His response was clear: “I have concluded that, in general, there is no case for radically altering current health and safety legislation. The regulations place responsibilities primarily on those who create the risks, recognising that they are best placed to decide how to control them and allowing them to do so in a proportionate manner. There is a view across the board that the existing regulatory requirements are broadly right, and that regulation has a role to play in preventing injury and ill health in the workplace. Indeed, there is evidence to suggest that proportionate risk management can make good business sense.”

However, he then went on to say: “Nonetheless, there are a number of factors that drive businesses to go beyond what the regulations require and beyond what is proportionate and I have made recommendations to tackle those which relate to regulations. These will enable businesses to reclaim ownership of the management of health and safety and see it as a vital part of their operation rather than an unnecessary and bureaucratic paperwork exercise.”

He explained that in general, the problem lies less with the regulations themselves and more with the way they are interpreted and applied, either because of inconsistent enforcement, lack of clarity in the legislation, or duplication.

Professor Löfstedt made a number of specific recommendations:

- An exemption from health and safety law for those self-employed whose work activities pose no potential risk of harm to others

- The Health and Safety Executive (HSE) should review all its Approved Codes of Practice (ACoPs). The initial phase of the review should be completed by June 2012 so businesses have certainty about what is planned and when changes can be anticipated

- The government should work more closely with the European Commission and others, particularly during the planned review of EU health and safety legislation in 2013, to ensure that both new and existing EU health and safety legislation is risk-based and evidence-based

- The HSE should undertake a programme of consolidation of sector-specific regulations (which he said would reduce the number of regulations by about 35%)

- Legislation should be changed to give the HSE the authority to direct all local authority health and safety inspection and enforcement activity, in order to ensure that it is consistent and targeted towards the most risky workplaces, and

- The civil justice system should be re-balanced by clarifying and restating the original intention of the pre-action protocol standard disclosure list. In addition, regulatory provisions which impose strict liability should be reviewed by June 2013 and either qualified with ‘reasonably practicable’ where strict liability is not absolutely necessary, or amended to prevent civil liability from attaching to a breach of those provisions.

The latter point, the issue of strict liability, is one that will resonate with risk managers and their companies’ liability insurers.

Professor Löfstedt said that he had been shown a number of examples where strict liabilities in health and safety regulations have resulted in individuals being paid compensation even though the employer did everything that was reasonably practicable and foreseeable.

“Awarding compensation on the basis of a technical breach where there is no opportunity for the defendant to be aware of the danger, and no actions could have been taken to prevent the accident, clearly has the potential to stop employers taking a common sense approach to health and safety,” he said.

Risk professionals will also be pleased to note that Professor Löfstedt stressed the need to stimulate a debate about risk in society to ensure that everyone has a much better understanding of risk and its management. “As a professor of risk management, you might expect me to consider the concept of risk and regulation in its wider context. And I have. I believe there needs to be a greater understanding of risk in today’s society. We need to change mindsets and stimulate debate.”

As a result, he called for the House of Lords to set up a Select Committee on risk (or establish a sub-committee within its Science and Technology Committee) to examine this issue in more detail and consider how to engage society in a wider discussion about risk.

He also recommended that the government asks Sir John Beddington, the government’s Chief Scientist, to convene an expert group aimed at addressing this issue. And he said the outcomes of such work need to be disseminated widely across parliament, policy makers, academics and the public.

The government said that health and safety regulations will be reduced by a third, rising to over a half over the next three years, through combining, simplifying and reducing the approximately 200 existing regulations.

Chris Grayling MP, Minister for Employment, said, “We will also ensure our reforms put an emphasis on personal responsibility. It cannot be right that employers are responsible for damages when they have done all they can to manage the risk. Fundamentally, we will ensure the health and safety system is fit for purpose through streamlining the maze of regulations and ensuring consistency across the board.”

The aim of the review was to ‘put common sense back into health and safety’, according to the government.

In fact, what the Minister for Employment asked the professor to do was to ‘identify opportunities to simplify the rules’. And it is this that has caused the review, and the government’s response, to create such polarised responses.

There is a consensus that welcomes the finding that the UK’s current health and safety legislation is, in general, fit for purpose. However, on the issue of the cutting back of some regulations, and in particular the exemption for the self-employed, there is considerable opposition from unions and plaintiff lawyers.

ALARM, the UK public risk management association, welcomed the recommendations, particularly Professor Löfstedt’s view that proportionate risk management makes good business sense and that decisions should be made from a risk- and evidence-based perspective.

“In the public and third sectors, we find instances of activities that have been curtailed or cancelled due to fears over alleged health and safety implications,” said ALARM. “As a result, communities are diminished as years-old customs and practices are abandoned, playgrounds closed, trees felled and hanging baskets removed—all in the name of health and safety, and fears of legal suits being taken out against the council, school or community group involved.”

Health and safety organisations also welcomed Professor Löfstedt’s report.

Judith Hackitt, the Chair of HSE, said: “Professor Löfstedt's insightful report will go a long way to refocusing health and safety in Great Britain on those things that matter—supporting those who want to do the right thing and reducing rates of work-related death, injury and ill health. We must have a system of health and safety which enables employers to make sensible and proportionate decisions about managing genuine workplace risks. Simplifying and streamlining the stock of regulations, focusing enforcement on higher risk businesses, clarifying requirements, and rebalancing the civil litigation system—these are all practical, positive steps.”

The Royal Society for the Prevention of Accidents (RoSPA) said it was pleased with the emphasis on the importance of a proportionate, risk-based approach to safety and health assurance rather than an inflexible one based on prescriptive rules. It said the challenge now is to embed this approach across the entire health and safety system.

Tom Mullarkey, Chief Executive of RoSPA, said: “We are glad that Professor Löfstedt has rejected deregulation and has confirmed that the present legal structure is broadly fit for purpose. His detailed recommendations for technical change show there is always scope for some tidying up of the law and eradicating unnecessary red tape without removing essential protections. But, like at least half a dozen previous reviews of health and safety law, he has confirmed that not only has the UK got the regulatory balance about right but we also have much to be proud of.”

Concerns, however, were raised about some of the recommendations.

The Trades Union Congress (the UK’s trades union federation) said that the proposals to exempt some self-employed workers could have a devastating impact on their safety. Grahame Smith, Scottish Trades Union Congress (STUC) General Secretary, said:

“Whilst we welcome the conclusion that our health and safety regulation is not overly burdensome, we are aware that there is a sting in the tail of this latest coalition government attack on health and safety legislation. With the prospect that millions of self-employed workers may be exempted from health and safety regulation, the review fails to acknowledge that this is the sector where people are more likely to be killed, injured or made ill by their work.”

Construction union UCATT said the exemption “will create a legal nightmare, unless construction and other high-risk industries are clearly exempted from his recommendations. Over half of workers in the construction industry are officially classified as self-employed although many of these workers are falsely self-employed. Construction is the most dangerous industry in the UK.”

George Guy, Acting General Secretary of UCATT, said, “This proposal would be disastrous if implemented in the construction industry. Workers would not know if they were covered by safety legislation, while companies would try to divest themselves of safety duties by increasing the number of false self-employed workers. Already construction companies all too often fail to comply with basic safety legislation and this proposal will make a bad situation far worse.”

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