Examination of Witnesses (Questions 580-599)
19 MAY 2004
RT HON
JANE KENNEDY
MP AND MR
GARETH WILLIAMS
Q580 Rob Marris: So we have this guidance
that is not going to be enforced by the HSE.
Jane Kennedy: Not in terms of
road safety.
Q581 Chairman: What about the requirement
to report. It is very difficult to get a handle on work-related
road deaths. Can the Government, the HSE, not make it a requirement
to ensure that anything that has got a work-related dimension
to it is actually reported because I do not think the statistics
are robust enough for any of us to make a judgment about what
happens next.
Jane Kennedy: I think that is
something we could look at. Clearly it is good for business if
employers take seriously the safety of their employees who are
driving. It is in their interests as a business, as an employer,
to ensure that their staff behave safely and drive safely and
clearly driving long hours is exactly opposite to a safe driving
practice. Driving in a way that causes danger is a criminal offence,
something that the police are best placed to enforce upon the
individual driver. I think the advising role that the HSE plays
is the one that we would want to encourage them to continue rather
than to become another arm of enforcement in terms of road safety.
Q582 Rob Marris: You could prosecute
the employer. The police would initiate a prosecution of the driver
for careless driving, dangerous driving or whatever it is called
now, but the HSE could prosecute the employer. That is a different
kind of enforcement.
Jane Kennedy: I think they could
anyway. If there was a sufficiently strong case then I think they
could anyway.
Q583 Rob Marris: That is the point as
far as we can tell, they do not. We are asking do you think that
they should because it seems to some of us that perhaps the HSE
should be prosecuting employers for road traffic accidents caused
by people who are at work.
Jane Kennedy: I think they would
prosecute where there was a case. I think that is the answer I
would give on all such occasions.
Q584 Mr Dismore: I was not going to ask
about this but I have got to ask one question. How can the HSE
prosecute the employer of the HGV driver who falls asleep at the
wheel and kills himself and somebody else if it is not a reportable
accident? How can the HSE prosecute the travelling salesman who
falls asleep at the wheel because he is given an impossible schedule
to meet because it is not a reportable accident? How can the HSE
prosecute white van man who is nicked for speeding because he
has been given an impossible schedule of deliveries by his employer?
How can the HSE prosecute in those circumstances where the man
may have been driving and caused an accident and injures himself
but could quite easily kill somebody else or himself because of
the schedule he is given? If the HSE does not even have reports
of these incidents, how on earth can they start to think about
taking any enforcement action at all?
Jane Kennedy: I think that is
a fair point and it is a point I would want to consider. I still
believe that in terms of general road safety, the balance that
the Health and Safety Executive have got at the minute is the
right balance. I take the point about reporting.
Q585 Mr Dismore: Before going to my main
batch of questions, can I also take issue with Mr Williams because
he made a comment about stress cases and why there are so few
of them. The answer is not the reason that you gave. It is nothing
to do with the problem of causation, causation is often established
in many, many cases that are not brought, the problem is because
the courts have set the bar of breach of duty of care extremely
high for civil claims. It is nothing to do with causation or medical
issues, it is to do with proving the breach of duty and that is
a different issue altogether. Can I go on to my main batch of
questions. Jane, perhaps you could tell us whether you think the
Government is going to achieve its 2004 target for reducing ill-health
and accidents at work?
Jane Kennedy: Do we know?
Mr Williams: I think it may achieve
the target on the major accidents and fatalities, progress has
been made. We will not know the statistics for the final milestone
year until later this year, but previous statistics have been
within the statistical variation of meeting the target, so it
may have done that. It is unclear in relation to the ill-health
targets and I think that is largely because the reporting basis
for ill-health has been comparatively poor. We have seen significant
fluctuations in the number of days lost to ill-health in recent
years that do not give us that much confidence in the baseline.
We are doing two things on this. One is we have agreed with HSE
the introduction of a new workplace survey which will give us
statistics of National Statistics quality on workplace ill-health
in order that we can get a better handle on both the starting
position and the causes and principal contributory factors, so
to improve our evidence base, which is important. In the meantime,
things are not standing still because it is quite clear that whatever
the baseline figures, you can extract the principal causes that
have been around stress, mental health and musculoskeletal disorders,
so when the HSE talk about a reprioritisation of resources within
their strategy, these are two principal areas.
Q586 Mr Dismore: That is not what I am
asking you about. It was a straightforward, simple question actually.
Can I remind you what the targets are because they were set out
in the document from four years ago, the Revitalising Health
and Safety document. By 2004 you were supposed to achieve
half the improvements set by 2010, which is to reduce the number
of working days lost per 100,000 workers by 30%, in other words
15% by now; reduce incidents of fatal and major injuries by 10%,
in other words 5% by now; and reduce incidents of work-related
ill-health by 20% by 2010, in other words 10% by now. All the
witnesses we have had so far have been unanimous in saying that
the Government is not going to meet those targets.
Jane Kennedy: I touched on that
in my opening statement which is why the strategy that the Health
and Safety Executive and the Commission have developed is so important
and central to achieving the 2010 targets. We believe the strategy
will enable the Executive to meet those targets. As Gareth has
said, on this year's target, the 2004 target, we can speculate
but we will have to wait and see.
Q587 Mr Dismore: Perhaps I could go on
to probe some of those issues because I think the evidence so
far is that at best the statistics are flat-lining as far as accidents
are concerned, and as far as illness is concerned they are skyrocketing.
That may be due to the fact that people are reporting more incidents
of ill-health, it does not mean to say there is more or less ill-health
but that people are more aware of occupational health being an
issue. Can I go on to the question of prosecution. One of the
concerns I have is that we talk about refocusing the HSE work
but with fewer health and safety inspectors than there are Members
of Parliament inevitably their work is going to be somewhat stretched.
I think the HSE research, which we have seen, shows that fear
of being taken to court is one of the real factors in getting
employers to comply with health and safety legislation. There
is no doubt that the number of prosecutions has fallen and your
strategy is going to reduce the number of prosecutions even further.
You are good at the carrot and stick approach, and I can see why
you want to go down the carrot route but, in my view, taking the
stick away or making the stick a lot thinner is not going to produce
the right sort of balance.
Jane Kennedy: Except that the
Health and Safety Executive will be focusing their activity upon
those areas where the risks are greatest. Where risks are well-managed
then the Health and Safety Executive will continue to monitor
that field of work but will put its resources where they will
have the most impact.
Mr Williams: That is not to gainsay
the point about enforcement leading to go hand-in-hand with this,
as you were saying earlier, it remains an important plank. The
HSE currently prosecutes as many people as it did in 1997, its
success rate is 76%. It issues more improvement notices, at 13,000,
than it did previously. The numbers of inspectors are up. If you
look at inspector grades working, it is up a couple of hundred
over the last two or three years to about 1,400 plus there are
about 1,300 inspectors working in the local authority sectors.
That is simply to say that enforcement is not forgotten in all
of this.
Q588 Mr Dismore: I am not talking about
enforcement, I am talking about prosecution. Can I come back to
the point that Jane made about low-risk premises, because my concern
about low-risk premises is that they are defined much more in
terms of the industrial premises and then neglecting the emerging
risks, for example, of stress, of passive smoking and so forth.
An office is perceived as a low-risk premise. What can happen
to you, you trip over a cable, you fall down stairs or you get
exposed to problems from your VDU, which explains Rob's earlier
question about lack of enforcement. Stress, if anything, is much
more common in the office environment but it is seen as low-risk
premises. Some offices have dealt with passive smoking in the
workplace but others have not. Passive smoking is a big issue
in the catering trade which is seen as a low-risk premise for
health and safety purposes. My concern is that whilst we may be
focusing on the heavy engineering concept of low-risk, we are
missing the emerging risks under that definition.
Jane Kennedy: Everything we have
been saying this morning is that we acknowledge the emerging risks.
Mr Williams: I do not agree that
it has been missed, certainly not in the new strategy which emphasises
this area. I agree with the analysis, if you look at industry
sectors and risk, if you look at the public sector which is traditionally
perceived, at least, as white collar, actually it is the sixth
highest risk in terms of industry sectors and it reflects what
you are saying about musculoskeletal diseases in the NHS, manual
handling for nurses, stress. The HSE has a willingness to enforce
it and the number of enforcement notices for stress has increased,
but it is also about the work that we are doing within Government.
We are bringing together the big employers to look at their own
risks and improve risk assessment, which we touched on earlier,
and also moving the debate on. One of the areas in which the HSE
has been successful in the past 18 months or so is in helping
move on the debate on stress and absence to a much more mature
level.
Q589 Mr Dismore: Can I move on to another
recommendation from Revitalising Health and Safety,
which is that the consent of the DPP should no longer be required
for health and safety prosecutions, in other words allowing private
prosecutions. That was a very clear recommendation and bearing
in mind that we only have one in five reportable accidents investigated,
effectively it would enable trade unions and safety representatives
to a degree to plug the gap left by the HSE not being able to
investigate more serious accidents. If there was a private prosecution,
anyone who brought such a case would be at risk on costs if they
brought a case which was not justified. Perhaps you can let us
know where you have got to in terms of carrying forward that recommendation.
Jane Kennedy: In terms of allowing
private prosecutions, we do remain committed to legislating on
that if it proves necessary.
Q590 Mr Dismore: In 2000 it did.
Jane Kennedy: We have not reached
any firm conclusions yet within Government.
Q591 Mr Dismore: The Law Commission recommended
it.
Jane Kennedy: We are grateful
for that advice.
Mr Williams: Again, in terms of
determining whether or not private prosecution is the way forward,
as the Minister said the debate remains open. As I was saying
earlier and as you reflected, we do support the use of experts
in the workplace, workplace safety advisers or better working
with employers and employees to plug the gap. The issue here is
simply one of whether you want to go the extra step and give those
workplace representatives the ability to prosecute their employer
or whether you believe that changes the nature of the relationship
and the willingness to engage and at that stage it is right to
get in the HSE inspector and for HSE to form a view.
Q592 Mr Dismore: The problem is you do
not have the resources to do that. Let me give you an example
from when I was in practice. This is simply to do with enforcing
the safety reps' own rights. The safety reps cannot even enforce
the rights they have now without the HSE being involved and the
HSE refuse to get involved. There has been only one case of the
safety rep regulations being enforced by the HSE since they were
introduced in 1977. I will give you a very concrete example. Once
I was advising a trade union where they wanted to do an inspection
of an off-site that was going to be used for a very dangerous
exercise. The employer refused to allow them to inspect the site,
even though they had the right to do so under the regulations.
The HSE did not want to know. How can you say, on the one hand,
you want to back up safety reps and help them do their job but
at the same time not even allow them to enforce their own rights?
Jane Kennedy: In terms of allowing
private prosecutions, the one question I would want to keep asking
is, is this the route to reducing the number of accidents? I do
not think it is. We are still debating this and discussing this
with the Health and Safety Executive and, as I have said, we have
not formed a view yet, notwithstanding the advice you have pointed
us to.
Q593 Mr Dismore: Whether you have formed
a view or not, it was in the Government's original document. Some
four years ago it was a recommendation in the original document,
so you certainly had a view four years ago. The first question
is what has changed over the last four years? More importantly,
putting aside the question of prosecuting the employer for a regulatory
offence under the Health and Safety at Work Act or the six-pack
or anything, the very fact remains that safety representatives
cannot enforce their own rights to do inspections or the safety
committee rules or anything, they cannot enforce any of those
rights. It has nothing to do with prosecution for the actual offence,
it is enablement for them to investigate an accident. For example,
if an employer says "No, I am not going to allow you to investigate
this accident", even though it is something they are allowed
and required to do under their duties, under the regulations,
they cannot do anything about it, that is the problem. At the
very least, do you not believe that the safety reps themselves
ought to be able to enforce their own rights to enable them to
do their job which we have given them by regulation under the
statute?
Mr Williams: I agree with that
and I think it is reflected in the direction in which HSE is now
moving when it talks in its strategy about seeing itself as working
within a general health and safety system, but it is not the only
source of enforcement or advice within that system. It is also
not a static environment on the employer's part either. When you
look at some of the work that has been progressed following the
additional attention that is being given to this area following
the recent increases in employers' liability insurance premiums,
one of the responses to that between employers and insurers is
about having better investigation of incidents by employers in
order that they can better inform the decisions their insurers
follow. All I am trying to say here is that the HSE in its work
is one element of this but working with workplace advisers and
representatives is another, making that work, as, indeed, is moving
forward the actions of employers, all of which are pushing in
the same direction.
Q594 Mr Dismore: Could I come on to the
issue which we were debating last Friday, sentencing powers. Everybody
I think agrees—the employers, the HSE, the unions, everybody
agrees—that we need better and more effective sentencing
powers and also more innovative penalties. This was what we were
debating last Friday on the Private Members Bill which was certainly
the second, I think possibly the third attempt to do it by Private
Members Bill. It is quite clear that Eric Forth is going to block
it every time there is an attempt to bring in a Private Members
Bill, which is what he has done every time so far.
Jane Kennedy: Yes.
Q595 Mr Dismore: So this is not a route
that can be followed. Is the Government going to find time to
do it itself?
Jane Kennedy: It is one of three
areas that the HSE have indicated to us, the Commission, that
legislation would improve their ability to act. As I said in the
debate on Friday, it is an area of legislation that we think would
help. It is finding the legislative time for Government bills
that is the difficulty. We are working on the question of corporate
manslaughter, as the Committee will be aware.
Mr Dismore: I was going to come on to
that.
Rob Marris: Surprise! Surprise!
Jane Kennedy: This particular
Bill we had hoped that the Private Members route would prove successful;
it has not done, as you rightly point out.
Q596 Mr Dismore: Would it be possible,
for example, to add it to a Criminal Justice Bill? We are talking
about criminal penalties here. We have had several Criminal Justice
Bills over the last few years, there is no reason why, if you
are talking about increasing sentences, it could not be included
in the Home Office Bill.
Jane Kennedy: I think we will
have to examine ways of doing it.
Mr Williams: Yes. As the Minister
is saying, our priority is in terms of legislation looking at
corporate manslaughter, Crown Immunity and offences and we will
try to find our wins where we can take them. If that means moving
in on other bills, as we are trying to do with corporate manslaughter
in terms of working with the Home Office on their proposals, then
we will certainly look at that. There is a lot of debate here.
I noticed this was an area which the Chairman of the Commission
was particularly stressing when he was asked about his wish list
and if you talk to business representatives, the Institute of
Directors, CBI and others, there is a discussion to be had about
penalties.
Q597 Mr Dismore: Can you tell us why
the Corporate Manslaughter Bill is currently being put back yet
again? We had an exchange by question where you gave me an answer
which was proved to be wrong—not through your fault I hasten
to add—in a matter of days.
Jane Kennedy: I gave you the best
advice that I had at the time.
Q598 Mr Dismore: Yes, and that proved
to be wrong. I raised it in Prime Minister's Questions this time
last year and was told it would be published by the end of last
year. I do not know how many times I have been told "soon"
or "shortly". Dozens of questions have been asked along
those lines over the last few years, exactly what is holding the
bill up and when are we going to see it?
Jane Kennedy: Clearly the Home
Office is in the lead on this. The Home Office's permanent secretary
wrote to departmental colleagues in March of this year seeking
views on applying the offence of corporate manslaughter to crown
bodies. This is tied up with the point that Gareth was making,
a second legislative priority that we have, which is a question
of Crown immunity. A number of the responses across Government
supported the principle of applying the offence to crown bodies
but there was concern at the potential width of the offence and
the only report I can give to you is that is still being considered.
Q599 Mr Dismore: The only outstanding
issue to resolve is Crown Immunity?
Mr Williams: On corporate manslaughter
it is not about the principle, it is simply about the mechanism
and how you apply it and finding an effective means of applying
it.
| 
