My Lords, this clause has emerged out of a series of consultations during the past four years. As the noble Lord, Lord McKenzie, remarked in his very detailed and constructive speech, the first consultation took place in 2012 on the principle that there should be a list of undertakings prescribed in regulations that are excluded from health and safety law. That did not find large favour in the consultation. The most recent consultation has not found very large favour for the Government’s current proposals. We are finding it difficult to satisfy all those concerned. I note that the noble Lord did not quote the Federation of Small Businesses’ response to the current consultation, which is a good deal more favourable that those that he did quote. On the question of the current consultation, it took a certain amount of time; we had a lot of responses to the consultation and we had to put them all together. It has now been published and the Government will, of course, consult and consider what their response should be. We very much hope that we will have time to consult further and return to this issue before we get to Third Reading.
The Health and Safety Executive has, of course, been actively engaged in this entire process over the last four years; I stress that it is very much part of the process of policy-making. We all share the underlying purpose, which is as it should be, as the noble Lord, Lord McKenzie, suggested in his speech, a lessening of health and safety burdens on those self-employed who are not at risk and are highly unlikely to put others at risk from their activities. That is what Professor Löfstedt suggested in his earlier report; it is part of the German system. To the noble Lord, Lord Lea, I say in passing that there are many parts of the German system of employment, training and employment protection that we would very much like to take on board. I am happy that this Government have indeed taken us a good deal further down the road towards apprenticeship training than their predecessor. There are other aspects—including some aspects of the Meister system, now that I have begun to understand that—which are clearly restrictions on trade and which we do not wish to follow. However, one cannot ever take an entire model from one country and put it into another.
There are other areas over which I have spent some time arguing with German policymakers over the years; the idea that, just because a system has worked since the 14th century, one should maintain it at all costs, is not always an idea that one wishes to promote. I was one of those involved in the British side of the argument over the Reinheitsgebot, which the noble Lord might remember. It was to do with the purity of beer and was passed in about 1351. However, we will leave the German dimension aside and return to the current issue. We apologise that the consultation document has only just appeared. The Government will respond as soon as it is ready and we hope that we will have more to say on this before we reach Third Reading.
The issue at stake is which side one takes in reducing the burden, and whether to make a list of those, as this proposal suggests, whose activities are at greater risk of putting others in harm’s way from the way they are conducted—those involved in construction or a range of other activities that involve interaction with others. Professor Löfstedt prefers a system in which there is only a prescribed list of those activities that are exempted from the current health and safety regulations. The argument that we have been having through two series of consultation has been about how one defines “low risk” and “high risk”. This is an area, after all, on which one can spend a great deal of time, having a large number of consultations without meeting consensus. I regret that we have not yet reached an entire consensus.
The noble Lord’s first proposed amendment reverses the effect of Clause 1, so that all self-employed persons continue to owe a duty under Section 3(2) of the Health and Safety at Work etc. Act unless regulations are made to exempt them from that law, whereas the Government’s proposals exempt those unless they are on another prescribed list. This approach, we argue, would increase confusion for the self-employed because there are a plethora of low-risk activities that would need to be captured to ensure that the regulations were as extensive as possible. Furthermore, each of these activities would need to be appropriately and carefully defined. This could create further uncertainty in the law and make it unwieldy for the self-employed to comply with. This is part of what the Federation of Small Business was saying in its response to the current consultation.
The noble Lord’s second amendment seeks to impose various conditions upon the making of Regulations before self-employed persons can be exempt from Section 3(2) of the Health and Safety at Work etc. Act 1974. The amendment would require an independent review to be conducted and considered by both Houses before the regulations can be brought into force. We do not consider this necessary. The Government amended Clause 1 in Committee so that regulations made under the power that it creates are subject to the affirmative resolution procedure before they come into force. This provides Parliament with an adequate opportunity to scrutinise and debate the list of prescribed activities to ensure they are fit for purpose.
The conditions which the noble Lord seeks to impose on the regulations can already be considered by both Houses as part of the affirmative resolution procedure
if, indeed, Parliament considers those factors to be relevant. Additionally, the proposed prescribing regulations contain a commitment for their review and for a report to be published after five years of making them. That report will seek to assess the extent to which the intended objectives of the proposed change have been met. Given the safeguards already in place, the Government do not consider that a further independent review of this alternative proposal would be of any benefit.
It is imperative that self-employed persons, especially those involved in conducting high-risk activities, understand when health and safety law will continue to apply to them after this legislative amendment is made. For the reasons I have already given, we do not consider the noble Lord’s amendments to be the best way of achieving that. They are unnecessary and overly burdensome. After all, the purpose of the Bill is to reduce unnecessary burdens. The clearest and simplest way to achieve this change is by having a list of prescribed high-risk undertakings together with guidance produced by the Health and Safety Executive which will make it clear and unambiguous to those who continue to owe a duty under the Health and Safety at Work etc. Act.
I repeat: the Government are currently considering the comments just received following the 2014 consultation on the draft regulations already produced. These raise a number of important issues which the Government will consider further before Third Reading. In that context, I hope the noble Lord will feel able to withdraw his amendment.