My Lords, in moving Amendment 1, I shall speak also to Amendment 2. The purpose of these amendments is to ensure that any changes to health and safety legislation affecting the self-employed do not stray more widely than those
recommended by Professor Löfstedt and that the prescribed description approach currently in the Bill is removed. They further seek to ensure that the process for constructing and implementing regulations is fit for purpose and require them to meet certain criteria, something which has eluded government attempts so far.
In his report, Reclaiming Health and Safety for All, Professor Löfstedt recommended that those self-employed whose activities posed no potential risk of harm to others should be exempt from the general duties of the Health and Safety at Work etc. Act 1974. This is notwithstanding that it is generally acknowledged, including by the professor himself, that the current duties do not overburden the self-employed and that any requirements in such situations would be minimal in terms of time, cost and enforcement effort by the HSE and local authorities. But the Government accepted this recommendation, asserting that Europe adopted a more proportionate response on such matters and that it would remove unnecessary concerns over the perception of heavy-handed enforcement. Given the minimal benefits which would flow from implementing the recommendation, and the risk of confusion which any legislative change could engender, we and many others have argued for making no change—for the status quo—and this remains our preferred position. Nevertheless, we have to accept for the time being at least that this is not the position adopted by noble Lords in Committee.
The task as we see it now is to constrain the primary legislation and require a robust process for secondary legislation to see that the professor’s recommendation can be accommodated without the prospect of wider exemptions from health and safety legislation being adopted by default, mistake or otherwise—in other words, as the CBI recommends, going back to square one.
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There have been two attempts to implement a Löfstedt approach so far, each falling short. The HSE’s original formulation was consulted on in August 2012 and, despite receiving support from only a minority of consultees, was included in the draft Deregulation Bill. It proposed exempting from general duties those who did not put others at risk at any point in the normal course of their work but specifically did not exempt those in high-risk industries. The Joint Committee reported on the large amount of evidence presented to it on this proposal and the scope for confusion that it would cause. The Government determined on a different approach, which was to bring forward a prescribed list of high-risk work activities where that group of the self-employed would not be exempt from health and safety legislation but all other self-employed people would be. This was said to make matters clear, robust and easy to understand, although that has proved to be far from the case. This approach basically turned Löfstedt on its head and although it was argued by some in Committee that he was accepting this, that is not so. I have circulated his letter on this matter to those who spoke in that debate. He said:
“The proposed Government list of dangerous jobs that would not be exempt from health and safety law is the opposite to what I proposed and it is something that I do not support. The danger
with the proposed list is that self-employed individuals who are not on it will be exempt even if the jobs that these individuals do are in actual fact rather dangerous and unsafe”.
Moreover, this changed approach also runs counter to the original advice of the HSE sector experts that relying wholly on a prescriptive approach to determine exemptions would lead to unacceptable consequences. On the HSE’s own admission, the draft regulations which list the proposed inclusions would leave many excluded although involved in activities with injury rates statistically higher than the average. The suggestion that this does matter because they would carry on as at present is frankly not tenable.
The HSE consulted on the second draft regulations between 7 July and 31 August 2014 but the responses have only just been placed in the public domain, a couple of days before Report. Why so long and when will we get the Government’s response to that consultation? While consultees agree that there was some clarity in the use of definitions of work activities, most considered that overall it would be difficult for the self-employed to determine whether they were exempt. The range of criticisms and adverse comments is extensive and significant. Will the Minister tell us whether the HSE considers it safe to proceed with these proposals?
Comments on the general principles of the proposed exemption reiterated many of the earlier and familiar criticisms: the proposals are based on a misconception that health and safety regulation is unnecessary and burdensome; the proposals go well beyond Professor Löfstedt’s recommendations; a list of prescribed activities will never be fully inclusive; the self-employed will need assistance to understand the regulations and are unlikely to research complex, cross-referenced regulations to determine whether they are exempt; there is a risk that the self-employed will assume that they are exempt from the legislation; and confusion will abound when the self-employed might have duties for some activities but not others.
There were many very specific comments which illustrate the lack of precision in the descriptions of some of the 32 prescribed categories. These include, for instance, whether the inclusion for working with asbestos was sufficiently broad, clarity on the definition of diving, the complexity and detail around work activity involving chemicals, the application of the carriage of dangerous goods provisions, and whether the provision of health and social care included activities such as tattooing and skin piercing.
Overall the TUC says that the definitions are too general, too complex and simply do not reflect the nature of the work that self-employed people do. Responses from trade associations point out that the definitions are complex and will fail to achieve the simplification required. There will be additional burdens on business to communicate the requirements and educate their contractors. The CBI says:
“In short, the new exemption will be costly to implement without bringing the intended benefits. The potential business burden associated with introducing this new exemption—originally intended to reduce a burden—will be substantial”.
It calls for the Government to return to square one and do a thorough review into what the legislation should look like to achieve the Löfstedt aims. The EEF holds to its view that a prescribed list of activities
can never be fully inclusive or the definitions sufficiently precise. It says that the legislation is not fit for purpose. Local authorities have pointed out that self-employed persons in low-risk activities are already not inspected because of the national local authority code. A raft of professional organisations concerned with occupational health and safety, including IOSH, RoSPA, IIRSM, Safety Groups UK, the Royal Society for Public Health and others, have all criticised the approach, saying that it will cause dangerous confusion, increasing the risk of work-related injury, illness and death.
Faced with the scale of the concerns reflected in those consultation responses, it would be foolhardy for the Government to proceed as planned. Will the Minister tell us now what the Government propose to do? If they want time to consider and need a pause, then, frankly, our amendments give them the opportunity to do so. They keep alive the Löfstedt concept but set down the rigorous tests required for it to be implemented. Having said that, we have no doubt that the right thing to do is to give it up. But if we do not amend the Bill today, we are giving the Government the green light to implement what has been exposed as deeply flawed and deeply dangerous. They must not be allowed to play fast and loose with our health and safety system. I beg to move.