LONDON LETTER: LUKELY BROOK is a tributary of one of the Isle of Wight's two main rivers, rising in the Boscombe Valley before it joins the Medina at the head of the estuary in medieval Newport, the island's capital. In the past the tributary, which is prone to occasional bouts of light flooding after heavy rains, and run-off from waste-water pipes, has been cleaned of undergrowth and other obstacles by Bob-a-Job scouts.
In a time of austerity, Newport Parish Council decided recently that a winter clean-up should be carried out by locals who have run foul of the law for minor offences and who have been ordered to carry out community work.
The request from the parish council prompted a risk assessment – which should have happened under current regulations – by Hampshire Probation Service.
Following the inspection, the parish council’s idea was vetoed by the service, which decided that it would not be safe to send offenders down the Lukely’s less-than-treacherous banks, saying it had a duty of care to its charges.
For some on the island, including local councillor Tony Caborn, the decision highlights the all-pervasive reach of health-and-safety laws.
The debate about “’elf and safety” – as it is dubbed in the tabloids – prompted the Health and Safety Executive to run a “myth of the month” series last year on the most mistaken beliefs, including one that some schools banned ties because pupils might choke.
Small businesses argue that the rules are hampering their ability to create jobs, along with creating a risk-averse culture that has seen the freedom of children curbed, some say unnecessarily (though the law, if now grown too wide, was created for a reason).
In the UK, 170 people died in nearly 8,000 major accidents last year, while nearly two million people believe their own health has been affected by work they are doing or have done in the past.
The figures come at a cost: 4.4 million working days were lost due to workplace injuries and 22.1 million more due to work-related ill-health caused by occupational health issues, the Löfstedt review into health and safety legislation reported.
Concern has prompted a number of reviews – one by a former cabinet minister, Lord George Young, who argued that decisions should be based firstly on the benefits that work could bring, rather than on its risks – and, most recently, by Prof Ragnar Löfstedt. In his report, Löfstedt found there is no case for radically altering current regulations, arguing that the problem “lies less with the regulations themselves and more with the way they are interpreted and applied”. Sometimes the problems are caused by inconsistent enforcement, which should now be dealt with by the HSE, while, in others “the influence of third parties” promotes “the generation of unnecessary paperwork” and decisions that go far beyond need.
Pointing to inconsistencies in the media, Löfstedt said journalists frequently try to have it both ways: rightly highlighting the most egregious bans, while also exaggerating the dangers associated with other actions.
Despite the constant mantra in the UK that everything is controlled “by Brussels”, the country currently exceeds European Union requirements when it comes to imposing health and safety rules on the self-employed. In light of this, Löfstedt, who teaches risk management at King’s College in London, has recommended that the self-employed be made exempt from health and safety laws, where their work poses “no potential risk of harm to others”. Under existing regulations, employers must take action to prevent accidents in “so far as is reasonably practicable” – though the rule causes “general confusion over what it means in practice and many small businesses find it difficult to interpret. Meanwhile, there are instances where regulations designed to address real risks are being extended to cover trivial ones, whilst the requirement to carry out a risk assessment has turned into a bureaucratic nightmare for some businesses,” he said.
Sometimes the regulations defeat their own purpose. Employers are producing or paying for lengthy documents covering every conceivable risk, sometimes at the expense of controlling the significant risks in their workplace, he added. The ultra-cautious approach is driven by insurance fears.
“There is evidence to suggest that this, or at least the threat of being sued, can be a key driver for duty holders going beyond what the regulations require,” he said. Sometimes employers facing legal action settle if they do not have all the paperwork on file, or they keep volumes of it in case they are. “All of this leads to an emphasis on generating paperwork for every possible risk.”
In other cases employees get compensation under strict liability rules that make employers responsible regardless of their culpability, even though they have done everything that is reasonably practicable and foreseeable.
Proposing change to the scope of strict liability after June 2013, Löfstedt said such interpretations of the law are “not in line with the concept of ‘reasonably practicable’, nor is it clear that it is what was intended”.
Back on the Isle of Wight, the changes, when they come, will be too late for the clean-up of Lukely Brook.
Instead of calling on the scouts, the parish council is now readying to hire a company to do the work. Local rate-payers will, no doubt, be less than pleased.
