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A bonfire of H&S legislation?

Comment 8th July 2010

Contrary to the assertions of the Coalition Government, the Policy Exchange and Lord Young, there has not been an explosion in H&S regulatory requirements since the 1997 Labour Government came into office.

Instead, most recent legislation has taken the opportunity to consolidate and revoke dated requirements. For example, the Workplace (Health, Safety and Welfare) Regulations 1992 revoked all or parts of no less than 36 Orders and codes of Regulations.

As many visitors to these web pages will know, the majority of requirements in UK occupational health and safety legislation, including those in the Health and Safety at Work etc Act 1974 (‘HSWA’) put a qualified responsibility on a duty holder to do what is “reasonably practicable”. The authoritative House of Lords judgment on the interpretation of this dates back to 1949, indicating a need to balance risk reduction against cost whether in terms of cost, time and effort.

Since the Health and Safety at Work etc Act 1974 reflects various duty holders’ civil liability duties of care, there is little if any scope to alter this qualification of the level of responsibility

The European Court of Justice has upheld the principle of reasonable practicability.…s/EUECJ/2007/C12705.html

So we can’t blame Europe!

Can blame successive Tory (from when Thatcher was PM) and Labour Governments for writing a new code of regulations for each Directive, rather than implementing via the HSWA.

In particular, successive Governments have thought that we needed multiple parallel requirements for management issues such as risk assessment and training, indicating that a very large number of these requirements are wholly redundant.

As regards “gold plating” the requirements of EC Directives, all that we have usually done is add in duties on the self-employed. But if we think we need a code of regulations it makes sense to reflect the duties on the self-employed under HSWA.

Personally, I’d be delighted to slim down the legislation, whilst not slimming down the standards of protection that are required.

But fully reversing or amending the process by which EC Directives have been implemented would need major investment in putting together a package of amended Approved Codes of Practice and/or guidance. This would need a lot more HSE Policy people if resources for front line enforcement are not going to be redeployed.

Also would need considerable resources from stakeholders to comment on the numerous Consultative Documents that would be needed for this streamlining process.

In practice, I’m not sure that the Coalition Government is likely to make this investment when cutting almost everywhere else.

One easy hit would be repeal the Occupiers Liability Acts (and for the Parliaments in Scotland and NI to do the same). Wholly redundant as do not give risk to a criminal duty of care, whilst reflecting common law duty of care. The legislatures in other parts of the British Isles eg. Channel Islands and Isle of Man concluded that the principles of Donoghue v Stevenson are perfectly adequate withour a need for an OLA.


Why does this matter?

However, if consolidating the legislation (with supporting materials) were to be done, it would easier for UK plc to understand the legislative package, and likely to be less situations in which H&S is used as an excuse for banning things, ie exposing the myths, and ultimately less is more, with resultant improvements in the management of risks, including the significant risks, and resultant harm that still exist in some of the “low risk” environments that the likes of Lord Young have referred to with an estimated 5 million working days per annum being lost through injuries and occupational ill health in “Public Administration” and “Business and Finance” at a cost to the nation of £ billions per year.

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