House of Commons - Work and Pensions

Select Committee on Work and Pensions Fourth Report

11 INSPECTION AND ENFORCEMENT BY OTHER AGENCIES

183. Health and safety law is enforced by HSE and by LAs (who are mainly responsible for premises such as offices, shops, retail and wholesale distribution centres, leisure, hotel and catering premises).[310] Other areas not enforced by HSE include consumer and food safety, marine and aviation safety and pollution.

184. The Chancellor has asked Philip Hampton to consider the scope for 'promoting more efficient approaches to regulatory inspection and enforcement while continuing to deliver excellent regulatory outcomes.'[311] A discussion paper presented to the Health and Safety Commission discusses the relationship of HSE to other regulatory bodies.[312] It notes that there are over 100 independent regulators, who have grown up in piecemeal fashion. The system is said to be designed from the perspective of regulators, 'concentrating on their individual requirements and design processes to give them the greatest chance of being realised'. There is ' a clear government push to consider the system from the perspective of the regulated.' From this perspective, the canvass is 'inconsistent and overcrowded.'

185. Commenting on the way forward, the paper presented to HSC comments that greater 'brigading' of regulatory functions would 'harmonise approaches, reduce burdens on business and avoid duplication and might be a logical step forward.' It argues that the 'one stop shop' argument has been discussed at length but that the enormity of the task and the different needs and wishes of stakeholders have been barriers to progress. It is conceded that there might be scope for some rationalisation of existing regulators but there are questions as to whether this would result in genuine benefits. It is suggested that there may be scope for more joint working including: joint approaches to communications; a single access portal to regulatory information and guidance; a common understanding of what works leading to common intervention strategies; and common approaches to risk management.

186. The current regulatory structure did come in for some criticism in evidence to the Committee. The Confederation of British Industry argued that there is scope for greater co-ordination between HSE and other government departments, particularly where there were overlapping responsibilities.[313] It believes that HSE's approach to risk-based regulation could usefully be applied to other regimes. It argues that health and safety regulations, environment regulations and others are ultimately applied by business to one process and under a coherent set of management standards. This 'needs to be recognised by regulators if they are to avoid conflicting and duplicating requirements'. CBI favours a 'first stop shop approach' which brings together the expertise of a range of officials through a single contact point. Business 'needs regulatory contacts who can provide specialist advice but also needs a simple way of accessing government.' Beyond that, however, the CBI said it believed that 'the separation between policy and enforcement, represented by the HSC and HSE, combined with strong links between the two organisations has resulted in effective and independent policy.' EEF, the manufacturers' organisation, argued that 'the separation of the Commission and Executive have served us well over the last 25 years and should continue to do so.'[314]

187. In the context of the health service, the Royal College of Nursing was concerned that a fragmented structure had developed as a result of the modernisation agenda.[315] This had led to a 'multi-agency approach' with numerous bodies (e.g. the National Patient Safety Agency and the Counter Fraud and Security Management Service) responsible for particular aspects of health and safety.' Overall, there was a sense of 'lack of coherence, leadership and accountability'.

188. The Committee was not able to consider in detail HSE's relationships to a wide range of other regulators. However, we did look in some detail at how it interacts with local authorities, who are the other main body involved in health and safety enforcement.

Enforcement by local authorities

189. The local authority enforced sectors are predominantly made up of small businesses - almost all employ less than 50 employees and over 90% less than 10 employees.[316] The number of workers in the local authority enforced sectors is increasing and the role of local authorities in enforcement will continue to grow in importance.[317] The rate of reported injuries in the local authority enforced sector increased between 2001/02 and 2002/03.[318] The Labour Force Survey rate of reportable non-fatal injury has fluctuated, with no real improvement over the past five years. The proportion of people reporting that their illness was caused or made worse by a job in the LA enforced sector is 3.2%, lower than the overall rate for all industries.

190. Evidence to the inquiry suggested that there are advantages to having local authorities involved in enforcement of health and safety.[319] A number of key concerns emerged, however, regarding the nature of the division of responsibility with HSE, the squeezing of resources for health and safety due to competing demands and a lack of consistency in enforcement activity across local authorities.

RESOURCES FOR LOCAL AUTHORITY ENFORCEMENT

191. HSC statistics show that the number of inspectors holding and using HSE powers fell by 26.3% from 1,440 in 1997/98 to 1,060 in 2001/02.[320] The rate of local authority inspections declined by 11% between 2002/03 and 2001/02. The rate of visiting has declined steadily since the 1990s and 23 visits per 100 premises were carried out in 2001/02. Both the Convention of Scottish Local Authorities (CoSLA) and the Local Government Association (LGA) argued that resources for health and safety enforcement are squeezed by competing priorities, and in particular, food safety.[321] There were also concerns that local authorities were subject to competing and sometimes conflicting demands from central government.[322] CoSLA also argued for an examination, at both Scottish Executive and Westminster level of the relative priorities in public health terms of all the functions that local authorities undertake.[323] In the absence of this, resource allocation tended to depend on which agency shouts loudest. A further concern was that local authorities had difficulty recruiting and retaining suitably qualified staff.[324]

Consistency of enforcement

192. The Committee received evidence of inconsistency of enforcement across local authorities.[325] A report by Unison and the Centre for Corporate Accountability, based on data for 1999/2000, found 'huge variation between local authorities in levels of inspection, investigations, in enforcement notices and in the numbers of health and safety inspectors.'[326] The LGA argued that there were mistakes in this report. The Centre for Corporate Accountability provided details of four errors in the detail of the report but told us that, overall, its accuracy had been accepted by HSE.[327]

193. Both CoSLA and LGA were concerned that the narrow focus on the number of inspections done did not reflect other activities carried out by local authorities, such as provision of advice to businesses. They also questioned the link between the number of inspections and improved health and safety outcomes.[328] In oral evidence, CoSLA said that 'we do not have too much evidence at the moment of what interventions work' and pointed to ongoing work to develop a 'more meaningful performance indicator.'[329] The question of whether the impact of enforcement in the local authority sector is the same as in the HSE sector was identified as an issue in the recent literature review on interventions to improve compliance.[330] In the meantime, however, it would appear sensible to use the extensive research evidence on the effectiveness of HSE interventions.

194. CoSLA considered the current level resourcing of HSE monitoring of local authority enforcement activity to be insufficient, with HSE 'only doing selected and obviously failing local authorities.'[331] The Centre for Corporate Accountability told us that HSE uses one person to audit local authorities compared to over 40 employed by the Food Standards Agency.[332] CoSLA also attributed the Food Standards Agency (FSA)'s comparative success as being due to its having kept food safety and hygiene high on the public agenda, having posed a number of strict targets, and having taken a much stronger line on informing councils of their duties under the Food Safety Act.

195. Section 12 of the Food Standards Act 1999, states that the FSA has the 'function of monitoring the performance of enforcement authorities', including by setting standards. The FSA has the power to report on the performance of any enforcement authority and to include guidance on actions to improve performance. It may direct the authority to publish this report and notify the FSA of the action it has taken in response.

196. Section 45 of the Health and Safety at Work Act allows the HSC, where it is of the opinion that an investigation should be made into whether a local authority has failed to perform its enforcement functions, to make a report to the Secretary of State. The Secretary of State may direct that a local inquiry should be held to consider this. Where an authority is subsequently found to be in default, an order may be made requiring the local authority to perform certain functions. Where it fails to do so, performance of enforcement functions may be taken over by HSE.[333] This procedure looks unwieldy compared with that available to the Food Standards Agency, and it is not clear that it has ever been used.[334]

197. At the moment, the system of auditing is a peer review system which reports back to HSE.[335] CoSLA told us that most local authorities in Scotland would prefer to have a third party auditing system, but that this system should apply to HSE in the same way as to local authorities. The LGA argued that peer review was the best way of auditing local authorities.[336] However, it felt that the performance of both HSE and local authorities should be analysed by HSC. [337]

198. The Committee recommends that HSE undertakes and publishes by 1 October 2005 a thorough audit of the performance of local authorities. The Committee further recommends that additional powers should be made available to allow HSC/E to take actions against any local authority manifestly failing in its duty of enforcing health and safety regulations.

DIVISION BETWEEN LOCAL AUTHORITIES AND HSE

199. Both CoSLA and the LGA argued that there were important advantages to having local authorities involved in health and safety, including local accountability, strong and widespread contacts with local businesses and their ability to use other interventions such as licensing, planning and building control, and economic development to influence health and safety awareness practice.[338]

200. The Institution of Occupational Safety and Health (IOSH) told us that the current division was a 'historic anomaly', based on organisations that were covered by the Factories Act on the one hand and the Offices, Shops and Railway Premises Act on the other. [339] Mr St John Holt told us that the Royal Mail, with some of the most advanced mail sorting operations in the world, was largely enforced by environmental health officers 'with some difficulty in terms of their expertise to do that.' CoSLA described the current divisions of responsibility as 'counterproductive and confusing to business.'[340]

201. The current HSC strategy concedes that there is 'no lasting logic' to the current division of responsibility between HSE and local authorities, which are complex, confusing and based on boundaries that suit the needs of the regulator rather than those of business or the workforce.[341] In oral evidence, Bill Callaghan, Chair of the HSC, told us that the local authority role was 'fully recognised', although in the past they had been 'very much the junior partner.'[342] HSC's current strategy is to seek to develop a 'closer partnership based on a mutual understanding of the value of local versus central interventions.'[343] Organisations representing local authorities (the LGA and the CoSLA) agree there is a need for better partnership arrangements. [344] The LGA and LACoRS (Local Authorities Coordinators of Regulatory Services) agree that there is 'scope for reviewing the EA [Enforcing Authority] regulations to determine whether the current division of responsibilities makes the best use of the joint enforcement resource.'[345] CoSLA believes there is 'potential for maximising that common resource, through joint planning against jointly agreed and fully resourced outcome targets and with equal access to the technical and scientific resources of the HSE.'[346]

202. Among both employers and unions, however, there was some scepticism as to whether an improved partnership arrangement would make enough of a difference.[347] The CBI was sceptical that , a 'memorandum of understanding' would deliver business' needs for 'consistent and effective enforcement within a clearly identified programme of priorities'. However, it argued that 'an evaluation of the effectiveness of current enforcement arrangements of LAs should be made before decisions can be taken about transferring enforcement/inspection responsibility between HSE and LAs.'[348] A range of organisations, including the Business Services Association, the GMB, the Graphical Paper and Media Union and the Institution of Occupational Safety and Health suggested that it might be advantageous to remove responsibility for enforcement from local authorities and give those powers to the HSE.[349]

203. The TUC did not support any fundamental changes to the current regime (although it did argue that consistency of enforcement needed to be improved and that more resources were needed).[350] The STUC was 'not of the view that a unitary enforcement body would provide better results.'[351]

204. The Committee recommends that the Department by 1 October 2005 reviews its strategies to ensure national consistency and rigour in enforcement of health and safety regulations throughout Great Britain. If this review finds substantial support for current criticisms, it is further recommended that the demarcation of enforcement activity between HSE, local authorities and other enforcement agencies be examined, the case for a unified health and safety enforcement authority investigated and the reasoned conclusions thereof be published by 1 October 2006.

310 HSC (2002), The health and safety system in Great Britain, London: The Stationery Office Back

311 HM Treasury (2004), Budget 2004, Prudence for a purpose: A Britain of stability and strength. London: The Stationery Office, para 3.57 Back

312 http://www.hse.gov.uk/aboutus/hsc/meetings/2004/110504/cm04.pdf Back

313 Volume III (No. 42) Back

314 Volume III (No. 33) Back

315 Volume III (No. 12) Back

316 HSC, National Statistics, Health and Safety Activity Bulletin 2003, Inspection and enforcement in local authority enforced sectors. www.hse.gov.uk/lau Back

317 Health and Safety Commission (2003), Delivering health and safety in Great Britain. Health and Safety Commission Annual Report 2002/03,London: The Stationery Office Back

318 HSC/National Statistics (2003). HELA National Picture 2003. Health and safety in local authority enforced sectors.Health and Safety Executive. The report notes that the methodology used in estimating reporting of major injuries has been provisionally revised. Using the revised basis, the injury indicator in 2002/03 has dropped since 1999/2000, while the unrevised indicator rises. There is insufficient evidence to choose confidently between the two. Back

319 Volume III (No. 43), Volume II (Ev 90,Q340) Back

320 HSC, National Statistics (2003), Health and Safety Activity Bulletin 2003, Inspection and enforcement in local authority enforced sectors. Sudbury, HSE Books, table 2 Back

321 Volume II (Ev93, Q 351) and Volume III (No. 43) Back