It is never a good sign when an aspect of the law is regularly held up to ridicule in the media, and the image of the current health and safety regime in the UK is not a good one.
That is unfortunate, because I think most prople would accept that most of what it contains provides a very necessary protection regime, without which we would see a lot more cases of death and injury in many walks of life.
But at the margins it sometimes does itself no favours. When local councils try to ban conker playing, or to remove hanging baskets, because of some marginal risk of injury, you do feel that there is a sense of perspective missing somewhere. Has the cost-benefit analysis, the reality of the pleasure against the probably hypothetical situation of pain, no role to play here? Must we always start from the standpoint of the worst case scenario?
Lord Young of Graffham obviously doesn't think that we have to. His report "Common Sense, Common Safety", published today (see news report), aims to bring a sense of proportion back into health and safety rules, and very welcome that is too.
I for one will cheer if we only have to sign one form each year covering projected school activities for our children, instead of certifying their medical history and ability to swim every time they head for the cinema or the museum. Likewise if there are fewer newspaper accounts in future of longrunning and popular local events suddenly being cancelled because the council deems them a safety risk.
But Lord Young also has in his sights the "compensation culture", a tag equally loved by the headline writers. Personal injury lawyers complain that it's far from as easy to make a claim stick as the term suggests, and it's true that journalists often seem unable to distinguish the bringing (or even just announcing the intention to bring) a claim in court from winning it at the end of the day. However I don't doubt that there is a close correlation between the threat of litigation, which may place the defending authority in a no-win situation financially, and the heightened awareness of risk regarding public activities.
With such a correlation, I suspect that (a) it will prove more difficult than Lord Young might think to discourage claims that push the boundaries a bit, and (b) without some shift in public attitude on that front, any relaxation of the health and safety straitjacket will not get very far either.
Whether simply putting advertising by claims handlers on a tighter rein will help turn the tide remains to be seen. Other proposals such as a new simpler claims procedure, while welcome in principle, may encourage more litigation rather than the reverse. No doubt that is why Lord Young also wishes to adopt Lord Justice Jackson's proposals, under which success (additional) fees and after-the-event insurance premiums will cease to be recoverable, even if the threat of paying the defender's costs in the event of failure is lifted.
These ideas (see Journal coverage here) have been much debated south of the border and it is probably only a matter of time before they are put on the table in Scotland. They have been accused of tipping the balance in favour of the insurance industry, and therefore have to be very carefully considered – but Lord Jackson did describe the existing position in England as claimants being "provided with comprehensive funding and insulated from all risk of adverse cost". Would they have such an impact in Scotland? I'd welcome views – please post below.
Whatever the outcome, I would like to think that somehow we can discourage the popular assumption that whatever happens, it's always someone else's fault. If Lord Young's report can do anything to help reverse that, he will have performed a public service.