rose to move, That the Grand Committee do report to the House that it has considered the Legislative Reform (Health and Safety Executive) Order 2008.
The noble Lord said: The draft Legislative Reform (Health and Safety Executive) Order 2008 was laid before the House by the Department for Work and Pensions on 18 February. The order amends the Health and Safety at Work etc. Act 1974 to consolidate the Health and Safety Commission and Health and Safety Executive into one statutory body.
The proposal to create a unitary body originated from the Health and Safety Commission and the current Health and Safety Executive themselves, and has the agreement of the Department for Work and Pensions. It aims to merge the two current statutory health and safety bodies into a unified governing body to improve clarity in promoting the cause of better health and safety at work. Further aims are to improve communication, accountability and strategic oversight, and to provide a better challenge function to management.
The Health and Safety Commission and the current Health and Safety Executive were established under the Health and Safety at Work etc. Act 1974, following the 1972 report of the Robens commission, which recommended that there be a single governing body. However, the then Government opted for a two-tier structure in which the Health and Safety Commission would exercise strategic control of the Health and Safety Executive and of local authorities in their performance of health and safety functions.
The Health and Safety Commission takes policy decisions on health and safety, advises Ministers and secures compliance through the Health and Safety Executive and local authorities. Its duties include proposing regulations, approving codes of practice, giving broad direction to investigations and inquiries, arranging for the provision of information services and conducting research. The Health and Safety Executive is the operating arm for the Health and Safety Commission. It prepares proposals for the commission, makes recommendations and carries out the commission's decisions.
The current governance structure is outdated. The existence of two separate bodies remains confusing in that it reduces the impact of important communications, and there is insufficient opportunity for non-executive input into the work of the Health and Safety Executive. In making improvements to tackle these issues, we will abolish the two existing bodies, the Health and Safety Commission and the executive, and will create a single new body called the Health and Safety Executive, retaining a well known and much respected name.
Article 2 of the draft order abolishes the two existing Crown non-departmental public bodies. Article 4 and Schedule 1 create the new body, which will also be a Crown NDPB. Article 5 has the effect of transferring the functions, including regulatory functions, and the powers of the abolished bodies to the new entity. All other provisions of the order are consequential, incidental or transitional.
During the consultation process, it was proposed that a formal statement specifying the precise terms in which the board of the new executive will delegate its powers on enforcement issues to officials be published in advance of the new arrangements coming into effect. That statement has now been agreed by the commission, and will be made available in public before the merger comes into effect, as part of a wider authorisation covering the delegation of functions. The order now requires such authorisations to be published. This approach is one of four amendments made in light of the ministerial consultation exercise.
We have also specifically deleted, from the executive’s power to authorise the exercise of its powers by other persons, the possibility of authorising any person to legislate by subordinate instrument. We are not proceeding with the removal of a provision relating to withholding all or parts of reports produced in relation to investigations or inquiries. This is because reports are already subject to the Freedom of Information Act, and removal of the current provision could create inconsistency.
The commission and the executive adopted the principle of better regulation many years ago, and the proposal was to underwrite that position legally. However, during consultation, it came to our attention that the introduction of the proposal may duplicate the introduction of a general requirement on all regulatory bodies to abide by such principles. This is to be brought in by a new order, the Legislative and Regulatory Reform (Regulatory Function) Order 2007, which comes into effect on 6 April 2008. Accordingly, such principles will be incorporated into the working practices of the executive.
The Legislative Reform (Health and Safety Executive) Order is laid under the Legislative and Regulatory Reform Act 2006, which allows legislative reform orders to be made either under Section 1 to remove or reduce a legislative burden or under Section 2 to promote regulatory principles of transparency, accountability, proportionality, consistency and targeting. Within certain parameters, Section 2 expressly covers transfers of regulatory functions between bodies in order to promote principles of better regulation. The Department for Work and Pensions has proposed that the draft order be made under Section 2. The draft order is the first legislative reform order to be made under that section.
The relevant tests in the 2006 Act for an order submitted under Section 2 are as follows. The first test is that there has been proper consultation on the proposal, which is Section 13. Two consultation exercises were carried out on the merger of the Health and Safety Commission and the Health and Safety Executive. Both showed overwhelming stakeholder support for a merger. The second test is that the conditions of Section 2 are met: that is, that the order serves the purpose of securing the exercise of regulatory functions in compliance with the principles of transparency, accountability, proportionality, consistency and targeting.
The third test is that various conditions in Section 3(2) are met. These are: the policy objective intended to be secured by the provision could not be satisfactorily secured by non-legislative means; the effect of the provision is proportionate to the policy objective; the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it; the provision does not remove any necessary protection; the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise; and the provision is not of constitutional significance.
The order was considered by the Delegated Powers and Regulatory Reform Committee on 12 March. The committee considered that the draft order met the tests in the 2006 Act: that it is not otherwise inappropriate to be made by delegated legislation; and that it meets the tests applied to other instruments by the Joint Committee on Statutory Instruments.
The 2006 Act allows the Government to propose the negative, affirmative or super-affirmative procedure for each legislative reform order, with Parliament allowed to upgrade the procedure if it so wishes within 30 days from the date on which the instrument was laid. The Government proposed the affirmative procedure for this draft order, and the Delegated Powers and Regulatory Reform Committee considered that this was not inappropriate.
This is an important order which when implemented will provide a more robust governance framework, improve working practices and create a stronger voice for health and safety in Great Britain. I commend it to the Committee and beg to move.
Moved, That the Grand Committee do report to the House that it has considered the Legislative Reform (Health and Safety Executive) Order 2008. 6th report from the Regulatory Reform Committee.—(Lord McKenzie of Luton.)
The Grand Committee will be extremely grateful to the Minister for introducing this non-contentious order in his usual careful way. It is, as he said, laid under the Legislative and Regulatory Reform Act 2006, which we on this side of the Committee believe is not used nearly enough. Plenty of other subjects should have the attention of the Government, because regulations were laid down many years ago and today give the distinct impression of being overkill.
Today's debate is a classic example because an awful lot of water has flowed under the bridge since 1974, when the Health and Safety at Work etc. Act was introduced. That it was necessary in the first place is evidenced by the reduction in accidents at work since then, due partially to the efforts of employers and employees, but mostly, I believe, by the attention to detail of the members and staff of the executive. It was a great treat the other evening to meet the new chief executive of the new body.
Some of that water has been the evolution of corporate governance. I do not believe that, if we were enacting the Health and Safety at Work etc. Act today, we would dream of setting up two non-departmental public bodies to do the job of imposing what the Explanatory Memorandum calls,
“particular duties in specific circumstances and sectors, and also health and safety regulations made under the Act”.
The commission, which this order abolishes, was established as the principal body in the regulation of health and safety at work in Great Britain. The executive, on the other hand, was what the Minister has just called the operative arm which, along with its staff, advises and assists the commission in its functions and has specific responsibility, along with the environmental health officers, for enforcement and prosecution. It is notable, however, that the commission has never had the authority to direct the executive in the execution of its duty. The two non-departmental public bodies thus operated at arm’s length. There is absolutely no reason in this day and age why a single body should not do both jobs.
When this proposal hit the floor, it did so running. I note that during the consultation period there were only questions of detail on the composition of the new body. The main areas of concern were the number of members on the board, whether it should consist entirely of non-executive members, and who should be consulted before their appointment.
I observe that the Government have stuck to their original intentions with one notable exception—they have decided to increase their originally proposed board from a chairman and nine members to a chairman and 11 members. The Minister well knows my views about numbers of board members because we had a discussion the other day about the size of the Child Maintenance and Enforcement Commission, when I said that such boards should be as small as possible, so I hope that a chairman and 11 members fulfil that criterion. Time will tell, but I must ask the Minister whether there is provision in this order or in the Health and Safety at Work Act to increase, or I hope to decrease, the size of the board.
It is my hope too that the revamped executive will be able to do something about the appalling state this nation has got itself into regarding protection of the individual, which has gone way over the top. This is a subject dear to my heart, as I said in a debate responded to by the Minister’s predecessor, the noble Lord, Lord Hunt of Kings Heath. For schools to stop small boys playing conkers, which is after all a traditional playground activity, or to prevent children climbing trees, will do nothing to make them responsible and careful adults. It is an absolute disgrace that one school cancelled its annual Guy Fawkes bonfire party last year because children might get too close to the bonfire and become scorched, or at worst burnt. Although I accept that teachers have a duty of care, I cannot accept that if a child is told not to do something and then goes ahead and does it, it is necessarily the teacher’s fault, or that if an employer holds a health and safety meeting of his staff and one of them ignores it, it is automatically the employer's fault.
The trouble is that over the last 30 years a compensation culture has grown up in this country which was never intended by Governments of either complexion. I can illustrate this by relating a story about my wife, who broke her leg while on holiday in Sri Lanka by slipping down some steps and falling awkwardly. On her return, to her horror, the first friend who came to see her asked almost immediately whom she was going to sue. Her answer was, of course, no one, as the accident was caused through her own admitted carelessness.
It is my belief that the “no win, no fee” agreements have got completely out of hand, and that the courts have been unduly lenient. It is one thing if someone damages their back by slipping on a wet floor at work when there is no warning notice—the subject of a television commercial that is doing the rounds—but quite another if an accident happens due to pure carelessness. The fact that a tree happens to be in a playground and a climbing child falls and breaks an arm, a leg or a collarbone is not to my mind an immediate reason to sue the school.
I discovered another version of trying it on when I had the honour to be a junior Minister in the Northern Ireland Office and there was a spate of people claiming to have ankle injuries because of uneven flagstones in Belfast. We conducted a little survey and discovered that some people claimed to have tripped over paving slabs several times—the same paving slabs that had been relevelled—a few weeks apart. They were the same people! The Secretary of State soon put a stop to that scam. It is the duty of us all to find a way that enables the genuine cases to get compensation while ensuring that those who made the main contribution to the accident get nothing. The “no win, no fee” legislation will then work as intended, which is a scenario much to be desired.
That said, I believe that the Health and Safety Executive has done a good job over the years, notwithstanding that it is often blamed for things that are nothing to do with its operations. The legislation handed down to it by the commission, and its visits to warn firms and establishments of dangers that might be impending, have proved the right approach, so I have no doubt that the new executive will be able to continue these operations and do its bit to make Britain a still safer place in which to work.
We on these Benches have nothing other than praise for the order, for the simple reason that it cuts red tape. Whenever this is accomplished, the Government should give themselves a small pat on the back, to be perfectly honest. Surely turning two bodies into one is a step forward. As for the attack by the noble Lord, Lord Skelmersdale, on the compensation culture, I agree, but with the caveat that everyone is always against excessive health and safety legislation until it is their child who is at risk. A new challenge for this body will be to try to get some reality about this. I have spoken before about reminding people that children heal when they fall over and cut knees and that this is quite normal and healthy, but that is rather different from allowing a climbing frame with a rusting and jagged piece on the edge of it to be in a playground. The concept of reasonableness is surely what stands behind all this, and a single body will surely have just a little more chance of ensuring that this measure gets through. I support the order.
I declare my interest as the vice-chairman of the Royal Society for the Prevention of Accidents and as president of the National Health Safety Groups Council and the London Health Safety Groups Council. I met Judith Hackett, who is the chair of the Health and Safety Commission, and the president and the vice-president of the Health and Safety Executive, who all asked me to thank the Government for the order, which I believe is the handiwork of Bill Callaghan, the previous chair of the commission.
The order is the second to have been made on the subject; the first was found to be defective by the councils and the chairmen. Anyway, we at last have it. It will not have been enacted before the Easter Recess, but it is on its way, and we congratulate the Government on it.
I am grateful for the support that the order has received from the three noble Lords who have spoken. The noble Lord, Lord Skelmersdale, talked about the progress that we have made since 1974 on health and safety, and about the important role that the commission and the Health and Safety Executive have played in that. That is absolutely right. There are still challenges out there that change as the nature of the workforce changes, which is why the improved governance arrangements provided for in the order are so important.
The noble Lord also referred to enforcement and the importance of ensuring that enforcement action was independent and could not be fettered either by Ministers, by the commission or by the new board of the executive, as it will be. That is an absolutely clear principle, which has been maintained throughout this process. He referred to the number of proposed members on the board. At the moment, the order is essentially permissive; it allows for there to be between seven and 11 members—there are currently nine members plus the chair—and there are no plans at the moment to increase its size. The debate on what the appropriate size should be focused in particular on the need to ensure that there is scope for the range of skills that are needed on the board to bring full weight to bear on the issues that need to be addressed. He also talked about the protection of individuals and, in his terms, some of the nonsense that goes on. We always need to be careful in these situations not to perpetuate myths. Undoubtedly, in some instances, there are those with responsibility for enforcing health and safety who go over the top; and there are instances in which people use health and safety as a reason for not doing something that they would otherwise want to do. When investigated, however, many of the myths of conkers and of benches being three inches too high or too low are simply not true. The key to all this is to recognise that the people who create the risks have responsibility for managing them. This is not about eliminating risk but about managing it.
The noble Lord referred to the compensation culture driving some of these issues. We need to think very carefully about this and to recognise that some people have been damaged at work by diseases with a long latency period and have struggled to get compensation 20, 30 or 40 years after the incident that has damaged their health, sometimes fatally.
The Minister is being unusually unkind in that explanation. I was talking about those accidents that are currently successfully sue-able—in other words compensable—and which were almost entirely the fault of the individual whom the accident befell. Clearly, I am not talking about something where the responsibility is 90 per cent or more on the employer or former employer; if he is talking about pneumoconiosis, for example.
I take that point, but I recall a debate in your Lordships’ House a couple of years ago when one of the committees of the House looked at whether we have a compensation culture. I think that the conclusion was to the contrary. In a sense, this debate is outwith the order, and we can perhaps return to it at some future stage.
I am grateful to the noble Lord, Lord Addington, for his support and for that of his party. I am grateful to the noble Lord, Lord Brougham and Vaux, who has a strong commitment to health and safety and is very active and engaged in the health and safety stakeholder community. He was right to remind us that this provision was in large measure the handiwork of Sir Bill Callaghan, the retired chair of the commission, and it has been taken up enthusiastically by his successor. I am grateful for the support that we received, and I commend the order.
On Question, Motion agreed to.