Clause 1 moment

Some call it a Christmas tree, some a dog’s breakfast but either way the Deregulation Bill is a convoluted mish-mash of clauses covering over ten departments, including a plan to remove the self-employed from health and safety legislation unless they’re on a ‘prescribed list’. Who is on that list isn’t yet clear – from accountants working on building sites to hairdressers dealing with cuts of their own.

The UK has a first class system of health and safety that is respected around the world. At its centre is the Health and Safety at Work Act, which celebrated its 40th anniversary this year. The system was built around the principle that those who create risks are best placed to manage them. Without being complacent, this approach has saved countless people from being killed, injured or made ill by work activities.

So we should be alarmed at what is now proposed in clause 1 of the Bill – a move that springs from a recommendation by Professor Ragnar Lofstedt, in his review for the government, to exempt the self- employed who pose no potential risk of harm to others. Such an exemption was proposed notwithstanding that it was generally accepted (including by the professor himself) that the duty on the self-employed in these circumstances was limited, and that little would be saved in terms of cost and time and indeed precautions if such an exemption were introduced.

The Lofstedt Review also advanced the argument that the exemption would address perceptions of a heavy handed approach for the self-employed, even though scant evidence was provided to support this. The manufacturers’ association, the EEF has refuted the view that the self-employed saw health and safety as a burden.

Attempts to translate the recommendation into practical legislation proved problematic and Ministers concluded from the pre-legislative scrutiny that it would leave too much confusion as to who was exempt and who was not. Given the minimal requirements on those self-employed who pose no risk to others, it would have been logical to hold onto the status quo. But rather than settle for this, the government has embarked on pressing a clause which introduces a much wider exemption – covering two million self-employed.

There was no prior consultation on this policy change and the outcome of the consultation which has subsequently taken place – on draft regulations – will not be available to us until after the Lords committee stage has ended. This is unacceptable, not least as the changed approach is fraught with danger. Experts at the Health and Safety Executive (HSE) have previously stated that relying wholly on a prescriptive approach to determine exemptions would lead to unacceptable consequences. It will not be easy for the self-employed to know if they are exempt or not, especially if they get their information by informal means. And there is a risk, highlighted by the TUC and others, that those who run workplaces which include the self-employed will conclude – wrongly – that they have no duty of care to them.

While many will continue with sensible precautions because it makes good business sense, some will not – potentially giving a spur to bogus self-employment. Moving away from the requirement for all to have to undertake a risk assessment – however limited – runs counter to the preventative approach to health and safety. And when things go wrong, the costs fall on the state in terms of benefits and the NHS.

Particularly worrying is the HSE’s own analysis of the draft regulations, it shows that many occupations will be exempt which have injury rates statistically higher than the average for all, including motor mechanics, van drivers, HGV drivers, metal working and maintenance fitters. Why on earth should these activities be outside the regime?

Clause 1 of the Bill is an unforgivable unravelling of our health and safety system and must be strongly resisted.

Lord Bill McKenzie of Luton is a member of Labour’s frontbench team in the House of Lords

Published 21st October 2014