Review of UK health and safety law – under starters orders
The terms of reference for the independent review of UK health and safety legislation have been published. The review, resulting from the wider review of health and safety undertaken by Lord Young, aim to reduce the regulatory burden on business whilst maintaining the effectiveness of the current regime. For those who believe the law is instrumental in driving improvement that will sound like a contradiction in terms. However those believing in self-regulation will be cheering from the roof tops. However before they get too carried away its worth looking at the detail.
Whilst the scope of the review includes some 200 statutory instruments owned and enforced by the Health and Safety Executive (HSE) and Local Authorities, it specifically excludes 16 Acts of Parliaments including the overarching Health and Safety at Work etc Act 1974. It also excludes a range of legislation not owned by HSE such as that relating to fire safety, food hygiene, product safety and transport. The draft terms of the review, written by its chair Professor Ragnar Löfstedt, hint at a wider restriction on its scope for real impact. It will examine:
- the scope for consolidating, simplifying or abolishing regulations;
- whether the requirements of EU Directives are being unnecessarily enhanced (‘gold-plated’) on translation into UK law;
- if lessons can be learned from comparison with health and safety regimes in other countries;
- whether there is a clear link between regulation and positive health and safety outcomes;
- if there is evidence of inappropriate litigation and compensation arising from health and safety legislation; and
- whether changes to legislation are needed to clarify the legal position of employers in cases where employees act in an irresponsible manner.
The paradox of this is shown in the first two points; the scope for reducing regulation will be limited by the obligation placed on the UK by EU Directives, which are the primary source of health and safety regulations. It has long been suspected that the UK has, over the years, gold plated these into UK law – going beyond the standard required or expected by the authors in Brussels. Its difficult to see how the government could unwind this without wholesale redrafting accompanied no doubt by protest from the EU and unions. Similarly it will interesting to see what lessons the review thinks can be learned from elsewhere, especially given the UK has one of the lowest workplace fatality rates in world. This isn’t to say that good work isn’t being done elsewhere but with primary legislation out of scope and both statutory and common law systems differing around the world, a ‘lift and shift’ of ideas will not be straight forward.
The final point will be an interesting test of the concept of vicarious liability in health and safety cases. Currently the law places a high burden of responsibility on employers and this aspect of the review could get to the heart of what defines the ‘reasonably practicable’ measures employers should take to protect the safety and health of employees.
With the primary legislation out of scope it is difficult to see how this review will have a dramatic effect on the current legislative landscape. As a minimum i’d like to see it set out some ground rules for future development of the law in this area, which has been fairly ‘organic’ to date, and clarify the role of the common law in providing compensation for injury and ill-health.
More details on the review can be found here.