will disappear if this report is not implemented.
That leads me to my final point. The noble Lord, Lord Young, says in his introduction that these reports gather dust. From my experience of Whitehall, which lasted only 11 years and was very short, I say that his report will gather dust. The report cuts right across the piece, so nothing will happen unless somebody with get-up-and-go is charged with dealing with it. The noble Lord was supposed to be dealing with it, but the issue is quite separate from that of his role as business tsar. I say to the Prime Minister that letting the noble Lord, Lord Young, go is a sign of weakness. I am not accusing the Prime Minister of weakness; it is a sign of weakness in the Government. If the report is to be implemented, that will not be done by saying to each department, “Will you and your Ministers play your part, please?”. In my experience, such reports are not implemented but must be driven forward in a positive way. It will not cost a lot to do that, but everyone will benefit if it happens. Society will benefit, regulation will benefit and we will have a happier society, which was mentioned in the speeches this morning. However, if nothing is done about the management of this report, I say to the Minister in all sincerity that it will not get implemented. My central plea is that someone should be put in charge of ensuring that the report is implemented, because that is the desire of everybody.
Lord McKenzie of Luton
My Lords, I thank the noble Lord, Lord Young, for his overdue visit to our House and for introducing this debate in what cannot be the easiest of weeks. I am sure that he will forgive me if I on the Front Bench do not exonerate him in quite the same effusive way as my noble friend Lord Rooker did. I also offer my congratulations to the noble Lord, Lord Faulks, on a most impressive and entertaining maiden speech.
We welcome this debate, which gives us an opportunity to focus on health and safety and, in particular, to tackle the myths, exaggerations and half-truths that surround and undermine it. We will make common cause with the noble Lord, Lord Young, in his endeavour to improve the understanding of health and safety and the status of practitioners. However, we do so because we believe robust health and safety provision is a fundamental hallmark of a decent society and should be seen not as a burden on business but as an integral part of good business practice and a fundamental right for workers. My noble friend Lord Bhattacharyya made it clear that those companies with good health and safety systems have good management systems generally and good bottom-line performance. I say to the noble Viscount, Lord Younger, that I do not think that there is a conflict between good health and safety provision and liberating business.
Like a number of noble Lords, I celebrate the huge progress that has been made since the passing of the Health and Safety at Work etc. Act 1974—legislation that has stood the test of time. We have a good record, which is consistently one of the best in Europe. Since 1997, all measures of injury at work have shown improvement, yet the number of people who are still killed or harmed at work demonstrates how much more we need to do. We have heard the statistics. In 2009-10, more than 23 million days were lost through work-related ill health and some 5 million days were lost due to workplace injury. My noble friend Lord Haskel spoke about stress and the HSE’s management standards. We quote statistics but these are individual lives—careers interrupted, family finances put in jeopardy and aspirations dashed. Although no one should support an overzealous and disproportionate application of health and safety regulation, we also need to be mindful of non-compliance. It is disappointing that, so far as I can see, the report makes no positive recommendations on issues such as enforcement, prevention or, indeed, direct responsibilities.
Our approach must remain embedded in the principles of the 1974 Act, which rightly places the responsibility for managing risks on those who create them. We have to recognise that there are now many more SMEs and that fewer companies are unionised, which means that they miss out on the knowledge and worker engagement that has made a fundamental difference to many workplaces. In this context, we support what the HSE has encapsulated in its strategy: the importance of working together; the need for co-operation between co-regulators; and the essential role of leadership and worker engagement. We also need to be clear that those who fail in their duties are properly held to account.
We agree that these matters would be made easier in an environment where there was a better understanding of risk and where businesses were not frightened into seeking to eliminate all risk or to refrain from activity because of the fear of risk. We heard from the noble Lord, Lord Ramsbotham, about the tragedy of young people being denied opportunities because of risk aversion. The noble Lord, Lord Taverne, took us into the area of GM crops, but I hope that he will forgive me if I do not follow him down that path this afternoon. My noble friend talked with passion about outdoor activities and about how those could be prevented from happening if we create and sustain an environment that is too risk averse.
The noble Lord, Lord Young, seeks to improve the perception of health and safety by tackling what is described as the growth of the compensation culture, which he asserts drives risk-averse behaviour. It is asserted that the compensation culture is compounded by businesses—particularly smaller ones—seeking the advice of health and safety consultants, who are often unqualified and some of whom deliver excessive and costly advice. As we have heard, the report’s recommendations cover issues such as tackling compensation, providing simplified risk assessment for what are termed low-hazard workplaces and raising standards for health and safety advisers. The noble Lord recognises that the problem of a compensation culture is one of perception rather than reality. In that I believe he was supported by the noble Lord, Lord Faulks, but it seemed to be at odds with what was said by the noble Lord, Lord Hunt, who suggested that it was a reality. On the basis of perception, it is difficult to discern how pervasive the compensation culture is and to discern the evidence for such a judgment, although the noble Lord, Lord Hodgson of Astley Abbotts, had no doubt that it is pervasive.
However, I suggest that there is another side to this coin. The reality is that many people who are injured or made ill by their work never access compensation and, for those who do, the settlements are a million miles away from the amounts reported in the press and, indeed, from the example referred to by the noble Lord, Lord Monson. On a very specific issue, perhaps in his reply the Minister would update us on progress in tracing old employer liability policies. Despite improvements, there are too many sufferers of long-latency occupational diseases who do not access compensation.
The noble Lord, Lord Young, is a little ahead of his Government on the recommendations in Lord Justice Jackson’s report, which of course was commissioned under the previous Government. We consider this to be an important piece of work, focusing as it does on the challenges of facilitating access to justice at proportionate cost. We look forward to the outcome of the consultation on abolishing recoverability of CFA success fees and ATE insurance premiums. We also await the deliberations of the Legal Services Board on referral fees.
A number of noble Lords—in particular, my noble friend Lord Sugar but also the noble Lords, Lord Skelmersdale and Lord Hunt—spoke about the problems, challenges and activities of claims management companies. We heard from my noble friend Lord Smith of Finsbury that we need to look again at the role of advertising and we need to test the earlier research, which suggested that advertising was not a major contributor to these matters.
We can certainly support efforts to dispel misconceptions surrounding the risks of litigation arising from voluntary acts. That is particularly relevant, as my noble friend Lord Rooker said, with what looks like the onset of snow. The noble Lord, Lord Young, is right to identify the challenges faced by SMEs and the role that the HSE has played in helping them to understand what is required. The development of pro forma risk assessments, awareness raising and education as well as engagement via trade associations have all contributed to improvements. There are recommendations for the HSE to do more: to produce simplified interactive risk assessment forms for offices, classrooms, and shops; to produce periodic checklists; to consolidate existing regulations; and to provide separate guidance for SMEs. Doubtless the HSE will respond in its usual highly professional manner, but can the noble Lord, Lord Young, or the Minister comment on the HSE’s capacity to cope with these and other demands that the report imposes in the light of the 35 per cent reduction in its resources? The HSE already has to cope with a difficult balancing act in allocating resources between its enforcement and prevention activities. I think that the HSE has about 1,300 frontline inspectors and, excluding nuclear and major hazard installations, these inspectors cover nearly 900,000 premises and 15 million workers.
The noble Lord’s report defines low-hazard workplaces as those where the risk of injury or death is minimal, but that seems totally to ignore health issues. Of course, the same health and safety laws do not apply to all workplaces. There are major hazard regulations, which rightly impose far more prescriptive standards on potentially dangerous sites. However, the general health and safety law that applies to all workplaces is designed to be proportionate to the varying risks. These risks might include threats of violence and abuse of shop workers, MSDs for office workers and exposure to hazardous substances for cleaning staff, and there is still plenty of asbestos around in schools. Therefore, we can support improved ways of helping businesses to understand the identification, management and control of risk but not any moves to remove them from the requirement to risk assess. Periodic checklists may help, but they must not just engender an unthinking tick-box approach.
We are supportive of the proposals to raise standards and the development of the health and safety profession. Indeed, that got under way on our watch, so why would we not do so? The challenges will relate to encompassing the technical and the practical, and low-level support as well as more sophisticated requirements. I say to my noble friend Lord Sugar that, as well as being a health and safety adviser without any qualifications, he can also call himself an accountant.
There are wider educational issues about embedding health and safety in the curriculum and in a range of professional qualifications, as well as creating awareness in our schools. We should also recognise the substantial and knowledgeable input from the trade unions and safety representatives, to which my noble friends Lady Donaghy and Lady Turner referred. I say to my noble friend Lady Turner that I think the “not required back” arrangements are still in operation in the offshore sector.
Local authorities play a vital role as co-regulators of more than 1 million workplaces. They have a strong partnership with the HSE and there is increasingly joined-up working among authorities. The report comments, in particular, on the primary authority scheme and notes its successes, but the report also suggests that the scheme needs strengthening to address inconsistent enforcement. I would support that. Like the HSE, local authorities will be under enormous financial pressures with cuts to resources of some 28 per cent, which are to be front-end loaded. The noble Lord’s recommendations for local authorities concern refusals to hold events. I accept that from time to time local authorities, like others, may prevent certain activities from taking place. We have heard about the St Albans pancake race and about problems with the hydrotherapy pools from the noble Baroness, Lady Thomas. Sometimes such things come from the overzealous application of health and safety rules using health and safety as a shield, but that cannot be supported. I question how often that happens. I was unable to identify any data on how often events are banned by local authorities, but doubtless the Minister will be able to provide that in his winding up.
Like my noble friend Lord Jordan, I think that the most striking thing about the report is how little of it is actually about health and safety. Most of the proposals are about food safety or public safety—important as they are—but there is no awareness of the problems around occupational disease and no recommendations on issues of prevention. The noble Lord sees the matter only from a perspective of freeing business from the burdens. Nevertheless, I hope that the report will in some way contribute to bringing back a sense of proportion. I end by quoting IOSH:
“For every silly health and safety news story there are countless unreported stories of untimely death, terrible injury or debilitating disease. This is the reality of health and safety going wrong. We need to remember that an estimated 5,000 people’s lives have been saved since the Health and Safety at Work Act … Many thousands more have been saved from suffering serious injury and disease”.
We have a responsibility to argue the cause of health and safety as well.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, I congratulate the noble Lord, Lord Young, on his work in investigating the concerns about the perception and application of health and safety legislation, together with the rise of the so-called compensation culture, resulting in the report that we have been debating this afternoon, Common Sense Common Safety. This report has been widely welcomed and is fully supported by the Government as a turning point for health and safety. I also congratulate my noble friend Lord Faulks on his admirable maiden speech. I can expect to see this Chamber adopt the position of an old folks’ home if he continues in that vein.
Today’s debate has given the House an opportunity to discuss the operation of health and safety laws, and we have had a debate of great quality from many noble Lords. Interestingly, there has been general support—not unanimous support—for the report of the noble Lord, Lord Young. I can assure noble Lords that the Government are fully supportive of the report and individual departments are making progress in implementing the proposals. The great majority of them are included in departments’ published structural reform plans. Picking up the point from the noble Lord, Lord Rooker, about the need for a champion, I think the fact that these recommendations are now embedded reduces that need significantly. A small number of the recommendations do not fit neatly into a single government department’s purview and the review implementation team is currently working with the relevant government departments to ensure that these recommendations also are taken forward.
I particularly want to focus on the work of the Ministry of Justice and the Health and Safety Executive. The Ministry of Justice has a central role in the implementation of the compensation recommendations, while my department is the sponsor department for the HSE. That said, the recommendations impact on many other departments in government and I commend them all for their swift and positive response to recommendations and for their recognition of the need for change.
We must emphasise that this is not change for change’s sake. We need to build on the achievements of the past and recognise that, when responsibly applied, health and safety and the compensation system have an important part to play in making all our lives better. That is not in dispute. It is right that people should be protected from risk at work, whether in potentially dangerous environments such as oil rigs, construction and farm yards, or in lower-risk areas such as shops and offices. It is also right that those who, due to the negligence of others, are injured or made ill from their work or the work of others should have the right of redress. That point was made by the noble Baroness, Lady Donaghy, and we fully endorse it. The issue, as the noble Lord, Lord Young, so rightly brings out, is that we need to regain a sense of proportion.
The Health and Safety at Work etc. Act 1974, which was pioneered by Lord Robens, was ground-breaking at the time of its introduction with the switch of emphasis from detailed prescriptive legislation to goal-setting regulations. However, his vision has now been distorted by overinterpretation, as my noble friend Lord German pointed out. Rules intended to protect workers in high-hazard industries have been overzealously applied to low-risk workplaces. Consultants encourage businesses to take unnecessary actions to avoid litigation. No-win no-fee adverts encourage people to seek compensation for genuine accidents, rather than to take responsibility for their own actions. These factors have led to pointless risk avoidance.
The Government have therefore welcomed the report of the noble Lord, Lord Young, as a milestone on the road to restoring proportionate health and safety. We need to push back against the use of health and safety and compensation, which become paralysing rather than protective. The emphasis should be on addressing real risks and preventing death, injury and ill health to those at work and those affected by work-related activities.
The Health and Safety Executive is already working to implement the recommendations of the noble Lord, Lord Young, especially those aimed at low-risk businesses. One example is an online risk assessment tool for those working in low-risk office-based environments which can be completed in 20 minutes. I hope that goes some way to satisfying the concerns expressed by the noble Lords, Lord Bhattacharyya and Lord Sugar. That particular tool will help employers to consider relevant hazards in their offices and think about how to control them. It will also help employers to avoid unnecessary paperwork and bureaucracy. A similar tool is out now for consultation to ease the paperwork burden that teachers face; tools for low-risk shops and for charity shops will be put out for consultation next month and the HSE will consult on similar guidance for small firms.
There is also the new occupational safety consultants register, which will be launched in January 2011. The register will provide businesses with details of safety consultants who have met the highest qualification standard of recognised professional bodies and who are bound by a code of conduct that requires them to give only advice which is sensible and proportionate. That may help to stop the gravy train referred to by the noble Lords, Lord Bhattacharyya and Lord Sugar, and by my noble friend Lord German.
The Ministry of Justice has been equally as prompt as the HSE in addressing my noble friend Lord Young’s recommendations. I shall touch on two areas in particular. The first is the concern about conditional fee arrangements and the culture surrounding them. The noble Lord, Lord Sugar, referred to the rogues in the industry. This point was touched upon by my noble friends Lord Hunt and Lord Black. As the House knows, last week we launched a consultation on Lord Justice Jackson’s recommendations on the reform of civil litigation, which will close on 14 February. It is in the structural reform plan of the Ministry of Justice, and the Government are very committed to this issue, which we will seek to implement rapidly, although it is up to the Secretary of State at the MoJ to confirm that.
Secondly, in March next year, the Ministry of Justice will launch a consultation on the reform of civil justice, covering the extension of the road traffic accident personal injury scheme. This consultation will address three aspects of the recommendations by my noble friend Lord Young. It will look at introducing a simplified claims procedure for personal injury claims similar to that for road accidents, explore the possibility of extending the framework of such a scheme to cover low-value clinical negligence claims, and explore the option of extending the upper limit for road traffic accident personal injury claims to £25,000.
These are specific examples of our response to the recommendations by my noble friend Lord Young, but noble Lords have raised a number of wider points that I will do my best to address in the time available. I shall start on a warmer note with the request from my noble friend Lady Thomas about hydrotherapy pools. I have to admit that I do not know off the top of my head what the situation is, but I do know that they are likely to be a lot warmer than the 6 degrees centigrade that Highgate men’s pond was this morning. I will put a letter in the Library when I have found out what the situation is.
The noble Lord, Lord McKenzie, asked me about progress on tracing an employer’s liability policies. I cannot give him very much hard information. All I can do is assure him that this is receiving my full attention to get a satisfactory outcome. I know this is an important matter, I am in discussion with various bodies and I hope to get some resolutions, although the matter has not been made easier by the current court case about the definition of when a loss occurs.
My noble friend Lord Skelmersdale asked about the Adventure Activities Licensing Authority. The HSE is taking forward my noble friend Lord Young’s recommendation to abolish that authority. Its work will be replaced effectively by a code of practice.
Lord Freud
My noble friend will forgive me for not being able to answer him off the top of my head. I am not absolutely sure about how that abolition will happen. I will write to him and place a copy of the letter in the Library.
My noble friend Lord German and the noble Lord, Lord McKenzie, asked about the SR settlement of the HSE and the reference to cuts among local authorities in this area. I hardly need to confirm that the HSE faces the kind of spending restraint that is seen in the rest of the public sector. Its current funding of £228.8 million will be reduced by 35 per cent over the SR period to around £150 million. The HSE is looking at how to maintain the position of health and safety in the country within that context and looking at its approach, and will report on how it will manage within that financial environment.
My noble friend Lord German and the noble Lord, Lord Smith, observed that there was a lack of evidence in my noble friend Lord Young’s report. I think I can speak for him in saying that there was wide consultation with stakeholders in the course of his review. The noble Lord, Lord McKenzie, raised whether we are talking about reality or perception. My noble friend Lord Young’s report said that perception becomes reality at a certain point. The fact that people read silly health and safety myths in the media on a regular basis affects behaviour, has an impact and does not encourage a sensible and proportionate approach to risk. This dialogue about what is perception and what is reality does not properly take that point on board.
Gold-plating was raised by my noble friends Lord German and Lord Vinson. It is at the heart of what the Government are doing in this area. We need to position health and safety as an enabler for business and citizens. The Government strongly support that approach. We know that it is central to the HSE’s new approach in the context of the financial rigours that we are facing.
The noble Lords, Lord Smith and Lord Sugar, raised advertising. The claims management regulator has already agreed to look at the code regarding offering inducements and plans to close this loophole by April 2011. I am sure that the noble Lord, Lord Sugar, in particular, will welcome that assurance.
My noble friend Lord Vinson and the noble Lord, Lord Rooker, talked about bureaucracy and the criminal records check system. The clearly excessive bureaucracy adds little to our real safety and has become part of the perception problem. Such checks fall outside the HSE’s remit, but I will bring the concerns on that to the attention of colleagues.
Lord Hodgson of Astley Abbotts
My Lords, perhaps I may draw the attention of my noble friend to the fact that 100,000 people in this country are checked 30 times each and every year.
Lord Freud
I fully accept the concern of noble Lords on that issue and, as I say, we will push this point. In conclusion, good health and safety, particularly in low-risk areas, should be simple and straightforward. It should be about protecting people from real risks, not trivial risks. I believe that the approach of my noble friend Lord Young will help to put the focus back on managing serious risks and to dispel the myth that health and safety is a killjoy activity designed to place burdens on business, take the fun out of life and stop people from enjoying everyday activities. We will not make the United Kingdom a safer place by wrapping everyone in cotton wool and avoiding all risk. We will do it by being exemplars of a common-sense, proportionate approach to risk management, by giving people confidence to exercise judgment and by ensuring that advice and guidance is competent and fit for purpose. I commend the work and the report of my noble friend Lord Young, and I look forward to the successful implementation of his recommendations.
Lord Young of Graffham
My Lords, I am grateful to the House for this contribution to discussion on health and safety. I will not detain your Lordships much longer, but I would like to say just three things and to make one general observation. I am very grateful to the noble Lord, Lord Rooker, not only for his thorough endorsement of my report, but for the way in which we have worked together with his organisation. Next week, at Bluewater, the Scores on the Doors scheme will be introduced, which I believe will not only make a long-lasting contribution to the health of the nation but be a valuable boost to tourism.
I agree completely with the noble Lord, Lord Smith of Finsbury, on his point about incitement to litigate, but I ask him also to look at the volume of advertising, which I believe has increased remarkably and markedly since 2006. The noble Lord, Lord Jordan, has the honour to be president of RoSPA. Perhaps I may say that I fail to recognise his description of my report. Furthermore, in the past three weeks I have had two meetings with his officials and none of those points was raised with me.
Finally—to give a general observation—the laws and the regulations are there. The one thing not dealt with is people and I am afraid that individuals, from time to time, take all these rules and regulations and assert petty authority or take extreme views. The only antidote to that is common sense and that I commend to your Lordships’ House. I beg leave to withdraw the Motion.