My Lords, I rise to speak to our intention that Clause 1 should not stand part of the Bill. This is grouped with the government amendment and I can say that, should the clause survive, of course we accept that the affirmative procedure should be supported. However, I give notice that, notwithstanding the grouping, we reserve the right to vote separately on the clause stand part debate.
We have a first-class health and safety system in the UK which is respected around the world. At its centre is the Health and Safety at Work etc. Act, now in its 40th year. The system is built around the principle that those who create risks are best placed to manage them, and without being complacent, it is an approach which has hitherto saved countless people from being killed, injured or made ill by work. As we have heard, Section 3 of the Health and Safety at Work Act currently places a duty on all employers and the self-employed to ensure, so far as is reasonably practical, the health and safety of others.
We should therefore be alarmed at what is now being proposed in Clause 1 of the Deregulation Bill, which seeks to exempt millions of the self-employed
from health and safety legislation. This move springs from a recommendation made by Professor Ragnar Löfstedt, which was to exempt the self-employed who,
“pose no potential risk of harm to others”.
Such an exemption was proposed notwithstanding that it is generally accepted, including by Professor Löfstedt and the Health and Safety Executive, that the duty on the self-employed in these circumstances is limited, that little would be saved in terms of cost and time, and indeed in precautions undertaken, if such an exemption was introduced.
The professor also advanced the argument, as we have heard, that the exemption would help progress perceptions of a heavy-handed approach to health and safety for the self-employed, although scant evidence was provided to support the contention that this is a real problem. Indeed, the Engineering Employers’ Federation has refuted the view that self-employed people see health and safety as a burden and that they feel threatened by inspections and prosecutions. However, if there are these misapprehensions, surely the right thing to do is to challenge them, as the HSE is doing through its myth-busting panel rather than pare back the limited requirements which actually apply.
It was also proposed that this would bring us into line with Europe. However, international experience is varied, and more than half the countries of the EU include the self-employed in their health and safety legislation. Some that do not have stricter negligence laws which can be applied to those who put others at risk. Any suggestion that the UK’s health and safety system is creating an anti-competitive regime for the self-employed would not seem to be supported by what is happening. Self-employment actually grew by nearly 400,000 in the four years to 2012.
The HSE’s formulation to meet the Löfstedt recommendations was consulted on in 2012 and, despite receiving support from only a minority of consultees, was included in the draft Deregulation Bill which went before the Joint Committee. However, this attempt has proved problematic, with the Government eventually concluding from the pre-legislative scrutiny—rightly, in our view—that it would have been too confusing as to who was exempt and who was not. Given the minimal requirements on the self-employed who pose no risk of harm to others, it would have been logical at this point to hold on to the status quo; that is to say, although Professor Löfstedt arguably had a point, seeking to address it caused more problems than it solved.
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However, rather than settle for that, the Government have embarked on pressing a clause which introduces a much wider exemption covering 2 million self-employed people. It turns the Löfstedt recommendation on its head by exempting all the self-employed except those who undertake high-risk activities. The latter, as we have heard, are to be prescribed in regulations. There was no prior consultation on this change of policy. We are told that the outcome of the consultation that has subsequently taken place on the draft regulations will not be available to us until December, when Committee at least will have concluded. Given that we are confronted with such a dramatic change to the legislation, how does the Minister justify this situation?
As we have heard, an undertaking will be prescribed and therefore outside the exemption if there are high numbers of self-employed, a high incidence of fatalities and injury, a significant risk to members of the public, the potential for mass fatalities, and if there are EU obligations. The effect of this, as the TUC points out, is that any self-employed person not covered by the list will have no duties under the Health and Safety at Work etc. Act and cannot be issued with an enforcement notice, regardless of any risk they pose to themselves or to others.
This changed approach is fraught with danger. HSE experts have previously advised that relying wholly on a prescriptive approach to determine exemptions would lead to unacceptable consequences. It will not be easy in all circumstances for the self-employed to know whether or not they are exempt, particularly for those who tend to get their information by informal means. The references in the draft regulations to related regulations are extensive, the descriptions of offending activities are not always clear, and there is a risk that those who control workplaces that include the self-employed will conclude, wrongly, that they have no duty of care to them.
As IOSH contends, the self-employed do not necessarily have a static business model: they may sometimes employ people, sometimes not; they may sometimes work in a high-risk activity, sometimes not. Perhaps the Minister can say whether those working in partnerships will inevitably be outside the exemption, and what thought has been given to the consequences of the sometimes fine line between a joint venture and a partnership. The HSE considers that many made exempt would continue with sensible health and safety precautions because it makes good business sense, but we know that not all will. If allowed, some will cut corners and be careless with the well-being of those around them. Clause 1 will give them licence to do so.
Moving away from the requirement that all have to undertake a risk assessment, however limited, and even if just to determine that they pose no risk of harm to others, runs counter to the fundamental preventive approach to health and safety. Particularly worrying is the HSE’s analysis, which shows that the clause would more than double the number of self-employed who would be exempt, in comparison to Professor Löfstedt’s approach. The HSE reminds us that some of the additional people who are exempt will fall within occupations that have injury rates statistically higher than the average for all occupations, such as motor mechanics, van drivers, HGV drivers, furniture makers and woodworkers, metalworkers, and maintenance fitters. Will the Minister specifically say why the Government consider that these types of activity should be outside health and safety law?
Of course, many more who are above the Löfstedt threshold of posing no potential risk of harm to others would find themselves exempt under these new policy proposals. Can the Minister confirm that this is the case and say why this is also considered to be acceptable? He might say that we could draw the line in another place, but where? The express policy change is to exempt all but those involved in high-risk activities. If it is acceptable to the Government for the self-employed
to create some level of risk of harm and be outside the 1974 Act, what alternative criteria would the Minister propose?
Let us contrast all this with the current situation, where the legal duty to ensure that you protect others from harm resulting from work activity falls on all self-employed people as well as employers. There is no confusion, even if the requirements for those who pose no risk of harm are minimal. This has long been accepted as a fair and decent arrangement.
After 40 years of progress, we see the Government unforgivably trying to unravel parts of our health and safety system, so opposition to this clause comes not only from us but the TUC and the EEF, from professional bodies as well as campaigning organisations such as APIL, IOSH, IIRSM, RoSPA and others—all people who know and work with the present system. Frankly, we do not think that the Minister’s heart is in it either, nor should it be. We should resist Clause 1 and strike it from the Bill.