The Enterprise and Regulatory Reform Bill is going through its second reading in the House of Lords and Labour peers have raised a poignant question - does the government know what it is doing?
Of course the question is not general, but relates specifically to its attempt to insert a clause that will abolish a worker’s automatic right to compensation for breach of certain health and safety regulations, requiring them instead to prove that negligence has occurred.
It is an excellent question, and one I have asked myself, as the bill strikes me as diametrically opposed in one regard to the overriding intentions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).
Much of LASPO is about reducing legal costs. The clause referred to in the ERR Bill abolishes strict liability, leading necessarily to more – not less – litigation.
Opposition spokesman, Lord Stevenson of Balmacara, has been quoted as asking: ‘Is it really the government’s intention that a worker injured due to an employer’s breach of a statutory duty within the health and safety at work regulations – such as failing to guard a machine – will be required to prove that the employer knew, or ought to have known, of such a failure in order to gain redress for the injury sustained?’
Is it also its intention that legal costs increase as negligence has to be fought in every case?
Lord Stevenson continues: ‘The requirement to prove foreseeability is a very high bar of proof for an individual injured or killed through no fault of their own. Do the government really think that by proposing this change they are sending the right message to employers about the importance of health and safety?’
Does it also not see that by ‘cutting red tape to free up industry’ – which I have heard is the justification they give for this clause, slipped in discreetly at the last moment and without consultation – it will effectively be creating additional work for the so-called claims industry it so noisily objects to?
As part of that claims industry I suppose I should see this philosophically – what government takes away with one hand it appears to be giving back with the other. One thing is for sure, and that is that we will fight every inch of the way to ensure that those entitled to compensation continue to recover it.
Julie Carlisle is an associate at Henmans LLP, specialising in personal injury work