Institute of Employment Rights Conference: Reviewing LofstedtMay 9th 2012

David Whyte Liverpool University

THE LÖFSTEDT REVIEW: A CRITICAL EVALUATION

‘Professor Löfstedt’s review will play a vital part in putting common sense back at the heart of Britain’s health and safety system and I look forward to receiving his findings. By rooting out needless bureaucracy we can encourage businesses to prosper and boost our economy.’ (Chris Grayling) Löfstedt’s review largely endorses the status quo Given current context, conclusions and recommendations might be viewed with a sense of relief. More broadly, the Report is a significant element of a coalition government agenda which undermines regulatory protections in the name of employer interests

‘RECLAIMING HEALTH AND SAFETY FOR ALL’?

‘consider the opportunities for reducing the burden of health and safety legislation on UK businesses while maintaining the progress made in improving health and safety outcomes.’ (Terms of reference for the Löfstedt review).

‘The Government is committed to simplifying health and safety legislation to ease the burden on business and encourage growth.’ (Government response to the Löfstedt review). 

PRESENTING REGULATION AS A PROBLEM

the current framework of health and safety regulation is not in need of a fundamental overhaul.

regulatory requirements imposed on small firms should not be reduced

‘health and safety regulation should not be tailored to the level of risk in the workplace’

where regulations place undue costs on business this arises not because of the duties laid down but because of the way they are interpreted and applied.

health and safety regulations have been an ‘important contributory factor‘ in the significant reduction in injury rates since the introduction of the 1974 Act

SUPPORT FOR THE STATUS QUO

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

review of ACoPssector-specific regulatory consolidations (including mining,

genetically modified organisms, biocides and petroleum)give HSE the authority to direct all local authority health and

safety inspection and enforcement activity clarify the protocol standard disclosure list used in civil

actions for damagesreview regulatory provisions that impose strict liability a series of consolidations and revocations of particular

regulations

RECOMMENDATIONS FOR REFORM

261 references listed to support the arguments and claims made in the document. weight of material indicates that the inquiry drew mainly upon evidence from government sourcesthe inquiry also drew, to a varying degree, upon the work of interest groups and academicsnot one single reference in Report to trade union evidence or publications, or evidence from pro-regulatory, worker-protection organisations (one reference in Report to a three page article which puts the ‘trade union perspective on regulatory reform’)seven references to documents published by the British Chamber of Commerce,five references to the document Reducing the Burden, written by Policy ExchangeThe single most cited academic is Löfstedt himself

A CURIOUS EVIDENCE BASE

The Report in key places is based upon highly partial use of existing evidenceTwo examples:1.Exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others 2.A review of regulatory provisions that impose strict liability  no consideration is given to whether such duties stand up to the evidence - merely that they will benefit employersWhere there is evidence of good practice (e.g. in the case of roving safety reps) this is neutralized by employers’ interests

EVIDENCE-BASED POLICY OR EMPLOYER-BIASED POLICY?

Löfstedt Report reinforces government pre-occupation with ‘low risk’ workplaces:  the report makes routine use of the following: ‘low-risk’ work activities; ‘low-risk’ businesses; ‘low-risk’ sectors; ‘low-risk’ workplaces.none of these concepts are actually defined in any useful sense the concept of ‘low risk’ workplaces (as defined in government sources) is not empirically defensiblesuch a lack of precision is politically convenient for the government‘Low risk’ as a means of justifying regulatory disengagement 

‘LOW-RISK’ WORKPLACES?

‘A large number of responses and comments I received related to the issue of enforcement of the regulations. A wide-ranging consideration of the extent and nature of enforcement activity is largely beyond the scope of this review, and has already been considered in some detail previously by Sir Philip Hampton.’ (Löfstedt Report) 

HSE activity over the past decade: 69% fall in FOD inspections 49% fall in the investigation of major injuries 29% fall in the number of all types of enforcement notice

issued over the past decade 48% fall in prosecutions

The emasculation of enforcement and its centrality to a credible regulatory system sidestepped by the Löfstedt Report

THE OMISSION OF ENFORCEMENT

Löfstedt Review part of a wider deregulatory agenda being pursued by the current government

To coincide with Löfstedt review government instructs HSE and local authorities to cut inspection by a further third

November 2011, HSE revises guidance on the ‘risk-rating system’

In the context of a torrent of anti-regulatory initiatives, Löfstedt looks relatively insignificant

Its effect is to give an aggressive government attack upon worker safety a thin veneer of academic respectability

THE LÖFSTEDT REVIEW IN WIDER CONTEXT