My Lords, I added my name in support of my noble friend’s proposition that Clause 61 should not stand part of the Bill. Notwithstanding the Government’s amendments, which have removed what the Delegated Powers and Regulatory Reform Committee described as a power so far-reaching in its effects as to be inappropriate, what remains is a significant and unacceptable change in the law. It overturns what has been in place since 1898 as a result of the landmark decision Groves v Lord Wimborne. It will radically change the way that injured workers can claim compensation from their employers.
The clause was slipped into the Bill on Report in another place without prior consultation. The Government have claimed that it was the recommendation of Professor Ragnar Löfstedt in his independent review of health and safety legislation. But as my noble friend Lady Turner said, his report stated:
“I recommend that regulatory provisions that impose strict liability should be reviewed by June 2013 and either qualified with ‘reasonably practicable’ where strict liability is not absolutely necessary or amended to prevent civil liability”.
I have spoken with the professor, a distinguished academic, directly about this and he told me, as he would tell others, that his report speaks for itself on this matter. He recommended a review; he did not recommend what is included in Clause 61.
We have received a number of representations from authoritative bodies: the Personal Injuries Bar Association, the Association of Personal Injury Lawyers, the Bar Council, the Law Society, the Scottish TUC, the TUC, Thompsons Solicitors, UNISON and the NUT, to name but a few. They all have the same consistent message about the impact of this clause and the deep concerns it engenders.
The current position is clear. Regulations issued under the Health and Safety at Work etc. Act 1974 contain the vast majority of duties that the law imposes on employers to create and maintain safe workplaces. Some of these—a minority—impose a strict liability on employers, others a less strict liability. In the latter case, an employer will not be held to be in breach of a statutory duty if an accident could not have been foreseen or it was not reasonably practical to avoid it. Those situations fall outside strict liability. However, if a breach of duty is established, an employee is entitled to claim compensation.
Where strict liability applies, the employer is liable for injury caused without proof of fault or failure. As the Personal Injuries Bar Association points out, strict liability applies, for example, to the Provision and Use of Work Equipment Regulations. It is justified because the employee has no control over the selection, buying or maintaining of equipment, so the employer who provides it takes the risk if the equipment injures somebody and is defective. If it is not the employer in those circumstances, who will bear that risk, and where is the fairness if it is the employee? There is a separate issue of the employer being prosecuted by the HSE for committing a criminal offence although such prosecutions are few and far between.
However, Clause 61 does not deal just with strict liability. If enacted, it would remove all the opportunities for an injured employee to seek compensation from an
employer for breach of statutory duty. Employers will no longer be liable in the civil courts for the offence of a breach of health and safety at work regulations, so, as my noble friend Lady Turner said, the only remedy available to the injured employee would be to prove that the employer was negligent. We are advised that this situation arises because Clause 61 would reverse the presumption in Section 47 of the Health and Safety at Work Act, with the consequence that no health and safety regulation would impose civil liability unless express provision was made for them to do so. The regulations carry no such provisions and, unless the Minister can tell us otherwise, there are no plans to introduce any. Will the Minister confirm that there are no such plans?
Will the Minister also confirm that Clause 61 therefore goes considerably further than the recommendation in the Löfstedt report, the most far-reaching consequence of which, and one which we could not support, would be the removal of strict liability from those regulations to which it applies?
Indeed, the impact assessment shows the Government declined to follow the recommendations of Löfstedt on the grounds that identifying strict liability duties is complex and would require amending a large number of regulations. However, the Personal Injuries Bar Association and others disagree with this and make clear that instances of strict liability are limited and it is imposed only where it is necessary to do so. Therefore, the Government’s justification for this draconian change is spurious. Can the Minister tell us how many regulations are considered subject to strict liability? Will he explain why the Government have chosen to overturn this long-established position and to do so without prior consultation? Why is it considered that to transfer the risk in no-fault situations from employers— more accurately, the providers of employer liability insurance—to employees, their families and/or the state is justified?
Clause 61 will also mean that the route to justice and compensation where the employer is culpable is far less certain. Because an injured worker’s course of action for breach of statutory duty is removed, the available remedy, as my noble friend has said, is to seek to prove negligence. However, the reality is that negligence and breach of statutory duty are not equivalent avenues to justice and compensation.
Indeed, the Government’s own impact assessment identifies that negligence is a more nebulous concept and more difficult to prove, with the burden of proof switching to the employee. The PIBA briefing on this matter explains this in some detail:
“In order to establish liability for negligence at common law, an injured person must establish: … The existence of a duty of care … The scope of the duty … Breach of the duty … That the breach caused injury … That the resulting injury was reasonably foreseeable”.
These are nebulous concepts indeed, to which even the Government refer in their evidence base.
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The briefing goes on to say:
“The principal reason why an action for negligence will be more difficult to prove, as the government recognises, is the difficulty of proving breach of the duty of care … Common law duties are necessarily framed in broad terms (to provide a safe
place of work, a safe system of work, safe plant and machinery) but in order to establish a breach of a common law duty it is necessary for the employee to adduce detailed evidence as to the reason why a particular workplace, system of work or item of machinery was not reasonably safe … The employee is at a significant disadvantage in attempting to adduce the necessary detailed evidence: the workplace, system, machine or equipment is not selected, maintained or controlled by them; they do not and cannot know whether a particular machine is appropriate for the task for which it is used or how often it should be serviced or replaced; they do not control the system or manner in which work tasks are carried out nor do they have the expertise to ascertain whether an alternative or better system of manner of working is appropriate”.
It continues:
“In order to prove breach of such duties it will often be necessary for an employee to obtain expensive expert engineering evidence and … then establishing breach of duty may be impossible if the employee’s expert cannot gain access to the workplace or equipment in question. For instance if, whilst the employee was in hospital, the equipment was repaired or replaced by the employer for business reasons, thereby destroying the evidence on which any such claim could be brought … It is this evidential unfairness that led to the imposition of civil liability on employers for breach of statutory duties whose very purpose was to promote and protect the safety of their employees … By their nature statutory duties are more detailed and specific than common law duties and set out detailed requirements on an employer for the purpose of protecting the safety of their employees. More importantly in an action for breach of statutory duty proof of compliance with that duty falls on the party charged with compliance, namely the employer”.
Is it not the reality that fewer negligence claims will be pursued, while those that are will be more costly and time-consuming for all concerned? The bottom line is that fewer injured employees will receive compensation. They, their families and indeed the state will pick up the consequences. Insurance companies will be the gainers. Justice will be denied. Let us bear in mind that the compensation is not some prize or bonus for an employee; it is compensation for injury suffered. Who among the injured would not prefer to have their lives back to what they were before the injury, rather than monetary compensation?
If this clause is allowed to stand, it will have profound and unacceptable consequences for thousands of employees injured at work but there are broader ramifications for our health and safety system. It will be a signal to bad employers that they have a better chance of getting away with poor health and safety provision, reinforcing the recent restrictions on the Health and Safety Executive’s budget and the curtailment of proactive inspections. I support my noble friend Lady Turner’s amendment.