The present Government’s somewhat ambiguous commitment to “cutting red tape” and ending the “compensation culture” has become somewhat clearer following the publication of the Lofstedt Report into health and safety regulation.
Following Lord Young’s review of the “compensation culture” (Common Sense, Common Safety) the Government commissioned Professor Ragnar Lofstedt of King’s College London to review health and safety regulations with a view to finding ways to “simplify the rules”. The report was released on 28 November and immediately responded to by the Minister for Employment who set out some of the Government’s intentions in light of the findings.
The report itself (valiantly titled “Reclaiming health & safety for all”) runs to some 110 pages and sets out a number of recommendations. Some of the more eye-catching are:
- The exemption of self employed persons and those “whose activities pose no harm to others” from statutory health and safety regulation altogether.
- A wholesale review by the HSE of each of its Approved Codes of Practice.
- The consolidation of “sector specific” regulations e.g. explosives, mining into one set of rules.
- The review of all regulatory provisions which impose strict liability with a view to either inserting a “reasonably practicable” defence where strict liability is not necessary or, where strict liability is to remain, preventing civil liability attaching for a breach.
A number of other recommendations are made and merit careful consideration. Amongst other things Professor Lofstedt suggests amendments to the CDM Regulations 2007 (to ensure a “clearer expression of duties”) and the RIDDO Regulations 1995 (to provide clarity on reporting requirements). He also suggests clarification of the Work at Height Regulations 2005 with a view to reducing or at least clarifying their scope.
The Minister’s response indicates that the HSE is to be instructed immediately to review the removal of regulation for the self employed and low risk businesses. The review of ACPs is to be completed by June 2012. The consolidation of “sector specific” regulations is to be completed by 2015.
The Minister’s response regarding the suggested qualification of strict liability and its potential removal with regard to civil claims is woolly in the extreme. Although the Minister entirely endorses the recommendation, his response simply advises that the Government will “look at ways to redress the balance, in particular preventing civil liability from attaching to a breach of such provisions.”
Despite the review the legal position remains the same and will do so until the Secretary of State sets about revising the Regulations. Whilst it is clear that the goal posts are certainly shifting, the courts will take no account of that until such time as the shift has the force of law.