Health and Safety: Common Sense Common Safety

Viscount Younger of Leckie Excerpts

Thursday 25th November 2010 Lords Chamber

[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.