Enterprise and Regulatory Reform Bill

Debate between Baroness Whitaker and Lord Young of Norwood Green

Monday 14th January 2013 Grand Committee

[Baroness Whitaker]

My Lords, as a former head of bits of HSE policy, I want to say that this clause undermines the main concept behind the Health and Safety at Work etc. Act to make it clearly enforceable that employers should not with impunity be so recklessly negligent as to imperil life, limb or health if they can help it—that is part of the Act, too. Clause 61, as has been said, does not minimise the potential criminality of this behaviour, but it prevents anyone using a proven breach with any degree of liability as grounds for compensation. Injured employees must fall back, as my noble friends have said, on the common law duty of care, which is very hard to prove.

Recalling the debates over the Health and Safety at Work etc. Act when it was passed—and it received all-party support—Section 47 was put into the Act for this exact reason: so that the workforce could have something effective and tangible if they were severely injured, not just the knowledge of a successful prosecution in which they were a passive witness.

Section 47 was widely consulted on. I would like to ask the Minister the response of the Governments of Scotland, Wales and Northern Ireland to this provision, Clause 61. Can he confirm that they were consulted?

Finally, there is a potential increase in National Health Service costs from this clause because costs are clawed back from the employer if there is compensation and they will not be if there is none. Does the Minister agree? I fear that the Government will be going backwards in their understanding of workplace risks, let alone in recognition of justice for injured work people if the provision goes forward in this form.

[Lord Young of Norwood Green]

My Lords, we support the question on clause stand part from my noble friend Lady Turner, and I am not going to repeat all the abundance of evidence as to why we should adopt this view, because it has been amply demonstrated by the majority of speakers, apart from the noble Baroness, Lady Brinton, who made an appeal for balance. We would support that, but the balance that the Government propose is certainly, in our view, in the wrong direction.

In excess of 20 specific sets of regulations have been introduced under powers given to the Secretary of State by the Health and Safety at Work etc. Act 1974. They include regulations relating to work equipment, personal protective equipment, manual handling, hazardous substances, construction, offshore installation, railways, young workers, and working at height and in confined spaces. Collectively, these regulations are the basis of workers’ rights to a safe working environment in the UK, as they contain the vast majority of duties that the law imposes on employers to create and maintain safe workplaces.

As a number of my noble friends pointed out, there is no evidence to show that there is overcompliance. There are perceptions, maybe, but is that really how we should frame legislation, based on perception with a lack of evidence? If only there was a culture of overcompliance, we would have less to complain about. There would be no situation with the number of deaths and serious injuries that still take place throughout British industry. Far too often we see examples of employers failing to comply or adopting the wrong attitude towards health and safety. Again, as a number of my noble friends have pointed out, this legislation would give them entirely the wrong signal.

Some of the regulations contain duties that impose a strict liability on employers. I am not sure where my noble friend Lord Browne got the figure of 200; I have a slightly lower figure than that. But it is something that the Government could cope with if they wanted to carry out the recommendations of the Löfstedt report. Others contain duties that are less strict in relation to which an employer shall not be held to be in breach of their duty if it is shown that they could not have foreseen the accident, if the accident could not practically have been avoided or if it is not reasonably practical to avoid the incident. Currently, if an employer breaches any health and safety regulation, there are two possible consequences; the employer can be prosecuted as having committed a criminal offence by the HSE, or the injured worker will be entitled to compensation. The declared intention of Clause 61 is to remove strict liability from the body of health and safety legislation. The genesis of removing that strict liability is found in the Löfstedt report. If only the Government had stuck to that, we might not be in that situation. But Löfstedt did not positively recommend that as the only course of action; it was only one possible option among others, and his firm recommendation was that a further, thorough investigation be undertaken—something that this Government have signally avoided. They have not followed the recommendation to carry out further research and have instead leapt straight into introducing legislation.

With Clause 61 introduced as an amendment, there has been no public consultation. As currently drafted, the clause does not simply remove strict liability; it goes much further than that. There is a fundamental disconnection between the declared intention of Clause 61 and the legislative impact that it will have. On the two consequences that currently exist when an employer breaches a health and safety regulation, the impact of Clause 61 is that one of those consequences shall be removed from the law altogether. Given the very small number of criminal prosecutions brought under the health and safety regulations each year, the consequence being removed by Clause 61 is the most important one in ensuring not only that justice is served but that workplace safety is maintained. The effect of the clause is to withdraw the right of injured workers when claiming compensation to rely on a breach of the statutory duty imposed on the employer in regulations made under the Health and Safety at Work etc. Act 1974. The statutory duty on the employer to comply with the regulations will remain; the clause does not remove a single regulation from the statute book. The employer will remain liable to prosecution for the breach of any regulation in the criminal courts. It is only injured employees who the regulations are designed to protect for whom it will no longer be relevant. As we have heard, according to statistics published by the Health and Safety Executive, only 0.5% of reported workplace injuries result in a criminal prosecution. The prospect of prosecution provides no incentive to employers to comply with their duties. Our concern is that this measure will give the opposite signal.

Employers are obliged by law to maintain insurance to meet claims for damages arising from workplace injuries. Claims against employers are dealt with and paid by insurers. This clause will make no change to this system but, as has been pointed out by a number of my noble friends, the costs are likely to fall on the Government and, in effect, the taxpayer. What on earth is the value of that?

If the clause passes into law, no legislative burden will be removed from any employer. With no saving to the public purse, the Government will remain liable for civil claims deriving from European directives in respect of injuries to their own workers and will also still have to pay benefits to injured workers which they may no longer recover from employers’ insurance.

A number of detailed and valuable points have been made by my noble friends Lady Donaghy, Lord Browne, Lady Turner and Lord McKenzie. A number of questions were posed to the Minister which I look forward to him answering: for example, what is the evidence base for the measure? How many claims will be affected? What is the cost of shifting the burden on to the NHS and government? Will it reduce the cost burden on employers? That is unlikely in our view. As I say, I look forward to hearing the Minister’s response.

Enterprise and Regulatory Reform Bill

Debate between Baroness Whitaker and Lord Young of Norwood Green

Wednesday 5th December 2012 Grand Committee

[Lord Young of Norwood Green]

I shall speak also to Amendment 20FA. These amendments are designed to probe the Government’s intentions behind granting the Lord Chancellor additional powers over the composition of certain employment appeal tribunals. Subsections 6 and 7 grant the Lord Chancellor discretion in certain cases to determine as he sees fit the number of employer representatives and worker representatives that may serve on that tribunal. The intention of Amendments 20D and 20FA is to ensure that the Lord Chancellor does not exercise that power in a way that may unfairly disadvantage the worker.

Amendment 20D clarifies that the Lord Chancellor may not use this power to set the number of lay members at zero and therefore prohibit, in certain cases, the judge deciding to sit with lay members, even if he thinks it appropriate. Is it the Government’s intention that the Lord Chancellor should be able to use this power to prevent judges calling lay members to sit on the Employment Appeal Tribunal? Amendment 20F would ensure that the Lord Chancellor cannot exercise this power so that one group is represented by greater numbers than the other. It is about balance on any tribunal. It surely cannot be fair to have a situation where there are lay members sitting on the EAT with experience from the point of view of the employer, but none with experience from the other side.

It may be that the Minister feels that we are being a bit paranoid at this point but, as somebody once said, just because you are paranoid, it does not mean that they are not trying to get you. I would welcome clarification on that and on all the issues I have raised. If the Government will not accept this principle, will the Minister tell the Committee in what circumstances they believe it would be appropriate and fair for a judge to sit on the EAT with an employer-representative lay member and without a worker representative or, indeed, vice versa? I beg to move.

[Baroness Whitaker]

My Lords, I apologise for not being able to take part in the proceedings on this Bill earlier, but as a former employment tribunal member, I would like to reiterate arguments made earlier that the whole point of employment tribunals and the EAT is experience of the workplace from relevant and, in fact, instrumental perspectives of justice. That refers to points of law as well as to facts because the law is interpreted in a context, as the noble Baroness, Lady Brinton, said earlier. It is not a just process—that is, interpreting and applying the law. As well as not being objective, it is not informed by both these perspectives as of right. The risk with the Bill as it stands is that you could have a representative of the employer or the employee but not necessarily both. That is going to make a travesty of the tribunal concept.