New Threat To Cornerstone of UK H&S Legislation
In his November 2006 article for Unionsafety, Jason Morley first raised the question of the threat to the phrase ‘so far as is reasonable practicable’, and its relevance to Health & Safety Legislation. Jason’s’ article concerned itself with the threat to the ‘cornerstone of UK H&S Law’ from the European Commission, but a new threat now comes from the UK’s Dept of Works And Pensions as a result of its review of the work of the HSE.
Unsurprisingly this is being urged upon it by the business community in the UK and if accepted by the DWP, will mean a complete about face on the issue. It originally rejected any notion from within the EU that this phrase within UK H&S Law results in a ‘watered down’ version of EU directives being adopted in UK H&S law.
Jason’s article explained its relevance:
"This question is pretty much the cornerstone of UK health and Safety Law, with the Health & Safety at Work Act (HSWA) and many statutory instruments including it in their text. Safety practitioners will explain it as a balance between the benefits to be gained (in terms of risk reduction) versus the cost (in time, money and inconvenience). This qualified duty is the standard against what the UK’s companies base the health and safety decisions.”
Jason then explained the European aspect:
"In March 2005, the European Commission (EC) started formal infraction proceedings against the UK Government for alleged under implementation of the EC’s health and safety Framework Directive (Council Directive 89/391/EEC of 12th June 1989). In essence the EC is challenging the use of the qualifier “so far as is reasonably practicable” (SFAIRP) in the UK’s transposition of the duty on employers to ensure the health and safety of their workers (article 5(1) of the Directive).
The oral hearing took place at the European Court Justice (ECJ), in Luxembourg, on 13 September 2006. At the hearing, counsel for the UK (a senior QC) and for the EC put forward their case. The UK appears to have stated that our safety record speaks for itself in comparison with other member states that do not use the qualified duty. The EC pressed the fact that the UK had produced a lower level of protection for UK employees than the EU Community required the latter only recognizing Practical and Absolute Duties.”
The latest situation was highlighted this week by Unionsafety in reporting on the findings of the DWP Review into the work of the HSE.
One of the witnesses to the Work and Pension’s Committee inquiry was a Partner at Burges Salmon and Solicitor-Advocate, Chris Jackson, who supports a review of the test of reasonable practicability:
"The idea of disproportion having to be gross is well known and is used as the foundation of most regulatory guidance. However ultimately it is based on one sentence in one case in a different context dating from 1949. It does not sit easily with later cases or with the proportionality concepts that are key to the UK Better Regulation agenda in the 21st century. Reasonable practicability is the most important concept in the Act, but it is not defined. That key fact underpins the Committee's recommendation for a Law Commission review."
Frank Wright, Professor of Law at Warwick University disagrees, citing the Government’s support of the current terms before the European Court of Justice recently as an indicator of their position on the matter.
As Jason’s article for Unionsafety had pointed out, the European Commission had argued the inclusion of the phrase meant UK health and safety legislation did not fully implement the European Framework Directive, but the UK was successful in its defense.
The DWP report concluded that there was a lack of clarity surrounding the language used, and that this was increasing the obstacles faced by employers when trying to meet their Health and Safety obligations. It recommended a review by the Law Commission, to study the test of 'reasonable practicability' and its impact on Health and Safety legislation.
Whilst this in itself does not mean that the phrase 'so far as is reasonable practicable' would necessarily be replaced, the reality is that there is a danger that any 'definition' of the phrase will lead to further dilution of health and safety law in the UK.
With current concern over the lack of realistic penalties being expressed by both the TUC and IOSH, any definition of the phrase 'so far as is reasonable practicable' may have a detrimental effect on the campaign to have breaches of H&S law and corporate killing legislation recognised properly by the introduction of realistic and justified penalties.
Jason's original article
News item: DWP Report On HSE
The DWP report in its entirety can be downloaded in PDF format here
Source: Workplace Law / Unionsafety / DWP Press release
