Rob Elvin and Hayley Schofield of the Environmental, Safety and Health Practice of Squire Sanders, examine the recommendations laid down in last year’s Löfstedt Report.
As part of a government initiative to reform health and safety, professor Ragnar Löfstedt of King’s College London was commissioned last March by the Department for Work and Pensions to conduct an independent review of health and safety legislation in the UK. The review followed Lord Young’s 2010 report, ‘Common Sense Common Safety’, which recommended that the UK’s health and safety legislation should be consolidated and made more accessible.
Löfstedt was asked to examine whether, on the balance of risk and evidence, the current regulations are still appropriate. In doing so, he has identified opportunities for reducing the legislative burden on businesses, whilst maintaining recent improvements made in health and safety outcomes.
In his report published in November, Löfstedt concluded that there is no need for a radical overhaul of the legislation, suggesting instead that problems stem from a misunderstanding and application of existing regulations leading businesses to go beyond that which is proportionate. Löfstedt makes a number of recommendations in his report, all of which the government has committed to implementing on or before Löfstedt’s suggested timetable in its formal Response to the Report.
Main recommendations
Strict liability offences: Löfstedt recommends that all strict liability offences (i.e. offences that attract liability without requiring any proof of fault by the defendant) be reviewed by June 2013 with the intention of qualifying those regulations with what is reasonably practicable where strict liability is not necessary, or amending them so that civil liability shall not attach to breaches.
The report acknowledges that the interpretation and application of what is reasonably practicable can be ambiguous, and recommends that the HSE should continue to assist businesses in understanding what is reasonably practicable. It further suggests that the HSE website be used as a forum for sharing practical examples as well as issuing guidance.
These proposals are an improvement on the current position, but much will depend upon the actual regulations amended, and it may not be realistic to hope for any prescriptive guidance.
Approved Codes of Practice (ACoPs): The report recommends that by June of this year the HSE reviews all of its ACoPs to ensure that they are appropriate, relevant, unambiguous and up to date. The new ACoPs should help define terms that are unclear and assist businesses in understanding what might be reasonably practicable so as to make it easier to identify what is required and avoid over compliance.
Revocation, amendment or clarification of specific regulations: Löfstedt proposes the review of a number of specific regulations that are considered unduly burdensome on businesses. These include the clarification of reporting requirements under RIDDOR (the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995) and its associated guidance by the end of 2013, and a review of the Work at Height Regulations 2005 to prevent over compliance through disproportionate responses.
Sector specific consolidations: The report concludes that the sheer number of regulations rather than the regulations themselves is the cause of confusion, and recommends a series of sector specific consolidations to be completed by April 2015. The sectors identified in the report include explosives, mining, biocides, petroleum and genetically modified organisms, but the report does not intend this to be an exhaustive list.
Such consolidations, together with ongoing HSE plans, aim to halve the current number of regulations whilst at the same time maintaining the health and safety of employees and the general public. If successful, this radical programme should make compliance with health and safety legislation more accessible to businesses, but it remains an ambitious goal that may prove difficult to achieve in practice.
The self employed: In order to bring UK legislation more in line with that of other EU countries, Löfstedt suggests that the self employed whose activities do not pose a risk to others should be exempt from health and safety law. This is not expected to have a significant practical impact following the introduction of a new inspection regime which will concentrate on high risk sectors and businesses, but it does represent a move towards a more appropriate health and safety system in the UK.
Enforcement responsibility: The report advocates consistent and targeted enforcement activity, and recommends that the HSE be given the authority to direct all local authority investigation and enforcement. This will hopefully avoid the inevitable difficulties of dividing responsibility between the HSE and local authorities such as variations in enforcement and the creation of artificial barriers to the efficient targeting of activities.
There is also a further recommendation in the report that the UK government works more closely with the European Commission and others to ensure a risk-based rather than hazard-based approach for both new and existing EU health and safety legislation, with the aim of eliminating inherent differences and confusions in terminology across Member States.
Conclusion
The Löfstedt Report marks an important step towards reinstating common sense into health and safety legislation. It is hoped that the HSE will implement these measures to promote a more business friendly system of compliance with health and safety by removing unnecessary red tape whilst still safeguarding the genuine and considered protection of employees and the public in general.
Squire Sanders
T: 0207 655 1000
