Select Committee on Environment, Transport and Regional Affairs Memoranda

Memorandum by the Royal Society for the Prevention of Accidents (HSE 03)



  RoSPA is a charity, established over 80 years ago, whose purpose is `. . . to enhance the quality of life by exercising a powerful influence for accident prevention'. It is concerned not only with health and safety at work but with safety in the home, on the road, in water and leisure activities and it actively promotes safety eduction. It is a membership organisation with members and specialist committees in these five areas. It exercises influence in accident and ill health prevention, both as a "promoter" of new ideas and good practice and as a "provider" of products and services which advance and sustain such practice.

  As a "promoter" RoSPA seeks to influence the occupational health and safety agenda by: working through its National Occupational Safety and Health Committee (NOSHC); facilitating debate with other "health and safety system players"; developing policy positions; undertaking research and development projects; promoting debate by focusing on "key issues"; and seeking media coverage.

  Eighty per cent of its income comes from trading in safety products and services including training—both skills and management training; consultancy—particularly health and safety management systems auditing; information products—including its journals ("Occupational Safety and Health", "Bulletin", and "Safety Express") and a comprehensive video service; awards—which recognise health and safety achievement; exhibitions and congresses—at the NEC in Birmingham and in Scotland; and driver services—including defensive driving training. The Society also provides support to some 80 voluntary local health and safety groups.

  It is against the background of this involvement that the Society welcomes the inquiry by the House of Commons Environment, Transport and Regional Affairs Committee into the work of the Health and Safety Executive. In this submission RoSPA wishes to highlight a number of key points which it is also highlighting in its input to the strategic review of occupational safety and health which has been commissioned by the Deputy Prime Minister on the 25th anniversary of the Health and Safety at Work Act.


  Notwithstanding the role of other health and safety system "drivers", it is clear that legislation, backed by effective enforcement, is a primary influence in energising the present "health and safety system" in the UK and in ensuring the effective control of work related risks. (Thus, while all other influences which promote health and safety need to be developed further (common law claims and insurers' pressure/advice, workforce involvement, public concern and enlightened business self interest), finding the most effective ways of regulating the activities of "risk creators" through effective legal means must still be regarded as an overriding strategic priority.

  Given the substantial costs of occupational accidents and ill health, there are powerful economic as well as social reasons which suggest that the British economy needs (1) a legislative architecture for OS&H that is appropriate to current economic, social and technological needs and (2) a strong and cohesive OS&H promotional and enforcement capability which can intervene effectively to secure effective control of work related risks.

  In short, the regulation of health and safety requires not only having in place legislation which sets goals to be achieved—backed by guidance to duty holders to provide a clear understanding of what is expected of them—but a high degree of certainty that if they fail to comply (either deliberately or inadvertently), such failure will almost certainly attract the attention of the enforcing authorities as well as the possibility of enforcement action, including, in extremis, conviction leading to the imposition of significant penalties.

  While existing enforcement arrangements need to be strengthened, in future, a more sophisticated model of regulation will be required which fully exploits relationships between business and State agencies as well as relationships within business. Already it is clear that, while the employer/employee relationship will remain fundamentally important in describing duties of care in OS&H law, other categories such "engager" or "client" will become equally important, meaning that some corporate entities will be expected to "regulate" others in various ways. This presents new opportunities for the State to extend its regulatory influence through others but it also involves dangers—particularly the danger of departure from principles of "good regulation" recently developed by government.


  A number of inquiries in recent years, including not only by Parliamentary Select Committees but by Government departments, including "The Review of Regulation" commissioned by the last administration and recent reports by the "Better Regulation Unit" (BRU) of the Cabinet Office, have confirmed the appropriateness of the regulatory architecture now in place for health and safety, based as it is on goal setting, reasonably practicability and good guidance. There is also a broad consensus that the extent to which the objectives of OS&H law can be achieved is heavily dependent on the role played by the Health and Safety Executive and other enforcing authorities (particularly the local authorities). The BRU in particular have focused heavily on key principles underpinning HSE's approach to regulation and its enforcement, namely: proportionality, transparency, consistency and targeting.

  The HSE are arguably a unique organisation in European if not world terms. They have a number of features which together contribute to their overall strength as a regulator: These can be described as follows: they are a single focus organisation dealing with the risks arising from or associated with work activity (whereas other labour inspectorates have OS&H enforcement as only one of their roles); they operate within a consultative framework and culture led by the HSC; they incorporate research, policy development, promotional and enforcement functions within a single organisational structure; as a mult-disciplinary organisation with developed contacts with industry and science, they are a unique repository of the immense and diverse knowledge of hazards associated with industry and commerce; they have developed a "risk" and "evidence based" approach to protection from work hazards, which, for all its weaknesses, is substantially more robust and coherent than competing approaches; they have a comprehensive scope, encompassing not only the full range of traditional industries and services but wider sections of employment such as health and education, rail transport, high hazard activities such as the nuclear and offshore industries and they address not only protection of workers but the wider public; and while they seek to secure compliance with legislation primarily via providing advice and guidance they also have an extensive array of powerful enforcement tools, including—where cases are taken in higher courts—to unlimited fines or even terms of imprisonment.


  If HSE is to continue to develop as a regulator, then arguably these important foundations need to be fully recognised and safeguarded. For example, in relation to re-organsiation and securing "value-for-money", while there may be scope for restructuring some of HSE's functions and developing new contracting-out arrangements and partnerships with "intermediaries", any moves towards wholesale contracting out HSE's "core functions" (such as workplace inspection, scientific support, accident and compliance investigation and enforcement) to third parties would seriously undermine its functional integration—and could also cut across the need to ensure consistently high standards of professionalism, independence and accountability to Ministers.

  At the same time, there is considerable scope for improved co-operation between HSC/E and other "health and safety system" players. For example, closer partnership is required to tackle the health and safety problems of small firms or to enhance the impact of and response to public consultation exercises.

  Where there is perhaps less consensus is around questions such as whether HSE are achieving the right balance in their work between preventive inspection and the provision of information and advice on one hand and reactive investigatory work leading to enforcement on the other. There are also different views about the extent to which HSE's impact is sometimes constrained by the absence of clear law, inadequate resources, lack of political direction or the existence of inappropriate bureaucratic boundaries with other parts of government. There are also a variety of views about whether the right balance has been achieved in dividing enforcement responsibilities between HSE and local authorities, the latter having responsibility for a substantial proportion of both businesses and the workforce.

  Given HSE's strengths, there is a very strong case for transferring to HSC/E responsibility for regulation of the whole (or part of) air, marine, fire and product safety as well as specific areas such as electricity supply. The case for integration of regulation in the area of transport safety is presently being examined by the DETR—although as a first step, it might be wiser and more realistic to establish a development consortium or liaison arrangement involving HSE and the various other agencies, to review and develop common approaches. HSE should also be asked to take a stronger development role in relation to home and water safety and safety education.

  Duty holders and those at risk continue to be confused about both the demarcation of responsibility and differences in the safety and enforcement approach in areas such as mainstream health and safety, environmental protection, product safety and food hygiene. Given existing relationships, not only is there the very real possibility of blurring at regulatory interfaces but important opportunities for improving prevention can be missed. A striking example of this concerns occupational road risk which is currently the subject of a major RoSPA campaign. Accidents involving "at work" vehicle use probably account for over twice as many fatalities as from other work related accidents yet HSE is required by ministers to take the view that it is road traffic law and not occupational health and safety law which should take precedence.

  There is a very clear case for closer and more transparent working arrangements between HSC/E and a range of other departments and agencies dealing with health and safety issues and arguably Ministers should undertake a separate and appropriately rigorous public enquiry to examine the case for extending HSE involvement into these other areas. It is important not only that business has access to a unified stream of information about regulatory and compliance issues but that, wherever possible, different public agenciesco-operate to create effective synergies in pursuit of common objectives. Examples of such co-operation which need to be pursued with vigour include: DETR/HSE co-operation in promoting an integrated approach to OH&S and environmental management; co-operation between HSC and DoH to promote delivery of occupational health advice via the health service, for example, developing OH services to small firms via Primary Care Groups; integration of advice about OH&S management into government sponsored business development advice to small firms; as mentioned above, DETR/HSC co-operation to make management of occupational road risk part of both OH&S and road safety policy agendas; effective integration of safety and risk concepts into the National Curriculum; and co-operation between DfID and HSC/E to ensure that questions of OH&S are integrated into UK sponsored international development work.

  Also, government, as a major employer and client has a potentially powerful role to play in using its influence to raise health and safety standards in its own operations and in using its influence through the supply and contracting chain. Government departments and agencies should be required to demonstrate their excellence in managing health and safety through coverage of their OH&S performance in annual reports and by entering for annual OS&H awards schemes.

  Clearly however HSE cannot assume new responsibilities or improve its performance in any of its current roles if it is effectively disempowered by being inadequately resourced.


  It is a matter of some concern to many involved in OS&H that there has been an apparent reduction in enforcement activity by HSE and local authorities in recent years, with a 44 per cent reduction in enforcement notices in 1996-97 compared with 1994-95 (12,600 compared with 22,600). There was a 16 per cent reduction in the number of immediate prohibition notices issued by HSE (3,509 compared with 4,172) and there have even been downward trends in highly hazardous sectors such as construction and agriculture, forestry and fishing. There has also been a general downward trend since the early nineties in the number of informations laid before courts as well in the total number of convictions. From 1994-95 to 1995-97, the total number of informations fell from 1,803 to 1,490. The average fine for convicted offences against health and safety legislation prosecuted by HSE in 1995-96 was £2,572 which was the first fall in the average fine since 1992-93 and only in 1996-97 did it rise to £5,274 but this was due to the imposition of some very large fines including two of £500,000 and £750,000 respectively. (Without these, the average would have been £3,113.)

  Data on enforcement trends are influenced by a wide range of factors, including HSE operational procedures and requirements (such as the now rescinded procedure for issuing "minded to" letters ahead of improvement notices) as well as by the overall inspectorate cadre which inevitably has to compete with other vital HSE functions for resources. On the other hand, it would not be realistic to assume that reductions in enforcement activity have been brought about simply as a result of improved standards of compliance by employers. There has inevitably been the suspicion that more emphasis is now being placed on the giving of advice and guidance by inspectors rather than the use of enforcement procedures, not least because both HSE and local authorities may have become over-sensitive to the criticisms that they are too heavy handed in their approach to securing compliance and that health and safety law itself is "a burden on business".

  Quite apart from the need to secure better compliance by employers in particular cases, it is in the public interest that a vigorous approach to enforcement should predominate, with more information being made available via both local and sector media on all forms of enforcement action being taken, including investigations, prohibition notices, improvement notices, prosecutions and convictions. In particular, more publicity is required on convictions and penalities imposed, although the general level of fines imposed for serious breaches of health and safety law still remains far too low, particularly in sectors like agriculture where average levels of fines and conviction rates remain lower than in other sectors with comparable levels of hazard and risk.

  Use by HSE of "targeting, proportionality, consistency and transparency" criteria in shaping their approach to enforcement is clearly useful in trying to achieve a more rational use of resources. This is manifest in: the use by HSE of their rating system for premises; the use of the NIG system to determine sector priorities; the use of preventive inspection and special investigation techniques such as local "blitzes" (which maximise impact by using the local media); and use of workplace contact officers to build up the enforcement database and distribute information. On the other hand, resources for planned initiatives have to compete with resources available for reacting to reported accidents, incidents and cases of ill health as well as complaints from members of the public. While there is a major need to improve levels of reporting under RIDDOR, it needs to be recognised that this will add to the existing reactive workload of HSE and local authority inspectors.

  More effective use of HSE resources could be achieved by an expansion by both HSE and local authorities of "central approaches" to multi-site organisations (including, for example, the "local authority" lead authority scheme in sectors such as retail). This enables inspectors to move away from physical inspection of premises to focus much more closely on management systems, competence and the adoption of common standards and priorities across whole companies. It also enables enforcing authorities to require major multi-site organisations to use appropriate health and safety auditing systems to review OS&H management performance. The use of audits in this way also enables them to discuss and agree standards and targets with such concerns. It facilitates a much stronger focus on the competence of senior and line managers to manage health and safety. In cases where little or no attempt is being made to develop and implement a systematic management approach, enforcing authorities can use their enforcement powers to require relevant staff to be trained and necessary health and safety management system arrangements to be developed and put in place. In short, this sort of approach has potential not only to achieve greater HSE impact on regulatory compliance but can also help to free up scarce HSE inspector resources to deal with other priorities.

  All new enforcement initiatives which have shown promise need to be developed further, particularly those which link closely to other elements in HSE's promotional strategy. In this connection, consideration might be given to indicating to companies the kind of factors and levels of health and safety management performance which, if achieved, will make it less likely that they will receive a visit from an inspector unless of course there is an accident or a complaint. Conversely, it should be made clear to all organisations which kinds of factors are likely to increase the likelihood of inspectorate visits. Companies should be encouraged to set themselves accident reduction and health protection improvement targets in line with the Government's overall approach to public health.


  Where persuasion and encouragement fail to secure compliance with health and safety requirements, effective enforcement options have to be available—both to secure necessary action and to demonstrate to others that legal requirements must be obeyed. Large fines and, where necessary, terms of imprisonment must be available for use by the courts where serious offences have been committed. In general, as already suggested, fines imposed by magistrates' courts for health and safety offences are too low and should be reviewed. More importantly however new and innovative approaches to sentencing should be considered—for example: debarring offenders from being directors; imposing suspended sentences, dependent on completion of remedial measures; compulsory health and safety training for offenders (for example, for senior directors); greater use of the "remedy order" powers in the HSW Act; use of community service orders connected with health and safety; and more publicity locally and in industry sectors about offences.

  Simply fining an inefficient company for failure to meet health and safety laws may not always be in the public interest. More positive approaches which will produce lasting remedies should always be considered first.


  While HSE have accepted that they have the leading regulatory role in OS&H, what is less clear is the extent to which they have seen it as their responsibility to stimulate and support other important players who play an important role in promoting (and in some cases enforcing) health and safety standards. With the new emphasis in government on working in partnership with others, there is more chance that HSE will be able to achieve its "outreach", awareness raising and compliance objectives by working "with and through" "intermediaries". Some of the principal players here include: main contractors and clients; major local employers acting as "good" neighbours'; chambers of commerce; business development bodies generally; trade associations; insurers and brokers; trade unions; health and safety bodies such as RoSPA; and local voluntary health and safety groups.

  There are many other kinds of "intermediary" with potentially powerful "outreach" and health and safety service capability. Currently HSE contact with such intermediaries is sporadic and dependent on local conditions and/or local resource commitments. It is not clear to what extent HSE seek to co-ordinate "intermediary" joint working centrally but undoubtedly if they are to have more impact through such organisations, this will require considerably more effort—to research and pilot new approaches, to help develop services and to monitor effectiveness.

  Additional HSE resources are required to develop and support the work of over 80 local voluntary health and safety groups which are affiliated to RoSPA. There is also a strong case for setting up a new "intermediaries unit" in HSE which, inter alia might develop joint working with trade associations to develop the latter's OS&H capabilities and services to their members.


  Despite recent increases in HSC/E funding, further cash injections are required, not only to expand existing work such as preventative inspection but also to take on new tasks such as developing the outreach work of key intermediaries aimed at small businesses where risks remain unacceptably high and health and safety management standards are weak or non-existent. (45 per cent of the private sector workforce are employed in businesses employing less than 50 staff and the fatal accident rate in such firms is roughly double that in firms employing 1,000+.)

  Recent increases in HSC/E "Grant in Aid" are to be welcomed as is the Government's commitment to a three year HSC/E funding cycle to ensure stability in forward planning. Additional HSC/E resources are still required however, particularly since the present level of grant-in-aid represents less than 2 per cent of the costs of accidents and work related ill health to the national economy and further modest increases in funding in specific areas (such as promoting the management of occupational road risk) could be justified simply on the grounds of the cost savings that would result from the consequent reductions in injuries and ill health.

  Additional resources are required particularly to support expansion in the following areas: preventive inspection of workplaces (as opposed to simply reacting to problems notified to HSE); "outreach" to smaller workplaces; central approaches to large organisations; promotional work with "intermediaries"; new policy work; research and technical support; and promotion and publicity.

  Current restrictions on resources still mean that: "lower risk" workplaces (and many smaller "higher risk" workplaces) will never receive an inpsection unless there is an accident or a complaint; some new legislative projects are being put "on the back burner"; pieces of much needed new guidance are held up; funds for much needed research are not available; new pilot projects cannot be mounted; and the possibility of closer integration with other areas of health and safety is limited.

  On top of this HSE face the challenge of coping with the continuing consequences of its field force reorganisation and developing itself for the future. A very high proportion of the overall HSE cadre are in training and this has significant internal resource consequences and also affects operational capability.


  One suggestion for increasing HSC/E resources has been the idea of devising mechanisms which would effectively be passing on the costs of the regulatory system to those who create risk, namely employers. In principle this should be explored and also linked possibly to a number of possible economic instruments which could be used to support the "business case for safety". These include grants, soft loans or improved tax allowances for essential health and safety expenditures, better adjustments of insurance premia or financial penalties in contracts for failure to meet health and safety conditions.

  Attractive though the creation of a direct funding link between employers and HSC/E might seem, there would be major practical difficulties to be overcome and there are very sound reasons why health and safety regulation should continue to be funded by the general Exchequer. For example to attempt to fund the HSE by charging employers directly for inspection work would be unacceptable since this would be likely to introduce distortions into the way in which inspection priorities were determined as well possibly as into inspectors' relationships with employers.


  Recently HSE have invited a number of organisations to comment on their forward plans and on 26 May 1999 organised a conference entitled "The Way Ahead" for an invited audience of representatives from key "OS&H System" stakeholders. The conference was useful in explaining HSC/E's thinking and priorities. It also revealed the major potential which exists to increase harmonisation of planning between OS&H system players. More work will be needed however to ensure effective integration in business planning terms. HSE should commission a review of strategic priorities and business planning between a range of OSH key players. They could also examine the option of concluding more formal "partnership agreements" with such players, covering shared goals, values, objectives and areas of mutual support and co-operation.


  HSE remains a prime mover in the OS&H regulatory system. Notwithstanding its need to enhance its enforcement impact, if it is to achieve the broader objectives of OS&H regulation, it needs to widen its focus to take on a much stronger development role, promoting the development of other key parts of the OS&H system—for example OS&H services, training and even some aspects of regulatory compliance. In part this is beginning to occur with the increased emphasis being given to information provision, awareness raising and working with and through intermediaries—including via the supply chain. In the coming period this work needs to be given equal status alongside HSE's established research, policy and enforcement activities. This will not happen however unless HSE has the right structures in place, receives a significant further increase in resources and is held more widely accountable for OS&H regualtion in its broadest sense.

Roger Bibbings

Occupational Safety Adviser

September 1999

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