Controversial measures to exempt some self employed from health and safety legislation have taken a step closer to becoming law after the House of Lords voted down an amendment seeking to remove the clause from the bill implementing it.
Proposals contained in the Deregulation Bill, which have been attacked by trade unions and professional bodies, were debated in the House of Lords on 21 October 2014, with peers voting 253 to 175 in favour of keeping clause 1, which amends section 3 of the Health and Safety at Work Act 1974.
Labour peer Lord McKenzie of Luton, who had ministerial responsibility for health and safety between 2007 and 2010 and is the party’s spokesperson on health and safety in the House of Lords, tabled an amendment to the bill that would have removed the clause on the grounds it would “unravel parts of our health and safety system” and lead to confusion among the self employed.
The bill is currently at the committee stage in the House of Lords, having passed through the Commons in the first half of the year. Once peers have finished debating the remaining clauses of the bill, it will progress to the report stage – the final opportunity for the upper house to make amends.
Proposals to remove some self employed people from health and safety law were first put forward by Professor Ragnar Lofstedt in his 2011 report on the legislative framework. He suggested removing the self employed from health and safety law “if they posed no risk of harm to others”.
However, when the bill, still in draft form, was subject to prelegislative scrutiny by a joint committee, it was decided this risk-based approach would prove too confusing. It was amended so that all self employed people were exempt unless they carry out a prescribed undertaking.
Lord Wallace of Saltaire, a Liberal Democrat speaking as the government representative for the clause, explained that an undertaking will be prescribed if there are high numbers of self-employed, a high incidence of fatalities and injury, a significant risk to members of the public, the potential for mass fatalities and if there are EU obligations.
This arrangement was attacked by Lord McKenzie: “The effect of this, as the TUC points out, is that any self-employed person not covered by the list will have no duties under the Health and Safety at Work etc Act and cannot be issued with an enforcement notice, regardless of any risk they pose to themselves or to others.
“This changed approach is fraught with danger. HSE experts have previously advised that relying wholly on a prescriptive approach to determine exemptions would lead to unacceptable consequences.
“It will not be easy in all circumstances for the self-employed to know whether or not they are exempt, particularly for those who tend to get their information by informal means. The references in the draft regulations to related regulations are extensive, the descriptions of offending activities are not always clear, and there is a risk that those who control workplaces that include the self-employed will conclude, wrongly, that they have no duty of care to them.”
Lord Wallace said HSE draft regulations on the prescribed undertakings have “been designed to strike a careful balance between the need to free self-employed persons from the perception that health and safety law places unnecessary burdens on them while still providing important protections in the law to those who require them.”
The Liberal Democrat Lord Droxford said Professor Lofstedt had probably disappointed many in the coalition government when he suggested the health and safety system didn’t need great reform, adding: “One feels that he had to say something to come up with a political proposal. He advocated that those self-employed whose work activities pose no threat to others should be excluded, which would help reduce the perception that health and safety is inappropriately applied.
The reality is that there is not much of a burden on the self-employed. That was proved in the government’s consultation. If you do not believe the Health and Safety Executive, even the mighty Engineering Employers’ Federation, as the noble Lord, Lord McKenzie, told us, supports its view.”
Lord Droxford went on to vote against Lord McKenzie amendment.
An HSE consultation on a draft prescribed list and supporting regulations closed on 31 August. The bill is expected to become law in April 2015 – the last common commencement date before the next election.
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