Question: Which is the odd one out? Answer: The first one; all the others were used by peers to describe the Enterprise and Regulatory Reform Bill at its Second Reading in the House of Lords. There is no doubting the Bill’s breadth. Everyone could agree on its heterogeneity: detractors called it a “hotchpotch”, a “patchwork”, “piecemeal”, “ragbag” and “incoherent”; proponents accepted it was “complicated and complex” and had “a wide-ranging bandwidth”.
So what? For personal injury lawyers, so a lot. One of those heterogeneous measures is a proposed amendment to the Health and Safety at Work etc. Act 1974 which would end civil liability for breach of regulations made under that Act (which, of course, include the vast majority of provisions bearing on employers’ liability).
The proposed clause has two remarkable features. Firstly, it would mark a profound change in the civil liability of employers. I would not go quite so far as those Noble Lords who repeated the claim, apparently suggested by APIL, that it would turn back the clock of health and safety provision to 1898; still less can I endorse the view of Lord Monks, perhaps waxing too bold, that it would “reverse” the 1974 Act; but there is no doubting that if it is passed into law it will have a significant effect on the legal landscape as we know it.
The second notable feature is that it did not form part of the original draft of the Bill. It was introduced at a late stage in the House of Commons, or, as the Lords rather sniffily refer to it, “the other place”. As a result, it took a lot of people by surprise.
Avid readers of piBlawg will know this much already, as Matthew Chapman drew attention to the Bill’s passage through the Commons at a time when it had not come onto many radars. Since then, interested groups have mobilised, and by the time the Bill reached its Second Reading in the Lords there was, if not exactly a well-informed debate, then at least rather more intense scrutiny of what was being proposed and the justification for it.
The Government sought support for the proposed change in the recent review of health and safety law by Professor Ragnar Löfstedt; its opponents argued that whilst Prof. Löfstedt had suggested a number of revisions to the law, what the Government was proposing was not one of them.
The chief tormenters of the Government were, in a Tintin-esque touch, Lords MacKenzie and McKenzie. Speaking of the provision in question, Clause 61, Lord MacKenzie (of Culkein) roared: “some parts of this Bill might be good, some bad and some ugly. This bit of the Bill is particularly ugly and I think it deserves to be removed long before we ever get to Committee”. Lord McKenzie (of Luton), who spoke at length on the clause, was no less leonine: “It is wrong in terms of parliamentary process, egregious in content and its outcomes would be grossly unjust. It must be removed from the Bill.”
That was precisely what happened when the Bill reached the “report” stage, as Andrew Spencer reported recently on piBlawg.
So what next? For the Bill, it is back to “the other place”. In the meantime, in my next post, I will bring the story up to date by looking at what happened to the Bill in its later stages in the Lords, and consider what the implications might be if the Government’s proposal succeeds. More anon.