After much trailing about what it would and would not contain, Lord Young’s review has finally been published. It makes 36 largely predictable recommendations in a range of areas.
As has been clear since David Cameron, then leader of the opposition, announced the review in a speech last December to the Policy Exchange, the main targets for criticism are the causes of the so-called “Compensation Culture”. Accordingly, recommendations include restricting the operation of referral agencies and personal injury lawyers and controlling the volume and type of advertising. Lord Young maintains that the promise of risk free litigation and the lure of bonus payments for those whose claims are taken on by solicitors encourage litigants to come forward with unmeritorious claims.
Behind this headline however is a somewhat inconsistent acknowledgement that “the problem of the compensation culture prevalent in society is one of perception rather than reality”. Lord Young goes on to describe a steady increase in claims for damages that arise from accident or disease, which runs contrary to the suggestion of a “compensation culture” driven feeding frenzy. The problem he suggests is the misreporting of the issue by the media.
Perhaps the best example of this problem is ironically a story cited by Mr Cameron himself in his December 2009 Speech to the Policy Exchange. He described the tragic case of a child drowning while police officers stood by because they had been “told not to intervene as they hadn’t undertaken their ‘water rescue’ health and safety training.” In Annex D to Lord Young’s report, entitled “The truth behind health and safety hysteria in the media”, we discover that in fact a police officer did dive in to the water and helped recover the boy, although too late to save his life.
In relation to the regulation of hazardous industry, Lord Young has sensibly avoided controversy, acknowledging the UK’s enviable safety record with one of the lowest rates of accidents at work in Europe, although describing the present system as “probably overly bureaucratic”. Rather he has turned his attention to the over regulation of low risk environments, specifically, shops, offices and classrooms, where he suggests that simple checklists should take the place of overly complex risk assessments. Particularly in his sights are the unqualified health and safety consultants, who he suggests contribute to a belief that all risk must be removed rather than proposing “reasonably practicable” steps as required by the Health and Safety at Work Act 1974, the overarching legislation governing safety in the workplace.
Curiously, in the section dealing with this regulation we find ourselves back in the world of “compensation culture” with the suggestion that business owners fear “being sued for breaches of health and safety rules”. This seems a strange conflation of two largely unconnected worlds. Businesses may be sued for financial damages due to their negligence and they may be prosecuted for breaches of health and safety rules. Breaches of health and safety rules may also be pleaded in addition to negligence. However, businesses are rarely, if ever, sued simply for breaches of health and safety rules. This is therefore either the intentional blurring of the boundaries between two popular enemies or a failure to understand the important differences between the regulation of safety in business (by way of enforcement action) and action for damages (by way of personal injury claim).
Identifying shops and schools as low risk environments might also be seen as somewhat simplistic given some cases from the last two years. R v Porter in 2008 concerned the successful prosecution of a head teacher following the death of a three year old child who tripped on steps in a school playground. The conviction was overturned by the Court of Appeal on the basis that there was no obligation upon an employer in the conduct of his undertaking to guard against those risks which were “merely fanciful”. This outcome perhaps reflects the very common sense for which Lord Young is striving but it also exemplifies the real situations against which the health and safety machinery must be judged, as is the very recent death of Elle Hiscott who fell down stairs at a school in London. In relation to shops, this year saw a record fine of £400,000 imposed on New Look upheld by the Court of Appeal following a fire at their London flagship store. No one was killed but the sentencing judge described the fire that led to the case as “a disaster almost too awful to contemplate”.
One gets the feeling that many of Lord Young’s conclusions were formed before he even started gathering evidence. Nothing was going to divert him from his (and Mr Cameron’s) attack on the causes of “compensation culture”, although he has, apparently been put off some of his more extreme recommendations, including an outright ban on television advertising relating to claims for compensation. By joining this issue to health and safety regulation as if they are merely two sides of the same coin he fails to recognise how distinct the two issues are and therefore some of his recommendations miss the point. It is particularly disappointing that there is not more overt recognition that the problem is one of perception (distorted by media portrayal) rather than substance but perhaps getting to the truth was never the point.