My Lords, Section 3(2) of the Health and Safety at Work etc. Act 1974 imposes a general duty on all self-employed persons to protect themselves and others from risks to their health and safety, regardless of the type of activity they are undertaking. Clause 1 limits the scope of Section 3(2) so that only those self-employed people who conduct an,
“undertaking of a prescribed description”,
will continue to have a duty under this provision.
A public consultation was conducted by the Health and Safety Executive during July and August 2014. A common concern was that regulations which prescribed only self-employed persons who conducted specified high-risk activities would not be fit for purpose. One of the key concerns expressed by respondents to the consultation was that this would lead to some self-employed persons who pose a risk to the health and safety of others falling exempt from the law. Following the commitment I provided to the House on Report, the Government have now given careful further consideration to the consultation responses and Amendment 1 addresses these concerns.
The amendment sets out the ways in which undertakings may be described in regulations made under Section 3(2) of the 1974 Act to retain duties on self-employed persons. New subsection (2A)(a) covers descriptions based on the type of activities carried out by the undertaking. These descriptions could include a reference to the economic activities that the undertaking engages in, work activities involving a specific hazard, work activities conducted in a specific capacity, or a combination of these things. New subsection (2A)(b) ensures that the regulations could also include a general description covering any undertaking the conduct of which may expose others to risks to their health and safety.
This amendment will therefore enable the Secretary of State to make regulations which not only retain Section 3(2) duties on all self-employed persons who conduct specified high-risk work activities but also retain duties on those self-employed persons who may expose others to risks to their health and safety. This, it is considered, more closely aligns with Professor Ragnar Löfstedt’s recommendation in respect of this provision. Regulations made under this clause will continue to be subject to the affirmative procedure. They will therefore be scrutinised by Parliament at the time of laying to ensure they are fit for purpose before the regulations are brought into force.
The Government acknowledge that assistance will need to be provided to the self-employed to assist with their understanding of this legislative amendment and to limit the possibility of incorrectly assessing whether their work activities may expose other persons to risks to their health and safety. Further to aid this amendment, the HSE will therefore produce guidance targeted at self-employed persons and others to address these issues. It will also signpost them to existing guidance which explains in practical terms what self-employed persons need to do to comply with the relevant law.
Amendment 2 seeks to make it mandatory for the regulations to prescribe all self-employed persons who may pose a risk to the health and safety of others, thereby ensuring that they do not fall exempt from the law. I can provide the noble Lord, Lord McKenzie, with the assurance now that the Government intend to produce a set of regulations that will retain a duty on all self-employed persons who may pose a risk to the health and safety of others under Section 3(2) of the Act. I understand what the noble Lord wants to achieve with his amendment. However, in the light of the assurances I have now provided, and given the safeguards in place for the regulations to be scrutinised further by Parliament before they are brought into force, I hope the noble Lord will not seek to change what the Government have brought forward. I think the differences between us have narrowed considerably although I realise that some very small differences remain about the assessment of potential risk.
Amendment 3 seeks to impose various conditions on the making of regulations before undertakings can be prescribed for the purposes of retaining duties on the self-employed under Section 3(2) of the Health and Safety at Work etc. Act 1974. This amendment requires an independent review to be conducted and considered by both Houses before the regulations can be brought into force.
I hope I can provide some assurances also to demonstrate that this amendment is not necessary. In Committee, the Government amended Clause 1 so that regulations made under the power it creates are subject to the affirmative resolution procedure before they come into force. This provides Parliament with an adequate opportunity to scrutinise and debate the regulations to ensure that they are fit for purpose. The conditions that the noble Lord seeks to impose on the regulations can already be considered by the Houses as part of the affirmative resolution procedure if, indeed, Parliament considers these factors to be relevant. Additionally, the proposed prescribing regulations will contain a commitment for their review and for a report to be published after five years of making these regulations. The report will seek to assess the extent to which the objectives intended to be achieved by the proposed policy have been met.
Given the safeguards already in place, and the consultations undertaken by the HSE, the Government do not consider that a further independent review of the regulations would be of any benefit. Furthermore, the Government have now changed the policy to ensure that all self-employed people who expose others to risks to their health or safety will remain subject to the law. This, I think, is also what the noble Lord seeks to achieve. We have considerably narrowed the differences in the course of our consultations. I thank the noble Lord and other opposition Peers for the conversations we have had with officials in the intervals between the various stages of this Bill. I hope we have provided sufficient assurance. I beg to move that Amendment 1 is made and urge the noble Lord not to press Amendments 2 and 3.
Amendment 2 (to Amendment 1)
Moved by Lord McKenzie of Luton
2: Clause 1, leave out lines 8 to 11 and insert—
“(b) must be framed so as to include all those whose work activities may pose any risk to the health and safety of any person other than the self-employed persons conducting them.”