My Lords, I was at the point in my argument where I was making the case for the basis for this change in the law being a perception of a set of circumstances which the Health and Safety Executive argues does not exist, or at least, if it does, there is no evidence that it exists. In order to reinforce this point, I refer the Minister to the compensation recovery unit statistics, which he will find in the performance statistics on the DWP’s website. They show that, in relation to health and safety law, there is no compensation culture in the sense of an acceleration of claims by employees against employers. There has been an increase in claims for which benefits have been recovered, but they appear more to be motor accident claims, and there has been an increase in clinical negligence claims but claims under the employer category have gone down. Settlements recorded by the Compensation Recovery Unit have gone down from 215,000 in 2006-07 to 89,000 in 2012-12. So there are fewer than half of the claims that there were only five or six years ago. The number of cases registered by the Compensation Recovery Unit have gone from about 198,000 to 87,000 in the same period. If anything the trend is significantly down—not marginally—in relation to claims of this nature. There is no statistical evidence or other evidence that there is such a thing as a compensation culture out there in relation to health and safety at work.
Indeed, the contrary is the case, as my noble friend Lady Donaghy has made clear and as was alluded to by my noble friends. In fact, the civil process polices the health and safety at work regime because, for the very small number of cases that are prosecuted in the criminal courts as regards those accidents that happen in the workplace, the regime is policed and enforced by the ability of individuals to be able to claim against their employers. That is another shift that I suggest will happen. If this strict liability is removed, there will be significantly greater pressure on the Health and Safety Executive to prosecute cases in the criminal courts because people will demand some answer to what happened to their relatives who were either killed or injured at work. We see that in almost every other area of public life: a demand for an investigation, a trial or some form of proof. That will increase if we lose the ability for the civil courts to be able to police the health and safety legislative structure.
When Professor Löfstedt looked at this, he drew our attention to something that is very important: that we may not have precisely got the balance between reasonable foreseeability and strict liability absolutely right. Under the 1974 Act, we now have a regime in which, when regulations are made, they are strict liability regulations, unless the contrary is stated. I accept that maybe that has allowed some regulations
to slip under the wire and we may have failed the test of the noble Baroness, Lady Brinton, to get the balance at precisely the right place. This is why the good professor made his recommendation that we review those regulations of strict liability. They are either in the tens, or at the very most 200; the Health and Safety Executive’s impact assessment which I referred to earlier suggests that there about 200 of them. If it is as many as 200, is that really too much of a burden for accepting the implication of the first part of his recommendation? That is, that between publication of the professor’s report and June 2013, the Government look at each regulation and see whether it was appropriate for a duty to carry the burden of strict liability, or whether we could appropriately apply reasonable forseeability to it, and therefore provide a form of defence for an employer.
The Government decided without any review, further discussion or consultation, that faced with the two options —one being to look at each of these either 20 or 200 regulations, depending on who you believe, and to decide how many of them needed still to be strict liability—they would take strict liability away from them all. They did this because it was perceived to be easier, but also because this process was all in the health and safety challenge, aptly named staff chamber process. This is apparently a process for deregulation set up by the Government in order to minimise the level of consultation on deregulation and to accelerate beyond the point of the early review to the point of decision and change. That is the answer to the questions of my noble friend Lord McKenzie of Luton about why the Government did not, after apparently accepting the professor’s recommendation, implement it. They were fixed on this staff chamber process.
I would like to be able to share with members of this Committee what really happened, but I cannot find out. Despite the fact that one can go on to the Cabinet Office’s website and click on “Health and Safety Challenge Starts Here”, “The Process, and “How it Works”, when one later clicks on something that says “Health and Safety”, it says that this consultation is now over and Professor Löfstedt has reported. It goes on to cover some other stuff that is ongoing, none of which is of any relevance to any of this. It does not say, in these circumstances of open government, what the Government actually did during the period between apparently accepting Professor Löfstedt’s review recommendation and deciding that they were not going to have what anybody else would call a review, but were just going to jump on to one of two possible alternative solutions to this problem that he suggested existed. That solution was the draconian measure of in the future taking away from a significant number of people the right to any compensation when injured at work through absolutely no fault of their own, and probably because they had been asked to do something inherently dangerous by an employer who is already insured for it and is already paying the insurance.
Candidly, I do not understand why after 100 years of progress, we are now in this situation following months of no proper discussion or consultation. I suggest that apart from a very small number, most people in this country have no idea of the significant
effects that this change could have on their working circumstances. It may be inappropriate to do this, but I asked somebody from the House of Lords Library to research this for me. He immediately said that this will have an effect on our working circumstances, and that he had been unaware of this. He is absolutely right. Almost everybody who is in a working environment could be affected by this. If this law goes through and you are asked to work a dangerous and complicated piece of machinery, which probably your employer does not understand properly, and it goes wrong because of some latent defect that nobody could reasonably have foreseen, you will have been put in an inherently dangerous position and, if you are left with a life-changing disability, you could be in the position of not being able to get any compensation. I do not want to be responsible for that sort of change in the law and I venture to suggest that not one Member of the House wants to be responsible for that sort of change in the law, so why is this being pushed through in this way?
If there is a legitimate issue—a question of restriking the balance—why do we not work together in an open and transparent fashion to move the balance to the appropriate point, releasing employers from any quantifiable burden so that they can get to this great new world in which they will create lots more jobs because they do not have strict liability in relation to some of their employees? Why do we not work together to achieve that, because we all agree with those objectives?
I could make many other arguments, but I am conscious that I have spoken for too long. This Health and Safety Executive impact assessment is a veritable mine of arguments against this legislation. I recommend it to the Minister. I am certain that we will return to this issue on Report and I suggest to him that there is a way forward.
I have a series of questions, some of which may already have been asked, but the Minister needs to be able to answer them. One of them is: what is the evidence base for this change? It is not apparent in the impact assessment, so what is the actual evidence base? The question is not what the perception is; it is what the evidence is. What assessment have the Government made about the number of claims that will be affected? Is it a comparatively small number or is it a substantial number, as we are told by the Association of Personal Injury Lawyers? Are the Government in exactly the same position as the Health and Safety Executive in saying, “We haven’t a clue and we do not know; in preparing the impact assessment, unless we put a disproportionate amount of work into it, we have no way of working out how many claims are affected by this change in the law”?
What is the Government’s assessment of the cost of shifting the burden to the NHS and local authorities, as well as the loss of money for cover by the Compensation Recovery Unit? What is the Government’s assessment of the effect that this will have on employers’ liability compulsory insurance, if any at all? My view is that it will have none, so to that extent it will not reduce the burden or the regulation on employers. If the Government believe that it will reduce premiums that are already not covering the claims, what is the argument for that?
Are there employers out there who believe that their insurance premiums will go down if they live in this brave new world? If they do, they are kidding themselves.
All these questions need to be answered but, much more important, the Government need to go back to Professor Löfstedt’s report and say, “There are two alternatives here. We could take a scalpel to this and we could identify and change the regulations that are inappropriate for strict liability, thereby creating the assurance and certainty that employers need to be able to move into this world of deregulation that apparently they told Professor Löfstedt they wanted. Alternatively, we could just take it away from everybody”. What is the argument for taking it away from everybody when it means taking it away from sets of circumstances in which that is an entirely inappropriate thing to do and where it will create massive injustice, as my noble friends have made clear? What is the argument for that? I say with respect to the noble Lord, who I know will try to answer these questions, that if he cannot answer them he is not entitled to change the law in this way.
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