Lord Pannick
Main Page: Lord Pannick (Crossbench - Life peer)
The Earl of Erroll
My Lords, I rise to put the opposite opinion. I live in the world of small and medium-sized businesses. The SMEs and the micros employ half the workforce out there. As one of them, I feel it is totally unfair that, even if you took all the precautions you could, if something happened that you could not foresee and could not know about, you are held to be guilty. This is wrong in natural justice. The fact is that you can then be put out of business. I hate to disagree with the noble Lord, Lord McKenzie, and the noble Baroness, Lady Turner, but they are not all well funded.
We talk about big businesses, big organisations and corporations, government, and things like that. They may be well funded, but a lot of small businesses out there are struggling and on a knife-edge. It only takes one of those things with the Health and Safety Executive cracking down and you have had it. I invite noble Lords to look at some of the cases—I will send you pointers to the websites that will detail them—where the Health and Safety Executive, for instance, gloats over how much it has managed to get out of someone at a tribunal. I know that is not the exact case here, but the perception is out there, I am afraid, and it does restrict people. My wife, who is a small employer, is very careful about taking on extra people because of these sorts of regulations.
Regulations also start to conflict because of their complexity. You may well find that you cannot comply with them all. If you are then held to be in breach of one of them, which you did not and could not know about because you could not know that the employer was breaching it without your knowledge and against your instructions, you are still going to be held liable, because it is an absolute offence. I think that is wrong. We should remember that it is not just big businesses out there. We will be bankrupting some small businesses and putting other people out of work—and when we put them out of work, there will be other unintended consequences and damage to other families.
Lord Pannick
My Lords, I added my name to Amendment 81 in the name of the noble Baroness, Lady Turner, which would leave out Clause 62. I did so because liability under Section 47 of the Health and Safety at Work Act operates fairly, effectively and efficiently and its amendment will cause substantial practical problems.
Your Lordships have heard comprehensive arguments on these subjects, so I will be brief. Section 47 works well because the claimant needs to prove a breach of health and safety legislation. The claimant needs to prove causation—that there has been a breach which has caused serious injury or death. In those circumstances, the law has long recognised, without controversy, that the victim should be compensated without also needing to prove facts and matters relevant to negligence, which are the responsibility of the employer. That is the answer to the noble Earl, Lord Erroll; the matters are within the knowledge of the employer. They are rarely matters within the knowledge of the employee.
To require employees to prove negligence—that is, a failure by the employer to take reasonable care—will inevitably result in very substantial delay in obtaining compensation for those who have been injured or killed by reason of the employer’s failure to comply with health and safety regulations. It will require the considerable expense and uncertainty of litigation for both employer and employee—these are expensive matters for both of them—at a time when legal aid is being reduced.
Clause 62 is unnecessary, unfair and—judging by the deafening silence from the Government Benches this afternoon—unsupported by any marked enthusiasm whatever. I hope your Lordships will support its removal.