16:07 - Division on whether Clause 1, as amended, should stand part of the Bill. - Ayes: 253 / Noes: 175 - Clause 1, as amended, agreed.
17:14 - Division on Clause 2 - Ayes: 234 / Noes: 194 - Clause 2 agreed.
18:23 - Division on whether Clause 12 should stand part of the Bill. - Ayes: 221 / Noes: 175 - Clause 12 agreed.
Lord Wallace of Saltaire
“( ) In section 82 (general provisions as to interpretation and regulations)—
(a) in subsection (3)(b) for “subsection (3A) or (4)” substitute “subsection (3A), (3B) or (4)”;(b) after subsection (3A) insert—“(3B) Regulations under section 3(2) shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.””
Lord Wallace of Saltaire (LD)
My Lords, perhaps I should start by saying that the point which has just been raised by the noble Baroness, Lady McIntosh of Hudnall, will be dealt with later on today, so we will return to that question.
The purpose of Clause 1 is to remove the requirements of Section 3(2) of the Health and Safety at Work etc. Act 1974 from self-employed persons except those on a prescribed list of activities. The effect of Clause 1 will be to exempt self-employed persons from the requirements of Section 3(2), except those conducting undertakings prescribed by the Secretary of State in regulations.
As things stand, Section 3(2) imposes a duty on every self-employed person to protect themselves, and others, from risks to their health and safety, regardless of the type of activity they are undertaking. This means that duties are currently imposed on self-employed persons who undertake activities with little or no risk of harm to themselves and others. For example, a dressmaker, accountant or academic conducting commissioned research, as I used to do, working at home currently has duties under this section.
This proposal emanates from an independent review of health and safety legislation undertaken by Professor Ragnar Löfstedt in 2011. He recommended that self-employed persons be exempt from health and safety law where their work activities pose no potential risk of harm to others. One of the cases for doing so, he said, is so that Britain follows a similar approach to other EU countries—a comparison that may be welcome to some and possibly not welcome to others. The Government accepted this recommendation and a clause was included in the draft deregulation Bill.
In 2013, the Bill was subject to scrutiny by a pre-legislative scrutiny Joint Committee chaired by the noble Lord, Lord Rooker. Evidence presented by interested parties suggested that the clause, as originally drafted, could be confusing for self-employed persons to assess whether the law applied to them or not. The clause was therefore amended in the light of this evidence to make it clearer to the self-employed when the law will apply to them and when they will be exempt.
As a result of the change, only those self-employed persons conducting an undertaking prescribed by the Secretary of State in regulations will continue to have duties under Section 3(2). Undertakings will be prescribed if one of the following four criteria is met: first, there are high numbers of self-employed in a particular industry and high rates of injuries and/or fatalities—for example, in agriculture; secondly, there is a significant risk to members of the public—for example, in fairgrounds; thirdly, there is the potential for mass fatalities—for example, in the use of explosives or other dangerous equipment; fourthly, there is a European obligation to retain the general duty on self-employed persons—for example, in construction.
I hope that by now all noble Lords will have had an opportunity to consider a draft of the prescribing regulations, which has been produced in light of these four criteria. I am sure we can all agree that those self-employed undertaking work in the building industry should remain within the scope of health and safety law. Under the draft regulations, noble Lords will see that this will indeed continue to be the case. Builders, for example, will not be exempt under this proposal. Similarly, gas fitters and boiler engineers for obvious reasons will not be exempt. The risks posed when working with gas are recognised to be high and so the duties owed by a self-employed person who undertakes these activities will be maintained.
The draft set of regulations for the prescribed undertakings has been designed to strike a careful balance between the need to free self-employed persons from the perception that health and safety law places unnecessary burdens on them while still providing important protections in the law to those who require them. The Government have also tabled an amendment accepting the recommendation of the Delegated Powers and Regulatory Reform Committee to change the parliamentary procedure for these regulations from negative to affirmative. This will allow Parliament fully to scrutinise the regulations.
To ease transition to the new system and minimise familiarisation costs, the prescribed list relies on existing legal definitions, where possible. The clarity of the definitions in the list of prescribed undertakings in the draft regulations was the subject of an eight-week public consultation during the summer. The responses are being analysed by the HSE and will be published shortly. The draft list is available on the HSE website, and to assist the House, I will place a copy in the Library today. I hope that this will help in our discussions.
Further to aid the transition, the Health and Safety Executive is producing guidance targeted at self-employed persons and others to assist them in understanding the proposed changes to the law. It will also signpost them to existing guidance which explains in practical terms what self-employed persons need to do to comply with the relevant law. There is, for example, extensive guidance made publicly available by the HSE about managing health and safety in construction. This provides additional information about the definition of construction work, which is one of the activities intended to be prescribed. Detailed guidance exists for a majority of the other prescribed activities and, where it does not, the Health and Safety Executive will ensure that additional guidance is produced to support this legislative change. I beg to move Amendment 1 and propose that Clause 1 should stand part of the Bill.
Lord McKenzie of Luton (Lab)
My Lords, I rise to speak to our intention that Clause 1 should not stand part of the Bill. This is grouped with the government amendment and I can say that, should the clause survive, of course we accept that the affirmative procedure should be supported. However, I give notice that, notwithstanding the grouping, we reserve the right to vote separately on the clause stand part debate.
We have a first-class health and safety system in the UK which is respected around the world. At its centre is the Health and Safety at Work etc. Act, now in its 40th year. The system is built around the principle that those who create risks are best placed to manage them, and without being complacent, it is an approach which has hitherto saved countless people from being killed, injured or made ill by work. As we have heard, Section 3 of the Health and Safety at Work etc. Act currently places a duty on all employers and the self-employed to ensure, so far as is reasonably practical, the health and safety of others.
We should therefore be alarmed at what is now being proposed in Clause 1 of the Deregulation Bill, which seeks to exempt millions of the self-employed from health and safety legislation. This move springs from a recommendation made by Professor Ragnar Löfstedt, which was to exempt the self-employed who,
“pose no potential risk of harm to others”.
Such an exemption was proposed notwithstanding that it is generally accepted, including by Professor Löfstedt and the Health and Safety Executive, that the duty on the self-employed in these circumstances is limited, that little would be saved in terms of cost and time, and indeed in precautions undertaken, if such an exemption was introduced.
The professor also advanced the argument, as we have heard, that the exemption would help progress perceptions of a heavy-handed approach to health and safety for the self-employed, although scant evidence was provided to support the contention that this is a real problem. Indeed, the Engineering Employers’ Federation has refuted the view that self-employed people see health and safety as a burden and that they feel threatened by inspections and prosecutions. However, if there are these misapprehensions, surely the right thing to do is to challenge them, as the HSE is doing through its myth-busting panel rather than pare back the limited requirements which actually apply.
It was also proposed that this would bring us into line with Europe. However, international experience is varied, and more than half the countries of the EU include the self-employed in their health and safety legislation. Some that do not have stricter negligence laws which can be applied to those who put others at risk. Any suggestion that the UK’s health and safety system is creating an anti-competitive regime for the self-employed would not seem to be supported by what is happening. Self-employment actually grew by nearly 400,000 in the four years to 2012.
The HSE’s formulation to meet the Löfstedt recommendations was consulted on in 2012 and, despite receiving support from only a minority of consultees, was included in the draft Deregulation Bill which went before the Joint Committee. However, this attempt has proved problematic, with the Government eventually concluding from the pre-legislative scrutiny—rightly, in our view—that it would have been too confusing as to who was exempt and who was not. Given the minimal requirements on the self-employed who pose no risk of harm to others, it would have been logical at this point to hold on to the status quo; that is to say, although Professor Löfstedt arguably had a point, seeking to address it caused more problems than it solved.
Lord Curry of Kirkharle (CB)
My Lords, I speak in favour of this clause and the Bill. I need to declare an interest: I chair the Better Regulation Executive, and many of the elements of the Bill have come through the Red Tape Challenge process, which we are partially responsible for. I stress that I am the independent chair of the BRE.
I understand the concerns that have been raised about the perceived dilutions of health and safety standards that this would give the indication of being. In fact, though, the noble Lord, Lord Deben, has mentioned the European Union, and we could be charged with being guilty of gold-plating health and safety because what Professor Löfstedt has recommended here is that we come into line with the rest of the EU. In most member states this is common practice; self-employed people in certain trades are exempt from health and safety legislation. This is bringing us into line with what is common practice in most member states within the EU.
The fear is that high-risk trades are going to find themselves newly exposed, but of course that will not be the case as those trades will not be allowed this exemption, and the Health and Safety Executive will produce guidance if there is some uncertainty among trades about whether or not they need to comply. The idea that somehow or other self-employed people in certain trades being exempt from this legislation means that they are suddenly going to behave irrationally is just not true. Most self-employed people will continue to behave as they behave now, whether or not they are subject to the law. What this does is remove from their lives some bureaucracy and box-ticking exercises that they are subject to now, so they will be alleviated from that burden. The assumption that there is going to be masses of exposure of self-employed people who are then going to suffer serious health and safety accidents is just not the case.
Lord Wallace of Saltaire
My Lords, this has been a short debate. I recognise the worries that have been raised. I thank the noble Lord, Lord Curry, for his speech. I emphasise that this is very much about the Red Tape Challenge and removing both real and perceived burdens on businesses. I stress perceived burdens because it is a disincentive to set up a business if you are intending to work on your own if you think that you face a tangle of regulations that it will cost you money, and take you a great deal of time, to work through and understand. The question of perception is therefore not at all unimportant to this Bill. On the other hand, I recognise that much of this is not enforced, let alone inspected, when it comes to people who work on their own, quite often in their own homes, so there are shades of understanding on all sides of the issue.
When I think about the self-employed, I tend to think about people in my profession, academia. I can recall two accidents in academics’ homes that I am aware of, in which bookcases became overloaded with books and collapsed. I regret to have to admit to your Lordships that one of the bookcases in question I had put up several years before; we had then sold the house to another academic and the bookcase very nearly collapsed on him, so in that sense I am perhaps liable. My DIY skills are not as good as they should be.
We recognise that people working in what one has to say are the intellectual trades or in the service industries—accountants, lawyers working at home and so on—on a self-employed basis are not in the business of high risk. All regulation is a question of how much risk one is prepared to accept, how large the risk is and how burdensome regulations will be. That is a constant trade-off that all Governments and Administrations have to consider, and that all courts when asked to review them also have to consider. The question of the balance is very much part of what we are now dealing with.
The noble Lord, Lord McKenzie of Luton, asked about people working in partnerships and whether they are exempt. I can tell him that if they are self-employed within the definition in the Health and Safety at Work etc. Act, they will be exempt unless the activity that they are undertaking is on the proscribed list. The definition of “self-employed” is not altered by this change. The noble Lord quoted paragraph 90 of the HSE review on this. I had indeed looked at paragraph 90, and what is said in paragraphs 91, 92 and 93 modifies what is said in paragraph 90, to the effect that we should not expect adverse health and safety impacts for the workers themselves and that behaviour is not likely to change due to the exemption. Again, we are dealing with degrees rather than sharp distinctions, one for another, and with perceptions as well as realities.
To introduce some numbers, as has been stated in the debate the number of people who are self-employed has grown considerably over the last 20 years, particularly over the last 10 years. On figures for accidents and fatalities, in the years 1992-93 there was an average of 81 fatalities among the self-employed per year; in 2012-13, there was an average of 51 fatalities. Many of these accidents involved electrical failures, or people who are electrocuted in the home or whatever it may be, as well as anything that may involve anyone else who had visited them.
I will ensure that I have answered all the other questions. The noble Lord, Lord Stoneham, and my noble friend Lord Deben asked whether we have anything specific about premises. This proposal is specific, as I mentioned in moving it, to Section 3(2) of the Health and Safety at Work etc. Act. Self-employed people will continue to have duties under Section 4 of the Act, which places a duty on those who provide non-domestic premises in a workplace, such as landlords. The duties that the self-employed person will have more generally will depend on whether the self-employed person carries out the activities on the proscribed list.
Lord Deben
My question was not just about whether they had duties, but whether the same responsibilities for the self-employed person who was exempt would be borne by the owner of the premises upon which they were working.
Lord Wallace of Saltaire
My Lords, I will have to write to the noble Lord about that specific question; I have noted it.
Part of what we are seeing in the rise of self-employment is that the number of people working in their own homes is rising as well; computerisation and all of the information technology developments make that much easier than it was 20 years ago. The noble Lord, Lord Deben, has remarked that inspectors could indeed come around and make sure that they have got their computer screens at the right angle and that they are using the right sort of chair. All of these can indeed be regarded as mild risks to those who are engaged in the activity. Again, however, in the balance between risk and regulation, that seems an acceptable risk to the Government, and one would wish to maintain the degree of independence and autonomy that one could have.
Lord Greaves (LD)
I was very much taken by my noble friend’s example of somebody who is self-employed being hit by a huge pile of books when a bookcase collapsed; I thought, “Yes, I have been there”. Can my noble friend tell me who is responsible from a health and safety point of view if an employed person is working from home, as so many people now do, and there is an accident with equipment for which the employed person is entirely responsible?
Lord Wallace of Saltaire
If that person is not self-employed, but working in paid employment with equipment provided by the employer, we are in different circumstances from those covered by this clause. If necessary I will write to the noble Lord to clarify that further. However, where a non-self-employed person is working from home while still carrying on their employment is a different circumstance.
The noble Lord, Lord McKenzie of Luton, touched on the list of exemptions and what areas are covered. The regulations will of course be discussed further—the HSE is currently discussing the draft list—so we may come to a slightly different conclusion at the end. I merely wish to point out that the actions of independent van drivers, for example, are covered by a whole range of other regulations. The question of whether we should duplicate regulations and restrictions is also one of those which the Red Tape Challenge wishes to address. I hope that I have managed to answer all the questions that were raised.
Lord Deben
I raised the question of information. Although a large number of individuals are exempt—I quite agree with that—they would still perhaps benefit from knowing about these things. How will that connection be made?
Lord Wallace of Saltaire
My Lords, I suspect that most young, self-employed people get their information about these things off the computer or iPad. I hesitate to suggest that inspectors should visit them in their homes to check that they are doing things correctly. That suggests a level of state intervention in personal lives and activities that I hope the noble Lord would be strongly opposed to and perhaps the Labour Front Bench would not wish to propose. As I have stressed before, we are talking about the balance between acceptable risk and necessary regulation, and about the balance between the burden of regulation and the perception by people who wish to set up their own businesses or work on their own of the amount of regulation they face and the potential risks to themselves and others who may visit them.
Lord McKenzie of Luton
As we are in Committee, I will make a few comments. On the issue of perception not being irrelevant, surely the way to tackle perceptions or misperceptions is, for example, to do what the HSE does through its myth-busting arrangements and panels to make sure that there is proper information and education. To pander to misconceptions and weaken health and safety protections is completely the wrong way to go. I say to the noble Lord, Lord Curry, that we are not just talking about perceptions here. In this clause we are talking about actual diminutions in health and safety protections. This goes a long way beyond what Professor Löfstedt recommended. He said that we should change the rules for those self-employed who pose no risk of harm to others. In this clause we are way beyond that. The Minister said that whether the law is there or not people will still act sensibly. Some will and some will not. However, he has not effectively answered the point: why should woodworkers, furniture makers, metalworkers and maintenance fitters, for example, be outside health and safety provisions both as regards their own protections and their responsibility to others?
I fundamentally agree with the noble Lord, Lord Deben, who said that the risk of all that is that it will create greater complications than anything that it solves. The noble Lord, Lord Stoneham, said—or I took him to say—that we should not proceed with this until we know what the detailed regulations are, and it appears that we will not know those for some time. What has not been answered effectively is why, having originally accepted Professor Löfstedt’s recommendations, the Government now wish to go way beyond that. That is what they are doing with this clause: they are weakening health and safety protections which have stood the test of time for 40 years.
Lord McKenzie of Luton
With great respect, I do not think that that is Professor Löfstedt’s position. He circulated his original advice; we know what that is and why it could not be implemented.
Lord Wallace of Saltaire
I hesitate to suggest that we should call Professor Löfstedt to the Bar to explain what he may or may not have said; he is in Sweden at present and we will have to wait until he comes back. The decision that the Government took to produce a list of activities rather than occupations that would be covered by health and safety regulations, leaving others outside, was in order to provide greater clarity. I stress that it is intended to cover activities conducted by self-employed persons rather than being occupation-based.
The self-employed person in any profession who conducts one or more of these activities will remain within the scope of the law. Where a self-employed person falls exempt under this proposal, it is considered that other enforcing authorities would be better placed to deal with transgressions. Many other laws and regulations apply to these activities. There are also other means of redress available in civil law to those who suffer harm as a result of a self-employed person’s activities, and in some circumstances in criminal law: for example, gross negligence.
I also remind noble Lords that we tabled Amendment 1 to ensure that the list, which is now available in draft and is, I hope, in the Library, will be subject to parliamentary scrutiny under the affirmative procedure —so we will be able to return at that point to make sure that we have the boundary that we are now arguing about right. As drafted, it was subject to the negative procedure, but now there will be a further opportunity in Parliament to debate the exact list of high-risk activities before it comes into effect.
Baroness Thornton (Lab)
My Lords, I agree with the noble Lord, Lord Deben: it rather looks as if the Government put a call-out to each department to offer up two or three regulations for abolition, without much thought about the priority and importance that they might have. I support the stand part debate on Clause 2. Indeed, I put my name to the intention to oppose it, introduced by the noble Lord, Lord Rooker, and supported by the noble Lord, Lord Sharkey. It seems hard to find anyone who supports the inclusion of this clause in the Bill, with the obvious exception of the noble Lord, Lord Curry, and Oliver Letwin.
As noble Lords have said, Clause 2 would remove the power of employment tribunals to issue wider recommendations to employers found to have unlawfully discriminated. I was party to passing that legislation in the Equality Act 2010. Indeed, on my side of the House, the Government of the time would have liked to have had some sanctions attached to this. However, there was a process of negotiation which the Conservative and Liberal Democrat parties agreed to. I make the point to the Committee that this is why we had that recommendation; it had all-party support from all parts of the House at the time.
The EHRC has said:
“We consider that the power to make wider recommendations is an effective way of preventing unlawful discrimination from occurring and helping employers to comply with their duties to treat their employees fairly. The case for … abolition has not been made. Clause 2 of the Deregulation Bill should therefore be removed”.
The Minister needs to explain to the Committee what is wrong with these recommendations. What is his message to the people who went through all the stress and trouble of going to an employment tribunal to right an injustice, as outlined by the noble Lord, Lord Sharkey, and other noble Lords, won there and then find that the employer is not being encouraged to do anything about those of their work colleagues suffering the same wrong? Does the Minister think that they should all go to the tribunal? What does he think should happen?
Finally, regarding the business perceptions referred to by the noble Lord, Lord Curry—it is the second or third time that he has mentioned them in these debates—I have to cite three cases. In Stone v Ramsay Health Care, the tribunal said that there was a “thorough and abject failure” by the employer,
“to have protected the claimant from pregnancy and maternity discrimination”.
It recommended training for senior managers and HR on pregnancy and maternity rights. In Crisp v Iceland Foods, the HR manager’s awareness of mental disability was “no less than woeful”, according to the tribunal. It recommended that those with HR responsibilities and area level managers be trained on disability discrimination rights. In Austin v Samuel Grant (North East) Ltd, the managing director had a long history of sending racist and sexist e-mails and the human resources manager had failed to deal properly with that issue. The tribunal recommended that the employer updated its policies on discrimination and that the directors and managers received diversity training. I cannot quite see what the overwhelming burden on industry is through those recommendations.
Lord Wallace of Saltaire
My Lords, this has been a useful and serious debate. I listened carefully to what the noble Lord, Lord Rooker, said, as he always does his homework extremely seriously—although the suggestion that you could find even a cigarette paper between the approaches which Oliver Letwin and I take to the Bill is one that I find quite remarkable. As a coalition Government, we are absolutely solid and arm in arm.
The noble Lord raised a number of serious questions. First, on the GEO inquiry, the 26 companies were of course under no obligation to reply; those that had the most interest replied. The GEO had taken the need to collect evidence seriously by contacting every employer at that time but there is also a question about the burden on industry and companies that one provides by pushing harder on those issues. Secondly, he raised the question of equal pay audits and how those are compared. As I think the noble Lord may know, an equal pay audit ordered by an employment tribunal is a precise and mandatory requirement, with sanctions for non-compliance, to advance equal pay in the small number of organisations where a breach of equal pay has been found. It is also directly a transparency measure, as it has to be published. By contrast, as has been stated in this debate, wider recommendations in other discrimination cases are effectively discretionary for employers and cannot be imposed.
On the question of how much evidence we have on all this, these wider recommendations have been handed down in fewer than 2% of all successful tribunal discrimination cases since 2010.
On the Red Tape Challenge, I say to the noble Lord, Lord Sharkey, that the presumption is that if the legislation does not serve a useful purpose then it should be removed. The fact that it is not terribly useful but confuses people as it stands is not a reason for leaving it on the statute book.
The noble Lord, Lord Ouseley, in a very helpful and powerful speech, raised the Howard case, which we are all well aware is one of the most difficult cases in this area. I should point out that the wider recommendation was intended for use in those cases where the complainant has left the relevant employer. In this case, as it happens, Miss Howard was still a Metropolitan Police employee, which would mean that the tribunal would still be able to make recommendations that benefited both her and her colleagues in the continuing workforce. Of course, even if Miss Howard had left the Metropolitan Police when the case was brought, it would remain open to the tribunal to express the same criticisms as observations in a non-statutory context.
What the Government are proposing will not result in any reduction in either the rights of complainants or the effective powers of tribunals, nor does it reduce the rights of other employees in the businesses concerned as the wider recommendation cannot be enforced on their behalf. Nevertheless, under the Red Tape Challenge the Government are committed to removing legislation that does not serve any clearly defined purpose, particularly where it none the less creates a perception of burden and unfairness. It is not just a question of those who, as the noble Lord, Lord Rooker, powerfully put it, have broken the law; we are concerned about the perceptions of unduly onerous legislative demands.
The power to make these wider comments, a somewhat anomalous one in a claimant-based adversarial system, came into effect four years ago. It has proved problematic. It is rarely used—we are aware of around 40 cases, as has been said, where they have been made—and trade organisations have told the Government that the power has led to additional cost, and that it is confusing.
Most of the wider recommendations made by tribunals are generic. Of the 40 or so that we are aware of, over 90% concern training for management or the updating of company diversity policies. However, as I have said, tribunals do not have the power to enforce such recommendations. Post-tribunal action is largely taken voluntarily by employers that have lost a discrimination case. Unless it was a one-off incident, business sense would drive changes in workplace practices to avoid a similar case being brought against them in future.
Perhaps I can give a few numbers in the areas that the noble Lord, Lord Rooker, raised. In 2012-13, the Government Equalities Office partnered the British Chamber of Commerce in events across the country, explaining the Act to small businesses. Around 300 businesses attended the events, and a follow-up booklet, Business is Good for Equality, was more widely distributed by regional chambers to their members, which altogether employ around 5 million people. Some 300 businesses attended the 10 short sessions to learn first hand about their obligations under equality law; that is more than seven times the number of employers that have received a wider recommendation in the four years since 2010. I hope that that provides some more detail of the sort that the noble Lord was asking for.
I know that concerns have been expressed that this repeal will reduce protections against discrimination in the workplace. That is not the Government’s intention and it will not be a result of this reform. Tribunals will continue to have the power to make recommendations and observations on their behalf. The question is: has this power done its job? I would say that for the employer, the wider workforce and the business in general, the answer is that it has not. There is instead a very small and unenforceable benefit balanced against the larger cost and the problem of uncertainty for business. I therefore urge that this clause remain part of the Bill.
Lord Rooker
Well, I thought that was a disgraceful speech, defending law-breaking employers. I have been where the Minister is. If I had sat through the debate I have just heard, I would have said, “Actually, I will take the recommendation back”. I would go to my Secretary of State and say, “I was going to screw this up anyway; the House was against me. We need some better arguments”.
I say to the Minister that the Government need better arguments, and the Red Tape Challenge is not one to use; you cannot rely on it for this. During the Red Tape Challenge, I came across an example where anecdotal comments by two environmental health officers caused the weight of the department and the committee led by the noble Lord, Lord Curry, to come down on the Food Standards Agency and say, “Keep unsafe kitchens in parks and village halls”. We said, “No, unsafe kitchens kill people”. They said, “But the Red Tape Challenge has actually identified this”. It was two anecdotal comments from environmental health officers on a website. That is the intellectual weight of the Red Tape Challenge. It is nonsense when you actually look at it.
I say to the Minister that he cannot rely on the Red Tape Challenge in this case because I do not recall it being used when we did the committee inquiry upstairs. I say to the Minister what the then Prime Minister said to me: “One last chance”. Would he like to take this away, come back on Report, and have a little think about it with a bit more fresh evidence—fresher than we have at the moment? Does he not think that would be a good idea?
Lord Rooker
Well, I know that that noble Lord would not want any evidence, but he is not the Minister. I am asking the Minister. Would it not be a good idea to get more up-to-date evidence and take it away to have a little think about it? That is all that I am asking him to do.
Lord Wallace of Saltaire
My Lords, of course, between Committee and Report, as the noble Lord is well aware, the Government take things away and have discussions in the Corridor. Officials look at the speeches that have been made and attention is drawn to their implications. Of course we will undertake to do that, and I am happy to talk further to the noble Lord, Lord Rooker. That is the way in which we always operate in this House: we take very seriously all the arguments made in Committee.
Lord Rooker
And the result of that is that I was asked to keep unsafe kitchens.
Lord Wallace of Saltaire
I simply answer that the argument is that these provisions are unnecessary. It will make a small amount of difference, but the fact that we have removed them will mean that the sheer weight of regulations and expectations that employers have will be reduced a little. That is, in itself, useful.
Lord Singh of Wimbledon (CB)
My Lords, I support the retention of the original clause. I speak on behalf of the Network of Sikh Organisations, the largest Sikh organisation in the UK, and as an expert witness in the famous Mandla case in the early 1980s which, incredibly, had to go all the way to the House of Lords to secure the right of a Sikh schoolboy to wear a turban in school and make religious discrimination against Sikhs contrary to the Race Relations Act 1976.
Sikhs are already free to wear turbans on building sites. This measure is simply a tidying-up exercise to ensure that Sikhs are not harassed by insensitive health and safety zealots in offices and workshops where there is minimal risk of injury. I spent a day and a half in the witness box in the Mandla case and would like to take just three minutes to explain to the House the significance of the turban. It is not cultural headgear like the hijab but a religious requirement to remind us and others of the need to stand up and be counted for our beliefs, particularly our opposition to religious bigotry in all its forms, and for the freedom of people of different faiths and beliefs to worship in the manner of their choice. So strong is this belief in Sikhism, that our 9th Guru, Guru Teg Bahadur, gave his life defending the Hindu community’s right to practise their faith—a religion different from his own—against alarming Mughal attempts at forced conversion.
It was Voltaire who said, “I may not believe in what you say, but I will defend to the death your right to say it”. Nearly a century earlier, Guru Teg Bahadur gave this noble sentiment practical utterance. The Guru was publicly beheaded in the centre of Delhi. The executioners challenged Sikhs, who then had no recognisable symbols, to come forward and claim their master’s body. They hesitated to do so. There are parallels here with the Bible description of Peter denying his closeness to Jesus Christ at the crucifixion.
The 10th Guru, Guru Gobind Singh, decided to give Sikhs visible symbols of their commitment to Sikh beliefs—a sort of uniform like that of the Salvation Army. The turban is now the most recognisable of these symbols. Sikh teachings of tolerance and respect for the beliefs of others are a powerful antidote to the extremism and persecution of minorities all too evident in our world today. Our world would be a happier and more peaceful place if more people were ready to stand up and be counted in the fight against intolerance. This clause is a sensible tidying up of the law to extend existing exemptions for building sites to sensibly include other workplaces. I give it my full support.
Lord Wallace of Saltaire
My Lords, I thank the noble Lord, Lord Singh, for that immensely helpful speech. As we have discussed these matters, I thought about my first year at university when my next door neighbour in the hall of residence I was in was a young man called Rahul Singh, who since then has become a rather distinguished writer in India. Every morning he used to comb out his hair in the corridor just outside my room. It was a wonderful sight to see each morning.
I say to the noble Baroness, Lady Thornton, that the Government are extremely well aware of the role played by Sikhs in World War I and World War II. It is very much part of what we are doing to commemorate World War I. As she may know, I sit on the advisory board. This summer, I was taken by the FCO World War I Unit to an excellent exhibition on the Sikhs in World War I at the School of Oriental and African Studies. The United Punjab Welfare Association is active in ensuring that the Government do not forget this in any way and this is something that I trust we will begin to follow through. I think I recall the noble Lord, Lord Singh of Wimbledon, saying to me that he thinks that he is almost the only Sikh living in this country who does not claim to have had a relative who served in the Indian Army during the First World War.
We are very happy to accept that we should respond in writing to the points that the noble Baroness has made and with a meeting, if necessary, to make sure that we have all the information which is needed. The issue is relatively straightforward, as the noble Lord, Lord Singh, said. Currently, turban-wearing Sikhs are exempted in Britain and Northern Ireland from legal requirements to wear a safety helmet while on a construction site, which also protects employers from liability. These clauses will extend the scope of the exemption to all workplaces and thereby increase the ability for turban-wearing Sikhs to pursue their chosen profession, whatever that may be.
In Great Britain, members of the Sikh community have faced disciplinary hearings and dismissal for refusing to wear head protection. Others are unable to follow their chosen professions. These provisions are therefore considered to be a necessary and sensible method of providing a consistent approach across health and safety legislation. They will also help to place turban-wearing Sikhs on a fair and equal footing when seeking employment. Perhaps I should also say that the number of turban-wearing Sikhs who find themselves in this position in this country is relatively small. This is therefore a small but useful and constructive change in the legislation.
The original exemption was limited to construction sites because, at the time of enacting, only workers in the construction industry were mandated to wear safety helmets. Legislative requirements regarding the wearing of safety helmets have since developed and now extend to a number of other industries where a risk assessment identifies the need for specialist head protection. There are certain jobs and industries where the wearing of a turban may come into conflict with these legislative requirements regarding the wearing of safety helmets et cetera. Employers in non-construction sectors must therefore balance their obligation to protect the health and safety of their employees against their duty not to discriminate against a turban-wearing Sikh employee on the grounds of religion or race.
Clauses 6 and 7 will be subject to certain exclusions for hazardous operational tasks where a risk assessment requires the wearing of a safety helmet. The types of tasks that are hazardous are those where it would not be sensible to allow the person to carry them out without appropriate protection, including entering a burning building or where the protective clothing needs to enclose the whole body, such as in bomb disposal or dealing with hazardous materials such as chemical leaks, biohazards or radiation. This matter is not just about individual choice—failure to wear appropriate head protection in such circumstances puts not only the individual at risk but colleagues who may have to effect a rescue in the event of an unprotected team member suffering head injuries. These exclusions will not prevent Sikhs from taking up employment with institutions such as the Armed Forces or the police and fire services.
In addition to extending the exemption for requirements to wear safety helmets, this clause also extends the limited liability provisions of other persons, such as employers, for any injury, loss or damage sustained by a Sikh individual who chooses not to wear a safety helmet in reliance upon the exemption.
I hope that this answers all the queries that have been raised. I also hope that Clauses 6 and 7 will stand part of the Bill, and trust that the noble Baroness, Lady Thornton, will withdraw her amendment.
Baroness Kramer
Baroness Thornton
My Lords, I understand that the Minister has something new for the Committee, which it may be better to hear before we proceed any further.
The Minister of State, Department for Transport (Baroness Kramer) (LD)
My Lords, as you will know, the Government introduced three measures into the Bill earlier this year relating to the regulation of taxis and private hire vehicles. Although an extensive review of the legislation has been carried out by the Law Commission and its recommendations are being considered, the Government decided that three measures could be taken forward separately to help reduce burdens on businesses more quickly. This clause is one of those.
Its purpose was to allow the use of private hire vehicles for leisure purposes. Noble Lords will be aware that, outside London, a person who is licensed as a private hire vehicle driver cannot use the family car and therefore has to purchase a second car. At £20,000 or £30,000, or the lease equivalent, that is a barrier which denies people employment. It is an issue that we need to address at some point. It also means in particular that in a number of rural areas there is, frankly, a shortage of private hire cars and taxi services. Bringing in more of those vehicles and their services for local people could be helped by removing this barrier.
However, after the Government listened closely to issues raised about the way in which we have presented this clause, we have decided that listening, as we always do, is important, and concluded that although we can still see arguments for tackling this underlying problem—I think that there is general agreement on that—it would be better done as part of the package of measures recommended by the Law Commission in a broader reform of taxi and private hire vehicle licensing than through this clause.
It is therefore my intent—although I am not sure how the procedure works—to withdraw this clause, and I am delighted to have the opportunity to do so.
Viscount Ridley (Con)
My Lords, I apologise to the Committee for not being present at Second Reading, but perhaps I may be allowed to comment on Clause 12, which I believe is a fair and reasonable measure that will bring improvements for customers.
At the moment it is only outside London that a private hire operator cannot subcontract a booking in a different district. Is there something peculiarly wicked about provincial private hire firms that does not apply in London? A London-based private hire firm can subcontract, as can a foreign unlicensed company, and this gives it a huge advantage. It puts private hire firms outside London at an iniquitous disadvantage, but it also leads to perverse, inconvenient and even unsafe consequences for customers. I shall give your Lordships a real example.
There is a private hire firm in Birmingham that has a contract to transport any staff with minor injuries from Jaguar Land Rover’s plants to hospital. As the firm cannot subcontract a booking to an operator in another district, if the injury occurs in the Wolverhampton plant, the car does a 55-mile return journey to take the person to a hospital 2.6 miles from the plant. For most of that round trip the car is empty. Jaguar Land Rover wants to deal with a single operator, but this is the result.
Another real example is of a private hire operator in Derby asked by a customer to collect an important client in another district. It must refuse the job, and refuse to arrange it with another firm in that district. The firm appears unhelpful to its customer. I have a third real example. A private hire firm in north Tyneside has a member of staff with a terminal illness. He would like to continue working, but from home. Since he lives just outside the north Tyneside border, that is illegal. I have another example. People often hire private minibuses to do long journeys for groups of up to six or eight people—to an airport, for example. That vehicle must return empty. If it breaks down en route, the operator is breaking the law if he asks another firm in the district where the breakdown happens to take the customer on. This measure would reduce congestion, pollution and noise a little, too.
Please note that the beneficiaries of this change in the law would include people with disabilities. That is because a wheelchair-enabled vehicle that has taken a customer from his home in district A to a hospital in district B would now be able to collect a different customer at the hospital and take him back to district A. As far as I can tell from Hansard, when exactly these measures were discussed and passed in this House in 1998 for London, one organisation that was widely praised in the debate for its support of the measures was the Suzy Lamplugh Trust. It therefore surprised me to hear today that it is against this measure. If this rule is good for London, it is surely good enough for the rest of the country. Can it be that London-based private hire firms are worried about competition from firms based outside London? This is an excellent and sensible measure that has benefits for customers.
Baroness Kramer
My Lords, Clauses 11 and 12 cover separate, different but sensible measures. Obviously, a thought for safety penetrates all of our thinking as we address this range of issues.
To pick up on the issue raised by my noble friend Lord Bradshaw and explained by others, particularly my noble friend Lord Greaves, the amendments do not in any way change the rules on vehicle licences. Those are tough and carried out by local authorities and there is absolutely no change. If my noble friend Lord Bradshaw knows a firm that thinks it can run a £200 car for successful private hire and meet the standards, I suggest that he call the local authority. It would be extremely difficult for a car that has that kind of market value to achieve the standards that are rightly required by local authorities in licensing those vehicles.
Clause 11 aims to reduce the administrative and financial burdens on some taxi and private hire drivers. The measures we have included in the Bill, which I will address in relation to Clause 12, will also help to improve the experience of booking taxis and private hire vehicles. I join with others in saying that in making his case my noble friend Lord Greaves prayed in aid London. Both the measures in Clause 11 and Clause 12 are already the status in London. Indeed, when we turn to London as the example that we are trying to copy, that is exactly what Clauses 11 and 12 do. It means that we have a good history of the way in which Clauses 11 and 12 function.
Clause 11 will standardise at three years the duration of both taxi and private hire vehicle driver licences; and at five years the licence for a private hire vehicle operator. Shorter periods would be permitted only where there are specific circumstances around a particular application. For example, a local authority might decide that a probationary period was necessary. Typically the duration would be three years for the vehicle driver licence and five years for the operator licence. Frankly, it means that those people will not have to renew their licences as frequently as they do in some areas.
The Department for Transport carries out a biennial survey of licensing authorities. Our 2013 survey showed that nearly half of licensing authorities grant taxi and private hire driver licences for three years, so this is not a sudden revolution. A number of local authorities use a shorter term but we can see by comparing safety records that there is nothing to suggest that those local authorities that grant their licences at three years have an inferior record. That is important to note. When it comes to the operator licences, a number of licensing authorities routinely grant private hire operator licences for five years although the substantial majority do less than five years. Again, there is nothing to suggest that there is a difference in safety between one authority and another on the basis of those differences in licensing terms.
The Government therefore consider that this is an area of taxi regulation that would benefit from deregulation. By setting a standard duration of three years for taxi and private hire vehicle driver licences and five years for private hire vehicle operator licences life will be made a lot simpler and substantially cheaper for licence holders. We estimate that the measure will save drivers around £8 million per year and operators around £1 million per year. People who are in this trade are not wealthy people. They find it tough to make a living and any little help we can offer is valid when it is not putting safety at risk.
I appreciate that some stakeholders have expressed concern about safety implications. There may be a slight misconception. It is now the case that many licensing authorities that grant annual licences actually carry out criminal record checks only every three years. Although the licence is annual, the criminal records checks—the issue that has noble Lords exercised—are typically a three-year process. Of course, we are now saying that the standard for criminal records checks will be three years. That would be a relatively small change for most authorities. They will continue to do those formal checks. As I said, we have examples in London and in the many local authorities that already use that three-year cycle that it is not associated with additional risk.
Clause 12 will allow private hire vehicle operators to subcontract bookings across licensing boundaries. Again, this is a capacity that has been available continuously for London. The noble Viscount, Lord Ridley, made the case extremely well and illustrated the many situations in which this is an extremely important measure and the extent to which car hire companies outside London are put at a disadvantage compared with London operators. One of the main motivators behind this measure is that it is so difficult when people call a taxi firm that cannot provide a taxi and are then turned away. I have a relevant personal experience, which could have turned out to be extremely difficult. I was in Gloucestershire and going to visit an elderly friend in a nursing home. I got to the station and there was no one around. I looked at the board and started calling taxi firms and car hire firms and not one could supply a car. They explained to me that they could not call someone else because they would have to call out of the area and they could not do that. In such cases one would hope to have a mobile phone that is smart-enabled to get on to the web to try to find other firms in the area to call. I was glad that I was not a mother with three children, that it was not getting dark and that it was not raining. It seems unreasonable not to allow the taxi firm to subcontract in order to be able to meet the booking.
We are often concerned about young people out late at night who try to find a taxi to take them home safely. In that situation, we do not want them having to track down one company after another. They should be able to call an operator who they have confidence in who can find them a taxi, even if it is subcontracted from out of area. You can already subcontract in area, and I should make that clear to those people who may have used subcontracted taxis or private hire vehicles and were not aware of it.
The noble Lord, Lord Greaves, said that he was concerned about disabled people. Surely that is the group which has the most to benefit from this change. Most car hire companies have a limited number of wheelchair-accessible vehicles and there may be circumstances where a disabled person needs to travel in a particular kind of vehicle. It is all very well to say that disabled people need to make advance bookings, but I want people with disabilities to be able to live their lives as freely as the rest of us can and not always have to think about things in advance—or, frankly, have to do without. We have a mechanism here which gives an operator the scope to reach out of area and subcontract to someone else who has a wheelchair-accessible vehicle to meet a need. That is exceedingly beneficial.
I want to make it clear that the initial operator who takes a call and makes a booking remains liable to the passenger who made the booking. He is the person with whom the contract has been established. If someone chooses to call a particular operator, that operator retains the liability for the subcontractor, so the terms and conditions, the recording of the booking and the fare, if it has been agreed, all remain with the operator who the customer has contacted.
Baroness Thornton
I should like to ask the noble Baroness two questions. First, has she taken into account the fact that enforcement works differently in London, with TfL working in conjunction with the police on street enforcement, yet there is still a huge problem of sexual assault involving licensed minicab drivers? Secondly, how many disabled groups has she consulted about this deregulation and can she tell us what they had to say about it?
Baroness Kramer
I personally have engaged more with disabled individuals rather than with groups, which were approached by the Law Commission as part of the consultation. But the Committee will understand the reality of what I have just described. Many Members of the Committee will have friends with disabilities or indeed may themselves have them, and they will recognise what I have just described. It is for the Committee to make its decision, but I think that noble Lords will recognise the particular set of problems and will empathise with those who have a disability.
Enforcement against an operator continues to be the responsibility of the local authority which licensed that operator. Where there is an issue of enforcement against a driver, again it is for the local authority which licensed that driver to enforce. However, to make life easier and help things to work more smoothly, in some places around the country local authorities have concordats between each other so that they can delegate enforcement powers and thus make the process more simple and straightforward. Liverpool and South Bucks already do this, and I would think that it is a logical direction for many local authorities to go, not because enforcement is difficult but because it is even easier if ongoing relationships with neighbouring areas where subcontracting may take place are developed. We already have vehicles from out of area coming into area. When you order your private hire vehicle, you may be sending it out of area, so cross-boundary issues arise on a regular basis even as it is. As I say, some areas have decided that the sensible way to deal with this issue is to work together with a concordat between them.
The noble Lord, Lord Greaves, raised one issue which I thought was interesting and is one that I will take away and think about, and that is the issue of disclosure; that is, where an operator looks at the cars he has available, cannot find a vehicle available in his own company, and therefore looks elsewhere. That is something I will take a look at. However, I want to make it clear that there are real anomalies which we have to deal with. At the moment we have a silly situation in some parts of the country where related companies cannot subcontract to each other. Although they may be part of the same company, one branch will be licensed in one area and the other in another area. That, quite frankly, is one of the silly anomalies that we want to get rid of. Also, because the company you call and the individual you call is liable throughout, in order to uphold its reputation the company will make sure that the people it subcontracts to meet its own standards and are reputable. We have just heard today that very many people will turn to a company which they consider to be reputable. The notion that such a company would subcontract to drivers who let the company down, drive customers away and ruin its reputation is, I suggest, reasonably far-fetched. Under all circumstances, the driver to whom the business has been subcontracted has to meet licensing standards, and that is something we should not forget.
These are, frankly, two relatively small measures. The subcontracting issue is particularly helpful for someone with a disability who needs to call for a vehicle when many of a company’s cars within the area are already taken. We have to take that seriously. I go back to the issue on licensing. The three-year period is a reasonable standard that is used by many local authorities. It delivers the same level of safety that we see in other local authorities so why not relieve of an extra burden those who function at the margin in terms of income, if there is no safety price to pay?