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Health and Safety Law: the Löfstedt Review

In May 2011, Professor Ragnar Löfstedt published his review of UK health and safety law, Reclaiming health and safety for all: an independent review of health and safety legislation. The Löfstedt Review is a key driver in the next phase of the coalition government’s ongoing deliberations on health and safety law. A previous review was undertaken by Lord Young, who published his report, Common Sense, Common Safety, in October 2010. This lamented the poor image of health and safety, overly-complex regulations, and the burdensome and disproportionate application of health and safety law by consultants, driven by the ‘compensation culture’: his report was based largely on perceptions.

In contrast, Professor Löfstedt has taken a more measured, evidence-based approach to the issues and appears to conclude that there is significantly less reason for concern than Lord Young’s report may have suggested. Indeed, in making his proposals for reform, he directly denies some of the key assumptions of the Young Report. Specifically, the Löfstedt Review has cast significant doubt over the assertion that the overall regulatory burden on self-employed people and SMEs is unreasonable. He has stated that, although there is room for improvement, there is no case for radically altering health and safety legislation.

Health and safety regulation

The Löfstedt Review concludes that many of the problems arise from the application of health and safety regulation, not the legislation itself. Professor Löfstedt also points out that employers’ liability claims have fallen by two-thirds since 2001 with the inference that, if fear of civil claims drives excessive application of health and safety law, then this fear is based on perception – not reality.

Modest proposals in the Löfstedt Review

The government published its response to the Löftstedt review in November 2011, in a document that did its best to smooth over tensions between the two reports. In practice, the government has largely accepted that Löftstedt’s rather modest proposals for reform are appropriate, without accepting that they are, in fact, modest. While the proposals may lend themselves to attention-grabbing headlines, closer examination suggests they do not constitute a major shift in the framework of health and safety law.

In the report, Professor Löfstedt outlined seven key proposals:

  • Exemption from health and safety law for self-employed people in low-risk occupations that pose no risk to others
    The DWP has accepted this recommendation, with the qualification that exemption will apply only to the self-employed in low-risk occupations, whose activities pose no risk to themselves or others.The impact of the exemption is expected to be minimal: enforcement against individuals who might fall into this category is already limited. In practice, exemption may improve the perception that health and safety law is disproportionately applied, but it is a concern that the government should seek to change the law based on perceptions that do not reflect reality. Furthermore, the exemption itself is problematic: what exactly is ‘low-risk’? Will an individual be subject to health and safety regulations when performing some activities and not others? There is significant potential for further unfairness and confusion.
  • Review of all 53 of the Approved Codes of Practice (ACoP) by June 2012
    The DWP has accepted this recommendation.The review aims to ensure that individual ACoPs are necessary, that they express what the law requires clearly, are up to date and accessible to users. Guidance on terms such as ‘reasonably practicable’ should be provided for specific scenarios to minimise excessive compliance actions.The DWP has requested that the HSE conform to Löfstedt’s timetable for review, accepting that this is a major programme of work. The DWP has not made any comment about how the HSE will be able to complete the exercise in the context of already stretched budgets.
  • Government to work more closely with the EU to ensure that the impact of health and safety law is more fully analysed in the future, as part of the EU’s 2013 review of health and safety law. Löfstedt recommends mandatory impact assessments for regulations where the perceived cost to society exceeds €100 million, and proposes that impact assessments should not be carried out by those who are responsible for drafting regulations
    The DWP has broadly accepted this, noting, however, that existing arrangements for impact assessments might have been expected to achieve Löfstedt’s aims of risk- and evidence-based regulation. The DWP points to their past efforts to influence the European Commission’s Impact Assessment Board to become stronger and more independent. Both Löfstedt and the DWP appear to acknowledge the limitations of influencing regulation at a European level.
  • The HSE should undertake a programme of sector-specific consolidations, abolishing and consolidating 200 regulations with the aim of reducing them by 35% by April 2015
    The DWP commits to reduce the number of health and safety regulations by 50%, to continuously review the opportunity for consolidation and to ensure that EU law is implemented in the most minimal way possible.While this may appear to be a dramatic cut in regulations, it is important to note that those identified for this purpose are highly specialist and the cuts will not affect the 13 core regulations applying to the majority of employers. Also, the cut is to the number of statutes, not the overall number of duties that apply. Since the proposals state that consolidation should not remove substantive protections, the actual reduction in regulatory burdens as a result of this exercise will be minimal.
  • Change legislation to give the HSE authority to direct all local authority health and safety inspection and enforcement action, ensuring targeting and consistency
    The DWP “supports the overall objectives of the recommendation” but ultimately rejects it, in favour of development of a shared national code that is binding and enforceable, as it is concerned about a centralised approach that is removed from local businesses and communities.
  • Restating the intention of the pre-action standard disclosure list (for civil, personal injury claims) to clarify that absence of documents should not mean claims are not defended
    The DWP has accepted this recommendation.
  • All strict liability offences to be reviewed by June 2013 and qualified with ‘reasonably practicable’ or amended to exclude civil liability in the event of a breach
    The DWP accepts that it is unfair that strict liability makes employers liable to pay damages to an injured employee, despite having taken all reasonable steps to protect them from harm. It is unclear whether such a change would have a large impact in practice, since many personal injury claims against employers will be framed in the law of both breach of regulations and negligence. The circumstances where a claim based on breach of regulations would fail as a claim in negligence may be very limited.

HSE regulations and repeals

The Löfstedt Review’s other proposals included, among others:

  • Repeal of the Notification of Conventional Tower Cranes Regulations; Celluloid and Cinematograph Film Act; and Construction (Head Protection) Regulations;
  • Amendment, clarification and review of the Health and Safety (First-Aid) Regulations; CDM Regulations; RIDDOR Regulations; Electricity at Work Regulations; and Work at Heights Regulations; HSE to help businesses with the concept of ‘reasonable praticability’;
  • HSE to consider consolidating core regulations;
  • HSE to be primary authority for multisite, national organisations;
  • Prosecutions to be commenced within three years of an incident;
  • Establishment of a House of Lords select committee to consider how to engage society in a discussion about risk;
  • Government to ask Chief Scientific Adviser to convene an expert group to consider how to engage society in discussion about risk and a committee to disseminate findings across parliament, policymakers, the public and academics.

Negative assumptions

In conclusion, the Löfstedt Review does much to dispel some of the negative assumptions about health and safety regulation in the UK. It is clear from his report that improvements are possible but no fundamental changes are required.

As the subject of health and safety legislation has become a political bandwagon, encouraged by ill-informed reporting of incidents where the law has been misapplied, there is concern about the government’s willingness to play to the gallery, encouraging the view that the current system of regulation is overly complex and disproportionate. This view often encourages defensive misapplications of the law.

The question must arise, therefore, about whether the government is part of the solution or part of a self-perpetuating problem. More good might have been done had the government acknowledged the underlying message of the Löfstedt Report.

For more information about the Löfstedt Review or on health and safety law contact Ben Derrington in the Regulatory Corporate Crime department: bderrington@lyonsdavidson.co.uk or 0117 904 6319

Posted on Apr 13th, 2012 by Lyons Davidson

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