§ 7.26 p.m.
§ Lord Harrison rose to ask Her Majesty's Government what measures they will take to alleviate the recent rise in employers' liability insurance, required for small and medium-sized enterprises by insurance companies.
§ The noble Lord said: My Lords, I am very pleased to introduce this short debate on employers' compulsory liability insurance and to highlight the devastation that the recent steep rise in premiums has had on small businesses throughout the land.
§ At the spring meeting of the All-Party Group on Small Business, we heard some dreadful stories of otherwise viable small businesses going to the wall because of the exorbitant hikes in insurance premiums visited on them, often at short notice and with slender explanation or justification.
§ A scaffolding firm in southern England, employing seven people with a turnover of £300,000 went out of business after sustaining a 500 per cent hike in ELI and public liability premiums. In the previous decade, the company had made no insurance claims; its employees regularly attended CITB-accredited courses and were trained in first aid and in health and safety; moreover, the firm boasted a clean health and safety audit. All that was to no avail. An exemplary small business was gunned down by the enemy aircraft fire of explosive insurance premiums.
§ A second firm in Cornwall ran a successful care home, with nine staff and a turnover of £300,000. That firm had also had no claims since the start of its business some eight years before. It, too, was exemplary in putting its employees through relevant NVQ courses and health and safety training. It, too, was torpedoed below the water line by a rise in premiums from £2,000 to £6,000. As a consequence, it was forced to close down for two weeks until it could find alternative insurance, embarrassing the firm as well as the local social services, which depended on it.
§ The insurance industry insists that the huge rise in premiums is attributable to persistent underwriting losses amounting to £1 billion in the past three years; compensation inflation which has scaled double 524 digit rises in the past decade; catastrophic events such as 9/11; and a collapse in investment returns. Those reasons are hardly the fault of the small businesses that seek the insurance. Indeed, were I being impish, I might ask the insurance companies whether they were properly and sufficiently insured.
§ To that list may be added other factors feeding the rise in premiums: lack of capacity in the UK insurance market due to poor investment conditions; poor underwriting; lack of recognition of quality risk-management procedures; the abandonment of the limits of indemnity in employers' liability cover; the fact that some traders, such as roofers, lack the opportunity to wrap up ELI in, say. their property insurance; and the loss of mutuality from the UK insurance market.
§ However, I am heartened that the insurance industry is beginning to address some of the problems thrown up by the hike in premiums and to offer solutions. Let us take the example of renewal periods. The firms that I cited earlier were imperilled by the failure to be given sufficient notice of impending premium hikes. The small firms' associations suggest that a month is the minimum period needed. The insurance companies, in the form of the ABI, are advising their members that three weeks should be an advisory minimum. Do the Government agree, and should that be statutory?
§ Secondly, small firms regret that their premiums are fixed without reference to proper risk assessments for individual firms. Happily, the insurance industry is now engaged with various trade organisations to fashion a more sophisticated method of analysing risk for determining final premiums.
§ Thirdly, small firms complain that insufficient credit is given to their excellent no-claims records and the maintenance of good health and safety and environmental standards. Will the Government strengthen the need for such assessments, thereby encouraging best business practices, as well as cheaper premiums?
§ Fourthly, do the Government agree with the view expressed by the insurance industry that Britain is poor at rehabilitation—that is, at getting people back to work quickly after they have sustained a workplace injury?
§ Finally, are the Government sympathetic to the insurance industry's desire to separate long-tail from short-tail occupational disease problems? If they are, how might such a long-term contingency be funded?
§ Perhaps I may now float some other suggestions which might help. Can the Government do more to improve investment in the insurance and reinsurance industries so that capacity is increased, competition sharpened and premiums reduced? What can the Government do to encourage compulsory but non-selective arrangements for insurance among affinity groups—typically trade or small firms' associations— so that premiums are lowered and burdens shared?
§ What can the Government do to encourage new mutual insurers, perhaps with some government pump-priming, to assist authorisation by the FSA of effective reinsurance programmes? Could that same arrangement apply to new captive insurers, including 525 government themselves through an appropriate independent government body, helping SMEs to gain insurance while laying off claims to the major reinsurers? It would be a kind of small firms insurance company analogous to the current student loans company.
§ Can the Government influence major UK liability insurers to explore more deeply the opportunities arising from co-insurance arrangements? Can the Government help to promote low-cost risk management? Can we, for example, encourage the use of local authority and government health and safety officers to certificate firms' potential insurance risks? Such experts are already working at the coal-face by inspecting relevant premises. Finally, can the Government encourage—even legislate—to ensure the existence of no-claims discounts, which, to my utter astonishment. I understand to be almost wholly absent from the insurance market?
§ I now turn to the small businesses themselves, whose representative organisations must shoulder the responsibility of ensuring that their members do, indeed, take out sufficient insurance to protect their businesses. It is alarming that some 1 per cent of firms fail to take out any kind of ELI. Worryingly a report in yesterday's Financial Times suggested that UK firms have purchased an average of 19 per cent lower limits of cover in the past 12 months because of the hike in their premiums for general insurance.
§ As an aside, can the Minister explain why the percentage of payroll paid by British firms for employer liability insurance is significantly and surprisingly lower than that paid by our EU partners? Britain's 0.2 per cent plays France's 2.25 per cent, for example. That looks like a competitive advantage. Is that right? It would be helpful to know. These statistics were provided by the Association of Personal Injury Lawyers which, in turn, I asked to justify the fact that some 40 per cent of compensation monies go to the lawyers rather than to the claimants. That seems to be an unjustifiable imbalance.
§ While I am on terrain legal, I ask the Government to comment on the role of the courts which, of course, have been instrumental in fostering inflated double-digit claim settlements. Has their role featured in the Government's recent survey of employment liability insurance? I know that the Government reached some interim conclusions in June of this year—they also published an agenda for action—but can my noble friend say when the surveys will be completed and indicate the tenor of their final thinking? Finally, will the Government expand on the business impact of their plans for the recovery of NHS costs for accidents in the workplace and for corporate manslaughter?
§ We have a Government wholly committed to small businesses and an insurance industry that wants to be so. Proper insurance is the social right of all workers and the bedrock of the healthiest of small firms. We can and must all work together to tame the unguided missile of exploding insurance premiums that has recently, and so unwarrantably, grounded too many of Britain's finest small firms.526
§ 7.37 p.m.
§ Baroness Byford
My Lords, business insurance is normally well outside my remit. As a result I have spent some years in blissful ignorance of its importance and of the difficulties facing industry today. However, recently, like the noble Lord. Lord Harrison, I have begun to hear tales of small firms going under because they could not find the money to pay a hugely increased premium for statutory cover. Most rural firms are small to medium-sized businesses and I was concerned to realise that some of them appear to be in serious difficulty over paying for cover. Also insurance costs form a part of the increased burden on agriculture and from time to time people have muttered to me about it, but as the weeks go by the muttering is becoming stronger.
I am grateful to the noble Lord, Lord Harrison, for supplying an incentive to find out about this subject and to express our thoughts tonight. Insurance companies calculate each firm's premium against its wage bill modified or increased by accident records from previous years. Companies in high risk activities pay more than the rest. The National Federation of Roofing Contractors has searched its survey data for me and the results show a rise in premiums for an average two-man firm from £595 in 2001 to £1,600 in 2002 and to £2,050 in 2003. That is a 250 per cent increase in two years for very small firms. It has calculated the increase across all firms in the federation as 255 per cent, and rates are set to rise even further.
The Association of British Insurers has emphasised that investigations by both the Office of Fair Trading and the Department for Work and Pensions have cleared the insurance industry of wrongdoing. The rise in charges is due to a number of factors, any one of which would have been unsettling but, coming together, they have proved literally irresistible. Rising claims and pay-outs have averaged £1.47 for every £1.00 paid in premium. Levels of compensation payments granted by the courts have increased. The September 11th and other disasters, natural as well as manmade, have caused these increases and steep falls in income from investments.
As the problems have mounted, the numbers of investigations have begun. If small businesses, particularly those with a higher than average accident or health risk, are to survive these studies must yield practical results, supported where necessary by government.
Farmers are constantly urged to diversify. Agriculture, sadly, has a high accident rating. It also has a poor health record when one considers zoonoses and chemicals such as organophosphate. In many cases diversification takes the form of concentration on particular activities—such as, in farming, using tractors with a variety of heavy implements, hedging and ditching, tree felling and lopping, contract milking and sheep rearing. Too often these are done by one person working alone.
The Association of British Insurers is looking into the possibility of funding insurance against occupational disease separately from employers' and public liability. Is 527 the Minister in a position to assure us that the Government will consider sympathetically any such proposals?
One of the worst statistics given to me is that 40 per cent—more than one-third—of the cost of claims goes on legal expenses. The noble Lord has just referred to that. I wish I understood how that can be, but perhaps the Minister will reassure the House that any legislative changes found necessary to reduce this factor will be speedily introduced to a timetable which we can all agree.
I understand that work is under way to develop a system of injury compensation that does not deter the claimant from the active pursuit of rehabilitation. It is surely a nonsense that claims should be deferred until it is considered that the results of the injury cannot be wholly cured. How much better it would be to settle a claim for the occurrence of the injury; to encourage rehabilitation, perhaps by paying some of the expenses; and to resort to court only if total recovery has been proved an impossibility after a full course of the correct remedial treatment. Will the Minister confirm that the Government will look favourably on such a proposal?
I turn briefly to another issue which is not directly related. It is a hugely important issue. It is yet another cost on the horizon for small and medium-sized businesses; namely, the Environmental Liability Directive. UK legislation already requires businesses to adopt a responsible approach to their potential environmental risks, but the proposed directive will require a stricter responsibility. It is argued that the directive must contain a reasonable and damageable framework that is quantifiable and insurable. The present proposal would expose businesses to unlimited liability claims for damage to the biodiversity that is difficult to define and which is not quantifiable. Smaller businesses risk facing disproportionate and ruinous claims against which they may be unable to insure themselves. Insurability is a prerequisite for any form of liability.
I do not apologise for raising that issue tonight because the directive is likely to hit us before the end of the year. That is on top of the problems that the noble Lord, Lord Harrison, has so clearly defined tonight.
I am sure that noble Lords taking part in tonight's debate are strong supporters of small and medium-sized businesses. We should be seeking to ensure that as light a touch as possible is imposed—the noble Lord, Lord Harrison, rightly used the words "devastating effect"—in particular on those who are going from a one-man business to taking on others. It is a huge leap. They have to cope with additional regulation, extra taxation and time-consuming costs.
The noble Lord, Lord Harrison, has given us the opportunity to highlight some of these difficulties which face small and medium-sized businesses, for which I thank him.
§ 7.44 p.m.
§ Lord Haskel
My Lords, I, too, congratulate my noble friend on initiating this timely debate. The difficulty about employers' liability is not simply a matter of the insurance market not working; nor is it purely a matter of concern to those employing people or running a business. No, the problem with employers' liability insurance is yet another manifestation of how far away we are from developing a civil society: a society in which there is a fair balance between rights and responsibilities.
The slogan at the Labour Party conference last week was,A Fair Future for All".Surely, that was about creating a fair society that believes in social justice. The Tories agree. Noble Lords opposite will have noticed that the slogan at their party conference was,A Fair Deal for Everybody".Building social capital from fairness, as Professor Putnam and others have put it, is obviously high on the political agenda.
So what on earth has employers' liability insurance got to do with all that? It is quite simple. To his list of causes, my noble friend Lord Harrison could have added the flourishing compensation culture as one of the main reasons for the increase in liability insurance premiums. That culture emphasises the cult of the individual; rights, rather than responsibilities; and anyone who wants to show restraint is told that they are foolish because everyone is at it.
Of course we all strongly support the principles of access to justice and fair compensation for injured parties. Yet a fair society requires people to show restraint. A fair society requires us to show concern for each other, community spirit, common values, tolerance and respect. That is what social capital is all about. But all that seems to be forgotten where employers' liability is concerned.
It is this absence of individual responsibility that stimulates the blame culture, with the result that every accident or misfortune becomes a claim and society is the loser. At a fringe meeting at the Labour Party conference, Mr David Hooker, a senior executive at Norwich Union, made that point and told us that £10 billion per year is paid in compensation. We are all paying, because that is equivalent to £1,000 per household. He also said that 40 per cent of that goes on legal costs. It seems that the blame culture and the adversarial nature of our legal system are feeding off each other to create a less fair society.
In his speech to the party conference, when talking about the exploitation of asylum seekers, the Prime Minister spoke about the legal aid gravy train. Is there another legal gravy train that exploits people who have had accidents or misfortunes? Judging by the advertisements in the press, on radio and on television seeking people who have had accidents or misfortunes at work, there could well be. However, the agreement announced yesterday between solicitors and insurance companies on fees relating to road traffic accidents could be a sign that some good sense is emerging.
529 But what is that to do with the Government? We are not a nanny state. No Government can be the insurer of last resort. Surely it is up to people to run their businesses and organisations properly so that accidents do not happen. It is up to them to work with insurance companies and the Health and Safety Executive to provide decent standards so that misfortunes do not occur.
Of course, conscientious and responsible employers should be rewarded with lower premiums. I am delighted that work is going on to achieve that directly with employers and through their trade organisations. Rightly, work is being done to reduce losses by speeding up the way claims are settled so that those who have suffered accidents can be rehabilitated far more quickly than at present. I agree with my noble friend and the noble Baroness, Lady Byford, that quick rehabilitation could be a way of reducing premiums. In the same way that employment tribunals have speeded up and cut the costs of disputes relating to employment, so perhaps compensation tribunals can do the same for employers' liability claims.
I am delighted that the Better Regulation Task Force is reviewing the compensation culture. In doing so, I hope that it will review the whole business of admitting liability. Saying sorry comes naturally to most of us. Aggressive lawyers and their sometimes unqualified intermediaries have made employers very nervous of saying sorry and showing concern when accidents happen in case that is interpreted as admitting liability. It does not and it should not. Although often apologies and concern are all that is required, employers are nervous of showing it, and lawyers advise against it.
I agree with my noble friend Lord Harrison that the long-tail disease risk is a difficult problem. A solution must be found incorporating a cut-off date or a separate fund. Industry will then be able to move forward.
So is employers' liability insurance a matter for the Government, or is it best left to the insurance companies, employers and the Health and Safety Executive? I think it is a matter for the Government, not because they should take financial risks, but because, as I tried to show in my opening remarks, the issue stands in the way of a fairer civil society. More litigation means less mutual trust. Accidents and misfortunes occur, and a fair society requires employers and employees to take responsibility for them, yet at the same time to show restraint. After all, the Government have an anti-social behaviour policy that is about the same thing: a fair civil society. In fact, we are currently working on the Committee stage of the Anti-social Behaviour Bill in your Lordships' House. We are trying to achieve the balance between intrusion into private life, regulation and personal liberty. We are legislating because we all agree that anti-social behaviour reduces the social capital on which our society depends.
The blame culture manifested by the difficulties relating to employers' liability is a more sophisticated form of anti-social behaviour. After all, it is part of our 530 progressive agenda to move towards a fairer society where we balance our rights with responsibilities and duties. So I hope that the Minister will tell us what the Government intend to do. Do they see it as. people abusing their rights or justifiably exercising their rights?
§ 7.53 p.m.
§ Lord Hunt of Wirral
I, too, congratulate the noble Lord, Lord Harrison, on securing the opportunity to debate the subject of employers' liability insurance, particularly in the context of the vital sector of small and medium-sized enterprises.
I wish to follow the lead of the noble Lord, Lord Haskel, and to point out, after his very careful and considered speech, that he is right. We must not see the perceived employers' liability crisis in isolation. I see it as he does; that is to say, as part of a more sinister threat, namely the compensation culture.
We have already debated the employers' liability marketplace. Reference has been made to the detailed report of the Office of Fair Trading, which found that premiums had risen substantially in 2002 at an average of 50 per cent for employers' liability, 30 to 40 per cent for public liability and 30 to 60 per cent for professional indemnity. They reported that there were also wide variations in the increases observed, with some premiums rising by over 200 per cent. That is very much in line with what my noble friend Lady Byford said. But, as my noble friend pointed out, both that report and the one by the Department for Work and Pensions concluded that the evidence was of market adjustment rather than of market failure.
Employers' liability, therefore, must be viewed—as the noble Lord, Lord Haskel, pointed out—not alone, but in the broader context of how we award damages and compensate those who have been injured. Here I commend the work of the Association of British Insurers and the International Underwriting Association, which have conducted ground-breaking research, not the least of which is the bodily injuries study. That study recognised the problems that have arisen as a result of the double digit rise in the total cost of compensation over a lengthy period of years.
The noble Lord, Lord Harrison, pointed out, very fairly—and how well briefed he was on the subject— that there have been persistent underwriting losses of nearly £1 billion in the past three years. That, allied with the double digit compensation inflation and a collapse in investment returns, has resulted in the situation that we are now debating. However, I add one rider: if we compare the UK with other jurisdictions in the developed world, we still have one of the lowest costs of workplace compensation as a percentage of payroll.
How right the noble Lord, Lord Haskel, was to point out the environment around which we are now speaking; for example, the abolition of civil legal aid and the introduction of conditional fee agreements, in which the insurer has to pay not only the success fee but the insurance premium. The insurers therefore 531 have to pay the costs of the claims that they win as well as those that they lose. I pointed that out to the noble and learned Lord the former Lord Chancellor when we debated the introduction of conditional fee agreements, and now we are sadly seeing the results— 40 per cent of compensation, as has been pointed out, is paid out in claimants' costs. Those outrageous advertisements on television saying, "Where there's blame there's a claim" and "It won't cost you a penny", have cost the individual claimants, consumers generally and the country dear. The Courts Bill is now going through the House, which may result in increasing costs.
As one of the leading insurers has pointed out to me:The extent of capital allocation required for product classes which are very capital intensive commerce—such as EL—will certainly come into particular focus as a result of the UK market's approach to economic (risk-based) capital requirements due to be adopted by carriers in 2005".For all sorts of reasons, therefore, the picture that lies ahead is a serious one and it is going to get worse.
What can be done? I have the honour of being chairman of the Case Management Society for the United Kingdom and a trustee of the British Occupational Health Research Foundation. We certainly believe that rehabilitation is part of the answer in tackling this problem. Please can greater encouragement be given to early and prompt rehabilitation and assistance programmes? We may need legislation on that. Any such initiatives have to be led by the employer with government support and, if needs be, new legislation to encourage greater use of rehabilitation by the injured parties and their advisers. Such schemes will have to be closely linked with any entitlement to social security benefits.
Other countries in continental Europe have a far less adversarial compensation system and those injured get early and prompt rehabilitation and treatment. Surely that is what we want to see in this country.
I have also just chaired the annual conference of the Institute of Risk Management. Reference has already been made to the fact that we must do something about the rising cost of injuries at work and in the workplace and of sickness at work. As the TUC has pointed out on many occasions, the bill is enormous. Risk management presents us with part of the answer. One of the UK's leading general insurance brokers said that we needed to ensure that when insurance companies considered cover for individual companies, they took into account the extent of the risk management procedures in that company. They said:There should be a new focus on risk management. Independently measured and approved standards should be introduced, giving insurers evidence that an insured organisation works to minimum standards".That, of course, as was pointed out, must mean something.
However, I am concerned that some companies have not taken out employers' liability insurance cover. It is compulsory, and there is a criminal offence. However, that is not sufficient. Failure to take out appropriate EL cover can incur a fine of up to £2,500, 532 but there is no civil duty on the company or its directors, with the result that an injured employee has no remedy against the directors personally if they fail to take out employers' liability insurance. I hope that the Minister will agree to explore that.
We must consider employers' liability insurance not in isolation but in the broad context of our compensation culture. As the noble Lord, Lord Haskel, pointed out, we now have David Arculus's Better Regulation Task Force examining the compensation culture. It started its review last week. I hope that that report, together with the second report from the Department for Work and Pensions, which is due out in November, will enable us to bring order and clarity to the chaos. I believe that I speak for all noble Lords when I say that that must be done.
§ 8.2 p.m.
§ Lord Laird
My Lords, I join other noble Lords in thanking the noble Lord, Lord Harrison, for initiating the debate. He has done us a service.
Small and medium-sized enterprises represent nothing less than the mainstay of Northern Ireland's economy. The Federation of Small Businesses has estimated that 99 per cent of businesses operating in Northern Ireland fall into the SME category. They provide 79 per cent of the Province's employment and account for 75 per cent of turnover. The central importance of SMEs to sustaining and further developing Northern Ireland's economic activity can be in no doubt.
It is, therefore, particularly alarming that those businesses, which are at the heart of Northern Ireland's economy, should be faced with crippling hikes not only in employers' liability insurance but in public liability insurance. The effect should not be underestimated. The increases represent a major threat to the survival of many small and medium-sized businesses and a major threat to Northern Ireland's overall economic performance.
The Ulster Unionist Party has endeavoured to raise the issue with the Government at every available opportunity. My colleagues in another place have worked tirelessly to put the issue firmly on the Westminster agenda and raise awareness of the particular difficulties for SMEs in Northern Ireland. We have all received much correspondence from businessmen who are extremely concerned that they will not be able to meet soaring insurance costs.
It is estimated that, in the past year, over a quarter of businesses in Northern Ireland had to meet an increase to their premiums of more than 100 per cent, with some businesses even having to cope with a massive 500 per cent increase. For example, Intermatic Manufacturing Limited in Larne saw its employers' liability insurance increase from £3,500 to a staggering £17,500 in the past couple of years. Another small business not only had to cope with a rise from £278 in 2001 to £1,550 this year, but also is now struggling to get a realistic quote for public liability insurance.
Such increases are not only extremely cumbersome in the short term, but are completely unsustainable in the long term. No SME will be able to cope with a huge 533 rise in premiums without having to offset the payments in other ways. There exists a real fear that unless the issue is addressed urgently employers will lay off workers, put a freeze on recruitment or even stop trading altogether. If the ongoing crisis of increasing business insurance costs is not halted soon, it will be only a matter of time before there is an adverse effect on employment prospects, with firms reducing investment, for example, in such essential services as staff training.
I welcome the Government's review of the employers' liability compulsory insurance scheme, particularly the interim report's proposal for an agenda for action. However, noble Lords should be aware that this is not an issue that can be left aside while we await further reports, reviews and recommendations. Immediate action is required. The particular difficulties which Northern Ireland businesses face in terms of obtaining affordable insurance must be urgently addressed. If not, many of our small and medium-sized businesses will face an extremely bleak and uncertain future.
Reasons often quoted to explain the increase in business premiums are global price increases, as a result of the aftermath of September 11th 2001, and, particularly in Northern Ireland, the higher level of compensation payments awarded against employers by the courts. The Government could certainly do more to address the growing compensation culture and the negative impact that this has had on many businesses. Future costs awarded by the courts in compensation cases must be more reasonable.
I call on the Government to reform the out-dated employers' liability legislation as a major step in the right direction. I could also suggest that another reason for the huge increase in premiums might be the monopoly that a small number of large, international companies now have on the insurance industry. With virtually no competition, these companies can charge more or less what they wish. What measures are the Government prepared to take to address this system of monopoly and to ensure that Northern Ireland's businesses are offered a more competitive insurance industry?
The insurance industry itself will have to take more responsibility—if only to protect its own market base—to ensure that business premiums are realistically affordable in Northern Ireland. While a voluntary code of practice exists, and most insurance agencies adhere to it, I also ask that the Government strengthen this by promoting and enforcing a more rigid code that must be followed by all in the insurance industry at all times.
I would also like to take this opportunity to raise a further issue of concern to Northern Ireland's small and medium-sized businesses, which is undoubtedly in breach of the insurance agencies' voluntary code of practice. The police service in Northern Ireland have noted a marked increase in the practice of "grossing up", with some companies adding as much as £18,000 to an insurance premium in the name of handling costs. Perhaps the Government could make a 534 statement on what measures are in place to halt this malpractice? Are any changes to relevant legislation being planned to address the issue? I urge the Government to meet with representatives from the PSNI to discuss the extent to which "grossing up" has become a part of Northern Ireland's insurance industry.
Northern Ireland's economy has undoubtedly blossomed over the past five years, benefiting from a devolved Assembly and Executive, a significant decrease in violence and a welcome increase in optimism. Of course we all recognise that significant challenges still lie ahead before we can achieve stable, long-term prosperity and emerge as a true competitor in the global market. Crippling insurance premiums, however, are clearly an unnecessary barrier to our success and one which the Government can and must help to alleviate.
§ 8.10 p.m.
§ Baroness Maddock
My Lords, I, too, congratulate the noble Lord, Lord Harrison, on securing this debate. We have had an interesting discussion, with noble Lords approaching the matter from slightly different directions. First, I declare an interest as a vice-president of the National Home Improvement Council, which will be reflected in some of my later comments.
In his opening speech, the noble Lord, Lord Harrison, set out graphically many of the problems facing businesses and went on to suggest some interesting ideas. I was particularly interested in his suggestion that no-claims discounts should be offered in this area. I heard a story about a roofing contractor who complained bitterly about his premium going up. When he spoke to the insurers, explaining that he had not had an accident for many years, the insurers responded by saying, "Well, in that case you are about due for one, aren't you?". That highlights some of the problems people face with insurers. The noble Lord also raised an issue referred to by many noble Lords: the amount of money in claims that ends up being paid over in legal costs. That is something about which we are all very concerned.
The noble Baroness, Lady Byford, reminded noble Lords that these problems are equally difficult in the countryside, referring to an area she often discusses in this House. The noble Lord, Lord Haskel, gave a much more philosophical presentation. He reminded us about issues surrounding social justice and how we all want to see a fair and civil society. The noble Lord, Lord Hunt, continued that theme, referring to the blame culture and the wider related issues. The noble Lord, Lord Laird, reminded us of the position in Northern Ireland, and the particular importance of small businesses to that economy.
In my role as a vice-president of the National Home Improvement Council, I have been fully informed about many of the matters that have been raised in this debate. I refer in particular to reputable trade bodies in the construction sector, especially the National Specialist Contractors Council, covering 28 specialist trade associations, including high-risk trades such as 535 scaffolding and roofing. As spokesman for housing on the Liberal Democrat Benches, I am concerned about the situation that was outlined in the debate. Housing output is at an all-time low and we cannot afford to see businesses going to the wall when we are so short of skilled workers in the construction industry.
At the start of the present employers' liability insurance crisis in June last year, the insurance industry was quick to transfer the blame for spiralling premium costs on to the construction industry's health and safety record. That generalisation took no account of the many specialist companies which have done their best to maintain and improve their high standards of health and safety and risk management.
I refer in particular to the National Federation of Roofing Contractors, mentioned earlier in the debate. The members of that association cover 45 per cent of the United Kingdom's roof contracting industry in terms of market turnover. By September of last year, the federation had carried out a detailed survey of accident records among its members. It showed that only 3,600 working days had been lost due to injury and industrial illness out of a total of almost 2.5 million days generated by the workforce for the year 2001–02. Only two fatalities were recorded by federation members, compared with a total of 37 recorded that year by the Health and Safety Executive. I understand that the federation's accident survey for 2002–03, although not yet complete, will record a similar pattern of comparative competence.
The Department of Trade and Industry, the Office of Fair Trading and the Department for Work and Pensions have each produced reports looking at liability insurance. The latter's review report was published on 3rd June and gives one strong, underlying impression: that the insurance industry— and here I disagree with some noble Lords who have spoken in the debate—has not been without fault in the management of employers' liability insurance since it became compulsory in 1969. This point is supported by the Association of Personal Injury Lawyers, which, in a fact sheet of recent date, stated:It should not be forgotten that many of the problems with the Employer's Liability Insurance market are of the insurance industry's own making. It is now widely accepted that Employer's Liability Insurance was mismanaged by the insurance industry. It was sold as a loss leader and any shortfall was offset by the then buoyant stock marketAnd, of course, matters have been made worse by September 1lth, floods and the other issues raised by noble Lords today.
Faced by the consequences of these actions, the insurance industry has sought since June 2002 to recoup its losses through the whole market, but it has been its individual and separate policies towards vital high-risk trades within the construction industry that have generated the worst hardships. Again I cite the evidence of the National Federation of Roofing Contractors, which was recognised on page 6 of the Department of Work and Pensions review report. In the year 2001–02, the average premium rises for employers' liability compulsory insurance for its 536 members was 161 per cent—other noble Lords have also referred to other large rises—but many were greater, much greater, particularly for those involved with felt roofing for flat roofs and the removal of old asbestos roofs. I understand that the federation will shortly produce a new survey for the year 2002–03 which will show a similar picture.
If we look at the issue in money terms, the 800 trade members of the National Federation of Roofing Contractors spent £9 million on insurance in 2001; in 2002 they spent £17 million; but in 2003 they will have to find £27 million. This should be compared with the real risk ratio discovered during research carried out on behalf of the reinsurance market relating to these same contractors.
The Department of Work and Pensions review report of 3rd June set out an agenda for further work, with a second report promised this autumn. The agenda includes further research on the separation of long-tail illness claims from accident claims—an issue which has been pursued further this evening—and a better service from the insurance industry to its clients to give them more notice of reinsurance. In some situations, people have had no time to shop around for better rates because they have been notified so closely to the renewal date.
Autumn is with us now and, as I and others have indicated today, high-risk trade will continue to be hard hit by premium rises. I hope the Government will be able to assure the House that consultation, parallel activities by other bodies and more direct action on their part will have succeeded in stabilising employers' liability compulsory insurance premium rises on behalf of our sorely pressed but much needed high-risk construction specialists.
It would be very helpful if the Government were to ensure that all the contractors they use have employers' liability compulsory insurance in place. All main contractors should satisfy themselves that their sub-contractors have the appropriate insurance.
§ Baroness Maddock
My Lords, I have been lobbied by people working in this area and one of the issues they have raised with me is whether the Government could ensure that that happens. I do not know whether they have any evidence, but I suggest that they would not raise the issue with me if they did not. I shall certainly ask them and let the Minister know. I hope that it is not the case. If the Government were to insist on such insurance they can say to everyone, "Look, we are doing this and ensuring that this happens". It would be quite difficult to leave the issue for the Health and Safety Executive to deal with.
I hope that the Minister will able to answer the points that I have raised and I look forward to hearing what she has to say in relation to points raised by other noble Lords.
§ 8.20 p.m.
§ Baroness Miller of Hendon
My Lords, I begin by declaring an interest. I am a former member of the board and a former patron of the Small Business Bureau and my husband occasionally drafts its responses to consultation papers from the DTI and its agencies. I believe that that declaration is relevant to this important debate, which we should be most grateful to the noble Lord, Lord Harrison, for initiating because of the devastating effect that the current situation with regard to employers' liability insurance is having, particularly on small and medium enterprises.
It is worth noting that the chairman of the Federation of Small Businesses recently said:Small firms are facing another round of huge premium increases that will force some out of business".The noble Lord, Lord Harrison, mentioned that. The chairman continued:The ongoing crisis is having an adverse impact on employment prospects and firms are reducing investment in crucial areas such as staff training".The report in the Small Business News by the FSB indicates that a quarter of employers have found it difficult, or even impossible, to find employers' liability insurance at any price. Faced with the alternatives of paying prohibitively high premiums or closing down, 8 per cent of those surveyed by the FSB are illegally trading without compulsory cover. One in five of the small firms surveyed has laid off employees or put a freeze on recruitment as a result of escalating premiums.
The figures of the Department for Work and Pensions state that Zurich Insurance, the Association of British Insurers and the British Insurance Brokers Association say that the average increase in EL premiums across all types of risk over 2002 was between 40 and 60 per cent. Norwich Union has estimated its own average increase in EL to be slightly lower, at 30 to 45 per cent.
No matter what source one consults, however, there seems to be unanimity about the reasons, as the noble Lord, Lord Haskel, my noble friend Lord Hunt and various other noble Lords have said, such as the compensation culture. There is another reason, which my noble friend Lady Byford mentioned. First and foremost, as the National Federation of Roofing Contractors—an inherently physically dangerous trade—has forcefully told me, is the failure to distinguish between industrial accidents and industrial diseases.
It is relatively easy for actuaries to forecast the risks of industrial accidents. There is a long historical fact base on which they can rely. However, some industrial diseases are impossible to forecast. I am not just talking about physical diseases that only emerge many years after exposure to working environments that had hitherto been considered to be safe according to what was best practice at the time. I mean, for example, illnesses such as work-related stress which has in recent times been the subject of much litigation.
538 It is interesting that the courts are taking a firm line. Not only is the onus of proof firmly on the claimants but, to be culpable, the employer must positively be aware of the susceptibility of the employee to the problem. But it is not enough for an employer—or, rather, his insurers—to win a dubious claim, even one for a physical injury, such as a trip or a fall, or where the employee was wholly or largely to blame for his misfortune. That is because of the huge cost of successfully defending such a claim against a litigant who is being financed by a "no win no fee" lawyer, or who is seduced into making a claim he would previously never have considered by the sort of ambulance-chasing adverts which we see every day on the television or hear on the radio. Indeed, my noble friend Lord Hunt of Wirral mentioned them and called them something terrible.
The fact is that the insurance companies find it easier to settle even untenable claims and pay a sort of Danegeld to the lawyers and their clients rather than stand up and fight, which is too expensive. After all, the insurers simply pass on the cost to their policyholders in the form of ever-increasing premiums.
The compensation culture, which we are rapidly importing from the United States of America— although so far without the monstrous damages that the American juries see fit to award—is a major cause of the insurance crisis. Many noble Lords have mentioned this, including the noble Lord, Lord Laird, my noble friend Lord Hunt, and the noble Lord, Lord Haskel.
Let me add another cause which I have not seen mentioned in any of the financial articles I have read or the many briefs I have seen on this subject, although the National Federation of Roofing Contractors has done extraordinarily well at briefing all of us and has therefore had many mentions today.
The law does not compel insurers to provide employers' liability insurance. So with mergers and takeovers resulting in an ever-decreasing number of insurers, their market monopoly—as the noble Lord, Lord Laird, mentioned—coupled with the fact that employers are required by law to buy cover or go out of business, enables insurers to name their own price whether related to the risk or not.
One example is the Law Society's ill-fated professional negligence insurance scheme, under which solicitors were required to hold insurance and to hold it with just one firm. Ultimately a rebellion among solicitors resulted in the scheme being wound down and won them the right to go to the market and buy cover which took into account their individual claims records—another point that all speakers have mentioned. Insurers often do not look at a company's claims history. However, there is a lesson to be learned from that debacle.
There is a strong case for there to be an insurer of last resort to which SMEs can go to obtain cover in respect of industrial diseases—and I am not talking about accident cover—at a reasonable cost.
539 The National Federation of Roofing Contractors discovered as a result of a survey of its members in which nearly half responded that their members' insurance premiums had increased on average by 161 per cent for employers' liability insurance, 121 percent for public liability and 71 per cent for professional indemnity insurance. That trade association's response was to negotiate its own co-operative insurance scheme with the insurance industry which, it is hoped, will result in smaller, risk-related premiums for businesses participating in the scheme. "Risk related" in this case means that 12½ per cent of the industry will, they hope, benefit from the fact that, in the past five years, they have paid £9 million in premiums but suffered only £2 million in claims.
In June, the Minister for Work recognised the serious problems to which I referred at the beginning of my remarks. He published a report on the Government's review of compulsory employers' liability insurance. Having laboured for a year, the Government have produced a veritable mouse. What do the Government propose to do? To scrutinise the market? To seek raised service standards? To work with the insurance companies towards fairer risk-related premiums? To reform enforcement against insurance dodgers? To focus on legal costs? To make rehabilitation play a more important role in the compensation system—an issue which many noble Lords have mentioned today? One small ray of light in the report was the recognition that the Government have to engage with insurers to separate long-term occupational disease risks from accident risks, as I mentioned at the beginning.
I can only hope that in her reply to the powerful speech of the noble Lord, Lord Harrison, the Minister will put some flesh on all this government waffle— although the noble Baroness, Lady Hollis, never uses waffle—and announce some practical measures that will prevent small businesses, which are often described as the engine of new employment, from being slowly strangled by regulation and red tape—as my noble friend Lady Byford said—even in an area such as compulsory employers' insurance, which all sides of the House recognise is an essential protection for employees.
§ 8.24 p.m.
§ Baroness Hollis of Heigham
My Lords, I join all the other speakers in congratulating my noble friend on securing this very timely, well-informed and fascinating debate. I especially thank noble Lords who notified me of their concerns in advance. That is most helpful. I cannot hope to answer all the questions in the time allowed. However, I shall scrutinise the debate subsequently, and I hope that noble Lords will allow me to respond in writing.
Before I talk about the undoubted difficulties that have been shared on the Floor of the House tonight, it is worth reminding ourselves of the reason for compulsory employers' liability insurance. It provides an essential safeguard for all workers, ensuring access 540 to compensation in the event of an accident or injury at work. The costs of employers' liability stem from the costs of preventable accidents and unsafe working practices—cases where at least partial negligence on the part of the employer has been accepted or established. If no one is at fault or no claim is made, the state will compensate.
It may be appropriate here to respond to the comment of the noble Baroness, Lady Maddock, which took me by surprise. She said that she had reason to believe that the Government were defaulting on that responsibility in terms of their own contracts. I give the commitment that the noble Baroness asked for. We are working with the Office of Government Commerce to renew our guidance to public sector procurement officers to say exactly what the noble Baroness, Lady Maddock, proposed. Our best understanding is that what she suggested is not the case now. We shall reinforce our guidance. If the noble Baroness has any other evidence to the contrary, I should like to see it as she is quite right that such a situation would be intolerable.
Employers' liability is therefore underpinned by two principles: that the victims of negligence should receive fair compensation for their loss; and that those responsible should fund that compensation—a polluter pays principle. Employers' liability spreads that risk across business and the insurance market. In comparison with almost any overseas workers' compensation scheme it has proved sound and cost efficient for over 30 years. However, over the past year in particular—perhaps over the past 18 months— many businesses have been hard hit by significant price increases in the employers' liability insurance market. The noble Baroness, Lady Byford, identified some tonight. We are committed to playing our part in helping business in this area.
We have been leading a review on employers' liability and we have been working in close partnership with other concerned government departments including the Treasury, the Department of Trade and Industry and the Department for Constitutional Affairs. The department has also been working in close co-operation with the Office of Fair Trading, the Financial Services Authority and our partners outside government—insurers, brokers and business representatives—all of whom are equally anxious to find shared solutions.
The first stage of the review found that there was no general market failure. There was no pricing collusion and there was sufficient capital to meet market needs. However, we also found that there had been a significant cyclical change in the insurance market and in insurers' pricing policies. This was accelerated and exacerbated by a number of external factors. Our analysis is shared by the OFT and the FSA. Two indicators may illustrate that. The first is to examine past premium prices. Throughout the last cycle of the insurance market insurers sold employers' liability as a loss leader—as has been mentioned by several noble Lords tonight—part of a package of other profitable insurance products. Over this period—since the early 1990s—premiums fell by 37 per cent in real terms compared with wages.
541 Last year that trend reversed suddenly. The collapse in (he stock market and spiralling re-insurance costs combined with steady increases in compensation payments and legal costs—all mentioned by your Lordships tonight—rendered such pricing "cross-subsidy" unsustainable. Prices rose dramatically. Hindsight suggests that insurers priced short-sightedly in a highly competitive market. They subsidised premiums in a way that proved unsustainable when external factors changed. After many years of cheap cover, companies were suddenly faced with playing "catch-up" in a very short period of time and in an unexpected and uncomfortable way.
I emphasise again—as the noble Lord, Lord Hunt of Wirral, said—that it is still the case that even now the cost to small and medium-sized businesses in this country of employers' liability is still considerably lower than for our European counterparts. My understanding is that on a rough and ready basis EL might nowadays add about £150 to the cost of employing someone on £20,000 a year. In Germany the relevant figure would be not £150 but £450; in France the figure might be £750 and it might be £900 in Italy. It is worth bearing those comparisons in mind.
Having said that, as noble Lords have emphasised tonight, one problem has been the distribution of those increases, which have not fallen evenly across all sectors. Price increases have been concentrated on a limited number of companies. Nearly half of all companies had no price increase or one of less than 20 per cent. However, between 5 per cent and 12 per cent of businesses—we have heard from roofing contractors, agriculture and so on—saw premiums at least double and often increase by several hundred per cent. Those were overwhelmingly small and medium-sized enterprises, mostly in sectors traditionally associated with high accident risks.
Despite the statement by the noble Baroness, Lady Miller, I do not think that there is any evidence that cover is not available. The question is not whether cover is available, but at what price that cover comes. Although there has been no general market failure, we recognise the problem. Our aims, therefore, are: to help those businesses worst affected; to ensure that we have made the changes necessary to prevent a future market failure during the next insurance cycle; and to structure that insurance in a way which helps prevent the accidents in the first place.
My first message is the most difficult. There are no quick fixes here. Short-term action is being taken to ease problems of late renewal notices, the distribution of premium increases, and access to the market. However, at its heart the problem is one of structural pricing. Significant alleviation of that pricing problem in the short term would require price subsidy, which is exactly the approach from the market that created the problems in the first place, and is not an experiment we would wish to see repeated.
At the heart of the problem is an uncomfortable truth. All the evidence suggests that the premiums now levied by insurers are not over-inflated. They reflect the true economic cost of the accidents that continue 542 to dog UK business. However, our report identified a number of areas in which action could be taken to ease the transition through the current hard phase of the insurance cycle. Even more importantly, it identified the more deep-rooted issues through which we could deliver serious and sustainable improvements.
The noble Baroness rightly challenged me on what we sought to do, so I shall very briefly mention our aims. We seek to work with insurers to make premiums more risk-based, as noble Lords have called for this evening, rewarding firms with good health and safety practices. Better provision of information by business will also help companies to gain access to the market.
I want to put in some provisos, however. Insurers cannot inspect all small firms, any more than can the HSE without increasing the cost and therefore the premium that has to be laid on to the companies themselves. Nor is it easy to go down the route of having some tidy connection with a no-claims record, because with a small firm one cannot get a statistically significant risk analysis on that basis. If one employs two, three or four people and one person has a fatality or serious accident, that would completely distort one's record. Statistics cannot be worked with like that.
Many small and medium-sized businesses have been rightly concerned about the book rate issue, and therefore there is no incentive for those firms to improve their health and safety records and so reduce the claims. Let us take roofing, an area that has received some of the sharpest rises. The National Federation of Roofing Contractors is working with the DTI quality-assured national warrant scheme, which we hope will lead to a reduction in premiums of up to 30 per cent. That would give a subset of the book rate based around a trade association where its members meet assured quality standards. That may be a sensible and helpful way forward.
We are actively pursuing the issue of renewal notice periods with the insurance industry. We welcome the joint guidance by the ABI and the British Insurance Brokers Association. Also, we are searching for creative solutions to tackle the legal costs of processing claims. As noble Lords have rightly said, those are up by 40 per cent. We also seek, as urged by my noble friend Lord Haskel and the noble Lord, Lord Hunt, to see whether we can in some cases step outside the confrontational legal process to resolve the most straightforward claims in a simple and rapid way. As the noble Lord, Lord Laird, requested, we are also looking at the disclosure of information by professional advisers. That may also be helpful in this respect.
I was pressed on whether we could assess the case for separating accident risk from long-term industrial diseases. I understand the problem, but we should not forget that we cannot ask, nor should we ask, government to be the insurer of last resort for long-term diseases. Does any noble Lord tell me that firms would seriously engage in reducing their workers' exposure to asbestos if they believed that ultimately 543 government would pick up the bill for it? A real issue of moral hazard is involved, which no noble Lord has mentioned. It means that government cannot and morally should not go down that route. That is not to say that we should not work with the industry on other aspects, but I want to make it clear that we should not engage in policy practice which subverts the need for employers to improve their health and safety practice at work.
We are also introducing a range of proposals to improve enforcement and to police the cowboy companies mentioned. Critically, we need to change the culture of rehabilitation. As many noble Lords said— and the noble Lord, Lord Hunt, has much more experience of this than I—compared with Europe we have a good record in health and safety, but we have a poor record in terms of rehabilitation. It is important to note the evidence; for example, the Zurich rehabilitation scheme has cut compensation costs by 7 to 10 per cent and ABI believes that even greater savings are to be made.
544 The number of claims in employment liability has fallen by 16 per cent over three years. However, the cost of those claims has risen in double-digit figures. At the core is the need to use health and safety to analyse risk management to improve standards at work on the one hand, while on the other engaging in rehabilitation. If we can do that, together with working with trade associations so that they can be rewarded for their best practices, we may begin together to address some of the problems.
No one has a magic bullet but I hope that our aims are clear. They are to help business; to prevent a future market failure; and to structure this insurance in a way that prevents the accidents in the first place. We are working with our stakeholders, insurers, brokers, trade associations, businesses and unions in that direction.
It has been a busy summer. When we publish a further report in the autumn, we are determined that not only will it describe a serious programme of work that is being undertaken collectively, but it will also be a shared statement of action and intent from government and stakeholders alike.
House adjourned at sixteen minutes before nine o'clock.