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A proposal to remove the principle of strict liability, relating to many health and safety regulations, was the subject of heated debate in the House of Lords on 14 November.
The proposal, included in a clause that forms part of the wide-ranging Enterprise and Regulatory Reform Bill, seeks to remove the right of individuals to make civil claims for breach of most statutory health and safety duties, unless it can be proved the employer has been negligent.
The Government wants to address what it sees as a potential unfairness in the current law, which means that employers can be liable to pay compensation in cases where they have done all that was reasonable to protect their employees.
The proposal emanates from a recommendation by Professor Löfstedt that the Government should review regulations that impose strict liability by June 2013, and either qualify these provisions with ‘reasonably practicable’ where strict liability is not absolutely necessary, or amend them to prevent civil liability from being attached to a breach of those provisions.
During the Lords debate, several peers denounced the plans, describing them as “ugly” and calling for their removal from the Bill.
Hitting out at the lack of consultation on the removal of strict liability, Lord Stevenson of Balmacara said: “The requirement to prove foreseeability is a very high bar of proof for an individual injured, or killed through no fault of their own.
“There has been no public consultation on this proposal, and what is being proposed goes further than the recommendations made in this area by Professor Löfstedt in his recent report.”
Lord MacKenzie of Culkein agreed with this assessment, adding that the change will “assist the unscrupulous to ignore health and safety law by reducing the chances of successful civil action. That is going to lead to more workplace injury in the future.”
Lord McKenzie of Luton, who was Safety minister under the last Government, highlighted how an employee injured at work by unsafe equipment is likely to know nothing of the history of the machine and would be in no position after the accident to investigate whether the employer was at fault.
Stressing that the reform would shift the balance of power dramatically against employees, he suggested that litigation will become more costly, protracted and time-consuming for everyone, and that employers would not benefit from any reductions in insurance premiums.
The adoption of the clause on strict liability, insisted Lord McKenzie, “will send signals to employers that they can be more lax in their health and safety arrangements. Coming at a time of restricted funding for the HSE, the curtailment of proactive inspections and the lack of resources for major preventive campaigns – all this risks undermining our health and safety system.”
During the debate, few peers spoke out in favour of the change; however, Lord Bates welcomed another clause in the Bill that aims to extend the Primary Authority scheme to more businesses in need of one-stop advice on regulatory issues. Said the peer: “It is often said that if you want help from local authorities they send somebody on a bicycle in a couple of weeks’ time, but if it is a health and safety or trading standards matter they come galloping along in a coach.
“We need to look carefully at local authorities and ask what they are doing to help businesses. They seem to have many more people employed in the policing functions of their organisations than in those areas that assist business, and that reflects badly on their priorities.”
Lord Marland, under-secretary of state at the Department for Business, Innovation and Skills, insisted that the Bill does not hamper fairness in the workplace but creates it, for both employers and employees. The Bill was subsequently committed for scrutiny by Grand Committee.
The Government’s plans on strict liability are the subject of an in-depth feature by David Branson, in the upcoming December issue of SHP.