Enterprise and Regulatory Reform Bill

Debate between Viscount Younger of Leckie and Baroness Whitaker

Monday 11th March 2013 Lords Chamber

[Viscount Younger of Leckie]

I thank my noble friend for that question. The best thing would be for me to get back to him in due course, as I have done on many occasions, with a focused letter on the specific question of retrospectivity.

[Baroness Whitaker]

My Lords, I am grateful for the authoritative support of the noble Lord, Lord Jenkin of Roding. In response to my noble friend Lord Howarth of Newport, I remind your Lordships’ House of the double damage done by undervaluing individual creativity in design: the disincentive and loss to a significant sector of our economy on the one hand, and the simple, yet common, injustice of yet again failing to recognise that the,

“lifeblood of a master spirit”,

is not just the written word but other unique manifestations of the human spirit.

I agree with the noble Baroness, Lady O’Neill of Bengarve, about the importance of effective implementation and enforcement. I also welcome the Minister’s arrangements for consultation. That will be helpful on the dilemmas that we have been exploring in my amendments, but I shall want to check the exact application of the law as he quotes it before Third Reading. In the mean time, I beg leave to withdraw my amendment.

Enterprise and Regulatory Reform Bill

Debate between Viscount Younger of Leckie and Baroness Whitaker

Monday 28th January 2013 Grand Committee

[Viscount Younger of Leckie]

I can only reiterate to my noble friend Lord Clement-Jones that we are committed to continuing to consult. The best way to respond is to say that we will continue to keep him informed on progress. Progress is not intended to be slow; we intend to proceed with this as fast as we possibly can and to present a timetable wherever we can.

[Baroness Whitaker]

I am most grateful to the noble Lord, Lord Jenkin of Roding, and all others who spoke—even my noble friend Lord Howarth of Newport who, uncharacteristically, devalues the individual nature of creative inventions. If that individual, unique creation is not properly recognised and compensated, it will decreasingly be made, certainly in the UK. Apart from the simple injustice, which is the other point, there is an economic chilling factor.

I am grateful to the Minister—incidentally, it was the Eames chair that I mentioned; in fact, all the Eames chairs would qualify—but I hope for discussion with him before Report, because I think that we can arrive at some solution. I beg leave to withdraw the amendment.

Enterprise and Regulatory Reform Bill

Debate between Viscount Younger of Leckie and Baroness Whitaker

Monday 14th January 2013 Grand Committee

[Viscount Younger of Leckie]

My Lords, I have listened very carefully to the debate this afternoon. I understand the concerns of noble Lords about the importance of protecting people at work from risks to their safety and long-term health so eloquently put forward by the noble Baroness, Lady Turner, and the noble Lord, Lord McKenzie, and, indeed, by the noble Lord, Lord Browne, in an impassioned and extensive speech. If noble Lords will bear with me, there is much to say in response to the many views and concerns expressed.

First, I reassure noble Lords that the purpose of this clause is not to weaken or reduce the existing protections for employees. It is about helping to increase the confidence of responsible employers to continue to do the right things to protect their employees. I stress emphatically that the law, which sets out the standards that employers must meet and the duties which employers must perform, including in relation to self-employed contractors on construction sites, is not affected by this proposal and is not changing. The Health and Safety Executive will continue to investigate serious incidents and complaints about poor practice and will take enforcement action, including, where appropriate, prosecutions, against those employers who fail to meet their responsibilities in line with the executive’s established policies and procedures, so let me explain why it is appropriate to take action.

We all recognise that the world has changed since 1974, when the Health and Safety at Work etc. Act was introduced to replace large numbers of detailed regulations with a proportionate risk-based approach to health and safety. Indeed, the late Lord Robens, on whose recommendations the 1974 Act was based, noted,

“that the sheer mass of this law, far from advancing the cause of health and safety, may well have reached a point where it becomes counterproductive”.

Clearly, every death and serious injury is a tragedy that should not happen. The noble Baroness, Lady Donaghy, referred to this earlier in Committee and has spoken about it again today. However, considerable progress has been made in reducing the incidence of injury and ill health. I listened carefully to the heartbreaking stories of those who have been killed or injured, as outlined in the speech of the noble Baroness, Lady Donaghy. Each one represents a tragic human story for individuals and for their relations.

Progress has been illustrated by the successful delivery of the Olympic Games, where there were no work-related fatalities on the whole of the London 2012 construction programme. This is the first time that any host nation has achieved that. The noble Baroness, Lady Donaghy, specifically raised the issue of construction sites. The substantive law that sets out the duties and responsibilities on employers, and to whom these are owed, including to self-employed subcontractors on construction sites, will not change. Therefore, the ability for such workers to bring a claim for negligence will also remain the same as now. Anyone who directly employs or engages construction workers or controls or manages construction work is a contractor for the purposes of the construction regulations. The duties on contractors apply whether the workers are employees or self-employed or agency workers. There is no distinction.

We are committed to the continued improvement of health and safety standards at work and to building on the progress made to date. The effectiveness of the health and safety regulatory framework has more recently been thoroughly examined by my noble friend Lord Young of Graffham in his report Common Sense, Common Safety.

[Baroness Whitaker]

Will the noble Lord confirm that the noble Lord, Lord Young, did not touch on the matter of Clause 61 in his report?

[Viscount Younger of Leckie]

I would need to refer back to the report to give the noble Baroness a full answer. Indeed I shall do so.

The effectiveness of the health and safety regulatory framework has also been highlighted by Professor Löfstedt, as has been mentioned today by several noble Lords, in his independent review, Reclaiming Health and Safety for All. Both my noble friend Lord Young of Graffham, whose report received much support across the House when it was debated, and Professor Löfstedt found that there is no case for fundamental change of the health and safety framework itself and that the existing regulatory requirements are broadly right. In fact, the biggest problem today is the way in which the regulatory requirements are interpreted and applied.

No one can be complacent. If we are to build on the steady progress made, we need to take action to tackle the current myths about health and safety, myths which the Health and Safety Executive see as such a problem that it has set up the Myth Busters Challenge Panel to provide a mechanism so that anyone who receives advice in the name of health and safety which they believe is disproportionate or inaccurate can challenge that advice.

Businesses consistently report that these myths lead to confusion about what the law actually requires and a fear of being sued, which, in turn, drives employers to overimplement the law in an effort to protect themselves and indeed discourages them from expanding their business. This in turn reinforces the perception that the application of health and safety law is unduly burdensome. I shall have more to add to that later.

This situation results in responsible employers taking an overly cautious approach, which has a detrimental effect on their approach to controlling risks properly in the workplace. For example, spending considerable resources on disproportionate paperwork and record-keeping, far in excess of what is necessary to comply with the law, diverts employers from taking a sensible approach to identifying the risks that actually affect their business and their employees, and taking sensible day-to-day precautions to protect their employees from those risks.

In the interests of both employers and employees, the aim is to improve understanding of what the law actually requires and to allay fears about possible litigation to help build employers’ confidence to take on new activities and further develop their businesses and to include recruiting new employees, which is so vital today.

To address these issues, the Government are implementing a package of measures, based on the recommendations of my noble friend Lord Young of Graffham and Professor Löfstedt, to reform both the civil litigation system and to restore a common sense approach to health and safety. This measure forms part of this package and I would reassure noble Lords that its introduction into the Bill at a later stage is purely due to the timing of the publication of Professor Löfstedt’s report and the Government’s desire to address the concerns he raised at the earliest opportunity.

We have already put in place a programme of work to improve understanding by simplifying the supporting guidance that explains what the law requires and to consolidate and clarify the body of health and safety regulation in a number of key industrial sectors. This programme builds on the work carried out as part of the better regulation initiative led by the previous Administration.

The clause does not change the duties placed on employers, but amends Section 47 of the Health and Safety at Work etc. Act so that in future, unless the legislation provides for an exception, it will be possible to bring a claim for compensation in respect of a breach of health and safety legislation only where it can be proved that the employer has been negligent.

Claims for breaches of the general duties of the Health and Safety at Work etc. Act can already be brought only for negligence. The change in this Bill simply extends this position to regulations made under the Act to create a consistent approach to civil litigation for all health and safety legislation. This means that if an employer fails in their duty of care towards their employee they can of course be successfully sued. However, where an accident has taken place and the employer could not have reasonably done anything about it, they should not be liable.

In the knowledge that they will not be liable if an accident happens which is totally outside their control, this change will support responsible employers, who take care to protect their employees, by encouraging them to take sensible steps to manage workplace risks. I am grateful for the speech made by my noble friend Lady Brinton and the example that she gave to support the helplessness that some businesses can experience where there is no defence for them. This will not assist irresponsible employers who fail to comply with the law as they will have no defence to an accusation that they did not take all reasonable steps to protect their employees.

This amendment to the Health and Safety at Work etc. Act has been adopted in preference to amending each strict liability duty, as Professor Löfstedt suggested, because an approach targeting each strict duty would be much more complex, and therefore complicated for businesses and their employees to understand.

The noble Baroness, Lady Turner of Camden, brought up the concern that the law would go backwards, which I think was her expression, and the employer would hold all the cards. I would like to assure her and all noble Lords that the provision will affect only a small number of duties that are unqualified. In any claim for negligence, the existing regulatory requirements on employers will remain relevant, as the courts will look to the statutory duties, approved codes of practice and established guidance to inform them about what risks a reasonable employer should be aware of and the steps they would be expected to take to manage those risks. I stress again that this change will only assist responsible employers who have done what is required of them and can demonstrate this.

This amendment reflects an adjustment to help rebalance the civil litigation system and, as part of the wider reforms of the system, is a proportionate response to the impact that strict duties currently have in the civil litigation system identified by Professor Löfstedt. It also has the benefit of creating a consistent approach to civil litigation for all health and safety legislation.

Currently, most claims are brought for both breach of statutory duty and negligence and, in practice, it is anticipated that the vast majority of claims will still be capable of being brought for negligence. For the small number of cases where this is not possible, as now, individuals will be able to claim for financial and other support through the state benefit system.

This measure is not about reducing the number of claims. It is about establishing the principle that an employer who has done nothing wrong should have the opportunity to defend themselves on the basis of having taken all reasonable precautions. Providing employers with this important reassurance will help them to manage health and safety risks in a sensible and proportionate way.

Broadband: Street Cabinets

Debate between Viscount Younger of Leckie and Baroness Whitaker

Monday 22nd October 2012 Lords Chamber

[Viscount Younger of Leckie]

I very much agree with my noble friend. It gives me the opportunity to explain the benefits of superfast broadband. There are many statistics that are extremely positive. For example, a 10% increase in broadband household coverage boosts the economy from between 0.1% and 1.4% of GDP. It also allows firms to develop and adopt more productive and efficient ways of working. It is also a great boost to home-workers who, while being based at home, will spend and circulate money more locally.

[Baroness Whitaker]

My Lords, what steps have been taken to ensure that the design of these cabinets will be the best possible? Is there scope for running a competition?

[Viscount Younger of Leckie]

I do not believe there is scope for running a competition because so many of these street cabinets are being rolled out. However, I again reassure the House that the cabinets will be and must be sensitively sited. Although they are on the large side—I have already mentioned the camouflaging—in some cases there will be overhead cabling, some of which, instead of going into the street cabinets, can be placed inside church steeples, which is a good use for churches.