Health and Safety at Work etc. Act 1974 (Photo credit: Wikipedia)
The Secretary of State has now made a Commencement Order to bring into force the provisions of Section 69 of the Enterprise and Regulatory Reform Act 2013. The effect of section 69 is to amend Section 47 of the Health and Safety at Work etc. Act 1974.
Primary and secondary legislation in force before the implementation of Section 47 had often created civil rights of action for their breach, either because of express provisions in the legislation, or as a result of interpretations to that effect by civil courts. The legislation was listed in Schedule 1 of the Health and Safety at Work etc. Occasionally, courts had determined that there was no enforceable civil right of action arising from breach. Section 47 added to these accrued rights of civil action for breach of statutory duties, by extending the right to regulations made under section 15 of the 1974 Act if that breach caused damage, and regulations made in reliance on other powers, including European-inspired health and safety regulations, relying on powers on section 2(2) of the European Communities Act 1972.
The revised Section 47, with deletions scored through and inserted text italicised, is as follows:
47 Civil liability
(1) Nothing in this Part shall be construed—
(a) as conferring a right of action in any civil proceedings in respect of any failure to comply with any duty imposed by sections 2 to 7 or any contravention of section 8; or
(b) as affecting the extent (if any) to which breach of a duty imposed by any of the existing statutory provisions is actionable; or
(c) as affecting the operation of section 12 of the Nuclear Installations Act 1965 (right to compensation by virtue of certain provisions of that Act).
(2) Breach of a duty imposed by health and safety regulations shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise.
(2) Breach of a duty imposed by a statutory instrument containing (whether alone or with other provision) health and safety regulations shall not be actionable except to the extent that regulations under this section so provide.
(2A) Breach of a duty imposed by an existing statutory provision shall not be actionable except to the extent that regulations under this section so provide (including by modifying any of the existing statutory provisions).
(2B) Regulations under this section may include provision for—
(a) a defence to be available in any action for breach of the duty mentioned in subsection (2) or (2A);
(b) any term of an agreement which purports to exclude or restrict any liability for such a breach to be void.
(3) No provision made by virtue of section 15(6)(b) shall afford a defence in any civil proceedings, whether brought by virtue of subsection (2) above or not; but as regards any duty imposed as mentioned in subsection (2) above health and safety regulations may provide for any defence specified in the regulations to be available in any action for breach of that duty.
(4) Subsections (1)(a) and (2) and (2A) above are without prejudice to any right of action which exists apart from the provisions of this Act, and subsection
(3) (2B) above is without prejudice to any defence which may be available apart from the provisions of the regulations there mentioned.
(5) Any term of an agreement which purports to exclude or restrict the operation of subsection (2) above, or any liability arising by virtue of that subsection shall be void, except in so far as health and safety regulations provide otherwise.
(6) In this section “damage” includes the death of, or injury to, any person (including any disease and any impairment of a person’s physical or mental condition).
(7) The power to make regulations under this section shall be exercisable by the Secretary of State.
(8) Where, on the commencement of this section, there is in force an Order in Council made under section 84(3) of the Health and Safety at Work etc. Act 1974 that applies to matters outside Great Britain any of the provisions of that Act that are amended by this section, that Order is to be taken as applying those provisions as so amended.
(9) The amendments made by this section do not apply in relation to breach of a duty which it would be within the legislative competence of the Scottish Parliament to impose by an Act of that Parliament.
(10) The amendments made by this section do not apply in relation to breach of a duty where that breach occurs before the commencement of this section.
The amendment in section 47, brought about by section 69 of the 2013 Act, is to reverse the position: when brought into force, there will be no right of civil action for breach of a duty contained in the health and safety regulations described above, i.e. whether the regulations which gave enforceable rights before the 1974 Act, or those which have arisen under the 1974 Act, including section 2(2) of the European Communities Act 1972.
The only exception is where there is a specific express provision allowing for those rights to continue. Section 69 of the 2013 Act inserts a new section 47(2A) into the 1974 Act which gives power to make an exception to the reversal, and allow rights to remain enforceable.
The transitional arrangements provide that the relevant date for determining whether a claim can be brought is the date on which the breach took place, not the date on which the action is brought. If a statutory duty gave right to an enforceable civil right of action before Section 69 of the 2013 Act comes into force, and that duty was breached before that date, then the claim remains enforceable, subject to usual provisions as to limitation. The date of breach, rather than the date on which any damage is caused, is important, since there are some situations where there is a delay between breach and recognised damage, such as exposure to some environmental pollutants.
The Enterprise and Regulatory Reform Act 2013 (Commencement No. 3, Transitional Provisions and Savings) Order 2013 SI 2003/2227 was made on 7 September 2013, in exercise of the powers conferred by sections 100 and 103(3) and (4) of and paragraph 61(5) of Schedule 4 to the Enterprise and Regulatory Reform Act 2013,
Article 2(f) brings section 69 of the Act into force, as expected, on 1st October 2013.
The rights of employees will be radically changed.