Ken Clarke recently published the draft Deregulation Bill, the next step in the Government’s so-called “Red Tape Challenge”. The Bill is intended to deal with a bewildering variety of deregulation, the common theme being the need for primary legislation in respect of each of the changes proposed – previously, the Government claims to have brought in deregulation that did not require primary legislation supposedly producing savings of £212 million.

In relation to health and safety there is proposed an amendment to the Health and Safety at Work Act 1974 s.3 in respect of certain self-employed people. Is this proposed change significant or just voter-pleasing hot air?

Currently, s.3 creates a duty on all self-employed people to conduct their business in such a way as to ensure that both they and others are not exposed to risks to health and safety. Breach of this duty is a criminal offence punishable by an unlimited fine and up to two years imprisonment.

As the Explanatory Notes explain, “The purpose of [the] amendment is to limit the scope of the general duty … so that only self-employed persons who conduct a “relevant undertaking” have an obligation to conduct their undertaking in such a way as to ensure that, so far as is reasonably practicable, they themselves and other persons who may be affected thereby are not exposed to risks to their health and safety. This is a deregulatory provision because it will exempt from health and safety law those self-employed persons who have no employees, and whose workplace activities pose no potential risk of harm to others.”

The definition of “relevant undertaking” is found in subsection (3) of the clause and includes undertakings to be prescribed by future regulations as well as those undertakings where, “persons who may be affected by the way in which it is conducted, other than the person conducting it … could thereby be exposed to risks to their health and safety”.

Since this definition would seem to have the potential to take in the activity of almost every self-employed person, no matter how perceptively safe it may be, it is hard to know who is really going to feel the benefit of this change. Furthermore, a quick review of the HSE enforcement register, which reveals 70 prosecutions as well as hundreds of Enforcement Notices for breaches of this duty in the last five years, does not reveal a single case that would not fall within the new definition. Quite how this change is therefore meant to amount to “formally exempting 800,000 people from health and safety regulation” as claimed in the press release is not clear. If you are a self-employed gas-fitter you need to be careful; if you are a self-employed secretary you are probably ok. Ever was it thus.