Löfstedt: the verdict so far

Health and Safety Bulletin reviews the rapid and occasionally controversial implementation of the 2011 Löfstedt Review.

In November 2011, the Government published the report of an independent review it had requested from Professor Ragnar Löfstedt on health and safety legislation. The report made 26 recommendations and, on 30 May 2012, the then employment minister Chris Grayling asked Löfstedt to carry out a one-year review of the progress that had been made in implementing the recommendations (PDF format, 44KB).

One year on, Löfstedt finds that, overall, "good progress" is being made and that "there is already some evidence that the perception of health and safety is changing". In particular, the Health and Safety Executive (HSE)has "made considerable progress in taking forward" his recommendations on the scope and application of health and safety legislation and has either met the milestones in the government response or is on course to do so.

Löfstedt advises that his report has been informed by the views he heard at more than 100 events. The majority, he claims, "including business representatives, trade unions, professional organisations and trade associations, welcomed the overall direction and conclusions of the report. A few felt I should have been more deregulatory while others were concerned that the changes will result in reduced health and safety protection for employees and members of the public." His five-member advice panel reconvened in January 2013 and "expressed differing views about how some of the recommendations are being implemented, particularly in relation to strict liability and local authority inspections".

Löfstedt's one-year-on review is supported by a 2013 report (PDF format, 89.5KB) from the Department for Work and Pensions (DWP) on the progress that the HSE and government departments have made delivering the recommendations made by Löfstedt and also by Lord Young in his 2010 review (see box 1).

A year of rapid change

In this feature, we look at the 2013 progress reports from Löfstedt and the DWP, add in the progress that is not mentioned in the reports and highlight areas of under- and over-implementation. As Health and Safety Bulletin (HSB) noted when reviewing Löfstedt's 2011 report, few of the 26 recommendations - which Löfstedt wanted implemented by April 2015 and, in some cases, earlier - should in themselves have caused significant upheaval; most will merely fine-tune the UK's regulatory system. And although the DWP's response, which it published simultaneously with the Löfstedt report, claimed the department had accepted Löfstedt's recommendations, this was not always the case with the detail of the more radical proposals, particularly around enforcement, which it politely ignored.

The 2011 Löfstedt Review

Lest anyone forget, the terms of reference for Löfstedt's 2011 review were to "consider the opportunities for reducing the burden of health and safety legislation on UK businesses whilst maintaining the progress made in improving health and safety outcomes. In particular, the scope for combining, simplifying or reducing the - approximately 200 - statutory instruments owned by the HSE and primarily enforced by the HSE and local authorities [LAs], and the associated Approved Codes of Practice [ACoPs]."

Löfstedt was subsequently at pains to emphasise that the use of the word "burden" was not his and, in a balanced report that came as a pleasant overall surprise to many who had feared a Young-style deregulatory diatribe, Löfstedt found no evidence to support "radically altering or stripping back current health and safety regulation". The regulations were, he added, "broadly fit for purpose", the concept of reasonable practicability was appropriate, and risk assessments were "fundamental" to a business's management of risk. Although compliance costs could be "significant", current health and safety regulation played a "significantly beneficial role", with "the vast majority of employers and employer organisations acknowledg[ing] the importance of health and safety regulation" and that the regulations themselves "were broadly fit for purpose".

"In general," Löfstedt found "the problem lies less with the regulations themselves and more with the way they are applied", including by third parties promoting actions beyond the requirements, or a lack of clarity in the regulations, or their "sheer number".

Sector-specific consolidation

In his 2013 report on the implementation of the 2011 review, Löfstedt notes that his recommendations - primarily concerned with simplifying the regulatory framework - are "well under way" and that by April 2013 there should already be about 10% fewer sets of health and safety regulations on the statute book than when he started his review.

Part of this simplification envisaged the HSE completing by April 2015 a programme of sector-specific consolidations. The review, insisted Löfstedt, should be "given priority and the resources necessary to ensure there are no unintended consequences"; the consolidation should not, he emphasised, "in any way reduce health and safety protection". He believed consolidation would eventually result in a 35% reduction in the number of sets of Regulations, which would be replaced by simplified and up-to-date sectoral regulations. The DWP accepted the recommendation, but anticipated a 50% reduction if other ongoing HSE work was taken into account.

The legislation Löfstedt identified covers 76 Acts, Regulations and Orders affecting: mines (40 pieces); explosives (21); petroleum (six); biocidal products (five) and two related pieces of legislation; and genetically modified organisms (four). What this means, of course, is that the sector consolidations affect only a small proportion of businesses and workers in the UK.

Löfstedt does not consider the progress - or otherwise - that has been made on these five groups. The DWP's 2013 report notes only that the HSE is "engaging with stakeholders, considering options and will develop regulatory packages in due course". This, however, is almost verbatim what it stated in its previous June 2012 progress report. In fact, consultation on the biocides consolidation ended on 31 January, while shortly after the publication of the 2013 progress reports, the HSE Board approved draft proposals for consolidating the explosives legislation into two sets of Regulations, which will go out for consultation this year and come into force on 1 October 2014. The HSE Board had been scheduled to consider a draft consultation document around the end of 2012/early 2013 on consolidating the coal mining legislation (the HSE also found a further nine instruments, bringing the total governing the sector to 49). As at 1 March, however, the board had not discussed the issue; nor is there any visible progress on the two other consolidations, although that is not to say that preparatory work has not been undertaken.

In his one-year report, Löfstedt "recognise[s] the major consolidation exercises will take time to deliver" and states "this work should not be rushed. It is important that the proposals are developed and scrutinised carefully to ensure that there are no unintended consequences which could result in a lowering of health and safety protections, and that regulation remains evidence-based and risk-based. More generally, business representatives and professional organisations have told me that they would be happy for more time to be taken on the implementation of my recommendations so that their views can be fully taken into account."

General consolidation rejected

In what had the potential to lead to a far-reaching and radical reform, Löfstedt recommended the HSE commission, by January 2012, research into the potential consolidation of the core sets of Regulations that apply to the majority of workplaces to see whether this "would provide clarity and savings for businesses". He envisaged this consolidation might be achieved in one or more of four ways, although he appeared to reject two of these options (merging sets of regulations that cover related topics and also Lord Young's recommendation of consolidating all the regulations into one overarching set of Regulations). Löfstedt saw greater advantages, and fewer disadvantages, in the two other options:

• bringing together regulations that contain common provisions, for example the requirement to carry out a risk assessment or provide information and training; or
• consolidating the regulations into a smaller number according to theme, for example those that relate to general management issues, or by hazard.

Löfstedt notes the report of this research was published in December 2012 and that it concluded "none of the options set out in my report would be beneficial and any such consolidation would be potentially costly and confusing for business." A stakeholder workshop discussed the findings on 7 January and, on 30 January, just days before the DWP released Löfstedt's progress report, the HSE Board rejected proceeding with any of the options. Beyond noting what has happened, however, Löfstedt makes no comment about the outcome, presumably because he would argue that his recommendation - which was to commission the research - had been implemented.

Reviewing the regulations

Löfstedt's 2011 review identified specific sets of Regulations that he believed had little value, were superseded by more modern legislation or imposed unnecessary duties. The DWP accepted the recommendations but warned, in respect of the more recent Regulations: "Where legislation has originated in the EU, there may be limited scope for making changes, particularly in the short term."

Löfstedt identified four sets of Regulations where there was a need to clarify regulatory requirements and remove unnecessary duties. First, Löfstedt recommended the revocation of the Notification of Tower Cranes Regulations 2010. These, he said, had "little value", with the HSE's impact assessment (IA) unable to quantify any benefits. Nor did the IA anticipate the Regulations would reduce injuries or ill health; the main benefit, concluded the IA, would "be an increase in public assurance". Löfstedt believed the HSE should instead explore alternative ways of reassuring the public. Legislation repealing the 2010 Regulations, and a dozen other instruments, comes into force on 6 April (see box 4).

Second, Löfstedt recommended the HSE should complete the evaluation of the effectiveness of the Construction (Design and Management) Regulations 2007 and ACoP by April 2012 to ensure the duties are expressed clearly, bureaucracy is reduced and there is guidance for small projects. The HSE had, in fact, completed most of the evaluation before Löfstedt published his 2011 report but delayed submitting a paper to its board in order to await the report. One year on, Löfstedt notes the HSE published the evaluation on time and had "gone further" than his recommendation, "with work already under way to consider how these Regulations could be simplified and rationalised without reducing standards". He does not mention, however, that the HSE Board had planned to discuss its proposed new package at its December 2012 meeting and consult on its proposals in early 2013. As at 1 March, however, this has not happened.

Third, Löfstedt recommended the HSE amend the Health and Safety (First Aid) Regulations 1981 to remove the requirement for the HSE to approve those who provide first-aid training and qualifications. The requirement, he believed, exceeded the EU requirements and had "little justification". Businesses should have the flexibility to choose training providers that are appropriate to their workplaces, and the HSE should therefore revise its guidance on what provision is suitable for different workplaces.

One year on, Löfstedt notes the HSE has consulted on the removal and that: "A number of training providers have told me that they have concerns about the consequences of this proposal. I am looking to HSE to ensure that the implementation of this recommendation does not have any impact on the quality of first-aid training." The HSE Board discussed the results of the consultation exercise at its meeting on 27 February and agreed to remove the requirement from the Regulations and also to conduct a further consultation on scrapping the ACoP to the Regulations. The HSE plans to introduce the changes on 1 October.

RIDDOR overhaul

Fourth, Löfstedt asked the HSE to complete its fundamental review of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR). Lord Young had recommended the review, as well the replacement of over-three-day injuries with over-seven-day injuries. The aim of the review, according to Löfstedt, "should be to reduce the ambiguity over the reporting requirements for businesses, particularly in relation to incidents involving members of the public, and improve the quality of information collected". Löfstedt noted concerns that the different categories of reportable accident were "unnecessarily complicated" and that it is "time consuming for organisations to determine if accidents/incidents should be reported and that this uncertainty creates inconsistency in reporting between organisations" - particularly with incidents involving members of the public. Such inconsistency and under-reporting limits the effectiveness of RIDDOR "in providing useful statistics or indicators for the enforcing authorities and business, and supports a view that the Regulations pose an unnecessary burden," concluded Löfstedt.

After completing its review, the HSE consulted on its proposed reforms between 2 August and 28 October 2012. At a closed meeting in January, the HSE Board rejected two of the most far-reaching proposals, which would have repealed the requirements on dutyholders to report injuries to members of the public and occupational diseases. In his one-year report, Löfstedt wrote he was "content" with how the HSE was taking the RIDDOR work forward, although it is doubtful he was aware that the board was reaching its decisions in private without explanation or published board papers. (The HSE informed HSB on 6 March it would make them available.)

Löfstedt also claims: "While there have been criticisms of the government's reforms to RIDDOR, to date they have mainly been directed at Lord Young's proposals... Critics believe the proposals [in the HSE's most recent consultative document following its fundamental review] will reduce the level of protection offered to workers and weaken the regulation, monitoring and management of health and safety. My recommendation for RIDDOR focused on making the Regulations, and associated guidance, clearer and simpler for employers to understand and comply with." While it is fair to attribute the over-seven-day criticism to Lord Young, this does not hold water for the fundamental review; after all, Löfstedt called for the review to be completed and the HSE could legitimately argue that most of its proposals addressed the alleged shortcomings of RIDDOR highlighted by Löfstedt.

Approved Code of Practice review on course

Löfstedt's 2011 report noted that despite "overall" support for the principles of ACoPs as "a vital part of the system", there was also the "potential for confusion between the elements that are regulation, those that have ACoP status, and what is guidance". He therefore recommended the HSE review all 53 ACoPs, with the initial phase of the review completed by June 2012 "so businesses have certainty about what is planned and when changes can be anticipated". In particular, he wanted the review to ensure the ACoPs: are still required; offer an unambiguous guide to what the law requires for specific activities; are up to date; are presented in the most appropriate way for the intended audience; and help define "terms such as 'reasonably practicable' in specific situations to reduce the risks of over-compliance".

In the event, the HSE consulted on reforms to 29 ACoPs, with most of the remaining ones caught up in the ongoing sector regulation reviews (see above). The HSE proposed 15 ACoPs would undergo major changes through consolidation, amendment and removal, with minor changes to a second group of 14. Consultation ran between 3 July and 14 September 2012 and, on 5 December 2012, the HSE Board agreed that major changes to a dozen ACoPs in the first group would proceed and be in place, on time, by the end of 2013.

The board asked officials for further information on the three ACoPs in the first group that were in line for removal, and agreed the second group of minor changes would be in place by the end of 2014. The DWP's progress report notes that, subject to the board's agreement, the HSE will have published six revised ACoPs, removed six by consolidation and withdrawn three outright by the end of 2013. Of the three ACoPs that the HSE proposed to scrap, consultation elicited: considerable support for the pipelines proposal; no clear majority on children and agriculture; and a majority opposed to the scrapping of the ACoP to the Management of the Health and Safety at Work Regulations 1999 (MHSW).

Löfstedt's one-year report does not review progress on the ACoPs at an individual level, save for noting the board's December 2012 decision and for a few words of caution on the three ACoPs that the HSE proposed for removal: "I know these proposals concern some interest groups, and I recognise that care will be needed to ensure that the removal of an ACoP is not incorrectly perceived as the dilution or removal of the underpinning legal requirement. I therefore await the outcome of the HSE Board's careful deliberations with interest."

This is one of a small number of areas where Löfstedt might be accused of pulling his punches because there is no indication in his 2011 review that he envisaged the MHSW ACoP would be scrapped. Indeed his review concluded the MHSW ACoP would "particularly benefit" from a comprehensive review, with attention paid to what information is included and how it is presented (with an SME audience in mind). He also mentioned some respondents believed more could be done to emphasise that only significant findings of a risk assessment need be recorded and that the detail should be proportionate to the risk. These are all indicators that he envisaged the HSE would improve the MHW ACoP, not scrap it. Furthermore, it is disappointing that he did not take the opportunity of his one-year review to look at the biased way the HSE interpreted the responses to its consultative document to justify proceeding with the repeal of the MHSW ACoP and, in doing so, ignoring the comments of a clear majority of the key representative stakeholder bodies.

Self-employed exemption goes ahead

Of all Löfstedt's recommended regulatory changes, the most controversial has probably been the exemption from health and safety law of self-employed workers (ie those that have no employees) whose work activities pose no potential risk of harm to others. Interestingly, Löfstedt accepted "the actual burden that the regulations currently place upon the self-employed may not be particularly significant" because of existing exceptions and "a limited prospect" of enforcement. The DWP noted similarly: "In practice, we do not expect enforcement agencies to carry out many visits to self-employed people involved in low-risk activities... However, it is clear that the fear of inspection and possible prosecution for minor transgressions of the law is a cause of unnecessary concern for the self-employed and - where the individual is carrying out [a] low-risk activity such as office-type work - delivers no real benefit to the wider population."

The DWP's response differed in one respect from Löfstedt's in that it was clear that: "Where the activities of self-employed people could pose a risk to themselves or others, for example in the building trades, the law will continue to apply" (HSB's emphasis). Löfstedt, in contrast, envisaged exempting self-employed workers from the law even if they themselves were at risk, providing no one else was. As we noted at the time, this would be undesirable because sick and injured self-employed workers are a cost to their families in terms of lost income and care, and to the state in terms of NHS costs and welfare benefits, not to mention the suffering they themselves would endure.

The HSE consulted on three options for reform between 2 August and 28 October 2012. The HSE Board then approved the consultative document's "preferred option" - essentially, Löfstedt's recommendation supported by an attempt to classify "high risk" activities - in a closed session on 30 January 2013. Subject to ministerial agreement, self-employed workers will be exempted from health and safety law from 1 October 2013 if:

• they pose no potential risk of harm to others when carrying out their work activities, conducting their undertaking, or through the products and services created by their work activities; and
• they do not work in any of 11 "prescribed" higher-risk sectors (although some of the sectors are more accurately industries, sites or activities or sector, and there is a conflation of risk and hazard).

Löfstedt notes he is "content" with how the HSE is taking forward the recommendation, which "was clear. Only those self-employed whose work activities pose no potential risk of harm to others should be exempt from health and safety law... A number of stakeholders have raised concerns that this recommendation might lead to the self-employed in risky occupations, such as construction, being taken outside health and safety law. This was never my intention and I am pleased to note that the consultation document focused on clarifying which categories of self-employed workers would and would not be affected by the exemption."

Much to do in Europe

In the meetings that HSB has attended at which Löfstedt has spoken about his 20011 review, the EU has been one of the areas about which he has been most exercised and excited. It is therefore disappointing that his one-year report is able to describe little meaningful progress, although it is probably unrealistic to have expected substantive reform within 12 months, particularly given the EU's own timetable for review (see below).

In his 2011 report, Löfstedt concluded that the UK Government "needs to focus its attention on working with the EU if it is to improve health and safety regulation and ensure it remains appropriate", recommending it "works more closely with the [European] Commission and others, particularly during the planned review in 2013, to ensure that both new and existing EU health and safety legislation is risk-based and evidence-based".

The DWP responded in 2011 that the Government had already "done much" but needed "to do more" to tackle the "burden" of EU legislation, and would continue to work closely with other member states and the commission "to deliver a more proportionate, risk-based approach to health and safety".

One year on, while recognising the actions of the UK in the EU, Löfstedt again cautions: "The UK Government needs to do more in its dealings with European policy makers in promoting risk-informed policy making. The UK should not be on the sidelines but actively attempting to set evidence-based regulation into the heart of Europe. I hope that the UK will play an active role in the forthcoming European Commission review on health and safety regulation." In its 2013 progress report, the DWP notes only that the HSE is in the process of preparing the report on the UK's practical implementation of EU health and safety Directives between 2007 and 2012. The report must reach the commission by 31 December 2013 and will feed into its forthcoming comprehensive review.

Beyond the Government

Löfstedt also looks beyond government: "Significant work remains to be done to ensure that the regulations and Directives coming out of Europe are both risk- and evidence-based. In the 100-plus talks that I have given up and down the country on health and safety it is clear that many stakeholders are not aware of the influence of the European Commission and Parliament, as well as other bodies, in setting health and safety regulation in this country. This is an issue that needs to be tackled head-on and one where the UK has much to offer. Health and safety stakeholders in this country need to actively engage with their European counterparts. I will spend a considerable part of my [2013] sabbatical pushing for this in the corridors of the commission and parliament and I hope to see a few of the people I have spoken to or corresponded with joining me."

As in his speeches, Löfstedt highlights the launch in September 2012 of an "informal working group on risk-based policy making in the European Parliament established by Julie Girling MEP, alongside other experts on risk policy and health and safety regulation". The initiative, claims Löfstedt, "is gaining momentum, with around half a dozen MEPs joining the group in the last couple of months. Three meetings are planned for 2013 which will consider risk versus hazard, substitution, and the precautionary principle." The question he does not ask, however, is how this body will avoid being merely a talking shop and instead manage to exercise any significant influence.

Social partner agreements

One area that particularly troubled Löfstedt was the use of social partner agreements (whereby employers and employees can reach an agreement through social dialogue and then request that it becomes a Directive). The Council of Ministers may only agree or refuse to implement the agreement; it cannot amend it. Once approved, member states must then implement the requirements as they would any other Directive). Löfstedt recommended the Government work with the European Commission to introduce greater clarity to, and raise awareness of, social partner agreements and also ensure that impact assessments (IAs) are produced before they are adopted. The DWP agreed that there should be IAs for all social partner agreements.

At the time of his 2011 report, there had been just one instance of a health and safety agreement turning into a Directive - the prevention of sharp injuries in healthcare, which will be implemented in the UK in April by a new set of Regulations. In his one-year report, Löfstedt highlights a potential second, on hairdressing (see box 5).

Löfstedt also highlighted in 2011 two Directives - on display screen equipment and artificial optical radiation - that he believed were in need of reform. Although his one-year report does not follow these through, it is worth noting that the European Commission's proposal to merge the DSE and manual handling Directives into a new Directive on musculoskeletal disorders/ergonomics may instead be heading towards a less significant Recommendation. The DWP report notes that the UK has lobbied the commission and member states to raise awareness of the impact, especially on small businesses, of such a Directive, and that the commission is reconsidering whether a Directive is an appropriate response to the risks of musculoskeletal disorders.

Speedier prosecutions

Löfstedt recommended in 2011 "that all those involved should work together with the aim of commencing health and safety prosecutions within three years of an incident occurring". The "Work-related deaths protocol" was amended before the publication of the Löfstedt report to allow, but not require, the HSE to bring prosecutions before a coroner's inquest, which should reduce the timescale in some cases.

One year on, Löfstedt notes the HSE is working with other agencies - the police, the Crown Prosecution Service, local authorities and coroners - to take forward the recommendation through the National Liaison Committee (NLC) for the "Work-related deaths protocol". The committee agreed an evidence-based review of the efficacy of the protocol be carried out and reported back to its May meeting. The DWP adds that a subgroup of the NLC organisations, sponsored by the Director of Public Prosecutions, "is closely examining in detail how the main organisations involved in work-related deaths can better work together to speed up investigations and prosecution decisions. All organisations are mindful of working together to aim to achieve a three-year target for all health and safety prosecution cases." The DWP adds that an HSE "snapshot" of the three years to April 2012 shows "100% of non-fatal prosecutions were approved for prosecution within three years of the incident date (where the approval date is held on our systems). Work is currently ongoing to establish the figure for fatal accidents."

Twin peaks won't go away

Löfstedt made one recommendation that would have had fundamental implications for the enforcement of health and safety, even though this was strictly beyond his remit. Noting that LA inspectors can enforce food safety, environmental protection and waste management matters as well as health and safety, he believed this caused health and safety to vary as a priority between LAs and attract differing amounts of resource, which had led to "real inconsistency" in relation to the enforcement of health and safety across LAs.

Furthermore, the split between HSE and LA enforcement raised "an artificial barrier to the most efficient targeting of enforcement activity across the board", creating a "twin peaks" problem in which the HSE and LAs enforce the highest-risk premises within their remit (ie one peak each), the problem being that premises on the LA peak are often much lower risk than many for which the HSE is responsible but is unable to inspect because it has even higher-risk premises on its peak. In short, LA officers are visiting premises that are lower risk than many HSE-enforced premises that are ignored.

The problems, said Löfstedt, "will be further exacerbated" by the Government's announcement earlier in 2011 to reduce proactive inspections by one-third. He therefore recommended a change in the legislation "to give the HSE the authority to direct all LA health and safety inspection and enforcement activity, in order to ensure that it is consistent and targeted towards the most risky workplaces". The DWP "fully support[ed] the overall objectives of the recommendation", but stated instead that the HSE would work with local government and business "to develop a shared national code that is binding and enforceable".

The HSE consulted on a draft code between 31 December 2012 and 1 March 2013. The HSE Board meeting on 27 February, however, delayed its approval for the code's publication on 1 April, although the HSE still hopes to launch the code on that day. The board wanted to look further at the 10 areas and sectors to which LA proactive inspection will be limited; in addition, consultation was still ongoing at the time of its meeting, although the HSE's initial analysis of responses indicated general support.

Löfstedt notes: "While it is unfortunate that the code does not go as far as my recommendation (for HSE to be given the authority 'to direct LA health and safety inspection and enforcement activity'), it is certainly a step in the right direction and, if adhered to, should ensure a more proportionate, risk-based approach to LA enforcement." He refers to the HSE's mid-year collection of LA enforcement data, which indicates the proactive inspections total will be 86% lower in 2012/13 than the baseline year of 2009/10. He also mentions he has learned about the HSE's "Find-It" tool, which was developed by the Health and Safety Laboratory to help inspectors target premises in higher-risk sectors that are still trading and that have not been recently visited. This, he believes, will help ensure regulation is targeted where it is most needed and that regulatory decisions are based on evidence.

Primary authorities

The Primary Authority (PA) scheme allows businesses that operate in more than one LA area to deal with a single lead LA on regulatory issues, including those arising from health and safety. As at the end of February, there were 2,256 PA partnerships covering 689 businesses, 100 local authorities, 57,900 premises and 1.6 million employees. Not all of these partnerships involve health and safety regulation. In his 2011 report, Löfstedt recommended the HSE should be the PA for multi-site national organisations.

The DWP response sidestepped the recommendation, stating it would make further announcements "soon", in the light of a recent consultation that looked at ways of improving the scheme. It added it would "welcome the HSE working closely with the Local Better Regulation Office, which operated the PA scheme at the time and was subsequently replaced by the Better Regulation Delivery Office (BRDO).

The Department for Business, Innovation and Skills subsequently included provisions to strengthen the PA scheme in the Enterprise and Regulatory Reform Bill, which completed its House of Commons stages in 2012 and was due for the fifth day of its report stage in the Lords on 18 March. The Bill's changes to the PA scheme are, however, relatively minor extensions of the scheme rather than the fundamental role for the HSE that Löfstedt had envisaged.

In his one-year report, Löfstedt notes the HSE is working with the BRDO "to ensure the scheme increases consistency", while the DWP's 2013 progress report adds the "HSE is sharing its experience of working with multi-site organisations to assist both the development of inspection plans and the PA scheme itself." Löfstedt does not, however, comment on the non-implementation of his recommendation, beyond noting he "will be interested to see if the subsequent evidence shows that these initiatives have a sustained impact on LA regulatory activity over time and improve the consistency of enforcement. The latter was a key theme, particularly for multi-site retailers, in the evidence submitted to my original review".

Making "strict liability" reasonable

Löfstedt was clear in 2011 that several recent reviews had produced "no evidence" for the existence of a "compensation culture" in the UK, although he accepted "perception" of such a culture could have a significant impact on employers. Although civil law was outside his "regulatory law" scope, the "links" between the two systems led him to make two recommendations in respect of pre-action protocols (see box 6) and civil liability, the latter of which led to a particularly controversial government response.

Löfstedt noted the imposition by some health and safety regulations of strict liability on employers, which made them legally responsible for the damage and loss caused by their acts and omissions regardless of their culpability and whether or not they had done all that is reasonably practicable. Although Löfstedt acknowledged this could sometimes be necessary, he believed that "awarding compensation on the basis of a technical breach where there is no opportunity for the defendant to be aware of the danger, and no actions could have been taken to prevent the accident, clearly has the potential to stop employers taking a common-sense approach to health and safety".

Löfstedt therefore recommends regulatory provisions that impose strict liability should be reviewed by June 2013 and either qualified with "reasonably practicable" where strict liability is not absolutely necessary or amended to prevent civil liability attaching to a breach of those provisions. One year on, he notes: "The approach being taken is more far-reaching than I anticipated in my recommendation and, if this amendment becomes law, I hope that the government will carefully monitor the impact to ensure that there are no unforeseen consequences." The approach, which involves an amendment to the HSW Act in the Enterprise and Regulatory Reform Bill (see above) has, acknowledges Löfstedt, "proved to be highly controversial and has provoked much debate, including amongst the members of my advisory panel... My understanding is that the proposed amendment to the HSW Act reverses the current position on civil liability. This means that, unless exceptions apply, claims for compensation in relation to breaches of health and safety legislation will need to prove that the employer has been negligent."

The DWP's progress report explains the move: "An approach to targeting each strict liability duty would be much more complex to achieve, requiring a large number of changes to many sets of regulations. A single change to the HSW Act achieves the same overall policy objective and will be significantly easier for employers and other stakeholders to understand. It also provides a consistent approach to civil litigation across health and safety legislation. It is therefore likely to have more impact in changing perceptions of the 'compensation culture'." Needless to say, many stakeholders dispute this contention and we will return to it in a future edition of HSB.

Risk communication

Löfstedt is the director of the King's Centre for Risk Management at King's College London, so it is not surprising that his 2011 report should stray beyond its legislative terms of reference to include some recommendations on risk communication. "The consideration of risk," wrote Löfstedt in 2011, "requires an inclusion of the 'social context' and [recognition] that the public, stakeholders and regulators perceive risks differently." Risk communication techniques, he said, "need to recognise that traditional practices are no longer effective in 'post-trust' environments". He recommended the House of Lords be invited to set up a select committee on risk or to establish a subcommittee of the Science and Technology Committee to examine the issue and to consider how to engage society in a discussion about risk. He also recommended the government ask its chief scientific adviser to convene an expert group to address this challenge. The outcomes of such work, he insisted, would need to be disseminated widely across parliament, policy makers, academics and the public.

Although he lamented slow progress - particularly in engaging the House of Lords - at some of his meetings over the past year, one year on Löfstedt "wholeheartedly" welcomes the initiative of the government's then chief scientific adviser, John Beddington, to address the challenge of how to engage society in a discussion about risk: in November 2012, Beddington and Michael Gibbons, the chair of the Regulatory Policy Committee, jointly chaired a Go Science workshop, "Policy makers, the public and perceptions of risk". Löfstedt states he is looking forward to seeing the report of the workshop and doing what he can to help Beddington's successor, Mark Walport, to take forward the actions. Löfstedt hopes, too, that this will complement the work of an ad hoc House of Lords committee on the subject. The DWP progress report notes meetings have taken place with the members of the House of Lords to discuss how to take the recommendation on engaging on risk forward, while Walport is considering the other recommendations in respect of society. Both recommendations must be implemented in 2014.

Missed opportunity

The two progress reports - from the DWP and Löfstedt himself - demonstrate the enormous amount of time that HSE officials have spent implementing the professor's recommendations. As Löfstedt himself notes: "All the recommendations in my report have either been delivered already or are on track to be completed by the agreed date, although in some cases the government has gone further than I proposed. In any case, the HSE should be commended for meeting the targets on time, especially at a time of austerity and severe budget cuts."

When looked at as a whole, the volume of the work is indeed remarkable. The problem is that much of it has been rushed to meet unrealistic timescales and carried out with inadequate resources; this was a criticism that many stakeholders made in particular of a woefully inadequate consultation on reforming the ACoPs. It has also meant that there have been wasted opportunities: the "fundamental" review of RIDDOR, for example, was anything but fundamental, neglecting even to consider work-related road traffic accidents. Such opportunities come along but rarely and to waste them is frustrating.

Löfstedt's one-year report is too brief, which is not his fault as that is what he was asked to do. Nor did the terms of his one-year review allow him to revisit the wisdom of some of his recommendations, which has meant that he has disappointed those who hoped he would be more forensic and critical in his appraisal. Nevertheless, the brevity and terms should not have prevented him from being more vocal where his recommendations have not been implemented properly, notably around LA enforcement. At the same time, he avoids overt criticism or concern where the government has used his review to implement changes we believe he would not have countenanced, for example the removal of the MHSW ACoP and the changes to civil liability.

It was never my intention...

A further problem is that Löfstedt too often ignores the political reality, countenancing fears about the more problematic recommendations with statements such as: "It was never my intention that any of my recommendations should put workers or the public at risk. My aim was to identify a suite of reforms that would deliver a simplified health and safety legislative framework that is evidence-based and risk-based and to ensure that it is applied in a fairer and more consistent way. This in turn should help businesses and employees to understand more easily what they need to do to keep workplaces safe." While we have no doubt this remains his intention, surely no one can believe that this coalition government, with its constant and evidence-less attacks on health and safety, would not use the report to justify its less palatable actions.

Löfstedt is on sabbatical for the calendar year 2013, so is "unable to participate in further debates on this topic during this time beyond the two that [he has] already committed to". Notwithstanding this, both Löfstedt and his advisory panel "believe there would be benefit in another, independent, review of progress in a year or so's time, to ensure that implementation remains on track, and assess the impact on the ground of the changes already made". HSB would argue that this review should be funded properly and required to examine the implementation of each of the recommendations in detail and be carried out by an individual or body independent of both Löfstedt and the Government.

References

Löfstedt R (2011). "Reclaiming health and safety for all: An independent review of health and safety legislation".

Löfstedt R (2013). "Reclaiming health and safety for all: A review of progress one year on".

Department for Work and Pensions (2013). "A progress report in implementation of health and safety reforms".

Department for Work and Pensions (2011). "The government response to the Löfstedt report".