Deregulation Bill

Written evidence submitted by Andy Howard (DB 01)

Self contained Memorandum

1. Evidence from: Andy Howard BSc PG Dip DMS CMCIEH

I write in my capacity of a Chartered Environmental Health Practitioner of 26 years working in Local Government and regulating businesses mainly in h ealth and s afety with in the Service S ector . I have a special affinity to occupational health and safety, the simplified way in which health and safety law has been drafted and I have a wish to cont inue t o contribute towards making health and safety simple for businesses and the self-employed. I must also add these are my thoughts and not necessarily the opinions of my employer , Preston City Council .

2. Executive Summary

I make a response to the House of Commons Public Bill Committee in relation to the Deregulation Bill 2013-14 in particular Clause 1 which aims to only include self-employed persons "who conducts an undertaking of a prescribed description" in health and safety law. I wish to express my concerns regarding Clause 1 of the Deregulation Bill 2013-14 and the way Parliament are making h ealth and s afety law s more complicated. I question the need for C lause 1 and I explain my reasons below .

3. Brief Introduction

In order to explain this I need to set out the main principles of the Health and Safety at Work etc Act 1974 (HSWA) and to take us back to the catalyst of that Act - Lord Robens Report. The framework of the Act, which is 40 years old this year, is based upon the "general duties" of employers and the self-employed. It has stood the test of time and has managed to remain relevant without major amendment by Parliament which is a testament to Lord Roben and the legal team who drafted the Act.

Lord Roben wanted the main thrust of the HSW Act to be self regulatory and to seek to promote occupational health and safety as much as control it . He also wanted to ensure that the law covered all employers and the self employed who created the hazards at work and to protect employees and the general public who may be harmed if risks were not adequately controlled.

Para 176 of h is report recognised the wide variety of work the self employed do and how difficult it was to draft specific provisions as a result. He then proposed legislation based upon " objectives " rather than drafting specific provisions and this principle can now be seen in the wording of Section 3(2) of the HSWA. Also worthy of note is that there is already a provision contained in Section 3(3) which allows the Secretary of State t o prescribe regulations for the self employed – none have been introduced.

4. Factual Information

Section 3(2) states: It shall be the duty of every self-employed person to conduct his undertaking in such a way, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health and safety.

The Robenesque "objective" of the above paragraph of S ection 3 basically s ays : if you conduct your undertaking and you create risks from operating that undertaking and if those risks may harm "yourself " and "other persons" you need to take "reasonably practicable means " to prevent this. This is quite a simple requirement which s tates if you create the risk you need to be responsible for it. Logically if a self employed person poses no risk they will comply with Section 3(2) of HSWA 1974 but more of this later.

The argument I put forward is this: How can you exempt a category of worker who will not come within the remit of the law under Section 3(2) if their activities do not pose a risk to anyone?

There may also be a perception, which has developed in the media that there is " over regulation " in this sector. Some further background evidence as to whether there is "over regulation" is an issue, a check of the Health and Safety Executive Public Register of Convictions indicate that there were 40 prosecutions of sole traders from 1/1/03 to 9/6/13 . Accidents to the self employed over the last 10 years average around 2000/year. I am not aware of any complaints regarding " over regulation" of the self employed sector – the Health and Safety Executive may be able to assist you further in this matter.

The thrust of Clause 1 in the Deregulation Act is to exempt a category of worker who will not come within the remit of the law providing their activities do not pose a risk to anyone. This is already covered in Section 3(2) of the HSW Act. Again HSWA says if they don’t create a risk to other persons they don’t come within the remit of the Act. I find it difficult to understand the current governments wish to complicate the present controls on health and safety when their current agenda (red tape challenge etc) seeks to simplify current laws. The wish is to introduce an amendment to the HSWA the phrase: a self-employed person "who conducts an undertaking of a prescribed description". If parliament wants to simplify the law – the worst thing it can do is to introduce phrases like "prescribed description". How will the regulated and the regulators decide whether they are a prescribed description? What happens on the fringes of "prescribed description"? Will there be any grey areas? Why do the individuals who draft the Deregulatory Bill wish to complicate the simplicity and overall "objective led" HSWA?

It would be easier, to follow the intention/principles of Robens in keeping the HSWA as an overarching piece of legislation based upon "general duties" and "objective" led provisions. Furthermore it is already possible for regulations to be prescribed by the Secretary of State under Section 3(3) of HSWA.

However I believe further regulation is unnecessary as current laws already take into account the self-employed who don’t create any risks.

The following health and safety case law is an interesting example which highlights the difficulty in defining "prescribed description". In R v Glen (1994) Mr Glen, a self employed consultant drew up a method statement on behalf of a demolition contractor. Later when one of their supervisors left their employment, Mr Glen took over the daily supervision of the demolition site to which his method statement applied. Subsequently he failed to ensure that his method statement was followed, with the result that workmen carrying out the demolition work were exposed to hazards due to the presence of asbestos and lead. Mr Glen was convicted of an offence under section 3(2) for failing to ensure the health and safety on site and was the first successful prosecution of an independent safety consultant. Again I’m not sure of the full details but this self employed person would probably fall outside of the definition of "prescribed description" as he predominantly worked at home?

I very much like the quote in the Cabinet Office Report "When Laws Become Too Complex" March 2013 where Edward VI is quoted as saying "I wish that the superfluous and tedious statutes were brought into one sum together and made more plain and short"! The HSWA did this and to create amendments and insertions will only aid the generation of more complexity which is bad for the regulated and the regulator.

I understand that Professor Lofstedt’s report was the main driver in this proposed amendment. In his report he states that the UK "currently goes beyond EU requirements in including the self-employed in health and safety legislation. I would argue, with respect, that it doesn’t. What UK legislation currently does is to set down Lord Roben based "objective" standards within HSWA - unlike EU requirements that are based around specific provisions. In his report Professor Lofstedt admits in Chapter 4 para 17 that the "actual burden that the regulations currently placed upon these self-employed may not be particularly significant due to existing exceptions in some regulations and the limited prospect of these being enforced but it will reduce the perception that health and safety law is inappropriately applied".

5. Recommendations for Action

I ask is it the job of Parliament to change the law on the basis that it will reduce the perception that the law is inappropriately applied? With 20+ years of applying the HSWA, I know, and statistics show, that the HSW Act is not inappropriately applied. I refer back to Lord Roben and the requirement to promote occupational health and safety law as well as to use it to control. Rather than legislate for "perceptions". I would much rather Parliament promote the existing laws with the help of the Health and Safety Executive (HSE). What is needed is to give the self employed confidence by educational programmes that if they don't cause risks they don't breach HSWA. It's simple and uncomplicated - consequently Robens "sacred" general duties shouldn’t be tampered with any further but more a reassuring message given to self employed workers by the HSE about the present law.

Finally, health and safety law on this is currently "plain and short" and applies to only self-employed persons who do not control the risks arising out of their undertaking, what can be more simpler than that? Don’t make HSWA "superfluous and tedious"

Thank you for the opportunity to raise these points with you and I sincerely hope that Parliament will reconsider their position on this matter.

February 2014