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The Earl of Erroll: My Lords, I fear that I beg to disagree with the amendment and hope that it does not go through. Clause 1, in dealing with "desirable activity" and so on, will allow people to decide when, sometimes, the Health and Safety Executive or the rules have gone completely mad. Theoretically, every accident should be avoidableapart from acts of Godbut at what cost? Sometimes, we will find that things are not happening as a result; the infrastructure will then break down because no one can afford to do anything.
A simple example is: how many people does it take to change a light bulb? Let us imagine that it is midwinter, there is an old person who does not want to sit in the dark, and a small step-ladder is required to get up to the overhead light. The local authority sends round some people to change the light bulb. How many people do your Lordships think are needed? The
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answer is three, or possibly four: one person to climb up the ladder and change the bulb, another to hold the ladder steady, a third to isolate the electricity supply at the mains switch at the critical moment when the bulb is being changedsince the wiring may be faulty, it cannot be assumed to be all rightand, because the older person may be distressed at having so many people running around the flat by this point, a fourth person to counsel them on what is going on. Your Lordships may think that I jest, but that is in actual local authority guidance.
We should think about whether we are bringing the world to a halt with excessive health and safety requirements. Not every accident is avoidable. Some things that one does will be all right 99.99 per cent of the time. To try and impose extreme costs to guard against that 0.01 per cent of the time when someone may have a mild injury in the workplace is, to me, excessive. So the test in Clause 1 is right. To completely block out when the Health and Safety Executive may be being stupid and over-the-top would be counter-productive.
Baroness Ashton of Upholland: My Lords, as we are having some changing the light-bulb analogies, I am tempted to begin with one that I have heard: how many Peers does it take to change a light-bulb? The answer is: "Change?"
To the noble Earl, Lord Erroll, I would say that issues of interpretation surround the Health and Safety Executive. At our November conferenceat a point when I am not sure whether the noble Lord, Lord Hunt of Wirral, was still with uswe discussed how the executive is sometimes used as an excuse, for other bodies' reasons. So the ministerial group wishes the Health and Safety Executive to have a chance to explain what it does and does not do. Some of the concerns often raised in that context are nothing to do with what they themselves are doing, but, either by accident or design, relate to the interpretation put on what they have said or attributed to them inappropriately. Like the noble Earl, I can think of examples where I know that to be the case, although I am not suggesting that that applies to those he raised. There is a genuine problem that we should address.
The Earl of Erroll: My Lords, I have just been reading the health and safety advice on working at heights, to help my wife with safety on her farm. As far as I can work out from that advice, you have to have someone holding the stepladder. I had not read the advice on isolation from the mains in the electrical safety section, but I believe that it is mandated in some places.
Baroness Ashton of Upholland: My Lords, I am grateful for the further explanation, but we need to be cautious of some issues. I am not suggesting that the noble Earl is being anything other than cautious about where the Health and Safety Executive is put in the blame seat for things that are actually nothing to do with it. Health and safety is a critical issue.
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I shall focus on what I think the noble Lord, Lord Hunt, is seeking: a reassurance about precisely what the law will do. I shall read these points into the record because they are important, and the noble Lord can reflect upon them for the further stage of this Bill. As the noble Lord knows, we are reflecting in Clause 1 the current law and the approach taken by the courts in cases such as Tomlinson, which has already been cited today in your Lordships' House, and was cited a great deal in Committee. The court did not rule out the possibility that the factor now reflected in Clause 1 could be relevant to claims by an employee against his or her employer, but it also makes clear that another factor that courts can also consider is the extent to which the claimant was freely and voluntarily undertaking the activity in question. One example that the courts gave was that of an employee who might have no genuine or informed choice if their work required them to take particular risks. The court in Tomlinson clearly accepted that the factor now in Clause 1 could be outweighed in the court's balancing assessment by the claimant's lack of genuine and informed choice to run the risk.
It is important that the courts can consider the balance between these factors and the other factors involved in reaching an appropriate decision in each individual case. Clause 1 does not affect the courts' ability to do this or to reach the view that the factor in Clause 1 might be outweighed by other relevant factors. Concern has been expressed that the clause might lead to people working in one areafor example, the emergency servicesbeing treated differently from those in other areas because one type of activity might be considered desirable while another would not. I know the noble Lord has raised that concern. That is not the case. The factor in Clause 1 is not given any greater weight than any other relevant factor, and the courts will consider all relevant points in reaching a decision. In addition, Clause 1 will not be applicable in the vast majority of cases of a claim for breach of statutory duty between an employee and his or her employer, because the statutory duties in question are strict duties and liability does not depend on whether the employer took reasonable care.
As the noble Lord, Lord Hunt of Wirral, said, the majority of health and safety regulations in recent years derive from standards agreed at European level, and the directives setting out those standards make it quite clear that the duties they place on employees are strict duties, not duties to take reasonable care. To read those duties as involving a standard of care so that Clause 1 would apply would be inconsistent with EU law, and it is well settled that the courts wherever possible should interpret legislation consistently with European law. Our own approach is to put in the words "reasonably practical". The phrase is not within the European directive, and is not the same as a duty to take reasonable care to ensure that it is achieved. That is a fundamental difference. We also went to the Health and Safety Executive legal team to make sure that we had got this absolutely right.
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The clause does not change the law in a way that would lead to the courts treating one type of worker any differently from another, or that would disadvantage employees generally. As I have said already, it is important to recognise what Clause 1 does and does not do. It provides that courts may, not must, take into account whether particular steps that, it is argued, should have been taken to avoid the injury loss would have had a particularly adverse impact on the desirable activity. It does not require the court to take that factor into account, nor to give it any weight; still less to make it a paramount consideration. I hope that I have put on the record absolutely clearly what this clause would not do and the effect it would not have on employers and employees. The clause reflects the approach of the courts in assessing cases across a wide range of situations involving claims for negligence and breach of statutory duty, and I hope, when the noble Lord has time to reflect on this, he will feel it addresses his concerns completely. If, however, there is anything outstanding still to be said for the record, I am willing to consider that too.
Lord Hunt of Wirral: My Lords, I am grateful to the Minister for that detailed response, but as I understand it the TUC still has concerns, although the position has been explained to its members, as the Minister explained it to us this afternoon. I hope that she agrees to talk to Hugh Robertson and his colleagues at the TUC to try to explore a little further the depth of their anxieties, before the Bill goes to the other place. That would be much appreciated by the TUC.
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