The biggest impediment to a strong return for events is not the virus but the law and its application. The Covid laws are just part of a long term trend of onerous compliance based laws which could hamper event business growth.
Sometimes it seems that our public officials have lost all sense of context or proportionality. In the space of a week we have had two women fined for driving five miles to take a socially distanced walk and a woman fined and cautioned1 for taking her daughter for a walk on the beach after the police ran her car licence plate to determine that she lived 7 miles away. We have also had the announcement that lying to border officials about where you have just returned from can result in imprisonment of up to 10 years. A year ago anyone reading this about a future Britain would have assumed that it was from an implausible film plot where the UK has descended into some futuristic dystopian nightmare of a police state. Granted the police have, on both accounts, had to apologise and withdraw the fines because in fact the law does not actually stipulate a limit on the distance you can drive to exercise. The point is that the police thought their actions were justified and proportionate. This overreach is not just confined to Covid issues. In the same week a man who thought he was performing a civic duty by clearing the leaves from the public pavement in front of his house and scattering them in a nearby wood was caught on camera and fined £150 for fly tipping. The council’s explanation was that whilst leaves are biodegradable they are still in fact considered to be ‘waste’. The public will now have to take the chances with the wet slippery leaves outside his house since the same council that fined him is obviously not performing its civic duty to keep the pavement clear! No one in the council seemed to have thought that sticking to the letter of the law was, in this case, counter-productive.
There has been a lot of comment recently that the pandemic has brought out the worst in our public officials who seem to revel in applying punitive action for alleged offences without any attempt to rationalise their actions. The fact that this regulatory fervour is what awaits a weakened events industry as it struggles back is alarming in itself. The wider point however is that this is merely the manifestation of a steady ratcheting up of the amount of regulatory compliance based law on companies and the punishments for transgression that has been going on for the past decade and more.
Consider the imposition of Construction (Design and Management) Regulations (CDM) on the events industry in 2015. The HSE freely admitted at the time that it was not trying to address a particular safety issue, it was merely aligning events with how the EU Directive, which sits behind the law, is applied in Europe. The only reason CDM needed reviewing in the first place was because it was badly written and was regarded as too heavy handed. More significant was the new sentencing guidelines for health and safety offences in 20162, which a recent Sentencing Council Review has shown has increased fines across the board by more than tenfold for larger companies. The NEC Group got a taste of this last year when the ICC was fined £400,000 after a rigger received a head injury from a falling object. Last week a Principal Contractor was fined £1.1 million after a worker fell off a ladder and suffered serious, but not ultimately, life changing injuries. GDPR introduced another tranche of compliance related law, fines for which can amount to £17.5 million or 4% of annual global turnover further adding to the burden of such laws on businesses. The penalties for individuals have also increased with custodial sentences of up to 2 years allowable for health and safety offences and up to 18 years for Gross Negligence Manslaughter. And now the so called Covid laws3, whereby a local authority officer only has to perceive a threat to public health to close an event, hangs like the Sword of Damocles over every event project.
That is not to say that there is no need for health and safety law to evolve. The Health and Safety at Work Act (HASAWA) itself and the Safety At Sports Grounds Act came into effect in 1974 and 1975 respectively in response to all too frequent mass fatality accidents. They did their job. Fatal and serious accidents have almost halved since the early eighties and in 2017 the standardised rate for workplace fatalities, at 0.52 per 100,000 employees, was one of the lowest of all European countries and compares favourably with other large economies such as France, Germany, Italy, Spain and Poland4. The Noise at Work Regulations were considerably tightened in 2005 to better reflect new understanding of the hazard and the life changing disabilities that can be caused by exposure to noise. In 2008 The Corporate Manslaughter and Corporate Homicide Act (CMCHA) was introduced by which corporations, not just individuals, could be brought to book for workplace fatalities. The law has its flaws but it has no doubt focused the minds of corporate boards in terms of the prevention of serious accidents. In 2011 a government review found that that UK health and safety law was broadly fit for purpose5.
Whichever way you look at it, however, the sum total of criminal law liabilities on businesses, their directors and their employees have significantly increased in recent years which places a considerable additional burden on sectors like the events industry due to its hands on operational nature. Even assuming the Covid laws become redundant, the sunset clause6 still allows them to remain in place for at least another year and that can be extended. Other challenges lie ahead. New fire safety laws are being brought in post Grenfell and the proposed Martyn’s law will add responsibilities and liabilities in criminal law on event business and event managers for managing security in respect of terrorist threat. We need to look closely not just at the requirements for compliance but the penalties for non-compliance and we have yet to see the sentencing guidelines that will be applied to these new laws when they come into force.
With accident rates falling we need to challenge the need for ever more rigorous enforcement of new and existing laws or at least lobby to ensure that they are aimed at outcomes on which both government and the industry can agree on. The UK in general has a very well developed workplace health and safety culture. Many large corporations have corporate responsibility and sustainability programs not because it is the law, but because it is good for business. The events industry has often led the way with very well-established best practice guidance some of which it has exported to markets overseas with less well developed health and safety work practices. It begs the question why legislators feel that they need to break down a door that is already partially open?
The problem is that there seems to be a public appetite for ever more onerous laws and punishments for corporate wrong doing and governments appear to be happy to feed that appetite. However, not all health and safety law is good law. CMCHA was introduced in response to a number of large-scale disasters, including the Piper Alpha oil rig disaster, the Kings Cross station fire and the sinking of the P&O Ferries' Herald of Free Enterprise. The intention was to target large corporations but it has perversely had the opposite effect of targeting small companies and their directors. Over 12 years on and there is no sign of a rethink. All businesses need to be mindful of the regulatory environment in which they operate but the events industry is particularly vulnerable due to its high profile and operational nature. Everyone professes to want exciting events but an element of that excitement is a degree of unpredictability and risk. Event businesses can only mitigate risk not eliminate it altogether. If our event businesses are to thrive post pandemic we need the DCMS to provide a genuine vehicle for engagement with government to ensure that our interests are being represented. In the immediate future this means shelving the Covid laws and then facilitating engagement with the relevant ministers in the Home Office which is ultimately responsible for the proposed new Fire Safety and Security laws. The events industry does not have a perfect health and safety record by any means but more law and higher pentalties is not necessarily the answer.
- The caution was not necessary either as her alleged offence was not an arrestable offence
- Sentencing Council - Health and Safety Offences, Corporate Manslaughter and Food Safety Offences Definitive Guidelines
- Local Authority Powers to Impose Restrictions: Health Protection (Corona Virus, Restrictions) (England)(No.3) Regulations 2020
- The Löfstedt review by Department of Work and Pensions 2011
In public policy, a sunset provision or clause is a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law. Sunset clause on Covid laws is set for 2 years.