The Löfstedt Review: a critical evaluation

1. The Löfstedt Review: a critical evaluation Institute of Employment Rights Conference: Reviewing Lofstedt May 9th 2012 David Whyte Liverpool University

2. ‘Reclaiming health and safety for all’? ‘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

3. Presenting Regulation as a Problem ‘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).

4. Support for the Status Quo • 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

5. Recommendations for Reform • exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others • review of ACoPs • sector-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 damages • reviewregulatory provisions that impose strict liability • aseries of consolidations and revocations of particular regulations

6. A Curious Evidence Base 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 sources • the inquiry also drew, to a varying degree, upon the work of interest groups and academics • not 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 Exchange • The single most cited academic is Löfstedthimself

7. Evidence-Based Policy or Employer-Biased Policy? The Report in key places is based upon highly partial use of existing evidence Two examples: • Exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others • 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 employers • Where there is evidence of good practice (e.g. in the case of roving safety reps) this is neutralized by employers’ interests

8. ‘Low-risk’ workplaces? LöfstedtReport 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 defensible • such a lack of precision is politically convenient for the government • ‘Low risk’ as a means of justifying regulatory disengagement

9. The Omission of Enforcement ‘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

10. The Löfstedt Review in Wider Context • LöfstedtReview 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