My Lords, before addressing the main issue I should indicate that I have no objection to the amendments that the Commons introduced to reinstate the amendments that were agreed in Grand Committee, if the decision of the House is to refuse this amendment.
The main issue relates to Clause 61, which amends the existing law by removing a right of action that has existed for almost 150 years, permitting employees and their dependants to claim damages for injuries caused by an employer’s breach of statutory duties, which is designed to protect employees from serious injury or death. It is a separate common-law right of action and is distinct from the common-law action based upon negligence.
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On Report, noble Lords expressed concerns in support of deleting the part of the clause that removed this right of action. In short, these reasons or concerns were, first, that the current law is settled and well understood; secondly, that the law achieves a fair balance between the respect of the rights of employers and employees; thirdly, that no rights should be removed from citizens unless there are sound and justifiable reasons for doing so; and, finally, the consequences of this change for employees and their families would result in injustice and were unacceptable. These concerns were clear from the Official Report.
I seek your support for the amendment in my name for three principal reasons. The first is that, despite the obvious concerns of noble Lords, the Minister in the other place failed to address those concerns and the reasons for Amendment 38. Moreover, the Commons has given no reasons for rejecting Amendment 38. I appreciate that the procedure in the Commons may have contributed to that difficulty, but this House is entitled to a consideration of its reasons and to know what the House of Commons’s reasons are for disagreeing with it.
The second reason is that it is the undisputed effect of Clause 61 that it will deprive some people of any remedy for injury caused to them or their deceased relatives. On 14 January, at col. GC176, the Minister acknowledged that to be the case. It is impossible for anyone to specify the nature of the injuries in cases that will no longer qualify for compensation or to quantify the number of such cases. However, it is not fanciful to imagine that some of the cases where a remedy is denied will involve fatalities or accidents resulting in catastrophic injuries. I say that it is not fanciful because at col. 236 of the debate in the other place on 16 April, Mr Andy McDonald cited three cases from his own experience. The first involved a fatality and the other two resulted in catastrophic injuries. All three cases succeeded because injury was caused by a breach of regulations, and that was established. Equally, though, none of those cases would have succeeded at common law. These cases illustrate that some people who have suffered catastrophic injuries, or the families of employees who have been killed, will be forced to depend upon state benefits rather than receive compensation reflecting past and future loss of wages and any special needs resulting from their injuries. The financial burden will thus be shared between
widowers, children, the permanently disabled and the state and transferred from insurance companies, which will be the principal beneficiaries of this clause. This is manifestly unjust when the cause of the injury will have been the employer’s breach of statutory regulations, which are designed to protect employees from injury or death.
The third reason in support of this amendment is that we should not deprive citizens of existing rights unless there are overwhelming reasons for doing so. The removal of established rights should not be done lightly. The Government’s justification for Clause 61 was explained by the Minister in the following words, which he has repeated tonight. He said that this proposal,
“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”.—[Official Report, 14/1/13; col. GC176.]
There are two fundamental errors in that explanation. The first is that it is not correct to categorise a breach of a statutory duty as “doing nothing wrong”. The second is that the explanation fails to recognise that many, if not the majority, of health and safety regulations specifically provide the employer with such an opportunity. They contain qualifying words such as,
“so far as is reasonably practicable”.
Where words to that effect appear in a regulation, the employer has available to him a defence of showing that he took all reasonably practicable steps, or all reasonable precautions, to comply with the regulations. If he succeeds in his defence, he will avoid liability for damages.
Clause 61 is indiscriminate in its language. It extends to those regulations that comply with the principle that the Government seek to establish. Why should breach of those regulations not be actionable? The explanation given for Clause 61 does not justify the wholesale removal of a right of action for a breach of statutory duty that causes injury.
The Minister repeated tonight that there was a perception of a compensation culture exposing employers to unjustified claims. As the noble Lord, Lord Browne of Ladyton, observed on 6 March at column 1510, the evidence establishes the contrary. There is no such culture. Government statistics show that claims for workplace accidents are on the decline. The perception is misguided. The solution is to dispel such a perception by information and education about the reality of the situation, not to give effect to it by removing people’s rights. A perception is no basis for depriving people of their legal rights, even less so a perception based upon a false understanding. We should not be party to such injustice.
The case for this radical provision has not been made out. Without such justification, we should not sanction the removal of long-established rights of action by injured employees or the families of deceased employees. For these reasons, I beg to move.