House of Commons - Work and Pensions

Select Committee on Work and Pensions Fourth Report

5 LEGISLATIVE FRAMEWORK

52. The evidence we received, both written and oral, indicated that there is broad support for the principles of the HSWA, with some caveats.[79] There were concerns that the emphasis on goal setting could make compliance and enforcement difficult, particularly for small businesses, and that HSE is not always sufficiently proactive in filling the gap with the sort of clear guidance that would help.[80]

53. HSC/E argued that some limited legislative changes are needed - on higher fines, corporate killing and the removal of crown immunity.[81] The Department for Work and Pensions supports HSC in promoting the case for higher fines, and other more imaginative penalties. The Department for Work and Pensions is working with other Departments to progress the Government's commitments to reform the law on corporate killing and to remove crown immunity for health and safety offences. The Government has been committed to introducing legislation on corporate killing for some time.[82] Private Members Bills aimed at increasing penalties for health and safety offences and to introduce a new offence of corporate killing have repeatedly failed.[83] On 20 May 2003, the Government announced that it would publish a draft Bill.[84] While this was expected by the end of 2003[85], it has yet to be produced. In oral evidence, Mr Gareth Williams of the Department for Work and Pensions told us that the principle of introducing legislation on corporate killing was agreed, although it was important to ensure there was an effective means of applying it.[86] The principle about whether and how to apply it to the Crown had yet to be resolved. The Home Secretary is hoping to publish a draft Bill before the end of the session.[87] The Committee is concerned at the length of time it is taking the Government to resolve any outstanding issues concerning reforms of the law on corporate killing and recommends that by 1 December 2004, the Government publishes a Bill on corporate killing.

54. These areas apart, HSC's current strategy involves a 'downplaying of further regulatory solutions.'[88] Other regulatory changes proposed in Revitalising, for example on private prosecutions,[89] are still under consideration. Mr Williams of the Department for Work and Pensions told us that the need for regulation was looked at on a case by case basis as part of the Regulatory Impact Assessment. The Minister for Work, told us that making directors' duties for health and safety statutory was not the agreed way forward at this time.[90] On legislation to respond to the changing world of work[91] HSE has come to the conclusion that existing health and safety legislation offers adequate legal protection for all workers, regardless of employment status.[92] Action Point 31 of Revitalising was that HSC should consult on whether the duty on employers to ensure the continuing health of employees, including action to rehabilitate where appropriate, could be usefully strengthened. However, 'as there were no immediate legislative opportunities', it has been decided that HSE should continue working in partnership with DWP and [the Department for Health] to take forward the job retention and rehabilitation agenda.[93]

55. The Committee does not believe that the strategy of 'downplaying…further regulatory solutions' is the right approach. The relative Departmental inactivity in these areas of possible legislation is regrettable and demonstrates a worrying lack of commitment. The Committee recommends that commitments to legislate made in Revitalising Health and Safety in 2000 should be honoured by a Government Bill in the next session of Parliament.

DIRECTORS' DUTIES

56. The HSE recognises that, in organisations that are good at managing health and safety, it is a board room issue and a board member takes direct responsibility for co-ordination of that effort.[94] Action Point 11 of Revitalising Health and Safety was that HSC would advise Ministers on how the law needed to be changed to make these responsibilities statutory, so that directors are clear about what is expected of them in their management of health and safety. It was the intention to legislate on these matters when Parliamentary time allows, as the weight of evidence suggests that the imposition of legally binding duties on directors would increase the likelihood of directors taking ownership of health and safety problems[95], positively impact on the current levels of preventable work-place death and injury and create more of a level playing field between those directors who take their health and safety responsibilities seriously and those who do not.

57. The CBI supported the idea that there should be a director for health and safety who is 'a champion, a reporting person, a motivator and a facilitator for good health and safety performance' but was concerned that it would move quickly to that same person being 'pinpointed to take a claim.' [96] Because of this, it was important to be 'careful about the wording.'

58. The Government appears to have changed its mind since Revitalising, however, and has no current plans to legislate. The Minister, told us that HSE had published guidance on the issue in July 2001[97]. The evidence since then suggested that 'increasingly, companies were directing health and safety at board level and that better guidance to companies is needed rather than legislation or further regulation.' A survey published in 2003, showed that the number of companies in which health and safety was being directed at board level had increased from 58 to 66 per cent. The Minister concluded that this progress diminished the need to regulate.[98] Alternatively, it is worth noting that the perceived threat of legislation in this area might have led some employers to put such arrangements in place in order to pre-empt the need for legislation.

59. The Centre for Corporate Accountability argued that it is not clear that directors are giving leadership and direction on the issue.[99] It says that HSC has acknowledged that in some cases board level involvement is 'fairly superficial.' Furthermore, it argues that the survey referred to by the Minister does not paint a straightforward picture of progress. While an increasing number of organisations were directing health and safety at board level, the study also showed that board level involvement on some issues actually decreased.

60. The Committee recommends that the Government reconsiders its decision not to legislate on directors duties and brings forward proposals for prelegislative scrutiny in the next session of Parliament.

EUROPEAN UNION

61. Concern is also expressed, particularly by employer groups, that recent legislation coming from the EU has not been subject to an adequate regulatory impact assessment. For example, legislation on 'whole body vibration' which HSC acknowledged would not deliver health and safety improvements, was criticised by EEF, the manufacturers' organisation.[100] DWP argued that it was trying to work within the EU along the Regulatory Impact Assessment model in order to get more clarity about the purpose of individual directives.[101] On its visit to Brussels, the Committee was told that the EU health and safety directives were due for review. This could provide an opportunity to ensure that both current and future directives are necessary, reasonable and practical.

62. The European Commission has issued a Reasoned Opinion alleging under-implementation of the Framework Directive relating to the use of the wording 'so far as is reasonably practicable'.[102] The CBI is concerned that this principle is under threat.[103] Dr Janet Asherson told us that the CBI valued the flexibility it gave companies to achieve health and safety objectives and was well-established.[104] The Scottish Trades Union Congress told us that it continued to 'be concerned that the inclusion of reasonable practicability is an economic measure of health and safety' and viewed it as 'a contravention of the European Health and Safety Framework Directive.'[105] Mr Gareth Williams of the Department for Work and Pensions told us that the Government thinks the approach adopted in the UK, in the context of UK law is robust and that the UK's comparatively good performance on health and safety demonstrated its value.[106] The Government has responded to the Commission and awaits its response[107]. This is a matter to which the Committee may wish to return.